By: Akanksha A. Panicker
Letters rogatory or letters of request are a formal request from a court to a foreign court for judicial assistance. Letters rogatory are usually used in matters of taking evidence or service of process. A court often requires assistance from a foreign court in the procurement of witness evidence. It can ensure the same either via seeking to answer questions relevant to determining an issue of fact or for disclosure of documents. Letters rogatory provide courts with the aid to subpoena witnesses from foreign judicial or legislative authority.
Letters rogatory work as a standalone for transnational judicial assistance overseas when there is no treaty or agreement to govern the same. This is because they work as court requests for the performance of an act that could constitute a violation of that country’s sovereignty if done without the sanction of the foreign court. Consequently, their function effect service of process or to obtain evidence is done on a case-wise consensual basis. However, if the countries involved are parties to the Hague Service or Evidence Conventions, or the Inter-American Convention on Letters Rogatory and Additional Protocol, it is highly likely that the process under the central authorities designated under the treaties or other designated alternatives is applicable.
Letters rogatory take a significant period of time and go through a long set of channels. Consequently, the foreign judicial authority usually sets a date for letters of request. Signatories to the Hague Evidence Convention usually set a date within a few months of the request arrival in the receiving country. It must be noted here, however, that a few countries do allow evidence to be taken from voluntary witnesses, though the restrictions surrounding the same vary drastically across countries. In the past, letters rogatory were not transmissible directly between the relevant courts and relied on consular or diplomatic channels, effectively dampening the entire process. There have been various international conventions regarding the service of process and taking of evidence.
[1.0] LETTERS ROGATORY AND THE HAGUE SERVICE CONVENTION
One of the earliest conventions to simplify the letter rogatory procedure was the 1905 Civil Procedure Convention, signed at The Hague. Drafted only in French, only 22 countries ratified it. Later conventions, created after the Hague Conference on Private International Law, which was drafted in both English and French, commanded more support.
The Hague Service Convention, ratified in 1965, enabled designated authorities in each of the signatory states to transmit documents for service to each other, bypassing the diplomatic route. The Hague Evidence Convention, ratified in 1970, formalized procedures for taking of evidence.
The Convention establishes a procedure for a designated ‘central authority’ to receive and review incoming letters of request to obtain evidence and determine compliance with the Convention’s requirements. If compliant, the Central Authority then transmits the letter of request ‘to the authority competent to execute,’ which is usually a court. The judicial authority that executes a letter of request applies its own law to the methods and procedures for executing the letter of request. It is a commonality between the Hague Evidence Convention and the Letter Rogatory for the US forum judge to be the individual responsible for executing the request for judicial assistance. Consequently, an application or motion submitted to the court, regardless of the method that is actually being used to obtain the evidence abroad, is highly important.
The annexure to the Convention specifies the nature of the Letter of Request. It stipulates the competent judicial authority or officer to forward the document to the Central Authority of the relevant state. The Central Authority would then either execute the service itself or arrange for it to be executed by other means provided in Article 5 of the Service Convention. Letters rogatory generally include: [A.] grounds for the case and the charge, [B.] the facts of the matter so that the foreign judge is informed as to the crime committed and is likelier to provide judicial assistance [C.] nature of the assistance requested, [D.] the actual statutes that have been abrogated and [E.] a promise of reciprocity
There have been issues with the Hague Service Convention, however. Article 19 was specifically inserted to protect the Letters Rogatory method, but this differentiation is exceedingly hard to understand within the text of the Convention. Effectively, article 19 has been interpreted to authorize almost any service method that the receiving nation’s internal law may permit. Furthermore, proof of such permission under article 19 is vague and fickle, almost entirely reliant on case law to justify the same. Furthermore, there is no provision for what ‘permissible’ service method may be undertaken in countries with a federal system.
[2.0] LETTERS ROGATORY AND THE HAGUE EVIDENCE CONVENTION
While the Hague Evidence Convention determines whether the subpoena served abroad is transmitted via the Convention or letters rogatory, the procedure is roughly the same. The documents that need to be served are transmitted by a specific method to the receiving country. The receiving country is then obligated to fulfill service only by a local court with the jurisdiction to complete it while also adhering to internal laws. Inside the US, obtaining evidence under the Evidence Convention can be compared to comity.
The Convention establishes a procedure for a designated ‘central authority’ to receive and review incoming letters of request to obtain evidence and determine compliance with the Convention’s requirements. If compliant, the Central Authority then transmits the letter of request ‘to the authority competent to execute’ it, usually a court. The judicial authority that executes a letter of request applies its own law to the methods and procedures for executing the letter of request. Both the Hague Evidence Convention and the Letter Rogatory require the US forum judge be the individual to execute the request for judicial assistance, which means that the first step in acquiring said subpoena is putting forward an application or motion to the court, regardless of the method that is actually being used to obtain the evidence abroad.
After this is the forum court hearing, the next step is conducted immediately after it receives a motion to execute the Request for International Judicial Assistance. The opposing counsel can thus have a chance every step of the way to quash parts of the request and is encouraged to do so as the hearing is tantamount to gauging the subpoena’s validity by itself. If it does not hold water before transmission abroad, there seems little value in sending the subpoena request to be rejected at a later date following a much longer process. Since this argument to quash the request is prevalent, some grounds for the same may be [A.] that the request is irrelevant or [B.] that it exceeds the discovery limits permitted, [C.] that it imposes a greater burden on the witness or falls within the scope of privileged information or [D.] that it is unreasonably long and cannot adhere to the time limits established by the court for discovery.
Once the forum hearing has been cleared, attorneys are required to transmit the Request to the ‘appropriate judicial authority’ in the receiving country. The Hague Evidence Convention allows for a designated Central Authority in signatory countries, so the cleared subpoena request will be directed therein. If the country is not a signatory, the letter rogatory is transmitted through diplomatic channels.
[3.0] HOW TO EXECUTE LETTERS ROGATORY
Letters rogatory can take a long time to be supplied since they are customarily transmitted via diplomatic channels. However, local attorneys may be employed to transmit the same to the foreign country, if explicitly permitted in the foreign country.
[3.1] FORMAT FOR DRAFTING
Letters rogatory need to follow a template to be acceptable by the foreign court. It is necessary to follow a simple and non-technical style of language. However, translation into the receiving country’s language is often necessary, and the information enclosed needs to be complete to be approved. A translation needs to be accompanied by a notarized affidavit as to the validity of the translation. The form of letters rogatory may depend on the country to which it is addressed, so local rules of the foreign jurisdiction should be reviewed and followed. This is especially important because the rules for obtaining evidence across the globe are different and may view US discovery rules as over-broad. Consequently, any transgression could result in the refusal to execute the foreign country’s request if the request for the documents is not specific enough.
Furthermore, the appropriate judicial authority of the country should be addressed in the letter. Most courts help grant assistance for particular procedures as followed in the home country.
It is necessary for the letters rogatory to stipulate its nature. Consequently, it is essential to state that a request for international judicial assistance is being made in the interests of justice in the text of the document itself. It is also important to define the type of case [whether it is civil, criminal, or administrative and the nature of the assistance that is sought by the requesting country. These specifications are separate from the provision of a synopsis of the case, which provides identification of the parties and the nature of the claim and relief sought to the receiving court to understand the case itself. The name of the person, their address, and other identifiers, such as corporate title, is provided to identify the individual to whom service of process is effectuated or information required.
To not be overbroad in the information requested, a list of the questions to be posed or the documents to be produced must be included. For the questions, the form of written interrogatories is usually preferred.
It is also necessary for the requesting court to assure the receiving court of their disposition to render correspondent assistance to the receiving state’s judicial authorities and should reimburse the receiving state for the costs that are fulfilling the request by the receiving state’s judicial authorities would entail.
Letters rogatory are mandated to be signed by a judge, and no other individual is allowed to sign on their behalf. Countries might not accept letters rogatory issued by an Administrative Judge, and administrative cases usually see the letters rogatory issued by a federal district court.
[3.2] COPIES OF THE DOCUMENTS
The US Department of State should receive multiple copies of the documents. This would include the original English documents with the court’s seal and the judge’s signature. If the original version is not available, a certified copy must be enacted instead. These original documents must be attached with a photocopy. It is also necessary to attach the translated version of the documents and their photocopy.
Service of the original documents is plied upon the recipient or submitted to the foreign court for evidence. Proof of execution is enacted with a return of the signed copies. However, it is necessary to prepare separate letters rogatory or submit individual certified copies of the letters rogatory for each witness. The request must also include a certified cheque addressed to the US embassy of the foreign country’s capital. However, the foreign authorities will likely charge a fee, and the requesting party is notified if the Embassy is made aware of applicable local fees. The consular fees for the transmission of letters rogatory are available at 22 CFR 22.1 Schedule of Fees.
[3.3] COVER LETTER
The documents should be accompanied by a cover letter which comprises all relevant information as to the request. This would include the docket number, person to be served/evidence obtained from, specific instructions, the mailing address of the U.S. court or attorney to which the executed letters rogatory should be returned, the statement of responsibility for additional costs, and any other pertinent information.
The information and the format of the letters rogatory need to be complete since their transmission to foreign judicial authorities is done through diplomatic channels. It is highly necessary to ensure the execution of these letters is done by the foreign country’s laws and regulations. To ensure the return of the executed letters, the Department of State via diplomatic channels and the Office of American Citizens Services is responsible for returning them to the requesting court in the United States via certified mail, notifying the requesting party as to the status of their service. However, if the court asks for the same, the executed letters rogatory and proof of service/evidence produced can be returned directly to the requesting attorney.
Letters of Request or Letters Rogatory are the method of the last resort. They can be highly expensive and time-consuming but are almost always successful in ensuring jurisdiction over the foreign defendant, especially if there is no Central Authority in the relevant country. Letters rogatory are an effective means of accomplishing service of process. However, all parties still should pay close attention to ensure they comply with the foreign jurisdiction requirements.
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1.Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, opened for signature November 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638,658 U.N.T.S. 163 [hereinafter the Hague Service Convention]
2.Article 2: Each Contracting State shall designate a Central Authority that will receive requests for service coming from the other Contracting States and proceed in conformity with Articles 3 to 6. Each State shall organize the Central Authority in conformity with its own
3.Article 19To the extent that the internal law of a Contracting State permits transmission methods, other than those provided for in the preceding Articles, of documents coming from abroad, for service within its territory, the present Convention shall not affect such provisions.
4.Before using one particular alternative channel of transmission, it should be ascertained that the State of destination has not objected to it. Declarations of the objection, if any, made by the Contracting States are available on the Service Section of the Hague Conference website at < www.hcch.net >.
5.Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, or the Hague Evidence Convention, 18th March 1970
6.Article 11: In the execution of a Letter of Request, the person concerned may refuse to give evidence in so far as he has a privilege or duty to refuse to give the evidence
a) under the law of the State of execution; or
b) under the law of the State of origin, and the privilege or duty has been specified in the Letter, or, at the instance of the requested authority, has been otherwise confirmed to that authority by the requesting authority.
A Contracting State may declare that, also, it will respect privileges and duties existing under the law of States other than the State of origin and the State of execution, to the extent specified in that declaration.
7. 28 U.S.C. § 1651 – U.S. Code – Unannotated Title 28. Judiciary and Judicial Procedure § 1651. Writs
(a) The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate to aid their respective jurisdictions and agreeable to the usages and principles of law.
(b) An alternative writ or rule nisi may be issued by a court’s justice or judge which has jurisdiction.
8.275. Letters Rogatory. (2020, January 22). Retrieved November 24, 2020, from https://www.justice.gov/archives/jm/criminal-resource-manual-275-letters-rogatory