Hague Service Convention authorizes service by mail

The First District has weighed in on a district split regarding whether the Hague Service Convention permits service of a complaint and summons by regular mail, and finds that it does.
Civil Rule 4.5 provides that when service of a complaint and summons must be made into a country which is a party to the 1964 Hague Convention on Service Aboard of Judicial and Extrajudicial Documents in Civil or Commercial Matters, then service must be effected as provided for in that treaty.

There are a number of Articles relating to how such service is made, but the one at issue here is Article 10(a), which generally says that unless a signatory country has objected to the provisions of that article, then the convention "shall not interfere with (a) the freedom to send judicial documents, by postal channels, directly to persons abroad." The critical question is whether the "freedom to send" documents by postal channels is equivalent to the freedom to serve them by postal channels.

The court concluded that "Although there is some merit to the proposed distinction between the terms 'send' and 'service,'" that was outweighed by "the overriding purpose" of the treaty, which is "to develop a comprehensive system to effectuate proper service of process in other countries." The court further wrote that its holding was supported by "The structure of the Hague Service Convention and the placement of subdivision (a) within the Article 10 list of alternate methods of service." And at the end of the day, because the United Kingdom has not objected to the application of Article 10(a), service of process by mail was sufficient. The case is Richardson v. Clinical Computing PLC.

As I said above, there is a split in authority on this question. Interestingly, the Richardson court focused only on the split in the federal circuits, writing that the Fifth and Eighth Circuits have found that service of process abroad is not permitted by post, while the Second and Ninth Circuits have found that it is. The court did not address the existing split of authority within the Ohio appellate courts. Certainly federal appellate courts outside of Ohio (the Sixth Circuit has not yet considered the question) would be strongly persuasive authority, but so too would the other Ohio courts of appeals. At minimum, the Second District in Okubo v. Shimuzu reaffirmed its earlier holding that Article 10(a) does not allow service by mail. And meanwhile the Ninth District has implied (but not held) that it would have agreed with First District that service was permissible.

Obviously it would be preferable for the Sixth Circuit or the US Supreme Court to weigh in on this, but in the meantime this would seem to be a decent candidate for review by the Ohio Supreme Court.