Pribetic on Service by Mail from New York
Antonin Pribetic (Steinberg Morton Hope & Israel LLP) has posted The Postman Always Rings Twice: New York Appeals Court Validates Service of Process by Mail on Canadian Defendants on SSRN.
The recent decision of the New York Appeals Division in New York State Thruway Auth. v Fenech represents an American revolution in conflict of laws with fundamental implications to cross-border litigation.The Fenech decision overturns prior precedent against foreign service of process by mail under Article 10(a) of the Hague Service Convention. If the Fenech decision stands, it will put many process servers out of work and render service through the official diplomatic channels of the Central Authority moot.
Canada should formally withdraw its Declaration under Article 10(a) of the Hague Service Convention that it does not object to service by postal channels. Otherwise, Canadian defendants in foreign proceedings are at a marked disadvantage, both in terms of challenging a foreign court’s assertion of personal jurisdiction and subject-matter jurisdiction. Personal service should remain the cornerstone of jurisdiction, bounded by the pillars of comity, reciprocity, good faith and order and fairness.
I have had very good exchanges on this issue with Antonin on several occasions. I am not sure I agree with his take on these questions. Here is my view:
1. Does Fenech “overturn prior precedent against foreign service of process by mail under Article 10(a) of the Hague Service Convention”? Sort of. The main point in Fenech was to overturn the (erroneous) precedent that had held that Article 10(a) permits service of judicial documents except for summonses and other process through the postal channels. The erroneous view is held by a minority of American courts, but as far as I know not held by courts anywhere else in the world. It stems from the language of Article 10(a), which refers to the freedom to send judicial documents, while Article 10(b) and (c) refer to the freedom to effect service of documents. But Fenech did not break any new ground in holding that service by mail in Canada is permissible. Many American decisions have so held, based on Canada’s lack of an Article 10(a) objection.
2. Will Canadian defendants be “at a marked disadvantage, both in terms of challenging a foreign court’s assertion of personal jurisdiction and subject-matter jurisdiction.”? Not that I can tell, if I understand Antonin’s point correctly. Effective service of process, in a US action at least, is not sufficient to establish the US court’s personal jurisdiction or its subject-matter jurisdiction; a Canadian defendant could challenge both in the US proceedings.