The Special Commission on the practical operation of the Service, Evidence, and Access to Justice Conventions has just completed its 2024 meeting and, at last, taken on the issue of service by email under the Hague Service Convention. Its conclusions are welcome and should have a significant influence on US courts’ decisions, which in recent years have been frequent, and frequently wrong.

I have been documenting these decisions at Letters Blogatory since the blog’s beginning in 2011, starting with the grandfather of erroneous cases on service by email, Gurung v. Malhotra (SDNY 2011), and continuing with more recent decisions that have started to get the question right, for example, Smart Study Co. v. Acuteye-US (SDNY 2022). I have also attended two meetings of the Special Commission as a participating observer. In 2014, the Special Commission let the issue lie. This year, the Special Commission finally addressed it and adopted conclusions and recommendations that—if properly understood—should help American courts get the question right.

What is a Special Commission, and why should you take its conclusions and recommendations seriously? Special Commissions are working meetings of experts that prepare draft Conventions and that “study all questions of private international law which come within the purposes of the Conference,” that is, the Hague Conference on Private International Law. See Statute of the HCCH, art. 8. The members of each Special Commission are officials from the member states of the HCCH and of non-member states that are parties to the conventions being discussed. The United States delegation was made up of officials from the State Department and the Justice Department. Observers like me from accredited groups can also attend and speak, but not vote.

The 1964 Special Commission prepared the text of the modern Hague Service Convention, and Special Commissions have met several times since, beginning in 1977 and most recently in 2009 and 2014, to discuss the practical operation of the Convention. So the reports of the Special Commissions’ proceedings, including the reports or conclusions and recommendations that they issue at the end of each meeting studying the practical operations of the Convention, are a very good source for understanding what the states that agreed to the Convention, including the United States, think it means.

Here is the first part of the Special Commission’s 2024 conclusions and recommendations on service by email:

105.     The SC noted that Article 10(a) includes transmission and service by e-mail, insofar as such method is provided by the law of the State of origin and permitted under the law of the State of destination.

There is more to this C&R, but this is the heart of it. This is not a simple sentence, and it’s made more difficult by the specialized and laconic language that you get used to if you read a lot of stuff published by the HCCH. A friend who has worked at the HCCH calls it “Hague-speak.” The meaning of this one sentence will not be immediately obvious to many American judges or lawyers. Let’s dig in.

“Article 10(a) includes transmission and service by email …” This phrase is the key to understanding the C&R. The Service Convention has a main channel of transmission, in which a competent authority in the forum state transmits the summons and complaint to the central authority of the state addressed, which then arranges for service on the defendant. But it also permits, without affirmatively authorizing, service by a few alternate means. These alternate means are found in Article 10 of the convention. Article 10(a) reads:

Provided the State of destination does not object, the present Convention shall not interfere with the freedom to send judicial documents, by postal channels, directly to persons abroad.

So what are “postal channels?” Everyone agrees that the US mail is part of the postal channel. But for many years, the Special Commission and the HCCH have made it clear that postal channels are not limited to the postal service itself. When the Convention was adopted in 1965, an authoritative report submitted to the Special Commission recognized that telegrams are part of the postal channel. In 2003, the Special Commission considered that private couriers such as Fedex or UPS are part of the postal channel because of their functional similarity with the mail. And the 2006 edition of the HCCH’s Practical Handbook on the Operation of the Service Convention stated that telegrams and telexes are also part of the postal channel, though that reference was dropped in later editions, no doubt due to these technologies’ obsolescence. But the key point is that “postal channels” should be understood functionally, and not formally. Private couriers, telegrams, and so forth work like the mail, and so the Convention treats them like the mail. Email is functionally like the mail, too, and so the same conclusion should apply.

Why is it important to say that email falls within Article 10(a) and thus within the scope of the postal channel? Because many US decisions reason, wrongly, that a state’s objection to service under Article 10(a) only constitutes an objection to service by email if the objection expressly mentions email. No provision of the Convention expressly authorizes or permits service by email (hardly a surprise, given that the Convention is nearly sixty years old), and so to these courts, service by email is generally permissible. But this reasoning fails to respect the exclusive nature of the Convention. Because the Convention is exclusive, you have to find a provision of the Convention that authorizes or at least permits a method of service you want to use, and the only basis for allowing service by email when the Convention applies is likening service by email to service by postal channels. By stating expressly that email is part of the post channel, the Special Commission has made this point even clearer and has also made it clear that an objection to service by postal channels is, ipso facto, an objection to service by email.

“… insofar as such method is provided by the law of the State of origin …” This part is easy. Everyone understands that the Convention does not authorize service by postal channels. It permits it, but only if the law of the forum authorizes it. In US federal courts, that means getting leave of court under FRCP 4(f)(3) to serve by email.

“… and permitted under the law of the State of destination.” This part is hard. It is the part of the C&R that US courts are most likely to misunderstand. Unlike the United States, many foreign states object to anyone except their own officials serving process in their territories. Why? Because unlike the United States, they regard service of process as a sovereign act that only a government official can do. And so ever since the first international convention on civil procedure, adopted at the first session of the Hague Conference in 1894 and signed in 1896, states have allowed the possibility of service by postal channels, but only when the law of the state of destination permits it (“la faculté prévue n’existe, que si les lois des Êtats intéressés … l’admettent”).

The 1896 Convention didn’t explain how the court in the sending state should know whether service by postal channels is forbidden by the law of the state of destination. The member states of the Hague Conference quickly moved to solve this problem. In the 1905 Convention on Civil Procedure, they provided that service by post was permitted unless the state of destination objected to or opposed service by post (“la faculté prévue n’existe que si … l’Etat sur le territoire duquel la signification doit être faite ne s’y oppose pas”). So the burden was on the state of destination to object or oppose rather than on lawyers and judges in the forum state to figure out what the foreign law permitted.

This provision allowing for service by postal channels unless the state of destination objects to it is the progenitor of today’s Article 10(a). (The French version shows the continuity with the older, French-only conventions: “La présente Convention ne fait pas obstacle, sauf si l’Etat de destination déclare s’y opposer à la faculté d’adresser directement, par la voie de la poste, des actes judiciaires aux personnes se trouvant à l’étranger”).¹Yes, I skipped over the 1954 Convention, which doesn’t add much to the discussion. The French, but not the English, version of the modern 1965 Convention improves on the 1905 Convention by making it clear that the state of destination must not only object but must declare its objection. And the modern Convention also explains how a state declares its objection: by informing the Ministry of Foreign Affairs of the Netherlands. These days, you can find a state’s objections to service by alternate means on the HCCH website.

So when we read that service by email must be “permitted under the law of the State of destination,” we should not conclude that US judges and lawyers need to exert themselves to figure out the law of the state of destination. Instead, considering the purpose and history of Article 10, they should simply look to the declarations the state of destination has made to see whether the state has objected to service by postal channels. Easy. Under Article 21 of the Convention, states are free to modify their declarations under Article 10 whenever they like. States that have already objected to service by postal channels and don’t want to permit email service need take no action. States that have not objected to service by postal channels but that wish to object to service by email may do so. States that have objected to service by postal channels but that wish to permit service by email, if there are any, may modify their declarations to suit their positions.

In summary, the C&R tells us that service by email is permissible under the Convention only when (1) it is authorized by the law of the forum, and (2) the state of destination has not objected to service by postal channels in the manner for objections spelled out in the Convention. When a state has objected to service by postal channels generally or to service by email specifically, and when the Convention applies, service by email is forbidden under the Convention and therefore forbidden under US law.

Because service by email has been a controversial topic in US courts for many years, I was surprised by the lack of controversy over the issue within the Special Commission. My sense was that there was a broad, or maybe universal, consensus on the basic question of email’s place within the scope of the postal channel. That is not to say that no points require further discussion. For instance: how do you deal with a person resident in State A who receives and reads an email while visiting State B? The conclusions and recommendations address that question, but I will save that discussion for a future post.

This is cross-posted at the Transnational Litigation Blog, with a few very minor changes. Thanks to Bill Dodge and Maggie Gardner for the helpful comments!

Image credit: Ted Folkman

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  Yes, I skipped over the 1954 Convention, which doesn’t add much to the discussion.