Dysfunctional Equivalence: The New Approach to Defining "Postal Channels" Under the Hague Service Convention


In recent years, article 10(a) of the Hague Service Convention, which allows for the sending of judicial and extrajudicial documents abroad by postal channels, has proven difficult to apply in the face of commercial and technological change. The difficulties stem from the fact that the Convention neglects to define the term "postal channels." In 2006, the Permanent Bureau of the Hague Conference on Private International Law promulgated the newest edition of the Practical Handbook on the Operation of the Hague Service Convention, in which it recommends the adoption of a functional equivalent approach for evaluating whether service via modern alternatives to post, such as private courier, facsimile, or email, constitutes service via postal channels. This Comment critiques the Permanent Bureau's functional equivalent approach, finding that such an approach likely will not result in a workable definition or a practical set of guidelines. This is because incentives against testing and litigating service by modern alternatives to post are strong. Moreover, judges will likely avoid deciding the issue in the interest of judicial economy. Those cases that are considered by judges will be difficult to decide under the new approach if a foreign country views service as a sovereign act. The Comment concludes by suggesting a revision that eliminates the current ambiguity and instead roots the Convention in practical language that eliminates the need for impractical functional equivalent analyses.

About the Author

Comments Editor, UCLA Law Review, Volume 55. J.D. Candidate, UCLA School of Law, 2008; B.A., Brigham Young University, 2004.

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