Contracting Out of Hague Convention Service?

Camphor Technologies, Inc. v. Biofer, SPA
2007 WL 123406 (Conn. Super. Jan. 4, 2007)

In this case, Camphor Technologies, a Connecticut company is suing Biofer, SPA. In accordance with a general contractual agreement between the parties, Camphor served notice via mail, not through the Hague Convention procedure. The agreement provides:

All notices, consents, approvals, requests, demands or other communications ('Notices') which either of the parties to this Agreement may desire or be required to give to the other party hereunder shall be in writing and shall be deemed properly given if (i) hand-delivered, [ (ii.) ] sent by private or public mail carrier which provides evidence of delivery . . .

Plaintiff claims that this notice provision is sufficient to contract out of the Hague requirements. The court rejects this argument in two different ways. First, the Court suggests that the Hague Convention procedures are only optional if the receiving nation has waived the right. In this manner, the rights secured under Hague suggest an underlying respect for judicial sovereignty rather than personal rights assigned to foreign defendants. Second, the court held that because the lawsuit was outside the scope of the contract, and accordingly the notices discussed in the contractual language did not include notices to sue.