getting evidence from abroad – how to do it right! peter rogan & kiran soar
TRANSCRIPT
Getting Evidence from Abroad – How To Do It Right!Peter Rogan & Kiran Soar
Session Overview
Getting documents for a US arbitration: What do you need to do to satisfy English Courts?› Pitfalls to avoid› Worked examples
Other jurisdictions – how do other overseas Courts treat Letters of Request?› Dubai› Hong Kong› Singapore› France› Germany› China
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Introduction
Obtaining documents and witness depositions from abroad remains a necessity in many US reinsurance arbitrations
Letters of request (letters rogatory) are a useful tool to use to get documents and witness evidence
Useful for obtaining broker documents/evidence
However: different rules of discovery in different jurisdictions (such as England)
Important to get it right!
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The Process
Whether in US Court or arbitration, the Letter of Request has to be approved by a US Court
Once approved, the Letter of Request is sent to the English Court
English solicitors make an application to the English Court for an Order to approve it
The English Court will consider whether to approve the Letter of Request
If approved, the documents will be ordered to be produced and/or the witnesses will be examined
Approach of English Courts
English Court is constrained by its own procedural rules
No rubber stamping: The English Court is not required to approve the Letter of Request
But English Courts want to help if possible:
“It is the duty and the pleasure of the [English] Court to give all such assistance as it can to the requesting Court.”
United States of America v Philip Morris Inc [2004] EWCA Civ 330
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Why are there difficulties in getting it right?
US rules of discovery are wider than English rules
The State of Minnesota v Philip Morris Inc [1998] I L Pr 170:
› Tradition of “oral discovery”
› Much wider non-party disclosure
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Consequences of getting it wrong?
The English Court will not re-write the Letter of Request
It will refuse to approve the Letter of Request
The Letter of Request must be redrafted and approved by the US Court again
Unnecessary time and money spent
Refco Capital Markets Limited v Credit Suisse First Boston Ltd [2001] EWCA Civ 1733
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What can you get under English disclosure rules?
General rule: each party discloses relevant documents which support or undermine either parties’ cases
You cannot get “train of enquiry” documents
Non-party disclosure?
› Apply to Court for an Order for disclosure› Criteria: documents which must assist/hinder another party’s case and
be necessary to dispose of the claim fairly
Witness summons› Document issued by the Court to compel a witness to attend Court or
produce documents› Documents should be individually identified› Summons will be set aside if the Court considers it oppressive
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Letters of Request - Requirements
Requests cannot be wide-ranging “investigatory” examinations
Request for a witness: › Evidence for direct use in proceedings› Witness reasonably expect to have relevant evidence› Not a fishing expedition
Request for documents: › Must be clearly identified› Individual documents or a specific clearly defined group of
documents must be identified› Court must be satisfied that the documents exist and in control
of respondent
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Letters of Request – not getting it right …
Witnesses
First American Corp v Sheikh Zayed Al-Nahyan [1999] 1 WLR 1154:
› “the sworn testimony of Mr. Cowan pursuant to a letter of request is admissible evidence and will be offered at trial.”
› “The losses BCCI’s Central Treasury Division incurred from the early 1980s through 1986 and the circumstances surrounding the subvention used to cover certain of such losses in 1986.”
› “CCAH share transactions funded and/or orchestrated by BCCI”.
› “BCCI’s banking relationship with Manuel Noriega”.
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Letters of Request – not getting it right…
Documents
Re Asbestos Insurance Coverage Cases [1985] 1 All ER 716
› “… (b) The written instructions from the plaintiffs or their agents to Sedgwick to obtain insurance policies set forth in exhibit 1 hereto…”
› “(g) The written instructions to Sedgwick from the plaintiffs or their agents to obtain the insurance policies referred to in (f) above…”
› “(j) The exemplars of Price, Forbes & Co. Ltd.’s excess comprehensive personal injury and property damage ‘umbrella’ liability policies in use in the London insurance market during the period 1950 through 1966.”
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Broker Documents
Parties often need to get documents from a non-party broker
How?
Goshawk Syndicate 102 v Tyser [2006] EWHC Civ 54
Insurers can get placing and claims documents from brokers provided that those documents were previously made available to the insurer
Likely does not extend beyond the Lloyd’s market
Top Tips
Documents Witnesses
Include with the Letter a statement of the issues relevant to proceedings
Clearly identify the documents (whether individual or specific group)
Produce evidence that they exist (or did exist)
Produce evidence that the documents are within the control of the person from whom you are seeking them
Do not use general words e.g. “any memoranda, correspondence or other documents relevant thereto”
Include with the Letter a statement of the issues relevant to proceedings
Only seek evidence for direct use in your proceedings
Prepare a list of questions or the subject matter of questions to put to the requested witness
No fishing expeditions
Produce evidence that the requested witnesses can be expected to have relevant evidence
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Letters of Request – Other Jurisdictions
Approach of Courts in jurisdictions other than England?
We asked our international offices …
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Dubai
President of Dubai Court will review Letter of Request
No formal disclosure process
Wide requests are generally not a problem
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Hong Kong & Singapore
Both have similar approaches to English Courts’ approach
Constrained by their own discovery rules but want to assist if possible
No “fishing expeditions” against non-party witnesses
Particular documents, in existence, directly material to prove issues
Singaporean Court ordinarily exercises discretion unless request frivolous, vexatious or an abuse of process
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France & Germany
Letters of Request must comply with Article 3 of the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters:› Must be in writing and specify the necessary details of the Court
proceedings (the names of the parties, the type of proceedings, the particular evidence to be taken etc)
› If formal requirements under Article 3 are met, request likely to be granted
French Judges may refuse if request is incompatible or impossible with their judicial practice
Germany has a reservation relating specifically to US proceedings:› Will not grant request for taking of evidence made in the course
of the “pre-trial discovery of documents”
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China
Hague Evidence Convention
Request must fall within scope of the Hague Evidence Convention or the bilateral treaty on judicial assistance
Investigation and taking of evidence must not conflict with Chinese law and must not be impossible or difficult to handle the request
Request for purpose of obtaining pre-trial discovery of documents:› The requests must be clearly listed; and› Directly and closely related with the matter
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Summary
There are a number of different approaches to discovery/disclosure and Letters of Request in different countries
Generally overseas Courts will try to comply with the Letter of Request and aid the US Court
The English Court will examine what is being requested closely and will refuse where requirements are not met
Seek advice from local lawyers prior to US Court approval of Letter of Request?
Get it right!
Beijing Dubai Hamburg Hong Kong Le Havre London Monaco Paris Piraeus Shanghai Singapore
[email protected]@incelaw.com