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In Brief

Obtaining Evidence Abroad in Cross-Border Disputes

12 June 2018
Mayer Brown In Brief

With the rapid growth of commercial and investment activities in the Asia-Pacific region, the number of cross-border disputes has increased correspondingly. Given its prominent role in the international commercial market, Hong Kong has taken a fair share of these cross-border disputes, whether being the forum of dispute resolution or where the parties or assets are located. An important aspect of cross-border litigation, with increasing occurrence in Hong Kong, is obtaining of evidence in a jurisdiction foreign to the forum of proceedings. This can take the form of the parties of legal proceedings in Hong Kong seeking to obtain evidence in a foreign jurisdiction, or vice versa.

Hong Kong is one of the 61 current contracting parties to The Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters1. Other contracting states include the United States and the United Kingdom. The Convention sets out a process by which letters of requests for obtaining evidence can be issued by a requesting state to be executed by a receiving state, allowing the cross-border transfer of evidence.

The recent decision of the English High Court in Buzzfeed Inc and another v Aleksej Gubarev and others, Christopher Steel2 provides a useful reminder that relevance of the evidence sought would be considered by both the requesting court and the receiving court. The general position in Hong Kong, like England, is that the court will give effect to letters of request issued by a foreign state as far as possible and it would not be astute to examine the issues in the action and the circumstances of the case with excessive particularity for the purpose of determining the question of relevance and admissibility in advance. However, it retains the power to curtail parts of the foreign request in appropriate circumstances. In Buzzfeed, the English High Court ruled that where the requesting court has not considered the question of relevance of the evidence sought, then it must fall on the receiving court to undertake that exercise. This highlights the importance of taking into account the approach of both the requesting court and the receiving court in relation to letters of request at the outset of making an application for assistance on taking of evidence in a foreign state, which would have important impact on the application itself, as well as associated time and costs implications.

For details of the English High Court's decision in Buzzfeed, please see our legal update here.

Notes:
1. Hong Kong and China are both contracting parties to the Hague Convention. However, the Hague Convention, being an inter-state international convention, does not apply between Hong Kong and China, which are two jurisdictions within the same state. The process applicable between Hong Kong and China is provided in Arrangement on Mutual Taking of Evidence in Civil and Commercial Matters between the Courts of the Mainland and the Hong Kong Special Administrative Region, which came into force on 1 March 2017.
2. [2018] EWHC 1201 (QB)

Authors

  • Thomas S. T. So
    T +852 2843 4502
  • Vivien S. K. Yip
    T +852 2843 2317
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