The case of the day is Pacific Worldwide, Inc. v. Ample Bright Development, Ltd. (S.D.N.Y. 2011). The Plaintiffs, Pacific Worldwide and Pacific International Alliance, are US apparel manufacturers. The defendants, Ample Bright Development, Ltd. and Fortune Enterprises, Ltd., are Hong Kong businesses that acted as the plaintiffs’ agents in Hong Kong. The facts of the dispute are not really material. Suffice it to say that Pacific sued the Hong Kong agents in New York, and served the summons and complaint via registered mail.
China, a party to the Hague Service Convention, has objected to service of process by mail, and on that basis the judge dismissed the case for insufficient service of process. But was she right? What is the status of service by postal channels in Hong Kong? China’s reservation reads:
3. to oppose the service of documents in the territory of the People’s Republic of China by the methods provided by Article 10 of the Convention.
But the United Kingdom did not similarly object to service by postal channels when the Convention came into force in Hong Kong, nor did China object to service by postal channels in Hong Kong when Hong Kong was returned to China. The new reservation reads:
With reference to the provisions of sub-paragraphs b and c of Article 10 of the Convention, documents for service through official channels will be accepted in the Hong Kong Special Administrative Region only by the Central Authority or other authority designated, and only from judicial, consular or diplomatic officers of other Contracting States.
Note that the reservation refers only to subparagraphs (b) and (c) of Article 10, not to subparagraph (a), which is the provision authorizing service by postal channels.
The State Department also takes the view that service of process by mail is permissible in Hong Kong: “Hong Kong did not make any reservations with respect to service by international registered mail or service by agent. However, Hong Kong advises that service by the Convention is the preferred method.”
So unless I am missing something, this appears to be a rare slip-up by the S.D.N.Y. I don’t blame the judge, though: the opinion suggests that the plaintiffs failed to challenge the defendants’ arguments on this point, so it seems that the defendants’ lawyers didn’t adequately brief the issue, though perhaps it would have been for nought, as the judge also found that it lacked personal jurisdiction under the New York long-arm statute.