THEMIS
INITIAL TRAINING INTERNATIONAL SHOWROOM

International Judicial Cooperation in Civil Matters:

Taking of Evidence in Civil and Commercial Matters

I. INTRODUCTION

International judicial cooperation means proceedings of requests for assistance of judicial authorities by a competent legal authority in the territory of another country. International judicial cooperation includes both civil and criminal matters.
There are three priority fields in legal cooperation in civil matters:
-mutual recognition of court judgements;
-harmonisation of procedural law;
-legal assistance.
Cooperation in civil and commercial matters allows for the performance of the following operations in the territory of another state:
-service of documents;
-collecting evidence;
-recognition of court judgements;
-international child abduction proceedings;
-other civil law issues.
It should be taken into account that the field of international judicial cooperation is governed by different legal instruments.
In international judicial cooperation important role is played by the multilateral international treaties. Terms and conditions of the international legal cooperation also arise from a number of bilateral international conventions. Judicial cooperation between the Member States of the European Union Member is regulated by the the European Community instruments.
This paper will focus on the judicial cooperation in civil matters especially concerning the taking of evidence in civil or commercial matters in abroad. Our aim is to study the problems that have been encountered as a result of the fact that there are different legal instruments that regulate the evidence taking. There are two Hague Conventions governing this area; the Hague Convention on Civil Procedure 1954. and Hague Convention on the Taking of Evidence Abroad in Civil or Commercial matters 1970. There is also Council Regulation No 1206/2001 of 2001. on cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters that governs relations between Member States of the European Union. Furthermore, all the States have rules on the taking of evidence which are designed to guarantee that the judge is put in a position in which he can establish the facts of a case as precisely as possible. They differ with respect to the means admissible for taking evidence, the procedure that has to be followed, the rules concerning the burden of proof and the assessment of the evidence by the court.
The taking of evidence is very important because when having a claim against someone, you must be able to prove it. If you initiate legal proceedings, your claim against the other party may be well-founded, but often that will not be sufficient for actually winning your case because the other party contests the facts on which you have based your claim. Therefore it is usually crucial to present evidence to the court in order to prove your claim.
If it is necessary to take evidence in a state other than the one in which you are resident, it is worth knowing which legal instrument must be applied.

II. CROATIAN LEGISLATION REGARDING TAKING OF EVIDENCE IN CIVIL AND COMMERCIAL MATTERS

2.1. IN GENERAL

In Republic of Croatia, the provisions regarding judicial cooperation in civil matters are laid down in the Civil Procedure Act. Mostly, here we have provisions concerning judicial assistance in civil matters in general (Articles 179-184) that are laid down in the following chapter.¹.
According to the Article 140 of the Croatian Constitution, international agreements concluded and ratified in accordance with the Constitution and made public, and which are in force, shall be part of the internal legal order of the Republic of Croatia and shall be above law in terms of legal effects.
Croatia is party to the following international conventions on taking of evidence:
-The Hague Convention of 1 March 1954 on Civil Procedure².
-The Hague Convention of 18 March 1970 on the Taking Evidence Abroad in Civil and Commercial Matters³, therefore they represent a part of Croatian legislation.
As a product of bilateral relations with some countries, Croatia concluded and ratified bilateral agreements regarding cooperation in civil matters. For example, Croatia ratified the Agreement on Legal Aid in Civil and Criminal Matters with Bosnia and Herzegovina.⁴

2.2. LEGAL ASSISTANCE

Croatian Civil Procedure Act entails the chapter concerning the Legal Assistance in Civil matters in general (Articles 179-184).
Courts have obligation to offer one another legal assistance in civil proceedings. If the requested court does not have jurisdiction to carry out the tasks that it is requested to do, it shall pass on the request to a court with jurisdiction or another state body and inform the requesting court of this. But, if the court does not know which court or state body has jurisdiction, it shall return the request. ⁵ Courts shall offer legal assistance to foreign courts in cases prescribed by international agreements, when there exists reciprocity in the offer of legal assistance and when the performance of requested act does not contravene with the public policy of the Republic of Croatia. If the requested act contravenes with the public policy, court shall deny legal assistance to a foreign court, and it shall forward the case to the Supreme Court of the Republic of Croatia for a final decision.
According to Article 182, courts offer legal assistance to foreign courts in the manner prescribed by domestic law. The requested action, may also be carried out in the manner requested by the foreign court, but only if this does not contravene with the public order of the Republic of Croatia.
Unless agreed otherwise by an international agreement, the Courts shall proceed on requests for legal assistance from foreign courts only if they are delivered through diplomatic channels and if the request and enclosures are written in one of the languages in official use of the court or if an authorized translation in that language is enclosed. Likewise, in the lack of international agreement, domestic courts shall send requests for legal assistance through diplomatic channels. They must be written in the language of the requested court or an authorized translation in that language must be enclosed.

III. INTERNATIONAL TREATIES CONCERNING THE TAKING OF EVIDENCE ABROAD IN CIVIL AND COMMERCIAL MATTERS

3.1. THE HAGUE CONVENTION ON THE TAKING OF EVIDENCE ABROAD IN CIVIL OR COMMERCIAL MATTERS

3.1.1. Background

In 1893. the Netherlands government established the Hague Conference on International Law. The Hague Conventions on Civil Procedure of 1905. and 1954. were early efforts on the part of the Hague Conference and the signatory nations to bring about cooperation between nations in the area of international litigation. Hague Convention of 1905. contained provisions dealing with taking of evidence in abroad, but it did not get wide support and was only ratified by 22 countries. Desiring to make the improvements suggested by the past experience the Hague Convention of 1905. was replaced by the Hague Convention on Civil Procedure of 1954.⁶.
The Eleventh Session of the Hague Conference on Private International Law produced the text of the Convention on the Taking of Evidence Abroad in Civil or Commercial matters, which came into force on 18 March 1970.⁷.
Chapter II of Hague Convention on civil procedure of 1954., entitled "Letters of Request (commissions rogatoires)" that deals with the obtaining of evidence abroad is the subject-matter of the Convention of 1970. The fundamental purpose of the Convention of 1970. is to continue the revision and modernization of the Hague Conventions on Civil Procedure of 1905 and 1954. The Convention seeks to improve the existing system of Letters of Request, enlarge the devices for the taking of evidence by encerasing the powers of consuls and by introducing the concept of the commissioner, and at the same time to preserve all existing more favourable practices.
Among the significant novelties in the The Convention of 1970., there are new rules about languages, the introduction of the Central Authority as a receiving agent, provisions concerning privileges and immunities of witnesses, differentiation in the powers of a consul dependent upon the nationality of the witness, and the recognition of the use of commissioners as a technique for obtaining evidence on an optional basis.
3.1.2. Scope of application

Pursuant to Art. 1, the Convention applies in civil and commercial matters where the judicial authority of one Contracting state (requesting State) requests the competent judicial authority of another Contracting state (requested State) to obtain evidence which is intended for use in judicial proceeding (commenced or contemplated) in the requesting state or to perform some other judicial act⁸. Convention does not cover the service of judicial documents, the enforcement of judgements or provisional and protective measures.

3.1.3. The methods of evidence taking

Convention, provides two methods of taking of evidence (i) by means of letters of request, and (ii) by diplomatic or consular agents and commissioners⁹.

3.1.3.1. Taking of evidence by means of letters of request

Chapter I deals with Letters of Request (commissions rogatoires). It includes articles 1-14, and regulates the form of the Letter, the scope of its content, the methods of transmission, the language to be used, the method and technique of execution, the compulsion to be exercised against a witness, the privileges and immunities of the witness, the permissible grounds for refusal to execute the Letter, and the question of costs and expenses.
The Letter of request must contain certain details such as the requesting court and the requested court, the name and address of the parties to the proceedings, the nature and subject matter of the case, a description of the taking of evidence to be performed, etc. These are obligatory contents of Letter of Request, but it also can contain some facultative contents.
Requests must be drafted in the official language of the requested judicial authority. Nevertheless, a Letter of request in either English or French shall also be accepted.
According to provisions concerning the methods of transmission the judicial authority of the requesting State transmits the letter of request to Central Authority of the State addressed. The latter then forwards the letter of request to the competent authority in its country for execution. Therefore every Contracting party must organize the Central Authority in accordance with its own law¹⁰.
Request is executed in accordance with the national law of the requested judicial authority. The requesting authority may also request the use of a special method or procedure for execution of the letter of request, unless that they are not incompatible with the law of the State addressed or impossible to perform.
It derives from the Regulation that the parties, their representatives and the members of judicial personnel of the requesting court may be present at the execution of a Letter of Request.
The person to be questioned or requested to discover documents is entitled to assert a privilege or duty to refuse to give evidence under either the law of the requesting State or the law of the State addressed.
Last, the execution of the letter of request may not give rise to any reimbursement of taxes or costs; however, the State addressed may require the requesting State to reimburse the fees paid to experts and interpreters and the costs occasioned by the use of a special procedure
requested by the requesting State.

3.1.3.2. Taking of evidence by diplomatic or consular agents and commissioners

The Convention also allows an option for diplomatic or consular agents and commissioners to take evidence, subject to certain requirements, and subject to the prior permission of the appropriate authority of the State in which the evidence is to be taken. The representative or commissioner may take evidence, insofar as their proposed actions are compatible with the law of the State of execution and with the permission granted. Subject to the same requirements, he or she may also have power to administer an oath or take an affirmation. The consular or diplomatic agent or commissioner may not exercise any compulsion against the person concerned by the request. The Convention provides, however, that States may, by declaration, authorize foreign persons permitted to take evidence to apply to the competent authority for appropriate assistance to obtain the evidence by compulsion. Unlike letters of request, the taking of evidence is as a rule performed in accordance with the forms required by the law of the Court before which the action is initiated. However, if the recommended forms are not permitted by the law of the State of execution, they may not be used. Crossexamination, during which the witness is questioned by counsel for both parties, is also permitted. Last, the person required to give evidence may, in the same way as pursuant to a letter of request, assert a privilege or duty to refuse to give evidence.

3.2. COUNCIL REGULATION (EC) NO 1206/2001 OF MAY 2001 ON COOPERATION BETWEEN THE COURTS OF THE MEMBER STATES IN THE TAKING OF EVIDENCE IN CIVIL AND COMMERCIAL MATTERS

3.2.1. Background

A properly functioning single market requires that the cooperation between courts of the Member States of the European Union in the taking of evidence is improved, simplified and accelerated. Because there was no binding instrument between the Member States of the European Union concerning the taking of evidence¹¹, the European Council requested at its meeting in Tampere in October 1999 that new procedural legislation in cross-border cases, in particular on the taking of evidence, should be prepared.
In November 2000., Germany presented to the EU Council of Ministers a proposal for a regulation on cooperation in the taking of evidence. The Council adopted a Regulation on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters in May 2001, creating a new system of direct and rapid transmission and execution of requests for the performance of taking of evidence between courts and laying down precise criteria regarding the form and content of the request. Finally the Evidence Regulation entered into force on 1 July 2001, and became fully applicable on January 1 2004.

3.2.2. Scope of application

The regulation applies in civil and commercial matters where a court of a Member State requests the competent court of another Member State to obtain evidence. It is an important instrument aimed to simplify and accelerate cooperation in taking of evidence between the courts of Member States¹².

3.2.3. The methods of evidence taking

The Regulation brings two possibilities for one Member state how to execute evidence taking in another Member state. First, the evidence taking using the international legal aid (in the Regulation „direct transmission between the courts“) and second, direct taking of evidence by the requesting court. The principle in the taking of evidence using international legal aid is that the court of a Member State requests the competent court of another Member State to take evidence which is needed in judicial proceedings, commenced or contemplated. The other possibility is that the judge of one Member State can ask judge in another Member state to collect the evidence in that state (article 17) either directly or through other designated person. The direct evidence taking is considered to be the most innovative feature of the Regulation since it implies the renunciation of the principle of the territoriality.

3.2.3.1. Taking of evidence using international legal aid

The Regulation removes the need to transmit the request to the central authority which will, in turn, forward it to the court. The judge of a Member State, where the process is pending or is contemplated (requesting court) sends a request directly to the judge of another Member State where the evidence is located ("requested court"). That means that the requests are directly transmitted by the court before which the proceedings are commenced or contemplated to the court of another Member State. Member States are supposed to draw up a list of the courts authorised to take evidence, indicating the territorial and/or special jurisdiction of these courts.
Each Member State designates one central authority. This central authority is responsible for supplying information to the courts; seeking solutions to any difficulties regarding transmission and forwarding, in exceptional cases, a request to the competent court.
A federal State, a State in which several legal systems apply or a State with autonomous territorial entities, is free to designate more than one central body.
The Regulation lays down precise criteria regarding the form and content of the request. The request must be made using form A, which is annexed to the Regulation, and must contain certain details which are obligatory. Other standard forms contained in the Annex of the Regulation and are intended to facilitate requests¹³.
According to the Regulation requests must be drafted in the official language of the Member State of the requested court or in any other language that the requested Member State has indicated it can accept. Requests and all other communications must be transmitted by the swiftest possible means.
The resolution accelerated the procedure of evidence taking by fixing the time limit for the execution of the activities. Consequently, the requested competent court must send to the requesting court the acknowledgement of receipt of a request for the taking of evidence (form B inthe Annex) within 7 days of receipt of request. If the request cannot be executed because it does not contain all of the necessary information laid down in Article 4 – the requested court informs the requesting court within 30 days (form C) and indicates the information missing or if the request cannot be executed because deposit or advance is necessary the requested court informs the requesting court about that within the same period.
There are two basic principles for the execution of the request. The first one is that the request must be executed expeditiously, at the latest within 90 days from the receipt of the request, the latter should inform the requesting court accordingly, stating the reasons for the delay and estimated time that the requested court expects it will need to execute the request. The other important principle is that the request is executed in accordance with the national law of the requested court. The requesting court may also ask for the request to be executed in accordance with a special procedure (including the use of sound and image recordings). The requested court must comply with such a requirement unless there are legal or practical obstacles.
If permitted by the law of the Member State of the requesting court, the parties and, if any, their representatives have the right to be present when the requested court undertakes the legal act requested. The representatives (member of judicial personnel) of the requesting court may also be present. An expert may be designated as well.
The requested court informs the representatives about the time and place of evidence taking and may determine conditions under which they may participate using form F in the Annex.
During the performance of the request the requested court may use necessary coercive measures provided by the law of the Member State of the requested court.
The possibility of refusing to execute the request for the performance of taking of evidence is confined to strictly limited exceptional situations¹⁴.
After the execution of the request the requested court sends to the requesting court documents establishing the execution of the request and returns all the documents received from the requesting court. In addition, the confirmation of execution using form H in the Annex will be sent.
The execution of the request shall not give rise to a claim for any reimbursement of the taxes and costs, with the exemption of:
a) fees paid to experts and interpreters,
b) the costs of usage of communication technologies.
The duty for the parties to bear the cost is governed by the national law of the Member state of the requesting court.
Where opinion of expert is required – deposit or advance towards the requested costs may be asked by the requested court.

3.2.3.2. Direct taking of evidence

If a court request to take the evidence directly – it shall submit a request (form I) to the central body of the relevant Member state. The authorization allowing the requesting judge to directly collect the evidence must be either given or denied within 30 days.
The Regulation sets down conditions of direct evidence taking.
Direct evidence taking can be performed on a voluntarily basis without the need of coercive measures. When it implies that a person shall be heard, the person must be informed that the performance is on voluntarily basis.
The direct evidence taking shall be performed by a member of judicial personnel or other person designated, e.g. Expert, in accordance with the national law of the Requesting Member state.

3.3. PRINCIPLES AND RULES OF TRANSNATIONAL CIVIL PROCEDURE

The most ambitious project to harmonize civil procedure at the global level is carried out by the American Law Institute, originally named as Transnational rules of civil procedure, now known as Principles and rules of transnational civil procedure.
This project proposes a true model of civil procedural code for transnational disputes. It has been developed by professors Geoffrey Hazard and Michele Taruffo in 1996., and over the years it has gathered and collected the contributions and efforts of a wide international community of procedural experts, trying to fuse together the civil and common law traditions and enucleate new proceedings for international commercial disputes.
Lately, UNIDROIT¹⁵ has given its support to this initiative, proposing the development of a project of Principles with the aim to produce the fundamental principles of civil procedure for the transnational setting. In 2004. the Governing Council of UNIDROIT adopted the Principles of Transnational Civil Procedure prepared by a joint American Law Institute/UNIDROIT Study Group. Principles, consisting of 31 provisions, aim at reconciling differences among various national rules of civil procedure, taking into account the peculiarities of transnational disputes as compared to purely domestic ones. They may not only serve as guidelines for code projects in countries without longer procedural traditions, but may initiate law reforms even in countries with long and high quality procedural traditions.
Regarding scope of application these priciples and rules apply to contract disputes and disputes arising from contractual relations, when a plaintiff and a defendant are from different states, determined by habitual residence or principal place of business. Also they apply in disputes concerning property located in one state as to which a claim is made by plaitiff or a defendant who is habitual resident of another state. Also, according to lex fori, other civil matters may also be included in their scope.
The term «habitual residence» may be found slightly inadequate here as it could provoke certain difficulties. What is ment to be said is that, the Rules could be applied even in disputes between citizens of the same country that have the same «habitual residence» in another country. To avoid misunderstandings, a definition is necessary.¹⁶
As the application of this rules and principles is not an option, having in mind that they, for now, represent only a draft, a more detailed interpretation and analysis of those for the purpose of this work is not needed.

3.4. PRACTICAL APPLICATION

Croatia has concluded bilateral agreements on judicial assistance in civil and commercial matters, which include provisions for taking of evidence¹⁷.
If there is a bilateral agreement between Croatia and the states which are party to the Hague Conventions of 1954. and 1970., the provisions of the Convention, which has simpler and quicker procedures, are applied. If there is no bilateral agreement or multilateral convention, the principle of reciprocity is applied to the letters of request.
The EU Regulation No.1206/2001 applies in civil and commercial matters where the court of a Member State requests from another Member State’s, court for the evidence to be taken directly in that Member State. On the other hand, Croatia is not a Member State of the EU and it does not apply EU Regulation No.1206/2001. Hovewer, the new Civil Procedure Act has been brougt and it contains provisions for the taking of evidence in accordance with the EU Regulation 1206/2001. Those provisions will come into force when Croatia becomes a member od the EU.
Usually, complications begin with practical application of these documents, so here are the two hyphotetical examples created in order to clarify which of them shall be applied in different situations.
EXAMPLE I
RELEVANT FACTS: A civil judicial proceeding commenced before the court in Zagreb, Croatia. One of the witnesses that have to be examined lives in Berlin, therefore ha has to be heard before the court in Berlin.
Croatia and Germany have not concluded bilateral agreement concerning judicial assistance in civil and commercial matters that would contain provisions for taking of evidence. Germany is a Member State of the EU and in civil and commercial cases where a court of a Germany requests the competent court of another Member State to obtain evidence, EU Regulation 1206/2001 is applied. On the other hand Croatia is not a Member State of the EU, therefore the EU Regulation 1206/2001 in this case can not be applied. As both Croatia and Germany are parties to the Hague convention 1970. we shall appply its provisions in this particular case.
Requests must be drafted in the official language of the requested judicial authority, therefore it will be drafted in German language. It can also be written in English or French. The judicial authority of the requesting State (Croatia) will transmit the letter of request to Central Authority of the State addressed (Germany), the Bundesamt für Justiz, Bonn. The latter then forwards the letter of request to the competent authority in its country (Court in Berlin) for execution. The Request will be executed in accordance with the German national law.
EXAMPLE II
RELEVANT FACTS: A civil judicial proceeding commenced before the court in Zagreb, Croatia. A witness that has to be examined lives in Ljubljana, Slovenia. Croatia and Slovenia have concluded bilateral agreement concerning judicial assistance in civil and criminal matters, 1994¹⁸. Even though Slovenia is a Member State of the EU and applies the EU Regulation 1206/2001, the Regulation itself in this case, since Croatia is not a Member State, is not relevant. In accordance with the Article 5 of the above stated bilateral agreement requests must be drafted in the official language of the requesting judicial authority, therefore it will be drafted in Croatian language. In accordance with the Article 4 the transmission of the request will be handled by Croatian and Slovenian Minister of justice, therefore the request will be transmitted to Slovenian Ministry of justice.
The latter will forward the request to the competent authority in its country for execution. The Request will be executed in accordance with the Slovenian national law.

IV. ARISING PROBLEMS

4.1. REFUSAL TO EXECUTE

4.1.1. In general

In general, as it was said before, the Letter of Request has to be sent (directly or through other bodies) to a competent body in the State of execution. That body shall follow a request made by the State of origin if all necessary presumptions are being fulfiled, otherwise it will refuse its execution.
So, does it mean for the executing body that, when receiving a Letter, all it has to do is follow the applicable rules, or is the question of refusal much more complicated than that?
First of all, we have to distinguish the refusal to execute from the impossibility to follow the request. In the case of impossibility there are usually some deficiencies that are not an obstacle for the request to be executed if they can be amended. When the situation is different and requires refusal, the rules usually don't imply a possibility of execution.
Therefore, in the continuance of this chapter we'll give an insight to this matter from the aspect of the Convention of 1954., of 1970. and the Council's Regulation No 1206/2001 of 2001.

4.1.2. Conventions of 1954 and 1970

The 1954. Convention gives very few rules. Probably because, at that time, a more detailed regulation in this field was not needed. Mainly there are three articles. Article 11, 12 and 13.
The accent is on Article 11 which provides grounds for refusal of the request as follows:

- if the document's authenticity is not established
- if the execution of the Letter does not fall within the funcions of the judiciary in the State of execution
- if the State addressed considers that the nature of the request offends its sovereignty or security.

Similar to the above stated, but with the exception of the first ground, according to the Convention of 1970. the execution of a Letter of Request may be refused only to the extent that:

- in the State of execution the execution of the Letter does not fall within the functions of the judiciary; or
- the State addressed considers that its sovereignty or security would be prejudiced thereby.

Also the execution may not be refused solely on the ground that under its internal law the State of execution claims exclusive jurisdiction over the subject-matter of the action or that its internal law would not admit a right of action on it.¹⁹
Comparing to the Convention of 1954., here we have a wider regulation, including also situations with the incomplete or somehow deficient reques.
As it stems from the general rule of the Article 5 if the Central Authority considers that the request does not comply with the provisions of the present Convention, it shall promptly inform the authority of the State of origin which transmitted the Letter of Request, specifying the objections to the Letter.
For example, maybe it's not specified according to the Article 3²⁰, or is not translated into the required language.
Then, making all the necessary corrections, the State of origin may send the request again.
It is important to mention that in case of incompetency, the receiving body in the State of execution will, without refusing or making objections, send the request forthwith to the body in the same State which is competent for its execution in accordance with the provisions of its own law.²¹
However, the requested body shall immediately inform the requesting body, through the same channel which was used by the latter, when the Letter is not executed in whole or in part, advising it of the reasons.²²
Although the Convention of 1970. doesn't bring big changes, it really shows improvment. It is clear that with the expansion of the international market, migrations and other things that followed progress, there was a lack of rules in this field.
Created to replace the Hague Conventions on Civil Procedure of 1905. and 1954., we can't say that the Convention of 1970. completely reached its purpose, as it still isn't ratified by some states and mainly in all Contracting States it, unfortunately, failed to succeed in bringing in the idea of pretrial discovery, giving them a possibility of declaration at the same time.
As we found this issue specialy interesting, in one of the following shapters we gave a brief overview and remarks concerning pretrial discovery.

4.1.3. Council Regulation No 1206/2001

Unlike the Conventions, the Regulation is being very explicit with its rules regarding refusal, leaving out Convention's disputable ground for refusal which gave to its Contracting State a wide possibility of refusal, aloving them a free interpretation of what is considered to offend their sovereignty or security.
Also, in any future regulation, it is desirable to avoid categories like this, as they can make any request, being undefined like they are, suitable for refusal.
Speaking of grounds, another two seem to be very welcome here, having in mind the Regulations objectives, especially improvement and eficiency of judicial procedures.
Dealing with an incomplete request, the first one sets a deadline of 30 days for its completion.
Going into the same direction, the second ground is seeking for a deposit or advance within 60 days after the requested court asked for it.²³
Other solutions remained the same, so, as in the Convention of 1970. the hearing of a person shall not be executed when the person concerned claims the right to refuse to give evidence or to be prohibited from giving evidence:

- under the law of the Member State of the requested court; or
- under the law of the Member State of the requesting court, and such right has been specified in the request, or, if need be, at the instance of the requested court, has been confirmed by the requesting court.²⁴

The only new thing is a time limit of 60 days for notification of refusal in a special form designed for that purpose.

4.2. PRE-TRIAL DISCOVERY

As it was said before, when refusal to execute is concerned, the idea of pre-trial discovery deservs special attention and analysis.
First of all we can define pre-trial discovery as a procedure known to common law countries, which covers requests for evidence submitted after the filing of a claim but before the final hearing on the merits.
When speaking of pre-trial discovery, we can find terms as «discovery» and «disclosure».
Discovery is a pre-trial device that can be used by one party to obtain facts and information about the case from the other party, in order to assist the party's preparation for trial.
On the other hand, disclosure follows. It is an act of disclosing, revelation or impartation of that which is secret or not fully understood (facts, deeds, documents and other things exclusively in defendants knowledge).²⁵
So why an emphasis on this particular subject?
The only document mentioning this institution is the Convention of 1970. in its Article 23. Somehow we doubt that the primary intention of its creators was to transform it into one of the grounds for refusal. Also it would be to optimistic believing that nobody is going to object to the general rule, so it gave a possibility for the Contracting States to declare that they will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.
Using this opportunity most countries party to the Convention, apart from the Czech Republic, Israel, the Slovak Republic and the United States made specific declarations objecting to the Article 23 provision.
Those declarations are mostly general and non-particularised, with the exception of the particularised declaration submitted by the United Kingdom²⁶, made because procedural systems of those countries don't recognize this procedure.
The Convention's idea was to permit States Parties to ensure that such request for discovery of documents is sufficiently substantiated so as to avoid requests, whereby a party is merely seeking to find out what documents might be in the possession of the other party to the proceedings.
Although the acceptance of this provision would mean one obstacle less in overcoming the differences between Common Law and Civil Law countries, for now there are still no changes in that direction.
Also we cant say that this procedure is completely unknown in all Civil Law countries because there are legal systems like Uruguay and Peru, based on civil law, where the claim consists of «discovery» («disclosure»).
Maybe it is necessary to clarify te nature and purpose of pre-trial discovery, as the 2003 Special Commission attempted, in order to prevent and also clear away the existitng misunderstandings of the nature of this procedure.
The Special Commission in its Conclusions and Recomendations of 2003 reviewed some of the principles and practices relating to the Cnvention of 1970, in particular the scope of a possible reservation under Article 23. For example, it explained the term «pre-trial discovery». Also, compounding te misunderstandings that may have prompted Contracting States to make a general declaration under Article 23 denying the «pre-trial discovery of documents», the Special comission noted that in some cases the judicial authorities of a State of origin have Concluded that no requests for the production of documents were permitted under the Convention in a State having made such a general declaration. This may result in the state of origin applying its own domestic law for the taking of evidence aginst foreign parties.
Nothing that Article 23 expressly refers to documents, the Special Comission emphasized that the scope of the provision should not be extended to oral testimony.²⁷
It is important to comprehend that the main intention of pre-trial discovery is achieving efficiency in legal proceedings.
We are not saying that it doesn't have any faults, like it could, for example, go in favour of a party that doesn't have enough evidence to substantiate its statements, making an abuse of this right possible, but the general idea is good.
Finnaly, if we want a more efficient civil procedure in international litigation, we shouldn't disregard this predominantly common law procedure.
Made to achieve this always important goal, rules like this should not only be accepted, but also if found useful, incorporated into national laws.

V. CONCLUSION

Regarding procedural law, over the last houndred years, significant efforts have been made on the international level. We can notice improvement with each step. From Hague Conventions, to the Council Regulation, also including a valuable project on the global unification of the of civil procedure, the Transnational Principles and Rules of Civil Procedure.
As Croatia, yet, is not a Member state of the European Union, in this paper an accent had to be put on the Convention of the 1970. , as well as on the Council Regulation No 1206/2001. Appart from that reason the Convention of the 1970. also deserves special attention as it establishes methods of cooperation for the taking of evidence abroad in civil or commercial matters.
Furthermore, what we wanted to emphasize, is that it, with respect to the taking of evidence, provides effective means of overcoming the differences between Civil Law and Common Law systems, making reconciliation of different, often conflictive discovery procedures in those systems. Somehow, this role of a bridge between common and civil law procedures, relating to the taking of evidence in civil and commercial litigation, is not fully realized, due to existing problems of the declarations made under its Article 23.
Nevertheless, it set grounds for further regulation and brought in new ideas subject to latter discussions.
As the establishment of the European Union followed, it automaticaly created a need for improvement of the cooperation and legal assistance between courts of Member States. As a result many new legal instruments have been brought, among others the Council Regulation No 1206/2001. EU legislation has been developed, and is still improving for the purpose of the proper functioning internal market and area of freedom, security and justice in which the free movement of persons is ensured.
Today when the world is becoming more global, te harmonisation of different procedural rules would be very useful. The cooperation between courts belonging to different countries would be much easier and efficient if they are acquainted with eachother rules, but their harmonisation and even unification is a longterm goal that we have to steer for.
In a number of countries in South and South-Eastern Europe, justice reforms are
being done every several months. Croatia has also been taking extensive reform steps in the past decade, basically motivated by outside pressures that arise out of the process of accession to the European Union.
One of the steps towards better administratration of civil litigation, could be certain amendmends of the procedural laws on national level. As this process includes many modifications and requires a lot of effort, any step made in this direction is welcome.

VI. BIBLIOGRAPHY

1. Republika Hrvatska, Državno odvjetništvo Republike Hrvatske i Pravosudna akademija, Međunarodna pravna pomoć u građanskim i trovačkim stvarima, Priručnik za polaznike, European Union, CARDS 2003 Programme for Croatia, 2006.

2. European Union – CARDS 2003. Programme for Croatia, Education and Training of Prosecutors, Uvod u EU pravo

3. Hague Convention on Civil procedure 1954.

4. Hague Convention on the taking of evidence abroad in civil or commercial matters 1970.

5. Council Regulation (EC) No 1206/2001 of May 2001 on cooperation between the courts of the member states in the taking of evidence in civil and commercial matters

6. Reforming Mediterranean Civil Procedure: Is There a Need for Shock Therapy?, in: C.H. Van Rhee & A. Uzelac (eds.), Civil Justice between Efficiency and Quality: From Ius Commune to the CEPEJ, Antwerp/Oxford/Portland (Ius Commune Series), 2008, pp. 71-99

7. Triva, S., Dika, M. :Građansko parnično procesno pravo (Civil Procedural Law), Zagreb: Narodne novine, 2004.

8. Đ. Vuković, E. Kunštek: Međunarodno građansko postupovno pravo, Rijeka : Zgombić & Partneri, 2005.

9. Zakon o parničnom postupku NN 53/91., 91/92., 112/99., 88/01., 117/03., 88/05, 84/08

10. M. Freudenthal, The Future of European Civil Procedure, vol 7.5 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (December 2003), http://www.ejcl.org/ejcl/75/art75-6.html

10. www.blakslawdictionary.com

11. www.hcch.net

12. www.pravosudje.hr

13. www.europa.eu

ANNEX I
Status table
Convention of 1 March 1954 on civil procedure
Entry into force : 12-IV-1957

Number of Contracting States to this Convention: 45

1) S = Signature
2) R/A = Ratification or Accession
3) Type = R: Ratification;
A: Accession;
A*: Accession giving rise to an acceptance procedure; click on A* for details of acceptances of the accession;
C: Continuation;
Su: Succession;
D: Denunciation;
4) EIF = Entry into force
5) Ext = Extensions of application
6) Auth = Designation of Authorities
7) Res/D/N = Reservations, declarations or notifications
Members of the Organisation

States

S ¹

R/A ²

Type ³

EIF ⁴

Ext ⁵

Auth ⁶

Res/D/N ⁷

Argentina

23-IX-1987

A

9-VII-1988

D-

Austria

1-III-1954

1-III-1956

R

12-IV-1957

Belarus

28-X-1966

Su

26-VII-1967

Belgium

1-III-1954

24-IV-1958

R

23-VI-1958

Bosnia and Herzegovina

12-III-1962

Su

11-XII-1962

1

China, People's Republic of

C

D,N15

Croatia

12-III-1962

Su

11-XII-1962

1

Cyprus

27-IV-2000

A

1-III-2001

1

Res17

Czech Republic

1-XI-1965

Su

11-VIII-1966

Denmark

2-IX-1955

19-IX-1958

R

18-XI-1958

Res6,15

Egypt

4-II-1981

A

16-XI-1981

Res1,2,3,4,5,6,7

Finland

17-IX-1956

8-I-1957

R

12-IV-1957

France

24-I-1956

23-IV-1959

R

22-VI-1959

10

1

N

Germany

9-IV-1957

2-XI-1959

R

1-I-1960

Hungary

21-V-1965

A

18-II-1966

Israel

22-XI-1967

A

19-VIII-1968

Italy

1-III-1954

11-II-1957

R

12-IV-1957

Japan

12-III-1970

28-V-1970

R

26-VII-1970

1

N

Latvia

15-XII-1992

A

12-IX-1993

Lithuania

5-XI-2002

A

17-VII-2003

Luxembourg

28-VI-1954

3-VII-1956

R

12-IV-1957

Montenegro

Su

3-VI-2006

Morocco

22-XII-1971

A

14-IX-1972

Netherlands

1-III-1954

28-IV-1959

R

27-VI-1959

1

N

Norway

23-III-1954

21-V-1958

R

20-VII-1958

Poland

13-VI-1962

A

13-III-1963

2

D1,3,6,9,10,18,19

Portugal

20-II-1957

3-VII-1967

R

31-VIII-1967

N1,9

Romania

29-IV-1971

A

29-I-1972

1

Russian Federation

28-X-1966

Su

26-VII-1967

1

D1,6,9,15

Serbia

12-III-1962

Su

11-XII-1962

1

Slovakia

1-XI-1965

Su

11-VIII-1966

Slovenia

12-III-1962

Su

11-XII-1962

1

Spain

12-IV-1957

20-IX-1961

R

19-XI-1961

Suriname

11-XI-1976

A

7-IX-1977

Sweden

28-VI-1954

21-XII-1957

R

19-II-1958

Switzerland

2-VII-1954

6-V-1957

R

5-VII-1957

The former Yugoslav Republic of Macedonia

12-III-1962

Su

11-XII-1962

Turkey

23-X-1972

A

11-VII-1973

D6,15

Ukraine

28-X-1966

Su

26-VII-1967

1

D1,6,9,15

Non-Member States of the Organisation

States

S ¹

R/A ²

Type ³

EIF ⁴

Ext ⁵

Auth ⁶

Res/D/N ⁷

Armenia

6-V-1996

A

29-I-1997

-

Holy See

25-VIII-1966

A

17-V-1967

Kyrgyzstan

22-XI-1996

A

14-VIII-1997

Lebanon

25-III-1974

A

7-I-1975

Moldova, Republic of

4-II-1993

A

3-XI-1993

Uzbekistan

5-III-1996

A

2-XII-1996

ANNEX II
Status table
Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters
Entry into force : 7-X-1972

Number of Contracting States to this Convention: 45²⁸

States

S ¹

R/A ²

Type ³

EIF ⁴

Ext ⁵

Auth ⁶

Res/D/N ⁷

Argentina

8-V-1987

A*

7-VII-1987

1

Res,D23,33

Australia

23-X-1992

A*

22-XII-1992

3

Res,D8,15,16,23,33,40

Belarus

7-VIII-2001

A*

6-X-2001

2

Res,D4,8,16,17,18

Bosnia and Herzegovina

16-VI-2008

A

15-VIII-2008

1

Bulgaria

23-XI-1999

A*

22-I-2000

1

Res,D4,16,17,18,19,8,11,2

China, People's Republic of

8-XII-1997

A*

6-II-1998

4

Res,D,N4,16,23,33

Cyprus

13-I-1983

A*

14-III-1983

3

Res,D8,18,23,33

Czech Republic

6-II-1975

12-V-1976

Su

11-VII-1976

1

D16,18,40

Denmark

18-IV-1972

20-VI-1972

R

7-X-1972

1

Res,D4,8,15,16,17,23,27

Estonia

2-II-1996

A*

2-IV-1996

1

D8,11,23

Finland

9-III-1976

7-IV-1976

R

6-VI-1976

1

Res,D4,8,16,17,23,35

France

24-VIII-1972

7-VIII-1974

R

6-X-1974

1

2

Res,D4,16,17,23

Germany

18-III-1970

27-IV-1979

R

26-VI-1979

1

Res,D4,8,16,23,35

Greece

18-I-2005

18-I-2005

R

19-III-2005

1

Res,D4,8,15,16,17,23,35

Hungary

13-VII-2004

A*

11-IX-2004

1

Res,D2,4,8,15,16,17,18,23

India

7-II-2007

A*

8-IV-2007

3

D4,8,16,17,18,23

Israel

11-XI-1977

19-VII-1979

R

17-IX-1979

2

D8

Italy

6-II-1975

22-VI-1982

R

21-VIII-1982

2

D8,18,23

Latvia

28-III-1995

A*

27-V-1995

1

Lithuania

2-VIII-2000

A*

1-X-2000

1

Res,D4,8,16,17,23

Luxembourg

2-V-1975

26-VII-1977

R

24-IX-1977

2

Res,D4,16,17,23

Mexico

27-VII-1989

A*

25-IX-1989

1

Res,D4,17,18,23,27,32

Monaco

17-I-1986

A*

18-III-1986

2

Res,D4,16,17,23

Netherlands

28-II-1979

8-IV-1981

R

7-VI-1981

1

1

Res,D4,8,11,14,16,17,23,2

Norway

18-III-1970

3-VIII-1972

R

7-X-1972

2

Res,D4,15,23

Poland

13-II-1996

A*

13-IV-1996

2

Res23,33

Portugal

18-III-1970

12-III-1975

R

11-V-1975

1

Res,D4,15,23

Romania

21-VIII-2003

A*

20-X-2003

1

Res,D8,16,17,18,19,21,23

Russian Federation

1-V-2001

A*

30-VI-2001

Slovakia

6-II-1975

12-V-1976

Su

11-VII-1976

1

D16,18,40

Slovenia

18-IX-2000

A*

17-XI-2000

1

South Africa

8-VII-1997

A*

6-IX-1997

2

Res,D4,15,16,17,23

Spain

21-X-1976

22-V-1987

R

21-VII-1987

1

Res,D4,8,16,17,23

Sri Lanka

31-VIII-2000

A*

30-X-2000

1

Res,D4,8,23,33

Sweden

21-IV-1975

2-V-1975

R

1-VII-1975

1

D4,8,15,23

Switzerland

21-V-1985

2-XI-1994

R

1-I-1995

1

Res,D1,2,4,8,15,16,17,23,

Turkey

13-XII-2000

13-VIII-2004

R

12-X-2004

2

Res,D4,16,17,23

Ukraine

1-II-2001

A*

1-IV-2001

1

Res,D4,8,16,17,18,19,23

United Kingdom of Great Britain and Northern Ireland

18-III-1970

16-VII-1976

R

14-IX-1976

8

3

Res,D,N8,18,23,27,33

United States of America

27-VII-1970

8-VIII-1972

R

7-X-1972

3

1

D4,8,16,17,18

Venezuela

1-XI-1993

A*

31-XII-1993

1

Res,D4,23

Non-Member States of the Organisation

States

S ¹

R/A ²

Type ³

EIF ⁴

Ext ⁵

Auth ⁶

Res/D/N ⁷

Barbados

5-III-1981

A*

4-V-1981

1

Kuwait

8-V-2002

A*

7-VII-2002

1

Seychelles

7-I-2004

A*

7-III-2004

2

D23

Singapore

27-X-1978

A*

26-XII-1978

1

Res,D4,23