The Recent Application by U.s. Courts of the Hague Convention on the Obtaining of Evidence Abroad and the French Blocking Statute: Toward More Deference to International Evidence Rules?

• Publication year: 2024
• Citation: Vol. 1 No. 3

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Olivier Attias and Flore Mahieu ^*

Recent case law indicates a noteworthy shift in U.S. courts' approach, demonstrating an increasing willingness to consider arguments from foreign parties regarding compliance with the Hague Evidence Convention process for obtaining evidence abroad. This marks a departure from the long-standing tradition of systematically rejecting any international law rule that might impact U.S. evidence rules. The recent implementation of clearer rules and frameworks for obtaining evidence in the context of U.S. disputes in France appears to be a significant contributing factor to this change in perspective. Foreign litigants are likely to view this development positively.

The Improvement of International Judicial Cooperation Through the Implementation of the Hague Evidence Convention

On March 18, 1970, several countries, including the United States and France, entered into the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters (hereafter, the Hague Evidence Convention). The primary objective of this international convention was to enhance mutual judicial cooperation in civil and commercial matters, specifically by establishing a framework for the collection of evidence located in a contracting state, while respecting the sovereign interests of each state.

Civil law states, such as France, welcomed this international convention, given the significant disparities among states regarding the scope and extent of evidence collection. Civil law countries, in particular, tend to adopt a restrictive approach to the taking

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of evidence in civil and commercial matters (such as prohibiting "fishing expeditions"), while common law judicial systems generally compel parties involved in judicial proceedings to provide a substantial amount of evidence.

The ratification of the Hague Evidence Convention by countries with varied procedural schemes was therefore a means to ensure that the collection of evidence in cross-border disputes would be regulated by specific agreed-upon procedures. Compliance with these procedures would be overseen by competent authorities in each contracting state. For instance, when confronted with a request for the taking of evidence in France for the purpose of a U.S. matter involving a French party, the French Ministry of Justice would be empowered to ensure that a pretrial discovery request is limited to what is strictly necessary for the purpose of the case. ¹

The Enactment of National "Blocking Statutes" to Ensure Compliance with the Hague Evidence Convention

To ensure compliance with the provisions of this international convention, several contracting states took legislative action aimed at strengthening the effectiveness of the Hague Evidence Convention. Consequently, several "Blocking Statutes" were enacted to penalize violations of the Hague Evidence Convention.

Some countries had already enacted such statutes. France, for instance, adopted the "French Blocking Statute" in 1968, subsequently amended in 1980. Initially, the French Blocking Statute sought to limit the extraterritorial impact of document requests in investigations by the U.S. Department of Justice involving French shipping companies. In 1980, its scope was expanded to encompass general civil litigation, thereby ensuring compliance with the provisions of the Hague Evidence Convention.

The purpose of this law is to protect French public policy, rather than solely safeguarding the interests of individuals or entities affected by the information. The law does not outright prohibit evidence gathering but aims to channel discovery through internationally agreed-upon mechanisms, including the Hague Evidence Convention.

Article 1 of the French Blocking Statute stipulates that French nationals or residents are prohibited from disclosing to foreign

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public authorities any information related to economic, commercial, industrial, financial, or technical matters that could "harm the sovereignty, security, or essential economic interests of...