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LawQuest 2012. All Rights are Reserved. 1

American Citizen Services Workshop The Hague Convention on Leading

Evidence

by Poorvi Chothani, Esq.LawQuest

www.lawquestinternational.com

September 20, 2012
http://www.lawquestinternational.com/http://www.lawquestinternational.com/


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Two Options for Taking Evidence in India For a

Dispute Before a Foreign Court1. Using the Hague Convention on the Taking of Evidence

Abroad in Civil or Commercial Matters

2. Under the Indian Civil Procedure Code, 1908 (CPC)

India has not enacted a special law to give effect to the Hague

Convention

The convention does not take away powers of the courts under

the CPC.

2009 response to questionnaire the Hague Convention can

implemented through S 78, O 26 and Rules 19-22 of the CPC


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The Hague Convention on the Taking of

Evidence Abroad in Civil or Commercial Matters

(the Hague Convention)

The Hague Convention was concluded on 18 March

1970, and came into force on 7 October 1972. Indiaratified the Hague Convention on 7 February 2007.

The Hague Convention on the Taking of EvidenceAbroad in Civil or Commercial Matters (the Hague

Convention) establishes methods of co-operation for thetaking of evidence abroad in civil or commercial matters.


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The Hague Convention

Objective of the Hague Convention

Central Authority under the Hague Convention

Reservation/Declaration made by India to the

Hague Letter of Request

Pre-trial discovery of documents

What is Evidence?

Procedure for taking evidence in India Approach of Indian Courts


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Objective of the Hague Convention

The primary objective of the Hague Commission was to

facilitate the transmission and execution of the Letter of

Request.

It further aims at improving mutual judicial co-operation in

civil and commercial matters.

The Hague Convention allows for discovery of documents

and testimony by means of a of a Letter of Request.

The contracting States to the Hague Convention are

required to establish a Central Authority responsible for

accepting and processing Letters of Request from other

contracting States.


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Documenting Evidence

The Hague Convention applies only between

state parties and provides for the taking of

evidence:

by means of letters of request

by diplomatic or consular agents andcommissioners.


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What is Letter of Request?

Letter of Request:

Is a formal communication in writing;

Which may be sent by a foreign court in which

action is pending to a court or judge in India;

It is a request that the testimony of a witnessresiding within the jurisdiction of the Indian court

may be formally taken by that court.


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Letter of Request

Article 1 of the Hague Convention authorizes ajudicial authority of one state party to request thecentral authority of another state party, by meansof a letter of request for the following purposes

to obtain evidence;

to perform some other judicial act.


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Letter of Request

Article 2 requires each state party to nominate a

Central Authority in accordance with its own law.

India has designated the Indian Ministry of Law and

Justice, and the high courts in all states and unionterritory as central authorities to receive letters of

request from judicial authorities of contracting

states.

In practice these requests are handled by thecourts.


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Letter of Request

Article 3 sets out the material particulars thatneed to be specified in the letter of request.

Letter of Request shall specify

a) The authority requesting its execution and the authority

requested to execute it, if known to the requesting authority

(U.S. Courts);

b) The names and addresses of the parties to the proceedings

and their representatives, if any;

c) The nature of the proceedings for which the evidence is

required, giving all necessary information in regard thereto;d) The evidence to be obtained or other judicial act to be

performed.


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Article 3 Components - Letter of Request

Where appropriate, the Letter shall specify, inter alia

The names and addresses of the persons to be examined;

The questions to be put to the persons to be examined or a statement ofthe subject-matter about which they are to be examined;

The documents or other property, real or personal, to be inspected;

Any requirement that the evidence is to be given on oath or affirmation,and any special form to be used;

A Letter may also mention any information necessary for the applicationof Article 11regarding privilege or duty to refuse;

No legalization or other like formality may be required.Contd


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Article 2 Designation of Authority

India is required to designate a Central

Authority to receive Letters of Request

a) The Ministry of Law and Justice and the High

Courts in all States and Union Territories in India

b) The district court in whose territory the evidence is

to be taken.c) The Central Authority and the relevant court.


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Article 8 and 9

Article 8 of the Hague Convention provides an option toallow the participation of members of the judicialpersonnel of the requesting state, the parties and/or theirrepresentatives in executing the letter of request.

Under Article 9 The requesting authority may alsorequest the use of a special method or procedure forexecution of the letter of request, provided that it is notincompatible with the law of the state addressed or

impossible to perform.


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Competent Authority Under Article 8

India may declare that members of thejudicial personnel of the requesting authority

may be present at the execution of a LoR.

Prior permission of the competent authority isrequired.

Indias Competent Authority: The CentralAuthority and the concerned court


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Article 15

Diplomatic officers or Consular agents of

member states may take evidence from his

fellow nationals in another member state: India

has not provided for this as it is optional


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Article 16

India may authorize diplomatic officers or consularagents to take evidence. Decision to be made by

competent authority. India has designated:

a) The Ministry of Law and Justice and the High Courts in

all States and Union Territories in Indiab) The district court in whose territory the evidence is to

be taken.

c) The Central Authority and the relevant court.

as the Competent authority.

India has not waived the need for permission under this articlethough it has the power to do so.


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Article 17- Appointment ofCommissioner

General or specific permission granting powers to take evidenceas a commissioner. India requires applications for such

permissions to be make in each case and has not waived this

requirement though the Hague Convention allows for it. India

has designated the following to be the competentauthority:

a) The Ministry of Law and Justice and the High Courts in

all States and Union Territories in India

b) The district court in whose territory the evidence is to be

taken.

c) The Central Authority and the relevant court.India has not waived the need for permission under this article thoughit has the power to do so.


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Article 18 Use of Compulsion

Competent Authority under Article 18 which allows a

consular agent or diplomatic officer authorized to take

evidence under Articles 15,* 16, or a duly appointed

commissioner under Article 17 to obtain evidence by

compulsion after obtaining prior permission.

If granted the authority shall apply any measures of lawful

and appropriate compulsion.

The District Court within the territory of which the evidencehas to be taken.

*India has not appointed a competent authority under Article 15.


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LawQuest 2012. All Rights are Reserved.

Article 21 Diplomats or Consular

Agents as Commissioners May take evidence that is compatible with the

law and not contrary to the permission granted

Request for person to appear to be in locallanguage or with a translation

Evidence under compulsion allowed as India

has appointed authority under A 18

Evidence as per manner of the foreign court

unless it is forbidden in India

Person may invoke inability under A 11

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Indias Reservations and Declarations

under The Hague Convention All requests under the Convention shall be in the English

language, or accompanied with an English translation.

Subject to prior authorization of the Central Authority and the

concerned court, members of the judicial personnel of the requestingContracting Party may be present at the execution of a letter of request.

Evidence by diplomatic officers or consular agents of Indian nationalsor nationals of a third State under Article 16 of the Convention can betaken with the prior permission of the Central Authority.

In accordance with Article 18, a diplomatic or consular officer ora commissioner authorized under Article 15, 16 and 17 mayapply for appropriate assistance to obtain the evidence by compulsionto the District Court within whose territory the evidence is to be taken.


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Pre-Trial Discovery ofDocuments Article 23 of the Hague Convention specifically provides that a

contracting State could make a declaration that it will notexecute Letters of Request issued for the purpose of obtainingpre-trial discovery of documents as known in Common Lawcountries.

Contracting States which have executed a declaration underArticle 23 are: Argentina, Australia, Bulgaria, China, Cyprus,Denmark, Estonia, Finland, France, Germany, Greece,Hungary, India, Italy, Lithuania, Luxembourg, Mexico, Monaco,Netherlands, Norway, Poland, Portugal, Romania, SouthAfrica, Seychelles, Singapore, Spain, Sri Lanka, Sweden,Switzerland, Turkey, Ukraine, United Kingdom, Venezuela.


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Expression "Evidence" Includes

Production of Documents

The expression "Evidence" is confined to one or

other mode of evidence and it extends to both

oral testimony as well as production of

documents through the named witnesses.


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Letters of Request Under the Indian Law

Certain conditions are required to be satisfied forexecution of letters of request:

1. A foreign court should wish to obtain evidence of awitness in any proceeding of civil nature before it; and

2. The witness should be residing within the appellatejurisdiction of the High Court before which the requestis placed.


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Letters of Request Under the Civil

Procedure Code

S 75 of the Code of Civil Procedure (CPC) provides thatan Indian court may issue a commission, among otherthings to: (a) Examine any person

S78 of the CPC provides for leading evidence(examination of witnesses) under a commission incertain cases including when a request is made by (c)courts of any State or country outside India.

Order 26, Rule 19 to 22 of the CPC


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Indian Civil Procedure Code

Section 78: Commissions issued by foreign courts.

Subject to such conditions and limitations as may be prescribed, theprovisions as to the execution and return of commissions for theexamination of witnesses shall apply to commissions issued by or atthe instance of-

a) Courts situate in any part of India to which the provisions of this Code donot extend; or

a) Courts established or continued by the authority of the CentralGovernment outside India; or

b) Courts of any State or country outside India.

Section 78 of the CPC must be read with Order 26 Rules 19 to 22. Theobject of Section 78(c) of CPC is to facilitate collection of evidencepursuant to a request received from a foreign court.


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O 26 Rule 16 - Powers of Commissioners

To examine the parties themselves and any

witness whom they produce

To examine other persons whom Commissioner

thinks appropriate To call for and examine documents and other

things relevant to the subject of inquiry

To, at any reasonable time, enter upon or intoany land or building mentioned in the order of

the court

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O 26 Rule 19 of the Civil Procedure Code

a) A foreign court situated in a foreign country wishing to

obtain the evidence from a witness provided

b) That the proceeding is of a civil nature

c) That the witness is residing within the limits of the High

Court's appellate jurisdiction, it may, subject to the

provisions of Rule 20, issue a commission for the

examination of such witness.


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O 26 Rule 19 (1) Issuance of

Commission

If the High Court is satisfied:

(a) That a foreign court wishes to obtain evidence of a

witness in any proceeding before it

(b) That the proceeding is of a civil nature

(c) That the witness is residing within its appellate

jurisdiction


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O 26 Rule 19 (2) - Manner of Evidence

(a) by a certificate signed by the consular officer of the foreign

country of the highest rank in India and transmitted to the High

Court through the Central Government, or

(b) by a letter of request issued by the foreign court andtransmitted to the High Court through the Central

Government, or

(c) by a letter of request issued by the foreign court and

produced before the High Court by a party to theproceedings.


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O 26 Rule 20 Application for Issue of

CommissionThe High Court may issue a commission :

a) Upon application by a party to the proceedings before theforeign court, or

b) Upon an application by a law officer of the State

Government acting under instructions from the StateGovernment.


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O 26 Rule 21 To Whom Can

Commission be Issued?

To any court within the local limits of whose jurisdiction

the witness resides

To any person whom the court thinks fit to execute the

commission where the witness resides within the local

limits of the ordinary original civil jurisdiction of the High

Court


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O 26 Rule 22 - Issuance, Execution and

Return of Commission

When any commission has been duly executed it shall

be returned, together with the evidence taken under it, to

the High Court, which shall forward it to the CentralGovernment, along with the letter of request for

transmission to the foreign court.


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Summary of The Procedure for Taking

Evidence in India

Issuance of a Letter of Request by a foreign court

Submitting request before the concerned Court in India

Indian court to appoint a commissioner and issue a direction tohim as it may deem fit and appropriate.

Commissioner fixes a date for recording of evidence. The evidence is recorded in the manner desired by the foreign

court as long as it is feasible and not contrary to Indian laws.

India does not use Court Reporters

Recorded evidence to be filed in the Court by the Commissioner

Court either forwards it to the central government which wouldtransmit it to the foreign court issuing the request

Or may allow the entire record of the Commissioners report betransmitted by the applicant directly to the foreign court.

Expenses borne by party seeking to take evidence


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Other Relevant Rules

Rule 6: Court to examine witness pursuant to Commission. Every Court receiving a commission for the examination of any person shall

examine him or cause him to be examined pursuant to the order.

Rule 15: Expenses of commission to be paid into Court

Before issuing any commission under this Order, the Court may order such sum(if any) as it thinks reasonable for the expenses of the commission to be, within

a time to be fixed, paid into Court by the party at whose instance or for whose

benefit the commission is issued.

Rule 16A Questions objected to before the Commissioner

Where any question put to a witness is objected to by a party or his pleader in

proceedings before a Commissioner appointed under this Order, the

Commissioner shall take down the question, the answer, the objections and the

name of the party or, as the case may be, the pleader so objecting.


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Other Relevant rules

Provided that the Commissioner shall not take down the answer to a

question which is objected to on the ground of privilege but may continue

with the examination of the witness, leaving the party to get the question of

privilege decided by the Court, and, where the Court decides that there is

no question of privilege, the witness may be recalled by the Commissioner

and examined by him or the witness may be examined by the Court with

regard to the question which was objected to on the ground of privilege.

Rule 17: Attendance and examination of witnesses before Commissioner

The provisions of this Code relating to the summoning, attendance and

examination of witnesses, and to the remuneration of, and penalties to be

imposed upon, witnesses, shall apply to persons required to give evidence

or to produce documents under this Order whether the commission inexecution of which they are so required has been issued by a Court situate

within or by a Court situate beyond the limits of 1[India], and for the

purposes of this rule the Commissioner shall be deemed to be a Civil Court.


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Penalties for Failure to Appear as a Witness

Before a CommissionerSection 32 of the Code of Civil Procedure provides for the

following:

a) Issue warrant for his arrestb) Attach and sell his property

c) Impose a fine upon him not exceeding Rs. 5,000/-

d) Order him to furnish security for his appearance and in

default commit him to civil prison.


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Limitations on Courts Powers

Cannot go into the appropriateness or

relevance of a Letter of Request

Cannot go into the relevance or

admissibility of evidence

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Refusal to Execute Letters ofRequest

A letter of request can be refused only in specific cases:

When the person to be questioned asserts a privilege

or duty to refuse to give evidence.

When the execution of the Letter of Request does not

fall within the jurisdiction of the state addressed.

When the state addressed considers that its

sovereignty or security would be prejudiced.


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L Q t 2012 All Ri ht R d

Thank You

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