The interpretation of Article 10 of the Hague Service Convention continues to be the most vexing international service of process issue facing US courts. Article 10(a) preserves “the freedom to send judicial documents, by postal channels, directly to persons abroad … [p]rovided the State of destination does not object.” Does this provision allow for service via email, and if so, does it allow for service via email in states that have objected? The recent decision in Amazon.com, Inc. v. Robojap Techs. LLC (W.D. Wash. 2021) provides a model for courts confronting the issue without appellate guidance.
Amazon sought leave of court to serve process on two defendants who resided in India, Pawar and Kumar, by email. The company had also attempted service via the Convention’s central authority mechanism, but it noted that it had taken more than a year for the Indian central authority to serve process on another defendant earlier in the case. Amazon “argue[d] that because the Hague Convention says nothing express about email service and India only objected to service by postal channels, the Convention does not prohibit service by email.”
The court recognized the many recent cases—all at the district court level—that had permitted service by email in similar circumstances. But it recognized the clear error in Amazon’s argument, which “gets things backwards.” Since the lists of methods of service the Convention authorizes or permits is exclusive, any form of service “not expressly permitted by the Convention” is “impermissible and prohibited. To conclude otherwise would mean that the Hague Convention’s forms of service are not exclusive, contrary to the Supreme Court’s clear pronouncement on this subject.” Although many courts have given weight to states’ failure to object expressly to service by email, the judge recognized that “[b]ecause the Convention does not expressly permit email service, India had no reason or need to affirmatively reject it for it to be considered prohibited.”