VOLKSWAGENWERK AKTIENGESELLSCHAFT v. SCHLUNK, ADMINISTRATOR OF THE ESTATES OF SCHLUNK ET AL.
No. 86-1052
Supreme Court of the United States
Argued March 21, 1988—Decided June 15, 1988
486 U.S. 694
Herbert Rubin argued the cause for petitioner. With him on the briefs were Stephen M. Shapiro, Kenneth S. Geller, Michael Hoenig, and James K. Toohey.
Jack Samuel Ring argued the cause for respondent. With him on the brief was Judith E. Fors.
Jeffrey P. Minear argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Merrill, Deputy Assistant Attorney General Spears, David Epstein, and Abraham D. Sofaer.*
This case involves an attempt to serve process on a foreign corporation by serving its domestic subsidiary which, under state law, is the foreign corporation‘s involuntary agent for service of process. We must decide whether such service is compatible with the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965 (Hague Service Convention), [1969]
I
The parents of respondent Herwig Schlunk were killed in an automobile accident in 1983. Schlunk filed a wrongful death action on their behalf in the Circuit Court of Cook County, Illinois. Schlunk alleged that Volkswagen of America, Inc. (VWoA), had designed and sold the automobile that his parents were driving, and that defects in the automobile caused or contributed to their deaths. Schlunk also alleged that the driver of the other automobile involved in the collision was negligent; Schlunk has since obtained a default judgment against that person, who is no longer a party to this lawsuit. Schlunk successfully served his complaint on VWoA, and VWoA filed an answer denying that it had designed or assembled the automobile in question. Schlunk then amended the complaint to add as a defendant Volkswagen Aktiengesellschaft (VWAG), which is the petitioner here. VWAG, a corporation established under the laws of
VWAG filed a special and limited appearance for the purpose of quashing service. VWAG asserted that it could be served only in accordance with the Hague Service Convention, and that Schlunk had not complied with the Convention‘s requirements. The Circuit Court denied VWAG‘s motion. It first observed that VWoA is registered to do business in Illinois and has a registered agent for receipt of process in Illinois. The court then reasoned that VWoA and VWAG are so closely related that VWoA is VWAG‘s agent for service of process as a matter of law, notwithstanding VWAG‘s failure or refusal to appoint VWoA formally as an agent. The court relied on the facts that VWoA is a wholly owned subsidiary of VWAG, that a majority of the members of the board of directors of VWoA are members of the board of VWAG, and that VWoA is by contract the exclusive importer and distributor of VWAG products sold in the United States. The court concluded that, because service was accomplished within the United States, the Hague Service Convention did not apply.
The Circuit Court certified two questions to the Appellate Court of Illinois. For reasons similar to those given by the Circuit Court, the Appellate Court determined that VWoA is VWAG‘s agent for service of process under Illinois law, and that the service of process in this case did not violate the Hague Service Convention. 145 Ill. App. 3d 594, 503 N. E. 2d 1045 (1986). After the Supreme Court of Illinois denied VWAG leave to appeal, 112 Ill. 2d 595 (1986), VWAG petitioned this Court for a writ of certiorari to review the Appellate Court‘s interpretation of the Hague Service Convention. We granted certiorari to address this issue, 484 U. S. 895 (1987), which has given rise to disagreement among the lower
II
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. The Convention revised parts of the Hague Conventions on Civil Procedure of 1905 and 1954. The revision was intended to provide a simpler way to serve process abroad, to assure that defendants sued in foreign jurisdictions would receive actual and timely notice of suit, and to facilitate proof of service abroad. 3 1964 Conférence de la Haye de Droit International Privé, Actes et Documents de la Dixième Session (Notification) 75-77, 363 (1965) (3 Actes et Documents); 1 B. Ristau, International Judicial Assistance (Civil and Commercial) § 4-1 (1984 and 1 Supp. 1986) (1 Ristau). Representatives of all 23 countries that were members of the Conference approved the Convention without reservation. Thirty-two countries, including the United States and the Federal Republic of Germany, have ratified or acceded to the Convention. Brief for United States as Amicus Curiae 2, n. 2 (filed Sep. 12, 1987).
The primary innovation of the Convention is that it requires each state to establish a central authority to receive requests for service of documents from other countries.
Article 1 defines the scope of the Convention, which is the subject of controversy in this case. It says: “The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.”
When interpreting a treaty, we “begin ‘with the text of the treaty and the context in which the written words are used.‘”
The Convention does not specify the circumstances in which there is “occasion to transmit” a complaint “for service abroad.” But at least the term “service of process” has a well-established technical meaning. Service of process refers to a formal delivery of documents that is legally sufficient to charge the defendant with notice of a pending action. 1 Ristau § 4-5(2), p. 123 (interpreting the Convention); Black‘s Law Dictionary 1227 (5th ed. 1979); see 4 C. Wright & A. Miller, Federal Practice and Procedure § 1063, p. 225 (2d ed. 1987). The legal sufficiency of a formal delivery of documents must be measured against some standard. The Convention does not prescribe a standard, so we almost necessarily must refer to the internal law of the forum state. If the internal law of the forum state defines the applicable method of serving process as requiring the transmittal of documents abroad, then the Hague Service Convention applies.
The negotiating history supports our view that Article 1 refers to service of process in the technical sense. The committee that prepared the preliminary draft deliberately used a form of the term “notification” (formal notice), instead of the more neutral term “remise” (delivery), when it drafted Article 1. 3 Actes et Documents, at 78-79. Then, in the course of the debates, the negotiators made the language even more exact. 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
The negotiating history of the Convention also indicates that whether there is service abroad must be determined by reference to the law of the forum state. The preliminary draft said that the Convention would apply “where there are grounds” to transmit a judicial document to a person staying abroad. The committee that prepared the preliminary draft realized that this implied that the forum‘s internal law would govern whether service implicated the Convention. Id., at 80-81. The reporter expressed regret about this solution because it would decrease the obligatory force of the Convention. Id., at 81. Nevertheless, the delegates did not change the meaning of Article 1 in this respect.
The Yugoslavian delegate offered a proposal to amend Article 1 to make explicit that service abroad is defined ac-
The drafting committee then composed the version of Article 1 that ultimately was adopted, which says that the Convention applies “where there is occasion” to transmit a judicial document for service abroad. Id., at 211. After this revision, the reporter again explained that one must leave to the requesting state the task of defining when a document must be served abroad; that this solution was a consequence of the unavailability of an objective test; and that while it decreases the obligatory force of the Convention, it does provide clarity. Id., at 254. The inference we draw from this history is that the Yugoslavian proposal was rejected because it was superfluous, not because it was inaccurate, and that “service abroad” has the same meaning in the final version of the Convention as it had in the preliminary draft.
VWAG protests that it is inconsistent with the purpose of the Convention to interpret it as applying only when the internal law of the forum requires service abroad. One of the two stated objectives of the Convention is “to create
Notification au parquet permits service of process on a foreign defendant by the deposit of documents with a designated local official. Although the official generally is supposed to transmit the documents abroad to the defendant, the statute of limitations begins to run from the time that the official receives the documents, and there allegedly is no sanction for failure to transmit them. 3 Actes et Documents, at 167-169; S. Exec. Rep. No. 6, 90th Cong., 1st Sess., 12 (1967) (statement of Philip Amram, member of the United States delegation); 1 Ristau § 4-33, p. 172. At the time of the 10th Conference, France, the Netherlands, Greece, Belgium, and Italy utilized some type of notification au parquet. 3 Actes et Documents, at 75.
There is no question but that the Conference wanted to eliminate notification au parquet. Id., at 75-77. It included in the Convention two provisions that address the problem. Article 15 says that a judgment may not be entered unless a foreign defendant received adequate and timely notice of the lawsuit. Article 16 provides means whereby a defendant who did not receive such notice may seek relief from a judgment that has become final.
The parties make conflicting representations about whether foreign laws authorizing notification au parquet command the transmittal of documents for service abroad within the meaning of the Convention. The final report is itself somewhat equivocal. It says that, although the strict language of Article 1 might raise a question as to whether the Convention regulates notification au parquet, the understanding of the drafting Commission, based on the debates, is that the Convention would apply. Id., at 367. Although this statement might affect our decision as to whether the Convention applies to notification au parquet, an issue we do not resolve today, there is no comparable evidence in the negotiating history that the Convention was meant to apply to substituted service on a subsidiary like VWoA, which clearly does not require service abroad under the forum‘s internal law. Hence neither the language of the Convention nor the negotiating history contradicts our interpretation of the Convention, according to which the internal law of the forum is presumed to determine whether there is occasion for service abroad.
Nor are we persuaded that the general purposes of the Convention require a different conclusion. One important objective of the Convention is to provide means to facilitate service of process abroad. Thus the first stated purpose of the Convention is “to create” appropriate means for service abroad, and the second stated purpose is “to improve the organisation of mutual judicial assistance for that purpose by simplifying and expediting the procedure.”
Furthermore, nothing that we say today prevents compliance with the Convention even when the internal law of the forum does not so require. The Convention provides simple and certain means by which to serve process on a foreign national. Those who eschew its procedures risk discovering that the forum‘s internal law required transmittal of documents for service abroad, and that the Convention therefore provided the exclusive means of valid service. In addition, parties that comply with the Convention ultimately may find it easier to enforce their judgments abroad. See Westin, Enforcing Foreign Commercial Judgments and Arbitral Awards in the United States, West Germany, and England, Law & Policy Int‘l Bus. 325, 340-341 (1987). For these reasons, we anticipate that parties may resort to the Convention voluntarily, even in cases that fall outside the scope of its mandatory application.
III
In this case, the Illinois long-arm statute authorized Schlunk to serve VWAG by substituted service on VWoA, without sending documents to Germany. See
VWAG explains that, as a practical matter, VWoA was certain to transmit the complaint to Germany to notify VWAG of the litigation. Indeed, as a legal matter, the Due Process Clause requires every method of service to provide “notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., supra, at 314. VWAG argues that, because of this notice requirement, every case involving service on a foreign national will present an “occasion to transmit a judicial . . . document for service abroad” within the meaning of Article 1. Tr. of Oral Arg. 8. VWAG emphasizes that in this case, the Appellate Court upheld service only after determining that “the relationship between VWAG and VWoA is so close that it is certain that VWAG ‘was fully apprised of the pendency of the action’ by delivery of the summons to VWoA.” 145 Ill. App. 3d, at 606, 503 N. E. 2d, at 1053 (quoting Maunder v. DeHavilland Aircraft of Canada, Ltd., 102 Ill. 2d 342, 353, 466 N. E. 2d 217, 223, cert. denied, 469 U. S. 1036 (1984)).
We reject this argument. Where service on a domestic agent is valid and complete under both state law and the Due Process Clause, our inquiry ends and the Convention has no further implications. Whatever internal, private communications take place between the agent and a foreign principal are beyond the concerns of this case. The only transmittal to which the Convention applies is a transmittal abroad that is required as a necessary part of service. And, contrary to VWAG‘s assertion, the Due Process Clause does not require an official transmittal of documents abroad every time there is service on a foreign national. Applying this analysis, we conclude that this case does not present an occasion to transmit a judicial document for service abroad within the mean-
Affirmed.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, concurring in the judgment.
We acknowledged last Term, and the Court reiterates today, ante, at 699, that the terms of the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, [1969]
The first of two objectives enumerated in the Convention‘s preamble is “to create appropriate means to ensure that judicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time. . . .”
In response to this and other concerns, the Convention prescribes the exclusive means for service of process emanating from one contracting nation and culminating in another. As the Court observes, the Convention applies only when the document is to be “transmit[ted] . . . for service abroad“; it covers not every transmission of judicial documents abroad, but only those transmissions abroad that constitute formal “service.” See ante, at 700. It is common ground that the Convention governs when the procedure prescribed by the internal law of the forum nation or state provides that service is not complete until the document is transmitted abroad. That is not to say, however, as does the Court, that the forum nation may designate any type of service “domestic” and thereby avoid application of the Convention.
Admittedly, as the Court points out, ibid., the Convention‘s language does not prescribe a precise standard to distinguish between “domestic” service and “service abroad.” But the Court‘s solution leaves contracting nations free to ignore its terms entirely, converting its command into exhortation. Under the Court‘s analysis, for example, a forum nation could prescribe direct mail service to any foreigner and deem service effective upon deposit in the mailbox, or could arbitrarily designate a domestic agent for any foreign defendant and deem service complete upon receipt domestically by
The Court adheres to this interpretation, which (in the Court‘s words) “does not necessarily advance” the primary purpose that the Convention itself announces, ante, at 705, notwithstanding its duty to read the Convention “with a view to effecting the objects and purposes of the States thereby contracting.” Rocca v. Thompson, 223 U. S. 317, 331-332 (1912). See Factor v. Laubenheimer, 290 U. S. 276, 293-294 (1933); Wright v. Henkel, 190 U. S. 40, 57 (1903). Even assuming any quantum of evidence from the negotiating history would suffice to support an interpretation so fundamentally at odds with the Convention‘s primary purpose, the evidence the Court amasses in support of its reading—two interim comments by the reporter on initial drafts of the Convention suggesting that the forum‘s internal law would dictate whether a particular form of service implicates the Convention—falls far short. See ante, at 701-702.
In the first place, the reporter‘s comments were by no means uncontroversial. One participant, for example, directly challenged the “report[‘s] allusion . . . to the danger that the court hearing the proceeding could decide that there were no grounds for service,” and observed that “[n]ow, the preamble of [the] draft specifies the objective of the convention, which is to ensure the service of writs to persons in foreign countries in order to guarantee that these persons will have knowledge of them.” 3 Actes et Documents 165 (United Kingdom delegate) (translation) (emphasis added).
If the delegates did not resolve their differences upon tabling the proposal, they apparently did by the time the official reporter issued his Rapport Explicatif. This final report, which presumably supersedes all interim comments, stresses “the opinion of the Third Commission [that] the Convention was ‘obligatory,‘” making no reference to internal law. 3 Actes et Documents 366 (translation). By way of example, the Rapport acknowledges that a literal reading of the Convention might raise doubts as to the Convention‘s coverage of notification au parquet, yet announces the understanding of the drafting commission that the Convention would prohibit such service.2 Thus, reading Article 1 “‘in the liberal spirit in which it is intended[,]’ ” to address “‘the hardship and injustice, which [the Convention] seeks to relieve,‘” id., at 367 (citation omitted), the Rapport interprets the Convention to impose a substantive standard proscribing notification au parquet whether the forum nation deems the service “domestic” or “abroad.” That substantive standard is captured in the Rapport‘s admonition that
“[a]ll of the transmission channels (prescribed by the convention) must have as a consequence the fact that the act reach the addressee in due time. That is a require-
ment of justice, which assumes its full importance when the act to be transmitted is an act instituting proceedings.‘” Ibid. (translation) (footnote omitted; emphasis added).
The Court belittles the Rapport‘s significance by presuming that the reporter assumed, as a matter of the internal law of the various nations then permitting notification au parquet, that such service always required transmission abroad, and therefore would always have been deemed “service abroad.” See ante, at 703-704. But the above-cited passage purports to interpret the Convention, not to survey the various forms of notification au parquet then prevalent, and does not so much as hint at the possibility that notification au parquet might continue if the domestic law of a forum nation were to deem it “domestic.” Moreover, the assumption that the Court imputes to the Rapport is inaccurate; as noted above, notification au parquet was typically deemed complete upon delivery to the local official. See supra, at 709, and n. 1. Any requirement of transmission abroad was no more essential to formal service than is the informal arrangement by which a domestic subsidiary might transmit documents served on it as an agent for its foreign parent. See, e. g., 3 Actes et Documents 169. Thus, if the Court entertains the possibility that the Convention bans notification au parquet under all circumstances, ante, at 704, it can only be because (notwithstanding the Court‘s stated analysis) the Convention, read in light of its negotiating history, sets some substantive limit on the forum state‘s latitude to deem such service “domestic.”
Significantly, our own negotiating delegation, whose contemporaneous views are “entitled to great weight,” Société Nationale, 482 U. S., at 536, n. 19, took seriously the Rapport‘s conclusion that the Convention is more than just precatory. The delegation‘s report applauded the Convention as “mak[ing] substantial changes in the practices of many of the civil law countries, moving their practices in the direction of the U. S. approach to international judicial assistance and our
The negotiating history and the uniform interpretation announced by our own negotiators confirm that the Convention limits a forum‘s ability to deem service “domestic,” thereby avoiding the Convention‘s terms. Admittedly, the Convention does not precisely define the contours. But that imprecision does not absolve us of our responsibility to apply the Convention mandatorily, any more than imprecision permits us to discard the words “due process of law,”
It is perhaps heartening to “think that [no] countr[y] will draft its internal laws deliberately so as to circumvent the Convention in cases in which it would be appropriate to transmit judicial documents for service abroad,” ante, at 705, although from the defendant‘s perspective “circumvention” (which, according to the Court, entails no more than exercising a prerogative not to be bound) is equally painful whether deliberate or not. The fact remains, however, that had we been content to rely on foreign notions of fair play and substantial justice, we would have found it unnecessary, in the first place, to participate in a Convention “to ensure that judicial . . . documents to be served abroad [would] be brought to the notice of the addressee in sufficient time,”
Notes
“This is a system which permits the entry of judgments in personam by default against a nonresident defendant without requiring adequate notice. There is also no real right to move to open the default judgment or to appeal, because the time to move to open judgment or to appeal will generally have expired before the defendant finds out about the judgment.
“Under this system of service, the process-server simply delivers a copy of the writ to a public official‘s office. The time for answer begins to run immediately. Some effort is supposed to be made through the Foreign Office and through diplomatic channels to give the defendant notice, but failure to do this has no effect on the validity of the service. . . .
“There are no . . . limitations and protections [comparable to due process or personal jurisdiction] under the notification au parquet system. Here jurisdiction lies merely if the plaintiff is a local national; nothing more is needed.” S. Exec. Rep. No. 6, at 11-12 (statement by Philip W. Amram). See also S. Exec. Doc. C, at 5 (letter of submittal from Secretary of State Rusk); Amram, The Revolutionary Change in Service of Process Abroad in French Civil Procedure, 2 Int‘l Law. 650, 650-651 (1968) (Amram).
“However, when confronted with the strict letter of the provision, one can always ask the question of knowing whether or not, when a State permits the service or notification of a person in a foreign country to be made [au parquet], the convention is applicable.
“THE AUTHENTIC INTERPRETATION OF THE COMMISSION AS IT EMERGES FROM THE DISCUSSIONS, IS IN THE SENSE OF THE APPLICATION OF THE CONVENTION.”