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Written by Mayela Celis

The Permanent Bureau of the Hague Conference on Private International Law (HCCH) is organising an event entitled HCCH a / Bridged: Innovation in Cross-Border Litigation and Civil Procedure, which will be held on 11 December 2019 in The Hague, the Netherlands. This year’s edition will be on the HCCH Service Convention.

The agenda and the registration form are available here. The deadline for registrations is Monday 11 November 2019. The HCCH news item is available here.

A bit of background with regard to the HCCH Service Convention and IT: As you may be aware, the Permanent Bureau published in 2016 a Practical Handbook on the Operation of the Service Convention (available for purchase here), which contains a detailed Annex on the developments on electronic service of documents (and not only with regard to the Service Convention). In that Annex, developments on the service of documents by e-mail, Facebook, Twitter, etc. and its interrelationship with the Service Convention were analysed.  Not surprisingly, cases where electronic service of process was used were rare under the Service Convention (usually, the physical address of the defendant is not known, thus the Service Convention does not apply and the courts resort to substituted service).

A more important issue, though, appears to be the electronic transmission of requests under the Service Convention. According to a recent conclusion of the HCCH governance council, it was mandated that:

Electronic transmission of requests

“40. Council mandated the Permanent Bureau to conduct work with respect to the development of an electronic system to support and improve the operation of both the Service and Evidence Conventions. The Permanent Bureau was requested to provide an update at Council’s 2020 meeting. The update should address the following issues: whether and how information technology would support and improve the operation of the Conventions; current practices on the electronic transmission of requests under the Conventions; legal and technological barriers to such transmission and how best to address these; and how a possible international system for electronic transmission would be financed. “

In contrast, the European Union seems to be at the forefront in encouraging electronic service of documents as such, see for example the new proposal for Regulation on the service of judicial and extrajudicial documents in civil or commercial matters, click here (EU Parliament, first reading).

Article 15a reads as follows:

“Electronic service

1. Service of judicial documents may be effected directly on persons domiciled in another Member State through electronic means to electronic addresses accessible to the addressee, provided that both of the following conditions are fulfilled: [Am. 45]

(a) the documents are sent and received using qualified electronic registered delivery services within the meaning of Regulation (EU) No 910/2014 of the European Parliament and of the Council, and [Am. 46]

(b) after the commencement of legal proceedings, the addressee gave express consent to the court or authority seized with the proceedings to use that particular electronic address for purposes of serving documents in course of the legal proceedings. [Am. 47].”

By adding the word “both” the European Parliament seems to restrict electronic service to documents after service of process has been made (see previous European Commission’s proposal). This, in my view, is correct and gives the necessary protection to the defendant. In the future and with new IT developments, this might change and IT might be more widely used by all citizens (think of a government account for each citizen for the purpose of receiving government services and service of process -although service of process comes as a result of private litigation so this might be sensitive-), and thus this might provide more safeguards. In my view, the key issue in electronic service is to obtain the consent of the defendant (except for cases of substituted service).

 

{ 4 comments… add one }
  • Maciej Lewandowski October 21, 2019, 6:42 am

    thank you for the nice words about the EU work in the field of the electronic service of judicial documents. However, as I understand the notion of “being on the forefront” refers only to cross-border service. As regards domestic service, the situation is uneven across the EU (in some MS it is quite developed). Also, for the domestic service, already for years f.i. in New Zealand it is possible sending documents to email address given by the other party for the purposes of service.
    One of the simplest ways to generalize cross-border court electronic service would be through ITU/UPU convention making equivalent the recommended postal service (with return confirmation) with qualified electronic delivery. That calls not only for the out of box thinking but also going beyond the silos of international organizations.

  • Mayela Celis October 21, 2019, 7:18 am

    Absolutely. I am referring to cross-border service. Domestic electronic service is uneven at best.
    Good idea re your second point. In fact the Permanent Bureau of the Hague Conference has explored the Universal Postal Union (UPU) Convention(s) and work and has included relevant information in the Service Handbook. Such instrument(s) could be used when effecting service under article 10(a) of the Service Convention (what we call “postal channels”).

  • Ted Folkman October 21, 2019, 6:33 pm

    The issue Mayela refers to in her last comment–the Universal Postal Union Convention and “postal channels” under Article 10(a), is fascinating. Before the arrival of ubiquitous commercial email services like gmail, some postal services offered forms of “e-post” service, but in most countries that’s no longer so. Given the different conceptions of the nature of service of process in civilian and common law jurisdictions, do the two systems interpret the meaning of “postal channels” differently, and in such a way that private commercial email is possibly within the postal channel in one and outside of it in the other? Even leaving this doctrinal question aside, the overwhelming concern of the Convention with territoriality is in tension with email as we know it today. The details of what happens when you send and I receive an email are obscured by the simple “postal” metaphor, but when you think through the technical details of what’s going on behind the scenes, the question whether transmitting an email necessarily involves a transmission to the country where the defendant is physically is located is complex. One thing we can say with certainty is that in light of the complexities and the lack of clear guidance, there are a lot of bad decisions on the question of electronic service, particularly in the United States. I am hopeful that the December conference will help shed some light!

  • Mayela Celis October 22, 2019, 7:20 am

    Thank you so much Ted for your very useful comment!

    In addition to the complex issues that you mentioned, we need to consider whether a simple e-mail might provide the necessary safeguards to the defendant, that is: is that e-mail address checked regularly by the defendant? Has that e-mail address been provided by the defendant? Has the defendant read the e-mail? Do we have a confirmation of receipt that is trustworthy? Has the e-mail not gone to the spam folder? Is the email sent through secure means so that it is not intercepted by third parties (here postal companies could play a role)? Have the email or the attached documents been electronically signed? Etc.

    With the increasing number of scam emails being sent across the globe, it is difficult to make sure that a “normal citizen” will actually read an email coming from an unknown sender about some pending litigation in another country, believe that this is true, and take action if he or she has never given consent to service by these means.

    Also would a litigator go to so much hassle to get service of process quashed later on? Isn’t just easier to take the safe option and just serve documents on the defendant on his or her physical address (unless of course substituted service is ordered)? Or as in the USA try to serve the defendant through several service methods/means simultaneously (which is not usually the civil law way of doing things)?

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