International Litigation and the Quest for Reasonableness: Essays in Private International Law

By Andreas F. Lowenfeld | Go to book overview

8
More on Discovery: The Hague Evidence Convention

A. BACKGROUND AND OVERVIEW OF THE CONVENTION

In the preceding chapter, after a somewhat abstract discussion of fact-finding in American litigation, the cases used to illustrate the controversies over transnational discovery were all based on some kind of public law, from enemy property to antitrust to securities regulation to tax evasion and the drug trade. In this Chapter, addressed to the Hague Evidence Convention,1 we come back to the first strand of the Justizkonflikt, American private tort litigation, primarily based on liability for injuries caused by products alleged to be defective. Such litigation nearly always depends on some sort of fact-finding directed to the design and manufacture of the product. As the United States, which had been net exporter until the early 1970s, became a massive importer of automobiles and machinery, and European-made aircraft began to be involved in accidents in the United States, the Hague Evidence Convention took on increasing importance, viewed by some as an aid in procuring information located abroad, by others as a shield against disclosing such information.

The Evidence Convention is, of course, not limited to product liability litigation, and indeed it seems to work best in quite different types of cases-- procurement of birth and marriage certificates, wills, other routine items. The question is whether it helps or hinders collection of evidence in situations where one side has an incentive to block disclosure and production.

It is often forgotten that the initiative for the Hague Evidence Convention came largely from the United States,2 which had recently adopted unilaterally a highly liberal set of provisions concerning international judicial assistance.3 Having become a member of the Hague Conference on Private International

____________________
1
Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, signed at The Hague, Mar. 18, 1970, 847 U.N.T.S. 231. As of year-end 1995, the Convention had 26 parties, including the United States and all Member States of the European Community except Belgium, Greece, and Ireland.
2
See Memorandum of the United States with Respect to the Revision of Chapter II of the 1954 Convention on Civil Procedure, Conférence de la Haye, Actes et Documents de la Onzième Session, iv,15 ( 1968).
3
Pub. L. 88-619, 78 Stat. 995 (1964) adopting inter alia 28 U.S. Code § 1696 (Service in Foreign and International Litigation); § 1782 (Assistance to Foreign and International Tribunals); § 1783 (Subpoena of Person in foreign Country).

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