Extraterritorial' discovery: Ongoing challenges for antitrust litigation in an environment of global investment

Journal of International Economic Law

Volumn 5, Issue 2, 2002, Pages 353-392

  Wallace, Cynthia Day ^a  

^a United Nations Economic Commission for Europe   (Switzerland)

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EID: 0036332580     PISSN: 13693034     EISSN: None     Source Type: Journal    
DOI: 10.1093/jiel/5.2.353     Document Type: Review

References (367)

1. For purposes of the following discussion, the term 'discovery' will be used to mean only the procedural device, with 'disclosure' used strictly as a descriptive term, where appropriate. In other words, the 'disclosure of information' is understood here to be the result of a successfully executed 'discovery' request or order.
2. For example, the European Court of Justice 'implementation doctrine' as enunciated in the Wood Pulp case. (See e.g., Cynthia Day Wallace, The Multinational Enterprise and Legal Control: Host State Sovereignty in an Era of Economic Globalization (The Hague: Kluwer Law International 2002), Chapter XIII, subsection 2(d)).
3. Douglas E. Rosenthal, and Stephen Yale-Loehr, 'Two Cheers for the ALI Restatements Provisions on Foreign Discovery', 16 New York University Journal of International Law and Politics (1983/84) at 1075.
4. Ivan Felix Blejec, 'Extraterritorial Jurisdiction of US Courts Regarding the Use of Subpoenas Duces Tecum to Obtain Discovery in Transnational Litigation: The Search for a Limiting Principle', 16 New York University Journal of International Law and Politics (1983/84) at 1165.
5. American Law Institute, Restatement of the Law (Third): The Foreign Relations Law of the United States [hereinafter cited as 'Restatement (Third)'] (St Paul, MN: American Law Institute Publishers 1987).
6. Ibid, s. 422, reporters' note 1.
7. See Corpus Juris Secundum, A Complete Restatement of the Entire American Law as Developed by All Reported Cases (Brooklyn, NY: The American Law Book Co and West Publishing Co, c 1959 [and kept up to date by cumulative annual pocket parts]) at 6-44, 45.
8. 'Discovery' is inapplicable to testimony voluntarily given or to documents voluntarily produced (see Tucker v United States, 14 SC 299, at 301, 151 US 164 (1894)).
9. See The Guide to American Law: Everyone's Legal Encyclopedia (St Paul, MN: West Publishing Co, c 1984), Vol 4, at 128.
10. See Wallace, above n 2, Chapter XIII, subsection 1(b).
11. See David J. Gerber, 'International Discovery after Aerospatiale: The Quest for an Analytical Framework' [hereinafter cited as 'Quest'], 82 American Journal of International Law (1988) at 544.
12. See also Wallace, above n 2, Chapter XIV, subsection 2(a).
13. Lee Paikin, 'Problems of Obtaining Evidence in Foreign States for Use in Federal Criminal Prosecutions', 21 Columbia Journal of Transnational Law (1986) at 234.
14. See e.g., Graco, In. v Kremlin, In., below n 100; Volkswagenwerk AG v Falzon, 103 SCt 1810 (a products liability case against Volkswagen of Germany and its American subsidiary).
15. See e.g., Graco, In. v Kremlin, In., below n 100; Volkswagenwerk AG v Falzon, 103 SCt 1810 (a products liability case against Volkswagen of Germany and its American subsidiary).
16. International Law Association, Report of the Fifty-First Conference (1964) at 407.
17. See David McClean, International Judicial Assistance (Oxford: Clarendon Press 1992) at 59.
18. See Gerber, 'Quest', above n 11, at 534, 543.
19. Case of the SS 'Lotus' (France v Turkey) [1927] PCIJ, ser. A. No 10.
20. Ibid, at 18.
21. For cases and literature substantiating this point see Gerber, 'Quest', above n 11, at 535 nn 80, 81, and 536 n 89
22. See e.g., In re Messerschmitt Bölkow Blöhm, GmbH, below n 108, at 733; also In re Aérospatiale, below n 107, at 124-26.
23. See e.g., In re Messerschmitt Bölkow Blöhm, GmbH, below n 108, at 733; also In re Aérospatiale, below n 107, at 124-26.
24. For discussion of the development of this concept, see David J. Gerber, 'Extraterritorial Discovery and the Conflict of Procedural Systems: Germany and the United States' [hereinafter cited as 'Conflict'], 34 American Journal of Comparative Law (1986) at 775-79; also Bernard H. Oxman, 'The Choice Between Direct Discovery and Other Means of Obtaining Evidence Abroad: The Impact of the Hague Evidence Convention', 37 University of Miami Law Review (1983) at 761-65.
25. For discussion of the development of this concept, see David J. Gerber, 'Extraterritorial Discovery and the Conflict of Procedural Systems: Germany and the United States' [hereinafter cited as 'Conflict'], 34 American Journal of Comparative Law (1986) at 775-79; also Bernard H. Oxman, 'The Choice Between Direct Discovery and Other Means of Obtaining Evidence Abroad: The Impact of the Hague Evidence Convention', 37 University of Miami Law Review (1983) at 761-65.
26. See e.g., Lasky v Continental Products, Inc, 569 F Supp 1227 (ED Pa 1983); Murphy v Reifenhauser KG Maschinenfabrik, 101 FRD 360 (D Vt 1984); Graco, Inc v Kremlin, Inc, below n 100; Laker Airways v Pan American World Airways, 103 FRD 42 (DDC 1984); contra: Philadelphia Gear Corp v American Pfauter Corp, 100 FRD. 58 (ED Pa 1983).
27. See e.g., Lasky v Continental Products, Inc, 569 F Supp 1227 (ED Pa 1983); Murphy v Reifenhauser KG Maschinenfabrik, 101 FRD 360 (D Vt 1984); Graco, Inc v Kremlin, Inc, below n 100; Laker Airways v Pan American World Airways, 103 FRD 42 (DDC 1984); contra: Philadelphia Gear Corp v American Pfauter Corp, 100 FRD. 58 (ED Pa 1983).
28. See e.g., Lasky v Continental Products, Inc, 569 F Supp 1227 (ED Pa 1983); Murphy v Reifenhauser KG Maschinenfabrik, 101 FRD 360 (D Vt 1984); Graco, Inc v Kremlin, Inc, below n 100; Laker Airways v Pan American World Airways, 103 FRD 42 (DDC 1984); contra: Philadelphia Gear Corp v American Pfauter Corp, 100 FRD. 58 (ED Pa 1983).
29. See e.g., Lasky v Continental Products, Inc, 569 F Supp 1227 (ED Pa 1983); Murphy v Reifenhauser KG Maschinenfabrik, 101 FRD 360 (D Vt 1984); Graco, Inc v Kremlin, Inc, below n 100; Laker Airways v Pan American World Airways, 103 FRD 42 (DDC 1984); contra: Philadelphia Gear Corp v American Pfauter Corp, 100 FRD. 58 (ED Pa 1983).
30. See e.g., Lasky v Continental Products, Inc, 569 F Supp 1227 (ED Pa 1983); Murphy v Reifenhauser KG Maschinenfabrik, 101 FRD 360 (D Vt 1984); Graco, Inc v Kremlin, Inc, below n 100; Laker Airways v Pan American World Airways, 103 FRD 42 (DDC 1984); contra: Philadelphia Gear Corp v American Pfauter Corp, 100 FRD. 58 (ED Pa 1983).
31. See Gerber, 'Quest', above n 11, at 536-39.
32. See Gerber, 'Conflict', above n 22, at 774-75.
33. Hague Convention on the Taking Evidence Abroad in Civil and Commercial Matters [hereinafter cited as 'Hague Evidence Convention'], opened for signature at the Hague, 18 March 1970, TIAS No 7444, 847 UNTS 231, 23 UST 2555 (replacing art. 8 of the Civil Procedure Convention of 1896) and arts. 8-16 of the Conventions of 1905 and 1954). See e.g., Brief of Amicus Curiae for the Federal Republic of Germany, at 8, In re Anschuetz, below n 92. See ibid [Gerber], 'Conflict', at 778. See also below, 'The Hague Convention'.
34. Hague Convention on the Taking Evidence Abroad in Civil and Commercial Matters [hereinafter cited as 'Hague Evidence Convention'], opened for signature at the Hague, 18 March 1970, TIAS No 7444, 847 UNTS 231, 23 UST 2555 (replacing art. 8 of the Civil Procedure Convention of 1896) and arts. 8-16 of the Conventions of 1905 and 1954). See e.g., Brief of Amicus Curiae for the Federal Republic of Germany, at 8, In re Anschuetz, below n 92. See ibid [Gerber], 'Conflict', at 778. See also below, 'The Hague Convention'.
35. Hague Convention on the Taking Evidence Abroad in Civil and Commercial Matters [hereinafter cited as 'Hague Evidence Convention'], opened for signature at the Hague, 18 March 1970, TIAS No 7444, 847 UNTS 231, 23 UST 2555 (replacing art. 8 of the Civil Procedure Convention of 1896) and arts. 8-16 of the Conventions of 1905 and 1954). See e.g., Brief of Amicus Curiae for the Federal Republic of Germany, at 8, In re Anschuetz, below n 92. See ibid [Gerber], 'Conflict', at 778. See also below, 'The Hague Convention'.
36. See Restatement (Third), above n 5, s. 473, comment i. See also Gary B. Born, International Civil Litigation in United States Courts: Commentary & Materials (3rd edn, The Hague: Kluwer Law International 1996) at 912 note 1.
37. See Restatement (Third), above n 5, s. 473, comment i. See also Gary B. Born, International Civil Litigation in United States Courts: Commentary & Materials (3rd edn, The Hague: Kluwer Law International 1996) at 912 note 1.
38. See e.g., A. J. Riedweg, 'The Extra-territorial Application of Restrictive Trade Legislation - Jurisdiction and International Law', in Report of the 51st Conference of the International Law Association (Tokyo) (London: ILA 1965) at 403, as cited in Joseph P. Griffin, 'The Power of Host Countries over the Multinational: Lifting the Veil in the European Economic Community and the United States' [hereinafter cited as 'Lifting the Veil'], 6 Law and Policy in International Business (1974) at 415. See also F.T.C. v Compagnie de Saint-Gobain-Pont-à-Mousson, 636 F2d 1300 (DC Cir 1980).
39. See e.g., A. J. Riedweg, 'The Extra-territorial Application of Restrictive Trade Legislation - Jurisdiction and International Law', in Report of the 51st Conference of the International Law Association (Tokyo) (London: ILA 1965) at 403, as cited in Joseph P. Griffin, 'The Power of Host Countries over the Multinational: Lifting the Veil in the European Economic Community and the United States' [hereinafter cited as 'Lifting the Veil'], 6 Law and Policy in International Business (1974) at 415. See also F.T.C. v Compagnie de Saint-Gobain-Pont-à-Mousson, 636 F2d 1300 (DC Cir 1980).
40. See e.g., A. J. Riedweg, 'The Extra-territorial Application of Restrictive Trade Legislation - Jurisdiction and International Law', in Report of the 51st Conference of the International Law Association (Tokyo) (London: ILA 1965) at 403, as cited in Joseph P. Griffin, 'The Power of Host Countries over the Multinational: Lifting the Veil in the European Economic Community and the United States' [hereinafter cited as 'Lifting the Veil'], 6 Law and Policy in International Business (1974) at 415. See also F.T.C. v Compagnie de Saint-Gobain-Pont-à-Mousson, 636 F2d 1300 (DC Cir 1980).
41. See Report of the 50th Conference of the International Law Association (ILA, London 1964) at 403-05 and 580-81, in 33 ILR. (1967) at 159-61.
42. See ibid [50th ILA Conference] at 404, 579-81, 590 et. seq. But see e.g., Ivo T. Onkelinx, 'Conflict of International Jurisdiction: Ordering the Production of Documents in Violation of the Law of the Situs', 64 Northwestern University Law Review (1969-70) at 500.
43. See ibid [50th ILA Conference] at 404, 579-81, 590 et. seq. But see e.g., Ivo T. Onkelinx, 'Conflict of International Jurisdiction: Ordering the Production of Documents in Violation of the Law of the Situs', 64 Northwestern University Law Review (1969-70) at 500.
44. See Michael Akehurst, 'Jurisdiction in International Law', 46 British Yearbook of International Law (1972-73) at 146.
45. Griffin, 'Lifting the Veil', above n 28, at 415
46. On the 'effects' doctrine, see e.g., Wallace, above n 2, Chapter XIII, section 2; on veil-lifting, single entity and other jurisdictional concepts, see generally, ibid, Chapter XII, esp. section 3.
47. On the 'effects' doctrine, see e.g., Wallace, above n 2, Chapter XIII, section 2; on veil-lifting, single entity and other jurisdictional concepts, see generally, ibid, Chapter XII, esp. section 3.
48. See ibid, Chapter XIII, subsection 1(b)(i), esp. text accompanying nn 48 and 49.
49. See Griffin, 'Lifting the Veil', above n 28, at 434. Cf. however Onkelinx, above n 30, at 496.
50. See Griffin, 'Lifting the Veil', above n 28, at 434. Cf. however Onkelinx, above n 30, at 496.
51. See e.g., Akehurst, above n 31.
52. See e.g., Onkelinx, above n 30, at 495.
53. See F.T.C. v Compagnie de Saint-Gobain-Pont-à-Mousson, above n 28. See also Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention), opened for signature, 15 November 1965, 20 UST 361, TIAS No 6638, 658 UNTS 163. Although service of process is outside the scope of the present considerations, the Hague Service Convention has some relevance to the overall focus of this discussion, as best summed up in Volkswagenwerk Aktiengesellschaft v Schlunk, 486 US 694, 108 SCt 2104 (1988). In the Schlunk case, the US Supreme Court unanimously affirmed the decision of the Appellate Court of Illinois (143 Ill App3d 594, 105 Ill Dec 39, 503 NE2d 1045 (1986)) that the Hague Service Convention does not apply when a party serves process on a foreign corporation through its wholly owned and closely controlled US subsidiary, qualifying as involuntary agent, under normal long-arm requirements of local laws. A US State may limit the extension of its long-arm statute, as the Illinois Supreme Court had done (see e.g., Green v Advance Ross Elec. Cor., 86 Ill 2d 431, 436, 427 NE2d 1203, 1206 (1981)), or retain maximum extension, as in California where the exercise of jurisdiction is authorized 'on any basis not inconsistent with the Constitution of the United States' (Cal Civ Proc Code s. 410.10 (West 1973)). (See 'The Hague Service Convention as Enabler: Volkswagenwerk Aktiengesellschaft v Schlunk', 20 Inter-American Law Review (1988) at 186.) The US Supreme Court's assertion in the Schlunk case of state law supremacy over the Hague Service Convention has been said to have severely reduced the effectiveness of the Convention and weakened the United States policy of deference to international treaties. (See ibid, at 176, 178, 197, 198.) For further discussion, see Frederick C. Leiner, 'American Service of Process upon Foreign Corporations: the Schlunk Case and Beyond', 23 Journal of World Trade (February 1989) 37.
54. See F.T.C. v Compagnie de Saint-Gobain-Pont-à-Mousson, above n 28. See also Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention), opened for signature, 15 November 1965, 20 UST 361, TIAS No 6638, 658 UNTS 163. Although service of process is outside the scope of the present considerations, the Hague Service Convention has some relevance to the overall focus of this discussion, as best summed up in Volkswagenwerk Aktiengesellschaft v Schlunk, 486 US 694, 108 SCt 2104 (1988). In the Schlunk case, the US Supreme Court unanimously affirmed the decision of the Appellate Court of Illinois (143 Ill App3d 594, 105 Ill Dec 39, 503 NE2d 1045 (1986)) that the Hague Service Convention does not apply when a party serves process on a foreign corporation through its wholly owned and closely controlled US subsidiary, qualifying as involuntary agent, under normal long-arm requirements of local laws. A US State may limit the extension of its long-arm statute, as the Illinois Supreme Court had done (see e.g., Green v Advance Ross Elec. Cor., 86 Ill 2d 431, 436, 427 NE2d 1203, 1206 (1981)), or retain maximum extension, as in California where the exercise of jurisdiction is authorized 'on any basis not inconsistent with the Constitution of the United States' (Cal Civ Proc Code s. 410.10 (West 1973)). (See 'The Hague Service Convention as Enabler: Volkswagenwerk Aktiengesellschaft v Schlunk', 20 Inter-American Law Review (1988) at 186.) The US Supreme Court's assertion in the Schlunk case of state law supremacy over the Hague Service Convention has been said to have severely reduced the effectiveness of the Convention and weakened the United States policy of deference to international treaties. (See ibid, at 176, 178, 197, 198.) For further discussion, see Frederick C. Leiner, 'American Service of Process upon Foreign Corporations: the Schlunk Case and Beyond', 23 Journal of World Trade (February 198) 37.
55. See F.T.C. v Compagnie de Saint-Gobain-Pont-à-Mousson, above n 28. See also Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention), opened for signature, 15 November 1965, 20 UST 361, TIAS No 6638, 658 UNTS 163. Although service of process is outside the scope of the present considerations, the Hague Service Convention has some relevance to the overall focus of this discussion, as best summed up in Volkswagenwerk Aktiengesellschaft v Schlunk, 486 US 694, 108 SCt 2104 (1988). In the Schlunk case, the US Supreme Court unanimously affirmed the decision of the Appellate Court of Illinois (143 Ill App3d 594, 105 Ill Dec 39, 503 NE2d 1045 (1986)) that the Hague Service Convention does not apply when a party serves process on a foreign corporation through its wholly owned and closely controlled US subsidiary, qualifying as involuntary agent, under normal long-arm requirements of local laws. A US State may limit the extension of its long-arm statute, as the Illinois Supreme Court had done (see e.g., Green v Advance Ross Elec. Cor., 86 Ill 2d 431, 436, 427 NE2d 1203, 1206 (1981)), or retain maximum extension, as in California where the exercise of jurisdiction is authorized 'on any basis not inconsistent with the Constitution of the United States' (Cal Civ Proc Code s. 410.10 (West 1973)). (See 'The Hague Service Convention as Enabler: Volkswagenwerk Aktiengesellschaft v Schlunk', 20 Inter-American Law Review (1988) at 186.) The US Supreme Court's assertion in the Schlunk case of state law supremacy over the Hague Service Convention has been said to have severely reduced the effectiveness of the Convention and weakened the United States policy of deference to international treaties. (See ibid, at 176, 178, 197, 198.) For further discussion, see Frederick C. Leiner, 'American Service of Process upon Foreign Corporations: the Schlunk Case and Beyond', 23 Journal of World Trade (February 1989) 37.
56. See F.T.C. v Compagnie de Saint-Gobain-Pont-à-Mousson, above n 28. See also Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention), opened for signature, 15 November 1965, 20 UST 361, TIAS No 6638, 658 UNTS 163. Although service of process is outside the scope of the present considerations, the Hague Service Convention has some relevance to the overall focus of this discussion, as best summed up in Volkswagenwerk Aktiengesellschaft v Schlunk, 486 US 694, 108 SCt 2104 (1988). In the Schlunk case, the US Supreme Court unanimously affirmed the decision of the Appellate Court of Illinois (143 Ill App3d 594, 105 Ill Dec 39, 503 NE2d 1045 (1986)) that the Hague Service Convention does not apply when a party serves process on a foreign corporation through its wholly owned and closely controlled US subsidiary, qualifying as involuntary agent, under normal long-arm requirements of local laws. A US State may limit the extension of its long-arm statute, as the Illinois Supreme Court had done (see e.g., Green v Advance Ross Elec. Cor., 86 Ill 2d 431, 436, 427 NE2d 1203, 1206 (1981)), or retain maximum extension, as in California where the exercise of jurisdiction is authorized 'on any basis not inconsistent with the Constitution of the United States' (Cal Civ Proc Code s. 410.10 (West 1973)). (See 'The Hague Service Convention as Enabler: Volkswagenwerk Aktiengesellschaft v Schlunk', 20 Inter-American Law Review (1988) at 186.) The US Supreme Court's assertion in the Schlunk case of state law supremacy over the Hague Service Convention has been said to have severely reduced the effectiveness of the Convention and weakened the United States policy of deference to international treaties. (See ibid, at 176, 178, 197, 198.) For further discussion, see Frederick C. Leiner, 'American Service of Process upon Foreign Corporations: the Schlunk Case and Beyond', 23 Journal of World Trade (February 1989) 37.
57. See F.T.C. v Compagnie de Saint-Gobain-Pont-à-Mousson, above n 28. See also Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention), opened for signature, 15 November 1965, 20 UST 361, TIAS No 6638, 658 UNTS 163. Although service of process is outside the scope of the present considerations, the Hague Service Convention has some relevance to the overall focus of this discussion, as best summed up in Volkswagenwerk Aktiengesellschaft v Schlunk, 486 US 694, 108 SCt 2104 (1988). In the Schlunk case, the US Supreme Court unanimously affirmed the decision of the Appellate Court of Illinois (143 Ill App3d 594, 105 Ill Dec 39, 503 NE2d 1045 (1986)) that the Hague Service Convention does not apply when a party serves process on a foreign corporation through its wholly owned and closely controlled US subsidiary, qualifying as involuntary agent, under normal long-arm requirements of local laws. A US State may limit the extension of its long-arm statute, as the Illinois Supreme Court had done (see e.g., Green v Advance Ross Elec. Cor., 86 Ill 2d 431, 436, 427 NE2d 1203, 1206 (1981)), or retain maximum extension, as in California where the exercise of jurisdiction is authorized 'on any basis not inconsistent with the Constitution of the United States' (Cal Civ Proc Code s. 410.10 (West 1973)). (See 'The Hague Service Convention as Enabler: Volkswagenwerk Aktiengesellschaft v Schlunk', 20 Inter-American Law Review (1988) at 186.) The US Supreme Court's assertion in the Schlunk case of state law supremacy over the Hague Service Convention has been said to have severely reduced the effectiveness of the Convention and weakened the United States policy of deference to international treaties. (See ibid, at 176, 178, 197, 198.) For further discussion, see Frederick C. Leiner, 'American Service of Process upon Foreign Corporations: the Schlunk Case and Beyond', 23 Journal of World Trade (February 1989) 37.
58. See F.T.C. v Compagnie de Saint-Gobain-Pont-à-Mousson, above n 28. See also Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention), opened for signature, 15 November 1965, 20 UST 361, TIAS No 6638, 658 UNTS 163. Although service of process is outside the scope of the present considerations, the Hague Service Convention has some relevance to the overall focus of this discussion, as best summed up in Volkswagenwerk Aktiengesellschaft v Schlunk, 486 US 694, 108 SCt 2104 (1988). In the Schlunk case, the US Supreme Court unanimously affirmed the decision of the Appellate Court of Illinois (143 Ill App3d 594, 105 Ill Dec 39, 503 NE2d 1045 (1986)) that the Hague Service Convention does not apply when a party serves process on a foreign corporation through its wholly owned and closely controlled US subsidiary, qualifying as involuntary agent, under normal long-arm requirements of local laws. A US State may limit the extension of its long-arm statute, as the Illinois Supreme Court had done (see e.g., Green v Advance Ross Elec. Cor., 86 Ill 2d 431, 436, 427 NE2d 1203, 1206 (1981)), or retain maximum extension, as in California where the exercise of jurisdiction is authorized 'on any basis not inconsistent with the Constitution of the United States' (Cal Civ Proc Code s. 410.10 (West 1973)). (See 'The Hague Service Convention as Enabler: Volkswagenwerk Aktiengesellschaft v Schlunk', 20 Inter-American Law Review (1988) at 186.) The US Supreme Court's assertion in the Schlunk case of state law supremacy over the Hague Service Convention has been said to have severely reduced the effectiveness of the Convention and weakened the United States policy of deference to international treaties. (See ibid, at 176, 178, 197, 198.) For further discussion, see Frederick C. Leiner, 'American Service of Process upon Foreign Corporations: the Schlunk Case and Beyond', 23 Journal of World Trade (February 1989) 37.
59. Restatement of the Law (Second): Foreign Relations Law of the United States (St Paul) Minn: American Law Institute Publishers 1965) [hereinafter cited as Restatement (Second)], s. 37, reporters' note.
60. Convention on the High Seas, 29 April 1958. See also ibid [Restatement (Second)], s. 30.
61. See ibid [Restatement (Second)], s. 7(1)
62. Onkelinx, above n 30, at 500.
63. Robert Y. Jennings, 'Extraterritorial Jurisdiction and the United States Antitrust Laws', 33 British Yearbook of International Law (1957) at 171. It was stated by the Graco court that just as 'discovery does not "take place within [a state's] borders" merely because documents to be produced somewhere else are located there [, s]imilarly, discovery should be considered as taking place [in the United States], not in another country, when interrogatories are served [in the United States], even if the necessary information is located in the other country' (as quoted in In re Anschuetz, below n 92, at 611 [first set of brackets in original; footnote omitted].
64. Report of the 52nd Conference of the International Law Association (ILA, London, 1966) at 112.
65. See F.A. Mann, 'The Doctrine of Jurisdiction in International Law', 111 Recueil des Cours (1964) at 156.
66. On international comity, see e.g., Wallace, above n 2, Chapter XIII, subsection 2(b)(iii).
67. See e.g., F.T.C. v Compagnie de Saint-Gobain-Pont-à-Mousson, above n 28.
68. Richmark Corp v Timber Falling Consultants, 506 US 948, 113 SCt 454.
69. Restatement (Third), above n 5, s. 442(1)(c).
70. See e.g.) Partenreederei M/S 'Heidberg' (a body corporate) and another v Grosvenor Grain and Feed Co, Ltd and others, QB (Comm), 31 March 1993.
71. Jennings, above n 43, at 171. See also Onkelinx, above n 30, at 498-99.
72. Jennings, above n 43, at 171. See also Onkelinx, above n 30, at 498-99.
73. See In re Westinghouse Electric Corporation Uranium Contracts Litigation (Westinghouse), 563 F2d 992 (10th Cir 1977); also In re Westinghouse Electric Corporation v Rio Algam, et al, 473 F Supp 382 (ND Ill 1979), modified by 617 F2d 1248 (7th Cir 1980); also Re Westinghouse Electric Corp and Duquesne Light Co, [1977] 78 DLR 3d (Ont); also Rio Tinto Zinc Corp v Westinghouse Electric Corp [1978] 1 All ER 434 (HL 1977); [1978] 2 WLR 81 (HL); [1978] AC 547 [hereinafter cited as 'Westinghouse (UK)'], on appeal from In re Westinghouse Electric Corp Uranium Contracts Litigation [1977] 3 WLR 430 (CA). For a discussion of this case, see Wallace, above n 2, Chapter XIV, subsection 2(c)(iii).
74. See In re Westinghouse Electric Corporation Uranium Contracts Litigation (Westinghouse), 563 F2d 992 (10th Cir 1977); also In re Westinghouse Electric Corporation v Rio Algam, et al, 473 F Supp 382 (ND Ill 1979), modified by 617 F2d 1248 (7th Cir 1980); also Re Westinghouse Electric Corp and Duquesne Light Co, [1977] 78 DLR 3d (Ont); also Rio Tinto Zinc Corp v Westinghouse Electric Corp [1978] 1 All ER 434 (HL 1977); [1978] 2 WLR 81 (HL); [1978] AC 547 [hereinafter cited as 'Westinghouse (UK)'], on appeal from In re Westinghouse Electric Corp Uranium Contracts Litigation [1977] 3 WLR 430 (CA). For a discussion of this case, see Wallace, above n 2, Chapter XIV, subsection 2(c)(iii).
75. See In re Westinghouse Electric Corporation Uranium Contracts Litigation (Westinghouse), 563 F2d 992 (10th Cir 1977); also In re Westinghouse Electric Corporation v Rio Algam, et al, 473 F Supp 382 (ND Ill 1979), modified by 617 F2d 1248 (7th Cir 1980); also Re Westinghouse Electric Corp and Duquesne Light Co, [1977] 78 DLR 3d (Ont); also Rio Tinto Zinc Corp v Westinghouse Electric Corp [1978] 1 All ER 434 (HL 1977); [1978] 2 WLR 81 (HL); [1978] AC 547 [hereinafter cited as 'Westinghouse (UK)'], on appeal from In re Westinghouse Electric Corp Uranium Contracts Litigation [1977] 3 WLR 430 (CA). For a discussion of this case, see Wallace, above n 2, Chapter XIV, subsection 2(c)(iii).
76. See In re Westinghouse Electric Corporation Uranium Contracts Litigation (Westinghouse), 563 F2d 992 (10th Cir 1977); also In re Westinghouse Electric Corporation v Rio Algam, et al, 473 F Supp 382 (ND Ill 1979), modified by 617 F2d 1248 (7th Cir 1980); also Re Westinghouse Electric Corp and Duquesne Light Co, [1977] 78 DLR 3d (Ont); also Rio Tinto Zinc Corp v Westinghouse Electric Corp [1978] 1 All ER 434 (HL 1977); [1978] 2 WLR 81 (HL); [1978] AC 547 [hereinafter cited as 'Westinghouse (UK)'], on appeal from In re Westinghouse Electric Corp Uranium Contracts Litigation [1977] 3 WLR 430 (CA). For a discussion of this case, see Wallace, above n 2, Chapter XIV, subsection 2(c)(iii).
77. See In re Westinghouse Electric Corporation Uranium Contracts Litigation (Westinghouse), 563 F2d 992 (10th Cir 1977); also In re Westinghouse Electric Corporation v Rio Algam, et al, 473 F Supp 382 (ND Ill 1979), modified by 617 F2d 1248 (7th Cir 1980); also Re Westinghouse Electric Corp and Duquesne Light Co, [1977] 78 DLR 3d (Ont); also Rio Tinto Zinc Corp v Westinghouse Electric Corp [1978] 1 All ER 434 (HL 1977); [1978] 2 WLR 81 (HL); [1978] AC 547 [hereinafter cited as 'Westinghouse (UK)'], on appeal from In re Westinghouse Electric Corp Uranium Contracts Litigation [1977] 3 WLR 430 (CA). For a discussion of this case, see Wallace, above n 2, Chapter XIV, subsection 2(c)(iii).
78. See Mann, above n 45, at 154-58. This right has been recognized in a number of bilateral and multilateral treaties, notable among which is the Hague Convention on Taking Evidence Abroad in Civil or Commercial Matters, above n 26.
79. See Jennings, above n 43, at 171.
80. See generally, Wallace, above n 2, Chapter XIII
81. With the globalization of financial markets and telecommunication networks, and the consequent Intel-nationalization of securities transactions, American courts have increasingly found themselves in the necessity of enforcing US securities laws for acts committed in foreign jurisdictions in cases where the persons or transactions have borne a link to the United States. Adequate attention has not always been given to principles of international law and comity, leading to difficulties in enforcement jurisdiction particularly in the pre-trial discovery phase of international securities litigation. A major congressional response to this problem was the passage of the International Securities Enforcement Cooperation Act of 1990 (ISECA) (Pub L No 101-550, 104 Stat 2714 (codified, as amended, in scattered sections of 15 USC (Supp 1991)), which helped to alleviate tensions. For more on ISECA and whether it is an adequate response to the problem of evidence-gathering in international securities cases, see Philip O. Erwin, 'The International Securities Enforcement Cooperation Act of 1990: Increasing International Cooperation in Extraterritorial Discovery?' (Comment), 15 Boston College International and Comparative Law Review (1992) 471. For arguments in favour of limiting the extraterritorial application of US securities laws, see Stephen J. Choi and Andrew T. Guzman, 'The Dangerous Extraterritoriality of American Securities Laws', 17 Northwestern Journal of International Law & Business (1996) 207.
82. With the globalization of financial markets and telecommunication networks, and the consequent Intel-nationalization of securities transactions, American courts have increasingly found themselves in the necessity of enforcing US securities laws for acts committed in foreign jurisdictions in cases where the persons or transactions have borne a link to the United States. Adequate attention has not always been given to principles of international law and comity, leading to difficulties in enforcement jurisdiction particularly in the pre-trial discovery phase of international securities litigation. A major congressional response to this problem was the passage of the International Securities Enforcement Cooperation Act of 1990 (ISECA) (Pub L No 101-550, 104 Stat 2714 (codified, as amended, in scattered sections of 15 USC (Supp 1991)), which helped to alleviate tensions. For more on ISECA and whether it is an adequate response to the problem of evidence-gathering in international securities cases, see Philip O. Erwin, 'The International Securities Enforcement Cooperation Act of 1990: Increasing International Cooperation in Extraterritorial Discovery?' (Comment), 15 Boston College International and Comparative Law Review (1992) 471. For arguments in favour of limiting the extraterritorial application of US securities laws, see Stephen J. Choi and Andrew T. Guzman, 'The Dangerous Extraterritoriality of American Securities Laws', 17 Northwestern Journal of International Law & Business (1996) 207.
83. See e.g., Aérospatiale, below
84. See below n 69 and accompanying quote
85. Hague Evidence Convention, above n 26. For the development, through the Hague Conference, of international judicial assistance in Europe, see McClean, above n 16, at 82-85.
86. A 'Letter of Request' is basically equivalent to a letter rogatory, which has been defined in Volkswagenwerk Aktiengesellschaft v Superior Court ('Volkswagenwerk I') (33 Cal App 3d 503, at 505, 109 Cal Rptr 219, at 220 (1973)) as 'a judicial request addressed to a foreign court that a witness be examined in the latter's territorial jurisdiction', as cited in Diana Lloyd Muse, 'Discovery in France and the Hague Convention: The Search for a French Connection', 64 New York University Law Review (1989) at 1092. One distinction between the two is that a 'letter rogatory' has no binding force, whereas the 'letter of request', where a treaty provision, has the force of international law, to the extent of the obligations in the treaty language itself. For more details on the scope and objectives of the Letter of Request and the key provisions governing the relevant procedure, see Axel Heck, 'US Misinterpretation of the Hague Evidence Convention', 24 Columbia Journal of Transnational Law (1986) at 234-37; also ibid [McClean] at 86-101.
87. A 'Letter of Request' is basically equivalent to a letter rogatory, which has been defined in Volkswagenwerk Aktiengesellschaft v Superior Court ('Volkswagenwerk I') (33 Cal App 3d 503, at 505, 109 Cal Rptr 219, at 220 (1973)) as 'a judicial request addressed to a foreign court that a witness be examined in the latter's territorial jurisdiction', as cited in Diana Lloyd Muse, 'Discovery in France and the Hague Convention: The Search for a French Connection', 64 New York University Law Review (1989) at 1092. One distinction between the two is that a 'letter rogatory' has no binding force, whereas the 'letter of request', where a treaty provision, has the force of international law, to the extent of the obligations in the treaty language itself. For more details on the scope and objectives of the Letter of Request and the key provisions governing the relevant procedure, see Axel Heck, 'US Misinterpretation of the Hague Evidence Convention', 24 Columbia Journal of Transnational Law (1986) at 234-37; also ibid [McClean] at 86-101.
88. A 'Letter of Request' is basically equivalent to a letter rogatory, which has been defined in Volkswagenwerk Aktiengesellschaft v Superior Court ('Volkswagenwerk I') (33 Cal App 3d 503, at 505, 109 Cal Rptr 219, at 220 (1973)) as 'a judicial request addressed to a foreign court that a witness be examined in the latter's territorial jurisdiction', as cited in Diana Lloyd Muse, 'Discovery in France and the Hague Convention: The Search for a French Connection', 64 New York University Law Review (1989) at 1092. One distinction between the two is that a 'letter rogatory' has no binding force, whereas the 'letter of request', where a treaty provision, has the force of international law, to the extent of the obligations in the treaty language itself. For more details on the scope and objectives of the Letter of Request and the key provisions governing the relevant procedure, see Axel Heck, 'US Misinterpretation of the Hague Evidence Convention', 24 Columbia Journal of Transnational Law (1986) at 234-37; also ibid [McClean] at 86-101.
89. A 'Letter of Request' is basically equivalent to a letter rogatory, which has been defined in Volkswagenwerk Aktiengesellschaft v Superior Court ('Volkswagenwerk I') (33 Cal App 3d 503, at 505, 109 Cal Rptr 219, at 220 (1973)) as 'a judicial request addressed to a foreign court that a witness be examined in the latter's territorial jurisdiction', as cited in Diana Lloyd Muse, 'Discovery in France and the Hague Convention: The Search for a French Connection', 64 New York University Law Review (1989) at 1092. One distinction between the two is that a 'letter rogatory' has no binding force, whereas the 'letter of request', where a treaty provision, has the force of international law, to the extent of the obligations in the treaty language itself. For more details on the scope and objectives of the Letter of Request and the key provisions governing the relevant procedure, see Axel Heck, 'US Misinterpretation of the Hague Evidence Convention', 24 Columbia Journal of Transnational Law (1986) at 234-37; also ibid [McClean] at 86-101.
90. Hague Evidence Convention, above n 26, arts. 1-2. For a discussion of the meaning of 'to obtain evidence or perform some other judicial act' and of 'judicial proceedings, commenced or contemplated', see Bruno A. Ristau, International Judicial Assistance: Civil and Commercial (Washington, DC: International Law Institute 1984) Vol I, s. 5-1-4 (3) and (4). For the American vis-à-vis the German reasoning on whether the Hague Convention was meant to include pre-trial discovery, through the interpretation of the language 'commenced or contemplated' vis-à-vis the language 'evidence which is not intended for use in judicial proceedings', see Gerber, 'Conflict', above n 22, at 782-83.
91. Hague Evidence Convention, above n 26, arts. 1-2. For a discussion of the meaning of 'to obtain evidence or perform some other judicial act' and of 'judicial proceedings, commenced or contemplated', see Bruno A. Ristau, International Judicial Assistance: Civil and Commercial (Washington, DC: International Law Institute 1984) Vol I, s. 5-1-4 (3) and (4). For the American vis-à-vis the German reasoning on whether the Hague Convention was meant to include pre-trial discovery, through the interpretation of the language 'commenced or contemplated' vis-à-vis the language 'evidence which is not intended for use in judicial proceedings', see Gerber, 'Conflict', above n 22, at 782-83.
92. Ibid [Hague Evidence Convention], arts. 15-17. For a more thorough discussion of the Convention's procedures, covering the obtaining of evidence by diplomatic officers, consular agents and commissioners, see Darrell Prescott and Edwin R. Alley, 'Effective Evidence Taking Under the Hague Convention' [hereinafter cited as 'Effective Evidence Taking'], 22 The International Lawyer (1988) at 959-64.
93. Ibid [Hague Evidence Convention], arts. 15-17. For a more thorough discussion of the Convention's procedures, covering the obtaining of evidence by diplomatic officers, consular agents and commissioners, see Darrell Prescott and Edwin R. Alley, 'Effective Evidence Taking Under the Hague Convention' [hereinafter cited as 'Effective Evidence Taking'], 22 The International Lawyer (1988) at 959-64.
94. See ibid [Hague Evidence Convention], art. 33. Germany, for example, excludes by reservation all evidence gathering by this method involving a German national. (See FRG Instrument of Ratification to the Hague Evidence Convention at 1.) (Donald R. Shemanski, 'Obtaining Evidence in the Federal Republic of Germany: The Impact of the Hague Evidence Convention on German-American Judicial Cooperation', 17 The International Lawyer (1983) at 475-76.)
95. See ibid [Hague Evidence Convention], art. 33. Germany, for example, excludes by reservation all evidence gathering by this method involving a German national. (See FRG Instrument of Ratification to the Hague Evidence Convention at 1.) (Donald R. Shemanski, 'Obtaining Evidence in the Federal Republic of Germany: The Impact of the Hague Evidence Convention on German-American Judicial Cooperation', 17 The International Lawyer (1983) at 475-76.)
96. See Ristau, above n 61, at 232
97. See Hague Evidence Convention, above n 26, art. 28.
98. Nouveau code de procédure civile (Codes Dalloz) (Paris: Dalloz 1997). Both old and new codes ('ancien code' and 'nouveau code') are in force. The articles at issue remain unchanged.
99. Evidence (Proceedings in Other Jurisdictions) Act 1975, c 34. While it is widely assumed that the Evidence (Proceedings in other Jurisdictions) Act 1975 implemented the Hague Evidence Convention, the Act was actually enacted prior to the Convention's entry into force in the United Kingdom on 15 September 1976. Furthermore, unlike most highly industrialized countries, the United Kingdom has no supremacy clause or similar constitutional provision according treaties priority over domestic statutes, and thus a treaty has no direct effect in English law that requires an implementing act. However, with Parliament obviously aware of the Convention, the 1975 Act is often considered to be an implementing statute, although it imposes no express international obligations under the Convention nor makes any direct reference whatsoever to it. This notwithstanding, the provisions of the Act - which surpass the Convention in scope - are in complete conformity with the Convention. (See Heck, above n 60, at 276-77.) For a comparison of the provisions of the Act with those of the Convention, see McClean, above n 16, at 105-06.
100. Evidence (Proceedings in Other Jurisdictions) Act 1975, c 34. While it is widely assumed that the Evidence (Proceedings in other Jurisdictions) Act 1975 implemented the Hague Evidence Convention, the Act was actually enacted prior to the Convention's entry into force in the United Kingdom on 15 September 1976. Furthermore, unlike most highly industrialized countries, the United Kingdom has no supremacy clause or similar constitutional provision according treaties priority over domestic statutes, and thus a treaty has no direct effect in English law that requires an implementing act. However, with Parliament obviously aware of the Convention, the 1975 Act is often considered to be an implementing statute, although it imposes no express international obligations under the Convention nor makes any direct reference whatsoever to it. This notwithstanding, the provisions of the Act - which surpass the Convention in scope - are in complete conformity with the Convention. (See Heck, above n 60, at 276-77.) For a comparison of the provisions of the Act with those of the Convention, see McClean, above n 16, at 105-06.
101. For a useful summary of United States practice in international discovery, with particular reference to the Hague Convention, see Stephen F. Black, 'United States Transnational Discovery: The Rise and Fall of the Hague Evidence Convention', 40 International and Comparative Law Quarterly (1991) 901. With regard to French practice in light of the Hague Convention, see Muse, above n 60, at 173 et seq. See also Jacques Borel and Stephen M. Boyd, 'Opportunities for and Obstacles to Obtaining Evidence in France for Use in Litigation in the United States', 13 The International Lawyer (1979) 35.
102. For a useful summary of United States practice in international discovery, with particular reference to the Hague Convention, see Stephen F. Black, 'United States Transnational Discovery: The Rise and Fall of the Hague Evidence Convention', 40 International and Comparative Law Quarterly (1991) 901. With regard to French practice in light of the Hague Convention, see Muse, above n 60, at 173 et seq. See also Jacques Borel and Stephen M. Boyd, 'Opportunities for and Obstacles to Obtaining Evidence in France for Use in Litigation in the United States', 13 The International Lawyer (1979) 35.
103. For a useful summary of United States practice in international discovery, with particular reference to the Hague Convention, see Stephen F. Black, 'United States Transnational Discovery: The Rise and Fall of the Hague Evidence Convention', 40 International and Comparative Law Quarterly (1991) 901. With regard to French practice in light of the Hague Convention, see Muse, above n 60, at 173 et seq. See also Jacques Borel and Stephen M. Boyd, 'Opportunities for and Obstacles to Obtaining Evidence in France for Use in Litigation in the United States', 13 The International Lawyer (1979) 35.
104. Letter of Submittal from Secretary of State William P. Rogers to President Nixon (9 November 1971), S Exec Doc A, 92d Cong, 2d Sess (1 February 1972), reprinted in 12 ILM 324 (1973) at 324. See also Philip W. Amram, 'The Proposed Convention on the Taking of Evidence Abroad', 55 ABA Journal [American Bar Association] (1969) 651; also Philip W. Amram, 'United States Ratification of the Hague Convention on the Taking of Evidence Abroad', 67 American Journal of International Law (1973) at 105. (Mr Amram was a member of the US delegation to the Hague Conference.) See also Volkswagenwerk Aktiengesellschaft, etc. v Superior Court, Alemeda County, 123 Cal App 3d 840, 176 Cal Rptr 874 (1981) (Ct App 1982).
105. Letter of Submittal from Secretary of State William P. Rogers to President Nixon (9 November 1971), S Exec Doc A, 92d Cong, 2d Sess (1 February 1972), reprinted in 12 ILM 324 (1973) at 324. See also Philip W. Amram, 'The Proposed Convention on the Taking of Evidence Abroad', 55 ABA Journal [American Bar Association] (1969) 651; also Philip W. Amram, 'United States Ratification of the Hague Convention on the Taking of Evidence Abroad', 67 American Journal of International Law (1973) at 105. (Mr Amram was a member of the US delegation to the Hague Conference.) See also Volkswagenwerk Aktiengesellschaft, etc. v Superior Court, Alemeda County, 123 Cal App 3d 840, 176 Cal Rptr 874 (1981) (Ct App 1982).
106. Letter of Submittal from Secretary of State William P. Rogers to President Nixon (9 November 1971), S Exec Doc A, 92d Cong, 2d Sess (1 February 1972), reprinted in 12 ILM 324 (1973) at 324. See also Philip W. Amram, 'The Proposed Convention on the Taking of Evidence Abroad', 55 ABA Journal [American Bar Association] (1969) 651; also Philip W. Amram, 'United States Ratification of the Hague Convention on the Taking of Evidence Abroad', 67 American Journal of International Law (1973) at 105. (Mr Amram was a member of the US delegation to the Hague Conference.) See also Volkswagenwerk Aktiengesellschaft, etc. v Superior Court, Alemeda County, 123 Cal App 3d 840, 176 Cal Rptr 874 (1981) (Ct App 1982).
107. For a discussion of the term 'pre-trial' in the context of international discovery, see Wallace, above n 2, Chapter XIV, subsection 1(b).
108. See Black, 'United States Transnational Discovery', above n 68, at 901-3. See also Muse, above n 60, at 1093-94; also Lawrence Collins, 'The Hague Evidence Convention and Discovery. A Serious Misunderstanding?', 35 International and Comparative Law Quarterly (1986) 765.
109. See Black, 'United States Transnational Discovery', above n 68, at 901-3. See also Muse, above n 60, at 1093-94; also Lawrence Collins, 'The Hague Evidence Convention and Discovery. A Serious Misunderstanding?', 35 International and Comparative Law Quarterly (1986) 765.
110. See Black, 'United States Transnational Discovery', above n 68, at 901-3. See also Muse, above n 60, at 1093-94; also Lawrence Collins, 'The Hague Evidence Convention and Discovery. A Serious Misunderstanding?', 35 International and Comparative Law Quarterly (1986) 765.
111. See e.g., Muse, above n 60, p 1073, esp. at 1075.
112. Fed R Civ P, 28 USC, rule 26(b)(1).
113. I d e m.
114. See Heck, above n 60, at 237 n 34. See e.g., Muse, above n 60, at 1075, 1081. See also Andreas F. Lowenfeld, 'Some Reflections on Transnational Discovery' [1986] Journal of Comparative Business and Capital Market Law, at 422-23; also Martin Radvan, 'The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters: Several Notes Concerning Its Scope, Methods and Compulsion', 16 New York University Journal of International Law and Politics (1983/84) at 1044-45.
115. See Heck, above n 60, at 237 n 34. See e.g., Muse, above n 60, at 1075, 1081. See also Andreas F. Lowenfeld, 'Some Reflections on Transnational Discovery' [1986] Journal of Comparative Business and Capital Market Law, at 422-23; also Martin Radvan, 'The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters: Several Notes Concerning Its Scope, Methods and Compulsion', 16 New York University Journal of International Law and Politics (1983/84) at 1044-45.
116. See Heck, above n 60, at 237 n 34. See e.g., Muse, above n 60, at 1075, 1081. See also Andreas F. Lowenfeld, 'Some Reflections on Transnational Discovery' [1986] Journal of Comparative Business and Capital Market Law, at 422-23; also Martin Radvan, 'The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters: Several Notes Concerning Its Scope, Methods and Compulsion', 16 New York University Journal of International Law and Politics (1983/84) at 1044-45.
117. See Heck, above n 60, at 237 n 34. See e.g., Muse, above n 60, at 1075, 1081. See also Andreas F. Lowenfeld, 'Some Reflections on Transnational Discovery' [1986] Journal of Comparative Business and Capital Market Law, at 422-23; also Martin Radvan, 'The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters: Several Notes Concerning Its Scope, Methods and Compulsion', 16 New York University Journal of International Law and Politics (1983/84) at 1044-45.
118. Such declarations are commonly referred to as 'article 23 reservations', though there is a technical distinction between the two terms. This distinction takes on importance when it comes to applying article 33 (which permits no 'reservation' except with regard to article 4, paragraph 2, or to Chapter II on taking of evidence by diplomats, consular agents, etc.) or article 34 (which permits the withdrawal or modification, at any time, of a 'declaration'). The distinction is maintained in article 35(d) (which concerns the withdrawal or modification of 'designations and declarations') and article 35(e) (which concerns withdrawal of 'reservations'); the two are also distinct in the Vienna Convention on the Law of Treaties, opened for signature, 23 May 1969, reprinted in 8 ILM 679 (1969), arts. 19-23.
119. For a summary of the rationale for, and evolution of, article 23, as conceived and ultimately proposed by the British negotiators, see Collins, 'The Hague Evidence Convention and Discovery', above n 71, at 775-76. In the United Kingdom, as opposed to the United States, the obligation to make discovery (under Order 24 of the Rules of the Supreme Court) is generally reserved to parties to the action; it does not ordinarily extend to third parties. Furthermore, such obligation does not arise before the close of pleadings, and a fair degree of specificity is required, allowing no place for American-style 'fishing expeditions'.
120. Rules of the Supreme Court (RSC), Order 24, rules 1-3.
121. Westinghouse (UK), above n 52.
122. Loi no 80-538 du 16 juillet 1980 relative à la communication des documents et renseignements d'ordre économique, commercial ou technique à des personnes physiques ou morales étrangères ([1980] JO 1799).
123. See Brigitte Ecolivet Herzog, 'The 1980 French Law on Documents and Information' (Current Developments), 75 American Journal of International Law (1981) at 386.
124. National Assembly Report No 1814 (Alain Maynoud, Reporter for the Commission on Production and Exchanges) (Paris, 19 June 1980) at 33, 45, and Assembly Debate.
125. For example, the Convention's failure to provide for discovery by administrative agencies. (See ibid. [Report] at 11, 18, 27-28; see also ibid [Debate] at 2231.)
126. For example, the Convention's failure to provide for discovery by administrative agencies. (See ibid. [Report] at 11, 18, 27-28; see also ibid [Debate] at 2231.)
127. See ibid. [Report] at 17, 18, 45.
128. See Report of the United States Delegation to the Special Commission on the Operation of the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (12-15 June 1978), reprinted in 17 ILM 1417 (1978) at 1421 (section 3: assistance to related discovery proceedings).
129. See Report of the United States Delegation to the Special Commission on the Operation of the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (12-15 June 1978), reprinted in 17 ILM 1417 (1978) at 1421 (section 3: assistance to related discovery proceedings). For more details on the 1978 Special Commission, see Oxman, above n 22, at 773-77.
130. Letter from J.B. Raimond, French Minister of Foreign Affairs, to H.H. Van den Broek, Dutch Minister of Foreign Affairs, 24 December 1986, cited in Aérospatiale, below n 107, 482 US 522 (1987) at 564 n 22.
131. See Shemanski, above n 63, at 480-85.
132. Gesetz zur Ausführung des Haager Übereinkommens vom 15. November 1965 über die Zustellung gerichtlicher und außergerichtlicher Schriftstücke im Ausland in Zivil oder Handelssachen und des Haager Übereinkommens vom 18. Marz 1970 über die Beweissaufnahme im Ausland in Zivil oder Handelssachen vom 22. Dezember 1977, BGBl 1997 I S. 3105.
133. Ibid, s. 14(1).
134. Ibid, s. 14(2).
135. See Erik Jayme and Rainer Hausmann, Internationales Privat- und Verfahrensrecht (9th edn, München: C.H. Beck 1998), despite Aérospatiale, below n 107 [482 US 522 (1987)], at 564 n 22.
136. See Erik Jayme and Rainer Hausmann, Internationales Privat- und Verfahrensrecht (9th edn, München: C.H. Beck 1998), despite Aérospatiale, below n 107 [482 US 522 (1987)], at 564 n 22.
137. In re Anschuetz & Co, GmbH, 754 F2d 602 (5th Cir 1985) [hereinafter cited as 'In re Anschuetz'], petition for cer. filed sub nom Anschuetz & Co, GmbH v Mississippi River Bridge Authority, 474 US 812, 106 SCt 52 (1985), vacated 483 US 1002 (1987) [hereinafter cited as 'Anschuetz']. On appeal, the court denied relief and granted certiorari (754 F2d 602); the Supreme Court vacated and remanded (483 US 1002 (1987), 107 SCt 3223 (1987)). On remand, the Court of Appeals held that the district court had discretion to resolve conflicts between the Hague Evidence Convention and Federal Rules of Civil Procedure and to apply appropriate discovery techniques to obtain documents and information located within the territory of the foreign signatory (838 F2d 1362 (5th Cir 1988)).
138. In re Anschuetz & Co, GmbH, 754 F2d 602 (5th Cir 1985) [hereinafter cited as 'In re Anschuetz'], petition for cer. filed sub nom Anschuetz & Co, GmbH v Mississippi River Bridge Authority, 474 US 812, 106 SCt 52 (1985), vacated 483 US 1002 (1987) [hereinafter cited as 'Anschuetz']. On appeal, the court denied relief and granted certiorari (754 F2d 602); the Supreme Court vacated and remanded (483 US 1002 (1987), 107 SCt 3223 (1987)). On remand, the Court of Appeals held that the district court had discretion to resolve conflicts between the Hague Evidence Convention and Federal Rules of Civil Procedure and to apply appropriate discovery techniques to obtain documents and information located within the territory of the foreign signatory (838 F2d 1362 (5th Cir 1988)).
139. See McClean, above n 16, at 112-13. The urgings to adopt the UK treaty language, since tested by the Westinghouse litigation (above n 52), were reiterated at the Second Special Commission in 1985.
140. See In re Anschuetz, above n 92, at 605.
141. Brief for the Federal Republic of Germany as Amicus Curiae [In re Anschuetz], at 8, above n 26. See reference also in Messerschmitt, below n 108, at 731.
142. Brief for the Federal Republic of Germany as Amicus Curiae [In re Anschuetz], at 8, above n 26. See reference also in Messerschmitt, below n 108, at 731.
143. Brief for the United States as Amicus Curiae at 2, In re Anschuetz, above n 92.
144. On the question of comity as considered in Anschuetz, see Michael J. Novara, 'The Demise of the Multilateral Convention on the Taking of Evidence Abroad: In re Anschuetz & Co., GmbH' (Comment), 13 Brooklyn Journal of International Law (1987) at 154-56.
145. See In re Anschuetz, above n 92, at 605.
146. See ibid, at 615.
147. Graco, Inc v Kremlin, Inc, 101 FRD 503 (ND Ill 1984) (a patent infringement claim against a French corporation and its wholly owned American subsidiary) at 503. For the facts of the case, see e.g., 'Extraterritorial Discovery - Hague Evidence Convention - The Hague Convention Procedures Are Not Exclusive, and Courts May Issue Discovery Orders Using Alternative Means' (Recent Developments), 25 Virginia Journal of International Law (1984/85) 249.
148. Graco, Inc v Kremlin, Inc, 101 FRD 503 (ND Ill 1984) (a patent infringement claim against a French corporation and its wholly owned American subsidiary) at 503. For the facts of the case, see e.g., 'Extraterritorial Discovery - Hague Evidence Convention - The Hague Convention Procedures Are Not Exclusive, and Courts May Issue Discovery Orders Using Alternative Means' (Recent Developments), 25 Virginia Journal of International Law (1984/85) 249.
149. See In re Anschuetz, above n 92, at 611.
150. See below n 144.
151. See In re Anschuetz, above n 92, at 604. For further discussion of this case, from the viewpoint that Anschuetz undermined the Evidence Convention, see generally, Novara, above n 97. For additional critical commentary, see generally, Jane Ann Landrum, 'In re Anschuetz & Co., GmbH: A Critical Analysis' (Case Comment), 15 Denver Journal of International Law and Policy (1986) 135; Gardner H. Palmer, Jr, 'Treaties - Interpretation of Hague Evidence Convention - Interplay between the Hague Evidence Convention and the Federal Rules of Civil Procedure, In re Anschuetz & Co, GmbH, 754 F2d 602 (5th Cir. 1985)', 10 Suffolk Transnational Law Journal (1986) 345.
152. See In re Anschuetz, above n 92, at 604. For further discussion of this case, from the viewpoint that Anschuetz undermined the Evidence Convention, see generally, Novara, above n 97. For additional critical commentary, see generally, Jane Ann Landrum, 'In re Anschuetz & Co., GmbH: A Critical Analysis' (Case Comment), 15 Denver Journal of International Law and Policy (1986) 135; Gardner H. Palmer, Jr, 'Treaties - Interpretation of Hague Evidence Convention - Interplay between the Hague Evidence Convention and the Federal Rules of Civil Procedure, In re Anschuetz & Co, GmbH, 754 F2d 602 (5th Cir. 1985)', 10 Suffolk Transnational Law Journal (1986) 345.
153. See In re Anschuetz, above n 92, at 604. For further discussion of this case, from the viewpoint that Anschuetz undermined the Evidence Convention, see generally, Novara, above n 97. For additional critical commentary, see generally, Jane Ann Landrum, 'In re Anschuetz & Co., GmbH: A Critical Analysis' (Case Comment), 15 Denver Journal of International Law and Policy (1986) 135; Gardner H. Palmer, Jr, 'Treaties - Interpretation of Hague Evidence Convention - Interplay between the Hague Evidence Convention and the Federal Rules of Civil Procedure, In re Anschuetz & Co, GmbH, 754 F2d 602 (5th Cir. 1985)', 10 Suffolk Transnational Law Journal (1986) 345.
154. See In re Anschuetz, above n 92, at 604. For further discussion of this case, from the viewpoint that Anschuetz undermined the Evidence Convention, see generally, Novara, above n 97. For additional critical commentary, see generally, Jane Ann Landrum, 'In re Anschuetz & Co., GmbH: A Critical Analysis' (Case Comment), 15 Denver Journal of International Law and Policy (1986) 135; Gardner H. Palmer, Jr, 'Treaties - Interpretation of Hague Evidence Convention - Interplay between the Hague Evidence Convention and the Federal Rules of Civil Procedure, In re Anschuetz & Co, GmbH, 754 F2d 602 (5th Cir. 1985)', 10 Suffolk Transnational Law Journal (1986) 345.
155. In re Anschuetz, above n 92, at 615.
156. I d e m.
157. See C. Peck Hayne, Jr. 'Anschuetz, International Discovery American-Style, and the Hague Evidence Convention', 19 New York University Journal of International Law and Politics (1986) at 165.
158. In re Société Nationale Industrielle Aérospatiale, 782 F2d 120 (8th Cir 1986) [hereinafter cited as 'In re Aérospatiale'], vacated sub nom Société Nationale Industrielle Aérospatiale v United States District Court for the Southern District of Iowa [hereinafter cited as 'Aérospatiale'), 482 US 522 (1987), 107 SCt 2542 (1987). See below.
159. In re Société Nationale Industrielle Aérospatiale, 782 F2d 120 (8th Cir 1986) [hereinafter cited as 'In re Aérospatiale'], vacated sub nom Société Nationale Industrielle Aérospatiale v United States District Court for the Southern District of Iowa [hereinafter cited as 'Aérospatiale'), 482 US 522 (1987), 107 SCt 2542 (1987). See below.
160. Messerschmitt Bölkow Blöhm, GmbH v Walker [In re: 757 F2d 729 (5th Cir 1985), cert granted] 475 US 1118, 106 SCt 1633 (1986), cert vacated, 476 US 1168, 106 SCt 2887 (1986), case remanded, 483 US 1002, 107 SCt 3223 (1987).
161. See Brief for the Federal Republic of Germany as Amicus Curiae [In re Anschuetz], above n 26, [ILM] at 1546.
162. See In re Messerschmitt Bölkow Blöhm, GmbH, above n 108, at 731.
163. Ibid, as summarized in 55 USLW 3843.
164. See Brief for the United States as Amicus Curiae, at 6, Anschuetz & Co v Mississippi Bridge Authority and Messerschmitt Bolkow [sic] Blöhm v Virginia Walker (US Supreme Ct. Nos 85-98 and 85-99) (March 1986).
165. See ibid, at 18. See Harold G. Maier, 'Extraterritorial Discovery: Cooperation, Coercion and the Hague Evidence Convention', 19 Vanderbilt Journal of Transnational Law (1986) at 250-51.
166. See ibid, at 18. See Harold G. Maier, 'Extraterritorial Discovery: Cooperation, Coercion and the Hague Evidence Convention', 19 Vanderbilt Journal of Transnational Law (1986) at 250-51.
167. See Black, 'United States Transnational Discovery', above n 68, at 901, 903.
168. For more on article 23, see Oxman, above n 22, at 771-77.
169. See Hague Evidence Convention, above n 26, art. 27 (c).
170. See ibid, art. 27(b). See also Amram, 'United States Ratification of the Hague Convention on the Taking of Evidence Abroad', above n 69, at 107 (stating that article 27 preserves 'for each signatory party all provisions of its internal law that are more favourable to, and grant more generous assistance to foreign courts and litigants than the methods prescribed in the Convention').
171. See ibid, art. 27(b). See also Amram, 'United States Ratification of the Hague Convention on the Taking of Evidence Abroad', above n 69, at 107 (stating that article 27 preserves 'for each signatory party all provisions of its internal law that are more favourable to, and grant more generous assistance to foreign courts and litigants than the methods prescribed in the Convention').
172. See e.g., James T. Matthews, 'The Role of the Hague Convention for Gathering Evidence Abroad: Société Nationale Industrielle Aerospatiale v United States District Court for the Southern District of Iowa, 107 SCt 2542 (1987)', 24 Stanford Journal of International Law (1987) at 316-17 (incl. n 55); also Patricia Anne Kuhn, 'Societe Nationale Industrielle Aerospatiale: The Supreme Court's Misguided Approach to the Hague Evidence Convention', 69 Boston University Law Review (1989) at 1045-46; also Oxman, above n 22, at 760; also 'The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters: The Exclusive and Mandatory Procedures for Discovery Abroad' (Comment), 132 University of Pennsylvania Law Review (1984) at 1476. See also Philadelphia Gear, above n 23, at 60.
173. See e.g., James T. Matthews, 'The Role of the Hague Convention for Gathering Evidence Abroad: Société Nationale Industrielle Aerospatiale v United States District Court for the Southern District of Iowa, 107 SCt 2542 (1987)', 24 Stanford Journal of International Law (1987) at 316-17 (incl. n 55); also Patricia Anne Kuhn, 'Societe Nationale Industrielle Aerospatiale: The Supreme Court's Misguided Approach to the Hague Evidence Convention', 69 Boston University Law Review (1989) at 1045-46; also Oxman, above n 22, at 760; also 'The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters: The Exclusive and Mandatory Procedures for Discovery Abroad' (Comment), 132 University of Pennsylvania Law Review (1984) at 1476. See also Philadelphia Gear, above n 23, at 60.
174. See e.g., James T. Matthews, 'The Role of the Hague Convention for Gathering Evidence Abroad: Société Nationale Industrielle Aerospatiale v United States District Court for the Southern District of Iowa, 107 SCt 2542 (1987)', 24 Stanford Journal of International Law (1987) at 316-17 (incl. n 55); also Patricia Anne Kuhn, 'Societe Nationale Industrielle Aerospatiale: The Supreme Court's Misguided Approach to the Hague Evidence Convention', 69 Boston University Law Review (1989) at 1045-46; also Oxman, above n 22, at 760; also 'The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters: The Exclusive and Mandatory Procedures for Discovery Abroad' (Comment), 132 University of Pennsylvania Law Review (1984) at 1476. See also Philadelphia Gear, above n 23, at 60.
175. See e.g., James T. Matthews, 'The Role of the Hague Convention for Gathering Evidence Abroad: Société Nationale Industrielle Aerospatiale v United States District Court for the Southern District of Iowa, 107 SCt 2542 (1987)', 24 Stanford Journal of International Law (1987) at 316-17 (incl. n 55); also Patricia Anne Kuhn, 'Societe Nationale Industrielle Aerospatiale: The Supreme Court's Misguided Approach to the Hague Evidence Convention', 69 Boston University Law Review (1989) at 1045-46; also Oxman, above n 22, at 760; also 'The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters: The Exclusive and Mandatory Procedures for Discovery Abroad' (Comment), 132 University of Pennsylvania Law Review (1984) at 1476. See also Philadelphia Gear, above n 23, at 60.
176. See e.g., James T. Matthews, 'The Role of the Hague Convention for Gathering Evidence Abroad: Société Nationale Industrielle Aerospatiale v United States District Court for the Southern District of Iowa, 107 SCt 2542 (1987)', 24 Stanford Journal of International Law (1987) at 316-17 (incl. n 55); also Patricia Anne Kuhn, 'Societe Nationale Industrielle Aerospatiale: The Supreme Court's Misguided Approach to the Hague Evidence Convention', 69 Boston University Law Review (1989) at 1045-46; also Oxman, above n 22, at 760; also 'The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters: The Exclusive and Mandatory Procedures for Discovery Abroad' (Comment), 132 University of Pennsylvania Law Review (1984) at 1476. See also Philadelphia Gear, above n 23, at 60.
177. See Philip W. Amram, Explanatory Report on the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters [hereinafter cited as 'Explanatory Report'], S Exec Doc A 92d Cong 2d Sess 11 (1972) at 39-41, reprinted in 12 ILM 327 (1973) at 341-42. See also Gerber, 'Quest', above n 11, at 538-39 (expounding on H. Kelsen's 'theory' that 'coercive acts. . . must not be executed on the territory of another state without the latter's consent [, in the absence of which] they constitute a violation of international law' (Hans Kelsen, Principles of International Law (2nd ed, rev'd, New York: Holt 1967) at 310-11).
178. See Philip W. Amram, Explanatory Report on the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters [hereinafter cited as 'Explanatory Report'], S Exec Doc A 92d Cong 2d Sess 11 (1972) at 39-41, reprinted in 12 ILM 327 (1973) at 341-42. See also Gerber, 'Quest', above n 11, at 538-39 (expounding on H. Kelsen's 'theory' that 'coercive acts. . . must not be executed on the territory of another state without the latter's consent [, in the absence of which] they constitute a violation of international law' (Hans Kelsen, Principles of International Law (2nd ed, rev'd, New York: Holt 1967) at 310-11).
179. See Philip W. Amram, Explanatory Report on the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters [hereinafter cited as 'Explanatory Report'], S Exec Doc A 92d Cong 2d Sess 11 (1972) at 39-41, reprinted in 12 ILM 327 (1973) at 341-42. See also Gerber, 'Quest', above n 11, at 538-39 (expounding on H. Kelsen's 'theory' that 'coercive acts. . . must not be executed on the territory of another state without the latter's consent [, in the absence of which] they constitute a violation of international law' (Hans Kelsen, Principles of International Law (2nd ed, rev'd, New York: Holt 1967) at 310-11).
180. See Philip W. Amram, Explanatory Report on the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters [hereinafter cited as 'Explanatory Report'], S Exec Doc A 92d Cong 2d Sess 11 (1972) at 39-41, reprinted in 12 ILM 327 (1973) at 341-42. See also Gerber, 'Quest', above n 11, at 538-39 (expounding on H. Kelsen's 'theory' that 'coercive acts. . . must not be executed on the territory of another state without the latter's consent [, in the absence of which] they constitute a violation of international law' (Hans Kelsen, Principles of International Law (2nd ed, rev'd, New York: Holt 1967) at 310-11).
181. Kuhn, above n 118, at 1045-46, with reference to art. 27(c).
182. See ibid, at 1046.
183. Amram, 'United States Ratification of the Hague Convention on the Taking of Evidence Abroad', above n 69, at 105.
184. See Lasky v Continental Products, Inc, above n 23, at 1228. See also Hayne, above n 106, at 127.
185. See Lasky v Continental Products, Inc, above n 23, at 1228. See also Hayne, above n 106, at 127.
186. See Hague Evidence Convention, above n 26, art. 7 (requesting authority [or] state of origin), art. 9 (requesting authority/state of execution), art. 10 (requested authority), art. 11 (state of execution/state of origin; requested authority/requesting authority), art. 12 (state of execution), art. 13 (requested authority/requesting authority), art. 14 (state of execution/ state of origin), etc.
187. See above n 119.
188. William L. Wilks and Nancy E. Goldberg, 'The Unsolved Problem in Taking Evidence Abroad: The Non Rule of Aerospatiale', 7 Dickinson Journal of International Law (1988) at 72.
189. Hague Evidence Convention, above n 26, art. 27(b).
190. Ibid, art. 27(c).
191. See Amicus Brief for the Republic of France and Amicus Brief for the Federal Republic of Germany, as cited in Aérospatiale, (1987)] at 522. See also e.g., Corning Glass Works v International Telephone and Telegraph Corp, Civil Case No 76-0144 (WD Va filed 14 July 1976), Judgment of 27 November 1980, Oberlandesgericht [OLG], München, 1981 Juristenzeitung [JZ] 538, reprinted in 20 ILM 1025 (1981) at 1036-37; also Judgment of 10 June 1981, Landgericht [LG], München, 1982 Zeitschrift für Zivilprozess [ZZP] 362, at 363 (holding that the provisions of the Code of Civil Procedure (Zivilprozessordnung [ZPO] vom 30. Januar 1877, in der Neufassung vom 12. September 1950, BGBl I S 533) apply only to the extent that the Hague Evidence Convention does not require a different result).
192. See Amicus Brief for the Republic of France and Amicus Brief for the Federal Republic of Germany, as cited in Aérospatiale, (1987)] at 522. See also e.g., Corning Glass Works v International Telephone and Telegraph Corp, Civil Case No 76-0144 (WD Va filed 14 July 1976), Judgment of 27 November 1980, Oberlandesgericht [OLG], München, 1981 Juristenzeitung [JZ] 538, reprinted in 20 ILM 1025 (1981) at 1036-37; also Judgment of 10 June 1981, Landgericht [LG], München, 1982 Zeitschrift für Zivilprozess [ZZP] 362, at 363 (holding that the provisions of the Code of Civil Procedure (Zivilprozessordnung [ZPO] vom 30. Januar 1877, in der Neufassung vom 12. September 1950, BGBl I S 533) apply only to the extent that the Hague Evidence Convention does not require a different result).
193. See Amicus Brief for the Republic of France and Amicus Brief for the Federal Republic of Germany, as cited in Aérospatiale, above n 107 [482 US 522 (1987)] at 522. See also e.g., Corning Glass Works v International Telephone and Telegraph Corp, Civil Case No 76-0144 (WD Va filed 14 July 1976), Judgment of 27 November 1980, Oberlandesgericht [OLG], München, 1981 Juristenzeitung [JZ] 538, reprinted in 20 ILM 1025 (1981) at 1036-37; also Judgment of 10 June 1981, Landgericht [LG], München, 1982 Zeitschrift für Zivilprozess [ZZP] 362, at 363 (holding that the provisions of the Code of Civil Procedure (Zivilprozessordnung [ZPO] vom 30. Januar 1877, in der Neufassung vom 12. September 1950, BGBl I S 533) apply only to the extent that the Hague Evidence Convention does not require a different result).
194. See Amicus Brief for the Republic of France and Amicus Brief for the Federal Republic of Germany, as cited in Aérospatiale, above n 107 [482 US 522 (1987)] at 522. See also e.g., Corning Glass Works v International Telephone and Telegraph Corp, Civil Case No 76-0144 (WD Va filed 14 July 1976), Judgment of 27 November 1980, Oberlandesgericht [OLG], München, 1981 Juristenzeitung [JZ] 538, reprinted in 20 ILM 1025 (1981) at 1036-37; also Judgment of 10 June 1981, Landgericht [LG], München, 1982 Zeitschrift für Zivilprozess [ZZP] 362, at 363 (holding that the provisions of the Code of Civil Procedure (Zivilprozessordnung [ZPO] vom 30. Januar 1877, in der Neufassung vom 12. September 1950, BGBl I S 533) apply only to the extent that the Hague Evidence Convention does not require a different result).
195. See Mark A. Cotter, 'The Hague Convention: Selfish US Interpretation Aggravates Foreign Signatories and Mandates Changes to Federal Discovery Rules', 6 Florida Journal of International Law (1991) at 248.
196. See ibid, at 245, 246, 247. See also Amicus Brief for the Federal Republic of Germany [Aérospatiale], above n 129, at 522.
197. See ibid, at 245, 246, 247. See also Amicus Brief for the Federal Republic of Germany [Aérospatiale], above n 129, at 522.
198. See Westinghouse (UK), above n 52. See also Wallace, above n 2, Chapter XIV, subsection 2(c)(iii), and text accompanying above n 79. See also the Santa Fe case (QB, 23 February 1984), reprinted in 23 ILM 512 (1984) (in which a letter of request for document discovery issued by US Courts under Convention procedures were also reviewed by an English court, and the House of Lords Re Asbestos Insurance Coverage Cases [1985] All ER 716 (HL), exemplifying the approach adopted by the English courts in handling such letters of request). See also Prescott and Alley, 'Effective Evidence Taking', above n 62, at 972-74.
199. See Westinghouse (UK), above n 52. See also Wallace, above n 2, Chapter XIV, subsection 2(c)(iii), and text accompanying above n 79. See also the Santa Fe case (QB, 23 February 1984), reprinted in 23 ILM 512 (1984) (in which a letter of request for document discovery issued by US Courts under Convention procedures were also reviewed by an English court, and the House of Lords Re Asbestos Insurance Coverage Cases [1985] All ER 716 (HL), exemplifying the approach adopted by the English courts in handling such letters of request). See also Prescott and Alley, 'Effective Evidence Taking', above n 62, at 972-74.
200. See Westinghouse (UK), above n 52. See also Wallace, above n 2, Chapter XIV, subsection 2(c)(iii), and text accompanying above n 79. See also the Santa Fe case (QB, 23 February 1984), reprinted in 23 ILM 512 (1984) (in which a letter of request for document discovery issued by US Courts under Convention procedures were also reviewed by an English court, and the House of Lords Re Asbestos Insurance Coverage Cases [1985] All ER 716 (HL), exemplifying the approach adopted by the English courts in handling such letters of request). See also Prescott and Alley, 'Effective Evidence Taking', above n 62, at 972-74.
201. See Westinghouse (UK), above n 52. See also Wallace, above n 2, Chapter XIV, subsection 2(c)(iii), and text accompanying above n 79. See also the Santa Fe case (QB, 23 February 1984), reprinted in 23 ILM 512 (1984) (in which a letter of request for document discovery issued by US Courts under Convention procedures were also reviewed by an English court, and the House of Lords Re Asbestos Insurance Coverage Cases [1985] All ER 716 (HL), exemplifying the approach adopted by the English courts in handling such letters of request). See also Prescott and Alley, 'Effective Evidence Taking', above n 62, at 972-74.
202. See Corning Glass Works v International Telephone and Telegraph Corp, above n 129.
203. See Robert J. Augustine, 'Obtaining International Judicial Assistance Under the Federal Rules and the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters: An Exposition of the Procedures and Practical Example: In re Westinghouse Uranium Contract Litigation', 10 Georgia Journal of International Law & Comparative Law (1980) at 163.
204. See Dirk-Reiner Martens, 'Germany', in Charles Platto and Michael Lee, eds Obtaining Evidence in Another Jurisdiction in Business Disputes. (2nd edn, London: Graham & Trotman 1993), at 96.
205. See Heck, above n 60, at 246-47. Ultimately this implementing regulation was never issued, due to resistance from German industry (see Jayme and Haussmann, above n 91, at 493 n 2, on s. 14, para 2 of No 108a). For a more detailed account of the discovery issues in Corning Glass, see Charles Platto, 'Taking Evidence Abroad for Use in Civil Cases in the United States - A Practical Guide', 16 The International Lawyer (1982) 575, at 581; also Prescott and Alley, 'Effective Evidence Taking', above n 62, at 977-88.
206. See Heck, above n 60, at 246-47. Ultimately this implementing regulation was never issued, due to resistance from German industry (see Jayme and Haussmann, above n 91, at 493 n 2, on s. 14, para 2 of No 108a). For a more detailed account of the discovery issues in Corning Glass, see Charles Platto, 'Taking Evidence Abroad for Use in Civil Cases in the United States - A Practical Guide', 16 The International Lawyer (1982) 575, at 581; also Prescott and Alley, 'Effective Evidence Taking', above n 62, at 977-88.
207. See Heck, above n 60, at 246-47. Ultimately this implementing regulation was never issued, due to resistance from German industry (see Jayme and Haussmann, above n 91, at 493 n 2, on s. 14, para 2 of No 108a). For a more detailed account of the discovery issues in Corning Glass, see Charles Platto, 'Taking Evidence Abroad for Use in Civil Cases in the United States - A Practical Guide', 16 The International Lawyer (1982) 575, at 581; also Prescott and Alley, 'Effective Evidence Taking', above n 62, at 977-88.
208. See Heck, above n 60, at 246-47. Ultimately this implementing regulation was never issued, due to resistance from German industry (see Jayme and Haussmann, above n 91, at 493 n 2, on s. 14, para 2 of No 108a). For a more detailed account of the discovery issues in Corning Glass, see Charles Platto, 'Taking Evidence Abroad for Use in Civil Cases in the United States - A Practical Guide', 16 The International Lawyer (1982) 575, at 581; also Prescott and Alley, 'Effective Evidence Taking', above n 62, at 977-88.
209. See Restatement (Third), above n 5, s. 473, comment h.
210. See e.g., Schooner Exchange v M'Faddon 11 US (7 Cranch) 116 (1812) at 133 ('[a]ll exceptions... to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself').
211. Amram, 'The Proposed Convention on the Taking of Evidence Abroad', above n 69, at 655.
212. See Aérospatiale, above n 107, 482 US 522 (1987) at 551 n 2; 107 SCt 2542 at 2552 n 2.
213. See e.g., George A. Bermann, 'The Hague Evidence Convention in the Supreme Court: A Critique of the Aérospatiale Decision', 63 Tulane Law Review (1989) at 532; also Randall D. Roth, 'Five Years After Aérospatiale: Rethinking Discovery Abroad in Civil and Commercial Litigation Under the Hague Convention and the Federal Rules of Civil Procedure' (Comment), 13 University of Pennsylvania Journal of International Business Law (1992) at 446.
214. See e.g., George A. Bermann, 'The Hague Evidence Convention in the Supreme Court: A Critique of the Aérospatiale Decision', 63 Tulane Law Review (1989) at 532; also Randall D. Roth, 'Five Years After Aérospatiale: Rethinking Discovery Abroad in Civil and Commercial Litigation Under the Hague Convention and the Federal Rules of Civil Procedure' (Comment), 13 University of Pennsylvania Journal of International Business Law (1992) at 446.
215. For a discussion of some of the early cases and the confusion among US courts, see Heck, above n 60, at 253-61. See also Black, 'United States Transnational Discovery', above n 68, at 904. For an analysis of the reasoning pro and con exclusive, first-resort, or optional use of the Convention, see generally, Bermann, above n 141, p. 525.
216. For a discussion of some of the early cases and the confusion among US courts, see Heck, above n 60, at 253-61. See also Black, 'United States Transnational Discovery', above n 68, at 904. For an analysis of the reasoning pro and con exclusive, first-resort, or optional use of the Convention, see generally, Bermann, above n 141, p. 525.
217. For a discussion of some of the early cases and the confusion among US courts, see Heck, above n 60, at 253-61. See also Black, 'United States Transnational Discovery', above n 68, at 904. For an analysis of the reasoning pro and con exclusive, first-resort, or optional use of the Convention, see generally, Bermann, above n 141, p. 525.
218. See e.g., Volkswagenwerk AG v Falzon, above n 14 (in which both the United States and German governments held the view that the Hague Evidence Convention was the exclusive means by which a US court could order discovery in Germany (appeal ultimately dismissed for lack of jurisdiction (No 82-1888, slip op (US 21 February 1984))); also Cuisinarts, Inc v Robot Coupe SA No CV 80-0050083C (Conn Super Ct 22 July 1982) (in which US courts were held not to have the power to order discovery directly from signatory states even where Convention procedures proved inadequate). (See also Connecticut v Cuisinarts, Inc, 460 US 1068, 103 SCt 1520 (Mem) (1983)). More prevalent is commentary in the literature supporting this view. See e.g, Oxman, above n 22, at 781 (concluding that the Convention should be obligatory and not waivable, or (at 760-61) at least the primary means of securing evidence abroad); also Kuhn, above n 118, at 1036-53 (arguing that use of the Convention to obtain evidence abroad is mandatory), and at 1064-66 (arguing that the United States is required by her treaty commitment to use the Convention); also, Radvan, above n 75, at 1058 (see also 1036-37) (concluding that, as 'the supreme law of the land', the Convention is not optional in the United States, and that it should be the exclusive means of evidence production abroad among parties of all contracting states); also 'The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters' (Comment), above n 118, at 1463, 1485 (concluding that it was the intention of the drafting states that the Convention be exclusive and that American courts have been wrong where they have ruled otherwise); also Marguerite E. Trossevin, 'Extraterritorial Discovery under the Hague Evidence Convention' (Comment), 31 Villanova Law Review (1986), at 257, 289-90 (concluding that exclusive use of the Convention is in the best interest of the United States, to the end of increasing the level of cooperation with foreign courts).
219. See e.g., Volkswagenwerk AG v Falzon, above n 14 (in which both the United States and German governments held the view that the Hague Evidence Convention was the exclusive means by which a US court could order discovery in Germany (appeal ultimately dismissed for lack of jurisdiction (No 82-1888, slip op (US 21 February 1984))); also Cuisinarts, Inc v Robot Coupe SA No CV 80-0050083C (Conn Super Ct 22 July 1982) (in which US courts were held not to have the power to order discovery directly from signatory states even where Convention procedures proved inadequate). (See also Connecticut v Cuisinarts, Inc, 460 US 1068, 103 SCt 1520 (Mem) (1983)). More prevalent is commentary in the literature supporting this view. See e.g, Oxman, above n 22, at 781 (concluding that the Convention should be obligatory and not waivable, or (at 760-61) at least the primary means of securing evidence abroad); also Kuhn, above n 118, at 1036-53 (arguing that use of the Convention to obtain evidence abroad is mandatory), and at 1064-66 (arguing that the United States is required by her treaty commitment to use the Convention); also, Radvan, above n 75, at 1058 (see also 1036-37) (concluding that, as 'the supreme law of the land', the Convention is not optional in the United States, and that it should be the exclusive means of evidence production abroad among parties of all contracting states); also 'The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters' (Comment), above n 118, at 1463, 1485 (concluding that it was the intention of the drafting states that the Convention be exclusive and that American courts have been wrong where they have ruled otherwise); also Marguerite E. Trossevin, 'Extraterritorial Discovery under the Hague Evidence Convention' (Comment), 31 Villanova Law Review (1986), at 257, 289-90 (concluding that exclusive use of the Convention is in the best interest of the United States, to the end of increasing the level of cooperation with foreign courts).
220. See e.g., Volkswagenwerk AG v Falzon, above n 14 (in which both the United States and German governments held the view that the Hague Evidence Convention was the exclusive means by which a US court could order discovery in Germany (appeal ultimately dismissed for lack of jurisdiction (No 82-1888, slip op (US 21 February 1984))); also Cuisinarts, Inc v Robot Coupe SA No CV 80-0050083C (Conn Super Ct 22 July 1982) (in which US courts were held not to have the power to order discovery directly from signatory states even where Convention procedures proved inadequate). (See also Connecticut v Cuisinarts, Inc, 460 US 1068, 103 SCt 1520 (Mem) (1983)). More prevalent is commentary in the literature supporting this view. See e.g, Oxman, above n 22, at 781 (concluding that the Convention should be obligatory and not waivable, or (at 760-61) at least the primary means of securing evidence abroad); also Kuhn, above n 118, at 1036-53 (arguing that use of the Convention to obtain evidence abroad is mandatory), and at 1064-66 (arguing that the United States is required by her treaty commitment to use the Convention); also, Radvan, above n 75, at 1058 (see also 1036-37) (concluding that, as 'the supreme law of the land', the Convention is not optional in the United States, and that it should be the exclusive means of evidence production abroad among parties of all contracting states); also 'The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters' (Comment), above n 118, at 1463, 1485 (concluding that it was the intention of the drafting states that the Convention be exclusive and that American courts have been wrong where they have ruled otherwise); also Marguerite E. Trossevin, 'Extraterritorial Discovery under the Hague Evidence Convention' (Comment), 31 Villanova Law Review (1986), at 257, 289-90 (concluding that exclusive use of the Convention is in the best interest of the United States, to the end of increasing the level of cooperation with foreign courts).
221. See e.g., Volkswagenwerk AG v Falzon, above n 14 (in which both the United States and German governments held the view that the Hague Evidence Convention was the exclusive means by which a US court could order discovery in Germany (appeal ultimately dismissed for lack of jurisdiction (No 82-1888, slip op (US 21 February 1984))); also Cuisinarts, Inc v Robot Coupe SA No CV 80-0050083C (Conn Super Ct 22 July 1982) (in which US courts were held not to have the power to order discovery directly from signatory states even where Convention procedures proved inadequate). (See also Connecticut v Cuisinarts, Inc, 460 US 1068, 103 SCt 1520 (Mem) (1983)). More prevalent is commentary in the literature supporting this view. See e.g, Oxman, above n 22, at 781 (concluding that the Convention should be obligatory and not waivable, or (at 760-61) at least the primary means of securing evidence abroad); also Kuhn, above n 118, at 1036-53 (arguing that use of the Convention to obtain evidence abroad is mandatory), and at 1064-66 (arguing that the United States is required by her treaty commitment to use the Convention); also, Radvan, above n 75, at 1058 (see also 1036-37) (concluding that, as 'the supreme law of the land', the Convention is not optional in the United States, and that it should be the exclusive means of evidence production abroad among parties of all contracting states); also 'The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters' (Comment), above n 118, at 1463, 1485 (concluding that it was the intention of the drafting states that the Convention be exclusive and that American courts have been wrong where they have ruled otherwise); also Marguerite E. Trossevin, 'Extraterritorial Discovery under the Hague Evidence Convention' (Comment), 31 Villanova Law Review (1986), at 257, 289-90 (concluding that exclusive use of the Convention is in the best interest of the United States, to the end of increasing the level of cooperation with foreign courts).
222. See e.g., Volkswagenwerk AG v Falzon, above n 14 (in which both the United States and German governments held the view that the Hague Evidence Convention was the exclusive means by which a US court could order discovery in Germany (appeal ultimately dismissed for lack of jurisdiction (No 82-1888, slip op (US 21 February 1984))); also Cuisinarts, Inc v Robot Coupe SA No CV 80-0050083C (Conn Super Ct 22 July 1982) (in which US courts were held not to have the power to order discovery directly from signatory states even where Convention procedures proved inadequate). (See also Connecticut v Cuisinarts, Inc, 460 US 1068, 103 SCt 1520 (Mem) (1983)). More prevalent is commentary in the literature supporting this view. See e.g, Oxman, above n 22, at 781 (concluding that the Convention should be obligatory and not waivable, or (at 760-61) at least the primary means of securing evidence abroad); also Kuhn, above n 118, at 1036-53 (arguing that use of the Convention to obtain evidence abroad is mandatory), and at 1064-66 (arguing that the United States is required by her treaty commitment to use the Convention); also, Radvan, above n 75, at 1058 (see also 1036-37) (concluding that, as 'the supreme law of the land', the Convention is not optional in the United States, and that it should be the exclusive means of evidence production abroad among parties of all contracting states); also 'The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters' (Comment), above n 118, at 1463, 1485 (concluding that it was the intention of the drafting states that the Convention be exclusive and that American courts have been wrong where they have ruled otherwise); also Marguerite E. Trossevin, 'Extraterritorial Discovery under the Hague Evidence Convention' (Comment), 31 Villanova Law Review (1986), at 257, 289-90 (concluding that exclusive use of the Convention is in the best interest of the United States, to the end of increasing the level of cooperation with foreign courts).
223. See e.g., Volkswagenwerk AG v Falzon, above n 14 (in which both the United States and German governments held the view that the Hague Evidence Convention was the exclusive means by which a US court could order discovery in Germany (appeal ultimately dismissed for lack of jurisdiction (No 82-1888, slip op (US 21 February 1984))); also Cuisinarts, Inc v Robot Coupe SA No CV 80-0050083C (Conn Super Ct 22 July 1982) (in which US courts were held not to have the power to order discovery directly from signatory states even where Convention procedures proved inadequate). (See also Connecticut v Cuisinarts, Inc, 460 US 1068, 103 SCt 1520 (Mem) (1983)). More prevalent is commentary in the literature supporting this view. See e.g, Oxman, above n 22, at 781 (concluding that the Convention should be obligatory and not waivable, or (at 760-61) at least the primary means of securing evidence abroad); also Kuhn, above n 118, at 1036-53 (arguing that use of the Convention to obtain evidence abroad is mandatory), and at 1064-66 (arguing that the United States is required by her treaty commitment to use the Convention); also, Radvan, above n 75, at 1058 (see also 1036-37) (concluding that, as 'the supreme law of the land', the Convention is not optional in the United States, and that it should be the exclusive means of evidence production abroad among parties of all contracting states); also 'The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters' (Comment), above n 118, at 1463, 1485 (concluding that it was the intention of the drafting states that the Convention be exclusive and that American courts have been wrong where they have ruled otherwise); also Marguerite E. Trossevin, 'Extraterritorial Discovery under the Hague Evidence Convention' (Comment), 31 Villanova Law Review (1986), at 257, 289-90 (concluding that exclusive use of the Convention is in the best interest of the United States, to the end of increasing the level of cooperation with foreign courts).
224. See e.g., Volkswagenwerk AG v Falzon, above n 14 (in which both the United States and German governments held the view that the Hague Evidence Convention was the exclusive means by which a US court could order discovery in Germany (appeal ultimately dismissed for lack of jurisdiction (No 82-1888, slip op (US 21 February 1984))); also Cuisinarts, Inc v Robot Coupe SA No CV 80-0050083C (Conn Super Ct 22 July 1982) (in which US courts were held not to have the power to order discovery directly from signatory states even where Convention procedures proved inadequate). (See also Connecticut v Cuisinarts, Inc, 460 US 1068, 103 SCt 1520 (Mem) (1983)). More prevalent is commentary in the literature supporting this view. See e.g, Oxman, above n 22, at 781 (concluding that the Convention should be obligatory and not waivable, or (at 760-61) at least the primary means of securing evidence abroad); also Kuhn, above n 118, at 1036-53 (arguing that use of the Convention to obtain evidence abroad is mandatory), and at 1064-66 (arguing that the United States is required by her treaty commitment to use the Convention); also, Radvan, above n 75, at 1058 (see also 1036-37) (concluding that, as 'the supreme law of the land', the Convention is not optional in the United States, and that it should be the exclusive means of evidence production abroad among parties of all contracting states); also 'The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters' (Comment), above n 118, at 1463, 1485 (concluding that it was the intention of the drafting states that the Convention be exclusive and that American courts have been wrong where they have ruled otherwise); also Marguerite E. Trossevin, 'Extraterritorial Discovery under the Hague Evidence Convention' (Comment), 31 Villanova Law Review (1986), at 257, 289-90 (concluding that exclusive use of the Convention is in the best interest of the United States, to the end of increasing the level of cooperation with foreign courts).
225. See e.g., Volkswagenwerk AG v Falzon, above n 14 (in which both the United States and German governments held the view that the Hague Evidence Convention was the exclusive means by which a US court could order discovery in Germany (appeal ultimately dismissed for lack of jurisdiction (No 82-1888, slip op (US 21 February 1984))); also Cuisinarts, Inc v Robot Coupe SA No CV 80-0050083C (Conn Super Ct 22 July 1982) (in which US courts were held not to have the power to order discovery directly from signatory states even where Convention procedures proved inadequate). (See also Connecticut v Cuisinarts, Inc, 460 US 1068, 103 SCt 1520 (Mem) (1983)). More prevalent is commentary in the literature supporting this view. See e.g, Oxman, above n 22, at 781 (concluding that the Convention should be obligatory and not waivable, or (at 760-61) at least the primary means of securing evidence abroad); also Kuhn, above n 118, at 1036-53 (arguing that use of the Convention to obtain evidence abroad is mandatory), and at 1064-66 (arguing that the United States is required by her treaty commitment to use the Convention); also, Radvan, above n 75, at 1058 (see also 1036-37) (concluding that, as 'the supreme law of the land', the Convention is not optional in the United States, and that it should be the exclusive means of evidence production abroad among parties of all contracting states); also 'The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters' (Comment), above n 118, at 1463, 1485 (concluding that it was the intention of the drafting states that the Convention be exclusive and that American courts have been wrong where they have ruled otherwise); also Marguerite E. Trossevin, 'Extraterritorial Discovery under the Hague Evidence Convention' (Comment), 31 Villanova Law Review (1986), at 257, 289-90 (concluding that exclusive use of the Convention is in the best interest of the United States, to the end of increasing the level of cooperation with foreign courts).
226. Significant US state and lower federal court decisions, which on comity grounds required first resort to the Convention, include Volkswagenwerk, AG v Superior Court ('Volkswagenwerk I & II'), 33 Cal App 3d 503m Cal Rptr 219 (1973) at 109 (not a Hague Evidence Convention case); and 123 Cal App 3d 840, 176 Cal Rptr 874 (1981); Pierburg GmbH & Co v Superior Court, 137 Cal App Schroeder v Lufthansa German Airlines, 18 Av Cas (CCH), para 17, 222 (ND Ill 15 September 1983); and General Electric v North Star International, Inc, No 83-C-0838, slip op at 5 (ND Ill 28 February 1984); T.H. Goldschmidt, AG v Smith, 676 SW 2d 443 (Tex Ct App 1984) at 445. For a discussion of various of these cases see e.g., Novara, above n 97, at 149-54; also Hayne, above n 106, at 132-42 (also extensive footnote references to other relevant case law and the literature). For an annotated listing of these and similar cases, see Muse, above n 60, at 1103 n 167; also Roth, above n 141, at 427 n 7. Post-Aérospatiale cases maintaining the 'first-resort' approach include Hudson v Hermann Pfauter GmbH & Co, 117 FRD 33 (NDNY 1987), and In re Perrier Bottled Water Litigation, 138 FRD 348 (D Conn 1991).
227. Significant US state and lower federal court decisions, which on comity grounds required first resort to the Convention, include Volkswagenwerk, AG v Superior Court ('Volkswagenwerk I & II'), 33 Cal App 3d 503m Cal Rptr 219 (1973) at 109 (not a Hague Evidence Convention case); and 123 Cal App 3d 840, 176 Cal Rptr 874 (1981); Pierburg GmbH & Co v Superior Court, 137 Cal App Schroeder v Lufthansa German Airlines, 18 Av Cas (CCH), para 17, 222 (ND Ill 15 September 1983); and General Electric v North Star International, Inc, No 83-C-0838, slip op at 5 (ND Ill 28 February 1984); T.H. Goldschmidt, AG v Smith, 676 SW 2d 443 (Tex Ct App 1984) at 445. For a discussion of various of these cases see e.g., Novara, above n 97, at 149-54; also Hayne, above n 106, at 132-42 (also extensive footnote references to other relevant case law and the literature). For an annotated listing of these and similar cases, see Muse, above n 60, at 1103 n 167; also Roth, above n 141, at 427 n 7. Post-Aérospatiale cases maintaining the 'first-resort' approach include Hudson v Hermann Pfauter GmbH & Co, 117 FRD 33 (NDNY 1987), and In re Perrier Bottled Water Litigation, 138 FRD 348 (D Conn 1991).
228. Significant US state and lower federal court decisions, which on comity grounds required first resort to the Convention, include Volkswagenwerk, AG v Superior Court ('Volkswagenwerk I & II'), 33 Cal App 3d 503m Cal Rptr 219 (1973) at 109 (not a Hague Evidence Convention case); and 123 Cal App 3d 840, 176 Cal Rptr 874 (1981); Pierburg GmbH & Co v Superior Court, 137 Cal App Schroeder v Lufthansa German Airlines, 18 Av Cas (CCH), para 17, 222 (ND Ill 15 September 1983); and General Electric v North Star International, Inc, No 83-C-0838, slip op at 5 (ND Ill 28 February 1984); T.H. Goldschmidt, AG v Smith, 676 SW 2d 443 (Tex Ct App 1984) at 445. For a discussion of various of these cases see e.g., Novara, above n 97, at 149-54; also Hayne, above n 106, at 132-42 (also extensive footnote references to other relevant case law and the literature). For an annotated listing of these and similar cases, see Muse, above n 60, at 1103 n 167; also Roth, above n 141, at 427 n 7. Post-Aérospatiale cases maintaining the 'first-resort' approach include Hudson v Hermann Pfauter GmbH & Co, 117 FRD 33 (NDNY 1987), and In re Perrier Bottled Water Litigation, 138 FRD 348 (D Conn 1991).
229. Significant US state and lower federal court decisions, which on comity grounds required first resort to the Convention, include Volkswagenwerk, AG v Superior Court ('Volkswagenwerk I & II'), 33 Cal App 3d 503m Cal Rptr 219 (1973) at 109 (not a Hague Evidence Convention case); and 123 Cal App 3d 840, 176 Cal Rptr 874 (1981); Pierburg GmbH & Co v Superior Court, 137 Cal App Schroeder v Lufthansa German Airlines, 18 Av Cas (CCH), para 17, 222 (ND Ill 15 September 1983); and General Electric v North Star International, Inc, No 83-C-0838, slip op at 5 (ND Ill 28 February 1984); T.H. Goldschmidt, AG v Smith, 676 SW 2d 443 (Tex Ct App 1984) at 445. For a discussion of various of these cases see e.g., Novara, above n 97, at 149-54; also Hayne, above n 106, at 132-42 (also extensive footnote references to other relevant case law and the literature). For an annotated listing of these and similar cases, see Muse, above n 60, at 1103 n 167; also Roth, above n 141, at 427 n 7. Post-Aérospatiale cases maintaining the 'first-resort' approach include Hudson v Hermann Pfauter GmbH & Co, 117 FRD 33 (NDNY 1987), and In re Perrier Bottled Water Litigation, 138 FRD 348 (D Conn 1991).
230. Significant US state and lower federal court decisions, which on comity grounds required first resort to the Convention, include Volkswagenwerk, AG v Superior Court ('Volkswagenwerk I & II'), 33 Cal App 3d 503m Cal Rptr 219 (1973) at 109 (not a Hague Evidence Convention case); and 123 Cal App 3d 840, 176 Cal Rptr 874 (1981); Pierburg GmbH & Co v Superior Coun, 137 Cal App Schroeder v Lufthansa German Airlines, 18 Av Cas (CCH), para 17, 222 (ND Ill 15 September 1983); and General Electric v North Star International, Inc, No 83-C-0838, slip op at 5 (ND Ill 28 February 1984); T.H. Goldschmidt, AG v Smith, 676 SW 2d 443 (Tex Ct App 1984) at 445. For a discussion of various of these cases see e.g., Novara, above n 97, at 149-54; also Hayne, above n 106, at 132-42 (also extensive footnote references to other relevant case law and the literature). For an annotated listing of these and similar cases, see Muse, above n 60, at 1103 n 167; also Roth, above n 141, at 427 n 7. Post-Aérospatiale cases maintaining the 'first-resort' approach include Hudson v Hermann Pfauter GmbH & Co, 117 FRD 33 (NDNY 1987), and In re Perrier Bottled Water Litigation, 138 FRD 348 (D Conn 1991).
231. Significant US state and lower federal court decisions, which on comity grounds required first resort to the Convention, include Volkswagenwerk, AG v Superior Court ('Volkswagenwerk I & II'), 33 Cal App 3d 503m Cal Rptr 219 (1973) at 109 (not a Hague Evidence Convention case); and 123 Cal App 3d 840, 176 Cal Rptr 874 (1981); Pierburg GmbH & Co v Superior Coun, 137 Cal App Schroeder v Lufthansa German Airlines, 18 Av Cas (CCH), para 17, 222 (ND Ill 15 September 1983); and General Electric v North Star International, Inc, No 83-C-0838, slip op at 5 (ND Ill 28 February 1984); T.H. Goldschmidt, AG v Smith, 676 SW 2d 443 (Tex Ct App 1984) at 445. For a discussion of various of these cases see e.g., Novara, above n 97, at 149-54; also Hayne, above n 106, at 132-42 (also extensive footnote references to other relevant case law and the literature). For an annotated listing of these and similar cases, see Muse, above n 60, at 1103 n 167; also Roth, above n 141, at 427 n 7. Post-Aérospatiale cases maintaining the 'first-resort' approach include Hudson v Hermann Pfauter GmbH & Co, 117 FRD 33 (NDNY 1987), and In re Perrier Bottled Water Litigation, 138 FRD 348 (D Conn 1991).
232. Significant US state and lower federal court decisions, which on comity grounds required first resort to the Convention, include Volkswagenwerk, AG v Superior Court ('Volkswagenwerk I & II'), 33 Cal App 3d 503m Cal Rptr 219 (1973) at 109 (not a Hague Evidence Convention case); and 123 Cal App 3d 840, 176 Cal Rptr 874 (1981); Pierburg GmbH & Co v Superior Coun, 137 Cal App Schroeder v Lufthansa German Airlines, 18 Av Cas (CCH), para 17, 222 (ND Ill 15 September 1983); and General Electric v North Star International, Inc, No 83-C-0838, slip op at 5 (ND Ill 28 February 1984); T.H. Goldschmidt, AG v Smith,
233. Significant US state and lower federal court decisions, which on comity grounds required first resort to the Convention, include Volkswagenwerk, AG v Superior Court ('Volkswagenwerk I & II'), 33 Cal App 3d 503m Cal Rptr 219 (1973) at 109 (not a Hague Evidence Convention case); and 123 Cal App 3d 840, 176 Cal Rptr 874 (1981); Pierburg GmbH & Co v Superior Coun, 137 Cal App Schroeder v Lufthansa German Airlines, 18 Av Cas (CCH), para 17, 222 (ND Ill 15 September 1983); and General Electric v North Star International, Inc, No 83-C-0838, slip op at 5 (ND Ill 28 February 1984); T.H. Goldschmidt, AG v Smith, 676 SW 2d 443 (Tex Ct App 1984) at 445. For a discussion of various of these cases see e.g., Novara, above n 97, at 149-54; also Hayne, above n 106, at 132-42 (also extensive footnote references to other relevant case law and the literature). For an annotated listing of these and similar cases, see Muse, above n 60, at 1103 n 167; also Roth, above n 141, at 427 n 7. Post-Aérospatiale cases maintaining the 'first-resort' approach include Hudson v Hermann Pfauter GmbH & Co, 117 FRD 33 (NDNY 1987), and In re Perrier Bottled Water Litigation, 138 FRD 348 (D Conn 1991).
234. Significant cases in addition to Aérospatiale, Anschuetz, Messerschmitt, and Graco, in which recourse to the Hague Evidence Convention was similarly held not to require first resort, and to be 'discretionary', 'permissive' or 'optional' rather than mandatory, include Lasky v Continental Products Corp, above n 23, at 1228; Laker Airways, Ltd v Pan American World Airways, above n 23, at 42; Murphy v Reifenhauser KG Maschinenfabrik, above n 23, at 363; Compagnie Française d'Assurance pour le Commerce Extérieur (COFACE) v Phillips Petroleum Co, 105 FRD 16 (SDNY 1984), at 27; Slauenwhite v Bekum Maschinenfabriken, GmbH, 104 FRD 616 (D Mass 1985), at 618-19; Work v Bier, 106 FRD 45 (DDC 1985), at 55-56; Gebr. Eickhoff Maschinenfabrik und Eisengieberei GmbH v Starcher, 328 SE2d 492 (WVa 1985). For a review of Anschuetz, Messerschmitt, and pre-Supreme-Court Aérospatiale in the light of comity and the Restatement (Third), see Maier, above n 113, at 244-64
235. Significant cases in addition to Aérospatiale, Anschuetz, Messerschmitt, and Graco, in which recourse to the Hague Evidence Convention was similarly held not to require first resort, and to be 'discretionary', 'permissive' or 'optional' rather than mandatory, include Lasky v Continental Products Corp, above n 23, at 1228; Laker Airways, Ltd v Pan American World Airways, above n 23, at 42; Murphy v Reifenhauser KG Maschinenfabrik, above n 23, at 363; Compagnie Française d'Assurance pour le Commerce Extérieur (COFACE) v Phillips Petroleum Co, 105 FRD 16 (SDNY 1984), at 27; Slauenwhite v Bekum Maschinenfabriken, GmbH, 104 FRD 616 (D Mass 1985), at 618-19; Work v Bier, 106 FRD 45 (DDC 1985), at 55-56; Gebr. Eickhoff Maschinenfabrik und Eisengieberei GmbH v Starcher, 328 SE2d 492 (WVa 1985). For a review of Anschuetz, Messerschmitt, and pre-Supreme-Court Aérospatiale in the light of comity and the Restatement (Third), see Maier, above n 113, at 244-64.
236. Significant cases in addition to Aérospatiale, Anschuetz, Messerschmitt, and Graco, in which recourse to the Hague Evidence Convention was similarly held not to require first resort, and to be 'discretionary', 'permissive' or 'optional' rather than mandatory, include Lasky v Continental Products Corp, above n 23, at 1228; Laker Airways, Ltd v Pan American World Airways, above n 23, at 42; Murphy v Reifenhauser KG Maschinenfabrik, above n 23, at 363; Compagnie Française d'Assurance pour le Commerce Extérieur (COFACE) v Phillips Petroleum Co, 105 FRD 16 (SDNY 1984), at 27; Slauenwhite v Bekum Maschinenfabriken, GmbH, 104 FRD 616 (D Mass 1985), at 618-19; Work v Bier, 106 FRD 45 (DDC 1985), at 55-56; Gebr. Eickhoff Maschinenfabrik und Eisengieberei GmbH v Starcher, 328 SE2d 492 (WVa 1985). For a review of Anschuetz, Messerschmitt, and pre-Supreme-Court Aérospatiale in the light of comity and the Restatement (Third), see Maier, above n 113, at 244-64.
237. Significant cases in addition to Aérospatiale, Anschuetz, Messerschmitt, and Graco, in which recourse to the Hague Evidence Convention was similarly held not to require first resort, and to be 'discretionary', 'permissive' or 'optional' rather than mandatory, include Lasky v Continental Products Corp, above n 23, at 1228; Laker Airways, Ltd v Pan American World Airways, above n 23, at 42; Murphy v Reifenhauser KG Maschinenfabrik, above n 23, at 363; Compagnie Française d'Assurance pour le Commerce Extérieur (COFACE) v Phillips Petroleum Co, 105 FRD 16 (SDNY 1984), at 27; Slauenwhite v Bekum Maschinenfabriken, GmbH, 104 FRD 616 (D Mass 1985), at 618-19; Work v Bier, 106 FRD 45 (DDC 1985), at 55-56; Gebr. Eickhoff Maschinenfabrik und Eisengieberei GmbH v Starcher, 328 SE2d 492 (WVa 1985). For a review of Anschuetz, Messerschmitt, and pre-Supreme-Court Aérospatiale in the light of comity and the Restatement (Third), see Maier, above n 113, at 244-64.
238. Significant cases in addition to Aérospatiale, Anschuetz, Messerschmitt, and Graco, in which recourse to the Hague Evidence Convention was similarly held not to require first resort, and to be 'discretionary', 'permissive' or 'optional' rather than mandatory, include Lasky v Continental Products Corp, above n 23, at 1228; Laker Airways, Ltd v Pan American World Airways, above n 23, at 42; Murphy v Reifenhauser KG Maschinenfabrik, above n 23, at 363; Compagnie Française d'Assurance pour le Commerce Extérieur (COFACE) v Phillips Petroleum Co, 105 FRD 16 (SDNY 1984), at 27; Slauenwhite v Bekum Maschinenfabriken, GmbH, 104 FRD 616 (D Mass 1985), at 618-19; Work v Bier, 106 FRD 45 (DDC 1985), at 55-56; Gebr. Eickhoff Maschinenfabrik und Eisengieberei GmbH v Starcher, 328 SE2d 492 (WVa 1985). For a review of Anschuetz, Messerschmitt, and pre-Supreme-Court Aérospatiale in the light of comity and the Restatement (Third), see Maier, above n 113, at 244-64.
239. Significant cases in addition to Aérospatiale, Anschuetz, Messerschmitt, and Graco, in which recourse to the Hague Evidence Convention was similarly held not to require first resort, and to be 'discretionary', 'permissive' or 'optional' rather than mandatory, include Lasky v Continental Products Corp, above n 23, at 1228; Laker Airways, Ltd v Pan American World Airways, above n 23, at 42; Murphy v Reifenhauser KG Maschinenfabrik, above n 23, at 363; Compagnie Française d'Assurance pour le Commerce Extérieur (COFACE) v Phillips Petroleum Co, 105 FRD 16 (SDNY 1984), at 27; Slauenwhite v Bekum Maschinenfabriken, GmbH, 104 FRD 616 (D Mass 1985), at 618-19; Work v Bier, 106 FRD 45 (DDC 1985), at 55-56; Gebr. Eickhoff Maschinenfabrik und Eisengieberei GmbH v Starcher, 328 SE2d 492 (WVa 1985). For a review of Anschuetz, Messerschmitt, and pre-Supreme-Court Aérospatiale in the light of comity and the Restatement (Third), see Maier, above n 113, at 244-64.
240. Significant cases in addition to Aérospatiale, Anschuetz, Messerschmitt, and Graco, in which recourse to the Hague Evidence Convention was similarly held not to require first resort, and to be 'discretionary', 'permissive' or 'optional' rather than mandatory, include Lasky v Continental Products Corp, above n 23, at 1228; Laker Airways, Ltd v Pan American World Airways, above n 23, at 42; Murphy v Reifenhauser KG Maschinenfabrik, above n 23, at 363; Compagnie Française d'Assurance pour le Commerce Extérieur (COFACE) v Phillips Petroleum Co, 105 FRD 16 (SDNY 1984), at 27; Slauenwhite v Bekum Maschinenfabriken, GmbH, 104 FRD 616 (D Mass 1985), at 618-19; Work v Bier, 106 FRD 45 (DDC 1985), at 55-56; Gebr. Eickhoff Maschinenfabrik und Eisengieberei GmbH v Starcher, 328 SE2d 492 (WVa 1985). For a review of Anschuetz, Messerschmitt, and pre-Supreme-Court Aérospatiale in the light of comity and the Restatement (Third), see Maier, above n 113, at 244-64.
241. Significant cases in addition to Aérospatiale, Anschuetz, Messerschmitt, and Graco, in which recourse to the Hague Evidence Convention was similarly held not to require first resort, and to be 'discretionary', 'permissive' or 'optional' rather than mandatory, include Lasky v Continental Products Corp, above n 23, at 1228; Laker Airways, Ltd v Pan American World Airways, above n 23, at 42; Murphy v Reifenhauser KG Maschinenfabrik, above n 23, at 363; Compagnie Française d'Assurance pour le Commerce Extérieur (COFACE) v Phillips Petroleum Co, 105 FRD 16 (SDNY 1984), at 27; Slauenwhite v Bekum Maschinenfabriken, GmbH, 104 FRD 616 (D Mass 1985), at 618-19; Work v Bier, 106 FRD 45 (DDC 1985), at 55-56; Gebr. Eickhoff Maschinenfabrik und Eisengieberei GmbH v Starcher, 328 SE2d 492 (WVa 1985). For a review of Anschuetz, Messerschmitt, and pre-Supreme-Court Aérospatiale in the light of comity and the Restatement (Third), see Maier, above n 113, at 244-64.
242. For a discussion of six different US interpretations of the Convention, from Convention supremacy to Federal Rules supremacy, see Wilks and Goldberg, above n 126, at 73-80.
243. Aérospatiale, above n 107.
244. Loi n° 80-538 du 16 juillet 1980, above n 80. The French blocking statute applies only in the absence of a treaty, in order to allow discovery pursuant to the Hague Evidence Convention. (See ibid, art. 2.)
245. See Bate C. Toms, III, 'The French Response to the Extraterritorial Application of United States Antitrust Laws', 15 International Lawyer (1981) at 596; see also Herzog, above n 81, at 385; also Heck, above n 60, at 275.
246. See Bate C. Toms, III, 'The French Response to the Extraterritorial Application of United States Antitrust Laws', 15 International Lawyer (1981) at 596; see also Herzog, above n 81, at 385; also Heck, above n 60, at 275.
247. See Bate C. Toms, III, 'The French Response to the Extraterritorial Application of United States Antitrust Laws', 15 International Lawyer (1981) at 596; see also Herzog, above n 81, at 385; also Heck, above n 60, at 275.
248. See ibid [Toms] at 598. On article 1-bis, see Wallace, above n 2, Chapter XIV, subsection 2(b)(iii).
249. See ibid [Toms] at 598. On article 1-bis, see Wallace, above n 2, Chapter XIV, subsection 2(b)(iii).
250. See above.
251. The Assemblée Nationale, in its Report accompanying the draft loi n° 80-538, observed that the use of the word 'sovereignty' ('souveraineté') in the law, based on its use in the British Protection of Trading Interests Act (c 11), is both comprehensive and ambiguous, referring to many different concepts, but elected to retain this vague reference to assure that the law applies in particular to economic and jurisdictional sovereignty. (See Toms, above n 149, at 591.)
252. Brief of Amicus Curiae for the Republic of France [Aérospatiale], above n 129 (No 85-1695) (representing both French litigant and French Government protests to US pre-trial discovery on French territory) at 19.
253. See e.g., Black, 'United States Transnational Discovery', above n 68, at 905-6; also Muse, above n 60, at 1078, 1094, 1097 n 134.
254. See e.g., Black, 'United States Transnational Discovery', above n 68, at 905-6; also Muse, above n 60, at 1078, 1094, 1097 n 134.
255. See Constitution [française], art. 55.
256. See Aérospatiale, above n 107, 482 US 522 (1987), at 526, 539-40, 557-61.
257. See ibid, at 546. For a discussion of the case-by-case analysis adopted by the Court, see Kuhn, above n 118, at 1054-64.
258. See ibid, at 546. For a discussion of the case-by-case analysis adopted by the Court, see Kuhn, above n 118, at 1054-64.
259. United States Constitution, art. VI.
260. See Wallace, above n 2, Chapter V, text accompanying notes 81-88.
261. See US Constitution, art. VI, clause 2.
262. See further, Roth, above n 141, at 427-28 n 8. See also Lawrence N. Minch, 'US Obligations Under the Hague Evidence Convention: More Than Mere Good Will?', 22 International Lawyer (1988) at 524 (stating that '[n]o inherent conflict exists between the Hague Evidence Convention and the federal discovery rules').
263. See further, Roth, above n 141, at 427-28 n 8. See also Lawrence N. Minch, 'US Obligations Under the Hague Evidence Convention: More Than Mere Good Will?', 22 International Lawyer (1988) at 524 (stating that '[n]o inherent conflict exists between the Hague Evidence Convention and the federal discovery rules').
264. See Cook v United States, 288 US 102 (1933) at 118-19.
265. Espousing a different view on the matter is Oxman, above n 22, at 760-61 (submitting that even if it is not in the express terms of the Convention it should be the primary means of extraterritorial discovery, and a 'proper understanding of its intent', on the basis that customary international law would dictate that position).
266. See Aérospatiale, above n 107, 482 US 522 (1987) at 543-44.
267. See ibid, at 548.
268. See idem.
269. See Roth, above n 141, at 442. For a discussion on the majority's rejection of mandatory and exclusive use of the Convention, see Kuhn, above n 118, at 1036-53.
270. See Roth, above n 141, at 442. For a discussion on the majority's rejection of mandatory and exclusive use of the Convention, see Kuhn, above n 118, at 1036-53.
271. See Aérospatiale, above n 107, 482 US 522 (1987) at 548-49.
272. See Black, 'United States Transnational Discovery', above n 68, at 906.
273. For cases where probable delay was an expressed factor, see e.g., Benton Graphics v Uddeholm Corp, 118 FRD 386 (DNJ 1987) at 391; Haines v Kleinwefers 119 FRD 335 (1988) esp. at 338.
274. For cases where probable delay was an expressed factor, see e.g., Benton Graphics v Uddeholm Corp, 118 FRD 386 (DNJ 1987) at 391; Haines v Kleinwefers 119 FRD 335 (1988) esp. at 338.
275. For a survey on post-Aérospatiale decisions, see Gary B. Born and Scott Hoing, 'Comity and the Lower Courts: Post-Aérospatiale Applications of the Hague Convention', 24 International Lawyer (1990) 395; also Cotter, above n 130, at 239-42. See also Aaron P. Allan, 'The Hague Convention and State Courts after Societe Nationale Industrielle Aerospatiale v US District Court: Has the Supreme Court Unveiled a Federal Right?', 11 Loyola of Los Angeles International & Comparative Law Journal (1989) at 221-25; also Edwin R. Alley and Darrell Prescott, 'Recent Developments in The United States Under the Hague Evidence Convention' [hereinafter cited as 'Recent Developments'], 2 Leiden Journal of International Law (1989) at 31-34; also generally, Joseph P. Griffin, 'Procedures for Civil Discovery Outside the United States after Aerospatiale', 15 International Business Lawyer (1987) 350.
276. For a survey on post-Aérospatiale decisions, see Gary B. Born and Scott Hoing, 'Comity and the Lower Courts: Post-Aérospatiale Applications of the Hague Convention', 24 International Lawyer (1990) 395; also Cotter, above n 130, at 239-42. See also Aaron P. Allan, 'The Hague Convention and State Courts after Societe Nationale Industrielle Aerospatiale v US District Court: Has the Supreme Court Unveiled a Federal Right?', 11 Loyola of Los Angeles International & Comparative Law Journal (1989) at 221-25; also Edwin R. Alley and Darrell Prescott, 'Recent Developments in The United States Under the Hague Evidence Convention' [hereinafter cited as 'Recent Developments'], 2 Leiden Journal of International Law (1989) at 31-34; also generally, Joseph P. Griffin, 'Procedures for Civil Discovery Outside the United States after Aerospatiale', 15 International Business Lawyer (1987) 350.
277. For a survey on post-Aérospatiale decisions, see Gary B. Born and Scott Hoing, 'Comity and the Lower Courts: Post-Aérospatiale Applications of the Hague Convention', 24 International Lawyer (1990) 395; also Cotter, above n 130, at 239-42. See also Aaron P. Allan, 'The Hague Convention and State Courts after Societe Nationale Industrielle Aerospatiale v US District Court: Has the Supreme Court Unveiled a Federal Right?', 11 Loyola of Los Angeles International & Comparative Law Journal (1989) at 221-25; also Edwin R. Alley and Darrell Prescott, 'Recent Developments in The United States Under the Hague Evidence Convention' [hereinafter cited as 'Recent Developments'], 2 Leiden Journal of International Law (1989) at 31-34; also generally, Joseph P. Griffin, 'Procedures for Civil Discovery Outside the United States after Aerospatiale', 15 International Business Lawyer (1987) 350.
278. For a survey on post-Aérospatiale decisions, see Gary B. Born and Scott Hoing, 'Comity and the Lower Courts: Post-Aérospatiale Applications of the Hague Convention', 24 International Lawyer (1990) 395; also Cotter, above n 130, at 239-42. See also Aaron P. Allan, 'The Hague Convention and State Courts after Societe Nationale Industrielle Aerospatiale v US District Court: Has the Supreme Court Unveiled a Federal Right?', 11 Loyola of Los Angeles International & Comparative Law Journal (1989) at 221-25; also Edwin R. Alley and Darrell Prescott, 'Recent Developments in The United States Under the Hague Evidence Convention' [hereinafter cited as 'Recent Developments'], 2 Leiden Journal of International Law (1989) at 31-34; also generally, Joseph P. Griffin, 'Procedures for Civil Discovery Outside the United States after Aerospatiale', 15 International Business Lawyer (1987) 350.
279. For a survey on post-Aérospatiale decisions, see Gary B. Born and Scott Hoing, 'Comity and the Lower Courts: Post-Aérospatiale Applications of the Hague Convention', 24 International Lawyer (1990) 395; also Cotter, above n 130, at 239-42. See also Aaron P. Allan, 'The Hague Convention and State Courts after Societe Nationale Industrielle Aerospatiale v US District Court: Has the Supreme Court Unveiled a Federal Right?', 11 Loyola of Los Angeles International & Comparative Law Journal (1989) at 221-25; also Edwin R. Alley and Darrell Prescott, 'Recent Developments in The United States Under the Hague Evidence Convention' [hereinafter cited as 'Recent Developments'], 2 Leiden Journal of International Law (1989) at 31-34; also generally, Joseph P. Griffin, 'Procedures for Civil Discovery Outside the United States after Aerospatiale', 15 International Business Lawyer (1987) 350.
280. See Owen Peter Martikan, 'The Boundaries of the Hague Evidence Convention: Lower Court Interest Balancing After the Aérospatiale Decision', 68 Texas Law Review (1990) at 1018. For a survey of efforts to apply the Aérospatiale 'vague' precedent, see Joseph P. Griffin and Mark N. Bravin, 'Beyond Aérospatiale: A Commentary on Foreign Discovery Provisions of the Restatement (Third) and the Proposed Amendments to the Federal Rules of Civil Procedure' [hereinafter cited as 'Beyond Aérospatiale'], 25 International Lawyer (1991) at 336-40.
281. See Owen Peter Martikan, 'The Boundaries of the Hague Evidence Convention: Lower Court Interest Balancing After the Aérospatiale Decision', 68 Texas Law Review (1990) at 1018. For a survey of efforts to apply the Aérospatiale 'vague' precedent, see Joseph P. Griffin and Mark N. Bravin, 'Beyond Aérospatiale: A Commentary on Foreign Discovery Provisions of the Restatement (Third) and the Proposed Amendments to the Federal Rules of Civil Procedure' [hereinafter cited as 'Beyond Aérospatiale'], 25 International Lawyer (1991) at 336-40.
282. Société Internationale pour Participations Industrielles et Commerciales, SA [Interhandel] v Rogers, 357 US 197, 78 SCt 1087 (1958). On the Société Internationale precedent, see Sidney S. Rosdeitcher, 'Foreign Blocking Statutes and US Discovery: A Conflict of National Policies', 16 New York University Journal of International Law and Politics (1983/84) at 1066-73. For a critical analysis of the divergent approaches taken by the courts between Société Internationale and Aérospatiale, see Lenore B. Browne, 'Extraterritorial Discovery: An Analysis Based on Good Faith', 83 Columbia Law Review (1983) 1320 esp. at 1327-39.
283. Société Internationale pour Participations Industrielles et Commerciales, SA [Interhandel] v Rogers, 357 US 197, 78 SCt 1087 (1958). On the Société Internationale precedent, see Sidney S. Rosdeitcher, 'Foreign Blocking Statutes and US Discovery: A Conflict of National Policies', 16 New York University Journal of International Law and Politics (1983/84) at 1066-73. For a critical analysis of the divergent approaches taken by the courts between Société Internationale and Aérospatiale, see Lenore B. Browne, 'Extraterritorial Discovery: An Analysis Based on Good Faith', 83 Columbia Law Review (1983) 1320 esp. at 1327-39.
284. Société Internationale pour Participations Industrielles et Commerciales, SA [Interhandel] v Rogers, 357 US 197, 78 SCt 1087 (1958). On the Société Internationale precedent, see Sidney S. Rosdeitcher, 'Foreign Blocking Statutes and US Discovery: A Conflict of National Policies', 16 New York University Journal of International Law and Politics (1983/84) at 1066-73. For a critical analysis of the divergent approaches taken by the courts between Société Internationale and Aérospatiale, see Lenore B. Browne, 'Extraterritorial Discovery: An Analysis Based on Good Faith', 83 Columbia Law Review (1983) 1320 esp. at 1327-39.
285. See Griffin and Bravin, 'Beyond Aérospatiale', above n 172, at 336. But see Minch, above n 161, at 525-26.
286. See Griffin and Bravin, 'Beyond Aérospatiale', above n 172, at 336. But see Minch, above n 161, at 525-26.
287. Benton Graphics v Uddeholm Corp above n 170; Haines v Kleinwefers, above n 170; Scarminachv Goldwell GmbH, 531 NY Supp 2d 188 (SCt Monroe Co 1988); Sandsend Financial Consultants v Wood, 743 SW 2d 364 (Tex App Houston [1st Dist] 1984). For the opposite position, see Hudson v Hermann Pfauter GmbH & Co, above n 195, at 38 (stating that 'the burden should be placed on the party opposing the use of the Convention procedures to demonstrate that those procedures would frustrate' the interests of domestic litigants seeking discovery abroad).
288. Benton Graphics v Uddeholm Corp above n 170; Haines v Kleinwefers, above n 170; Scarminachv Goldwell GmbH, 531 NY Supp 2d 188 (SCt Monroe Co 1988); Sandsend Financial Consultants v Wood, 743 SW 2d 364 (Tex App Houston [1st Dist] 1984). For the opposite position, see Hudson v Hermann Pfauter GmbH & Co, above n 195, at 38 (stating that 'the burden should be placed on the party opposing the use of the Convention procedures to demonstrate that those procedures would frustrate' the interests of domestic litigants seeking discovery abroad).
289. Benton Graphics v Uddeholm Corp above n 170; Haines v Kleinwefers, above n 170; Scarminachv Goldwell GmbH, 531 NY Supp 2d 188 (SCt Monroe Co 1988); Sandsend Financial Consultants v Wood, 743 SW 2d 364 (Tex App Houston [1st Dist] 1984). For the opposite position, see Hudson v Hermann Pfauter GmbH & Co, above n 195, at 38 (stating that 'the burden should be placed on the party opposing the use of the Convention procedures to demonstrate that those procedures would frustrate' the interests of domestic litigants seeking discovery abroad).
290. Benton Graphics v Uddeholm Corp above n 170; Haines v Kleinwefers, above n 170; Scarminachv Goldwell GmbH, 531 NY Supp 2d 188 (SCt Monroe Co 1988); Sandsend Financial Consultants v Wood, 743 SW 2d 364 (Tex App Houston [1st Dist] 1984). For the opposite position, see Hudson v Hermann Pfauter GmbH & Co, above n 195, at 38 (stating that 'the burden should be placed on the party opposing the use of the Convention procedures to demonstrate that those procedures would frustrate' the interests of domestic litigants seeking discovery abroad).
291. Benton Graphics v Uddeholm Corp above n 170; Haines v Kleinwefers, above n 170; Scarminachv Goldwell GmbH, 531 NY Supp 2d 188 (SCt Monroe Co 1988); Sandsend Financial Consultants v Wood, 743 SW 2d 364 (Tex App Houston [1st Dist] 1984). For the opposite position, see Hudson v Hermann Pfauter GmbH & Co, above n 195, at 38 (stating that 'the burden should be placed on the party opposing the use of the Convention procedures to demonstrate that those procedures would frustrate' the interests of domestic litigants seeking discovery abroad).
292. See e.g., Benton Graphics v Uddeholm Corp, above n 170, at 389; Rich v KIS California, Inc, 121 FRD 254 (MDNC 1988) at 257-58; Haines v Kleinwefers, above n 170, at 337; but see Hudson v Hermann Pfauter GmbH & Co, above n 144 (in which the court found, relying upon Justice Blackman's minority opinion in Aérospatiale that the burden should be placed on the party opposing resort to the Convention to show that those procedures would be ineffective).
293. See e.g., Benton Graphics v Uddeholm Corp, above n 170, at 389; Rich v KIS California, Inc, 121 FRD 254 (MDNC 1988) at 257-58; Haines v Kleinwefers, above n 170, at 337; but see Hudson v Hermann Pfauter GmbH & Co, above n 144 (in which the court found, relying upon Justice Blackman's minority opinion in Aérospatiale that the burden should be placed on the party opposing resort to the Convention to show that those procedures would be ineffective).
294. See e.g., Benton Graphics v Uddeholm Corp, above n 170, at 389; Rich v KIS California, Inc, 121 FRD 254 (MDNC 1988) at 257-58; Haines v Kleinwefers, above n 170, at 337; but see Hudson v Hermann Pfauter GmbH & Co, above n 144 (in which the court found, relying upon Justice Blackman's minority opinion in Aérospatiale that the burden should be placed on the party opposing resort to the Convention to show that those procedures would be ineffective).
295. See e.g., Benton Graphics v Uddeholm Corp, above n 170, at 389; Rich v KIS California, Inc, 121 FRD 254 (MDNC 1988) at 257-58; Haines v Kleinwefers, above n 170, at 337; but see Hudson v Hermann Pfauter GmbH & Co, above n 144 (in which the court found, relying upon Justice Blackman's minority opinion in Aérospatiale that the burden should be placed on the party opposing resort to the Convention to show that those procedures would be ineffective).
296. See text accompanying above n 168.
297. See Alley and Prescott, 'Recent Developments', above n 171, at 33.
298. Bermann, above n 141, at 539. For a critical analysis, see generally, ibid, esp. at 539-52. For another critical analysis, arguing that the Court incorrectly decided the case, see Kuhn, above n 118, 1011. For another critical view, see Wilks and Goldberg, above n 126, 65, esp. at 89-92.
299. Bermann, above n 141, at 539. For a critical analysis, see generally, ibid, esp. at 539-52. For another critical analysis, arguing that the Court incorrectly decided the case, see Kuhn, above n 118, 1011. For another critical view, see Wilks and Goldberg, above n 126, 65, esp. at 89-92.
300. Bermann, above n 141, at 539. For a critical analysis, see generally, ibid, esp. at 539-52. For another critical analysis, arguing that the Court incorrectly decided the case, see Kuhn, above n 118, 1011. For another critical view, see Wilks and Goldberg, above n 126, 65, esp. at 89-92.
301. Bermann, above n 141, at 539. For a critical analysis, see generally, ibid, esp. at 539-52. For another critical analysis, arguing that the Court incorrectly decided the case, see Kuhn, above n 118, 1011. For another critical view, see Wilks and Goldberg, above n 126, 65, esp. at 89-92.
302. See e.g., Lyons v Bell Asbestos Mines, Ltd, 119 FRD 384, 389-90 (DSC 1988) (involving the unsuccessful invocation of Canadian blocking statutes). A common consequence of the distinction between matters of procedure and matters of substance is that the former are generally governed by the law of the forum while the latter normally fall under the law of the state having the 'most significant relationship' (see Restatement (Second) of Conflict of Laws [1971], above n 39, Chapter 6, Introductory Note). Discovery and all forms of evidence gathering are normally considered procedural.
303. Rich v KIS California, Inc, 121 FRD 254 (MDNC 1988).
304. See ibid, at 258, 259. For an interpretation that KIS was an unprecedented extension of Aérospatiale beyond the issues specifically addressed in that case, rather than a mere reversion to the Federal Rules and the rejection of a foreign defendant's attempt to use a non-issue of Aérospatiale to invoke the Convention, see Muse, above n 60, at 1112-13.
305. See ibid, at 258, 259. For an interpretation that KIS was an unprecedented extension of Aérospatiale beyond the issues specifically addressed in that case, rather than a mere reversion to the Federal Rules and the rejection of a foreign defendant's attempt to use a non-issue of Aérospatiale to invoke the Convention, see Muse, above n 60, at 1112-13.
306. See e.g., Radio Corp. of America v Rauland Corp [1956] 1 QB 618, 649 (CA) (in which both court and litigant in England agreed that American discovery overreached accepted limits), cited in Rio Tinto Zinc Corp v Westinghouse Electric Corp, above n 52, at 87; and Volkswagenwerk II, above n 144, 123 Cal App 3d 840, at 852, 176 Cal Rptr 874 (1981), at 881 (in which a German litigant, as well as a German consular official, protested the use of American discovery procedures as constituting 'an encroachment otherwise on German sovereign rights'). For more on the impact of the Hague Evidence Convention on the Federal Republic of Germany, see Heck, above n 60, at 239-50.
307. See e.g., Radio Corp. of America v Rauland Corp [1956] 1 QB 618, 649 (CA) (in which both court and litigant in England agreed that American discovery overreached accepted limits), cited in Rio Tinto Zinc Corp v Westinghouse Electric Corp, above n 52, at 87; and Volkswagenwerk II, above n 144, 123 Cal App 3d 840, at 852, 176 Cal Rptr 874 (1981), at 881 (in which a German litigant, as well as a German consular official, protested the use of American discovery procedures as constituting 'an encroachment otherwise on German sovereign rights'). For more on the impact of the Hague Evidence Convention on the Federal Republic of Germany, see Heck, above n 60, at 239-50.
308. Hudson v Hermann Pfauter GmbH & Co, above n 144.
309. What had come to be known as the 'three-prong-test' of Aérospatiale's ad hoc comity analysis is based on (1) the particular facts of the case, (2) sovereign interests, and (3) likelihood that resort to the Evidence Convention procedures will prove effective.
310. See Hudson v Hermann Pfauter GmbH & Co, above n 144, at 37.
311. See Aérospatiale, above n 107 [482 US 522 (1987)] at 544-46.
312. See Haynes v Kleinwefers, above n 170, at 338-39. See also Bermann, above n 141, at 550. For Justice Blackmun's formula, see text accompanying above n 168.
313. See Haynes v Kleinwefers, above n 170, at 338-39. See also Bermann, above n 141, at 550. For Justice Blackmun's formula, see text accompanying above n 168.
314. Ibid [Bermann] at 551. See also Aérospatiale, above n 107, 482 US 522 (1987) at 548-49.
315. Ibid [Bermann] at 551. See also Aérospatiale, above n 107, 482 US 522 (1987) at 548-49.
316. See Hudson v Hermann Pfauter GmbH & Co, above n 144, at 37.
317. Ibid, at 38.
318. The Hudson ruling was even criticized by the Kleinwefer court (above n 170), which went on to rule against another German defendant's request for application of the Convention.
319. See Roth, above n 141, at 449. See also Martikan, above n 172, 1003 (remarking that the various conceptions of international comity provided are ambiguous (at 1019) and insufficient for a 'late twentieth century district court' (at 1014-15)).
320. See Roth, above n 141, at 449. See also Martikan, above n 172, 1003 (remarking that the various conceptions of international comity provided are ambiguous (at 1019) and insufficient for a 'late twentieth century district court' (at 1014-15)).
321. See e.g., Benton Graphics v Uddeholm Corp, above n 170, at 386. See Cotter, above n 130, at 241. Compare, however, In re Perrier Bottled Water Litigation, above n 144, at 348 (in which the court found all three prongs of Aérospatiale's ad hoc comity analysis to favour use of the Convention). On the three-prong test see above n 185. See also Catherine E. Woodward, 'Discovery: Application of the Hague Evidence Convention in United States Courts - Société Nationale Industrielle Aerospatiale v United States District Court for the Southern District of Iowa, 107 SCt 2542 (1987)' (Recent Developments), 29 Harvard Law Journal (1988) at 160, 167. For an elaboration of criteria for, and the development of, an effective analytical framework to provide reasonable structure, predictability and comprehensiveness to fill these lacunae left by the Aérospatiale decision, see Gerber, 'Quest', above n 11, 521, esp. at 527-51. For another proposed framework, see 'Beyond the Rhetoric of Comparative Interest Balancing: An Alternative Approach to Extraterritorial Discovery' (Note), 50 Law and Contemporary Problems (Summer 1987) 95 (arguing that, prior as well as subsequent to Aérospatiale, there was 'scant guidance from the confused and inconsistent case law and vague authoritative pronouncements on the subject of extraterritorial discovery', and that this warranted 'a more realistic and coherent process for extraterritorial decision-making in cases involving conflict between discovery and foreign blocking statutes' (at 96)). This proposed framework emphasizes the distinction between interest balancing within the realm of private law and public law (esp. at 105-15). For an earlier proposal for guidelines, underlining the lack of judicial guidance already prior to Aérospatiale and emphasizing 'good faith' as a predominant criterion for a court's analysis, see Browne, above n 173, at 1345-50. For the opposite approach, see David E. Teitelbaum, 'Strict Enforcement of Extraterritorial Discovery', 38 Stanford Law Review (1986) 841, esp. at 874-89 (proposing that strict application of sanctions be applied in virtually all cases where foreign statutes block document production and suggesting that the advantages of such an approach 'countervail the legitimate concern for the good faith producer' (at 880), and giving examples of the deterrent effect of strictly enforced sanctions (at 888-89)).
322. See e.g., Benton Graphics v Uddeholm Corp, above n 170, at 386. See Cotter, above n 130, at 241. Compare, however, In re Perrier Bottled Water Litigation, above n 144, at 348 (in which the court found all three prongs of Aérospatiale's ad hoc comity analysis to favour use of the Convention). On the three-prong test see above n 185. See also Catherine E. Woodward, 'Discovery: Application of the Hague Evidence Convention in United States Courts - Société Nationale Industrielle Aerospatiale v United States District Court for the Southern District of Iowa, 107 SCt 2542 (1987)' (Recent Developments), 29 Harvard Law Journal (1988) at 160, 167. For an elaboration of criteria for, and the development of, an effective analytical framework to provide reasonable structure, predictability and comprehensiveness to fill these lacunae left by the Aérospatiale decision, see Gerber, 'Quest', above n 11, 521, esp. at 527-51. For another proposed framework, see 'Beyond the Rhetoric of Comparative Interest Balancing: An Alternative Approach to Extraterritorial Discovery' (Note), 50 Law and Contemporary Problems (Summer 1987) 95 (arguing that, prior as well as subsequent to Aérospatiale, there was 'scant guidance from the confused and inconsistent case law and vague authoritative pronouncements on the subject of extraterritorial discovery', and that this warranted 'a more realistic and coherent process for extraterritorial decision-making in cases involving conflict between discovery and foreign blocking statutes' (at 96)). This proposed framework emphasizes the distinction between interest balancing within the realm of private law and public law (esp. at 105-15). For an earlier proposal for guidelines, underlining the lack of judicial guidance already prior to Aérospatiale and emphasizing 'good faith' as a predominant criterion for a court's analysis, see Browne, above n 173, at 1345-50. For the opposite approach, see David E. Teitelbaum, 'Strict Enforcement of Extraterritorial Discovery', 38 Stanford Law Review (1986) 841, esp. at 874-89 (proposing that strict application of sanctions be applied in virtually all cases where foreign statutes block document production and suggesting that the advantages of such an approach 'countervail the legitimate concern for the good faith producer' (at 880), and giving examples of the deterrent effect of strictly enforced sanctions (at 888-89)).
323. See e.g., Benton Graphics v Uddeholm Corp, above n 170, at 386. See Cotter, above n 130, at 241. Compare, however, In re Perrier Bottled Water Litigation, above n 144, at 348 (in which the court found all three prongs of Aérospatiale's ad hoc comity analysis to favour use of the Convention). On the three-prong test see above n 185. See also Catherine E. Woodward, 'Discovery: Application of the Hague Evidence Convention in United States Courts - Société Nationale Industrielle Aerospatiale v United States District Court for the Southern District of Iowa, 107 SCt 2542 (1987)' (Recent Developments), 29 Harvard Law Journal (1988) at 160, 167. For an elaboration of criteria for, and the development of, an effective analytical framework to provide reasonable structure, predictability and comprehensiveness to fill these lacunae left by the Aérospatiale decision, see Gerber, 'Quest', above n 11, 521, esp. at 527-51. For another proposed framework, see 'Beyond the Rhetoric of Comparative Interest Balancing: An Alternative Approach to Extraterritorial Discovery' (Note), 50 Law and Contemporary Problems (Summer 1987) 95 (arguing that, prior as well as subsequent to Aérospatiale, there was 'scant guidance from the confused and inconsistent case law and vague authoritative pronouncements on the subject of extraterritorial discovery', and that this warranted 'a more realistic and coherent process for extraterritorial decision-making in cases involving conflict between discovery and foreign blocking statutes' (at 96)). This proposed framework emphasizes the distinction between interest balancing within the realm of private law and public law (esp. at 105-15). For an earlier proposal for guidelines, underlining the lack of judicial guidance already prior to Aérospatiale and emphasizing 'good faith' as a predominant criterion for a court's analysis, see Browne, above n 173, at 1345-50. For the opposite approach, see David E. Teitelbaum, 'Strict Enforcement of Extraterritorial Discovery', 38 Stanford Law Review (1986) 841, esp. at 874-89 (proposing that strict application of sanctions be applied in virtually all cases where foreign statutes block document production and suggesting that the advantages of such an approach 'countervail the legitimate concern for the good faith producer' (at 880), and giving examples of the deterrent effect of strictly enforced sanctions (at 888-89)).
324. See e.g., Benton Graphics v Uddeholm Corp, above n 170, at 386. See Cotter, above n 130, at 241. Compare, however, In re Perrier Bottled Water Litigation, above n 144, at 348 (in which the court found all three prongs of Aérospatiale's ad hoc comity analysis to favour use of the Convention). On the three-prong test see above n 185. See also Catherine E. Woodward, 'Discovery: Application of the Hague Evidence Convention in United States Courts - Société Nationale Industrielle Aerospatiale v United States District Court for the Southern District of Iowa, 107 SCt 2542 (1987)' (Recent Developments), 29 Harvard Law Journal (1988) at 160, 167. For an elaboration of criteria for, and the development of, an effective analytical framework to provide reasonable structure, predictability and comprehensiveness to fill these lacunae left by the Aérospatiale decision, see Gerber, 'Quest', above n 11, 521, esp. at 527-51. For another proposed framework, see 'Beyond the Rhetoric of Comparative Interest Balancing: An Alternative Approach to Extraterritorial Discovery' (Note), 50 Law and Contemporary Problems (Summer 1987) 95 (arguing that, prior as well as subsequent to Aérospatiale, there was 'scant guidance from the confused and inconsistent case law and vague authoritative pronouncements on the subject of extraterritorial discovery', and that this warranted 'a more realistic and coherent process for extraterritorial decision-making in cases involving conflict between discovery and foreign blocking statutes' (at 96)). This proposed framework emphasizes the distinction between interest balancing within the realm of private law and public law (esp. at 105-15). For an earlier proposal for guidelines, underlining the lack of judicial guidance already prior to Aérospatiale and emphasizing 'good faith' as a predominant criterion for a court's analysis, see Browne, above n 173, at 1345-50. For the opposite approach, see David E. Teitelbaum, 'Strict Enforcement of Extraterritorial Discovery', 38 Stanford Law Review (1986) 841, esp. at 874-89 (proposing that strict application of sanctions be applied in virtually all cases where foreign statutes block document production and suggesting that the advantages of such an approach 'countervail the legitimate concern for the good faith producer' (at 880), and giving examples of the deterrent effect of strictly enforced sanctions (at 888-89)).
325. See e.g., Benton Graphics v Uddeholm Corp, above n 170, at 386. See Cotter, above n 130, at 241. Compare, however, In re Perrier Bottled Water Litigation, above n 144, at 348 (in which the court found all three prongs of Aérospatiale's ad hoc comity analysis to favour use of the Convention). On the three-prong test see above n 185. See also Catherine E. Woodward, 'Discovery: Application of the Hague Evidence Convention in United States Courts - Société Nationale Industrielle Aerospatiale v United States District Court for the Southern District of Iowa, 107 SCt 2542 (1987)' (Recent Developments), 29 Harvard Law Journal (1988) at 160, 167. For an elaboration of criteria for, and the development of, an effective analytical framework to provide reasonable structure, predictability and comprehensiveness to fill these lacunae left by the Aérospatiale decision, see Gerber, 'Quest', above n 11, 521, esp. at 527-51. For another proposed framework, see 'Beyond the Rhetoric of Comparative Interest Balancing: An Alternative Approach to Extraterritorial Discovery' (Note), 50 Law and Contemporary Problems (Summer 1987) 95 (arguing that, prior as well as subsequent to Aérospatiale, there was 'scant guidance from the confused and inconsistent case law and vague authoritative pronouncements on the subject of extraterritorial discovery', and that this warranted 'a more realistic and coherent process for extraterritorial decision-making in cases involving conflict between discovery and foreign blocking statutes' (at 96)). This proposed framework emphasizes the distinction between interest balancing within the realm of private law and public law (esp. at 105-15). For an earlier proposal for guidelines, underlining the lack of judicial guidance already prior to Aérospatiale and emphasizing 'good faith' as a predominant criterion for a court's analysis, see Browne, above n 173, at 1345-50. For the opposite approach, see David E. Teitelbaum, 'Strict Enforcement of Extraterritorial Discovery', 38 Stanford Law Review (1986) 841, esp. at 874-89 (proposing that strict application of sanctions be applied in virtually all cases where foreign statutes block document production and suggesting that the advantages of such an approach 'countervail the legitimate concern for the good faith producer' (at 880), and giving examples of the deterrent effect of strictly enforced sanctions (at 888-89)).
326. See e.g., Benton Graphics v Uddeholm Corp, above n 170, at 386. See Cotter, above n 130, at 241. Compare, however, In re Perrier Bottled Water Litigation, above n 144, at 348 (in which the court found all three prongs of Aérospatiale's ad hoc comity analysis to favour use of the Convention). On the three-prong test see above n 185. See also Catherine E. Woodward, 'Discovery: Application of the Hague Evidence Convention in United States Courts - Société Nationale Industrielle Aerospatiale v United States District Court for the Southern District of Iowa, 107 SCt 2542 (1987)' (Recent Developments), 29 Harvard Law Journal (1988) at 160, 167. For an elaboration of criteria for, and the development of, an effective analytical framework to provide reasonable structure, predictability and comprehensiveness to fill these lacunae left by the Aérospatiale decision, see Gerber, 'Quest', above n 11, 521, esp. at 527-51. For another proposed framework, see 'Beyond the Rhetoric of Comparative Interest Balancing: An Alternative Approach to Extraterritorial Discovery' (Note), 50 Law and Contemporary Problems (Summer 1987) 95 (arguing that, prior as well as subsequent to Aérospatiale, there was 'scant guidance from the confused and inconsistent case law and vague authoritative pronouncements on the subject of extraterritorial discovery', and that this warranted 'a more realistic and coherent process for extraterritorial decision-making in cases involving conflict between discovery and foreign blocking statutes' (at 96)). This proposed framework emphasizes the distinction between interest balancing within the realm of private law and public law (esp. at 105-15). For an earlier proposal for guidelines, underlining the lack of judicial guidance already prior to Aérospatiale and emphasizing 'good faith' as a predominant criterion for a court's analysis, see Browne, above n 173, at 1345-50. For the opposite approach, see David E. Teitelbaum, 'Strict Enforcement of Extraterritorial Discovery', 38 Stanford Law Review (1986) 841, esp. at 874-89 (proposing that strict application of sanctions be applied in virtually all cases where foreign statutes block document production and suggesting that the advantages of such an approach 'countervail the legitimate concern for the good faith producer' (at 880), and giving examples of the deterrent effect of strictly enforced sanctions (at 888-89)).
327. See e.g., Benton Graphics v Uddeholm Corp, above n 170, at 386. See Cotter, above n 130, at 241. Compare, however, In re Perrier Bottled Water Litigation, above n 144, at 348 (in which the court found all three prongs of Aérospatiale's ad hoc comity analysis to favour use of the Convention). On the three-prong test see above n 185. See also Catherine E. Woodward, 'Discovery: Application of the Hague Evidence Convention in United States Courts - Société Nationale Industrielle Aerospatiale v United States District Court for the Southern District of Iowa, 107 SCt 2542 (1987)' (Recent Developments), 29 Harvard Law Journal (1988) at 160, 167. For an elaboration of criteria for, and the development of, an effective analytical framework to provide reasonable structure, predictability and comprehensiveness to fill these lacunae left by the Aérospatiale decision, see Gerber, 'Quest', above n 11, 521, esp. at 527-51. For another proposed framework, see 'Beyond the Rhetoric of Comparative Interest Balancing: An Alternative Approach to Extraterritorial Discovery' (Note), 50 Law and Contemporary Problems (Summer 1987) 95 (arguing that, prior as well as subsequent to Aérospatiale, there was 'scant guidance from the confused and inconsistent case law and vague authoritative pronouncements on the subject of extraterritorial discovery', and that this warranted 'a more realistic and coherent process for extraterritorial decision-making in cases involving conflict between discovery and foreign blocking statutes' (at 96)). This proposed framework emphasizes the distinction between interest balancing within the realm of private law and public law (esp. at 105-15). For an earlier proposal for guidelines, underlining the lack of judicial guidance already prior to Aérospatiale and emphasizing 'good faith' as a predominant criterion for a court's analysis, see Browne, above n 173, at 1345-50. For the opposite approach, see David E. Teitelbaum, 'Strict Enforcement of Extraterritorial Discovery', 38 Stanford Law Review (1986) 841, esp. at 874-89 (proposing that strict application of sanctions be applied in virtually all cases where foreign statutes block document production and suggesting that the advantages of such an approach 'countervail the legitimate concern for the good faith producer' (at 880), and giving examples of the deterrent effect of strictly enforced sanctions (at 888-89)).
328. For more details on the proposed amendments to these two rules, with an analysis of the pros and cons, see Griffin and Bravin, 'Beyond Aérospatiale', above n 172, at 340-49.
329. The fact that extraterritoriality is mentioned in other Federal Rules besides rule 26 (viz, rules 4(i)(1), 28(b) and 45(e)(2)) reinforces the notion that extraterritorial production of documents was not anticipated at the time the discovery provision was formulated.
330. See Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Preliminary Draft of Proposed Amendments to the Federal Rules of Civil Procedure, 127 FRD 237 (1989) at 318.
331. Stephen B. Burbank, 'The World in Our Courts' (Book Review), 89 Michigan Law Review (1991) at 1495. See also Thomas Riesenberg and Joseph Franco, 'The New Discovery of America: New Procedures Cause a Ripple Not a Wave', Legal Times, Week of 8 April 1991, at 32. (The authors, attorneys in the General Counsel's Office of the Securities and Exchange Commission, stated that 'it would be inappropriate to use the Federal Rules amendment process to overturn a Supreme Court precedent on a question of treaty interpretation, particularly where that precedent reflects a position urged upon the court by the executive branch' (referring to the amicus brief).)
332. Stephen B. Burbank, 'The World in Our Courts' (Book Review), 89 Michigan Law Review (1991) at 1495. See also Thomas Riesenberg and Joseph Franco, 'The New Discovery of America: New Procedures Cause a Ripple Not a Wave', Legal Times, Week of 8 April 1991, at 32. (The authors, attorneys in the General Counsel's Office of the Securities and Exchange Commission, stated that 'it would be inappropriate to use the Federal Rules amendment process to overturn a Supreme Court precedent on a question of treaty interpretation, particularly where that precedent reflects a position urged upon the court by the executive branch' (referring to the amicus brief).)
333. See Roth, above n 141, at 432 n 37. The preliminary draft of the proposed amendment is set forth in ibid, at 453 n 145.
334. See Roth, above n 141, at 432 n 37. The preliminary draft of the proposed amendment is set forth in ibid, at 453 n 145.
335. See Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Proposed Amendments to the Federal Rules of Civil Procedure, 134 FRD 525 (1991) at 641.
336. See Roth, above n 141, at 432-33 (incl. n 38). For a thorough discussion of the 1989 and 1990-91 attempts to amend rule 26(a), see ibid, at 451-63. For a consideration of whether the Federal Rules of Civil Procedure should be amended in deference to the Hague Evidence Convention in the light of the Aérospatiale decision, see generally, ibid. For an alternative proposal, see ibid, at 463-71. For another alternative framework see Cotter, above n 130, at 251-54. On the 1990 amendment proposal see ibid, at 248-51.
337. See Roth, above n 141, at 432-33 (incl. n 38). For a thorough discussion of the 1989 and 1990-91 attempts to amend rule 26(a), see ibid, at 451-63. For a consideration of whether the Federal Rules of Civil Procedure should be amended in deference to the Hague Evidence Convention in the light of the Aérospatiale decision, see generally, ibid. For an alternative proposal, see ibid, at 463-71. For another alternative framework see Cotter, above n 130, at 251-54. On the 1990 amendment proposal see ibid, at 248-51.
338. See Roth, above n 141, at 432-33 (incl. n 38). For a thorough discussion of the 1989 and 1990-91 attempts to amend rule 26(a), see ibid, at 451-63. For a consideration of whether the Federal Rules of Civil Procedure should be amended in deference to the Hague Evidence Convention in the light of the Aérospatiale decision, see generally, ibid. For an alternative proposal, see ibid, at 463-71. For another alternative framework see Cotter, above n 130, at 251-54. On the 1990 amendment proposal see ibid, at 248-51.
339. See Roth, above n 141, at 432-33 (incl. n 38). For a thorough discussion of the 1989 and 1990-91 attempts to amend rule 26(a), see ibid, at 451-63. For a consideration of whether the Federal Rules of Civil Procedure should be amended in deference to the Hague Evidence Convention in the light of the Aérospatiale decision, see generally, ibid. For an alternative proposal, see ibid, at 463-71. For another alternative framework see Cotter, above n 130, at 251-54. On the 1990 amendment proposal see ibid, at 248-51.
340. See Roth, above n 141, at 432-33 (incl. n 38). For a thorough discussion of the 1989 and 1990-91 attempts to amend rule 26(a), see ibid, at 451-63. For a consideration of whether the Federal Rules of Civil Procedure should be amended in deference to the Hague Evidence Convention in the light of the Aérospatiale decision, see generally, ibid. For an alternative proposal, see ibid, at 463-71. For another alternative framework see Cotter, above n 130, at 251-54. On the 1990 amendment proposal see ibid, at 248-51.
341. See Roth, above n 141, at 432-33 (incl. n 38). For a thorough discussion of the 1989 and 1990-91 attempts to amend rule 26(a), see ibid, at 451-63. For a consideration of whether the Federal Rules of Civil Procedure should be amended in deference to the Hague Evidence Convention in the light of the Aérospatiale decision, see generally, ibid. For an alternative proposal, see ibid, at 463-71. For another alternative framework see Cotter, above n 130, at 251-54. On the 1990 amendment proposal see ibid, at 248-51.
342. Ibid [Cotter] at 251.
343. See Restatement (Third), above n 5, s. 473(3).
344. Collins, 'The Hague Evidence Convention and Discovery', above n 71, at 784. (Footnotes omitted from original include references to In re Anschuetz & Co GmbH, above n 92, at 609-10, 611, 615, Graco Inc v Kremlin, Inc, above n 100, at 519-20, In re Société Nationale Industrielle Aérospatiale, above n 107, at 125, and In re Messerschmitt Bölkow Blöhm GmbH, above n 108, at 731). With regard to the exclusive use of the Convention when evidence is sought from non-parties in other contracting states, see Restatement (Third), above n 5, s. 473, comment i. For a 1999 update on
345. Collins, 'The Hague Evidence Convention and Discovery', above n 71, at 784. (Footnotes omitted from original include references to In re Anschuetz & Co GmbH, above n 92, at 609-10, 611, 615, Graco Inc v Kremlin, Inc, above n 100, at 519-20, In re Société Nationale Industrielle Aérospatiale, above n 107, at 125, and In re Messerschmitt Bölkow Blöhm GmbH, above n 108, at 731). With regard to the exclusive use of the Convention when evidence is sought from non-parties in other contracting states, see Restatement (Third), above n 5, s. 473, comment i. For a 1999 update on American court practice, including the question of primacy of the Hague Evidence Convention in document discovery, see Christopher Joseph Borgen, 'Discovery', 33 International Lawyer (1999) 424.
346. Collins, 'The Hague Evidence Convention and Discovery', above n 71, at 784. (Footnotes omitted from original include references to In re Anschuetz & Co GmbH, above n 92, at 609-10, 611, 615, Graco Inc v Kremlin, Inc, above n 100, at 519-20, In re Société Nationale Industrielle Aérospatiale, above n 107, at 125, and In re Messerschmitt Bölkow Blöhm GmbH, above n 108, at 731). With regard to the exclusive use of the Convention when evidence is sought from non-parties in other contracting states, see Restatement (Third), above n 5, s. 473, comment i. For a 1999 update on American court practice, including the question of primacy of the Hague Evidence Convention in document discovery, see Christopher Joseph Borgen, 'Discovery', 33 International Lawyer (1999) 424.
347. Collins, 'The Hague Evidence Convention and Discovery', above n 71, at 784. (Footnotes omitted from original include references to In re Anschuetz & Co GmbH, above n 92, at 609-10, 611, 615, Graco Inc v Kremlin, Inc, above n 100, at 519-20, In re Société Nationale Industrielle Aérospatiale, above n 107, at 125, and In re Messerschmitt Bölkow Blöhm GmbH, above n 108, at 731). With regard to the exclusive use of the Convention when evidence is sought from non-parties in other contracting states, see Restatement (Third), above n 5, s. 473, comment i. For a 1999 update on American court practice, including the question of primacy of the Hague Evidence Convention in document discovery, see Christopher Joseph Borgen, 'Discovery', 33 International Lawyer (1999) 424.
348. Collins, 'The Hague Evidence Convention and Discovery', above n 71, at 784. (Footnotes omitted from original include references to In re Anschuetz & Co GmbH, above n 92, at 609-10, 611, 615, Graco Inc v Kremlin, Inc, above n 100, at 519-20, In re Société Nationale Industrielle Aérospatiale, above n 107, at 125, and In re Messerschmitt Bölkow Blöhm GmbH, above n 108, at 731). With regard to the exclusive use of the Convention when evidence is sought from non-parties in other contracting states, see Restatement (Third), above n 5, s. 473, comment i. For a 1999 update on American court practice, including the question of primacy of the Hague Evidence Convention in document discovery, see Christopher Joseph Borgen, 'Discovery', 33 International Lawyer (1999) 424.
349. Collins, 'The Hague Evidence Convention and Discovery', above n 71, at 784. (Footnotes omitted from original include references to In re Anschuetz & Co GmbH, above n 92, at 609-10, 611, 615, Graco Inc v Kremlin, Inc, above n 100, at 519-20, In re Société Nationale Industrielle Aérospatiale, above n 107, at 125, and In re Messerschmitt Bölkow Blöhm GmbH, above n 108, at 731). With regard to the exclusive use of the Convention when evidence is sought from non-parties in other contracting states, see Restatement (Third), above n 5, s. 473, comment i. For a 1999 update on American court practice, including the question of primacy of the Hague Evidence Convention in document discovery, see Christopher Joseph Borgen, 'Discovery', 33 International Lawyer (1999) 424.
350. The Bank of Tokyo-Mitsubishi. Ltd New York Branch v Kvaerner a.s. 1998 WL 283355 (SONY) (not reported in F Supp).
351. See 'New York Court Rules on Document Production by Foreign Subsidiaries'/'Zur Verpflichtung, im Prozess Dokumente von Nicht in den USA. Ansässigen Tochtergesellschaften Beizubringen' [1998] German-American Legal Update (Fall 1998) at 13-15.
352. Husa v Laboratories Services SA 740 A 2d 1092 (NJ Supreme Ct App Div 1999).
353. I b i d.
354. See Martin Reufels and Kari Kelly, 'Transatlantic Discovery: How Useful is the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters?', 29 International Business Lawyer (2001) 294.
355. Daniela Levarda, 'A Comparative Study of US and British Approaches to Discovery Conflicts: Achieving a Uniform System of Extraterritorial Discovery', 18 Fordham International Law Journal (1995) at 1350.
356. See Radvan, above n 75, 1031.
357. Alley and Prescott, 'Recent Developments', above n 171, at 34.
358. See Fed R Civ P, above n 73, rule 26(g) (limiting requests to only appropriate demands on pain of sanction), and rule 26(c) (allowing several grounds for cutting back demands). See also Feldman, 'Foreign Discovery: A New Complication', Trial (March 1998) at 68 (in which the author, formerly Acting Legal Adviser of the US Department of State, advises American lawyers 'to be more careful than they were before when framing requests for production of foreign documents and other foreign discovery'). But see Frank K. Easterbrook, 'Discovery As Abuse' (Comment), 69 Boston University Law Review (1989) 638, (suggesting that '[j]udges can do little about impositional discovery when parties control the legal claims to be presented and conduct the discovery themselves [ .... after the filing of] a sketchy complaint', and adding that '[t]he portions of the Rules of Civil Procedure calling on judges to trim back excessive demands, therefore, have been, and are doomed to be, hollow'). On purposes, scope and procedures of the Hague Evidence Convention from the standpoint of the United States, see Ristau, above n 61, at 159-237.
359. See Fed R Civ P, above n 73, rule 26(g) (limiting requests to only appropriate demands on pain of sanction), and rule 26(c) (allowing several grounds for cutting back demands). See also Feldman, 'Foreign Discovery: A New Complication', Trial (March 1998) at 68 (in which the author, formerly Acting Legal Adviser of the US Department of State, advises American lawyers 'to be more careful than they were before when framing requests for production of foreign documents and other foreign discovery'). But see Frank K. Easterbrook, 'Discovery As Abuse' (Comment), 69 Boston University Law Review (1989) 638, (suggesting that '[j]udges can do little about impositional discovery when parties control the legal claims to be presented and conduct the discovery themselves [ .... after the filing of] a sketchy complaint', and adding that '[t]he portions of the Rules of Civil Procedure calling on judges to trim back excessive demands, therefore, have been, and are doomed to be, hollow'). On purposes, scope and procedures of the Hague Evidence Convention from the standpoint of the United States, see Ristau, above n 61, at 159-237.
360. See Fed R Civ P, above n 73, rule 26(g) (limiting requests to only appropriate demands on pain of sanction), and rule 26(c) (allowing several grounds for cutting back demands). See also Feldman, 'Foreign Discovery: A New Complication', Trial (March 1998) at 68 (in which the author, formerly Acting Legal Adviser of the US Department of State, advises American lawyers 'to be more careful than they were before when framing requests for production of foreign documents and other foreign discovery'). But see Frank K. Easterbrook, 'Discovery As Abuse' (Comment), 69 Boston University Law Review (1989) 638, (suggesting that '[j]udges can do little about impositional discovery when parties control the legal claims to be presented and conduct the discovery themselves [ .... after the filing of] a sketchy complaint', and adding that '[t]he portions of the Rules of Civil Procedure calling on judges to trim back excessive demands, therefore, have been, and are doomed to be, hollow'). On purposes, scope and procedures of the Hague Evidence Convention from the standpoint of the United States, see Ristau, above n 61, at 159-237.
361. See Allan, above n 171, at 226.
362. See Guy Miller Struve, 'Discovery from Foreign Parties in Civil Cases Before US Courts', 16 New York University Journal of International Law and Politics (1984) at 1102-03, 1105, 1107, 1113.
363. See e.g., In re Grand Jury Subpoenas Duces Tecum Addressed to the Canadian International Paper Co (International Paper case), 72 F Supp 1013 (SDNY 1947); In re Investigation of World Arrangements with Relation to the Production, Transportation, Refining & Distribution of Petroleum (Oil Cartel case), 13 FRD 280 (DDC 1952); cf. In re Grand Jury Investigation of the Shipping Industry, 186 F Supp 298 (DDC 1960); Montship Lines Lid v Federal Maritime Board, 293 F2d 147, (DC Cir 1961). For discussion of this point see Onkelinx, above n 30, at 507, 513, 518, 519, 532.
364. See e.g., the [US] International Antitrust Enforcement Assistance Act (IAEAA) of 1994, Pub L No 103-438, 108 Stat 4597 (1994) (codified at 15 USC s. 6201 et seq.), reprinted in 67 Antitrust & Trade Reg. Rep (BNA) No 1683 (6 October 1994), p. 417, s. 6201 et seq., promulgated to foster reciprocal exchange of confidential and other information, particularly the production of such evidence located abroad.
365. See J.S. Stanford, 'The Application of the Sherman Act to Conduct Outside the United States: A View from Abroad', 11 Cornell International Law Journal (1978) at 214.
366. See e.g., Memorandum of Understanding Between the Government of the United States of America and the Government of Canada as to Notification, Consultation and Cooperation with respect to the Application of National Antitrust Laws, 9 March 1984, reprinted in 4 Trade Reg Rep (CCH), para 13, 503 (1991); also reprinted in 23 ILM 275 (1984). See also Agreement between the Government of the United States of America and the Government of the Federal Republic of Germany Relating to Mutual Cooperation Regarding Restrictive Business Practices/Abkommen zwischen der Regierung der Bundesrepublik Deutschland und der Regierung der Vereinigten Staaten von Amerika über die Zusammenarbeit in bezug auf restriktive Geschäftspraktiken, signed at Bonn, 23 June 1976, entered into force 11 September 1976, BGBl 1976 II S 1712, 27 UST 1956, TIAS No 8291, 1039 UNTS 345. See also Agreement Between the Government of the United States and the Commission of the European Communities Regarding the Application of Their Competition Laws, 23 September 1991, reprinted in 30 ILM 1487 (1991), 61 Antitrust & Trade Reg Rep (BNA), No 1534 (26 September 1991) at 382; Agreement Between the European Communities and the United States of America Regarding the Application of Their Competition Laws [1995] OJEC No L 95/47, [1991] 4 CMLR 323.
367. See Hague Evidence Convention, above n 26, art. 28.