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Published online by Cambridge University Press: 27 February 2017
This decision follows an appeal of the May 1986 District Court decision [25 I.L.M. 771 (1986)] in which 145 consolidated personal injury claims were dismissed on the basis of forum non conveniens. The District Court conditioned its decision By requiring Union Carbide to consent to the jurisdiction of the Indian courts, to agree to any judgment of the Indian courts and to abide by U.S. pretrial procedural rules. The Court of Appeals addressed each of these conditions and modified the District Court's order. In the appeal, attorneys for the victims of the 1984 Bhopal gas leak challenged the decision to move the hearings to India, while Union Carbide contended that it is unfair to hold Union Carbide to different standards for discovery of evidence than India would have to follow in the Indian courts.
* [Reproduced from the slip opinion provided to International Legal Materials by the U.S. Supreme Court. The minority opinion, concurring in part and dissenting in part, appears at I.L.M. page 1034. The brief for the petitioners, briefs for the United States, the U.S. Securities and Exchange Commission, France, the Federal Republic of Germany, Switzerland and the United Kingdom, all as amicus curiae, and the brief for the respondent and real parties in interest appear at 25 I.L.M. 1475 (1986).]
1 The Hague Convention entered into force between the United States and France on October 6, 1974. The Convention is also in force in Barbados, Cyprus, Czechoslovakia, Denmark, Finland, the Federal Republic of Germany, Israel, Italy, Luxembourg, the Netherlands, Norway, Portugal, Singapore, Sweden, and the United Kingdom. Office of the Legal Adviser, United States Dept. of State, Treaties in Force 261-262 (198.
2 Petitioner Societc Nationals Induslriollo Aerospatiale is wholly owned by the Government of France. Petitioner Societe de Construction d'Avions de Tourism is a wholly-owned subsidiary of Societe Nationale Industrielle Aerospatiale.
3 ‘App. 22, 24. The term “STOL,” an acronym for “short takeoff and landing,” “refers to a fixed-wing aircraft that either takes off or lands with only a short horizontal run of the aircraft.” Douglas v. United Stales, 20G Ct. Cl. 96, 99, 510 F. 2d 364, 365, cert, denied, 423 U. S. 825 (1975).
4 Plaintiffs made certain requests for the production of documents pursuant to Rule 34(b) and for admissions pursuant to Rule 36. App. 19-23. Apparently the petitioners responded to those requests without objection, at least insofar as they called for material or information that was located in the United States. App.to Pet. for Cert. 12a. In turn, petitioners deposed witnesses and parties pursuant to Rule 2 fi, and served interrogatories pursuant to Rule 33 and a request for the production of documents pursuant to Rule 3-1. App. 1.Plaintiffs complied with those requests.
5 “Although the District Court is the nominal respondent in this manda-mus proceeding, plaintiffs are the real respondent parties in interest.
6 Article 1A of the French “blocking statute,” French Penal Code Law No. 80-538, provides: “Subject to treaties or international agreements and applicable laws and regulations, it is prohibited for any party to request, seek or disclose, in writing, orally or otherwise, economic, commercial, industrial, financial or technical documents or information leading to the constitution of evidence with a view to foreign judicial or administrative proceedings or in connection therewith.” “Art. ler bis.—Sous reserve des trails ou accords internationaux et des lois et reglements en vigueur, il est interdit a toute personne de demander, de rechercher ou de communiquer, par ecrit, oralement ou sous toute autre forme, des documents ou renseignements d'ordre economique, commercial, industriel, financier ou technique tendant a la constitution de preuves en vue de procedures judiciaires ou administratives etrangeres ou dans le cadre de celles-ci.” Article 2 provides: “The parties mentioned in [Article 1A] shall forthwith inform the competent minister if they receive any request concerning such disclosures”. “Art. 2. Les personnes visees aux articles ler et ler bis sont tenues d'informer sans d£lai le ministre competent lorsqu'elles se trouvent saisies de toute demande concernant de telles communications.” App. to Pet. for Cert. 47a-50a.
7 Id., at 25a. The magistrate stated, however, that if oral depositions were to be taken in France, he would require compliance with the Hague Evidence Convention. Ibid.
8 His quotation was from Toms, The French Response to Extraterritorial Application of United States Antitrust Laws, 15 Int'l Law. 585, 586 (1981).
9 He relied on a passage in the Toms article stating that “the legislative history [of the Law] shows only that the Law was adopted to protect French interests from abusive foreign discovery procedures and excessive assertions of extraterritorial jurisdiction. Nowhere is there an indication that the Law was to impede litigation preparations by French companies, either for their own defense or to institute lawsuits abroad to protect their interests, and arguably such applications were unintended.” App. to Pet. for Cert. 22a-23a (citing Toms, supra, at WW).
10 “The record before this court does not indicate whether the Petitioners have notified the appropriate French Minister of the requested discovery accordance with Article 2 of the French Mocking Statute, or whether the Petitioners have attempted to secure a waiver of prosecution from the French government. Because the Petitioners are corporations owned by the Republic of France, they stand in a most advantageous position to receive such a waiver. However, these issues will only be relevant should the Petitioners fail to comply with the magistrate's discovery order, and we need not presently address them.” 782 F. 2d 120, 127 (1986).
11 The Republic of France likewise takes the following position in this case:
“The Hague Convention is the Exclusive Means of Discovery in Transnational Litigation Among the Convention's Signatories Unless the Sovereign on Whose Territory Discovery is to Occur Chooses Otherwise.” Brief of Republic of France as Amiens Curiae 4.
12 See S. Exec. Doc. A, at v; Pub. L. 88-21-1, 77 Stat. 775 (1903).
13 As the Rapporteur for the session of the Hague Conference which produced the Hague Evidence Convention stated: “In 1904 Rule 28(b) of the Federal Rules of Civil Procedure and 28 U. S. C. §§ 1781 and 1782 were Naamended to offer to foreign countries and litigants, without a requirement of reciprocity, wide judicial assistance on a unilateral basis for the obtaining of evidence in the United States. The amendments named the Department of State as a conduit for the receipt and transmission of letters of request. They authorized the use in the federal courts of evidence taken abroad in civil law countries, even if its form did not comply with the conventional formalities of our normal rules of evidence. No country in the world has a more open and enlightened policy.” Amram, The Proposed Convention on the Taking of Evidence Abroad, 55 A. B. A. J. 651, 651 (1969).
14 118 Cong. Rec. 20623(1972).
15 The Hague Conference on Private International Law's omission of mandatory language in the preamble is particularly significant in light of the same body's use of mandatory language in the Preamble to the Hague Service Convention, 20 U.S.T 361, T. I. A. S. No. 6638. Article 1 of the Service Convention provides: “The present Convention shall apply in all cases, in civil or commercial matters, where there is occasion to transmit a judicial or extrajudicial document for service abroad.” Id., at 362, T. I. A. S. No. 6638. As noted, supra, at 7, the Service Convention was drafted before the Evidence Convention, and its language provided a model exclusivity provision that the drafters of the Evidence Convention could easily have followed had they been so inclined. Given this background, the drafters’ election to use permissive language instead is strong evidence of their intent.
16 At the time the Convention was drafted, Federal Rule Civil Procedure 28(b) clearly authorized the taking of evidence on notice either in accordance with the laws of the foreign country or in pursuance of the law of the United States.
17 The first paragraph of Article 1 reads as follows: “In civil or commercial matters a judicial authority of a Contracting State may, in accordance with the provisions of the law of that State, request the competent authority of another Contracting State, by means of a Letter of Request, to obtain evidence, or to perform some other judicial act.“ 23 U.S.T, at 2557, T. I. A. S. 7444. “
18 Thus, Article 17 provides: “In a civil or commercial matter, a person duly appointed as a commissioner for the purpose may, without compulsion, take evidence in the territory of a Contracting State in aid of proceedings commenced in the courts of another Contracting State if— “(a) a competent authority designated by the State where the evidence is to be taken has given its permission either generally or in the particular case; and “(b) he complies with the conditions which the competent authority has specified in the permission. “A Contracting State may declare that evidence may be taken under this Article without its prior permission.“ Id., at 2565, T. I. A. S. 7444. “
19 Our conclusion is confirmed by the position of the Executive Branch and the Securities and Exchange Commission, which interpret the “language, history, and purposes” of the Hague Convention as indicating “that it was not intended to prescribe the exclusive means by which American plaintiffs might obtain foreign evidence.” Brief for United States as Ami-cus Curiae 9 (citation omitted). “[T|he meaning attributed to treaty pro-visions by the Government agencies charged with their negotiation and enforcement is entitled to great weight.” Sumitomo Shoji America, Inc. v. Avagliano, 457 U. S. 176, 184-185 (1982); see also O'Connor v. United States, 479 U. S.,(1986). As a member of the United States delegation to the Hague Conference concluded: “[The Convention] makes no major changes in United States procedure and requires no major changes in Unite;! States legislation or rules. Onthe other front, it will give the United States courts and litigants abroad enormous aid by providing an international agreement for the taking of testimony, the absence of which has created barriers to our courts and litigants.” Amram, Explanatory Report on the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, S. Exec. Doc. A1, 3.
20 In addition to the Eighth Circuit, other Courts of Appeals and the West Virginia Supreme Court have held that the Convention cannot be viewed as the exclusive means of securing discovery transnationally. See Societe Nationale Industrielle Aerospatiale v. United States District Court, 788 F. 2d 1408,1410 (CA9 1986); In re Messerschmitt Bolkow Blohm GmbH, 757 F. 2d 729, 731 (CA5 1985), cert, vacated, 476 U. S.(1986); In re Anschuetz & Co., GmbH, 754 F. 2d 602,606-615, and n. 7 (CA5 1985), cert, pending, No. 85-98; Gebr. Eickhoff Maschinenfabrik und Eisengieberei mbH v. Starcher, 328 S.E. 2d 492, 497-501 (W. Va. 1985).
21 Article 23 provides: “A Contracting State may at the time of signature, ratification or accession, declare that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.“ 23 U.S.T, at 2568, T. L A. Si 744.
22 Thirteen of the seventeen signatory States have made declarations under Article 23 of the Convention that restrict pretrial discovery of documents. See 7 Martindale Hubbe'l Law Directory (pt. VII) 15-19 (1986).
23 The great object of an international agreement is to define the common ground between sovereign nations. (liven the gulfs of language, culture, and values that separate nations, it is essential in international agreements for the parties to make explicit their common ground on the most rudimentary of matters.” Travs World Airlines, Inc. v. Franklin Mint Corp., 466 U. S. 243, 262 (1981) (STEVENS, J., dissenting). The utter absence in the Hague Convention of an exclusivity provision has an obvious explanation: The contracting States did not agree that its procedures were to be exclusive. The words of the treaty delineate the extent of their agreement; without prejudice to their existing rights and practices, they bound themselves to comply with any request for judicial assistance that did comply with the treaty's procedures. See Carter, Obtaining Foreign Discovery and Evidence for Use in Litigation in the United States: Existing Rules and Procedures, 13 Int'l Law. 5, II, n. M (1979) (common law nations and civil law jurisdictions have separate traditions of bilateral judicial cooperation; the Evidence Convention “attempts to bridge” the two traditions.) The separate opinion reasons that the Convention procedures are not optional because unless other signatory States “had expected the Convention to provide the normal channels for discovery, |they| would have had no in-centive to agree to its terms.” Pout, at A. We find the treaty language that the parties have agreed upon and ratified a surer indication of their intentions than the separate opinion's hypothesis about the expectations of the parties. Both comity and concern for the separation of powers counsel the utmost restraint in attributing motives to sovereign States which have bargained as equals. Indeed, Justice blackmun notes that “the Convention represents a political determination—one that, consistent with the principle of separation of powers, courts should not attempt to second guess.” Id., at 6. Moreover, it is important to remember that the evidence-gathering procedures implemented by the Convention would still provide benefits to the signatory States even if the United States were not a party.
24 Article 27 provides: “The provisions of the present Convention shall not prevent a Contracting State from— “(a) declaring that Letters of Request may be transmitted to its judicial authorities through channels other than those provided for in Article 2; “(b) permitting, by internal law or practice, any act provided for in this Convention to be performed upon less restrictive conditions; “(c) permitting, by internal law or practice, methods of taking evidence other than those provided for in this Convention.” 23 U.S.T., at 2569, T. I. A. S. 7444. Thus, for example, the United Kingdom permits foreign litigants, by a letter of request, to “apply directly to the appropriate courts in the United Kingdom for judicial assistance” or to seek information directly from parties in the United Kingdom “if, as in this case, the court of origin exercises jurisdiction consistent with accepted norms of international law.” Brief for the Government of the United Kingdom and Northern Ireland as Ami-cus Curiae 6 (footnote omitted). On its face, the term “Contracting State” comprehends both the requesting State and the receiving State. Even if Article 27 is read to apply only to receiving States, see, e. g., Gebr. Eickhoff Maschinenfabrik und Eisengieberei mbll v. Starcher, 328 S. E. 2d, at 499-500, n. 11 (rejecting argument that Article 27 authorizes more liberal discovery procedures by requesting as well as executing States), the treaty's internal failure to authorize more liberal procedures for obtaining evidence would carry no pre-emptive meaning. We are unpersuaded that Article 27 supports a “negative inference” that would curtail the preexisting authority of a State to obtain evidence in accord with its normal procedure.
25 The opposite conclusion of exclusivity would create three unacceptable asymmetries. First, within any lawsuit between a national of the United States and a national of another contracting Party, the foreign party could obtain discovery under the Federal Rules of Civil Procedure, while the domestic party would be required to resort first to the procedures of the Hague Convention. This imbalance would run counter to the fundamental maxim of discovery that “[mjutual knowledge of all the relevant facts gath- ered by both parties is essential to proper litigation.” Hickman v. Taylor, 329 U. S. 495, 507 (1947). Second, a rule of exclusivity would enable a company which is a citizen of another contracting State to compete with a domestic company on uneven terms, since the foreign company would be subject to less extensive discovery procedures in the event that both companies were sued in an American court. Petitioners made a voluntary decision to market their products in the United States. They are entitled to compete on equal terms with other companies operating in this market. But since the District Court unquestionably has personal jurisdiction over petitioners, they are subject to the same legal constraints, including the burdens associated with American judicial procedures, as their American competitors. A general rule according foreign nationals a preferred position in pretrial proceedings in our courts would conflict with the principle of equal opportunity that governs the market they elected to enter. Third, since a rule of first use of the Hague Convention would apply to cases in which a foreign party is a national of a contracting State, but not to cases in which a foreign party is a national of any other foreign state, the rule would confer an unwarranted advantage on some domestic litigants over others similarly situate.
26 We observe, however, that in other instances a litigant's first use of the Hague Convention procedures can be expected to yield more evidence abroad more promptly than use of the normal procedures governing pre-trial civil discovery. In those instances, the calculations of the litigant will naturally lead to a first-use strategy
27 Comity refers to the spirit of cooperation in which a domestic tribunal approaches the resolution of cases touching the laws and interests of other sovereign states. This Court referred to the doctrine of comity among nations in Emory v. Grenovgh, 3 Dall. 369, 370, n. (1797) (dismissing appeal from judgment for failure to plead diversity of citizenship, but setting forth an extract from a treatise by Ulrich Huber (1036-1694), a Dutch jurist):
“'By the courtesy of nations, whatever laws are carried into execution, within the limits of any government, are considered as having the same effect every where, so far as they do not occasion a prejudice to the rights of the other governments, or their citizens…|n|othing would be more inconvenient in the promiscuous intercourse and practice of mankind, than that what was valid by the laws of one place, should be rendered of no effect elsewhere, by a diversity of law…'” Id., at 370, n. (quoting 2 Huberus, B.I., Tit. 3, p. 26).
See also Hilton v. Gvyot, 159 U. S. 113, 103-104 (1895):
“'Comity,' in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.”
28 The nature of the concerns that guide a comity analysis are suggested by the Restatement of Korcign Relations Law of the United States (Revised) § 437(l)(c) (Tent. Draft No. 7, 1986) (approved May 14, 1986). While we recognize that § 437 of the Restatement may not represent a consensus of international views on the scope of the District Court's power to order foreign discovery in the face of objections by foreign states, these factors are relevant to any comity analysis:
“(1) the importance to the … litigation of the documents or other information requested;
“(2) the degree of specificity of the request;
“(3) whether the information originated in the United States;
“(4) the availability of alternative means of securing the information; and
“(5) the extent to which noncompliance with the request would undermine important interests of the United States, or compliance with the request would undermine important interests of the state where the information is located.” Ibid.
29 The French “blocking statute,” supra, at n. 6, does not alter our conclusion. It is well-settled that such statutes do not deprive an American court of the power to order a party subject to its jurisdiction to produce evidence even though the act of production may violate that statute. See Societe Internationale Pour Participations Industrie!les et Commerciales,S.A., v. Rogers, 357 U.S. 197, 204-206 (1958). Nor can the enactment of such a statute by a foreign nation require American courts to engraft a rule of first resort onto the Hague Convention, or otherwise to provide the na tionals of such a country with a preferred status in our courts. It is clear that American courts are not required to adhere blindly to the directives of such a statute. Indeed, the language of the statute, if taken literally,would appear to represent an extraordinary exercise of legislative jurisdiction by the Republic of France over a United States District Judge, forbiding him or her from ordering any discovery from a party of French nationality, even simple requests for admissions or interrogatories that the partycould respond to on the basis of personal knowledge. It would be particularly incongruous to recognize such a preference for corporations that arewholly owned by the enacting nation. Extraterritorial assertions of jurisdiction are not one-sided. While the District Court's discovery orders arguably have some impact in France, the French blocking statute asserts similar authority over acts to take place in this country. The lesson of comity is that neither the discovery order nor the blocking statute can have the same omnipresent effect that it would have in a world of only one sovereig.The blocking stattite thus is rel comity analysis only to the extent that its terms and its enforcement identify the nature of the sovereign interests in nondisclosure of specific kinds of material. The American Law Institute has summarized this interplay of blocking statutes and discovery orders: “[W|hen a state has jurisdiction to prescribe and its courts have jurisdiction to adjudicate, adjudication should (subject to generally applicable rules of evidence) take place on the basis of the best information available… . (Blockingl statutes that frustrate this goal need not be given the same deference by courts of the United States as substantive rules of law at variance with the law of the United States.” See Restatement supra, at §437, Reporter's Note 5 pp. 41,42. “On the other hand, the degree of friction created by discovery requests … and the differing perceptions of the acceptability of American-style discovery under national and international law, suggest some efforts to moderate the application abroad of U.S. procedural techniques, consistent with the overall principle of reasonableness in the exercise of jurisdiction.”.Id., at 42.
30 Under the Hague Convention, a letter of request must specify “the evidence to be obtained or other judicial act to be performed,” Art. 3, and must be in the language of the executing authority or be accompanied by a translation into that language. Art. 4. 23 U.S.T, at 2558-2559, T.I.A.S.7444. Although the discovery request must be specific, the party seeking discovery may find it difficult or impossible to determine in advance what evidence is within the control of the party urging resort to the Convention and which parts of that evidence may qualify for international judicial assistance under the Convention. This information, however, is presumably within the control of the producing party from which discovery is sought. The District Court may therefore require, in appropriate situations, that this party bear the burden of providing translations and detailed descriptions of relevant documents that are needed to assure prompt and complete production pursuant to the terms of the Convention.
1 Many courts that have examined the issue have adopted a rule of first resort to the Convention. See, e. g., Philadelphia Gear Corp. v. American Pfauter Corp. 100 F.R.I). 58^61 (ED Pa. 1983) (“avenue of first resort for plaintiff [is] the Hague Convention“); Gebr. Eickhoff Manchinen- fabrik and Eisengieberei mbll v. Sfarcher, 328 S.E.2d 492, 504-506 (1985) (“principle of international comity dictates first resort to [Convention] procedures“); Vincent, v. Ateliers de la Motobecane, S.A., 193 N.J. Super. 716, 723, 475 A. 2d 686, 690 (App. Div. 1984) (litigant should first attempt to comply with Convention); Th. Goldschmidt A.G. v. Smith, 676 S.W. 2d 413, 445 (Tex. App. 1984) (Convention procedures not mandatory but are “avenue of first resort); Pierburg Gmbh Co. KG v. Superior Court, 137 Cal. App. 3d 238, 247, 186 Cal. Rptr. 876, 882-883 (1982) (plaintiffs must attempt to comply with the Convention); Volkswagenwerk Aktiengeselkcha.fi v. Superior Court, 123 Cal. App. 3d 840, 857-859, 176 Cal. Rptr. 874, 885-886 (1981) (“Hague Convention establishes not a fixed rule but rather a minimum measure of international cooperation“.
2 Article 27of the Convention, sec ante, at, n. 24 (slip op. 14, n. 24), is not to the contrary. The only logical interpretation of this article is that a state receiving a discovery request may permit less restrictive procedures than those designated in the Conventinn. The majority finds plausible a reading that authorizes both a requesting and a receiving state to use methods outside the Convention. Ibid. If this were the case, Article 27(c), which allows a state to permit methods of taking evidence that are not provided in the Convention, would make the rest of the Convention wholly superfluou. If a requesting state could dictate the methods for taking evidence in another state, there would be no need for the detailed procedures provided by the Convention.
Moreover, the United States delegation's explanatory report on the Convention describes Article 27 as “designed to preserve existing internal law and practice in a Contracting State which provides broader, more generous and less restrictive rules of international cooperation in the taking of evidence for the benefit of foreign courts and litigants.” S. Exec. A., 92d Cong., 2d Sess., 39 (1972). Article 27 authorizes the use of alternative methods for gathering evidence “if the internal law or practice of the State of execution so permits.“.Id., at 39-40 (emphasis added).
3 Our Government's interests themselves are far more complicated than can be represented by the limited parties before a court. The United States is increasingly concerned, for example, with protecting sensitive technology for both economic and military reasons. It may not serve the country's long-term interest to establish precedents that could allow foreign courts to compel production of the records of American corporations.
4 One of the ways that a pro-forum bias has manifested itself is in United States courts' preoccupation with their own power to issue discovery orders. All too often courts have regarded the Convention as some kind of threat to their jurisdiction and have rejected use of the treaty procedures. See, e. g., In re Anschuetz & Co., GmbH, 754 F. 2d 602, 606, 612 (CA5 1985), cert, pending, No. 85-98. It is well established that a court has the power to impose discovery under the Federal Rules of Civil Procedure when it has personal jurisdiction over the foreign party. Societe Internationale v. Rogers, 357 U. S. 197, 204 -200 (1958). But once it is determined that the Convention does not provide the exclusive means for foreign discovery, jurisdictional power is not the issue. The relevant question, instead, becomes whether a court should forgo exercise of the full extent of its power to order discovery. The Convention, which is valid United States law, provides an answer to that question by establishing a strong policy in favor of self-restraint for the purpose of furthering United States interests and minimizing international disputes.
There is also a tendency on the part of courts, perhaps unrecognized, to view a dispute from a local perspective. “[D]omestic courts do not sit as internationally constituted tribunals… The courts of most developed countries follow international law only to the extent it is not overridden by national law. Thus courts inherently find it difficult neutrally to balance competing foreign interests. When there is any doubt, national interests will tend to be favored over foreign interests.” Laker Airways, Ltd. v. Sabena, Belgian World Airlines, 235 U. S. App. D. C. 207, 249, 731 F. 2d 909, 951 (1984) (footnotes omitted); see also In re Uranium Antitrust Litigation, 480 F. Supp. 1138, 1148 (ND 111. 1979).
5 The Department of State in general does not transmit diplomatic notes from foreign governments to state or federal trial courts. In addition, it adheres to a policy that it does not take positions regarding, or participate in, litigation between private parties, unless required to do so by applicable law. See Oxman, The Choice Between Direct Discovery and Other Means of Obtaining Evidence Abroad: The Impact of the Hague Evidence Convention (Oxman), 37 U. Miami L. Rev. 733, 748, n. 39 (1983).
6 See Kerr v. United States District Court, 426 U. S. 394, 402-405 (1976); see also Boreri v. Fiat S. P. A., 763 F. 2d 17, 20 (CA11985)(refusing to review on interlocutory appeal district court order involving extraterritorial discovery).
7 See, e. g., Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, —(1985) (slip op. 14); Scherk v. Alberto-Culver Co., 417 U. S. 506, 516-519 (1974); The Breman v. Zapata Off-Shore Co., 407 U. S. 1, 12-14 (1972).
8 “See, e. g., Romero v. International Terminal Operating Co., 358 U. S. 354, 382-384 (1959); Lauritzen v. harsen, 345 U. S. 571, 577-582 (1953); Berizzi Bros. Co. v. Steamship Pcsarn, 271 U. S. 562, 575 (1926); Wildenhus's Case, 120 U. S. 1, 12 (1887); The Belgenland, 114 U. S. 355, 363-364 (1885); The Scotia, 14 Wall. 170, 187-188 (1871); Brown v. Duchesne, 19 How. 183, 198 (1856); The Schooner Exchange v. M'Faddon, 7 Cranch 116, 137 (1812).
9 ‘See, e. g., First National City Bank v. Banco Para el Comercio Exterior de Cuba, 462 U. S. 611, 626-627 (1983) (presumption that for purposes of sovereign immunity “government instrumentalities established as juridical entities distinct and independent from their sovereign should normally be treated as such” on the basis of respect for “principles of comity between nations“).
10 Justice Story used the phrase “comity of nations” to “express the true foundation and extent of the obligation of the laws of one nation within the territories of another.” S 38. “The true foundation on which the administration of international law must rest is, that the rules which are to govern are those which arise from mutual interest and utility, from a sense of the inconveniences which would result from a contrary doctrine, and from a sort of moral necessity to do justice, in order that justice may be done to us in return.” §35.
11 Choice-of-law decisions similarly reflect the needs of the system as a whole as well as the concerns of the forums with an interest in the controversy. “Probably the most important function of choice-of-law rules is to make the interstate and international systems work well. Choice-of-law rules, among other things, should seek to further harmonious relations between states and to facilitate commercial intercourse between them. In formulating rules of choice of law, a state should have regard for the needs and policies of other states and of the community of states.” Restatement (Second) of Conflict of Laws 5 6, Comment d, p. 13 (1971).
12 Chief Justice Marshall articulated the American formulation of this principle in The Schooner Exchange v. M'Faddon, 7 Cranch 116, 136 (1812):
“The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction “
All exceptions, therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source.“
13 Many of the nations that participated in drafting the Convention regard nonjudicial evidence taking from even a willing witness as a violation of sovereignty. A questionaire circulated to participating governments prior to the negotiations contained the question, “Is there in your State any legal provision or any official practice, based on concepts of sovereignty or public policy, preventing the taking of voluntary testimony for use in a foreign court without passing through the courts of your State?” Questionnaire on the Taking of Evidence Abroad, Actes et documents 9, 10. Of the 20 replies, eight governments—Egypt, France, West Germany, Italy, Luxemburg, Norway, Switzerland, and Turkey—stated that they did have objections to unauthorized evidence taking. Reponses des Gouvernements au Questioninaire sur la reception des depositions a l'6tranger, Actes et documents 21-46; see also Oxman, 37 U. Miami L. Rev., at 764, n. 84.
14 The Federal Republic of Germany, in its diplomatic protests to the United States, has emphasized the constitutional basis of the rights violated by American discovery orders. See, e. g., Diplomatic Note, dated Apr. 8, 1986, from the Embassy of the Federal Republic of Germany. App. to Brief for Federal Republic of Germany as Amicus Curiae 20a.
15 See Edwards, Taking of Evidence Abroad in Civil or Commercial Matters, 18 Int'l & Comp. L. Q. 646, 647 (1969). A number of countries that ratified the Convention also expressed fears that the taking of evidence by consuls or commissioners could lead to abuse. Ibid.
16 According to the French Government, the overwhelming majority of discovery requests by American litigants are “satisfied willingly … before consular officials and, occasionally, commissioners, and without the need for involvement by a French court or the use of its coercive powers.” Brief for Republic of France as Amicus Curiae 24. Once a United States court in which an action is pending issues an order designating a diplomatic or consular official of the United States stationed in Paris to take evidence, oral examination of American parties or witnesses may proceed. If evidence is sought from French nationals or other non-Americans, or if a commissioner has been named pursuant to Article 17 of the Convention, the Civil Division of International Judicial Assistance of the Ministry of Justice must authorize the discovery. The United States Embassy will obtain authorization at no charge or a party may make the request directly to the Civil Division. Authorization is granted routinely and, when necessary, has been obtained within one to two days. Brief, at 25.
17 For example, after the filing of the initial pleadings in a German court, the judge determines what evidence should be taken and who conducts the taking of evidence at various hearings. See, e. g., Langbein, The German Advantage in Civil Procedure, 52 I J. Chi. L. Rev. 823, 820-828 (1985). All these proceedings are part of the “trial,” which is not viewed as a separate proceeding distinct from the rest of the suit. Id., at 826.
18 “In most common law countries, even England, one must often look hard to find the resemblances between pre-trial discovery there and pretrial discovery in the U. S. In England, for example, although document discovery is available, depositions do not exist, interrogatories have strictly limited use, and discovery of third parties is not generally allowed.” S. Seidel, Extraterritorial Discovery in International Litigation 24 (1984)
19 In France, the Nouveau Code de Procedure Civile, Arts. 736-748 (76th ed. Dalloz 1984) implements the Convention by permitting examination and cross-examination of witnesses by the parties and their attorneys, Art. 740, permitting a foreign judge to attend the proceedings, Art. 741, and authorizing the preparation of a verbatim transcript of the questions and answers at the expense of the requesting authority, Arts. 739, 748. German procedures are described in Shemanski, Obtaining Evidence in the Federal Republic of Germany: The Impact of The Hague Evidence Convention on German-American Judicial Cooperation, 17 Int'l Lawyer 465, 473-474 (1983.
20 The United States recounts the time and money expended by the SEC in attempting to use the Convention's procedures to secure documents and testimony from third-party witnesses residing in England, France, Italy, and Guernsey to enforce the federal securities laws’ insider-trading provisions. See Brief for United States and Securities and Exchange Commission as Amid Curiae 15-18. As the United States admits, however, the experience of a governmental agency bringing an enforcement suit is “atypical” and has little relevance for the use of the Convention in disputes between private parties. In fact, according to the State Department, private plaintiffs “have found resort to the Convention more sUccessful.“.Id., at 18.
The SEC's attempts to use the Convention have raised questions of first impression, whose resolution in foreign courts has led to delays in particular litigation. For example, in In re Testimony of Constandi Nasser, Trib. admin, de Paris, preme section—preme chambre, No. 51546/6 (Dec. 17, 1985), the French Ministry of Justice approved expeditiously the SEC's letter of request for testimony of a nonparty witness. The witness then raised a collateral attack, arguing that the SEC's requests were administrative and therefore outside the scope of the Convention, which is limited by its terms to “civil or commercial matters.” The Ministry of Justice ruled against the attack and, on review, the French Administrative Court ruled in favor of the French Government and the SEC. By then, however, the SEC was in the process of settling the underlying litigation and did not seek further action on the letter of request. See Reply Brief for Petitioners 17 and nn. 35, 36.
21 The use of the term “pre-trial” seems likely to have been the product of a lack of communicatio. According to the United States delegates’ report, at a meeting of the Special Commission on the Operation of the Evidence Convention held in 1978, delegates from civil-law countries revealed a “gross misunderstanding” of the meaning of “pre-trial discovery,” think ing that it is something used before the institution of a suit to search for evidence that would lead to litigation. Report of the United States Delegation, 17 Int'l Legal Materials 1417, 1421 (1978). This misunderstanding is evidenced by the explanation of a French commentator that the “pretrial discovery” exception was a reinforcement of the rule in Article 1 of the Convention that a letter of request “shall not be used to obtain evidence which is not intended for use in judicial proceedings, commenced or con templated” and by his comment that the Article 23 exception referred to the collection of evidence in advance of litigation. Gouguenheim, Conven tion sur l'obtention des preuves a l'etranger en matiere civile et commerciale, 96 Journal du Droit International 315, 319 (1969).
22 France has recently modified its declaration as follows: “The declaration made by the Republic of France pursuant to Article 23 relating to letters of request whose purpose is ‘pre-trial discovery of documents’ does not apply so long as the requested documents are limitatively enumerated in the letter of request and have a direct and clear nexus with the subject matter of the litigation.”
“La declaration faite par la Republique francaise conformement a l'article 23 relatif aux commissions rogatoires qui ont pour objet la procedure de ‘pre-trial discovery of documents’ ne s'applique pas lorsque les documents demandes sont limitativement enumeres dans la commission rogatoire et ont un lien direct et precis avec Pobjet du litige.” Letter from J. B. Raimond, Minister of Foreign Affairs, France, to H. H.Broek, Minister of Foreign Affairs, The Netherlands (Dec.24,1986).
The Danish declaration is more typical: “The declaration made by the Kingdom of Denmark in accordance with article 23 concerning ‘Letters of Request issued for the purpose of obtaining pre-trial discovery of documents’ shall apply to any Letter of Request which requires a person:
“a) to state what documents relevant to the proceedings to which the Letter of Request relates are, or have been, in his possession, other than particular documentsspecified in the Letter or Request; “or
“b) to produce any documents other than particular documents which are specified in the Letter of Request, and which are likely to be in his possession.” Declaration of July 23, 1980, 7 Martindale-Hubbell Law Directory (pt. VII) 15 (1986).
The Federal Republic of Germany, Italy, Luxemburg, and Portugal continue to have unqualified Article 23 declarations, id., at 16-18, but the German Government has drafted new regulations that would “permit pretrial production of specified and relevant documents in response to letters of request.” Brief for Anschuetz Co. GmbH and Messerschmitt-Boelkow-Blohm GmbH as Amici Curiae 2I.
23 An Article 23 reservation and, in fact, the Convention in general require an American court to give closer scrutiny to the evidence requested than is normal in United States discovery, but this is not inconsistent with recent amendments to the Federal Rules of Civil Procedure that provide for a more active role on the part of the trial judge as a means of limiting discovery abuse. See Fed. Rule Civ. Proc. 2(5(b), (f), and (g) and accompanying Advisory Committee Notes.