Chapter III. Discovery Under International Conventions

• Pages: 27-50

CHAPTER III

DISCOVERY UNDER INTERNATIONAL

CONVENTIONS

There are several international conventions which apply to the

collection of evidence located in one jurisdiction for use in a foreign

jurisdiction. The United States has ratified only two of these treaties: the

Hague Convention on the Taking of Evidence Abroad in Civil and

Commercial Matters1 and the Inter-American Convention on Letters

Rogatory2 (and the accompanying Additional Protocol on the Inter-

American Convention on Letters Rogatory).3 The United States has not

ratified the Inter-American Convention on the Taking of Evidence Abroad

or its Additional Protocol.4

A. The Hague Evidence Convention

1. Scope of Hague Evidence Convention

a. Civil and Commercial Matters

The Hague Evidence Convention only applies to “civil and commercial

matters.”5 The term “civil and commercial” is not defined in the text of the

Convention. To complicate matters further, there was little consensus

among the drafters as to the meaning of the term. Some signatories, notably

the United States and the United Kingdom, have indicated that the term

“civil and commercial” includes all proceedings which are not criminal.6

Other signatories, however, have indicated an unwillingness to adopt such a

1. 23 U.S.T. 2555; T.I.A.S. 7444; 847 U.N.T.S. 231; reprinted in 8 I.L.M. 37

(1969) [hereinafter Hague Evidence Convention]. The relationship between

treaties and federal U.S. law is discussed in John Jackson, United States of

America, THE EFFECT OF TREATIES IN DOMESTIC LAW (Francis Jacob &

Shelley Roberts eds. 1987).

2. O.A.S. T.S. No. 43, Jan. 30, 1975, reprinted in 14 I.L.M. 339 (1975).

3. O.A.S. T.S. No. 56, May 8, 1979, reprinted in 14 I.L.M. 1238 (1975).

4. 14 I.L.M. 328 (1975).

5. Hague Evidence Convention, supra note 1, Art. 1.

6. Report of the United States Delegation to the Special Commission on the

Operation of the Convention of 18 March 1970 on the Taking of Evidence

Abroad in Civil or Commercial Matters, 17 I.L.M. 1417, 1418 (1978)

[hereinafter Delegation Report].

28 Obtaining Discovery Abroad

liberal interpretation. For example, there is some indication that civil law

countries would probably not accept a letter of request from a U.S. tax

court.7

Two factors should be considered when determining whether a matter is

“civil or commercial”: (1) the involvement of the state as a party to the

litigation and (2) the nature of the underlying claim. As a general rule,

proceedings involving the state as the plaintiff will probably not be deemed

“civil or commercial.” For example, a letter of request by the I.R.S. to

Germany or France would unlikely be considered “civil or commercial.”8

Additionally, bankruptcy cases generally are considered “civil or

commercial.”9 The second inquiry should focus on the nature of the claim.

A criminal claim will always fall outside the scope of the Hague Evidence

Convention even if the crime is commercial in nature.10

The application of the Hague Evidence Convention in antitrust cases

remains somewhat unclear. The increase in detection of international

cartels by antitrust agencies around the world will undoubtedly press the

issue. The requirement that the letter of request emanate from a judicial

authority would preclude the use of the Convention by the U.S. Department

of Justice in an antitrust investigation. An antitrust case brought by the

state is unlikely to fall within the scope of the Hague Evidence Convention

even if the proceedings move beyond the investigation to a judicial forum.

This is particularly the case as applied to U.S. antitrust cases. As certain

violations of U.S. antitrust law carry the potential of criminal sanctions,

most foreign courts would probably deem this to fall outside the Hague

Evidence Convention.11 On the other hand, it is likely that a private

antitrust case falls within the scope of the Convention. Laker Airways Ltd.

v. Pan American World Airways involved a private antitrust action brought

by Laker Airways against several foreign and domestic airlines.12

7. Id. For further discussion, see F.A. Mann, Any Civil or Commercial Matter,

102 L.Q. REV. 505 (1986).

8. 17 I.L.M. at 1419. See also In re Norway, [1989] 1 All E.R. 745 (1989).

9. See, e.g., In re Bedford Computer Corp., 114 B.R. 2 (D. N.H. 1990); Arcalon

B.V. v. Ramar B.V., 28 I.L.M. 1578 (1989); In re Fill, 68 B.R. 923 (S.D.N.Y.

1987). This also generally applies for Europe, Council Regulation (EC) No

1346/2000 of 29 May 2000 on insolvency proceedings, O.J. 2000 (L 160) 1,

preamble ¶ 2.

10. United Kingdom v. United States, 238 F.3d 1312, 1318 (11th Cir. 2001).

11. As many foreign states have enacted blocking statutes, there are many

practical limitations on the use of the Hague Evidence Convention in antitrust

cases. These are addressed in greater detail in Chapter IV.

12. 103 F.R.D. 42 (D.D.C. 1984).