Readers, the Hague Conference on Private International Law is hosting a conference on the use of IT in connection with the Hague Service Convention. The conference is the first in a planned series called “HCCH a|Bridged,” which are meant to be more informal than meetings of the Special Commission. The event will be held on December 11 at the Academy Building, on the grounds of the Peace Palace. I’ll be speaking on the first panel, titled “The Prism: The Tech Battle for e-Service.” It looks to be a useful and thought-provoking event! The HCCH is accepting registrations of interest here. Check it out!
I haven’t made any decisions about my presentation yet, but I may spend the next month or so noodling about technology and the Convention here on Letters Blogatory. There are a bunch of possibilities:
- Communications between Central Authorities and Applicants or Forwarding Authorities. How can a court or a litigant use technology to transmit a request for service to a foreign central authority? I haven’t devoted that much attention to this issue on the blog, though I wrote about it recently in response to a new paper noting the HCCH’s current efforts towards technical standards to improve communications with central authorities. Some central authorities already accept requests for service via electronic means.
- Trouble with Territoriality. One challenge in making use of electronic methods of service is the Convention’s strong focus on territoriality. We determine when the Convention applies by asking when there is occasion to transmit a summons abroad for service. We determine which foreign state is the relevant state by asking where the service is to be effected. But electronic methods of service are in strong tension with this notion. There are at least two ways of seeing this. First, we can delve into the technical details of what actually happens when we send emails. The technical details are complicated, but even abstracting away the technical stuff, the conceptual details are complicated, too. These problems exist whether we are talking about foreign central authorities making service of process under Article 5 or whether we are talking about litigants making service of process under, say, Article 10(a). Suppose I am suing someone who lives in Windsor, Ontario and I send a request to the Canadian central authority, and suppose that the central authority decides to serve the defendant via email (assuming that the service would meet the requirements of Canadian law—this is just a hypothetical). The defendant in Windsor drives across the bridge to Detroit to go to work, sits down at his desk, checks his email, and receives the summons. You see the problem. On a more technical level, suppose I am serving a defendant in France who used to live in America and uses a gmail.com account for personal email. I email the documents, which means that I send the message to my email server, which transmits them, perhaps through intermediaries, to the defendant’s email server, perhaps in the United States. There they will stay until the defendant, using a mail client software, retrieves them from the email server. Perhaps he retrieves them while in Germany. Where did I transmit the documents? Where were they served? Do we adopt a functional view, analogizing the situation to service by postal channels and ignoring the technical details about what is going on?
- Barriers in the Convention to Service By Electronic Means. In the United States, most litigants who want to use electronic methods of service want to avoid having to go through the foreign central authority. So let’s assume that the litigant just emails the document to the foreign defendant, and let’s ignore for the moment the problems of territoriality outlined above. Although there are too many American decisions approving this method of service in cases where the Convention applies, these decisions are clearly wrong, at least in the many states that have objected to service by postal channels. Everyone agrees that the Convention is exclusive, which means you need to find an article of the Convention that authorizes or at least permits the method of service you use. If the foreign state has objected to service under Article 10(a), I challenge anyone to find another article of the Convention that permits service by email. There isn’t one. The situation is a little more complicated in states that have not objected to service under Article 10(a), because then one can argue that service by email is service via the postal channel. That is dubious:
My view is that e-mail is permitted by Article 10(a) if the postal service of the sending state has an “e-post” service, as contemplated in Article 14 of the Universal Postal Convention. In the absence of such a service, it seems a stretch to me to say that if I use an ordinary commercial email service such as gmail, and I send you an email, I have sent it to you via the “postal channel.” …
This doesn’t mean I’m opposed to the idea of service by email. I simply don’t think the language of Article 10(a) in its current form [permits] it.
As you can see, there will be a lot to talk about at the December 11 event!