Exchange of Notes (May 17, July 1st and 16, 1935) extending to Canada as from the 1st August, 1935, the Convention between His Majesty, in respect of the United Kingdom, and the President of the Portuguese Republic regarding Legal Proceedings in Civil and Commercial Matters [1935] CATSer 5 (1 August 1935)

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EXCHANGE OF NOTES (May 17, July 1^st and 16, 1935) EXTENDING TO CANADA AS FROM THE 1^st AUGUST, 1935, THE CONVENTION BETWEEN HIS MAJESTY, IN RESPECT OF THE UNITED KINGDOM, AND THE PRESIDENT OF THE PORTUGUESE REPUBLIC REGARDING LEGAL PROCEEDINGS IN CIVIL AND COMMERCIAL MATTERS

The Secretary of State for External Affairs of Canada to the Secretary of State for Dominion Affairs

I have the honour to invite your attention to the Civil Procedure Conventions which have been concluded with Spain, Sweden, Norway, Poland, Italy, Austria, Portugal, Turkey and Germany, all of which have been signed and only ratified. I have the honour to state that His Majesty’s Government in Canada desire that, in accordance with the stipulations therein contained, these Conventions shall he extended to Canada by notification to the representative Governments. Such extension might well come into force from the date of ratification, or from a fixed date. In the latter event, it would be most convenient if the date could be the same in respect to all of the Conventions, and I venture to suggest that the 1st August of this year would be a satisfactory and, presumably, a practicable date. The question of dates will, of course, depend upon the circumstances but, if feasible, a uniform date would be preferable.

The authorities to whom judicial and extra-judicial Acts and Commissions Rogatoires are to be transmitted, will be, 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 Yukon Territory, the Gold Commissioner of that Territory. The language in which communications to such authorities and translations are to be made will be English, except in the Province of Quebec, where they may be made either in English or in French. In order to insure due execution, Commissions Rogatoires should contain full and complete interrogatories.

I shall be obliged, therefore, if steps will be taken to make the necessary notifications to the representative Governments.

The British Ambassador at Lisbon to the Minister for Foreign Affairs of Portugal

At the instance of His Majesty’s Government in Canada I have the honour to notify Your Excellency, in accordance with Article 16 (a) of the Convention regarding legal proceedings in civil and commercial matters, which was signed at London on the 9th July, 1931, the accession of His Majesty to that convention in respect of the Dominion of Canada.

The attached list indicates the authority in the various Provinces of Canada to whom request for service or for the taking of evidence should be transmitted, and the language in which communications and translations are to be made.

In accordance with Article 16 (a) of the convention, the accession now notified will come into force one month from the date of this note, that is to say, on the 1st August next.

In requesting that Your Excellency will be so good as to acknowledge the receipt of this communication, I avail myself of this opportunity to renew to Your Excellency the assurances of my highest consideration.

PROVINCE OR TERRITORY	AUTHORITY	LANGUAGE
Ontario	Attorneyv General	English
Quebec	Attorney General	English or French
Nova Scotia	Attorney General	English
Prince Edward Island	Attorney General	English
New Brunswick	Attorney General	English
British Columbia	Attorney General	English
Manitoba	Attorney General	English
Saskatchewan	Attorney General	English
Alberta	Attorney General	English
North West Territories	Commissioner of the North West Territories	English
Yukon Territory	The Gold Commissioner of the Yukon Territory	English

From the Minister of Foreign Affairs of Portugal to the British Ambassador at Lisbon

I have the honour to acknowledge the receipt of Your Excellency’s note No. 111 (149/6) of the 1st instant in which you were good enough to inform me, in accordance with the terms of Article 16 (a) of the Convention regarding proceedings in civil and commercial matters signed in London on the 9th July, 1931, of the accession of His Britannic Majesty to that Convention in respect of the Dominion of Canada.

In informing Your Excellency that the competent authorities have taken due note of this communication, I avail myself of the opportunity to renew to Your Excellency the assurances of my highest consideration.

CONVENTION BETWEEN HIS MAJESTY, IN RESPECT OF THE UNITED KINGDOM, AND THE PRESIDENT OF THE PORTUGUESE REPUBLIC REGARDING LEGAL PROCEEDINGS IN CIVIL AND COMMERCIAL MATTERS

His Majesty the King of Great Britain, Ireland and the British Dominions beyond the Seas, Emperor of India, and the President of the Portuguese Republic,

Being desirous to render mutual assistance in the conduct of legal proceedings, in their respective territories, in civil and commercial matters which are being dealt with or which it is anticipated may be dealt with by their respective judicial authorities;

Have resolved to conclude a Convention for this purpose and have appointed as their Plenipotentiaries:

His Majesty the King of Great Britain, Ireland and the British Dominions beyond the Seas, Emperor of India:

The Right Honourable Arthur Henderson, M.P., His Majesty’s Principal Secretary of State for Foreign Affairs; and

His Excellency General Thomas Antonio Garcia Rosado, Ambassador Extraordinary and Plenipotentiary of the Portuguese Republic in London;

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

(a) This Convention applies only to civil and commercial matters, including non-contentious matters.

When judicial or extra-judicial documents drawn up in the territory of one of the High Contracting Parties are required by a judicial authority situated therein to be served on persons in the territory of the other High Contracting Party, such documents may be served on the recipient, whatever his nationality, in the manner provided in Article 3.

(a) A request for service shall be addressed by a Consular Officer of the High Contracting Party from whose territory the document to be served emanates to the competent authority of the country where the document is to be served, requesting such authority to cause the document to be served. The request shall be sent by such Consular Officer to such authority.

(b) The request for service shall be drawn up in the language of the country where service is to be effected. The request for service shall state the names and descriptions of the parties, the name, description and address of the recipient, and the nature of the document to be served, and shall enclose the document to be served in duplicate.

(c) The document to be served shall either be drawn up in the language of the country in which it is to be served, or be accompanied by a translation in such language. Such translation shall be certified as correct by a Consular Officer of the High Contracting Party from whose territory the document emanates.

If the authority to whom a request for service has been sent is not competent to execute it, such authority shall of his own motion transmit the document to the competent authority of his own country.

(e) Service shall be effected by the competent authority of the country where the document is to be served, who shall serve the document in the manner prescribed by the municipal law of such country for the service of similar documents, except that, if a wish for some special manner of service is expressed in the request for service, such manner of service shall be followed in so far as it is not incompatible with the law of that country.

(f) The execution of the request for service duly made in accordance with the preceding provisions of this Article shall not be refused unless:

(g) The authority by whom the request for service is executed shall furnish a certificate proving the service or explaining the reason which has prevented such service, and setting forth the fact, the manner and the date of such service or attempted service, and shall send the said certificate to the Consular Officer by whom the request for service was made. The certificate of service or of attempted service shall be placed on one of the duplicates or attached thereto.

(a) The provisions of Articles 2 and 3 in no way prejudice the right to use in the territory of either High Contracting Party, without any request to or intervention of the authorities of the country where service is to be effected, any of the following methods of service in connection with judicial or extra-judicial documents drawn up in the territory of the other High Contracting Party:

(b) The methods of service referred to in (1) and (2) of paragraph (a) of this Article may not be used for service on persons, who are subjects or citizens of the High Contracting Party, in whose territory the documents are to be served, unless such persons are willing to accept service; and, when these methods of service are employed, the documents to be served shall, unless the recipient is a subject or citizen of the High Contracting Party from whose territory the document to be served emanates, either be drawn up in the language of the country in which service is to he effected or accompanied by a translation into such language certified as correct as prescribed in Article 3 (c).

(c) It is understood that the validity of any service effected by the use of any of the methods referred to in paragraph (a) of this Article will remain a matter for the determination of the respective Courts of the High Contracting Parties in accordance with their law.

(a) In any case where documents have been served in accordance with the provisions of Article 3, the High Contracting Party, by whose Consular Officer the request for service was addressed, shall pay to the other High Contracting Party any charges and expenses which are payable under the law of the country where the service is effected to the persons employed to effect service, and any charges and expenses incurred in effecting service in a special manner. These charges and expenses shall not exceed such as are usually allowed in the Courts of that country.

(b) Repayment of these charges and expenses shall be claimed by the competent authority by whom the service has been effected from the Consular Officer by whom the request was addressed when sending to him the certificate provided for in Article 3 (g).

(c) Except as provided above, no fees of any description shall be payable by one High Contracting Party to the other in respect of the service of any documents.

(a) When a judicial authority in the territory of one of the High Contracting Parties requires that evidence should be taken in the territory of the other High Contracting Party, such evidence may be taken in any of the ways prescribed in Articles 7 and 8.

(a) The judicial authority by whom the evidence is required may, in accordance with the provisions of his law, address himself by means of “Letters of Request” to the competent authority of the country where the evidence is to be taken, requesting such authority to take the evidence.

(b) The “Letter of Request” shall be drawn up in the language of the country where the evidence is to be taken, or be accompanied by a translation in such language. Such translation shall be certified as correct by a Consular Officer of the High Contracting Party from whose judicial authority the request emanates. The "Letters of Request" shall state the nature of the proceedings for which the evidence is required, giving all necessary information in regard thereto, the names and descriptions of the parties thereto, and the names, descriptions and addresses of the witnesses. They shall also either be accompanied by a list of interrogatories to be put to the witness or witnesses, or as the case may be, by a description of the documents, samples or other objects to be produced, identified or examined, and a translation thereof certified as correct in the manner heretofore provided or shall request the competent authority to allow such questions to be asked viva voca as the parties or their representatives shall desire to ask.

In case the authority to whom “Letters of Request” are transmitted is not competent to execute them, the "Letters of Request" shall be forwarded without any further request to the competent authority of his own country.

(d) The competent authority to whom the “Letters of Request” are transmitted or forwarded shall give effect thereto and obtain the evidence required by the use of the same compulsory measures and the same procedure as are employed in the execution of a commission or order emanating from the authorities of his own country, except that, if a wish that some special procedure should be followed is expressed in the “Letters of Request” such special procedure shall be followed in so far as it is not incompatible with the law of the country where the evidence is to be taken.

(e) The Consular Officer, by whom the “Letters of Request” are transmitted, shall, if he so desires, be informed of the date and place where the proceedings will take place, in order that he may inform the interested party or parties who shall be permitted to be present in person or to be represented if they so desire.

(f) The execution of “Letters of Request” which comply with the preceding provisions of this Article can only be refused -

(g) In every instance where the “Letters of Request” are not executed by the authority to whom they are addressed, the latter will at once inform the Consular Officer by whom they were transmitted, stating the grounds on which the execution of the “Letters of Request” has been refused, or the judicial authority to whom they have been forwarded.

(a) The evidence may also be taken, without any request to or the intervention of the authorities of the country in which it is to be taken, by a person in that country directly appointed for the purpose by the court by whom the evidence is required. A Consular Officer of the High Contracting Party whose court requires the evidence or any other suitable person may be so appointed.

(b) A person so appointed to take evidence may request the individuals named by the court appointing him to appear before him and give evidence. He may take all kinds of evidence which are not contrary to the law of the country where the evidence is being taken and shall have power to administer an oath.

(c) Requests to appear issued by such person shall, unless the recipient is a subject or citizen of the High Contracting Party for whose judicial authority the evidence is required, be drawn up in the language of the country where the evidence is to be taken, or be accompanied by a translation into such language.

(d) The evidence may be taken in accordance with the procedure recognized by the law of the country for whose judicial authority the evidence is required, and the parties will have the right to be present or to be represented by barristers or solicitors of that country or by any persons competent to appear before the courts of either of the countries concerned.

(e) It is understood that where the method of taking evidence referred to in this Article is employed, the procedure must be entirely voluntary and no measures of compulsion can be employed and the admissibility of evidence so taken remains a matter for the determination of the respective courts of the High Contracting Parties in accordance with their law.

The fact that an attempt to take evidence by the method laid down in Article 8 has failed owing to the refusal of any witness to appear or to give evidence, does not preclude a request being subsequently made in accordance with Article 7.

(a) Where evidence is taken in the manner provided in Article 7, the High Contracting Party, by whose judicial authority the “Letters of Request” are addressed, shall repay to the other High Contracting Party any expenses incurred by the competent authority of the latter in the execution of the request in respect of any charges and expenses payable to witnesses, experts, interpreters, or translators, the costs of obtaining the attendance of witnesses who have not appeared voluntarily, and the charges and expenses payable to any person whom such authority may have deputed to act in cases where the law of his own country permits this to be done, and any charges and expenses incurred by reason of a special procedure being requested and followed. These expenses shall be such as are usually allowed in similar cases in the courts of the country where the evidence has been taken.

(b) The repayment of these expenses shall be claimed by the competent authority by whom the “Letters of Request” have been executed from the Consular Officer by whom they were transmitted when sending to him the documents establishing their execution.

(c) Except as above provided, no fees of any description shall be payable by one High Contracting Party to the other in respect of the taking of evidence.

IV - JUDICIAL ASSISTANCE FOR POOR PERSONS, IMPRISONMENT FOR DEBT AND SECURITY FOR COSTS

The subjects or citizens of one High Contracting Party shall enjoy in the territory of the other High Contracting Party a perfect equality of treatment with subjects or citizens of that High Contracting Party as regards free judicial assistance for poor persons and imprisonment for debt; and, provided that they are resident in any such territory, shall not be compelled to give security for costs in any case where a subject or citizen of such other High Contracting Party would not be so compelled.

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

The present Convention, of which the English and Portuguese texts are equally authentic, shall be subject to ratification. Ratifications shall be exchanged in Lisbon.

The Convention shall come into force one month after the date on which ratifications are exchanged and shall remain in force for three years after the date of its coming into force.

If neither of the High Contracting Parties shall have given notice through the diplomatic channel to the other not less than six months before the expiration of the said period of three years 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 notice to terminate it.

(a) This Convention shall not apply ipso facto to Scotland or Northern Ireland, nor to any of the Colonies or Protectorates of His Majesty the King of Great Britain, Ireland and the British Dominions beyond the Seas, Emperor of India, nor to any territories under His suzerainty, nor to any mandated territories administered by His Government in the United Kingdom, but His Majesty may at any time, while the Convention is in force, under Article 13, by a notification given through His Ambassador at Lisbon, extend the operation of this Convention to any of the above-mentioned territories.

(b) Such notification shall state the authorities in the territory concerned to whom requests for service or for the taking of evidence are to be transmitted, and the language in which communications and translations are to be made.

The date of the coming into force of any such extension shall be one month from the date of such notification.

(c) Either of the High Contracting Parties may, at any time after the expiry of three years from the coming into force of an extension of this Convention to any of the territories referred to in paragraph (a) of this Article, terminate such extension on giving six months’ notice of termination through the diplomatic channel.

(d) The termination of the Convention under Article 13 shall, unless otherwise expressly agreed to by both High Contracting Parties, ipso facto terminate it in respect of any territories to which it has been extended under paragraph (a) of this Article.

(a) This Convention shall not apply ipso facto to any of the Colonies of the Portuguese Republic, but the President of the Portuguese Republic may at any time while the Convention is in force under Article 13 extend this Convention to any of such Colonies by a notification given through his Ambassador in London.

(b) The provisions of paragraph (b) of Article 14 shall apply to any such notifications.

(c) The provisions of paragraph (c) and (d) of Article 14 shall apply to any Colonies of the Portuguese Republic to which this Convention has been extended.

(d) This Convention shall apply ipso facto to Madeira and the Azores and requests for service or for the taking of evidence in these territories shall be transmitted to the President of the Court of Appeal at Lisbon.

(a) The High Contracting Parties agree that His Majesty the King of Great Britain, Ireland and the British Dominions beyond the Seas, Emperor of India, may at any time, while the present Convention is in force, either under Article 13 or by virtue of any accession under this article, by a notification given through the diplomatic channel, accede to the present Convention in respect of any Member of the British Commonwealth of Nations whose Government may desire that such accession should be effected, provided that no notification of accession may be given at any time when the President of the Portuguese Republic has given notice of termination in respect of all the territories of His Majesty to which the Convention applies.

The provisions of Article 14 (b) shall be applicable to such notification. Any such accession shall take effect one month after the date of its notification.

(b) After the expiry of three years from the date of the coming into force of any accession under paragraph (a) of this Article, either of the High Contracting Parties may, by giving a six months’ notice of termination through the diplomatic channel, terminate the application of the Convention to any country in respect of which a notification of accession has been given. The termination of the Convention under Article 13 shall not affect its application to any such country.

(c) Any notification of accession under paragraph (a) of this Article may include any dependency or mandated territory administered by the Government of the country in respect of which such notification of accession is given; and any notice of termination in respect of any such country under paragraph (b) shall apply to any dependency or mandated territory which was included in the notification of accession in respect of that country.

IN WITNESS WHEREOF the undersigned have signed the present Convention, in English and Portuguese texts, and have affixed thereto their seals.

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