by Owen Tang, Teaching Fellow in Maritime Law
Department of Logistics and Maritime Studies,
Hong Kong Polytechnic University 

The procedures governing the taking of evidence abroad in commercial cases are set out in the Hague Evidence Convention. There are 47 states which are parties of the Hague Evidence Convention as of 2009. The US and UK ratified the Convention in 1970; Singapore ratified it in 1978; Australia in 1992; and the People's Republic of China in 1997. When Hong Kong became a Special Administrative Region (SAR) on July 1, 1997, the People's Republic of China gave advise that the Hague Evidence Convention remained in effect for Hong Kong.

The procedure for taking evidence abroad under the Hague Evidence Convention is slow and cumbersome. When the Hague Evidence Convention was drafted in the late 1960s, video conferencing technology was still a theoretical possibility rather than a tested reality. Accordingly, the drafters require the courts of one contracting state to act as the surrogates of the courts in another contracting state in taking evidence. To illustrate, let's say there is a maritime dispute between Hong Kong and US parties. The Hague Evidence Convention would require the Hong Kong court to send a letter of request to the US court for obtaining evidence on behalf of the HK court. The US witness is examined by the competent authority in the US where he is to be found, according to US law about methods and procedures, but using the questions set out by the Hong Kong court. The results of the examination are then sent back in documentary form to the Hong Kong court.

Taking evidence in non-Hague Evidence Convention nations

If the witness is living in a non-Hague Evidence Convention nation, the procedure to obtain international judicial assistance will be even more cumbersome. Lawyers from the US, David M. Stuart and Charles F. Wright (both are senior counsels on the SEC's Financial Fraud Task Force) showed how complex the procedures can be in obtaining evidence through foreign defendants. They opined: An investigative subpoena is the traditional method of invoking the SEC's authority. While domestic service can be accomplished by facsimile and US mail, however, using these methods in foreign jurisdictions may violate the principles of international law.

For example, in FTC v. Compagnie de Saint-Gobain-Pont-a-Mousson, 636 F.2d 1300 (1980), the court addresses a narrow issue, but of broad international consequence, namely, did the US Congress authorize the Federal Trade Commission (FTC) to serve its investigatory subpoenas directly upon citizens of other countries by means of registered mail? The court discussed at length why the service of a subpoena, by means other than personal service, such as by mail, will constitute an intrusion upon a foreign sovereignty and may be sufficiently "intrusive and obnoxious to foreign sensibilities", so as to result in a violation of international law.

For witness locates in a foreign non-contracting nation to the Hague Evidence Convention, the standard practice requires a letter rogatory be sent to the court in that country for asking the court there to take the witness's evidence. Since the country receiving the letter rogatory is under no obligation to comply with the request, the request rests upon the comity of courts on a promise of reciprocity. Often, the letter must be sent through diplomatic channels, requiring the participation of two foreign ministers and sometimes two justice ministers.

The 1987 Aerospatiale case

Given the slow and costly nature of the Hague Evidence Convention procedures and the process for letters rogatory, US lawyers preferred to use the US Federal Rules of Civil Procedure in international cases. Such option is only open because of the US Supreme Court decision in the 1987 Aerospatiale case.

In Aerospatiale, plaintiffs brought suits in US Federal District Court for personal injuries resulting from the crash of an aircraft, which was built and sold by two French corporations. Both the US and France have acceded to the Hague Evidence Convention. The two French corporations answered the complaints and engaged in initial discovery without objection. However, when plaintiffs served subsequent discovery requests under the US Federal Rules of Civil Procedure, the two French corporations filed a motion for a protective order, alleging that the Hague Evidence Convention should be followed and the discovery could only be held in France. The US Supreme Court held that the Hague Evidence Convention does not provide the exclusive procedures for obtaining documents and information located in a foreign country that is party to the Convention, and the US parties are free to use the procedures set out in the US Federal Rules of Civil Procedure.

Aerospatiale case as a bypass to the Convention

Although the Aerospatiale decision was severely criticized by some US legal academics for allowing the use of domestic procedures instead of the internationally-agreed Hague Evidence Convention, the principle for which it stands has since been adopted widely by all those countries that are party to the Hague Evidence Convention.

Today, many of the Convention nations, like the US, have made provision for testimony to be taken directly by video-link. In order to take advantage of the speedier and cheaper procedures in their domestic law, Convention countries must necessarily take the Aerospatiale position and treat the procedures in the Convention as non-mandatory.

The Aerospatiale decision provides a bypass to the Convention, and allows the adoption of video conferencing technology in transnational evidence collection. By treating the procedures in the Hague Evidence Convention as non-mandatory, a witness in Singapore, for example, can give evidence directly via video and audio conferencing technology to a court in Australia or in Hong Kong.

For example, in Idoport Pty Ltd v. National Australia Bank (2000) 49 N.S.W.L.R. 51, the court, in considering time and money that would be saved, ordered the use of Technology Court despite defendant's opposition. Wrote Justice Clifford Einstein in 2001: "[In Australia], two courtrooms have been set up in the Supreme Court to handle cases appropriate for advanced technological administration. The courts are Court 10A and Court 12A. Idoport v National Australia Bank Ltd is currently being heard in court 12A." When explaining why the Idoport case should be handled by the Technology Court, Justice Einstein pointed to the following facts that the volume of materials which requires to be accessed in the Idoport litigation is extensive. The number of statements put forward by the respective parties is in excess of 170. More than 50 interlocutory judgments have been delivered up to this point in time and there are literally hundreds of notices of motion, submissions and ancillary materials related to the main proceedings or to interlocutory applications. A large number of witnesses are to be called. There are more than 11,000 pages of final hearing transcript made in 2001, and the case is anticipated to continue well into 2003.

Conclusion

Technological developments change the way of litigation, and "high tech" courtrooms are increasing common, from electronic filing to witnesses' remote appearances via video-conferencing. Dr Ros Macdonald, from Queensland University of Technology, investigated the courtroom technology in Australia, and she observed that courts from Hague Evidence Convention countries are more willingness to adopt conferencing technology in recent years.

A parameter of the adinistration of justice does require efficiency in the running of proceedings. The use of technologies in judicial administration is not only highly desirable but sometimes absolutely essential. A good judicial system should promote expedition and efficiency in the administration of justice by ordering the adoption those technologies and procedures if the benefits justify the costs. Legal practitioners are thus expected to familiar with the use of conferencing technologies in litigation.

About the author: Owen Tang, Juris Doctor (US), Teaching Fellow in maritime law, Department of Logistics and Maritime Studies, Hong Kong Polytechnic University. He writes frequently for legal columns on US maritime commercial law. Owen Tang Department of Logistics and Maritime Studies Hong Kong Polytechnic University Hung Hom, Kowloon, Hong Kong Email: Owen.Tang@inet.polyu.edu.hk Tel: 2766 4782

 1. Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, the full text can be found at the Hague Conference website: http://www.hcch.net/index_en.php?act=conventions.text&cid=82

2. According to the Hague Evidence Convention, the request is sent to the designated Central Authority in the receiving country (Article 2), which forwards it to the authority competent to execute it (Article 6).

3. Id. Article 2(f).

4. According to Article 13, the documents are sent back through the Central Authority through which they were sent.

5. David M. Stuart and Charles F. Wright, The Sarbanes-Oxley Act: Advancing the SEC's Ability to obtain Foreign Audit Documentation in Accounting Fraud Investigations, 2002 Columbia Business Law Review 749, at 783-84 (2002).

6. Société Nationale Industrielle Aerospatiale v. United States District Court, 482 U.S. 522 (1987).

7. James G. Dwyer & Lois A. Yurow, Taking Evidence and Breaking Treaties: Aerospatiale and the Need for Common Sense, 21 Geo. Wash. J. Int'l L. & Econ. 439 (1988); George A. Bermann, The Hague Evidence Convention in the Supreme Court: A Critique of the Aerospatiale Decision, 63 Tul. L. Rev. 525 (1989).

8. For examples, in Australia, the legislature enacted ss. 47A-47F of the Federal Court of Australia Act 1976 (Cth), and 69A, r. 13 of the Federal Court Rules. In Singapore, similar provisions can be found in Evidence Act (Sing.), s. 62A.

9. Justice Clifford Einstein, Technology in the Court Room - 2001 - [Friend or Foe?], website of the Supreme Court of NSW. http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/pages/SCO_index

10. Ros MacDonald & Anne Wallace, Review of the Extent of Courtroom Technology in Australia, 12 William & Mary Law - Bill of Rights Journal 649 (2004).