Exchange of Notes (December 21, 1928 and February 1st, 1929) extending to Canada as from the 21st December, 1928, the Convention between the United Kingdom and the Czechoslovak Republic relative to Legal Proceedings in Civil and Commercial Matters, signed at London the 11th November, 1924 [1928] CATSer 13 (21 December 1928)

EXCHANGE OF NOTES (December 21, 1928 and February 1st, 1929) EXTENDING TO CANADA AS FROM THE 21st DECEMBER, 1928, THE CONVENTION BETWEEN THE UNITED KINGDOM AND THE CZECHOSLOVAK REPUBLIC RELATIVE TO LEGAL PROCEEDINGS IN CIVIL AND COMMERCIAL MATTERS, SIGNED AT LONDON THE 11th NOVEMBER, 1924

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The British Secretary of State for Foreign Affairs, to the Czechoslovak Minister to Great Britain

I have the honour, at the request of His Majesty’s Government in Canada, to notify you that His Britannic Majesty desires, in accordance with article 14(2) of the Anglo-Czechoslovak Civil Procedure Convention of November 11, 1924, to extend the convention to that Dominion.

2. I have the honour to inform you that the authorities to whom judicial and extrajudicial acts and commissions rogatoires should be transmitted are, where action is to be taken in any Province in Canada, the Attorney General of such Province; in the North West Territories, the Commissioner of the North West Territories; and in the Yukon Territory, the Gold Commissioner of that territory. The language in which communications to such authorities and translations are to be made is English, except in the Province of Quebec where they may be made either in English or in French.

3. The Governments of the Provinces of Ontario, Manitoba, Nova Scotia, Alberta and of the Yukon Territory have intimated that to ensure their due execution commissions rogatoires to be executed in their territories should contain full and complete interrogatories.

4. In requesting that you will he so good as to acknowledge this communication on behalf of your Government, I have the honour to suggest that the exchange of notes thus constituted should be regarded as placing the matter on formal record, and that the extension of the terms of the convention to the Dominion of Canada should he considered as coming into force from the date of this note.

The Czechoslovak Minister to Great Britain. to the British Secretary of State for Foreign Affairs

With reference to your note No. T. 13943/13943/371 of the 21st December, 1928, relative to the extension of the Anglo-Czechoslovak Civil Procedure Convention of November 11, 1924, to the Dominion of Canada, I have the honour, on behalf of the Czechoslovak Government, to acknowledge this communication. It is understood that the extension of the terms of the above-named Convention to the Dominion of Canada has come into force from the 21st December, 1928.

CONVENTION BETWEEN THE UNITED KINGDOM AND THE CZECHOSLOVAK REPULBIC RELATIVE TO LEGAL PROCEEDINGS IN CIVIL AND COMMERICAL MATTRES.

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 Czechoslovak Republic, being desirous to facilitate in their respective territories legal proceedings in civil and commercial matters and also non-contentious matters, which are being dealt with by the courts or authorities of the other State, 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:

Sir William George Tyrrell, K.C.M.G., K.C.V.O., C.B., Assistant Under-Secretary of State for Foreign Affairs;

The President of the Czechoslovak Republic:

Dr. Emil Spira, Head of Department in the Ministry of Justice;

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

I - PRELIMINARY

ARTICLE 1

This convention applies only to civil and commercial matters and also to non-contentious matters, including trusteeship, guardianship, administration and probate, which are being dealt with by the courts or authorities of either State.

When judicial or extra-judicial documents drawn up in one of the contracting States are to be served in the territory of the other, such documents may, at the option of the party interested, be transmitted to the recipients in either of the ways provided in articles 3, 5 and 6.

(1) The request for service by the court or authority of the other State is addressed:

(2) The request, containing the name (if known) of the court or authority to whom the document is to be transmitted, and of the court or authority from whom the document transmitted emanates, the names and descriptions of the parties, the address of the recipient and the nature of the document in question, shall he drawn up in the State (official) language of the State applied to. The court or authority who receives the request shall send to the consular authority the documents proving the service or explaining the reason which has prevented such service.

If the court or authority to whom a document has been transmitted is not competent to deal with it, such court or authority will of its own motion transmit the document to the competent court or authority of its own State.

(3) Service shall be effected by the competent court or authority of the State applied to. Such court or authority, except in the cases provided for in paragraph (4) of this article, may limit its action to effecting service by the transmission of the document to the recipient if he is willing to accept it.

(4) If the document to be served is drawn up in the State (official) language of the State applied to, or is accompanied by a translation in such language, the court or authority applied to shall serve the document, in accordance with such wish as may be expressed in the request, either in the manner prescribed by its laws for the service of similar documents, or in a special form which is not incompatible with such law. Should such wish not be expressed, the court or authority applied to will endeavour to effect service as provided in paragraph (3).

The translation provided for in the preceding paragraph shall be certified as correct by a diplomatic or consular agent of the State making the request or by an official or sworn translator of one or other of the two States.

(5) The 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.

(6) Proof of service shall be furnished by a certificate from the court or authority of the State applied to, setting forth the fact, the manner and the date of such service.

The document to be served shall he forwarded in duplicate, and the certificate shall appear on one of the copies, or be attached to it.

No fees of any description shall be payable by one State to the other in respect of the service under article 3.

Nevertheless the State making the request must pay to the State applied to any charges which are payable under the local law to the persons employed to effect service, or which were incurred by effecting service in a special form. These charges are calculated in accordance with the tariff in force for nationals of the State applied to repayment of these charges will he claimed by the court or authority applied to from the court or authority which made the request, through the consular authority, when transmitting to the latter the certificate provided for in article 3 (6).

ARTICLE 5

The document to be served may also be delivered to the recipient, whatever his nationality, in person, without the intervention of the courts or authorities of the State in whose territory service is to be effected:

(a) By the diplomatic or consular agents of the State making the request; or

(b) As far as this is not opposed to the law of the State making the request, by a solicitor (advokát) or notary of the other State appointed by the courts or authorities of the State making the request, or by the party on whose application the document was issued, either generally or in any particular case.

In order that the document may be served in accordance with this article, it must be drawn up in the State (official) language of the State in whose territory service is to be effected, or must be accompanied by a translation in such language, unless the recipient is a national of the State making the request.

ARTICLE 6

Service of documents may also be effected by post in cases where this method is permitted by the law of the State in which the document is issued.

III - TAKING OF EVIDENCE

ARTICLE 7

When a court or authority in one of the contracting States orders that evidence is to be taken in the territory of the other State, this may be done in any one of the ways prescribed in articles 8, 10 and 11.

(1) The court or authority of one contracting State may, in accordance with the provisions of its law, address itself by means of a “commission rogatoire” to the competent court or authority of the other contracting State, requesting it to take the evidence within its jurisdiction.

(2) The “commission rogatoire” shall be drawn up in the State (official) language of the State applied to, or be accompanied by a translation in such language, certified as correct by a diplomatic or consular officer of the Stats making the request, or by an official or sworn translator of one of the two States. If it is not accompanied by such a translation, one may be made by the State applied to if the other State so requests.

(4) It shall be incumbent upon the court or authority to whom the “commission rogatoire” is addressed to give affect to it, if necessary, by the use of the same compulsory measures as in the execution of a commission emanating from the courts or authorities of its own State.

(5) The consular authority of the State making the request will, if he so desires, be informed of the date and place when and where the proceedings will take place, in order that the interested parties may be able to be present.

(7) In case the court or authority applied to is not competent, the “commission rogatoire” will be forwarded without any further request to the competent court or authority of the State applied to.

(8) In every instance where the “commission rogatoire” is not executed by the court or authority applied to, the latter will at once inform the consular authority of the State making the request, stating the grounds on which the execution of the commission has been refused or has proved impossible, or the court or authority to whom the commission has been forwarded.

(9) The court or authority which executes the “commission rogatoire” will apply, so far as the procedure to be followed is concerned, the law of its own country.

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

No fees of any description shall be demanded by the courts or authorities of one State from the other in respect of the execution of “commission rogatoires.”

Nevertheless, the State making the request shall repay to the State applied to any charges and expenses payable to witnesses, experts, interpreters, or translators, the costs of obtaining the attendance of witnesses who have not appeared voluntarily, expenses incurred by the adoption of a special procedure in accordance with article 8 (9), and the charges payable to any person whom the court or authority applied to may have deputed to art in cases where its law permits this to be done.

(1) Further, without the intervention of the courts or authorities of the State in whose territory the evidence is to be taken, this may be done by a consular agent of the other State.

(2) The agent referred to in paragraph (1) may request the parties or any other individual to appear as a witness, or to give expert evidence, or to produce any document or proof, and he may administer the oath to the parties, witnesses, or experts, but he has no compulsory powers.

(3) Summonses to appear issued in accordance with paragraph (2) must he drawn up in the State (official) language of the State where tire evidence is to be taken or accompanied by a translation into such language, unless the recipient is a national of the State making the request.

(4) The evidence may be taken in accordance with the procedure laid down by the law of the State in which the evidence is to he used, and the parties will have the right to be represented by barristers or solicitors of that State.

(1) The competent court or authority of the State applied to may also itself be requested to cause the evidence to be taken by a consular agent of the State making the request.

(2) In this case the court or authority applied to will take the necessary steps to secure the attendance of the parties, witnesses or experts and the production of documents or proofs, making use, if necessary. of the compulsory powers to which it is entitled.

(3) The agent referred to in paragraph (1) may administer the oath to any party, witness or expert who is willing to take it.

(4) The provisions of article 10 (4) are also applicable to proceedings under this article.

The fact that an attempt to take evidence by the method laid down in article 10 has failed owing to the refusal of any parties, witnesses or experts to appear or to give evidence, or to produce documents or proofs, does not preclude an application being subsequently made in accordance with articles 8 or 11.

Any difficulties which may arise in connection with the operation of this convention shall be settled through the diplomatic channel.

(1) The present convention, of which the English and Czechoslovak texts are equally authentic, shall come into force three 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 his 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.

(2) This convention shall not apply to Scotland or Northern Ireland, nor to any of the dominions, colonies, possessions or protectorates of His Britannic Majesty, but His Britannic Majesty may at any time extend, by a simple notification, this convention to Scotland, Northern Ireland, or any such dominion, colony, possession or protectorate.

Such notification shall state the date on which such extension 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 to the authorities of the territory concerned and translations are to be made.

Either 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 Scotland, Northern Ireland or any of His Britannic Majesty's dominions, colonies, possessions or protectorates, terminate such extension on giving six months' previous notice.

(3) The preceding stipulations relating to the extension of this convention to Scotland or Northern Ireland, or to any of the dominions, colonies, possessions or protectorates of His Britannic Majesty, shall also apply to any territory in respect of which a mandate on behalf of the League of Nations has been accepted by His Britannic Majesty.

IN FAITH WHEREOF the undersigned have signed the present convention and have affixed thereto their seals.

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