《INTERNATIONAL JUDICIAL ASSISTANCE VOLUME I》求取 ⇩

PART Ⅰ. HISTORICAL NOTE ON JUDICIAL ASSISTANCE IN THE UNITED STATES IN CIVIL AND COMMERCIAL MATTERS1

Sec. A.1-1. United States Legislation and Practice1

Sec. B.1-2. United States Participation in the Codification of Rules of International Judicial Assistance in Europe4

Sec. C.1-3. United States Participation in the Codification of Rules of International Judicial Assistance in the American Hemisphere7

Sec. D.1-4. The 1964 Revisions of United States Law Relating to International Judicial Assistance9

PART Ⅱ. AMERICAN ASSISTANCE TO FOREIGN COURTS OR LITIGANTS IN THE ABSENCE OF A CONVENTION OR TREATY14

Chapter 1. Service of Foreign Judicial Documents14

Sec. A. Applicable Federal Statutory Provision and Legislative History14

2-1. 1. Title 28, United States Code, Sec. 169614

2-2. 2. Legislative History14

Sec. B. Applicable State Statutory Provision and Legislative History16

2-3. 1. Uniform Interstate and International Procedure Act, Sec. 2.0416

2-4. 2. Official Commentary16

Sec. C. 2-5. Unofficial (Private) Service17

Sec. D. Official Service18

2-6. 1. Form of Request18

2-7. 2. Presentation of the Request19

2-8. 3. Form of Application for an Order to Serve a Foreign Judicial Document20

2-9. 4. Form of Court Order Directing Service of Foreign Judicial Document by U.S. Marshal Service21

2-10. 5. Form of Court Order Directing Service of Foreign Judicial Document by Person Specifically Appointed for that Purpose22

2-11. 6. Content of the Request23

2-12. 7. Reciprocity23

2-13. 8. Translations23

2-14. 9. Costs23

2-15. 10. Time within which Foreign Service Requests are Executed24

2-16. 11. Return of Executed Service Requests24

2-17. 12. Manner of Service25

a. Mail Service25

b. Personal Service25

Ⅰ. upon an individual25

Ⅱ. upon a corporation, partnership or an unincorporated association which is subject to suit25

2-18. 13. Form of "Notice and Acknowledgement for Service by Mail"26

Chapter 2. Obtaining Evidence on Behalf of Foreign Courts or Litigants30

Sec. A. Applicable Federal Statutory Provision and Legislative History30

2-19. 1. Title 28, United States Code, Sec. 178230

2-20. 2. Legislative History31

Sec. B. Applicable State Statutory Provision and Legislative History35

2-21. 1. Uniform Interstate and International Procedure Act, Sec. 3.0235

2-22. 2. Official Commentary35

Sec. C.2-23. Obtaining Evidence without the Interposition of United States Federal or State Authorities37

Sec. D.2-24. Obtaining Evidence with the Assistance of United States Court37

2-25. 1. Form of Request38

2-26. 2. Presentation of the Request38

2-27. 3. Form of Application for an Order to Obtain the Testimony of a Witness or Party39

2-28. 4. Form of Court Order Directing the Taking of Testimony in Response to a Letter of Request: A Commissioner to Execute the Request40

2-29. 5. Form of Court Order Directing the Performance of a Blood Grouping Test in Response to a Letter of Request41

2-30. 6. Foreign Authorities Qualified to Submit Evidentiary Requests42

2-31. 7. Persons who can be Designed as "Commissioners" to Execute a Foreign Letter of Request43

2-32. 8. Contents of the Request44

2-33. 9. Translations45

2-34. 10. Reciprocity45

2-35. 11. Manner of Execution46

2-36. 12. Witness' Summary Statement in Response to a Letter of Request46

2-37. 13. Costs48

PART Ⅲ. FOREIGN ASSISTANCE TO AMERICAN COURTS OR LITIGANTS IN THE ABSENCE OF A CONVENTION OR TREATY53

Chapter 1. Service of American Judicial Documents Abroad53

Sec. A. Applicable Provision of Federal Rules of Civil Procedure and Notes of Advisory Committee on Rules53

3-1. 1. Federal Rule of Civil Procedure 4(e).53

3-2. 2. Federal Rule of Civil Procedure 4(i)54

3-3. 3. The 1963 Notes of the Advisory Committee on Rules54

Sec. B. Applicable State Statutory Provisions and Legislative History60

3-4. 1. Uniform Interstate and International Procedure Act, Sections 2.01 and 2.0260

3-5. 2. Official Commentary61

Sec. C. 3-6. General Observations on Service Abroad65

Sec. D. 3-7. U.S. Department of State does not Usually Serve Process Abroad66

Sec. E. 3-8. U.S. Department of State Assistance on Current Practices of Foreign States Regarding Service of American Judicial Documents67

Sec. F. 3-9. Service Abroad Must be Authorized by Federal or State Law68

Sec. G. 3-10. Service Abroad Must Comport with Due Process68

Sec. H. 3-11. Service Abroad need not Comport with Federal Law to be Valid under United States Law69

Sec. I. 3-12. Instructions of Administrative Office of U.S. Courts Concerning Mail Service Abroad69

Sec. J. 3-13. Examples of Statutes Permitting Extraterritorial Service71

Sec. K. 3-14. Advantages and Disadvantages of the Five Alternative Methods for Service Abroad Provided in Rule (i)72

Sec. L. 3-15. Form for Application for the Issuance of a Letter of Request to Serve a Judicial Document74

Sec. M. 3-16. Form of Letter of Request for Service Abroad75

Sec. N. 3-17. Grounds for Denying American Letters of Request Seeking Service of Documents77

Sec. O. 3-18. Service on Foreign States77

3-19. 1. Four Alternative Methods for Service on Foreign States or on Political Subdivisions of Foreign States78

3-20. 2. Six Alternative Methods for Service on Agencies and Instrumentalities of Foreign States78

3-21. 3. Notice of Suit79

Chapter 2. Taking of Evidence Abroad in Aid of United States Litigation Without the Intervention of a Foreign Authority83

Sec. A. Applicable Federal Statutory Provisions and Rules83

3-22. 1. Title 22, United States Code, Sections 4215 and 422183

3-23. 2. Federal Rule of Civil Procedure 28(b)84

3-24. 3. Notes of the Advisory Committee on Rules: 1963 Amendment to Rule 28(b)85

3-25. 4. United States Consular Regulations88

Sec. B. 3-26. Applicable State Provisions for the Taking of Testimony Abroad88

Sec. C. 3-27. Introductory Note on the Taking of Evidence Abroad Without the Aid of Foreign Authorities90

3-28. 1. Deposition by Stipulation of Parties91

3-29. 2. Deposition on Notice91

3-30. 3. Deposition by Commission92

Sec. D. 3-31. Form for an Application for an Order to Take a Deposition in a Foreign Country94

Sec. E. 3-32. Form for a Court Order to Take a Deposition in a Foreign Country.95

Sec. F. 3-33. The Duties and Functions of U.S. Consular Officers in Taking Depositions Abroad96

Sec. G. 3-34. Department of State Memorandum on Taking of Depositions Before U.S. Consular Officers98

Sec. H. 3-35. Department of State Instructions to Consular Posts on Taking of Depositions by U.S. Consular Officers102

Chapter 3. Taking of Evidence Abroad in Aid of United States Litigation With the Aid of a Foreign Authority106

Sec. A. 3-36. Obtaining Evidence Abroad with the Aid of Foreign Authorities106

Sec. B. 3-37. The Formal Requirements of a Letter of Request106

3-38. 1. Contents of a Letter of Request107

3-39. 2. Number of Copies; Translations108

3-40. 3. Presentation of a Letter of Request to a United States Court for Issuance109

3-41. 4. Form of Stipulation for the Issuance of a Letter of Request110

3-42. 5. Application for the Issuance of a Letter of Request111

3-43. 6. Form of a Letter of Request112

3-44. 7. Another Form of a Letter of Request114

Sec. C. 3-45. Transmittal of Letters of Request to the Requested Tribunal115

Sec. D. 3-46. Refusals to Execute American Letters of Request116

Sec. E. 3-47. Final Observations on the Use of Letters of Request116

PART Ⅳ. CONVENTION ON THE SERVICE ABROAD OF JUDICIAL AND EXTRAJUDICIAL DOCUMENTS IN CIVIL OR COMMERCIAL MATTERS, DONE AT THE HAGUE, NOVEMBER 16, 1965118

Chapter 1. The Convention118

Sec. A. 4-1. Purpose and Overview of the Convention118

Sec. B. 4-2. Parties to the Convention119

Sec. C. 4-3. Structure of the Convention119

Sec. D. Scope of the Convention120

4-4. 1. Limitation to "Civil or Commercial Matters"120

4-5. 2. Meaning of "Service"123

4-6. 3. Addressees of Service Requests—Service on Foreign States123

4-7. 4. Unknown Address125

4-8. 5. Service on Diplomats126

4-9. 6. Limitation to "Judicial and Extrajudicial" Documents127

Sec. E. 4-10. Mandatory Character of the Convention128

Chapter 2. The Mechanics of the Convention134

Sec. A. 4-11. The "Central Authority"134

Sec. B. 4-12. Authorities Who Are Competent to Request Service136

Sec. C. Requests Under the Convention137

4-13. 1. Mandatory Use of the Model Forms137

4-14. 2. Recommended Additional Information to Accompany Service Requests142

4-15. 3. Instructions for Filling Out the Additional Recommended Notice144

4-16. 4. Attachments to the Request; Number of Copies146

4-17. 5. Translations147

Sec. D. Transmittal of Requests153

4-18. 1. Direct Transmittal to the "Central Authority"153

4-19. 2. Alternate Channels of Transmittal153

Chapter 3. Execution of Requests155

Sec. A. 4-20. Manner of Service155

4-21. 1. Formal Service Under Local Law155

4-22. 2. Service by a Particular Method158

4-23. 3. Informal Delivery160

Sec. B. 4-24. Time within which Service is to be Made161

Sec. C. 4-25. Costs162

Sec. D. 4-26. Return of Executed Requests163

Sec. E. Alternate Methods of Service164

4-27. 1. Service by Diplomatic or Consular Agents164

4-28. 2. Service by Mail165

4-29. 3. Other Methods of Service without the Aid of the Central Authority167

4-30. 4. Table of Alternate Methods of Service169

Chapter 4. Refusal to Execute Requests170

Sec. A. 4-31. Defects as to Form170

Sec. B. 4-32. Substantive Defects171

Chapter 5. Relief from Default Judgments172

Sec. A. 4-33. Requirement of a Showing of Service before Entry of Default172

Sec. B. 4-34. Relief from Default Judgement173

PART Ⅴ. CONVENTION ON THE TAKING OF EVIDENCE ABROAD IN CIVIL OR COMMERCIAL MATTERS, DONE AT THE HAGUE, MARCH 17, 1970177

Chapter 1. The Convention177

Sec. A. 5-1. Purpose and Overview of the Convention177

Sec. B. 5-2. Parties to the Convention178

Sec. C. 5-3. Structure of the Convention179

Sec. D. Scope of the Convention180

5-4. 1. Limitation to "Civil or Commercial Matters"180

5-5. 2. Limitation to "Judicial Authority"183

5-6. 3. The Meaning of "To Obtain Evidence or Perform Some Other Judicial Act"184

5-7. 4. The Meaning of "Judicial Proceedings, Commenced or Contemplated"186

Sec. E. The "Central Authority"187

5-8. 1. Mandatory Establishment of a Central Authority187

5-9. 2. Transmittal of the Letters of Request to the Central Authority187

5-10. 3. Special Arrangements for the Transmittal of Letters of Request190

5-11. 4. Return of Executed Letters of Request190

Chapter 2. Letters of Request192

Sec. A. Content of the Letter of Request192

5-12. 1. Information to be Supplied by the Requesting Authority192

5-13. 2. Recommended Form for Letters of Request194

5-14. 3. Sample Application to a U.S. Court for the Issuance of a Letter of Request under the Convention195

5-15. 4. Sample of a Letter of Request Using the Recommended Form; Request for Testimony of Witnesses on Written Questions, with Follow-up Questions to be Asked by the Attorneys for the Parties197

5-16. 5. Another Sample of a Letter of Request Using the Recommended Form; Request for Documents203

5-17. 6. Attachments to the Letter of Request205

5-18. 7. Number of Copies206

5-19. 8. Translations of Letters of Request206

5-20. 9. Certification of Translations208

Sec. B. Execution of Letters of Request209

5-21. 1. Procedure to be Used—Generally209

2. Conditions Under which a "Special Method or Procedure" Need not be Applied210

5-22. a. Incompatibility with Internal Law210

5-23. b. Impossibility of Performance211

5-24. 3. Place and Time of Execution — Notification213

5-25. 4. Presence of the Parties and Their Representatives214

5-26. 5. Presence of Foreign Judges214

5-27. 6. Compulsion against Witnesses215

5-28. 7. Privileges and Immunities of Witnesses216

5-29. a. Privilege Under the Law of the State of Execution216

5-30. b. Privilege Under the Law of the State of Origin217

5-31. c. Privilege Under the Law of the State of Origin and of a Third State218

5-32. 8. Sanctions against Recalcitrant Witnesses: Perjury220

Sec. C. 5-33. Objection to, and Refusal to Execute Letters of Request220

Sec. D. 5-34. Costs224

Sec. E. Letters of Request Relating to Pre-Trial Discovery228

5-35. 1. Declarations Under Article 23228

5-36. 2. Pre-Trial Testimony not Barred by Declarations Under Article 23233

3. Foreign Court Interpretations of Declarations Under Article 23235

5-37. a. Germany235

5-38. b. United Kingdom244

Sec. F. 5-39. Utilization of Evidence Obtained Pursuant to a Letter of Request in Other Proceedings251

Sec. G. 5-40. The Effect of the Convention Upon the Domestic Law of the United States253

Chapter 3. Taking of Evidence by Consuls and by Court-Appointed Commissioners257

Sec. A. 5-41. Generally257

Sec. B. Authority of Consuls to Obtain Evidence259

5-42. 1. Evidence Given by the Consul's own Nationals259

5-43. 2. Evidence Given by National of the Host Country or Third-Country Nationals260

5-44. 3. Procedure for the Taking of Evidence by Consuls260

5-45. 4. Availability of Court Compulsion261

Sec. C. 5-46. Authority of Court-Appointed Commissioners to Take Evidence262

PART Ⅵ. CONVENTION ABOLISHING THE REQUIREMENT OF LEGALIZATION FOR FOREIGN PUBLIC DOCUMENTS, DONE AT THE HAGUE OCTOBER 5, 1961269

Chapter 1. The Convention269

Sec. A. 6-1. Purpose and Overview of the Convention269

Sec. B. 6-2. Parties to the Convention270

Sec. C. 6-3. Structure of the Convention271

Chapter 2. The Machinery of the Convention273

Sec. A. 6-4. Documents Covered273

Sec. B. 6-5. Legalization Defined275

Sec. C. 6-6. The Apostille276

6-7. 1. The Permanent Registry of Apostilles277

6-8. 2. Effect of the Apostille277

Sec. D. 6-9. Effect on Other International Agreements Regulating Legalization278

Sec. E. 6-10. Implementing Instruction by the Administrative Office of the United States Court278

Sec. F. 6-11. Sample of an Executed Apostille283

Sec. G. 6-12. Statement by the United States Department of State in Connection with the Deposit by the United States of America of its Instrument of Accession to the 1961 Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents284

PART Ⅶ. THE INTER-AMERICAN CONVENTION ON LETTERS ROGATORY OF JANUARY 30, 1975, AND THE ADDITIONAL PROTOCOL THERETO OF MAY 8, 1979285

PART Ⅷ. THE INTER-AMERICAN CONVENTION ON THE TAKING OF EVIDENCE ABROAD OF JANUARY 30, 1975287

PART Ⅸ. THE HAGUE CONVENTION ON THE CIVIL ASPECTS OF INTERNATIONAL CHILD ABDUCTION289

BIBLIOGRAPHY290