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Exchange of Notes (June 1 and 4, 1938) extending to Canada as from July 1, 1938, the Convention between Great Britain and Northern Ireland and Greece regarding Legal Proceedings in Civil and Commercial Matters [1938] CATSer 2 (1 July 1938)

CONVENTION BETWEEN HIS MAJESTY IN RESPECT OF THE UNITED KINGDOM AND HIS MAJESTY THE KING OF THE HELLENES 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 the Hellenes;

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:

For Great Britain and Northern Ireland:

The Right Honourable Robert Anthony Eden, M.C., M.P., His Principal Secretary of State for Foreign Affairs;

and

His Majesty the King of the Hellenes:

Monsieur Charalambos Simopoulos, 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) Except where the contrary is expressly stated this Convention applies only to civil and commercial matters, including non-contentious matters.

(b) In this Convention the words:-

(1) “territory of one (or of the other) “High Contracting Party” shall be interpreted (a) in relation to His Majesty the King of Great Britain, Ireland and the British Dominions beyond the Seas, Emperor of India, as meaning England and Wales and all territories in respect of which the Convention is in force by reason of extensions under Article 15 or accessions under Article 16, and (b) in relation to His Majesty the King of the Hellenes, Greece;

(2) “persons” shall be deemed to me an individual and artificial persons;

(3) “artificial persons” shall be deemed to include partnerships, companies, societies and other corporations;

(4) “subjects of a High Contracting Party” shall be deemed to include artificial persons constituted or incorporated under the laws of the territory of such High Contracting Party;

(5) “subjects of one (or of the other) High Contracting Party” shall be deemed (a) in relation to His Majesty the King of Great Britain, Ireland and the British Dominions beyond and the Seas, Emperor of India to mean all subjects of His Majesty wherever domiciled, and all persons under His protection; and (b) in relation to His Majesty the King of the Hellenes all Greek subjects.

II. Service of Judicial and Extra-Judicial Documents

ARTICLE 2

(a) When judicial or extra-judicial documents drawn up in the territory of one of the High Contracting Parties are required by a judicial authority situated therein 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, by any of the methods provided in Articles 3 and 4 in all cases where such method of service is recognized by the law of the country of origin.

(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.

ARTICLE 3

(a) A request for service shall be addressed and sent by a 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 names and descriptions of the parties, the 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 Consular Officer acting for the country of origin.

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

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

In Greece to the Procurer of the Tribunal of First Instance within whose jurisdiction the person, on whom the documents are to be served, resides, or, in case of doubt, to the Ministry of Justice.

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 be 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 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 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.

ARTICLE 4

(a) Service may be effected, without any request to or intervention of the authorities of the country of execution, by any of the following methods:

(1) By a Consular Officer acting for the country of origin;

(2) By an agent appointed for the purpose either by the judicial authority of the country of origin or by the party on whose application the document was issued;

(3) Through the post; or

(4) By any other method of service which is not illegal, under the law existing at the time of service, in the country of execution.

(b) All documents served in the manner provided in (1) of the preceding paragraphs shall, 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 of execution or be accompanied by a translation into such language, certified as correct as prescribed in Article 3 (c).

(c) The High Contracting Parties agree that in principle it is also desirable that the provisions of paragraph (b) of this article should apply to documents served in the manner provided in (2), (3) and (4) of paragraph (a) of this Article. 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.

(d) It is understood that the question of the validity 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.

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 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 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.

III. Taking of Evidence

ARTICLE 6

(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 any one of the ways prescribed in Articles 7 or 8.

(b) In Part III of this Convention, the expressions -

(1) “Taking of evidence” shall be deemed to include the taking of the statements of a plaintiff, defendant, expert or any other person on oath or otherwise; the submission to a plaintiff, defendant, expert or any other person of any oath with regard to any legal proceedings; and the production, identification and examination of documents, samples or other objects.

(2) “Witness” shall be deemed to include any person from whom any evidence, as defined above, is required to be taken.

(3) “Country of origin” shall be deemed to mean the country by whose judicial authority the evidence is required, and “country of execution,” the country in which the evidence is to be taken.¸

ARTICLE 7

(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 Consular Officer 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 names of the parties thereto, and the names, descriptions and addresses of the witnesses. They 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 request the competent authority to allow such questions to be asked vivâ voce as the parties or their repre­sentatives shall desire to ask.

(c) Letters of Request shall be transmitted -

In England by a Greek Consular Officer to the Senior Master of the Supreme Court of Judicature.

In Greece by a British Consular Officer to the Procurer of the Tribunal of First Instance within whose jurisdiction the witnesses are resident, or, in case of doubt, to the Ministry of Justice.

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 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 or 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 -

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

(2) If, in the country of execution, the execution of the Letter of Request in question does not fall within the functions of the judiciary;

(3) If the High Contracting Party in whose territory it is to be executed considers that his sovereignty or safety would be compromised thereby.

(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 Consular Officer 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 Consular Officer by whom it was transmitted the necessary documents establishing its execution.

ARTICLE 8

(a) The evidence may also be taken, without any request to or the inter­vention of the authorities of the country of execution by a person in that country directly appointed for time purpose by the court of the country of origin. A Consular Officer acting for the country of origin or any other suitable individual may be so appointed.

(b) A person so appointed to take evidence may request the individuals named by the court appointing him to appear before him and to give evidence. He may take all kinds of evidence which are not contrary to the law of the country of execution, and shall have power to administer an oath. The attend­ance and giving of evidence before any such person shall be entirely voluntary and no measures of compulsion shall be employed.

(c) Requests to appear issued by such person shall, unless the recipient is a subject of the High Contracting Party for whose judicial authority the evidence is required, be drawn up in the language of the country of execution or be accompanied by a translation into such language.

(d) The evidence may be taken in accordance with the procedure recognized by the law of the country of origin, and the parties will have the right to be present in person or to be represented by barristers or solicitors of that country or by any representatives who are competent to appear before the courts either of the country of origin or of the country of execution.

ARTICLE 9

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.

ARTICLE 10

(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 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 cost 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 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 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 and security for Costs

ARTICLE 11

The subjects of one High Contracting Party resident in the territory of the other High Contracting Party shall not be impelled to give security for costs in any case where a subject of such other High Contracting Party would not be so compelled.

ARTICLE 12

(1) 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 the latter High Contracting Party as regards free legal assistance for poor persons.

(2) The provisions of this Article apply to criminal as well as to civil and commercial matters, but do not apply to artificial persons.

V. General Provisions

ARTICLE 13

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

ARTICLE 14

The present Convention, of which the English and Greek texts are equally authentic, shall be subject to ratification. Ratifications shall be exchanged in Athens. 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 15

(a) This Convention shall not apply ipso jure to Scotland, Northern Ireland, the Channel Islands, the Isle of Man, nor to any of the Colonies, overseas territories 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 14 by a notification given through His Minister at Athens, extend time 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 opening 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 14 shall, unless other­wise expressly agreed to by both High Contracting Parties, ipso jure terminate it in respect of any territories to which it has been extended under paragraph (a) of this Article.

ARTICLE 16

(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, many at any time, while the present Convention is in force, either under Article 14 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 His Majesty the King of the Hellenes has given notice of termination in respect of all the terri­tories of His Majesty to which the Convention applies. The provisions of Article 15 (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 14 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 Greek texts, and have affixed thereto their seals.

DONE in duplicate at London, the 27th day of February, 1936.

Robert Anthony Eden

Charalambos Simopoulos