Service by Email and the Hague Service Convention
April 4, 2022
The Hague Service Convention was concluded in 1965, long before the internet. So how does the most important means of communication today fit with the Convention? I’ve been thinking about service by email and the Hague Service Convention ever since the 2019 HCCH a|Bridged event on the Service Convention in the Era of Electronic and Information Technology. It’s a hot topic, but that has been true for years. so how hot can it be? In other words, is it the kind of topic that will be hot forever, or is there a way to make practical progress?
The Hague Service Convention Under Pressure
By way of background, the inefficiencies and occasional failures of the main channel of transmission under the Convention have put pressure on courts, particularly in the United States, to authorize service by email when they shouldn’t. For example, in Gurung v. Malhotra (S.D.N.Y. 2011), a domestic servant brought claims of mistreatment against an Indian consular official and her husband, and the Indian government inappropriately refused to execute a request for service of process on the official on the grounds of infringement of India’s sovereignty or security. There was no other way to serve process under the Convention (since India has objected to service by alternate means), so the U.S. court authorized service by email and entered a default judgment. Similarly, in Shelterzoom Corp. v. Goroshevsky (S.D.N.Y. 2020), Russia had ceased executing US requests for service generally, and the court authorized service by email in the absence of another effective method.
These cases are understandable results of the pressure states put on foreign courts when they do not provide effective means for service of process. But they are difficult to justify under the Convention. This is so because everyone agrees that the Convention is exclusive (HCCH, Practical Handbook on the Operation of the Service Convention, 4th ed. 2016, para. 50). That is, if the Convention applies, the plaintiff must use a method of service that the Convention authorizes or at least permits, and he may only use a method of service that the Convention authorizes or at least permits. But the Convention is silent about electronic service. The only arguable basis for service by email in the Convention is Article 10(a), which permits service via the postal channel. But states have the power to object to service under Article 10, and many countries have objected, including India and Russia, the two countries mentioned above that have been a source of much of the trouble. Therefore, even if email is thought to be within the postal channel, it is impermissible under the Convention in many states. And some of those states happen to be the states who, by their failure to provide the international judicial assistance they promised to provide when they entered the Convention, create the pressure for service by email in the first place.
Hence the pressure to do something to bring the Convention into line with the facts on the ground. And there is another kind of pressure at work. Although the Convention is, by design, technology-neutral, electronic communications make up a greater and greater share of the world’s important correspondence. So, there is a felt need to make the Convention more modern.
One possible approach to modernization would be the negotiation of a new convention, or a protocol to the existing Service Convention, to provide a clearer route for electronic service. That, I think, is the wrong way to go. Leave aside the time and effort involved in such negotiations. At the end of the day, it seems highly unlikely that states that have made Article 10 objections would be willing to allow service by email without ensuring the right to object. Providing for such objections to service by alternate means has been longstanding practice in multilateral conventions, for example, Article 6 of the Convention of 17 July 1905 on Civil Procedure and article 6 of the Convention of 1 March 1954 on Civil Procedure. So, at the end of the day, a new convention or protocol is unlikely to solve the underlying problem.
I believe it’s better to take a two-pronged approach. The first prong focuses on clarifying the basis for service by email under the Service Convention as it is today in those states that have not objected to service under Article 10(a). The second prong focuses on encouraging those states that have interfered with service via the main channel, and that object to service by postal channels, to provide more effective cooperation, which would eliminate the felt need to permit electronic service in order to let potentially meritorious lawsuits proceed. I’m going to address only the first prong here, both for reasons of space and because the second prong raises issues that are more intractable.
Postal Law and Practice
The first prong requires a deep look at the term “postal channels.” What is in, and what is out? One place to look is postal law and practice. Take private courier services, for example. At least in the US domestic context, there is a basis for arguing that private express couriers like FedEx are within the postal channel. As a general rule, the Postal Service has a monopoly on delivering letters. But by regulation, the Postal Service has created an exception, allowing for private carriage of letters if they are “extremely urgent.” Although there is a regulatory definition of “extremely urgent,” extreme urgency is conclusively presumed if the amount paid is at least three dollars or twice the applicable first-class postage, whichever is greater. In short, there is a basis under US law for arguing that the use of private couriers is within the postal channel.
The international situation of private couriers is less clear. It seems that a state may separate the “governmental/regulatory” functions from the “commercial/operational” functions of a postal service (Commentary to Article 2(2) of the Universal Postal Convention). The Universal Postal Union (UPU) also provides for an optional “express mail service,” and it states that countries “shall have the option of providing the EMS service with private sector companies operating in another country …” (Art. 36-002). If I am understanding correctly, there seems to be room to consider private courier companies to be within the scope of the postal channel internationally, though I emphasize that we must have the input of experts knowledgeable about such matters.
But what about email? On the one hand, the Postal Convention contemplates “electronic postal mail” and “electronic postal registered mail” as services (Art. 37). On the other hand, while some countries do now offer an “e-post” service, the United States does not. There does not seem to be a basis in current domestic law to treat the commercial email services that we all use as within the postal channel. This is mostly due to the USPS’s lack of imagination at the time the internet became important in peoples’ daily lives. “Email is not a threat,” said USPS spokeswoman Susan Brennan in 2001. “[Postal mail] is universal. The Internet is not.”
Ultimately, then, at least until the USPS and other postal services can remedy their early, short-cited dismissal of email, focusing on whether email falls within “postal channels” from the perspective of domestic or international postal law and practice is unlikely to yield progress.
An Equivalent Technologies Approach
The HCCH has pursued a different approach. Over the years, it has looked at whether various technologies are functionally equivalent to the post. For example, the 2003 Special Commission concluded (para. 57) that private courier services are the equivalent of postal channels and that Article 10(a) of the Convention permits service by courier, noting “the increasing use of private courier services for the expeditious transmission of documents in a variety of business settings” and “reports that such couriers have been used to serve process under Article 10(a) of the Convention.” In the prior edition of the Practical Handbook on the Operation of the Service Convention (3d ed. 2006, para. 197), the HCCH Permanent Bureau took the position that “[t]elegrams and telex are to be treated as postal channels,” even though there is no real argument that these services are postal services under postal law and practice. (The Fourth Edition, published in 2016, lacks this language, probably because of the near-obsolescence of these technologies). The Special Commission, with equal justification, could simply conclude that in light of reports that parties have used email to serve process and that many important communications are sent by email nowadays, email is the equivalent of the postal channel. That approach, if accepted by the states party to the Convention, would result in service by email when the law of the forum authorizes it and where the state of destination has not objected to service under Article 10(a).
On the one hand, this approach is subject to some criticism. It is purely results-oriented and makes little effort to address the Convention’s text, which after all uses the word “postal.” The overall structure of the Convention suggests that the alternate methods of service permitted (in the absence of objection) by the Convention all require at least some official involvement by the state of destination, either because the summons is served by the “judicial officers, officials or other competent persons of the State of destination” (Articles 10(b) and (c)), or because the summons is delivered by the postal service of the state of destination (Article 10(a)). Even when a plaintiff sends a summons abroad via FedEx, the papers have to pass through customs control in the state of destination. That kind of official involvement is missing in the context of commercial email service. On the other hand, because courts today are authorizing service by email even when they probably shouldn’t, perhaps the Special Commission will conclude that if we cannot bring the practice of courts into compliance with the Convention, perhaps we should construe the Convention to bring it into accord with the practice of courts.
Such an approach would not be as radical in its consequences as it may at first seem. There are many states that regard the service of process on their territory by anyone other than their judicial officials as a violation of their sovereignty, and service by email would be just as objectionable to them as service by post or private process server. But those states already have the power to object to service by alternate means under the Convention. The main practical implication of the approach would be to allow service by email in states that do not object while doing the least violence to the principle that the Convention is exclusive, by reinterpreting Article 10(a) to recognize the change in the way the world sends its most important correspondence in the 21st century.