Transmission of Letters of Requets

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Transmission of Letters of Requets

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

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.

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. 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 and 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.

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.

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. 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.

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.

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.

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. 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.

Article 24 further provides, in paragraph 2, that 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. 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’.

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 Authority. 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.

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 tribunal, bypassing the Central Authority and all other agencies of the State of execution.

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 State 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 Convention, 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.

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 Documents) recognizes the effectiveness of the provisions of other conventions to which States are, or shall become, Parties.

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.

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.

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 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. [1]

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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.

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