Exchange of Notes (May 17, July 1st and 7, 1935) extending to Canada as from the 1st August, 1935, the Convention between Great Britain and Northern Ireland and Spain regarding Legal Proceedings in Civil and Commercial Matters [1935] CATSer 9 (1 August 1935)

EXCHANGE OF NOTES (May 17, July 1st and 7, 1935) EXTENDING TO CANADA AS FROM THE 1st AUGUST, 1935, THE CONVENTION BETWEEN GREAT BRITAIN AND NORTHERN IRELAND AND SPAIN REGARDING LEGAL PROCEEDINGS IN CIVIL AND COMMERCIAL MATTERS

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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 German all of which have been signed and duly 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 be 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 of 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.

At the instance of His Majesty’s Government in Canada I have the honour to notify to Your Excellency, in accordance with Article 18(a) of the Convention regarding legal proceedings in civil and commercial matters, which was signed at London on the 27th June, 1929, the accession of His Majesty to that Convention in respect of the Dominion of Canada.

The attached list indicates in the various provinces of Canada the authority to whom requests 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 18(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 have the honour to assure Your Excellency of my highest consideration.

PROVINCE OR TERRITORY	AUTHORITY	LANGUAGE
Ontario	Attorney 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 for the North West Territories	English
Yukon Territory	The Gold Commissioner of the Yukon Territory	English

I have the honour to acknowledge the receipt of Your Excellency’s note No. 229 dated the 1st July, in which you notified the Spanish Government of the accession of His Britannic Majesty in respect of the Dominion of Canada to the Convention regarding proceedings in civil and commercial matters, signed at London on the 27th June, 1929, and with which you sent a list of the authorities to whom requests for service or for the taking of evidence should be addressed in the Provinces of that country.

CONVENTION BETWEEN HIS MAJESTY AND HIS MAJESTY THE KING OF SPAIN 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 His Catholic Majesty, the King of Spain,

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:

For Great Britain and Northern Ireland, all British Colonies and Protectorates and territories under His suzerainty and all mandated territories administered by His Government in the United Kingdom of Great Britain and Northern Ireland:

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

His Excellency the Marquess de Merry del Val, Knight Grand Cross of the Order of Carlos III, G.C.V.O., His Ambassador Extraordinary and Plenipotentiary at the Court of His Britannic Majesty,

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.

(b) In this Convention the words “territory of one (or of the other) High Contracting Party” shall be interpreted as meaning at any time any of the territories of such High Contracting Party to which the Convention at that time applies.

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, partnerships, companies, societies or other corporations in the territory of the other High Contracting Party, such documents may, without prejudice to the provisions of Article 5, be served on the recipient, whatever his nationality, in any of the ways provided in Articles 3 and 4.

(a) A request for service shall be addressed by a Consular Officer of the High Contracting Party from whose territory the documents to be served emanate, to the competent authority of the country where the documents are to be served, requesting such authority to cause the documents 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 full names and descriptions of the parties, the full names, address and description of the recipient, and the nature of the document to be served, and shall enclose the documents (originals or copies) 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 in duplicate. 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 (1) the authenticity of the request for service is not established, or (2) the High Contracting Party in whose territory it is to be effected considers that his sovereignty or safety would be compromised thereby.

(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) Service may be effected without any request to or intervention of the authorities of the country where it is effected:

(b) All documents served in the manner provided in the preceding paragraph shall, unless the recipient is a subject 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 be effected or accompanied by a translation into such language certified as correct as prescribed in Article 3 (c).

Nothing in this Convention shall render illegal or inadmissible the service in the territory of one High Contracting Party of documents drawn up in the territory of the other High Contracting Party by any one of the following methods of service in any case where such method is recognized as valid by the law of the country from which the documents emanate:

(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 is addressed, shall pay to the other High Contracting Party any charges and expenses which are payable under the law or regulations in force in 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.

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 one of the ways prescribed in Articles 8, 9 and 10.

(a) The judicial authority by whom the evidence is required may, in accordance with the provisions of its law, address itself 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 “Letters 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, the full names and descriptions of the parties thereto, and the full names, addresses and descriptions of the witnesses. They shall also either be accompanied by a list of interrogatories to be put to the witness or witnesses and a translation thereof certified as correct in the manner heretofore provided or, if this procedure is recognized by the law of the country from which the Letters emanate, request the competent authority to allow such questions to be asked viva voce as the parties or their representatives shall desire to ask.

In England by a Spanish Consular Officer to the Senior Master of the Supreme Court of Judicature;

In Spain by a British Consular Officer to the President of the competent Territorial Court.

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.

(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) If the law of the country where the evidence is to be taken authorizes such procedure, the judicial authority by whom the evidence is required may in the “Letters of Request” addressed to the competent authority of the country where the evidence is to be taken request such authority to appoint to take the evidence a person specially designated in the “Letters of Request.”

A Consular Officer of the High Contracting Party whose judicial authority requires the evidence, or any other suitable person may be so designated.

(b) Where this procedure is adopted the provisions of paragraphs (b), (c), (f) and (g) of Article 8 shall apply, but the following paragraphs shall be substituted for paragraphs (d) and (e) of that Article.

(c) The competent authority to whom the “Letters of Request” are transmitted or forwarded shall give effect thereto and shall appoint the person designated to take the evidence unless such person shall be unwilling so to act. In addition, if necessary, such authority shall make use of such compulsory powers as it possesses under its own law to secure the attendance of and the giving of evidence by the witnesses and the persons to be examined and the production of documents before the person so appointed.

(d) The person thus appointed shall have power to administer an oath, and any person giving false evidence before him shall be liable in the courts of the country where the evidence is taken to the penalties provided by the law of that country for perjury.

(e) The evidence shall be taken in accordance with the law of the country for whose judicial authority the evidence is required, provided such method is not contrary to the law of the country where the evidence is being taken, and the parties shall have the right to be present in person or to be represented by barristers or solicitors or by any other persons who are competent to appear before the courts of either of the countries concerned.

(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 or to produce any document. 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, but he shall have no compulsory powers.

(c) Requests to appear issued by such person shall, unless the recipient is a subject 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 court of either of the countries concerned.

The fact that an attempt to take evidence by the method laid down in Article 10 has failed owing to the refusal of any witness to appear, to give evidence, or to produce documents, does not preclude a request being subsequently made in accordance with Articles 8 or 9.

(a) Where evidence is taken in either of the ways provided in Articles 8 or 9 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 of one High Contracting Party shall enjoy in the territory of the other High Contracting Party a perfect equality of treatment with subjects 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 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 Spanish texts are equally authentic, shall be subject to ratification.

Ratifications shall be exchanged in Madrid. 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 His Britannic Majesty’s Colonies or Protectorates, nor to any territories under his suzerainty, nor to any mandated territories administered by his Government in the United Kingdom of Great Britain and Northern Ireland, but His Britannic Majesty may at any time, while the Convention is in force, under Article 15, by a notification given through his Ambassador at Madrid, 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 15 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 or Protectorates of His Catholic Majesty the King of Spain, but his Government may at any time extend this Convention to any of such Colonies or Protectorates by a notification given through his Ambassador in London.

(b) The provisions of paragraph (b) of Article 16 shall apply to any such notifications.

(c) The provisions of paragraphs (c) and (d) of Article 16 shall apply to any Colonies or Protectorates of His Catholic Majesty to which this Convention has been extended.

(a) His Britannic Majesty may at any time, while the present Convention is in force, either under Article 15 or by virtue of any accession under this Article, by a notification given at Madrid through the diplomatic channel accede to the present Convention in respect of any of his self-governing Dominions or India, provided that no notification of accession may be given at any time when His Catholic Majesty has given notice of termination in respect of all the territories of His Britannic Majesty to which the Convention applies. The provisions of Article 16 (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 15 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 hosts 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 Spanish, and have affixed thereto their seals.

Canadian Treaty Series

Exchange of Notes (May 17, July 1st and 7, 1935) extending to Canada as from the 1st August, 1935, the Convention between Great Britain and Northern Ireland and Spain regarding Legal Proceedings in Civil and Commercial Matters [1935] CATSer 9 (1 August 1935)