“If you’re going to San Francisco, be sure to wear some flowers in your hair…” It may have been in this spirit that a German couple went to California and got married there in 1997. The love-in was over when of the wife got in motion, returned to Germany and filed divorce proceedings in Berlin in 2006. Process was served on the husband she left back in California – creating an opportunity for the Federal Supreme Court (Bundesgerichtshof) to clarify some rather technical, but highly relevant issues on defective service in relation to the Hague Service Convention.
The husband argued that service upon him never was effective, for lack of personal service as required by Sec. 415.10 California Code of Civil Procedure. On the other hand, it was undisputed that he had actual knowledge of the content of the papers that were allegedly served on him. The Federal Supreme Court, in a judgment in September 2011, distinguished between compliance with the service rules under the Hague Service Convention itself, and the rules of the receiving state – “the state addressed”, in the language of the Convention. It held that defects in relation to the rules of the receiving state could be cured, by showing that the document in question was actually received be the party as per Sec. 189 German Code of Civil Procedure, as long as the Hague Convention rules had been observed.
So far, that was to be expected. The court then, however, went on to say that these defects would be deemed cured as a result of the husband’s actual knowledge, from a German judge’s perspective, even if California law as the applicable law of the receiving state does recognized the concept of curing such defects: “Dies gilt auch dann, wenn das gemäß Art. 5 Abs. 1 lit. a HZÜ anwendbare Recht des Zustellungsstaates eine Heilung nicht vorsieht,” the court says in the official headnote(Leitsatz). Whether curing such defects was possible in such circumstances was disputed in the German legal literature. It is on that point that the judgment now gives clear guidance.
Certainly it is a pragmatic decision. You do not want to let a party get away on some formalities if they had actual knowledge of the content of the papers to be served. And it was not that the husband did not want a divorce, he just wanted jurisdiction in California for divorce proceedings he himself had commenced later, and hence he had to avoid lis pendens in Germany.
But you wonder about comity and how the Federal Supreme Court would react to such disregard of its own law by a US court. On balance, I believe the court got it right: The key argument is that the Hague Convention rules must take priority. If the national rules of the receiving state could still render a service process invalid that is fully Hague-compliant, this would undermine the effectiveness of the supranational rules of the Convention.
I think the decision is not just pragmatic, but principled. The wife sought to effect service via the central authority mechanism (Article 5). The US central authority apparently returned a certificate of service. In general, it seems to me that the courts of the forum state should not second-guess the destination state’s certification that service was made in accordance with its local laws, unless the defendant is claiming that he never received the documents (as opposed to claiming a technical failure under local law). Assuming that the defendant had actual notice, it seems to me that commity and judicial efficiency require the court to respect the certificate of the foreign central authority in all but the most extraordinary circumstances.