Friends of Letters Blogatory Maggie Gardner and Bill Dodge have a great new paper on service by email under the Service Convention . The paper is a very good overview of the topic and very clear about the difference between service that the Convention authorizes and service that it permits and the exclusive or mandatory nature of the Convention. And happily but not surprisingly, it reaches the right conclusion: service by email is permissible, when the Convention applies, only if the state of destination has not objected to service by postal channels;¹With a caveat about Articles 11 and 19, which I mention below. and it may not be permissible then, depending on the view you take about whether email comes within the scope of the postal channel. I love flow charts, and this article has one—a helpful reference for judges and lawyers about how to think about the issue.

Bill and Maggie raise an interesting question about whether FRCP 4(f)(1) authorizes service by email when the receiving state has not objected to service by postal channels. This is not really a question just about service by email, but about service by any alternative means of service referenced in Article 10.

My own view is that the Convention authorizes only service via the main channel, i.e., via the central authority. It permits various alternatives, but it does not affirmatively authorize them. I think this is clear (at least in the US) from Water Splash v. Menon, where the Court said:

In short, the traditional tools of treaty interpretation unmistakably demonstrate that Article 10(a) encompasses service by mail. To be clear, this does not mean that the Convention affirmatively authorizes service by mail. Article 10(a) simply provides that, as long as the receiving state does not object, the Convention does not “interfere with … the freedom” to serve documents through postal channels. In other words, in cases governed by the Hague Service Convention, service by mail is permissible if two conditions are met: first, the receiving state has not objected to service by mail; and second, service by mail is authorized under otherwise-applicable law.

The implication is that yes, you do need leave of court to serve process by email under FRCP 4(f)(3). You might wonder why you don’t need leave to serve process via a solicitor in the UK, or via a process server in Canada, since in both cases the service is permissible under Article 10 of the Convention. The answer is that in those cases, the foreign process server is going to serve by a method that the foreign law authorizes in its own domestic actions (FRCP 4(f)(2)(A)) or delivering the papers to the defendant (FRCP 4(f)(2)(C)(i)).

But this raises its own problems. Bill and Maggie take the view that FRCP 4(f)(2) simply doesn’t apply when the Convention applies, since (they say) the Convention is not an agreement that “allows but does not specify other means.” That seems to me not to be right. Article 10 doesn’t actually specify the means of service. It provides for channels of transmission. This is clearest in Articles 10(b) and (c). Article 10(b) provides that documents can be transmitted for service by competent persons in the state of origin to competent persons in the state of destination, without specifying the method of service. Article 10(c) provides that documents can be transmitted for service by an interested person in the state of origin to competent persons in the state of destination, again without specifying the method of service. Article 10(a) provides that documents can be transmitted directly to the defendant through the postal channel without specifying the method of service. (It doesn’t specify whether the service must be by registered mail; it doesn’t specify whether a signature acknowledgment is required; etc.). At least that’s how I see it.²Let me complicate this view by pointing out that the 2024 conclusion and recommendation on this topic, which I covered in a post from July, says that article 10(a) includes transmission and service by email. But I would still want to say it doesn’t specify the method of service (e.g., who may send the email? Must there be proof of delivery? To whom may the email be sent to constitute good service?)

In this sense, Article 10 fits in nicely with the Convention as a whole. Even the main channel of transmission, the central authority, isn’t about specifying methods of service, but rather about specifying the channels through which you can transmit a document abroad for service.³Except for the provision in Article 5 that requires the central authority to serve process by a method specially requested, which I leave to the side as the exception that proves the rule.

Bill and Maggie are careful to note that two other provisions of the Convention, Articles 11 (on bilateral agreements) and 19 (on foreign law expressly providing for receipt of documents coming from abroad for service) could provide a basis for service by email. I am not sure how important either of those is in practice, but more fundamentally, I would note that both refer to methods of transmission of documents for service, not to methods of service. I don’t think I’d noticed that point before, and so I would be hesitant about relying on whatever I’ve written in the past on Article 19.

• 1
  With a caveat about Articles 11 and 19, which I mention below.
• 2
  Let me complicate this view by pointing out that the 2024 conclusion and recommendation on this topic, which I covered in a post from July, says that article 10(a) includes transmission and service by email. But I would still want to say it doesn’t specify the method of service (e.g., who may send the email? Must there be proof of delivery? To whom may the email be sent to constitute good service?)
• 3
  Except for the provision in Article 5 that requires the central authority to serve process by a method specially requested, which I leave to the side as the exception that proves the rule.