Thanks for your comment, Michael! I am not sure Rule 4(f)(3) has or should have a “reasonable diligence” requirement, though some courts say it does. But there is, I think, a diligence requirement built in to Article 1 of the Convention, and thus, in effect, you need to use reasonable diligence before you resort to Rule 4(f)(3), in a Convention case.

That being said: while the law is what it is, I wonder why we should not expect Chinese defendants, especially represented Chinese defendants in Schedule A cases, to waive service, or for the lawyers to agree to accept service. I’m as keen as anyone that US courts should not allow litigants to violate the Service Convention, but why insist on strict compliance with the Convention when you don’t have to? The situation is different in cases where there is a real barrier to service, e.g., a case where the foreign state might refuse to execute a request for service, or where there is some immunity from process or suit, etc.

On the “doing homework” side of things, I hope that courts (at least those somewhat willing to put lip service to “address not known” and “reasonable diligence” under 4(f)(3)) stop falling for the plaintiffs’ bar’s lame “I googled it and didn’t find nothing” submissions.

In the age of AI – Claude, ChatGPT, Lexis Protege and my new personal favorite in this area Baidu’s Ernie – it has become so much easier to be “reasonably diligent” in searching for and validating China-based addresses. Hopefully, the ubiquity of AI Chatbots raises the bar for courts looking at this issue.

The transliterations listed on Amazon are often easily reverted back to Chinese characters. Ernie also does a pretty good job of searching QCC, Tianyancha and other Chinese-language government databases that are otherwise REALLY challenging for non-Chinese speakers. Where the location of exact Chinese characters is difficult based on the transliteration, adding in an Amazon-listed seller address in China often closes the loop.

Hopefully, courts realize that resort to AI assistance in searching for Defendants’ addresses is eminently reasonable under the circumstances and stops pretending that Plaintiff’s have been diligent in searching databases that are not even accessible in China.

Full disclosure – I’ve defended many Chinese e-sellers accused of infringement in “Schedule A” cases.

There should be one agreed answer to whether email is part of the postal channel, but the C&R on the topic is not self-evidently right. I like the “email is mail” metaphor, for reasons I’ve explained. But I also see the appeal of observing that all of the alternate methods of service in Article 10 have authorized people in the loop. In the early days of email there was some thought that postal services would offer e-post service. It generally hasn’t worked out that way. It’s fair to ask whether something can be “postal” without a postman.

Glad you like the haiku!

But had they done their homework and been unable to find an address, then the Convention wouldn’t apply in the first place. That would make 4(f)(3) e-service completely valid.

One thing the 2d Cir. opinion gets wrong is the contention that e-mail is not a postal channel. The HCCH has much to say on the subject, as you’ve covered extensively. Thankfully, this is just dicta.

In any event, it’s too bad SmartStudy’s counsel weren’t smart enough to study what we’ve written. Or to pick up the phone and spend ten minutes getting our thoughts.

(Spectacular haiku!)