When Ted asked me to offer thoughts on developments in IJA in the coming decade, it took no brainstorming to come up with a topic. I drew from a panel at the Peace Palace in The Hague some 137 years ago (before a microbe obliterated travel), which Ted moderated. The topic of the conference: innovation under the Hague Service Convention. Ted’s Talk topic: the use of email (see the second video here) in service of process.
I offer not so much a prediction as an argument for the decade to come. Whether it will come to pass, I don’t know, but the idea of electronic service (i.e., electronic service directly to defendants)
should must be embraced worldwide, at least in countries that do not object to Article 10(a). Where 10(a) opposition is declared, authorities should provide a means of electronic submission of Article 5 Requests—as is already available here in the United States, in the People’s Republic of China, and in one of the newest Service Convention countries, the Philippines.
Direct electronic service doesn’t fit neatly into the Convention; the treaty was written in 1965, when email existed only in Gene Roddenberry’s imagination. If electronic service is acceptable, its validity necessarily arises from Article 10(a), the fun but widely misapplied bit about postal channels. Acceptance requires a conscious acknowledgment from the destination country that it is a valid means of service. It’s simple, really—all that needs to happen is for a handful of countries to specify to the Hague Conference that “in the view of (country), electronic means of communication are considered postal channels for the purposes of Article 10(a).”
To start off, the best candidates are all but identical in terms of function: the U.S., Canada, the U.K., Ireland, Australia …
- All are anglophone. (I see your hand up, Québec.)
- All accept 10(a).
- All have common law systems. (I see your hand up, Scotland. Settle down, Québec. Louisiana, hush.)
- All have fully developed economies with ubiquitous electronic communication channels.
Why would those legal systems not come to the conclusion the business world reached two decades ago? Electronic communication is a thing … and it should be recognized as a means reasonably calculated to give a defendant notice of a suit and an opportunity to refute its claims. (“Electronic communication” goes beyond just email—social media, messaging apps, etc. are included. Elaboration goes beyond the scope of this space.)
Although it might put a significant dent in my practice, I would love to see this course of events come about. Sure, there must be procedural safeguards in place—such as Rule 4(f)(3)’s court order requirement. Yes, there will always be evidentiary challenges—prove the defendant received it, counselor! And there will be the occasional defendant who legitimately does not have a presence on the internet—but that’s one guy out of a few million.
We’re all grown-ups here and can handle it. (In the video linked above, Ted delves into many reasons why.)
This is necessary progress.
Author’s Note: I’ve been an avid fan of Letters Blogatory since long before I launched The Hague Law Blog. I’ve always viewed Ted Folkman as the quintessential “practitioner-scholar-blogger.” He’s offered exceedingly kind encouragement to me and a host of other colleagues, and I’m incredibly honored to be asked to contribute here. Congratulations, Ted, on a fantastic decade, and thanks for your insight, guidance, and leadership in the field.