What the Second Circuit Got Wrong About Rule 4(f) and the Hague Convention

"In December 2025, the U.S. Court of Appeals for the Second Circuit affirmed a decision from the U.S. District Court for the Southern District of New York that service of two China-based defendants by email violated the Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638, also known as the "Hague Convention," and therefore was not permitted under Rule 4(f) of the Federal Rules of Civil Procedure."

"Rule 4(f) of the Federal Rules of Civil Procedure identifies the following three avenues for serving an individual in a foreign country: "(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:"

In December 2025, the Second Circuit affirmed a Southern District of New York ruling that email service on two China-based defendants violated the Hague Convention and was not allowed under Rule 4(f). The dispute arose from Smart Study’s appeal after dismissal of two defendants alleged to have manufactured or sold counterfeit Baby Shark products. Rule 4(f) enumerates three means for serving individuals abroad: internationally agreed means such as the Hague Convention; methods prescribed by the foreign country's law or directed by foreign authorities; and other methods reasonably calculated to give notice when not prohibited. The Second Circuit examined whether the Hague Convention explicitly permits email rather than whether it prohibits email.

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