Decree of the Minister for Foreign Affairs No. 129 / 1976 Coll.
Decree of the Minister for Foreign Affairs on the Convention on the Implementation of Evidence in Foreign Affairs in Civil and Commercial Matters
Valid
Effective from 11.07.1976
129
DECLARATION
Minister for Foreign Affairs
of 23 August 1976
concerning the Convention on the conduct of evidence abroad in civil and commercial matters
On 18 March 1970, the Convention on the Implementation of Evidence in Foreign Affairs of Civil and Commercial Affairs was negotiated in The Hague at the XI meeting of the Hague Conference on Private International Law.
On behalf of the Czechoslovak Socialist Republic, the Convention was signed in The Hague on 6 February 1975.
The Convention has been approved by the Federal Assembly of the Czechoslovak Socialist Republic and the President of the Republic by the Federal Assembly of the Czechoslovak Socialist Republic and ratified it with a declaration on Article 16 according to which the evidence may be carried out in the territory of the Czechoslovak Socialist Republic without prior authorisation on the basis of reciprocity and with a declaration on Article 18, according to which the diplomatic representative, consular officer or agent authorised to carry out the evidence referred to in Articles 15, 16 and 17 may, on the basis of reciprocity, request the competent Czechoslovak court or Czechoslovak state notaries to which the file will be sent through the Ministry of Justice of the Czech Socialist Republic of Prague or the Ministry of Justice of the Slovak Socialist Republic of Bratislava.
The instruments of ratification of the Czechoslovak Socialist Republic were deposited with the Ministry of Foreign Affairs of the Kingdom of the Netherlands, depositary of the Convention, on 12 May 1976.
The Convention entered into force for the Czechoslovak Socialist Republic on 11 July 1976, pursuant to Article 38 (2) thereof.
The Czech translation of the Convention is being announced simultaneously.
Minister:
Ing. Chupek v. r.
CONVENTION
on the performance of evidence abroad in civil and commercial matters
Contracting States to this Convention,
Desiring to facilitate the sending and handling of requests and to allow the approximation of the various methods used for these purposes,
Desiring to improve mutual cooperation between judicial authorities in civil or commercial matters,
have decided to conclude the Convention for this purpose and have agreed on the following provisions:
Request
In civil and commercial matters, the judicial authority of a Contracting State may, in accordance with its own law, request by means of a request from the competent authority of another Contracting State that proof or other judicial action be carried out.
Requests may not be made for proof not intended for use in a court proceedings which takes place or will take place.
The term "other judicial acts' shall not include the service of judicial documents or interim measures and the enforcement of decisions.
Each Contracting State shall designate a central authority responsible for receiving requests received from the judicial authority of another Contracting State and transmit them to the competent authority for implementation. The organisation of the Central Authority shall be governed by the law of the requested State.
Requests shall be sent to the central authority of the requested State without the intermediary of another office of that State.
The application shall contain the following information:
(a) the designation of the applicant authority and, if possible, the requested authority;
(b) the designation and address of the participants or their representatives, as appropriate;
(c) the nature of the procedure in which the evidence is requested, stating all the facts necessary;
(d) the required evidence or other judicial acts to be carried out.
In justified cases, the request shall include, inter alia:
(e) the names and addresses of the persons to be heard,
(f) questions to be asked to the persons questioned or facts to be heard;
(h) a request that the proof be carried out under oath or a credible verification, as well as a specific form to be used;
(i) the specific method or procedure required to be used pursuant to Article 9.
The application may also contain the information necessary for the application of Article 11.
Verification or similar formalities may not be required.
The request shall be made out in the language of the requested authority or accompanied by a translation into that language.
However, each Member State shall accept a request made in French or English or if a translation is attached to one of those languages, unless it has applied the reservations provided for in Article 33.
Any Member State which has more than one official language and cannot accept a request in one of those languages for the whole of its national territory, taking into account national law, shall give notice of the declaration in which language the request is to be drawn up or translated with a view to its implementation in the specified parts of its territory. If the obligations arising from this declaration are not fulfilled without serious reasons, the costs of translation into the requested language shall be borne by the requesting State.
Each Member State may, by declaration, designate the language or languages other than those referred to in the preceding paragraphs in which the request may be sent to its central authority.
Any translation attached to the request shall be verified either by a diplomatic representative or by a consul or by an interpreter or by another person authorised to do so in one of the two countries.
If the Central Authority considers that the provisions of the Convention have not been complied with, it shall immediately inform the requesting State's authority which sent it the request and communicate its objections to the request.
If the authority to which the application has been submitted is not competent, it shall transmit it on its own initiative and without delay to the authority competent under the law of the requested State.
The requesting authority shall be informed, if it so requests, of the date and place where the proceedings are to be carried out so as to allow participants interested in it and, where appropriate, their representatives to participate. Such communication shall be sent directly to those parties or their representatives if the requesting authority so requests.
Each Contracting State may declare that the judicial officers of the requesting authority of another Contracting State may be present in the course of the proceedings. This measure may be subject to prior approval by the competent authority designated by the State which issued the declaration.
The judicial authority which makes the request shall apply the law of its State as regards the procedural procedure.
It shall, however, satisfy the request of the requesting authority to follow a specific form, unless that form is compatible with the law of the requested State, or that its use would not be possible either in view of the judicial practices of the requested State or for practical difficulties.
The request must be made promptly.
The requested enforcement authority shall use the requested enforcement authority in those cases and to the extent provided for by the law of the requested State in carrying out the requests by its authorities or at the request of the interested party.
A request shall not be made where the person to whom it relates relies on the exemption or prohibition of the production of evidence which is provided for:
(a) either by the law of the State of the requested person;
(b) or by the law of the requesting State, if indicated in the request and, where appropriate, confirmed by the requesting authority at the request of the requested authority.
In addition, any Contracting State may declare that it will recognise the authorisations and prohibitions laid down in the legal order of States other than those of the applicant and requested, to the extent set out in such a declaration.
The execution of the request may be refused only if:
(a) enforcement in the requested State is not within the jurisdiction of the judicial authorities; or
(b) the requested State concludes that, given the nature of the execution of the request, its sovereignty or security would be affected.
Enforcement may not be refused only because the national law of the requested State provides for exclusive jurisdiction in the case in question or because it does not allow the claim to be exercised by the action.
The documents relating to the application shall be sent by the requested authority to the requesting authority in the same way as used for the request.
If the request has not been made in whole or in part, the applicant authority must be informed immediately by the same means, stating the reasons.
An obligation to pay fees or costs may not arise from the execution of the application, irrespective of their nature.
The requested State may, however, require the requesting State to reimburse the fees paid to experts and interpreters and the costs associated with the use of the special form requested by the requesting State pursuant to Article 9 (2).
The requested authority, under whose legal order the parties themselves are obliged to provide evidence and which cannot carry out the request itself, may entrust the person eligible to do so, if the applicant authority so agrees. Upon request of such consent, the requested authority shall notify the approximate amount of costs that such a procedure would require. If the applicant authority gives its consent, it shall be obliged to reimburse these costs. If they do not give such consent, the applicant authority shall not be obliged to cover such costs.
Execution of evidence through diplomatic agents, consular officers and agents
A diplomatic representative or consular official of a Contracting State may, in civil or commercial matters, carry out, in the territory of another Contracting State and in the territory in which he carries out his duties, evidence without the use of coercive evidence for the purposes of proceedings brought before the court of the State which he represents as regards the members of that State.
Each Contracting State may declare that proof may be furnished by a diplomatic agent or consular officer only if, at their request or on their behalf, the competent authority which makes the declaration so authorises it.
The diplomatic representative or consular officer of a Contracting State may, in the territory of another Contracting State and in the territory in which he carries out his duties, carry out evidence without the use of coercion for the purposes of proceedings brought before the court of the State which he represents, as well as in respect of the members of the State where he carries out his duties or third State members, provided that:
(a) the competent authority designated by the State where it carries out its functions has authorised it either in general or in each case separately; and
(b) the diplomatic representative or consular officer shall observe the conditions laid down in his authorization by that competent authority.
Each Contracting State may declare that the evidence referred to in this Article may be carried out without prior authorisation.
In civil and commercial matters, any person duly empowered to do so may, without the use of coercive means in the territory of a Contracting State, produce evidence in matters relating to proceedings brought before a court of another Contracting State where:
(a) authorise the competent authority designated by the State where the operation is carried out either in general or for each individual case; and
(b) the conditions laid down by the competent authority in this authorisation shall be complied with.
Each Contracting State may declare that such evidence may be carried out without its prior consent.
Each Contracting State may declare that a diplomatic representative, consular officer or agent authorised to carry out the evidence referred to in Articles 15, 16 and 17 may contact the competent authority designated by that State with a request to be provided with the necessary assistance in carrying out the evidence, using coercion.
If the competent authority accepts such a request, it shall use enforcement measures which are proportionate and which are laid down for proceedings before its own authorities.
The competent authority may, when granting the consent referred to in Articles 15, 16 and 17 or the declaration referred to in Article 18, lay down the conditions which it considers appropriate in particular for the hour, date and place of execution of the proof. It may also require that this hour, date and place be communicated to it in advance and in due time; in that case, the representative of the abovementioned authority may be present when carrying out the proof.
In carrying out the evidence referred to in any of the Articles of this Part, interested parties may be legally represented.
Where a diplomatic representative, consular officer or agent is authorised to carry out the proof referred to in Article 15, 16 or 17,
(a) may carry out any evidence which is not incompatible with the law of the State where the operation is carried out or which is not contrary to the consent granted under the abovementioned Articles and under the same conditions to be heard under oath or under oath;
(b) any request for the person concerned to appear for evidence or to produce evidence shall be drawn up in the language of the place where the evidence is to be made or translated into that language, except where the person is not a national of the State where the proceedings are held;
(c) the summons shall state that the summons may be legally represented and shall refer to a State which has not made the declaration referred to in Article 18 that it is not obliged to appear or participate in the performance of the evidence;
(d) the taking of evidence may be carried out in a manner laid down by the law applicable to the court seised of proceedings, provided that such a method is not prohibited by the law of the State where the action is carried out;
(e) the person to whom the obligation of proof applies may appeal to the authorisations and prohibitions provided for in Article 11.
The fact that the evidence could not be furnished in accordance with the provisions of this Part because the person concerned refused to submit to it does not prevent the proof from being made available in accordance with the provisions of the first part.
General provisions
Each State may declare, at the time of signature, ratification or accession, that it will not make a request for proceedings known in the States of Common Law under the designation "pre-trial discovery of documents'.
Each Contracting State may delegate, in addition to the Central Authority, other authorities, specifying their scope. However, requests may always be sent to the central authority.
Federal states can identify more central authorities.
Any Contracting State in which more than one legal system is in force may entrust the authorities of one of those laws with the exclusive right to make a request under this Convention.
Any Contracting State whose constitutional rules so require may require the requesting State to make a request for compensation using means of enforcement to participate in the execution of the proof, the cost of participation of such a person and the cost of drawing up the record in the execution of the proof.
Where a State applies the provisions of the preceding paragraph, any other Contracting State may require it to pay the corresponding costs.
The provisions of this Convention shall not prevent a Contracting State from:
(a) declare that the request may be sent to its judicial authorities by means other than those provided for in Article 2;
(b) allow its internal rules or practice to carry out acts covered by the Convention under less restrictive conditions;
(c) allow, by virtue of its internal rules or practice, other means of carrying out evidence than those provided for in this Convention.
This Convention shall not prevent the Contracting States from agreeing to derogate:
(a) Article 2 as regards the means of sending requests;
(b) Article 4 as regards the use of languages;
(c) Article 8 as regards the presence of judicial officers in the course of the request;
(d) Article 11 as regards exemptions and prohibitions to testify;
(e) Article 13 as regards the dispatch of the request;
(f) Article 14 as regards cost adjustments;
(g) the provisions of Part II.
This Convention shall replace, in relations between the States to ratify it, Articles 8 to 16 of the Civil Procedure Conventions signed at The Hague on 17 July 1905 and 1 March 1954, provided that those States are Contracting Parties to any of those Conventions.
This Convention shall not affect the application of Article 23 of the 1905 Convention or Article 24 of the 1954 Convention.
Additional agreements between the Contracting States to the 1905 and 1954 Conventions may also be applied to this Convention, unless the relevant States agree otherwise.
This Convention shall be without prejudice to the conventions to which Contracting States are or will be parties and which contain provisions on matters governed by this Convention; This shall be without prejudice to Articles 29 to 31.
Each State may, when signing, ratifying or accessing, exclude, in whole or in part, the application of the provisions of the second paragraph of Article 4 as well as the second chapter. No other reservation is allowed.
Each Contracting State may at any time withdraw the reservation it makes; the validity of the reservation shall cease to exist on the 60th day following the notification of its appeal.
Once a State has made a reservation, any other State concerned may use the same procedure in relation to the State which made the reservation.
Each State may at any time withdraw or amend its declaration.
Each Contracting State shall notify the Ministry of Foreign Affairs: The Netherlands shall either deposit the instrument of ratification or accession or thereafter, the authorities referred to in Articles 2, 8, 24, 25.
They shall notify, where appropriate, under the same conditions:
(a) the mandates of the authorities to which diplomatic representatives or consular officers must contact pursuant to Article 16 and those authorities which may authorise or assist pursuant to Articles 15, 16 and 18;
(b) the mandate of the authorities which the agents may authorise under Article 17 or provide assistance under Article 18;
(c) a declaration relating to Articles 4, 8, 11, 15, 16, 17, 18, 23 and 27;
(d) any revocation or amendment of the above mandates and declarations;
(e) any revocation of reservations.
Disputes between the Contracting States in applying this Convention shall be discussed by diplomatic means.
This Convention may be signed by the States represented at the XI meeting of the Hague Conference on Private International Law.
The Convention will be ratified and instruments of ratification deposited with the Ministry of Foreign Affairs of the Netherlands.
This Convention shall enter into force 60 days after the deposit of the third instrument of ratification referred to in Article 37 (2).
The Convention shall enter into force for each Contracting State which ratifies it later on the 60th day following the deposit of the instrument of ratification.
Any State not represented at the XI. session of the Hague Conference on Private International Law, which is a member of the Conference or of the United Nations or its professional organisation or a Party to the Statute of the International Court of Justice, may accede to this Convention after its entry into force in accordance with Article 36 (1).
The Act of Access will be deposited with the Ministry of Foreign Affairs of the Netherlands.
The Convention shall enter into force for the acceding State on the 60th day following the deposit of the instrument of accession.
Accession is only effective in relations between the acceding State and the Contracting States which declare their agreement to the approach. This declaration shall be deposited with the Ministry of Foreign Affairs of the Netherlands, which shall send a certified copy by diplomatic means to each Contracting State.
The Convention shall enter into force between the acceding State and the State which has declared that it accepts this approach on the 60th day following the deposit of the declaration of acceptance.
Each State may declare, at the time of signature, ratification or accession, that this Convention applies to all territories which it represents from an international point of view, or to one or more of them. This declaration shall become effective as soon as the Convention for that State enters into force.
Later, any extension in this respect must be notified to the Ministry of Foreign Affairs of the Netherlands.
The Convention shall enter into force on the 60th day following the notification referred to in the preceding paragraph for the territories concerned by the enlargement.
This Convention shall apply for five years from the date of entry into force of Article 38 (1) also to States which ratify or accede to it at a later date.
The Convention will be resumed silently by five years, if not terminated.
The denunciation shall be notified to the Ministry of Foreign Affairs of the Netherlands no later than 6 months before the end of the five-year period.
The denunciation may be restricted to certain territories to which the Convention applies.
The denunciation will only be effective for the state that notified it. The Convention shall remain in force for the other Contracting States.
The Ministry of Foreign Affairs of the Netherlands shall notify the States referred to in Article 37 as well as the States which accede pursuant to Article 39:
(a) the signatures and ratifications referred to in Article 37;
(b) the date on which this Convention enters into force pursuant to Article 38 (1);
(c) the approaches referred to in Article 39 and the date on which they become effective;
(d) the extension referred to in Article 40 and the date on which it becomes effective;
(e) the mandates, reservations and declarations referred to in Articles 33 and 35;
(f) the statements referred to in Article 41 (3).
They have signed this Convention in order to prove that the undersigned is duly authorised.
In the Hague, on 18 March 1970 in the English and French languages, both texts being equally authentic, in one copy, to be deposited in the archives of the Government of the Netherlands, the certified copy of which will be transmitted by diplomatic channels to each State represented at the XI meeting of the Hague Conference on Private International Law.
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Regulation Information
| Citation | Decree of the Minister for Foreign Affairs No. 129 / 1976 Coll., on the performance of evidence abroad in civil and commercial matters |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 18.11.1976 |
|---|---|
| Effective from | 11.07.1976 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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