`
`20. CONVENTION ON THE TAKING OF EVIDENCE
`ABROAD IN CIVIL OR COMMERCIAL MATTERS1
`
`(Concluded 18 March 1970)
`
`
`
`
`
`The States signatory to the present Convention,
`Desiring to facilitate the transmission and execution of Letters of Request and to further the
`accommodation of the different methods which they use for this purpose,
`Desiring to improve mutual judicial co-operation in civil or commercial matters,
`Have resolved to conclude a Convention to this effect and have agreed upon the following provisions –
`
`
`
`CHAPTER I – LETTERS OF REQUEST
`
`
`
`
`Article 1
`
`
`In civil or commercial matters a judicial authority of a Contracting State may, in accordance with the
`provisions of the law of that State, request the competent authority of another Contracting State, by
`means of a Letter of Request, to obtain evidence, or to perform some other judicial act.
`A Letter shall not be used to obtain evidence which is not intended for use in judicial proceedings,
`commenced or contemplated.
`The expression "other judicial act" does not cover the service of judicial documents or the issuance of
`any process by which judgments or orders are executed or enforced, or orders for provisional or
`protective measures.
`
`
`
`Article 2
`
` A
`
` Contracting State shall designate a Central Authority which will undertake to receive Letters of Request
`coming from a judicial authority of another Contracting State and to transmit them to the authority
`competent to execute them. Each State shall organise the Central Authority in accordance with its own
`law.
`Letters shall be sent to the Central Authority of the State of execution without being transmitted through
`any other authority of that State.
`
`
`
`Article 3
`
` A
`
` Letter of Request shall specify –
`a)
`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 thereto;
`the evidence to be obtained or other judicial act to be performed.
`
`b)
`c)
`
`d)
`
`
`1 This Convention, including related materials, is accessible on the website of the Hague Conference on Private
`International Law (www.hcch.net), under “Conventions” or under the “Evidence Section”. For the full history of the
`Convention, see Hague Conference on Private International Law, Actes et documents de la Onzième session
`(1968), Tome IV, Obtention des preuves (219 pp.).
`
`
`Microsoft, Ex. 1040
`Microsoft v. Bradium, IPR2016-01897
`
`
`
`Where appropriate, the Letter shall specify, inter alia –
`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 the evidence 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.
`
`e)
`f)
`
`g)
`h)
`
`i)
`
` A
`
` Letter may also mention any information necessary for the application of Article 11.
`No legalisation or other like formality may be required.
`
`
`
`Article 4
`
` A
`
` Letter of Request shall be in the language of the authority requested to execute it or be accompanied
`by a translation into that language.
`Nevertheless, a Contracting State shall accept a Letter in either English or French, or a translation into
`one of these languages, unless it has made the reservation authorised by Article 33.
`A Contracting State which has more than one official language and cannot, for reasons of internal law,
`accept Letters in one of these languages for the whole of its territory, shall, by declaration, specify the
`language in which the Letter or translation thereof shall be expressed for execution in the specified parts
`of its territory. In case of failure to comply with this declaration, without justifiable excuse, the costs of
`translation into the required language shall be borne by the State of origin.
`A Contracting State may, by declaration, specify the language or languages other than those referred to
`in the preceding paragraphs, in which a Letter may be sent to its Central Authority.
`Any translation accompanying a Letter shall be certified as correct, either by a diplomatic officer or
`consular agent or by a sworn translator or by any other person so authorised in either State.
`
`
`
`Article 5
`
`
`If the Central Authority considers that the request does not comply with the provisions of the present
`Convention, it shall promptly inform the authority of the State of origin which transmitted the Letter of
`Request, specifying the objections to the Letter.
`
`
`
`Article 6
`
`
`If the authority to whom a Letter of Request has been transmitted is not competent to execute it, the
`Letter shall be sent forthwith to the authority in the same State which is competent to execute it in
`accordance with the provisions of its own law.
`
`
`
`Article 7
`
`
`The requesting authority shall, if it so desires, be informed of the time when, and the place where, the
`proceedings will take place, in order that the parties concerned, and their representatives, 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.
`
`
`
`Article 8
`
` A
`
` Contracting State may declare that members of the judicial personnel of the requesting authority of
`another Contracting State may be present at the execution of a Letter of Request. Prior authorisation by
`the competent authority designated by the declaring State may be required.
`
`
`
`
`The judicial authority which executes a Letter of Request shall apply its own law as to the methods and
`procedures to be followed.
`
`Article 9
`
`Microsoft, Ex. 1040
`Microsoft v. Bradium, IPR2016-01897
`
`
`
`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.
`
`
`
`Article 10
`
`
`In executing a Letter of Request the requested authority shall apply the appropriate measures of
`compulsion in the instances and to the same extent as are provided by its internal law for the execution
`of orders issued by the authorities of its own country or of requests made by parties in internal
`proceedings.
`
`
`
`Article 11
`
`
`In the execution of a Letter of Request the person concerned may refuse to give evidence in so far as
`he has a privilege or duty to refuse to give the evidence –
`a)
`under the law of the State of execution; or
`b)
`under the law of the State of origin, and the privilege or duty has been specified in the Letter, or,
`at the instance of the requested authority, has been otherwise confirmed to that authority by the
`requesting authority.
`
` A
`
` Contracting State may declare that, in addition, it will respect privileges and duties existing under the
`law of States other than the State of origin and the State of execution, to the extent specified in that
`declaration.
`
`
`
`Article 12
`
`
`The execution of a Letter of Request may be refused only to the extent that –
`a)
`in the State of execution the execution of the Letter does not fall within the functions of the
`judiciary; or
`the State addressed considers that its sovereignty or security would be prejudiced thereby.
`
`b)
`
`Execution may not be refused solely on the ground that under its internal law the State of execution
`claims exclusive jurisdiction over the subject-matter of the action or that its internal law would not admit
`a right of action on it.
`
`
`
`Article 13
`
`
`The documents establishing the execution of the Letter of Request shall be sent by the requested
`authority to the requesting authority by the same channel which was used by the latter.
`In every instance where the Letter is not executed in whole or in part, the requesting authority shall be
`informed immediately through the same channel and advised of the reasons.
`
`
`
`Article 14
`
`
`The execution of the Letter of Request shall not give rise to any reimbursement of taxes or costs of any
`nature.
`Nevertheless, the State of execution has the right to require the State of origin to reimburse the fees
`paid to experts and interpreters and the costs occasioned by the use of a special procedure requested
`by the State of origin under Article 9, paragraph 2.
`The requested authority whose law obliges the parties themselves to secure evidence, and which is not
`able itself to execute the Letter, may, after having obtained the consent of the requesting authority,
`appoint a suitable person to do so. When seeking this consent the requested authority shall indicate the
`approximate costs which would result from this procedure. If the requesting authority gives its consent it
`shall reimburse any costs incurred; without such consent the requesting authority shall not be liable for
`the costs.
`
`
`
`Microsoft, Ex. 1040
`Microsoft v. Bradium, IPR2016-01897
`
`
`
`CHAPTER II – TAKING OF EVIDENCE BY DIPLOMATIC OFFICERS, CONSULAR AGENTS AND COMMISSIONERS
`
`
`
`
`Article 15
`
`
`In a civil or commercial matter, a diplomatic officer or consular agent of a Contracting State may, in the
`territory of another Contracting State and within the area where he exercises his functions, take the
`evidence without compulsion of nationals of a State which he represents in aid of proceedings
`commenced in the courts of a State which he represents.
`A Contracting State may declare that evidence may be taken by a diplomatic officer or consular agent
`only if permission to that effect is given upon application made by him or on his behalf to the appropriate
`authority designated by the declaring State.
`
`
`
`Article 16
`
` A
`
` diplomatic officer or consular agent of a Contracting State may, in the territory of another Contracting
`State and within the area where he exercises his functions, also take the evidence, without compulsion,
`of nationals of the State in which he exercises his functions or of a third State, in aid of proceedings
`commenced in the courts of a State which he represents, if –
`a)
`a competent authority designated by the State in which he exercises his functions has given its
`permission either generally or in the particular case, and
`he complies with the conditions which the competent authority has specified in the permission.
`
`b)
`
` A
`
` Contracting State may declare that evidence may be taken under this Article without its prior
`permission.
`
`
`
`Article 17
`
`
`In a civil or commercial matter, a person duly appointed as a commissioner for the purpose may, without
`compulsion, take evidence in the territory of a Contracting State in aid of proceedings commenced in the
`courts of another Contracting State if –
`a)
`a competent authority designated by the State where the evidence is to be taken has given its
`permission either generally or in the particular case; and
`he complies with the conditions which the competent authority has specified in the permission.
`
`b)
`
` A
`
` Contracting State may declare that evidence may be taken under this Article without its prior
`permission.
`
`
`
`Article 18
`
` A
`
` Contracting State may declare that a diplomatic officer, consular agent or commissioner authorised 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 State 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.
`
`
`
`Article 19
`
`
`The competent authority, in giving the permission referred to in Articles 15, 16 or 17, or in granting the
`application referred to in Article 18, may lay down such conditions as it deems fit, inter alia, as to the
`time and place of the taking of the evidence. Similarly it may require that it be given reasonable advance
`notice of the time, date and place of the taking of the evidence; in such a case a representative of the
`authority shall be entitled to be present at the taking of the evidence.
`
`
`
`Microsoft, Ex. 1040
`Microsoft v. Bradium, IPR2016-01897
`
`
`
`
`In the taking of evidence under any Article of this Chapter persons concerned may be legally
`represented.
`
`
`
`Article 20
`
`Article 21
`
`b)
`
`c)
`
`
`Where a diplomatic officer, consular agent or commissioner is authorised under Articles 15, 16 or 17 to
`take evidence –
`a)
`he may take all kinds of evidence which are not incompatible with the law of the State where the
`evidence is taken or contrary to any permission granted pursuant to the above Articles, and shall
`have power within such limits to administer an oath or take an affirmation;
`a request to a person to appear or to give evidence shall, unless the recipient is a national of the
`State where the action is pending, be drawn up in the language of the place where the evidence
`is taken or be accompanied by a translation into such language;
`the request shall inform the person that he may be legally represented and, in any State that has
`not filed a declaration under Article 18, shall also inform him that he is not compelled to appear or
`to give evidence;
`the evidence may be taken in the manner provided by the law applicable to the court in which the
`action is pending provided that such manner is not forbidden by the law of the State where the
`evidence is taken;
`a person requested to give evidence may invoke the privileges and duties to refuse to give the
`evidence contained in Article 11.
`
`d)
`
`e)
`
`
`
`
`Article 22
`
`
`The fact that an attempt to take evidence under the procedure laid down in this Chapter has failed, owing
`to the refusal of a person to give evidence, shall not prevent an application being subsequently made to
`take the evidence in accordance with Chapter I.
`
`
`
`CHAPTER III – GENERAL CLAUSES
`
`
`
`
`Article 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.
`
`
`
`Article 24
`
` A
`
` Contracting State may designate other authorities in addition to the Central Authority and shall
`determine the extent of their competence. However, Letters of Request may in all cases be sent to the
`Central Authority.
`Federal States shall be free to designate more than one Central Authority.
`
`
`
`Article 25
`
` A
`
` Contracting State which has more than one legal system may designate the authorities of one of such
`systems, which shall have exclusive competence to execute Letters of Request pursuant to this
`Convention.
`
`
`
`Article 26
`
` A
`
` Contracting State, if required to do so because of constitutional limitations, may request the
`reimbursement by the State of origin of fees and costs, in connection with the execution of Letters of
`
`Microsoft, Ex. 1040
`Microsoft v. Bradium, IPR2016-01897
`
`
`
`Request, for the service of process necessary to compel the appearance of a person to give evidence,
`the costs of attendance of such persons, and the cost of any transcript of the evidence.
`Where a State has made a request pursuant to the above paragraph, any other Contracting State may
`request from that State the reimbursement of similar fees and costs.
`
`
`
`Article 27
`
`
`The provisions of the present Convention shall not prevent a Contracting State from –
`a)
`declaring that Letters of Request may be transmitted to its judicial authorities through channels
`other than those provided for in Article 2;
`permitting, by internal law or practice, any act provided for in this Convention to be performed
`upon less restrictive conditions;
`permitting, by internal law or practice, methods of taking evidence other than those provided for
`in this Convention.
`
`b)
`
`c)
`
`
`
`
`Article 28
`
`d)
`
`
`The present Convention shall not prevent an agreement between any two or more Contracting States to
`derogate from –
`a)
`the provisions of Article 2 with respect to methods of transmitting Letters of Request;
`b)
`the provisions of Article 4 with respect to the languages which may be used;
`c)
`the provisions of Article 8 with respect to the presence of judicial personnel at the execution of
`Letters;
`the provisions of Article 11 with respect to the privileges and duties of witnesses to refuse to give
`evidence;
`the provisions of Article 13 with respect to the methods of returning executed Letters to the
`requesting authority;
`the provisions of Article 14 with respect to fees and costs;
`the provisions of Chapter II.
`
`e)
`
`f)
`g)
`
`
`
`Article 29
`
`
`Between Parties to the present Convention who are also Parties to one or both of the Conventions on
`Civil Procedure signed at The Hague on the 17th of July 1905 and the 1st of March 1954, this Convention
`shall replace Articles 8-16 of the earlier Conventions.
`
`
`
`Article 30
`
`
`The present Convention shall not affect the application of Article 23 of the Convention of 1905, or of
`Article 24 of the Convention of 1954.
`
`
`
`
`Supplementary Agreements between Parties to the Conventions of 1905 and 1954 shall be considered
`as equally applicable to the present Convention unless the Parties have otherwise agreed.
`
`
`
`Article 31
`
`Article 32
`
`
`Without prejudice to the provisions of Articles 29 and 31, the present Convention shall not derogate from
`conventions containing provisions on the matters covered by this Convention to which the Contracting
`States are, or shall become Parties.
`
`
`
`Microsoft, Ex. 1040
`Microsoft v. Bradium, IPR2016-01897
`
`
`
`Article 33
`
` A
`
` State may, at the time of signature, ratification or accession exclude, in whole or in part, the application
`of the provisions of paragraph 2 of Article 4 and of Chapter II. No other reservation shall be permitted.
`Each Contracting State may at any time withdraw a reservation it has made; the reservation shall cease
`to have effect on the sixtieth day after notification of the withdrawal.
`When a State has made a reservation, any other State affected thereby may apply the same rule against
`the reserving State.
`
`
`
`Article 34
`
` A
`
` State may at any time withdraw or modify a declaration.
`
`
`
`
`Article 35
`
` A
`
` Contracting State shall, at the time of the deposit of its instrument of ratification or accession, or at a
`later date, inform the Ministry of Foreign Affairs of the Netherlands of the designation of authorities,
`pursuant to Articles 2, 8, 24 and 25.
`A Contracting State shall likewise inform the Ministry, where appropriate, of the following –
`a)
`the designation of the authorities to whom notice must be given, whose permission may be
`required, and whose assistance may be invoked in the taking of evidence by diplomatic officers
`and consular agents, pursuant to Articles 15, 16 and 18 respectively;
`the designation of the authorities whose permission may be required in the taking of evidence by
`commissioners pursuant to Article 17 and of those who may grant the assistance provided for in
`Article 18;
`declarations pursuant to Articles 4, 8, 11, 15, 16, 17, 18, 23 and 27;
`any withdrawal or modification of the above designations and declarations;
`the withdrawal of any reservation.
`
`b)
`
`c)
`d)
`e)
`
`
`
`Article 36
`
`
`Any difficulties which may arise between Contracting States in connection with the operation of this
`Convention shall be settled through diplomatic channels.
`
`
`
`Article 37
`
`
`The present Convention shall be open for signature by the States represented at the Eleventh Session
`of the Hague Conference on Private International Law.
`It shall be ratified, and the instruments of ratification shall be deposited with the Ministry of Foreign Affairs
`of the Netherlands.
`
`
`
`Article 38
`
`
`The present Convention shall enter into force on the sixtieth day after the deposit of the third instrument
`of ratification referred to in the second paragraph of Article 37.
`The Convention shall enter into force for each signatory State which ratifies subsequently on the sixtieth
`day after the deposit of its instrument of ratification.
`
`
`
`Article 39
`
`
`Any State not represented at the Eleventh Session of the Hague Conference on Private International
`Law which is a Member of this Conference or of the United Nations or of a specialised agency of that
`Organisation, or a Party to the Statute of the International Court of Justice may accede to the present
`Convention after it has entered into force in accordance with the first paragraph of Article 38.
`The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands.
`The Convention shall enter into force for a State acceding to it on the sixtieth day after the deposit of its
`instrument of accession.
`
`Microsoft, Ex. 1040
`Microsoft v. Bradium, IPR2016-01897
`
`
`
`The accession will have effect only as regards the relations between the acceding State and such
`Contracting States as will have declared their acceptance of the accession. Such declaration shall be
`deposited at the Ministry of Foreign Affairs of the Netherlands; this Ministry shall forward, through
`diplomatic channels, a certified copy to each of the Contracting States.
`The Convention will enter into force as between the acceding State and the State that has declared its
`acceptance of the accession on the sixtieth day after the deposit of the declaration of acceptance.
`
`
`
`Article 40
`
`
`Any State may, at the time of signature, ratification or accession, declare that the present Convention
`shall extend to all the territories for the international relations of which it is responsible, or to one or more
`of them. Such a declaration shall take effect on the date of entry into force of the Convention for the
`State concerned.
`At any time thereafter, such extensions shall be notified to the Ministry of Foreign Affairs of the
`Netherlands.
`The Convention shall enter into force for the territories mentioned in such an extension on the sixtieth
`day after the notification indicated in the preceding paragraph.
`
`
`
`Article 41
`
`
`The present Convention shall remain in force for five years from the date of its entry into force in
`accordance with the first paragraph of Article 38, even for States which have ratified it or acceded to it
`subsequently.
`If there has been no denunciation, it shall be renewed tacitly every five years.
`Any denunciation shall be notified to the Ministry of Foreign Affairs of the Netherlands at least six months
`before the end of the five year period.
`It may be limited to certain of the territories to which the Convention applies.
`The denunciation shall have effect only as regards the State which has notified it. The Convention shall
`remain in force for the other Contracting States.
`
`
`
`Article 42
`
`
`The Ministry of Foreign Affairs of the Netherlands shall give notice to the States referred to in Article 37,
`and to the States which have acceded in accordance with Article 39, of the following –
`a)
`the signatures and ratifications referred to in Article 37;
`b)
`the date on which the present Convention enters into force in accordance with the first paragraph
`of Article 38;
`the accessions referred to in Article 39 and the dates on which they take effect;
`the extensions referred to in Article 40 and the dates on which they take effect;
`the designations, reservations and declarations referred to in Articles 33 and 35;
`the denunciations referred to in the third paragraph of Article 41.
`
`c)
`d)
`e)
`f)
`
`
`In witness whereof the undersigned, being duly authorised thereto, have signed the present Convention.
`
`Done at The Hague, on the 18th day of March, 1970, in the English and French languages, both texts
`being equally authentic, in a single copy which shall be deposited in the archives of the Government of
`the Netherlands, and of which a certified copy shall be sent, through the diplomatic channel, to each of
`the States represented at the Eleventh Session of the Hague Conference on Private International Law.
`
`
`Microsoft, Ex. 1040
`Microsoft v. Bradium, IPR2016-01897
`
`