Reversed and Remanded and Majority and Dissenting Opinions filed June 30,
2015.
In The
Fourteenth Court of Appeals
NO. 14-14-00012-CV
TARA MENON, Appellant
V.
WATER SPLASH, INC., Appellee
On Appeal from the 212th District Court
Galveston County, Texas
Trial Court Cause No. 13-CV-0205
DISSENTING OPINION
The only question that appellant Tara Menon presents for our review is
whether service by mail to a defendant in Canada is permitted under Article 10(a)
of the Hague Convention on the Service Abroad of Judicial and Extrajudicial
Documents in Civil or Commercial Matters (“the Service Convention”).1 The
majority concludes that it is not.2 In reaching this result, the majority fails to
1
Opened for signature Nov. 15, 1965, 20 U.S.T. 361, 658 U.N.T.S. 163.
2
But see Cook v. Toidze, 950 F. Supp. 2d 386, 394 (D. Conn. 2013) (“[S]ervice by
regular mail is proper under the Hague Convention where the party served is a resident of
follow the United States Supreme Court’s directions on the construction of treaties
and the Texas Supreme Court’s instructions on the correct approach to decisions of
the federal courts. Because Texas intermediate appellate courts are bound by these
authorities, I instead would follow their precepts, which lead to the conclusion that
service by mail to a litigant in Canada is permitted under Article 10(a) of the
Service Convention. I accordingly would affirm.
I. ISSUES PRESENTED
It is unnecessary to detail the facts in this case, because although Menon’s
brief lists four issues, she has presented only a single narrow question of law. That
question is presented in her third issue, in which she asks, “Did the drafters of the
Hague Service Convention intend for the word ‘send’ contained in Article 10(a) to
mean ‘serve’?” She restates the question in her fourth issue, asking, “May a
litigant serve a Canadian citizen and resident of Québec with process in a Texas
civil proceeding (bypassing traditional diplomatic channels and the Central
Authority under the Hague Service Convention) by sending citation directly to the
Canadian citizen . . . by mail, private delivery service, or e-mail?”
Menon’s first two issues do not raise any other questions. Her briefing of
her first stated issue (“Did the trial court err in denying the motion for new trial
and refusing to set aside the default judgment?”) contains no argument, but instead
Canada.”); Mitchell v. Theriault, 516 F. Supp. 2d 450, 455 (M.D. Pa. 2007) (holding that service
of process by mail on a resident of Québec is not prohibited by the Service Convention); Heredia
v. Transp. S.A.S., Inc., 101 F. Supp. 2d 158, 161 (S.D.N.Y. 2000) (“[S]ervice by registered mail
in Quebec is adequate service under the Convention.”); Randolph v. Hendry, 50 F. Supp. 2d 572,
578 (S.D. W. Va. 1999) (“Because Canada does not object to service by postal channels, service
of process by mail is authorized in this case.”); Taft v. Moreau, 177 F.R.D. 201, 204 (D. Vt.
1997) (“Plaintiffs’ use of registered mail, return receipt requested, to transmit the summons and
complaint [to defendants in Québec] was in compliance with the Hague Convention.”); Cantara
v. Peeler, 701 N.Y.S.2d 556, 557 (App. Div. 1999) (holding that Article 10(a) permits service by
mail upon residents of Canada because Canada has not objected to service through postal
channels).
2
consists solely of an introduction and a single statement, with citations, regarding
the standard of review.3 In her second issue, she asks, “Can state law provide a
procedure for service of process in foreign nations that does not comport with
traditional international law (e.g. letters rogatory) or the Hague Service
Convention?” As stated, this issue begs the question of whether service by mail
comports with the Service Convention.
Menon has not briefed any other grounds for reversing the trial court’s
denial of her motion for new trial or setting aside the default judgment. Moreover,
she concedes that “[i]f Article 10(a) authorizes service of process by a litigant
mailing or e-mailing documents directly to a party, without going through the
Central Authority of the receiving nation, then the service in this case was good.”
See TEX. R. CIV. P. 108a(1)(d) (“Service of process may be effected upon a party
in a foreign country if service of the citation and petition is made . . . pursuant to
the terms and provisions of any applicable treaty or convention . . . .”). But, before
reaching this question, it is first necessary to clarify the standard of review.
II. STANDARD OF REVIEW
We review the trial court’s ruling on a motion for new trial for abuse of
discretion, but “abuse of discretion” means different things in different contexts.
See Schuring v. Fosters Mill Vill. Cmty. Ass’n, 396 S.W.3d 73, 76 (Tex. App.—
Houston [14th Dist.] 2013, pet. denied). Here, the relevant facts are undisputed,
and Menon moved for a new trial on the ground that Article 10(a) of the Service
Convention does not permit service by mail. We accordingly are presented only
with a question of law, not with a matter within the trial court’s discretion. See
3
See TEX. R. APP. P. 38.1(i); Archer v. DDK Holdings LLC, No. 14-14-00017-CV, 2015
WL 1393299, at *4 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (where appellants stated an
issue challenging the judgment and the trial court’s findings on two grounds, but only briefed
one ground, they waived appellate review of the unbriefed ground).
3
Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding) (“A trial
court has no ‘discretion’ in determining what the law is or applying the law to the
facts.”). Courts review questions of law de novo. Pinnacle Premier Props., Inc. v.
Breton, 447 S.W.3d 558, 563 (Tex. App.—Houston [14th Dist.] 2014, no pet.)
(sub. op.).
III. GOVERNING LAW
In this country, there are at least two competing lines of authority
interpreting Article 10(a) of the Service Convention. The prevailing view holds
that Article 10(a) permits service by mail. See, e.g., Brockmeyer v. May, 383 F.3d
798 (9th Cir. 2004); Research Sys. Corp. v. IPSOS Publicité, 276 F.3d 914 (7th
Cir. 2002); Koehler v. Dodwell, 152 F.3d 304 (4th Cir. 1998); Ackermann v.
Levine, 788 F.2d 830 (2d Cir. 1986). The countervailing view holds that Article
10(a) does not permit service by mail. See, e.g., Nuovo Pignone, SpA v.
STORMAN ASIA M/V, 310 F.3d 374 (5th Cir. 2002); Bankston v. Toyota Motor
Corp., 889 F.2d 172 (8th Cir. 1989). This provision had not been construed
previously by the United States Supreme Court, the Texas Supreme Court, or this
court. In the absence of binding precedent for us to follow, this case presented our
court with the opportunity to choose the better-reasoned approach. See Penrod
Drilling Corp. v. Williams, 868 S.W.2d 294, 296 (Tex. 1993) (per curiam)
(explaining that Texas courts “are obligated to follow only higher Texas courts and
the United States Supreme Court”).
Fortunately, however, our existing tools are equal to the task of breaking
new ground. Although there is no binding precedent that answers the specific
question before us, there is binding precedent that tells us how to find that answer
for ourselves. I accordingly would look first to the United States Supreme Court to
identify the principles that both state and federal courts are required to apply in
4
construing treaties. Next, I would follow the same steps used by our nation’s
highest court in applying those principles. See Life Partners, Inc. v. Arnold, Nos.
14-0122 & 14-0226, 2015 WL 2148767, at *7 (Tex. May 8, 2015) (“We have
described the Supreme Court’s decisions in some detail here, however, because in
addition to providing the relevant test, they also describe the proper approach to
the term’s construction.”).
A. Principles of Treaty Construction
In construing Article 10(a) of the Service Convention, this court is bound by
the following principles.
1. A treaty is not legislation. See Lozano v. Montoya Alvarez, 134 S.
Ct. 1224, 1232–33, (2014) (“‘A treaty is in its nature a contract between . . .
nations, not a legislative act.’” (quoting Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314
(1829))); id. at 1233 (“[I]n their nature treaties originate differently from laws.
They are made by equal parties, and each side has half of the bargain to
make . . . .” (quoting 2 Debates on the Federal Constitution 506 (J. Elliot 2d ed.
1863) (James Wilson))).
2. A treaty is not construed in the same way as legislation. See id. at
1233 (“That distinction [between a legislative act and a contract] has been reflected
in the way we interpret treaties.”); Nielsen v. Johnson, 279 U.S. 47, 51 (1929)
(“The narrow and restricted interpretation of the treaty . . . , while permissible and
often necessary in construing two statutes of the same legislative body in order to
give effect to both so far as is reasonably possible, is not consonant with the
principles which are controlling in the interpretation of treaties.”).
3. A treaty instead is construed in the manner of a contract. See
Lozano, 134 S. Ct. at 1232–33; see also BG Grp., PLC v. Republic of Argentina,
5
134 S. Ct. 1198, 1208 (2014) (“As a general matter, a treaty is a contract, though
between nations. Its interpretation normally is, like a contract’s interpretation, a
matter of determining the parties’ intent.”); Santovincenzo v. Egan, 284 U.S. 30, 40
& n.2 (1931) (“[T]reaties are contracts between independent nations . . . .”).
4. A treaty, however, is construed more liberally than a private
contract. See Choctaw Nation of Indians v. United States, 318 U.S. 423, 431
(1943) (“[T]reaties are construed more liberally than private agreements . . . .”);
see also Valentine v. United States ex rel. Neidecker, 299 U.S. 5, 10 (1936)
(“[T]reaties should be liberally construed so as to give effect to the apparent
intention of the parties.”); Factor v. Laubenheimer, 290 U.S. 276, 293–94 (1933)
(explaining that “[c]onsiderations which should govern the diplomatic relations
between nations, and the good faith of treaties” require that “if a treaty fairly
admits of two constructions, one restricting the rights which may be claimed under
it, and the other enlarging it, the more liberal construction is to be preferred”);
Todok v. Union State Bank of Harvard, Neb., 281 U.S. 449, 454 (1930) (explaining
that it is a “fundamental principle that treaties should receive a liberal
interpretation to give effect to their apparent purpose”).
5. Such a liberal construction is required to secure equality and
reciprocity between the signatories. See Factor, 290 U.S. at 293 (explaining that
treaties are “liberally construed so as to effect the apparent intention of the parties
to secure equality and reciprocity between them”); Jordan v. K. Tashiro, 278 U.S.
123, 127 (1928) (same); see also Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 80
(Tex. 2000) (“As treaties are to be construed broadly, the treaty need not provide
explicitly for equal court access; it need only imply it.” (citing Asakura v. City of
Seattle, 265 U.S. 332, 342 (1924)).
6
B. Steps in Applying the Principles of Treaty Construction
As the foregoing principles show, we are required to construe a treaty more
liberally than a private contract to implement the apparent intention of the parties
to secure equality and reciprocity between them. And although the construction of
a treaty begins with its text, we are not permitted to end the inquiry there. See,
e.g., Abbott v. Abbott, 560 U.S. 1, 9–10 (2010) (“This Court’s inquiry is shaped by
the text of the Convention; the views of the United States Department of State;
decisions addressing the meaning of ‘rights of custody’ in courts of other
contracting states; and the purposes of the Convention.”); Choctaw Nation, 318
U.S. at 431–32 (“[T]o ascertain their meaning we may look beyond the written
words to the history of the treaty, the negotiations, and the practical construction
adopted by the parties.” (citing Factor, 290 U.S. at 294, 295)).
As a practical matter, then, how do we apply the principles that govern treaty
construction? To answer this question, I would again look to the precepts set forth
by the United States Supreme Court. See Life Partners, Inc., 2015 WL 2148767, at
*7.
1. Identify the Treaty’s Purpose.
The text must be read “with a view to making effective the purposes of the
high contracting parties.” Sullivan v. Kidd, 254 U.S. 433, 439 (1921); see also El
Al Isr. Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 169 (1999) (identifying a
treaty’s “cardinal purpose”). The treaty’s purpose may be expressly stated in its
preamble, see Tseng, 525 U.S. at 169, and the role played by a specific provision
may be gleaned from the treaty’s structure and the context in which the provision
appears. See Olympic Airways v. Husain, 540 U.S. 644, 650 (2004) (noting that
the Court considers the treaty’s “text, structure, and history”); Tseng, 525 U.S. at
169 (identifying the treaty interpretation that “is most faithful to the Convention’s
7
text, purpose, and overall structure”); Santovincenzo, 284 U.S. at 37 (considering
“the context of the provision in question”).
2. Identify the signatories’ shared expectations.
The treaty must be read “in a manner ‘consistent with the shared
expectations of the contracting parties.’” Lozano, 134 S. Ct. at 1233 (quoting
Husain, 540 U.S. at 650); Tseng, 525 U.S. at 167 (same); Air France v. Saks, 470
U.S. 392, 399 (1985) (“[I]t is our responsibility to give the specific words of the
treaty a meaning consistent with the shared expectations of the contracting
parties.”); see also Zicherman v. Korean Air Lines Co., 516 U.S. 217, 223–25
(1996) (rejecting the petitioners’ interpretation of a phrase as “implausible” and
“unlikely” in view of “the shared expectations of the contracting parties,” and
instead concluding that “an equally plausible reading . . . that leads to a more
comprehensible result” was the only “realistic” alternative). Adherence to the
parties’ shared expectations is required because—unlike legislation—a treaty is
“necessarily the product of consensus.” Michael P. Van Alstine, The Death of
Good Faith in Treaty Jurisprudence and a Call for Resurrection, 93 GEO. L.J.
1885, 1923 (2005). “Contrary to the majoritarian premise of statutory adoption,
there is no means of imposing treaty obligations on a dissenting minority. If the
product of negotiations is not satisfactory, a disaffected nation may simply not
ratify the treaty.” Id.
It therefore is no surprise that to identify those shared expectations, courts
must consider the treaty’s negotiating and drafting history. See, e.g., Medellín v.
Texas, 552 U.S. 491, 507 (2008); Tseng, 525 U.S. at 167; Zicherman, 516 U.S. at
226; Choctaw Nation, 318 U.S. at 431–32; Factor, 290 U.S. at 294–95; Nielsen,
279 U.S. at 52. The construction of the Service Convention is no exception to this
rule. See Volkswagenwerk Aktiengesellschaft v. Schlunk, 486 U.S. 694, 700 (1988)
8
(examining the Service Convention’s drafting history and negotiations).
To understand a treaty’s negotiating and drafting history, its provisions must
be considered in the language used by the drafters in the official text. See
Zicherman, 516 U.S. at 221 (considering the meaning of the French word
dommage where the official text of the treaty was in French, and rejecting the
contention “that we simply look to English dictionary definitions of ‘damage’ and
apply that term’s ‘plain meaning’”); Saks, 470 U.S. at 399 (“We look to the French
legal meaning for guidance as to [the signatories’ shared] expectations because the
Warsaw Convention was drafted in French by continental jurists.”); Todok, 281
U.S. at 454 (“The text of the treaty of 1783 with Sweden was in French only, and
the French text is therefore controlling.”). Where the official text of the treaty was
drawn up in two languages, then courts consider both languages when analyzing
the parties’ shared expectations. See United States v. Percheman, 32 U.S. (7 Pet.)
51, 88–89 (1833) (where a treaty was drawn up in both Spanish and English, the
Court considered the text in both languages, explaining that “[n]o violence is done
to the language of the treaty by a construction which conforms the English and
Spanish to each other”).
The Service Convention was drafted “in the English and French languages,
both texts being equally authentic.” Schlunk, 486 U.S. at 699; see also Service
Convention, supra note 1, at closing paragraph (stating that the Service Convention
was drafted “in the English and French languages, both texts being equally
authentic, in a single copy”). Thus, the negotiating and drafting history of the
Service Convention’s text in both languages must be considered. See Schlunk, 486
U.S. at 700–01 (considering French terms that were proposed for inclusion in the
Service Convention and comparing the meanings given to the terms “in some
countries, such as France” and “in others, such as the United States”). This
9
negotiating and drafting history may be documented by the conference’s
rapporteur. See United States v. Louisiana, 394 U.S. 11, 43 (1969).
In addition to considering the text itself, courts consider the way in which
the text was interpreted by the delegates involved in negotiating and drafting the
treaty. See Schlunk, 486 U.S. at 703 (considering statements and articles by Philip
Amram, the head of the United States delegation to the Convention); id. at 709–10
& n.1, 714, 716 (Brennan, J., concurring) (same). The delegates’ views also may
be memorialized by the conference rapporteur. See Société Nationale Industrielle
Aérospatiale v. U.S. Dist. Court, 482 U.S. 522, 530 n.13 (1987).
3. Accord “great weight” to the Executive Branch’s interpretation.
“It is well settled that the Executive Branch’s interpretation of a treaty ‘is
entitled to great weight.’” Abbott, 560 U.S. at 15 (quoting Sumitomo Shoji Am.,
Inc. v. Avagliano, 457 U.S. 176, 185 (1982)); Medellín, 552 U.S. at 513 (same);
Tseng, 525 U.S. at 168 (“Respect is ordinarily due the reasonable views of the
Executive Branch concerning the meaning of an international treaty.”).
4. Accord “considerable weight” to the interpretation of the other
signatories.
Finally, the parties’ shared expectations are shown by their post-ratification
understanding and conduct. See Medellín, 552 U.S. at 507; Husain, 540 U.S. at
649–50; Tseng, 525 U.S. at 167; Zicherman, 516 U.S. at 227; see also O’Connor v.
United States, 479 U.S. 27, 33 (1986) (“The course of conduct of parties to an
international agreement, like the course of conduct of parties to any contract, is
evidence of its meaning.”). These may be documented in an organizational
handbook or report. See Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 182
n.40 (1993) (quoting Office of United Nations High Commissioner for Refugees,
10
Handbook on Procedures and Criteria for Determining Refugee Status 46 (Geneva,
Sept. 1979)). The United States Supreme Court instructs us that, when interpreting
a treaty, “‘[t]he opinions of our sister signatories . . . are entitled to considerable
weight.’” Abbott, 560 U.S. at 16 (Tseng, 525 U.S. at 176); Saks, 470 U.S. at 404
(same).
5. Consider the analysis of scholars.
See Abbott, 560 U.S. at 18 (“Scholars agree that there is an emerging
international consensus on the matter.”).
IV. APPLICATION
Having identified the governing precepts in the construction of treaties and
the way in which they are applied, I would pursue the same approach in this case.
A. The Service Convention’s Purpose
The Service Convention’s two purposes are stated in its preamble:
The States signatory to the present Convention,
Desiring to create appropriate means to ensure that judicial and
extrajudicial documents to be served abroad shall be brought to the
notice of the addressee in sufficient time,
Desiring to improve the organisation of mutual judicial
assistance for that purpose by simplifying and expediting the
procedure,
Have resolved to conclude a Convention to this effect and have
agreed upon the following provisions
Service Convention, supra note 1, at preamble (emphasis added); see also Schlunk,
486 U.S. at 702–04 (looking to the Service Convention’s preamble for the
identification of its purpose). Consistent with those purposes, the Service
Convention’s scope is set forth in Article 1: “The present Convention shall apply
in all cases, in civil or commercial matters, where there is occasion to transmit a
11
judicial or extrajudicial document for service abroad.” Service Convention, supra
note 1, at Art. 1 (emphasis added).
This is a more specific purpose than that found by the majority in this case.
By agreeing with Menon’s argument that “she was not served pursuant to the
Hague Convention service of process provisions,”4 the majority necessarily has
concluded that there are non-service provisions in the Service Convention. But the
United States Supreme Court has examined the English and French text of the
Service Convention and its drafting history and concluded that the opposite is true:
the Court explained that Article 1 “eliminate[d] the possibility” that the Service
Convention could apply to transmissions abroad “that do not culminate in service”:
The preliminary draft of Article 1 said that the present Convention
shall apply in all cases in which there are grounds to transmit or to
give formal notice of a judicial or extrajudicial document in a civil or
commercial matter to a person staying abroad. [3 1964 Conférence de
la Haye de Droit International Privé, Actes et Documents de la
Dixième Session (Notification) 65 (1965) (3 Actes et Documents)]
(“La présente Convention est applicable dans tous les cas où il y a lieu
de transmettre ou de notifier un acte judiciaire ou extrajudiciaire en
matière civile ou commerciale à une personne se trouvant à
l’étranger”) (emphasis added). To be more precise, the delegates
decided to add a form of the juridical term “signification” (service),
which has a narrower meaning than “notification” in some countries,
such as France, and the identical meaning in others, such as the United
States. Id., at 152–153, 155, 159, 366. The delegates also criticized
the language of the preliminary draft because it suggested that the
Convention could apply to transmissions abroad that do not culminate
in service. Id., at 165–167. The final text of Article 1, supra,
eliminates this possibility and applies only to documents transmitted
for service abroad. The final report (Rapport Explicatif ) confirms
that the Convention does not use more general terms, such as delivery
or transmission, to define its scope because it applies only when there
is both transmission of a document from the requesting state to the
4
Ante, at ___.
12
receiving state, and service upon the person for whom it is intended.
Id., at 366.
Schlunk, 486 U.S. at 700–01 (emphasis added).
In accordance with the United States Supreme Court’s analysis, I would
conclude that the Service Convention addresses only the transmission of
documents that culminate in service, and thus, the reference in Article 10(a) to
“send[ing] judicial documents” means “serv[ing] judicial documents.” Service
Convention, supra note 1, at Art. 10(a).
B. The Shared Expectations of the Signatories to the Service Convention
To ascertain the parties’ shared expectations, I would consider the actual and
proposed language of Service Convention’s bilingual text, its negotiating and
drafting history, and the understanding of the delegates.
1. Negotiating and Drafting History of the Text
In addition to the text and the negotiating and drafting history previously
described, I would give considerable weight to the fact that “[t]he French text of
the 1965 convention was copied from three earlier Hague Conference conventions,
all of which were understood to allow service upon defendants abroad by mail.”
See Michael O. Eshleman & Stephen A. Wolaver, Using the Mail to Avoid the
Hague Service Convention’s Central Authorities, 12 OR. REV. INT’L L. 283, 333
(2010).
I additionally would consider the following history:
The Rapporteur’s report on article 10(a) of the draft convention
provides in part: “The provision of paragraph 1 [labelled ‘(a)’ in the
final text] also permits service by telegram if the state where service is
to be made does not object. The Commission did not accept the
13
proposal that postal channels be limited to registered mail.”5
If Article 10(a) was considered to include service by telegram, and not to be
“limited to registered mail,” then it cannot be said, as the majority now holds, that
this provision does not permit service by mail.
2. The Understanding of the Delegates
I next would consider the statements of Philip W. Amram, a member of the
United States delegation to the Hague Conference that drafted the Service
Convention. Indeed, in his concurring opinion in Schlunk, Justice Brennan
identified Amram as “[t]he head of the delegation” and its “chief negotiator.”
Schlunk, 48 U.S. at 710, 714 (Brennan, J., concurring). Amram also was the only
English-speaking member of the Service Convention’s drafting committee. See
Eshleman & Wolaver, supra, at 325 (citing Unification of the Rules of Private
International Law: Report of the U.S. Delegation to the 10th Session of the Hague
Conference on Private International Law, October 7–28, 1964, 52 Dep’t State Bull.
265, 265–66 (1965)). Amram “told the Senate Foreign Relations Committee that
‘unless the requested State objects, direct service by mail’ was allowed under
Article 10 and ‘use of the central authority is not obligatory.’” Id. at 325–26
(footnotes omitted).
Because the United States Supreme Court cited Amram’s statement to the
Senate in the Court’s only opinion construing the Service Convention, see Schlunk,
486 U.S. at 703, I would consider this statement in ascertaining the signatories’
shared expectations. See also Philip W. Amram, The Proposed International
5
Patricia N. McCausland, Note and Comment, How May I Serve You? Service of Process
by Mail Under the Hague Convention on the Service Abroad of Judicial and Extrajudicial
Documents in Civil or Commercial Matters, 12 PACE L. REV. 177, 186 n.67 (1992) (translated
from 3 Actes et Documents de la Dixième Session (Conférence de la Haye de Droit International
Privé) 90 (1964)).
14
Convention on the Service of Documents Abroad, 51 A.B.A. J. 650, 653 (1965)
(“Article 10 permits direct service by mail . . . unless [the receiving] state objects
to such service.”).
C. The Executive Branch’s Interpretation of Article 10(a)
The Executive Branch has unwaveringly maintained that Article 10(a)
permits service by mail. “Dean Rusk, the American secretary of state at the time
the convention was negotiated, signed, and ratified, stated in his official report to
President Johnson: ‘Article 10 permits direct service by mail . . . unless [the
receiving] state objects to such service.’” Eshleman & Wolaver, supra, at 325.
The State Department subsequently produced a circular stating that unless a nation
“‘has made a specific reservation . . . objecting to service by registered
mail . . . [service] may be made by international registered mail.’” Id. (citing U.S.
Dep’t of State, Bureau of Consular Affairs, Overseas Citizen Services, Office of
Citizen Consular Services, Service of Legal Documents Abroad, excerpted in
Judicial Assistance: Service: International Registered Mail, [2] 1981–1988 Digest
§ 6, at 1441–45). And, when the first federal appellate court held to the contrary,
“the State Department formally said the . . . ruling was wrong . . . [in suggesting]
that the Hague Convention does not permit as a method of service the sending of a
copy of the summons and complaint by registered mail to a defendant in a foreign
country.’” Id. at 326 (citing Letter from Alan J. Kreczco, Legal Adviser, U.S.
Dep’t of State, to the Administrative Office of the U.S. Courts and the National
Center for State Courts (Mar. 14, 1991), excerpted in United States Department of
State Opinion Regarding the Bankston Case and Service by Mail to Japan Under
Hague Service Convention, 30 I.L.M. 260, 261 (1991)).6
6
Kreczco’s name actually is spelled “Kreczko”; his title was Deputy Legal Adviser; and
the referenced letter was dated Mar. 14, 1990.
15
Regarding the specific application of Article 10(a) in this case, the State
Department’s website shows its view that Canada accepts “service of process by
mail.”7
In accordance with the instructions from the United States Supreme Court, I
would give such views “great weight.”
D. The Interpretation of Article 10(a) by Other Signatories
The post-ratification understanding of the parties can be seen in a Hague
Conference report on the signatories’ response to the following question:
Question D: Have there been any court decisions in your
country interpreting Article 10(a) of the Hague Service Convention
which reads as follows:
“Provided the State of destination does not object, the present
Convention shall not interfere with –
(a) the freedom to send judicial documents by postal channels directly
to persons abroad . . .”
[Answer] It was pointed out that the postal channel for service
constitutes a method which is quite separate from service via the
Central Authorities or between judicial officers. Article 10(a) in
effect offered a reservation to Contracting States to consider that
service by mail was an infringement of their sovereignty. Thus,
theoretical doubts about the legal nature of the procedure were
unjustified. Nonetheless, certain courts in the United States of
America in opinions cited in the “Checklist” had concluded that
service of process abroad by mail was not permitted under the
Convention.8
7
U.S. Dep’t of State, Bureau of Consular Affairs, Legal Considerations: International
Judicial Assistance: Country Information: Canada, TRAVEL.STATE.GOV,
http://travel.state.gov/content/travel/english/legal-considerations/judicial/country/canada.html
(last visited June 26, 2015) (parentheses added).
8
PERMANENT BUREAU, HAGUE CONFERENCE ON PRIVATE INT’L LAW, REPORT ON THE
WORK OF THE SPECIAL COMMISSION OF APRIL 1989 ON THE OPERATION OF THE HAGUE
16
The significance of this unanimity in the interpretation of a convention that
has now existed for fifty years and has been signed or ratified by sixty-eight
countries cannot be overstated, because as our highest court has explained, the
judiciary’s “role is limited to giving effect to the intent of the Treaty parties. When
the parties to a treaty . . . agree as to the meaning of a treaty provision, and that
interpretation follows from the clear treaty language, we must, absent
extraordinarily strong contrary evidence, defer to that interpretation.” Avagliano,
457 U.S. at 184–85.
Despite a diligent search, I have found no authority that our fellow
signatories have interpreted Article 10(a) to pertain only to the “sending” of
documents and not to the “service” of documents. Because the required
“extraordinarily strong contrary evidence” is lacking, I accordingly would defer to
the signatories’ interpretation that Article 10(a) permits service by mail. See Trans
World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 259 (1984) (“We may
not ignore the actual, reasonably harmonious practice adopted by the United States
and other signatories in the first 40 years of the Convention’s existence.” (referring
to the Convention for the Unification of Certain Rules Relating to International
Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876 (1934), reprinted
in Note following 49 U.S.C. § 1502)); see also In re Morgan Stanley & Co., 293
S.W.3d 182, 189–90 (Tex. 2009) (orig. proceeding) (rejecting the Fifth Circuit’s
interpretation on a question of law “[g]iven the overwhelming weight of authority”
reaching a contrary result).
CONVENTIONS OF 15 NOVEMBER 1965 ON THE SERVICE ABROAD OF JUDICIAL AND
EXTRAJUDICIAL DOCUMENTS IN CIVIL OR COMMERCIAL MATTERS AND OF 18 MARCH 1970 ON
THE TAKING OF EVIDENCE ABROAD IN CIVIL OR COMMERCIAL MATTERS 4–5 (Apr. 1989),
available at http://www.hcch.net/upload/scrpt89e_20.pdf (italics omitted).
17
E. The Interpretation of Article 10(a) by Leading Scholars
I also would follow the example of the United States Supreme Court in
consulting the writings of Bruno Ristau as to the intentions of the Service
Convention’s drafters. See Schlunk, 486 U.S. at 698, 700, 703 (citing 1 B. Ristau,
International Judicial Assistance (Civil and Commercial) (1984 and 1 Supp.
1986)). Like all of our sister signatories and our own government, Ristau states
that Article 10(a) permits service by mail:
Ristau has written that the language of Article 10(a) regarding
the use of “postal channels” was “intended to include service of
process.” Others concur. “It is clear that . . . every participant in the
debates concerning Article 10(a) . . . understood the provision as
referring to . . . the use of postal channels for the purpose of service.”
Another analysis said “[p]erhaps the most compelling evidence in
support of the theory that Article 10(a) authorizes service by mail is
the fact that those who actually participated in the original
Convention . . . believe that to be the case.”
Ristau quoted the official report on the draft convention, which
indicated the language of Article 10 was worded broadly. It is so
broad, he writes, that it “permits service by telegram if the State where
service is to be made does not object.”
Eshleman & Wolaver, supra, at 331–32 (footnotes omitted).
Based on all of the foregoing, I would conclude that Article 10(a) of the
Service Convention permits service by mail.
V. THE COUNTERVAILING VIEW
The majority concludes that “the better-reasoned approach” is to follow the
countervailing view espoused by the Fifth Circuit in Nuovo Pignone, SpA v.
STORMAN ASIA M/V, 310 F.3d 374 (5th Cir. 2002). The majority, however, has
not explained why an approach that eschews the principles of treaty construction
laid down by the United States Supreme Court is “better-reasoned,” or even how
18
those following the prevailing view have arrived at a different result.
The majority’s opinion constitutes binding precedent on this court until it is
overruled by a higher court or by our own court, whether in response to a motion
for rehearing or for rehearing en banc or in a different case. And because it is
binding, I believe it is important for the analysis to be transparent. This is
especially so in this case, given that the majority adopts an interpretation contrary
to that of the American delegation, the American government, most American
courts, and those of our sister signatories—including, as the majority admits,
Canada.9 I accordingly have applied the governing precepts to illustrate how they
necessarily lead to the conclusion that Article 10(a) of the Service Convention
permits service by mail. Respectfully, I believe that the majority’s differing
analysis, like the analyses in the cases on which it relies, is flawed.
A. The Majority’s Adoption of the Reasoning of Nuovo Pignone
As previously explained, the first precept of treaty construction is that a
treaty is not construed as legislation, but instead is construed more liberally than a
private contract, drawing on a wide variety of sources in order to implement the
signatories’ shared expectations. In Nuovo Pignone, however, the Fifth Circuit did
the opposite. As the court stated it,
We adopt the reasoning of courts that have decided that the
9
Ante, at ___, n.1; see also Hague Conference on Private Int’l Law, List of Central
Authorities Designated by Canada, HCCH, 6, http://www.hcch.net/upload/auth14ca2014en.pdf
(list up-to-date as of August 2014) (identifying the Ministère de la Justice as the Central
Authority for Québec and identifying that office’s website). On that website, Québec’s Central
Authority states, “The Convention also sets out other methods of transmitting documents that do
not require processing through a Central Authority [including] postal service . . . . Under the
Convention, a State may object to those methods although Canada did not declare any opposition
when it ratified the Convention.” Gouvernement du Québec, Service Abroad of Judicial and
Extrajudicial Documents in Civil or Commercial Matters: Other Methods of Transmission,
JUSTICE QUÉBEC, http://www.justice.gouv.qc.ca/english/programmes/sneaje/transmission-a.htm
(last updated Feb. 26, 2004).
19
Hague Convention does not permit service by mail. In doing so, we
rely on the canons of statutory interpretation rather than the fickle
presumption that the drafters’ use of the word “send” was a mere
oversight. “Absent a clearly expressed legislative intention to the
contrary,” a statute’s language “must ordinarily be regarded as
conclusive.” Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc.,
447 U.S. 102, 108, 100 S. Ct. 2051, 64 L. Ed. 2d 766 (1980). And
because the drafters purposely elected to use forms of the word
“service” throughout the Hague Convention, while confining use of
the word “send” to article 10(a), we will not presume that the drafters
intended to give the same meaning to “send” that they intended to
give to “service.”
Id. at 384 (emphasis added). Thus, the Fifth Circuit essentially compared two
words—in English only—and treated the distinction between the two as
conclusive. But see Eshleman & Wolaver, supra, at 333–34 (discussing use of the
same language in the Conventions of 1954, 1905, and 1896, all of which used the
French word translated as “send” in referring to service of process by mail).
This approach follows none of the governing precepts of treaty construction.
The majority in this case, like the authors of the cases on which the majority relies,
instead have followed a canon of statutory interpretation, despite the United States
Supreme Court’s contrary directive in a case decided just last year. See Lozano,
134 S. Ct. at 1232–33 (“The Hague Convention . . . is a treaty, not a federal
statute. . . . ‘A treaty is in its nature a contract between . . . nations, not a
legislative act.’ . . . That distinction has been reflected in the way we interpret
treaties. It is our ‘responsibility to read the treaty in a manner consistent with the
shared expectations of the contracting parties.”) (citations and internal quotations
omitted, emphasis in original). The majority in this case neither treats the United
States Supreme Court’s discussion of how a Hague Convention is to be construed
as binding precedent, nor explains its reasons for failing to do so. The majority
instead follows Nuovo Pignone, in which the Fifth Circuit approached the question
20
of treaty construction as though the only alternative to the application of “canons
of statutory construction” was a “fickle presumption that the drafters’ use of the
word “send” was a mere oversight.” Nuovo Pignone, 310 F.3d at 384. But, the
drafters’ intent is well-established without the need for a presumption. As
previously explained, there is no dispute among the signatories that Article 10(a)
permits service by mail. Like the majority in this case, the Nuovo Pignone court
did not even mention most of the precepts that govern treaty construction, or the
fact that the Service Convention’s predecessors dating back more than a hundred
years used the word “send” even when referring to service of process by mail.
As reasons for rejecting the interpretation of Article 10(a) that is followed by
all of the other Service Convention’s signatories, the United States government,
and a majority of courts in this country, the Fifth Circuit stated as follows:
Nuovo Pignone’s contention that the broad purpose of the
Hague Convention is furthered if article 10(a) is interpreted to allow
service by mail is problematic. As noted, the purpose of the Hague
Convention is not only to simplify the service of process, but to
ensure that plaintiffs deliver notice to foreign addressees in sufficient
time to defend the allegation. Indeed, FED. R. CIV. P. 4(f)(1) presumes
that the Hague Convention provides methods of service “reasonably
calculated to give notice.”
We are not confident, nor should the drafters have been
confident in 1967 [sic],10 that mail service in the more than forty
signatories [sic]11 is sufficient to ensure this goal. [In an
10
The Convention was not drafted in 1967; it was drafted in 1964. See Schlunk, 486 U.S.
at 698 (“The Hague Service Convention is a multilateral treaty that was formulated in 1964 by
the Tenth Session of the Hague Conference of Private International Law.”).
11
There were twenty-three member States when the Service Convention was drafted. See
Schlunk, 486 U.S. at 698 (“Representatives of all 23 countries that were members of the
Conference approved the Convention without reservation.”); Kurt H. Nadelmann & Willis L. M.
Reese, The Tenth Session of the Hague Conference on Private International Law, 13 AM. J.
COMP. L. 612, 612 n.1 (1964) (listing the twenty-three member States when the Service
Convention was drafted).
21
accompanying footnote, the court added, “Indeed, the advisory
committee notes to the 1963 amendments to FED. R. CIV. P. 4
recognize that ‘[s]ervice of process beyond the territorial limits of the
United States may involve difficulties not encountered in the case of
domestic service.’”] Under Nuovo Pignone’s interpretation of article
10(a), the fact that a signatory could object to service by mail is
unconvincing. There is no reason to think that signatories with
inadequate mail services would voluntarily opt out of article 10(a).
Finally, we note that other provisions of the Hague Convention
describe more reliable methods of effecting service. Service of
process through a central authority under articles 2 through 7 and
service through diplomatic channels under articles 8 and 9 require that
service be effected through official government channels. It is
unlikely that the drafters would have put in place these methods of
service requiring the direct participation of government officials,
while simultaneously permitting the uncertainties of service by mail.
Id. at 384–85 & n.17. For several reasons, the stated rationale cannot withstand
scrutiny.
First, the Fifth Circuit implies that in the Federal Rules of Civil Procedure in
effect when the Service Convention was drafted, the advisory committee
anticipated that service abroad by mail involved difficulties not present in domestic
service. To the contrary, however, the advisory committee’s only example of
difficulties in service abroad was that “a person not qualified to serve process
according to the law of the foreign country may find himself subject to sanctions if
he attempts service therein.”12 The 1963 amendment to Federal Rule of Civil
Procedure 4(i) was intended to ameliorate such difficulties by providing for five
“alternative provisions for service in a foreign country”—including service by
mail. See Amendments to Rules of Civil Procedure for the U.S. Dist. Courts, 31
12
See ADVISORY COMM. ON CIVIL RULES, STATEMENT ON BEHALF OF THE ADVISORY
COMMITTEE ON CIVIL RULES, PROPOSED AMENDMENTS TO THE RULES OF CIVIL PROCEDURE FOR
THE UNITED STATES DISTRICT COURTS 11 (July 18, 1962), available at
http://www.uscourts.gov/rules-policies/archives/committee-reports/advisory-committee-rules-
civil-procedure-july-1962.
22
F.R.D. 587, 595 (1963). That provision, “permitting service by certain types of
mail, affords a manner of service that is inexpensive and expeditious, and requires
a minimum of activity within the foreign country.” 13 The Fifth Circuit cites neither
evidence nor authority for its contrary assumption.
Second, the court’s statement that “[t]here is no reason to think that
signatories with inadequate mail services would voluntarily opt out of article
10(a)” is contrary to the statutory textual analysis that the authoring court purports
to apply. Specifically, Article 21 of the Service Convention requires that “[e]ach
Contracting State shall similarly inform the Ministry, where appropriate, of . . .
opposition to the use of methods of transmission pursuant to Articles 8 and 10.”
Service Convention, supra note 1, at Art. 21; see also United States v. Caldera-
Herrera, 930 F.2d 409, 411 (5th Cir. 1991) (“Where possible, statutes must be read
in harmony with one another so as to give meaning to each provision.” (citing Fed.
Aviation Admin. v. Robertson, 422 U.S. 255, 261 (1975))). Not only must we
presume that signatories that voluntarily chose to sign the agreement intended to
comply with Article 21, but such compliance is objectively verifiable by the
signatories’ post-ratification conduct: approximately half of the Service
Convention’s signatories have either qualified their acceptance of Article 10 or
have opposed it entirely.14
Third, the Fifth Circuit makes the unsupported assumption that the drafters
would not have permitted service by mail when two “more reliable” methods of
service (through a Central Authority and through diplomatic channels) were
available. In doing so, the court assumes not only that mail is less reliable, but also
13
ADVISORY COMM. ON CIVIL RULES, supra note 12, at 12.
14
See Hague Conference on Private Int’l Law, Table Reflecting Applicability of Articles
8(2), 10(a),(b), and (c), 15(2) and 16(3) of the Hague Service Convention, HCCH (Feb. 2013),
http://www.hcch.net/upload/applicability14e.pdf.
23
that the drafters would not have included both a more reliable and a less reliable
method. If this were true, however, then the drafters would have included only the
single most reliable method of service, whether that was service through a Central
Authority or service through diplomatic channels, but not both. But see Philip W.
Amram, Report on the Tenth Session of the Hague Conference on Private
International Law, 59 AM. J. INT’L L. 87, 90 (1965) (“Use of the Central Authority
is purely optional with the applicant for service.”). And if mail is presumed
unreliable, then how are the service documents to be transmitted to a foreign
Central Authority without the use of mail? See Service Convention, supra note 1,
at Art. 2 (“Each Contracting State shall designate a Central Authority which will
undertake to receive requests for service coming from other Contracting
States . . . .) (emphasis added); id. at Art. 3 (“The authority or judicial officer
competent under the law of the State in which the documents originate shall
forward to the Central Authority of the State addressed a request conforming to the
model annexed to the present Convention . . . .”) (emphasis added). And how,
without using mail, is the foreign Central Authority to communicate directly with
the applicant as required? See id. at Art. 4 (“If the Central Authority considers that
the request does not comply with the provisions of the present Convention it shall
promptly inform the applicant and specify its objections to the request.”) (emphasis
added); id. at Art. 6 (“The Central Authority of the State addressed . . . shall
complete a certificate . . . [stating] that the document has been served . . . [or
stating] the reasons which have prevented service. The certificate shall be
forwarded directly to the applicant.”) (emphasis added).
Because the Fifth Circuit in Nuovo Pignone did not apply the correct
precepts of treaty construction but instead relied on unsupported assumptions, I
would decline to follow it. The majority states that “other federal district courts in
24
Texas . . . have ruled consistently that service must be effectuated by the specific
methods authorized by the terms included in the Hague Convention.”15 But, all
courts agree that if the Hague Service Convention applies, then service must be
effectuated by a means permitted under the treaty’s terms. As phrased, this
statement begs the question of whether service by mail is permitted under Article
10(a). If the majority intended to suggest that federal district courts in the Fifth
Circuit have consistently stated that Article 10(a) does not permit service by mail,
then that implication is wrong. See, e.g., Chattem Chems., Inc. v. Akzo Nobel
Chems. B.V., 229 F. Supp. 2d 555, 556 (M.D. La. 2002) (“The Court, having
reviewed conflicting authorities, finds that service made pursuant to Article 10(a)
comports with the purpose, meaning and intent of the Hague Convention.”); Brown
v. Bandai Am., Inc., No. 3-01-CV-0442-R, 2002 WL 1285265, at *4 (N.D. Tex.
June 4, 2002) (“[T]he Court determines that service of process by mail is
permissible under Article 10(a) of the Hague Convention.”); Lafarge Corp. v. M/V
MACEDONIA HELLAS, No. Civ.A. 99-2648, 2000 WL 687708, at *11 (E.D. La.
May 24, 2000) (“[T]his court adopts the reasoning of those courts that conclude
that the Hague Convention permits service of process by mail pursuant to Article
10(a).”); Friede & Goldman, Ltd. v. Gotaverken Arendal Consultants, No. CIV A
99-1970, 2000 WL 288375, at *3 (E.D. La. Mar. 16, 2000) (“[T]his Court adopts
the reasoning of those courts that conclude that the Hague Convention permits
service of process by mail pursuant to Article 10(a).”); Paradigm Entm’t, Inc. v.
Video Sys. Co., No. Civ.A. 3:99-CV-2004P, 2000 WL 251731, at *7 (N.D. Tex.
Mar. 3, 2000) (“[T]his Court finds that Article 10(a) provides for service by mail in
the current situation.”); Ortega Dominguez v. Pyrgia Shipping Corp., No. Civ.A.
98-529, 1998 WL 204798, at *2 (E.D. La. Apr. 24, 1998) (“[T]his Court finds that
15
Ante, at ___.
25
Article 10(a) of the Hague Convention permits service of process by mail.”); Smith
v. Dainichi Kinzoku Kogyo Co., 680 F. Supp. 847, 851 (W.D. Tex. 1988)
(“Plaintiffs’ service of process directly upon Dainichi–Japan by registered mail
was sufficient to comport with Art. 10(a) of the Hague Convention.”); Great Am.
Boat Co. v. Alsthom Atl., Inc., Civ. A. Nos. 84-0105 & 84-5442, 1987 WL 4766, at
*3 (E.D. La. Apr. 8, 1987) (“Mailing a summons and a copy of the complaint with
a return receipt . . . creates personal jurisdiction . . . against a FSIA corporation [i.e,
a corporation whose ownership is vested in a foreign state] . . . in a Hague Service
Convention state . . . .”).
The majority cites several opinions that were issued by federal district courts
in Texas after the Fifth Circuit Court of Appeals decided Nuovo Pignone, but these
decisions add nothing to the discussion. The authoring courts had no choice but to
follow Nuovo Pignone, because the opinion constitutes binding precedent over the
lower courts in the Fifth Circuit. The distinction between a court that is merely
following precedent and one that makes an independent determination of an issue
can hardly be overemphasized: the Fifth Circuit’s trial courts are required to treat
the Fifth Circuit Court of Appeals’ decisions as binding precedent, whereas Texas
state courts—including this one—are forbidden to treat them as binding precedent.
As the Texas Supreme Court has explained:
The court of appeals’ discussion of [a Fifth Circuit case] and its
cursory dismissal of contrary federal precedent from other
jurisdictions suggests that the court felt bound by the pronouncements
of the Fifth Circuit on federal law issues. This is not the case. . . . By
focusing so exclusively on [the Fifth Circuit case], the court of
appeals overlooks the . . . the weight of . . . federal court decisions
from other jurisdictions.
Penrod Drilling Corp., 868 S.W.2d at 296. The majority’s failure to discuss the
governing precepts of treaty construction or to address the reasoning of courts that
26
have reached a conclusion contrary to that of the Fifth Circuit suggests that the
majority has fallen into the same error here.16
B. The Majority’s Reliance on State Court Decisions
The majority’s treatment of state court decisions appears to me to be
similarly flawed. For example, the majority cites Wuxi Taihu Tractor Co. v. York
Group, Inc., stating that the authoring court “held that article 5 of the Hague
Convention does not permit service by direct mail to a defendant in China who
should have been served through the Central Authority pursuant to the specific
language of the Hague Convention.”17 If that were the court’s holding, then the
case would be merely inapposite, because only Article 10(a) is at issue in this case.
But that was not the court’s holding, as can be seen from the fact that the Wuxi
Taihu court affirmed the post-answer default against the foreign defendant. No.
16
This is not the only problem with the majority’s discussion of federal district court
decisions. The only case that it cites for the proposition that the Service Convention does not
permit service by mail is Duarte v. Michelin North America, Inc., No. 2:13–CV–00050, 2013
WL 2289942 (S.D. Tex. May 23, 2013). The majority cites the remaining cases only in
connection with articles of the Service Convention that are not at issue here. And although
Duarte does indeed cite Berezowsky v. Ojeda, No. 4:12-CV-03496, 2013 WL 150714 (S.D. Tex.
Jan. 14, 2013) that opinion has since been vacated. 765 F.3d 456 (5th Cir. 2014).
The majority cites L.K. v. Mazda Motor Corp., No. 3:09-cv-469-M, 2009 WL 1033334,
at *2 (N.D. Tex. Apr. 15, 2009) with the parenthetical, “holding service under article 5 was not
effective because Japanese requirement that service be transmitted to the Central Authority was
not met.” That is not the case’s holding. To the contrary, the authoring court did not analyze the
adequacy of service at all, but said only that “Plaintiffs’ counsel admits that he failed to comply
with the requirements of the Hague Convention,”
Finally, the majority cites Albo v. Suzuki Motor Corp., No. 3:08-0139-KC, 2008 WL
2783508 (W.D. Tex. July 2, 2008) with the parenthetical, “holding service not effective because,
under article 5, the Hague [Service Convention] required full translation of documents into
Japanese and without complying with specific Hague [Service Convention] requirements, service
was insufficient.” But as the authoring court explains, the Service Convention itself has no such
requirement; it simply provides that “‘the Central Authority may require [the] document be
written in, or translated into, the official language or one of the official languages of the State.’”
Id. at *2 n.2 (quoting Service Convention, supra note 1, at Art. 5) (emphasis added).
17
Ante, at ___.
27
01-13-00016-CV, 2014 WL 6792019, at *1 (Tex. App.—Houston [1st Dist.] Dec.
2, 2014, pet. pending) (mem. op.). In describing this as the court’s holding, the
majority fails to follow the standard for distinguishing between dicta and an
alternative holding. See State Farm Mut. Auto. Ins. Co. v. Lopez, 156 S.W.3d 550,
554 (Tex. 2004) (op. on reh’g) (granting petitioner’s motion for rehearing because
“we failed to apply the standard for distinguishing between alternative holdings
and dicta”); Tex. Natural Res. Conservation Comm’n v. White, 46 S.W.3d 864, 868
(Tex. 2001) (explaining that a court’s statement is not dicta but instead is an
alternative holding if “the court could have relied on either determination to reach
its ultimate conclusion”). Moreover, the construction of Article 10(a)—the only
issue presented for our review—is never mentioned in Wuxi Taihu. Indeed, the
issue could not have arisen on the facts in that case, because the defective-service
complaint in Wuxi Taihu concerned service in the People’s Republic of China,18
which—in accordance with Article 21 of the Service Convention—has formally
declared its opposition to “the service of documents in the territory of the People’s
Republic of China by the methods provided by Article 10 of the Convention.”19
But what the Wuxi Taihu court actually held was that, regardless of the appellant’s
claims of defective service, the appellant nevertheless “chose to answer, and it
cannot now, after voluntarily appearing, avoid the consequences of its choice.”
See Wuxi Taihu, 2014 WL 6792019, at *10 n.6 (citing Onda Enters., Inc. v. Pierce,
750 S.W.2d 812, 813 (Tex. App.—Tyler 1988, orig. proceeding) (per curiam)). As
a result, the entirety of the Wuxi Taihu court’s discussion of the Service
Convention is dicta.
18
See Wuxi Taihu, 2014 WL 6792019, at *1.
19
A courtesy translation of that country’s declarations are available on the website of the
Hague Conference on Private International Law at
http://www.hcch.net/index_en.php?act=status.comment&csid=393&disp=resdn (last visited June
26, 2015).
28
The other Texas cases cited by the majority and decided by our sister courts
also do not concern Article 10(a). See In re J.P.L., 359 S.W.3d 695 (Tex. App.—
San Antonio 2011, orig. proceeding [mand. denied]); Velasco v. Ayala, 312
S.W.3d 783 (Tex. App.—Houston [1st Dist.] 2009, no pet.).20 As in Wuxi Taihu,
the issue in Velasco and in J.P.L. concerned service of process in a country that has
made a formal declaration of opposition to Article 10. Specifically, both Velasco
and J.P.L. concerned service in Mexico.21 Like the Wuxi Taihu opinion, the
Velasco opinion cites Article 5 as authority for the proposition that service by mail
does not comply with the Service Convention. See Velasco, 312 S.W.3d at 794. In
J.P.L., the authoring court interpreted Article 19 of the Service Convention. See
J.P.L., 359 S.W.3d at 707. Thus, in none of the Texas state decisions cited by the
majority was the question of the correct interpretation of Article 10 even before the
court. These cases accordingly add nothing to the majority’s analysis—which
make its failure to address the reasoning of the cases that actually do address that
question and follow the prevailing view and all the more puzzling.
VI. CONCLUSION
For the reasons stated herein, I would conclude that Article 10(a) of the
Service Convention permits service by mail in Canada. Because the majority does
not, I respectfully dissent.
/s/ Tracy Christopher
Justice
Panel consists of Justices Christopher, Donovan, and Wise (Donovan, J., majority).
20
See ante, at ___.
21
A courtesy translation of Mexico’s “declarations made at the moment of accession” is
available on the website of the Hague Conference on Private International Law at
http://www.hcch.net/index_en.php?act=status.comment&csid=412&disp=resdn (last visited June
26, 2015).
29