Principle Of ‘Lex Fori’ As Under Hague Convention In Case Laws

Introduction

In the United States, the Aérospatiale case highlighted the challenge of obtaining evidence from foreign countries for legal proceedings. The Supreme Court ruled that the Hague Evidence Convention doesn’t exclusively dictate procedures for gathering evidence abroad. Instead, it emphasized evaluating each request’s compliance with a U.S. court order without solely adhering to the Convention, emphasizing the law where the case was filed.

Meanwhile, the European Court, in Isabelle Lancray SA v. Peters and Sickert KG, addressed service of legal documents across borders. Despite a forum selection clause designating French law and jurisdiction, issues arose regarding service of notices in Germany. The Court clarified that under the Brussels Convention, effective service must meet both timing and validity requirements. It emphasized that the law governing whether defective service can be corrected is that of the state where the judgment was given. Hence, the European Court followed French law, which doesn’t allow cure for invalid service, rendering the French decision unrecognizable in Germany due to the service’s incurable defect.

THE UNITED STATES

The ability of U.S. judicial authorities to direct the collection of evidence located in a foreign country has been debated in U.S. courts, and the Supreme Court has examined this matter in a few cases. The best-known case on this matter is the Aérospatiale case.[i] In this case, American plaintiffs brought suit in the United States to recover damages suffered in a crash of an aircraft built and sold by two French corporations owned by the Republic of France. The crash took place in Iowa. After service of process, defendants answered the complaints and initial discovery was conducted by both parties in accordance with the Federal Rules of Civil Procedure. Following this initial discovery, plaintiffs served a second request for the production of documents, a set of interrogatories, and requests for admission. The defendants requested that all this evidence, located in France, be obtained in accordance with The Hague Evidence Convention because both France and the United States are parties. The defendants invoked the French Penal Code’s prohibition against the collection of evidence in France for presentation abroad unless permitted by international agreement. They claimed that the French companies would violate French criminal law if they were to comply with the request made by the U.S. judicial authorities.

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Principle of lex fori

The Supreme Court held that the Hague Evidence Convention, although duly ratified by both the United States and France, does not establish the exclusive and mandatory procedures for obtaining documents and information located within the territory of a foreign signatory state.

The Court observed that the goal of the Convention is to facilitate the transmission and execution of letters of request and to improve mutual judicial cooperation in civil and commercial matters; the Court found the wording of the Convention supports this understanding.

Thus, the Court decided that the Hague Evidence Convention was not the only means to gather evidence abroad and remanded the case for further proceedings. The lower courts would have to examine each piece of evidence requested to see if compliance with a U.S. court’s order should be considered seriously abusive against France. This conclusion emphasizes the law of the State where the case was filed, without regard to the law of the state where the procedure is to be performed.

EUROPEAN COURT’S CASES

The European Court adopted rule of law of State of origin in Isabelle Lancray SA v. Peters and Sickert KG.[ii]In this case, Lancray, a French company, contracted with Peters, a German company, to distribute Lancray’s product in Germany. After some time, Lancray was no longer satisfied with Peters’ performance and terminated the contract. Lancray obtained a court injunction in Germany prohibiting Peters from selling Lancray’s products. Lancray then filed suit in France for a confirmation of the injunction granted by the German court and for additional relief.

According to a forum selection clause in an agreement between the companies, French law was to be applied and the Tribunal of Commerce in Nanterre, France would have exclusive jurisdiction over any problem arising from the contract. French authorities sent the complaint and several documents to be served on Peters in Germany. All documents were drafted in French, and some had English translations. Peters received other notifications by mail, also in French. Soon after, Peters sent a letter to the Tribunal in Nanterre stating that service and all notifications in the judicial proceeding were not valid since they did not contain the necessary German translation. Peters sent this letter in German. Peters did not appear before the Tribunal of Commerce in Nanterre, and this court ruled against it. In accordance with the Brussels Convention, Lancray requested recognition of the French judgment in Germany. Both France and Germany consider service of notices written in French, but served in a German jurisdiction, to be invalid. While French legislation, however, does not allow subsequent validation of invalid service, German legislation does permit an invalid service to be validated by the defendant’s subsequent behavior.

The European Court replied with the following conclusions:

(1) The two requirements established by the convention–due service and service in sufficient time– are cumulative–i.e., service, even if timely, is only effective if validly performed, and

(2) To determine whether defective service can be cured, the applicable law is the law of the forum– the law of the state in which judgment was given–and not the law of the place where recognition is sought.

Thus, the Court did not follow German law under which, if the party was aware of a suit against him or her, invalid service would not hinder the case. The Court applied French law instead, under which an invalid service cannot be cured even if the party had knowledge of the suit. Therefore, because French law–the law of the State of origin—does not permit service to be cured, the French decision could not be recognized in Germany, where this defect of service was curable.

Author: Ipsita Sinha, in case of any queries please contact/write back to us via email chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

REFERENCES

[i]Société Nationale Industrielle Aérospatiale v. United States District Court for the Southern District of Iowa,

482 U.S. 522 (1987).

[ii]Case C-305/88, Isabelle Lancray SA v. Peters and Sickert KG, 1990 E.C.R. I-2725, [1990].

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