Proskauer Rose International Practice Guide Proskauer Rose LLP |
      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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  1. The Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil and Commercial Matters [hereinafter the Hague Convention], a multi-lateral treaty, is one of the first relevant authorities that any practitioner in the area of international litigation must know of and be at least minimally familiar with. Hague Conference on Private International Law, Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil and Commercial Matters, (Entered into force 7 Oct. 1972), U.N.T.S. 37/1976.

      Practice Tip: Whether or not the Hague Convention ultimately governs any particular discovery requests in any given litigation, it is important to understand the framework it establishes and the ways in which it seeks to harmonize competing interests of its various signatories in the context of cross-border legal proceedings.

  2. Broadly speaking, most signatories to the Hague Convention have agreed to allow some form of discovery of documents and testimony.
    1. Document discovery under the Hague Convention is by means of a Letter of Request, issued by the court where the action is pending and transmitted to the “Central Authority” of the jurisdiction where the discovery is located. The Central Authority is then responsible for transmitting the request to the appropriate judicial body for a response. The Hague Convention, arts. 1 & 2.
    2. Deposition testimony may be obtained by means of a Letter of Request, by a request that the testimony be taken before a diplomatic or consular officer, or by a specially appointed commissioner in the non-U.S. jurisdiction. The Hague Convention, art. 3.
  3. Each of the 44 contracting States to the Hague Convention establishes a Central Authority responsible for accepting and processing Letters of Request from other contracting States. The Hague Convention, art. 3.
    1. A Letter of Request, which is issued by the court presiding over the litigation, may seek testimony or documentary evidence.
    2. Where the evidence requested consists of deposition testimony, a Letter of Request can lead to the testimony being taken in a proceeding under the normal evidentiary rules of the country where the witness is located. The Hague Convention, arts. 15-22.
    3. In the alternative, the Hague Convention also provides procedures for the taking of testimony in front of a diplomatic or consular officer of the country where the action is pending, or by a commissioner specially appointed by the court in which the action is pending. Id.
  4. Many Hague Convention signatories have rejected the prototypical “no holds barred,” “no stone unturned” form of pretrial discovery common in U.S. litigation.
    1. In particular, signatories are permitted to opt out of or to limit their willingness to accept the various provisions of the Hague Convention.
    2. For example, Article 23 of the Hague Convention [hereinafter Article 23] specifically permits a contracting State to “declare that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.” The Hague Convention, art. 23.
    3. The meaning of Article 23 was clarified in 2003 when the following declaration by the U.K. was approved by a Special Commission, one of the working groups organized to review the operation of the Conventions and adopt recommendations with the object of improving the effectiveness of the Conventions and promoting consistent practices and interpretation:

      Article 23 was intended to permit States to ensure that a request for the production of documents must be sufficiently substantiated so as to avoid requests whereby one party merely seeks to find out what documents may generally be in the possession of the other party to the proceeding. [T]he wording of the particularized declaration submitted by the U.K. (i.e., the proponent of the provision) reflect[s] this purpose more adequately than the wording of Article 23. The U.K. declaration reads as follows:

      “In accordance with Article 23 Her Majesty’s Government declare that the United Kingdom will not execute Letters of Request issued for the purpose of obtaining pretrial discovery of documents. Her Majesty’s Government further declare that Her Majesty’s Government understand “Letters of Request issued for the purpose of obtaining pre-trial discovery of documents” for the purposes of the foregoing Declaration as including any Letter of Request which requires a person:

      1. to state what documents relevant to the proceedings to which the Letter of Request relates are, or have been, in his possession, custody or power; or
      2. to produce any documents other than particular documents specified in the Letter of Request as being documents appearing to the requested court to be, or to be likely to be, in his possession, custody or power.” (emphasis added). Conclusions and Recommendations of October – November 2003, Hague Conference on Private International Law, 2003, , p. 7.
    4. Jurisdictions that have executed some form of declaration under Article 23 are:

      Argentina, Australia, Bulgaria, China, Cyprus, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, India, Italy, Lithuania, Luxembourg, Mexico, Monaco, Netherlands, Norway, Poland, Portugal, Romania, South Africa, Seychelles, Singapore, Spain, Sri Lanka, Sweden, Switzerland, Turkey, Ukraine, United Kingdom, Venezuela

  5. A country may also opt out of the provisions authorizing testimony to be taken by consular or diplomatic officers or commissioners appointed by the Court, in which case a litigant seeking testimony must rely on the procedural rules of the non-U.S. jurisdiction.
  6. For more detailed and specific information about the Hague Convention and its application to discovery of materials in a particular jurisdiction, access the website of the Hague Conference on Private International Law, Collection of Conventions (1951-2003), ch. 20, p.7, HCCH, 2003,
  7. Practice Tip: The Hague Convention may be relevant even in situations in which litigants are able to obtain material from abroad without actually resorting to the Hague Convention’s procedures (such as where it can be obtained through more conventional party discovery). The relevance arises because the Hague Convention (with local modifications) reflects the host country’s views and attitudes concerning pretrial discovery, and U.S. courts faced with discovery disputes between the parties may well take the host country’s view into account in determining how much discovery to grant.

  8. It is important to note that the purpose and intent of the Hague Convention is to facilitate the process of obtaining evidence from abroad by creating standardized procedures that can be used as an alternative to the pre-existing evidence-gathering procedures available in the given jurisdiction. Those pre-existing procedures generally remain available to counsel seeking material from abroad.
    1. A practitioner seeking discovery of material from a jurisdiction that does not participate in the Hague Convention will be limited to those discovery devices and methods that are used domestically in that jurisdiction
    2. Consultation with locally-licensed counsel in the relevant jurisdiction is necessary to determine the permissible scope and procedures.

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