1. Everyone agrees that the Convention is exclusive, which means that when it applies, you have to use one of the methods of service that it authorizes or at least permits. This is the holding of Volkswagen, and the distinction between authorized and permitted methods is found in Water Splash v. Menon.
2. There is no provision in the Convention that expressly authorizes or permits service by email. If any provision does the trick, it’s Article 10(a), which permits service by postal channels—but only when the state of destination has not objected.
3. Countries like China and India have objected. Since the only possible provision that permits service by email can’t be used, the service is improper under the Convention.
4. A court cannot use FRCP 4(f)(3) to authorize a method of service that is inconsistent with a treaty.

Or more briefly, like this:

Limited methods.
Email is not on the list.
The plaintiff’s sad tears.

The case begins with some questions of waiver and timeliness that are not of much general interest. It considers a couple of ancillary Convention questions that are of some interest. First, the court notes that there was a real issue about whether the Convention applied at all, given that the defendant’s address in China was unknown. It remanded for further proceedings on whether the plaintiff had been sufficiently diligent to make that argument stick. The court also rejected a creative but (in my view) obviously wrong argument that emailing the defendant a link to the documents was not a transmission of the documents themselves. If you haven’t transmitted the documents, then how can you really say you have effected service? After all, the plaintiff did not claim it had served the documents fictitiously or by publication.

But leaving those issues aside, it was gratifying to see a court stick the landing and get the right answer for the right reason. The issue is not free from doubt: the Florida state courts continue to get the issue wrong, and the Florida Supreme Court declined to hear an appeal from a case in which I had indicated the intent to submit an amicus brief for Professor Huo Zhengxin explaining why the Florida rule offends the interests of states that have objected under Article 10. But the trend is very, very good.

1. Leaving aside the academic possibilities of Article 19, etc. ︎

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Marriages fall within the exclusive jurisdiction of each of the various states of the United States, and there is no centralized registry through which our diplomatic offices could ascertain the marital status of a U.S. citizen. Furthermore, the federal government of the United States does not record these administrative acts. Consequently, the federal government of the United States does not possess any information regarding the civil status of U.S. citizens.

The Embassy and Consulates of the United States do not issue civil status certificates, apostilled documents, nor do they record any civil documents. Prior to September 1, 2025, U.S. citizens in Japan could make a sworn declaration regarding their civil status before a consular official with notarial authority. However, the consular official had no means to verify the accuracy of the sworn declaration. The federal government of the United States does not guarantee the veracity of such documentation, does not independently confirm the accuracy of its contents, and does not provide any enforcement mechanism should the statements be inaccurate. Therefore, the U.S. Embassy and its U.S. Consulates General will discontinue offering this service.

I think what the embassy is saying is that because US citizens might make false declarations regarding their capacity to marry in Japan (for example, I suppose, falsely stating that they are unmarried, or that if married, the spouse has died or a divorce has become final), the embassy will no longer provide notarial services for such declarations. This makes no sense to me. A notary, or a consular official acting as a notary, administers an oath and certifies the identity of the person who makes the oath. He or she does not guarantee the accuracy of the statements made under oath. And the State Department has a rule, 22 C.F.R. § 92.10, that seems right on point:

If the notarizing officer has reason to believe that material statements in a document presented for notarization are false, and if no basis exists for refusing the notarial service in accordance with § 92.9, he may consider the advisability of informing the applicant that he will perform the service only with a specific waiver of responsibility included in the notarial certificate. Furthermore, a notarizing officer may, in his discretion, add to the specific waiver in the notarial certificate a statement of verifiable facts known to him, which will reveal the falsity of material in the document. However, normally a notarizing officer shall exercise great caution not to limit the general privilege of a United States citizen while abroad to execute under oath any statement he sees fit to make, including mistaken, unnecessary, and even frivolous statements: Provided, That substantial and compelling reasons do not exist which impel restraining action on the part of the notarizing officer. On the other hand, experience has shown the desirability of including, as standard practice, a specific waiver of responsibility in all authentications (§ 92.38) executed in connection with divorce proceedings.

The note from the embassy is so unusual that I suspect there must be a back story to explain why an ordinary disclaimer of responsibility, as outlined in the rule, is insufficient. Perhaps the Japanese authorities have expressed to the embassy unhappiness about false declarations in particular cases? In any event, I don’t think that the embassy’s explanation—civil status in the US is a matter of state law and the federal government has no information about citizens’ civil status—makes any sense.

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The case of the day is Whoop, Inc. v. Serinity Group (D. Mass. 2026). The case is, in a sense, routine, but I wanted to write about it because it’s a Massachusetts decision, because I like the “Whoop” company name, and because it illustrates a couple of familiar but still useful points about service by email.

Whoop, the Boston-based manufacturer of fitness wristbands, sued Serinity, a French company that did business as Aurora, for trade dress infringement, seeking damages and an injunction under the Lanham Act, common law, and Mass. Gen. Laws c. 93A, our statute on unfair and deceptive acts or practices in trade or commerce.

Whoop first sought to serve process on Serinity via a huissier, who tried to make service at the French company’s registered address, but who reported that the company was no longer at that address. Whoop then sought leave to serve process by email, and the court obliged.

Seeking to serve process by huissier was appropriate and in fact a good way to go. France has not objected to service by alternate means under Article 10 of the Service Convention. Thus the Convention permitted Whoop to attempt service “directly through the judicial officers, officials or other competent persons of the State of destination.” A huissier is undoubtedly the officer the drafters of Article 10 had in mind. And FRCP 4(f)(2)(A) authorizes service by the means prescribed by French law.

Once it became clear that Aurora’s physical address was unknown, the Convention had no further role to play. Under Article 1, the Convention simply doesn’t apply if the address of the person to be served is unknown. Some courts impose a duty of diligence here, but there’s no doubt Whoop satisfied whatever obligation of diligence it may have had by attempting service at the address Aurora had registered with the French authorities.

Thus the only issue was whether, under FRCP 4(f)(3), the court should, in its discretion, allow service by email. The judge said yes, since the email address to be used was published on Aurora’s website and Aurora used the website to take orders. The judge also observed that an earlier email sent to that address had not been returned as undeliverable, though I think that is a weak piece of evidence without more technical detail, as it relies on the assumption that Aurora is using a well-behaved email server.

Because France, unlike, say, China, has not made an Article 10 objection, it is worth pointing out that even if Aurora’s physical address were known, and even if the Convention therefore applied, service by email might nevertheless work. Your view on that question will turn on whether you think that commercial email as we know it in 2026 is within the scope of the “postal channels” referred to in Article 10(a).

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In my post on the beginning of the war with Iran, I wrote: ” I have grave concerns about whether this President has the moral authority to take the country to war.” That concern has grown and grown over the last month. And it’s not just a concern about moral authority. It’s a concern about strategic understanding and the ability to make rational decisions.

Today the American president said: “A whole civilization will die tonight, never to be brought back again.”¹ Maybe this is his way of trying to pressure Iran into reopening the Straits of Hormuz, a closure that the Trump administration was obviously unprepared to meet when the war started. Who knows what he is thinking. No doubt he wasn’t really thinking. The point is, war is a deadly serious business and should be led by serious people. As a country, we have to express revulsion at comments like this from our head of state and the commander-in-chief of our armed forces. We cannot have carnival barkers and charlatans at the helm. “War is a matter of vital importance to the State; the province of life or death; the road to survival or ruin.” It is not a TV show.

1. Compare Pres. Truman’s speech after the bombing of Hiroshima. “We are now prepared to obliterate more rapidly and completely every productive enterprise the Japanese have above ground in any city. We shall destroy their docks, their factories, and their communications. Let there be no mistake; we shall completely destroy Japan’s power to make war. It was to spare the Japanese people from utter destruction that the ultimatum of July 26 was issued at Potsdam. Their leaders promptly rejected that ultimatum. If they do not now accept our terms they may expect a rain of ruin from the air, the like of which has never been seen on this earth. Behind this air attack will follow sea and land forces in such numbers and power as they have not yet seen and with the fighting skill of which they are already well aware.” And recall that that much more rational and measured statement didn’t work: the United States ended up bombing Nagasaki before the Japanese finally surrendered. ︎

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The case of the day is Fox Corp. v. Media Deportes Mexico S. de R.L. de C.V. (S.D.N.Y. 2026). The case raises a perennial Letters Blogatory question: when the Hague Service Convention applies, can you serve a temporary restraining order or a preliminary injunction on a defendant in a way that you couldn’t serve the summons and complaint? For example, in a foreign state that has objected to service under Article 10 of the Convention, can you serve the TRO or the preliminary injunction by email?

In today’s case, Fox had licensed Media Deportes Mexico to broadcast sporting events in Mexico. It claimed that MDM had breached the license agreement by obtaining an injunction, in a Mexican court, barring Fox from using the Fox Sports trademarks in Mexico. Fox sued in New York, seeking a TRO to restrain MDM from using the Fox Sports trademarks in Mexico or in the US, and from prosecuting its injunction case in the Mexican courts. The court issued the TRO and authorized Fox to serve the TRO electronically, which Fox did. Fox then asked the court to find MDM and related entities, including MSD, in contempt of court for violating the TRO. Eventually, MSD appeared in the New York case and argued that the service of the TRO by electronic means was impermissible under the Convention. In the meanwhile, the Second Circuit decided the Smart Study case, which held that when the Convention applies and when the state of destination has objected to service by alternate means, service by email is impermissible.

The court rejected MSD’s argument. The judge grounded his analysis in part on the last sentence of Article 15 of the Convention. Here is Article 15 (I’ve omitted the second paragraph and bolded the key language):

Where a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and the defendant has not appeared, judgment shall not be given until it is established that—

the document was served by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within its territory, or

the document was actually delivered to the defendant or to his residence by another method provided for by this Convention,

and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.

* * *

Notwithstanding the provisions of the preceding paragraphs the judge may order, in case of urgency, any provisional or protective measures.

That last sentence is obviously key. But I am not certain that it means what the judge thought. I do not think the sentence means, “In case of urgency, the judge can authorize methods of service that the Convention otherwise would not permit.” Instead, I think it means, “The judge can, consistent with the Convention, order provisional or protective measures, even if there is no evidence that the service on the defendant has been accomplished.” The Convention, in other words, is no bar to issuance of a TRO directed to a defendant where there is no proof of service, even though it may, under Article 15, be a bar to issuance of a default judgment against a defendant in such circumstances.

Still, US law of course requires notice to a defendant subject to a TRO before the defendant can be found in contempt for violating the TRO. The trouble is that a TRO implies that there is a need for emergency relief and thus a need to get notice to the defendant very quickly. How to square that need with the Convention?

It seems to me that the key is in Article 1, which provides that the Convention applies “where there is occasion to transmit a judicial or extrajudicial document for service abroad.” If I want to serve a defendant with a summons and complaint, I can’t just send a letter giving the defendant notice that he had been served, even if I include the summons and complaint with my letter.¹ It’s not enough for the defendant to read about the lawsuit in a newspaper. But if I want to make sure a defendant subject to a TRO has notice of the TRO, I think I could simply write him a letter. Or, I suppose, I could put an ad in his local newspaper. What matters, for satisfying due process, is that the defendant has actual notice. So even if I send the TRO, which is undoubtedly a judicial document, by mail, I am not sending it abroad for service. I am just providing notice. That’s the reason why “serving” it (that is, sending it) by email is permissible.

The judge also suggested a reason to distinguish this case from Smart Study. Smart Study, he wrote, involved entry of a default judgment, and this case didn’t. Perhaps the point is that a violation of the Convention really only matters to the defendant when a judgment enters that rests on the violation. But when the Convention applies, it applies, and I think a defendant threatened with contempt of court would disagree with the thrust of the judge’s point. It seems to me that my reading of Article 15 avoids the need to make a point like this.

In short, I think the judge got to the right result, but I think there is a much better and clearer way to get there.

1. Sometimes service by mail is permissible, of course! ︎

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The case of the day is Petersen Energía Inversora v. Argentine Republic (2d Cir. 2026). This was the appeal from the $16 billion dollar judgment in favor of minority shareholders of YPF, who sought damages after Argentina nationalized the company in 2012. Although there were two consolidated cases, I’m going to focus just on one, brought by Petersen.¹ Petersen sued in New York, bringing claims for breach of contract under Argentine law. Their claim was that Argentina was liable because it had failed to make a tender offer before expropriating the shares of the majority owner, Respol, as YPF’s bylaws required. Petersen had pledged its shares to secure loans it had taken to buy them, and it planned to use YPF dividends to pay the lender. But when Argentina expropriated Repsol’s shares, the company stopped paying dividends, so Petersen could not pay its debts. It sought bankruptcy protection in Spain, and in the bankruptcy, it sold a majority interest in its claim against YPF to a subsidiary of Burford Capital, a publicly traded litigation finance firm. In 2018, the Second Circuit denied Argentina’s motion to dismiss on foreign sovereign immunity grounds. Petersen Energía v. Argentine Republic, 895 F.3d 194 (2d Cir. 2018). Usually at Letters Blogatory the FSIA decision is the main event. But this case went the distance and ended with a summary judgment in favor of Petersen on the breach of contract claim, and then a trial on damages. Petersen’s judgment was for $7.5 billion, plus $6.9 billion in prejudgment interest. Burford stood to recover 70% of that, or about $10 billion.

Everyone agreed that the merits were governed by Argentine law, and I don’t have a lot to say about the substance of the Second Circuit’s discussion of the merits, except to say that to this American lawyer, it seems odd to claim that when one shareholder causes a corporation to violate its bylaws, it is therefore liable for breach of contract to another shareholder for damages flowing from the violation. As the court’s opinion observes, the obvious remedy in a case like that is a corporate law remedy. That would mean suing in the courts of Argentina, which for obvious reasons Petersen was not keen on doing.² But isn’t the answer to that just to shrug your shoulders and say that if investing in Argentina is just too risky, perhaps you should do something else with your money?³

A lot of the coverage has been about the implications for Burford in losing its risky bet, and about the implications for big-time litigation finance generally. Given the Second Circuit’s en banc practice and the unlikelihoods that the Supreme Court would grant cert. in a case that turns on Argentine contract law, the panel decision is almost certainly the end of the road, which doesn’t mean that we won’t see an petition for rehearing en banc and a cert. petition, given the amount at stake. Burford has said as much in its press release. I’m sure there will also be coverage about increased borrowing costs for countries like Argentina. But there is one point about how to frame the decision that I’d like to note. Burford characterized the decision as “a remarkable abdication of the Second Circuit’s role as a guardian of the rights of NYSE investors.” I really don’t understand that at all. There can be no question that the forum provided a fair hearing to both sides. But everyone agreed that Argentine domestic law governed the outcome, and while it’s possible that the Second Circuit got the law of Argentina wrong, I don’t see why it makes sense for a US court to interpret the law of Argentina with the goal of protecting US investors. The US does a good job of protecting investors by providing fair tribunals and by having stable and investor-friendly corporate and securities laws that the courts interpret in a consistent way. Burford didn’t purchase its stake in Petersen’s claim against Argentina under any naive illusion that it wasn’t taking a very large legal risk (including a collection risk that I don’t discuss here), and I assume that Petersen didn’t invest in the company under the illusion that it was investing in a Delaware corporation.

1. And I’m going to ignore some of the technical stuff about ADRs and the like. ︎
2. I don’t know if it would have been possible to include an agreement to arbitrate in an Argentine corporation’s bylaws. ︎
3. That problem is the reason why we have investment treaties, but this is not a treaty case. Burford’s press release suggests that an investment treaty arbitration is coming. ︎

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Gavin Newsom, governor of California and potential Democratic presidential candidate, was asked the other day if he is a Zionist. He was like a deer in the headlights. He had just walked back his remarks on Israel and apartheid. Then came the question. He paused, repeated the question, and said something deeply weird and creepy: “I revere the state of Israel.” I can just imagine the political calculations whirling through his head as he struggled to come up with an answer to a simple question that wouldn’t offend anyone. He ended up saying something that I have never heard an American or Israeli Jew say, or for that matter, that I have ever heard anyone say about any state.

Why is this hard? Because on the left, where Gov. Newsom will be seeking votes, “Zionism” has become an all-purpose boogeyman. There is no good reason for this. Zionism is simply the belief that the Jewish people have a right to political self-determination in their land. That’s it! It’s just the belief that the very first sentence of Article 1 of the International Covenant on Civil and Political Rights, “All peoples have the right of self-determination,” applies to the Jews just as much as it applies to all other peoples.

You can be a Zionist and favor the two-state solution to the conflict between Israel and the Palestinians. In fact, that’s the position of the AJC and other leading Jewish advocacy groups, and it’s my position.

You can be a Zionist and oppose actions and policies of the Israeli government. (AJC and me).

You can be a Zionist and oppose actions by Jewish extremists in the West Bank. (AJC, and me).

You don’t have to “revere” the state of Israel to be a Zionist, and frankly, I think most Jews would rather you didn’t. We don’t want to be symbols of all that is good any more than we want to be symbols of all that is bad. And the idea of revering any state is, I think, deeply un-Jewish.

You might be someone who doesn’t believe that any people has a right to a state, someone who thinks that peoplehood just isn’t a basis for collective rights. “I reject nationalism,” or whatever. If that’s you, then I respect your views. You want every state to be more like the “settler-colonial states” (the US, Canada, Australia, etc.), and less like, say, France, or Japan, or any of the many Arab states, or the nascent Palestinian state. Just be sure that you apply your principles in an evenhanded way.

In short, if you think the Jewish people is a people just like any other people, with the same fundamental political rights, congratulations, you’re a Zionist! I wish that instead of cowering in fear in the face of activists who have distorted what Zionism means beyond all recognition for their own malign political goals, smart people like Gavin Newsom, who want to be leaders, should have the courage just to tell it like it is.

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If that’s right, then as Ingrid agrees, the most obvious answer is that of course the foreign sovereign can waive the service provisions of the FSIA, just as the foreign sovereign can waive the substantive immunity the statute provides. Note, though, that the statute (§ 1605(a)(1)) expressly provides for waiver of immunity, but it doesn’t expressly provide for waiver of the service provisions. This starts to get at Ingrid’s main point. She observes that there are some procedural rules that parties cannot waive, e.g., deadlines in ordinary civil litigation, which can only be modified with the court’s approval, or limits on the court’s subject-matter jurisdiction. She suggests that the FSIA’s service rules might be similar.

I am not sure the examples of non-waivable rules she cites really make the point, because court control of deadlines and congressional control of jurisdiction do not implicate just the interests of the litigant but rather institutional interests of the court and the state. (The situation is similar to objections under Article 10 of the Service Convention, which in my view anyway cannot be waived because Article 10 exists to protect the interests of the state, not the interests of the litigants). I don’t see that the method of serving process is like that. The FSIA’s rules seem to exist only to protect the interests of the foreign sovereign, so why should the foreign state be forbidden to waive them?

But Ingrid makes another point, which I think is stronger. She points out that under 28 U.S.C. § 1330(b), the court’s personal jurisdiction, in an FSIA case, is tied to whether “service has been made under section 1608 of this title.” She suggests that we can infer that the statute means to tie personal jurisdiction not just to any old method of service, but to service under the statute. That argument has a lot of appeal. But I am not sure it is right. Personal jurisdiction, like methods of service, seems only to implicate the interests of the litigant, so it, too, should be waivable. Another way to think about the statute is to say that the connection between the two sections means that waiver of the service rules is also waiver of the defense of lack of personal jurisdiction.

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The case of the day is Wepard Corp. v. Diaz, Reus & Targ, LLP (Fla. Dist. Ct. App. 2026). Diaz, Reus & Targ, a law firm, sued Wepard for allegedly unpaid legal fees. Wepard was located in Malta. DRT moved for leave to serve process by email, but Malta has objected to service by alternate means under Article 10 of the Service Convention. So as long-time readers know, service by email is inconsistent with the Convention, a point that more and more American courts are getting right. Wepard challenged the service, but the lower court held that service by email was permissible. Wepard appealed.

There’s no question that Florida law authorized service by email on its face. But as we know from Volkswagenwerk AG v. Schlunk, because the Convention is a US treaty and thus part of the law of the United States, and because the Convention is exclusive, the Supremacy Clause bars states from authorizing methods of service that the Convention does not authorize, or at least permit.

I have to say that Florida appellate court really missed the boat on this one. It noted that Malta had not expressly objected to service by email, and it reasoned that therefore, service by email was allowed. But the Convention does not allow all methods of service unless expressly objected to. It allows only the methods of service that it authorizes or permits. If Malta objects to service under Article 10, what other provision of the Convention authorizes or permits service by email? None.

A petition for discretionary review is now pending in the Supreme Court of Florida. I had the privilege to represent Professor Huo Zhengxin of the China University of Political Science and Law in Beijing, as a potential amicus curiae. (In Florida, at this stage, you just file a notice indicating your intent to file an amicus brief if the Supreme Court decides to take the case). The views of a scholar from a country like China with a lot of inbound US service will be useful to allow the Florida court to understand a couple of points that may not be apparent from any briefing of the US law issues. First, whatever the time savings that stem from service of process by email, they may be outweighed if, as in the case of China, the plaintiff will end up finding that the eventual judgment is unenforceable in the foreign country if based on service that was contrary to the Convention. Second, the misuse of alternate methods of service that are inconsistent with the Convention is a source of diplomatic friction between the United States and other countries, including China, that the courts ought not to exacerbate.

I’ll keep you posted.

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