Full Report (PDF, 1.98MB)
Map: The Use and Types of Electronic Service of Process (PDF, 550KB)
Jurisdictions Surveyed: Australia | Belgium | Brazil | Canada | China | Colombia | England and Wales | European Union | France | Germany | India | Israel | Japan | Mexico | New Zealand | Russian Federation | South Korea | Turkey
This report surveys the rules regarding the service of process in 18 jurisdictions around the world, with particular focus put on rules regarding service in civil proceedings and the availability of the use of electronic means in the context of domestic and international service. The report covers the jurisdictions of Australia, Belgium, Brazil, Canada, China, Colombia, England and Wales, France, Germany, India, Israel, Japan, Mexico, New Zealand, Russian Federation, South Korea, Turkey, and the European Union.
While the rules for service vary widely among the surveyed jurisdictions, certain distinctions and commonalties stand out, particularly concerning electronic service of process and other documents related to proceedings. Some of the differences predictably arise from the distinction between jurisdictions that belong to the English common law system and those that belong to (or are influenced by) the civil law traditions. Jurisdictions that belong to the former typically require plaintiffs to serve process (the service of originating documents, i.e., the lawsuit “petition,” “complaint,” “claim,” or “summons,” etc. by which a lawsuit is initiated) on the respondent parties; while jurisdictions belonging to the latter tradition generally require certain documents, including the originating documents, to be served by the hand of a judicial official or specifically authorized personnel (such as a postal employee or law enforcement officer) who will serve the recipient in person or via mail (physical or electronic), although attorney-to-attorney service is sometimes allowed. This, and similar fundamental differences between the rules of service between the surveyed jurisdictions also appear to shape the various approaches they have adopted with regard to electronic service of process. While each survey in this report includes a general overview of the rules of service in the jurisdiction in question, due to the rich variety of systems, this summary will focus on those interesting distinctions and commonalities that stand out in relation to electronic service. However, before proceeding to the discussion of electronic service, some general observations are made concerning rules regarding international service.
II. Rules Regarding International Service
Generally, the surveyed jurisdictions have adopted specific rules governing the procedure by which service of process on persons located abroad can be effected through government bodies, which in turn request the service to be made by the local authorities of the country in which the recipient is located through diplomatic or consular channels. These specific rules include details such as the form that the relevant documents must comply with and the determination of authorities that will forward documents to foreign authorities. In the common law jurisdictions surveyed, international service of process by parties to a lawsuit is generally subject to the permission of the court. Under certain circumstances, such permission may not be required. These jurisdictions typically allow parties to serve documents abroad in a manner that complies with bilateral treaties or the local law of the country in which the recipient is located. Parties can also make use of the official channels that are made available to them.
All states surveyed in this report, with the exception of New Zealand, are party to the Hague Service Convention, albeit with various declarations and reservations. In particular, many jurisdictions surveyed have declared that they will not permit one or more of the ”direct service” methods provided in Article 10 of the Convention. While some jurisdictions require the use of the Convention procedures for extraterritorial service of process in the absence of a relevant treaty, in others the use of Convention procedures are optional and service can otherwise be effected in a manner that complies with the law of the country in which the recipient is located. Treaties between states may provide for different or more simplified procedures for international service; for example, the trans-Tasman proceedings regime adopted by Australia and New Zealand introduced streamlined processes for persons located in one country to start court proceedings against persons located in the other.
In the Americas, the 1975 Inter-American Convention on Letters Rogatory is the main international instrument used for international service of process and transmission of judicial notifications. Brazil, Colombia, and Mexico are among the 19 states that are party to the Convention.
In the European Union, Regulation (EC) No 1393/2007 (Service Regulation) provides for fast-track channels and uniform procedures for the transmittal of documents from one Member State to another, for purposes of service in the latter (the Service Regulation is currently applicable in England and Wales). The rules provided are applicable in service of judicial and extrajudicial documents in civil and commercial matters, with the exception of revenue, customs, or administrative matters, or to the liability arising from use of state authority. According to the procedure provided by the Service Regulation, the documents are sent between national ”transmitting” and ”receiving” agencies using any appropriate means, however, the receiving agency, after receiving the forwarded document from the transmitting agency, will serve the documents to the final recipient using methods prescribed by national rules of service. The European Commission has published a proposal to amend the Service Regulation that, among other things, introduces the possibility of serving judicial documents directly on persons domiciled in another Member State through electronic means if certain conditions are fulfilled.
III. Electronic Service of Process and Other Documents
A. Requirement of Consent
A majority of the surveyed jurisdictions that allow the electronic service of documents have conditioned the validity of such service on the consent of the recipient if the recipient is not a public entity, especially in relation to the service of originating documents. Such is the case in Belgium (where consent is asked for electronically in the electronic transmission system maintained by the Government), China (although serving non-domiciled parties by email does not require consent), France, Israel (for documents other than originating documents, originating documents may be served electronically upon consent starting on Jan. 1, 2020), the Russian Federation, and South Korea. In Germany, documents may be served electronically on “highly reliable persons” such as attorneys; other persons need to expressly consent to be served documents by electronic means. In Turkey, where electronic service is mandatory for certain recipients, persons for which electronic service is not mandatory may voluntarily obtain electronic service addresses in the centralized electronic service platform, and persons with active electronic service addresses are required to be served electronically in all steps of a civil proceeding with certain exceptions.
B. Implicit Consent
Generally, content must be given explicitly and in advance, however, in some jurisdictions, inclusion of email addresses on originating documents, or other documents, especially those provided by legal representatives or attorneys, might indicate implicit consent to be served electronically or at least create a presumption of authenticity for the address when used in process-related correspondence. For instance, in England and Wales, the inclusion of an email on an application form or a response to an application form filed with the court may be construed as consent to be served electronically, although email addresses included in the letterheads of legal representatives may not be used for electronic service unless acceptance of service by email is explicitly stated. Similarly, in the Russian Federation, including a party’s email address on a claim may be automatically recognized as consent to be served electronically. In Colombia, communications between judicial authorities and the parties or their lawyers are presumed to be authentic when they originate from the email provided in the complaint or in any other part of the proceedings.
Exceptionally, jurisdictions may mandate the use of electronic service on certain persons: In Turkey, electronic service of documents via a centralized secure electronic transmission portal is mandatory for a list of persons including all legal persons established under private law and all registered attorneys for all steps in a civil process, including the service of the originating documents. Exceptions exist for service of documents between attorneys of parties to a lawsuit, or in-person service at the office of the court register, however, postal or other in-person service is generally not allowed if the recipient party has registered with the centralized electronic portal. In Colombia, natural persons who are merchants must be notified at the electronic address provided by them for receiving legal notifications in the commercial registry.
C. Originating Documents and Electronic Service as Substituted Service
In many jurisdictions surveyed, the service of originating documents before the courts, such as the “complaint” or “statement of claims,” is subject to different and stricter rules than that applicable to other documents that must be transmitted among parties in a lawsuit; this is expected, due to the crucial role the initial notification of a lawsuit to a defendant plays in the exercise of a person’s right to a fair trial or due process. This fact is generally reflected in the rules governing electronic service in many of the jurisdictions surveyed, where originating documents may not be served electronically as a primary method, while electronic service is valid as a default method for other documents. In jurisdictions which have such rules, however, electronic service of originating documents may be allowed by a court as substituted service, when the recipient could not be served through the primary method of service. For instance, in Australia, several courts appear to have allowed the substituted service of originating documents to be made to electronic addresses including email and private messaging facilities provided by social media services, when plaintiffs have failed to effect service on defendants using primary methods. In order to be valid, courts appear to require evidence that service to such electronic addresses will render it likely that the documents will be brought to the attention of the recipients. The rules in New Zealand are similar: A plaintiff may apply for an order for substituted service, including through the use of electronic means, where reasonable efforts have been made to serve the documents in a way that meets the requirements for personal service under the general rules, which require the personal service of the statement of claim and notice of proceeding. In Canada, service of documents via email, including originating documents, is considered valid for proceedings before the Supreme Court of Canada, but service must be proved by an email read receipt or confirmation by the recipient. In civil proceedings before other federal-level courts, electronic service cannot be used as a primary method of service for originating documents, while other documents may be served electronically. Similarly, in the Canadian province of Ontario, originating documents before Ontario courts may not be served electronically as a primary method, however, courts may order substituted service via email.
D. Service via Social Media Platforms and Alternative Online Messaging Applications
Service via social media platforms has been permitted in several of the surveyed jurisdictions as a method of substituted service. For instance, in Australia, several state and territory level courts have allowed substituted service via Facebook’s private message facility and via LinkedIn. Likewise, courts in a number of Canadian provincial jurisdictions have allowed for substituted service via social media services such as Facebook, Twitter, LinkedIn, and Instagram’s private message facility.
In some jurisdictions, online messaging applications other than email appear to be allowed as alternative channels for electronic service. In England and Wales, the courts have recently started to permit applications such as WhatsApp and Facebook Messenger for an alternative method of service of claim. Similarly, some high courts in India have allowed applications alternative to email such as WhatsApp as a method of substituted service. The Delhi High Court has reportedly considered the “double tick” mark that shows a message as having been read as a prima facie proof of delivery of the summons in a case where the summons was sent through WhatsApp. Likewise, Chinese courts are allowed to serve litigation documents through social media platforms such as WeChat and other electronic means as long as the receipt of the documents can be confirmed.
E. Electronic Service via Regulated Electronic Platform
In jurisdictions that allow electronic service of documents, rules regarding electronic service appear to reflect the characteristics of the legal tradition to which the jurisdiction belongs. For example, some jurisdictions that belong to the civil law tradition or have mixed systems that allow electronic service at least at some point in the civil process, such as Belgium, Brazil, France, Germany, Israel, South Korea, and Turkey, require service to be effected through regulated secure electronic transmission systems that are established by special rules and are usually administered or supervised by a public entity. On the other hand, the majority of English common law jurisdictions surveyed, while generally not allowing electronic service as a primary method for originating documents, allow electronic service on regular electronic addresses when service is substituted service or documents other than originating documents are served.
Prepared by Kayahan Cantekin
Foreign Law Specialist
Last Updated: 12/30/2020