Here, the State Department delivered the papers with a diplomatic note to the Russian embassy in Washington. I don’t know why the State Department did things that way. In any event, Russia argued that the court lacked personal jurisdiction because it had not been properly served. It argued that the service was improper because Russia refused delivery of the papers at the embassy, and thus it was not “appropriate,” to use the word of the regulation, to serve process at the embassy, especially in light of the inviolability of the embassy premises under the Vienna Convention.

The judge rejected Russia’s position. Some of his reasoning is not persuasive to me. For example, he argued that requiring service on the foreign ministry in Moscow instead of the embassy would make § 1608(a)(4) duplicative of § 1608(a)(3), which provides for service on the Foreign Minister. But that seems clearly wrong to me. Section 1608(a)(3) provides for service on the foreign minister by postal channels, while § 1608(a)(4) provides for service by diplomatic channels. Also, 1608(a)(3) calls for service on the foreign minister, a distinction that has been inportant in prior cases. ¹

He also reasoned that the regulation merely regulated the State Department’s internal processes and that a violation of the regulation—if there was a violation—would not render the service improper. But it seems to me that the contents of the regulation might be evidence of what the United States position is on the requirements of customary international law.

I agree with everything Bill writes in his post, though I think that the issue really boils down to the question of what customary international law has to say, a point the judge did not really address. The U.N. Convention on the Jurisdictional Immunities of States and Their Properties (which is not a binding treaty) suggests that service of process in the circumstances of cases like this must be by “transmission through diplomatic channels to the Ministry of Foreign Affairs of the State concerned.” But maybe the Convention doesn’t accurately state the customary international law on this point. Bill writes: “Even if one could show widespread practice limiting transmission of service through diplomatic channels to foreign ministries, one would have to show that such practice was followed from a sense of legal obligation (opinio juris) in order to establish a rule of customary international law.”

I don’t know the answer to the customary international law question. But surely the safer course is to transmit the document to the Foreign Ministry rather than the embassy, if only to avoid needless litigation about service.

1. The Kumar case suggests some uncertainty about Bill’s point that there is no Vienna Convention issue here. ︎

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The court denied the motion. The decision doesn’t fully explain the court’s reasoning, but it seems that the trouble was the notion that the documents were delivered “c/o Gallegos Trailers.” Let’s assume that Mr. Garcia was an authorized agent to receive service of process on behalf of Gallegos (the Mexican corporation) and let’s assume that Gallegos Trailers was a US subsidiary or affiliate with a Texas office and that Mr. Garcia just happened to be in Texas. If those are the facts, then the service would seem to be good under FRCP 4(h)(1)(B), which allows for service of process on a corporation “in a judicial district of the United States” by delivery of the documents “to an officer, a managing or general agent, or any other agent authorized by appointment … to receive service of process.” But what does it mean to be served “c/o” the subsidiary or affiliate? I have no idea, and neither did the judge. He wrote: “There are simply no facts alleged in the Complaint, the exhibits attached to Plaintiff’s motions , or any declaration or affidavit that Jesus Garza, an alleged ‘Legal & Compliance Employee’ for Defendant, was authorized to accept service on Defendant’s behalf ‘care of’ the separately incorporated entity Gallegos Trailers, Inc.”

There is no great point of law here, but there is a practical lesson. When you get a return of service from your process server, you don’t simply have to file it without reviewing it and asking the process server to make any appropriate clarifications or corrections. In fact, in cross-border cases where you’ve hired someone (a private process server, the sheriff, a huissier, or whomever), it’s probably a good idea to speak with him or her before the service to make sure you are on the same page about how the papers are to be served. It seems to me that the plaintiff’s case for service would have been much stronger had the return of service simply omitted the “c/o.” Then the question would simply be whether Mr. Garcia was an appropriate agent of the defendant. But now the plaintiff is stuck having to serve process via the Service Convention.

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The case of the day is Fuld v. Palestine Liberation Organization (S. Ct. 2025). I last wrote about the case when the Second Circuit denied a petition for a rehearing en banc, and friend of Letters Blogatory Maggie Gardner had an excellent post about the case at about the same time at the Transnational Litigation Blog. The claims in the case were brought by American victims of Palestinian terror attacks in Israel and an American victim of a stabbing attack in the West Bank. Both claims were brought under the Antiterrorism Act. The first set of victims won a judgment against the PLO and the Palestinian Authority for more than $600 million after a jury trial. The family of the second victim never made it to trial, as the District Court, after an appellate decision in the first case, ultimately held that it lacked personal jurisdiction in both cases.¹

The issue in the case was the constitutionality of the Promoting Security and Justice for Victims of Terrorism Act. That statute (18 U.S.C. § 2334(e)) is long and complicated. Suffice it to say that it creates jurisdiction in Antiterrorism Act claims brought by Americans if the PLO and the PA are continuing to engage in the “pay to slay” policy, under which they pay pensions to terrorists imprisoned for killing Americans or to the families of suicide bombers, and it creates jurisdiction if the PLO and the PA have premises or conduct activities in the US after a specified time (excluding their missions to the UN). If the statute is constitutional, then the court had personal jurisdiction in the two cases; but the PLO and the PA did not (the lower courts found) have sufficient contacts with the United States to satisfy ordinary personal jurisdiction test under the Due Process Clause. But the case was in federal court and arose under federal law. The question was whether the Fifth Amendment, which contains the Due Process Clause applicable in the case, has the same minimum contacts requirement as the Fourteenth Amendment, which contains the Due Process Clause that limits the jurisdiction of the state courts.

Ordinarily, the Federal Rules of Civil Procedure make it clear that the personal jurisdiction of the federal courts is coextensive with the personal jurisdiction of the courts of the state where the federal court sits.² More specifically, FRCP 4(k)(1)(A) provides that service of a summons on a defendant is sufficient to vest the court with personal jurisdiction if the defendant “is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.” But FRCP 4(k)(2) provides a residual federal jurisdiction if the claim arises under federal law, the defendant is not subject to personal jurisdiction in the courts of any state, and the exercise of jurisdiction is constitutional. And FRCP 4(k)(1)(B) provides for federal jurisdiction “when authorized,” as here, “by a federal statute.” So this is one of the rare cases where the courts have to consider whether the Fifth Amendment and the Fourteenth Amendment impose the same limitations on jurisdiction.

The Court, in a unanimous decision (two of the justices, Justices Thomas and Gorsuch, concurred in the judgment but did not join the Chief Justice’s opinion for the Court) reversed, holding that the statute was constitutional because the Fifth Amendment did not require the minimum contacts required under the Fourteenth Amendment, and because whatever the limitations on personal jurisdiction under the Fifth Amendment—if there are any—the statute did not exceed them.

My fear in advance of the decision was that the court would look to the original meaning of the words of the Due Process Clause at the time of ratification of the Bill of Rights, after the Revolution, and at the time of ratification of the Fourteenth Amendment, after the Civil War, and decide that the same words (or very nearly the same words) mean different things. That would have been a Bad Thing. Instead, the court did what I think, as a general rule, courts should do. It asked, “What is the Fifth Amendment for?” and “What is the Fourteenth Amendment for?” and let the answer to those questions guide the decision. The gist of the analysis is that the Fourteenth Amendment aims to regulate the jurisdiction of the states vis-à-vis each other (as well as to ensure fairness to defendants). But the Fifth Amendment has no analogous function, because the national government has no horizontal competitors. (Vertical competition with the states is regulated by Article III’s limitations on the federal courts’ subject-matter jurisdiction, and those limits weren’t in play here). I am okay with the analysis, though I do think that it would have been forward-looking at least to consider whether the Due Process Clause has a role in regulating the jurisdiction of American courts vis-à-vis foreign courts. Perhaps nothing would come of that, but there is an implicit international system of allocating jurisdiction among national courts, a point the court referenced when discussing the interests of foreign litigants in not being haled into an American court–see below. I also wonder whether the functional explanation the court gave is really strong enough to overcome what seems to me to be a very strong presumption: when two related statutes (or constitutional provisions) use the same words, we should require a very strong reason before holding that they don’t mean the same thing.

The court left for another day the limits of the Fifth Amendment, refusing the adopt the petitioners’ argument that the Fifth Amendment imposes no territorial limitations. It reasoned that whatever the limits are, the statute, which was narrowly drawn to provide a forum for cases with a clear nexus with the national interest and the private interests of American victims of terrorism, while not subjecting foreign defendants to US jurisdiction in a wide range of cases.

1. You might think this is odd, since the FSIA (28 U.S.C. § 1330(b)) provides that “personal jurisdiction over a foreign state shall exist as to every claim for relief over which the district courts have jurisdiction” under one of the exceptions to foreign sovereign immunity in the statute, provided the foreign state has been served with process. And Palestine is a state, right? Well, the United States does not recognize it as a state, and the court did not inquire any further into the point. Nor, it seems, was the PA eager to press the point. The question of Palestinian statehood comes up in lots of legal contexts (e.g., the ICC’s jurisdiction over alleged Israeli war crimes), and it certainly suits the PA to be a state in that context but not in this context. ︎
2. In this discussion I use the word “state” in the US sense, that is, “state of the United States.” ︎

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Section 1783 is (at least in my experience) rarely used. The statute provides:

A court of the United States may order the issuance of a subpoena requiring the appearance as a witness before it, or before a person or body designated by it, of a national or resident of the United States who is in a foreign country, or requiring the production of a specified document or other thing by him, if the court finds that particular testimony or the production of the document or other thing by him is necessary in the interest of justice, and, in other than a criminal action or proceeding, if the court finds, in addition, that it is not possible to obtain his testimony in admissible form without his personal appearance or to obtain the production of the document or other thing in any other manner.

The first question I ask lawyers who call me for help obtaining evidence abroad is: is the target a US national or resident?¹ Usually the answer is no. Sometimes it is yes, and then we have to consider whether it makes sense to use the statute. The answer is usually “no,” because many US nationals live abroad and do not return to the US regularly. In such cases, the subpoena (which the US court cannot enforce abroad) carries little oomph, and it is not practical or cost-effective to try to monitor the witness’s travel for purposes of bringing contempt proceedings. I say the answer is usually “no.” In fact, I do not think I have ever seen a case where I recommended using the statue. But as today’s case shows, sometimes people try.

The statute has three requirements. First, the witness has to be a US national or resident. Second, the subpoena has to be necessary in the interests of justice (this is traditional language from traditional letters rogatory). Third, there must be no other way to obtain the evidence in a form admissible at trial.²

The judge reviewed the sparse precedent on the statute. “Necessary in the interests of justice,” he wrote, is a squishy analysis that looks at the totality of the circumstances. He held that the evidence was necessary in the interests of justice, for reasons that I am not going to focus on here. The key, though, was whether the intervenors had shown that there was no other way to obtain the evidence. The problem is that Greece is a party to the Evidence Convention. On this point, the intervenors say that pursuing that route would take longer than the case schedule permits. I question whether proceedings under § 1783 would, in practice, lead to obtaining the evidence any quicker. But the intervenors had sought to issue other letters of request under the Convention in the case, which the judge thought undercut their argument. The judge also pointed out that the intervenors had not shown any efforts to obtain Kanelos’s evidence without compulsion, either in Greece or elsewhere. Note that Greece has not objected to the non-compulsory methods of Chapter 2 of the Convention (for our purposes, notably, depositions by a commissioner and consular depositions). To the contrary, Greece has declared, under Article 18, that commissioners etc. can apply for compulsory aid under Greek law.

Let me add one procedural wrinkle about § 1783. The statute requires that the subpoena be served under FRCP 4, and the Service Convention requires that it be served by a method authorized or permitted under the Convention (because the subpoena is a judicial document). Greece does not permit service by alternate means under the Convention, and so even if FRCP 4 permits service by post in the circumstances, the intervenors would have to request that the Greek central authority serve the subpoena. Again, I question whether any of this is faster than making a request under the Evidence Convention.

1. Actually, that’s the second question. The first question is: have you exhausted efforts to obtain the evidence via ordinary US discovery methods? Even when the target is not a party to the litigation, there are many cases in which the evidence is within the control, if not the possession, of a party. For example, the foreign target may be a professional advisor to the party, or may have some commercial relationship in which the party has a right to obtain information from it. It is always a good idea to consider this possibility, even if it means you will not then have the occasion to consult with me! Of course, the foreign law/Aérospatiale issue can arise, in which case you might need my advice after all. ︎
2. For my civil law readers: this is mostly a reference to the common law rule against hearsay, which we still use in the United States, though I understand that in England, hearsay is generally admissible in civil cases. Gasp! The idea is that you shouldn’t accept evidence of what someone asserted as the truth unless the person who made the assertion is present in court, so that the jury can judge his or her credibility and so that he or she can be cross-examined. ︎

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GVG sought recognition and enforcement in Washington, but only against Guinea, not the PTRA. GVG sought entry of default one day after the deadline for Guinea to answer,¹ and the clerk entered the default. Guinea moved to set the default aside, and GVG moved for entry of default judgment. There was a service of process issue in the motions, but the court didn’t discuss it. The main issue was Guinea’s argument that the court lacked jurisdiction because it was not a party to the agreement to arbitrate.

This issue is interesting to me because it reminds me of an issue in my case from a couple of years ago against the government of Nigeria. In that case, there was no question that the Nigerian government was a party to the agreement. But in the arbitration, the claimants were the counterparty to the contract and its owner. Nigeria did not challenge the tribunal’s jurisdiction over his claim during the arbitration, and the award issued in favor of the business and the owner. But when we sought confirmation in Washington, Nigeria argued the court lacked jurisdiction, because the owner was not a party to the agreement. The court held, correctly, that that was a merits question (is there an exception to the rule of the New York Convention requiring confirmation where the owner did not sign the agreement in his individual capacity?) with a jurisdiction question (does the FSIA’s arbitration exception to foreign sovereign immunity apply in this situation?)

But is that also the rule when it’s the foreign state, not the private party, whose status as a party to the agreement to arbitrate is in question? No, it’s not, as the court held in today’s case. The FSIA’s exception applies to cases

in which the action is brought, either to enforce an agreement made by the foreign state with or for the benefit of a private party to submit [the dispute] to arbitration …

The court doesn’t put it this way, but the best reading of the statute, in my view, is that it does require that the foreign state be a party to the agreement but does not require that the private party be a party (or intended third-party beneficiary) of the contract. It says “a” private party, not “the” private party. If you’ll indulge me, here is how I put it in the DC Circuit brief (the case settled before oral argument):

The FSIA requires “an agreement made by the foreign state with or for the benefit of a private party.” 28 U.S.C. § 1605(a)(6). It does not require an agreement made by the foreign state with or for the benefit of the claimant, or with or for the benefit of the award creditor, or even with or for the benefit of the private party. It requires an agreement made by the foreign state with a private party.

The indefinite article, “a” or “an,” is used when “referring to something not specifically identified … but [instead] treated as one of a class: one, some, any.” Citizens for Responsibility & Ethics in Wash. v. FEC, 971 F.3d 340, 354 (D.C. Cir. 2020) (citation omitted). See also Black’s Law Dictionary 77 (5th ed. 1979) (the indefinite article is “equivalent to ‘one’ or ‘any’”).

So when the statute refers to an agreement “with … a private party,” it cannot be read to refer to the agreement with a particular private party, for example the private party petitioning for confirmation. See Balkan Energy Ltd. v. Republic of Ghana, 302 F. Supp. 3d 144 (D.D.C. 2018) (holding that the court had jurisdiction over a petition brought by the assignee of an award rather than by the original award creditor). All the statute requires is that the award be made under an agreement with some private party. The definite article “the” appears earlier in the same sentence, strengthening the case. The agreement under which the award is made must be between the foreign state, that is, the foreign state against whom the petition is brought, and a private party.

This construction accords with the cases discussed above. In particular, it accords with cases such as First Investment [Corp. v. Fujian Mawei Shipbuilding, Ltd., 703 F.3d 742 (5th Cir. 2012)] and Gater [Assets Ltd. v. AO Moldovagaz, 2 F.4th 42 (2d Cir. 2021)], since in those cases the problem was that an instrumentality of the foreign state had signed an agreement to arbitrate but the foreign state itself had not. The arbitration exception applies when the award was made under a written agreement between the foreign state and a private party; questions about whether the dispute was one the foreign state had agreed to arbitrate are merits questions, not jurisdictional questions. Only if the petitioner cannot show that the award was made under a written agreement between the foreign state and some private party does the district court lack subject-matter jurisdiction.

In short, the court was right to say that when a foreign state says it is not a party to the agreement under which the award against it was rendered, its challenge is to jurisdiction and not to the merits, in light of the plain language of the FSIA.

1. In my opinion that is bad karma, unless there was correspondence not reflected in the decision showing that Guinea had no intention of answering. ︎

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There are a lot of issues in the news these days that I want to write about. I want to write about the undermining of traditional American foreign policy and economic policy. I want to write about the attacks on the separation of powers and the need for Congress to find its backbone. I want to write about the attacks on American higher education and on the idea of America as a nation of immigrants. I want to write about the necessity of an independent bar. I’ve got an essay going called “The Antifederalists Were Right.” But I find I cannot focus on these really important issues, because another issue occupies all of the psychic space I have to devote to politics. There is a moral, civic, and public safety emergency in the United States today: antisemitism that corrodes everything it touches and that puts all American Jews at risk.

I am not going to catalogue the most serious incidents of antisemitic violence in recent days, because you know them already. Arson at the home of Pennsylvania’s Jewish governor during Passover. The murder on a Washington DC street two people attending an AJC event aimed at peacemaking. The burning alive of Jews, including a Holocaust survivor, silently marching to raise awareness of the hostages still held by Hamas in Gaza. All three antisemitic attacks were apparently motivated by a wish to “free Palestine,” or to use the words from college protests that one of the attackers apparently used, to “free, free Palestine,” or “globalize the intifada.”

Nor will I feel the need to try to persuade you, if you are not already persuaded, that these attacks were indeed antisemitic attacks instead of “mere anti-Zionist” protests, political violence justified by opposition to the policies of the Israeli government, etc. We know antisemitism when we see it.

Nor will I explain to you the antisemitism that inheres in any rhetorical or legal equation of the Holocaust, the pre-planned mass murder of two-thirds of Europe’s millions of Jews with the aim of destroying the Jews as a people, with the tragedy in Gaza. The authorities in Gaza started a war with the October 7 atrocities in Israel, a Jewish state in which about one-fifth of the population is Palestinian. The Israelis have been fighting in Gaza, where 2% or 3% of the population, civilians and fighters, have been killed, and where their de facto government’s war strategy is to increase their own civilian casualties in order to win a strategic victory abroad. An equation of the two tragedies is a classic case of Holocaust inversion—an expression of the world’s, and to be frank, many supporters of the Palestinians’, resentment that someone once captured in the pithy phrase, “The Germans will never forgive the Jews for Auschwitz.” What Holocaust inversion does is to give people a kind of permission to unleash violence against Jews anywhere in the world, including here in America.

Nor am I sorry for focusing on the troubles of the Jews rather than on other people’s troubles or other injustices. If I am not for myself, who will be for me? And if not now, when? The Jewish people have learned lessons from past eruptions of antisemitism. One, of course, is that the safety of the Jews in a hostile world requires a strong Jewish state. But another is that we cannot let ourselves be gaslighted into denying or downplaying what we see happening in the country and the world. I never really knew what gaslighting meant or what it felt like, until now.

Those are some thoughts about my Jewish reaction to resurgent antisemitism. What about everyone else? I hope everyone treats the issue with the seriousness it deserves. Your Jewish friends and neighbors, who for years have had to worry about their physical safety every time they gather together or appear as Jews in public, need you! There are lots of ways to help, but if you want to help but don’t know what to do, I would encourage you to have a look at the AJC’s website, which has some ideas for concrete advocacy anyone can do, or to search online for resources in your own community about combating antisemitism.

In particular, I hope that people who think of themselves as advocates for the Palestinians take a moment to ask themselves: if I am chanting the same slogans that seemingly motivate others to deadly antisemitic violence, should I undertake some self-reflection about my understanding of the world or the ideological company I am keeping? If not now, when?

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The case of the day is Devas Multimedia Pvt. Ltd. v. Antrix Corp. Ltd. (S. Ct. 2025), my “case to watch” from March 7, 2025. Antrix was an Indian state-owned enterprise that promoted and marketed the Indian space program. It signed a satellite leasing contract with Devas, an Indian company, und which Antrix would build a satellite and put it in geostationary orbit, and Devas would lease network capacity on the satellite to provide multimedia broadcasting service throughout India. After years of work leading up to the launch, but before the launch itself, the Indian government decided it needed the S-band spectrum, the part of the satellite’s spectrum that Devas planned to lease, for its own purposes. So it caused Antrix to terminate the contract, citing the government’s new policy and the force majeure clause. Devas brought an arbitration, asserting that the force majeure was “self-induced” and that Antrix was liable for breach. The arbitrators awarded more than $500 million in damages. Devas confirmed the award in courts in France and the UK and sought confirmation in the Western District of Washington. Antrix moved to dismiss on the grounds that the court lacked jurisdiction. That argument seems like a loser on its face, because the FSIA has an exception to the ordinary rule of foreign sovereign immunity in cases seeking confirmation of an arbitral award if the award is “governed by a treaty or other international agreement in force for the United States calling for the recognition and enforcement of arbitral awards.” And the district court did confirm the award and entered a $1.3 billion judgment.

Then the case took a turn. An Indian court held that Devas had fraudulently induced Antrix to enter into the contract. The Indian government then seized Devas in order to wind down its business. Several shareholders, and an American subsidiary of the company, then sought to intervene in the US case so that they could seek to enforce the judgment, and the court allowed the intervention. An Indian court also set aside the award in light of the finding of fraud.

On appeal, the Ninth Circuit reversed, holding that the district court lacked personal jurisdiction. Come again? Ordinarily everyone understands that when an FSIA exception to foreign sovereign immunity applies, the court necessarily has personal jurisdiction. The statute says that the court has personal jurisdiction “as to every claim for relief over which the district courts have jurisdiction” because no exception to immunity applies “where service has been made under [28 U.S.C. §] 1608.” But the Ninth Circuit held that Devas also had to show sufficient minimum contacts between the sovereign defendant and the United States. Hence today’s case.

Today’s unanimous decision, by Justice Alito, dispatched the Ninth Circuit’s statutory analysis. The text of the statute is pretty darn clear, and in fact, the requirement of connection with the United States is built into many of the FSIA’s exceptions.¹ The Court also found the legislative history supported the conclusion. I am always happy to see the Court cite legislative history, and in particular the House Report on the FSIA, though I note that here it cited the legislative history “to the extent it is relevant,” which I assume was the price of keeping the decision unanimous.

But Devas didn’t even try to defend the Ninth Circuit’s statutory analysis. Instead, it argued that the minimum contacts requirement followed from the Due Process Clause, which is to say that a foreign sovereign is a “person” entitled to due process for constitutional purposes. Unfortunately but probably predictably, the Court avoided decision on that issue, because the Ninth Circuit hadn’t addressed it. Thus it remanded the case for further proceedings.

1. The commercial activity exception, for example, requires commercial activity “carried on in the United States,” or a commercial act abroad “that causes a direct effect in the United States.” The expropriation exception requires that the expropriated property, or property exchanged for it, be “present in the United States in connection with a commercial activity carried on in the United States.” And so on. ︎

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The case of the day is Chanel, Inc. v. Individuals, Business Entities and Unincorporated Associations Listed on Schedule A (S.D. Fla. 2025). This is a typical internet luxury good knockoff case. There are a lot of these cases nowadays. It’s usual for the plaintiff to sue a long list of seemingly dodgy foreign people and entities in a single lawsuit, to serve process by alternate means, and to ask for and often receive a preliminary injunction.

Today’s decision is one of the lazier of the genre. The judge authorized service by email and the web on the Schedule A defendants. I don’t really blame judges entirely for lazy decisions in these cases, because they the service issue is generally before the court on an ex parte motion. But some judges have managed to get the issues right, and more judges should look into the relevant law to make sure they are getting this right.

The first thing a judge should ask, when asked for leave to serve process by email or via the web, is: does the Hague Service Convention apply? That depends on whether the defendant’s address is known (and whether the plaintiff has used sufficient diligence to learn the defendant’s address, which is a little squishy), and for a defendant whose address is known, whether it is in a Convention state. Today’s decision is silent on those key questions. Why? Because the judge took the shortcut that many of the older cases, going back to Gurung v. Malhotra, took. She reasoned that the Convention simply doesn’t bar service by email, even in states that have objected to service under Article 10’s provisions on alternate methods of service. I’ve addressed this point many times, including in a haiku, and Bill Dodge and Maggie Gardner have done likewise. Here is the reason in summary:

1. The Convention is exclusive. If it applies, you must serve process using one of the methods of service it authorizes or at least permits.
2. The only provision of the Convention that even arguably permits service of process by email is Article 10(a), which permits service via postal channels when authorized by the law of the forum.
3. In a state that has objected to service by postal channels, the objection also covers service by email in light of point (2).

Here is the haiku:

Limited methods.
Email is not on the list.
The plaintiff’s sad tears.

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The case of the day is BSH Hausgeräte GmbH v Electrolux AB (CJEU 2025). In the European Union, the Brussels I bis regulation allocates exclusive jurisdiction over the validity of patents and other registered IP rights to “the courts of the Member State in which the deposit or registration has been applied for, has taken place or is under the terms of an instrument of the Union or an international convention deemed to have taken place.” So if litigation concerns a German patent, only the courts of Germany can decide whether the patent is valid or invalid.

Today in Europe, many patents are “European patents” instead of simply German patents or French patents. A European patent, though, is not a unitary patent. Under the European Patent Convention, it “confer[s] on its proprietor from the date on which the mention of its grant is published in the European Patent Bulletin, in each Contracting State in respect of which it is granted, the same rights as would be conferred by a national patent granted in that State.” So to coin a phrase, it is a “bundle of sticks,” a collection of national patents.¹ Thus when a German court is asked to decide the validity of a European patent, it is deciding on the validity of the German “part” of the European patent.

OK, that’s just some background. Today’s decision tells us that the European Patent Convention’s limitation on jurisdiction about validity does not apply when invalidity is raised as a defense in an infringement case, at least when the defendant has its domicile in the state whose national courts are hearing the claim. The decision also tells us that the jurisdictional limitation in the EPC simply does not apply to non-EU patents. What does that mean in practice? If a European company is accused of infringing a US patent, it can be sued in the court where it is domiciled, even if one of the defenses is that the US patent is invalid.

There are a few things going on here that are familiar to common law lawyers, though I don’t claim to understand the intricacies of how European lawyers look at these issues:

• The idea that any claims against someone domiciled in a state can be brought in the courts of that state should be very familiar to us.
• Patents have an in rem or “thingy” quality. There’s a pretty strong analogy between a patent and a real property right: it is strongly territorial; it is a right to exclude; states have a system of recording or registration. And there are strong reasons to say that as between the patentee and the world, only the courts of the state where the rights are registered (or where the land is located) can decide questions like title or validity.
• But it should also pretty familiar to us to say that as between the parties, issues regarding real property and even intellectual property can be decided by any court with jurisdiction.

If the case leads to more litigation about US patents in European national courts, one likely consequence is an upswing in Section 1782 cases. Litigants might be attracted by the lower costs of European patent litigation, but there is a cost to avoiding the costs, as parties won’t have access to the discovery tools they would have in a US case.

I’d like to thank my friends from Powell Gilbert, Joel Coles and Tess Waldron, who are visiting Boston for a conference and who put me on to today’s interesting decision.

1. There is also a new unitary European patent system, which I’ll leave to the side here. ︎

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Friend of Letters Blogatory Bill Dodge has a good post at the Transnational Litigation Blog about serving process on foreign defendants by serving their US counsel. This is one of the great Letters Blogatory conundrums. I have gone back and forth about the issue. That’s one of the blessings and curses of blogging. You can go back and read my posts about this and see how my thinking changes over time and see how I try to work through the issue. Or you can read posts that say wildly different things and say, “this guy doesn’t know what he’s talking about.”

The basic problem is that most plaintiffs who try this ask the court to authorize service on the US lawyer by way of a motion under FRCP 4(f)(3). That is a smart idea: rule 4(f)(3) allows courts to authorize alternate methods of service as long as they do not violate the Service Convention. By authorizing the service on a US lawyer (who, I assume, is in the United States), the court is authorizing a method of service that does not require transmission of the summons and complaint abroad for service. And so the Convention simply doesn’t apply.¹

But there is a textual problem. Rule 4(f) provides that “an individual … may be served at a place not within any judicial district of the United States” by the means described in the rule, including the alternate means allowed under Rule 4(f)(3). We can call this Schrödinger service: the service takes place “at a place not within any judicial district of the United States” in order to allow the plaintiff to use FRCP 4(f)(3), but the service takes place in the United States in order to avoid bringing the Service Convention into play.

Bill’s post covers Zobay v. MTM Group, an EDNY decision from March 2025. The magistrate judge had approved service on a Chinese defendant by service on its US counsel, but she understood that that method was permissible because the lawyer acted as “conduit.” But as I noted in the footnote, treating the lawyer as conduit doesn’t actually solve the problem, because if the lawyer has to transmit the document abroad for the service to be complete, then it is inconsistent with the Convention.

The district judge, affirming the magistrate judge’s decision, tried to solve the problem by looking to FRCP 4(e)(1), which governs service in a judicial district of the United States and which incorporates state law methods of service. Apparently, New York law allows service on a corporation by service on the US lawyer, and it treats the service as complete when the lawyer receives the documents, not when the lawyer transmits the documents to the client.

Bill approves of the decision, and I suppose I do, too. But I think the judge’s discussion gets the due process issue backwards in a way. Due process does not require that a particular piece of paper be put into the defendant’s hand. It requires that the defendant have notice and an opportunity to be heard.² If the US lawyer telephones the Chinese defendant and says, “you’ve been sued; here’s what the plaintiff is saying; we have 21 days to answer the complaint,” that would seem to me to suffice for due process purposes, even if the lawyer does not transmit the papers to the defendant. The lawyer is supposed to be a conduit for the information that is important to the defendant, not necessarily the documents themselves. On the other hand, if the lawyer receives the papers but never communicates with the defendant about their contents, then the service may be complete, but there is a problem with actual notice. (Whether that’s a due process problem depends, I guess, on whether you think that the lawyer’s knowledge gets attributed to the client for constitutional purposes, but at least it’s clear that in this scenario there’s no notice to the defendant in fact). So I think it would be better to say that the service is permissible under FRCP 4(f)(3), not because the lawyer has to transmit documents to the defendant, but because the lawyer is going to inform the defendant of the important facts. And if the service is complete on delivery of the summons to the lawyer, then there’s no reason the lawyer can’t send a copy of the summons to the defendant in China, because he is not transmitting it abroad for service: the service was already complete. If this is right, then New York law provides no special benefit not available in any case in federal court.

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