A guide to the UPC and the UP - Flipbook - Page 332
(which can also apply to the inspection of documents and objects) must be made using the
form annexed to the Regulation and must include: 35
– The names and addresses of the parties;
– A description of the case;
– A description of the taking of evidence to be performed;
– Where the request is for examination of a person, the questions to be put (or a statement of
the facts about which the witness is to be questioned);
– Where applicable, a notice of any right the witness may have to refuse to give evidence
under the law of the requesting court.
17-18 One particular advantage of relying on the Evidence Regulation, is that it provides that the court
whose assistance is sought must comply with the request for assistance without delay and,
in any event, no later than within 90 days after receipt of the request, 36 whereas no such
deadline is provided anywhere in the RoP. The receiving court must use any appropriate
coercive measures that would be available to it in a domestic matter to compel a non-voluntary
witness to give evidence. 37
The Hague Evidence Convention
17-19 The Court has the power to request the production of documents or the hearing of witnesses
or experts under the 1970 Hague Evidence Convention. There are currently 65 contracting
parties to the Hague Evidence Convention 38 including Australia, China, the UK and the US.
Many Contracting Member States have signed the Hague Evidence Convention and therefore
the Court, as a court common to the Contracting Member States, 39 would be recognised by the
other signatories as a “judicial authority of a Contracting State”. 40
17-20 Art.3 Hague Evidence Convention sets out what the letter of request should include (the
requirements are not dissimilar to the requirements in the Evidence Regulation). 41 Similarly, in
executing the letter of request, the requested authority shall apply the appropriate measures of
compulsion to the same extent as are provided by its national law for the execution of orders
issued by its own authorities. 42
17-21 The Hague Evidence Convention provides that requests for the taking of evidence “shall be
executed expeditiously” 43 otherwise, unlike the Evidence Regulation, there is no fixed timetable
for a receiving court to comply with a request.
17-22 Model forms for letters of request under the Hague Evidence Convention are available for
download in different languages on the website 44 which also offers a “Guide to Good Practice
on the Use of Video-Link under the Evidence Convention.” 45
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36
37
38
39
40
41
42
43
44
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art.5(1) Evidence Regulation. Chapter 1, section 4 of the Regulation also provides for evidence to be taken directly by the
requesting court, but this applies where no coercive measures are required and therefore is unlikely to be used by the Court.
art.12(1) Evidence Regulation.
art.15 Evidence Regulation.
https://www.hcch.net/en/instruments/conventions/status-table/?cid=82 [Accessed 20 May 2023].
art.1 para.2 UPCA and art.71a(1) Brussels I Regulation.
art.1 Hague Evidence Convention.
See paragraph 17-17.
art.11 Hague Evidence Convention.
art.9 Hague Evidence Convention.
https://www.hcch.net/en/publications-and-studies/details4/?pid=6557&dtid=65 [Accessed 25 April 2023].
https://www.hcch.net/en/publications-and-studies/details4/?pid=7063&dtid=65 [Accessed 25 April 2023].
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 322
