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college 17
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Woord voor voor woord meegetypte aantekeningen van de colleges van Nationaal internationaal procederen. Samenvatting en college aantekeningen van de master privaatrecht.
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Seminar Discovery and disclosure in the USA en internationale proceduresBy Shawn C. Conway
International evidence gathering
How to get access to key evidence internationally? The Dutch judges can’t force someone in Korea to
testify in Holland. Foreign courts should be approached in that case.
Procedural Toolbox:
- Letters rogatory
It is the traditional (oldest) form of getting evidence abroad. It’s also called a letters request. You ask
the judge here to write a request in the other country and ask that court to help us. It’s purely a matter
of discretionary assistance. There is no guarantee that it’s going to work.
- Hague Evidence convention
It’s an international treaty. It has 58 signatories. It only applies to civil legislation. A step forward is
that you request de receiving court to use its procedures. Under the treaty each country has a central
authority. In Holland it’s the central … in The Hague.
Originally it’s from judge to judge, but you can also do it through the ministry of foreign affairs!
It’s much faster and opens up more possibilities.
- EU regulations.
Opens up even more possibilities.
o Service of judicial documents (no. 1393/2007)
In civil and commercial matters
Simplifies service of process
o Evidence regulation (no. 1206/2001)
It’s binding. (not a guideline, courts have to cooperate)
In civil and commercial matters
Allows evidence taking outside of consular channels
o EU convention on mutual assistance in Criminal Matters.
Intermezzo:
If the above isn’t working out you can ask the opponent to agree to international arbitration. Selling
point: UN (New York convention in 1998). It opens up new opportunities, cause many countries are
bound by this convention, not all countries are bound to the three possibilities listed above. Arbitration
is much quicker. It’s conventional. Another great selling point is expertise. International arbitration
institutes point out the arbitrators, so they have more expertise than the standard judge.
There is no country in the world who has a treaty with the US to go to court in the US. But if you
dealing with a country where there is no treaty, then arbitration makes sense and the quality of the
process is better, faster and in some cases cheaper. Exception to this practice are cases involving
governments.
- U.S Discovery – an overview
First background story. (point 6 is important for us)
o Section 1782 Discovery
o Chart of US Court System (only the federal court system on the left)
o Jurisdiction of federal courts
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