International Evidence
Article 21 of the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters: Administrative rules for the taking of the evidence
The five sub-divisions of article 21 lay down the administrative rules which will apply if a consul or a commissioner is authorized to take evidence under articles 15, 16 or 17. The rules are self-explanatory, and closely follow article 17 of the draft Convention. The discussion of article 17 in the Report to the draft Convention is relevant.
Sub-division (a) permits him to take all kinds of evidence which are ‘not incompatible’ with the law of the State of execution and which are not contrary to any permission granted. These provisions are self-explanatory. ub-division (a) further permits him to administer an oath or to take an affirmation within these same limits. It is conceivable that the law of the State of execution may provide expressly that only judges and «notaires» may administer an oath. Under these circumstances, the consul or commissioner would have to call in a «notaire» to administer the oath to the witness in conformity with local law.
Sub-division (b) recognizes that the witness must somehow be notified that his evidence is needed and that he should appear at a given time and place. The notice must be written in, or translated into, the language of the State of execution, unless the witness is a national of the State of origin. In that case it will, of course, be written in the language of that State.
The request, under sub-division (c), must also inform the witness that he may be legally represented (article 20). Further, under sub-division (c), if the State of execution has not filed a declaration under article 18, respecting the right to apply for compulsion against the witness, the notice must also inform him that he is not compelled to appear or to give evidence. 218. There is one minor problem under sub-division (c). Suppose the State of execution has filed no declaration under article 18, respecting compulsion, because the right to ask for compulsion already exists under internal law and practice, protected by article 27(b), or under a side agreement under article 28(g) or a convention under article 32. The declaration is unnecessary and would be redundant. If, by reason of the absence of any declaration, the consul would notify the witness that he cannot be compelled to appear and to give evidence, the statement of the consul would be false. The witness can be compelled to appear and testify under internal law and practice, or under the side agreement or convention, regardless of article 18.
To avoid any such improper result, sub-division (c) must be read as though it said: “… and, in any State that has not filed a declaration under article 18, and whose internal law and practice does not provide for compulsion against the witness, shall also inform him that he is not compelled to appear or to give evidence.” The phrase ‘internal law’ will, of course, include any applicable side agreement or convention on compulsion to which the State of execution is a Party, and which will be applicable under articles 28(g) and 32. 220. Sub-division (d) is a verbatim copy of sub-division (c) of article 17 of the draft Convention. The discussion in the Report to the draft Convention need not be repeated.
Sub-division (e) permits the witness to invoke, before the consul or commissioner, the same privileges and duties to refuse to give evidence as are applicable under article 11 when he is called before an executing authority under a Letter of Request. This will require the ‘commission’ or other document appointing the consul or commissioner to take the evidence to contain the necessary information on the extent of the privilege or duty [see articles 3(4) and 11(1)(b)], or will require the issuing authority to ‘confirm’ the extent of the privilege or duty, if requested to do so by the consul or commissioner.
In the draft Convention, article 17 also incorporated the ‘sovereignty or security’ clause. This was omitted by Commission III as unnecessary. Sub-division (a) of article 21 forbids the consul or commissioner to take any evidence which is ‘incompatible with the law of the State’ of execution. The disclosure of information which violated the ‘sovereignty or security’ of the State of execution would clearly be ‘incompatible’ with its law. R. Article 22 – Effect of failure to secure evidence through a consul or commissioner
Article 22 provides that the failure to obtain the needed evidence through the consular or commissioner route does not exhaust the rights of the moving party and does not prevent him from going back to the State of origin and securing a Letter of Request to obtain the failed evidence. 224. This had been agreed to in principle in the Special Commission but, because of the absence of a quorum, could not be included in the draft Convention.
The article is actually unnecessary, but is included out of an excess of caution. Let us suppose that a proceeding through a consul or commissioner fails for any reason, e.g. refusal of the State of execution to give a required permission, or inability of the consul or commissioner to comply with a condition laid down in the permission, or refusal of the witness to appear and testify and a refusal to grant compulsion against him. Let us further suppose that the moving party in the State of origin then abandons the abortive attempt and seeks and secures a Letter of Request from the forum where the action is pending.
When this Letter of Request arrives at the Central Authority of the State of execution or at the executing tribunal, can the execution of the Letter be refused because the moving party unsuccessfully sought the evidence through the consul or commissioner? We need only look at article 12 for the answer. Does it contain a clause making these facts a ground for refusing to execute a Letter? Clearly not; The prior abortive proceedings are irrelevant to the execution of the Letter of Request.
Article 22 does no harm. But, in the light of article 12, it is unnecessary and adds nothing to the Convention. [1]
Obtaining International Evidence in India
Evidence may be obtained in India in two ways: by the letters rogatory process (see more in this legal Encyclopedia) or under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. The convention codifies the taking of evidence on notice and commission and the compulsion of evidence pursuant to a letter of request. Under the convention, a judicial authority in the United States sends a letter of request to the appropriate Indian Central Authority in accordance with the convention. For criminal cases (letters rogatory), that authority is the Ministry of Home Affairs (I S – II Div: Legal Cell, 9th floor, Lok Nayak Bhawan, Khan Market, New Delhi; https://mha.nic.in/uniquepage.asp?Id_Pk=567). For civil cases (Hague Convention), that authority is the Ministry of Law and Justice (Dept of Legal Affairs, 4th floor, A-Wing, Shastri Bhavan, New Delhi; https://lawmin.nic.in/Legal.htm).
Letters Rogatory
Letters rogatory are the customary method of obtaining judicial assistance from abroad in the absence of a treaty or executive agreement for criminal cases. Essentially, courts in one country use these documents to request the performance of an act to the judiciary of a foreign country which, if done without the sanction of the foreign court, could constitute a violation of that country’s sovereignty. Some types of letters include serving of a summons, subpoena, or other legal notice, or the execution of a civil judgment. These requests must be signed by a judge and transmitted via the Department of Justice, Office of International Affairs (DOJ/OIA)(https://www.justice.gov/criminal/about/oia.html) to the Ministry of Home Affairs.
Service of Process
For serving process in India, you must contact the appropriate the Ministry of Law and Justice. The Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil and Commercial Matters guides this process between the U.S. and India, and requests for service of process on persons or entities located in India should utilize the USM-94 form and be sent to the Ministry of Law and Justice.
Voluntary Depositions
For obtaining a voluntary deposition in India, you must contact the Ministry of Law and Justice. The Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters guides this process between the U.S. and India, and requests for voluntary depositions from persons in India should utilize the Hague Model Letter of Request and be sent to the Ministry of Law and Justice. With prior authorization, members of the requesting party Contracting Party may be present at the execution of a letter of request. The Republic of India will not execute Letters of Request issued in pursuance of Article 23 of the Convention for the purpose of obtaining pre-trial discovery of documents, which requires a person to produce any documents other than particular documents specified in the Letter of Request, which are likely to be in his possession, custody, or power.
Consulate Supporting Services
The Embassies, Consulates and Consular Agencies do not have trained legal stenographers, typists, or interpreters available. Additionally, a heavy workload and small staff make it impossible for consular staff members to serve in these capacities. Therefore, the party requiring the deposition may want to provide their own.
In relation to Inter-American Treaties, Conventions and Agreements adopted within the framework of the OAS
The Organization of American States (a list of Members of the Organization of American States is here) adopted the following international instruments regarding evidence (in Judicial Cooperation), as follows:
- Inter-American Convention on Proof of and Information on Foreign Law
- Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards
- Inter-American Convention on the Taking of Evidence Abroad
- Additional Protocol to the Inter-American Convention on the Taking of Evidence Abroad
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.