This presentation seeks to describe the process of judicial assistance for obtaining evidence in civil and commercial matters under The Hague Conventions, going more particularly into detail as concerns resolving conflicts between the common law and continental European law systems. It is based on experience concerning U.S. based pre-trial discovery proceedings to be executed on Swiss territory.
2. EXAMPLE OF LITIGATION
Let us say that the proceeding concerns an action for violation of U.S. federal racketeering statutes by engaging in a conspiracy to conceal the alleged effects of smoking and the alleged addictiveness of nicotine.
It is not self-understanding for Swiss authorities that racketeering statutes and the proceedings deriving from them are of a civil nature. Therefore, the U.S. Federal District Court issuing an order according to which the plaintiff is allowed to serve a Request for Supplementation of Document Production to one of the Defendants, which included documents in one of the Defendants’ affiliates, a company organized under the laws of and located in Switzerland, should include in its request for assistance some consideration as to the fact that the matter before it is of a civil character.
According to Swiss law, the officers, directors and employees of a company registered in Switzerland, even if it is affiliated with a foreign company which is a party in the foreign proceedings are not considered as a party, but as witnesses. This means that they enjoy the larger protection granted by statutes on privilege as described below, while parties may only refuse to testify where their declarations would be self-incriminating.
3. TERRITORIAL SOVEREIGNTY AND OBTENTION OF CIVIL AND COMMERCIAL EVIDENCE IN SWITZERLAND
The continental judiciary system leaves little room for gathering of evidence by private persons or institutions. When not provided directly by the parties, gathering of evidence pertains to the authorities, i.e. in judiciary proceedings to the instructing magistrate or the Court. The parties may propose evidence, but the Court decides, depending on the authority granted to it by specific procedural rules which either provide for the inquisitory system (Offizialmaxime) or the adversarial system (Verhandlungsmaxime), on whether it will take procedural measures to obtain the evidence sought by the parties.
As one of the three branches of an organized State, the Courts are clad with sovereignty and act de iure imperii. Their decisions are acts of a State authority for which they are empowered by the law, to the exclusion of any private party. Therefore, when ordering a witness to appear or a party to show evidence, such as objects or documents, a Court is conducting an act of sovereignty.
The essence of sovereignty is that it is the privilege of the nation rightfully occupying the territory within its borders. Most countries, and Switzerland is no exception, take a very narrow approach to foreign authorities conducting acts of sovereignty on their territory.
The Swiss Supreme Court views the service of notice, hearing of witnesses or any other gathering of evidence for a proceeding in civil and commercial matters as an act of sovereignty This includes seeking to obtain documents located in Switzerland pursuant to an order of discovery of a foreign court under common law, even though the documents are contributed to the proceedings by one of the parties. It is sufficient that the party has been instructed to do so by the foreign judge.
This view is consecrated by the fact that under Swiss law, the person who executes an act de iure imperii ordered by a foreign court commits a crime and is subject to a jail sentence of between 3 and 20 years. Pursuant to Article 271 of the Swiss Criminal Code,
1. Anyone who, without authorization, takes any action within the powers of the public authorities in Switzerland for a foreign state, a foreign party or for any foreign organization; anyone who facilitates such actions, shall be punished with imprisonment [jailed term of up to 3 years], and, in serious cases, with jail [for up to 20 years]
2. Anyone who, by resorting to violence, cunning or threat, or by endangering that person’s life or health, takes a person abroad to be delivered to a foreign authority, party or organization, shall be punished with jail [for up to 20 years]
3. Anyone who prepares such acts shall be punished with imprisonment (up to 3 years] or jail [up to 20 years].
The doctrine of the Swiss Supreme Court on the matter remains constant1: No private party or foreign government or foreign judiciary authority may undertake any such acts without the express authorization and under the control of a Swiss magistrate or the Federal Government2. The latter will among others examine whether the acts ordered by the foreign court are compatible with Swiss Law.
The concept underlying these provisions is sometimes difficult for litigants under U.S. or other like statutes to understand to their full extent, and has caused difficulties for international judicial co-operation in the past.
On January 1st, 1995, Switzerland adopted The Hague Conference Convention N°20 on the Taking of Evidence Abroad in Civil or Commercial Matters of March 18, 1970. After that, it became easier to gather evidence in Switzerland for foreign proceedings, under the aegis of a Letter of Request expedited by the foreign Court. Discovery to be undertaken within the geographic boundaries of a State which is a Party to the Hague Convention in accord with the Hague Convention’s rules respect the territorial sovereignty of that State.
Particularities of the Swiss judiciary system
In the Swiss Confederation, with a few exceptions, the organization of the Courts and the proceedings pertains to the Cantons, pursuant to art. 122 par.2 of the Swiss Federal Constitution. As a consequence, there are 26 codes of civil procedure in Switzerland, one for each Canton.
However, minimal federal standards must be abided by the Cantons (art. 29 and 30 of the Swiss Federal Constitution); also, the Cantons must apply substantive federal law, and an international convention which has been ratified such as The Hague Convention N° 20 becomes part of this body of law which the Cantons must apply.
4. DISCUSSION OF THE TOPICAL PROVISIONS OF THE HAGUE CONVENTION NO 20 AND THEIR IMPLEMENTATION IN SWITZERLAND
Essential elements of the Request for judicial assistance in Civil and Commercial Matters
Art. 3 of The Hague Convention N° 20 describes the essential format and content of the Request for Assistance (or Letters Rogatory):
A Letter of Request shall specify:
- The authority requesting its execution and the authority requested to execute it, if known to the requesting authority;
- The names and addresses of the parties to the proceedings and their representatives, if any;
- The nature of the proceedings for which the evidence is required, giving all necessary information in regard herto;
- The evidence to be obtained or other judicial act to be performed.
- the names and addresses of the persons to be examined;
- The questions to be put to the persons to be examined or a statement of the subject matter about which they are to be examined;
- the documents or other property, real or personal, to be inspected;
- any requirement that evidende is to be given on oath or affirmation, and any special form to be used;
- any special method or procedure to be followed under Article 9
Where appropriate, the Letter shall specify, inter alia –
A Letter may also mention any information necessary for the application of Article 11.
No legalization or other like formality may be required.
Article 9 provides that the judicial authority which executes the Letter of Request shall apply its own laws as to the methods and procedures to be used. However, it will follow a special procedure requested by the foreign judicial authority, as long as that method is not incompatible with the laws of the requested State.
Article 11 provides the circumstances under which a person may refuse to give evidence in so far as that person has a privilege or a duty to refuse to give evidence under either the law of the requesting State or the State where the Letter of Request is to be executed.
In order to ascertain the extent of this protection under The Hague Convention, please refer to the chapter concerning commercial and professional secrecy and execution of the mission of the Commissioner hereafter.
Executing an affidavit as an element of evidence is only known in common law countries. The legal systems of the continental tradition only accept direct testimony before the Court. 3
Art. 15 and 16 of The Hague Convention N° 20 provide for diplomatic officers or consular agents to take evidence without compulsion, provided the person to be heard is of the same nationality than the one represented by the former. They may proceed with drafting and taking down declarations made by a party or a witness in an affidavit, as allowed by art. 9 of The Hague Convention N° 20.
In Switzerland however, such a process cannot take place without the previous authorization by the Federal Department of Justice and acknowledgement by the proper Cantonal judicial authority.
Acting through a Commissioner
Art. 17 of the Hague Convention provides the possibility of requesting judicial assistance by designating a commissioner to take evidence. This structure, which is unknown under continental law, was adopted in The Hague Convention N° 20 to accommodate, among others, the concept and practice of pre-trial discovery under common law.4 However, the transposition of this concept is always limited by the fact that it must imperatively be undertaken only as authorized and under the supervision of the judicial authorities of the requested State. No hearing can take place without a Letter of Request issued by the foreign court and without the control and authorization by the judicial authority of the requested State. The U.S. Court requesting approval for a commissioner in Switzerland must address the Letter of Request to the competent authority, which is the Federal Justice Department, or the designated Court of the Canton where the evidence is to be collected5. A commissioner designated through this procedure becomes an extension of the Swiss judge who approves his nomination, and thus a judicial officer, to whom the work and the functions of the nominating judge are delegated for his particular mission.
Acting through the general clauses of the Hague Convention N° 20
If the parties to the proceeding do not agree to take evidence by means of a commissioner, but at least one of them requests judicial assistance for obtaining evidence abroad, the general clauses of The Hague Convention N° 20 shall apply in countries having ratified this Convention.
The foreign judge may issue a Letter of Request to Switzerland for the locally competent judge to execute the examination of witnesses, requests of documents to be provided by a party or third parties or officials, local inspection, and any other evidence needed for the case going on in the foreign country and specified in the Letter of Request.
The Letter of Request must specify particulars of the jurisdiction in charge of the case in the requesting foreign country, the parties, the nature of the proceedings and the evidence to be obtained6. It must be addressed to the Cantonal judicial authority listed in the Annex to The Hague Convention N° 207. A translation of the Request in the official language of the Canton must be joined to the Letter of Request.
According to art. 11 of the Hague Convention N° 20, the persons concerned by a Court ordering their appearance as witnesses may refuse to give evidence if they are protected by a privilege. According to Swiss law, lawyers and medical doctors are covered by a professional privilege that allows them to refuse to make declarations even if their clients have released them from their obligation to keep a secret8.
Art. 162 and art. 273 para. 2 of the Swiss Criminal Code forbid persons to give away business secrets. In order to avoid application of these provisions, the parties to the foreign proceeding should seek to obtain, from the companies concerned, an agreement authorizing their employees to testify, and the foreign judge should mention expressly in his Letter of Request that this authorization has been granted.
According to cantonal municipal laws, witnesses may refrain from making declarations if such declarations would put at risk their honour, personal interests, or those of their spouses and close family9. Parties ordered to appear may refuse to give evidence which is self-incriminating.
In order for the Cantonal authorities to have all the details on the extent of their mission, the Letter of Request should specify all points mentioned under Art. 3 e)-i) of the Hague Convention N° 20 which the requesting party wants to have investigated by the Swiss authorities.
The parties and their Counsel are informed of the dates of the hearings and other measures taken by the Swiss authorities, so that they may be present, provided however that it is so specified in the Letter of Request.
It is also possible for the foreign judge to stand by and to participate in the hearings, provided that a proper authorization has been previously sought and obtained from the competent judge in Switzerland.
Appointment of a Commissioner
The execution of a Letter of Request providing for a Commissioner to seek and obtain evidence according to The Hague Convention N° 20 needs to be authorized by the Swiss Central Authority10, which is the Office federal de la Justice, Division des affaires internationals, Section du droit international privé, Taubenstrasse 16, 3003 Bern11
Generally, the appointment letter from the Swiss federal authorities mentions that the Commissioner may not use any constraint to get information, and that the persons or entities to be interrogated or ordered to produce documents may invoke privilege to refuse to cooperate.
This does not take into account that the Commissioner may request the cantonal "juge d’appui" in order to get the information requested by the foreign judge. It may take further steps, as described below, to obtain the information which is sought by the requesting judge.
Implementation of the Letter of Request at the cantonal level
Once the Commissioner receives the appointment letter from the Federal authorities, he must be confirmed by the cantonal authorities. This will take at least 30 days, until the deadline for appealing the decision and/or challenging the nomination of the Commissioner expires. Thereafter, he may undertake the measures provided by the foreign judge for the taking of evidence.
There are two possibilities for the Commissioner to react if the parties or witnesses to be interrogated obstruct his mission.
First, the Commissioner may report this fact to the parties, with enough details for them to seize the Court with a motion for adequate measures according to the law of the forum.
Secondly, the Commissioner may address the cantonal authorities ("juge d’appui") in order for them to enable the Commissioner to fulfil his mission by ordering the obstructing party, person or entity to abide by the foreign Court order. The mechanism is offered by art. 18 of the Hague Convention, which provides:
A Contracting State may declare that a diplomatic officer, consular agent or commissioner authorized to take evidence under Articles 15, 16 or 17, may apply to the competent authority designated by the declaring State for appropriate assistance to obtain the evidence by compulsion. The declaration may contain such conditions as the declaring Stat may see fit to impose.
If the authority grants the application it shall apply any measures of compulsion which are appropriate and are prescribed by its law for use in internal proceedings.
Switzerland has made no reservations on this subject, and therefore is bound to take such measures where adequate and requested by the party interested in obtaining the evidence before the competent judge.
Taking evidence through the Courts
The proceedings in Switzerland must be conform with the municipal law of the Canton where they take place. In Switzerland, it is in general the judge and not the attorneys who examines the witnesses, and Counsel for the parties may only ask complementary questions afterward.
Any witness may refrain from making declarations if such declarations would put at risk their honour, personal interests, or those of their spouses and close family.12 Persons or entities which are regarded as parties to the proceedings may only invoke protection against self-incrimination to avoid making declarations.
Most municipal regulations are not very strict on the violation of Court orders concerning providing documents. Therefore, the party seeking evidence should obtain from the foreign judge that he point out in his Letter of Request which documents are crucial to his investigation.
It is also possible to request a local inspection, if the foreign judge deems it relevant for obtaining evidence necessary for the outcome of the case. Sanctions are not very strict if the concerned person or entity refuses access to the premises.
It must always be remembered that, where measures of constraint (arresting accounts, forced access to premises, opening of safe boxes or other closed spaces, etc.) are necessary, the Letter of Request may only be executed by the local judicial authority and under its control, according to the lex loci13.
5. ASSISTING THE COMMISSIONER AND THE PARTIES IN PERFORMING THE MISSION IN SWITZERLAND
The position of the Commissioner is that of a person delegated by the Court, and not by any of the parties.14 In my opinion, one cannot insist often enough on the distinctions to be made between common law and continental law at the pre-trial discovery phase. Under U.S. law, parties are more active in the search for facts than they would be in Switzerland, where gathering of evidence is not primarily a matter for the parties, but for the state authorities; on the other hand, they can, under U.S. law, oppose objections to the transmission of evidence that would not be valid under Swiss law.
It is commendable that the parties consult with local counsel in order to obtain satisfactory results. For studying documentation and interrogating people, and transferring the results of his inquest to the foreign judge under common law rule, the lawyer on site representing the requesting party in Switzerland may have to explain to the Commissioner e.g. the meaning of privilege under common law, since it differs pointedly from the concept in Swiss law.
In Swiss law, privileged information originates in the protection of secrecy by the Criminal Code, less than by client – attorney relationships. The provisions of the Swiss Criminal Code concerning commercial and professional secrecy are the following:
Whoever reveals an industrial secret or a commercial secret he was obliged to keep due to a legal or contractual obligation,
Whoever uses such revealed secret for his own benefit or for the benefit of a third party
Shall be punished, upon complaint, by imprisonment or fine
Art. 321 Violation of Professional Secrecy
- Churchmen, attorneys, barristers, notaries, auditors obliged to comply with professional secrecy according to the Code of Obligations, medical doctors, dentists, druggists, midwives, as well as their auxiliaries, who reveal a secret confided to them by virtue of their profession or which came to their knowledge within the framework of the exercise of their profession shall be punished, upon complaint, by imprisonment or fine.
- The revelation of the secret shall not be punishable if whoever is concerned consents to it or if, upon proposal by the depository of the secret, the superior authority or the authority of surveillance has authorized the revelation in writing.
- The provisions of federal and cantonal statutes instituting an obligation to inform an authority or to testify remain reserved.
Students who reveal a secret which became known to them during their studies shall incur the same punishment.
The revelation of the secret remains punishable even once the depository of the secret has stopped exercising his profession or finished his studies.
Most cantonal statutes concerning civil proceedings dispense the professions mentioned in art. 321 of the Criminal Code from testifying, unless the persons or entities concerned authorize the revelation of the secret. Substantive laws concerning the Cantons generally do not provide for any obligation to testify for persons subject to professional secrecy.
What is more, the authority supervising these professions may prohibit access to such data on the grounds that only the person concerned and his agent may qualify to have access to this privileged information, or simply on the grounds that professional secrecy is protected by the laws of Switzerland for medical doctors, attorneys and priests in the exercise of their profession. 15
Even if the person or entity concerned authorize the revelation of the secret, the depository of the secret may, in his own conscience, decide not to make any revelation. He remains master of the secret and may not be punished for refusing to reveal it in civil proceedings.
The quest for undetermined and general search for evidence (recherché générale et indéterminée de moyens de preuve) which is generally used in pre-trial discovery in common law countries and more specifically in the USA is, on the contrary, generally not admissible in continental Europe. General requests for evidence which would lead to production of large quantities of documents or violate commercial secrecy will be refused by the European (and Swiss) judicial authorities.
Art. 23 of The Hague Convention N° 20 provides that the Contracting States may declare that they will not execute Letters of Request for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries, and Switzerland has used this possibility imposing strict conditions for the execution of a Letter of Request in the pre-trial discovery phase.
The party interested in obtaining pre-trial discovery should consult with local counsel in the State where the evidence is to be obtained in order to address this issue in particular, so as to prevent refusal of the Letter of Request.
The Commissioner should be guided by both parties alike as to the purpose and the extent of his mission in accordance with the foreign statutes, foreign discovery and to establish schedules for the parties’ counsel to be able to draft, if necessary, a privilege log.
This is made easier if the foreign Court has defined e.g. by a Case Management Order the extent of obligation to declare and the extent of privileged information. Such are e.g. the following rules:
- That parties seeking to prevent deposition testimony must certify that they have turned over all previous testimony in related cases of that deponent
- That the Commissioner is given authority to recommend sanctions for dilatory tactics, frivolous motions/arguments, or for otherwise violating the terms and/or spirit of the Case Management Order
- That the parties must submit to the Commissioner privilege logs for any documents they do not want to submit to the Court for questions of privilege
- That no privilege objection shall be interposed when a questioner inquires about non-privileged topics, such as: who authored a document, when it was authored, when and from whom the author obtained the information reflected in the document, how such information was communicated, who else was present when the communication took place, and to whom the document was circulated (at any point in time).
- That the portions of the depositions addressing privileged matters or documents subject to claims of privilege shall be sealed and made available only to counsel for the parties, the Commissioner and the Court until further order of the Court.
If such order is sufficiently clear, the Commissioner, whose authority is based on the foreign Court order and the authorized Letter of Request, can carry out his task regardless of the disagreement of the parties on the extent of his mission, without waiting for a consensus between the parties. He will however always apply restrictions provided by the laws of the requested State, since he may not, without a Court order of the local jurisdiction, exert any constraint on the persons or entities to be interrogated or asked to produce documentary or other evidence.
Since the notion of privilege differs between common law and continental law, I found it very helpful to find, in the U.S. proceedings, a definition of privilege which I could use for guidance for the Commissioner. I am including it here as an example.
1. Content of Privilege Logs
When a party withholds information otherwise discoverable under the Federal Rules of Civil Procedure by claiming that it is privileged and/or subject to protection as work product16, the party shall make the claim expressly, providing the following information on a privilege log:
a) Identification of all claims, of privilege and/or work product applicable to the withholding;
b) A description of the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties and the Court […] to evaluate the applicability of the privilege;
c) Document date
d) Assigned document number
e) Document author(s), addressee(s), and recipients ; and
f) Identification of at least one request for production to which the withheld document is responsive.
2. No non-privileged document shall be withheld from production solely on the ground that it is attached or appended to a privileged document.
3. The privilege log shall identify all documents redacted or containing redactions by reason of privilege assertion.
4. Unless modified by agreement of the parties or otherwise ordered by the Court […], the parties shall exchange privilege logs no later than […]
5. The production of privilege logs shall be accompanied by a glossary that identifies the persons referred to in the log by name and relationship to parties in the litigation.
It is also useful to know that both parties, represented or assisted by counsel, may pose additional questions to the person or entity being interrogated under the aegis of The Hague Convention N° 20, but always under the control of the judicial authority or the Commissioner in charge of the inquest on Swiss territory17.
Where the Letter of Request concerns production of documentary evidence, the parties may formulate additional questions with regard to the content of the documents or to the list of allegations contained in the Letter of Request. Imperatively, the method to proceed is by addressing the question to the Judge or the Commissioner, who will then redirect the question to the person or entity concerned.
In my experience, it is possible to reconcile the needs of pre-trial discovery under common law with the restrictions imposed by continental law in the interest of all parties concerned. Counsel will have to work hard to circumscribe in detail what evidence is relevant for the solution of the case in favour of his client and be clear cut in the options taken, the persons to be interrogated and the documents to be produced. This discipline will help to reduce the volume of useless and irrelevant documentation and streamline evidentiary proceedings. Burdening the Courts with irrelevant information has, in my experience, never served the interests of the parties, since the Judges just see and cut through such materials to come to the point, the crux of the matter, whichever that may be. The juge d’appui who is not involved in the main litigation will also be more inclined to help against a reticent party or witness if the purpose of the inquest shows that it pursues a clear and accessible aim.
As to the persons and entities having to produce the evidence, I personally see no point in pressing them to engage in burdensome, time and money consuming hearings and producing voluminous, albeit irrelevant or unimportant documentation, causing them unjustified grievance, especially if they are not parties to the proceeding at the main forum. An unwilling, aggrieved witness is in general not very useful in civil or commercial proceedings. Getting to the point as efficiently as possible should be and remain the main aim.
Annexure: English version The Hague Conference Convention N°20 on the Taking of Evidence Abroad in Civil or Commercial Matters of March 18, 1970
Books: FF Feuille fédérale: official publication of the Swiss Parliament containing projects of law, messages of the government to comment and introduce drafted legislation, treaties, etc. plus legal texts as amended and accepted; can be found on internet at http://www.admin.ch/ch/f/ff/index.html
RS Recueil systématique : official publication of laws and treaties of the Swiss Confederation. Internet address: http://www.admin.ch/ch/f/rs/rs.html
Jurisprudences: ATF Arrêt du Tribunal Fédéral : judgment of the Swiss Supreme Court, published in specific official collections, referred to as ATF (in French), or BGE (German) with a number; they can be found on internet at http://www.bger.ch/fr/index.htm
1. ATF 114 IV 128
2. Conseil fédéral (ATF 8G.125/2003 du 9 décembre 2003)
3. FF 145, 1993 vol. III p.1198 ch. 142.3
4. FF 145/ 1993 vol. III p. 1198 ch. 142.31 et 142.32
5. RS 0.274.132 Convention sur l’obtention des preuves à l’étranger en matière civile ou commerciale, ad articles 2 et 24p.20, Liste des autorités suisses p.21
6. Art. 3a)-d) The Hague Convention N° 20
7. RS 0.274.132 Convention sur l’obtention des preuves à l’étranger en matière
civile ou commerciale, ad articles 2 et 24p.20, Liste des autorités suisses p.21
8. Art. 321 Swiss Criminal Code
9. Art. 236 lit b) Code de procédure civile de Neuchâtel CPCN) du 30 septembre 1991 ; art. 227 Loi de procédure civile Genève, e.g. « 1. Ne sont pas obligées de déposer en justice les personnes dépositaires par état ou profession des secrets qu’on leur confie. Toutefois, ces personnes sont dans l’obligation de témoigner sur les faits constatés par un acte authentique, auquel elles ont été parties ou auquel elles ont participé comme notaire ou témoins instrumentaires, si l’exactitude de ces faits est contestée. 2. Les personnes soumises au secret de fonction sont tenues de témoigner si l’autorité supérieure compétente les a déliées de leur secret de fonction, à moins qu’elles ne puissent ou ne doivent s’en abstenir au regard d’un autre secret protégé par la loi. »
10. Office fédéral de la Justice, Division des affaires internationales, Section du droit international privé, Taubenstrasse 16, 3003 Bern
11. Art. 17 and 35 lit.b) The Hague Convention N° 20
12. Code de procédure civile de Neuchâtel, art. 236 lit b) ; Loi de procédure civile genevoise, art. 227
13. Art. 10 The Hague Convention N° 20
14. FF 145, 1993, vol. III p. 1200 ch, 142.3.
15. ATF 1P.359/2001 du 1er octobre 2001, c. a) – d) ; ATF 8G.9/2004 du 23 mars 2004
16. i.e. Lawyer’s work product
17. ATF 114 IV 130
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.