CONVENTION ON THE TAKING OF
EVIDENCE ABROAD
IN CIVIL OR COMMERCIAL MATTERS
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 organize 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 legalization 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 authorized 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 authorized 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 authorization 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 civil or commercial matters, 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 civil or commercial matters, 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
authorized 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 authorized 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 specialized agency of that Organization, 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 authorized 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.