© Eric S. Sherby 2022
Since the 1950s, four international treaties have had a profound effect on international civil litigation – (a) the 1961 Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (known as the “Apostille Convention”), (b) the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (known as the “New York Convention”); (c) the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (known as the “Hague Service Convention”), and (d) the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (known as the “Hague Evidence Convention”).
Israel is a party to each of these treaties.
The conventional wisdom globally is that the importance of the Hague Service Convention has, for many years, been waning. The Hague Service Convention was negotiated at a time when international courier services such as Federal Express, DHL, and UPS were unheard of. But in recent decades, courts in many Western countries have authorized the use of international courier services as an alternative to service through a “central authority” established under the Hague Service Convention. Similarly, over the past decade or so, in situations in which claimants have been able to demonstrate that service via e-mail is necessary, courts have even allowed service of process via e-mail.
But the above does not mean that the Hague Service Convention is dead.
Proof that the Hague Service Convention is still “alive and kicking” comes from a recent American case, in which (a) a federal appellate court held that the failure to follow the procedures set forth in the Hague Service Convention was fatal to a motion in the U.S. to recognize and enforce a multimillion international arbitral award (see Saint-Gobain Performance Plastics Eur. v. Bolivarian Republic of Venezuela, 23 F.4th 1036 (D.C. Cir. 2022), and (b) the United States Supreme Court refrained from hearing an appeal of that decision.
In the Saint-Gobain case, the grounds for opposition to the default judgment was Article 15 of the Hague Service Convention, which provides that a court (in the country that requested service abroad) may not enter a default judgment based on a determination that the foreign defendant “has not appeared” until the court documents are served in accordance with Article 5 or another valid method of service under the Hague Service Convention.
In the Saint-Gobain case, the court papers were never served upon the government of Venezuela, which argued that, therefore, it never became subject to the jurisdiction of the American court system.
The claimant argued that, in essence, the only reason that service was not carried out in accordance with the Hague Service Convention was the failure of the Central Authority in Venezuela to fulfill its obligations under the convention.
That argument was not sufficient to persuade the U.S. Supreme Court to consider reviewing the appellate court’s decision.
Prior to the Saint-Gobain case, there had been case law from other American appellate courts indicating that “less than” strict compliance with the Hague Service Convention would be acceptable under certain circumstances. The continued relevance of that case law is now in doubt.
The main lesson to be learned from the Saint-Gobain case is that the Hague Service Convention means what it says and that any “unwritten exception” to the Convention will be difficult to find.
This lesson is perhaps a mixed blessing for Israeli companies involved in international litigation:
a. On the one hand, to the extent that such companies are named as defendants in lawsuits filed in the United States, then this recent turn of events in American case law might suggest that American claimants will be hesitant to “cut corners” in connection with the service of papers upon Israeli defendants in a manner other than through the central authority established under the Hague Service Convention;
b. On the other hand, to the extent that Israeli judges look to the United States for guidance as to the proper interpretation of the Hague Service Convention, then this recent development in American case law could result in Israeli courts issuing more stringent decisions with respect to the service of process of court papers upon non-