CHAPTER I. LETTERS OF REQUEST
In civil or commercial matters a judicial authority of a Contracting State may, in
accordance with the provisions of the law of that State, request the competent authority
of another Contracting State, by means of a Letter of Request, to obtain evidence,
or to perform some other judicial act.
A Letter shall not be used to obtain evidence which is not intended for use in judicial
proceedings, commenced or contemplated.
The expression 'other judicial act' does not cover the service of judicial documents
or the issuance of any process by which judgments or orders are executed or enforced,
or orders for provisional or protective measures.
A Contracting State shall designate a Central Authority which will undertake to receive
Letters of Request coming from a judicial authority of another Contracting State and
to transmit them to the authority competent to execute them. Each State shall organize
the Central Authority in accordance with its own law.
Letters shall be sent to the Central Authority of the State of execution without being
transsmitted through any other authority of that State.
A Letter of Request shall specify -
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(a) the authority requesting its execution and the authority requested to execute it,
if known to the requesting authority;
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(b) the names and addresses of the parties to the proceedings and their representatives,
if any;
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(c) the nature of the proceedings for which the evidence is required, giving all necessary
information in regard thereto;
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(d) the evidence to be obtained or other judicial act to be performed.
Where appropriate, the Letter shall specify, inter alia -
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(e) the names and addresses of the persons to be examined;
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(f) the questions to be put to the persons to be examined or a statement of the subject-matter
about which they are to be examined;
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(g) the documents or other property, real or personal, to be inspected;
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(h) any requirement that the evidence is to be given on oath or affirmation, and any special
form to be used;
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(i) any special method or procedure to be followed under Article 9.
A Letter may also mention any information necessary for the application of Article 11.
No legalization or other like formality may be required.
A Letter of Request shall be in the language of the authority requested to execute
it or be accompanied by a translation into that language.
Nevertheless, a Contracting State shall accept a Letter in either English or French,
or a translation into one of these languages, unless it has made the reservation authorized
by Article 33.
A Contracting State which has more than one official language and cannot, for reasons
of internal law, accept Letters in one of these languages for the whole of its territory,
shall, by declaration, specify the language in which the Letter or translation thereof
shall be expressed for execution in the specified parts of its territory. In case
of failure to comply with this declaration, without justifiable excuse, the costs
of translation into the required language shall be borne by the State of origin.
A Contracting State may, by declaration, specify the language or languages other than
those referred to in the preceding paragraphs, in which a Letter may be sent to its
Central Authority.
Any translation accompanying a Letter shall be certified as correct, either by a diplomatic
officer or consular agent or by a sworn translator or by any other person so authorized
in either State.
If the Central Authority considers that the request does not comply with the provisions
of the present Convention, it shall promptly inform the authority of the State of
origin which transmitted the Letter of Request, specifying the objections to the Letter.
If the authority to whom a Letter of Request has been transmitted is not competent
to execute it, the Letter shall be sent forthwith to the authority in the same State
which is competent to execute it in accordance with the provisions of its own law.
The requesting authority shall, if it so desires, be informed of the time when, and
the place where, the proceedings will take place, in order that the parties concerned,
and their representatives, if any, may be present. This information shall be sent
directly to the parties or their representatives when the authority of the State of
origin so requests.
A Contracting State may declare that members of the judicial personnel of the requesting
authority of another Contracting State may be present at the execution of a Letter
of Request. Prior authorization by the competent authority designated by the declaring
State may be required.
The judicial authority which executes a Letter of Request shall apply its own law
as to the methods and procedures to be followed.
However, it will follow a request of the requesting authority that a special method
or procedure be followed, unless this is incompatible with the internal law of the
State of execution or is impossible of performance by reason of its internal practice
and procedure or by reason of practical difficulties.
A Letter of Request shall be executed expeditiously.
In executing a Letter of Request the requested authority shall apply the appropriate
measures of compulsion in the instances and to the same extent as are provided by
its internal law for the execution of orders issued by the authorities of its own
country or of requests made by parties in internal proceedings.
In the execution of a Letter of Request the person concerned may refuse to give evidence
in so far as he has a privilege or duty to refuse to give the evidence -
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(a) under the law of the State of execution; or
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(b) under the law of the State of origin, and the privilege or duty has been specified
in the Letter, or, at the instance of the requested authority, has been otherwise
confirmed to that authority by the requesting authority.
A Contracting State may declare that, in addition, it will respect privileges and
duties existing under the law of States other than the State of origin and the State
of execution, to the extent specified in that declaration.
The execution of a Letter of Request may be refused only to the extent that -
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(a) in the State of execution the execution of the Letter does not fall within the functions
of the judiciary; or
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(b) the State addressed considers that its sovereignty or security would be prejudiced
thereby.
Execution may not be refused solely on the ground that under its internal law the
State of execution claims exclusive jurisdiction over the subject-matter of the action
or that its internal law would not admit a right of action on it.
The documents establishing the execution of the Letter of Request shall be sent by
the requested authority to the requesting authority by the same channel which was
used by the latter.
In every instance where the Letter is not executed in whole or in part, the requesting
authority shall be informed immediately through the same channel and advised of the
reasons.
The execution of the Letter of Request shall not give rise to any reimbursement of
taxes or costs of any nature.
Nevertheless, the State of execution has the right to require the State of origin
to reimburse the fees paid to experts and interpreters and the costs occasioned by
the use of a special procedure requested by the State of origin under Article 9, paragraph 2.
The requested authority whose law obliges the parties themselves to secure evidence,
and which is not able itself to execute the Letter, may, after having obtained the
consent of the requesting authority, appoint a suitable person to do so. When seeking
this consent the requested authority shall indicate the approximate costs which would
result from this procedure. If the requesting authority gives its consent it shall
reimburse any costs incurred; without such consent the requesting authority shall
not be liable for the costs.
CHAPTER II. TAKING OF EVIDENCE BY DIPLOMATIC OFFICERS, CONSULAR AGENTS AND COMMISSIONERS
In a civil or commercial matter, a diplomatic officer or consular agent of a Contracting
State may, in the territory of another Contracting State and within the area where
he exercises his functions, take the evidence without compulsion of nationals of a
State which he represents in aid of proceedings commenced in the courts of a State
which he represents.
A Contracting State may declare that evidence may be taken by a diplomatic officer
or consular agent only if permission to that effect is given upon application made
by him or on his behalf to the appropriate authority designated by the declaring State.
A diplomatic officer or consular agent of a Contracting State may, in the territory
of another Contracting State and within the area where he exercises his functions,
also take the evidence, without compulsion, of nationals of the State in which he
exercises his functions or of a third State, in aid of proceedings commenced in the
courts of a State which he represents, if -
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(a) a competent authority designated by the State in which he exercises his functions
has given its permission either generally or in the particular case, and
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(b) he complies with the conditions which the competent authority has specified in the
permission.
A Contracting State may declare that evidence may be taken under this Article without
its prior permission.
In a civil or commercial matter, a person duly appointed as a commissioner for the
purpose may, without compulsion, take evidence in the territory of a Contracting State
in aid of proceedings commenced in the courts of another Contracting State if -
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(a) a competent authority designated by the State where the evidence is to be taken has
given its permission either generally or in the particular case; and
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(b) he complies with the conditions which the competent authority has specified in the
permission.
A Contracting State may declare that evidence may be taken under this Article without
its prior permission.
A Contracting State may declare that a diplomatic officer, consular agent or commissioner
authorized to take evidence under Articles 15, 16 or 17, may apply to the competent authority designated by the declaring State for appropriate
assistance to obtain the evidence by compulsion. The declaration may contain such
conditions as the declaring State may see fit to impose.
If the authority grants the application it shall apply any measures of compulsion
which are appropriate and are prescribed by its law for use in internal proceedings.
The competent authority, in giving the permission referred to in Article 15, 16 or 17, or in granting the application referred to in Article 18, may lay down such conditions as it deems fit, inter alia, as to the time and place of the taking of the evidence. Similarly it may require
that it be given reasonable advance notice of the time, date and place of the taking
of the evidence; in such a case a representative of the authority shall be entitled
to be present at the taking of the evidence.
In the taking of evidence under any Article of this Chapter persons concerned may
be legally represented.
Where a diplomatic officer, consular agent or commissioner is authorized under Articles 15, 16 or 17 to take evidence -
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(a) he may take all kinds of evidence which are not incompatible with the law of the State
where the evidence is taken or contrary to any permission granted pursuant to the
above Articles, and shall have power within such limits to administer an oath or take
an affirmation;
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(b) a request to a person to appear or to give evidence shall, unless the recipient is
a national of the State where the action is pending, be drawn up in the language of
the place where the evidence is taken or be accompanied by a translation into such
language;
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(c) the request shall inform the person that he may be legally represented and, in any
State that has not filed a declaration under Article 18, shall also inform him that he is not compelled to appear or to give evidence;
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(d) the evidence may be taken in the manner provided by the law applicable to the court
in which the action is pending provided that such manner is not forbidden by the law
of the State where the evidence is taken;
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(e) a person requested to give evidence may invoke the privileges and duties to refuse
to give the evidence contained in Article 11.
The fact that an attempt to take evidence under the procedure laid down in this Chapter
has failed, owing to the refusal of a person to give evidence, shall not prevent an
application being subsequently made to take the evidence in accordance with Chapter I.
CHAPTER III. GENERAL CLAUSES
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.
A Contracting State may designate other authorities in addition to the Central Authority
and shall determine the extent of their competence. However, Letters of Request may
in all cases be sent to the Central Authority.
Federal States shall be free to designate more than one Central Authority.
A Contracting State which has more than one legal system may designate the authorities
of one of such systems, which shall have exclusive competence to execute Letters of
Request pursuant to this Convention.
A Contracting State, if required to do so because of constitutional limitations, may
request the reimbursement by the State of origin of fees and costs, in connection
with the execution of Letters of Request, for the service of process necessary to
compel the appearance of a person to give evidence, the costs of attendance of such
persons, and the cost of any transcript of the evidence.
Where a State has made a request pursuant to the above paragraph, any other Contracting
State may request from that State the reimbursement of similar fees and costs.
The provisions of the present Convention shall not prevent a Contracting State from
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(a) declaring that Letters of Request may be transmitted to its judicial authorities through
channels other than those provided for in Article 2;
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(b) permitting, by internal law or practice, any act provided for in this Convention to
be performed upon less restrictive conditions;
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(c) permitting, by internal law or practice, methods of taking evidence other than those
provided for in this Convention.
The present Convention shall not prevent an agreement between any two or more Contracting
States to derogate from -
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(a) the provisions of Article 2 with respect to methods of transmitting Letters of Request;
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(b) the provisions of Article 4 with respect to the languages which may be used;
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(c) the provisions of Article 8 with respect to the presence of judicial personnel at the execution of Letters;
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(d) the provisions of Article 11 with respect to the privileges and duties of witnesses to refuse to give evidence;
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(e) the provisions of Article 13 with respect to the methods of returning executed Letters to the requesting authority;
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(f) the provisions of Article 14 with respect to fees and costs;
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(g) the provisions of Chapter II.
Between Parties to the present Convention who are also Parties to one or both of the
Conventions on Civil Procedure signed at the Hague on the 17th of July 1905 and the 1st of March 1954, this Convention
shall replace Articles 8-16 of the earlier Conventions.
Supplementary Agreements between Parties to the Conventions of 1905 and 1954 shall be considered as equally applicable to the present Convention unless the Parties
have otherwise agreed.
Without prejudice to the provisions of Articles 29 and 31, the present Convention shall not derogate from conventions containing provisions
on the matters covered by this Convention to which the Contracting States are, or
shall become Parties.
A State may, at the time of signature, ratification or accession exclude, in whole
or in part, the application of the provisions of paragraph 2 of Article 4 and of Chapter II. No other reservation shall be permitted.
Each Contracting State may at any time withdraw a reservation it has made; the reservation
shall cease to have effect on the sixtieth day after notification of the withdrawal.
When a State has made a reservation, any other State affected thereby may apply the
same rule against the reserving State.
A State may at any time withdraw or modify a declaration.
A Contracting State shall, at the time of the deposit of its instrument of ratification
or accession, or at a later date, inform the Ministry of Foreign Affairs of the Netherlands
of the designation of authorities, pursuant to Articles 2, 8, 24 and 25.
A Contracting State shall likewise inform the Ministry, where appropriate, of the
following -
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(a) the designation of the authorities to whom notice must be given, whose permission
may be required, and whose assistance may be invoked in the taking of evidence by
diplomatic officers and consular agents, pursuant to Articles 15, 16 and 18 respectively;
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(b) the designation of the authorities whose permission may be required in the taking
of evidence by commissioners pursuant to Article 17 and of those who may grant the assistance provided for in Article 18;
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(c) declarations pursuant to Articles 4, 8, 11, 15, 16, 17, 18, 23 and 27;
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(d) any withdrawal or modification of the above designations and declarations;
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(e) the withdrawal of any reservation.
Any difficulties which may arise between Contracting States in connection with the
operation of this Convention shall be settled through diplomatic channels.
The present Convention shall be open for signature by the States represented at the
Eleventh Session of the Hague Conference on Private International Law.
It shall be ratified, and the instruments of ratification shall be deposited with
the Ministry of Foreign Affairs of the Netherlands.
The present Convention shall enter into force on the sixtieth day after the deposit
of the third instrument of ratification referred to in the second paragraph of Article 37.
The Convention shall enter into force for each signatory State which ratifies subsequently
on the sixtieth day after the deposit of its instrument of ratification.
Any State not represented at the Eleventh Session of the Hague Conference on Private
International Law which is a Member of this Conference or of the United Nations or
of a specialized agency of that Organization, or a Party to the Statute of the International Court of Justice may accede to the present Convention after it has entered into force in accordance
with the first paragraph of Article 38.
The instrument of accession shall be deposited with the Ministry of Foreign Affairs
of the Netherlands.
The Convention shall enter into force for a State acceding to it on the sixtieth day
after the deposit of its instrument of accession.
The accession will have effect only as regards the relations between the acceding
State and such Contracting States as will have declared their acceptance of the accession.
Such declaration shall be deposited at the Ministry of Foreign Affairs of the Netherlands;
this Ministry shall forward, through diplomatic channels, a certified copy to each
of the Contracting States.
The Convention will enter into force as between the acceding State and the State that
has declared its acceptance of the accession on the sixtieth day after the deposit
of the declaration of acceptance.
Any State may, at the time of signature, ratification or accession, declare that the
present Convention shall extend to all the territories for the international relations
of which it is responsible, or to one or more of them. Such a declaration shall take
effect on the date of entry into force of the Convention for the State concerned.
At any time thereafter, such extensions shall be notified to the Ministry of Foreign
Affairs of the Netherlands.
The Convention shall enter into force for the territories mentioned in such an extension
on the sixtieth day after the notification indicated in the preceding paragraph.
The present Convention shall remain in force for five years from the date of its entry
into force in accordance with the first paragraph of Article 38, even for States which
have ratified it or acceded to it subsequently.
If there has been no denunciation, it shall be renewed tacitly every five years.
Any denunciation shall be notified to the Ministry of Foreign Affairs of the Netherlands
at least six months before the end of the five year period.
It may be limited to certain of the territories to which the Convention applies.
The denunciation shall have effect only as regards the State which has notified it.
The Convention shall remain in force for the other Contracting States.
The Ministry of Foreign Affairs of the Netherlands shall give notice to the States
referred to in Article 37, and to the States which have acceded in accordance with Article 39, of the following -
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(a) the signatures and ratifications referred to in Article 37;
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(b) the date on which the present Convention enters into force in accordance with the
first paragraph of Article 38;
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(c) the accessions referred to in Article 39 and the dates on which they take effect;
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(d) the extensions referred to in Article 40 and the dates on which they take effect;
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(e) the designations, reservations and declarations referred to in Articles 33 and 35;
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(f) the denunciations referred to in the third paragraph of Article 41.