Member Article

Within the European Union the issue of taking evidence in another member state has been regulated uniformly by the Council regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters. However some general rules relating to the procedure of taking evidence abroad were developed and established long before the adoption of the regulation. Such rules were specified, among other things, in the Hague Convention of 18 March 1970 on the taking of evidence abroad in civil, or commercial matters. Owing to significant similarities of the provisions of this act to the rules of the regulation, the practice gained under the Convention is now a source of interesting precedents. In article 9 the convention set forth two substantial rules regulating the mode of procedure related to taking evidence abroad. Generally the judicial authority which executes a Letter of Request applied its own law as to the methods and procedures to be followed. However, on a request of the requesting authority it followed a special method or procedure. Exceptions to this rule concerned a situation where the requested procedure was incompatible with the internal law of the State of execution or it was impossible because of its internal practice and procedure or by reason of practical difficulties. Importing and Exporting Evidence Two different situations related to taking evidence abroad should be considered. Through the request we may aim at making use of evidence and rules that do not exist in our system. It is also possible that through the request, we want the requested court to follow our domestic procedure. Application under the Regulation of the rules of foreign courts The Hague convention bound only eleven member states of the European Union. For this reason it was necessary to adopt a regulation for the purposes of harmonization of this issue. In relations between member states of the European Union the convention was replaced by the Council regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters. Even a quick look at the provisions of the regulation allows noticing that it must have been based on the convention. The issue of taking evidence by the requested court in regulated in section 3, article 10 of the regulation. It constitutes a rule that the requested court shall execute the request in accordance with the law of its Member State. However, the requesting court may call for the request to be executed in accordance with a special procedure provided for by the law of its Member State. The requested court shall comply with such a requirement. Pursuant to the provisions of the regulation there are two grounds for refusal of applying foreign rules of evidence. One relates to the situation where the procedure is incompatible with the law of the Member State of the requested court. The other possibility of refusal is connected with major practical difficulties. It is also possible for the requesting court to ask the requested court to use communications technology at the performance of the taking of evidence, in particular by using videoconference and teleconference (with the abovementioned restrictions). The regulation specifies the time limit to fulfill the obligation of the requested court. The requested court shall execute the request without delay and, at the latest, within 90 days of receipt of the request. An interesting rule is provided for by the article 1.2. Pursuant to this provision a request shall not be made to obtain evidence which is not intended for use in judicial proceedings, commenced or contemplated. Most of the national, continental systems do not know a measure such as collecting evidence for the purposes of ontemplated proceedings (except for some emergency rules and Art. 186 of Dutch civil procedure code). We can suspect that it might be a vehicle for introducing the so called pre-trial discovery known to the common law systems. Application of the rules of foreign courts under the Regulation The issue of incompatibility of the procedure with the law of the Member State of the requested court needs further discussion and specification of the possible forms it may take. First of all it may concern differences in the rules of examination e.g. limited cross examination by the parties or involvement of the judge, etc. significant differences may be also related to rules against self-incrimination, resulting from different scope of regulation. Some controversy may arise in connection with the issue of rules against hearsay and the professional privilege. The use of the evidence obtained abroad The question of the use of evidence obtained abroad is a matter of domestic law. This issue gives rise to an important question whether the evidence taken in accordance with the Regulation should be deemed to be acceptable in the domestic proceedings. This matter has not been cleared yet and without doubt we can expect numerous problems connected with it. Potential problems will occur especially in case where foreign rules are incompatible with the domestic rules. National measures in Poland Pursuant to Art. 1137 of the Polish Civil Procedure Code a Polish court may secure evidence located in Poland if it is necessary for pursuing a claim abroad. The application for evidence to be secured is lodged in the district court, in whose jurisdiction the evidence is to be heard. The applicant shall be notified about the date allocated for hearing the evidence, except in case of urgency. The Courts are inclined to accept as an emergency e.g. the need of evidence to avoid possible incarceration and the clear refusal of a witness to appear in a foreign court. National measures in France Pursuant to Article 743 of the French Civil Procedure Code the commissioned judge may refuse, ex proprio motu or at the request of any interested person, to implement the request where he considers that it does not fall within his duties. He shall have to refuse the same where it is of a nature which adversely affects the sovereignty or the security of the French State (…). Moreover the Article 744 says that the ministère public shall have to insure the compliance with the fundamental principles of procedure in the implementation of the request (…). It should be noted that the Court of Appeal of Paris in 18 September 2003 accepted the pre-trial discovery allowing for discovery of documents not exactly described. Limits of the Regulation Neither the Hague Convention nor the Regulation is an exclusive act. Such interpretation is allowed under Art. 21 of the Regulation. The member states are free to conclude agreements facilitating the procedure of taking evidence. Some restrictions entail the restrictive approach of the courts. For example the European Court of Justice in the judgment as of C-104/03 in St. Paul Dairy Industries NV Unibel Exser BVBA (28 April 2005) refused to accept the order on pre-trial disclosure under Dutch law as the interim measure to be recognized under Brussels regulation 44/2001 and indicated the need for strict application of the Evidence Regulation rules. ECJ clearly overruled the opposite opinions expressed under German law. Such attitude of the courts may easily result in a state where the requests will be considered in very strict manner without allowing for use of the new techniques.