The case of the day is Shelterzoom Corp. v. Goroshevsky (SDNY 2020). It’s the latest in the line of cases I love to hate, stemming ultimately from Gurung v. Malhotra: cases authorizing service of process by email in cases governed by the Hague Service Convention where the defendant is in a country that has objected to service under Article 10. Longtime readers will know this catechism by heart, probably, but just in case, here it is:
- The Convention is exclusive. If it applies, you must serve process using one of the methods of service it authorizes or at least permits.
- The only provision of the Convention that even arguably permits service of process by email is Article 10(a), which permits service via postal channels when authorized by the law of the forum.
- But Russia has objected to service by email. Therefore the service is no good. QED.
Since a sound and valid logical argument seems not to do the trick, I’ve put the basic idea into verse.
The Hague Convention has a little list
Of service methods from which you must choose.
Email appears nowhere on the list,
So if you serve by email, you should lose.
I’ve used a plain old English meter just because it’s familiar, but maybe someone could do it pithier in, say, a haiku:
Email is not on the list.
The plaintiff’s sad tears.
There is a twist in today’s case, because the defendant is in Russia, and Russia, as we know, has unilaterally halted cooperation with the United States under the Convention. In other words, Russia will not execute a request for service transmitted from the United States. So a plaintiff cannot effect service via the Russian central authority, and she also cannot effect service via the alternate methods in Article 10. What is the plaintiff supposed to do? These kinds of concerns, in my view, motivated the Gurung case and motivate decisions like today’s. But here we move from the realm of private international law (how do we manage the system of service of process to make it effective and efficient for private litigants?) to the realm of public international law (what are the United States’s treaty obligations to Russia, and how have they been affected by Russia’s intransigence in this area?) As I’ve suggested before, assuming Russia has breached the treaty, the United States can suspend the operation of the treaty as between it and Russia by notifying Russia of its claim and indicating the measures it proposes to take. But as far as I know, the United States has not done so. Maybe it should. But in any case, it seems to me that the treaty is still in effect as between the two countries.
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