The Postman Always Rings Twice: New York Appeals Court Validates Service of Process by Mail on Canadian Defendants

6 Pages Posted: 3 Mar 2012 Last revised: 5 Mar 2012

See all articles by Antonin I. Pribetic

Antonin I. Pribetic

Ministry of the Attorney General -Crown Law Office -Civil

Date Written: March 2, 2012

Abstract

The recent decision of the New York Appeals Division in New York State Thruway Auth. v Fenech represents an American revolution in conflict of laws with fundamental implications to cross-border litigation.The Fenech decision overturns prior precedent against foreign service of process by mail under Article 10(a) of the Hague Service Convention. If the Fenech decision stands, it will put many process servers out of work and render service through the official diplomatic channels of the Central Authority moot.

Canada should formally withdraw its Declaration under Article 10(a) of the Hague Service Convention that it does not object to service by postal channels. Otherwise, Canadian defendants in foreign proceedings are at a marked disadvantage, both in terms of challenging a foreign court’s assertion of personal jurisdiction and subject-matter jurisdiction. Personal service should remain the cornerstone of jurisdiction, bounded by the pillars of comity, reciprocity, good faith and order and fairness.

Suggested Citation

Pribetic, Antonin I., The Postman Always Rings Twice: New York Appeals Court Validates Service of Process by Mail on Canadian Defendants (March 2, 2012). Available at SSRN: https://ssrn.com/abstract=2014950 or http://dx.doi.org/10.2139/ssrn.2014950

Antonin I. Pribetic (Contact Author)

Ministry of the Attorney General -Crown Law Office -Civil

Ontario
Canada

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