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Cross-Border Litigation and Dispute Resolution Hague Service Convention Hague Evidence Convention Recognition of Foreign Judgments Birgit Kurtz 1 April 2014 ..

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Page 1: Cross-Border Litigation and Dispute Resolution Hague Service Convention Hague Evidence Convention Recognition of Foreign Judgments Birgit Kurtz 1 April

Cross-Border Litigationand Dispute ResolutionHague Service ConventionHague Evidence ConventionRecognition of Foreign Judgments

Birgit Kurtz

1 April 2014

..

Page 2: Cross-Border Litigation and Dispute Resolution Hague Service Convention Hague Evidence Convention Recognition of Foreign Judgments Birgit Kurtz 1 April

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1. Hague Service Convention

2. Hague Evidence Convention

3. Recognition of Foreign Judgments

Page 3: Cross-Border Litigation and Dispute Resolution Hague Service Convention Hague Evidence Convention Recognition of Foreign Judgments Birgit Kurtz 1 April

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Hague Service Convention

Page 4: Cross-Border Litigation and Dispute Resolution Hague Service Convention Hague Evidence Convention Recognition of Foreign Judgments Birgit Kurtz 1 April

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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)

Page 6: Cross-Border Litigation and Dispute Resolution Hague Service Convention Hague Evidence Convention Recognition of Foreign Judgments Birgit Kurtz 1 April

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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

Page 11: Cross-Border Litigation and Dispute Resolution Hague Service Convention Hague Evidence Convention Recognition of Foreign Judgments Birgit Kurtz 1 April

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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

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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

Page 23: Cross-Border Litigation and Dispute Resolution Hague Service Convention Hague Evidence Convention Recognition of Foreign Judgments Birgit Kurtz 1 April

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

Page 24: Cross-Border Litigation and Dispute Resolution Hague Service Convention Hague Evidence Convention Recognition of Foreign Judgments Birgit Kurtz 1 April

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

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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

[email protected]