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Manuel Pratique Sur Le Fonctionnement De La Convention Notification (Projet Révisé)

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Manuel Pratique Sur Le Fonctionnement De La Convention Notification (Projet Révisé) NOTIFICATION / PREUVES / ACCÈS À LA JUSTICE SERVICE / EVIDENCE / ACCESS TO JUSTICE Doc. prél. No 2 Prel. Doc. No 2 mai / May 2014 (Édition provisoire dans l’attente de l’achèvement de la version française / Provisional edition pending completion of the French version) MANUEL PRATIQUE SUR LE FONCTIONNEMENT DE LA CONVENTION NOTIFICATION (PROJET RÉVISÉ) établi par le Bureau Permanent * * * PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION (DRAFT REVISED VERSION) drawn up by the Permanent Bureau Please note that the changes made to the current version of the Handbook are shown in mark-up Veuillez noter que la version actuelle du Manuel est présentée en suivi des modifications Document préliminaire No 2 de mai 2014 à l'attention de la Commission spéciale de mai 2014 sur le fonctionnement pratique des Conventions de La Haye Notification, Preuves et Accès à la Justice Preliminary Document No 2 of May 2014 for the attention of the Special Commission of May 2014 on the practical operation of the Hague Service, Evidence and Access to Justice Conventions Permanent Bureau | Bureau Permanent 6, Scheveningseweg 2517 KT The Hague | La Haye The Netherlands | Pays-Bas telephone | téléphone +31 (70) 363 3303 fax | télécopieur +31 (70) 360 4867 e-mail | courriel [email protected] website | site web http://www.hcch.net MANUEL PRATIQUE SUR LE FONCTIONNEMENT DE LA CONVENTION NOTIFICATION (PROJET RÉVISÉ) établi par le Bureau Permanent * * * PRACTICAL HANDBOOK ON THE OPERATION OF THE SERVICE CONVENTION (DRAFT REVISED VERSION) drawn up by the Permanent Bureau FOREWORD [to be updated] Forty years after its adoption, the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters remains an essential tool of international judicial cooperation and practice. With more than fifty States party (52 to date), the Convention has demonstrated its full effectiveness by (i) expediting and simplifying the cross-border transmission of documents to be served abroad, (ii) ensuring, to the extent possible, that the documents to be served are brought to the knowledge of the defendant in due time to enable him or her to enter a defence, and (iii) facilitating evidence of service. The Convention accordingly has met and continues to meet its fundamental aims of improved international judicial assistance and protection of defendants. As the former version of this Handbook was published in 1992, this new edition became essential to reflect the Convention’s evolution, in particular as regards the use of modern technology, and to provide suitable answers to the issues raised by practice in recent years. This work eventually led to a complete overhaul of the Handbook, with a dual objective: (i) to provide both practical and direct answers to the most basic questions raised in the day-to-day application of the Convention, and (ii) to offer more detailed commentaries on specific issues raised by the Convention over the years. In order to facilitate understanding of the Convention’s basic operation, four Explanatory Charts relating to the Convention’s main provisions and a section entitled “Frequently Asked Questions” (offering succinct and practical replies) have been included in this new version of the Handbook. Likewise, several essential reference documents have been included in the Appendixes, such as the text of the Convention, the Recommendation of the Fourteenth Session with respect to the use of forms, and the Conclusions and Recommendations of the 2003 Special Commission on the practical operation of the Convention. The main part of the Handbook is entitled “General comments and practical operation of the Convention”. It provides detailed explanations and developments regarding the Convention’s operation, reflecting the standing of current practice in numerous States party; it also addresses the main issues raised by case law and doctrine relating to the Convention. For the reader’s convenience, key words or phrases and the names of the States (and subnational entities) whose practice is reflected have been italicized and/or set in bold type. In addition, this Handbook is supplemented with a list of cited case law, an index by subjects and a bibliography. The information and explanations provided in this Handbook may be usefully supplemented by consulting the Hague Conference’s website at < www.hcch.net >. FOREWORD IV The website contains more specific and systematic information, per State, requiring regular updates, for which the Handbook, even if revised, could not have provided adequately. In particular, the website contains all the information provided to the Depositary (i.e., the Netherlands Ministry of Foreign Affairs) or to the Permanent Bureau by the States party, including the designations of Central Authorities and their contact information, any declarations or objections made by States party, translation requirements, costs of service, and the forms of transmission and service of documents. The provisional version of this new edition was reviewed in depth by experts (government representatives, including those of Central Authorities, practitioners, etc.), meeting as a Special Commission in October/November 2003 to review the practical operation of the Service Convention (and of the Evidence and Apostille Conventions). This new edition of the Handbook thus benefited from the discussions and results of the 2003 Special Commission and from the comments made by States party and their responses to the Questionnaire submitted by the Permanent Bureau prior to the Special Commission meeting. The Permanent Bureau once again thanks the States for their collaboration, in particular for providing copies of decisions rendered under the Convention. This information greatly contributed to the wealth of the practical information provided in the Handbook. We accordingly invite the States party and practitioners to continue to share with the Permanent Bureau any relevant teaching drawn from the practice of the Convention. This new edition was prepared by Mr Christophe Bernasconi, First Secretary, in charge of the work relating to the Service Convention, in collaboration with Mrs Laurence Thébault (Legal Officer, and later Consultant, to the Permanent Bureau); we also wish to thank Mrs Alexandra Schluep-Pelinck (former Legal Officer of the Permanent Bureau) for her contribution to the preparation of the preliminary draft for this new edition of the Handbook. Special thanks are also addressed to Mr Peter Beaton, Chairman of the 2003 Special Commission, for his support and comments on a previous version of the new Handbook.* * We also wish to thank the following people for their respective contributions to the preparation of this new edition of the Handbook: Florestan Bellinzona (deputy Judge, Monaco, then seconded to the Permanent Bureau), Alisa R. Brodkowitz (Rogers & Fleck, then stagiaire at the Permanent Bureau), Danielle Gauthey Ladner (Federal Justice Department, Switzerland), Glenn P. Hendrix (Partner, Arnall Golden Gregory), Charles T. Kotuby, Jr. (Jones Day, then stagiaire at the Permanent Bureau) and Cara LaForge (Legal Language Services). FOREWORD V This third edition of the Handbook has been continually updated to 1 January 2006.∗∗ We recommend that readers consult the HCCH website on a regular basis for supplementary practical information and updates regarding the Convention; readers are also strongly advised to ascertain the latest developments of the practice and case law from appropriate experts (governmental experts, practitioners, lawyers, huissiers, etc.). Christophe Bernasconi Hans van Loon First Secretary Secretary General ∗∗ Among the most recent important developments taken into account in this edition of the Handbook are a new French decree of December 2005, abolishing notification au parquet in relation to all other States party to the Convention, and the proposal for a new regulation amending Regulation (EC) 1348/2000, presented by the European Commission on 11 July 2005. CONTENTS FOREWORD _______________________________________________________ III CONTENTS ______________________________________________________ VII TABLE OF CONTENTS _______________________________________________ IX ABBREVIATIONS ___________________________________________________ XV FREQUENTLY ASKED QUESTIONS (FAQs) __________________ XXI EXPLANATORY CHARTS _______________________________ XXXV GENERAL COMMENTS AND PRACTICAL OPERATION OF THE CONVENTION __________________________________________ 1 I. PURPOSE AND SCOPE OF THE CONVENTION ______________ 3 1. Preliminary Remarks _____________________________ 3 2. Relationship to the 1896, 1905 and 1954 Conventions ___ 3 3. Main objectives of the 1965 Convention ______________ 5 4. An “open” Convention ____________________________ 9 5. Scope and applicability of the Convention (Art. 1) ______ 9 II. CHANNELS OF TRANSMISSION PROVIDED FOR UNDER THE CONVENTION _____________________________________ 42 1. The main channel: Central Authorities ______________ 42 2. Alternative channels ____________________________ 82 3. Derogatory channels ___________________________ 103 III. PROTECTION OF THE DEFENDANT (ARTS. 15 AND 16) _____ 105 1. Protection prior to a judgment: Article 15 __________ 105 2. Protection after a default judgment: Article 16 _______ 110 IV. REGIONAL INSTRUMENTS __________________________ 113 1. The Inter-American Convention on Letters Rogatory __ 113 2. The Model Bilateral Convention drafted by the Asian- African Legal Consultative Organization
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