No exceptions for the taking of evidence in transnational disputes because of Covid

The ongoing Corona-pandemic also affects cross-border disputes, now it seems even more than before.   

At the beginning of the pandemic, many depositions scheduled to be taken in cross border disputes were put on hold.  Travel restrictions as well as the fact that both the U.S. consulates as well as the Canadian consulates that usually play a supportive role in the cross-border taking of evidence, have reduced their activities to the absolute minimum of consular activities or even stopped conversing with the public completely. This made depositions in cross-border disputes with a connection to the United States or Canada much more difficult to obtain.

Now, one year later, as the pandemic situation still has not changed, there are more and more requests from overseas parties to deviate from the traditional pathways of mutual legal assistance. Parties to a dispute understandably have become impatient. They want to move forward with the proceedings in the United States or Canada and not wait indefinitely to be able to take depositions from witnesses residing in Europe.

The taking of evidence in Germany for the purpose of using it in proceedings abroad, especially depositions under U.S. or Canadian law, is governed by public international law as well as German civil and criminal law.

Germany and the United States have both signed and ratified the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters of 18 March 1970, in short Hague Evidence Convention. The Hague Evidence Convention, inter alia, allows the taking of evidence pursuant to the national procedures of the aiding state at the German local court, with the local judge asking the witness the questions. Alternatively, for voluntary witnesses, lawyers may conduct depositions in the United States consulate, in the presence of a U.S. consular officer. Even before the pandemic hit, it was rather difficult to schedule such deposition with the United States consulate in Germany. Now, however, due to the aforementioned reduction of activities, this has become practically impossible.

Other than the United States, the Hague Evidence Convention has not been signed by Canada. Instead, the German British Convention regarding Legal Proceedings in Civil and Commercial Matters dated 20 March 1928, the so-called German British Convention, provides for the legal basis of judicial assistance. The avenues for the taking of evidence, however, are similar to those under the Hague Evidence Convention.

According to the German British Convention, a deposition of a German witness residing in Germany may either be done with the help of a Canadian consular officer or with the help of a German local court. However, even the Canadian consulates, and in particular Global Affairs Canada, have halted all support with regard to cross border taking of evidence.

The fact that at the moment there is no consular support for the taking of evidence, however, does not mean that the Hague Evidence Convention or the German British Convention currently do not apply:

The respective provisions of public international law as well as the related German civil and criminal law provisions still must be respected. The Covid pandemic does not pause the applicability of an international agreement like the Hague Evidence Convention or the German British Convention. The pandemic alone therefore does not justify making an exception from the avenues provided for by the aforementioned two international legal instruments.

This is especially so because the German local courts, other than the consulates, fully and continuously work. Accordingly, mutual legal assistance can be requested by letter rogatory, i.e. a formal request for legal aid by the U.S. or Canadian court or attorney to the competent German central authority in accordance with the provisions of the Hague Evidence Convention or the German British Convention, as the case may be.

The taking of evidence outside the avenues opened by the two international agreements is inadmissible and considered a violation of Germany’s sovereignty.