Zhang v. Baidu.com Inc., No. 11 Civ. 3388 (S.D.N.Y. June 7, 2013) [click for opinion]
Plaintiffs alleged that Defendants People’s Republic of China ("China") and Baidu.com, a Chinese corporation providing Internet search engine service ("Baidu"), conspired to prevent their "pro-democracy political speech" from appearing in Baidu's search engine results. Plaintiffs originally tried to serve China and Baidu using the primary mechanism provided under the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters (the "Convention"), through the Central Authority designated by the foreign country (the Chinese Ministry of Justice in the case of China). However, under Article 13 of the Convention, service may be refused if the foreign country "deems that compliance would infringe its sovereignty or security." China refused to effectuate service in this case under Article 13.
Plaintiffs then sought permission from the court for alternative service under Federal Rule of Civil Procedure 4(f)(3). Baidu objected, arguing that, because China expressly exercised its right under Article 13, ordering alternative service would have the effect of overriding China's invocation of its sovereignty and security. Baidu also argued that Article 13 would be a "dead letter" if a United States court could simply circumvent a signatory's invocation of its sovereignty or security by ordering workaround service. The court disagreed, explaining that authorizing service within the United States pursuant to Rule 4(f)(3) in a manner that does not call upon China to effect service does not override its invocation of its sovereignty and security. The court referred to the oft-quoted Supreme Court statement that "[t]he only transmittal to which the Convention applies is a transmittal abroad that is required as a necessary part of service."
Having determined that it would authorize alternative service, the court next had to determine what form of service to use. The court chose service on New York counsel, stating that the other three options (publication in China, e-mail or fax) involved transmission of documents abroad and would therefore implicate the Convention.