The Service and Evidence Conventions:

1. The Service and Evidence Conventions: Nature, purpose and benefits4th Asia Pacific Regional Conference MANILA, THE PHILIPPINES26-28 October 2011 Christophe Bernasconi Deputy Secretary General Hague Conference on Private International Law

2. Contents 1. Introduction to judicial co-operation 2. The Service and Evidence Conventions at a glance 3. Nature and purpose of the Service Convention 4. Nature and purpose of the Evidence Convention 5. Benefits for Asia Pacific

3. 1. Introduction to judicial co-operation 2. The Service and Evidence Conventions at a glance 3. Nature and purpose of the Service Convention 4. Nature and purpose of the Evidence Convention 5. Benefits for Asia Pacific

4. Overview In a globalised world, legal relationships in civil and commercial matters are likely to have an international aspect (e.g., cross-border contracts, dispersed families) If these relationships end up in court – questions of service of process abroad and taking of evidence abroad may arise Co-operation between the State authorities/ officers is necessary to ensure that the relevant judicial procedure is dealt with efficiently and effectively

5. Judicial co-operation without a treaty STATE OF ORIGIN REQUEST TO SERVE DOCUMENTS ORTO TAKE EVIDENCE Ministry of Justice(optional) Diplomatic bag Judicial authority/judicial officerState of origin Ministry of Foreign Affairs STATE OF DESTINATION Authority competentto serve the documents or to take evidence Ministry of Foreign Affairs Diplomat of State of origin accredited within State of destination Ministry of Justice (optional) DOCUMENTS SERVEDOR EVIDENCE TAKEN

6. The judicial co-operation conventions With a view to improving and simplifying judicial co-operation in civil and commercial matters, the Hague Conference has concluded three separate Conventions: The 1965 Service Convention The 1970 Evidence Convention The 1980 Access to Justice Convention Each of these Conventions updates the corresponding chapter of the 1954 Hague Convention on civil procedure, which itself built on earlier work of the Hague Conference in the area of judicial co-operation

7. 1. Introduction to judicial co-operation 2. The Service and Evidence Conventions at a glance 3. Nature and purpose of the Service Convention 4. Nature and purpose of the Evidence Convention 5. Benefits for Asia Pacific

8. Global coverage 64 Contracting States to the Service Convention Including Australia, China, India, Japan, Republic of Korea, Sri Lanka, China, the United States, and all EU Member States (except Austria)

9. 54 Contracting States to the Evidence Convention Including Australia, China, India, Republic of Korea, Singapore, Sri Lanka, the United States and almost all EU Member States Global coverage

10. Since 2000: 24 new Contracting States to the Service Convention (38% increase) 22 new Contracting States to the Evidence Convention (41 % increase) Two new Contracting States to each Convention in 2011: Morocco; Malta Constant growth Contracting States to the Service Convention Contracting States to the Evidence Convention

11. For more information… • Dedicated “Service Section” and “Evidence Section” of the HCCH website www.hcch.net

13. 1. Introduction to judicial co-operation 2. The Service and Evidence Conventions at a glance 3. Nature and purpose of the Service Convention 4. Nature and purpose of the Evidence Convention 5. Benefits for Asia Pacific

14. Simplify the methods of transmitting documents to be served abroad – expedite the transmission Establish a system which brings actual noticeof the document to the addressee in sufficient time to enable the addressee to respond Facilitate proof that service has been effected (by the issuance of a model certificate of service, which is part of a series of three model forms to be used under the Convention) Convention is about improving international cooperation; it does not impose specific means of service and thus does not impact on domestic law Purpose

15. 1. The main channel 2. The alternative channels 3. The derogatory channels Three types of channels

16. The main channel REQUESTING STATE DOCUMENTS TO BE SERVED FORWARDING AUTHORITY“Requesting State” In most States, this is the authority/judicial officer REQUESTED STATE CENTRAL AUTHORITY“Requested State” SERVICE OF PROCESS COMPETENT AUTHORITY(officer) to serve the documents

17. The main channel • The forwarding authority must use the model request form • Form must be completed inEnglish or French • May also be in a official language of the Requested State • Central Authority of Requested State may require that the documents to be served be translated FORWARDING AUTHORITY“Requesting State” In most States, this is the authority/judicial officer

18. The main channel • Each Contracting State is free to determine the organisation of its Central Authority • The Central Authority must serve the document (or arrange for it to be served by an appropriate agency): • by method provided under its internal law • by particular method of service • The Central Authority must issue a certificate of servicedirectly to the applicant using a model form FORWARDING AUTHORITY“Requesting State” In most States, this is the authority/judicial officer CENTRAL AUTHORITY“Requested State” COMPETENT AUTHORITY(officer) to serve the documents

19. The main channel Example Central Authorities

20. In principle, no payment or reimbursement for services rendered by the Central Authority in the Requested State Art. 12(1) However, costs may be recovered where a judicial officer is employed to serve the document (e.g. involvement of a process server/huissier), or where a particular method of service is required by the applicant Art. 12(2) The costs of using the main channel

21. Alternative channels Diplomatic and consular channels (Arts 8 & 9) Diplomatic channels in “exceptional circumstances” only Postal channel (Art 10(a)) States are free to post documents directly to the addressee, provided that their law allows for service by mail Direct communication (Art 10(b) and (c)) The Service Convention recognises the benefit of direct communication between judicial officers and other competent persons to transmit documents and effect service abroad However, the State of destination may object to the use of any one of these alternative channels

22. Derogatory channels The Service Convention allows Contracting States to agree on other channels of transmission For example, bilateral agreements providing for direct communication between courts The Service Convention does not affect internal laws of a Contracting State which may permit other (more favourable) methods of transmission of incoming documents for service The Service Convention gives priority to other treaties (such as existing bilateral or regional agreements)

23. 1. The main channel A simple and efficient system that is always available 2. The alternative channels Offering additional flexibility 3. The derogatory channels Allowing States to tailor the service of documents abroad to bilateral or regional needs Three types of channels

24. Protecting party interests Certain protections under the Convention for defendants before default judgments Article 15 – no default judgment may be entered before it is established that document was served under internal law of destination State, or delivered by method provided for by the Convention, and that such service or delivery was effected in sufficient time to enable defendant to defend BUT: State may declare that even in absence of service or delivery, judgment may be given after period of at least 6 months if document was transmitted under the Convention and service could not be effected

25. Protecting party interests Certain protections under the Convention for defendants after default judgments Article 16 – defendant may be relieved from time limits for appealing default judgment (no knowledge; prima facie defence; reasonable time after knowledge) BUT: State may declare that such application not possible after a period of at least 12 months

26. 1. Introduction to judicial co-operation 2. The Service and Evidence Conventions at a glance 3. Nature and purpose of the Service Convention 4. Nature and purpose of the Evidence Convention 5. Benefits for Asia Pacific

27. Improve the existing system of Letters of Request Enlarge the methods for obtaining evidence abroad Provide effective means to overcome differences between legal systems with respect to taking evidence A “bridge” between various legal traditions Purpose

28. 1. Letter of request (Chapter I of the Convention) 2. Use of diplomatic officers, consular agents, and commissioners (Chapter II of the Convention) 3. Derogatory channels Methods of taking evidence abroad

29. Chapter I LETTER OF REQUEST REQUESTING STATE JUDICIAL AUTHORITY“Requesting State” (In some States, Letters of Requests are forwarded through a separate authority, usually its own Central Authority) REQUESTED STATE CENTRAL AUTHORITY“Requested State” EXECUTION OF REQUEST COMPETENT AUTHORITYto execute the Letter of Request

30. Chapter I • The Letter of Request must contain the information prescribed by the Convention • The Letter of Request must be in the language of the authority requested (or accompanied by a translation into that language) • The Letter of Request may also be in English or French unless the requested State has objected to this by reservation JUDICIAL AUTHORITY“Requesting State” (In many States, Letters of Requests are forwarded through a separate authority, usually the Central Authority) An optional model form is available on the Evidence Section of the Hague Conference website

31. Chapter I • Adopts a “Central Authority” model similar to the Service Convention • As with the Service Convention, each Contracting State is free to determine: • the organisation of Central Authorities; and • the procedures for issuing and forwarding Letters of Request • In States that are party to the Service and Evidence Conventions, it is common for the same authority to be designated Central Authority for both Conventions JUDICIAL AUTHORITY“Requesting State” (In many States, Letters of Requests are forwarded through a separate authority, usually the Central Authority) CENTRAL AUTHORITY“Requested State”

32. Example Central Authorities Chapter I

33. Chapter I • Letter of Request is executed in accordance with internal law of requested State • However, a Letter of Request must be executed in accordance with any special method specified by Requesting State, unless: • “incompatible” with the internal law of the requested State, or • “impossible” to perform JUDICIAL AUTHORITY“Requesting State” (In many States, Letters of Requests are forwarded through a separate authority, usually the Central Authority) CENTRAL AUTHORITY“Requested State” COMPETENT AUTHORITYto execute the Letter of Request

34. Chapter I • Parties, representatives and/or judicial personnel of the requesting authority may be present when the Letter of Request is executed • Competent Authority is to use the same measures of compulsion as it would for obtaining evidence in local proceedings • A witness is entitled to privileges existing under the law of the Requesting State, the Requested State or a third State JUDICIAL AUTHORITY“Requesting State” (In many States, Letters of Requests are forwarded through a separate authority, usually the Central Authority) CENTRAL AUTHORITY“Requested State” COMPETENT AUTHORITYto execute the Letter of Request

35. Chapter II – Use of diplomats/consuls STATE OF ORIGIN JUDICIAL PROCEEDINGSinstituted in State of origin MAY TAKE EVIDENCE OF… DIPLOMAT/CONSULexercising functions in State of execution WITNESSlocated in the State of execution STATE OF EXECUTION WITH PERMISSION OF… • Permission may not be required where: • witness is national of State of origin, or • State of execution has formally declared that permission not required COMPETENT AUTHORITY

36. Chapter II – Use of commissioners STATE OF ORIGIN JUDICIAL PROCEEDINGSinstituted in State of origin MAY TAKE EVIDENCE OF… COMMISSIONERappointed to take evidence WITNESSlocated in the State of execution STATE OF EXECUTION WITH PERMISSION OF… Permission required in all cases, except where State of execution has formally declared otherwise COMPETENT AUTHORITY

37. How evidence is taken under Chapter II • All kinds of evidence may be taken which are not incompatible with the law of the State of execution or permission granted • The law of the State of execution may provide that only judges and notary may administer an oath. The administration of an oath by a consul would therefore be incompatible with that law MAY TAKE EVIDENCE OF… DIPLOMAT/CONSULORCOMMISSIONER WITNESSlocated in the State of execution • Evidence may be taken in a manner provided by the law of the State of origin provided that such manner is not forbidden by the law of the State of execution • The law of the State of execution may provide that it is forbidden to use unlawful tactics to induce testimony

38. How evidence is taken under Chapter II • Assistance from the State of execution may be requested to obtain evidence by compulsion in accordance with that State’s internal law, provided that that State has made a declaration to that effect • If no declaration is made, then the witness must be informed that s/he is not compelled to appear or to give evidence MAY TAKE EVIDENCE OF… DIPLOMAT/CONSULORCOMMISSIONER WITNESSlocated in the State of execution • In all cases, the witness must be informed that s/he may be legally represented • The witness is also entitled to privileges that exist under the law of the State of origin, the State of execution or a third State

39. Like the Service Convention, the Evidence Convention allows Contracting States to agree on other channels for the transmission of Letters of Request The Evidence Convention does not affect internal laws of a Contracting State which may permit: any act provided for under the Convention being performed on less restrictive conditions; or other methods of taking evidence Derogatory channels

40. 1. Introduction to judicial co-operation 2. The Service and Evidence Conventions at a glance 3. Nature and purpose of the Service Convention 4. Nature and purpose of the Evidence Convention 5. Benefits for Asia Pacific

41. Current situation in Asia Pacific There is no regional instrument in Asia Pacific relating to the service or taking of evidence abroad For some States in Asia Pacific, judicial co-operation is the subject of bilateral agreements or MOUs For others, little or no formal arrangements are in place for judicial co-operation in civil or commercial matters

42. So what will change? States that join either Convention become part of a global club with an established, well-functioning and efficient system of judicial co-operation No effect on national rules relating to the service of documents or taking of evidence Greater certainty to citizens engaged in cross-border litigation

43. The utility of the Service and Evidence Conventions were emphasised at the 3rd Asia Pacific conference: Greater and enhanced judicial co-operation in the Region has the potential to assist increasing numbers of individuals and legal persons engaging in transnational activities The Service an Evidence Conventions are essential tools for international judicial cooperation and cross-border litigation, in particular by providing effective and fast channels for service and taking of evidence abroad Conclusions & Recommendations Nos 11-12 Recognised benefits Slide 43

44. Added value The Permanent Bureau closely monitors the practical operation of the Service and Evidence Conventions Regular Special Commissions (“SC”) are convened by the Permanent Bureau to review the practical operation of both Conventions A State interested in joining the Service and Evidence Conventions may attend a Special Commission as an observer Subject to resources, technical assistance may be available to assist new States in implementing either Convention

45. How to join the Service Convention State deposits instrument of accession with Depositary (Art. 28(1)) Depositary notifies ratifying States of deposit (Art. 31(1)) State notifies Depository (preferably at time of the deposit of its instrument of accession) of each designated Central Authority, competent authority, and any other authority (Art. 21(1)) Depositary notifies ratifying States of designation(s) (Art. 31(1)) Any Contracting State may object to the accession within six months (Art. 28(2)) The Depositary notifies States of objections (if any) The Convention enters into force for the State on the first day of the month following the expiration of the six-month objection period provided that no State objects during that period (Art. 28(3)) The Depositary notifies States of accession (Art. 31) No State has ever objected to the accession of a new State to the Service Convention

46. How to join the Evidence Convention State deposits instrument of accession with Depositary (Art. 39(2)) Depositary notifies ratifying States of deposit (Art. 42(1)) State notifies Depository (preferably at time of the deposit of its instrument of accession) of each designated Central Authority and each authority designated to give authorisations under the Conventions (Arts 35(1) & (2)) Depositary notifies ratifying States of designation(s) (Art. 42(1)) The Convention enters into force for the State on the sixtieth day after deposit (Art. 39(3)) The Depositary notifies States of accession (Art. 42(1)) The Depositary forwards States a copy of each declaration of acceptance (Art. 39(4)) The Convention only enters into force as between the State and States that have declared their acceptance of its accession on the sixtieth day after the deposit of the declaration of acceptance (Arts 39(4) & (5)) See “Acceptances of accessions” on the Evidence Section of the Hague Conference website

47. Christophe Bernasconicb@hcch.nl www.hcch.net