Canadian Treaty Series

EXCHANGE OF NOTES (May 17, July 1st, November 11 and 29, 1935) EXTENDING TO CANADA AS FROM THE 1st AUGUST, 1935, THE CONVENTION BETWEEN HIS MAJESTY AND THE PRESIDENT OF THE GERMAN REICH REGARDING LEGAL PROCEEDINGS IN CIVIL AND COMMERCIAL MATTERS

I

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 Germany, 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 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.

I have the honour to be, Sir, Your obedient servant,

O.D. Skelton

for the Secretary of State for External Affairs.

II

BERLIN, July 1, 1935.

The attached list indicates the authority in the various Provinces of Canada to whom judicial and extra-judicial documents and "Letters of Request" 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 available myself of this opportunity to renew to Your Excellency the assurance of my highest consideration.

BRITISH EMBASSY

His Majesty's Embassy presents its compliments to the Ministry for Foreign Affairs and has the honour to transmit, herewith, at the instance of His Majesty's Government in Canada, a list of the addresses of the Canadian authorities referred to in the Ministry's Note Verbale No. V 9745 of July 9th last.

His Majesty's Embassy would be glad to receive, at the Ministry's convenience, an official Note in acknowledgement and confirmation of His Majesty's Ambassador's Note of July 1st last.

IV

The Minister of Foreign Affairs of Germany to the British Ambassador at Berlin.

MINISTRY FOR FOREIGN AFFAIRS

BERLIN, November 29, 1935

I have the honour to acknowledge the receipt of the Note, No. 192 101/10/35, signed by His Britannic Majesty's Chargé d'Affaires, Mr. B.C. Newton, and dated July 1st, 1935.

The German Government has taken note that the Government of His Britannic Majesty in Canada desires to see the application of the Anglo-German Civil Procedure Convention of March 20th , 1928, extended to the Dominion of Canada with effect from August 1st 1935. The German Government also takes note of the enclosure in you communication of November 11th, 1935 - No. 337/101/15/35 indicating the authorities to whom judicial and extra judicial documents and letters of request are to be transmitted and the language in which communications and translations are to be made.

In accordance with article 18 (a) of the Civil Procedure Convention of March 20th, 1928, its provisions entered into force as regards Canada on August 1st, 1935.

I avail myself of this opportunity to renew to Your Excellency the assurance of my highest consideration.

Bulow

CONVENTION BETWEEN HIS MAJESTY AND THE PRESIDENT OF THE GERMAN REICH 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:

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

The Right Honourable Sir Austen Chamberlain, K.G., M.P., His Majesty's Principal Secretary of State for Foreign Affairs;

The President of the German Reich:

His Excellency Dr. Friedrich Sthamer, Ambassador Extraordinary and Plenipotentiary of the German Reich in London;

who, having communicated their full powers, found in good and due form, have agreed as follows:

(a) The request for service shall be transmitted:

In England by a German diplomatic or consular officer to the Senior Master of the Supreme Court of Judicature in England.

In Germany by a British consular officer to the President of the German "Landgericht."

(b) The request, containing the name of the authority from whom the document transmitted emanates, the names and descriptions of the parties, the address of the recipient and the nature of the document in question shall be drawn up in the language of the country in which the documents are to be served. If in a particular case the judicial authority applied to shall express a desire to that effect to the diplomatic or consular officer by whom the request is transmitted, such officer shall furnish a translation of the documents to be served.

(c) Service shall be effected by the competent authority of the country applied to. Such authority, except in the cases provided for in paragraph (d) of this article, may limit his action to effecting service by the transmission of the document to the recipient if he is willing to accept it.

(d) If the document to be served is drawn up in the language of the country applied to, or is accompanied by a translation in that language, the authority applied to (should a wish to that effect be expressed in the request) shall serve the document in the manner prescribed by the law of his own country for the service of similar documents or in a special form which is not incompatible with such law.

(e) The translation provided for in this article shall be certified as correct by a diplomatic or consular officer of the Contracting Party making the request or by an official or sworn translator of one of the two countries concerned.

(f) The execution of the request for service can only be refused if the Contracting Party in whose territory it is to be effected considers it such as to compromise his sovereignty or safety.

(g) The authority who receives the request shall send to the diplomatic or consular officer by whom it was transmitted the document proving the service or explaining the reason which has prevented such service. Proof of service shall be furnished by a certificate from the authority of the country applied to setting forth the fact, the manner and date of such service. If any document to be served is transmitted in duplicate, the certificate of service shall be placed on one of the duplicates or attached thereto.

ARTICLE 4

Nevertheless, in the cases provided for in Article 3, the Contracting Party making the request must pay to the other Contracting Party any charges and expenses which are payable under the local law 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 be such as are usually allowed in such cases in the Courts of the Contracting Party applied to. Repayment of these charges and expenses shall be claimed by the judicial authority by whom the service has been effected when sending the certificate provided for in Article 3 (g) to the diplomatic or consular officer by whom the request was transmitted.

ARTICLE 5

The document to be served may also be served on the recipient, unless he is a subject or citizen of the Contracting Party in whose territory the document is to be served, without the intervention of the authorities of the country in which service is to be effected:

a) By a diplomatic or consular officer of the Contracting Party from whose territory the document emanates; or

b) By an agent appointed either generally or in any particular case, by a tribunal of the country from which the document emanates, or by the party on whose application the document was issued, provided that the validity of any service effected by any such agent shall, in the courts of the country where such service is effected, be determined by the law of that country.

ARTICLE 6

(b) The "Letters of Request" shall be drawn up in the language of the authority to whom they are addressed, or be accompanied by a translation in such language certified as correct by a diplomatic or consular officer of the Contracting Party making the request, or by an official or sworn translator of one of the two countries concerned.

(c) The "Letters of Request" shall be transmitted:

In England by a German diplomatic or consular officer to the Senior Master of the Supreme Court of Judicature in England;

In Germany by a British consular officer to the President of the German Landgericht.

(d) It shall be incumbent upon the judicial authority to whom the "Letters of Request" are addressed to give effect thereto by the use of the same compulsory measures as are employed in the execution of a commission or order emanating from the authorities of his own country.

(e) The diplomatic or 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 the interested party or parties may be able to be present, or to be represented.

(f) The execution of the "Letters of Request" can only be refused:

(1) If the authenticity of the "Letters of Request" is not established;

(2) If in the country where the evidence is to be taken, the execution of the "Letters of Request" in question does not fall within the functions of the judiciary;

(3) If the Contracting Party applied to considers that his sovereignty or safety would be compromised thereby.

(g) In case the authority to whom they are addressed is without jurisdiction, the "Letters of Request" shall be forwarded without any further request to the competent authority of the same country in accordance with the rules laid down by its law.

(h) 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 diplomatic or consular officer by whom the "Letters of Request" 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.

(i) The authority which executes the "Letters of Request" will apply, so far as the procedure to be followed is concerned, the law of his own country.

Nevertheless, an application by the authority making the request that some special procedure may be followed shall be acceded to, provided that such procedure is not incompatible with the law of the country applied to.

Nevertheless, the Contracting Party making the request shall repay to the other Contracting Party 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 the competent judicial authority may have deputed to act in cases where his municipal law permits this to be done, and any charges and expenses incurred by reason of a special procedure being requested and followed.

The repayment of these charges and expenses may be claimed by the judicial authority by whom the "Letters of Request" have been executed, when sending to him the documents establishing their execution, from the diplomatic or consular officer by whom they were transmitted. These charges and expenses shall be such as are usually allowed in such case in the courts of the country where the "Letters of Request" have been executed.

Provided that this Article shall not apply to the taking of evidence of subjects or citizens of the Contracting Party in whose territory it is to be taken unless and until the German Government, at any time, by a notification* given through their Ambassador in London, signify their consent to the Article being so applied, in which case this Article shall, as from the date of such notification, apply to such subjects or citizens if they consent to their evidence being so taken.

(b) The diplomatic or consular officer appointed to take the evidence may request named individuals to appear as witnesses or to produce any document, and shall have power to administer an oath, but he shall have no compulsory powers.

(c) The evidence may be taken in accordance with the procedure laid down by the law of the country in which the evidence is to be used, and the parties shall have the right to be present, and to be represented by counsel or solicitors of that country, or by any person competent to appear before the tribunals of either country.

a) The competent court of the Contracting Parties applied to may also be requested to cause the evidence to be taken by a diplomatic or consular officer of the Contracting Party making the request.

The court applied to shall, in the case of subjects or citizens of the Contracting Party making the request, take the necessary steps to secure the attendance of the giving of evidence by witnesses and other persons to be examined, and the production of documents, making use, if necessary, of its compulsory powers.

(b) The person thus nominated shall have power to administer an oath. The evidence shall be taken in accordance with the law of the country in which it is to be used, and the parties shall have the right to be present in person or represented by counsel or solicitors of that country or by any persons who are competent to act before the courts of either country.

(a) The present 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 areas administered by his Government in Great Britain, but His Britannic Majesty may at any time, by a notification given through His Majesty's Ambassador at Berlin, extend the operation of this Convention to any of the above-mentioned territories.

(b) Such notification shall state the date on which such extension shall come into force, the authorities in the territory concerned to whom judicial and extra-judicial documents and "Letters of Request" are to be transmitted, and the language in which communications to such authorities and translations should be made. The date of the coming into force of any such extension shall not be less than one month from the date of such notification.

(c) Either of the Contracting Parties may, at any time after the expiry of three years from the coming into force of the extension of this Convention to any of the territories referred to in paragraph (a) of this Article, terminate such extension on giving six months' previous notice.

ARTICLE 18

(a) His Britannic Majesty may at any time, by a notification given through his Ambassador at Berlin, accede to the present Convention in respect of any of his self-governing Dominions or India. The provisions of Article 17 (b) shall be applicable to any such notification. Any such accession shall take effect one month after the date of its notification.

(b) After the expiry of a period of three years from the date of the coming into force of any accession under paragraph (a) of this Article, either of the Contracting Parties may, by giving six months' notice, terminate the application of the Convention to any country in respect of which such notification of accession has been given. In the absence of such notice, the termination of the Convention under Article 16 shall not affect its application to any such country.

(c) Any notification made under paragraph (a) of this Article may include any dependency or mandated area administered by the Government of the country in respect of which the notification of accession is given; and any notice of termination given under paragraph (b) shall apply to any such dependency or mandated area which was included in such notification of accession.

IN WITNESS WHEREOF the respective Plenipotentiaries have signed the present Convention and have affixed thereto their seals.

DONE in duplicate at London the twentieth day of March, 1928.

Austen Chamberlain

Sthamer

* This notification was made by the German Ambassador on February 15, 1929.