Discovery Under International Conventions

• Pages: 41-76

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CHAPTER III

DISCOVERY UNDER INTERNATIONAL

CONVENTIONS

There are several international conventions that 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 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. Hague Evidence Convention

1. Scope of the 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

1. Convention on the Taking of Evidence Abroad in Civil and Commercial

Matters, 23 U.S.T. 2555, T.I.A.S. No. 7444, 847 U.N.T.S. 231, reprinted

in 8 I.L.M. 37 (1969) [hereinafter Hague Evidence Convention].

2. Inter-American Convention on Letters Rogatory, Jan. 30, 1975, 1438

U.N.T.S. 288, O.A.S.T.S. No. 43, reprinted at 28 U.S.C. § 1781

[hereinafter IAC].

3. Additional Protocol on the Inter-American Convention on Letters

Rogatory, May 8, 1979, 1438 U.N.T.S. 322, O.A.S.T.S. No. 56, reprinted

at 28 U.S.C. § 1781 [hereinafter Protocol].

4. Inter-American Convention on the Taking of Evidence Abroad, Jan. 30,

1975, 1438 U.N.T.S. 390, O.A.S.T.S. No. 44, reprinted in 14 I.L.M. 328

(1975); Additional Protocol to the Inter-American Convention on the

Taking of Evidence Abroad, May 24, 1984, 1761 U.N.T.S. 342, O.A.S.T.S.

No. 65, reprinted in 24 I.L.M. 472 (1985).

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

Obtaining Discovery Abroad

42

consensus among the drafters as to the meaning of the term. Some

signatories, including the United States and the United Kingdom, have

indicated that the term “civil and commercial” includes all proceedings

that are not criminal.6 Other signatories, however, have indicated an

unwillingness to adopt such a broad interpretation. For example, some

civil law countries would probably not accept a letter of request from a

U.S. tax court.7

Two factors are relevant to the determination of 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. Under the first factor,

proceedings involving the state as the plaintiff are generally not considered

“civil or commercial.” 8 For example, a letter of request by a U.S.

government agency to Germany or France would unlikely be considered

“civil or commercial” for purposes of the Convention. 9 Conversely,

bankruptcy cases typically are considered “civil or commercial.”10 Under

the second inquiry, criminal claim always fall outside the scope of the

Hague Evidence Convention, even if the crime is commercial in nature. 11

The application of the Hague Evidence Convention to antitrust cases

remains somewhat unclear. This is because of the difference in the ways

legal systems characterize antitrust. A private antitrust case in the United

States is generally considered to be “civil or commercial.” Consequently,

U.S. courts consider the Hague Evidence Convention applicable to private

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].

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

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

8. See, e.g., Switz., Fed. Office of Justice, Int'l Judicial Assistance in Civil

Matters–Guidelines 5 (Jan. 2013) available at www.rhf.admin.ch/etc/

medialib/data/rhf.Par.0064.File.tmp/wegl-ziv-e.pdf [hereinafter Swiss

Civil Matters Guidelines].

9. Delegation Report, 17 I.L.M. at 1419. See also In re Norway, [1989] 1 All

E.R. 745.

10. See, e.g., Pickles v. Gratzon, 55 NSWLR 533 (2002); In re Bedford

Computer Corp., 114 B.R. 2 (Bankr. D.N.H. 1990); Arcalon B.V. v. Ramar

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

1987). This also generally applies for Europe, see Council Regulation (EC)

No 1346/2000 of 29 May 2000 on insolvency proceedings, 2000 O.J. (L

160) 1, pmbl ¶ 2.

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

Discovery Under International Conventions

43

antitrust litigation even though they do not require the parties to use it.12

However, in most foreign countries—particularly those with civil law

systems—the characterization of competition law is not as unambiguous

as in the U.S. legal system. 13 Until recently, the enforcement of

competition law in foreign legal systems has been perceived to be solely

within the purview of the state. Consequently, competition law cases are

not uniformly characterized as “civil or commercial” outside the United

States.

As, however, more foreign countries recognize and even promote

private competition law cases, 14 one could expect those foreign

jurisdictions to recognize private U.S. antitrust claims as being “civil or

commercial” for purposes of the Hague Evidence Convention.15 This is

particularly the case in the European Union (EU) where the Parliament

and the Council adopted a directive in 2014 which required all of the EU

member states to adopt or revise their legislation to permit private actions

based on violations of the EU competition laws.16 In fact, the European

12. See, e.g., Trueposition, Inc. v. LM Ericsson Tel. Co., 2012 WL 707012

(E.D. Pa. 2012); In re TFT–LCD (Flat Panel) Antitrust Litig., 2011 WL

723571 (N.D. Cal. 2011); In re Air Cargo Shipping Servs. Antitrust Litig.,

2010 WL 2976220 (E.D.N.Y. 2010); Laker Airways v. Pan Am. World

Airways, 103 F.R.D. 42 (D.D.C. 1984). See also Note on Article 1(1) of

the 2016 preliminary Draft Convention and the Term “Civil or Commercial

Matters,” Dec. 2016 drawn up by the co-Rapporteurs of the draft

Convention and the Permanent Bureau at ¶41 available at

https://assets.hcch.net/docs/9be83162-a32b-457c-8232-

16748c841789.pdf.

13. Courts in foreign common law systems such as the U.K. and Australia

consider private antitrust cases to be “civil or commercial.” RioTinto Zinc

Corp. v. Westinghouse Electric Corp., [1978] 1 A11 ER 434; Sykes v.

Richardson (2007) 70 NSWLR 66.

14. See ANDRE FIEBIG & SPENCER WEBER WALLER, ANTITRUST AND

AMERICAN BUSINESS ABROAD ch. 20 (5th ed., 2017); Caron Beaton-Wells,

Private enforcement of competition law in Australia - inching forwards?,

39 MELBOURNE UNIV. L. REV. 681 (2016); Christopher Bovis & Charles

Clarke, Private Enforcement of EU Competition Law, 36 LIVERPOOL L.

REV. 49 (2015).

15. See Dimitrios Tzakas, International Litigation and Competition Law: the

Case of Collective Redress, in INTERNATIONAL ANTITRUST LITIGATION:

CONFLICT OF LAWS AND COORDINATION 161, 183 (Jürgen Basedow,

Stéphanie Francq & Laurence Idot eds., 2012).

16. Directive2014/104/EU of the European Parliament and of the Council of

26 November 2014 on certain rules governing actions for damages under