The normal method of obtaining the assistance of a foreign court is through letters of request, also known as letters rogatory.1 The word ‘rogatory’ comes from the Latin rogare, to ask or request. English and American courts, like other common-law courts, will respond to such requests, even if there is no convention obliging them to do so; in other countries, however, such a convention may be a pre-condition. Many conventions exist; most are bilateral, but some are multilateral. By far the most important is the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters.2 Text available on www.hcch.net/index_en.php?act=conventions.text&cid=82/. It is in force in over forty States, including the United Kingdom, the United States, China, Russia, India and most European countries.
The Convention may be used to obtain both documentary and oral evidence. As its name indicates (and as is specified in Article 1), it applies only in ‘civil or commercial matters’, a phrase to which we shall return. It may be used only to obtain evidence to be put before a court in judicial proceedings:3 Article 1. it cannot be used to obtain evidence for an investigation; nor may it be used to obtain documents that will not themselves constitute evidence, even if they lead to other documents that will constitute evidence. The proceedings do not have to have commenced at the time of the request, but they must at least be contemplated.
The court needing the evidence sends a letter of request to the designated ‘Central Authority’ of the State in which the evidence is located. The latter will pass the letter to the appropriate authority (normally a court) for execution. A hearing is arranged at which the parties and their representatives may be present. In the case of oral evidence, the witness is examined and his testimony is put in writing and sent back to the court that issued the request.
The letter of request is executed according to the procedure of the executing State. However, the court executing it will follow a request from the original court 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’.4 Article 9. The court of origin may request that the evidence be videotaped. For a case in which an English court acceded to such a request from an American court, see J. Barber & Sons v. Lloyd’s Underwriters [1986] 3 WLR 515. Evidence given in a foreign court for use in an English court may be transmitted by television link: Garcin v. Amerindo Investment Advisors Ltd [1991] 1 WLR 1140. For the question whether a foreign claimant may give evidence before an English court by video link-up because he fears arrest and extradition to a third country if he comes to England, see Polanski v. Condé Nast Publications Ltd [2005] UKHL 10; [2005] 1 WLR 637; [2005] 1 All ER 945 (HL). Witnesses may be compelled to give evidence and persons in possession of documents may be compelled to produce them. The same measures of compulsion will be applied as in the case of proceedings under the local law.5 Article 10.
A person may refuse to give evidence if he is permitted to do so either under the law of the State of execution or under that of the State of origin, provided, in the latter case, that the privilege has been specified in the letter of request or has been confirmed (at the instance of the requested authority) by the requesting authority.6 Article 11.
The State addressed may refuse to execute a letter of request if it considers that its sovereignty or security would be prejudiced thereby.7 Article 12. Execution may not, however, 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.8 Ibid Article 12..
Under Article 23, a Contracting State may 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’. This provision is generally regarded as intended to exclude wide-ranging pre-trial disclosure requests from US courts. Declarations under it have been made by the great majority of Contracting States, including the United Kingdom and other Commonwealth countries, such as Australia and India, as well as many European, Asian and Latin-American countries.9 For full details, see www.hcch.net/index_en.php?act=conventions.statusprint&cid=82/. No declaration has been made by the United States.
In its declaration under Article 23, the United Kingdom stated that it understood the exclusion to cover any letter of request which requires a person:
(a) to state what documents relevant to the proceedings to which the letter of request relates are, or have been, in his possession, custody or power; or
(b) to produce any documents other than particular documents specified in the letter of request as being documents appearing to the requested court to be, or to be likely to be, in his possession, custody or power.
The terms of this declaration are reproduced in section 2(4) of the Evidence (Proceedings in Other Jurisdictions) Act 1975, discussed in § 2, below. It also constitutes the origin of the rule precluding ‘fishing expeditions’, a topic that will be explored in § 2.1, below.
In Europe, there is an EU Regulation which covers much the same ground as the Hague Convention.10 Regulation 1206/2001, OJ 2001 L 174, p. 1. Many provisions of the latter – for example, refusal to provide evidence11 Compare Article 11 of the Convention with Article 14(1) of the Regulation. – are reproduced in the Regulation. The Regulation replaces the Convention where both the State of origin and the State of execution are Members of the EU.12 Article 21(1) of the Regulation.
The relevant legislation in the United Kingdom is the Evidence (Proceedings in Other Jurisdictions) Act 1975. This Act is the most recent in a long line of statutes, stretching back to 1856. It was adopted to enable the United Kingdom to ratify the Hague Convention, but this was not its only purpose, since it can be used to assist foreign courts under bilateral conventions or even if there is no convention at all. Sections 1–4 apply to evidence in civil proceedings; section 5 (now repealed)13 See now the Crime (International Co-operation) Act 2003. applied to evidence in criminal proceedings; and section 6 applies to evidence for international proceedings. These latter two kinds of proceedings are outside the scope of the Hague Convention.
Sections 1–4 apply only to obtaining evidence for the purposes of civil proceedings14 Defined in section 9(1) as ‘proceedings in any civil or commercial matter’. which have been commenced or are contemplated.15 Section 1(b). The rules on privilege are the same as in the Convention.16 Compare Article 11 of the Convention with section 3 of the Act. As already mentioned, the terms of the UK declaration on pre-trial disclosure are reproduced in section 2(4) of the Act.
When a fisherman casts a line, he does not normally know what fish – if any – are lurking beneath the surface: he just hopes something is there. This analogy is used by English courts to refer to the tactic adopted by some lawyers in pre-trial disclosure proceedings: they do not know if the person against whom disclosure is sought has any relevant documents; so they ask for disclosure in wide and general terms in the hope that something useful will turn up. This is called a ‘fishing expedition’ or simply ‘fishing’. Section 2(4) of the Act was intended to outlaw it in the United Kingdom. Our next case shows how it is interpreted.
This case concerned letters of request from a California court which requested production of broad categories of documents in connection with asbestos litigation.
The meaning of the expression ‘particular documents specified in the order’ in subsection (4)(b) [of section 2 of the Evidence (Procedure in Other Jurisdictions) Act 1975] was considered by several of the noble and learned lords who took part in the [Westinghouse case, [1978] AC 547]. They were all emphatic that the expression should be given a strict construction. Having regard to the purpose of subsection (4) which, as I have already mentioned, is to preclude pretrial discovery, it is to be construed so as not to permit mere ‘fishing’ expeditions.
[After quoting Lord Wilberforce and Lord Diplock in the Westinghouse case, the latter using the phrase ‘individual documents separately described’, Lord Fraser continued:]
I do not think that by the words ‘separately described’ Lord Diplock intended to rule out a compendious description of several documents provided that the exact document in each case is clearly indicated. If I may borrow (and slightly amplify) the apt illustration given by Slade LJ in the present case, an order for production of the respondents’ ‘monthly bank statements for the year 1984 relating to his current account’ with a named bank would satisfy the requirements of the paragraph, provided that the evidence showed that regular monthly statements had been sent to the respondent during the year and were likely to be still in his possession. But a general request for ‘all the respondent’s bank statements for 1984’ would in my view refer to a class of documents and would not be admissible.
The second test of particular documents is that they must be actual documents, about which there is evidence which has satisfied the judge that they exist, or at least that they did exist, and that they are likely to be in the respondent’s possession. Actual documents are to be contrasted with conjectural documents, which may or may not exist.
…
In the Westinghouse case, at p. 611, Lord Wilberforce was willing to extend ‘particular documents specified’ to include replies to letters ‘where replies must have been sent.’ I would go that far with him, but I would not extend the expression to documents which may or may not exist.
Since both the Convention and the Act refer to ‘civil or commercial matters’, it is important to know what this means.
This case concerned a request by a court in Norway for evidence from two individuals in England for use in a tax case. After receiving the request, the Master made an order under section 2 of the 1975 Act. The two potential witnesses appealed on the ground (among others) that the Norwegian case did not concern ‘civil proceedings’, as required by section 1 of the Act, and the Court of Appeal held (in ‘Norway 1’)17 [1989] 1 All ER 661 (CA). that the test was whether the proceedings were civil under the law of the requesting State. It decided that they were. The Norwegian court then made a second request and an order was again made under the Act. The potential witnesses again appealed. This time, the Court of Appeal (differently constituted) held (in ‘Norway 2’)18 [1989] 1 All ER 701 (CA). that an international definition (based on the civil law) should be given to the concept. It decided that the proceedings were not civil or commercial under this test. An appeal was taken to the House of Lords.
The argument put before the House of Lords in favour of the ‘international’ definition was that the main purpose of the 1975 Act was to give effect to the Convention; the words ‘civil or commercial matters’ in section 9(1) of the Act reflect the same words in Article 1 of the Convention and should therefore be given the same meaning. This is the meaning understood in the civil law, not that understood in English law. (Under English law, ‘civil matters’ includes commercial matters and covers all matters which are not criminal.)
Lord Goff rejected this view. He said that giving effect to the Convention was not the only purpose of the Act. It was also passed to include in a single statute all the powers of UK courts to assist foreign courts, powers previously contained in a number of statutes. These powers arose under other conventions, many of which were with other common-law countries in which the phrase ‘civil or commercial’ had the same meaning as in English law. The powers could also be exercised in the absence of any convention. The 1975 Act was in fact the latest in a long line of Acts which used the phrase ‘civil or commercial’, the first being the Foreign Tribunals Evidence Act 1856.
Lord Goff then considered the matter from the point of view of comparative law and decided that there were significant differences in the meaning of ‘civil or commercial’ even among the civil-law systems. He concluded that the words ‘civil or commercial’ in the British Act could not be construed with reference to any internationally acceptable meaning. He therefore held that a request should be regarded as covered by the 1975 Act if the proceedings concerned a civil or commercial matter under the law of both the requesting country (Norway) and the requested country (England).
He decided, after considering the expert evidence, that the proceedings before the court did concern a civil matter under Norwegian law. He then turned to English law. He said that he had no doubt that, under English law, the words in section 9(1) should be given their ordinary meaning, so as to cover all proceedings other than criminal proceedings. The result was that the English court could assist the Norwegian court.19 Lord Goff considered whether the rule that English courts will not enforce foreign tax obligations was relevant to the proceedings. He decided that it was not. The English court was not being asked to enforce Norwegian tax law, but only to assist the Norwegian court in its task of enforcing it.
Courts will not order the production of evidence for use in foreign proceedings if they think those proceedings constitute an infringement of their national sovereignty. Thus, for example, if a US court applies US antitrust law to acts of a British company in the United Kingdom, UK courts will consider that the US proceedings constitute an infringement of UK sovereignty and will refuse to assist a party to the US proceedings to obtain evidence. This was originally decided in the Westinghouse case,20 Westinghouse Electric Corporation Uranium Contract Litigation (Rio Tinto Zinc v. Westinghouse) [1978] AC 547; [1978] 2 WLR 81; [1978] 1 All ER 434 (HL). See also Westinghouse Electric Corporation v. Duquesne Light Co. (1977) 16 OR (2d) 273; 78 DLR (3d) 3 (Ontario High Court). but has now been confirmed by section 4 of the Protection of Trading Interests Act 1980 (set out in Panel 20.1).
A court in the United Kingdom shall not make an order under section 2 of the Evidence (Proceedings in Other Jurisdictions) Act 1975 for giving effect to a request issued by or on behalf of a court or tribunal of an overseas country if it is shown that the request infringes the jurisdiction of the United Kingdom or is otherwise prejudicial to the sovereignty of the United Kingdom; and a certificate signed by or on behalf of the Secretary of State to the effect that it infringes that jurisdiction or is so prejudicial shall be conclusive evidence of that fact.
The United States is also a party to the Hague Convention. However, its legislation (28 USC § 1782(a), set out in Panel 20.2) is even wider than that of the United Kingdom. Its most notable feature is that the request does not have to come from the foreign court: a party to foreign proceedings may go directly to a federal district court with a request for assistance.
The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation. The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. By virtue of his appointment, the person appointed has power to administer any necessary oath and take the testimony or statement. The order may prescribe the practice and procedure, which may be in whole or part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure. A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.
The provision has the following additional features:
The first four of these points also apply to the UK Act. The last one does not.
In Intel Corporation v. Advanced Micro Devices,21 542 US 241; 124 S Ct 2466; 159 L Ed 2d 355 (US Supreme Court, 2004). the US Supreme Court held that the provision could be invoked by a complainant (not, strictly speaking, a party) to competition proceedings before the EU Commission (not, strictly speaking, a court). The Supreme Court also held that assistance was not ruled out just because the document would not be discoverable under the foreign law.
We have seen that US law permits a federal district court to grant judicial assistance, even if the request comes from a party. Should an English court object if a party to proceedings before it takes the initiative in this way? The question arose in our next case.
In this case, defendants before the English courts (referred to in the judgment as the ‘re-re-insurers’) needed documents in the hands of third parties in the United States to establish their defence. The claimant, South Carolina Insurance, used its influence with the third parties to induce them not to disclose the documents. The defendants then made an application to a federal district court in the United States for an order to force them to disclose the documents. South Carolina Insurance raised an objection before the English court: it maintained that a party should not be allowed to do this without the approval of the English court. Hobhouse J agreed: he granted an injunction prohibiting the defendants from taking any further steps in the US application. This injunction was upheld by the Court of Appeal. The defendants appealed to the House of Lords.
The first matter to which attention needs to be drawn is the existence of an essential difference between the civil procedures of the High Court in England on the one hand, and of courts of the United States on the other, with regard to what may be compendiously described as pre-trial discovery. Under the civil procedure of the High Court in England, pre-trial discovery may take two forms. The first form, which is far and away the more common, is by way of disclosure and inspection of relevant documents under RSC, Order 24. The second form, which is comparatively rare, is by way of the asking and answering on oath of interrogatories under RSC, Order 26. Such discovery is, however subject to two important limitations, one relating to its scope and the other to the stage of an action at which it normally takes place. So far as the scope of discovery is concerned, it is limited to the disclosure and inspection of documents in the possession or power of the parties to the action, or to the asking and answering on oath of interrogatories as between such parties. So far as the stage of an action at which discovery normally takes place is concerned, it is the general rule that the two forms of discovery to which I have referred do not take place until the formal pleadings by both sides have been completed and the issues in disputes thereby fully and clearly defined. In this connection, however, it is right to say that the court has power to order either form of discovery at any stage of an action, including a stage earlier than the completion of pleadings; but such power is rarely exercised and then only on special grounds, for instance when discovery is needed in order that justice may be done in interlocutory proceedings.
Because of the first limitation to which I have referred, there is no way in which a party to an action in the High Court in England can compel pre-trial discovery as against a person who is not a party to such action, either by way of the disclosure and inspection of documents in his possession or power, or by way of giving oral or written testimony.1 Editor’s note: as we saw in Chapter 19, above, there are actually some exceptions. I would, however, stress the word ‘compel’ which I have used in the preceding sentence, for there is nothing to prevent a person who is not a party to an action from voluntarily giving to one or other or both parties to it either disclosure and inspection of documents in his possession or oral or written testimony.
The procedure of the High Court in England, while not enabling parties to an action to compel pre-trial discovery as against a person who is not a party to such action, nevertheless affords ample means by which such a person, provided that he is within the jurisdiction of the court, can be compelled either to give oral testimony, or to produce documents in his possession or power, at the trial of the action itself. Under RSC, Order 38, Part II, such a person may be compelled to give oral testimony at the trial by the issue and service on him of a subpoena ad testificandum, or to produce documents in his power or possession (so long as they are adequately described and defined) by the issue and service on him of a subpoena duces tecum. The issue of such subpoenas is in the first instance a ministerial rather than a judicial act, and a party may therefore issue subpoenas of either kind as he thinks fit; the court, however, has power to set aside any subpoena on proper grounds, for instance, irregularity of form, irrelevance, oppressiveness or abuse of the process.
The procedure of the High Court in England includes a further power of the court, conferred on it by RSC, Order 38, rule 13, to order any person to attend any proceedings in a cause or matter and produce any document to be specified or described in the order, the production of which appears to the court to be necessary for the purpose of that proceeding. It has, however, long been established that this rule is not intended to be used, and cannot properly be used, to enable a party to an action to obtain pre-trial disclosure and inspection of documents in the possession or power of a person who is not a party to such action. It is a rule of limited application, involving the production of a document or documents to the court itself rather than to either of the parties to an action.
My Lords, the civil procedure of courts in the United States differs essentially from that in the High Court in England in that under it parties to an action can compel, as against persons who are not parties to it, a full measure of pre-trial discovery, including both the disclosure and production for inspection and copying of documents, and also the giving of oral or written testimony. This power of compulsion can be, and regularly is, used at an early stage of an action.
The second matter to which attention needs to be drawn is that 28 United States Code, section 1782, as appears from its terms which I set out earlier, expressly provides that an order made under it may prescribe the practice and procedure, which may be in whole or in part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing; and that, to the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of [Civil] Procedure.
[Lord Brandon then considered US case-law on the question whether material could be obtained under 28 USC § 1782 if it was not discoverable under the foreign law. (This was a matter of controversy in the United States at the time, though, as we have seen, it has now been settled that it can.)2 Intel Corporation v. Advanced Micro Devices, 542 US 241; 124 S Ct 2466; 159 L Ed 2d 355 (US Supreme Court, 2004), discussed in § 3, above. He concluded that this was not a question which the House of Lords could decide for itself.
He next considered the power of the courts to grant injunctions. He said this could be done only if a party can show (1) that the other party has invaded, or is threatening to invade, a legal or equitable right of his; or (2) that he is behaving, or threatening to behave, in a manner which is unconscionable. He considered the first possibility and concluded that it did not apply. He continued:]
Has South Carolina shown that the re-re-insurers, by beginning and intending to prosecute their application to the United States district court, have acted in a manner which is unconscionable? It is difficult, and would probably be unwise, to seek to define the expression ‘unconscionable conduct’ in anything like an exhaustive manner. In my opinion, however, it includes, at any rate, conduct which is oppressive or vexatious or which interferes with the due process of the court.
Although neither Hobhouse J at first instance, nor Griffiths LJ in the Court of Appeal, stated in terms that they thought it right to grant injunctions on the ground that the conduct of the re-re-insurers in making their application to the United States district court was unconscionable, it seems to me to be implicit in their reasons that they regarded it as being so. Hobhouse J based his decision expressly on the need for the court to retain control of its own process, with the necessary implication that the re-re-insurers’ conduct was an interference with such control and therefore an interference with the due process of the court. Griffiths LJ based his decision on three grounds: first (like Hobhouse J), that the court must retain control of its own process; secondly, that the civil procedure of United States courts is significantly different from that of English courts, and the parties, by submitting to the jurisdiction of an English court, must be taken to have accepted its procedure; and, thirdly, that unrestricted access to foreign procedural remedies was liable to produce hardship in the form of increased costs and inconvenience. I shall consider each of these grounds in turn.
I consider, first, the ground that the re-re-insurers’ conduct was an interference with the court’s control of its own process. It is not clear to me why this should be so. Under the civil procedure of the High Court the court does not, in general, exercise any control over the manner in which a party obtains the evidence which he needs to support his case. The court may give him help, certainly … Subject, however, to the help of the court in these various ways, the basic principle underlying the preparation and presentation of a party’s case in the High Court in England is that it is for that party to obtain and present the evidence which he needs by his own means, provided always that such means are lawful in the country in which they are used. It was not in dispute that, if [the third parties in the US who held the evidence], uninfluenced by the control exercised over them by South Carolina on the advice of the latter’s English solicitors, had freely and voluntarily allowed the re-re-insurers to inspect, and where necessary to copy, all the documents referred to in the latter’s application, it could not possibly have been said that there had been any interference with the English court’s control of its own process. That being so, I cannot see why, since the federal law of the United States authorises an application of the kind made by the re-re-insurers in this case, the making of such application, which may or may not succeed in whole or in part, should be regarded as being such an interference either. I cannot, therefore, agree with the first ground of decision relied on by the Court of Appeal.
I consider, secondly, the ground that the procedure of United States courts is significantly different from that of English courts, and the parties, by submitting to the jurisdiction of an English court, must be taken to have accepted its procedure.
… I cannot see that the re-re-insurers, by seeking to exercise a right potentially available to them under the federal law of the United States, have in any way departed from, or interfered with, the procedure of the English court. All they have done is what any party preparing his case in the High Court here is entitled to do, namely to try to obtain in a foreign country, by means lawful in that country, documentary evidence which they believe that they need in order to prepare and present their case. It was said that the re-re-insurers could have applied to the High Court … for letters of request to issue to the proper judicial authorities in the United States. But 28 United States Code, section 1782, allows an application to be made either indirectly by the foreign court concerned or directly by an interested party, and I can see no good reason why the re-re-insurers should not have chosen whichever of these two alternatives they preferred. It is, I think, of the utmost importance to appreciate that the reason why English procedure does not permit pre-trial discovery of documents against persons who are not parties to an action is for the protection of those third parties, and not for the protection of either of the persons who are parties to the action. I cannot, therefore, agree with the second ground of decision relied on by the Court of Appeal.
[Lord Brandon then considered whether the injunction was justified on the ground that the re-re-insurers’ action resulted in increased costs and inconvenience. He held that it did not. He concluded:]
My Lords, the result of the views which I have expressed is that there was, in my opinion, no such interference with the procedure of the English High Court by the re-re-insurers as would amount to unconscionable conduct on their part, and so justify, in accordance with the basic principles which I stated earlier, the exercise of the court’s power to grant injunctions against them. It follows that I would allow the appeal and set aside the orders of Hobhouse J … and of the Court of Appeal …
1 Editor’s note: as we saw in Chapter 19, above, there are actually some exceptions.
2 Intel Corporation v. Advanced Micro Devices, 542 US 241; 124 S Ct 2466; 159 L Ed 2d 355 (US Supreme Court, 2004), discussed in § 3, above.
Result: the injunctions were set aside.
The Hague Convention provides a mechanism to make it easier to obtain evidence abroad. In our next case, however, it was argued that it could also serve the opposite purpose: it could constitute a means of preventing a court from using its own procedures to obtain the production of documents by a party to proceedings before it. If this had been correct, the common-law countries would have very much regretted having signed it.
The petitioner in this case, Société Nationale Industrielle Aérospatiale (SNIAS), was a French state-owned aircraft-manufacturer. It did extensive business in the United States and was clearly subject to the jurisdiction of the US courts. One of its aircraft crashed in Iowa, and the victims sued it in a federal court in Iowa, claiming that the aircraft was defective. SNIAS did not challenge the jurisdiction of the court; however, although it complied with initial requests for pre-trial discovery, it refused to comply with further requests. It claimed that the Hague Convention constituted the exclusive and mandatory means for obtaining documents and information located in the territory of a foreign sovereign. The French Government supported this in an amicus brief. SNIAS also pointed out that, under the French blocking statute,22 See Chapter 19, § 1.1, above. it was a criminal offence to disclose information for use in foreign proceedings except under the terms of an international agreement.
SNIAS therefore filed a motion for a protective order precluding discovery except under the Convention. This was refused by the magistrate. An appeal, by way of mandamus, was rejected by the Court of Appeals for the Eighth Circuit. The case then went on certiorari to the US Supreme Court.
In arguing their entitlement to a protective order, petitioners correctly assert that both the discovery rules set forth in the Federal Rules of Civil Procedure and the Hague Convention are the law of the United States … 1 Editor’s note: in the United States, self-executing treaties are directly applicable federal law. This observation, however, does not dispose of the question before us; we must analyze the interaction between these two bodies of federal law. Initially, we note that at least four different interpretations of the relationship between the federal discovery rules and the Hague Convention are possible. Two of these interpretations assume that the Hague Convention by its terms dictates the extent to which it supplants normal discovery rules. First, the Hague Convention might be read as requiring its use to the exclusion of any other discovery procedures whenever evidence located abroad is sought for use in an American court. Second, the Hague Convention might be interpreted to require first, but not exclusive, use of its procedures. Two other interpretations assume that international comity, rather than the obligations created by the treaty, should guide judicial resort to the Hague Convention. Third, then, the Convention might be viewed as establishing a supplemental set of discovery procedures, strictly optional under treaty law, to which concerns of comity nevertheless require first resort by American courts in all cases. Fourth, the treaty may be viewed as an undertaking among sovereigns to facilitate discovery to which an American court should resort when it deems that course of action appropriate, after considering the situations of the parties before it as well as the interests of the concerned foreign state.
In interpreting an international treaty, we are mindful that it is ‘in the nature of a contract between nations’ to which ‘[g]eneral rules of construction apply.’ We therefore begin ‘with the text of the treaty and the context in which the written words are used.’ The treaty’s history, ‘the negotiations, and the practical construction adopted by the parties’ may also be relevant …
We reject the first two of the possible interpretations as inconsistent with the language and negotiating history of the Hague Convention. The Preamble of the Convention specifies its purpose ‘to facilitate the transmission and execution of Letters of Request’ and to ‘improve mutual judicial co-operation in civil or commercial matters.’ The Preamble does not speak in mandatory terms which would purport to describe the procedures for all permissible transnational discovery and exclude all other existing practices. The text of the Evidence Convention itself does not modify the law of any contracting state, require any contracting State to use the Convention procedures, either in requesting evidence or in responding to such requests, or compel any contracting state to change its own evidence-gathering procedures.
The Convention contains three chapters. Chapter I, entitled ‘Letters of Requests’, and Chapter II, entitled ‘Taking of Evidence by Diplomatic Officers, Consular Agents and Commissioners’, both use permissive rather than mandatory language. Thus, Article 1 provides that a judicial authority in one contracting state ‘may’ forward a letter of request to the competent authority in another contracting state for the purpose of obtaining evidence. Similarly, Articles 15, 16, and 17 provide that diplomatic officers, consular agents, and commissioners ‘may … without compulsion’, take evidence under certain conditions. The absence of any command that a contracting state must use Convention procedures when they are not needed is conspicuous.
Two of the Articles in Chapter III, entitled ‘General Clauses’, buttress our conclusion that the Convention was intended as a permissive supplement, not a pre-emptive replacement, for other means of obtaining evidence located abroad. Article 23 expressly authorizes a contracting state to declare that it will not execute any letter of request in aid of pre-trial discovery of documents in a common law country. Surely, if the Convention had been intended to replace completely the broad discovery powers that the common law courts in the United States previously exercised over foreign litigants subject to their jurisdiction, it would have been most anomalous for the common law contracting parties to agree to Article 23, which enables a contracting party to revoke its consent to the treaty’s procedures for pre-trial discovery. In the absence of explicit textual support, we are unable to accept the hypothesis that the common law contracting States abjured recourse to all preexisting discovery procedures at the same time that they accepted the possibility that a contracting party could unilaterally abrogate even the Convention’s procedures. Moreover, Article 27 plainly states that the Convention does not prevent a contracting State from using more liberal methods of rendering evidence than those authorized by the Convention. Thus, the text of the Evidence Convention, as well as the history of its proposal and ratification by the United States, unambiguously supports the conclusion that it was intended to establish optional procedures that would facilitate the taking of evidence abroad …
An interpretation of the Hague Convention as the exclusive means for obtaining evidence located abroad would effectively subject every American court hearing a case involving a national of a contracting State to the internal laws of that State. Interrogatories and document requests are staples of international commercial litigation, no less than of other suits, yet a rule of exclusivity would subordinate the court’s supervision of even the most routine of these pre-trial proceedings to the actions or, equally, to the inactions of foreign judicial authorities. As the Court of Appeals for the Fifth Circuit observed in In re Anschuetz & Co., GmbH, 754 F 2d 602, 612 (1985); cert. pending, No. 85–98:
‘It seems patently obvious that if the Convention were interpreted as pre-empting interrogatories and document requests, the Convention would really be much more than an agreement on taking evidence abroad. Instead, the Convention would amount to a major regulation of the overall conduct of litigation between nationals of different signatory states, raising a significant possibility of very serious interference with the jurisdiction of United States courts.
…
‘While it is conceivable that the United States could enter into a treaty giving other signatories control over litigation instituted and pursued in American courts, a treaty intended to bring about such a curtailment of the rights given to all litigants by the federal rules would surely state its intention clearly and precisely identify crucial terms.’
The Hague Convention, however, contains no such plain statement of a pre-emptive intent. We conclude accordingly that the Hague Convention did not deprive the District Court of the jurisdiction it otherwise possessed to order a foreign national party before it to produce evidence physically located within a signatory nation.2 Footnote in original text: The opposite conclusion of exclusivity would create three unacceptable asymmetries. First, within any lawsuit between a national of the United States and a national of another contracting party, the foreign party could obtain discovery under the Federal Rules of Civil Procedure, while the domestic party would be required to resort first to the procedures of the Hague Convention … Second, a rule of exclusivity would enable a company which is a citizen of another contracting state to compete with a domestic company on uneven terms, since the foreign company would be subject to less extensive discovery procedures in the event that both companies were sued in an American court. Petitioners made a voluntary decision to market their products in the United States. They are entitled to compete on equal terms with other companies operating in this market. But since the District Court unquestionably has personal jurisdiction over petitioners, they are subject to the same legal constraints, including the burdens associated with American judicial procedures, as their American competitors. A general rule according foreign nationals a preferred position in pre-trial proceedings in our courts would conflict with the principle of equal opportunity that governs the market they elected to enter. Third, since a rule of first use of the Hague Convention would apply to cases in which a foreign party is a national of a contracting state, but not to cases in which a foreign party is a national of any other foreign state, the rule would confer an unwarranted advantage on some domestic litigants over others similarly situated.
While the Hague Convention does not divest the District Court of jurisdiction to order discovery under the Federal Rules of Civil Procedure, the optional character of the Convention procedures sheds light on one aspect of the Court of Appeals’ opinion that we consider erroneous. That court concluded that the Convention simply ‘does not apply’ to discovery sought from a foreign litigant that is subject to the jurisdiction of an American court … Plaintiffs argue that this conclusion is supported by two considerations. First, the Federal Rules of Civil Procedure provide ample means for obtaining discovery from parties who are subject to the court’s jurisdiction, while before the Convention was ratified it was often extremely difficult, if not impossible, to obtain evidence from nonparty witnesses abroad. Plaintiffs contend that it is appropriate to construe the Convention as applying only in the area in which improvement was badly needed. Second, when a litigant is subject to the jurisdiction of the District Court, arguably the evidence it is required to produce is not ‘abroad’ within the meaning of the Convention, even though it is in fact located in a foreign country at the time of the discovery request and even though it will have to be gathered or otherwise prepared abroad …
Nevertheless, the text of the Convention draws no distinction between evidence obtained from third parties and that obtained from the litigants themselves; nor does it purport to draw any sharp line between evidence that is ‘abroad’ and evidence that is within the control of a party subject to the jurisdiction of the requesting court. Thus, it appears clear to us that the optional Convention procedures are available whenever they will facilitate the gathering of evidence by the means authorized in the Convention. Although these procedures are not mandatory, the Hague Convention does ‘apply’ to the production of evidence in a litigant’s possession in the sense that it is one method of seeking evidence that a court may elect to employ …
Petitioners contend that even if the Hague Convention’s procedures are not mandatory, this Court should adopt a rule requiring that American litigants first resort to those procedures before initiating any discovery pursuant to the normal methods of the Federal Rules of Civil Procedure … The Court of Appeals rejected this argument because it was convinced that an American court’s order ultimately requiring discovery that a foreign court had refused under Convention procedures would constitute ‘the greatest insult’ to the sovereignty of that tribunal … We disagree with the Court of Appeals’ view. It is well known that the scope of American discovery is often significantly broader than is permitted in other jurisdictions, and we are satisfied that foreign tribunals will recognize that the final decision on the evidence to be used in litigation conducted in American courts must be made by those courts. We therefore do not believe that an American court should refuse to make use of Convention procedures because of a concern that it may ultimately find it necessary to order the production of evidence that a foreign tribunal permitted a party to withhold.
Nevertheless, we cannot accept petitioners’ invitation to announce a new rule of law that would require first resort to Convention procedures whenever discovery is sought from a foreign litigant. Assuming, without deciding, that we have the lawmaking power to do so, we are convinced that such a general rule would be unwise. In many situations the Letter of Request procedure authorized by the Convention would be unduly time consuming and expensive, as well as less certain to produce needed evidence than direct use of the Federal Rules. A rule of first resort in all cases would therefore be inconsistent with the overriding interest in the ‘just, speedy, and inexpensive determination’ of litigation in our courts …
…
American courts, in supervising pre-trial proceedings, should exercise special vigilance to protect foreign litigants from the danger that unnecessary, or unduly burdensome, discovery may place them in a disadvantageous position. Judicial supervision of discovery should always seek to minimize its costs and inconvenience and to prevent improper uses of discovery requests. When it is necessary to seek evidence abroad, however, the district court must supervise pre-trial proceedings particularly closely to prevent discovery abuses. For example, the additional cost of transportation of documents or witnesses to or from foreign locations may increase the danger that discovery may be sought for the improper purpose of motivating settlement, rather than finding relevant and probative evidence. Objections to ‘abusive’ discovery that foreign litigants advance should therefore receive the most careful consideration. In addition, we have long recognized the demands of comity in suits involving foreign states, either as parties or as sovereigns with a coordinate interest in the litigation … American courts should therefore take care to demonstrate due respect for any special problem confronted by the foreign litigant on account of its nationality or the location of its operations, and for any sovereign interest expressed by a foreign state. We do not articulate specific rules to guide this delicate task of adjudication.
In the case before us, the Magistrate and the Court of Appeals correctly refused to grant the broad protective order that petitioners requested. The Court of Appeals erred, however, in stating that the Evidence Convention does not apply to the pending discovery demands. This holding may be read as indicating that the Convention procedures are not even an option that is open to the District Court.
It must be recalled, however, that the Convention’s specification of duties in executing states creates corresponding rights in requesting states; holding that the Convention does not apply in this situation would deprive domestic litigants of access to evidence through treaty procedures to which the contracting states have assented. Moreover, such a rule would deny the foreign litigant a full and fair opportunity to demonstrate appropriate reasons for employing Convention procedures in the first instance, for some aspects of the discovery process.
Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
1 Editor’s note: in the United States, self-executing treaties are directly applicable federal law.
2 Footnote in original text: The opposite conclusion of exclusivity would create three unacceptable asymmetries. First, within any lawsuit between a national of the United States and a national of another contracting party, the foreign party could obtain discovery under the Federal Rules of Civil Procedure, while the domestic party would be required to resort first to the procedures of the Hague Convention … Second, a rule of exclusivity would enable a company which is a citizen of another contracting state to compete with a domestic company on uneven terms, since the foreign company would be subject to less extensive discovery procedures in the event that both companies were sued in an American court. Petitioners made a voluntary decision to market their products in the United States. They are entitled to compete on equal terms with other companies operating in this market. But since the District Court unquestionably has personal jurisdiction over petitioners, they are subject to the same legal constraints, including the burdens associated with American judicial procedures, as their American competitors. A general rule according foreign nationals a preferred position in pre-trial proceedings in our courts would conflict with the principle of equal opportunity that governs the market they elected to enter. Third, since a rule of first use of the Hague Convention would apply to cases in which a foreign party is a national of a contracting state, but not to cases in which a foreign party is a national of any other foreign state, the rule would confer an unwarranted advantage on some domestic litigants over others similarly situated.
Attitudes towards the questions considered in this chapter will vary depending on the system of procedural law with which one is familiar. In many civil-law countries, it is virtually impossible to obtain documents or other evidence before trial. Lawyers from such countries may believe that a party should be able to prepare his case without expecting assistance from his opponent or from third parties. Such lawyers may feel hostile to the principle of pre-trial disclosure. They might concede that common-law countries, especially the United States, are entitled to apply their own system to their own people, but they might feel that, where the evidence is located in another country, the law of that country should decide whether it should be produced. If this were accepted, however, it would completely undermine the common-law system of procedure. It would mean that an American party would have to produce documents according to the American system, but his foreign opponent would not. This would be like a football match in which different rules applied to the two sides. It is hardly surprising that US courts have rejected it.
England takes a middle way. Pre-trial disclosure by a party is governed by the law of the forum; disclosure by a third party, on the other hand, is regarded as predominantly a matter for the law of the country in which that party resides. If that law provides a mechanism for compelling production of the evidence, a party may take advantage of it; if not, he cannot. In the latter case, the Hague Convention – with all its limitations – may constitute the sole means of obtaining the evidence.
1 The word ‘rogatory’ comes from the Latin rogare, to ask or request.
2 Text available on www.hcch.net/index_en.php?act=conventions.text&cid=82/.
3 Article 1.
4 Article 9. The court of origin may request that the evidence be videotaped. For a case in which an English court acceded to such a request from an American court, see J. Barber & Sons v. Lloyd’s Underwriters [1986] 3 WLR 515. Evidence given in a foreign court for use in an English court may be transmitted by television link: Garcin v. Amerindo Investment Advisors Ltd [1991] 1 WLR 1140. For the question whether a foreign claimant may give evidence before an English court by video link-up because he fears arrest and extradition to a third country if he comes to England, see Polanski v. Condé Nast Publications Ltd [2005] UKHL 10; [2005] 1 WLR 637; [2005] 1 All ER 945 (HL).
5 Article 10.
6 Article 11.
7 Article 12.
8 Ibid Article 12..
9 For full details, see www.hcch.net/index_en.php?act=conventions.statusprint&cid=82/.
10 Regulation 1206/2001, OJ 2001 L 174, p. 1.
11 Compare Article 11 of the Convention with Article 14(1) of the Regulation.
12 Article 21(1) of the Regulation.
13 See now the Crime (International Co-operation) Act 2003.
14 Defined in section 9(1) as ‘proceedings in any civil or commercial matter’.
15 Section 1(b).
16 Compare Article 11 of the Convention with section 3 of the Act.
17 [1989] 1 All ER 661 (CA).
18 [1989] 1 All ER 701 (CA).
19 Lord Goff considered whether the rule that English courts will not enforce foreign tax obligations was relevant to the proceedings. He decided that it was not. The English court was not being asked to enforce Norwegian tax law, but only to assist the Norwegian court in its task of enforcing it.
20 Westinghouse Electric Corporation Uranium Contract Litigation (Rio Tinto Zinc v. Westinghouse) [1978] AC 547; [1978] 2 WLR 81; [1978] 1 All ER 434 (HL). See also Westinghouse Electric Corporation v. Duquesne Light Co. (1977) 16 OR (2d) 273; 78 DLR (3d) 3 (Ontario High Court).
21 542 US 241; 124 S Ct 2466; 159 L Ed 2d 355 (US Supreme Court, 2004).
22 See Chapter 19, § 1.1, above.