Convention on the Taking of Evidence Abroad in Civil or Commercial Matters

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 the delegations present at the Session.

General purposes of the Convention

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

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.

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.

The Chairman succinctly stated the basic principle which animated all the discussion. Any system of obtaining evidence or securing the 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.

In broad outline, the Convention seeks to:

• improve the existing system of Letters of Request; and
• 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
• preserve all existing more favourable and less restrictive practices resulting from internal law, internal rules of procedure and bilateral or multilateral conventions.

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.

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

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).

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.

Parties to the Convention

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:

• it is a Member of the Conference, or
• it is a Member of the United Nations or of one of its specialized agencies, or
• it is a Party to the Statute of the International Court of Justice [article 39(1)].

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 no such declaration, the accession will have no effect [article 39(4)].

Structure of the Convention

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.

Chapter II deals with the use of consuls or commissioners to take evidence. It includes articles 15-22, and regulates the situation under which a consul [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.] or commissioner may act, the extent to which approval and consent 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.

Chapter III contains the general clauses. It includes articles 23-42, and regulates the relationship between the present Convention and the Conventions 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 for administration by the Ministry of Foreign Affairs of the Netherlands.

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.

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.

Scope of this Report

A lengthy and exhaustive Report (by the same Rapporteur) 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.

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.

Article by article analysis

Note: for Article 21 of the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, see Administrative rules for the taking of the evidence. For information about Article 19 (Permissible conditions to the grant of permission or the grant of compulsion), see here.

Articles 1 and 23 – Scope of Letters of Request

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. There is no definition of ‘civil or commercial matters’. For more information on the Scope of Letters of Request, click here.

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

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. 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. 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. For more information on the transmission of Letters of Request, click here.

Article 3 – Content of the Letter of Request

Article 3, with minor modifications, follows article 3 of the draft Convention, stylistically rearranged. For information about the content of the letter, and its scope, see here.

Witness

In relation to witness:

• Articles 18, 27(b), 28(g), 32, 33(1) – Compelling a witness to testify
• Articles 11, 27(b), 28(d) – Privileges and duties of witnesses
• Article 10 – Compulsion against a witness

Consul

In relation to Consul:

• Articles 15, 27(b), 28(g), 32, 33(1) – Power of a consul to take evidence of his own nationals
• Articles 16, 27(b), 28(g), 32, 33(1) – Power of a consul to take evidence of other nationals

Article 20 – Representation by counsel

Article 20 gives an unconditional right to the ‘persons concerned’ to be legally represented in the taking of the evidence. This is to be separated from article 19. It seems clear that the competent authority in the State of execution, in fixing the ‘conditions’ for the taking of the evidence under article 19, could not specify as a condition that the persons concerned could not be represented by counsel. If the taking of evidence is authorized, the right to counsel cannot be denied.

Who are the ‘persons concerned’? The article deliberately contains no definition. Certainly the parties to the lawsuit in the State of origin are ‘persons concerned’. Certainly the witness himself is a ‘person concerned’. Can there be others? The question remains open for answer on an ad hoc basis in each case. The employer of the witness or an insurance company, indemnitor or surety might, under certain circumstances be considered a ‘person concerned’. [1]

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

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 Commission III and an entirely different scheme was adopted. The questions posed in the Report to the draft Convention still remain, but are answered in a very different fashion.

Article 4(1) starts with a fixed, definite, conventional rule. Every Letter of Request must be written in the language of the State of execution or accompanied by a translation into that language. This is the general principle of the United Kingdom bilateral conventions and article 10 of the 1954 Convention. 64. Then follows a series of modifications and loosenings of this rigid rule.

The first modification is in article 4(2). This provides that every Contracting State will automatically accept a Letter in either English or French, or translated into one of those languages, unless it makes a reservation under article 33(1). This reservation must be made at the time of signature, ratification or accession, and may not be made at any time thereafter. [This provision was, of course, adopted with all the francophone and anglophone countries abstaining]

To revert to the example of a Japanese request to a Turkish court, discussed in the Report to the draft Convention, this modification would be very helpful, if both States accept it without reservation. Whereas it may be very difficult to find Turkish translators in Japan or Japanese translators in Turkey, there should be little, if any, difficulty in finding skilled translators of English or French in both countries. If therefore the Letters in the hypothetical Japanese maritime cases are sent to Turkey in English or French, the Central Authority in Turkey should have no difficulty in retranslating the documents into Turkish, if necessary, for the use of the Turkish judge who will execute the Letter.

The real value of article 4(2) will become clear if and when ratifications or accessions are executed, without reservation, by States which do not have French or English as official languages.

Article 4(3) regulates the problem of the State with more than one official language and which requires a different language in different parts of its territory. Switzerland was the conspicuous trilingual example. Here the State may file a declaration specifying which language must be used for designated parts of its territory. An unjustified failure to follow the instructions in the declaration will warrant the imposition, upon the State of origin, of the cost of the necessary extra translation by the Central Authority or other authority of the State of execution.

The duty to pay for the translation will be imposed if the wrong language is used ‘without justifiable excuse’. An illustration of justifiable excuse, presented during the debate was the case of a witness whose last known address was in Zurich. The moving party therefore arranged for the issuing tribunal to prepare the Letter with a German translation. However, the witness had in fact moved from Zurich to Geneva with no notice to, or knowledge of, the moving party abroad. The burden of making a new translation into French would not be placed upon the State of origin.

If a State, such as Switzerland, does not file a reservation under article 33(1), the English or French rule of article 4(2), discussed above, would still remain effective, in spite of the declaration under article 4(3). This would mean that the Letter must be written in the designated language stated in the declaration under article 4(3) or in English or in French. Of course, if a reservation is filed, then only the language specified in the declaration could be used.

The next modification, in article 4(4) permits a State, by filing a simple declaration, to list additional languages in which Letters may be sent to its Central Authority. Illustrations are The Netherlands, which will accept Letters in German or English, and Israel, which will accept Letters in Hebrew, Arabic, English or French. It must be emphasized that the acceptance by a State of English or French under article 4(2) or of specific languages under article 4(4) is for the purposes of this Convention only. No such act will make those languages ‘official’ languages of the States for any purpose, nor do those languages become acceptable for any purpose other than the purposes of this Convention.

The same result flows from article 27(b), which permits any act to be performed upon less restrictive conditions than the Convention provides, if the internal law or practice permits. Under this article, if the internal law or practice of a State accepts Letters with more liberal and less restrictive language conditions than are contained in the various paragraphs of article 4, this law and practice would continue to govern after that State had ratified the Convention. The difficulty, of course, is the presence or absence of knowledge of this internal law or practice by other States.

The more liberal provisions could hardly be used by those who were ignorant of them, and the Convention contains no express provision for making this information generally available. The easy answer, of course, is that the Central Authority of the State of execution should be fully informed of its own law and practice and can be consulted by the State of origin for information on any special language rules. Article 28(b) provides explicitly for side agreements, bilateral or multilateral, between two or more States setting up special language rules as between them.

Article 32 similarly provides for conventions to this effect. These of course are effective only as between the parties to these agreements or conventions and the rules of article 4 will apply as to all other States.

Article 4(5) follows the second sentence of article 5 of the draft Convention. It provides that any translation accompanying a Letter must be certified by a diplomatic officer or a consular agent of either State, by a sworn translator of either State, or ‘by any other person so authorized in either State’. This final broad provision is designed to cover situations in States which do not have functionaries known as ‘sworn translators’ but who have competent and qualified translators whose work is recognized and accepted by the authorities and courts of the State in litigious and non-litigious matters. Nothing is said in article 4 or in article 13(1) about the language in which the Letters are to be executed and returned.

Two alternatives seem rather obvious:

• If the State of execution insists on the Letter being written in, or translated into, its own language under article 4(1), the State of origin will normally anticipate that the Letter will come back executed in that same language. Any other expectation would seem unreasonable.
• If the State of execution accepts article 4(2) without reservation or if it designates specific acceptable languages under article 4(4), this could be construed as a representation to the State of origin that any 4(2) or 4(4) language so designated may be considered as the ‘language of the Letter’. If so, the State of origin may reasonably anticipate that the Letter will be returned executed in the same language in which it was accepted. It would seem strained to postulate the deliberate acceptance of a Letter in one language and a return of that Letter executed in a wholly different language. [2]

Article 5 – Objections to the Letter

Article 5 is new; it did not appear in the draft Convention. It applies where the Letter is sent to the Central Authority of the State of execution. There is an entry with content about the objetions to the letter here.

Articles 7, 8, 9, 25, 27(b), 28(c), 32 – Execution of the Letter

Article 8 is new; it did not appear in the draft Convention. Article 9 is a modification of article 12 of the draft Convention, which is analyzed at length in the Report to the draft Convention. There is an entry about the execution of the letter here.

Articles 12, 13 – Refusal to execute the Letter

Article 11(3) of the 1954 Convention and article 8(3) of the draft Convention mentioned three reasons for non-execution. The first, that the Letter is not authentic, is really part of the article 5 concept of non-compliance with the provisions of the Convention. It was therefore deleted from article 12 as unnecessary. There is an entry with content about the refusal to execute the letter here.

Matters excluded from the Convention

In the Report to the draft Convention, mention was made of a number of problems which had been reserved from the discussion and from the draft Convention. These were reserved for consideration and decision by Commission III.

Free legal aid

This topic is treated separately in Chapter IV of the 1954 Convention. In view of the very large differences in the policy of the various Members of the Conference on the question of free legal aid, it was agreed to confine the present Convention to the revision of Chapter II of the 1954 Convention. The present Convention does not deal with free legal aid.

Immunity of a witness from arrest or service of process

Commission III concluded that the question of the immunity of a witness, in attendance at the taking of the evidence, and while going to and returning from the hearing, is a matter primarily for the domestic law of the State of execution. Further, it would be a most extraordinary situation if a witness would come across the border from a foreign State to testify in the State of execution pursuant to the Letter of Request. The matter was not regulated in the 1954 Convention and is not regulated in this Convention.

Effect of the refusal of a witness to appear

A proposal to regulate the effect of the refusal of a witness to appear and testify before a consul or commissioner was not approved. This is a matter for the domestic law of the forum where the action is to be tried. The judge in charge of the trial may decide what inferences may be drawn from the failure of a party, or of a witness not a party, to give evidence.

The problem of dual nationality

Articles 15 and 16 provide separate rules for the taking of evidence by a consul, dependent on the nationality of the witness. Suppose the witness, under the law of the State of origin, is a national of that State and, under the law of the State of execution, is a national of that State. Which article will apply?.

Commission III agreed that this matter need not be regulated in the Convention. Under article 16, the State of execution has the right to decide the rules for the taking of the evidence of its own nationals. It must have the right to decide who are its own nationals for this purpose, under its own law. The State of origin should not have the power to decide that a particular individual is not a national of the State of execution. 253. Proceedings before administrative tribunals – It was pointed out in the discussion of article 1 that the term ‘judicial authority’ is not defined. To what extent will this include ‘administrative tribunals’?

Commission III decided that all courts of arbitration were excluded from the definition of ‘judicial’ authority. As to administrative tribunals generally, no decision was or could be reached. There is an enormous variation in powers and functions of administrative tribunals in various legal systems. Some of them have every attribute of courts, except in name. Others have no resemblance to judicial tribunals. Exact definition is not possible, and each case must be examined on its own facts.

An interesting illustration is the decision of the Second Circuit Court of Appeals of the United States in New York City, in a case entitled In re Letters Rogatory Issued by Director of Inspection of Government of India, 385 F. (2d) 1017 (1967). 5 The court decided after a careful analysis of the duties and powers of a tax-assessment agency in India that it was not a ‘tribunal’ entitled to the execution in New York of a Letter of Request.

Penal provisions

Commission III considered the penal problems inherent in the taking of testimony abroad. These include the failure or refusal of a witness to obey an order of the executing authority, and the giving of false testimony by a witness. 257. Commission III agreed with the Special Commission that these raise questions of internal penal law of the affected States and questions of the division of penal jurisdiction. These are not matters appropriate for regulation in this Convention. [3]

Resources

Notes and References

1. Ph.W. Amram, Explanatory Report on the 1970 Hague Evidence Convention (1970); Offprint from the Acts and Documents of the Eleventh Session (1968), tome IV, Taking of evidence abroad.
2. Id.
3. Id.