Originally from:
The Practice of International Litigation - 2nd Edition - Looseleaf
The Practice of International Litigation - 2nd Edition - Electronic
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The Hague Convention on Taking Evidence Abroad
Lawrence W. Newman and Michael Burrows
Prior to the decision of the U.S. Supreme Court last year in Societe
Nationale Industrielle Aerospatiale v. United States District Court for the Southern
District of Iowa, there was a divergence of views as to whether The Hague
Convention on the Taking of Evidence Abroad in Civil or Commercial
Matters provides the exclusive means of obtaining pre-trial discovery in
civil actions in federal and state courts from foreign nationals of signatories
to the convention. In June of 1987, a majority of the Supreme Court in
that case held that The Hague Convention did not provide exclusive
procedures for obtaining pre-trial discovery of documents and other
information located in a foreign signatory’s territory.
The Supreme Court held that the text and legislative history of The
Hague Convention “unambiguously supports the conclusion that it was
intended to establish optional procedures that would facilitate the taking of
evidence abroad.” Parties are free to seek discovery from foreign litigants
(parties and third parties) under either the Convention or the Federal Rules of Civil
Procedure (or pertinent state court rules of procedure).
Lawrence W. Newman has been a partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of 4 works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
