The Hague Service Convention Between The US And China Did Not Apply Because . . .
The first sentence of an opinion is often an arrow pointing to where the court is headed. So it is in Rockefeller Technology Investments (Asia) VII v. Changzhou Sinotype Technology Co., Ltd., S249923 (Cal. S.Ct 4/2/20) (Corrigan, J.): “The parties here, sophisticated business entities, entered into a contract wherein they agreed to submit to the jurisdiction of California courts and to resolve disputes between them through California arbitration.” When a court tells us that sophisticated parties entered into a contract, it’s usually a pretty good hint that the court will follow the contract.
The issue here was whether the contract provided for a means of service on a company in China that was preempted by the requirements of the Hague Service Convention. The Convention provides for a Central Authority to serve in the receiving country, and in fact at the time the Convention was adopted, China objected to service by alternative postal means. Here, however, the contract (a Memorandum of Understanding or MOU) provided for notice and service by FedEx and email, jurisdiction in California, and a JAMS arbitration provision.
Rockefeller Technology initiated arbitration by FedEx and email, and Changzhou Sinotype defaulted.The award was subsequently confirmed by a judge, Changzhou Sinotype moved, unsuccessfully, to set aside the default, the Court of Appeal reversed, and the Supreme Court reversed the Court of Appeal.
The Supreme Court analyzes whether service of process in the technical sense is required, and explains that the answer depends on the law of the state where the action is brought. Therefore, if formal service is required by California, then the Convention applies.
California, however, permits the parties to waive formal service in favor of an alternative form of service. That’s what the parties did here. Therefore, the Convention does not apply, and service was effective under California law. “Holding that the Convention does not apply when parties have agreed to waive formal service of process in favor of a specified type of notification serves to promote certainty and give effect to the parties’ express intentions.”
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