智仁原创 | 美国法院不得以电子送达作为对我国境内被告的有效司法送达

一、跨境电商企业面临境外被诉困境

A. Cross-border e-commerce

enterprise is facing the dilemma of being sued overseas 

In recent years, many e-commerce companies setting up business on Amazon have been sued for intellectual property infringement in the United States. The bank accounts of the e-commerce operators would be suddenly frozen by the US court, and the operators would receive an email from the agent of the US plaintiff. In the Email, the agent of the plaintiff informs the fact that he sued for intellectual property infringement before some court in the United States, and attaches a link to view the litigation documents, such as a summon and a sealed temporary restraining order (TRO), etc. as a form of service of judicial documents.

Because of the dilemma that the funds cannot be used freely due to the frozen of accounts, especially some accounts have been frozen huge funds. So, e-commerce defendants in our country will often actively agree on compensation with the rights holders after receiving such emails, rather than raise objections to the rights holder’s complaint both from substance and procedure of the case. This makes it easier and faster for rights holders to defend their rights, which objectively leads to more and more cases of such kind. Some people even maliciously file cases of intellectual property rights protection in US courts, which causing a huge risk of being sued for Chinese e-commerce operators.

Is there any other way beyond compensation when Chinese sellers encounter such cases? The author thinks that the service by email of the US court does not comply with the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters( the “Hague Convention”) and is not effective judicial service. Further, the temporary restraining order (TRO) or judgment involved in the case cannot take effect because there is no effective service to the defendants. Chinese sellers can plea on the grounds of procedural violations. In the following, the author takes a judgment of a US court as an example to discuss the service of judicial documents and how to solve the complaint occurred abroad.

二、美国地区法院以判例确定不能对我国境内被告以电子方式进行送达

B. The District Court of United States determined that the individuals or entities located in China could not be served by email.

On July 21, 2022, the United States District Court Southern District of New York issued a judgment in Smart Study Co., LTD. v. Acuteye-US, et al. According to the Hague Convention and the Federal Rules of Civil Procedure, it was determined that the plaintiff's service on the defendants located in China by email did not constitute effective service.

The plaintiff in this case owns a number of trademarks and copyrights in the United States. On July 6, 2021, the plaintiff sued several Chinese defendants for infringement of their trademarks and copyrights in the Southern District Court of New York, and applied to the court for a Temporary Restraining Order (TRO).The Southern District Court of New York granted Plaintiff's request for relief and authorized Plaintiff to serve the defendants by email accordance with Federal Rules of Civil Procedure Rule 4(f)(3).Two of the defendants proposed to lift the preliminary injunction, arguing that the court had no personal jurisdiction over the defendants and shouldn't serve case documents to the Chinese defendants by email, which was not in conformity with the Hague Convention and the Federal Rules of Civil Procedure. Subsequently, the plaintiff withdrew the lawsuit against the two defendants who raised objections and applied for default judgment against the remaining defendants who did not reply.

However, in accordance with the Hague Convention and the Federal Rules of Civil Procedure, and with reference to Article 11 of the Minutes of the National Symposium on Foreign-related Commercial and Maritime Trial Work “……In the event that the country where the person to be served is  a member state of the Hague Convention and objects to the service by mail under the Hague Convention, it shall be presumed that the country does not allow electronic service, and the people’s court shall not adopt electronic service.” The Southern District Court of New York determined that the plaintiff's email services to all defendants in this case were invalid, and the court lacked personal jurisdiction over the defendants, thus rejected the plaintiff's application for default judgment.   

三、律师解析

C. Analysis of lawyer 

(a) For the person located in a member state of the Hague Convention, the Chinese People's Courts conduct service in civil and commercial cases strictly accordance with the form stipulated in the Hague Convention.

Article 274 of the Civil Procedure Law of the People's Republic of China stipulates that a people's court may serve procedural documents on a party without a domicile within the territory of the People's Republic of China in the following ways: a. service in the way specified in an international treaty concluded between or acceded to by the state of the person to be served and the People's Republic of China; b. service through diplomatic channels; c. if the person to be served is a national of the People's Republic of China, entrustment of the embassy or a consulate of the People's Republic of China in the state where such person is located with service on its behalf; d. service on the agent appointed by the person to be served and authorized to accept service on his behalf; e. service on the representative office, or the branch or business agent authorized to accept service, established within the territory of the People's Republic of China by the person to be served; f. Service shall be made by post if it is permitted by the law of the State of the person to be serviced. If the acknowledgment of service is not returned within three months after the date of posting, and various circumstances justify the assumption that the document has been served, the document shall be deemed to have been served on the date of expiry of the time limit; g. Service by facsimile, email and any other means through which the receipt of the document may be acknowledged; h. If a document cannot be served by any of the above means, it shall be served by public announcement. The documents shall be deemed to have been served after three months from the date of the public announcement. According to this article, if the person to be served has no domicile within the territory of our country, it shall be served according to the method stipulated in the international treaty concluded or jointly acceded to by the country where the person to be served is located and our country. Due to the large number of participating countries in the Hague Convention, in judicial practice, the people's courts in China mostly serve the persons or entities who are overseas in accordance with the provisions of the Hague Convention. The Hague Convention stipulates a number of service methods, and the main method is to assist in the completion of the service of judicial documents in other countries through the central authorities of each contracting state. The Hague Convention stipulates the method of service by postal channels, and also expressly states that a contracting state can object to the service of judicial documents of other countries by postal channels within its own territory, which respects the judicial sovereignty of other countries and reflects the principle of international comity.

(b)When China acceded to the Hague Convention, it put forward reservations on service by postal channels, that is, foreign judicial organs shall not serve the person in China by postal channels in civil and commercial cases.

(c)In the past few years, a large number of intellectual property infringement cases against Chinese defendants were just like the Smart Study Co., LTD. v. Acuteye-US case: the plaintiff submitted the indictment; applied for a temporary restraining order to freeze the funds of the defendant's account for a short period of time; the court authorized the plaintiff's agent to serve the defendants by email; finally, the case was closed with the court's default judgment. Most of the Chinese defendants being sued are small businesses with weak ability to respond, and the temporary restraining order has increased their financial pressure. If they don't check their Email in time, they can't find the judicial documents serviced by email. They may face a negative situation that the temporary restraining order has been in effect and their accounts have been frozen when they check the email. In the end, they can only be forced to reconcile or give up responding to lawsuits and give up funds in the account.

The United States is a case law country. This decision of the Southern District Court of New York will play an important precedent role in the judicial service in others case. This provides a new solution for cross-border e-commerce enterprises in our country to deal with overseas intellectual property disputes, that is, to actively plea whether the judicial service is effective in the lawsuit, so as to strive to protect their legitimate rights and interests.

参考文献：

教育背景：

西南政法大学经济学学士、安徽财经大学法律硕士

专业方向：

涉外民商事纠纷、海事海商

执业格言：

笃实办案，实现共赢

教育背景：

法学学士

专业方向：

涉外民商事诉讼

执业格言：

道阻且长,行则将至