NEWS
The Blocking Law or Evidence Law: the key points of its implementation in relation to private international litigation
This visioconference brought together on February 9, 2021 many actors from the economic, legal and judicial world, as well as the legal services of the ministries concerned (in addition to the Ministry of Justice, the Ministry of the Armed Forces and the Ministry of Europe and Foreign Affairs) and representatives of the Hague Conference on Private International Law. It was an opportunity to present, from a practical point of view, the application of the French Law No 68-678 of July 26, 1968 as amended, improperly called the blocking statute and which should be called the Evidence Law.
This visioconference brought together on February 9, 2021 many actors from the economic, legal and judicial world, as well as the legal services of the ministries concerned (in addition to the Ministry of Justice, the Ministry of the Armed Forces and the Ministry of Europe and Foreign Affairs) and representatives of the Hague Conference on Private International Law. It was an opportunity to present, from a practical point of view, the application of the French Law No 68-678 of July 26, 1968 as amended, improperly called the blocking statute and which should be called the Evidence Law.
Indeed, this law does not block the transmission of evidence abroad, but redirects requests for the document production to procedures provided for in international treaties on judicial cooperation. Speakers mentioned in particular the Hague Convention of March 18, 1970 on the taking of evidence abroad, the Franco-British Convention of February 2, 1922 (applicable between France and Canada, New Zealand, Australia, the Bahamas and Tanzania), but also the Regulation No 1206/2001 of 28 May 2001, recently amended, applicable between EU Member States. The first two conventions provide for three mechanisms for obtaining evidence : letters of requests, a commissioner, or a diplomatic or consular agent of the requesting country. The Evidence Law was neglected for years following the 1987 decision of the United States Supreme Court in the Aerospatiale case. Considering that the Hague Evidence Convention was optional rather than mandatory, the US Supreme Court set out the criteria to be met for the Convention (and therefore the Evidence Law) to be applicable. In particular, it was pointed out that the law was not enforced (“hardship”) by French authorities.
Each speaker explained that this law, which is increasingly being applied and understood, is receiving renewed attention from the French authorities as well as from foreign judges and lawyers. Following Ms Noëlle Lenoir's presentation of the US Berhens case, Mr Jean-François de Montgolfier, Director of Civil Affairs and the Seal of the French Ministry of Justice, presented the central role of the Department of Mutual Assistance, Private International and European Law of the Ministry of Justice to which foreign judges must address their requests for the taking of evidence under international treaties on judicial cooperation; Mrs Laurent Tagarian and Camille Lallemand of the Legal Department of Airbus Helicopters shared their recent experience of the French Evidence Law’s application in proceedings brought common law courts.
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