The Hague Evidence Convention and Discovery: A Serious Misunderstanding?

Abstract

Abstract The thesis of this article is that the controversy in the United States on the question whether use of the Hague Evidence Convention for discovery inter partes was mandatory in relation to foreign parties, or merely permissive, was based on a misconception. The Hague Evidence Convention was not intended to apply, and did not apply, at all to discovery inter partes. This argument was not raised in the Supreme Court. All of its members held that the Convention was not the exclusive means for taking discovery involving parties from countries which are signatories to the Convention. Five members held that there was no rule that first resort should be made to the Convention; instead, the court in such a case should balance the factors (including the sovereign interests involved and the effectiveness of resort to Convention procedures) in deciding whether resort should be had to the Convention.