Originally from World Arbitration And Mediation Review (WAMR)

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A COMPARATIVE LAW ANALYSIS

OF U.S. JUDICIAL ASSISTANCE
By Anna Conley*

I. INTRODUCTION
The U.S. civil justice system is unique in many respects, from elaborate
pre-trial procedures to the use of biased experts and the absence of a cost
shifting mechanism between parties. Perhaps the United States’ most
unique characteristic is its discovery system. U.S. broad pre-trial discovery
sets it apart not only from civil law jurisdictions, but also fellow common
law jurisdictions. Pre-trial discovery from non-parties, pre-trial depositions,
and categorical document requests, all based on a relatively broad relevance
standard, have been criticized on a worldwide basis. The antipathy to U.S.
trial procedures has been manifested in blocking statutes,1 Article 23 of the
Hague Evidence Convention,2 and defensive judicial decisions by Canadian
and English judges rejecting judicial assistance requests for pre-trial
discovery by U.S. courts.
One unique aspect of U.S. civil justice related to its broad discovery that
has received considerable attention lately is the U.S. judicial assistance
scheme. Judicial assistance is the comity-based act of a court aiding a
foreign court or tribunal by compelling an individual or corporation within
its jurisdiction to produce evidence for use in a foreign proceeding. For
example, if a French court would like to hear testimony from a non-party
witness located in England, it would request the English court with
jurisdiction over the individual to compel the individual to provide
testimony for use in the French proceeding.