Chapter 443

LEGAL PROCEDURES (RATIFICATION OF CONVENTIONS) [ CAP. 443. 1 CHAPTER 443 LEGAL PROCEDURES (RATIFICATION OF CONVENTIONS) ACT To enable Malta to ratify the international conventions on the service abroad of judicial and extrajudicial documents, on the taking of evidence abroad in civil or commercial matters, on international access to justice, and on the enforcement of judgments in civil and commercial matters. 1st August, 2006 ACT IV of 2002, as amended by Acts III and XIII of 2004, and III of 2006. PART I P RELIMINARY 1. The short title of this Act is the Legal Procedures (Ratification of Conventions) Act. 2. 4; In this Act, unless the context otherwise requires - ''central authority'' means the Authority appointed under article ''Contracting State'', in relation to any or all the Conventions, and for the purposes of all or any of the Conventions as having the force of law in Malta, means those States, other than Malta, as shall from time to time be specified by the Minister by an order made under article 3; ''Conventions'' collectively means The Hague Convention of 1965, The Hague Convention of 1970, and The Hague Convention of 1980; ''The Hague Convention of 1965'' means the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters which was signed at The Hague on the 15th November, 1965, the text of which Convention is set out in Part A of the First Schedule to this Act; ''The Hague Convention of 1970'' means the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters which was signed at The Hague on 18th March, 1970, the text of which Convention is set out in Part B of the First Schedule to this Act; ''The Hague Convention of 1980'' means the Convention on the International Access to Justice which was signed at The Hague on 25th October, 1980, the text of which Convention is set out in Part C of the First Schedule to this Act; ''Malta'' has the same meaning assigned to it by article 124 of the Constitution; ''Minister'' means the Minister responsible for Justice; ''Non-Contracting State'' means any State which is not a Short title. Interpretation. Amended by: III. 2006.18. 2 [ CAP. 443. LEGAL PROCEDURES (RATIFICATION OF CONVENTIONS) Contracting State; ''prescribed'' means prescribed by regulations made by the Minister under this Act. Contracting States. 3. (1) The Minister may, by order in the Gazette, from time to time specify the Contracting States, other than Malta, for the purposes of any or all the Conventions. (2) Such order shall specify the date of coming into force of the particular Convention, as between Malta and any State specified in the order. (3) Where a particular Convention applies, or applies only, to a particular territory or particular territories specified in a declaration made by a Contracting State, references to that State in subarticles (1) and (2) shall be construed as references to that territory or those territories (a) under Article 29 of The Hague Convention of 1965; or (b) under Article 40 of The Hague Convention of 1970; or (c) under Article 32 or 33 of The Hague Convention of 1980, as the case may be. Central authority. Amended by: III. 2006.19. 4. (1) The functions of a central authority under the Conventions, hereinafter referred to as ''the central authority'', shall be discharged by such office, department or authority as may from time to time be designated for the purpose by the Minister by notice in the Gazette. (2) The central authority shall also have the functions, powers and duties assigned to it by or under this Act. PART II T HE HAGUE C ONVENTION ON THE SERVICE ABROAD OF J UDICIAL AND E XTRAJUDICIAL D OCUMENTS IN C IVIL OR C OMMERCIAL M ATTERS (5 TH NOVEMBER, 1965) Scope of applicability. Amended by: III. 2004.58. 5. (1) Subject to the provisions of this Part of this Act, the provisions of The Hague Convention of 1965 shall, subject to the reservations contained in Part A of the Second Schedule, have the force of law in Malta, and shall apply in all cases, in civil and commercial matters, where there is occasion to transmit a judicial or extrajudicial document originating in a Contracting State other than Malta for service in Malta, as well as where there is occasion to transmit a judicial or extrajudicial document originating in Malta for service in a Contracting State other than Malta. (2) Documents which fall under the provisions of this Part of this Act, and which originate in Malta, shall be transmitted (a) directly by the central authority, in the case of extrajudicial documents; and (b) by the Registrar of Courts, to the central authority, in LEGAL PROCEDURES (RATIFICATION OF CONVENTIONS) [ CAP. 443. 3 the case of judicial documents, and, subject to the provisions of this Part of this Act, the central a u t h o r i t y s h a l l t r a n s m i t ba c k t h e d e c i s i o n t o t h e a u t h o r i t y concerned. (3) The Minister may make rules with respect to the charging of fees and the reimbursement of costs incurred by the central authority in the transmission of documents under this Act. 6. (1) For the purposes of Article 3 of The Hague Convention of 1965, the central authority shall be competent to forward requests for service of documents originating in Malta to the central authority of other Contracting States, and any document duly served through the central authority in accordance with The Hague Convention of 1965 shall, for the purpose of the relevant law in Malta, be deemed to be properly served on the person to whom it is addressed. Central authority to transmit reports for service. (2) The central authority shall in each case of a request for service made under this Part of this Act determine the costs, if any, occasioned by the services rendered by the central authority and permitted to be charged to the applicant pursuant to Article 12 of The Hague Convention of 1965. 7. Where Malta is the State addressed for the purposes of Article 5 of The Hague Convention of 1965, the central authority shall cause the document to be served by attaching the document to a judicial letter filed in the Registry of the Civil Court, First Hall, to be served on the person addressed together with such document, and such judicial letter and accompanying documents shall be served in accordance with the methods prescribed in - Method of service. (a) article 187(1), (2), (4) or (7) of the Code of Organization and Civil Procedure, as the circumstances of the case may require: Provided that the reference to curators appointed by the court in the said article 187(7) shall not apply; or Cap. 12. (b) article 187(8) of the Code of Organization and Civil Procedure: Provided that the proviso to the said article 187(8) shall not apply, Cap. 12. as the central authority may deem fit to specify in the circumstances of each case. 8. Pursuant to the declaration made by Malta, and reproduced in Part A of the Second Schedule to this Act, as provided in the second paragraph of Article 8 of The Hague Convention of 1965, no service of documents may be made by any Contracting State upon persons who are in Malta, directly through such State’s diplomatic or consular agents, unless the document is to be served upon a national of the State in which the documents originate; such service shall be effected by such method acceptable to the law of the State in which the document originates, provided that such service does not involve any action contrary to the law of Malta. Declaration and objections. Amended by: III. 2004.59. 4 [ CAP. 443. Applicability of articles. LEGAL PROCEDURES (RATIFICATION OF CONVENTIONS) 9. (1) The provisions of articles 10 to 15 shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document originating in a NonContracting State for service in Malta. (2) The provisions of article 16 shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document originating in Malta for service in a Non-Contracting State. (3) In either case, where the address of the person to be served with the document is not known, the central authority shall refuse to accept the document for transmission. (4) The provisions of this article shall not be construed as imposing an obligation on the central authority to exercise its functions under any of the provisions of this Part of this Act. Report for service. 10. (1) The authority or judicial officer or person competent under the law of the Non-Contracting State in which the documents originate, hereinafter referred to as ''the applicant'', shall forward to the central authority a request for service in the form set out in Part A of the Third Schedule to this Act, without any requirement or equivalent formality, other than is provided in the said Part A of the Third Schedule. (2) (a) The document to be served or a copy thereof shall be annexed to the request. The request and the document shall both be furnished in duplicate and, if not in the E n g l i s h l a n g u a g e , s h a l l be a c c o m p a n i e d by t w o certified translations thereof in the English language. (b) For the purposes of this subarticle, ''certified translation'' shall mean a translation certified as a true and correct translation of the original by the diplomatic or consular representative of the Government of Malta in the State in which the request and, or document originates. Non-compliance. 11. If the central authority considers that the request does not comply with the provisions of article 10, it shall promptly inform the applicant and specify its objections to the request. Method of service. 12. (1) The document shall be served in accordance with the rules contained in article 5, which shall, mutatis mutandis, apply. (2) That part of the request which contains a summary of the document to be served, shall be served with the document, in the form set out in the Third Schedule to this Act. Certificate of service. 13. (1) Where service has been effected, the central authority shall complete a certificate of service, which shall be in the English language, in the form set out in Part B of the Third Schedule to this Act. (2) The certificate shall state that the document has been served and shall include the method, the place and the date of service, and the person to whom the document was delivered. If the document has not been served, the certificate shall state such fact and set out the reasons which have prevented service. The certificate shall also LEGAL PROCEDURES (RATIFICATION OF CONVENTIONS) [ CAP. 443. 5 state the particulars of charges for costs for the services rendered by the central authority, determined as provided in article 14. (3) The certificate shall be forwarded directly by the central authority to the person who has applied for service. 14. The central authority shall, in each case of a request for service made under this Part of this Act, determine the costs occasioned by the services to be rendered by it in effecting service. The central authority shall not proceed with an application unless the costs as so determined are deposited with it or proper security is given for such payment. The costs so determined shall be indicated in the certificate of service referred to in article 13. Costs of services. 15. (1) Where a request for service complies with the provisions of this Part of this Act, the central authority may refuse to comply therewith only if it deems that compliance would infringe the sovereignty or security of Malta. It may not refuse to comply solely on the ground that, under the internal law of Malta, Malta claims exclusive jurisdiction over the subject matter of the action, or that the internal law of Malta does not permit the action in connection with which the request is made. Refusal to comply with request for service. (2) The central authority shall, in case of refusal, promptly inform the applicant and state the reason for the refusal. 16. The central authority shall be competent to receive, process and transmit requests for service and documents originating in Malta to the competent authorities or persons of Non-Contracting States for service in such States - Transmission of requests for service and documents to Non-Contracting States. (a) through the Registrar of Courts, in the case of judicial documents, in accordance with such rules as may be prescribed; and (b) through the applicant, in the case of extrajudicial documents, who shall deposit, in the office of the central authority, an authenticated copy of the document in the language of the Contracting State, other than Malta, where the document is to be transmitted. PART III THE H AGUE C ONVENTION ON THE TAKING OF E VIDENCE ABROAD IN C IVIL OR COMMERCIAL M ATTERS (18TH M ARCH, 1970) 17. Subject to the provisions of this Part of this Act, the provisions of Chapters I and II of The Hague Convention of 1970 shall have the force of law in Malta. Scope of applicability. 18. (1) The functions of the central authority under The Hague Convention of 1970 shall be discharged by the central authority appointed under article 4, and any letter of request coming from a judicial authority of a Contracting State, made under The Hague Convention of 1970, shall be addressed to the central authority, Functions and jurisdiction. 6 [ CAP. 443. LEGAL PROCEDURES (RATIFICATION OF CONVENTIONS) which shall transmit the same to the competent court by means of an application. (2) The First Hall of the Civil Court and, where the witness resides in Gozo, the Court of Magistrates (Gozo) in its superior jurisdiction or any other court which the Minister may by order designate from time to time, shall have jurisdiction to execute letters of request, coming from a judicial authority of a Contracting State, made under The Hague Convention of 1970. Execution of letters of request. 19. For the purposes of Article 8 of The Hague Convention of 1970, the judicial personnel of the authorities requesting execution of a letter of request made under The Hague Convention of 1970 may, if authorised by the central authority, be present at the execution of the letter of request. Non-applicability of certain articles. Cap. 12. 20. (1) The provisions of articles 614(2) and (3), 618, 619, 620 and 622(2) of the Code of Organization and Civil Procedure shall not apply, for Non-Contracting States, in the execution of letters of request sent by the judicial authority of a Contracting State made under The Hague Convention of 1970. (2) The Minister may, by rules made under this article, set up the procedure to be followed in the case of letters of request made by a Contracting State, other than Malta, for the evidence of a person residing in Malta. (3) Subject to the provisions of subarticles (1) and (2), the court shall transmit the letter of request, either directly to the central authority of the requesting State or through the central authority of Malta. Reservation. Amended by: III. 2004.60. 21. In conformity with the reservation, made by Malta, in accordance with paragraph 2 of Article 4 of The Hague Convention of 1970, the text of which is reproduced in Part B of the Second Schedule, letters of request transmitted through the central authority shall be made in either one of the official languages of Malta. PART IV T HE H AGUE C ONVENTION ON I NTERNATIONAL ACCESS TO J USTICE (25 TH O CTOBER, 1980) Scope of applicability. 22. (1) Subject to the following provisions of this article, The Hague Convention of 1980 shall have the force of law in Malta. (2) Subject to the provisions of articles 23 to 26, and subject to the reservation made thereto by Malta, and reproduced in the Fourth Schedule to this Act, the provisions of Chapter I of The Hague Convention of 1980 shall have the force of law in Malta. (3) Where the applicant for legal aid resides abroad, there shall be required to be sent to the central authority a certificate, issued by the transmitting authority appointed under Article 4 of The Hague Convention of 1980, confirming that the applicant is so entitled, and the central authority shall, by means of an application, LEGAL PROCEDURES (RATIFICATION OF CONVENTIONS) [ CAP. 443. 7 request the competent court to confirm that the applicant is entitled to legal aid. (4) Where the applicant resides in Malta, the applicant shall personally request the central authority to apply on his behalf to the central authority abroad, by means of an application together with a certificate, issued by the transmitting authority appointed under Article 4 of The Hague Convention of 1980, showing that the applicant is so entitled to legal aid, under the provisions of The Hague Convention of 1980. 23. The central authority referred to in article 4 shall be competent to receive and to take action on applications for legal aid submitted under Chapter I of The Hague Convention of 1980. Central authority. 24. (1) Where the central authority is of the opinion that the applicant should not be admitted to the benefit of legal aid, the applicant shall have the right to apply to the Civil Court, First Hall, within seven days of the decision of the central authority having been communicated to the applicant; the Court may - Jurisdiction. (a) either give its decree in camera; or (b) give its decree in a public sitting, after hearing the parties, as to the admission or rejection of the application. (2) The determination of the Civil Court shall be final. 25. In the case where the applicant is admitted to the benefit of legal aid, the provisions of articles 918 to 926 of the Code of Organization and Civil Procedure shall apply. Procedure on admission to legal aid. Cap. 12. 26. The central authority shall be the transmitting authority for the purposes of Article 5 of The Hague Convention of 1980, and shall have the function of receiving, processing and forwarding applications for legal aid to the appropriate central authority in the requested State. Transmitting authority. 27. Subject to the provisions of article 28, the provisions of Chapter II of The Hague Convention of 1980 shall have the force of law in Malta. Scope of applicability. 28. (1) The central authority referred to in article 4 shall discharge the functions specified in Article 16 of The Hague Convention of 1980. Central authority. (2) The central authority shall have the power to reach a final decision on applications forwarded to it by transmitting authorities of other Contracting States, or in any other manner, specified in Article 16 of The Hague Convention of 1980, for rendering enforceable orders to which Article 16 of The Hague Convention of 1980 applies, and for the purposes of Chapter II of the said Convention, the central authority shall also be the competent authority to determine such applications. (3) For the purposes of rendering the determination of the applications referred to in subarticle (2) an executive title, it shall be sufficient for the purposes of this Act for the applicant or the central authority - 8 [ CAP. 443. LEGAL PROCEDURES (RATIFICATION OF CONVENTIONS) (a) to request repayment of the security for costs; or (b) to request an order for costs, by judicial letter filed in the Registry of the Civil Court, First Hall, accompanied by an official copy of the decision of the competent authority. Cap. 12. (4) Subject to the provisions of subarticle (3), the determination shall constitute an executive title within the meaning and for the purposes of Title VII of Part I of Book Second of the Code of Organization and Civil Procedure. (5) There shall be no right of appeal against the decision of the competent authority in the cases referred to in this article. Part V - articles 29 to 40 (both inclusive) - deleted by Act III. 2006.20. P ART VI GENERAL P ROVISIONS Regulations. 41. (1) The Minister may make regulations prescribing anything that in virtue of this Act is required to be prescribed and generally for carrying out the provisions of this Act. (2) Without prejudice to the generality of subarticle (1), regulations may, in particular, be made to establish the criteria to be applied by the central authority in determining the costs incurred by it in accordance with the provisions of article 14. (3) Without prejudice to the generality of subarticle (1), such regulations may, mutatis mutandis, make provision with respect to the procedure on applications to a court under any provision of Part V of this Act and with respect to the documents and information to be furnished and the notices to be given in connection with any such application. Conflict between texts. 42. In the First, Second and Fourth Schedules to this Act, should there be any conflict between the English and the Maltese texts, the English text shall prevail. Ratification of Conventions. 43. By virtue of this Act, the Government of Malta is hereby authorised to ratify all or any of the Conventions. LEGAL PROCEDURES (RATIFICATION OF CONVENTIONS) FIRST SCHEDULE (Articles 2 and 42) [ CAP. 443. 9 Amended by: III. 2006.21. Part A THE HAGUE CONVENTION ON THE SERVICE ABROAD OF JUDICIAL AND EXTRAJUDICIAL DOCUMENTS IN CIVIL OR COMMERCIAL MATTERS (15 November, 1965) The States signatory to the present Convention, Desiring to create appropriate means to ensure that judicial and extrajudicial documents to be served abroad shall be brought to the notice of the addressee in sufficient time, Desiring to improve the organisation of mutual judicial assistance for that purpose by simplifying and expediting the procedure, Have resolved to conclude a Convention to this effect and have agreed upon the following provisions: Article 1 The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad. This Convention shall not apply where the address of the person to be served with the document is not known. CHAPTER I JUDICIAL DOCUMENTS Article 2 Each Contracting State shall designate a Central Authority which will undertake to receive requests for service coming from other Contracting States and to proceed in conformity with the provisions of Articles 3 to 6. Each State shall organise the Central Authority in conformity with its own law. Article 3 The authority or judicial officer competent under the law of the State in which the documents originate shall forward to the Central Authority of the State addressed a request conforming to the model annexed to the present Convention, without any requirement of legalisation or other equivalent formality. The document to be served or a copy thereof shall be annexed to the request. The request and the document shall both be furnished in duplicate. Article 4 If the Central Authority considers that the request does not comply with the 10 [ CAP. 443. LEGAL PROCEDURES (RATIFICATION OF CONVENTIONS) provisions of the present Convention it shall promptly inform the applicant and specify its objections to the request. Article 5 The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either (a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or (b) by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed. Subject to sub-paragraph (b) of the first paragraph of this Article, the document may always be served by delivery to an addressee who accepts it voluntarily. If the document is to be served under the first paragraph above, the Central Authority may require the document to be written in, or translated into, the official language or one of the official languages of the State addressed. That part of the request, in the form attached to the present Convention, which contains a summary of the document to be served, shall be served with the document. Article 6 The Central Authority of the State addressed or any authority which it may have designated for that purpose, shall complete a certificate in the form of the model annexed to the present Convention. The certificate shall state that the document has been served and shall include the method, the place and the date of service and the person to whom the document was delivered. If the document has not been served, the certificate shall set out the reasons which have prevented service. The applicant may require that a certificate not completed by a Central Authority or by a judicial authority shall be countersigned by one of these authorities. The certificate shall be forwarded directly to the applicant. Article 7 The standard terms in the model annexed to the present Convention shall in all cases be written either in French or in English. They may also be written in the official language, or in one of the official languages, of the State in which the documents originate. The corresponding blanks shall be completed either in the language of the State addressed or in French or in English. Article 8 Each Contracting State shall be free to effect service of judicial documents upon persons abroad, without application of any compulsion, directly through its diplomatic or consular agents. Any State may declare that it is opposed to such service within its territory, unless the document is to be served upon a national of the State in which the documents LEGAL PROCEDURES (RATIFICATION OF CONVENTIONS) [ CAP. 443. 11 originate. Article 9 Each Contracting State shall be free, in addition, to use consular channels to forward documents, for the purpose of service, to those authorities of another Contracting State which are designated by the latter for this purpose. Each Contracting State may, if exceptional circumstances so require, use diplomatic channels for the same purpose. Article 10 Provided the State of destination does not object, the present Convention shall not interfere with (a) the freedom to send judicial documents, by postal channels, directly to persons abroad, (b) the freedom of judicial officers, officials or other competent persons of the State of origin to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination, (c) the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the State of destination. Article 11 The present Convention shall not prevent two or more Contracting States from agreeing to permit, for the purpose of service of judicial documents, channels of transmission other than those provided for in the preceding Articles and, in particular, direct communication between their respective authorities. Article 12 The service of judicial documents coming from a Contracting State shall not give rise to any payment or reimbursement of taxes or costs for the services rendered by the State addressed. The applicant shall pay or reimburse the costs occasioned by (a) the employment of a judicial officer or of a person competent under the law of the State of destination, (b) the use of a particular method of service. Article 13 Where a request for service complies with the terms of the present Convention, the State addressed may refuse to comply therewith only if it deems that compliance would infringe its sovereignty or security. It may not refuse to comply solely on the ground that, under its internal law, it claims exclusive jurisdiction over the subject-matter of the action or that its internal law would not permit the action upon which the application is based. 12 [ CAP. 443. LEGAL PROCEDURES (RATIFICATION OF CONVENTIONS) The Central Authority shall, in case of refusal, promptly inform the applicant and state the reasons for the refusal. Article 14 Difficulties which may arise in connection with the transmission of judicial documents for service shall be settled through diplomatic channels. Article 15 Where a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and the defendant has not appeared, judgment shall not be given until it is established that (a) the document was served by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within its territory, or (b) the document was actually delivered to the defendant or to his residence by another method provided for by this Convention, and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend. Each Contracting State shall be free to declare that the judge, notwithstanding the provisions of the first paragraph of this Article, may give judgment even if no certificate of service or delivery has been received, if all the following conditions are fulfilled (a) the document was transmitted by one of the methods provided for in this Convention, (b) a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document, (c) no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed. Notwithstanding the provisions of the preceding paragraphs the judge may order, in case of urgency, any provisional or protective measures. Article 16 When a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and a judgment has been entered against a defendant who has not appeared, the judge shall have the power to relieve the defendant from the effects of the expiration of the time for appeal from the judgment if the following conditions are fulfilled (a) the defendant, without any fault on his part, did not have knowledge of the document in sufficient time to defend, or knowledge of the judgment in sufficient time to appeal, and LEGAL PROCEDURES (RATIFICATION OF CONVENTIONS) (b) the merits. [ CAP. 443. 13 the defendant has disclosed a prima facie defence to the action on An application for relief may be filed only within a reasonable time after the defendant has knowledge of the judgment. Each Contracting State may declare that the application will not be entertained if it is filed after the expiration of a time to be stated in the declaration, but which shall in no case be less than one year following the date of the judgment. This Article shall not apply to judgments concerning status or capacity of persons. CHAPTER II EXTRAJUDICIAL DOCUMENTS Article 17 Extrajudicial documents emanating from authorities and judicial officers of a Contracting State may be transmitted for the purpose of service in another Contracting State by the methods and under the provisions of the present Convention. CHAPTER III GENERAL CLAUSES Article 18 Each Contracting State may designate other authorities in addition to the Central Authority and shall determine the extent of their competence. The applicant shall, however, in all cases, have the right to address a request directly to the Central Authority. Federal States shall be free to designate more than one Central Authority. Article 19 To the extent that the internal law of a Contracting State permits methods of transmission, other than those provided for in the preceding Articles, of documents coming from abroad, for service within its territory, the present Convention shall not affect such provisions. Article 20 The present Convention shall not prevent an agreement between any two or more Contracting States to dispense with (a) the necessity for duplicate copies of transmitted documents as required by the second paragraph of Article 3, (b) Article 7, the language requirements of the third paragraph of Article 5 and (c) the provisions of the fourth paragraph of Article 5, (d) the provisions of the second paragraph of Article 12. 14 [ CAP. 443. LEGAL PROCEDURES (RATIFICATION OF CONVENTIONS) Article 21 Each 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 following (a) the designation of authorities, pursuant to Articles 2 and 18, (b) the designation of the authority competent to complete the certificate pursuant to Article 6, (c) the designation of the authority competent to receive documents transmitted by consular channels, pursuant to Article 9. Each Contracting State shall similarly inform the Ministry, where appropriate, of (a) opposition to the use of methods of transmission pursuant to Articles 8 and 10, (b) declarations pursuant to the second paragraph of Article 15 and the third paragraph of Article 16, (c) all modifications of the above designations, oppositions and declarations. Article 22 Where Parties to the present Convention are also Parties to one or both of the Conventions on civil procedure signed at The Hague on 17th July 1905, and on 1st March 1954, this Convention shall replace as between them Articles 1 to 7 of the earlier Conventions. Article 23 The present Convention shall not affect the application of Article 23 of the Convention on civil procedure signed at The Hague on 17th July 1905, or of Article 24 of the Convention on civil procedure signed at the Hague on 1st March 1954. These Articles shall, however, apply only if methods of communication, identical to those provided for in these Conventions, are used. Article 24 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 25 Without prejudice to the provisions of Articles 22 and 24, the present Convention shall not derogate from Conventions containing provisions on the matters governed by this Convention to which the Contracting States are, or shall become, Parties. Article 26 The present Convention shall be open for signature by the States represented at the Tenth Session of the Hague Conference on Private International Law. LEGAL PROCEDURES (RATIFICATION OF CONVENTIONS) [ CAP. 443. 15 It shall be ratified, and the instruments of ratification shall be deposited with the Ministry of Foreign Affairs of the Netherlands. Article 27 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 26. 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 28 Any State not represented at the Tenth Session of the Hague Conference on Private International Law may accede to the present Convention after it has entered into force in accordance with the first paragraph of Article 27. The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands. The Convention shall enter into force for such a State in the absence of any objection from a State, which has ratified the Convention before such deposit, notified to the Ministry of Foreign Affairs of the Netherlands within a period of six months after the date on which the said Ministry has notified it of such accession. In the absence of any such objection, the Convention shall enter into force for the acceding State on the first day of the month following the expiration of the last of the periods referred to in the preceding paragraph. Article 29 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 referred to in the preceding paragraph. Article 30 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 27, 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 31 The Ministry of Foreign Affairs of the Netherlands shall give notice to the States [ CAP. 443. 16 LEGAL PROCEDURES (RATIFICATION OF CONVENTIONS) referred to in Article 26, and to the States which have acceded in accordance with Article 28, of the following (a) the signatures and ratifications referred to in Article 26; (b) the date on which the present Convention enters into force in accordance with the first paragraph of Article 27; (c) take effect; the accessions referred to in Article 28 and the dates on which they (d) take effect; the extensions referred to in Article 29 and the dates on which they (e) the designations, oppositions and declarations referred to in Article (f) the denunciations referred to in the third paragraph of Article 30. 21; In witness whereof the undersigned, being duly authorised thereto, have signed the present Convention. Done at The Hague, on the 15th day of November, 1965, 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 Tenth Session of the Hague Conference on Private International Law. LEGAL PROCEDURES (RATIFICATION OF CONVENTIONS) [ CAP. 443. 17 FORMS (REQUEST AND CERTIFICATE) SUMMARY OF THE DOCUMENT TO BE SERVED (Annexes provided for Articles 3, 5, 6 and 7) ANNEX TO THE CONVENTION Forms REQUEST FOR SERVICE ABROAD OF JUDICIAL OR EXTRAJUDICIAL DOCUMENTS Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, signed at The Hague, on the 15th of November 1965. Identity and address Address of receiving of the applicant authority The undersigned applicant has the honour to transmit - in duplicate - the documents listed below and, in conformity with Article 5 of the above-mentioned Convention, requests prompt service of one copy thereof on the addressee, i.e, (identity and address) ...……………………………….....…………………………………………… ……………………………………….....……………………………………… (a) in accordance with the provisions of sub-paragraph (a) of the first paragraph of Article 5 of the Convention*. (b) in accordance with the following particular method (sub-paragraph (b) of the first paragraph of Article 5)*: ...……………………………….....…………………………………………… ……………………………………….....……………………………………… (c) by delivery to the addressee, if he accepts it voluntarily (second paragraph of Article 5)*. The authority is requested to return or to have returned to the applicant a copy of the documents - and of the annexes* - with a certificate as provided on the reverse side. List of documents ………………………………………………………………………………… ………………………………………………………………………………… ………………………………………………………………………………… Done at .........................., the ........................ Signature and/or stamp. * Delete if inappropriate. 18 [ CAP. 443. LEGAL PROCEDURES (RATIFICATION OF CONVENTIONS) Part B CONVENTION ON THE TAKING OF EVIDENCE ABROAD IN CIVIL OR COMMERCIAL MATTERS (18 March, 1970) Preamble 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 organize 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; (b) the names and addresses of the parties to the proceedings and their representatives, if any; (c) the nature of the proceedings for which the evidence is required, giving all necessary information in regard thereto; LEGAL PROCEDURES (RATIFICATION OF CONVENTIONS) (d) [ CAP. 443. 19 the evidence to be obtained or other judicial act to be performed. Where appropriate, the Letter shall specify, inter alia (e) the names and addresses of the persons to be examined; (f) 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; (g) the documents or other property, real or personal, to be inspected; (h) any requirement that the evidence is to be given on oath or affirmation, and any special form to be used; (i) any special method or procedure to be followed under Article 9. A Letter may also mention any information necessary for the application of Article 11. No legalization 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 authorized 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 authorized 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. 20 [ CAP. 443. LEGAL PROCEDURES (RATIFICATION OF CONVENTIONS) 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 authorization by the competent authority designated by the declaring State may be required. Article 9 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. 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 (b) the State addressed considers that its sovereignty or security would LEGAL PROCEDURES (RATIFICATION OF CONVENTIONS) [ CAP. 443. 21 be prejudiced thereby. 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. CHAPTER II TAKING OF EVIDENCE BY DIPLOMATIC OFFICERS, CONSULAR AGENTS AND COMMISSIONERS Article 15 In civil or commercial matters, 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 22 [ CAP. 443. LEGAL PROCEDURES (RATIFICATION OF CONVENTIONS) 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 (b) he complies with the conditions which the competent authority has specified in the permission. A Contracting State may declare that evidence may be taken under this Article without its prior permission. Article 17 In civil or commercial matters, 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 (b) he complies with the conditions which the competent authority has specified in the permission. 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 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 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. Article 20 In the taking of evidence under any Article of this Chapter persons concerned may be legally represented. LEGAL PROCEDURES (RATIFICATION OF CONVENTIONS) [ CAP. 443. 23 Article 21 Where a diplomatic officer, consular agent or commissioner is authorized 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; (b) 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; (c) 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; (d) 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; (e) a person requested to give evidence may invoke the privileges and duties to refuse to give the evidence contained in Article 11. 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 pretrial 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. 24 [ CAP. 443. LEGAL PROCEDURES (RATIFICATION OF CONVENTIONS) 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 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; (b) permitting, by internal law or practice, any act provided for in this Convention to be performed upon less restrictive conditions; (c) permitting, by internal law or practice, methods of taking evidence other than those provided for in this Convention. Article 28 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; (d) the provisions of Article 11 with respect to the privileges and duties of witnesses to refuse to give evidence; (e) the provisions of Article 13 with respect to the methods of returning executed Letters to the requesting authority; (f) the provisions of Article 14 with respect to fees and costs; (g) the provisions of Chapter II. 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. LEGAL PROCEDURES (RATIFICATION OF CONVENTIONS) [ CAP. 443. 25 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. Article 31 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 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. 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; (b) 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; (c) declarations pursuant to Articles 4, 8, 11, 15, 16, 17, 18, 23 and 27; (d) any withdrawal or modification of the above designations and 26 [ CAP. 443. LEGAL PROCEDURES (RATIFICATION OF CONVENTIONS) declarations; (e) the withdrawal of any reservation. 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 o …