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.

 

International Service

 

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.

Earlier this month, a march at the U.S.-Mexico border erupted into chaos as U.S. border protection agents fired tear gas into the crowd, which included small children. After the incident, which made international headlines, human rights experts (and many others) are questioning whether or not the U.S.’s use of force was legal or even justifiable.

What Happened?

The incident occurred at the busiest border in the world – San Ysidro crossing, which links Tijuana and San Diego. A photo taken by a Reuters journalist showing a woman fleeing a tear gas canister with her two young daughters – both in diapers and one without shoes – sparked outrage across the globe. A group of Central American migrants were peacefully protesting in Mexico when the protest got out of control. The result was Mexican police blockading and the migrants fleeing toward the Ysidro border. Responding to the chaos, U.S. border patrol officials temporarily shut down the border in both directions and began firing tear gas into Mexico to push back the migrants from the border fence. U.S. border officials state that some migrants where throwing projectiles at customs and border workers prior to the shut down.

International Concerns

International human rights legal experts have referred to language in the United Nations Charter (UN Charter) regarding the sovereign rights and obligations of member countries. Specifically, Article 2 prohibits nations from the threat or use of force against the territorial integrity of other member states. In short, if the migrants were on U.S. territory and presented an immediate threat, the use of tear gas to disperse them under certain conditions could be justified. Some other legal experts note that the tear gassing was in clear violation of Mexico’s territory and an interference in its affairs. Human rights activists contend that the use of tear gas was excessive and would still be even if the migrants were on U.S. territory at the time it was used.

Many of those migrants gathered at the Ysidro border intended to seek asylum in the U.S., raising questions as to whether the use of tear gas subverted their rights under international law. Article 14 of the Universal Declaration of Human Rights states that every person has the right to seek and enjoy asylum from persecution in other countries.

The U.S.’s Reasoning

While international treaties on the use of chemical weapons in war bans tear gas, according to the Organization for the Prohibition of Chemical Weapons, it is legal for federal authorities and police to use tear gas domestically in situations in which riot control is necessary. The U.S. Customs & Border Protection has guidelines for when its officers are allowed to use less-than-lethal force, which includes tear gas. The guidelines dictate, in part, that this force can be used when empty-hand techniques are not enough to control violent or disorderly individuals as long as it is a reasonable and necessary response. According to the federal agency, American border officials have fired tear gas near the southern border with Mexico a minimum of 126 times since 2012.