Rockefeller Technology Investments (Asia) VII v. Changzhou Sinotype Technology Company, LTD.

The parties here, sophisticated business entities, entered

into a contract wherein they agreed to submit to the jurisdiction

of California courts and to resolve disputes between them

through California arbitration. They also agreed to provide

notice and “service of process” to each other through Federal

Express or similar courier. The narrow question we address is

whether 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 (Hague

Service Convention or “the Convention”) preempts such notice

provision if the Convention provides for a different method of

service. Consistent with United States Supreme Court

authority, we conclude that the Convention applies only when

the law of the forum state requires formal service of process to

be sent abroad. We further conclude that, because the parties’

agreement constituted a waiver of formal service of process

under California law in favor of an alternative form of

notification, the Convention does not apply. We reverse the

Court of Appeal’s contrary decision.

I. BACKGROUND

Changzhou SinoType Technology Co., Ltd. (SinoType) is

based in China and specializes in developing Chinese graphical

fonts. During 2007 and 2008, its chairman, Kejian “Curt”

ROCKEFELLER TECHNOLOGY INVESTMENTS (ASIA) VII v.

CHANGZHOU SINOTYPE TECHNOLOGY CO., LTD.

Opinion of the Court by Corrigan, J.

2

Huang, discussed forming a new company with Faye Huang,

president of Rockefeller Technology Investments (Asia) VII

(Rockefeller).

1

In February 2008, they signed a Memorandum

of Understanding (MOU). The MOU reflected an intent to form

the new company, allocate interests and responsibilities

between the two existing companies and transfer assets to the

new entity. The MOU provided that the parties would, “with all

deliberate speed, within 90 days if possible,” attempt to draft

“long form agreements carrying forth the agreements made” in

the MOU. The MOU also stated, “this Agreement shall be in

full force and effect and shall constitute the full understanding

of the Parties that shall not be modified by any other

agreements, oral or written.” The MOU provided:

“6. The Parties shall provide notice in the English

language to each other at the addresses set forth in the

Agreement via Federal Express or similar courier, with copies

via facsimile or email, and shall be deemed received 3 business

days after deposit with the courier.

“7. The Parties hereby submit to the jurisdiction of the

Federal and State Courts in California and consent to service of

process in accord with the notice provisions above.

“8. In the event of any disputes arising between the

Parties to this Agreement, either Party may submit the dispute

to the Judicial Arbitration & Mediation Service in Los Angeles

for exclusive and final resolution pursuant to according to [sic]

its streamlined procedures before a single arbitrator who shall

have ten years judicial service at the appellate level, pursuant



1 Because Curt Huang and Faye Huang have the same

surname, we refer to them by their first names.

ROCKEFELLER TECHNOLOGY INVESTMENTS (ASIA) VII v.

CHANGZHOU SINOTYPE TECHNOLOGY CO., LTD.

Opinion of the Court by Corrigan, J.

3

to California law, and who shall issue a written, reasoned

award. The Parties shall share equally the cost of the

arbitration. Disputes shall include failure of the Parties to come

to Agreement as required by this Agreement in a timely

fashion.”

Eventually, negotiations broke down and the “long form

agreements” were never finalized. In February 2012,

Rockefeller sought arbitration. The arbitrator2

found that

SinoType received notice on numerous occasions and “all

materials were sent both by email and Federal Express” to the

Chinese address listed for it in the MOU.3

SinoType neither

responded nor appeared. In November 2013, the arbitrator

concluded Rockefeller was entitled to an award of $414,601,200.

His written decision was sent to SinoType by Federal Express

and e-mail.



2 Richard C. Neal, former justice of the Court of Appeal,

Second Appellate District, Division Seven, served as arbitrator.

3 Specifically, the arbitrator found: “Written proofs of

service in the JAMS [Judicial Arbitration and Mediation

Service] file, prepared and signed by JAMS Case Managers,

confirm that Respondent was given due written notice of all of

the events mentioned above, including submission of the

demand for arbitration, commencement of the arbitration,

appointment of the Arbitrator, the preliminary telephone

conference, the hearing scheduled for September 14, 2012,

continuance of the hearing to February 4, 2013, and the Interim

Order requiring additional submissions. Notices and copies of

all materials were sent both by email and Federal Express to

Respondent’s Chairman Kejiang ‘Curt’ Huang, Changzhou

Sinotype [sic] Technology Co.[,] Ltd[.], Niutang Town,

Changzhou, Jiangsu 213168, China.”

ROCKEFELLER TECHNOLOGY INVESTMENTS (ASIA) VII v.

CHANGZHOU SINOTYPE TECHNOLOGY CO., LTD.

Opinion of the Court by Corrigan, J.

4

Rockefeller petitioned to confirm the award (Code Civ.

Proc., § 1285), and transmitted the petition and summons to

SinoType through Federal Express and e-mail. SinoType did

not appear and the award was confirmed in October 2014. In

November 2015, Rockefeller sought assignment of various

future royalty payments that several companies owed to

SinoType. (See Code Civ. Proc., § 708.510.) SinoType specially

appeared and moved “to quash and to set aside default judgment

for insufficiency of service of process.” (See Code Civ. Proc.,

§ 473, subd. (b).) SinoType asserted that it did not receive actual

notice of any proceedings until March 2015 and argued that

Rockefeller’s failure to comply with the Hague Service

Convention rendered the judgment confirming the arbitration

award void. In a declaration supporting the motion, chairman

Curt acknowledged that, in January 2012, he had received a

letter from Faye that “mentioned arbitration.” He further

declared that “[s]ince Faye Huang and others had harassed me

previously, and because I did not believe there was any binding

agreement between SinoType and [Rockefeller], I decided to

ignore the letter and subsequent FedEx packages and emails. I

did not open them.” Curt claimed that he only opened the

Federal Express packages in March 2015 after a client told him

Rockefeller claimed SinoType owed it money. The motion to set

aside the judgment was denied,

4 but the Court of Appeal

reversed. (See Rockefeller Technology Investments (Asia) VII v.

Changzhou SinoType Technology Co., Ltd. (2018)



4 Los Angeles County Superior Court Judge Randolph M.

Hammock ruled on the motion.

ROCKEFELLER TECHNOLOGY INVESTMENTS (ASIA) VII v.

CHANGZHOU SINOTYPE TECHNOLOGY CO., LTD.

Opinion of the Court by Corrigan, J.

5

24 Cal.App.5th 115, review granted Sept. 26, 2018, S249923

(Rockefeller Technology Investments).)

II. DISCUSSION

A. The Hague Service Convention

As to the superior court proceeding to confirm the

arbitration award, SinoType argues the Hague Service

Convention applies because notice of the proceeding was sent

abroad to China, where defendant is based. Mirroring the Court

of Appeal’s reasoning below, SinoType contends that China’s

objection to Article 10 of the Convention precludes service in

China through Federal Express. SinoType was never properly

served, and the judgment confirming the arbitration award is

void for lack of personal jurisdiction. (See Rockefeller

Technology Investments, supra, 24 Cal.App.5th at pp. 133-135.)

To address this contention, we examine the language of the

Hague Service Convention and pertinent United States

Supreme Court authority.

The Convention is “a multilateral treaty that was

formulated in 1964 by the Tenth Session of the Hague

Conference of Private International Law . . . [and] was intended

to provide a simpler way to serve process abroad, to assure that

defendants sued in foreign jurisdictions would receive actual

and timely notice of suit, and to facilitate proof of service

abroad.” (Volkswagenwerk Aktiengesellschaft v. Schlunk (1988)

486 U.S. 694, 698 (Volkswagenwerk).) The United States was

an original signatory, and China adopted it in 1992. (Kott v.

Superior Court (1996) 45 Cal.App.4th 1126, 1134-1135 (Kott);

Hyundai Merchant Marine v. Grand China Shipping (S.D.Ala.

2012) 878 F.Supp.2d 1252, 1262, fn. 5; see also Volkswagenwerk,

at p. 698.)

ROCKEFELLER TECHNOLOGY INVESTMENTS (ASIA) VII v.

CHANGZHOU SINOTYPE TECHNOLOGY CO., LTD.

Opinion of the Court by Corrigan, J.

6

Article 1 of the Convention states it “shall apply in all

cases, in civil and commercial matters, where there is occasion

to transmit a judicial or extrajudicial document for service

abroad.” (Hague Service Convention, supra, 20 U.S.T. at p. 362.)

The Convention requires each member state to “designate a

Central Authority which will undertake to receive requests for

service coming from other contracting States and to proceed in

conformity with the provisions of articles 3 to 6.” (Ibid.) “The

Central Authority of the State addressed shall itself serve the

document or shall arrange to have it served by an appropriate

agency, either— [¶] (a) by a method prescribed by its internal

law for the service of documents in domestic actions upon

persons who are within its territory, or [¶] (b) by a particular

method requested by the applicant, unless such a method is

incompatible with the law of the State addressed.” (Ibid.) “The

primary innovation of the Convention is that it requires each

state to establish a central authority to receive requests for

service of documents from other countries. [Citation.] Once a

central authority receives a request in the proper form, it must

serve the documents by a method prescribed by the internal law

of the receiving state or by a method designated by the requester

and compatible with that law. [Citation.] The central authority

must then provide a certificate of service that conforms to a

specified model.”5

(Volkswagenwerk, supra, 486 U.S. at pp. 698-

699.)



5

“Submitting a request to a central authority is not,

however, the only method of service approved by the

Convention. For example, Article 8 permits service through

diplomatic and consular agents; Article 11 provides that any two

ROCKEFELLER TECHNOLOGY INVESTMENTS (ASIA) VII v.

CHANGZHOU SINOTYPE TECHNOLOGY CO., LTD.

Opinion of the Court by Corrigan, J.

7

As relevant here, article 10 of the Convention states:

“Provided the State of destination does not object, the present

Convention shall not interfere with— [¶] (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 destination, [¶] (c) the

freedom of any person interested in a judicial proceeding to

effect service of judicial documents directly through the judicial

officers, officials or other competent persons of the State of

destination.” (Hague Service Convention, supra, 20 U.S.T. at

p. 363, italics added.) “Each signatory nation may ratify, or

object to, each of the articles” of the Convention. (Honda Motor

Co. v. Superior Court (1992) 10 Cal.App.4th 1043, 1045 (Honda

Motor).) When it adopted the Convention, China objected to

article 10.6

(See Zhang v. Baidu.com Inc. (S.D.N.Y. 2013) 932



states can agree to methods of service not otherwise specified in

the Convention; and Article 19 clarifies that the Convention

does not preempt any internal laws of its signatories that permit

service from abroad via methods not otherwise allowed by the

Convention.” (Water Splash, Inc. v. Menon (2017) 581 U.S.__, __

[137 S.Ct. 1504, 1508] (Water Splash).)

6 The objection has been noted by the Hague Conference on

Private International Law, which administers the Convention.

(Hague Conference on Private International Law,

Declaration/Reservation/Notification

[as of April 2, 2020];

the Internet citation in this opinion is archived by year, docket

number, and case name at .)

ROCKEFELLER TECHNOLOGY INVESTMENTS (ASIA) VII v.

CHANGZHOU SINOTYPE TECHNOLOGY CO., LTD.

Opinion of the Court by Corrigan, J.

8

F.Supp.2d 561, 567.) By its objection, the nation of China

declined to embrace article 10’s alternative service methods.

The question here is whether China’s objection estops its

citizens from agreeing to notification arguably covered by

article 10. Two United States Supreme Court cases inform the

application of the Convention. In Volkswagenwerk, the high

court addressed whether a foreign corporation could properly be

served through a wholly-owned domestic subsidiary. The court

acknowledged that article 1 of the Convention stated it “ ‘shall

apply in all cases, in civil or commercial matters, where there is

occasion to transmit a judicial or extrajudicial document for

service abroad.’ ” (Volkswagenwerk, supra, 486 U.S. at p. 699.)

However, the high court observed that “[t]he Convention does

not specify the circumstances in which there is ‘occasion to

transmit’ a complaint ‘for service abroad.’ But at least the term

‘service of process’ has a well-established technical meaning.

Service of process refers to a formal delivery of documents that

is legally sufficient to charge the defendant with notice of a

pending action. [Citations.] The legal sufficiency of a formal

delivery of documents must be measured against some

standard. The Convention does not prescribe a standard, so we

almost necessarily must refer to the internal law of the forum

state. If the internal law of the forum state defines the

applicable method of serving process as requiring the

transmittal of documents abroad, then the Hague Service

Convention applies.” (Id. at p. 700.) Volkswagenwerk relied

upon the negotiating history of the Convention to support its

view that “Article 1 refers to service of process in the technical

sense” (ibid.), and “whether there is service abroad must be

ROCKEFELLER TECHNOLOGY INVESTMENTS (ASIA) VII v.

CHANGZHOU SINOTYPE TECHNOLOGY CO., LTD.

Opinion of the Court by Corrigan, J.

9

determined by reference to the law of the forum state” (id. at p.

701).

While noting that “compliance with the Convention is

mandatory in all cases to which it applies” (Volkswagenwerk,

supra, 486 U.S. at p. 705), and “the Convention pre-empts

inconsistent methods of service prescribed by state law in all

cases to which it applies” (id. at p. 699), the high court concluded

the Illinois long-arm statute at issue authorized service of a

foreign corporation through a domestic subsidiary. (Id. at p.

706.) As such, under the law of the forum state, “this case does

not present an occasion to transmit a judicial document for

service abroad within the meaning of Article 1. Therefore the

Hague Service Convention does not apply, and service was

proper.” (Id. at pp. 707-708.)

Water Splash resolved “a broader conflict among courts as

to whether the Convention permits service through postal

channels.” (Water Splash, supra, 581 U.S. at p. __ [137 S.Ct. at

p. 1508].) The court concluded that article 10(a) does not

preclude service by mail but warned: “To be clear, this does not

mean that the Convention affirmatively authorizes service by

mail. Article 10(a) simply provides that, as long as the receiving

state does not object, the Convention does not ‘interfere with . . .

the freedom’ to serve documents through postal channels. In

other words, in cases governed by the Hague Service

Convention, service by mail is permissible if two conditions are

met: first, the receiving state has not objected to service by mail;

and second, service by mail is authorized under otherwiseapplicable law.” (Id. at p. __ [137 S.Ct. at p. 1513], second italics

added.)

ROCKEFELLER TECHNOLOGY INVESTMENTS (ASIA) VII v.

CHANGZHOU SINOTYPE TECHNOLOGY CO., LTD.

Opinion of the Court by Corrigan, J.

10

We discern three relevant principles. First, the Hague

Service Convention applies only to “service of process in the

technical sense” involving “a formal delivery of documents.”

(Volkswagenwerk, supra, 486 U.S. at p. 700.) The distinction

between formal service and mere notice appears consistent with

the Practical Handbook on the Operation of the Service

Convention, published by the Permanent Bureau of the Hague

Conference on Private International Law for guidance regarding

the Convention’s application. “[T]he Convention cannot—and

does not—determine which documents need to be served. It is a

matter for the lex fori to decide if a document needs to be served

and which document needs to be served. Thus, if the law of the

forum states that a notice is to be somehow directed to one or

several addressee(s), without requiring service, the Convention

does not have to be applied.” (Practical Handbook on the

Operation of the Service Convention (4th ed. 2016) par. 54, p.

23, fn. omitted; see Denlinger v. Chinadotcom Corp. (2003) 110

Cal.App.4th 1396, 1402 [the Convention involves “the concept of

formal service of process”].)

Second, whether “there is occasion to transmit a judicial or

extrajudicial document for service abroad” (Hague Service

Convention, supra, 20 U.S.T. at p. 362) is determined by

reference to the law of the sending forum, in this case California.

(Volkswagenwerk, supra, 486 U.S. at pp. 700-701.)

Volkswagenwerk concluded there that the sending forum,

Illinois, did not require service abroad because its long-arm

statute authorized domestic service through a subsidiary. (Id.

at pp. 706-708.) Thus, because international service was not

required, the Hague Service Convention did not apply.

ROCKEFELLER TECHNOLOGY INVESTMENTS (ASIA) VII v.

CHANGZHOU SINOTYPE TECHNOLOGY CO., LTD.

Opinion of the Court by Corrigan, J.

11

Third, if formal service of process is required under the

law of the sending forum, international transmission of service

documents must comply with the Convention. “[T]he

preemptive effect of the Hague Convention as to service on

foreign nationals is beyond dispute.” (Honda Motor, supra, 10

Cal.App.4th at p. 1049.) Thus, if the Convention applied here,

and assuming service by Federal Express constitutes a species

of service by mail,7 China’s objection to foreign mail service

under article 10(a) would preclude direct service via Federal

Express, regardless of whether California law authorized such

service.8

(See Water Splash, supra, 581 U.S. at p. __ [137 S.Ct.

at p. 1513].) “Failure to comply with the Hague Service

Convention procedures voids the service even though it was

made in compliance with California law. [Citation.] This is true

even in cases where the defendant had actual notice of the

lawsuit.” (Kott, supra, 45 Cal.App.4th at p. 1136.)

For the reasons discussed below, we conclude that the

parties’ agreement constituted a waiver of formal service of

process under California law. The parties waived formal service



7 Many of the cases refer to postal or mail service, while the

agreement here provided for service through Federal Express, a

private courier company. The parties do not argue that there is

any relevant difference between a governmental postal service

or private courier company. For purposes of this dispute, we

assume the Convention’s mail service provisions would apply in

the same manner to both.

8 At least one case has suggested that service via Federal

Express does not comport with California law because it does

not require a signed return receipt. (See Inversiones Papaluchi

S.A.S. v. Superior Court (2018) 20 Cal.App.5th 1055, 1066-

1067.)

ROCKEFELLER TECHNOLOGY INVESTMENTS (ASIA) VII v.

CHANGZHOU SINOTYPE TECHNOLOGY CO., LTD.

Opinion of the Court by Corrigan, J.

12

in favor of informal notification through Federal Express or

similar courier. Accordingly, the Convention does not apply in

this case.

B. Jurisdiction, Service of Process and Waiver

As we recognized over 160 years ago: “To sustain a

personal judgment the Court must have jurisdiction of the

subject-matter, and of the person. [Citation.] Where the

jurisdiction of the Court as to the subject-matter has been

limited by the Constitution or the statute, the consent of parties

cannot confer jurisdiction. But when the limit regards certain

persons, they may, if competent, waive their privilege, and this

will give the Court jurisdiction.” (Gray v. Hawes (1857) 8 Cal.

562, 568.) “Jurisdiction of the subject matter cannot be given,

enlarged or waived by the parties. . . . However, if the court has

jurisdiction of the subject matter, the rule is otherwise, and a

party may voluntarily submit himself to the jurisdiction of the

court, or may, by failing to seasonably object thereto, waive his

right to question jurisdiction over him. Process is waived by a

general appearance, in person or by attorney, entered in the

action, or by some act equivalent thereto, such as the filing of a

pleading in the case or by otherwise recognizing the authority of

the court to proceed in the action.” (Harrington v. Superior Court

(1924) 194 Cal. 185, 188-189, italics added.)

“ ‘Process’ signifies a writ or summons issued in the course

of a judicial proceeding.” (Code Civ. Proc., § 17, subd. (b)(7).)

“ ‘Service of process is the means by which a court having

jurisdiction over the subject matter asserts its jurisdiction over

the party and brings home to him reasonable notice of the

action.’ ” (Kappel v. Bartlett (1988) 200 Cal.App.3d 1457, 1464,

quoting Judicial Council of Cal., com., reprinted at 14 West’s

ROCKEFELLER TECHNOLOGY INVESTMENTS (ASIA) VII v.

CHANGZHOU SINOTYPE TECHNOLOGY CO., LTD.

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13

Ann. Code Civ. Proc. (1973 ed.) foll. § 413.10, p. 541; cf. Meza v.

Portfolio Recovery Associates, LLC (2019) 6 Cal.5th 844, 854.)

Thus, formal service of process performs two important

functions. From the court’s perspective, service of process

asserts jurisdiction over the person. “Unless a named defendant

agrees to waive service, the summons continues to function as

the sine qua non directing an individual or entity to participate

in a civil action or forgo procedural or substantive rights.”

(Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc. (1999)

526 U.S. 344, 351.) “The consistent constitutional rule has been

that a court has no power to adjudicate a personal claim or

obligation unless it has jurisdiction over the person of the

defendant.” (Zenith Corp. v. Hazeltine (1969) 395 U.S. 100, 110.)

From the defendant’s perspective, “[d]ue notice to the defendant

is essential to the jurisdiction of all courts, as sufficiently

appears from the well-known legal maxim, that no one shall be

condemned in his person or property without notice, and an

opportunity to be heard in his defence.” (Earle et al. v. McVeigh

(1875) 91 U.S. 503, 503-504.) Service of process thus protects a

defendant’s due process right to defend against an action by

providing constitutionally adequate notice of the court

proceeding.

Cases have recognized that one may waive both personal

jurisdiction and notice aspects of service. “[I]t is settled . . . that

parties to a contract may agree in advance to submit to the

jurisdiction of a given court, to permit notice to be served by the

opposing party, or even to waive notice altogether.” (National

Rental v. Szukhent (1964) 375 U.S. 311, 315-316.)

With respect to personal jurisdiction, “ ‘ “[d]ue process

permits the exercise of personal jurisdiction over a nonresident

ROCKEFELLER TECHNOLOGY INVESTMENTS (ASIA) VII v.

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Opinion of the Court by Corrigan, J.

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defendant . . . ,” ’ inter alia, when the defendant consents to

jurisdiction. [Citations.] ‘A party, even one who has no

minimum contacts with this state, may consent to jurisdiction

in a particular case.’ [Citations.] . . . [¶] Agreeing to resolve a

particular dispute in a specific jurisdiction, for example, is one

means of expressing consent to personal jurisdiction of courts in

the forum state for purposes of that dispute.” (Szynalski v.

Superior Court (2009) 172 Cal.App.4th 1, 7-8.) “While subject

matter jurisdiction cannot be conferred by consent, personal

jurisdiction can be so conferred, and consent may be given by a

contract provision.” (Berard Construction Co. v. Municipal

Court (1975) 49 Cal.App.3d 710, 721.) As the high court has

recognized: “Because the requirement of personal jurisdiction

represents first of all an individual right, it can, like other such

rights, be waived. . . . A variety of legal arrangements have been

taken to represent express or implied consent to the personal

jurisdiction of the court. In National [] Rental[] v. Szukhent,

[supra,] 375 U.S. [at p.] 316 [], we stated that ‘parties to a

contract may agree in advance to submit to the jurisdiction of a

given court,’ and in Petrowski v. Hawkeye-Security Co., 350 U.S.

495 (1956), the Court upheld the personal jurisdiction of a

District Court on the basis of a stipulation entered into by the

defendant. In addition, lower federal courts have found such

consent implicit in agreements to arbitrate. [Citations.]

Furthermore, the Court has upheld state procedures which find

constructive consent to the personal jurisdiction of the state

court in the voluntary use of certain state procedures.”

(Insurance Corp. v. Compagnie Des Bauxites (1982) 456 U.S.

694, 703-704; see also Burger King Corp. v. Rudzewicz (1985)

471 U.S. 462, 472, fn. 14.)

ROCKEFELLER TECHNOLOGY INVESTMENTS (ASIA) VII v.

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Similarly with respect to notice, it has long been settled

that “[t]he due process rights to notice and hearing prior to a

civil judgment are subject to waiver.” (D. H. Overmyer Co. v.

Frick Co. (1972) 405 U.S. 174, 185.) The high court in Overmyer

affirmed the constitutionality of cognovit clauses, “the ancient

legal device by which the debtor consents in advance to the

holder’s obtaining a judgment without notice or hearing” (id. at

p. 176). Overmyer reasoned that, “[e]ven if, for present

purposes, we assume that the standard for waiver in a

corporate-property-right case of this kind is the same standard

applicable to waiver in a criminal proceeding, that is, that it be

voluntary, knowing, and intelligently made, [citations], or ‘an

intentional relinquishment or abandonment of a known right or

privilege,’ [citations], and even if, as the Court has said in the

civil area, ‘[w]e do not presume acquiescence in the loss of

fundamental rights,’ [citation], that standard was fully satisfied

here.” (Id. at pp. 185-186.) California courts have since applied

the voluntary, knowing, and intelligent standard to similar

waiver provisions. (See Isbell v. County of Sonoma (1978) 21

Cal.3d 61, 70; Capital Trust, Inc. v. Tri-National Development

Corp. (2002) 103 Cal.App.4th 824, 829-831; Commercial Nat.

Bank of Peoria v. Kermeen (1990) 225 Cal.App.3d 396, 401.)

C. California Statutes Regarding Service of Process

“A court of this state may exercise jurisdiction on any basis

not inconsistent with the Constitution of this state or of the

United States.” (Code Civ. Proc., § 410.10; see Cal. Const., art.

VI, § 10; Donaldson v. National Marine, Inc. (2005) 35 Cal.4th

503, 512.) Generally, “[e]xcept as otherwise provided by statute,

the court in which an action is pending has jurisdiction over a

party from the time summons is served on him as provided by

ROCKEFELLER TECHNOLOGY INVESTMENTS (ASIA) VII v.

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Opinion of the Court by Corrigan, J.

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Chapter 4 (commencing with Section 413.10).” (Code Civ. Proc.,

§ 410.50, subd. (a).) Code of Civil Procedure9

section 413.10

provides that “[e]xcept as otherwise provided by statute, a

summons shall be served on a person: [¶] . . . [¶] (c) Outside the

United States, as provided in this chapter or as directed by the

court in which the action is pending, or, if the court before or

after service finds that the service is reasonably calculated to

give actual notice, as prescribed by the law of the place where

the person is served or as directed by the foreign authority in

response to a letter rogatory. These rules are subject to the

provisions of the Convention on the ‘Service Abroad of Judicial

and Extrajudicial Documents’ in Civil or Commercial Matters

(Hague Service Convention).” (§ 413.10, subd. (c).) “A summons

may be served on a person outside this state in any manner

provided by this article or by sending a copy of the summons and

of the complaint to the person to be served by first-class mail,

postage prepaid, requiring a return receipt.” (§ 415.40; see

§ 415.30 [service by mail].) Other prescribed statutory methods

of service include personal service (§ 415.10) and leaving

documents at an office, dwelling, or mailing address (combined

with a subsequent mailing) (§ 415.20). A corporation may be

served by presenting documents to its president or chief

executive officer, among others. (§ 416.10, subd. (b).)

The present case arises out of Rockefeller’s attempt to

confirm an arbitration award. “Any party to an arbitration in

which an award has been made may petition the court to

confirm, correct or vacate the award. The petition shall name



9 Subsequent statutory references are to the Code of Civil

Procedure unless otherwise noted.

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Opinion of the Court by Corrigan, J.

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as respondents all parties to the arbitration and may name as

respondents any other persons bound by the arbitration award.”

(§ 1285; see §§ 1288 [time limits for serving and filing petitions],

1290 [“A proceeding under this title in the courts of this State is

commenced by filing a petition”].) “If a petition or response

under this chapter is duly served and filed, the court shall

confirm the award as made, whether rendered in this state or

another state, unless in accordance with this chapter it corrects

the award and confirms it as corrected, vacates the award or

dismisses the proceeding.” (§ 1286.) “A petition under this title

shall be heard in a summary way in the manner and upon the

notice provided by law for the making and hearing of

motions . . . .” (§ 1290.2; see § 1005, subd. (b) [service of

motions].)

Of particular relevance here are sections 1290.4 and 1293.

Section 1290.4, subdivision (a) requires that “[a] copy of the

petition and a written notice of the time and place of the hearing

thereof and any other papers upon which the petition is based

shall be served in the manner provided in the arbitration

agreement for the service of such petition and notice.” (Italics

added.) Subdivision (b) provides that if an arbitration

agreement “does not provide the manner in which such service

shall be made and the person upon whom service is to be made

has not previously appeared in the proceeding,” a person in

California shall be served “in the manner provided by law for

the service of summons in an action,” or upon a person outside

the state “by mailing the copy of the petition and notice and

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other papers by registered or certified mail.”10

(§ 1290.4, subd.

(b).)

Under section 1293, “[t]he making of an agreement in this

State providing for arbitration to be had within this State shall

be deemed a consent of the parties thereto to the jurisdiction of

the courts of this State to enforce such agreement by the making

of any orders provided for in this title and by entering of

judgment on an award under the agreement.” This statute

codified our decision in Frey & Horgan Corp. v. Superior Court

(1936) 5 Cal.2d 401, which involved a California corporation’s

attempt to enforce a contractual arbitration agreement against

an out-of-state corporation. Frey reasoned: “The contracts

having been made with direct affirmative reference to the right

of arbitration, and particularly with reference to the laws of

California, the provisions of [former] section 1282 of the Code of

Civil Procedure [pertaining to petitions to compel arbitration]

should be read into the contracts as part thereof. The agreement

to submit the dispute to the arbitration committee is an

agreement to cooperate in that proceeding. It is presumed that

the contract was made in good faith. Therefore it was an

agreement to submit to the jurisdiction within which the

arbitration must operate in order to give it the effect

contemplated by the contract and by the law.” (Frey & Horgan

Corp., at pp. 404-405.) A later case clarified that Frey’s

reasoning applied to proceedings to confirm an arbitration

award: “That ‘effect’ [noted in Frey], we are satisfied, includes



10 Section 1290.4, subdivision (c) concerns service where an

arbitration agreement does not specify a method of service but

the person has previously made an appearance or been served.

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not only the enforcement of arbitration agreements and the

conduct of arbitration proceedings, but the enforcement of the

award resulting from such arbitration in the manner provided

by California law. To hold otherwise would be tantamount to a

refutation of the principle of the Frey & Horgan case, and would

amount to an emasculation and frustration of the purpose and

objectives of the arbitration laws of this state.” (Atkins, Kroll &

Co. v. Broadway Lbr. Co. (1963) 222 Cal.App.2d 646, 653.)

D. The Parties Waived Formal Service of Process Under

California Law

As discussed ante, formal service of process involves two

aspects: service as a method of obtaining personal jurisdiction

over a defendant and formalized notification of court

proceedings to allow a party to appear and defend against the

action. For the reasons discussed below, we conclude the parties

here, by agreeing to the MOU, waived both aspects.

With respect to personal jurisdiction, paragraph 7 of the

MOU expressly stated “[t]he Parties hereby submit to the

jurisdiction of the Federal and State Courts in California . . . .”

Further, in paragraph 8, the parties agreed to submit all

disputes “to the Judicial Arbitration & Mediation Service in Los

Angeles for exclusive and final resolution . . . pursuant to

California law . . . .” “Code of Civil Procedure section 1293 . . .

gives California courts personal and subject matter jurisdiction

to enforce arbitration agreements formed in California.”

(Boghos v. Certain Underwriters at Lloyd’s of London (2005) 36

Cal.4th 495, 504.) The parties’ agreement to exclusively

arbitrate any disputes in California constituted consent to

submit to the jurisdiction of California courts to enforce that

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agreement, including “by entering of judgment on an award

under the agreement.” (§ 1293.)

With respect to notice, paragraph 6 of the MOU stated the

parties “shall provide notice in the English language to each

other at the addresses set forth in the Agreement via Federal

Express or similar courier,” while paragraph 7 clarified the

parties “consent to service of process in accord with the notice

provisions above.” Construed in tandem, these provisions leave

little doubt the parties intended to supplant any statutory

service procedures with their own agreement for notification via

Federal Express. Section 1290.4, subdivision (a) gives effect to

such an agreement by requiring that documents “be served in

the manner provided in the arbitration agreement for the

service of such petition and notice.” That is, section 1290.4,

subdivision (a) authorizes parties to an arbitration agreement

to waive otherwise applicable statutory requirements for service

of summons in connection with a petition to confirm an

arbitration award and agree instead to an alternative form of

notification, which is exactly what the parties did in paragraph

6 of the MOU.

The MOU’s language confirms the parties’ intent to

replace “service of process” with the alternate notification

method specified in the agreement. This circumstance

distinguishes Abers v. Rohrs (2013) 217 Cal.App.4th 1199,

which construed section 1290.4, subdivision (a). Abers involved

leases with arbitration clauses that included a provision stating

notices could be sent by mail. The homeowners in that case filed

a petition to vacate an arbitration award and mailed it to the

opposing party. Abers rejected the homeowners’ claim that the

mailing satisfied section 1290.4, subdivision (a): “Their

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argument fails because it conflates the concept of providing

notice with the concept of serving process.” (Abers, at p. 1206.)

“Because paragraph 16 of the parties’ leases governs only notice,

and not service, it does not qualify as a provision which specifies

the manner in which a petition to vacate an arbitration award

may be served. Consequently, the homeowners’ reliance on

those notice provisions as a means of demonstrating proper

service of the petition necessarily fails.” (Id. at pp. 1206-1207.)

By contrast here, the MOU not only contemplated that

notifications be sent via Federal Express, but also that such

notifications would take the place of formal service of process.

It is true that section 1290.4, subdivision (a) refers to

“service,” but we do not agree the mere use of that word controls

whether the statute is referencing formal service of process. In

re Jennifer O. (2010) 184 Cal.App.4th 539 (Jennifer O.), which

involved a juvenile dependency proceeding, faced an analogous

issue. The father, who lived in Mexico, was mailed a notice of a

hearing. Noting that Welfare and Institutions Code section 293,

subdivision (e) required “[s]ervice of the notice,” the father

argued compliance with the Hague Service Convention was

required. Jennifer O. rejected the claim, observing that the high

court in Volkswagenwerk “held that despite the provision’s

broad language, the Convention applied only to service of

process in the technical sense . . . .” (Jennifer O., at p. 549.)

Noting that the father had already made a general appearance

in the case, Jennifer O. concluded that, notwithstanding the

statutory language, “[s]ervice of notice on appellant of the sixmonth review hearing by first-class mail fully complied with

California law . . . .” (Id. at p. 550; see Kern County Dept. of

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Human Services v. Superior Court (2010) 187 Cal.App.4th 302,

308-311 (Kern County).)

Our conclusions as to California law are narrow. When

parties agree to California arbitration, they consent to submit to

the personal jurisdiction of California courts to enforce the

agreement and any judgment under section 1293. When the

agreement also specifies the manner in which the parties “shall

be served,” consistent with section 1290.4, subdivision (a), that

agreement supplants statutory service requirements and

constitutes a waiver of formal service in favor of the agreed-upon

method of notification. If an arbitration agreement fails to

specify a method of service, the statutory service requirements

of section 1290.4, subdivisions (b) or (c) would apply, and those

statutory requirements would constitute formal service of

process. We express no view with respect to service of process

in other contexts.

E. The Hague Service Convention Does Not Apply

As the high court clarified, “[t]he only transmittal to which

the Convention applies is a transmittal abroad that is required

as a necessary part of service.” (Volkswagenwerk, supra, 486

U.S. at p. 707.) Whether transmittal abroad is required as a

necessary part of service depends on state law. Because the

parties agreed to waive formal service of process under

California law in favor of informal notification, “this case does

not present an occasion to transmit a judicial document for

service abroad within the meaning of Article 1” of the Hague

Service Convention. (Id. at pp. 707-708; see Kern County, supra,

187 Cal.App.4th at pp. 308-311; Jennifer O., supra, 184

Cal.App.4th at pp. 549-550.)

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Contrary to SinoType’s arguments, this conclusion does

not authorize circumventing the Hague Convention where the

Convention would otherwise apply. We merely recognize that

this case falls “outside the scope of its mandatory application,”

as the Convention has been interpreted in Volkswagenwerk.

(Volkswagenwerk, supra, 486 U.S. at p. 706.) SinoType’s

arguments are similar to the arguments for broader mandatory

application of the Convention made in Volkswagenwerk. The

high court rejected those arguments, as do we. (See id. at pp.

702–705.)

Holding that the Convention does not apply when parties

have agreed to waive formal service of process in favor of a

specified type of notification serves to promote certainty and

give effect to the parties’ express intentions. Conversely, to

apply the Convention under such circumstances would sow

confusion and encourage gamesmanship and sharp practices.

As one court observed, “precluding a contractual waiver of the

service provisions of the Hague Convention would allow people

to unilaterally negate their clear and unambiguous written

waivers of service by the simple expedient of leaving the

country.” (Alfred E. Mann Living Trust v. ETIRC Aviation

S.A.R.L. (N.Y.App.Div. 2010) 78 A.D.3d 137, 141; see Masimo

Corp. v. Mindray DS USA Inc. (C.D.Cal. Mar. 18, 2013, No.

SACV 12-02206- CJC(JPRx)) 2013 U.S.Dist.LEXIS 197706, at

pp. *13-14.) Nothing in the language or history of the

Convention suggests any intent for the treaty to be abused in

such a manner.

Likewise, our conclusion promotes California’s “longestablished and well-settled policy favoring arbitration as a

speedy and inexpensive means of settling disputes. [Citation.]

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This policy is reflected in the comprehensive statutory scheme

set out in the California Arbitration Act. (§ 1280 et seq.) The

purpose of the act is to promote contractual arbitration, in

accordance with this policy, as a more expeditious and less

expensive means of resolving disputes than by litigation in

court. [Citation.] ‘Typically, those who enter into arbitration

agreements expect that their dispute will be resolved without

necessity for any contact with the courts.’ ” (Hightower v.

Superior Court (2001) 86 Cal.App.4th 1415, 1431; see Mercury

Ins. Group v. Superior Court (1998) 19 Cal.4th 332, 342.)

Requiring formal service abroad under California law where

sophisticated business entities have agreed to arbitration and a

specified method of notification and document delivery would

undermine the benefits arbitration provides. Uncertainty with

respect to service would require court intervention to resolve,

increase the time and cost of dispute resolution, and potentially

call into question long-final arbitration awards. Such a result

appears contrary to the Legislature’s attempts to position

California as a center for international commercial arbitration.

(See Credit Lyonnais Bank Nederland, N.V. v. Manatt, Phelps,

Rothenberg & Tunney (1988) 202 Cal.App.3d 1424, 1434.)

The judgment of the Court of Appeal is reversed. The matter is remanded for the resolution of unadjudicated issues.