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Exchange of Notes (May 17, July 1st and 20, 1935) extending to Canada as from the 1st August, 1935, the Convention between His Majesty, in respect of the United Kingdom, and His Majesty the King of Norway regarding Legal Proceedings in Civil and Commercial Matters [1935] CATSer 6 (1 August 1935)

E101564 - CTS 1935 No. 15

EXCHANGE OF NOTES (May 17, July 1st and 20, 1935) EXTENDING TO CANADA AS FROM THE 1st AUGUST, 1935, THE CONVENTION BETWEEN HIS MAJESTY, IN RESPECT OF THE UNITED KINGDOM, AND HIS MAJESTY THE KING OF NORWAY 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

DEPARTMENT OF EXTERNAL AFFAIRS

Ottawa, May 17, 1935.

Sir,

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

The British Minister at Oslo to the Minister of Foreign Affairs of Norway

BRITISH LEGATION

Oslo, July 1, 1935

Your Excellency,

At the instance of His Majesty’s Government in Canada, I have the honour to notify to Your Excellency, in accordance with Article 15 (a) of the convention regarding legal proceedings in civil and com­mercial matters, which was signed at London on the 30th January, 1931, the accession of His Majesty to that convention in respect of the Dominion of Canada.

The attached list indicates the authority in the various Provinces of Canada to whom requests for service or for the taking of evidence should be transmitted, and the language in which communications and translations are to be made.

In accordance with Article 15 (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 avail myself of this opportunity to renew to Your Excellency the assurance of my highest consideration.

Cecil Dormer

PROVINCE OR TERRITORY

AUTHORITY

LANGUAGE

Ontario

Attorney-General

English

Quebec

Attorney-General

English or French

Nova Scotia

Attorney-General

English

Prince Edward Island

Attorney-General

English

New Brunswick

Attorney-General

English

British Columbia

Attorney-General

English

Manitoba

Attorney-General

English

Saskatchewan

Attorney-General

English

Alberta

Attorney-General

English

North West Territories

Commissioner of the North West Territories

English

Yukon Territory

The Gold Commissioner of the Yukon Territory

English

III

The Minister of Foreign Affairs of Norway to the British Minister at Oslo

ROYAL NORWEGIAN MINISTRY OF FOREIGN AFFAIRS

Oslo, July 20, 1935.

Monsieur le Ministre,

I have the honour to acknowledge the receipt of your note No. 65 of the 1st instant, in which, in accordance with Article 15 (a) of the Civil Procedure Convention between Norway and Great Britain of January 30th, 1931, you state that that Convention is acceded to in respect of the Dominion of Canada, so that in accordance with Article 15 (a) the Convention enters into force as regards the Dominion in question on August 1st of this year.

I note that the English language is to be used in communications and trans­lations which are sent to the various provinces and territories in the Dominion of Canada, with the exception of the Province of Quebec, in which case either English or French may be used. I further take note to which authority requests for service and for the taking of evidence are to be transmitted in each individual case.

Accept, Monsieur le Ministre, the assurance of my highest consideration.

Aug. Esmarch


CONVENTION BETWEEN HIS MAJESTY, IN RESPECT OF THE UNITED KINGDOM AND HIS MAJESTY THE KING OF NORWAY 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, and His Majesty the King of Norway,

Being desirous to render mutual assistance in the conduct of legal proceed­ings, in their respective territories, in civil and commercial matters which are being dealt with or is which may possibly be dealt with by then respective judicial authorities;

Have resolved to conclude a Convention for this purpose and have appointed as their plenipotentiaries:

His Majesty the King of Great Britain, Ireland and the British Dominions beyond the Seas, Emperor of India;

For Great Britain and Northern Ireland:

The Rt. Hon. Arthur Henderson, M.P., His Secretary of State for Foreign Affairs;

and His Majesty the King of Norway:

Monsieur Benjamin Vogt, His Envoy Extraordinary and Minister Pleni­potentiary in London;

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

I - PRELIMINARY

ARTICLE 1

(a) This Convention applies only to civil and commercial matters, including non-contentious matters.

(b) In this Convention the words “territory of one (or of the other) High Contracting Party” shall be interpreted as meaning at any time any of the territories of such High Contracting Party to which the Convention at that time applies.

II - SERVICE OF JUDICIAL AND EXTRA-JUDICIAL DOCUMENTS

ARTICLE 2

When judicial or extra-judicial documents drawn up in the territory of one of the High Contracting Parties are required to be served on persons, partner­ships, companies, societies or other corporations in the territory of the other High Contracting Party such documents may be served on the recipient, what­ever his nationality, in the manner provided in Article 3.

ARTICLE 3

(a) A request for service shall be addressed by a Diplomatic or Consular Officer of the High Contracting Party from whose territory the documents to be served emanate, to the competent authority of the country where the docu­ments are to be served, requesting such authority to cause the documents to be served. The request shall be sent by such Diplomatic or Consular Officer to such authority.

(b) The request for service shall be drawn up in the language of the country where service is to be effected.

The request for service shall state the full names and descriptions of the parties, the full names, address and description of the recipient, and the nature of the document to be served, and shall enclose the documents to be served in duplicate.

(c) The document to be served shall either be drawn up in the language of the country in which it is to be served, or be accompanied by a translation in such language. Such translation shall be certified as correct by a Diplomatic or Consular Officer of the High Contracting Party from whose territory the document emanates or by a sworn translator of one of the two countries con­cerned.

(d) Requests for service shall be addressed and sent:

In Norway to the Tribunal of First Instance in the jurisdiction of which service is to be effected.

In England to the Senior Master of the Supreme Court of Judicature.

If the authority to whom a request for service has been sent is not com­petent to execute it, such authority shall of his own motion transmit the docu­ment to the competent authority of his own country.

(e) Service shall be effected by the competent authority of the country where the document is to be served, who shall serve the document in the manner prescribed by the municipal law of such country for the service of similar docu­ments, except that, if a wish for some special manner of service is expressed in the request for service, such manner of service shall be followed in so far as it is not incompatible with the law of that country.

(f) The execution of the request for service duly made in accordance with the preceding provisions of this Article shall not be refused unless (1) the authenticity of the request for service is not established, or (2) the High Con­tracting Party in whose territory it is to be effected considers that his sovereignty or safety would be compromised thereby.

(g) The authority by whom the request for service is executed shall fur­nish a certificate proving the service or explaining the reason which has pre­vented such service, and setting forth the fact, the manner and the date of such service or attempted service, and shall send the said certificate to the Diplomatic or Consular Officer by whom the request for service was made. The certificate of service or of attempted service shall be placed on one of the duplicates or attached thereto.

ARTICLE 4

(a) The provisions of Articles 2 and 3 in no way prejudice the right to use in the territory of either High Contracting Party without any request to or inter­vention of the authorities of the country where service is effected, any of the following methods of service in connection with judicial or extra-judicial docu­ments drawn up in the territory of the other High Contracting Party:

(1) Service by a Diplomatic or Consular Officer of the High Contracting Party from whose territory the document emanates;

(2) Service by an agent appointed for the purpose, either by the judicial authority by whom service of the document is required or by the party on whose application the document was issued;

(3) Through the post;

(4) Any other mode of service recognized by the law existing at the time of service in the country from which the documents emanate.

(b) It is understood that the validity and effect of any such service will remain a matter for the determination of the respective courts of the High Contracting Parties in accordance with their law.

(c) The High Contracting Parties agree that in principle it is desirable that documents served by any of these methods should, unless the recipient is a subject of the High Contracting Party from whose territory the document to be served emanates, either be drawn up in the language of the country in which service is to be effected or accompanied by a translation into such language. Nevertheless, in the absence of any legislation in their respective territories making translations obligatory in such cases, the High Contracting Parties do not accept any obligation in this respect.

ARTICLE 5

(a) In any case where documents have been served in accordance with the provisions of Article 3, the High Contracting Party, by whose Diplomatic or Consular Officer the request for service is addressed, shall pay to the other High Contracting Party any charges and expenses which are payable under the law of the country where the service is effected 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 not exceed such as are usually allowed in the courts of that country.

(b) Repayment of these charges and expenses shall be claimed by the com­petent authority by whom the service has been effected from the Diplomatic or Consular Officer by whom the request was addressed when sending to him the certificate provided for in Article 3 (g).

(c) Except as provided above, no fees of any description shall be payable by one High Contracting Party to the other in respect of the service of any documents.

III - TAKING OF EVIDENCE

ARTICLE 6

When a judicial authority in the territory of one of the High Contracting Parties requires that evidence should be taken in the territory of the other High Contracting Party, such evidence may be taken in the manner prescribed in Article 7. The taking of evidence includes the production, identification and examination of documents.

ARTICLE 7

(a) The judicial authority by whom the evidence is required may, in accord­ance with the provisions of its law, address itself by means of "Letters of Request" to the competent authority of the country where the evidence is to be taken, requesting such authority to take the evidence.

(b) The “Letter of Request” shall be drawn up in the language of the country where the evidence is to be taken, or be accompanied by a translation in such language. Such translation shall be certified as correct by a Diplomatic or Consular Officer of the High Contracting Party from whose judicial authority the request emanates, or by a sworn translator of one of the two countries con­cerned. The "Letters of Request" shall state the nature of the proceedings for which the evidence is required, the full names of the parties thereto, and the full names, addresses and descriptions of the witnesses. They shall also either be accompanied by a list of interrogatories to be put to the witness or witnesses and a translation thereof certified as correct in the manner heretofore provided or shall contain full instructions or information as to the matters in relation to which evidence is required, or alternatively shall request the competent authority to allow such questions to be asked viva voce as the parties or their representa­tives shall desire to ask.

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

In England by a Norwegian Diplomatic or Consular Officer to the Senior Master of the Supreme Court of Judicature.

In Norway by a British Diplomatic or Consular Officer to the Tribunal of First Instance in the jurisdiction of which the evidence is to be taken.

In case the authority to whom “Letters of Request” are transmitted is not competent to execute them, such authority shall forward the "Letters of Request" without any further request to the competent authority of his own country.

(d) The competent authority to whom the "Letters of Request" are trans­mitted or forwarded shall give effect thereto and obtain the evidence required by the use of the same compulsory measures and the same procedure as are employed in the execution of a commission or order emanating from the authori­ties of his own country, except that if a wish that some special procedure should be followed is expressed in the “Letters of Request” such special procedure shall be followed in so far as it is not incompatible with the law of the country where the evidence is to be taken.

(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 he may inform the interested party or parties who shall be permitted to be present in person or to be represented if they so desire.

(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 High Contracting Party in whose territory the evidence is to be taken considers that his sovereignty or safety would be compromised thereby.

(g) In every instance is here 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 they 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.

ARTICLE 8

(a) The provisions of Articles 6 or 7 in no way prejudice the right of tak­ing evidence, required by a judicial authority in the territory of one High Con­tracting Party, in the territory of the other, without any request to or inter­vention of the authorities of the country where the evidence is taken, by a person qualified to do so according to the law of the country by whose court the evidence is required. Such person may be a Diplomatic or Consular Officer of the High Contracting Party whose court requires the evidence or any other suitable person directly appointed for the purpose.

(b) It is understood that where the method of taking evidence referred to in the preceding paragraph is employed, the procedure must be entirely voluntary and no measures of compulsion can be employed and the admissibility of evidence so taken remains a matter for the determination of the respective courts of the High Contracting Parties in accordance with their law.

ARTICLE 9

The fact that an attempt to take evidence by the method mentioned in Article 8 has failed owing to the refusal of any witness to appear, to give evid­ence or to produce documents, does not preclude a request being subsequently made in accordance with Article 7.

ARTICLE 10

(a) Where evidence is taken in the manner provided in Article 7 the High Contracting Party by whose judicial authority the "Letters of Request" are addressed shall repay to the other High Contracting Party any expenses incurred by the competent authority of the latter in the execution of the request in respect of 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 such authority may have deputed to act in cases where the law of his own country permits this to be done, and any charges and expenses incurred by reason of a special procedure being requested and followed. These expenses shall be such as are usually allowed in similar cases in the courts of the country where the evidence has been taken.

(b) The repayment of these expenses shall be claimed by the competent authority by whom the “Letters of Request” have been executed from the Diplomatic or Consular Officer by whom they were transmitted when sending to him the documents establishing their execution.

(c) Except as above provided, no fees of any description shall be payable by one High Contracting Party to the other in respect of the taking of evidence.

IV - JUDICIAL ASSISTANCE FOR POOR PERSONS, IMPRISONMENT FOR DEBT AND SECURITY FOR COSTS

ARTICLE 11

The subjects of one High Contracting Party shall enjoy in the territory of the other High Contracting Party a perfect equality of treatment with subjects of that High Contracting Party as regards free judicial assistance for poor per­sons and imprisonment for debt; and provided that they are resident in any such territory, shall not be compelled to give security for costs in any case where a subject of such other High Contracting Party would not be so compelled.

V - GENERAL PROVISIONS

ARTICLE 12

Any difficulties which may arise in connection with the operation of this Convention shall be settled through the Diplomatic channel.

ARTICLE 13

The present Convention, of which the English and Norwegian texts are equally authentic, shall be subject to ratification. Ratifications shall be exchanged in London. The Convention shall come into force one month after the date on which ratifications are exchanged and shall remain in force for three years after the date of its coming into force. If neither of the High Contracting Parties shall have given notice through the diplomatic channel to the other not less than six months before the expiration of the said period of three years of his intention to terminate the Convention, it shall remain in force until the expiration of six months from the day on which either of the High Contracting Parties shall have given notice to terminate it.

ARTICLE 14

(a) This 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 territories admin­istered by his Government in the United Kingdom of Great Britain and North­ern Ireland, but his Britannic Majesty may at any time, while the Convention is in force, under Article 13, by a notification given through his Minister at Oslo, extend the operation of this Convention to any of the above-mentioned territories.

(b) Such notification shall state the authorities in the territory concerned to whom requests for service or for the taking of evidence are to be transmitted, and the language in which communications and translations are to be made. The date of the coming into force of any such extension shall be one month from the date of such notification.

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

(d) The termination of the Convention under Article 13 shall, unless other­wise expressly agreed to by both High Contracting Parties, ipso facto terminate it in respect of any territories to which it has been extended under paragraph (a) of this Article.

ARTICLE 15

(a) His Britannic Majesty may at any time, while the present Convention is in force, either under Article 13 or by virtue of any accession under this article, by a notification given through the diplomatic channel accede to the present Convention in respect of any of his self-governing Dominions or India, provided that no notification of accession may be given at any time when His Majesty the King of Norway has given notice of termination in respect of all the terri­tories of His Britannic Majesty to which the Convention applies. The pro­visions of Article 14 (b) shall be applicable to such notification. Any such accession shall take effect one month after the date of its notification.

(b) After the expiry of three years from the date of the coining into force of any accession under paragraph (a) of this Article, either of the High Con­tracting Parties may, by giving a six months’ notice of termination through the diplomatic channel, terminate the application of the Convention to any country in respect of which a notification of accession has been given. The termination of the Convention under Article 13 shall not affect its application to any such country.

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

IN WITNESS WHEREOF the undersigned have signed the present Convention, in English and Norwegian, and have affixed thereto their seals.

DONE in duplicate at London, the 30th day of January, 1931.

Arthur Henderson

Benjamin Vogt


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