The case of the day is Begisholli v. KBR Government Operations. It comes out of a corner of the legal world that was utterly unknown to me a year ago. The Defense Base Act is a federal statute that gives a worker’s compensation-like benefit to employees of US government and military contractors injured at work overseas. There are many, many such cases, especially in recent years given the government’s reliance on foreign contractors in places like Afghanistan. It is challenging for claimants to travel to the United States for their hearings, and so for some period of time, and these days, many claimants testify from abroad remotely. But there has been a lot of uncertainty among the administrative law judges and counsel who handle these cases about how to do this in a way that complies with the relevant foreign law. I have been retained by counsel prosecuting these cases to consult and, in some cases, to provide expert declarations for the use of the administrative law judges.
Today’s decision came in a case where I submitted such a declaration. The claimant asked the judge to issue a commission to authorize a lawyer in North Macedonia to swear in the claimant so that he could testify by video-link in his hearing. The basic background is that in countries that are parties to the Evidence Convention, Article 17 provides for taking evidence without compulsion by way of a commission, provided the foreign state grants permission. So the typical procedure is to ask the US judge to issue a commission, specifying the procedures to be followed in the body of the commission, and then to ask the North Macedonian authority to approve the procedures for taking the testimony.
What are some of the issues that arise? Well, where to start. Only a judicial authority can issue a letter of request under Chapter 1 of the Convention, but must a tribunal be a judicial authority in order to issue a commission under Chapter 2? If so, is the administrative law judge a judicial authority? Is a case for benefits under the Defense Base Act “civil or commercial,” so as to bring it within the scope of the Convention? Can the witness testify remotely at an evidentiary hearing, rather than simply at a deposition held in advance of the hearing? Are there any questions of foreign law that must be resolved once the foreign authority has granted permission?
The judge granted the motion for issuance of the commission and gave a pretty thorough discussion of some (though not all) of these issues. What I particularly like about the decision is the reliance on the HCCH’s Guide to Good Practice and the conclusions and recommendations of the Special Commission. It’s good for American judges to consult the international legal materials instead of focusing solely on US precedents.