당사자들의 송달에 관한 사적 합의와 헤이그 송달협약

As international disputes increase, parties sometimes agree to utilise private methods of service instead of relying on the Hague Service Convention, to facilitate legal proceedings. However, such private methods may not be permitted in the state of destination. For instance, if a party or company from Korea—which has made a declaration to the Article 10(a) of the Service Convention(service by postal channels)—agrees to be served documents via postal channel despite the state’s declaration, the validity of such service may be questioned. Even if a court in the forum state upholds the validity of such service and renders a judgment, its validity may still be challenged at the recognition and enforcement stage in a third country. The issue of private agreement on service method —referred to as “contracting out” or “contracting around” the Convention—has become a subject of legal debate, particularly following the 2020 Rockefeller decision by the California Supreme Court. In civil countries considering service function as an exclusive sovereign function, private methods of service are often seen as infringing upon state sovereignty. Furthermore, many states have made declarations against postal service under Article 10(a) of the Convention. Opinions on the validity of contractual wavier that contradict such declarations are divided: some consider them invalid due to state sovereignty, protection of defendants, and challenges at the stage of recognition and enforcement; others support the validity, emphasising party autonomy and legal predictability. The California’s Rockefeller case in the United States stated that the "formal service" under the Hague Service Convention should be determined by domestic law. The California Supreme Court concluded that the parties’ private agreement constituted a valid waiver under California law, making the document transmission ‘mere notice’, not ‘formal service’—thus rendering the Convention inapplicable. Based on this reasoning, the court held that service of documents via postal channel to a Chinese company was valid, despite China’s objection to postal service. This decision has been criticised for potentially undermining the Convention and the sovereignty of the destination state. The relationship between the contractual wavier and the Hague Service Convention can be summarized as follows: As a first step, assuming there is no contractual waiver between the parties regarding service, whether the transmission of a document constitutes "service" should, in principle, be determined according to the law of the forum (lex fori). Once the transmittal of the document is determined to be ‘service’, the court of the forum must then assess whether the parties’ agreement on service includes the actual transmission of documents within the territory of a foreign state – the state of destination. If it does, the agreement should be interpreted not only through the lens of the law of the forum, but also in light of the Hague Service Convention. This approach aligns with the Convention’s core principle of respecting judicial sovereignty, as well as the treaty obligations imposed upon Contracting Parties. This conclusion is further supported by the view that parties cannot unilaterally override a state’s declaration under the Convention. The international discourse on this issue is still developing, and it is hoped that the more in-depth discussion will take place in Korea in the future.