Reinvigorated debate

Author: | Published: 24 Jun 2010
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The 1970 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, which defines procedures for the collection of evidence in one contracting state for use in civil or commercial actions in another, reached a milestone in early 2010 with its entry into force in a 50th contracting state.

The US and France were among the very first states in which the Convention entered into force, and the Franco-American axis no doubt constitutes one of the most active pairings of nations for its application – or, depending on one's point of view, its potential application – in commercial matters. Yet, because France views the Convention as compulsory, while most US case law treats it as only one possible vehicle for obtaining evidence abroad, the Convention has provoked a fair amount of trans-Atlantic misunderstanding. The purpose of this short article is to examine a few of the practical considerations relevant to the treaty's application.

Underlying motivation for the Convention

One of the prime movers behind the inception of the Hague Convention was a desire on the part of civil law and common law nations to agree on a means of taking evidence abroad that respected state judicial sovereignty. Indeed, when parties of one nation undertake evidence-gathering activities in another, sovereignty concerns can arise due to differing national conceptions of the fact-finding process. In the most general terms, evidence gathering is conducted in common law jurisdictions at the initiative of the parties themselves; it is considered an exercise within their province. In civil law jurisdictions, by contrast, it is more routinely considered a function under the control and discretion of the judiciary. When an American litigant seeks evidence in a civil law country like France, that party is in effect seeking to fulfill a role that would normally be undertaken by the state judge.

Further suspicion can arise from the fact that the discovery tools are themselves so different from country to country. In France, fact finding in civil litigation results largely from the voluntary production by parties of documents helpful to their case and from court-appointed experts. Pre-trial depositions and American-style requests for production of documents simply do not exist. (The closest analogues in France are friendly written witness declarations spontaneously submitted by a party, and a relatively little-used rule authorising the judge to order one party to produce specific documents known to be in the possession of an adversary.)

Thus in the late sixties, a group of nations sought to establish a procedure for gathering evidence that would be "tolerable to the authorities of the state where it is taken, [and] at the same time, 'utilisable' in the forum where the action w[ould] be tried." (Report of the US Delegation to the Eleventh Session of the Hague Convention on Private International Law.)

The result was the Hague Evidence Convention, which sets forth a number of methods for cross-border evidence gathering, the two most important of which are the letter of request (Chapter I) and the commissioner procedure (Chapter II, articles 17 et seq).

Letters of request

Chapter I's letter of request procedure has as its progenitor the traditional technique of letters rogatory. The general concept is defined in Convention Article I: "In civil or commercial matters a judicial authority of a contracting state may ... 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." In commercial litigation, the most typically requested acts are document production and depositions, alone or in combination.

The letter of request resembles a court order signed by the judge of the court where the action is pending, except that it is addressed to a "central authority" in the executing jurisdiction and requests that specifically identified discovery measures be carried out by a competent judge of the place where the evidence is located. Typically, the party desiring the evidence files a motion for the issuance of a letter of request and attaches a form letter of request for the judge's signature. Letters of request addressed to France must be in French or be accompanied by a translation.

The matters the letter must set out include: identifying information regarding the parties to the proceedings and their representatives; the nature of the proceedings; the evidence to be obtained or other judicial act to be performed. Additionally, it should include: the identity of the person to be examined; the questions to be put to the witness or the subject matter; and the documents to be examined. The letter should also specify any requirement that the evidence be given on oath or affirmation, and spell out any special method or procedure that the requesting judge desires. Such requests can include recording and producing a verbatim transcript of questions and answers and allowing for cross-examination of a witness.

Once issued, the letter of request is transmitted to France's designated central authority, the French Ministry of Justice's Office of International Judicial Cooperation (Bureau de l'entraide civile et commerciale internationale), which sees that it is transmitted for execution to a competent judge in the locality where the witness or evidence is situated. The designated judge must generally proceed to execute the letter of request promptly upon receipt and can refuse to do so only on the most limited of grounds (for example if the request impedes the sovereignty or the security of the French state. Additional provisions concerning the execution of letters of request are found at articles 736-748 of the French Code of Civil Procedure).

Many French executing judges adopt a relatively laid-back position concerning depositions and readily permit the attorneys to ask the questions or to suggest them. An article of the French Code of Civil Procedure specifically provides that the judge may authorise parties and their counsel to pose questions (even if they are foreigners). Some judges prefer to maintain closer control of the proceedings and will pose the questions themselves, though they generally accept counsel's assistance in identifying the issues.

One advantage often cited regarding letters of request is that the Convention allows the state of execution to apply "measures of compulsion" to obtain the evidence. Unfortunately, the measures of compulsion available under French law to ensure witness cooperation are relatively toothless (for example a civil fine of no more than €3000) compared to those available in the US, thereby negating this advantage of Chapter I.

Using a commissioner

Chapter II identifies a number of alternatives to letters of request, none of which call for the direct involvement of the courts of the place where the discovery is conducted. The first two articles of Chapter II address the collection of evidence through diplomatic officers or consular agents, but it is Article 17, which calls for evidence to be gathered by a person appointed as "commissioner," that is typically of the most practical interest.

In practice, when the evidence sought is a deposition or a deposition coupled with document requests, the person appointed commissioner is frequently a court reporter practicing in the jurisdiction where the evidence is to be gathered. The commissioner acts as a sort of umpire to ensure the smooth conduct of the proceedings; he or she can, for instance, resolve minor issues that may arise such as the allocation of time between the counsel, but otherwise he or she allows the lawyers to proceed with conducting the deposition as they normally would do in US proceedings.

To employ this technique, an application is made to the US court before which the case is pending for an order appointing a commissioner to gather the requested evidence in France. That order is then transmitted to the French Ministry of Justice's Office of International Judicial Cooperation for approval.

In ratifying the Convention, France made a series of declarations regarding Article 17's commissioner procedure. One of them sets out a requirement that evidence be taken only in embassies, but this condition is typically waived (as the US Embassy routinely furnishes a form letter stating that such proceedings cannot be conducted in its premises due to security concerns). Additionally, a requirement that evidence be taken in a room to which the public has access does not appear to be strictly enforced. By contrast, the requirement that the Office of International Judicial Cooperation be given timely notice of the deposition is enforced. Though there is little chance a Ministry representative will actually be present to observe the discovery, it is counseled against springing last minute authorisation requests upon the Ministry, as insufficient notice has been cited as a basis to deny permission.

The declarations also foresee that the witness will be summoned to provide the evidence by an official notice in French. The notice must inform the witness that any appearance is voluntary and that he or she may be represented by a lawyer. It is therefore important to ascertain in advance from the prospective witness (in a neutral, non-partisan manner) whether he or she will indeed agree to cooperate voluntarily. It is advisable to achieve a fair degree of certainty on this point even before applying for the appointment of a commissioner, as sometimes consenting witnesses will back out at the last minute after logistical arrangements have been completed. If the witness does not agree to take part in the process, a letter of request under Chapter I will be necessary.

Pre-trial discovery of documents

Chapter III of the Convention contains a series of "general clauses," the most important of which for present purposes is Article 23; it allows a contracting state to 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." France initially expressed a summary reservation in this regard, but in 1987 it moderated this reservation by clarifying that it "does not apply when the requested documents are enumerated limitatively in the letter of request and have a direct and precise link with the object of the procedure." Although both Article 23 and the text of the French reservation itself refer specifically to letters of request, it is generally considered that the reservations apply to both Chapter I and Chapter II proceedings.

Further insight into the meaning of the reservation can be found in a September 18 2003 decision of the Paris Court of Appeal, which sets out a fairly generous application of these principles as to both the time period covered by the document requests and the necessary demonstration of the link between the requested information and the pending litigation (See note 1). The court emphasised that the Hague Convention was designed to facilitate the transmission of letters of request in order to increase the effectiveness of judicial cooperation. Interestingly, the Court interpreted the obligation of specificity as not requiring an exact description of the requested items, but rather a reasonably specific description of the requested material (including such elements as the date, the nature and its author). The court reasoned that because the requesting party did not have possession of the documents in question, an exact description of the items could not be required.

Of course, none of the foregoing suggests that deposition notices and document requests that are drafted in what is perceived abroad as a stereotypically American fashion (those characterised by open-ended time periods and broadly sweeping document categories) will pass muster with the French Justice Ministry. In crafting one's Hague Convention request (letter of request or request for the appointment of a commissioner), it is therefore generally not appropriate to simply cut and paste from existing discovery requests formulated in the same case under American discovery rules. It is, instead, normally advisable to pare back the requests to limit them to what is strictly necessary, to identify either specific documents or narrow categories of known documents and to limit the persons and time periods covered. It is also desirable to ensure that sufficient details of the connection between the requested discovery and the issues pending in the case are provided in the US judge's letter of request or the order appointing a commissioner, in order to allow the Ministry to act consistently with the Article 23 reservation and to allow the executing judge to assess any objections that the producing party may raise.

Additionally, American counsel sometimes find it useful to have French-admitted colleagues review the requested discovery before filing with the US judge so that they may opine on whether the requests strike them as something that could lead to complications at the time of execution in France under the Hague Convention.

Such upstream review of the planned requests is particularly important in the context of letters of request, as any challenge to the scope of the requested discovery will retard execution before the French trial court judge and could even lead to an appeal before the Court of Appeals of the trial court's disposition of the objections. Such delay could, in practical terms, deal a fatal blow to the discovery request, as the discovery calendar fixed by the US judge may not accommodate such delay.

The French blocking statute

Intimately connected with any contemplated application of the Hague Evidence Convention in France is consideration of the French blocking statute, which was enacted in 1980 in response to repeated incidents of unauthorised evidence gathering and direct application of the US Federal Rules of Civil Procedure on its soil. To help ensure that the Hague Evidence Convention had mandatory application in France, to encourage litigants to use it and to counter arguments to the effect that the Convention itself is devoid of mandatory language, the blocking statute was designed to prohibit essentially all evidence gathering not undertaken according to the Hague Convention. The relevant provision, which applies broadly to all persons regardless of nationality and touches upon virtually every kind of evidence that could be of interest in commercial litigation, was codified as Article 1 bis of Law 68-678 and reads: "Except as may be provided otherwise in international treaties or conventions or in laws and regulations in effect, it is prohibited for any person to request, to seek, or to transfer, in writing, orally, or by any other means, documents or information of an economic, commercial, industrial, financial, or technical nature aimed at evidence gathering for planned or pending foreign judicial or administrative proceedings." Non-compliance with the statute is a criminal matter and can lead to a fine up to €18,000, six months imprisonment or both.

American and French case law

American case law on the Hague Convention is marked most notably by the precedent of the US Supreme Court in Société Nationale Industrielle Aérospatiale v US District Court, in which a closely-divided court held that international comity does not require a first resort to the Convention in every case. The Supreme Court found that a rule of first resort in all cases would be inconsistent with an overriding interest in "'just, speedy, and inexpensive determination' of litigation".

In the years following Aérospatiale, US courts have tended to place the burden of proof on the party resisting the discovery and advocating use of the Hague Convention to demonstrate why the Convention procedures should be required. Courts have tended to find that the proponents of the Hague Convention have not met the said burden (See note 2).

More generally, American trial courts have systematically marginalised arguments in favour of applying the Hague Convention and discounted foreign sovereign interests, in order to permit discovery to proceed abroad under the Federal Rules of Civil Procedure without requiring use of the Hague Evidence Convention. In so doing, courts have found that the US has a substantial interest in fully and fairly adjudicating matters before its courts, that this is possible only with complete discovery and that the US has an important interest in protecting its own nationals from unfair disadvantage when they are being sued in the courts of their own nation. These interests lead courts to find on a recurring basis that American interests outweigh foreign interests (See note 3).

A minority of state and federal cases in the US have, however, ruled in favour of applying the Hague Convention under different circumstances. By way of example, in Husa v Laboratories Servier, a plaintiff brought a personal injury action against several defendants, including a French pharmaceutical corporation. Citing a previous New Jersey case, the Court noted that an "initial attempt should be made to gather the evidence utilising the Convention", but that if that should prove ineffective, then "the trial court will be free to consider the matter further". The Court in Husa was intent on a first recourse to the Convention: "The Convention should be utilised unless it is demonstrated that its use will substantially impair the search for truth, which is at the heart of all litigation, or will cause unduly prejudicial delay." In one notable New York case, Orlich v Helm Brothers and Mercedes-Benz of North America, concerning discovery of a non-party, the Court laid forth the position that discovery from a non-party located in a foreign jurisdiction made application of the Hague Convention "virtually compulsory". The Court was concerned that taking evidence in Germany of a non-party without using the Hague Convention could be an affront to Germany's sovereignty (See note 4).

Still, a majority of courts will apply the Federal Rules of Civil Procedure directly rather than the Hague Convention in connection with requests for evidence located abroad.

Concerning foreign blocking statutes, several US courts have found that the US has a strong interest in being able to fully adjudicate matters and have accorded little importance, if any, to them (See note 5). In Strauss v Credit Lyonnais, for example, US plaintiffs that had brought suit against a French bank sought documentary discovery concerning the bank's customers. The bank requested that such discovery proceed pursuant to the Hague Convention. The court found that the US' strong interest in fully adjudicating matters before its courts trumped France's interests in the blocking statute. Quoting the US Supreme Court, the Strauss court noted that "'if taken literally, [the statute] would appear to represent an extraordinary exercise of legislative jurisdiction by the Republic of France over a US district judge,'" and therefore found that "the French blocking statute is not a basis for denying discovery." It "disagree[d] that French civil law should control American courts." As the US Supreme Court stated in Aérospatiale: "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."

By comparison with the body of US case law, there is far less French case law concerning the Hague Evidence Convention and the blocking statute. Concerning the blocking statute, this may result from the fact that it has been invoked most often by French companies involved in litigation in the US to avoid answering discovery requests.

Without examining the specific facts at issue in each case, suffice it to say that the few French cases on point make it clear that French law imposes a requirement that all requests to gather evidence in France for use in a foreign proceeding be issued under the Hague Evidence Convention, under another applicable international agreement or (for those requests emanating from countries that are not parties to a judicial cooperation treaty with France) the traditional letters rogatory route. If one of these methods is not applied, then the blocking statute will stand as an impediment to the production of any requested evidence falling within its scope (See note 6).

In the Trafigura case, the judge made of point of noting that "Article 1 bis of the Law of July 26 1968 [the blocking statute] specifies that the prohibition on transfer [of information] was enacted subject to any international treaties that set up international cooperation between judges relating to the production of evidence," that "the Hague Convention constitutes a common legal instrument that is binding on the judges of both [France and the US]," that "its application would have allowed the French judge to exercise a check as to the legality, with regard to French public policy, of the discovery requirement in question" and that "by not employing this Convention, the American judge forced the French judge to become involved in the proceedings." The French judge then held that the order of a New York federal district judge addressed to BNP Paribas to produce certain documents violated French laws relating to banking secrecy and the blocking statute, and that it was thus contrary to French economic and financial public policy.

Also noteworthy is the French Supreme Court's December 2007 decision in the Christopher X matter, in which the court affirmed a criminal sanction of €10,000 assessed against a French attorney for violation of the blocking statute (article 1 bis). That attorney was found to have undertaken certain preliminary measures aimed at obtaining evidence of an economic, commercial or financial nature without proceeding in conformity with the terms of the Hague Convention. The case apparently represents the first time that sanctions were effectively imposed under the blocking statute, and it finally lays to rest the question of whether the statute would ever receive concrete application.

At the same time, French courts tend to require that discovery measures undertaken abroad in connection with proceedings pending in France be conducted pursuant to the applicable international convention (See note 7).

Some concluding thoughts

In the not-too-distant past it was common for French and American counsel to ignore the Convention altogether and simply set up depositions in France without any specific authorisation (except, occasionally, an order from the US judge allowing the deposition of a particular witness to proceed). Perhaps this former attitude can be explained by a confusion resulting from the fact the US, unlike most other Hague contracting states, does not require that permission be obtained to take the deposition of voluntary witnesses located there for use in foreign proceedings (the US having declared that evidence can be taken in its territory under Convention Articles 16 and 17 without permission). This view may have existed also because, until recently, the blocking statute was deemed by many to be something of a dead letter and because earlier French case law mentioning the Hague Convention was infrequent and less emphatic in its language.

The relatively recent French cases affirming the mandatory nature of the Hague Evidence Convention, including one upholding application of the blocking statute's criminal sanctions, have now resulted in reconsideration among French lawyers about how to go about assisting their American colleagues in collecting evidence on French soil for use in US court proceedings. In the short term, an up-tick in the use of the Convention is possible, and probably even likely, though time and practice will confirm whether such reconsideration of resort to the Convention is a durable phenomenon.

American litigators no doubt continue to harbour misgivings about using the Convention. The concern most often voiced is the additional time that its use requires. Short discovery timeframes set by optimistic judges seeking to optimise management over their burgeoning dockets, coupled with the reality that it is often not until near the discovery cut-off that a party learns (through other recently obtained discovery) that it desires to obtain documents or to examine a witness located abroad, complicate the situation.

Of course, in an ideal world a litigator would systematically launch any Hague Convention requests (letters of request or motions for the appointment of a commissioner) toward the beginning of the discovery period. However, parties and judges should aim to be flexible in cases where such prescience proves impossible. In particular, courts should not routinely decline to apply the Hague Convention simply based on the assumption that the process might be lengthy or that it may eventually cause a conflict with other dates scheduled in the proceedings (such as the close of discovery or a scheduled trial date) (See note 8). Further, parties and judges alike may wish to more readily concede that obtaining evidence abroad by its nature necessarily implicates some degree of foreign sovereign interests, the importance of which will vary from case to case. Inasmuch as situations in which discovery is sought abroad remain the exception rather than the rule in US litigation, courts and parties might rightly conclude that it is not unreasonable to accept especial flexibility in fixing, and accepting modification of, discovery cut-offs and trial settings in such cases, if doing so ensures that a party is afforded an adequate opportunity to obtain relevant information located abroad. Any such accommodation could, naturally, be made subject to the proviso that the parties act diligently to obtain that information and that the foreign judicial apparatus (including both the designated Hague Convention "authorities" and any designated executing judge) appear to be functioning normally and efficiently.

This said, from a review of a certain number of the US cases, one might wonder whether the stigma of delay that has become associated with the Hague Evidence Convention is nothing more than a self-perpetuating urban legend. Indeed, it sometimes appears that the idea that the Convention's application will ineluctably lead to perfectly unacceptable delay is endorsed by courts without requiring any credible support for the proposition. This presumption stands in contrast to some of the author's own essentially painless experiences in France under both Chapter I and II.

Finally, there remains the question of how far one goes in applying the Convention. Few would doubt that if the Convention is going to be applied in the context of evidence gathering activities in a particular case, then it should apply to requests to depose a witness abroad or to a request for the production of documents located abroad (particularly, and least controversially, those in the possession, custody or control of a non-party).

But what about borderline cases? Some have cast doubt on the need to proceed – or even the need to consider proceeding – under the Convention in obtaining documents held abroad by a party to the lawsuit when that party is already subject to the exercise of jurisdiction by the American court; however, the Convention itself does not distinguish between evidence held by parties and that held by non-parties or otherwise prescribe differential treatment.

And other cases at the margin likewise present debatable issues. What of a willing non-French individual living in France that wishes to sign a witness statement or affidavit? Or perhaps even less invasively, what about the company based in France that agrees to sign a short affidavit that does nothing other than to attest to the authenticity of documents that have already been produced during discovery in the US (to permit such documents to be used as evidence)? In these two cases, one might argue, on the one hand, that resorting to the Convention reflects an excess of zeal. Yet, on the other hand, these less intrusive examples no less constitute the taking of evidence abroad than does a deposition or the production of documents in response to document requests. Numerous other examples no doubt abound. With renewed interest in the Convention in France, we can look forward to a reinvigorated debate on these questions.

Notes

Note 1:

Ct. App. (Paris), No. 2002/18509, Sept. 18, 2003 (Lacharrière v. Commissaire aux Assurances de l'Etat de Californie); see also Trib. de Grande Instance (Paris), No. 08/110, Dec. 10, 2008 (rejecting objections raised by a pharmaceutical company in response to letter of request addressed to it in a patent infringement case). Regarding Convention Chapter II generally, see Nathalie Meyer-Fabre, L'obtention des preuves à l'étranger, Travaux du Comité Français de Droit International Privé (Années 2002-2004), 199, 202-03.

Note 2:

Patrick J. Borchers, The Incredible Shrinking Hague Evidence Convention, 38 Tex. Int'l L.J. 73, 82-84 (2003); Valois of America, Inc. v. Risdon Corp., 183 F.R.D. 344 (D. Conn. 1997) (citing Perrier Bottled Water Lit., 138 F.R.D. 348 (D. Conn. 1991); Rich v. KIS Cal., Inc., 121 F.R.D. 254 (M.D.N.C. 1988); Doster v. Schenk, 141 F.R.D. 50 (M.D.N.C. 1991); Benton Graphics v. Uddeholm Corp., 118 F.R.D. 386 (D.N.J. 1987)); In re Aircrash Disaster Near Roselawn, Ind., 172 F.R.D. 295 (N.D. Ill. 1997).

Note 3:

See generally Hannah L. Buxbaum, Assessing Sovereign Interests in Cross-Border Discovery Disputes: Lessons from Aérospatiale, 38 Tex. Int'l L.J. 89 (2003); Strauss v. Lyonnais, 249 F.R.D. 429 (E.D.N.Y 2008); British Int'l Ins. Co. v. Seguros La Republica, S.A., 2000 WL 713057 (S.D.N.Y. 2000); First Am. Corp. v. Price Waterhouse LLP, 154 F.3d 16 (2d Cir. 1998); Alfadda v. Fenn, 149 F.R.D. 28 (S.D.N.Y. 1993); Minpeco v. Conticommodity Servs., Inc., 116 F.R.D. 517 (S.D.N.Y. 1987); Compagnie Française d'Assurance pour le Commerce Extérieur v. Phillips Petroleum Co., 105 F.R.D. 16 (S.D.N.Y. 1984).

Note 4:

Husa v. Laboratoires Servier S.A., 740 A.2d 1092 (N.J. Sup. Ct. App. Div. 1993); Vincent v. Ateliers de la Motobécane, S.A., 475 A.2d 686 (N.J. Sup. Ct. App. Div. 1984); Orlich v. Helm Bros. & Mercedes-Benz of North Am., Inc., 160 A.2d 135 (N.Y. App. Div. 1990); Faro Technologies, Inc. v. Romer, Inc., 2007 WL 496615 (M.D. Fla. 2007); Abbott Lab. v. Impax Lab., Inc., 2004 WL 1622223 (D. Del. 2004); Tulip Computers Int'l BV v. Dell Computer Corp., 254 F. Supp.2d 469 (D. Del. 2003); PKFinans Int'l Corp. v. IBJ Schroder Leasing Corp., 1996 WL 591213 (S.D.N.Y. 1996).

Note 5:

In re Global Power Equip. Grp., Inc., 418 B.R. 833 (Bankr. D. Del. 2009); Strauss v. Crédit Lyonnais, 249 F.R.D. 429 (E.D.N.Y. 2008); Bodner v. Paribas, 202 F.R.D. 370 (E.D.N.Y. 2000); Minpeco, S.A. v. Conticommodity Servs., Inc., 116 F.R.D. 517 (S.D.N.Y. 1987); Adidas Ltd. v. SS Seatrain Bennington, 1984 WL 423 (S.D.N.Y. 1984).

Note 6:

Cassation (Crim. Ch.), No. 07-83228, Dec. 12, 2007 (Christopher X.); Trib. de Commerce (Paris), No. 2005044060, June 21, 2005 (Trafigura Beheer v. BNP Paribas); Ct. App. (Versailles), May 16, 2001, aff'd on other grounds, Cassation (2d Civ. Ch.), No. 01-15633, Nov. 20, 2003 (Renault v. Broadhurst Investment Ltd.); Trib. de Grande Instance (Nanterre), No. 93-4436, Dec. 22, 1993 (Gemayel v. SOFRANTEM).

Note 7:

Cassation (1st Civ. Ch.), No. 77-10109, Feb. 22, 1978; Ct. App. (Douai), No. 2000-6131, Nov. 23, 2000 (Tevere Shipping Co. v. Total Raffinage Distribution). But cf. Ct. App. (Versailles), Apr. 9, 1993 (Luxguard v. SN Sitraco).

Note 8:

E.g., Miller v. Holzmann, 2006 WL 3093122 (D.D.C. 2006) ("I have no idea how long the process will take and it would be an abuse of discretion to refuse to grant the defendants' request [for issuance of a letter of request] because of a wild guess as to how long something in a foreign country will take. ... Speculation as to how long something will take does not provide a reason for not starting now.").


About the author

Thomas Bevilacqua is a partner in the Paris office of Winston & Strawn LLP who concentrates his practice in international litigation and arbitration matters. Mr. Bevilacqua has experience assisting with all aspects of institutional and ad hoc commercial arbitration, from commencement through enforcement, and has also acted as counsel in a number of large investor-state arbitration disputes. He also counsels clients on issues of both civil and common law and has a particular interest in matters of international practice and procedure. He writes and speaks regularly on these subjects. He is admitted to practice in France and the United States.

Contact information

Thomas Bevilacqua
Winston & Strawn

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