HAGUE EVIDENCE CONVENTION

American courts have long battled with the legal questions raised when an American discovery rule or policy is hindered by foreign legislation or procedures controlling the collection of evidence overseas. These cases have often entailed battles with foreign ‘blocking legislation,’ which impose a range of civil or criminal penalties for the removal of evidence from the nation. 

When a party invokes foreign blocking legislation as a defense to a discovery request, a court is faced with a decision between rejecting the information sought or directing the commission of activities that violate the law of the situs of the evidence. 

WHY ACTUALLY HAVE THE CONVENTION ON THE TAKING OF EVIDENCE ABROAD IN CIVIL OR COMMERCIAL MATTERS

One of the principal aims of the Convention was to satisfy ‘the need for an effective international agreement to build up a model system to overcome gaps between the common law and civil law approaches to the collecting of evidence overseas.’  These differences are substantial in their nature.

One of the most notable distinctions is that the practice of pretrial discovery by private parties that have evolved in the United States is unknown in civil law nations. This concern has injected tension into international court processes involving American parties. 

A second key distinction is that, in civil law nations, the taking of evidence is performed predominantly by the courts. Judges pick who witnesses to interview and what questions to ask in order to gather evidence for a trial rather than private attorneys conducting depositions and interrogatories. After interrogating the witnesses, the judge prepares a summary record of the evidence. No verbatim record of testimony is retained. Moreover, in the United States, the gathering of evidence for use in a lawsuit involving a foreign party is a purely private matter so long as it does not involve compulsion or a breach of the peace; in civil law countries an attempt by a private party to gather evidence for use in a proceeding abroad may be an illegal usurpation  of a ‘public judicial’ function, and considered an affront to that nation’s ‘judicial sovereignty.’

The United States Supreme Court, by a vote of five to four, held in Aerospatiale that the Convention constitutes one means, but not the exclusive or mandatory means, for seeking documents, interrogatory answers, deposition testimony, or requests for admissions from foreign parties over which a U.S. court has jurisdiction.   The ruling urged the lower courts to engage in a comprehensive comity analysis in deciding whether to order the use of Convention procedures or to conduct discovery under the Federal Rules of Civil Procedure. 

Under this case, the comity analysis should examine: [A.] the competing interests of the governments involved (for example, the U.S. interest in full discovery versus foreign principles of judicial sovereignty, and the interest of all signators in maintaining a smoothly functioning international legal system); [B.] the probability that Convention’s procedures would be effective; [C.] the intrusiveness of the discovery requests (e.g., whether the requests seek trade secrets or matters affecting the national defense of a foreign sovereign); [D.] the origin of the information being sought; [E.] the costs of transporting the witnesses, documents, or other evidence to the United States; [F.] the skill with which the requests are drafted (i.e., are they clear, specific, and limited to obtaining relevant information?); [G.] the importance to the litigation of the documents or information sought; and [H.] the availability of alternative means of securing the information.

SO, WHAT IS THE CONVENTION ACTUALLY

The Convention on the Taking of Evidence Abroad in Civil or Commercial Matters—more frequently referred to as the Hague Evidence Convention—is a multilateral convention that was created under the aegis of the Hague Conference on Private International Law (HCPIL). The treaty was drafted in 1967 and 1968 and concluded in The Hague on 18 March 1970. It entered into operation in 1972. It permits transmission of letters of request (letters rogatory) through one signatory state (in which the evidence is requested) towards another signatory state (where the evidence is kept) without resort to consular and diplomatic channels. Inside the US, getting evidence under the Evidence Convention might be linked to comity.

The Hague Evidence Treaty was not the first convention to address the transfer of evidence from one state to another. The 1905 Civil Procedure Convention—also signed in The Hague—contained regulations dealing with the transfer of evidence. However, that previous agreement did not attract extensive support and was only approved by twenty-two nations.

THE IMPORTANCE OF THE CENTRAL AUTHORITY

The convention outlines a mechanism whereby each signatory state appoints a ‘central authority’ to accept and assess incoming ‘letters of request’ for taking evidence in that nation.

The central authority evaluates the letter of request to ensure that it conforms with the provisions of the convention. If the letter of request does comply, the central authority subsequently ‘transmits’ the letter of request ‘to the authority competent to execute it (article 2), which effectively implies to a court.

Under Article 9, the judicial authority that executes a letter of request uses its own legislation as to the techniques and processes for executing the letter of request.

Under article 13, the records establishing the implementation of the letter of request are to be sent by the requesting authority (the recipient of the letter of request) to the requesting authority by the same channel that was used by the requesting authority. Additionally, whenever the letter of request is not implemented (in whole or in part), the requesting authority must be informed immediately and instructed of the reasons.

THE IMPORTANCE OF PRETRIAL DISCOVERY

The convention also extends to pre-trial discovery: acquisition of evidence prior to trial without the previous consent of a court. While this is a common procedure in many common law nations, it was thought objectionable by many others. Countries may nonetheless oppose to application to pre-trial discovery by an objection pursuant to Article 23. As of April 2019, the agreement applies to pre-trial discovery in fifteen nations. Despite the widespread opposition, twenty-six states have decided to keep pretrial discovery entirely out of the picture. Seventeen other states have restricted the applicability of pre-trial discovery despite ostensibly allowing the same

An illustration of a partial objection to pre-trial discovery comes from Mexico, which requires that legal processes begin, that the papers sought can be identified and that the requested documents have a demonstrable connection to the ongoing legal actions.

It also only covers requests to gather evidence or undertake any other judicial act, which is specifically excluded from the scope of the convention. Letters of request are available only ‘for use in judicial actions, begun or proposed.’ A judgment or order execution or enforcement procedure, including orders for temporary or protective measures, is specifically excluded from the scope of the Convention.

Thus, injunctions, restraining orders, forced sales, receiverships, or mandamus cannot be obtained under the Convention. The Convention-required action must be treated as a judicial act in the state of execution as well. Requests only to get copies of public documents such as birth certificates or marriage certificates, or to publicize the existence of court proceedings, presumably would not be recognized as judicial actions, and a request for such acts would not be honored under the Convention. 

HOW IS THE HAGUE CONVENTION ON EVIDENCE DIVIDED

In an attempt to bridge the gap between common law and civil law procedures of international assistance, the Convention specifies two main means for acquiring evidence. The first is the letter of request process set forth in Chapter I (articles 1-14), which is the technique of foreign judicial assistance most typically applied by civil law systems. The second is the taking of evidence by diplomatic officials or commissioners laid forth in Chapter II (articles 15-22). Taking evidence abroad by notice, stipulation, or court-appointed commissioners is a common-law method that is somewhat equivalent to this one.

The Hague Evidence Convention has sixty-three signatories as of 2021. The Hague Evidence Convention is ratified by fifty-six of the HCPIL’s member nations. In addition, six governments that are not members of the HCPIL have signed the Hague Evidence Convention. Article 39 of the Hague Evidence Convention specifically authorizes nations who were not members of the HCPIL at the time of the negotiation of the treaty to accede to the Convention.

OTHER FORMS OF DISCOVERY

Parties may also employ the more straightforward discovery rule outlined at 28 USC 1782 when requesting information from US federal courts.

Section 1782 of Title 28 of the United States Code is a federal provision that permits a litigant (party) to a judicial process outside the United States to apply to an American court to receive evidence for use in the non-US case. The entire name of Section 1782 is ‘Assistance to foreign and international tribunals and to plaintiffs before such tribunals.

In principle, an applicant under Section 1782 just has to establish that [A.] to get testimony from a witness who lives outside of the jurisdiction of the court in which the application has been submitted, one must be an ‘interested person’ in that witness’s home country, [B.] as well as a ‘foreign tribunal.’; and [C.]  the person from whom evidence is sought is in the district of the court before which the application has been filed.  The sort of evidence that may be gathered under Section 1782 includes both documented evidence and testimonial testimony.

DISCOVERY IN THE EU

Regulation (EC) No. 1206/2001 on Cooperation Between the Courts of Member Nations in the Taking of Evidence in Civil or Commercial Matters has substantially replaced the agreement between EU states. Council Regulation (EC) No. 1206/2001 of 28th May 2001 on cooperation between the courts of the Member States in the collection of evidence in civil or commercial disputes is a European Union regulation in the subject of judicial cooperation. It permits the taking of evidence from one member state to another without resorting to consular and diplomatic processes. 

With the exception of Denmark, all EU member nations are subject to the rule. The 2015 Danish European Union opt-out referendum, which would have opted-in, was dismissed by the public.

Civil lawsuits used to use the Hague Evidence Convention or letters rogatory (also known as letters of request) to request that a court in one nation get evidence from another country where the witness resides before the new rule was implemented. This legal document normally needed transmission from the originating court to the Ministry of Foreign Affairs (MFA) in the state of origin, who subsequently transmitted it, sometimes via several embassies, to the MFA in the destination state. The foreign MFA would then transfer the papers to the judicial authorities in that state, who would then go about gathering the needed proof. The proof would then be returned through the same long-winded processes.

This law offers a relatively streamlined method by permitting direct interaction between the courts in the member nations. The use of a standard request form supplied in the regulation’s appendix is required. This facilitates the procedure by being widely accepted by the necessary authorities. Various provisions in the rule encourage the use of communication technologies like telephone conferencing and videoconferencing, etc.

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Sources

1. Société Nationale Industrielle Aérospatiale v Lee Kui Jak [1987] UKPC 12, [1987] AC 871 is a judicial decision of Privy Council on appeal from Brunei which was for many years, and arguably still is, the leading authority in relation to anti-suit injunctions under the English common law

The case concerned a fatal helicopter crash that killed Yong Joon San, a wealthy business magnate, amongst others. Mr. Yong’s widow tried to sue various parties, including Société Nationale Industrielle Aérospatiale (SNIA) as a manufacturer of the helicopter, in the courts of Texas under the Wrongful Death Statute in that state. SNIA asked the courts to restrain the claimants from proceedings in court by way of an anti-suit injunction. Their applications failed at first instance and on appeal, but succeeded in the Privy Council.

2. CONVENTION DU 17 JUILLET 1905 RELATIVE À LA PROCÉDURE CIVILE

(Cette Convention est remplacée dans les rapports entre les Etats contractants par la Convention du 1er mars 1954 relative à la procédure civile) 

3. Article 2

A Contracting State shall designate a Central Authority which will undertake to receive Letters of Request coming from a judicial authority of another Contracting State and to transmit them to the authority competent to execute them. Each State shall organize the Central Authority in accordance with its own law.

Letters shall be sent to the Central Authority of the State of execution without being transmitted through any other authority of that State.

4. Article 9

The judicial authority which executes a Letter of Request shall apply its own law as to the methods and procedures to be followed.

However, it will follow a request of the requesting authority that a special method or procedure be followed, unless this is incompatible with the internal law of the State of execution or is impossible of performance by reason of its internal practice and procedure or by reason of practical difficulties.

A Letter of Request shall be executed expeditiously.

5. Article 13

The documents establishing the execution of the Letter of Request shall be sent by the requested authority to the requesting authority by the same channel which was used by the latter.

In every instance where the Letter is not executed in whole or in part, the requesting authority shall be informed immediately through the same channel and advised of the reasons.

6. C) FORMULATION OF PRE-TRIAL DISCOVERY OF DOCUMENTS

4. With reference to Article 23 of the Convention, the United Mexican States declares that according to Mexican law, it shall only be able to comply with letters of request issued for the purpose of obtaining the production and transcription of documents when the following requirements are met: (a) that the judicial proceeding has been commenced; (b) that the documents are reasonably identifiable as to date, subject, and other relevant information and that the request specifies those facts and circumstances that lead the requesting party to reasonably believe that the requested documents are known to the person from whom they are requested or that they are in his possession or under his control or custody;

(c) that the direct relationship between the evidence or information sought and the pending proceeding be identified

7. Barbados, Colombia, Kuwait, Liechtenstein, Nicaragua, and Seychelles

8. For many years, district courts and appellate courts disagreed as to

(a) the scope of permitted discovery (evidence-taking) under Section 1782,

(b) who may request section 1782 discovery,

(c) at what stage of a non-US proceeding a section 1782 order may be granted,

(d) the meaning of the statute’s term ‘tribunal,’ and

(d) whether an applicant under section 1782 needs to show that the requested evidence would be ‘discoverable’ in the foreign jurisdiction.

The case law concerning Section 1782 was largely clarified in 2004 when the Supreme Court of the United States issued its decision in Intel Corp. v. Advanced Micro Devices, Inc. Intel held that

(a) section 1782 discovery may be sought by any ‘interested person,’

(b) such discovery may sometimes be sought even prior to the initiation of formal proceedings outside the United States, and

(c) a ‘tribunal’ within the meaning of the section is any tribunal that acts as a ‘first instance decisionmaker.’

The court also largely did away with any requirement of ‘discoverability’ before the non-US tribunal.

In essence, Intel held that section 1782 discovery is available to a non-US litigant almost as freely as discovery is available in connection with a lawsuit that is pending entirely before a court in the United States.

Section 1782 has received great attention in recent years, following Intel.

9. The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person. … The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure. A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.

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