cross-border litigation and dispute resolution hague service convention hague evidence convention...
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Cross-Border Litigationand Dispute ResolutionHague Service ConventionHague Evidence ConventionRecognition of Foreign Judgments
Birgit Kurtz
1 April 2014
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1. Hague Service Convention
2. Hague Evidence Convention
3. Recognition of Foreign Judgments
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Hague Service Convention
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Hague Service ConventionCommence lawsuit:file summons and complaint with court – then serve documents on defendant
How to serve defendant located abroad?» Fed. R. Civ. P. 4(h)(2) corporation, partnership or association» Fed. R. Civ. P. 4(f)(1) individual
“by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents”
» www.hcch.net– Text– List of contracting states– Reservations, declarations and notifications
» Also reprinted: after Fed. R. Civ. P. 4
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Hague Service Convention
» When does Convention apply?
forum country and country where person or company to be served is located must be signatories
“civil and commercial matters”
“occasion to transmit a judicial or extrajudicial document for service abroad”
But: transient / tag jurisdiction (Burnham case, U.S. S.Ct. 1990)
substituted service (Schlunk case, U.S. S.Ct. 1988)
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Hague Service Convention
Procedure
3 forms
translations (if required by receiving country)
send to Central Authority of receiving country
Central Authority will forward to local authority for proper service under local law
certificate of service is sent back
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Hague Service Convention
» If not signatory to treaty (e.g., Austria):
Fed. R. Civ. P. 4(f)(2)
» Service on Foreign Sovereign
28 U.S.C. § 1608(a) state or political subdivision
28 U.S.C. § 1608(b) agency or instrumentality
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Hague Service Convention
» Attack improper service:
Fed. R. Civ. P. 12(b)(5)
motion to dismiss for insufficient service of process
CPLR 3211(a)(8)
motion to dismiss for lack of personal jurisdiction
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Hague Evidence Convention
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Hague Evidence Convention
» 28 U.S.C. § 1781Transmittal of letter rogatory or request(a) Via State Department(b) Directly by court
» www.hcch.net– Text– List of contracting states– Reservations, declarations and notifications
» Also reprinted: after 28 U.S.C. § 1781
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Hague Evidence Convention
When does it apply?
forum country and country where evidence / witness is located must be signatories
“civil and commercial matters”
“for use in judicial proceedings, commenced or contemplated”
request “to obtain evidence, or to perform some other judicial act”
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Hague Evidence Convention
Letter of Request
Names / addresses of requesting & receiving authorities
Names / addresses of all parties and their counsel
Short description of nature of proceeding
Evidence to be obtained
Any special instructions
Check language requirement
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Hague Evidence Convention
Art. 23:
“A Contracting State may at the time of signature, ratification or accession, 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.”
Most signatory countries have made Art. 23 declarations
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Hague Evidence Convention
Societe Nationale case (U.S. S.Ct. 1987)Hague Evidence Convention is not the exclusive means for obtaining documents and information abroad
International Comity analysis:1. Particular facts of case2. Sovereign interests involved3. Likelihood that resort to Convention will be an
effective discovery device
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Hague Evidence Convention
Societe Nationale case (cont.)
“American courts, in supervising pretrial 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 pretrial proceedings particularly closely to prevent discovery abuses.”
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Hague Evidence Convention
If not signatory:
28 U.S.C. § 1781 Letters Rogatory
Inter-American Convention on Letters Rogatory
Other, bilateral or multilateral treaties?
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Hague Evidence Convention
Conflict with foreign laws, e.g.,
Blocking statutes
Privileges
EU Data Privacy* EU Data Protection Directive 94/46/EC* 158 WP – EU working paper (2-11-09)
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Hague Evidence Convention
Volkswagen case (Texas S.Ct. 1995)
Restatement (3d) of Foreign Relations – 5 factors:
1. importance to the investigation or litigation of the documents or other information requested;
2. degree of specificity of the request;
3. whether the information originated in the U.S.;
4. availability of alternative means of securing the information; and
5. extent to which noncompliance with the request would undermine important interests of the U.S., or compliance with the request would undermine important interests of the state or country where the information is located.
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Hague Evidence Convention
28 U.S.C. § 1782Assistance to foreign and international tribunals and to litigants before such tribunals
» Intel v. AMD (U.S. S.Ct. 2004)
4 Elements:
1. target of discovery request must “reside or [be] found” in district
2. purpose of discovery must be “for use in a proceeding”
3. proceeding must be “in a foreign or international tribunal”
4. application by foreign or international tribunal or by “interested person”
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Hague Evidence Convention
State Department website
country-specific information re. judicial assistance abroad
www.travel.state.gov
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Recognition of Foreign Judgments
Recognition of Foreign JudgmentsHague Convention on Choice of Court Agreements (“COCA”)
Not yet in force!
www.hcch.net• Text• List of contracting states• Declarations, etc.
Art. 5(2): chosen court must hear case
Art. 6: court not chosen has no jurisdiction
Art. 8: recognition and enforcement22
Recognition of Foreign Judgments
Foreign country money judgment in U.S.State law: Uniform Act or International Comity
New York: CPLR Art. 53Generally recognized except, e.g.,
inadequate legal systemno jurisdictionuntimely serviceobtained by fraud repugnant to public policyconflicts with another judgmentcontrary to forum selection clause 23
Recognition of Foreign Judgments
U.S. Judgment Abroad→ apply local law
E.g., Germany: ZPO § 328No recognition if:
No jurisdiction
Defective or untimely service
Conflicts with another judgment
Ordre public
No reciprocity 24
Recognition of Foreign Arbitral Awards New York Convention
» www.uncitral.org• Text
• Parties
• Notes
» FAA 9 U.S.C. §§ 201 et seq.» Recognize written arbitration agreements» Compel arbitration» Recognize arbitral awards – limited exceptions
Panama Convention» FAA 9 U.S.C. §§ 301 et seq.
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Thank you for your attention!
Comments and questions:
Birgit KurtzCrowell & Moring LLP
590 Madison Avenue, 20th floorNew York, NY 10022
Tel. +1-212-803-4016Fax +1-212-223-4134