Exchange of Notes (October 9, 1935, January 1 and 3, 1936) extending to Canada as from February 1, 1936, the Convention between Great Britain and Northern Ireland and Finland regarding Legal Proceedings in Civil and Commercial Matters [1936] CATSer 2 (1 February 1936)

EXCHANGE OF NOTES (October 9, 1935, January 1 and 3, 1936) EXTENDING TO CANADA AS FROM FEBRUARY 1, 1936, THE CONVENTION BETWEEN GREAT BRITAIN AND NORTHERN IRELAND AND FINLAND REGARDING LEGAL PROCEEDINGS IN CIVIL AND COMMERCIAL MATTERS

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The Secretary of State for External Affairs of Canada to the Secretary of State for Dominion Affairs

I have the honour to refer to my dispatch No 126, dated the 17th May, 1935, and to the Civil Procedure Conventions which have been concluded with Estonia, Denmark, Finland, Lithuania and the Netherlands, 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 respective Governments. Such extension should, if it is possible, come into force from a fixed date and it is desirable that that date should be the first day of January, 1936. If, however, the adoption of a fixed date is impracticable, the date of ratification would be satisfactory, and, further if the date suggested is not satisfactory, a later date, say the first day of February, 1936, should be adopted.

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 the 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 have included a tabulated list of the authorities, together with their addresses, in my despatch No. 251 of even date, herewith.

I shall be obliged, therefore, if steps will be taken to make the necessary notifications to the interested Governments.

PROVINCE OR TERRITORY	AUTHORITY AND ADDRESS	LANGUAGE
Ontario	Attorney-General, Toronto	English
Quebec	Attorney-General, Quebec	English or French
Nova Scotia	Attorney-General, Halifax	English
Prince Edward Island	Attorney-General, Charlottetown	English
New Brunswick	Attorney-General, Fredericton	English
British Columbia	Attorney-General, Victoria	English
Manitoba	Attorney-General, Winnipeg	English
Saskatchewan	Attorney-General, Regina	English
Alberta	Attorney-General, Edmonton	English
North West Territories	Commissioner for the North West Territories, Ottawa	English
Yukon Territory	The Gold Commissioner of the Yukon Territory, Dawson City	English

The British Minister at Helsingfors to the Minister of Foreign Affairs of Finland

At the instance of His Majesty’s Government in Canada I have the honour to notify 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 11th August, 1933, the accession of His Majesty to that convention in respect of the Dominion of Canada.

The attached list indicates in respect of each province or territory in Canada the authority to whom requests for service under Article 3 or Letters of Request under Article 7 should he transmitted. The language in which communications and translations are to be made is English except in the Province of Quebec, where they may be made either in French or in English.

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 February next.

In requesting that Your Excellency will be so good as to acknowledge the receipt of this communication, I avail myself of this opportunity, Monsieur le Ministre, to renew to Your Excellency the assurance of my high consideration.

From the Minister of Foreign Affairs of Finland to the British Minister at Helsingfors

I have the honour to acknowledge the receipt of your note No. 1 of the 1st inst. in which you were good enough to notify to me the accession of His Majesty to the convention regarding legal proceedings in civil and commercial matters in respect of the Dominion of Canada; this accession coming into force on the 1st February next.

I have taken good notice of the information as to the authorities to whom requests for service and Letters of Request are to be transmitted and of the information that the language in which communications and translations are to be made is English except in the Province of Quebec, where they may be made either in French or in English.

Thanking you for the information I have the honour to inform you that I will not fail to bring it to the notice of the Finnish authorities concerned.

I avail myself of this opportunity to renew to you, Monsieur le Ministre, the assurance of my full consideration.

CONVENTION BETWEEN HIS MAJESTY IN RESPECT OF THE UNITED KINGDOM AND THE PRESIDENT OF FINLAND 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 the President of the Republic of Finland;

Being desirous to render mutual assistance in the conduct of legal proceedings in civil and commercial matters which are being dealt with or which it is anticipated may be dealt with by their 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:

Sir Robert Vansittart, G.C.M.G., K.C.B., M.V.O. Permanent Under-Secretary of State for Foreign Affairs;

Monsieur George Achates Gripenberg, Envoy Extraordinary and Minister Plenipotentiary of the Republic of Finland in London;

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

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

(a) 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 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.

(b) In Part II of this Convention the expression “country of origin” means the country from which the documents to be served emanate, and the expression “country of execution” means the country in which service of documents is to be effected.

(a) A request for service shall be addressed and sent by a Diplomatic or Consular Officer acting for the country of origin to the competent authority of the country of execution, requesting such authority to cause the document in question to be served.

(b) The request for service shall be drawn up in the language of the country of execution and shall state the full names and descriptions of the parties, the full name, description and address of the recipient, and the nature of the document to be served, and shall enclose the document to be served in duplicate.

(c) The document to be served shall either be drawn up in the language of the country of execution, or be accompanied by a translation into such language. Such translation shall be certified as correct by a Diplomatic or Consular Officer acting for the country of origin.

If the authority to whom a request for service has been sent is not competent to execute it, such authority shall (except in cases where execution is refused in accordance with paragraph (f) of this Article) of his own motion forward the request to the competent authority of the country of execution.

(e) Service shall be effected by the competent authority of the country of execution, 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 a 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 he executed considers that his sovereignty or safety would be compromised thereby.

(g) In every instance where a request for service is not executed by the authority to whom it has been sent, the latter will at once inform the Diplomatic or Consular Officer by whom the request was sent, stating the ground on which the execution of the request has been refused or the competent authority to whom it has been forwarded.

(h) 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 sent. The certificate of service or of attempted service shall be placed on one of the duplicates or attached thereto.

(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 of execution, 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:

(b) The High Contracting Parties agree that in principle it is desirable that documents served by any of the methods referred to in paragraph (a) of this Article should, unless the recipient is a subject or citizen of the High Contracting Party from whose territory the document to be served emanates, either be drawn up in the language of the country of execution or be 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.

(c) It is understood that the question of the validity and effect of any service effected by the use of any of the methods referred to in paragraph (a) of this Article will remain a matter for the free determination of the respective courts of the High Contracting Parties in accordance with their laws.

(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 was addressed shall repay to the other High Contracting Party any charges and expenses which are payable under the law of the country of execution 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 (h).

(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.

(a) 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, whatever the nationality of the parties or witnesses may be, in the manner prescribed in Article 7.

(b) In Part III of this Convention (but without prejudice to the safeguards in respect of the law of the country of execution contained in paragraph (d) of Article 7) the expressions:

(a) The judicial authority of the country of origin may, in accordance with the provisions of the law of his country, address himself by means of a Letter of Request to the competent authority of the country of execution, requesting such authority to take the evidence.

(b) The Letter of Request shall be drawn up in the language of the country of execution or be accompanied by a translation into such language. Such translation shall be certified as correct by a Diplomatic or Consular Officer acting for the country of origin. The Letter of Request shall state the nature of the proceedings for which the evidence is required, giving all necessary information in regard thereto, the full names and descriptions of the parties thereto, and the full names. descriptions and addresses of the witnesses. It shall also either (1) be accompanied by a list of interrogatories to be put to the witness or witnesses, or, as the case may be, by a description of the documents, samples or other objects to be produced, identified or examined, and a translation thereof, certified as correct in the manner heretofore provided; or (2) shall contain instructions or information as to the matters in relation to which evidence is required; or (3) shall request the competent authority to allow such questions to be asked viva voce as the parties or their representatives shall desire to ask.

In case the authority to whom any Letter of Request is transmitted is not competent to execute it, such authority shall (except in cases where execution is refused in accordance with paragraph (f) of this Article) of his own motion forward the Letter of Request to the competent authority of the country of execution.

(d) The competent authority of the country of execution shall give effect to the Letter of Request 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 Letter of Request, such special procedure shall be followed in so far as it is not incompatible with the law of the country of execution.

(e) The Diplomatic or Consular Officer, by whom the Letter of Request is transmitted, shall, if he so desires, be informed of the date when and the 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, by barristers or solicitors or by any representatives who are competent to appear before the courts either of the country of origin of the country of execution.

(f) The execution of a Letter of Request which complies with the preceding provisions of this Article can only be refused:

(g) In every instance where a Letter of Request is not executed by the authority to whom it is addressed, the latter will at once inform the Diplomatic or Consular Office by whom it was transmitted stating the grounds on which the execution of the Letter of Request has been refused, or the competent authority to whom it has been forwarded.

(h) When a Letter of Request has been executed the competent authority to whom it was transmitted or forwarded shall send to the Diplomatic or Consular Officer by whom it was transmitted the necessary documents establishing its execution.

(a) The provisions of Articles 6 and 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 the intervention of the authorities of the country of execution by a person qualified to do so according to the law of the country of origin. Such person may be a Diplomatic or Consular Officer acting for the country of origin or another suite by individual 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.

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

(a) Where evidence is taken in the manner provided in Article 7, the High Contracting Party, by whose judicial authority the Letter of Request was addressed, shall pass 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 appealed voluntarily, and the charges and expenses payable to any person whom such authority may have deputed to act, in cases where the law of the country of execution 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 of execution.

(b) The repayment of these expenses shall be claimed by the competent authority by whom the Letter of Request has been executed from the Diplomatic or Consular Officer by whom it was transmitted when sending to him the documents establishing its execution as provided in Article 7 (h).

(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

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

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

The present Convention, of which the Finnish and Swedish and English 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 examined 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.

(a) This Convention shall not apply ipso facto to Scotland or Northern Ireland, nor to any of the Colonies or Protectorates of His Majesty the King of Great Britain, Ireland and the British Dominions beyond the Seas, Emperor of India, nor to any territories under His suzerainty, nor to any Mandated territories in respect of which the mandate is exercised by His Government in the United Kingdom, but His Majesty may at any time, while this Convention is in force under Article 13, by a notification given through His Minister at Helsingfors, extend the operation of the Convention to any of the above-mentioned territories.

(b) Such notification shall state the authorities in the territory concerned to whom requests for service under Article 3 or Letters of Request under Article 7 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.

(a) The High Contracting Parties agree that His Majesty the King of Great Britain, Ireland and the British Dominions beyond the Seas, Emperor of India, 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 other Member of the British Commonwealth of Nations whose Government may desire that such accession should be effected, provided that no notification of accession may be given at any time when the President of the Republic of Finland has given notice of termination in respect of all the territories of His 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 coming into force of any accession under paragraph (a) of this Article, either of the High Contracting Parties may, by giving 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 Finnish, Swedish and English texts, and have affixed thereto their seals.

Canadian Treaty Series

Exchange of Notes (October 9, 1935, January 1 and 3, 1936) extending to Canada as from February 1, 1936, the Convention between Great Britain and Northern Ireland and Finland regarding Legal Proceedings in Civil and Commercial Matters [1936] CATSer 2 (1 February 1936)