150 Reasons for Email Non-Delivery

According to the drafters, it is apparent to every email user that emails reach the recipient almost in real-time. But is that really the case? Everyone has faced a situation where an email they sent for some reason never reached the recipient. IT specialists identify nearly 150 reasons for such scenarios. Someone might make a typo in the address. The sender's server might be automatically considered as spamming by the recipient's server software. The size of the message might exceed a specified limit. The inbox might be full. The mail server might be temporarily unavailable. The recipient might have completely blocked the possibility of receiving messages from a specific sender. And so on.

Annotations on the Reason for Non-Delivery

While in the case of registered mail deliveries, a court can easily determine why a letter did not reach the recipient (the postman states the reason on the delivery form - for example: "the addressee has moved"), in the case of email correspondence, the proposed regulations do not provide such a procedure at all. The court's secretariat will simply send the parcel to the party and consider it delivered. There will be no obligation to send it again. All responsibility for technical issues with its dispatch will be shifted onto the recipient. 

Necessary Examination of Logs

Such an approach would be justified if, at the same time, a mechanism was provided for parties to verify why a given consignment did not reach them. The party that did not receive the email due to technical reasons could then challenge the fiction that it was delivered by claiming, for example, that their mail server automatically deemed the court's server as spamming. In the new reality, however, parties will not have such an opportunity. The new regulations do not foresee the obligation for courts to examine the mail server logs of the sender and the recipient.

The Ultima Ratio Example

Apologising in advance to readers for citing an example from our practice at this juncture, it is necessary to highlight how we investigate emails that are improperly delivered. It seems the best way to illustrate the seriousness of the situation. 

According to the Ultima Ratio regulations, claims are delivered to the defendant at the address indicated in the agreement that is the source of the arbitration clause, or at an address in a public register. If the message does not reach the addressee, an appropriate technical message appears on the case profile. The IT system administrator also examines the reason for non-delivery.

The arbitrator and parties see the following message (example from yesterday):

The Arbitrator Has Peace of Mind

In the above example, the arbitrator can most likely, with a clear conscience, consider the claim as effectively delivered. This is because, according to the IT administrator of the court, the agreement between the parties indicated a non-existent email address, and thus the consequences of such negligence clearly burden the party that provided such an address. Importantly, the report also contains a detailed technical message from the court's mail server. Should it emerge in the future that the defendant has complaints against the arbitrator for recognising the consignment dated 22 February 2021 as delivered, they will be able to raise an appropriate objection in the clause proceedings. All necessary information and data are found on the case profile.

Important Not to Throw the Baby Out with the Bathwater

It is difficult to share the arguments of lawyers about being "chained to email" or the lack of a possibility to take leave. If society desires swift justice, the moment when the court delivers orders, letters or judgments to the parties cannot depend on their free will. Nonetheless, the proposed manner of implementing such regulation raises serious doubts both legally and in terms of IT. In Ultima Ratio, the percentage of improperly delivered consignments with a claim is roughly 1%. Fortunately, subsequent deliveries are already carried out within the court's IT system. They involve the publication of a letter on the case profile, about which parties are immediately informed via SMS and push notifications.