Comments on: Minyao Wang on Service By Email

By: Ted Folkman

Ted Folkman — Fri, 06 Aug 2021 17:54:59 +0000

In reply to kotodama. Well, not everyone agrees with me!

By: kotodama

kotodama — Fri, 06 Aug 2021 17:17:19 +0000

In light of Ted’s reply to Bill, I think my framework proposed initially doesn’t work. That’s just my lack of expertise showing! But I still don’t believe the Rule can override the Convention like that.

By: kotodama

kotodama — Fri, 06 Aug 2021 17:14:11 +0000

Fascinating post! I come to this with no particular expertise, but I tend to side with attorney Folkman. The way I look at it, you could have three different categories of service methods: (1) authorized by int’l agreement (e.g., Hague), (2) prohibited by int’l agreement, and (3) not authorized, by also not prohibited by int’l agreement. In that framework, Rule 4(f)(3) would still serve a purpose in enabling the use of methods falling in the last category. Maybe in practice the last category is minuscule or nonexistent, I have no idea. But in theory at least it seems to give the Rule a role to play that’s consistent with its text and structure. And it avoids what I agree seems to be the bigger “nullification” problem of undermining the Convention’s basic functionality.

On the alternate basis in the second-to-last paragraph, I further agree it would seem to moot the whole issue anyway.

And finally, I agree the fact of service on U.S. counsel adds an intriguing wrinkle and I look forward to any later post exploring that angle.

(Forgive me for one very pedantic aside, but in the second-to-last paragraph, wouldn’t it be slightly more accurate to say “On the flip side, this means that email service should be permissible for countries that have not *availed themselves of Article 10(a)’s objection procedure*.”? The post is otherwise generally written quite nicely and easy to follow—especially for a nonexpert like me. Well done!)

By: Ted Folkman

Ted Folkman — Fri, 06 Aug 2021 13:58:29 +0000

In reply to Bill Dodge. Bill, that is an interesting practical suggestion. But it does buy into the erroneous premise that anything that is not forbidden under the Convention is permitted, when in fact the opposite is true: anything that is not permitted is forbidden. (At least that is what I understand Volkswagen to mean, and it's the view of the Special Commission). To me, the first step is to ask: is email within the definition of "postal channels?" There are arguments on both sides of this question. On the one hand, if you look at the Universal Postal Convention (Art. 37), it seems clear that private, commercial email as we know it is not the kind of electronic postal service that likely would be considered as postal. On the other hand, the Special Commission's 1964 report suggests that telegraph transmission is within the postal channel. If email is not within the postal channel, then that's the end of the question. If it is postal, then I think the next step is to look at the wording of the declarations that already exist. If a state has objected to all service under Article 10(a), then it is (to me, but not to many US judges!) difficult to see why it should be necessary to state that the objection extends also to email. After all, the question only arises if we have already decided that email is within the postal channel. I also think that in practice it would be many years before one could expect many states to revise their declarations. Some of these issues were discussed at the 2019 HCCH a|Bridged event: the papers are available here.

By: Bill Dodge

Bill Dodge — Thu, 05 Aug 2021 21:18:50 +0000

Minyao or Ted, could countries that object to service by email amend their declarations with respect to Article 10(a) to include an objection to email specifically? If so, this would seem to be an easy solution. And further, if this is so, countries that have not expressly objected to service by email might reasonably be considered not to have objected under Article 10(a).

By: Ted Folkman

Ted Folkman — Thu, 05 Aug 2021 14:24:20 +0000

Thanks for this post, Minyao! As we’ve discussed, I think your reading of Rule 4(f)(3) is incorrect. There are cases that make it clear that the Rule is not meant as a “last resort,” and there is no requirement of first resort to the Convention, although some courts in their discretion do require plaintiffs to try the Convention first. But more fundamentally, your view that “an alternative method of service that is not expressly prohibited by the Hague Convention can be authorized by Rule 4(f)(3)” is backwards. The Convention is exclusive (that’s the holding of Volkswagen). In other words, when it applies, you have to use one of the methods it authorizes or at least permits. That view is more or less universal and is reflected not just in US law but in the conclusions and recommendations of the Special Commission of The Hague Conference and in the Practical Handbook. But if it is any comfort, many more US judges seem to agree with you than with me!