Today’s Event on the Hague Service and Evidence Conventions

Readers, today is the day for Service of Process and Taking Evidence Abroad: The Impact of “Electronic Means” on the Operation of the Hague Conventions, which is being held at Georgetown. I am a participant on the first of several panels and thus will not be reporting live on the first panel discussion for obvious reasons. I may, though, comment on the opening remarks by the dean and by Christophe Bernasconi, which will take place before the first panel, beginning probably at about 9 a.m. EST (UTC -5).

But once my panel is done, I will try to post periodic updates via this liveblog, so please check back in throughout the day. I expect we will have some great discussions to report.

Ted Folkman November 2, 20158:17 am

Just arrived at Georgetown’s beautiful Gewirtz center. We are expecting from 75 to 100 people, which is probably an appreciable fraction of the people in the world who are into this stuff.

Ted Folkman November 2, 201511:17 am

Panel one is done! My conclusion: I am the only American lawyer in the world who does not believe the Convention authorizes or permits service of process by email in cases when it applies.

Ted Folkman November 2, 201511:19 am

We are about to start Panel 2. I think this is likely to be the most interest panel, because it includes representatives of the US and UK central authorities as well as two real experts, Glenn Hendrix and Louise Ellen Teitz.

Ted Folkman November 2, 201511:30 am

Louise had an historical note on the Schlunk case: four states, including Germany and the UK, sent diplomatic notes protesting the decision.

Ted Folkman November 2, 201511:34 am

She points out that the original US concern was to avoid the troubles of notification au parquet. Now the problem is the opposite: can we get enforcement of a US judgment abroad if we serve process by alternate means?

Ted Folkman November 2, 201511:36 am

On the evidence convention, Louise expresses disappointment in the failure of the convention to blend civil and common law. She also expresses disappointment with Aerospatiale. If the test is one of comity, well, “you don’t need a convention for that!”

Ted Folkman November 2, 201511:37 am

The Evidence Convention, she says, “takes longer, costs more, and is not effective.” At least for Americans.

Ted Folkman November 2, 201511:37 am

But in light of the trend toward narrower personal jursidictional doctrines, she expects to see more US parties turning to the Convention out of necessity.

Ted Folkman November 2, 201511:40 am

She wants US courts to focus on construing conventions as international conventions, which so far we haven’t been great at.

Ted Folkman November 2, 201511:43 am

Louise quotes Lloyd Weinreb, who called Aerospatiale a xenophobic and parochial decision.

Ted Folkman November 2, 201511:46 am

Glenn points out that the dicta about the time and burden involved in using the Convention are not really based in data. Are we all just repeating cliches or speculation?

Ted Folkman November 2, 201511:49 am

Now we are turning to Barbara Fontaine, senior master of the High Court in London. She starts with the Service Convention.

The UK treats the Convention as non-exclusive. A court will grant permission to serve process abroad if the method chosen is valid in the destination country even if not permitted under the Convention. But in practice the courts require first resort to the Convention.

Ted Folkman November 2, 201511:51 am

So in principle the UK would allow service by email if permitted by the law of the destination state.

Ted Folkman November 2, 201511:52 am

The real problems with the Service Convention, in her view, are lengthy delays in some central authorities. She thinks time limits, such as we see in the EU regulations, would be helpful.

Ted Folkman November 2, 201511:57 am

On the Evidence Convention, she notes there are far fewer problems between the US and the UK than there were in the past. Over 70% of requests over the past decade come from the US and Turkey. (Turkey?) From the US, the requests tend to be complex commercial litigation cases. The lawyers in the US work with lawyers in the UK to arrange for the examination on their own. The parties can choose their own examiner, as long as the examiner is suitable. The examiner must be neutral, not partisan.

In the past, many US requests were much too broad and were turned down. There are fewer problems now because most US lawyers get English lawyers, who advise better on what will be acceptable. But what about in smaller cases where the expense of instructing solicitors can’t be incurred?

Ted Folkman November 2, 201511:57 am

Also, the UK has a more relaxed approach to “blue-penciilng” the requests to make them compatible with English law.

Ted Folkman November 2, 201511:59 am

She notes that under the Convention the evidence must be for trial purposes while under the analogous EU regulations, there is no such requirement. The two, she says, should be harmonized.

Ted Folkman November 2, 201512:01 pm

In particularly difficult cases, Barbara has appointed a judge as the examiner, so that he or she could make binding rulings on privilege and other similar issues on the spot.

Ted Folkman November 2, 201512:03 pm

She generally allows videotaping as well as audio recording of testimony. She will permit direct video transmission to trial if the witness consents. Interestingly, the US/UK MLAT expressly allows for direct video transmission for trial use.

Ted Folkman November 2, 201512:05 pm

She was talking primarily about English trials, but she says she would consider requests for direct video testimony of witnesses in the UK for use in US trials.

Ted Folkman November 2, 201512:09 pm

Now we will hear from Jeanne Davidson.

Ted Folkman November 2, 201512:12 pm

Jeanne points to recent improvements in the US CA performance. We receive 600 Evidence Convention requests per year. Germany and Argentina are big users.

We receive 7,000 service requests annually. The biggest users are France, Germany, China, Italy, and Greece. 90% of requests are executed within six weeks. Good stats!

Ted Folkman November 2, 201512:16 pm

Main categories of requests: banking, financial, etc. We also receive a lot of requests relating to locating heirs for foreign decedents and other family law or probate law requests.

Ted Folkman November 2, 201512:17 pm

And many requests for paternity tests, particularly in NATO countries!

Ted Folkman November 2, 201512:20 pm

The DOJ is now filing statements of interest in US litigation where it feels the private parties may not be fully informing the court about Convention issues.

Ted Folkman November 2, 201512:30 pm

Jeanne emphasizes communications between central authorities. She called out Mexico as particularly worthy. The US has learned a lot from Mexico regarding its registry of Evidence Convention requests.

Ted Folkman November 2, 201512:33 pm

A representative of the Mexican government who is her returned the shout-out very graciously.

Ted Folkman November 2, 20151:06 pm

Now Secretary Yuen is going to give the keynote.

Ted Folkman November 2, 20151:08 pm

Private international law has always been important to Hong Kong, which of course is a financial capital.

Ted Folkman November 2, 20151:11 pm

Hong Kong is receiving 400 incoming requests yearly, and its central authority is transmitting 40 requests for service abroad per year.

Ted Folkman November 2, 20151:11 pm

Most incoming and outgoing requests relate to the US, which I suppose is not surprising.

Ted Folkman November 2, 20151:12 pm

He confirms what we knew: postal channel service is permissible. But a few courts, I think, have gotten this wrong.

Ted Folkman November 2, 20151:13 pm

Hong Kong now has an e-registrar under the Apostille Convention. Cool!

Ted Folkman November 2, 20151:15 pm

HK finds the Evidence Convention effective, though it has been used less frequently. Making use of technology will improve things, and HK now has a technology courtroom with all the bells and whistles.

Ted Folkman November 2, 20151:17 pm

Side note: it’s great to see multilateral cooperation on private international law that includes China at a time where we see a lack of cooperation on public international law.

Ted Folkman November 2, 20151:22 pm

While the Service Convention does not apply between the mainland and Hong Kong, a 1999 law governing service in such matters is modeled on the Service Convention. Thus the Convention provides a model for legal cooperation at levels other than the state-to-state level.

Ted Folkman November 2, 20151:39 pm

Panel 3 is going to start soon. It’s another good panel, with Mark Bravin, Alex Blumrosen, David Bowker, and Roland Portmann. The civilians and the common lawyers are going to go head-to-head.

Ted Folkman November 2, 20151:43 pm

David Bowker of WilmerHale is going to start. He made an interesting point: the map of the members of the HCCH looks a lot like a NASA map of where the world is lit by electricity at night and where it’s not. Interesting observation!

Ted Folkman November 2, 20151:44 pm

On the Evidence Convention, he thinks of Chapter 1 as the civil law system’s answer to the problem. It’s there for the civil law countries that require people to use the Convention to take evidence in their territories. Chapter 2, which uses consuls and commissioners, is the common law answer.

Ted Folkman November 2, 20151:48 pm

A small number of countries account for the vast majority of letters of request.

Ted Folkman November 2, 20151:49 pm

The four biggest countries are the US, Switzerland, Denmark, and Norway.

Ted Folkman November 2, 20151:51 pm

From a practitioner’s perspective, six months to a year just doesn’t work. This is so for reasons of the litigation timeline and the budget.

Ted Folkman November 2, 20151:52 pm

In many places, the amount of evidence you can obtain is not worth the time and expense of the process.

Ted Folkman November 2, 20151:54 pm

From a practitioner’s perspective, it would be a great thing to be able to use email.

Ted Folkman November 2, 20151:56 pm

Now we will hear from Roland, who is consel at the Swiss embassy. He is going to speak on sovereignty concerns. 

Ted Folkman November 2, 20151:57 pm

Switzerland considers the Convention to be exclusive. 

Ted Folkman November 2, 20152:00 pm

Roland is going to try to explain why this is so. It all comes down to how Switzerland gathers evidence in the civil law system. There is a balance between the interests in truth-finding and the interests in privacy. In Swiss procedural law, the balancing act is done by a judge. This is the fundamental reason why the Swiss don’t leave the taking of evidence to private parties.

Ted Folkman November 2, 20152:04 pm

Switzerland gets 15 Chapter 2 requests per year, and the number has been increasing.

Ted Folkman November 2, 20152:06 pm

Roland is talking about the dilemma a party can face when faced with conflicting demands from US and Swiss authorities. The Hague Evidence Convention provides a mechanism to mediate this.

Ted Folkman November 2, 20152:09 pm

What about email? He thinks the metaphysical questions about where the email <em>is</em> is not the main point. The main point relates to the privacy interests of the person subject to the request.

Ted Folkman November 2, 20152:09 pm

Now my buddy Alex Blumrosen. We were members of the ITechLaw delegation to the Special Commission last year.

Ted Folkman November 2, 20152:10 pm

He is going to focus on Chapter 2 of the Evidence Convention, with a focus on France, where he practices.

Ted Folkman November 2, 20152:11 pm

Chapter 1 requires ministerial approval and then continuing involvement from the French judge. It takes 3-5 months. Ugh.

Ted Folkman November 2, 20152:15 pm

Chapter 2 is faster. The US parties get approval of the US court to appoint a commissioner to take the evidence. The commission then goes to the ministry of justice for approval. This approval happens quickly—two to four weeks without follow-up. With follow-up, it can happen in 2-3 days. The American parties then arrange for production of the documents and then the deposition. The whole process can take 2-4 weeks.

Ted Folkman November 2, 20152:18 pm

What about the scope of the permissible discovery? French companies previously would cite the blocking statute as an absolute bar to participation in the US proceedings. But in 2003, it became clear that this was not a winning strategy before US courts. In 2003, the Paris Court of Appeals issued several decisions allowing broad discovery. The upshot was the creation of an easy way to get discovery in France. The article 23 objection began to be construed more narrowly.

Ted Folkman November 2, 20152:21 pm

If you end up in court, it’s too late. You didn’t do your homework to convince the parties that Chapter 2 is a good alternative.

Interesting perspective!

Ted Folkman November 2, 20152:25 pm

The Ministry of Justice has given some resistance in the last year or so to the use of video. Alex is not sure why.

Ted Folkman November 2, 20152:26 pm

The ministry told him it was for reasons of personal privacy. Why isn’t the transcript not enough, the ministry said?

Ted Folkman November 2, 20152:27 pm

Finally, Mark is going to talk about the Service Convention. He starts with an anecdote about serving the German government under the Convention on an expropriation claim. The German CA at first claimed the suit was not civil or commercial.

Ted Folkman November 2, 20152:29 pm

Apparently the German position now is that the Convention does not apply at all to disputes between natural persons and states. (!)

Ted Folkman November 2, 20152:38 pm

I put the question to the panel: will a perceived US deescalation in discovery lead to a deescalation on the European side? (I am characterizing this as an “arms race”). David Bowker says maybe not. He thinks in the increasingly global environment the sovereigns are going to want to continue to press for the preservation of their important values.

Ted Folkman November 2, 20152:45 pm

Roland did think that there might be something to the idea of reciprocity in this context, although he emphasized that we couldn’t expect a direct relationship between US amendments to the FRCP and Swiss changes to its rules intended to serve the interests he discussed.

Ted Folkman November 2, 20152:49 pm

Christoph suggests that it might be possible to create a guide to good practice for use of Chapter 2 in civil law countries.

Ted Folkman November 2, 20153:14 pm

Now the last panel, which include a representative of the Kazakh government. Spolier alert: I think we may be expecting an interesting announcement!

Ted Folkman November 2, 20153:17 pm

Nurzhan Kosbayev, of Kazakhstan is coming up first.

Kazakhstan has ratified the Service Convention. The notification has already been sent, and the Convention will enter into force for Kazakhstan 60 days after it is received.

Ted Folkman November 2, 20153:19 pm

Under the Kazakh reservations, an application will not be entertained if filed after one year following on the date of the judgment. I am not sure what this means.

Ted Folkman November 2, 20153:21 pm

The Ministry of Justice is working towards preparing a draft instrument of ratification and analyzing the declarations of the states parties to the Convention.

Ted Folkman November 2, 20153:24 pm

Kazakhstan is also working towards becoming a member of the Hague Conference.

Ted Folkman November 2, 20153:27 pm

Now Chuck Kotuby of Jones Day’s Washington office.

Ted Folkman November 2, 20153:31 pm

Half of the top 40 developing economies are not parties to the Service Convention. Yikes! How can we do better?

Ted Folkman November 2, 20153:32 pm

A little impolitic: he puts up a map showing lots of countries, including Kazakhstan, as highly corrupt.

Ted Folkman November 2, 20153:36 pm

Is the Service Convention indispensible to fundamental due process? Chuck says yes. I question this—it’s useful, sure, and we should support it, but is it indispensible?

Ted Folkman November 2, 20153:40 pm

Now Noelle Lenoir, a French stateswoman who is now in private practice at Kramer Levin Naftalis & Frankel.

Ted Folkman November 2, 20153:43 pm

Her Evidence Convention slides are titled: “A Missed Opportnity.”

Ted Folkman November 2, 20153:45 pm

Reasons: (1) the reservations under Article 23. There is a discrepancy between the rule that the Convention is non-mandatory and the rule that reservations to the Convention are mandatory. (2) The Aerospatiale decision.

Ted Folkman November 2, 20153:46 pm

The French reservation is not against pretrial discovery, but rather against fishing expeditions.

Ted Folkman November 2, 20153:47 pm

Thus the documents have to be enumeratively limited, and there must be a strong likelihood of a trial.

Ted Folkman November 2, 20153:51 pm

Noelle is characterizing the origin of blocking statutes as part of an arms race against “abusive extraterritorial enforcement of US law.”

Ted Folkman November 2, 20153:56 pm

She sees the blocking statute as a tool for negotiation.

Ted Folkman November 2, 20154:00 pm

She points to a 2014 Delaware Court of Chancery case in a Vivendi matter, where the court required first resort to the Convention.

Ted Folkman November 2, 20154:13 pm

Folks, I think I am going to stop the live blog for a bit, in case anyone has been following along!

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. He is the author of International Judicial Assistance (MCLE 2012), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's forthcoming treatise on International Aspects of US Litigation, and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012, 2014, and 2015.

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