Scope of Letters of Request

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

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’.

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

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.

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. 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.

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:

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

There was unanimous agreement that the broad and all inclusive term ‘other judicial act’ must be restricted. 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 Enforcement 4 of Foreign Judgments and the Supplementary Protocol which were considered at the Eleventh Session (see Part B (II) of the Final Act).

Provisional and protective 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).

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

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. [1]

Article 3 of the Convention: Content of the Letter of Request

Article 3, with minor modifications, follows article 3 of the draft Convention, stylistically rearranged.
The only changes other than style are:

• 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 authority;
• the inclusion of a more definite statement of the evidence to be obtained or other judicial act to be performed;
• a more exact specification of the documents or other property, real or personal, to be examined; and
• a clarification 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 in this legal Encyclopedia).

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

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. [2]

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.