HCCH - Explanatory Report on the 1970 HCCH Evidence Convention

EXPLANATORY REPORT ON THE CONVENTION OF 18 MARCH 1970 ON THE TAKING

OF EVIDENCE ABROAD IN CIVIL OR COMMERCIAL MATTERS

by Ph.W. Amram

I. Introduction

1. The three-week Eleventh Session of the Hague Conference on Private International Law produced the final text of the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, contained in the Final Act of the Session completed and signed on the 26th of October 1968 by all t he delegations present at the Session. This Convention was prepared by Commission III, of which Dr Arnold was Chairman and Judge Balbaa ViceChairman. The writer of this Report was the Rapporteur.

A. General purposes of the Convention

2. The fundamental purpose of the Convention is to continue the revision and modernization of the Hague Conventions on Civil Procedure of 1905 and 1954.

3. Chapter I of those Conventions, dealing with the service abroad of documents, was revised at the Tenth Session of the Conference in 1964, in the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, which came into force on February the 10th, 1969.

4. Chapter II of those Conventions, entitled ‘Letters of Request (commissions rogatoires)’ dealing with the obtaining of evidence abroad, is the subject -matter of the present Convention.

5. The Chairman succinctly stated the basic principle which animated all the discussion.

Any system of obtaining evidence or securing th e performance of other judicial acts internationally must be ‘tolerable’ in the State of execution and must also be ‘utilizable’ in the forum of the State of origin where the action is pending.

6. In broad outline, the Convention seeks to: a) improve the existing system of Letters of Request; and b) enlarge the devices for the taking of evidence by increasing the powers of consuls and by introducing, on a limited basis, the concept of the commissioner; and at the same time

6. In broad outline, the Convention seeks to: a) improve the existing system of Letters of Request; and b) enlarge the devices for the taking of evidence by increasing the powers of consuls and by introducing, on a limited basis, the concept of the commissioner; and at the same time c) preserve all existing more fa vourable and less restrictive practices resulting from internal law, internal rules of procedure and bilateral or multilateral conventions.

7. Among the significant novelties in the Convention are new rules on a language, the introduction of the Central Authority as a receiving agent, provision for the privileges and immunities of witnesses, a differentiation in the powers of a consul dependent upon the nationality of the witness, and the recognition of the use of commissioners as a technique for obtaining evidence on an optional basis.

B. Relationship between the present Convention and the Conventions of 1905 and 1954

8. The present Convention will replace articles 8-16 of the Conventions of 1905 and 1954 as between States which have signed one or both of these earlier Conventions and also become Parties to the present Convention (article 29). Supplementary Agreements executed under the Conventions of 1905 and 1954 will remain effective as between States which also become Parties to the present Conventions, unless the States concerned agree otherwise (article 31).

9. The present Convention has no effect on article 23 of the Convention of 1905 or article 24 of the Convention of 1954 (article 30). These deal with free judicial assistance, a topic excluded from the coverage of the present Convention.2

C. Parties to the Convention

10. The Convention is not a ‘closed’ convention. The initial States entitled to become Parties are those States which were represented at the Eleventh Session of the Conference

(article 37). After it has entered into force (article 38), any other State may accede to the Convention if (1) it is a Member of the Conference, or (2) it is a Member of the United

Parties are those States which were represented at the Eleventh Session of the Conference (article 37). After it has entered into force (article 38), any other State may accede to the Convention if (1) it is a Member of the Conference, or (2) it is a Member of the United Nations or of one of its specialized agencies, or (3) it is a Party to the Statute of the International Court of Justice [article 39(1)].

11. However, the accession is not automatic. It will be effective only as between the acceding State and those other States which affirmatively file a ‘declaration’ accepting the accession. As to States which file n o such declaration, the accession will have no effect

[article 39(4)].

D. Structure of the Convention

12. Chapter I deals with Letters of Request (commissions rogatoires). It includes articles 1-14, and regulates the form of the Letter, the scope of its content, the methods of transmission, the language to be used, the method and technique of execution, the compulsion to be exercised against a witness, the privileges and immunities of the witness, the permissible grounds for refusal to execute the Letter, and the question of costs and expenses.

13. Chapter II deals with the use of consuls or commissioners to take ev idence. It includes articles 15-22, and regulates the situation under which a consul1 or commissioner may act, the extent to which approval and co nsent of the State of execution may be required, the extent to which compulsion against the witness may be available, the privileges and immunities of the witness, the limits of the power of the consul or commissioner, and the privilege of obtaining evidence through other channels in the event of the failure to obtain the evidence through the consul or commissioner.

14. Chapter III contains the general clauses. It includes articles 23-42, and regulates the relationship between the present Convention and the Con ventions of 1905 and 1954, the limits of the power of reservation by a signatory, the declarations to be filed and the

14. Chapter III contains the general clauses. It includes articles 23-42, and regulates the relationship between the present Convention and the Con ventions of 1905 and 1954, the limits of the power of reservation by a signatory, the declarations to be filed and the authorities to be designated under certain articles, the States which may be signatories or which may accede to the Convention, the use of diplomatic channels to resolve disputes, the application of the Convention to the territories of a signatory, the time when the Convention will enter into force, the time the Convention will remain in force, the power of denunciation and the provision fo r administration by the Ministry of Foreign Affairs of the

Netherlands.

15. Chapter III also contains individual clauses further limiting the scope of Letters of Request, providing details respecting the Central Authority, authorizing States with more than one legal system to designate one of them to execute Letters of Request, further regulating certain costs and expenses, and listing the matters as to which States may, by agreement, derogate from the provisions of the Convention.

16. Finally, Chapter III contains , in article 27, the all -important provision that if any State, by internal law or practice, permits any act provided for in the Convention to be performed on a more liberal and less restrictive basis than the Convention provides, such internal law or practice will be unaffected by the Convention and will continue to govern.

E. Scope of this Report

17. A lengthy and exhaustive Report2 accompanied the draft Convention prepared by the Special Commission. In the light of the fact that much of the basis of the draft Convention was accepted without change, or with only stylistic or detailed improvements, it would be an unjustified repetition to restate in full, in this Report, the commentary already appearing in the Report to the draft Convention.

1 Throughout this Report, the word ‘consul’ will be used as a shorthand substitute for the lengthy phrase ‘diplomatic officer or consular agent’. It should be so read wherever it appears. 2 By the same Rapporteur.3

in the Report to the draft Convention.

1 Throughout this Report, the word ‘consul’ will be used as a shorthand substitute for the lengthy phrase ‘diplomatic officer or consular agent’. It should be so read wherever it appears. 2 By the same Rapporteur.3

18. For this reason, the comments in this Report will relate primarily to those provisions of the Convention which vary from the provisions of the draft Convention. Where the draft Convention and the Convention are substantially identical, reference will be made to the relevant parts of the discussion in the Report to the draft Convention without repetition.

II. Article by article analysis

A. Articles 1 and 23 – Scope of Letters of Request

19. Article 1(1) is closely identical to article 1 of the draft Convention. The issuance of Letters is limited to the ‘judicial’ authorities of the State of origin. ‘Judicial’ is not defined.

20. There is no definition of ‘civil or commercial matters’.

21. There is no definition of ‘obtain evidence’ or of the French equivalent «faire tout acte d’instruction».

22. These matters are fully discussed in the Report to the draft Convention. As pointed out in that Report, any potential disagreement on the meaning of these words is to be settled through diplomatic channels (see article 36). No further discussion is needed, except to point out that article 3 sub-sections (e), (f) and (g) furnish some guide to the meaning of ‘obtain evidence’. These three sub-sections show that the Letter may be used to ‘examine’ persons and to put ‘questions’ to them, or to secure the ‘inspection’ of ‘documents or other property, real or personal’. This is more explicit and even broader than the proposed phrase in the draft Convention: ‘the taking of statements of witnesses, parties or experts and the production or examination of documents or other objects or property.’ which was excluded as unnecessary.

23. The principal changes made in the draft Convention were the inclusion of two new

than the proposed phrase in the draft Convention: ‘the taking of statements of witnesses, parties or experts and the production or examination of documents or other objects or property.’ which was excluded as unnecessary.

23. The principal changes made in the draft Convention were the inclusion of two new paragraphs in article 1 and a new article 23.

24. Article 1(2) is self-explanatory and may represent an excess of caution. No court in a foreign country should be asked to undertake the obtaining of evidence unless it is to be used in judicial proceedings in the requesting tribunal. It is not easy to contemplate that a judicial tribunal in State A would ever, issue a Letter of Request to a court in State B, where no litigation was pending or contemplated in State A, and the evidence was sought merely to satisfy the curiosity or commercial desire of a national of State A. But if such a situation should exist, the court in State B should be permitted to reject the Letter.

25. Sub-divisions (b) and (c) of article 3 are relevant here, since the Letter must contain the names of the parties to the ‘proceedings’ and ‘all necessary information ’ respecting those proceedings.

26. Article 1(2) refers to ‘proceedings, commenced or contemplated’. This formulation was used to make it clear that there need not necessarily be an action actually in progress in the State of origin when the Letter is issued. It is designated to authorize the use of a Letter for the purpose of ‘perpetuation of testimony ’ of an aged, dying or going witness under the Common Law procedure, or for the purpose of «l ’enquête ad futurum» or «la procédure valétudinaire» or ‘Beweissicherungsverfahren’ under the Civil Law procedure.

27. Article 1(3) was added after an extended discussion of the content of the phrase ‘other judicial act ’ and the illustrations given in the Report to the draft Convention.

Additional illustrations discussed were (1) securing a copy of a birth certificate, (2)

27. Article 1(3) was added after an extended discussion of the content of the phrase ‘other judicial act ’ and the illustrations given in the Report to the draft Convention.

Additional illustrations discussed were (1) securing a copy of a birth certificate, (2) obtaining extracts of public records, (3) securing the appointment of a temporary receiver for property, and (4) requiring a defendant to put up security to protect a possible future judgment in favour of the plaintiff.

28. There was unanimous agreement that the broad and all inclusive term ‘other judicial act’ must be restricted.

29. Service of documents should be excluded, since this is the subject of the separate Convention prepared by the Tenth Session. Enforcement of judgments should be excluded since this is the subject of the separate Convention on the Recognition and Enforcement4

of Foreign Judgments and the Supplementary Protocol which were considered at the Eleventh Session (see Part B (II) of the Final Act). Provisional and protecti ve measures should be excluded, such as injunction, restraining orders, forced sales, receiverships or mandamus, since these involve the discretion of the court having jurisdiction over the persons and the property and are subject to domestic statutes and procedures. They are not subject to the mandatory order of a foreign judge (who in these cases cannot compel action merely by issuing a Letter of Request).

30. Further, the act in question must be ‘judicial’. Here article 12(a) is applicable. If, under the domestic law and practice of the State of execution, it is not within the function of the judiciary, for example, to secure copies of birth certificates or public records, or to advertise the existence of a legal proceeding pending in another State, or to con duct conciliation proceedings between a husband and wife, article 12(a) authorizes the State of execution to reject the Letter.

31. For this reason, if the content of the Letter of Request falls within the ambit of ‘other judicial act’, it will be wise for the moving party or the requesting authority in the State of

conciliation proceedings between a husband and wife, article 12(a) authorizes the State of execution to reject the Letter.

31. For this reason, if the content of the Letter of Request falls within the ambit of ‘other judicial act’, it will be wise for the moving party or the requesting authority in the State of origin to verify in advance that the particular act requested will fall within the functions of the judiciary in the State of execution. This information should be easily obtainable by a direct inquiry addressed to the Central Authority of the State of execution.

32. Finally, article 23, adopted at the request of the United Kingdom delegation, permits a State to declare that it will not execute a Letter of Request if it has been issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.

This refers to a procedure by which one of the Parties to an action may obtain access, before trial, to documents in the possession of his adversary, to aid him in the preparation of his pleadings or in preparation for trial. The procedure varies widely among the various States and is not even uniform in all Common Law jurisdictions. Accordingly, some States may be quite prepared to accept Letters for this purpose while other States may refuse them. Article 23 provides the machinery for the exercise of this option.

B. Articles 2, 6, 13, 24, 27 (a), 28(a), 28(e), 32 – Transmission of Letters. The Central

Authority

33. This group of articles in combination regulates the problem of the transmission of the Letters from the State of origin to the State of execution and their return following their execution or rejection.

34. Article 2(1) is identical with article 2(1) of the draft Convention, except for minor stylistic improvement. It provides the Central Authority concept invented in the Convention on the Service of Documents.

35. Article 2(2) is modelled upon the first sentence of article 2(2) of the draft Convention.

It is designed to emphasize the position elaborated in the Report to the draft Convention

stylistic improvement. It provides the Central Authority concept invented in the Convention on the Service of Documents.

35. Article 2(2) is modelled upon the first sentence of article 2(2) of the draft Convention.

It is designed to emphasize the position elaborated in the Report to the draft Convention that no intervening authority of the State of execution is to handle the Letter of Request on its way to the Central Authority.

36. To the contrary, the Convention does not regulate what is to happen within the State of origin, and which of its authorities are to handle the Letter on its way to the Central Authority of the State of execution. There is no limit to the rules which may be imposed by the internal law of the State of origin with respect to this transmission.

37. For example, the State of origin may permit the issuing authority to send the Letter directly to the Central Authority of the State of execution. Or, the State of origin may require that the issuing authority send the Letter in every case to its own Central Authority for check an d supervision before it is sent on to the Central Authority of the State of execution. Or, the State of origin may require every Letter to be sent by the issuing authority to the Ministry of Justice or the Ministry of Foreign Affairs or the Ministry of the Interior or to some other supervisory authority who will determine whether the Letter should be permitted to go abroad. Or, the State of origin may require that every Letter go through its Embassy or Legation or consular office in the State of execution, and that this office will arrange to deliver the Letter to the Central Authority of the State of execution.5

38. None of these regulations are the business of the State of execution. It cannot refuse to receive or execute the Letter because it disapproves of the internal arrangements within the State of origin. Article 2(2) only forbids the intervention of some authority of the State of execution other than its Central Authority.

39. Article 6 contains nothing contradictory to the principles just stated. It regulates the internal administration of the Letter within the State of execution. It is modelled on

the State of origin. Article 2(2) only forbids the intervention of some authority of the State of execution other than its Central Authority.

39. Article 6 contains nothing contradictory to the principles just stated. It regulates the internal administration of the Letter within the State of execution. It is modelled on article 10 of the draft Convention.

40. Article 2(1) provides that the Central Authority of the State of execution is to transmit the Letter ‘to the authority competent to execute ’ it. The Central Authority may err and may send the Letter to some tribunal which is not competent to execute it. Such an error will not frustrate the execution of the Letter. To the contrary, article 6 requires that the Letter be ‘sent forthwith’ to a competent authority of the State of execution.

41. Article 6 does not provide the mechanics for such a retransmission. The first tribunal could transmit the Letter directly to the correct tribunal, since it should know its own law and procedure. Or the Letter could be returned promptly to the Central Authority of the State of execution with a request for proper re-transmission.

42. Article 13(1) follows article 11(1) of the draft Convention, it states the obvious rule that the executed Letter shall be returned by the State of execution to the issuing authority in the State of origin by the same channel of transmission as was used originally to transmit the Letter to the State of execution.

43. Article 24 follows article 18 of the Convention on Service of Documents and article 21 of the draft Convention. It authorizes any Contracting State to designate other authorities than the Central Authority and to fix their competence. If this is done, then the issuing authority will have optional methods of transmission available.

44. Article 24 specifically provides that, if such additional authorities are designated, Letters may ‘in all cases’ still be sent to the Central Authority. Accordingly, the Letters may be sent to the Central Authority of the State of execution or to the additional authorities which that State may designate as competent to receive them.

44. Article 24 specifically provides that, if such additional authorities are designated, Letters may ‘in all cases’ still be sent to the Central Authority. Accordingly, the Letters may be sent to the Central Authority of the State of execution or to the additional authorities which that State may designate as competent to receive them.

45. For example, the United Kingdom may elect to provide a subsidiary authority for Scotland. In that event, the State of origin would have the choice of sending the Letter to the Central Authority in London or to the subsidiary authority in Scotland. Either would be correct and the choice would lie entirely with the issuing authority.

46. Article 24 further provides, in paragraph 2, tha t Federal States shall be free to designate more than one Central Authority. This follows article 18(3) of the Convention on Service of Documents and article 21(3) of the draft Convention.

47. This provision was inserted in the Convention on Service of Documents at the request of the delegation of the Federal Republic of Germany because of constitutional problems with respect to the division of powers between the Federal Government and the ‘Länder’.

48. If any Federal State should exercise this privilege, any practical difficulty which might arise will be easily resolved. If the State has eight or ten different Central Authorities, with territorial limitations, it is easily possible for the issuing authority in the State of origin to choose the wrong Central Author ity. In that case, article 6 provides the remedy. The Central Authority which receives the Letter will immediately perceive the error, and, knowing its own law, will know exactly which of the other Central Authorities in its country will be the proper authority to administer the request. It will then ‘forthwith’ send the Letter to the proper Central Authority and the error of the issuing authority abroad will be automatically cured.

49. There was extended discussion, in the debates in Commission III, with respect to the use of consular or diplomatic channels of transmission of Letters. This phrase means the transmission of the Letter of Request by the issuing authority to the consul or diplomatic

automatically cured.

49. There was extended discussion, in the debates in Commission III, with respect to the use of consular or diplomatic channels of transmission of Letters. This phrase means the transmission of the Letter of Request by the issuing authority to the consul or diplomatic representative of the State of origin in the State of execution. On receipt of the Letter, the consul or diplomatic representative himself will present it to the executing tri bunal, bypassing the Central Authority and all other agencies of the State of execution.6

50. It was agreed to make no mention of the consular or diplomatic channel in article 2.

If the consular or diplomatic channel is available, either through declaration under article 27(a), or through separate agreement under article 28(a), or through other conventions under article 32, or through the internal law and practice of the Stat e of execution under article 27(b), or through applicable rules of public international law, it may be used as an alternative to the Central Authority route. However, a proposal to make it specifically available under this Conventio n, as an alternative conventional channel, was rejected.

51. Further, articles 27(a), 27(b), 28(a) and 32 may permit the issuing authority to send Letters direct ‘from court to court’, or through a party to the action direct to the executing tribunal, by-passing the Central Authority of the State of execution. This is not permissible, under the Convention, in the absence of some such special authorization, since the normal rule under article 2 requires transmission through the Central Authority of the State of execution. Again, if an error is made in choosing the wrong court, article 6 provides for automatic correction.

52. Finally, on the question of transmission, article 28(a) and (e) permit separate bilateral or multilateral agreements between two or more States, setting up, as between themselves, other and different rules for the transmission and return of Letters of Request Also article 32 (which is a verbatim copy of article 25 of the Convention on the Service of

or multilateral agreements between two or more States, setting up, as between themselves, other and different rules for the transmission and return of Letters of Request Also article 32 (which is a verbatim copy of article 25 of the Convention on the Service of Documents) recognizes the effectiveness of the p rovisions of other conventions to which States are, or shall become, Parties.

53. However, the execution of such agreements or conventions cannot modify the obligation under article 2 to maintain the Central Authorities system in full operation, for the benefit of Contracting States which are not Parties to the outside agreements and conventions.

54. The difference between the effect of a declaration under article 27(a) and an agreement or convention under articles 28(a), 28(e) and 32, is obvious. If a declaration is filed, it creates a universal rule which, for example, would permit ‘court to court ’ transmission with respect to every other State Party to this Convention. On the other hand, a side agreement or convention under articles 28 and 32 is a limited agreement, effective only as to States Parties thereto and not effective for any other State.

55. The scheme of the Convention is to set up the Central Authority system as the norm and the minimum obligation. Any two or more States can, as between themselves, set up other and different schemes and techniques for transmission of the Letters, if they please.

But this will never relieve them of the obligation to provide the Central Authority system for those States who do not enter into any such side agreements.

56. Further, there is no inflexible requirement that the Letter, after execution, must in every case be returned to the issuing authority by the exact channel through which it was sent. This is, of course, the normal and conventional rule, under the express provision of article 13(1). But, like other provisions of this Convention, it is subject to modification, as between any two States, by side agreements and conventions and by internal law and practice. To illustrate, assume that the Letter is sent through the Central Authority of the

article 13(1). But, like other provisions of this Convention, it is subject to modification, as between any two States, by side agreements and conventions and by internal law and practice. To illustrate, assume that the Letter is sent through the Central Authority of the State of execution. If the requisite foundation exists, the executing authority might be permitted to return the executed Letter directly to the issuing tribunal, without routing it through the Central Authority by which it arrived in the State of execution. This is entirely a matter between the two States involved in the particular Letter. No other State has any interest in it.

C. Article 3 – Content of the Letter of Request

57. Article 3, with minor modifications, follows article 3 of the draft Convention, stylistically rearranged.

58. The only changes other than style are (1) the obvious limitation that the name of the authority in the State of execution which is to execute the Letter will be included only if known to the issuing auth ority; (2) the inclusion of a more definite statement of the evidence to be obtained or other judicial act to be performed; (3) a more exact specification of the documents or other property, real or personal, to be examined; and (4) a clarification7

that it is optional for the issuing authority to include information respecting the law of the State of origin with respect to the privileges and immunities of the witness (see discussion of article 11, infra).

59. The discussion in the Report to the draft Convention is applicable here.

60. If the issuing authority wishes the evidence to be taken under oath, this must be specified in the Letter. Further, if any specific form of oath is required, this must also be stated. Otherwise, the executing authority will administer the oath in conformity with its domestic procedure.

61. Article 3 requires that all items mentioned are to be in the Letter of Request. There is a sound practical reason. If some of the items were in the Letter itself and other items

stated. Otherwise, the executing authority will administer the oath in conformity with its domestic procedure.

61. Article 3 requires that all items mentioned are to be in the Letter of Request. There is a sound practical reason. If some of the items were in the Letter itself and other items were contained in a Letter of transmission, there is the risk that the letter of transmission may become separated from the Letter itself, and the Central Authority might forward to the executing authority only a part of the instructions of the issuing authority. If everything is in a single document, this risk will be avoided.

D. Articles 4, 27(b), 28 (b), 32, 33(1) – The language problem

62. The scheme of articles 4, 5, 6 and 7 of the draft Convention for the handling of the difficult problem of the language of the Letter of Request, was reconsidered at length in Commiss