Cross-Border Litigation and Dispute Resolution

1. Cross-Border Litigationand Dispute Resolution Hague Service Convention Hague Evidence Convention Recognition of Foreign Judgments Birgit Kurtz 1 April 2014 ..

2. 1. Hague Service Convention 2. Hague Evidence Convention 3. Recognition of Foreign Judgments

3. Hague Service Convention

4. Hague Service Convention Commence lawsuit: file summons and complaint with court – then serve documents on defendant How to serve defendant located abroad? • Fed. R. Civ. P. 4(h)(2) corporation, partnership or association • Fed. R. Civ. P. 4(f)(1) individual “by any internationally agreed means of service that is reasonably calculated to give notice, such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents” • www.hcch.net • Text • List of contracting states • Reservations, declarations and notifications • Also reprinted: after Fed. R. Civ. P. 4

5. Hague Service Convention • When does Convention apply? • forum country and country where person or company to be served is located must be signatories • “civil and commercial matters” • “occasion to transmit a judicial or extrajudicial document for service abroad” But: • transient / tag jurisdiction (Burnham case, U.S. S.Ct. 1990) • substituted service (Schlunk case, U.S. S.Ct. 1988)

6. Hague Service Convention Procedure • 3 forms • translations (if required by receiving country) • send to Central Authority of receiving country • Central Authority will forward to local authority for proper service under local law • certificate of service is sent back

7. Hague Service Convention • If not signatory to treaty (e.g., Austria): Fed. R. Civ. P. 4(f)(2) • Service on Foreign Sovereign 28 U.S.C. § 1608(a) state or political subdivision 28 U.S.C. § 1608(b) agency or instrumentality

8. Hague Service Convention • Attack improper service: • Fed. R. Civ. P. 12(b)(5) motion to dismiss for insufficient service of process • CPLR 3211(a)(8) motion to dismiss for lack of personal jurisdiction

9. Hague Evidence Convention

10. Hague Evidence Convention • 28 U.S.C. § 1781 Transmittal of letter rogatory or request (a) Via State Department (b) Directly by court • www.hcch.net • Text • List of contracting states • Reservations, declarations and notifications • Also reprinted: after 28 U.S.C. § 1781

11. Hague Evidence Convention When does it apply? • forum country and country where evidence / witness is located must be signatories • “civil and commercial matters” • “for use in judicial proceedings, commenced or contemplated” • request “to obtain evidence, or to perform some other judicial act”

12. Hague Evidence Convention Letter of Request • Names / addresses of requesting & receiving authorities • Names / addresses of all parties and their counsel • Short description of nature of proceeding • Evidence to be obtained • Any special instructions • Check language requirement

13. Hague Evidence Convention Art. 23: “A Contracting State may at the time of signature, ratification or accession, declare that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.” • Most signatory countries have made Art. 23 declarations

14. Hague Evidence Convention Societe Nationale case (U.S. S.Ct. 1987) Hague Evidence Convention is not the exclusive means for obtaining documents and information abroad International Comity analysis: • Particular facts of case • Sovereign interests involved • Likelihood that resort to Convention will be an effective discovery device

15. Hague Evidence Convention Societe Nationale case (cont.) “American courts, in supervising pretrial proceedings, should exercise special vigilance to protect foreign litigants from the danger that unnecessary, or unduly burdensome, discovery may place them in a disadvantageous position. Judicial supervision of discovery should always seek to minimize its costs and inconvenience and to prevent improper uses of discovery requests. When it is necessary to seek evidence abroad, however, the district court must supervise pretrial proceedings particularly closely to prevent discovery abuses.”

16. Hague Evidence Convention If not signatory: • 28 U.S.C. § 1781 Letters Rogatory • Inter-American Convention on Letters Rogatory • Other, bilateral or multilateral treaties?

17. Hague Evidence Convention Conflict with foreign laws, e.g., • Blocking statutes • Privileges • EU Data Privacy * EU Data Protection Directive 94/46/EC * 158 WP – EU working paper (2-11-09)

18. Hague Evidence Convention Volkswagen case (Texas S.Ct. 1995) Restatement (3d) of Foreign Relations – 5 factors: • importance to the investigation or litigation of the documents or other information requested; • degree of specificity of the request; • whether the information originated in the U.S.; • availability of alternative means of securing the information; and • extent to which noncompliance with the request would undermine important interests of the U.S., or compliance with the request would undermine important interests of the state or country where the information is located.

19. Hague Evidence Convention 28 U.S.C. § 1782 Assistance to foreign and international tribunals and to litigants before such tribunals • Intel v. AMD (U.S. S.Ct. 2004) 4 Elements: 1.target of discovery request must “reside or [be] found” in district 2.purpose of discovery must be “for use in a proceeding” 3.proceeding must be “in a foreign or international tribunal” 4.application by foreign or international tribunal or by “interested person”

20. Hague Evidence Convention State Department website • country-specific information re. judicial assistance abroad www.travel.state.gov

21. Recognition of Foreign Judgments

22. Recognition of Foreign Judgments Hague Convention on Choice of Court Agreements (“COCA”) Not yet in force! www.hcch.net • Text • List of contracting states • Declarations, etc. • Art. 5(2): chosen court must hear case • Art. 6: court not chosen has no jurisdiction • Art. 8: recognition and enforcement

23. Recognition of Foreign Judgments Foreign country money judgment in U.S. State law: Uniform Act or International Comity New York: CPLR Art. 53 Generally recognized except, e.g., • inadequate legal system • no jurisdiction • untimely service • obtained by fraud • repugnant to public policy • conflicts with another judgment • contrary to forum selection clause

24. Recognition of Foreign Judgments U.S. Judgment Abroad → apply local law E.g., Germany: ZPO § 328 No recognition if: • No jurisdiction • Defective or untimely service • Conflicts with another judgment • Ordre public • No reciprocity

25. Recognition of Foreign Arbitral Awards • New York Convention • www.uncitral.org • Text • Parties • Notes • FAA 9 U.S.C. §§ 201 et seq. • Recognize written arbitration agreements • Compel arbitration • Recognize arbitral awards – limited exceptions • Panama Convention • FAA 9 U.S.C. §§ 301 et seq.

26. Thank you for your attention! Comments and questions: Birgit Kurtz Crowell & Moring LLP 590 Madison Avenue, 20th floor New York, NY 10022 Tel. +1-212-803-4016 Fax +1-212-223-4134 BKurtz@crowell.com www.crowell.com