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EXPLANATORY REPORT ON THE RECOMMENDATION ADOPTED BY THE FOURTEENTH SESSION|
DRAWN UP BY MR GUSTAF MÖLLER
INTRODUCTION | GENERAL PURPOSE OF THE RECOMMENDATION | CONTENTS OF THE RECOMMENDATION
1 The Recommendation which is the subject of this Report may be seen as one of the fruits of co-operation between two international organizations, the Council of Europel and the Hague Conference on private international law.2
2 It was in fact within the Council of Europe3 that the idea was born of a notice which was to accompany any legal document sent or served abroad in civil or commercial matters. Such a notice, it was thought, would help the person (or body) for whom the document was intended first, to be aware of the legal nature of the document, second, to understand its contents and third, to know what action, if any, he might take in connection with it or what the consequences would be of his not taking action.
3 The Committee of Experts of the Council of Europe realized, however, that in a limited area such a notice existed already, this being within the framework of the transmission of legal documents through the system of Central Authorities set up under the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (hereinafter referred to as the "Service Abroad Convention"). This was why the Council of Europe decided to refer the subject to the Hague Conference and did so by letter of the Secretary General of the Council of Europe dated 31 October 1979, to which an extensive Report was attached. The larger geographical scope of the membership of the Hague Conference and of the Parties to the Service Abroad Convention could also be expected to enlarge the potential use and effectiveness of the notice.
4 A Special Commission of the Hague Conference met from 14-18 April 1980 to discuss the proposal of the Council of Europe. It adopted a draft Recommendation for the attention of the Fourteenth Session of the Hague Conference. The present author wrote the Report on the meeting of the Special Commission (Preliminary Document No 8 for the attention of the Fourteenth Session). After a final discussion on Monday 20 October 1980, the Fourteenth Session of the Hague Conference produced the final text of a "Recommendation on information to accompany judicial and extrajudicial documents to be sent or served abroad in civil or commercial matters". This Recommendation was prepared by its Commission II, of which Mr Christof Böhmer of the Federal Republic of Germany was Chairman and Mr Johannes Bangert of Denmark Vice-Chairman. The writer of this Report was Rapporteur. The text prepared by the Commission was adopted, after a minor improvement of the French text during the Plenary Session of 24 October 1980. On 25 October 1980 the delegates signed the Final Act of the Fourteenth Session, containing the Recommendation.
5 The first object of this Report is to describe - in a concentrated way - the preparatory work and the final discussions which led to the adoption of the Recommendation. The reader who would like to make a more detailed study will, however, have to refer to the above-mentioned Report of the Special Commission's meeting and the procès-verbaux and documents to be published in the Actes et documents of the Fourteenth Session of the Hague Conference on private international law.
6 This Report offers, furthermore, short commentaries on the Recommendation. In order to assist persons and authorities filling out the notice, it was decided that the Rapporteur would also give certain examples and instructions. These instructions appear above, following the Recommendation. The commentaries and instructions are based upon the opinions prevailing during the Conference, and the Rapporteur has had the opportunity to have very valuable discussions about these matters with Mr J.H.A. van Loon, Secretary at the Permanent Bureau of the Conference. The Rapporteur has, however, to bear the full responsibility for the opinions expressed in this Report.
General Purpose of the Recommendation
7 The number of documents of a judicial or quasi-judicial nature in relation to a civil or commercial matter sent or served abroad has considerably increased and seems still to be increasing. The Hague Convention on civil procedure of 1954 and the Service Abroad Convention of 1965 provide for the service of such documents abroad.4 Moreover, a large network of bilateral treaties provide, in various ways, for the service of documents, whether through judicial or administrative authorities, through consular or diplomatic channels or directly to the intended recipient.
8 Where service of a document is to be effected by a central authority, the recipient will usually be informed that this is a legal document and that it is a matter upon which he should take some action. Thus, as was already indicated above, the Service Abroad Convention includes a model form for an informative notice to be served on the addressee of a document transmitted abroad, in cases where service is effected within the framework of that Convention through the channels of the Central Authority created under the Convention. Most conventions, whether multilateral or bilateral, on service of documents abroad in civil or commercial matters, including the Service Abroad Convention, however, allow documents to be served in some other way. A method frequently used as an alternative is transmission through the postal services.
9 When service is effected through a central or judicial authority, the State where the service is to be effected may require a translation of the document if it is not written in the language of that State. Such a requirement may not be effectively imposed where service is made through the post.
10 The problem for the recipient in cases where service is not effected through a central authority is to understand the nature of the document he receives and what it requires him to do, so that he may either consult a lawyer or legal adviser, or take action on his own.
11 For the reasons given above, the Fourteenth Session shared the opinion of the Council of Europe that it was highly desirable that any legal document in relation to a civil or commercial matter sent or served abroad be accompanied by a notice containing certain information which would help the recipient in understanding the nature and purpose of the document.
Contents of the Recommendation
12 As mentioned before, the Service Abroad Convention5 includes a model form for an informative notice ("Summary of the document to be served") to be served on the addressee of a document transmitted within the framework of that Convention through the system of Central Authorities (see also Articles 2 to 6 of the Convention, in particular Article 5, last paragraph). The Fourteenth Session took note of the benefits that had been derived both for legal proceedings and for the information of litigants from that form and recognized that it was desirable that such a form, though capable of improvement, accompany any document of a judicial or extrajudicial nature sent or served abroad, in order to give the recipient a preliminary understanding of the nature and the purpose of the document.
13 Further, the question was taken up as to whether the recommended use of the Summary should be extended to cover matters which were not civil or commercial, such as administrative, social and fiscal matters. A proposal to that end was, however, rejected. The main reason for this rejection was the fear that the Recommendation would have too broad an application if it were not limited to civil or commercial matters. In particular, a large number of extrajudicial documents would be covered by the Recommendation if it were to include administrative, social and fiscal matters.
On the other hand it was suggested that a provision be added to I (1) and to II (1) of the Recommendation to exclude the service of documents on nationals in a foreign country by adding the following wording: "unless the document is to be served upon a national of the State in which the document originates through diplomatic or consular channels". This proposal was however withdrawn, since it was found evident that it would not be necessary to apply the Recommendation in such cases.
14 It was unanimously agreed that it was in the interest of good judicial administration that only one form should be used, whether the service be made through the channels of Central Authorities under the Service Abroad Convention or not.
15 A modification of the form of the "Summary of the document" annexed to the Service Abroad Convention would, however, require a revision of that Convention. It was thought that such a revision was neither opportune to undertake nor necessary in order to improve its usefulness. Instead, the Fourteenth Session decided to recommend that the Member States of the Conference and other States Parties to the 1965 Convention take appropriate steps to ensure that any judicial or extrajudicial document in relation to a civil or commercial matter sent or served abroad - whether or not the service was effected through the channels of Central Authorities created under the Service Abroad Convention - would always be accompanied by a summary in the form as annexed to the said Convention, the latter being supplemented in the ways indicated under Nos 16-19, below.
16 a Following one of the suggestions made by the Council of Europe, the notice given to the recipient should state clearly the identity and address of the intended recipient. This will make it easier for the recipient of the document to know whether or not this document was intended for him personally or in some specific capacity, as this may not be clear from the document itself.
This may be of great importance. For example, the substantive laws of different States as to legal entities are very different, and the existing divergencies may be of considerable importance in relation to any proceedings.
The recipient should therefore be enabled to know, at the earliest possible stage, in what capacity he is being required to take some steps or in what capacity a judgment has been given against him.
It was realized that this item might correspond to "particulars of the parties" on the Service Abroad Convention's Summary. It was thought, however, that this was not sufficient and that an explicit entry at the top of the warning would be useful. Moreover, the recipient might sometimes not be a party but, for instance, a witness.
17 b The Summary of the Service Abroad Convention neither contains an explicit warning that the document is a legal document which may affect the recipient's rights or obligations, nor a suggestion that he may need legal advice. According to the principles set out in the aforesaid document prepared by the Council of Europe, such a warning should accompany any judicial or extrajudicial document sent or served abroad in civil or commercial matters. The Fourteenth Session agreed that such a warning, coupled with the suggestion that legal advice may be needed, should be added to the Summary. In addition, the recipient is advised that the "Summary of the document to be served" will give him some information about the nature and purpose of the document, but it was found necessary to stress in the warning that the recipient should read the document itself carefully, since it is possible that all the facts of importance for him are not included in the Summary.
18 c Since the recipient may be a person in an economically weak position, it was found necessary to remind the recipient of the possibility of obtaining the benefit of legal aid or advice, above all in the country where the document was issued.
It may very often be difficult for the recipient to find out by himself where he can get information on the availability of legal aid or advice in the country where the document was issued. Therefore it was deemed appropriate that the possibility of giving the recipient information, identifying the authority or person to whom enquiries about the availability of legal aid or advice may be directed in the country where the document was issued, should be explicitly mentioned in the warning, in a separate paragraph.
19 d It was further agreed to recommend the use of both English and French for the standard terms in the notice (warning and summary). It was understood, however, that these terms might also be written in the official language, or in one of the official languages of the State in which the document originated. (The notice leaves space open for this purpose.)6
As to the corresponding blanks, it was decided that these should be completed either in the language of the State to which the document is to be sent, or in English or French.7
20 The question as to whether the notice should contain any further information on action to take on the document - besides information on the date and place for entering appearance - and on consequences to the recipient of his not taking action was raised.
It was thought, however, a) that in many cases it is almost impossible to mention all the possible, or even the immediate, consequences of not taking action; b) that an attempt to further identify legal consequences for the recipient tends to bring on the possibility of legal liability for the author of the form and c) that in any case the notice was to have a very general application. The notice should not replace, but rather supplement the more specific informative notices for certain types of writs and notices prescribed by some national systems of procedural law.
21 Furthermore the Fourteenth Session decided to recommend that Member States, as well as States Parties to the Service Abroad Convention, inform the Permanent Bureau from time to time, where appropriate, regarding any steps taken pursuant to the Recommendation. The aim of that provision was to provide one centre where information would be available if needed.
22 The Fourteenth Session also decided to extend the Recommendation in the form of a "Hope" to States who are neither Members of the Conference nor Parties to the Service Abroad Convention, and to bodies and institutions whom it may concern (international courts or bodies performing judicial tasks, etc.).
1 On 1 May 1981 the following States were Members of the Council of Europe: Austria, Belgium, Cyprus, Denmark, France, Federal Republic of Germany, Greece, Iceland, Ireland, Italy, Liechtenstein, Luxembourg, Malta, Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, Turkey, United Kingdom. [back to text]
2 On 1 May 1981 the following States were Members of the Hague Conference on private international law: Argentina, Australia, Austria, Belgium, Canada, Czechoslovakia, Denmark, Egypt, Finland, France, Federal Republic of Germany, Greece, Ireland, Israel, Italy, Japan, Luxembourg, Netherlands, Norway, Portugal, Spain, Suriname, Sweden, Switzerland, Turkey, United Kingdom, United States, Venezuela, Yugoslavia. [back to text]
3 In the Committee of Experts on Access to Justice (previously known as the Committee of Experts on Economic and Other Obstacles to Civil Proceedings, inter alia, Abroad). The Hague Conference on private international law participated in the work of this Committee as an observer. [back to text]
4 On the American Continent the Inter-American Convention on Letters Rogatory signed in Panama on January 30, 1975 and its Additional Protocol signed in Montevideo on May 8, 1979 deal with these matters. [back to text]
5 On May 1, 1981 the following States were Parties to this Convention: Barbados, Belgium, Botswana, Denmark, Egypt, Finland, France, Federal Republic of Germany, Ireland, Israel, Italy, Japan, Luxembourg, Malawi, Netherlands, Norway, Portugal, Sweden, Turkey, United Kingdom, United States. [back to text]
6 According to Article 7, first paragraph, of the Service Abroad Convention, the standard terms in the model annexed to the Convention shall in all cases be written either in French or in English. They may also be written in the official language, or one of the official languages, of the State from which the document originates. To the extent, therefore, that the Recommendation requires the use of both French and English for the standard terms, it goes farther than the Convention. [back to text]
7 This is in conformity with Article 7, second paragraph, of the Service Abroad Convention. [back to text]