The Hague Convention: Defending a Japanese Company in U.S. PL Litigation

by Wilson Elser

Japan is currently the fourth-largest U.S. trading partner, exporting on average, $130 billion in goods to the United States each year. More than half of all of those goods are manufactured products in the form of vehicles or machinery, making Japanese companies subject to a significant exposure in the area of U.S. product liability litigation.

The United States and Japan are signatories to The Hague Convention on the International Service of Process.  The application of the Hague Convention in product liability cases brought against Japanese companies has been sharply litigated.

The Hague Convention requires service of a Summons and Complaint on a foreign defendant to be executed through a designated “central authority,” a term that includes the ministries of foreign affairs in signatory countries. Service upon a Japanese company under the requirements of The Hague Convention is expensive and time-consuming. So, plaintiffs’ attorneys will attempt to evade the requirements for Hague service.

Japanese companies that are defendants in U.S. litigation commonly insist on service of the Summons and Complaint by The Hague Convention, and rightfully so.  Despite this long-standing international treaty, courts have eroded the requirements under the Hague Convention for service of process over foreign companies. Based on the U.S. Supreme Court decision in Volkswagenwerk Aktiengesellschaft v. Schlunk 486 U.S. 694, (1988), plaintiffs typically attempt to serve American subsidiaries as “agents” of their foreign parent companies. Basically, the Schlunk case created an exception to the Hague Convention service requirement. The decision stands for the notion that if there is an “agent” conducting business in a particular state, the plaintiff can serve that “agent.”

Recently, courts have held that the American subsidiaries of Japanese manufacturers are agents of their foreign parents. Two recent California decisions are examples of this.  One is against Yamaha and the other against Panasonic.  Both of these decisions arose out of the same asbestos case.

Some think this is a trend that may eventually undermine the purpose of the Hague Convention altogether. The courts in the cases mentioned above made the determination of whether a subsidiary is an agent based on the facts of each relationship and the specific activities of each subsidiary.  This does not mean Japanese defendants should abandon their rights to service of process under the Hague Convention. Instead, Japanese defendants should continue to object to methods of attempted service that do not comply with the requirements of the Hague Convention.

The recent U.S. Supreme Court decision in Daimler AG v. Bauman, 134 S. Ct. 746 (2014), may also help foreign defendants. In that case, the Supreme Court ruled that there is rarely general jurisdiction over a company outside of its domiciled state (i.e., its state of incorporation and/or state where its principal place of business is located). This limitation on general jurisdiction may be used in opposition to a plaintiff’s attempt to serve a U.S. subsidiary of a Japanese company under the rationale that the subsidiary is the “agent” of the Japanese parent company.

An additional factor that has been relied on by plaintiffs’ attorneys in their attempt to avoid the expensive and time-consuming requirements for service on a Japanese company is the fact that Japan did not object to Article 10A of The Hague Convention. Article 10A expressly allows documents to be “sent” by mail. State courts have interpreted this inconsistently, some ruling that Article 10A is limited to sending documents by mail after a Summons and Complaint have been otherwise served, while others have ruled that article 10A allows service of a Summons and Complaint by mail. Japanese defendants need to review this issue in the states where they are named as defendants before deciding whether it is worthwhile to object to service of process that was not executed through a central authority in Japan.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Wilson Elser | Attorney Advertising

Written by:

Wilson Elser

Wilson Elser on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.