Pursuing an individual or business in China is notoriously difficult for several reasons. One of them is that at the outset of any lawsuit, a complaint needs to be filed and served – meaning, it must be demonstrated to the Court that the complaint was provided to the named defendant(s) in a satisfactory manner. The law provides for several methods to accomplish this, but some methods are simply unavailable when trying to serve a Chinese defendant. This post will discuss whether email service is possible.
Application of the Hague Convention
A recent case that is currently on appeal breaks down the analysis. Smart Study Co. v. Acuteye-US, et al. is a case in the Southern District of New York. Smart Study owns multiple intellectual property rights associated with the insanely popular “Baby Shark” song, and it filed a lawsuit against many defendants located in China who were marketing and selling counterfeit Baby Shark products via their Amazon storefronts. Smart Study served those defendants via email addresses identified by Amazon.
The question of whether email service can be used to serve Chinese defendants rests on the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (or, the “Hague Convention” for short). Both China and the United States are parties to the Hague Convention, and Federal Rule of Civil Procedure 4(f) is what gives effect to the Hague Convention and its exceptions:
“Unless federal law provides otherwise, an individual . . . may be served at a place not within any judicial district of the United States:
(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;
(3) by other means not prohibited by international agreement, as the court orders.”
Even though the Court had initially granted Smart Study’s request to serve the defendants by email, some of the defendants eventually appeared and challenged Smart Study’s ability to effectuate service in mainland China by email. The Court agreed the Hague Convention did not allow it. The Smart Study court did conclude the Hague Convention does not apply where a defendant’s address is unknown. However, in this particular case, the Court also concluded Smart Study had failed to meet its burden of showing it had “exercised reasonable diligence in attempting to discover a physical address for service of process” and, therefore, the Hague Convention did apply.
Application of Chinese Law
Then, because the Hague Convention did apply, the Court secondarily analyzed whether defendants in mainland China could be properly served by email as a matter of law. The Court decided they could not:
“Article 284 expressly provides that, subject to exceptions not applicable here, “no foreign agency or individual may serve documents or collect evidence within the territory of the People’s Republic of China without the consent of the in-charge authorities.” That provision is unambiguous: foreign individuals cannot serve documents unless Chinese authorities consent to their doing so. Moreover, and as previously discussed, China has objected to Article 10(a) of the Hague Convention, thus disallowing service by postal channels. Thus, a foreign individual or entity cannot, as a general rule, directly serve an individual in China by any means—not just email.”
As mentioned above, the Smart Study decision is currently on appeal. Notably, other courts, even in the Second Circuit, have reached contradictory decisions. Inevitably, this will be a big issue for international litigation cases involving Chinese defendants until a consensus is reached.
For more on what it takes to effectively serve process under the Hague Convention on a China-based defendant, check out Hague Service of Process on Chinese Defendants.