Thanks for the comment, Ralph! I agree that we have done a better job of preserving the common law on this point as with some others. One of the great advantages of our written constitution.

I don’t think much of Justice Thomas’s view. If a migrant comes here illegally, having left his home and with the intention of staying here permanently, why would we think his domicile is not here? And with regard to dual citizenship or allegiance, can it really be that a foreign state can say who is or is not a US citizen by fiddling with its own citizenship law? I think this is a question with an easy legal answer, an answer that was self-evident for many decades until politics got in the way.

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.

Good point!

Also because in the UK a defamation case has to be filed within a year, and this was broadcast Oct 24.

Also, I don’t mind criticism at all—I welcome it—but if you are going to write that I “often veer into caricature or half-truth,” perhaps tell me who you are?