John Coyle, Robin Effron, and Maggie Gardner have published a short, interesting paper on contracting around the Hague Service Convention. The genesis of the paper is Rockefeller Technology Investments (Asia) VII v. Changzhou SinoType Technology Company, Ltd., which I wrote about in October 2018. I am always pleased when a law professor’s take on the case is consistent with mine (that’s better than the alternative!), and Professors Coyle, Effron and Gardner agree with me that the case was rightly decided.
Parties can’t agree to waive the requirements of the Hague Service Convention, for example by agreeing that they may serve process in a particular foreign country by a method that the Convention does not permit. In my view this is because the Convention protects the interest of the foreign state; it is not here just to make things easier for private parties. But as the authors point out, there are ways around the issue. Parties can agree to appointment of an agent for service of process in the United States, so that service does not require transmission of a judicial document abroad. (Of course, you have to pay attention to the law about how and when an agency relationship can be made irrevocable. Parties can also agree to waive service, though as the authors note, that carries with it risks on account of due process concerns and concerns about recognition in a foreign state.
The paper is available on SSRN and will be published in the UC Davis Law Review Online in the coming weeks.