Letters Rogatory and Service Of Process

Letters Rogatory and Service Of Process

Letters rogatory, also known as letters of request, are formal requests for judicial assistance from a court to a foreign court. Service of process and taking of evidence are the two most common remedies sought by letters rogatory.

Obtaining evidence

One reason a court might need the help of a foreign court is to obtain evidence from a witness. This evidence may be used to answer questions related to the determination of a factual issue or to disclose documents.

Unless aided by foreign judicial, or sometimes legislative, authority, courts typically have the authority to subpoena witnesses only from within the jurisdiction of their own legislature. Alice in the United States, for example, could not summon Jean from France to the US courthouse. Instead, the US court would send a rogatory letter to a French court, which would then examine Jean in France and return a deposition to the requesting court.

In terms of requests to US courts, the use of letters rogatory to request the taking of evidence has been largely replaced by applications under 28 USC 1782, or Section 1782 Discovery.

In many cases, the witness is eager to give testimony. The target court, on the other hand, has the authority to compel the testimony of a witness who refuses to appear.

Conventions

Previously, letters rogatory could not usually be transmitted directly between the applicable courts but had to go through consular or diplomatic channels, which could slow down the entire process. There have been several international conventions concerning service of process and the taking of evidence.

The 1905 Civil Procedure Convention, signed in The Hague, was one of the first conventions to simplify the procedure of letters rogatory. It was only ratified by 22 countries because it was only written in French. Later conventions, drafted in both English and French after the establishment of the Hague Conference on Private International Law, commanded more support.

The Hague Service Convention, ratified in 1965, allowed designated authorities in each signatory state to send documents for service to each other without going through diplomatic channels. This convention was ratified by 60 states, including the United Kingdom and the United States, both of which had not ratified the 1905 convention. The Hague Evidence Convention, ratified in 1970, formalized evidence-taking procedures. It has been signed into law by 43 states. Two regulations (1348/2000 and 1206/2001) superseded the two Hague Conventions for situations involving only European Union member states. The two regulations apply to all European Union member states, with the exception of Denmark, which has opted out.