(In the relations between the Contracting States, this
Convention replaces Articles 8 to 16 of the Conventions on civil procedure of
1905 and 1954)
CONVENTION ON THE TAKING OF EVIDENCE
ABROAD IN CIVIL OR COMMERCIAL MATTERS
(Concluded 18 March 1970)
The States
signatory to the present Convention,
Desiring to
facilitate the transmission and execution of Letters of Request and to further
the accommodation of the different methods which they use for this purpose,
Desiring to
improve mutual judicial co-operation in civil or commercial matters,
Have resolved to
conclude a Convention to this effect and have agreed upon the following
provisions -
chapter i -
letters of request
Article 1
In civil or
commercial matters a judicial authority of a Contracting State may, in
accordance with the provisions of the law of that State, request the competent
authority of another Contracting State, by means of a Letter of Request, to
obtain evidence, or to perform some other judicial act.
A Letter shall
not be used to obtain evidence which is not intended for use in judicial
proceedings, commenced or contemplated.
The expression
"other judicial act" does not cover the service of judicial documents
or the issuance of any process by which judgments or orders are executed or
enforced, or orders for provisional or protective measures.
Article 2
A Contracting
State shall designate a Central Authority which will undertake to receive
Letters of Request coming from a judicial authority of another Contracting
State and to transmit them to the authority competent to execute them. Each
State shall organise the Central Authority in accordance with its own law.
Letters shall be
sent to the Central Authority of the State of execution without being
transmitted through any other authority of that State.
Article 3
A Letter of
Request shall specify -
a)
the authority requesting its execution and the authority requested to execute
it, if known to the requesting authority;
b) the names and addresses of the
parties to the proceedings and their representatives, if any;
c) the nature of the proceedings
for which the evidence is required, giving all necessary information in regard
thereto;
d) the evidence to be obtained or
other judicial act to be performed.
Where
appropriate, the Letter shall specify, inter
alia -
e)
the names and addresses of the persons to be examined;
f) the questions to be put to the
persons to be examined or a statement of the subject-matter about which they
are to be examined;
g) the documents or other
property, real or personal, to be inspected;
h) any requirement that the
evidence is to be given on oath or affirmation, and any special form to be used;
i) any special method or
procedure to be followed under Article 9.
A Letter may
also mention any information necessary for the application of Article 11.
No legalisation
or other like formality may be required.
Article 4
A Letter of
Request shall be in the language of the authority requested to execute it or be
accompanied by a translation into that language.
Nevertheless, a
Contracting State shall accept a Letter in either English or French, or a
translation into one of these languages, unless it has made the reservation
authorised by Article 33.
A Contracting
State which has more than one official language and cannot, for reasons of
internal law, accept Letters in one of these languages for the whole of its
territory, shall, by declaration, specify the language in which the Letter or
translation thereof shall be expressed for execution in the specified parts of
its territory. In case of failure to comply with this declaration, without
justifiable excuse, the costs of translation into the required language shall
be borne by the State of origin.
A Contracting
State may, by declaration, specify the language or languages other than those
referred to in the preceding paragraphs, in which a Letter may be sent to its
Central Authority.
Any translation
accompanying a Letter shall be certified as correct, either by a diplomatic
officer or consular agent or by a sworn translator or by any other person so
authorised in either State.
Article 5
If the Central
Authority considers that the request does not comply with the provisions of the
present Convention, it shall promptly inform the authority of the State of
origin which transmitted the Letter of Request, specifying the objections to
the Letter.
Article 6
If the authority
to whom a Letter of Request has been transmitted is not competent to execute
it, the Letter shall be sent forthwith to the authority in the same State which
is competent to execute it in accordance with the provisions of its own law.
Article 7
The requesting
authority shall, if it so desires, be informed of the time when, and the place
where, the proceedings will take place, in order that the parties concerned,
and their representatives, if any, may be present. This information shall be
sent directly to the parties or their representatives when the authority of the
State of origin so requests.
Article 8
A Contracting
State may declare that members of the judicial personnel of the requesting
authority of another Contracting State may be present at the execution of a
Letter of Request. Prior authorisation by the competent authority designated by
the declaring State may be required.
Article 9
The judicial
authority which executes a Letter of Request shall apply its own law as to the
methods and procedures to be followed.
However, it will
follow a request of the requesting authority that a special method or procedure
be followed, unless this is incompatible with the internal law of the State of
execution or is impossible of performance by reason of its internal practice and
procedure or by reason of practical difficulties.
A Letter of
Request shall be executed expeditiously.
Article 10
In executing a
Letter of Request the requested authority shall apply the appropriate measures
of compulsion in the instances and to the same extent as are provided by its
internal law for the execution of orders issued by the authorities of its own
country or of requests made by parties in internal proceedings.
Article 11
In the execution
of a Letter of Request the person concerned may refuse to give evidence in so
far as he has a privilege or duty to refuse to give the evidence -
a)
under the law of the State of execution; or
b) under the law of the State of
origin, and the privilege or duty has been specified in the Letter, or, at the
instance of the requested authority, has been otherwise confirmed to that
authority by the requesting authority.
A Contracting
State may declare that, in addition, it will respect privileges and duties
existing under the law of States other than the State of origin and the State
of execution, to the extent specified in that declaration.
Article 12
The execution of
a Letter of Request may be refused only to the extent that -
a)
in the State of execution the execution of the Letter does not fall within the
functions of the judiciary; or
b) the State addressed considers
that its sovereignty or security would be prejudiced thereby.
Execution may
not be refused solely on the ground that under its internal law the State of
execution claims exclusive jurisdiction over the subject-matter of the action
or that its internal law would not admit a right of action on it.
Article 13
The documents
establishing the execution of the Letter of Request shall be sent by the
requested authority to the requesting authority by the same channel which was
used by the latter.
In every
instance where the Letter is not executed in whole or in part, the requesting
authority shall be informed immediately through the same channel and advised of
the reasons.
Article 14
The execution of
the Letter of Request shall not give rise to any reimbursement of taxes or
costs of any nature.
Nevertheless,
the State of execution has the right to require the State of origin to
reimburse the fees paid to experts and interpreters and the costs occasioned by
the use of a special procedure requested by the State of origin under Article
9, paragraph 2.
The requested
authority whose law obliges the parties themselves to secure evidence, and
which is not able itself to execute the Letter, may, after having obtained the
consent of the requesting authority, appoint a suitable person to do so. When
seeking this consent the requested authority shall indicate the approximate
costs which would result from this procedure. If the requesting authority gives
its consent it shall reimburse any costs incurred; without such consent the
requesting authority shall not be liable for the costs.
chapter ii -
taking of evidence by diplomatic officers, consular agents and commissioners
Article 15
In a civil or
commercial matter, a diplomatic officer or consular agent of a Contracting
State may, in the territory of another Contracting State and within the area
where he exercises his functions, take the evidence without compulsion of
nationals of a State which he represents in aid of proceedings commenced in the
courts of a State which he represents.
A Contracting
State may declare that evidence may be taken by a diplomatic officer or
consular agent only if permission to that effect is given upon application made
by him or on his behalf to the appropriate authority designated by the
declaring State.
Article 16
A diplomatic
officer or consular agent of a Contracting State may, in the territory of
another Contracting State and within the area where he exercises his functions,
also take the evidence, without compulsion, of nationals of the State in which
he exercises his functions or of a third State, in aid of proceedings commenced
in the courts of a State which he represents, if -
a)
a competent authority designated by the State in which he exercises his
functions has given its permission either generally or in the particular case,
and
b) he complies with the
conditions which the competent authority has specified in the permission.
A Contracting
State may declare that evidence may be taken under this Article without its
prior permission.
Article 17
In a civil or
commercial matter, a person duly appointed as a commissioner for the purpose
may, without compulsion, take evidence in the territory of a Contracting State
in aid of proceedings commenced in the courts of another Contracting State if -
a)
a competent authority designated by the State where the evidence is to be taken
has given its permission either generally or in the particular case; and
b) he complies with the
conditions which the competent authority has specified in the permission.
A Contracting
State may declare that evidence may be taken under this Article without its
prior permission.
Article 18
A Contracting
State may declare that a diplomatic officer, consular agent or commissioner
authorised to take evidence under Articles 15, 16 or 17, may apply to the
competent authority designated by the declaring State for appropriate
assistance to obtain the evidence by compulsion. The declaration may contain
such conditions as the declaring State may see fit to impose.
If the authority
grants the application it shall apply any measures of compulsion which are
appropriate and are prescribed by its law for use in internal proceedings.
Article 19
The competent
authority, in giving the permission referred to in Articles 15, 16 or 17, or in
granting the application referred to in Article 18, may lay down such
conditions as it deems fit, inter alia,
as to the time and place of the taking of the evidence. Similarly it may
require that it be given reasonable advance notice of the time, date and place
of the taking of the evidence; in such a case a representative of the authority
shall be entitled to be present at the taking of the evidence.
Article 20
In the taking of
evidence under any Article of this Chapter persons concerned may be legally
represented.
Article 21
Where a
diplomatic officer, consular agent or commissioner is authorised under Articles
15, 16 or 17 to take evidence -
a)
he may take all kinds of evidence which are not incompatible with the law of
the State where the evidence is taken or contrary to any permission granted
pursuant to the above Articles, and shall have power within such limits to
administer an oath or take an affirmation;
b) a request to a person to
appear or to give evidence shall, unless the recipient is a national of the
State where the action is pending, be drawn up in the language of the place
where the evidence is taken or be accompanied by a translation into such
language;
c) the request shall inform the
person that he may be legally represented and, in any State that has not filed
a declaration under Article 18, shall also inform him that he is not compelled
to appear or to give evidence;
d) the evidence may be taken in
the manner provided by the law applicable to the court in which the action is
pending provided that such manner is not forbidden by the law of the State
where the evidence is taken;
e) a person requested to give
evidence may invoke the privileges and duties to refuse to give the evidence
contained in Article 11.
Article 22
The fact that an
attempt to take evidence under the procedure laid down in this Chapter has
failed, owing to the refusal of a person to give evidence, shall not prevent an
application being subsequently made to take the evidence in accordance with
Chapter I.
chapter iii -
general clauses
Article 23
A Contracting
State may at the time of signature, ratification or accession, 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.
Article 24
A Contracting
State may designate other authorities in addition to the Central Authority and
shall determine the extent of their competence. However, Letters of Request may
in all cases be sent to the Central Authority.
Federal States
shall be free to designate more than one Central Authority.
Article 25
A Contracting
State which has more than one legal system may designate the authorities of one
of such systems, which shall have exclusive competence to execute Letters of
Request pursuant to this Convention.
Article 26
A Contracting
State, if required to do so because of constitutional limitations, may request
the reimbursement by the State of origin of fees and costs, in connection with
the execution of Letters of Request, for the service of process necessary to
compel the appearance of a person to give evidence, the costs of attendance of
such persons, and the cost of any transcript of the evidence.
Where a State
has made a request pursuant to the above paragraph, any other Contracting State
may request from that State the reimbursement of similar fees and costs.
Article 27
The provisions
of the present Convention shall not prevent a Contracting State from -
a)
declaring that Letters of Request may be transmitted to its judicial
authorities through channels other than those provided for in Article 2;
b) permitting, by internal law or
practice, any act provided for in this Convention to be performed upon less
restrictive conditions;
c) permitting, by internal law or
practice, methods of taking evidence other than those provided for in this
Convention.
Article 28
The present
Convention shall not prevent an agreement between any two or more Contracting
States to derogate from -
a)
the provisions of Article 2 with respect to methods of transmitting Letters of
Request;
b) the provisions of Article 4
with respect to the languages which may be used;
c) the provisions of Article 8
with respect to the presence of judicial personnel at the execution of Letters;
d) the provisions of Article 11
with respect to the privileges and duties of witnesses to refuse to give
evidence;
e) the provisions of Article 13
with respect to the methods of returning executed Letters to the requesting
authority;
f) the provisions of Article 14
with respect to fees and costs;
g) the provisions of Chapter II.
Article 29
Between Parties
to the present Convention who are also Parties to one or both of the
Conventions on Civil Procedure signed at The Hague on the 17th of July 1905 and
the 1st of March 1954, this Convention shall replace Articles 8-16 of the
earlier Conventions.
Article 30
The present
Convention shall not affect the application of Article 23 of the Convention of
1905, or of Article 24 of the Convention of 1954.
Article 31
Supplementary
Agreements between Parties to the Conventions of 1905 and 1954 shall be
considered as equally applicable to the present Convention unless the Parties
have otherwise agreed.
Article 32
Without
prejudice to the provisions of Articles 29 and 31, the present Convention shall
not derogate from conventions containing provisions on the matters covered by
this Convention to which the Contracting States are, or shall become Parties.
Article 33
A State may, at
the time of signature, ratification or accession exclude, in whole or in part,
the application of the provisions of paragraph 2 of Article 4 and of Chapter
II. No other reservation shall be permitted.
Each Contracting
State may at any time withdraw a reservation it has made; the reservation shall
cease to have effect on the sixtieth day after notification of the withdrawal.
When a State has
made a reservation, any other State affected thereby may apply the same rule
against the reserving State.
Article 34
A State may at
any time withdraw or modify a declaration.
Article 35
A Contracting
State shall, at the time of the deposit of its instrument of ratification or
accession, or at a later date, inform the Ministry of Foreign Affairs of the
Netherlands of the designation of authorities, pursuant to Articles 2, 8, 24
and 25.
A Contracting
State shall likewise inform the Ministry, where appropriate, of the following -
a)
the designation of the authorities to whom notice must be given, whose
permission may be required, and whose assistance may be invoked in the taking
of evidence by diplomatic officers and consular agents, pursuant to Articles
15, 16 and 18 respectively;
b) the designation of the
authorities whose permission may be required in the taking of evidence by
commissioners pursuant to Article 17 and of those who may grant the assistance
provided for in Article 18;
c) declarations pursuant to
Articles 4, 8, 11, 15, 16, 17, 18, 23 and 27;
d) any withdrawal or modification
of the above designations and declarations;
e) the withdrawal of any
reservation.
Article 36
Any difficulties
which may arise between Contracting States in connection with the operation of
this Convention shall be settled through diplomatic channels.
Article 37
The present
Convention shall be open for signature by the States represented at the
Eleventh Session of the Hague Conference on Private International Law.
It shall be
ratified, and the instruments of ratification shall be deposited with the
Ministry of Foreign Affairs of the Netherlands.
Article 38
The present
Convention shall enter into force on the sixtieth day after the deposit of the
third instrument of ratification referred to in the second paragraph of Article
37.
The Convention
shall enter into force for each signatory State which ratifies subsequently on
the sixtieth day after the deposit of its instrument of ratification.
Article 39
Any State not
represented at the Eleventh Session of the Hague Conference on Private
International Law which is a Member of this Conference or of the United Nations
or of a specialised agency of that Organisation, or a Party to the Statute of
the International Court of Justice may accede to the present Convention after
it has entered into force in accordance with the first paragraph of Article 38.
The instrument
of accession shall be deposited with the Ministry of Foreign Affairs of the
Netherlands.
The Convention
shall enter into force for a State acceding to it on the sixtieth day after the
deposit of its instrument of accession.
The accession
will have effect only as regards the relations between the acceding State and
such Contracting States as will have declared their acceptance of the
accession. Such declaration shall be deposited at the Ministry of Foreign
Affairs of the Netherlands; this Ministry shall forward, through diplomatic
channels, a certified copy to each of the Contracting States.
The Convention
will enter into force as between the acceding State and the State that has
declared its acceptance of the accession on the sixtieth day after the deposit
of the declaration of acceptance.
Article 40
Any State may,
at the time of signature, ratification or accession, declare that the present
Convention shall extend to all the territories for the international relations
of which it is responsible, or to one or more of them. Such a declaration shall
take effect on the date of entry into force of the Convention for the State
concerned.
At any time
thereafter, such extensions shall be notified to the Ministry of Foreign
Affairs of the Netherlands.
The Convention
shall enter into force for the territories mentioned in such an extension on
the sixtieth day after the notification indicated in the preceding paragraph.
Article 41
The present
Convention shall remain in force for five years from the date of its entry into
force in accordance with the first paragraph of Article 38, even for States
which have ratified it or acceded to it subsequently.
If there has
been no denunciation, it shall be renewed tacitly every five years.
Any denunciation
shall be notified to the Ministry of Foreign Affairs of the Netherlands at
least six months before the end of the five year period.
It may be
limited to certain of the territories to which the Convention applies.
The denunciation
shall have effect only as regards the State which has notified it. The
Convention shall remain in force for the other Contracting States.
Article 42
The Ministry of
Foreign Affairs of the Netherlands shall give notice to the States referred to
in Article 37, and to the States which have acceded in accordance with
Article 39, of the following -
a)
the signatures and ratifications referred to in Article 37;
b) the date on which the present
Convention enters into force in accordance with the first paragraph of Article
38;
c) the accessions referred to in
Article 39 and the dates on which they take effect;
d) the extensions referred to in
Article 40 and the dates on which they take effect;
e) the designations, reservations
and declarations referred to in Articles 33 and 35;
f) the denunciations referred to
in the third paragraph of Article 41.
In witness
whereof the undersigned, being duly authorised thereto, have signed the present
Convention.
Done at The
Hague, on the 18th day of March, 1970, in the English and French languages,
both texts being equally authentic, in a single copy which shall be deposited
in the archives of the Government of the Netherlands, and of which a certified
copy shall be sent, through the diplomatic channel, to each of the States
represented at the Eleventh Session of the Hague Conference on Private
International Law.
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