Case of the Day: Kangol v. Hangzhou Chuanyue Silk Import & Export Co.

The case of the day is Kangol LLC v. Hangzhou Chuanyue Silk Import & Export Co. (7th Cir. 2026). I covered the case back in October, when I submitted an amicus brief on behalf of friends-of-Letters-Blogatory Bill Dodge and Maggie Gardner. In today’s case, the Seventh Circuit has now joined the Second Circuit and the Third Circuit in holding that when the Service Convention applies, and when the state of destination has objected to service by postal channels, service by email is impermissible.1 Huzzah! I think it is fair to say that the appellate courts, when given a chance to decide the issue on a real record rather than on an ex parte basis, and with the aid of briefs that were well-done on both sides, are coalescing around the answer that I say is obviously right but that has befuddled many lower courts. I have put it like this in the past:

Or more briefly, like this:

The case begins with some questions of waiver and timeliness that are not of much general interest. It considers a couple of ancillary Convention questions that are of some interest. First, the court notes that there was a real issue about whether the Convention applied at all, given that the defendant’s address in China was unknown. It remanded for further proceedings on whether the plaintiff had been sufficiently diligent to make that argument stick. The court also rejected a creative but (in my view) obviously wrong argument that emailing the defendant a link to the documents was not a transmission of the documents themselves. If you haven’t transmitted the documents, then how can you really say you have effected service? After all, the plaintiff did not claim it had served the documents fictitiously or by publication.

But leaving those issues aside, it was gratifying to see a court stick the landing and get the right answer for the right reason. The issue is not free from doubt: the Florida state courts continue to get the issue wrong, and the Florida Supreme Court declined to hear an appeal from a case in which I had indicated the intent to submit an amicus brief for Professor Huo Zhengxin explaining why the Florida rule offends the interests of states that have objected under Article 10. But the trend is very, very good.

Case of the day: Whoop v. Serinity Group

The case of the day is Whoop, Inc. v. Serinity Group (D. Mass. 2026). The case is, in a sense, routine, but I wanted to write about it because it’s a Massachusetts decision, because I like the “Whoop” company name, and because it illustrates a couple of familiar but still useful points about service by email.

Whoop, the Boston-based manufacturer of fitness wristbands, sued Serinity, a French company that did business as Aurora, for trade dress infringement, seeking damages and an injunction under the Lanham Act, common law, and Mass. Gen. Laws c. 93A, our statute on unfair and deceptive acts or practices in trade or commerce.

Whoop first sought to serve process on Serinity via a huissier, who tried to make service at the French company’s registered address, but who reported that the company was no longer at that address. Whoop then sought leave to serve process by email, and the court obliged.

Seeking to serve process by huissier was appropriate and in fact a good way to go. France has not objected to service by alternate means under Article 10 of the Service Convention. Thus the Convention permitted Whoop to attempt service “directly through the judicial officers, officials or other competent persons of the State of destination.” A huissier is undoubtedly the officer the drafters of Article 10 had in mind. And FRCP 4(f)(2)(A) authorizes service by the means prescribed by French law.

Once it became clear that Aurora’s physical address was unknown, the Convention had no further role to play. Under Article 1, the Convention simply doesn’t apply if the address of the person to be served is unknown. Some courts impose a duty of diligence here, but there’s no doubt Whoop satisfied whatever obligation of diligence it may have had by attempting service at the address Aurora had registered with the French authorities.

Thus the only issue was whether, under FRCP 4(f)(3), the court should, in its discretion, allow service by email. The judge said yes, since the email address to be used was published on Aurora’s website and Aurora used the website to take orders. The judge also observed that an earlier email sent to that address had not been returned as undeliverable, though I think that is a weak piece of evidence without more technical detail, as it relies on the assumption that Aurora is using a well-behaved email server.

Because France, unlike, say, China, has not made an Article 10 objection, it is worth pointing out that even if Aurora’s physical address were known, and even if the Convention therefore applied, service by email might nevertheless work. Your view on that question will turn on whether you think that commercial email as we know it in 2026 is within the scope of the “postal channels” referred to in Article 10(a).

Case of the day: Fox Corp. v. Media Deportes Mexico

The case of the day is Fox Corp. v. Media Deportes Mexico S. de R.L. de C.V. (S.D.N.Y. 2026). The case raises a perennial Letters Blogatory question: when the Hague Service Convention applies, can you serve a temporary restraining order or a preliminary injunction on a defendant in a way that you couldn’t serve the summons and complaint? For example, in a foreign state that has objected to service under Article 10 of the Convention, can you serve the TRO or the preliminary injunction by email?

In today’s case, Fox had licensed Media Deportes Mexico to broadcast sporting events in Mexico. It claimed that MDM had breached the license agreement by obtaining an injunction, in a Mexican court, barring Fox from using the Fox Sports trademarks in Mexico. Fox sued in New York, seeking a TRO to restrain MDM from using the Fox Sports trademarks in Mexico or in the US, and from prosecuting its injunction case in the Mexican courts. The court issued the TRO and authorized Fox to serve the TRO electronically, which Fox did. Fox then asked the court to find MDM and related entities, including MSD, in contempt of court for violating the TRO. Eventually, MSD appeared in the New York case and argued that the service of the TRO by electronic means was impermissible under the Convention. In the meanwhile, the Second Circuit decided the Smart Study case, which held that when the Convention applies and when the state of destination has objected to service by alternate means, service by email is impermissible.

The court rejected MSD’s argument. The judge grounded his analysis in part on the last sentence of Article 15 of the Convention. Here is Article 15 (I’ve omitted the second paragraph and bolded the key language):

Where a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and the defendant has not appeared, judgment shall not be given until it is established that—

the document was served by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within its territory, or

the document was actually delivered to the defendant or to his residence by another method provided for by this Convention,

and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.

* * *

Notwithstanding the provisions of the preceding paragraphs the judge may order, in case of urgency, any provisional or protective measures.

That last sentence is obviously key. But I am not certain that it means what the judge thought. I do not think the sentence means, “In case of urgency, the judge can authorize methods of service that the Convention otherwise would not permit.” Instead, I think it means, “The judge can, consistent with the Convention, order provisional or protective measures, even if there is no evidence that the service on the defendant has been accomplished.” The Convention, in other words, is no bar to issuance of a TRO directed to a defendant where there is no proof of service, even though it may, under Article 15, be a bar to issuance of a default judgment against a defendant in such circumstances.

Still, US law of course requires notice to a defendant subject to a TRO before the defendant can be found in contempt for violating the TRO. The trouble is that a TRO implies that there is a need for emergency relief and thus a need to get notice to the defendant very quickly. How to square that need with the Convention?

It seems to me that the key is in Article 1, which provides that the Convention applies “where there is occasion to transmit a judicial or extrajudicial document for service abroad.” If I want to serve a defendant with a summons and complaint, I can’t just send a letter giving the defendant notice that he had been served, even if I include the summons and complaint with my letter.1 It’s not enough for the defendant to read about the lawsuit in a newspaper. But if I want to make sure a defendant subject to a TRO has notice of the TRO, I think I could simply write him a letter. Or, I suppose, I could put an ad in his local newspaper. What matters, for satisfying due process, is that the defendant has actual notice. So even if I send the TRO, which is undoubtedly a judicial document, by mail, I am not sending it abroad for service. I am just providing notice. That’s the reason why “serving” it (that is, sending it) by email is permissible.

The judge also suggested a reason to distinguish this case from Smart Study. Smart Study, he wrote, involved entry of a default judgment, and this case didn’t. Perhaps the point is that a violation of the Convention really only matters to the defendant when a judgment enters that rests on the violation. But when the Convention applies, it applies, and I think a defendant threatened with contempt of court would disagree with the thrust of the judge’s point. It seems to me that my reading of Article 15 avoids the need to make a point like this.

In short, I think the judge got to the right result, but I think there is a much better and clearer way to get there.

Section 1783 Case of the Day: Eletson Holdings v. Levona Holdings

The case of the day is Eletson Holdings Inc. v. Levona Holdings Ltd. (S.D.N.Y. 2025). Eletson sought confirmation of an arbitral award. Levona sought to have the award set aside, on the grounds that, according to Levona, documents Eletson had not produced in the arbitration but had produced in a later bankruptcy proceeding showed that Eletson had offered fraudulent testimony in the arbitration. Intervenors in the case sought leave under 28 U.S.C. § 1783 to serve a subpoena on Peter Kanelos, a US citizen or resident who was in Greece, who was a participant in the communications that had been produced in the bankruptcy.

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.

#Greece #HagueEvidenceConvention #HagueServiceConvention #subpoena

Case of the Day: Chanel v. Individuals on Schedule A

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:

Here is the haiku:

#Email #HagueServiceConvention

Bill Dodge on Serving US Counsel

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.1Of course, if the court authorizes the service with the proviso that the US lawyer must forward the summons to his client abroad, then you haven’t really solved the problem …

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.2Bill has reminded me, 100% correctly, that actual notice isn’t required. What’s required is service reasonably calculated to provide notice and an opportunity to be heard. 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.

• 1 Of course, if the court authorizes the service with the proviso that the US lawyer must forward the summons to his client abroad, then you haven’t really solved the problem …
• 2 Bill has reminded me, 100% correctly, that actual notice isn’t required. What’s required is service reasonably calculated to provide notice and an opportunity to be heard.

#China #HagueServiceConvention

Case of the Day: Missouri v. China

During COVID I wrote about what I regarded as an absurd case: the state of Missouri suing China and Chinese government instrumentalities for damages arising from the pandemic. I thought the case was absurd mainly because of foreign sovereign immunity, but also because the service of process on the two arguably non-governmental defendants was bad. But we live in absurd times, and as I reported in an earlier post, after the district court dismissed the action on FSIA grounds, the Eighth Circuit revived one of the claims, a claim that China had hoarded PPE by nationalizing factories that had been producing PPE for US firms, thus violating US antitrust law and Missouri law. On remand, the district court has now granted a default judgment for Missouri for nearly $25 billion in damages. I continue to think this is a case that should never have been brought. And although the case attracted some amicus attention, I think that US judges need to do better, in cases where the foreign state does not appear, to get the law of foreign sovereign immunity right, especially in such a politically fraught, high dollar-value case.

Service of Process

As we know, China and the United States are parties to the Hague Service Convention. The Supreme Court has held that the Convention is mandatory, or in the terms more often used internationally, exclusive. That means that if the Convention applies, then the plaintiff must serve process using one of the methods that the Convention authorizes, or at least permits. The Federal Rules of Civil Procedure reflect this rule. FRCP 4(f)(3) allows the court to authorize alternate methods of service, even if they violate foreign law, but not if they violate the Convention.

Missouri served process on the Chinese Communist Party, the Chinese Academy of Sciences, and the Wuhan Institute of Virology by email, after seeking and receiving permission from the court under FRCP 4(f)(3). Leaving aside the question of whether any of these defendants is an instrumentality of the Chinese state (it is hard to see how the Chinese Communist Party would not be at least an instrumentality of the state),1See my prior post on the case for a discussion of this point. The bottom line is that service by email is not permissible for any defendant that is an alter ego of the state, or an instrumentality of the state.1 China has objected to service by postal channels under Article 10 of the Convention, and service by email is permissible under the Convention, if at all, only if one conceives of email as part of the postal channel. Here is a good explanation of the issue, and you can also find many posts on the topic in this archive. Thus the service of process on these defendants was improper, and the resulting judgment (in my view) void.2Missouri served the Chinese state itself, and several entities that are deemed to be a part of the Chinese state for these purposes, through the diplomatic channel. That seems okay, since the Chinese government refused, under Article 13 of the Convention, to execute the request for service of process, and since China has objected to service by postal channels, making service by mail on the Minister of Foreign Affairs unavailable.

Foreign Sovereign Immunity

Although the district court originally dismissed the complaint in its entirety on FSIA grounds, the Eighth Circuit reversed as to one claim—the claim that China hoarded PPE in the early stages of the pandemic. The gist of the claim is that China nationalized factories that made PPE for American companies. The Eighth Circuit thought that that claim came within the commercial activity exception to foreign sovereign immunity. But that seems absurd to me, since nationalization of property is a quintessentially sovereign act, and it’s hard to think of a better example than nationalization of property in order to marshal resources to respond to a public health emergency. Looking to the nature of the act rather than the purpose, as the commercial activity exception requires, we must note that only governments can nationalize property; it’s not something a commercial enterprise can do.3There is an expropriation exception to FSIA immunity, which I covered in a recent post on Hungary v. Simon. But the claim here wasn’t brought by any American company whose property was allegedly expropriated, and it’s not even clear to me that the American company owned the factories: the allegation, as recounted by the Eighth Circuit, was that China “took over factors that ma[de] masks on behalf of American companies.” So I think the premise of the Eighth Circuit’s decision was plainly wrong.

Reciprocal self interest

When we think about these cases, we have to think about what it would be like if the shoe were on the other foot. In 2021, the US and other western countries were accused of hoarding the COVID vaccine. Should the United States have been amenable to suit in China or elsewhere because it prioritized the public health needs of its own people? The technical term for taking seriously the question, “what if the shoe were on the other foot?” is comity. We need more of it.

• 1 See my prior post on the case for a discussion of this point. The bottom line is that service by email is not permissible for any defendant that is an alter ego of the state, or an instrumentality of the state.1 China has objected to service by postal channels under Article 10 of the Convention, and service by email is permissible under the Convention, if at all, only if one conceives of email as part of the postal channel. Here is a good explanation of the issue, and you can also find many posts on the topic in this archive. Thus the service of process on these defendants was improper, and the resulting judgment (in my view) void.2Missouri served the Chinese state itself, and several entities that are deemed to be a part of the Chinese state for these purposes, through the diplomatic channel. That seems okay, since the Chinese government refused, under Article 13 of the Convention, to execute the request for service of process, and since China has objected to service by postal channels, making service by mail on the Minister of Foreign Affairs unavailable.
• 2
• 3 There is an expropriation exception to FSIA immunity, which I covered in a recent post on Hungary v. Simon. But the claim here wasn’t brought by any American company whose property was allegedly expropriated, and it’s not even clear to me that the American company owned the factories: the allegation, as recounted by the Eighth Circuit, was that China “took over factors that ma[de] masks on behalf of American companies.”

#China #Email #FSIA #HagueServiceConvention

Case of the day: Isaac Industries v. Petroquímica de Venezuela

The case of the day is Isaac Industries, Inc. v. Petroquímica de Venezuela, SA (11th Cir. 2025). Isaac, a Florida wholesale chemical distributor, had a contract with Bariven, a Venezuelan oil and chemical company “associated with or owned by” the state, to sell 2-ethylhexanol for nearly $3,000 per metric ton. Bariven ordered almost 6,000 metric tons of the chemical, and Isaac shipped it, issuing invoices after each shipment. Bavarian did not object to the invoices but also did not pay for the goods. That’s a big unpaid bill.

According to Isaac, after two years, representatives of Petroquímica de Venezuela, another potentially state-owned company, asked for a meeting. At the meeting, Pequiven undertook to pay Bariven’s debt with interest in return for a release of the debt (to become effective after Pequiven made all the required payments). The deal was memorialized in a written contract. Pequiven made the first payment due under the contract but then stopped paying.

Two years later, in 2017, following a disputed election, the United States recognized the 2015 National Assembly as the legitimate government of Venezuela, but the country’s de facto President, Nicolás Maduro, remained in power and effectively in control of the oil companies.

Isaac sued Pequiven, Bariven, and the main Venezuelan state oil company, PDVSA, for breach of contract. It sought to serve process via the central authority per the Hague Service Convention, but the central authority “never confirmed that it executed service.” A year into the lawsuit, Isaac moved for leave to serve process by alternate means. The court granted the motion. At that point, the defendants appeared and moved to dismiss, arguing that they were instrumentalities of the Venezuelan state and that service had to be made under the FSIA. They also argued that the complaint did not allege the case fell within any of the exceptions to foreign sovereign immunity. The court granted the motion to dismiss for insufficient service of process; the order said that the companies could “reassert the remaining bases for dismissal” later.

Rather than try service again, Isaac sought entry of a default judgment due to the lack of any response from the central authority, citing Article 15 of the Convention. Here is how the court described Article 15:

Article 15 permits a judge to enter a default judgment “even if no certificate of service or delivery has been received” so long as a plaintiff “transmitted” the service documents “by one of the methods” described in the Convention, “six months … has elapsed,” and “no certificate of any kind has been received, even though every reasonable effort has been made to obtain it.”

The magistrate judge found that all three conditions had been satisfied. Nevertheless, the magistrate judge (wisely, in my view) recommended denial of the motion for entry of default. No parties objected to the magistrate judge’s report and recommendation. The court adopted the R&R, denying the motion for entry of default, but it also dismissed the complaint on FSIA grounds and ordered Isaac to file an amended complaint that alleged an exception to foreign sovereign immunity. It also “prohibited the oil companies from ‘re-asserting a challenge to service of process.'”

Isaac filed an amended complaint that alleged that the case fell within the commercial activity exception for foreign sovereign immunity. PDVSA moved to dismiss based on immunity grounds, and the court granted. But neither Pequiven nor Bariven squarely denied the allegation that the case arose out of commerical activity in their answers: instead, they “stated that the allegations about the commercial activity exception required no response because they called for a ‘legal conclusion.'” Nor did they raise insufficient service of process as an affirmative defense.

Isaac moved for summary judgment, the court granted the motion, and Pequiven and Bariven appealed. One ground for the appeal was a lack of personal jurisdiction; the oil companies argued that the court had lacked jurisdiction because they had not been properly served. It’s true that the two had challenged service of process in the lower court, but when the magistrate judge found that the requirements of Article 15 had been met, they did not object, and under ordinary procedural principles, a failure to object to a magistrate judge’s decision waives the right to challenge the decision on appeal. So the court affirmed the judgment.

I get it, but I am not 100% sure the decision is right. After all, at the time of the magistrate judge’s recommendation, the court had already held that service of process was insufficient, and that decision came more than a year into the lawsuit (and likely many months if not a year after Isaac had transmitted the papers to the central authority for service). And Isaac didn’t try to effect service of process after that dismissal, but instead looked to Article 15 as a kind of fallback. The magistrate judge didn’t find that service had been proper; he found that judgment could be given despite the lack of evidence that service had been effected. To my mind, there was enough doubt about what were the implications of the magistrate judge’s recommendation that it would have been reasonable for court to review the service question in the interests of justice.

#defaultJudgment #FSIA #HagueServiceConvention #Venezuela

Paper of the Day: Gardner and Dodge on the Email and the Service Convention

Friends of Letters Blogatory Maggie Gardner and Bill Dodge have a great new paper on service by email under the Service Convention . The paper is a very good overview of the topic and very clear about the difference between service that the Convention authorizes and service that it permits and the exclusive or mandatory nature of the Convention. And happily but not surprisingly, it reaches the right conclusion: service by email is permissible, when the Convention applies, only if the state of destination has not objected to service by postal channels;1With a caveat about Articles 11 and 19, which I mention below. and it may not be permissible then, depending on the view you take about whether email comes within the scope of the postal channel. I love flow charts, and this article has one—a helpful reference for judges and lawyers about how to think about the issue.

Bill and Maggie raise an interesting question about whether FRCP 4(f)(1) authorizes service by email when the receiving state has not objected to service by postal channels. This is not really a question just about service by email, but about service by any alternative means of service referenced in Article 10.

My own view is that the Convention authorizes only service via the main channel, i.e., via the central authority. It permits various alternatives, but it does not affirmatively authorize them. I think this is clear (at least in the US) from Water Splash v. Menon, where the Court said:

In short, the traditional tools of treaty interpretation unmistakably demonstrate that Article 10(a) encompasses service by mail. To be clear, this does not mean that the Convention affirmatively authorizes service by mail. Article 10(a) simply provides that, as long as the receiving state does not object, the Convention does not “interfere with … the freedom” to serve documents through postal channels. In other words, in cases governed by the Hague Service Convention, service by mail is permissible if two conditions are met: first, the receiving state has not objected to service by mail; and second, service by mail is authorized under otherwise-applicable law.

The implication is that yes, you do need leave of court to serve process by email under FRCP 4(f)(3). You might wonder why you don’t need leave to serve process via a solicitor in the UK, or via a process server in Canada, since in both cases the service is permissible under Article 10 of the Convention. The answer is that in those cases, the foreign process server is going to serve by a method that the foreign law authorizes in its own domestic actions (FRCP 4(f)(2)(A)) or delivering the papers to the defendant (FRCP 4(f)(2)(C)(i)).

But this raises its own problems. Bill and Maggie take the view that FRCP 4(f)(2) simply doesn’t apply when the Convention applies, since (they say) the Convention is not an agreement that “allows but does not specify other means.” That seems to me not to be right. Article 10 doesn’t actually specify the means of service. It provides for channels of transmission. This is clearest in Articles 10(b) and (c). Article 10(b) provides that documents can be transmitted for service by competent persons in the state of origin to competent persons in the state of destination, without specifying the method of service. Article 10(c) provides that documents can be transmitted for service by an interested person in the state of origin to competent persons in the state of destination, again without specifying the method of service. Article 10(a) provides that documents can be transmitted directly to the defendant through the postal channel without specifying the method of service. (It doesn’t specify whether the service must be by registered mail; it doesn’t specify whether a signature acknowledgment is required; etc.). At least that’s how I see it.2Let me complicate this view by pointing out that the 2024 conclusion and recommendation on this topic, which I covered in a post from July, says that article 10(a) includes transmission and service by email. But I would still want to say it doesn’t specify the method of service (e.g., who may send the email? Must there be proof of delivery? To whom may the email be sent to constitute good service?)

In this sense, Article 10 fits in nicely with the Convention as a whole. Even the main channel of transmission, the central authority, isn’t about specifying methods of service, but rather about specifying the channels through which you can transmit a document abroad for service.3Except for the provision in Article 5 that requires the central authority to serve process by a method specially requested, which I leave to the side as the exception that proves the rule.

Bill and Maggie are careful to note that two other provisions of the Convention, Articles 11 (on bilateral agreements) and 19 (on foreign law expressly providing for receipt of documents coming from abroad for service) could provide a basis for service by email. I am not sure how important either of those is in practice, but more fundamentally, I would note that both refer to methods of transmission of documents for service, not to methods of service. I don’t think I’d noticed that point before, and so I would be hesitant about relying on whatever I’ve written in the past on Article 19.

• 1 With a caveat about Articles 11 and 19, which I mention below.
• 2 Let me complicate this view by pointing out that the 2024 conclusion and recommendation on this topic, which I covered in a post from July, says that article 10(a) includes transmission and service by email. But I would still want to say it doesn’t specify the method of service (e.g., who may send the email? Must there be proof of delivery? To whom may the email be sent to constitute good service?)
• 3 Except for the provision in Article 5 that requires the central authority to serve process by a method specially requested, which I leave to the side as the exception that proves the rule.

#Email #HagueServiceConvention

Case of the Day: ECS Brands v. Brubeck

The case of the day is ECS Brands, Ltd. v. Brubeck (D. Colo. 2024). ECS sought confirmation of an arbitral award against Michael Brubeck, who resided in the Czech Republic. It moved for an order directing the clerk to sign a request for service under the Service Convention.

Under the Convention (art. 3), a request for service must be forwarded by an “authority or judicial officer competent under the law of the State in which the documents originate.” The law of the state of origin determines competence. The US position is liberal:

The persons and entities within the United States competent to transmit service requests abroad pursuant to Article 3 include any court official, any attorney, or any other person or entity authorized by the rules of the court. The United States Central Authority plays no role in service requests involving persons or parties located abroad in private litigation matters and such requests are transmitted by the forwarding authorities in the United States directly to the requested State.

It used to be that some foreign central authorities balked at executing requests for service signed by US lawyers. That’s understandable, because in most states lawyers do not make requests under the Convention. The Special Commission has helped dispel the problem in conclusions and recommendations, for example, C&R 86 of 2024 (“The SC recalled that it is for the law of the requesting State to determine the competence of the forwarding authorities (Art. 3)”) and a similar C&R in 2003. So when I was still handling service matters myself, I would often ask a clerk to sign a request.

Nowadays my sense is that is less necessary or useful, but it is nevertheless surprising to see a court deny a request to have a clerk sign the request, as the court did here. Perhaps (I do not know) the central authority in the Czech Republic has been reluctant to accept requests forwarded by American lawyers?

I suspect the reason for the decision is not so much about the request for the clerk to sign the form, which in my experience anyway typically doesn’t require a motion, but the other odd things ECS requested. It wanted the clerk to provide certified copies of the papers (it’s not necessary to serve certified copies, and in any even you don’t need to make a motion to get certified copies of papers; you just need to ask and pay the fees) and to “correlate” the certified copies with “yet-to-be-provided “certified … translations,” and then to send them abroad via certified mail. This kind of request, which is out of the ordinary and maybe somewhat onerous, is likely to get a judge interested in shielding the clerks.

Counsel who are serving documents abroad and aren’t expert in it ought seriously to consider outsourcing. That’s not a pitch for business. Seriously, don’t call me, I will thank you but refer you elsewhere, most likely to Viking Advocates, who in my view are the real experts on service abroad in practice.

#CzechRepublic #HagueServiceConvention