# Opposition Brief — Water Splash, Inc. v. Menon, 137 S. Ct. 1240 (2017) (No. 16-254)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2017

## Text

In The
Supreme Court of the Anited States

+

WATER SPLASH, INC.,

Petitioner,

Vv.

TARA MENON,
Respondent.

+

On Petition For Writ Of Certiorari

To The Court Of Appeals Of Texas,
Fourteenth District

+

BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI

. z

TIMOTHY A. HOOTMAN

Counsel of Record

2402 Pease St.

Houston, TX 77003
713.247.9548

713.583.9523 (f)

Email: thootman2000@yahoo.com

Counsel for Respondent

QUESTIONS PRESENTED

Whether service by mail comports with the Hague Ser-
vice Convention.

Whether Québec has adopted the Hague Service
Convention so as to permit service of process via mail
without going through Canadian and Quebecer gov-
ernment channels.

ii

TABLE OF CONTENTS

Page
SEITE SARL GRAD ERLE RATE i
ET i SON NE il
- TETAS AE ee A iii
a aiameeeneseee’ 1 a
Reasons for Denying the Writ................................ 3
I. Introduction... tidal a ee

Il. The bichissedieen sina upon which the
trial court’s default judgment should be
iis ccanscientsinitbidcvabessadinnndenindptdbacdies 6

Ill. The Texas court of appeals’ holding that
the Convention does not authorize service
of process by mail is correct ...................... 10

Tea a A a AAI RANTS AS TRL TA A es 2 16

TABLE OF AUTHORITIES
Page
CASES:
Ackerman v. Levine, 788 F.2d 830 (2d Cir. 1986) .......... 5
Alaska v. United States, 545 U.S. 75 (2005)............... 11
Arco Elec. Control Ltd. v. Core Intern., 794
Be I NES BM, MiP occcccccsscccccscccscecescsscesones 5
Avena and Other Mexican Nationals (Mex. v.
U.S.), 2004 1.C.J. 37 (Mar. 31)... call lead aeeasaeh
Bankston v. Toyota Motor tea 889 F.2d 172
lawns ibtan 4
Beard v. Greene, 523 U.S. 371 (1998) ...............0..0000000 7
Bond v. United States, 134 S.Ct. 2077 (2014)........ 7,10
Brockmeyer v. May, 383 F.3d 798 (9th Cir. 2004)......... 5
Canada Attorney-General for Canada v. Attorney-
General for Ontario, [1937] 1 D.L.R. 673 ................. 6
Chan v. Korean Air Lines, Lid., 490 U.S. 122
a a adnate 11
Factor v. Laubenheimer, 290 U.S. 276 (1933)............. 12
Geofroy v. Riggs, 133 U.S. 258 (1890)................00....... 12
Golub v. Isuzu Motors, 924 F. — 324 (D. Mass
Honda Motor Co. ites 12 Cal. 1 Rote 2 2d
861, 10 Cal. App. 4th 1043 (Cal_App.6th Dist.) .......... 5
Kim v. Frank Mohn A/S, 909 F. Supp. 474 (S.D.
, REPRE EE SERA AAS RS Se 5

lV
TABLE OF AUTHORITIES — Continued

Lozano v. Montoya Alvarez, 134 S.Ct. 1224

Si iicinclinieishintinseipesasbbnigtiiiasssturesdimupbehanerediduasiaes

NOES LATEORAIS SRE Ds een oe Ce
Maximov v. United States, 373 U.S. 49 (1963)......
Medillin v. Texas, 552 U.S. 491 (2008)...................

Menon v. Water Splash, Inc., 472 S.W.3d 28 (Tex.

App. — Houston [14th Dist.] 2013)..........0..0.......

Mommsen v. Toro Co., 108 F.R.D. 444 (S.D. Lowa

Nuovo Pignone v. Storman Asia M/V, 310 F.3d

374 (Gth Cir. 2002)..........--..0-c2-ss0000 ied dle Sas
Olympic Airways v. Husain, 540 U.S. 644 (2004)..

Ordnandy v. Lynn, 122 Misc. 2d 954, 472

TT aiisiennamasnentnscseineistiinntseatincees

Pochop v. Toyota Motor Company, 111 F.R.D. 464

ig RE IER A OL

Postal v. Princess Cruises, Inc., 163 F.R.D. 497

SEE TI TIT intninsceedoscovesnscosesonnsstonnoscusutesinnsan

Raffa v. Nissan Motor Co. Ltd., 141 F.R.D. 45

Se re riscsinccnentetnnceseossenoqvepieiecenesoeneniesnces

Research Sys. Corp. v. IPSO Publicite, 272 F.3d

U4 (Tihs Cle: BOI) nccescnecscnsccnesccvsscssscosscsseoseseee
Reynolds v. Koh, 490 N.Y.S.2d 295 (1985)..........-

Riendeau v. St. Lawrence & Atlantic R. Co., 167

PS CEES Ue MP bccesccccccssscontenscscensevoveseoosves

Vv

TABLE OF AUTHORITIES — Continued

Page

Santovincenzo v. Egan, 284 U.S. 30 (1931)................ 12

Société Nationale Industrielle Aérospatiale v.
United States District Court, 482 U.S. 522
epeathhn e aRSEERS PEP EE Fe SE La SN eee 12

Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S.
SRL RARE ES 9A TO 12

Vokswagenwerk Aktiengesellschaft v. Schlunk,
a ETT a ae Ne 7,11

CONSTITUTION:

Can. Const. (Constitution Act, 1867) ch. VI,
RE iat Peas RO naira aes at Aen ene 6

RULES:

Come Cav. P Graic, ert. 158 .........ccccccccccsccccccsccscccseseees 8
ERE ETT GRIER I REGIA mene 6, 8
Ee ae eee ae Teo 6
ETE AG SAE A MNEs eee NC ROC a I 6

Texas Rules of Appellate Procedure, Rule 53.4........... 9

OTHER AUTHORITIES:

1 RESTATEMENT (THIRD) OF THE FOREIGN RELA-
TIONS LAW OF THE UNITED States, pt. III, intro.

2 UNITED NATIONS, YEARBOOK OF THE INTERNA-
TIONAL LAW COMMISSION 218-219 (1966)................. 13

vi
TABLE OF AUTHORITIES — Continued

Brief for the United States as Amicus Curiae in
Support of Vacatur and Remand, BG Group
PLC v. Republic of Arg., 134 S.Ct. 1198 (2014) ......13

Brief for the United States as Amicus Curiae
Supporting Petitioner, Abbott v. Abbott, 560
TT SE AE ASS RRR Tats Se 14

Brief for the United States as Amicus Curiae
Supporting Respondents, Sanchez-Llamas v.
Johnson (Nos. 05-51, 04-10566), 2006 WL

Competence of the General Assembly for the Ad-
mission of a State to the United Nations, Ad-

visory Opinion, 1950 I.C.J. 4 (Mar. 3)..................... 15
Gazette Officielle du Québec, April 20, 1988,
ER i RE ERIN ER A 6

Hague Convention on the Service Abroad of
Judicial and Extrajudicial Documents in Civil

or Commercial Matters

art. 10, No. 15, 1965, 20 U.S.T. 361, 658
NEL AD A A CD RES 1
ia heticeiiaticisetinteinenineneniinpniemianiaminianinntanaé passim

Legal Consequences of the Construction of a Wall
in the Occupied Palestinian Territory, Advi-
sory Opinion, 2004 I.C.J. 43 (July 9) ............ccccce00e 13

vil

TABLE OF AUTHORITIES — Continued

Page
RICHARD K. GARDINER, TREATY INTERPRETATION 7
ERENCE AS A aE SU 13
S. Exuc. Doc. No. 92-1 (1971)..............-...ccs-esesesccrseees 13
VIENNA CONVENTION ON THE LAW OF TREATIES
I tra cniesannneniciesovseiedimnimnlie 12
EE I a NT ae TE re 14
Tica aciasiittanieiactcienienlceideieticndaasinctetntebiniy incipttiaianiily 14

1

STATEMENT OF THE CASE

When petitioner Water Splash, Inc. was unable to
serve respondent Tara Menon (a Canadian citizen re-
siding in Québec, Canada) with process, the trial court
authorized alternative service by “first class mail, cer-
tified mail, and Federal Express to Menca’s address”
and “by email to each of Menon’s known email ad-
dresses.” A default judgment was entered after Menon
was served by the alternative service. Menon filed a
motion for new trial wherein she argued that service
by mail, Federal Express, or email does not comply
with article 10(a) of the Hague Convention on the Ser-
vice Abroad of Judicial and Extrajudicial Documents
in Civil or Commercial Matters (“Convention”), and
therefore, the default judgment should be set aside (CR
499-500). See art. 10, No. 15, 1965, 20 U.S.T. 361, 658
U.N.T.S. 163. The trial court denied the motion and
Menon appealed to the Fourteenth Court of Appeals in
Houston, Texas.

In the court of appeals, Menon argued that the
trial court’s default judgment should be set aside be-
cause: (1) article 10(a) of the Convention does not allow
for service of process by mail; and (2) the law of Québec,
without implementing legislation, does not permit ser-
vice of process by mail without going through Cana-
dian and Quebecer government channels. The majority
opinion of the court of appeals resolved the case under
the first argument without addressing the second ar-
gument and held that “send” does not include “service
of process” and reversed the default judgment. Menon
v. Water Splash, Inc., 472 S.W.3d 28, 32 (Tex. App. —

2

Houston [14th Dist.] 2013, pet. denied). The majority's
reasoning is based on what it considered to be the un-
ambiguous text of the Convention. In reaching this
conclusion, the court of appeals acknowledged a split
of authority across the United States regarding article
10(a) of the Convention with the following language:

Water Splash argues that article 10(a) allows
service of process by mail, and relies on the
“majority view” which holds that article 10(a)
allows service of process by mail, so long as
the state of destination does not object. Courts
following this view include the Second,
Fourth, Seventh and Ninth Circuits.

We conclude that the better-reasoned ap-
proach is to follow the so-called “minority
view” which adheres to and applies the mean-
ing of the specific words used in article 10(a)
and prohibits service by mail.

Id. (footnotes omitted).

The dissenting opinion, in spite of the clear text of
the Convention, would have relied on a variety of ex-
tra-textual sources to conclude that “send” includes
“service of process” and thereby affirmed the default
judgment. Jd. at 36-39 (Christopher, J., dissenting).

Water Splash filed a motion for en banc reconsid-
eration, and the court of appeals ordered Menon to re-
spond. Menon again argued that the word “send”
employed in the Convention does not mean “service of

3

process,” and that the Convention, although adopted
by Canada, has not been fully implemented by the
province of Québec so as to effectuate service by mail
on Menon without going through a Quebec judge or
“Vhuisser,” and therefore, the service on Menon by mail
was not effective. After the motion for en banc recon-
sideration was denied without opinion, Water Splash
filed a petition for review in the Texas Supreme Court,
and Menon was ordered to respond. In her response,
Menon again argued that “send” does not mean “ser-
vice of process,” and that the Convention has not been
fully implemented by Québec so as to effectuate service
by mail on Menon without going through a Quebec
judge or “l’huisser.” The Texas Supreme Court denied
the petition for review without opinion.

Water Splash now argues in its petition for writ of
certiorari that this case is a good vehicle to resolve the
split of authority regarding whether the Convention
authorizes service of process by mail.

= ¢

REASONS FOR DENYING THE WRIT
I. Introduction.

The Convention provides a means through which
parties to civil litigation may serve documents abroad.
In this regard, article 10 of the Convention states:

Provided the State of destination does not ob-
ject, the present Convention shall not inter-
fere with

4

(a) the freedom to send judicial documents,
by postal channels, directly to persons abroad,

(b) the freedom of judicial officers, officials
or other competent persons of the State of
origin to effect service of judicial documents
directly through the judicial officers, officials
or other competent persons of the State of des-
ignation,

(c) the freedom of any person interested in a
judicial proceeding to effect service of judicial
documents directly through the judicial offic-
ers, officials, or other competent persons of the
State of destination (emphasis added).

Of the many other courts throughout the United
States that have considered the issue of whether arti-
cle 10(a) authorizes service of process by mail, their
opinions are split. One group of cases holds that article
10(a) does not permit service by mail, but merely pro-
vides for the mailing of non-service-related judicial
documents. See, e.g., Nuovo Pignone v. Storman Asia
M/V, 310 F.3d 374, 384 (5th Cir. 2002); Bankston v.
Toyota Motor Corp., 889 F.2d 172, 173-74 (8th Cir.
1989); Riendeau v. St. Lawrence & Atlantic R. Co., 167
F.R.D. 26, 29 (D. Vt. 1996) (service in Québec); Postal v.
Princess Cruises, Inc., 163 F.R.D. 497, 499 (N.D. Tex.
1995); Raffa v. Nissan Motor Co. Ltd., 141 F.R.D. 45, 46
(E.D. Pa. 1991); Pochop v. Toyota Motor Company, 111
F.R.D. 464, 466 (S.D. Miss. 1986); Mommsen v. Toro Co.,
108 F.R.D. 444, 446 (S.D. Iowa 1985); Golub v. Isuzu
Motors, 924 F. Supp. 324, 327 (D. Mass 1996); Kim v.

5

Frank Mohn A/S, 909 F. Supp. 474, 479, and n. 4 (S.D.
Tex. 1995); Mateo v. M/S KTSO, 805 F. Supp. 792, 796-
97 (N.D. Cal. 1992); Arco Elec. Control Ltd. v. Core In-
tern., 794 F. Supp. 1144, 1147 (S.D. Fla. 1992); Honda
Motor Co. v. Superior Court, 12 Cal. Rptr. 2d 861, 861-
84, 10 Cal. App. 4th 1043 (Cal.App.6th Dist.); Reynolds
v. Koh, 490 N.Y.S.2d 295, 297 (1985); Ordnandy v. Lynn,
122 Misc. 2d 954, 472 N.Y.S.2d 274, 274-75 (1984).

Another group of cases hold that service under ar-
ticle 10(a) may be made by mail. Brockmeyer v. May,
383 F.3d 798, 808-09 (9th Cir. 2004); Research Sys.
Corp. v. IPSO Publicite, 272 F.3d 914, 916 (7th Cir.
2002); Koehler v. Dodwell, 152 F.3d 304, 307-08 (4th
Cir. 1998); Ackerman v. Levine, 788 F.2d 830, 839 (2d
Cir. 1986). The Texas court of appeals in this case joins
the courts holding that article 10(a) of the Convention
does not permit service by mail, but merely provides
for the mailing of non-service-related judicial docu-
ments.

At some point, this Court should resolve this split
of authorities, but it is suggested that this case is not
a good vehicle for doing so because (1) there is an inde-
pendent ground that was argued throughout the lower
court proceedings by Menon and that was not reached
by the Texas court of appeals or the Texas Supreme
Court upon which the trial court’s default judgment
should be reversed, and (2) the court of appeals’ hold-
ing that the Convention does not permit service by
mail was correct.

6

Il. The independent ground upon which the
trial court’s default judgment should be re-
versed.

Under the Convention, Article 10(a) does not apply
where the State of designation objects. In this case,
Menon was served in Québec, Canada. Under Cana-
dian law, each province has authority to adopt inter-
national treaties such as the Convention. CAN. CONST.
(Constitution Act, 1867) ch. VI, §§ 91-95; Canada
Attorney-General for Canada v. Attorney-General for
Ontario, |1937] 1 D.L.R. 673. Canada ratified the Con-
vention and Québec issued on March 30, 1988, a De-
cree nr 491-88, in which it declared itself bound by the
Convention. See Gazette Officielle du Québec, April 20,
1988, 120th year, nr 16. Relevant sections of the Qué-
bec Code of Civil Procedure (§§ 110-146, 198.1 & 484.1)
have been amended to give effect to the Convention.
See in particular § 136. However, service of process in
Québec can be done validly only by using an official
process server (l’huisser) who then attests that the ser-
vice has been effected, or by permission of a judge in
Québec. See id. at §§ 120 & 123. Such a server
(Vhuisser) can be hired by the foreign applicant (that
is, Water Splash) directly or by the Québec Department
of Justice on the request of a foreign “central authority”
in the country of the applicant, following the procedure
set forth in the Convention. Therefore, whether service
of process by mail is permitted by the Convention or
not, and whether Canada objects to it or not is second-
ary: such service has no legal effect in Québec.

7

And very importantly, under article 10a) itself,
whether the Convention is valid in the State of desti-
nation is governed by the law of the jurisdiction where
the procedure takes place, which is that of Québec.
In other words, although adopted by Canada, the Con-
vention has not been fully implemented by the prov-
ince of Québec so as to effectuate service by mail on
Menon without going through a Québec judge or a
Vhuisser.

The question, then, is not whether Canada has ap-
proved of the Convention, but whether Québec has ap-
proved with legislation implementing the convention
as required by the Canadian Constitution. Implement-
ing legislation is a key issue regarding the enforceabil-
ity of international law that has been frequently dealt
with by the United States Supreme Court when con-
fronted with cases, like this one, that must cross the
preliminary bridge of whether the Convention is even
the law of the forum in question. See Bond v. United
States, 134 S.Ct. 2077, 2093 (2014); Medillin v. Texas,
552 U.S. 491, 508 (2008); Beard v. Greene, 523 U.S. 371,
375 (1998) (per curiam); Vokswagenwerk Aktiengesell-
schaft v. Schlunk, 486 U.S. 694 (1988).

All of the foregoing was repeatedly raised in the
Texas appellate courts. Menon argued in the court of
appeals and in the Texas Supreme Court that a litigant
may not serve a Canadian citizen and resident of Qué-
bec with process by sending citation directly to the
Canadian citizen (bypassing traditional diplomatic
channels and the Central Authority under the Conven-
tion) by mail. In pursuing this issue throughout her

8

Appellant’s Brief filed in the court of appals, Menon
summarized at the end of the brief by stating the fol-

lowing:

Therefore, service by mail, private delivery,
and e-mail is not proper because: (1) under Ar-
ticle 138 of the Code of Civil Procedure of Qué-
bec because the alternative service in this
case was not “obtained in the district of the
place in which the written proceeding [was]
served.” CoDE Civ. P. QUEBEC, art. 138; (2) Que-
bec appears to have no implementing legisla-
tion regarding the Hague Service Convention
as required by the Canadian Constitution, in
which case, service must be by traditional dip-
lomatic channels (e.g., letters rogatory); and
(3) the possible administrative implementa-
tion of the Hague Service Convention by Qué-
bec as indicated by the Hague Conference
website shows that Water Splash, Inc. failed
to comply with the Québec regulations re-
garding service of process. Aplt’s Br. at 31-32.

The majority opinion in the court of appeals did not
reach or address this issue but rather resolved the ap-
peal by concluding that the Convention does not au-
thorize service by mail, thereby mooting the Québec
implementation question. It makes sense that the
Texas court would take this approach so as to avoid
passing on the unfamiliar territory of Canadian and

Quebecer law.

Menon further pursued this point in the Texas Su-
preme Court by arguing that even if the Convention
allows service by mail,

9

then this Court should also either (1) address
the additional question raised in Appellant’s
Brief but not addressed by the court of ap-

peals regarding whether Québec has ap-
proved of the Convention with implementing

legislation as required by the Canadian Con-
stitution, or (2) remand to the court of appeals
for consideration of this question under Rule
53.4 of the Texas Rules of Appellate Proce-
dure.

Water Splash’s argument on page 16 of its petition
for writ of certiorari that the Canadian and Quebecer
domestic law question “has no bearing on whether ser-
vice of process was proper in this case” is not accurate.
The very point of the argument is that it is an inde-
pendent ground for reversing the trial court’s default
judgment. Additionally, Water Splash’s argument, also
on page 16 of its petition, that Menon “conceded that
the only question at issue in this case was the federal
question [of whether the Convention allows for service
by mail] is also not accurate. Menon raised the issue
at every level of the state court appellate proceedings.
Moreover, the majority opinion specifically did not
reach the argument, and therefore, it is an open ques-
tion if this Court were to reverse the service-by-mail
holding.

In short, there is an independent ground upon
which Menon would have prevailed in the Texas court
of appeals, and therefore, this case is not a good vehicle
for addressing the split of authorities on whether the
Convention authorizes service of process by mail.

10

Ill. The Texas court of appeals’ holding that the
Convention does not authorize service of
process by mail is correct.

The primary thrust of the dissenting opinion of the
Texas court of appeals and the authorities relied on by
the dissent are that extra-textual sources indicate that
the intent of the drafters of the Convention was to au-
thorize service by mail. The majority opinion of the
Texas court of appeals and the authorities relied on by
the majority are that the clear text of the Convention
indicates that the drafters did not intend to authorize
service by mail. The United States Supreme Court has
time and again said that the beginning point in the
construction of a treaty is the text of the treaty itself,
and that supplemental means of interpretation (that
is, extra-textual sources) should be resorted to only if
the ordinary meaning of the text presents an ambigu-
ity or leads to an absurd result. Examples abound:

¢ Bond v. United States, 134 S.Ct. 2077,
2087-90 (2014) (analyzing the ordinary
meaning of the term “chemical weapon”
contained in the Chemical Weapons Con-
vention and only after concluding that
the term is ambiguous resorting to sup-
plemental means of interpretation) and
id. at 2094 & 2097 (Scalia, J., concurring
in judgment) (interpreting a “chemical
weapon” solely on the basis of a textual
analysis and stating that the Court’s
other interpretive devices were “unintel-
ligible”).

11

Lozano v. Montoya Alvarez, 134 S.Ct.
1224 (2014) (“For treaties, which are pri-
marily compacts between independent
nations, our duty is to ascertain the in-
tent of the parties by looking to the doc-
ument’s text and context.”) (citations,
brackets, and quotation marks omitted).

Medillin v. Texas, 552 U.S. 491, 508, 514
(2008) (applying a “time-honored textual
approach,” the Court found that the fail-
ure to use binding language such as
“such” or “must” suggested the terms of
the treaty created a political rather than
a judicial commitment).

Alaska v. United States, 545 U.S. 75, 92-
96 (2005) (interpreting treaty term “bay”
according to the ordinary meaning mari-
ners apply to the term).

Olympic Airways v. Husain, 540 U.S. 644,
655 (2904) (interpreting treaty terms “un-
der the ordinary and usual definitions of
these terms”).

Chan v. Korean Air Lines, Lid., 490 U.S.
122, 134 (1989) (stating that negotiation
history may be “consulted to elucidate a
text that is ambiguous”).

Vokswagenwerk Aktiengesellschaft v.
Schlunk, 486 U.S. 694, 699 (1988) (“When
interpreting a treaty, we ‘begin with the
text of the treaty and the context in which
the written words are used.’”) (quoting

12

Société Nationale Industrielle Aérospa-
tiale v. United States District Court, 482
U.S. 522, 534 (1987) and id. at 700 (“Other
general rules of construction may be
brought to bear on difficult or ambiguous

passages.”).

* Sumitomo Shoji Am., Inc. v. Avagliano,
457 U.S. 176, 180 (1982) (“The clear im-
port of treaty language controls unless
‘application of the words of the treaty ac-
cording to their obvious meaning effects a
result inconsistent with the intent or ex-
pectations of its signatories.’”) (quoting
Maximov v. United States, 373 U.S. 49, 54
(1963)).

* Factor v. Laubenheimer, 290 U.S. 276
(1933) (resorting to supplemental means
of construing a treaty only after it was
clear that the text of the treaty gave rise
to an ambiguity).

* Santovincenzo v. Egan, 284 US. 30, 40
(1931) (“[als treaties are contracts be-
tween independent nations, their words
are to be taken in their ordinary meaning
‘as understood in the public law of na-
tions’ ”) (quoting Geofroy v. Riggs, 133 U.S.
258, 271 (1890)).

Another important point that supports the major-
ity opinion’s text-first methodology is international
law itself. The Vienna Convention on the Law of Trea-
ties reflects the rules of customary international law
applicable to construction of all treaties. VIENNA Con-
VENTION ON THE LAW OF TREATIES, 1155 U.N.TS. 331.

13

See RICHARD K. GARDINER, TREATY INTERPRETATION 7
(2008) (“The International Court of Justice . . . has pro-
nounced that the Vienna rules are in principle applica-
ble to the interpretation of all treaties.”). The Vienna
Convention provides the accepted international frame-
work for interpreting treaty provisions, and as the In-
ternational Court of Justice has said, it reflects a
codification of the customary international law appli-
cable to all nations. See Avena and Other Mexican Na-
tionals (Mex. v. U.S.), 2004 1.C.J. 37 (Mar. 31); Legal
Consequences of the Construction of a Wall in the Oc-
cupied Palestinian Territory, Advisory Opinion, 2004
1.C.J. 43 (July 9); see also 1 RESTATEMENT (THIRD) OF
THE FOREIGN RELATIONS LAW OF THE UNITED STATES, pt.
ITI, intro. Note, at 144-45 (1987) (discussing the Vienna
Convention’s codification of the customary interna-
tional law governing international agreements and the
acceptance of the Convention in the United States).
The Vienna Convention was an attempt to “codify the
comparatively few general principles which appear to
constitute general rules for the interpretation of trea-
ties.” 2 UNITED NATIONS, YEARBOOK OF THE INTER-
NATIONAL LAW COMMISSION 218-19 (1966). The United
States has never ratified the Vienna Convention, but it
recognizes the treaty as “the authoritative guide to cur-
rent treaty law and practice.” S. Exec. Doc. No. 92-1,
at 1 (1971). Moreover, the United States routinely
relies on the Vienna Convention in litigation before the
United States Supreme Court.’

! See Brief for the United States as Amicus Curiae in Sup-
port of Vacatur and Remand, BG Group PLC v. Republic of Arg.,

14

If the United States views the Vienna Convention
as the authoritative guide to treaty interpretation, and
the Supreme Court accords great deference to the ex-
ecutive branch’s interpretation of treaties, then it fol-
lows that an interpretive method that is consistent
with the Vienna Convention is proper. The majority
opinion is exactly in conformity with the Vienna Con-
vention, whereas the dissenting opinion is not.

Article 31 of the Vienna Convention states that
“(a) treaty shall be interpreted in good faith in accor-
dance with the ordinary meaning to be given to the
terms of the treaty in their context and in the light of
its object and purpose.” VIENNA CONVENTION ON THE
LAW OF TREATIES, art. 31(1). “Context” is defined,
among other things, as “the text, including its preamble
and annexes.” Jd. at art. 31(2). Context also includes
“lalny agreement relating to the treaty which was
made between all the parties in connexion with the
conclusion of the treaty” and “{a]ny instrument which
was made by one or more parties in connexion with the
conclusion of the treaty and accepted by the other par-
ties as an instrument related to the treaty.” Id. Supple-
mentary means of interpretation are also permitted for
limited purposes. Article 32 provides that:

Recourse may be had to supplementary
means of interpretation, including prepara-
tory work of the treaty and the circumstances

134 S.Ct. 1198 (2014) ; Brief for the United States as Amicus Cu-
riae Supporting Petitioner, Abbott v. Abbott, 560 U.S. 1 (2010);
Brief for the United States as Amicus Curiae Supporting Re-
spondents, Sanchez-Llamas v. Johnson (Nos. 05-51, 04-10566),
2006 WL 271823, at *23.

15

of its conclusion, in order to confirm the mean-
ing ... or to determine the meaning when
the interpretation according to article 31:
(a) Leaves the meaning ambiguous or obscure;
or (b) Leads to a result which is manifestly
absurd or unreasonable.

Id. at art. 32.

The textual focus of the Vienna Convention is
clear, allowing for supplementary means of interpre-
tation only after the text of a treaty demonstrates an
ambiguity or an absurd result. In others words, the
majority properly applies the rules of treaty construc-
tion to this appeal, whereas the dissent does not. More-
over, the majority’s approach is in conformity with the
view of the International Court of Justice as to the
proper methodology applied in construing treaties,
whereas the dissent’s approach is not. See Competence
of the General Assembly for the Admission of a State to
the United Nations, Advisory Opinion, 1950 I.C.J. 4, 8
(Mar. 3) (“[T}he first duty of a tribunal which is called
upon to interpret and apply the provisions of a treaty,
is to endeavor to give effect to them in their natural
and ordinary meaning in the context in which they oc-
cur.”).

The text of the Convention on the issue of service
of process by mail is not ambiguous, and therefore ex-
tra-textual materials are irrelevant under Supreme
Court cases and international law. The majority opin-
ion in the Texas court of appeals explicitly complied
with these authorities and stuck to the unambiguous
text of the Convention in its analysis. Accordingly, if

16

this Court were to accept this case as the vehicle for
resolving the split of authority as to whether the Con-
vention authorizes service of process by mail, it would
be doing so to affirm what the Texas court of appeals
has already held.

_ —

CONCLUSION

For the reasons stated herein, Petitioner requests
this Court to grant this petition.

Respectfully submitted,

TrmotTuy A. HOOTMAN

2402 Pease St.

Houston, TX 77003
713.247.9548

Email: thootman2000@yahoo.com

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0697%3A03. Public record. Not legal advice.