Cross-border
Service of Process
Cross-border service of legal documents involves delivering legal papers from one country to another party or institution. This process usually follows specific international agreements and domestic regulations to ensure the effective delivery of documents and the fairness of related legal procedures.
Typically, plaintiffs and defendants have different stances in disputes over the delivery of documents electronically: Foreign defendants emphasize adherence to the "Federal Rules of Civil Procedure" and the "Hague Service Convention," advocating for delivery through traditional means and international agreements, and opposing delivery via email or other electronic means, fearing that this practice might bypass statutory service procedures. American plaintiffs, on the other hand, argue that in cases where the "Hague Service Convention" does not apply, such as when the recipient's address is unknown, cross-border documents can be served electronically through email or social media, believing that this does not violate international agreements or the "Federal Rules of Civil Procedure."
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1
Viewpoint of Foreign Defendant
Rule 4(f) of the Federal Rules of Civil Procedure outlines the plaintiff's obligation to serve the summons and complaint on the defendant, while Rule 4(h)(2) specifies the manner of serving a foreign corporation, referring to the execution in accordance with Rule 4(f), which means:
(1) by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents;
(2) if there is no internationally agreed means, or if an international agreement allows but does not specify other means, by a method that is reasonably calculated to give notice:
(A) as prescribed by the foreign country's law for service in that country in an action in its courts of general jurisdiction;
(B) as the foreign authority directs in response to a letter rogatory or letter of request; or
(C) unless prohibited by the foreign country's law, by:
(i) delivering a copy of the summons and of the complaint to the individual personally; or
(ii) using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; or
(3) by other means not prohibited by international agreement, as the court orders.
Therefore, in accordance with Rule 4(f), service is only permissible "by a method that is reasonably calculated to give notice" if "there is no internationally agreed means of service, or an international agreement allows but does not specify other means," through the methods outlined in 4(f)(2)(A)-(C) or by means provided under 4(f)(3). However, if a country is a signatory to the Hague Convention and opposes service via postal means, the service of legal documents on individuals and companies in that country should be conducted in accordance with the Hague Convention or through bilateral treaties between that country and the United States. A Temporary Restraining Order (TRO) that commands service "by a combination of electronic publishing and email, along with any notice received by the defendant from third-party financial institutions like PayPal, Alipay, Amazon Pay, should constitute reasonable notice after consideration of all circumstances," as mentioned under Rule 4(f)(3). Utilizing this method for the service of the summons and complaint might not comply with the requirements of Rule 4(f) of the Federal Rules of Civil Procedure, potentially constituting a procedural impropriety.
The greater concern is that plaintiffs could adjudicate their rights without fulfilling the service process: that is, by freezing e-commerce platform accounts and subsequent settlement, plaintiffs could theoretically resolve the litigation completely without ever filing a lawsuit against any defendant. In this way, plaintiffs effectively circumvent the statutory service process entirely.
2
Viewpoint of American Plaintiff
The Hague Service Convention explicitly states in Article 1 that if the address of the person to be served with the document is unknown, then the Convention does not apply. If the Hague Service Convention is not applicable, and since Rule 4(f) of the Federal Rules of Civil Procedure does not specify the method of service for a Temporary Restraining Order (TRO); and Rule 65(b) outlines the contents and timing of a TRO but also does not specify the method of service for it; then a federal district court may allow for reasonable electronic methods of cross-border document service, such as email, websites for publishing notices, or even social media platforms like Twitter, Facebook, WeChat, and QQ.
Additionally, the method of serving documents via email and posting on designated websites in such cases is not prohibited by international agreements, as the Hague Service Convention does not explicitly exclude the service of documents through email or by posting on designated websites.
Furthermore, in the view of courts in the United States, when a signatory opposes the alternative methods of service provided by the Hague Service Convention, such opposition is limited to those specific methods of service and does not imply opposition to other forms of service, such as service by email or posting on a website. For example, the United States District Court for the Southern District of Florida, in the case of Stat Med. Devices, Inc. v. HTL-Strefa, Inc., noted that opposition to alternative forms of service specified in the Hague Service Convention is limited to the specific methods of service opposed. Similarly, the United States District Court for the Southern District of New York in the case of Gurung v. Malhotra indicated that courts acting under Federal Rules of Civil Procedure 4(f)(3) still have the discretion to determine alternative methods of service, provided that the signatory has not explicitly opposed these methods. Therefore, in the eyes of some federal courts, service of documents via email or internet communication does not violate international agreements. Additionally, service of documents in investigations under Section 337 of the United States International Trade Commission (ITC) is not governed by the Federal Rules of Civil Procedure and, some argue, is also not bound by the Hague Convention.
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