International treaties and conventions such as the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, November 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638 (“the Hague Service Convention”), and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, 21 U.S.T. 2517, T.I.A.S. No. 6998 (“the New York Convention”) are considered to be federal law and hence prevail over inconsistent state common law. U.S. Const., art. VI, cl. 2: American Ins. Assoc. v. Garamendi, 539 U.S. 396 (2003). For this reason, such treaties and conventions are often strictly construed by U.S. courts without regard to common law principles.

Two appellate court decisions from earlier this year involving international litigation in U.S. courts, however, illustrate a departure from this practice. In both cases, the respective courts, in interpreting the Hague Service Convention and the New York Convention, construed such agreements through the prism of U.S. common law.

Originally published in the Daily Journal - June 29, 2020.