Last week we looked at the first sentence of paragraph 105 of the Conclusions and Recommendations of the 2024 Special Commission on the practical operation of the Service, Evidence, and Access to Justice Conventions. That sentence clarified that email is within the postal channel, and that therefore, service by email is permitted when authorized by the law of the forum and when the state of destination has not objected.

Today, let’s look at the remainder of paragraph 105, which reads as follows:

The SC reiterated that service by e-mail under Article 10(a) must meet the requirements established under Article 1 of the Convention, in particular that the addressee’s physical address in the State of destination is known. The SC noted that e-mail domains are not sufficient for locating the person to be served under Article 10(a).

The first sentence might puzzle American readers. Under FRCP 4(f)(3), the court can authorize service by alternate means such as email, even if that method of service violates the local law of the state of destination, but not if it violates the Convention. In practice, this means that if a foreign state has objected to service by postal channels and the Convention applies, a US court cannot authorize service by email, because the Convention is exclusive: it forbids what it does not expressly permit. Thus in US practice, if the Convention does not apply, a court is free to authorize service by email. So what is the point of asserting that you can only serve by email under Article 10(a) if the addressee’s address is known and the Convention applies?

I believe there are two things going on. The first is that in some states, the law of the forum may not permit service that violates the law of the state of destination. In those states, the C&R is saying that the rule I discussed in the last post, namely, that service by email is permitted in a state that hasn’t objected to service by email in the way the Convention prescribes, only applies when the Convention itself applies.

The second is that the C&R is talking explicitly about physical addresses, and it makes clear that it is the defendant’s physical address in the state of destination that determines whether the Convention applies. The C&R also notes, rightly, that the TLD of the recipient’s email address (the “.com” in google.com) is not enough to establish the recipient’s location. For one thing, TLDs like .com or .org are not national. For another thing, for the most part, I can get a domain name with a national TLD like .uk or .us or whatever, regardless of my residence.

Why the focus on physical addresses? At the Special Commission meeting, a delegate raised the following question: a plaintiff in state A sues a resident of state B in the courts of A and serves process by email. The defendant happens to be in state C when he receives and reads the email. What happens then? Whose objections to service by postal channels should apply? One answer is that this is not a new problem. Many traditional postal services offer forwarding service and even international forwarding services. The fact that the problem has gone unnoticed for a long time is a partial answer. It shows that the problem isn’t a reason to reject service by email any more than mail forwarding was a reason to reject service by post. A better answer is that the EU has already solved the problem in its recast Service Regulation, which is closely modeled on the Service Convention, and that looks to the state of the recipient’s domicile or habitual residence to decide where we should treat the electronic service as having been effected. Now, I took a look at the recast Service Regulation, and it doesn’t seem to say that explicitly. Nevertheless, that’s what I heard knowledgeable people say. Perhaps a knowledgeable European reader can expand on this point.

I think, therefore, that the C&R should be read to emphasize that when the physical address of the recipient is unknown, the Convention does not apply, and that when the physical address is known and service is by postal channels, the recipient should be deemed to be served at the place of residence or domicile, even if the recipient happens to be elsewhere when he receives the email.

I want to call to your attention one wonderful thing about the delegate’s question. The question of whether to look to the law of the defendant’s domicile or residence rather than the law of the place where the defendant happens to be when the e-mail is received is a fine question. But it never occurred to the delegate to ask questions that focus on the deeper problems of territoriality that email raises—problems about servers, protocols, and what actually happens “behind the scenes” when I send or receive an email. That is good news, because it shows that today we simply accept the metaphor of e-mail as mail, which is the main reason why the HCCH’s functional approach makes sense and why now is the right time to say that e-mail is part of the postal channel for Article 10 purposes. Readers may be interested to look back seven years to my comments at the Law’s Porosities conference, which dealt with the “e-mail is mail” metaphor in detail and suggested that the metaphor might justify a move towards treating email as part of the postal channel under Article 10. I was a lot more doubtful then than now about whether taking the step the Special Commission has taken was justified. But the favorable reaction of the civil law states at the Special Commission meeting has given me confidence that the conclusions and recommendations are on the right path.

Image credit: Ted Folkman