Abstract
In Germany, procedures of international co-operation in litigation (internationale Rechtshilfe) are the subject of encompassing regulation1: Co-operation in civil, commercial, and labor matters is governed by the Rechtshilfeordnung für Zivilsachen (ZHRO),2 and co-operation in criminal cases is regulated by the Richtlinien für den Verkehr mit dem Ausland in strafrechtlichen Angelegenheiten (RIVAST).3 These regulations do not have the force and effect of formal statutes; they are promulgated by the federal and state ministries of justice and binding only on those to whom these ministries are authorized to issue binding instructions.4 As a general rule, the basic principles of these regulations also determine the co-operation provided and requested in matters falling without their scope.5
The authors express their profound gratitude to Professor Dr. Arthur Bülow, Staatssekretär des Bundesjustizministeriums, for his many valuable comments and suggestions and for extensive information on official German views readily and kindly provided.
Dr, iur. 1959, Munich ; M.C.L. 1963, Columbia University
LL.B. 1946, LL.M. 1949, University of Amsterdam; A.M. 1953, LL.B. 1958, Columbia University ; Professor of Law, Columbia University ; Director, Columbia University Project on International Procedure.
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Recurrent reference is made to the following statutes
Bürgerliches Gesetzbuch of August 18, 1896, Reichsgesetzblatt [hereinafter Rgbl] 195, Schönfelder 20.
Gebrauchsmustergesetz of May 9, 1961, Bundesgesetzblatt [hereinafter Bgbl] I 570, Schönfelder 71.
Geschmacksmustergesetz of January 11, 1876, Rgbl 11, Schönfelder 69.
Gesetz betreffend die Erwerbs-und Wirtschaftsgenossenschaften of May 1, 1889, Rgbl 55, Schönfelder 53.
Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit of May 17, 1898, Rgbl I 771, Schönfelder 112.
Grundbuchordnung of March 24, 1897, Rgbl 139, Schönfelder 114.
Grundgesetz für die Bundesrepublik Deutschland of May 23, 1949, Bgbl 1, Schönfelder 1.
Handelsgesetzbuch of May 10, 1897, Rgbl 219, Schönfelder 50.
Patentgesetz of May 9, 1961, Bgbl I 550, Schönfelder 70.
Personenstandsgesetz of August 8, 1957, Bgbl I 1125, Schönfelder 113.
Strafgesetzbuch of May 15, 1871, Rbgl 127, Schönfelder 85.
Strafprozessordnung of February 1, 1877, Rgbl 253, Schönfelder 90.
Verwaltungsgerichtsordnung of January 21, 1960, Bgbl I 17, Sartorius 600.
Verwaltungszustellungsgesetz July 3, 1952 Bgbl I 379, 1 Sartorius 110.
Warenzeichengesetz of May 9, 1961, Bgbl I 574, Schönfelder 72.
Zivilprozessordnung of January 30, 1877, Rbgl 83, Schönfelder 100.
The most authoritative works on German procedures of international co-operation in litigation are Bülow & Arnold, DER Internationale Rechtsverkehr (loose-leaf, Munich and Berlin) [hereinafter Bülow & Arnold] and Grützner, Internationaler Rechts-Hilfeverkehr IN Strafsachen (3 vol. loose-leaf, Hamburg, Berlin & Bonn) [hereinafter Grützner]. See also Riezler, Internationales Zivilprozessrecht 672-94 (Berlin & Tübingen 1949) and authorities cited.
Hereinafter to be referred to as Zrho. This regulation, translated literally as Regulation on Legal Assistance in Civil Matters, was adopted on October 19, 1956, by the states (Länder) with the consent of the federation (Bund) at the twenty-fifth Conference of Ministers of Justice held at Munich. It has been effective in the federation as well as the states since April 1, 1957. Bülow & Arnold 701.1. Pursuant to common regulations of the federal and state ministeries of labor and justice, the Zrho, with certain minor modifications, has been applicable in labor matters since December 12, 1959. Bülow & Arnold 701.1a-701.2. The Zrho deals with problems, such as those relating to the execution of judgments, not discussed in this report, while other problems considered in this report, such as those relating to production of tangible evidence and proof of foreign official records, are not, or only partially, affected by provisions of the Zrho. The Zrho is divided into three parts. Part 1, comprising sections 1 through 10, contains definitions and provisions of general import. Part 2, encompassing sections 11 through 56, contains provisions relating to outgoing requests for assistance and is subdivided in to a subpart concerning officials who comply with such requests, a subpart containing general provisions, a subpart relating to specific requests for assistance, and a subpart concerning costs of assistance. Part 3, subdivided into a subpart containing general provisions, a subpart setting forth provisions relating to specific requests, and a subpart dealing with costs of assistance, concerns incoming requests.
Hereinafter to be referred to as Rivast. The Rivast, translated literally as Directives on Relations with Foreign Countries in Criminal Matters, were promulgated by the Federal Government and the governments of the states (Länder) on January 15, 1959, and became effective on April 1, 1959. They deal primarily with problems of extradition, but also contain provisions relating to service, examination of witnesses and experts, and transmittal of documents (Nos. 81-83, 86, 146-160).
Bülow & Arnold 701.1 n. 1, 701.4 n. 7; Rivast NO. 1. By their nature, these regulations contain merely instructions relating to administrative matters. However, at least in some instances, they seem to state rules binding on the courts and affecting the rights of citizens. The distinction is especially important in those areas in which the regulations limit possibilities for rendering or obtaining assistance left open by domestic, or even foreign, procedural laws, since legislation binding on the citizens by regulation is not permitted. See text at notes 32-36, 68-70, 84-86, 103, 142, 181-183, 189-191, 193-197, 235 and 302 infra.
Since co-operation in cases not governed by the Zrho and Rivast has been rare, no settled practice has developed. A letter of April 10, 1957, from the Federal Ministry of Justice to the state ministries of justice indicates that no regulation governing such matters is contemplated. Letter of April 20, 1957, to the State Ministries of Justice, No. 9347-20641/57.
There are two Treaties of Friendship, Commerce and Navigation in effect between Germany and the United States, the first signed in Washington on December 8, 1923, and subsequently amended (TS No. 725; TS No. 897; Tias 3062), and the second signed in Washington on October 29, 1954 (effective July 14, 1956) (Tias 3593). On the relationship between the two treaties, see Article Xxviii of the Treaty of October 29, 1954, Tias 3593.
The Convention of 1905 continues to be effective between Germany and those countries that have not adhered to the Convention of 1954. For an enumeration of countries that have adhered to either the 1905 or the 1954 Convention, see Bülow & Arnold 200.2-200.3, 100 a.1 n. 3. The bilateral agreements are set forth and discussed in Bülow & Arnold 307-91.
Cf. Zrho § 3; Bülow & Arnold 701.5; Baumbach & Lauterbach, Zivilprozessordnung § 199 n. 2 (26th ed. 1962) [hereinafter Baumbach & Lauterbach]. Article 688 of the ZPO provides the only exception.
It is to be noted in this context that under German law service has no jurisdictional significance; its only function is to give notice. Kaplan, Von Mehren & Schaefer, Phases of German Civil Procedure I, 71 Harv. L. Rev. 1193, 1203-04 (1958); Weser, Bases of Judicial Jurisdiction in the Common Market Countries, 10 AM. J. Comp. L. 323 (1961).
A Ladung is a summons to appear in a proceeding at a specified time. Baumbach & Lauterbach § 214. See also Zivilprozessordnung §§ 214-215.
Cf. Baumbach & Lauterbach § 199.
They regulate service in a foreign country not only in ordinary civil actions, but also (1) in proceedings involving the exercise of so-called freiwillige Gerichtsbarkeit, including proceedings to appoint custodians for minors and similar proceedings (Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit of May 17, 1898, § 16, Rgbl 189, Schönfelder 112), (2) in criminal proceedings (Strafprozessordnung of February 1, 1887, § 37, Rgbl 253, Schönfelder 90), (3) in labor matters (Arbeitsgerichtsgesetz of September 3, 1953, §§ 46, 64, Bgbl I 1267, Schönfelder 83), (4) in proceedings before the Patent Court (Patentgesetz of May 5, 1936, § 410, Rgbl II 117, Schönfelder 70), and (5) in administrative proceedings (Verwaltungszustellungsgesetz of July 3, 1952, § 1(2), Bgbl I 379, Sartorius 119, iuncto Verwaltungsgerichtsordnung of Jan. 21, 1960, § 56(2), Bgbl I 17, 1 Sartorius NO. 600, and Sozialgerichtsgesetz of Sept. 3, 1953, Bgbl I 1239, 1326 and Bgbl 1958 1613).
Zrho §§ 8, 16-26, 32-35.
See, e.g., Zrho § 8 (providing, i.a., that the request is to be typed neatly on firm paper without corrections or deletions), § 16 (providing, i.a., that the request is to be drafted in simple German without abbreviations and expressions that may appear derogatory to foreigners; that the official to whom the request is addressed should be designated with precision or as “the competent authority”; that the request must be signed in ink by a judge, designate the latter’s position, and bear an official stamp or seal; and that urgent requests are to be marked urgent in red ink), § 18 (prescribing a form of authentication in case the foreign country requires authentication).
Zrho § 25.
Zrho § 20.
Zrho §§7, 22(1).
Zrho §§ 7, 23. If a request for assistance is addressed to a German representative or foreign authority, the request submitted to the Prüfungstelle must be accompanied by a Begleitbericht. A Begleitschreiben or Denkschrift is submitted only when deemed necessary. Zrho § 27.
Zrho §§ 7, 24.
The request must be signed by a judge. Zrho § 16(5).
Zrho §§ 9, 27. Section 9 of the Zrho provides that, as a rule, the presidents of the Landgerichte, the courts of original competence in all but minor matters, shall function as the Prüfungsstellen for the Landgerichte, the Amtsgerichte (courts competent in matters of minor importance), and notaries. In cases involving the Oberlandesgericht, the president of that court acts as Prüfungsstelle.
Zrho § 28. If there is reason to believe that the foreign country will object to the service, the Landesjustizverwaltung (state department of justice) must be consulted. Zrho § 28(2).
Zrho § 29. See also text at notes 25, 43-44 infra.
The Zrho is not explicit on the point, but the first sentence of Section 15, providing that, if the German representatives cannot comply with a request, the foreign authorities must be approached, gives a fair indication of what would seem a rather natural preference.
See Smit & Miller, International CO-Operation IN Civil Litigation — A Report ON Practices AND Procedures Prevailing IN THE United States 8 (Milan 1961). The Zrho also suggests that requests for service in the United States be addressed to the German missions there. Bülow & Arnold 991.68.
Zrho §§ 13(1), 32(4).
Zrho §5(1) (a).
This conclusion is supported by Zrho § 32(4), which provides that the German representatives may effectuate only a formlose Zustellung, i.e., service by simple delivery to the addressee who is willing to accept the documents tendered. When service is to be made in Germany, the Zivilprozessordnung permits, in addition to service by personal delivery, substituted service (Ersatzzustellung) on an adult member of the household or on the landlord (§ 181); substituted service on an official accompanied by ordinary mailing or affixation unto the door or delivery to a neighbor (§ 182); substituted service on a person present at the addressee’s place of business (§ 183); and service by mail (§§ 193-196). See text at notes 164-178 infra.
This is permitted when service in German proceedings is made in Germany, Zivilprozessordnung § 186, or when service is made under an applicable treaty allowing such method of service.
Zrho §33(4).
Ibid.
Bülow & Arnold 701.25 n. 125. See also id at 701. 24 n. 119.
See Smit, International Co-operation in Civil Litigation: Some Observations on the Roles of International Law and Reciprocity, 9 Neth. Int’lL. Rev. 137, 144-45 (1962).
See note 24 supra.
For a discussion of provisions of the Zivilprozessordnung permitting substituted service in Germany, see text at notes 167-175 infra.
See Smit & Miller, op. cit. supra note 25, at 8-9.
Baumbach & Lauterbach § 202. For a form for proof of service to be used by German representatives, see Bulow & Arnold 701.24 n. 120.
Zivilprozessordnung § 207(1). On when the subsequent service may be considered to have been made in due course, see Rosenberg, Lehrbuch DES Deutschen Zivilprozessrechts § 72 I (9th ed., Munich & Berlin 1961) [hereinafter Rosenberg].
Zrho § 15.
Zrho §6(1) (3).
Zrho §6(1) (2).
Zrho § 6(1) (1), (2), and (3).
Section 6(2) of the Zrho provides explicitly that diplomatic channels should be used only when the request cannot be transmitted directly or by the German consul. Bulow & Arnold do not list the United States as one of the countries to whose officials requests for co-operation may be transmitted directly. See Bülow & Arnold 701.7-701.8 n. 29. However, there is no doubt that requests for co-operation may be forwarded by the German authorities directly to the American authorities to whom the request is addressed. See Smit & Miller, op. cit. supra note 25, at 8.
On the former unwillingness of the United States State Department to receive request for co-operation addressed to American courts, see McCusker, Some United States Practices in International Judicial Assistance, 37 Dep’t OF State Bull. 808 (1957); Smit & Miller, op. cit. supra note 25, at 9. The applicable federal regulations were changed recently to indicate that the State Department will accept and forward foreign letters rogatory requesting the taking of depositions. 22 C.F.R. 92.67. In practice, the State Department also accepts letters rogatory requesting service. This change anticipated the adoption of a proposal to the Congress to give the State Department explicit authority to process requests of this nature. See section 8 of the Act to improve judicial procedures for serving documents, obtaining evidence and proving documents in litigation with international aspects [hereinafter to be referred to as New Statute, set forth in Appendix A.
Section 15 of the Zrho provides that the territorial and subject matter competence of the foreign authorities is determined by foreign law.
The inherent power of the district courts to comply with a request for service is reaffirmed by Section 4 of the New Statute. See especially the explanatory note to that section. Since under the Rederal Fules of Civil Procedure service is usually made by the marshal, Fed. R. Civ. P. 4(c), the request could also be addressed directly to the marshal. See note 45 supra. It is not certain whether a federal marshal will comply with a request for service by a foreign court or official. Cf. Smit & Miller, op. cit. supra note 25, at 9 (to the effect that federal marshals might well comply with such a request).
Section 2.04 of the Uniform Interstate and International Procedure Act, Appendix B [hereinafter Uniform Act], specifically authorizes compliance with foreign requests for service addressed to state courts. Since in many states service is effected by a private person rather than by a court official or special court appointee, any person qualified under state law could well be argued to be a “competent authority.” See note 45 supra; Smit & Miller, op. cit. supra note 25, at 9.
In the only two reported instances, American courts have refused to do so. In re Letters Rogatory out of First Civil Court of City of Mexico, 261 Fed. 652 (S.D.N.Y. 1919); Matter of Romero, 56 Misc. 319, 107 N.Y. SUPP. 621 (Sup. Ct. N.Y. City 1907). However, these rather recondite decisions have been unanimously criticized and have probably lost all authority. See Smit & Miller, op. cit. supra note 25, at 8-9. It should be noted that these decisions do not prohibit förmliche Zustellung in the United States. But see Bülow & Arnold 991. 68 n. 10a.
New Statute § 4; Uniform Act § 2.04.
Zrho §5(1).
Zrho §5(1) (b).
Zivilprozessordnung § 202(2).
See, e.g., Baumbach & Lauterbach § 202.
Zivilprozessordnung § 207. On this section, see also Rosenberg § 72 I.
Zivilprozessordnung § 203. The Zivilprozessordnung contains detailed provisions as to how service by publication (öffentliche Bekanntmachung) is to be effectuated. See Zivilprozessordnung §§ 203-206; Rosenberg § 7 II 3.
Rosenberg § 72 II.
Zivilprozessordnung § 335(1) (2).
Rosenberg § 72 II 3.
Strafprozessordnung § 37. On this provision, see generally Kleinknecht & Müller, Kommentar Zur Strafprozessordnung § 37 (4th ed. Darmstadt 1958).
See note 12 supra.
Rivast Nos. 146-152.
Rivast NO. 90(1).
Rivast No. 148(1).
Rivast No. 151(4).
Rivast NO. 152.
Rivast NO. 152(1). Many American courts will comply with such requests. Section 1782 of Title 28 of the United States Code provides that a federal district court may compel testimony for use in any proceeding in a foreign tribunal. Ordinarily, proceedings initiated under this section result in the appointment of a commissioner before whom the testimony is to be given. See Smit & Miller, op. cit. supra note 25, at 11-17. Similar assistance may also be provided by the state courts. See Smit & Miller, op. cit. supra note 25, at 17-22. For recent reforms, see Section 9 of the New Statute; Section 3.02 of the Uniform Interstate and International Procedure Act.
Rivast NO. 160(1). The second paragraph of No. 160 of the Rivast provides some examples of kinds of communications that are likely to be objectionable. They are devoid of significance insofar as service by mail in the United States is concerned, since the United States does not object to the service by mail of any kind of document, including documents threatening punishment. See Smit & Miller, op. cit. supra note 25, at 8-9. It should be stressed that förmliche Zustellung in the United States is not forbidden. But see Bülow & Arnold 991.68 n. 10a. See also note 48 supra.
Smit & Müller, op. cit. supra note 25, at 8-9.
Ibid.
Until recently, the United States State Department did not even accept requests of this nature. See note 44 supra. On the liberalization of American assistance to foreign courts and litigants requesting service in the United States, see Section 4 of the New Statute; Section 2.04 of the Uniform Interstate and International Procedure Act.
Kleinknecht & Müller, op. cit. supra note 59, § 230 Anm. 2c.
Cf. id. § 337 Anm. 10.
Strafprozessordnung §217(2).
Zivilprozessordnung § 355(1).
Ibid.
On his provision, see Baumbach & Lauterbach § 375.
Baumbach & Lauterbach § 363 n. 2; cf. also Zrho § 15; note 24 supra.
Specifically, Sections 6-9, 13, 15-31.
Sections 36-40.
Zrho § 37. As a general rule, a witness is put under oath only when the court considers the administration of the oath desirable and the parties do not waive it; in all other cases, no oath is administered. Zivilprozessordnung § 391. If an oath is administered, it is administered after the witness has testified. Zivilprozessordnung § 392. The oath is to the effect that the witness, to the best of his knowledge, has told the pure truth and has hidden nothing. Id.
Zrho § 37(2).
Zrho § 37(3). It is not necessary that the text of the pertinent provisions, sections 453 and 446 of the Zivilprozessordnung, be set forth literally. Bülow & Arnold 701.26 n. 134.
Zrho § 13(1) (2).
Zrho § 13(1).
Smit & Miller, op. cit. supra note 25, at 10. Cf. also Section 9 of the New Statute; Section 3.02 of the Uniform Interstate and International Procedure Act.
No provision of American law, either federal or state, forbids the German consul from so informing the witness. Nor does the State Department object. Since the witness may elect to disregard the threat of compulsory measures without being subjected to punishment in the United States, he remains a voluntary witness from the United States point of view it he decides to testify. See Smit & Miller, op. cit. supra note 25, at 10.
A commissioner is a person designated by the court to take testimony and administer oaths. As a general rule, any person of age and discretion qualifies tor appointment as a commissioner. See Smit & Miller, op. cit. supra note 25, at 50. Section 1782 ot Title 28 of the United States Code provides that the federal district courts may order the deposition of any witness for use in proceedings in a foreign tribunal. In a number of states, the Uniform Foreign Depositions Act, containing a provision to the same effect, grants the same authority to state courts. On these provisions generally, see Smit & Miller, op.cit. supra note 25, at 11-12. For considerable liberalization of these provisions, see Section 9 of the New Statute; Section 3.02 of the Uniform Interstate and International Procedure Act.
See Smit & Miller, op. cit. supra note 25, at 13. It is not necessary that the German court issue a commission to permit the taking of testimony or the obtaining of tangible evidence in the United States. Any person, including the German consul and ambassador, may take testimony or gather tangible evidence without having obtained a commission — a device nowhere recognized in the Zivilprozessordnung or Strafprozessordnung. If the witness is unwilling, the American rather than the German court must be asked to appoint a commissioner and to compel the witness to appear before the latter. But cf. Bülow & Arnold 991.68-991.70.
A request tor assistance in compelling testimony in the United States may be submitted by any interested party, including a private litigant, the German consul, or a German court. See Smit & Miller, op. cit. supra note 25, at 11; note 87 supra. See also explanatory note to Section 9 of the New Statute.
Specifically, Sections 6-10, 15-31. Authentication (Legalisation) of the request is not required by the United States.
Zrho §§ 6(1) (3) and 6(2). See also Zrho § 25(1). Bülow & Arnold 701.7-8 n. 29 and 991.68-71 do not mention the United States as one ot the countries that permit direct submission of requests to the competent American authorities (der unmittelbare Verkehr). However, there is no doubt that the United States permits, and indeed encourages, direct submission. Smit & Miller, op. cit. supra note 25, at 10. See also explanatory note to Section 8 of the New Statute.
As indicated in the text following note 77 supra, the Zivilprozessordnung specitically envisages that a litigant be instructed by the German court to submit the request to the appropriate toreign court or procure a foreign official transcript of the testimony. American provisions for assistance in compelling testimony for use in Geiman judicial pioceedings ate in perfect harmony with, and provide most desirable supplementation of, these provisions. See notes 87 and 89 supra. Insofar as American courts are concerned, the requirement of Zrho § 36 that private litigants make direct submission only when it may be assumed that testimony may be taken at the request of parties is therefore fully met.
See Smit & Miller, op. cit. supra note 25, at 11-22.
See 28 U.S.C. § 1782(2) (old); Smit & Miller, op. cit. supra note 25, a 14. Recent reforms permit American court to follow foreign procedure. See Section 9 of the New Statute; Section 3.02 of the Uniform Interstate and International Procedure Act.
See Smit & Miller, op. cit. supra note 25, at 15.
See Fed. R. Civ. P. 30(c).
See Weinstein, Recognition in the United States of the Privileges of Another Jurisdiction, 56 Colum. L. Rev. 535 (1936); explanatory notes to Sections 9 and 12 of the New Statute.
Smit & Miller, op. cit. supra note 25, at 10-11. See also Section 9 of the New Statute; Section 3.02 of the Uniform Interstate and International Procedure Act. It should be noted that a person who falsely testifies in the United States under an oath administered by a person authorized to administer oaths by the laws of the United States or by the state in which the testimony is given is subject to prosecution for perjury in the United States. See Section 1 of the New Statute; Smit, International Aspects of Federal Civil Procedure, 61 Colum. L. Rev. 1031, 1055-56 (1961).
The United States does not object to the taking of testimony in this manner. See Smit & Miller, op. cit. supra note 25, at 10-11; cf. also note 92 supra.
See notes 87, 89 supra.
Zivilprozessordnung § 377(3).
Zivilprozessordnung § 377(4).
Zrho §39(1).
Strafprozessordnung § 250.
Strafprozessordnung § 251.
Ibid.
Strafprozessordnung § 223.
Rivast Form No. 224.
Rivast NO. 153.
Rivast NO. 90(1).
Rivast NO. 7(2). Until recently, the United States State Department did not accept requests emanating from foreign courts for submission to American authorities. See note 44 supra. Even at the present time, direct submission is more efficient. Smit & Miller, op. cit. supra note 25, at 10.
The applicable statutory provisions require only that the testimony be for use in a foreign tribunal (28 U.S.C. § 1782) or in a court of record (Uniform Foreign Deposition Act § 1). See also Section 3.02 of the Uniform Interstate and International Procedure Act.
See Arbeitsgerichtsgesetz §§ 46(2), 64(2), supra note 12; Sozialgerichtsgesetz § 118, supra note 12; Verwaltungsgerichtsordnung §§ 96, 98, supra note 12; Reichsabgabenordnung of May 22, 1931, § 267 (Rgbl I 161).
Zivilprozessordnung § 422.
Zivilprozessordnung § 423.
Zivilprozessordnung § 424.
Zivilprozessordnung § 425.
Zivilprozessordnung § 427. See also Rosenberg § 118 IV 2b.
Zivilprozessordnung § 429.
Ibid.
Strafprozessordnung § 94. A person in possession of such evidence may be compelled to produce it in the same way in which a witness is compelled to testify. Strafprozessordnung §§ 95, 70.
Strafprozessordnung § 94(2).
Rivast NO. 157. American courts may comply with requests for the production of tangible evidence, see text note 127 infra, but it is doubtful whether they could comply with a request of the nature specified in this provision.
Smit & Miller, op. cit. supra note 25, at 22-25.
Ibid. Compliance with a request for production under threat of punishment in Germany would still be voluntary from the United States point of view.
See Section 9 of the New Statute; Section 3.02 of the Uniform Interstate and International Procedure Act.
There was some doubt whether the provision permitting the federal courts to compel testimony for use abroad also authorized compulsory production of tangible evidence. However, the better view, endorsed by the recent reforms (note 126 supra), was that it did grant that authorization. Smit & Miller, op. cit. supra note 25, at 22-25.
See also Rosenberg § 118 Iii 1a.
Cf. Baumbach & Lauterbach § 437 n. 1.
Zivilprozessordnung § 438(1).
Zivilprozessordnung § 438(2).
It requires only authentication (Legalisation) by a German consul or ambassador.
See Conférence DE LA Haye DE Droit International Prive, Légalisation DES Actes Public Etrangers, Expose PAR Pays — I Allemagne 1-2 (1958/1959); Bülow, Die Legalisation öffentlicher Urkunden, 1955 Deutsche Notar-Zeitschrift 9.
Ibid.
Zivilprozessordnung § 435.
On American procedures of authentication, see generally Smit & Miller, op. cit. supra note 25, at 25-27.
Zivilprozessordnung § 293. On proof of foreign law in the German courts, see generally Riezler, Internationales Zivilprozessrecht 491-500 (Berlin & Tübingen 1949).
Riezler, op. cit. supra note 137, at 495.
Riezler, op. cit. supra note 137, at 497-98.
Zivilprozessordnung §523; Strafprozessordnung §327; Kleinknecht & Müller, op. cit. supra note 59, § 327.
On the non-reviewability of determinations of foreign law in civil cases, see Zivilprozessordnung § 549; Riezler, op. cit. supra note 137, at 503. Section 337 of the Strafprozessordnung and Section 7 of the Einführungsgesetz to the Strafprozessordnung make clear that in criminal matters determinations of foreign law are reviewable by the Bundesgerichtshof.
Only section 40 of Zrho states explicitly that fear of infringing upon the sovereignty of the foreign country is the prohibition’s rationale. The same fear seems, however, to have inspired the prohibitions of Zrho § 48 and Rivast NO. 153.
See generally Smit & Miller, op. cit. supra note 25, at 27-28.
See generally Smit & Miller, op. cit. supra note 25, at 40-48; Smit, International Aspects of Federal Civil Procedure, 61 Colum. L. Rev. 1031, 1032-53 (1961).
Fed. R. Civ. P. 4(c) provides generally that service of all process shall be made by a United States marshal, by his deputy, or by some person specially appointed by the court for that purpose. However, federal marshals do not comply with requests that would require them to go to a foreign country in order to make service.
The sheriff is frequently authorized to make service by state laws of procedure. See Smit & Miller, op. cit. supra note 25, at 46. However, American sheriffs will not ordinarily comply with a request that they go to a foreign country to make service.
See specifically 28 U.S.C. §§ 1783, 1784 (1950).
See note 145 supra.
Smit & Miller, op. cit. supra note 25, at 46.
Ibid.
See, e.g., Fed. R. Civ. P. 45(c).
See generally Smit & Miller, op. cit. supra note 25, at 40-48.
See, e.g., Fed. R. Civ. P. 4(g).
Effective as of July 1, 1963. For the text of this rule, see Smit, New Federal Rules of Civil Procedure Regulating Service and the Taking of Depositions in a Foreign Country, 11 AM. J. Comp. L. 436, 437-40 (1962).
At the present time, the Uniform Act has been adopted only by Arkansas, and the Virgin Islands For the text of the Act, see Smit, The Uniform Interstate and International Procedure Act Approved by the National Conference of Commissioners on Uniform State Laws: A New Era Commences, 11 AM. J. Comp. L. 415 (1962), and Appendix C.
The difference may be significant depending on the extent to which the foreign country permits the various manners of service authorized by Rule 4(i) and Article II of the Uniform Interstate and International Procedure Act. See text at note 163 infra.
For provisions concerning all incoming requests for assistance, including requests for service, see Zrho §§ 57-65. For provisions relating specifically to incoming requests for service, see Zrho §§ 66-72.
Section 1 of the Zrho provides that the Zrho contains general directives addressed to German officials charged with duties in the administration of justice (Justizbehörden). See also note 4 supra.
There appears to be no unambiguous enunciation by the German government of its view that, unless explicitly permitted, all service in Germany by agents of a foreign country is forbidden. However, the provisions that limit the activities of German officials in a foreign country, see text at notes 32-35, 67, 84-86, 103, 141-42, confirm that this is the official German view. See also Bülow & Arnold 991.68, mentioning the specific permission given to United States consuls to make service and take depositions without resorting to compulsion. The accuracy of the German view is subject to dispute. The better view seems to be that all service is permitted unless explicitly forbidden. See Smit, International Cooperation in Civil Litigation: Some Observations on the Rules of International Law and Reciprocity, 9 Neth. Int’l L. Rev. 137, 144-45 (1963). The difference is of minor importance, since under either view the German government is authorized to object and is likely to do so.
According to Professor Bülow, service by private persons is not permitted under German law. He bases this conclusion on the grounds (1) that German law does not provide for service by private persons and (2) that, under German law, service, because of its legal consequences, must always be considered an act of a public law nature which lies within the exclusive province of government officials. It should be noted, however, that, as stated in the text, no German statute prohibits service by private persons. Therefore, the most probable consequence of German objections to this type of service would be a German protest to the foreign country involved. It would seem that, if such a protest were indeed lodged with the foreign country — no reported instance of such a protest exists-, strong arguments could be adduced in favor of its rejection. See Smit, supra note 159, at 145-46.
Article II (4) of the Treaty of Friendship, Commerce and Navigation of October 29, 1954, note 6 supra, by providing that the nationals of either Party “shall be permitted to communicate freely with other persons inside and outside such territories [i.e., the territories of the parties] by mail, telegraph or other means open to general public use” may be interpreted explicitly to recognize and to safeguard the right of a private person to make service by mail. However, Professor Bülow is of the opinion that this interpretation is improper.
A court order that specifies a particular method of service, but provides generally that any person of age and discretion who is not a party may make the service would seem to be in the same category as a statutory provision to a similar effect. Both fail to make the private person who makes the service an instrumentality of the state. See Smit, note 159 supra, at 146.
The Uniform Interstate and International Procedure Act differs in this respect from Rule 4(i) of the Federal Rules of Civil Procedure, which requires that service in accordance with foreign law be made by a process server qualified under the foreign law. For a description of German methods of service, see text at notes 164-175 infra. It should be noted that the use of a German method of service in the manner suggested in the text does not ensure recognition in Germany of the judgment based on such service. See text at note 223 infra.
On these sections, see generally Rosenberg §§369-71. The Zivilprozessordnung knows two kinds of service: service on the initiative ot a party (auf Betreiben der Parteien) and service on behalf of the court (von Amts wegen). Although virtually all service in German proceedings is made on behalf of the court, the provisions regulating service on the initiative of a party appear first in the code, are by far the more extensive, and are declared generally applicable to service on behalf of the court. Zivilprozessordnung § 208. One of the differences between the two kinds of service is that service on the initiative of a party is made by a Gerichtsvollzieher, while service on behalf of the court is effectuated by the court’s administrative office (Geschäftsstelle) or a police officer attached to the court (Gerichtswachtmeister). Compare Zivilprozessordnung § 166 with id. § 211.
Zivilprozessordnung § 170(1).
Zivilprozessordnung § 180.
Zivilprozessordnung § 181.
Zivilprozessordnung § 182.
Zivilprozessordnung § 183.
Zivilprozessordnung § 184.
Zivilprozessordnung § 186.
Zivilprozessordnung § 193. Service by mail is the most usual form of service employed in Germany.
Zivilprozessordnung § 194(1).
Ibid.
Zivilprozessordnung § 195(1).
Id. § 190.
Id. § 191.
Id. § 195(2).
Bülow & Arnold 991.68 n. 11.
Bülow & Arnold, l.e., state only that the service must be made without compulsion.
Zrho §§ 68, 70; Bolow & Arnold 701.45 n. 218, 701.46 n. 229. There is no reason why service in connection with American proceedings should be permitted only if authorized by German statutory provisions. The Rechtsstaatprinzip (the principle of government by law), laid down in article 20 of the Grundgesetz (constitution), which requires that no action binding the citizens be taken without statutory authority, is not addressed to American legislatures and does not seem to prevent attaching consequences in the United States to acts performed in Germany. Rather, it circumscribes the effects that may be given in Germany to acts performed either within or without German territory. Accordingly, it would seem that service in Germany in connection with American proceedings, which need not fit within the scheme of German procedure and, indeed, may be wholly without consequences in Germany, needs no German statutory basis. The important thing is that such service is authorized by, and fits within the framework of, the procedural system of the country in which the main proceedings are pending. Significantly, many countries that embrace the Rechtsstaatprinzip permit any kind of foreign service within their borders without statutory authority and even the Zrho itself permits that informal service (formlose Zustellung) be made in Germany, although (1), as recognized by Zrho § 68 (1), no statutory provision authorizes such service, and (2) such service may be given effect that binds the citizens in the foreign country.
Bülow & Arnold, supra note 181. Even if it assumed that no person may be subjected to measures of compulsion without statutory authority, usual forms of substituted service and service by leaving the refused document at the place of tender involve no measure of compulsion: The addressee or his substitute is free not to accept the document tendered and not to pick up the document left at the place of tender; no compulsion is threatened in Germany in case he avails himself of that freedom.
According to Professor Biilow, the American consul may effectuate only the formlose Zustellung. See also note 159 supra.
22 C.F.R. §§ 92.85, 92.86, 92.92 (1958).
28 U.S.C. §§ 1783, 1784 (1950).
See sections 10 and 11 of the New Statute. The amended provisions, since they permit service by private persons, will probably permit effective avoidance of the problems discussed in the text at notes 187 and 188 infra. See text at notes 160-163 supra.
See Smit, International Aspects of Federal Civil Procedure, 61 Colum. L. Rev. 1031, 1047 (1961).
Cf. Bülow & Arnold 991.68 n. 11. It may well be argued, however, that reasonably Germany should permit United States consuls to serve documents of that nature in any manner proper under the foreign law. German law prohibiting German officials from threatening compulsory measures in Germany without statutory authority does not apply to documents threatening compulsory measures in the United States. Since the United States permits the service in the United States of German documents threatening punishment in Germany, much could be said in favor of Germany’s permitting the service in Germany of American documents threatening punishment in the United States. Significantly, Germany permits service of such documents by the English consul under art. 5 of the German-British Treaty of March 20, 1928. Bülow & Arnold 333.6.
See note 159 supra.
If service upon a person in Germany is made by a court official’s dispatching the documents to be served by mail from the United States, the interesting question arises whether Germany could validly object to such service on the ground that it involves activities of a foreign sovereign on its territory. This question is of considerable importance, since Rule 4(i) of the Federal Rules of Civil Procedure, adopted recently, provides that, if service on a person in a foreign country is made by mail, the mail must be addressed and dispatched to the person to be served by the clerk of the court. In recent times, Germany has never stated unequivocally that it will object to such service. However, since it may object — and significantly, Professor Bülow considers this method of service inappropriate-, it would seem desirable to note that persuasive arguments support the conclusion that such service does not infringe upon German sovereignty. In the first place, Article 11(4) of the Treaty of Friendship, Commerce and Navigation between Germany and the United States of October 29, 1954, Tias 3593, provides broadly that nationals of either party “shall be permitted to communicate freely with other persons inside and outside such territories [i.e., those of the contracting parties] by mail, telegraph and other means open to general public use.” This encompassing authorization may be argued to cover not only service by mail by private persons, see text at note 161 supra, but also service by mail by court officials who are United States nationals. Further, once the documents to be served have been entrusted to the mails, the activities of the court official who dispatched the mail have come to an end. As a result, the subsequent activities within German territory in delivering the mail to the addressee are only those of Germany’s own postal authorities, not those of the American court official. But cf. Note, 56 AM. J. Int’l L,. 794 (1962) (United States apologizes for violation of Swiss law claimed to have been committed by service by mail dispatched by American official to person in Switzerland).
See Smit, International Co-operation in Civil Litigation: Some Observations on the Roles of International Law and Reciprocity, 9 Neth. Int’l L. Rev. 137, 144-47 (1962). The point made in the text is of a theoretical nature, since there is little doubt that Germany does object to this type of service.
Zrho §§ 66, 70.
Zrho §§67(1) (1), 70(2).
Zrho §§ 67(1) (2), 70(1) and (2). It should be noted that, as a consequence of this broad interdiction of service by mail, the most usual form of service in Germany, see text at notes 172-175 supra, may not be employed. Bülow & Arnold 701.45 n. 222 specifically so state. On the undesirability of these limitations, see notes 181, 182 supra.
See note 165 supra and notes 210 and 211 infra.
If a request for service is submitted by a foreign authority or litigant directly to a Gerichtsvollzieher, the latter must forward the request immediately to the Prüfungsstelle. Zrho § 81. The Prüfungsstelle then determines whether the request can be complied with. Since, in the absence of a treaty, only formlose Zustellung is permitted, requests for service in the German manner or in a special manner specified in the request (förmliche Zustellung) will not be honored. A request submitted by a private litigant will be honored only if he is acting on the basis of specific provisions of foreign law. Zrho §§ 81(3), 2(2).
Since Sections 2.01 and 2.02 of the Uniform Interstate and International Procedure Act permit use of foreign methods of service by a process server qualified under state law, German methods of service may be employed under the Act. However, use of such methods will not secure recognition in Germany of ensuing American judgments. See text at note 223 infra.
Zrho §§ 57-65.
Zrho §§66-81.
On the Prüfungstelle, see Zrho §§ 9, 27; note 21 supra.
Zrho §57(1).
Zrho § 59.
Zrho §60(1).
Zrho § 61. It should perhaps be noted that a promise of reciprocity is not required either.
Zrho § 62.
See text at note 17 supra.
Zrho § 63.
Zrho § 64(2).
Zrho § 64(3).
Zrho § 66.
Zrho §69(1).
Zrho § 69(2).
Zrho § 69(3).
Ibid.
Zrho § 73.
Zrho § 74(2).
Zrho § 75(1). The Zrho sets forth a form (Zrh 2) that must be used. See Bülow & Arnold 701.63.
Zrho § 75(2). The form to be used (Zrh 3) is reproduced in Bülow & Arnold 701.64. The Zrho also provides how service is to be proved in a case in which the service is made in the German manner (Zrho § 76) and in a case in which the service is made in a special way (Zrho § 77).
Zrho §79(1).
Ibid. It might well be argued that in such a case, since only the addressee prevented delivery, the service is nevertheless complete from an American point of view or that, in any event, the addressee should reasonably be estopped from relying on its incompleteness.
Zrho § 80.
According to the Verordnung über Kosten im Bereich der Justizverwaltung (Jvkosto) of February 14, 1940, article II, they may vary from 3 to 50 German marks. See Bülow & Arnold 751.7.
C. u. Gen. v. Rh. & M., Feuerversicherungsaktiengesellschaft, 70 Entscheidungen DES Reichsgerichts 434 (1909) (Vil Zivilsenat).
On American procedures for taking depositions in a foreign country, see Smit & Miller, op. cit. supra note 25, at 48-62; Smit, International Aspects of Federal Civil Procedure, 61 Colum. L. Rev. 1031, 1053-59 (1961).
See, e.g., Fed. R. Civ. P. 28 and 29.
Section 3.01 (a) (4) of the Uniform Interstate and International Procedure Act substantially adds to the flexibility inherent in the stipulation procedure by providing that a person designated by stipulation is by virtue of his designation authorized to administer oaths. See Smit, International Aspects of Federal Civil Procedure, 61 Colum. L. Rev. 1031, 1056 (1961). The Federal Rules of Civil Procedure do not contain a provision to this effect.
In addition to effectuating the reforms mentioned in the text and in note 226 supra, Rule 28(b) of the Federal Rules of Civil Procedure and Section 3.01 of the Uniform Interstate and International Procedure Act provide that there is no preference for any particular method of taking depositions, that both a commission and letter rogatory may issue in a proper case, and that evidence obtained in response to a letter rogatory shall not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for a similar departure from the requirements for depositions taken in the United States. On the problems that these provisions endeavor to eliminate, see Smit, International Aspects of Federal Civil Procedure, 61 Colum. L. Rev. 1031, 1053-59 (1961.)
Although Rule 28(b) of the Federal Rules of Civil Procedure and Section 3.01 of the Uniform Interstate and International Procedure Act provide for a free choice among available methods of taking a deposition, since foreign courts ordinarily follow their own procedures in conducting examinations and frequently neither prepare a verbatim transcript nor offer opportunities for examination and crossexamination by the parties nor administer oaths, American litigants ordinarily resort to letters rogatory only in the last instance.
In the absence of a statutory provision prohibiting such depositions, since only private persons are involved, objections by the German government should be unavailing. See Smit, note 191 supra, at 145-46. However, according to Professor Biilow, examinations of witnesses before private persons are unknown to, and not permitted by, German law.
On German notaries generally, see text at note 289 infra.
See text at notes 190, 191 supra
See also Bülow & Arnold, 991.68 n. 11.
Section 22 of the Bundesnotarordnung, note 289 infra, specifically authorizes a German notary to administer an oath to a person whose testimony is taken for use in a foreign country. Unless a request is made to administer the oath at the outset of the examination, the notary will probably follow German practice and administer it at the conclusion of the testimony. See text at note 252 infra. The German oath formula is to the effect that the witness has testified to the best of his knowledge and has kept nothing back. See text at note 80 supra. Intentionally false testimony not under oath is declared punishable by Section 153 of the Strafgesetzbuch (minimum three months imprisonment; in serious cases, imprisonment of up to 15 years). If intentionally false testimony was given under oath, the punishment is hard labor and in no event less than six months imprisonment. Strafgesetzbuch § 154. If false testimony under oath was given negligently, the punishment is imprisonment of up to one year. Strafgesetzbuch § 163.
In the absence of a statutory or treaty basis, no compulsion may be used. Of course, the witness may be reminded of unfavorable consequences that may ensue in the United States in case he refuses to co-operate. See also text at notes 267-270 infra.
Zrho § 83(1) (“In the absence of treaty, measures of compulsion (Zwangmassnahmen) are not permitted”). It is not clear whether German courts would be willing to indicate to an unwilling witness the measures of compulsion the foreign state might resort to. However, it may reasonably be assumed that they would not be willing to do so.
Zrho §§ 57-65. See also text at notes 200-209 supra
Zrho §§82-91.
Zrho §82(1).
Zrho § 82(2).
Binding (zwingende) provisions are those from which parties may not deviate.
Zrho § 83(1).
Zrho § 84 provides that the examination shall not be conducted in the manners provided for in Zivilprozessordnung § 377 (3) and (4). On the latter section, see text at notes 101-102 supra.
See generally Rosenberg § 119 IV 4.
Zivilprozessordnung § 395(1).
Id. § 395(2).
Id. § 396(1). See also Rosenberg § 119 IV 4.
Rosenberg § 119 IV 4 and authorities cited.
Ibid.
Zivilprozessordnung § 396(2).
Id. §397(1).
Id. § 397(2).
Id. §§391, 392.
Id. §§ 160 (3), 163(1).
Id. § 162.
Ibid.
Zrho §§ 60 (2), 88.
According to the Jvkosto, note 222 supra, they vary from 6 to 500 German marks.
In proceedings governed by the Federal Rules of Criminal Procedure, depositions may be taken only pursuant to court order issued upon application of the accused. Fed. R. Crim. P. 15(a). According to Rule 15(d) of the Federal Rules of Criminal Procedure, a deposition in criminal proceedings “shall be taken in the manner provided in civil actions.” This broad reference has been interpreted to encompass a reference to Rule 28(b) of the Federal Rules of Civil Procedure permitting the taking of depositions in a foreign country. United States v. Broker, 246 F. 2D 328 (2d Cir.), cert, denied, 355 U.S. 837 (1957) (dictum); United States v. Ausmeier, 5 F.R.D. 395 (E.D.N.Y. 1946) (dictum).
Section 41 of the Deutsches Auslieferungsgesetz (German Extradition Statute) of December 23, 1929, Rgbl I 239; Rivast NO. 15. It is therefore advisable, although not required, to incorporate a promise of reciprocity in letters issued in criminal cases.
The statutory basis for compulsion is provided by Section 41 of the Deutsches Auslieferungsgesetz, Grützner lAl, at 14. See also Rivast Nos. 152 and 153.
Strafprozessordnung §§51, 70.
Cf. Riezler, op. cit. supra note 137, at 676 (arguing that a witness who is incompetent under foreign law, but competent under German law, may refuse to testify).
See generally Smit, International Aspects of Federal Civil Procedure, 61 Colum. L. Rev. 1031, 1053-54 (1961).
Sections 10 and 11 of the New Statute. Old sections 1783 and 1784 of Title 28 of the United States Code provided only for subpoenas to compel testimony. See Smit, note 263 supra, at 1052.
See also note 232 supra.
See text at note 231 supra.
See text at note 263 supra.
See text at notes 186-188 supra.
It should be noted that not all consequences that may flow from disobedience of a court order qualify as compulsion (Zwang) in the German sense. For example, Rule 37(b) (2) of the Federal Rules of Civil Procedure includes among these consequences (1) an order that the matter to which the evidence relates shall be taken as established in accordance with the claim of the party obtaining the order, (2) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing in evidence designated documents or things, and (3) an order striking out pleadings or parts thereof, of staying further proceedings until the order is obeyed, or dismissing the action or any part thereof, or rendering a judgment by default against the disobedient party. None of these orders would seem to impose measures that would be considered compulsory under the Zrho. Only an order directing the arrest of a disobedient party, Fed. R. Civ. P. 37(b) (2) (iv), would seem to qualify as threatening compulsion.
See text at note 232 supra.
See note 259 supra.
Rivast NO. 157. Seizure is governed by Sections 94 through 101a of the Strafprozessordnung.
For a definition of what constitutes an official document under German law, see text at note 128 supra. For a partial enumeration of official documents recognized as such in Germany, see Schönke & Amp; Schröder, Strafgesetzbuch 1078-79 (10th ed. Munich & Berlin 1961).
Grundbuchordnung of March 24, 1897, Rgbl 1897, 139, §§ 1-12
Handelsgesetzbuch of May 10, 1897, Rgbl 219, §§ 8-16.
Bürgerliches Gesetzbuch of August 18, 1896, Rgbl 1896, 195, §§ 55 et seq.; Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarheit of May 17, 1898, Rgbl 1898, 189, §§ 159, 162.
Gesetz betreffend die Erwerbs-und Wirtschaftsgenossenschaften of May 1, 1889, Rgbl 1889, 55, §§ 10 et seq., §§ 156, 157.
Bürgerliches Gesetzbuch § 1558.
The Amtsgericht is a court of general competence in matters of minor importance. See Kaplan, Von Mehren & Schaefer, Phases of German Civil Procedure I, 71 Harv. L. Rev. 1193, 1194-99 (1958).
Personenstandsgesetz in der Fassung vom 8 August 1957, Bgbl 1957 I 1125, § 1.
Patentgesetz, supra note 1, §24; Gebrauchsmuster gesetz, supra note 1, §3; Warenzeichengesetz, supra note 1, § 2.
In some cases, a showing of berechtigtes or rechtliches Interesse may be required. On these cases and the difference between the two types of interest, see Keidel, Kommentar Zum Gesetz üBer Die Angelegenheiten DER Freiwilligen Gerichtsbarkeit, Anmerkung zu § 61.
In some cases, no provision is made for the issuance of attested copies by a designated official attached to the institution in which the records are kept. In these cases, only a notary may attest a copy. Section 20 of the Bundesnotarordnung grants German notaries general authority to attest copies of all documents.
Handelsgesetzbuch, supra note 1, § 9; Genossenschaftsgesetz, supra note 277, § 156; Gesetz über die Angelegenheiten der freiwilligen Gerichtsbarkeit, supra note 1, § 162. So called Negativatteste can, of course, not be obtained in regard to official documents that are not kept in official records.
Bürgerliches Gesetzbuch §§ 66, 1562.
Handelsgesetzbuch § 10(1). Entries in the Commercial Register must be published, in addition, in one other publication. As to the Genossenschaftsregister, see Genossenschaftsgesetz, supra note 277, § 156.
Grundgesetz, supra note 1, § 82.
Under the definition of official documents set forth in the text at note 128 supra.
The qualifications for appointment as a notary are prescribed in the Bundesnotarordnung of February 24, 1961, Bundesgesetzblatt I 98.
Bundesnotarordnung § 20.
Zivilprozessordnung § 794(1) 5.
Bundesnotarordnung § 25.
Seybold-Hornig, Kommentar Zur Bundesnotarordnung § 15 n. 26 (4th ed. 1962).
See note 283 supra.
Zivilprozessordnung § 415(1).
See, e.g., Fed. R. Civ. P. 44. See also Smit, International Aspects of Federal Civil Procedure, 61 Colum. L. Rev. 1031, 1062-71 (1960).
See Proposed Amended Rule 44 of the Federal Rules of Civil Procedure and Sections 5.02-5.05 of the Uniform Interstate and International Procedure Act.
See text at note 133 supra.
Conférence DE LA Haye DE Droit International Privé, légalisation DES Actes Publics Etrangers, Exposé PAR Pays — Allemagne 2 n. 5 (1959).
On proof of foreign law in the United States generally, see Smit &Amp; Miller, op. cit. supra note 25, at 73-77.
See Proposed New Rule 44.1 of the Federal Rules of Civil Procedure, Appendix B, and Sections 4.01-4.03 of the Uniform Interstate and International Procedure Act.
It should be noted, however, that Zrho § 40(i) prohibits German officials from obtaining such information from foreign private sources on the ground that their actions may be considered to infringe upon foreign sovereignty. This limitation seems undesirable. See Smit, supra note 159, at 146-47.
Zrho § 96.
Deutsches Auslieferungsgesetz §41(1), note 260 supra. See also Bülow & Amp; Arnold 701.57 n. 200.
See text at notes 224-262 supra.
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Oesterhelt, J., Smit, H. (1965). International Co-Operation in Litigation: The Federal Republic of Germany. In: Smit, H. (eds) International Co-Operation in Litigation: Europe. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9208-8_8
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