Thanks, Tom, for that detailed comment!

I am not sure you are right to say that the Permanent Bureau has not taken a position on this, or at least expressed a view. While the new Practical Handbook discusses the issues and notes the differing opinions, it ultimately concludes that service by email is permissible under Article 10(a) “to the extent that documents are sent by postal agencies,” and it notes that the requirement of postal agency involvement “would ensure that the transmission has the ‘postal’ character provided for under Article 10(a) …” (Annex 8, ¶¶ 36-37). Moreover, it continues by looking to the UPC, just as I did, to help understand what counts as “postal.” So while there is room for debate, I think my view is supported by the Permanent Bureau’s Practical Handbook.

Also, I do not think you are correct to distinguish postal service from email by pointing out that postal service contemplates a receipt showing delivery. While US procedural law (e.g., FRCP 4(f)(2)(C)(ii)) may require a receipt for the validity of the service, ordinary first-class mail does not come with a receipt, and if a party obtains leave to serve process by first-class mail under FRCP 4(f)(3), it seems to me that the service would be valid, because nothing in Article 10(a) requires a receipt.

Article 10(a) of the Hague Service Convention concerns the transmission of judicial documents via “postal channels;” a term that is not further defined. The Permanent Bureau on the Hague Conference has taken the position that “private couriers” of judicial documents (viz. Federal Express) constitute a method to transmit judicial documents via postal channels. (Practical Handbook at 70.) But the Permanent Bureau has been silent on whether email constitutes a postal channel for the transmission of judicial documents. After reviewing Article 14 of the Universal Postal Convention (UPC), Mr. Folkman takes the position that email does not constitute a postal channel for the United States because email “ordinary commercially available e-mail does not fit within the definition of electronic mail service in the UPC.”

The problem with Mr. Folkman article is that the definitions in Article I of the UPC makes it clear that the scope of this convention concerns the transmission of physical items. Thus, it is not surprising that a subsequent Article in the UPC would exclude email as a postal channel. Moreover, the UPC which is not Hague Convention document can be traced back to an International Conference held in Ottawa in 1958 (the current version dates from 2012). Thus it seems that by selecting a definition for “postal channel” from the UPC was of necessity tantamount to stacking the deck against finding that email constitutes a postal channel within the meaning of Article 10(a) of the Hague Service Convention.

This is not to say that I disagree with Mr. Folkman’s conclusion; it is just that there are better arguments for considering email not to be a postal channel within the meaning of Article 10(a). For example, postal channels—whether governmental or private—contemplate that transmission of any documents within the channel will remain confidential. This clearly is not the case with email. Alternatively, the transmission of judicial documents under Article 10(a) contemplates that sender will receive some sort of confirmation that the documents were actually delivered to defendant. In the case of email, unless the defendant affirmatively acknowledges receipt, the sender receives no confirmation that the documents were delivered to the intended defendant.