Substituted Service and the Hague Service Convention

State law plays a surprisingly large role in transnational litigation, and how it defines the applicability of the Hague Service Convention is an important example. In Volkswagenwerk Aktiengesellschaft v. Schlunk, the U.S. Supreme Court held that the Convention does not apply when, under state law, service of process is made within the United States. In Schlunk, Illinois law permitted substituted service on the U.S. subsidiary of a foreign parent company, so the Convention did not apply. This Article looks at substituted service under state law today and when it permits avoidance of the Hague Convention.

The Article focuses on two kinds of substituted service that many states permit: (1) substituted service on affiliated companies; and (2) substituted service on state officials. The Article argues that states should liberalize their rules for substituted service on affiliated companies by focusing on whether service on the affiliate provides adequate notice to the defendant rather than on whether there are grounds to pierce the corporate veil, as many states currently do. The Article further argues that when substituted service is made on a state official, the Due Process Clauses require that a copy of the service be sent abroad, making the Hague Convention applicable.