Finally, a reciprocal enforcement of judgments treaty is in place. The 22nd Diplomatic Session of the Hague Conference on Private International Law adopted the Convention on July 2nd, 2019. The Session signed the Convention in the Peace Palace of The Hague, Netherlands. The Convention is the 40th global instrument signed by HCCH. The Convention is not in force as of now. According to www.hcch.net, the Convention “will be essential to reducing transactional and litigation costs in cross-border dealings [and] facilitates rule-based multilateral trade and investment. […] A true gamechanger in international dispute resolution.” It is also referred to as an “important gap” in private international law. This means that judgments will be much easier to collect on in foreign jurisdictions. Winners that are able to obtain favorable judgments can receive their justice against foreigners in signatory countries. This is a huge win for injured parties that need to collect on judgments for money awards. Unfortunately, plaintiffs frequently decline to try cases because of the location of the defendant; this hopefully will ease that burden. However, the Convention will not recognize certain types of awards. Awards for things such as privacy, wills, financial insolvency, nuclear damages, and intellectual property are not subject to the Convention. Also, the Convention does not recognize punitive or exemplary damages. Punitive or exemplary damages are damages awarded not related to the plaintiff’s actual injuries. Obviously, plaintiffs must ask their attorneys if the foreign jurisdiction can enforce their award. Uruguay signed the Convention first. Uruguay considers it an honor. However, the fill list of contracting parties is not yet available. Lastly, the list of contracting parties is available at: https://www.hcch.net/en/instruments/conventions/status-table/?cid=137. The Convention is the 40th global instrument adopted by the HCCH. Finally, the HCCH began operating in 1893.
In 2015, Terance Gamble was pulled over by Alabama police officers for a malfunctioning headlight. During the routine stop, the officer smelled marijuana and searched Gamble’s vehicle. The officer found two bags of the substance, a digital scale, and a handgun. Gamble was charged with violating Alabama’s drug laws. He was also faced state and federal charges for being a felon in possession of a firearm. An Alabama state court sentenced Gamble to one year of jail time. Gamble petitioned the federal trial court to dismiss the firearm charge against him, arguing it violated the double jeopardy clause since Alabama already charged and convicted him on those charges. The trial court rejected Gamble’s argument, noting that unless and until the SCOTUS issued a decision overruling it the trial court had to follow the separate sovereigns doctrine. Gamble was sentenced to nearly four years in federal prison with an additional year of supervised release. Gamble appealed to the U.S. Court of Appeals for the 11th Circuit, who upheld the lower court’s ruling and sentence. Gamble then petitioned the United States Supreme Court. Under the separate sovereigns doctrine, the prohibition of double jeopardy on the same criminal offense does not prevent dual prosecution when the accused’s charges are put forth by separate sovereigns. SCOTUS precedent treats the state and federal government as separate sovereigns. Therefore, a defendant like Gamble can be prosecuted by a state court and then a federal court for the same crime (or vice versa). The SCOTUS majority opinion, authored by Justice Alito noted the separate sovereigns doctrine was not an exception to the double jeopardy clause but part of it. This was because, the Court reasoned, the clause bars multiple prosecutions for the same offense not the same conduct. Because crimes are defined by laws, which are defined by sovereigns, in Gambles case there were two offenses of two different laws. Justice Alito also pointed out that the SCOTUS had affirmed this principle over and over again for more than 170 years. Gamble argued the SCOTUS’s stare decisis on the separate sovereigns doctrine conflicted with the Founding Fathers’ understanding, as they ratified the double jeopardy clause. The SCOTUS rejected that argument. The case is Gamble v. United States.
The highest court in the state of California is set to review whether or not a lower court’s decision to reverse a $414 million award granted in arbitration due to improper service was correct. The multi-million dollar award was given to an American partnership but later reversed when the Chinese business entity involved claimed it was not served properly.
The case is Rockefeller Technology Investments (Asia) VII v. Changzhou Sinotype Technology Co., Ltd. The companies entered into an agreement that included a clause by which parties would provide notice in English via Federal Express or some other type of mail courier service in the event of a business dispute between them.
The Hague Service Convention is a multilateral treaty adopted in 1965 by member states to the Hague Convention on Private International Law. The purpose of the Hague Service Convention was to provide international litigants with a reliable and efficient manner in which to serve documents on parties that are living, operating, or based in another country. The provisions apply to service of process in civil and commercial matters but not criminal ones.
Under the Hague Service Convention, each state must designate a central authority to accept incoming service requests. Then, a judicial officer competent to serve process in the origin country is allowed to send the request directly to the central authority of the country where service is to be made. Once received, the central authority in the receiving state arranges for service of process in the manner permitted in that country. Once service is effected, the central authority sends a certificate of service to the judicial officer who made the service request.
For those states who are not party to the Hague Service Convention, the service of legal documents occur through diplomatic channels and effected by a letter rogatory – a formal request to issue a judicial officer from a court in the state where the proceedings have started to be served by the originating court to the foreign ministry in the country of origin. This process is even longer than the one required by the Hague Service Convention typically going from the foreign ministry of the originating country to the one in the designated country, then to the local court, then an order is issued to allow service, then a certificate of service is issued. The certificate of service would pass through the same channels, but just in reverse order.
It is not uncommon in international business practices for companies to include a similar workaround in their agreements to avoid the requirements of service via the Hague Service Convention or Letters Rogatory. The purpose of this workaround is to limit the expenses associated with litigation and avoid delays typically associated with international service, which can take up to six months.
The Case at Hand
In Rockefeller Technology, the monetary award was granted after the defendant Changzhou never showed up to arbitration. A California trial court confirmed the award when the defendant once again failed to appear. When Changzhou sought to dismiss the award, the judge refused to do so because the parties had privately agreed to the service by mail. Because the Hague Service Convention does not allow individuals to be served by mail – nor does it allow them to accept these terms, the California Court of Appeals reversed the ruling noting China had filed objections to the provisions of the Hague Service Convention addressing other methods of service, which included service by mail.
The California Supreme Court’s review of the case is particularly important as it highlights the close examination over the use of the Hague Convention in countries where service via the postal service is not considered valid. Not surprisingly, based on the outcome of the California Supreme Court’s decision in the matter – and any other subsequent decisions by a higher court – American companies that have international contracts may want to reconsider how those agreements are written when it comes to addressing service of process in the event of a business dispute.
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