The quest for evidence in civil and commercial litigation is often a major strategic challenge, as the quality and strength of evidence provided by the parties may determine the outcome of the trial. In particular, parties may face serious hurdles in proving their claims when evidence is situated outside the jurisdiction of the court handling the case.
When a party involved in French proceedings needs to collect information or documentation abroad which is crucial to the success of its claims, it can rely on two legal instruments, depending on where the evidence is situated:
- the 1970 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, where the evidence is located outside the European Union; or
- EU Regulation 1206/2001 on cooperation between the courts of member states in the taking of evidence in civil or commercial matters, where the evidence is located within the European Union.
However, parties seldom invoke these instruments in their trials, despite their utility.
The Hague Convention is the key instrument on the taking of evidence abroad. It promotes international cooperation through the letter of request procedure and the central authority mechanism. Each contracting state must designate a central authority to receive letters of request from the judicial authorities of other contracting states and transmit them to the authority that is competent to execute them.
The provisions of the Hague Convention on the execution of letters of request are largely incorporated in Sections 733 to 748 of the French Code of Civil Procedure.
The main advantage of the Hague Convention is the possibility for the state of execution to apply coercive measures, to the extent that these are available under domestic law. The state of execution can thus put its own coercive powers at the service of foreign justice.
A broad range of investigatory measures is permitted under the Hague Convention, as the convention covers all "evidence to be obtained or other judicial act[s] to be performed" relevant to the determination of the dispute. This may variously comprise interviews of the parties or witnesses, appointment of a legal expert to assess technical issues, audits of accounting documents and so on.
By way of example, in case of infringements committed through social networks (eg, trademark or copyright infringement, identity theft), the personal identification data of offenders may be obtained from social network companies through the letter of request procedure. Most US-based social networks are reluctant to transmit such data upon a simple request, but will generally commit to provide it under the Hague Convention.
It is not difficult to obtain evidence through the Hague Convention under French law: a request must be filed with the court which has jurisdiction over the case, which will judge the merits of the claim. If the court believes that such evidence is important to the case, it will grant the measure through the process set out in the Hague Convention.
EU Regulation 1206/2001, which is applicable only between EU member states (except Denmark), is largely inspired by the cooperation mechanism and principles set out in the Hague Convention, such as the execution of investigatory measures by the requested state in accordance with its own law and the use of coercive powers to the extent permissible under the requested state's domestic law.
Its main advantage over the Hague Convention is the way in which it addresses the need for effectiveness in the taking of evidence abroad. The regulation introduced true judicial cooperation between member states, providing for the direct transmission of a letter of request between the relevant courts. This mechanism helps to avoid the delays and uncertainty that can arise in relation to letters of request transmitted under the Hague Convention. In addition, the regulation specifies the forms for communication between the relevant courts, in order to enhance clarity and certainty in this regard.
Most notably, the regulation allows for the direct taking of evidence by the requesting court in another member state. The requesting court can thus directly carry out investigatory measures in another member state, provided that the latter agrees to the request and the measure can be performed on a voluntary basis, without the need for coercive measures. The requested court may reject the request only if:
- it does not fall within the scope of the regulation;
- it does not contain all of the necessary information; or
- above all, it is contrary to fundamental principles of law in the relevant member state.
The evidence may be gathered by a member of the judiciary (eg, a judge), or any other person, such as an expert appointed in accordance with the law of the member state of the requesting court.
Thus, evidence gathering in the cross-border context – whether under the Hague Convention or EU Regulation 1206/2001 – can be carried out only with the cooperation or agreement of the requested state.
Despite their value, the Hague Convention and EU Regulation 1206/2001 are seldom used in French proceedings, mostly because of the significant execution time involved. From 2009 to 2013, France transmitted just seven or eight letters of request a year under the Hague Convention, mostly to the United States.
Parties and their legal advisers should work with local courts to avail of these international instruments, which may prove very effective and helpful in a trial. The courts with jurisdiction in Paris – most notably, the Paris Civil Court – are quite familiar with these proceedings. However, in urgent cases the parties should opt for a different path, as some time is needed for cooperation between the authorities in charge of executing these proceedings.
For further information on this topic please contact Nicolas Contis or Romaine Rue at Kalliopé by telephone (+33 1 44 70 64 70) or email (email@example.com or firstname.lastname@example.org). The Kalliopé website can be accessed at www.kalliope-law.com.
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