How to request the services of a Commissioner within the meaning of Article 17 of Chapter II of the Hague Convention?

Our client's challenge

Respond adequately to the request for information

When a party to a U.S. civil or commercial proceeding requests discovery of information located in France, the party must make every effort to respond to the request while ensuring that the response complies with the applicable law. However, the Blocking Statute of 26 July 1968, as subsequently amended, prohibits, except in the case of international treaties or agreements, that “any person requests, seeks or communicates, in writing, orally or in any other form, documents or information of an economic, commercial, industrial, financial or technical nature intended to constitute evidence in view of or in the context of foreign judicial or administrative proceedings”, under penalty of criminal sanctions.

The said communication required by the American authorities must therefore be made within the framework of a treaty or an international agreement to avoid violating the provisions of the Blocking Statute.

The Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters governs the manner in which this communication can take place: either by rogatory commission between signatory States, or through diplomatic or consular agents or commissioners.

The party requesting the communication of information located in France will therefore have to apply this convention in order to ensure that the transfer of data is fully legal.

Our way

To provide a secure and contractually compliant framework for the communication of information

The team has significant expertise in cross-border cases, as the firm’s practice mainly involves multi-jurisdictional cases. The firm also has experience in the management of the Hague Convention process, having been appointed as a commissioner by the American courts on several occasions.

We therefore offer our clients services to implement the necessary steps to carry out this disclosure, by reviewing the draft order issued by the foreign courts, contacting the Ministry of Justice to obtain the authorization to act as commissioner, organizing the eventual collection of testimony and proceeding with the collection and transmission of the documents in accordance with what is agreed by the foreign court and in application of the treaty provisions.

Based on our past experience, we also provide our clients with clear understanding of the issues and risks involved in these multi-jurisdictional discovery requests and the application of the Blocking Statute so that choices are made in accordance with the applicable legal framework.