Academic journal article Texas International Law Journal

Another Look at the Hague Evidence Convention after Aerospatiale

Academic journal article Texas International Law Journal

Another Look at the Hague Evidence Convention after Aerospatiale

Article excerpt


It is a pleasure to join with you this afternoon, as we bring Aerospatiale1 out of mothballs and relaunch it at this conference. Selection of that case and its progeny is a further example of Russell Weintraub's characteristic insight and good judgment. Let me thank the Texas International Law Journal for giving me this opportunity to rethink and, in fact, revise some of my own thinking about Aerospatiale and the Hague Evidence Convention.2 The issues that they address are of the first order in international litigation. Indeed, "no aspect of international litigation has caused as much friction as the issue of discovery."3

Aerospatiale allowed a court to attempt to compel discovery of evidence in France against a French defendant. Famously or infamously, the Court simply applied the Federal Rules of Civil Procedure notwithstanding requirements to the contrary in the Evidence Convention that had been sanctioned by a French blocking statute.4 It was a cause celebre at the time even though the core issue could be viewed in different ways. On one level, the decision can be seen as simply an exercise in treaty interpretation. On another level, it is a conflict within our dualist constitutional system between a treaty and an act of Congress. On still another level, Aerospatiale is a choice-of-law case in which the Court weighed a rule of private international law-that the law of the forum governs issues of procedure and evidence-against a rule of private and public international law-that the law of the place where evidence is taken governs the process, including such issues as the role of judges and the extent of confidentiality. States must therefore consent to the scope and manner of evidence-taking on their territory. On that level, Aerospatiale can be seen as a victory of lex fori over some sort of lex loci.5 However the case might be viewed, the decision generated enormous controversy and commentary.6 Generally, scholars have seen it as a victory of xenophobia over international awareness, in Russell Weintraub's words.7

I joined in the chorus of disapproval of Aerospatiale primarily because of my concern that the courts had misapplied the Supremacy Clause of the United States Constitution8 in a classic conflict between an act of Congress and a treaty, between the permissive Federal Rules of Civil Procedure and the Evidence Convention. In my view, the normal means of resolving a conflict of this sort seemed to limit the taking of evidence to the procedures set forth in the Convention, at least as a first resort. The Charming Betsy principle,9 the laterin-time principle,10 and the apparent intent of the President and Congress to codify and progressively develop international custom for taking evidence abroad11 all seemed to support the paramountcy of the Evidence Convention. Moreover, the objects and purposes of the treaty itself-to bridge the chasm between civil law and common law methods of taking evidence and to improve judicial cooperation in civil and commercial matters 12would seem to counsel a reliance in cases like Aerospatiale on the Evidence Convention or at least a first resort to it.

The Convention's stated purpose of bridging the chasm between common law and civil law approaches is somewhat of a euphemism for dealing with U.S. practice. This country stands virtually alone, even among common law systems, in its enthusiasm for broad pre-trial discovery. The Convention, therefore, addresses not so much a profound conflict between civil law and common law traditions as it does the U.S. practice of broad discovery rights13 and direct judicial orders to compel discovery abroad.

Historically, other legal systems have been hostile not so much to discovery itself, but rather to an extravagant version of it-seeking unspecified information. This practice is what is characterized as "fishing expeditions" or "legal tourism." Opponents of broad discovery point to Rule 26(b) of the Federal Rules of Civil Procedure, which provides broadly that "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any party . …

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