Abstract
The Project on International Procedure of the Columbia University School of Law was organized in June 1960 to prepare studies on foreign systems of civil procedure1 and to assist the Commission and Advisory Committee on International Rules of Judicial Procedure. The Commission and Advisory Committee were created by Act of the United States Congress of September 2, 1958,2 to study practice and procedures of international co-operation in litigation3 prevailing in the relations between the United States and foreign nations with a view to achieving improvements.4
LL.B. 1946, LL.M. 1949, University of Amsterdam ; M.A. 1953, LL.B. 1958, Columbia University ; Professor of Law, Columbia University; Director, Project on International Procedure, Columbia University.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Preview
Unable to display preview. Download preview PDF.
References
Books on civil procedure in France, Italy, and Sweden, prepared under the auspices of the Project, have been completed recently. They are published by Martinus Nijhoff, The Hague, The Netherlands.
72 Stat. 1743. The lives of the Commission and the Advisory Committee have been extended by Act of September 16, 1959, 73 Stat. 567, by Act of September 26, 1961, 75 Stat. 685, and by Act of August 30, 1964, 78 Stat. 700.
For a definition of the term international co-operation in litigation, see text at note 18 infra.
Act of September 2, 1958, § 2, 72 Stat. 1743.
The Commission and the Project collaboratively developed A Proposed Bill to Improve Judicial Procedures for Serving Documents, Obtaining Evidence, and Proving Documents in Litigation with International Aspects which was signed into law on October 3, 1964, as Public Law 88-619, 78 Stat. 995 [hereinafter New Statute]. It is set forth with accompanying explanatory notes in Appendix A. The initiative towards the development of new Rule 4(i), amended Rule 26(c), amended Rule 28(b), proposed amended Rule 44, proposed new Rule 44.1 of the Federal Rules of Civil Procedure, and of proposed new Rule 26.1 of the Federal Rules Rules of Criminal Procedure was also taken by the Commission and the Project, which collaborated closely with the Advisory Committee on Civil Rules and the Advisory Committee on Criminal Rules of the Standing Committee on Rules of Practice and Procedure of the Judicial Conference of the United States and their reporters, Professor Benjamin Kaplan of the Harvard Law School, and Professor Edward L. Barrett Jr. of the University of California School of Law. On the role of the Project and Commission in developing these rules, see also Smit, New Federal Rules of Civil Procedure Regulating Service and the Taking of Depositions in a Foreign Country, 11 Am. J. Comp. L. 436 (1962). The new and amended rules and proposals for further reform are set forth in Appendix B.
Proposals for reform at the state level have taken the form of a uniform act, developed collaboratively by the National Conference of Commissioners on Uniform State Laws, the Commission, and the Project. Uniform Interstate AND International Procedure Act, 1962 Handbook OF THE National Conference OF Commissioners ON Uniform State Laws 219-41 [hereinafter Uniform Act]. The Uniform Act was approved by the National Conference of Commissioners on Uniform State Laws at its 1963 summer meeting at Monterey. Thus far, it has been adopted with some modifications by Arkansas. It is set forth together with explanatory notes in Appendix C.
In collaborating with the Commission and other official bodies, the Project generally did the basic research and initial drafting. Before being submitted to the Commission and other official bodies, the initial drafts passed through a drafting group appointed by them Comission, and consisting of Judge Albert B. Maris, Chairman; Philip W. Amram; Harry LeRoy Jones; Professor Rudolf B. Schlesinger; Charles J. Zinn; and Professors Paul R. Hays, Arthur R. Miller, Willis L. M. Reese, Maurice Rosenberg, Henry P. de Vries, and Jack B. Weinstein. The editor acted as reporter both to the drafting group and to the plenary sessions of the Commission, Advisory Committee, and the Project.
These essays will be presented to the President of the United States in further discharge of the Commission’s statutorily assigned task of studying international co-operation in litigation with a view to suggesting improvements. Act of September 2, 1958, § 2, 72 Stat. 1743.
Of course, obstacles that cannot be removed by domestic reform continue to exist — for example, Swiss objections to the making of service or the taking of depositions by American officials on Swiss territory, see ch. 15, text at notes 5-8, 15-18-, but the flexibility introduced by the measures of reform generally permit utilization of a method that avoids foreign prohibitions or objections. See further text at notes 51-65, 66-79 infra.
See text at notes 83-93 infra.
See, e.g., ch. 16, text at notes 117-119 (Holland); ch. 8, text at notes 234-235 (Germany).
Officials consulted in the foreign countries, the procedures of which are discussed in this book, generally report that the application of measures of compulsion appears necessary only in exceptional cases.
See the survey by Lord Dunboyne, in Service and Evidence Abroad under English Civil Procedure, 29 Geo. Wash. L. Rev. 509, 516-17 (1961). Significantly, the English treaty with Germany, a country that offers only limited co-operation and therefore is a most likely candidate for a liberalizing treaty, specifically forbids the application of any compulsory powers in depositions before English consular or diplomatic officers. See German-British Convention on Legal Intercourse of March 20, 1928, art. 11(b), Bülow & Arnold, Internationaler Rechtsverkehr 333.11 (Munich & Berlin 1960).
On the distribution of judicial business among the federal and state courts, see generally Wright, Handbook ON THE Law OF THE Federal Courts chs. 2-5, 8 (1963).
See generally Smit & Miller, International CO-Operation IN Civil Litigation-A Report ON Practices AND Procedures Prevailing IN THE United States (Milan 1961).
It may differ in detail depending on the elaboration provided by local court rules. See, e.g., Smit & Miller, op. cit. supra note 15, at 12 n. 24.
See Smit & Miller, op. cit. supra note 15, at 40-48.
In a broad sense, the term may be used to encompass all forms of assistance rendered by one state in connection with judicial proceedings in another, including assistance rendered in the recognition of foreign judgments and in connection with extradition proceedings. However, unless the context indicates otherwise, it will be employed only in the more limited meaning indicated in the text. The term “international judicial assistance” is frequently used to denote the co-operation described in the text. See, e.g., Jones, International Judicial Assistance — Procedural Chaos and a Program for Reform, 62 Yale L. J. 515 (1953). It is avoided in this book, since the co-operation considered goes beyond co-operation rendered to and by judicial authorities and embraces co-operation by other authorities to private litigants.
See Fourth Annual Report OF THE Commission ON International Rules OF Judicial Procedure (1963) [hereinafter Fourth Annual Report]; Smit & Miller, op. cit. supra note 15; Smit, International Aspects of Federal Civil Procedure, 61 Colum. L. Rev. 1031 (1961); Smit, Assistance Rendered by the United States in Proceedings before International Tribunals, 62 Colum. L. Rev. 1264 (1962).
See Smit, infra note 61; Kaplan, infra note 61. Proposals to amend Rule 44, relating to the proof of foreign official records, and to adopt a new Rule 44.1, relating to proof of foreign law, are presently under consideration. The same is true of a proposal to incorporate a rule relating to proof of foreign law in the Federal Rules of Criminal Procedure. For the text of these proposals, see Appendix B.
See Appendix C; note 6 supra.
Public Law 88-619, 78 Stat. 995 (1964). For its text, see Appendix A. See also note 5 supra.
For more extensive treatment of prior law, see Smit & Miller, op. cit. supra note 15.
New 28 U.S.C. § 1696(b), New Statute § 4, supra note 5. See also explanatory note to this section set forth in Fourth Annual Report, supra note 19, at 38.
Uniform Act, supra note 6, § 2.04(b).
56 Misc. 319, 107 N.Y. SUPP. 621 (Sup. Ct. N.Y. City 1907).
261 Fed. 652 (S.D.N.Y. 1919).
For criticism of these cases, see Smit & Miller, op. cit. supra note 15, at 8-9.
New 28 U.S.C. § 1696(a), New Statute § 4, supra note 5; Uniform Act § 2.04(a), supra note 6.
New 28 U.S.C. § 1696(c), New Statute § 4, supra note 5; Uniform Act § 2.04(c), supra note 6.
On this and other prerequisites to recognition, see Smit, International Res Judicata and Collateral Estoppel in the United States, 9 U.C.L.A. L. Rev. 44, 50-52 (1962).
New 28 U.S.C. § 1782(b), New Statute § 9, supra note 5; Uniform Act § 3.02(b) supra note 6.
New 28 U.S.C. § 1782(a), New Statute § 9, supra note 5; Uniform Act. § 3.02(a), supra note 6.
See note 33 supra; Smit & Miller, op. cit. supra note 15, at 9-22.
See Smit & Miller, op. cit. supra note 15, at 10.
22 Code Fed. Reg. § 92.67 (1964).
See McCusker, Some United States Practices in International Judicial Assistance, 37 Dep’t OF State Bull. 808 (1957).
See note 36 supra.
New 28 U.S.C. § 1781, New Statute § 8, supra note 5.
New 28 U.S.C. § 1782(a), New Statute § 9, supra note 5; Uniform Act § 3.02(a), supra note 6.
Ibid. Under old 28 U.S.C. § 1782, there was a question as to whether a person who had no authority to administer oaths could be commissioned. See Smit & Miller, op. cit. supra note 15, at 13.
New 28 U.S.C. § 1782(a) (last sentence), New Statute §9, supra note 5. The statement in the text does not imply that an American court will apply only privileges recognized by internal law. The applicable rule of private international law may well point to foreign rules of privilege and competence, which will then be applied even though their application has not been requested by the foreign court or litigant. See Weinstein. Recognition in the United States of the Privileges of Another Jurisdiction, 56 Colum. L. Rev. 535 (1956). American courts may disregard American rules of privilege or competence to the extent they do not reflect public policy. New 28 U.S.C. § 1782(a) has deliberately been phrased broadly so as to leave room for appropriate case law developments.
See Fed. R. Civ. P. 37(b) (1), 45 (f); Smit & Miller, op. cit. supra note 15, at 12.
New 28 U.S.C. § 1782(b), New Statute § 9, supra note 5; Uniform Act § 3.02(b) supra note 6.
New 28 U.S.C. § 1782(a), New Statute §9, supra note 5; Uniform Act § 3.02(a), supra note 6.
See, e.g., Fed. R. Civ. P. 44. On this subject generally, see Smit, International Aspects of Federal Civil Procedure, 61 Colum. L. Rev. 1031, 1059-71 (1961).
For examples, see 5 Wigmore, Evidence § 1678 (3d ed. 1940).
See Smit & Miller, op. cit. supra note 15, at 26-27.
Ibid.
This type of assistance is included in that provided for in new 28 U.S.C. § 1782, New Statute § 9, supra note 5, and in Uniform Act § 3.02, supra note 6.
See generally Smit & Miller, op. cit. supra note 15, at 40-48; Smit, supra note 46, at 1032-56.
Fed. R. Civ. P. 4(c) provides that service of all process shall be made by a United States marshal, by his deputy, or by some person specifically appointed by the court for that purpose. However, federal marshals do not comply with requests that would require them to go to a foreign country to make service.
The sheriff is frequently authorized to make service by state laws. See Smit & Miller, op. cit. supra note 15, at 46. However, American sheriffs will ordinarily not comply with a request that they go to a foreign country to make service.
See specifically 28 U.S.C. §§ 1783, 1784 (1950).
See note 52 supra.
See Smit & Miller, op. cit. supra note 15, at 46.
Ibid.
See, e.g., Fed. R. Civ. P. 45(c).
See generally Smit & Miller, op. cit. supra note 15, at 40-48.
See, e.g., Fed. R. Civ. P. 4(g).
Effective as of July 1, 1963. On this rule, see also Kaplan, Amendments to the Federal Rules of Civil Procedure, 1961-1963 (I), 77 Harv. L. Rev. 601, 635-37 (1964); Smit, New Federal Rules of Civil Procedure Regulating Service and the Taking of Depositions in a Foreign Country, 11 AM. J. Comp. L. 436, 437-40 (1962); Appendix B.
See note 6 supra; Appendix C. See also Smit, The Uniform Interstate and International Procedure Act approved by the National Conference of Commissioners on Uniform State Laws: A New Era Commences, 11 AM. J. Comp. L. 415 (1962).
The difference may be significant depending on the extent to which the foreign country permits the various manners of service authorized by Rule 4(i) and Article II of the Uniform Act. See, e.g., ch. 8, text at note 163.
28 U.S.C. §§ 1783, 1784 (1950).
New 28 U.S.C. §§ 1783, 1784, New Statute §§ 10, 11, supra note 5.
On the taking of depositions in a foreign country generally, see Doyle, Taking Evidence by Deposition and Letters Rogatory and Obtaining Documents in Foreign Territory, Proc. A.B.A., Sec. Int’l & Comp. L. 37 (1959); Smit & Miller, op. cit. supra note 15, at 48-62; Smit, International Aspects of Federal Civil Procedure, 61 Colum. L. Rev. 1031, 1053-59 (1961).
See, e.g., Fed. R. Civ. P. 28 and 29.
Ibid.
See, e.g., Fed. R. Civ. P. 28 (old).
See, e.g., Fed. R. Civ. P. 30, 31.
See, e.g., Fed. R. Civ. P. 30(c), 31(b).
This rule is so well-established that the Federal Rules of Civil Procedure assume its existence rather than state it directly. See, e.g., Fed. R. Civ. P. 26(a), 26(c), 30(a), 30(c), and 43(b). If the deposition is taken on written interrogatories, the written interrogatories and cross-interrogatories take the place of oral examination and cross-examination. Fed. R. Civ. P. 31.
See, e.g., Fed. R. Civ. P. 30(c) and (e).
See Appendix B. See also Kaplan, Amendments to the Federal Rules of Civil Procedure, 1961-1963 (II), 77 Harv. L. Rev. 801, 811-14 (1964).
Before July 1, 1963, the day on which the new rule became effective, depositions on notice could be taken only before American consular officers. On the problems created by this constrictive provision, see Smit, International Aspects of Federal Civil Procedure, 61 Colum. L. Rev. 1031, 1056-57 (1961). See also Kaplan, supra note 74, at 811-14.
Since foreign courts ordinarily follow their own procedures in conducting examinations and frequently neither prepare a verbatim transcript nor offer opportunities for examination and cross-examination, American courts and litigants usually resort to letters rogatory only in the last instance. This attitude towards letters rogatory had found recognition in the judicially developed rule that letters rogatory would issue only upon a showing that the deposition could not be taken in another way. See, e.g., The Edmund Fanning, 89 F. SUPP. 282 (S.D.N.Y. 1950); Smit, supra note 75, at 1057-58. However, depositions taken under letters rogatory are frequently less expensive, and it may be difficult to ascertain whether a deposition by commission will be possible or practicable. New Rule 28(b) of the Federal Rules of Civil Procedure therefore provides that letters rogatory may issue without a showing that the deposition cannot be taken on notice, pursuant to stipulation, or by commission. See further Kaplan, supra note 74, at 812-13; Smit, supra note 75, at 1057-58.
On the problems this provision seeks to eliminate, see Smit, supra note 75, at 1053-59.
See note 6 supra; Appendix C. This provision seems to provide desirable implementation of the flexible procedure that may be followed when depositions are taken pursuant to stipulation. Its incorporation in the Federal Rules of Civil Procedure would seem worthy of consideration. See Smit, supra note 75, at 1056.
New 18 U.S.C. § 1621, New Statute § 1, supra note 5. On the question it resolves, see Smit, supra note 75, at 1055-56.
See generally Smit, supra note 75, at 1053-54. Compulsory production will not be ordered if the law of the foreign country effectively forbids its production. Ibid. However, the showing of a legal prohibition must be unambiguous. But cf. Ings v. Ferguson, 282 F. 2d 149(2d Cir. 1960).
Former Sections 1783 and 1784 of the Judicial Code provided only for subpoenas to compel testimony. 28 U.S.C. §§ 1783, 1784 (1950). The revisions not only provide for the service of subpoenas abroad to compel production of tangible evidence, but also considerably liberalize the issuance of subpoenas to foreign countries. See especially the explanatory note in Appendix A; Smit, supra note 75, at 1044-53.
On the desirability of a provision that makes clear the court’s authority to request tangible evidence in letters rogatory, see Smit, supra note 75, at 1054.
See, e.g., Fed. R. Civ. P. 44. See generally Smit, supra note 75, at 1059-71.
See 5 Moore, Federal Practice § 44.03 (2d ed. 1951); Smit, supra note 75, at 1060.
See Smit, supra note 75, at 1067-68, 1070-71.
See Appendix B.
New Statute § 5, supra note 5.
See Appendix C.
On these measures of reform generally, see the explanatory notes to these provisions and Smit, supra note 75, at 1059-71.
See Smit & Miller, op. cit. supra note 15, at 73-77.
See Appendix B.
See Appendix C.
This provision was omitted from proposed new Civil Rule 44.1, not because it was not deemed desirable, but because of doubt as to whether the Enabling Act, 28 U.S.C. § 2070, (1950) authorizes the rule makers to delimit in the rules the respective functions of the judge and the jury. The same is true of proposed new Criminal Rule 26.1.
Editor information
Rights and permissions
Copyright information
© 1965 Martinus Nijhoff, The Hague, Netherlands
About this chapter
Cite this chapter
Smit, H. (1965). Introduction. In: Smit, H. (eds) International Co-Operation in Litigation: Europe. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9208-8_1
Download citation
DOI: https://doi.org/10.1007/978-94-011-9208-8_1
Publisher Name: Springer, Dordrecht
Print ISBN: 978-94-011-8487-8
Online ISBN: 978-94-011-9208-8
eBook Packages: Springer Book Archive