- Execution of Letters of Requets
- Execution of Letters of Requets in the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters: Articles 7, 8, 9, 25, 27(b), 28(c), 32
- Article 5 – Objections to the Letter in the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters
- Articles 12, 13 – Refusal to execute the Letter
- Articles 14, 26, 28(f), 32 – Costs and expenses of executing the Letter
Execution of Letters of Requets
Execution of Letters of Requets in the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters: Articles 7, 8, 9, 25, 27(b), 28(c), 32
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. Article 7 is article 8(2) of the draft Convention, with stylistic changes. It provides self-explanatory rules for notice to the requesting authority of the time and place where the Letter will be executed. This is designed to permit the parties concerned, or their representatives, to be present. The notice is not automatic; it need be given only if the requesting authority asks for it. This could be included in the Letter itself or in a covering document accompanying the Letter or sent separately. Further, the requesting authority, to avoid loss of time in multiple transmissions, may request that the information be sent directly to the parties or their representatives.
If such a request is made, the time fixed for execution of the Letter must be sufficiently late to permit the notices to be given and to give the parties and their representatives ample time to arrange to be present or to be represented.
Article 7 does not say who is to give the notice. It could be given by the Central Authority (after the Central Authority is informed of the proposed date by the executing tribunal) or it could be given directly by the executing tribunal to avoid multiple communications. As a practical matter, we can predict that the Central Authority in the average case will send the Letter on to the executing tribunal, making special reference to the request for the article 7 notice and asking the executing tribunal to comply directly.
Since the notice is not automatic, it will be the duty of counsel for the moving party in the State of origin to see to it that the issuing authority includes a request under article 7 in the Letter.
Article 8 states a conventional rule that the judges of the State of origin cannot assert a right to be present at the execution of the Letter. This will be permissible only if the State of execution files a declaration permitting the judges to be present. Further, the declaration may require a special application for permission to be present, and an ad hoc approval of the application. This leaves the question under the total control of the State of execution. By doing nothing, the foreign judges will not be permitted to attend. By filing a declaration, attendance may be permitted as narrowly or as broadly as the State of execution may elect.
In addition, article 28(c) specifically authorizes side agreements between States making the system of article 8 even more liberal, e.g. by permitting presence of foreign judges without preliminary conditions. Article 32 similarly permits conventions to that effect.
Finally, the presence of foreign judges may be permitted under the provisions of article 27(b), if the internal law or practice of a State permits the judges to be present on less restrictive conditions than article 8 provides. This will, for example, permit the United States to continue to allow German and Italian judges themselves to execute the Letters in the United States by examining the witnesses in their own language and in conformity with their own procedures, as reported in the analysis of Chapter V of the Report to the draft Convention.
Article 9 is a modification of article 12 of the draft Convention. It deals with the difficult problem of the extent to which the State of execution will execute Letters in the foreign form of the State of origin, necessarily different from the form used in its own domestic litigation.
Article 9(1) states the conventional rule that the State of execution will execute the Letter in conformity with its own internal procedures, just as though it were domestic litigation. This is the easy route for the judge in the State of execution; he ignores the fact that he is dealing with litigation in another State. But suppose the result is useless in the forum where the action is pending, because of the form in which it was taken? All the time, effort and expense in securing the evidence will have been wasted. 11 The dilemma thus created is discussed in detail in the Report to the draft Convention, article 12.
Article 14 of the 1954 Convention resolved the dilemma by providing that the State of execution should comply with a request for a special procedure in the execution of the Letter unless the procedure requested was ‘contrary to the legislation’ of the State of execution. The Special Commission found this formula unsatisfactory and proposed, in article 12 of the draft Convention, compliance with the request unless the special procedure is ‘incompatible with’ the law of the State of execution, or ‘impracticable on account of the practice and procedure of its courts’.
The Report to the draft Convention discusses the basis for these changes and gives numerous practical illustrations of the problems involved. Commission III debated this matter at great length. There was no disagreement with the general principles stated in the draft Convention or with the discussion in the Report to the draft Convention. The debate was semantic, in an effort to find phrases which would more accurately reflect the exact intention of the Convention.
The phrase ‘incompatible with’ the internal law of the State of execution, in article 12 of the draft Convention, was retained unchanged. To be ‘incompatible’ with the internal law of the State of execution does not mean ‘different’ from the internal law. It means that there must be some constitutional inhibition or some absolute statutory prohibition. No Civil Law delegation suggested that his country had constitutional or statutory provisions which would prevent the examination of witnesses and the preparation of the transcript of the testimony ‘Common Law style’. Nor did any Common Law delegation suggest that his country had constitutional or statutory provisions which would prevent a judge or an official designated by him from interrogating a witness and preparing a summary in ‘Civil Law style’. It is not anticipated that this clause in article 9(2) will prevent the maximum furnishing of judicial cooperation.
However, the phrase ‘impracticable on account of the practice and procedure of its courts’ was considered too wide an escape clause. The language was tightened and the scope of the exception narrowed by agreement on the substitute language: ‘impossible of performance by reason of its internal practice and procedure or by reason of practical difficulties’. There is a clear difference between ‘impracticable’ and ‘impossible of performance’. The latter is a much heavier burden to assume. This was deliberate. The basic intent is to maximize international cooperation and to minimize the possibilities of refusal to cooperate. It is not sufficient for the foreign practice to be ‘difficult’ to administer or ‘inconvenient’; compliance must be truly ‘impossible’.
Article 25 provides that if a State has more than one legal system, it may designate the authorities of one of the systems to have exclusive competence to execute Letters under the present Convention. For example, the United States, which has a Federal judicial system and separate State judicial systems, could utilize this article and direct that all Letters of Request from foreign States should be directed to the courts of the Federal system. This would give the Federal courts exclusive competence to execute Letters.
It is interesting that, during the extended debate on article 9(2), no hypothetical examples were presented, other than those discussed in the Report to the draft Convention. Many delegations stressed the problem of a request to a Civil Law State from a Common Law State to take evidence by cross-examination, where neither the judge nor the local lawyers had any experience or competence in this procedure. This was suggested as a clear illustration of a foreign procedure which would be ‘impossible’ to perform for the simple reason that no one in the State of execution knew how to do it, nor would the Civil Law presiding judge have the requisite skill or experience to control the scope and extent of the questioning.
The Convention does not regulate how the questions of ‘impracticability’ or ‘impossibility’ are to be adjudicated. Obviously this is primarily for the State of execution to determine. The State of origin cannot decide it. It is clear, however, that in adjudicating 12 the question, the State of execution should remain within the limits of an internationally acceptable standard of discretion. Within the State of execution, the local practice would determine who would make the decision. It might be made by the Central Authority or it might be solely within the competence of the executing tribunal to determine the question.
In any event, of course, article 13(2) will require the State of execution to furnish a full explanation to the State of origin of its non-execution of the Letter on either of these grounds. If the State of origin believes the decision of the State of execution to be unjustified, the disagreement should be settled under article 36.
Article 9(3) provides that a Letter of Request shall be executed ‘expeditiously’. Some delegations proposed that the Letter should be executed with priority status. This was rejected, since it would be unacceptable to require local litigants, who had been waiting for extended periods to be reached for hearing, to step aside in every instance and permit a request from abroad for the taking of evidence to take priority, irrespective of relative urgency.
Assume that a court, like the courts in the City of New York, is several years behind in its current trial list. Assume that a foreign court sends a Letter of Request, seeking the evidence of certain witnesses, and asks that the evidence be taken ‘Civil Law style’ by the judge himself. How is this to be done ‘expeditiously’? If the judge puts the request at the foot of his current list, it may be two years before it is reached, and the requesting court will be properly aggrieved at the delay. If the judge puts the request at the head of his list, he will be giving priority to the foreign request over local litigants who have been waiting several years to be reached. It would seem that the judge might try to assess the urgency and act accordingly. It would not seem improper, in such a situation, for the judge to delegate the execution of the Letter to a lawyer-commissioner or other competent court official so as to permit it to be executed promptly but without prejudice to the local parties awaiting trial of their cases. 
Article 5 – Objections to the Letter in the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters
Article 5 is new; it did not appear in the draft Convention. 79. It applies where the Letter is sent to the Central Authority of the State of execution. 80. Article 5 provides that the Central Authority may enter ‘objections’ to the Letter because it does not ‘comply with the provisions of the present Convention’. Notice is to be given promptly to the authority of the State of origin which transmitted the Letter to the Central Authority.
Some of the errors or defects which would justify such ‘objections’ are:
- that the matter in dispute is not a ‘civil or commercial’ matter (article 1);
- that the Letter did not emanate from a ‘judicial’ authority (article 1);
- that the Letter did not relate to judicial proceedings (article 1);
- that the Letter relates to an ‘other judicial act’ which falls outside the definition (article 1 );
- that the Letter does not contain the information required under article 3;
- that the Letter does not comply with the language requirements of article 4;
- that the execution of the Letter does not fall within the function of the judiciary in the State of execution (article 12);
- that the execution of the Letter would prejudice the sovereignty or security of the State of execution (article 12);
- that the Letter seeks pre-trial discovery of documents, and a declaration has been filed under article 23;
- that the Letter does not conform to an agreement or convention between the State of origin and the State of execution [articles 28(b), 32].
Obviously, the Central Authority will hold up the transmission of the Letter to the appropriate tribunal for execution until the matter of these objections has been resolved.
Article 12 states only two grounds on which the execution of a Letter may be ‘refused’, namely, outside the function of the judiciary and sovereignty or security. Yet article 5 actually provides additional reasons for a ‘refusal’ to execute the Letter. There is no inconsistency; the articles must be read together.
Article 12 refers to a ‘refusal’ to execute a ‘Letter of Request’. But this necessarily means a Letter of Request which conforms to, and does not violate, the provisions of the Convention. Any other reading of article 12 would reach the absurd result that the State of execution would be required to execute every Letter of Request which violated every provision of articles 1 to 4, 23, 28(b) and 32 if it was within the power of the judiciary and did not violate sovereignty or security.
To avoid this absurdity, article 12 must be read to open: The execution of a Letter of Request (which complies with the provisions of the present Convention) may be refused only to the extent that… With such a reading, it is obvious that, if there is a transmission of the Letter under articles 27, 28 or 32 by a channel other than the Central Authority, article 5 should be applied by analogy by the appropriate authority of the State of execution if the Letter is not in conformity with the formal requirements of the Convention or of a side agreement or convention under articles 28 and 32. The authority which receives the Letter should promptly notify the court of origin of the formal errors or defects in the Letter, to permit correction and amendment if possible. 
Articles 12, 13 – Refusal to execute the Letter
In the discussion of article 5, supra, non-execution of the Letter, because of noncompliance with the provisions of the Convention, has been considered. Article 12 deals with the corollary problem of justification for non-exercise of a Letter which complies fully with the provisions of the Convention.
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. 135. The sole reasons remaining are identical with the 1954 Convention and the draft Convention.
The discussion of article 1 (described in this legal Encyclopedia), recognizes that ‘other judicial acts’ may include acts which, under the domestic law of the State of execution, are outside the judicial function and are for example, within the functions of some administrative agency. This necessitates the first exception to execution in article 12(1)(a).
The second exception of ‘sovereignty or security’ is taken directly from the 1954 Convention. It also appears in article 13(1) of the Convention on Service of Documents. There have been no instances where this provision has been the basis of a disagreement between any two States in all the years that the Civil Procedure Convention has been operative; nor has it ever been invoked improperly as an excuse to avoid complying with the Convention. If any State should improperly invoke the clause as a device to avoid its international obligations under the Convention, the matter would be appropriate for diplomatic discussions under article 36.
Article 12(3) is copied from article 13(2) of the Convention on the Service of Documents and article 8(4) of the draft Convention. It raises no special problems and was accepted without discussion. Article 13(2) contains the necessary provision that, if the execution of the Letter is refused, in whole or in part, because of the application of article 12(1), the issuing authority 15 shall be informed immediately of the fact and of the reasons therefore. The notice will be transmitted through the same channel through which the Letter was initially transmitted by the issuing authority.
Articles 14, 26, 28(f), 32 – Costs and expenses of executing the Letter
Article 14 makes a radical break with the provisions of the 1954 Convention. Article 16(2) of that Convention permitted the State of execution to demand reimbursement of:
- fees paid to witnesses and experts;
- fees paid to official personnel to compel appearance of witnesses and
- costs occasioned by a request for some ‘special procedure’.
The discussion in Commission III developed strong pressure to accept a proposal of the German delegation to reduce the scope of these reimbursements and to place on the State of execution the burden of furnishing additional services at its own costs and expense.
Article 14(1) is identical with article 16(1) of the 1954 Convention in providing generally that no claim may be made by the State of execution for ‘taxes or costs of any nature’, e.g. the costs of the services of the Central Authority or the personnel of the courts or other government agencies which may be involved in the execution of Letters.
However, article 14(2) eliminates from article 16(2) of the 1954 Convention the reimbursement of fees paid to witnesses and fees paid to official personnel to compel appearance of witnesses. All that remains subject to reimbursement are the fees paid to ‘experts and interpreters’ and costs occasioned by a demand by the issuing authority for a ‘special procedure’ under article 9(2). ‘Interpreters’ as used in article 14(2) means only those who are used to interpret for the witness at the taking of the evidence; it does not include translators of Letters or documents under article 4.
In the debate over this change in the 1954 Convention, it was suggested that the fees for witnesses and the fees for compelling the appearance of the witnesses were of minor importance. There was no disagreement respecting the fees for witnesses. However, it was pointed out that in States of large area, the cost of the service of process to compel the appearance of an unwilling witness could be substantial, if the witness was several hundred miles from the tribunal and the serving officer would have to travel double that distance to serve the document and return to his office.
In addition, the United Kingdom delegation explained that under the United Kingdom practice, judges could not examine the witnesses themselves but were required to appoint ‘examiners’ to conduct the examination. If a public official was available to do this, there would be no charge, but if no public official was available and a lawyer had to be appointed, there would be a fee to be paid, which should not be the responsibility of the State of execution. The United States and Canadian delegations indicated a similar problem to some degree.
Further the delegations of Canada, Ireland, the United Kingdom and the United States jointly proposed to permit a reservation with respect to the fees of witnesses, the cost of service of process necessary to compel appearance of a witness and the cost of any transcript of the evidence where the evidence is taken ‘Common Law style’. The United States delegation explained the constitutional problems involved in the appropriation of funds for these expenses and the problems inherent in a Federal system.
Finally, it was pointed out that article 14(2) imposed the duty of reimbursement upon the State of origin unconditionally, irrespective of whether the parties in question furnished the funds. This also could raise constitutional questions as to the power of a judge of a court to impose an international fiscal obligation upon his Government, simply by issuing a Letter of Request.
These three questions were resolved as follows. A new article 14(3) was inserted to deal with the appointment of the ‘examiners’. It provides that the executing authority, in such a case, will advise the issuing authority of the need for the ‘examiner’ and the approximate costs which will follow. If the issuing authority consents, the ‘examiner’ may 16 then be appointed and the issuing authority will reimburse the costs. If the issuing authority does not consent, it will not be liable for the costs, but an ‘impasse’ may follow.
Article 14(3) does not permit the executing authority to appoint the ‘examiner’ unless the issuing authority consents. It reads: The requested authority… may, after having obtained the consent of the requesting authority, appoint a suitable person… This apparently means that, absent such consent, there is no power to make the appointment. But, by definition, the law of the State of execution does not permit the requested authority to execute the Letter. If the United Kingdom judge, under United Kingdom law, cannot execute the Letter himself and if he cannot appoint anyone else to do so, the result apparently will be that the request cannot be complied with.
A new article 26 was drafted to meet the problems of constitutional law raised by the United States delegation. If reimbursement of witness fees, costs of compelling attendance of witnesses and the costs of a transcript of the evidence are ‘required’ because of constitutional limitations, the State of execution may request their reimbursement by the State of origin. If such a request should be made by a State of execution, any other Contracting State may request that State to reimburse similar fees and costs arising from Letters of Request received from that State.
Article 26 does not oblige the State of origin to meet the request. Nor does it specifically require the State of execution to take action which is not permissible under its constitution. It is silent on the effect of a rejection of the request. Here again, there may be an ‘impasse’. If the State of origin will not agree to pay the costs and if the State of execution is subject to constitutional limitations that preclude it from executing the Letter without such an agreement, it may be impossible to execute the Letter. In such a situation, the problem could be solved if the interested party in the litigation would be willing himself to reimburse the State of execution either directly or through the State of origin.
The Chairman of Commission III, with the approval of several other delegations, expressed the hope that no State would ever feel it necessary to invoke article 26. He hoped that ways might be found in all cases to resolve the problem. A purely financial detail ought not to bar international co-operation.
There are a number of possible ways to resolve the problem, raised in article 26, as between a Civil Law State of origin and a Common Law State of execution. First – the Civil Law State of origin may request, under article 9(2), that the Letter be executed ‘Civil Law style’. It is assumed that the Civil Law tribunal would always prefer to have the evidence taken under its own procedures rather than by the Common Law method of examination and cross-examination by lawyers and a verbatim transcript of the testimony. This will be a ‘special procedure’ in the Common Law State of execution and the State of origin will automatically be responsible for the minimal costs involved, under article 14(2). All expense of a verbatim transcript will be eliminated. Second – it is likely that the legislature of the Common Law State of execution will appropriate the necessary funds to pay the article 26 costs, or will approve special legislation delegating the execution of Letters to special tribunals which will have appropriated funds to pay the costs of execution. Third – if the State of origin elects to secure the evidence through the use of consuls or commissioners, this will avoid articles 14 and 26 entirely, since no Letter of Request will be involved.
As between two Common Law States, the article 26 problem should be minimal. It will arise when Letters of Request are used and these are not the customary practice between two Common Law States. Instead, evidence is usually taken on notice, by stipulation or through a consul or commissioner. 156. As drawn, the Convention deliberately places the duty to reimburse the costs in article 14(2), not upon the parties to the action, but upon the State of origin itself. This means that any tribunal in the State of origin, which issues a Letter of Request, may 17 indirectly impose an international fiscal obligation upon his Government to reimburse certain costs. This provision may create constitutional questions in States where a judge has no such power, without the consent of the fiscal authorities of his Government.
In any such State, the problem can be resolved if the judge is required to secure an advance deposit from the moving party before he issues the Letter of Request. This advance deposit will avoid any embarrassment or constitutional question if a demand is later made upon the Government of the State of origin for reimbursement of costs. 158. It should be added here that the Convention excludes any power of the State of execution to demand an advance deposit of costs as a condition precedent to the execution of the Letter. Since the Government of the State of origin will be responsible for the reimbursement of the costs, the State of execution will have ample security for the reimbursement of the costs. Finally, article 28(f) provides expressly for side agreements, bilateral or multilateral, in which States may set up other and different rules for fees and costs. Article 32 similarly provides for conventions to this effect.
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.