Academic journal article Texas International Law Journal

The Incredible Shrinking Hague Evidence Convention

Academic journal article Texas International Law Journal

The Incredible Shrinking Hague Evidence Convention

Article excerpt


The United States has not been a particularly good sport when it comes to private international law conventions. One of the most important international organizations to which the United States belongs is the Hague Conference on Private International Law. The Hague Conference was founded in 1893 at the behest of the Dutch government.1 Its current organizational statute provides that the Conference is "to work for the progressive unification of the rules of private international law"2-what we Americans call the "conflict of laws."3 The United States joined as a member in 1964.(4) Since then, however, the United States has ratified only four of the Hague's Conventions.5

Two of the most important conventions ratified by the United States are the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters(6) and the Convention on the Taking of Evidence Abroad in Civil and Commercial Matters.(7) With regard to both, however, the U.S. Supreme Court has interpreted them in ways rendering them essentially "add-ons" to existing U.S. procedures. IMAGE FORMULA10

In Volkswagenwerk Aktiengesellschaft v. Schlunk, the Supreme Court read the Service Convention so as not to apply if the documents to be served did not have to be taken physically outside of the United States.8 In so doing, the Court upheld the lower court's rather dubious imputation of an agency relationship to a German car manufacturer and its U.S. subsidiary, thus allowing the plaintiff to proceed against both defendants merely by serving the U.S. subsidiary at its Illinois office.

In Societe Nationale Industrielle Aerospatiale v. United States District Court-as discussed at more length below-the Court found the Evidence Convention to be largely supplemental to the available discovery procedures provided for by the Federal Rules of Civil Procedure.9 In that case, the Court held that discovery against a French aircraft manufacturer could proceed under the Federal Rules without so much as an effort to first invoke the Hague processes, notwithstanding some weighty counter-considerations to allowing the discovery, including the French blocking statute.10 The Court stated that the Hague processes might be mandatory in some circumstances if allowing Federal Rules discovery were "unreasonable," but delegated this reasonableness inquiry to trial courts for a case-by-case determination.11

In both Schlunk and Aerospatiale, the Court went to some length to assure all concerned that these interpretations did not de facto read these conventions out of existence. In Schlunk the Court pointed out that compliance with the Service Convention might be a desirable hedge in the event that the efforts at domestic service proved ineffective,12 and in Aerospatiale the Court was careful to paint the reasonableness test as something other than an abandonment of the Evidence Convention.13

My purpose, in part, is to review Aerospatiale's progeny to determine whether the reasonableness test has proved to be an effective check on full-fledged Federal Rules discovery against foreign defendants. My conclusion is that, for the most part, it has not. Though there have been some notable counterexamples, in large part the delegation of the reasonableness inquiry to trial courts-subject only to deferential "abuse of discretion" review by appellate courts-has caused lower courts to gravitate toward authorizing Federal Rules discovery.

This outcome was predictable. Busy trial courts, anxious to have the litigants meet discovery cut-offs and other case-management deadlines, are understandably drawn to the familiar, and often faster, local procedures. It requires a fair amount of fortitude for a trial judge, who faces little chance of reversal whatever the decision might be, to require a litigant to first pursue discovery under the Evidence Convention. The Supreme Court majority should have anticipated this reality-if for no other reason than that the Aerospatiale dissent pointed it out. …

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