Interesting, Aaron! I think, though, that in light of the discussion in ¶ 58 of the Practical Handbook (4th ed.), it wouldn’t be surprising if Australia, a common law country, treated the matter as civil or commercial.

It’s not a civil or commercial matter. Based on my limited knowledge if the case, it seems to me that it’s an administrative or quasi-criminal matter, which puts service outside the Convention.

A rough analogy is the refusal by some German states to serve documents in cases involving punitive damages in split-recovery jurisdictions here in the U.S. It’s not an implausible argument to say that where the state takes action to punish a defendant, it’s no longer a civil or commercial case.

Perhaps I’m just missing how this constitutes a civil matter.

I am curious for Jeanne’s views on this. My thought is that COVID-19 doesn’t change the basic rule, which is that a method must be authorized or permitted by the Convention and authorized by the law of the forum.

My view on service by email has softened over time. Of course, service by email is never permissible in countries that have objected to service under Article 10(a) of the Convention, because if any provision of the Convention permits service by email, it is Article 10(a), on the theory that email is the functional equivalent of the traditional post. So in countries like the United States that have not objected to service under Article 10(a), the question is whether it is fair to treat private email as within the definition of “postal channels.” While I still think the better view is that ordinary private, commercial email is not within the postal channel because it does not involve any officials of the sending state or the receiving state, I see the advantages of the contrary argument. The main advantage is avoiding freezing the Convention in the past as the world moves towards the use of electronic means for even the most important communications. And the consensus view has long been that private courier services such as FedEx are within the postal channel for purposes of the Convention, though there it is possible, at least in the United States, to construct an argument based on the statutes authorizing private courier services as an exception to the ordinary government monopoly on postal service.

I would also point out that the typical American solution to the problem the case presents is to say that the Convention does not apply, because service by email on a foreign litigant’s lawyer in the forum state does not involve transmission of a judicial document abroad. This raises textual difficulties in the United States, since under FRCP 4(f)(3) a court may authorize alternate methods of service only when the service is to be made outside a judicial district of the United States. I defer to Australian lawyers as to whether there is a similar problem under Australia’s civil procedure law.