The case of the day is Smart Study Co. v. Shenzhenshixindajixieyouxiangongsi (2d Cir. 2025). This is one we’ve been waiting for. For years I have been making the case that: (1) when the Service Convention applies (that is, when the defendant is to be served in a Convention state and when the defendant’s address is known), and (2) when the state of destination has objected to service by postal channels under Article 10(a) of the Convention, even if the objection does not expressly name service by email, then service by email is improper. The reason is simple:
- The Convention is exclusive, i.e., when it applies, you have to use one of the methods of service that it authorizes, or at least permits. That’s the holding of the Volkswagen case, and it’s the internationally agreed interpretation of the Convention.
- The only provision of the Convention that even arguably permits service by email is Article 10(a), which permits service via postal channels. If email is considered to be within the postal channel, the Article 10(a) permits service by email.
- But the Convention itself empowers states to object to service of process by the alternate means listed in Article 10(a). So when a state has objected to service of process by postal channels, email is not a method of service that the Convention authorizes or permits.
Or as I put it in my haiku back in 2020:
Limited methods.
Email is not on the list.
The plaintiff’s sad tears.
In today’s case, which I’ve written about before, the Second Circuit finally reached the question and, happily, decided it the right way. It began by noting the good reasons why plaintiffs want to serve process by email in China: service through the Chinese authority can be slow and sometimes can fail. I have to say I think that these problems are often overstated, though I would leave it to my colleague Aaron Lukken, who has “boots on the ground” on this issue in a way I don’t to say for sure.
Anyway, the court went on to adopt the argument I gave above. It expressly rejected the idea, expressed in several US decisions, that unless an Article 10 objection expressly mentions email, it does not prohibit service by email. That view, the court said, “clearly misconstrues” the Convention, because the Convention is exclusive. The court went on to note the way that Articles 11 and 19 of the Convention, which both provide for additional methods of service (when two contracting states agree—Article 11—or when a contracting state’s internal law permits other methods of service transmitted from abroad—Article 19—support its conclusion. Both articles would be superfluous if the Convention permitted methods of service other than those it expressly names.
So much for the Convention. What about US procedural law? FRCP 4(f)(3), the rule that allows court to authorize alternate methods of service outside the United States, expressly forbids methods that are contrary to international agreements (though it permits methods that are contrary to foreign internal law). There is no exigency exception in the rule, and in any event the plaintiff had not shown any real exigency. And contrary to the plaintiff’s arguments, FRCP 4(f)(2) did not authorize the service. That rule applies only “if there is no internationally agreed means, or if an international agreement allows but does not specify other means.” But that means it does not apply when the Convention applies, because the Convention does allow and specify means of service.
To mark the occasion, here is a new haiku:
Blogger's wish comes true.
Second Circuit gets it right.
Comity preserved.
I await the Seventh Circuit’s decision in a similar case, where I had the pleasure of submitting an amicus brief on behalf of friends of Letters Blogatory Bill Dodge and Maggie Gardner. I expect the case will come out the same way, and perhaps then the US courts will finally have a consensus on this important and longstanding Letters Blogatory issue.
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