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lundi 18 février 2013

Legal framework of an International Letter of Request to be enforced in France

By Guillaume Fort. A Letter of Request is a formal request from a court in one country to the appropriate judicial authorities in another country requesting service of process. Although statutory authority generally refers to the instrument as a "letter rogatory", the terms "letter rogatory" and "letter of request" (which is used specifically in the Hague Evidence Convention of 18 March 1970[1]) have come to be virtually synonymous in actual practice.

1. Procedure
The French Foreign Ministry refers all incoming Letter of Request to the Ministry of Justice, which forwards them to the Public Prosecutor (hereafter the “Ministère Public”) attached to the “Tribunal de Grande Instance” to which they are addressed.

Then, the “Ministère Public” forwards the letter to the proper court and so informs the requesting authority. The “Ministère Public” makes sure that enforcement of the Letter of Request will not infringe on French sovereignty, security and public policy.

Incoming Letters of Request are always transmitted to the President of the court. Generally, he assigns to one judge of his court to execute them.

2. Enforcement
Pursuant to article 9 of the Hague Evidence Convention, “the judicial authority which executes a Letter of Request shall apply its own law as to the methods and procedures to be followed.

However, it will follow a request of the requesting authority that a special method or procedure be followed, unless this is incompatible with the internal law of the State of execution or is impossible of performance by reason of its internal practice and procedure or by reason of practical difficulties. A Letter of Request shall be executed expeditiously.”

The judicial authority shall inform the requesting authority of the time when and the place where, the proceedings will take place, in order that the parties involved, and their representatives[2], if any, may be present. This information shall be sent directly to the parties or their representatives when the authority of the State of origin so requests.

Under article 731 of French Civil Procedure Code (“Code de procédure civile”), parties[3] are not requested to be represented by a local lawyer. Parties may, with the judge’s approval, ask questions, expressed or translated in French. The same rule is applicable for answers.

The “Ministère Public” shall ensure that enforcement of Letters of Request comply with the general principles for the conduct of proceedings set out in articles 1 to 24 of the Civil Procedure Code. Under article 744 of the Civil Procedure Code, any violation of those principles allows the “Ministère Public” and any interested parties to request the judge to report back on any measure taken by him or to cancel totally or partially any act in relation with the enforcement of Letters of Request.

Although the majority of Letters of Request is enforced without question, the proper court who receives this act from the “Ministère Public” is not bound to execute it under articles 743 and 745 of the Civil Procedure Code. The court may still determine whether or not their execution would violate French public policy or be otherwise illegal.

In Paris, the enforcement of Letters of Request is usually ensured by the same judge, who is an expert in these matters. The judge, by order, sets a day for the execution of the Letters.
The execution of the Letter of Request shall not give rise to any reimbursement of taxes or costs of any nature.

3. Appeal 
Pursuant to article 746 of the Civil Procedure Code, Parties and the “Ministère Public” may appeal the decision whereby the court:
- refuse to enforce Letters of Request;
- cancel any act taking into account the enforcement of Letters of Request;
- report (or refuse to report) back on any measure enforcing the Letter of Request and already taken by an incompetent court, initially assigned on the Letter.

The delay of appeal is of fifteen (15) days following the delivery of the decision.

4. Jurisdiction 
In France, areas of material jurisdiction are related to the nature of the dispute. When there is a dispute between two commercial companies, commercial courts should be competent according to article L721-3 of the Commercial Code (“Code de commerce”).
Since The Hague Evidence Convention was brought into force, the French practice, regardless of the existing rules, was to assign Letter of Request to French civil courts (“Tribunal de Grande Instance”), which have experience in this matter.

Pursuant to article L441-1 of the Code of Judicial Organization (“Code de l’Organisation Judiciaire”), any court of first instance may, by a decision not opened to appeal, request the opinion of the French Supreme Court (“Cour de Cassation”) in respect of questions of law which are new, particularly difficult and raised in numerous cases[4].

In the end, the French Supreme Court should examine this issue and decide whether the pragmatic approach on jurisdiction of civil courts shall prevail instead of the legal competence of commercial courts regarding the nature of the dispute and the parties.

Nota Bene:
[1] Convention of the taking of evidence abroad in civil or commercial matter concluded 18 March 1970.
[2] Neither the Hague Evidence Convention nor the Civil Procedure Code give a definition of the term “representative”. However, it appears that parties may be assisted by a foreign lawyer of their choice, provided that this lawyer is well-qualified in his country.
[3] The term « parties » means all parties to the proceedings and their representatives and also persons to be examined.
[4] However, the court will not be bound by the opinion delivered by the “Cour de Cassation”

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