INTRODUCTION

Late in his life, Arthur von Mehren took the lead in positioning The Hague as the forum for negotiations between the United States and Europe on matters of transnational litigation, albeit with mixed success. In this memorial essay, I will try to shed some light on recent German-American experiences under an already well-established Hague Convention, the Hague Service Convention of 1965 (hereinafter: Service Convention or HSC). The fact that Arthur von Mehren took a keen interest in these developments is shown by his contribution to the 2004 Hamburg symposium in honor of Hein Kötz, which was published posthumously last year. If an American plaintiff has to effect service of process in Germany, the Service Convention is the pertinent legal instrument. During the 1990s, international judicial assistance between the United States and Germany functioned smoothly because the German Constitutional Court had decided in 1994 that the mere risk of possibly having to pay punitive damages does not suffice to halt service of process. This rather liberal attitude met with considerable opposition from the German industry, although it was supported by the majority of German private international lawyers. In 2003, however, the Constitutional Court granted an interim order that protected the German media giant Bertelsmann AG from service of process in a suit filed by several competitors in the United States. The plaintiffs claimed $17 billion on the theory that Bertelsmann had, by giving loans to the internet file-sharing platform Napster, contributed to the infringement of the plaintiffs' copyrights.