Some Problems of International Judicial Assistance from an Estonian Perspective
| Author | Eve Jõks |
| Position | Attache for Judicial Affairs, Estonian Mission to the European Union |
| Pages | 80-85 |
Page 80
The terms international legal assistance have been used for various notions1. International judicial assistance can be distinguished from international judicial co-operation, which is a broader term, covering international law- creating, administrative and judicial activities for the purposes of facilitating service of documents, taking of evidence, recognition and enforcement of judgements, also as used in the EU, promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws and of jurisdiction.
International judicial assistance is the performing of a procedural act by a judicial authority of a State on request from another State, for a legal procedure, which is taking place in the requesting State. This may be service of summons abroad, taking of evidence abroad or recognition and enforcement of foreign judgements.
The need for a procedural action by authorities of another country is an important characteristic of international judicial assistance. The action is usually made to comply with a request, which can be in the form of Letter of Request. It can also be an expression of a wish for that action in another form. Differing from that, in judicial cooperation in criminal matters more and more conventions foresee in some cases actions taken without request, on own initiative.
Initially mechanisms of international judicial assistance were created for the purposes of judicial procedure, in some cases they are used also for extrajudicial matters.
Other institutions that are related to international civil procedure, but are not international judicial assistance, are the procedural rights of a foreigner, such as prohibition to discriminate with cautio judicatum solvi, prohibition of detention in civil and commercial matters, immunity for witnesses and providing legal aid and advice to foreigners. These are rights, the usage of which does not call for a procedure of international judicial assistance. These rights are granted by law or by a treaty.
Also providing information about laws and judicial system on the request of another State is not within the scope of the term international judicial assistance.
Notions and mechanisms of private international law, international element and public order play an important role in international judicial assistance. The international element can here be defined as a circumstance which changes a "purely domestic procedure" into a procedure where a procedural act must be performed abroad. These are situations where the defendant or a witness or any other source of evidence is located abroad or the judgement debtor or his assets are in a State other than the one of the court from which the judgement originates. Co-operation and collision of two legal systems and being regulated by international and internal norms are typical both to conflictPage 81of laws and international judicial assistance.
Principles, mechanisms and institutions specific to a civil procedure, as chronological and logical stages of activities of authorities and interested persons are relevant in the context of international judicial assistance as well.
Both methods of private international law and civil procedure have to be used to analyse international judicial assistance.
When there is a treaty regulating international judicial assistance between two countries, complying with requests of international judicial assistance is considered to be obligatory to the extent as regulated by treaty.
No country has a treaty network covering all other countries. So there will always remain the question - should international judicial assistance be given, should the requests from those countries with whom no relevant treaty exists, be complied with? Even more important is the question: why should it be done?
For small countries like Estonia, who, in spite of being a contracting party to the Hague Conventions on the Service of Documents Abroad2 and Taking of Evidence Abroad3, and having bilateral treaties of mutual legal assistance with some countries4, but finding it not practical to negotiate a large amount of bilateral treaties, it is a serious practical and theoretical question that has to be solved. The question is even more complicated in the case of enforcement of foreign judgements, as for Estonia at present this is regulated only on a bilateral basis. There has not been a multilateral convention suitable for Estonia to join up until now5.
The question of whether there is an obligation to comply with requests of international judicial assistance, should there be no treaty between the respective countries is a consequence of the answer to the question on why requests from another country are complied with at all, why summons of another country are served, why evidence is taken at the request of another country and why judgements of another country are enforced.
To find these grounds, conflict of laws and conflict of jurisdiction from one side and international judicial assistance on the other side should be compared. In the case of conflict of laws, a State is not always able to rule on the case applying its own internal law and in the case of conflict of jurisdiction, a State can not always judge the case; there are limits to its activities. In the case of international judicial assistance, instead, a State has to perform an act for a judicial procedure not accomplished by itself. It has, thus, to perform an activity not needed for its own functions. The consequence of this difference between conflict of laws and conflict of jurisdiction on the one hand, and international judicial assistance on the other hand is that only some theories in private international law, such as comity, universalist theories and reciprocity, can explain also international judicial assistance. Some theories, such as res judicata and vested rights' theory are applicable only to the enforcement of foreign judgements, but not to service of documents or taking of evidence.
As the opposite to theories treating international judicial assistance as done in the interests of another State, the contemporary explanation for international judicial assistance in civil matters is that it is the assistance given to a party having a court procedure in another State to facilitate finding and effecting justice for this party6.
If international judicial assistance is in the interests of an individual, it can be hard to justify, why, for example, State A should take action on the request to serve summons for the individual, whose court procedure is taking place in State B, but not for the individual, whose court procedure is taking place in State C, i.e. why interests of individuals in one State should be preferred.
The situation is different, when the act of international judicial assistance needs the use of measures of compulsion. Examples for this can be - compulsory service of summons to an unwilling addressee, or enforcing an unwilling witness to participate in a court procedure by § 106 of Estonian Civil Procedure Code. Enforcement...
To continue reading
Request your trial