The Taking of Evidence Abroad - Chapter 4.3 - Transnational Litigation and Commercial Arbitration - 3rd Edition
Joseph Lookofsky is Professor of Private and Commercial Law at the University of Copenhagen. He received his B.A. in Economics from Lehigh University, his J.D. from the New York University School of Law, and was admitted to the New York State Bar in 1971. He received his Danish law degrees (cand.jur. and dr.jur.) from the University of Copenhagen and joined the Law Faculty there in 1982. Professor Lookofsky has lectured on the CISG and other international commercial law topics for the Danish Bar Association (Advokatsamfund), the Duke University Law School in North Carolina, the University of Bologna (Facoltá di Giurisprudenza), the Albert-Ludwigs-Universität Freiburg (Institut für Ausländisches und Internationales Privatrecht), and the Cornell-Paris I (Sorbonne) Summer Institute of International & Comparative Law. He is also Secretary General of the Danish Committee for Comparative Law (Association Internationale des Sciences Juridiques.
Ketilbjorn Hertz is Senior Consultant with the Danish Ministry of Justice, which he joined in 1997, and in that capacity he has participated in the drafting of important legislation, including the Bill, which led to the adoption of the Danish Arbitration Act 2005 He received degrees from the University of Copenhagen, B.A. in law in 1991, cand.jur. in 1993, B.A. in French in 1998, and Ph.D. in law in 1998.
As with the exercise of jurisdiction, so with the taking evidence: what goes on in a given territory is, as a starting point, subject to regulation by the sovereign, the particular State. Both in purely domestic cases and in cases involving a transnational element, where a given item of evidence is located within the forum jurisdiction concerned, that State sets the rules applicable to the taking of evidence there.
Since each sovereign State has a monopoly on the exercise of governmental power within its borders, no State may perform or authorize an act in the territory of a foreign State without the latter’s consent. So, in those cases involving evidence located in a foreign territory, the forum State’s rules might — at first blush — appear irrelevant as regards evidence-gathering within the foreign State.
In actual fact, however, the problem of taking evidence in a transnational context is considerably more complex. As with the transnational service of process,1 the solution to a given evidentiary problem at the transnational level is likely to involve a mixture of national and international rules.
4.3.2. The Taking of Evidence Under National Law
As regards the conduct of civil trials generally, and as regards the gathering of evidence in particular, comparative observers have often drawn a distinction between the rules of procedure applicable in Common law (or at least American) jurisdictions and those applicable in (many) Civil law jurisdictions. Whereas proceedings in Common law courts are often described as “adversarial,” with the judge “umpiring” the adversarial activities of the parties’ lawyers,2 courtroom procedures in Civil law systems often seem quite different, and the distinction bears particular significance in the evidential context.
CHAPTER 4 EXTRATERRITORIAL SERVICE AND EVIDENCE ABROAD
4.3 The Taking of Evidence Abroad4.3.1 Introduction 4.3.2 The Taking of Evidence under National Law 4.3.3 The Hague Evidence Convention Société Nationale Industrielle Aerospatiale v. United States District Court (1987) Notes, Questions and Commentary