(a) the document was transmitted by one of the methods provided for in this Convention,

(b) a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document,

(c) no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed.

Notwithstanding the provisions of the preceding paragraphs the judge may order, in case of urgency, any provisional or protective measures.

Article 16

When a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and a judgment has been entered against a defendant who has not appeared, the judge shall have the power to relieve the defendant from the effects of the expiration of the time for appeal from the judgment if the following conditions are fulfilled

(a) the defendant, without any fault on his part, did not have knowledge of the document in sufficient time to defend, or knowledge of the judgment in sufficient time to appeal, and

(b) the defendant has disclosed a prima facie defense to the action on the merits.

An application for relief may be filed only within a reasonable time after the defendant has knowledge of the judgment.

Each contracting State may declare that the application will not be entertained if it is filed after the expiration of a time to be stated in the declaration, but which shall in no case be less than one year following the date of the judgment.

This article shall not apply to judgments concerning status or capacity of persons.

In regard to the interpretation of art. 17 of the Convention, "Extrajudicial documents," the Dept. of State had replied in 1976 to an inquiry made through the American Consulate at Osaka-Kobe, in part as follows:

Department of State does not ordinarily suggest specific interpretations of treaty provisions because in U.S., courts as matter of law "have exclusive authority to interpret an international agreement to which the United States is a party for the purpose of applying it in litigation as the domestic law of the United States." (American Law Institute Restatement of the . . . Foreign Relations Law of the United States (1965), p. 461). Nevertheless, in preparing submission of a treaty by President to Senate for advice and consent to ratification, Department has followed practice of including a "letter of submittal" from Secretary of State to President, summarizing and explaining treaty provisions; and these materials are published as congressional documents. Courts may give great weight to Department's interpretations but are not bound by them.

Since it is not very likely Mr. . . . would have easy access to congressional documents in your consular district he may find helpful Department's explanation of article 17 of "Service Convention" set out in letter of submittal from Secretary of State Dean Rusk to President Lyndon B. Johnson:

"The first 16 articles comprise the chapter of the convention concerned with judicial documents. Article 17 brings extrajudicial documents 'emanating from authorities and judicial officers' within the scope of application of the convention. In actual practice, this is intended to include documents emanating from notaries under the continental system, or emanating from commissions or other quasi-judicial tribunals in our system." (Sen. Executive C, 90th Cong., 1st sess. (1967), p. 6.)

Report of Senate Committee on Foreign Relations on Convention included in its Appendix statement by Philip W. Amram, American attorney who was member of U.S. delegation to Tenth Hague Conference, October 7-28, 1964, and

also principal American spokesman in (Third) Committee of Conference, which drafted Convention. Mr. Amram stated in regard article 17:

"... Articles 1 and 17 refer to 'extrajudicial' documents. In the first place, these do not mean private documents of private individuals. They mean documents 'emanating from authorities and judicial officers' of a state. The legislative' [i.e., negotiating] history of the convention indicates that, in European practice, this is intended to include the official documents of a European notary. In U.S. practice, and also in England and Norway, it is intended to include the official documents of administrative agencies and commissions." (Sen. Exec. Rept. No. 6, 90th Cong., 1st sess., April 12, 1967, p. 14.)

Review of negotiating history of "Service Convention" discloses that in a questionnaire to states, prepared by Secretary of Permanent Bureau of Hague Conference (Droz) and circulated prior to Tenth Session, following examples of extrajudicial acts were given: "sommation de payer, mise en demeure, acte interruptif de prescription, notification d'une cession d'une créance au débiteur, etc." (III Conférence de la Haye de Droit International Privé, Actes et Documents de la Dixième Session, 7 au 28 octobre 1964, "Notification", La Haye, Imprimerie Nationale, 1965, p. 38.) According to Thomas A. Quemner, Dictionnaire Juridique, Paris, Editions de Navarre (1955), these terms have the following meanings:

"sommation de payer"

"mise en demeure"

"acte interruptif de prescription"

"notification d'une cession d'une créance au débiteur"

summons to pay

formal notice, summons to do something

act interrupting or suspending running of the statute of limitations notice to a debtor of the transfer of a debt or claim.

Thereafter a Special Committee prepared a Preliminary Draft (AvantProjet) Convention, dated February 14, 1964, for use of Tenth Session of Hague Conference, in which article 17 appeared as article 20 . . . .

Third Committee of Tenth Session considered article 20 of the Preliminary Draft Convention on October 24, 1964, and its discussions were recorded on pages 289-290 of Vol. III [Actes et Documents]. A proposal to specify that text of article 20 applied to extrajudicial documents or acts of notaries was defeated (7/3/10 abstentions); Japan and United States both voted against proposal. Mr. Amram noted that if internal law of the country specified that notary is a ministerial officer, formula of Preliminary Draft sufficed; if notary did not have this quality, his acts could not be taken into consideration. On October 26, 1964, Third Committee concluded its discussion of article 20, which had been renumbered in meantime article 18 . . . .

After adoption by Third Committee (ibid., p. 315), foregoing provision was submitted as article 17 (ibid., p. 322) to a plenary session on October 27 and 28. Upon suggestion by Mr. P. A. Terry, Principal Officer at Department of Justice of Republic of Eire, word "served" was replaced by formula "for the purpose of service" . . . and the English translation for article 17 which appears in text of "Service Convention" was specifically adopted:

"Extrajudicial documents emanating from authorities and judicial officers of a contracting State may be transmitted for the purpose of service in another contracting State by the methods and under the provisions of the present Convention." (Ibid., pp. 340, 350-351; U.S. TIAS 6638; 20 UST 361, 365; 658 UNTS 163, 175.)

Finally, Explanatory Report of Rapporteur (Taborda Ferreira), dated February 1966, states, in part:

"Notaries are not mentioned in the text because the formula of the Preliminary Draft (l'avant-projet) was sufficient for cases where the notary is a ministerial officer. On the other hand, in cases where the notary is not

considered by his State as a ministerial officer, it is the opinion that his acts will not be able to be taken into consideration for the purposes of the convention." (III Actes et Documents, p. 380.) (Unofficial translation)

Dept. of State airgram A-743 to American Consulate at Osaka-Kobe, Feb. 9, 1976, File No. P76 0018-1374.

See, further, the 1977 Digest, pp. 477-490.

The Hague Evidence Convention

The Hague Conference on Private International Law convoked a second Special Commission to study the operation of the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, done at The Hague, March 18, 1970 (TIAS 7444; 23 UST 2555; entered into force for the United States October 7, 1972). Mr. Bruno A. Ristau of the Department of Justice again served as the United States delegate to the Special Commission, which met at The Hague, June 12-15, 1978. Portions of his report to the Secretary of State, August 1978, follow:

BACKGROUND

The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters of March 18, 1970. . . establishes a reciprocal system of obtaining evidence for use in civil litigation or the performance of other judicial acts in the contracting states. The Convention is in some measure a revision and modernization of two earlier multilateral conventions on judicial assistance, namely, the Hague Conventions on Civil Procedure of 1905 and 1954 (which the United States did not join). It was designed to improve the existing system of Letters of Request and to enlarge the devices. for the taking of evidence by increasing the powers of consuls and by introducing, on a limited basis, the common law concept of a court-appointed commissioner.

WORK OF THE SPECIAL COMMISSION

The experts' discussions centered on the implementation of the Convention in the contracting states; the reservations and declarations made by the contracting states, and the reasons therefor; and difficulties encountered by contracting states with requests received from abroad. The experts were mindful that their principal task was to consider ways in which the existing Convention machinery could be made to work more effectively.

The annexed report [not reproduced in this Digest] prepared by the Permanent Bureau of the Hague Conference lists the topics discussed and contains a comprehensive summary of the experts' views; its contents will not be repeated here. The observations below are designed to highlight subjects of particular interest to the American. Bench and Bar, and to litigants in this country who wish to avail themselves of the Convention machinery to obtain evidence abroad.

1. Scope of the Convention

,

By its terms, judicial assistance available under the Convention is limited to "civil or commercial matters" (Preamble and Art. 1), a phrase which is not defined in the Convention. The negotiating history of the Convention shows that the phrase was adopted from the 1905 and 1954 Hague Conventions on Civil Procedure, and that any potential disagreement on the meaning of the phrase was to be settled through diplomatic channels (as provided for in Art. 36). A suggestion to permit the state of execution to decide unilaterally whether a matter was "civil or commercial" and to refuse a request for evidence was rejected by the negotiators.*

The discussions of the Special Commission made it manifest that civil law jurisdictions do not consider administrative mattersthough civil in nature-to be within the purview of the term "civil or commercial." Delegates and observers from those jurisdictions stressed that under their legal systems administrative matters have traditionally been the province of special administrative tribunals, applying a special body of substantive law, and that to a civil lawyer's mind there could be no question that "civil and commercial" cases were exclusive of "administrative" cases. The recent "European Convention on the Obtaining Abroad of Information and Evidence in Administrative Matters," adopted by the Council of Europe on March 15, 1978,5 was said to evidence clearly the distinction in continental jurisprudence between civil matters and administrative matters; there would be no need for a special convention on judicial assistance in administrative matters, if the existing Evidence Convention were deemed to cover such matters.

The United States delegate informed the Special Commission that the U.S. Central Authority, the Department of Justice, interprets the term "civil or commercial" liberally, and considers any foreign proceeding that is not criminal as "civil or commercial." Although no court of the United States has passed upon this administrative construction, the U.S. Central Authority would, under existing practice, honor requests under the Convention for evidence to be used in foreign administrative proceedings (including fiscal matters), civil suits drawing into issue the enforcement of public laws, and family relations matters. The United Kingdom delegate concurred in this interpretation and stated that the U.K. Central Authority followed the same practice as the United States.

6

The French delegate and the German observer agreed that although contracting states are unlikely ever to receive requests for evidence from administrative tribunals in their countries, their Central Authorities would be flexible when receiving foreign requests for evidence for use in what they would characterize under their municipal law as "administrative proceedings." Thus, although they would in all likelihood decline to honor a request from a U.S. tax court seeking information on behalf of the I.R.S. (on the theory that this would be tantamount to aiding in the enforcement of a foreign public or revenue law), they might well honor such a request when issued on behalf of a taxpayer (who might be deemed to defend his private property interests against the reach of the tax collector).

In sum, it became apparent that member states whose laws are based on the civil law system are unlikely to honor a request for evidence to be used before an American administrative court or agency, or in a civil action pending before the courts in which "governmental" or "public" as distinguished from "private"-rights are

in issue.

2. Type of "evidence" which can be sought under the Convention, and its intended use

Although the term "to obtain evidence," or its French equivalent "faire tout acte d'instruction", as used in Arts. 1 and 3 is not defined in the Convention, the experts were in agreement that the term should be liberally interpreted. The language found in U.S. domestic law (28 U.S.C. 1782 (a)) extending judicial assistance to the taking of testimony or statements and the production of documents or other things was regarded as describing fairly the type of "evidence" encompassed by the Convention.

A protracted discussion of the ultimate use to which evidence requested under the Convention may be put was precipitated by the United Kingdom delegate's reference to the recent House of Lords' decision in In re Westinghouse Electric Corporation Uranium Contract Litigation [1978] 2 W.L.R. 81; reprinted in XVII Int'l Legal Materials 38 (1978). In that case, an English court had ordered the execution of an American Letter of Request issued in aid of discovery requested by one of the parties to a private litigation (Westinghouse). Parallel to that litigation, a grand jury was also investigating certain transactions which were the subject of the Letter of Request, and the grand jury issued a subpoena to Westinghouse requiring the production of documents and testimony which Westinghouse might obtain from abroad. The House of Lords held that the lower court erred in ordering the execution of the Letter of Request on the ground, among others, that the Evidence Convention. relates solely to evidence for use in civil or commercial proceedings. "It cannot be right," said Viscount Dilhorne, "for a state to seek to avail itself for the purpose of securing evidence for criminal proceedings, of the obligations accepted by another state in respect of the furnishing of evidence for civil or commercial proceedings." And elsewhere, the same opinion continued:

"In other cases it may not be so clear that one of the main purposes in [sic] which the issue of letters rogatory seeks to achieve--and whatever may have been the purpose when they were issued, it is now one of the main purposes of the letters in this case is the securing of evidence for a grand jury in an antitrust investigation from British nationals and British companies not subject to United States jurisdiction. But I hope that the courts of this country will always be vigilant to prevent a misuse of the Convention and will not make an order requiring evidence to be given by such persons unless it is clearly established that even if it is required for civil proceedings, it is not also sought for criminal." The United States delegate raised the question whether, in light of this language, there now existed a risk for requests to be refused