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Exchange of Notes (November 29, 1928, February 8 and 28, and March 11, 1929) extending to Canada as from the 29th November, 1928, the Convention between the United Kingdom of Great Britain and Ireland and France respecting Legal Proceedings in Civil and Commercial Matters [1928] CATSer 10 (29 November 1928)

E101556 - CTS 1928 No.15

EXCHANGE OF NOTES (November 29, 1928, February 8 and 28, and March 11, 1929) EXTENDING TO CANADA AS FROM THE 29TH NOVEMBER, 1928, THE CONVENTION BETWEEN THE UNITED KINGDOM OF GREAT BRITAIN AND IRELAND AND FRANCE RESPECTING LEGAL PROCEEDINGS IN CIVIL AND COMMERCIAL MATTERS

I

The Canadian Minister to France, to the French Minister of Foreign Affairs

CANADIAN LEGATION

PARIS, November 29, 1928.

No. 29

The Minister of Foreign Affairs,
Palais d'Orsay,
Paris.

Your Excellency, I have the honour to inform you that His Majesty's Government in Canada desires the effects of the Convention signed in London on February 2nd, 1922, by the Plenipotentiaries of His Majesty the King of the United Kingdom of Great Britain and Ireland and His Excellency the President of the French Republic, respecting legal proceedings in civil and commercial matters, to be extended to Canada.

According to paragraph (b) of the Final Provisions, the said Convention may be applied to the Dominions by a simple notification.

This Convention may come into force between France and Canada from to-day's date, the present communication taking the place of a notification.

The Canadian authorities to whom judicial and extrajudicial acts and "commissions rogatoires" are to be transmitted are the Attorney-General of any of the Provinces; the Commissioner of the North-West Territories; the Gold Commissioner of the Yukon Territory.

The language in which communications and translations are to be made will be English, except for the Province of Quebec, where either French or English may be used.

I have the honour to be, etc.,

Philippe Roy,

Canadian Minister

II

The French Minister of Foreign Affairs, to the Canadian Minister to France

FRENCH REPUBLIC

Paris, February 8, 1929.

Ministry of Foreign Affairs,
Department of Administrative and Technical Affairs,
Sub-Department of Chancelleries and Litigious Affairs.

Monsieur le Ministre, I reply to your note of November 29 last and your subsequent communications, informing me of the desire of His Majesty's Government in Canada that the effects of the Convention of February 2, 1922, on civil proceedings should be extended to that country, I have the honour to state that the French Government, which has been informed of this notification, regards the said Convention as entering into force between France and Canada as from the date of this letter.

In notifying this accession to my colleague the Minister of Justice, I am informing him of the desire expressed by the Governments of the Provinces of Ontario, Manitoba, Nova Scotia, Alberta and the Yukon Territory that "commissions rogatoires" should comprise a complete and detailed list of the questions which must be included in the interrogatory. I am also informing him that "commissions rogatoires" must be accompanied by a translation into English, except for the Province of Quebec, where such a translation is not necessary.

I have the honour to be, etc.,

For the Minister of Foreign Affairs, and by delegation,

Berthelot,
Secretary-General, Ambassador of France.

III

The Canadian Minister to France, to the French Minister of Foreign Affairs

Paris, February 28, 1929.

No. 27.

The Minister of Foreign Affairs,
Department of Administrative and Technical Affairs,
Sub-Department of Chancelleries and Litigious Affairs, Palais d'Orsay,
Paris.

Your Excellency, - With reference to your letter of February 8 and to our previous correspondence on the application to Canada of the Franco-British Convention of February 2nd, 1922, I have the Honour to inform you that the Canadian Government regards the date November 29, 1928, as that of the entry into force of the said Convention between Canada and France.

Under paragraph (b) of the Final Provisions of the above-mentioned Convention, "either High Contracting Party may at any time by a simple notification extend it to any of its "Dominions, Colonies, Possessions or Protectorates .... Such notification shall state the date on which the Convention shall come into force".

By my communication of November 29, 1928, I had the Honour to inform you of the desire of His Majesty's Government in Canada to have the effects of the Convention extended to Canada, and to propose its entry into force as from the date of my communication, which was to take the place of a notification.

In your letter of February 8, 1929, you were good enough to inform me "that the said Convention would come into force between France and Canada as from the date of this letter," i.e., that of February 8, 1929.

In view of the actual terms of the Franco-British Convention, to which I have referred above, the Canadian Government requests me to express to you the hope that the French Government will agree to regard the date November 29, 1928, as that of notification, whereby the entry into force of the Convention will count from that date.

I have the honour to be, etc.

Philippe Roy,

Canadian Minister.

IV

The French Minister of Foreign Affairs, to the Canadian Minister to France

FRENCH REPUBLIC

Ministry of Foreign Affairs, Department of Administrative and Technical Affairs.

Sub-Department of Chancelleries and Litigious Affairs

Paris, March 11, 1929.

M. Philippe Roy,
Canadian Minister,
Paris.

Civil Proceedings

Monsieur le Ministre, In reply to your letter of the 28th of last month regarding the application to Canada of the Franco-British Contention of February 2, 1922, on civil proceedings, I have the honour to inform you that, as you point out, the date November 29, 1928, should be regarded as that of the entry into force of this diplomatic act between Canada and France.

I have the honour to be. etc., For the Minister of Foreign Affairs and by delegation,

Berthelot,
Secretary-General,
Ambassador of France.

CONVENTION BETWEEN THE UNITED KINGDOM AND FRANCE RESPECTING LEGAL PROCEEDINGS IN CIVIL AND COMMERCIAL MATTERS

Signed at London, February 2, 1922

(Ratifications exchanged at London, May 2, 1922)

His Majesty the King of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas, Emperor of India, and the President of the French Republic being desirous to facilitate the conduct of legal proceedings between persons resident in their respective territories, have decided to conclude a Convention for this purpose and have accordingly nominated as their Plenipotentiaries:

His Majesty the King of the United Kingdom of Great Britain and Ireland and of the British Dominions beyond the Seas, Emperor of India: the Most Honourable the Marquess Curzon of Kedleston, K.G., His Majesty's Principal Secretary of State for Foreign Affairs;

The President of the French Republic: His Excellency Count de Saint-Aulaire, Ambassador Extraordinary and Plenipotentiary of the French Republic in London;

Who, having communicated their full powers, found in good and due form, have agreed as follows: -

ARTICLE 1

This Convention applies only to civil and commercial matters.

TRANSMISSION OF JUDICIAL AND EXTRA-JUDICIAL DOCUMENTS

ARTICLE 2

In cases where the law of one of the High Contracting Parties permits documents to be served in the territory of the other, such service may be effected in either of the following ways indicated in Articles 3 and 4.

ARTICLE 3

(a) The request for service is addressed:

In France, by the British Consul to the "Procureur de la République" within whose jurisdiction the recipient of the document is;

In England, by the Consul-General of France in London to the Senior Master of the Supreme Court of Judicature in England.

(b) The request is drawn up in the language of the authority applied to. It contains the name or the authority from whom the document enclosed emanates, the names and descriptions of the parties, and the address of the recipient. It is accompanied by the original and two copies of the document in question in the language of the State making the request, and by a translation certified by the consular authority of that State, and a copy of such translation.

(c) The service is effected by the delivery of the original or a copy of the document, as indicated in the request, and the copy of the translation, to the recipient in person, in England, by a process server; in France, by a "huissier" appointed by the "Procureur de la République".

(d) The judicial authority applied to transmits to the consular authority making the request a certificate establishing the fact and the date of the service in person, or indicating the reasons for which it has not been possible to effect it.

(e) When the document transmitted to the "Procureur de la République" is intended for a person resident in another jurisdiction, this magistrate will immediately notify the consular authority making the request, and will, of his own motion, transmit the document to the "Procureur de la République" who is competent.

(f) No State fees of any nature whatever shall be charged in respect of the service. Nevertheless, the State making the request must repay to the State applied to any charges which are payable under the local law to the persons employed to effect service. These charges are calculated in accordance with the tariff in force in the State applied to Repayment of these charges is claimed by the judicial authority applied to from the consular authority making the request when transmitting the certificate provided for in paragraph (d).

(g) The execution of a request for service can only be refused if the State in whose territory it is to be effected considers it such as to compromise its sovereignty or safety.

(h) Any difficulties which may arise in respect of the request shall be settled through the diplomatic channel.

ARTICLE 4

The service of judicial or extrajudicial documents may also be made directly and without the application of any compulsion through the medium and under the responsibility of the consular authority of each of the High Contracting Powers in the territory of the other.

"COMMISSIONS ROGATOIRES"

ARTICLE 5

Evidence which is required for use in one of the contracting countries is taken in the territory of the other, at the request of the party interested, in one of the ways indicated in Articles 6, 7 and (where applicable) 8.

ARTICLE 6

(a) The competent judicial authority of one of the parties addresses itself by means of a "commission rogatoire" to the competent judicial authority of the other State, requesting it to take the evidence of witnesses within its jurisdiction in legal form.

(b) The "commission rogatorie" is transmitted

In England, by the Consul-General of France in London to the Senior Master of the Supreme Court of Judicature in England;

In France, by the British Consul to the "Procureur de la République" within whose jurisdiction the "commission rogatoire" is to be executed.

(c) The "commission rogatoire" is drawn up in the language of the authority making the request and accompanied by a translation in the language of the authority applied to.

(d) The judicial authority to whom the "commission rogatoire" is addressed executes it by the use of the same compulsory measures as would be applied in the case of a commission emanating from the authorities of the State applied to or of a request to that effect made by an interested party in the territory of that State.

(e) The authority making the request, is, if it so desires, informed of the date and place where the proceedings asked for will take place, in order that the interested party may be able to be present either in person or by his representative.

(f) The execution of a "commission rogatoire" can only be refused -

1. If the authenticity of the document is not established;

2. If the State within whose territory the execution was to have taken place considers it such as to affect its sovereignty or safety.

(g) In case the authority applied to is without jurisdiction, the "commission rogatoire" is forwarded without any further request to the competent authority of the same State, in accordance with the rules laid down by the law of the latter.

(h) In every instance in which the "commission rogatoire" is not executed by the authority applied to, the latter at once informs the authority making the request, stating the grounds on which the execution of the "commission rogatoire" has been refused, and in the event of the authority being without jurisdiction, the authority to whom the commission has been forwarded.

(i) The judicial authority proceeding to the execution of a "commission rogatoire" applies, so far as the procedure to be followed is concerned, the law of its own country.

Nevertheless, an application by the authority making the request that some special procedure may be followed shall be acceded to, provided such procedure be not contrary to the law of the State applied to.

(j) No State fees of any nature shall be levied in respect of the execution of the "commission rogatoire".

Nevertheless, the State making the request repays to the State applied to the charges and expenses payable to witnesses or experts, the costs of obtaining the attendance of witnesses who have not appeared voluntarily, and finally, the charges payable to any person whom the competent judicial authority may have deputed to act in cases where the local law permits this to be done.

The repayment of these expenses is claimed by the authority applied to from the authority making the request when transmitting to it the documents establishing the execution of the "commission rogatoire." These charges are calculated in accordance with the tariff in force in the State applied to.

(k) Any difficulties which may arise in respect of the transmission of the "commission rogatoire" are settled through the diplomatic channel.

ARTICLE 7

(a) The evidence may also be taken without the intervention of the local authority by the consular authority of the country before whose courts the evidence is to be used.

(b) The consular authority may invite the attendance of witnesses and the production of documents and administer an oath, but without exercising any compulsory powers.

(c) The consular authority takes the evidence in accordance with the laws of his own country. The parties have the right to be present or to be represented by any person who is competent to act before the tribunals of the consul's State.

ARTICLE 8

(a) If the law of the country applied to authorizes such procedure, the competent court of the State applied to may be requested to appoint a person to take the evidence. Such person may be a consular authority of the State making the request or any other person proposed by that State.

(b) In this case the court applied to takes the necessary steps to secure the attendance of witnesses and the production of documents, making use, if necessary, of its compulsory powers.

(c) The person thus nominated has the same power to administer an oath as a judge, and persons giving false evidence before him are liable in the courts of the State applied to the penalties provided by the law of that State for perjury.

(d) The evidence is taken in accordance with the law of the country in which it is to be used, and the parties have the right to be present in person or represented by any persons who are competent to act before the courts of that State.

ARTICLE 9

The fact that an attempt to take evidence under the procedure laid down in Article 7 has failed owing to a refusal of a witness to appear, give evidence or produce documents does not prevent an application being subsequently made to take the evidence in accordance with Article 8.

FINAL PROVISIONS

(a) The present Convention shall come into force two months after the date on which ratifications are exchanged and shall remain in force for three years after its coming into force. In case neither of the High Contracting Parties shall have given notice to the other six months before the expiration of the said period of its intention to terminate the Convention, it shall remain in force until the expiration of six months from the day on which either of the High Contracting Parties shall have given such notice.

(b) This Convention shall not apply to any of the Dominions, Colonies, Possessions or Protectorates of the two High Contracting Parties, but either High Contracting Party may at any time extend, by a simple notification, this Convention to any such Dominion, Colony, Possession or Protectorate.

Such notification shall state the date on which the Convention shall come into force, the authorities to whom judicial and extra-judicial acts and "commissions rogatoires" are to be transmitted, and the language in which communications and translations are to be made.

Each of the High Contracting Parties may, at any time after the expiry of three years from the coming into force of the extension of this Convention to any of its Dominions, Colonies, Possessions or Protectorates, terminate such extension on giving six months' previous notice.

(c) This Convention shall also not apply to Scotland or Ireland; but his Britannic Majesty shall have the right to extend the Convention to Scotland or Ireland on the conditions set forth in the preceding paragraph in respect of Dominions, Colonies, Possessions or Protectorates.

IN WITNESS WHEREOF the Undersigned have signed the present Convention and have affixed thereto their seals.

DONE in duplicate at London, the 2nd day of February, 1922.

Curzon of Kedleston

Saint-Aulaire