JUDICIAL NOTICE AND DEPOSITION PRACTICE

IN INTERNATIONAL LITIGATION
In view of statutory innovations in the areas of judicial notice of
foreign law and depositions taken abroad, and the practical diffi-
culties encountered under these statutes, this comment attempts
a reevaluation of modern trends and needs.

P LEADING, proof, and the just, effective utilization of foreign law in

local courts, has always been a subject of interest to practitioners
and scholars alike.1 The taking of depositions in foreign countries
for use locally is of equal interest. It is the purpose of this comment
to undertake a general survey of the state legislation 2 and the newly
I The literature in the field is extensive. See generally SOMMERICH 8 Buscu,
FOREIGN LAW: A GuIDE TO PLEADING AND PROOF (1959); Currie, On the Displace-
ment of the Law of the Forum, 58 CoLum. L. REv. 964 (1958); Miller, International
Cooperation in Litigation Between the United States and Switzerland: Unilateral
ProceduralAccommodation in a Test Tube, 49 MINN. L. REv. 1069 (1965); Nussbaum,
Proving the Law of Foreign Countries, 3 AM. J. Comp. L. 60 (1954); Nussbaum, The
Problem of Proving Foreign Law, 50 YALE L.J. 1018 (1941). Relevant sources may also
be found in Miller, supra at 1106 n.122.
2 State rather than federal law has been chosen for various reasons. A large
percentage of the cases in the area come from the state courts, and the mere multi-
plicity of state laws offers a greater spectrum of procedures from which salutary pro-
visions may be noted. It has also been suggested that the procedure utilized in inter-
national litigation in American courts has been developed almost exclusively by the
state courts. See Jones, International Judicial Assistance: Procedural Chaos and a
Program for Reform, 62 YALE L.J. 515, 542 (1953).
It should, however, be noted that the 1964 proposed amendments, reprinted in 34
F.R.D. 325 (1964) and 249 F.Supp. No. 4 (1966) [subsequent citations to the proposed
amendments shall be to 34 F.R.D.], to the Federal Rules of Civil Procedure, effective
July 1, 1966, do contain a provision relating to the "Determination of Foreign Law."
Proposed rule 44.1 states: "A party who intends to raise an issue concerning the law
of a foreign country shall give notice in his pleadings or other reasonable written
notice. The court, in determining foreign law, may consider any relevant material
or source, including testimony, whether or not submitted by a party or admissible
under Rule 43. The court's determination shall be treated as a ruling on a question
of law." 34 F.R.D. 325, 402 (1964). (Italics omitted.)
Since the federal rule is based on the research done by the Commission and Ad-
visory Committee on International Rules of Judicial Procedure, the Advisory Com-
mittee on Civil Rules, and the Columbia Law School Project on International Pro-
cedure, it is extremely similar to the UNIFORM INTERSTATE AND INTERNATIONAL PRO-
CEDURE Acr art. IV, which was also promulgated by that Commission. See note 12 infra.
The only difference between proposed rule 44.1 and the uniform act would seem
to be that the former does not state that the court, rather than the jury, shall de-
termine the tenor of foreign law. The Advisory Committee intimated that this was
simply due to the fact that the Federal Rules of Civil Procedure do not treat the
area of allocation of functions between the court and jury. Advisory Committee's
Note, 34 F.R.D. at 403.
It should also be noted that the 1964 proposed Rules of Criminal Procedure,
Vol. 1966: 512] INTERNATIONAL LITIGATION

formulated uniform laws relevant to these evidentiary matters, with

a view toward evaluating the degree to which such laws facilitate
the expeditious and fair disposition of international litigation.

I
JUDICIAL NOTICE OF FoREIGN LAW
The evidentiary device of judicial notice allows a court to con-
sider certain readily verifiable facts which have not been presented
to it under the formal rules of evidence. Through frequent statu-
tory innovations, judicial notice has been used to eliminate the char-
acteristic formality that accompanied common law pleading and
proving of foreign law.3 It is, however, necessary to become familiar
with the situation at common law in order to more fully understand
and evaluate any statutory changes in the field.
Under the common law, the law of sister states and foreign
countries was treated as a question of fact which had to be pleaded
and proved. 4 An obvious consequence of this treatment of foreign
law as "fact" was that the jury rather than the court was required to
consider and determine the specific tenor of the law.5 Where proof
of the foreign law was insufficient, courts often indulged in the use
reprinted in 34 F.R.D. 411 (1964), contain a provision, proposed rule 26.1, id. at
433-34, almost identical to proposed civil rule 44.1. It is questionable whether, in
light of rule 44.1, this proposed rule for criminal procedure is really necessary. How-
ever, the Advisory Committee has indicated several areas where it feels a rule
specifically aimed at determination of foreign criminal law is requisite. "Problems
of foreign law that must be resolved in accordance with the Federal Rules of Criminal
Procedure are most likely to arise in places such as Washington, D.C., the Canal
Zone, Guam, and the Virgin Islands, where the federal courts have general criminal
jurisdiction. . . . [I]n an extradition proceeding, reasonable ground to believe tliat
the person sought to be extradited is charged with, or was convicted of, a crime
under the laws of the demanding state must generally be shown. . . . [See Factor v.
Laubenheimer, 290 U.S. 276 (1933)]." Advisory Committee's Note, supra at 434. The
note goes on to point out that the tenor of foreign law may be relevant in order to
justify non-compliance with a subpoena duces tecum, see Application of Chase
Manhattan Bank, 297 F.2d 611 (2d Cir. 1962), and also in proceedings arising under
18 U.S.C. § 1201 (1964) (transportation in kidnapping cases), and 18 U.S.C. §§
2312-17 (1964) (transportation of stolen property). Advisory Committee's Note, supra
at 434.
3See generally MCCORMICK, EvIDENCE §§ 323-31 (1954).
'See Cuba R.R. v. Crosby, 222 U.S. 473 (1912). See generally SOMmERCH
BuscH, op. cit. supra note 1, at 11-17; 9 WIGMORE, EVMENCE § 2573 (3d ed. 1940).
r Dyer v. Smith, 12 Conn. 384 (1837); Thompson v. Ketchum, 8 Jons. R. 146 (N.Y.
1811). It has been suggested that the older cases often distinguished between in-
stances where the foreign law was proven by means of witnesses on the one hand and
by foreign statutes and case law on the other. If the former mode of proof was em-
ployed, the foreign law was considered a question of fact; if the latter, it was deemed
a question of law for the court. Annot., 84 A.L.R. 1447, 1464 (1925).
 DUKE LAW JOURNAL [Vol. 1966: 512

of various presumptions as to the content of foreign law0 which,

although allowing a court to dispose of a particular case, were not
always solidly based in logic. This system produced such anomalous
results7 that the need for reform became evident. The device of
judicial notice seemed to provide the answer and, beginning with
Massachusetts in 1926,8 almost all states developed statutes which
apply judicial notice to at least some areas of foreign law. 9 How-
ever, these statutes developed rather haphazardly and as a conse-
quence, various uniform acts were drafted with a view toward uni-
form state treatment of the foreign law problem. Among these acts
10
are the Uniform Judicial Notice of Foreign Law Act, the Uniform
8For a full discussion of the various presumptions used, see Annot., 75 A.L.R.2d
529 (1961). Briefly, these presumptions included the following: certain fundamental
principles are common to all civilized legal systems; foreign law is the same as the
law of the forum; the law of the forum applies without indulging in any pre-
sumption; the common law is presumed applicable. A classic enumeration of these
presumptions may be found in Leary v. Gledhill, 8 N.J. 260, 266-67, 84 A.2d 725, 728
(1951). Without the utilization of such presumptions, the reliance on foreign law
was a dangerous proposition, and the lack of sufficient proof could render valid
claims unenforceable. Cf. Cuba R.R. v. Crosby, 222 U.S. 473 (1912).
Presumptions may still play an important part in the contemporary law. For ex-
ample, the California statute provides that if the foreign law cannot be ascertained
the action may either be dismissed or shall proceed with California law being ap-
plied. CAL. CiV. PROC. CODE § 1875 (Supp. 1965). Thus, the California statute may
be viewed as in essence analogous to a common law presumption that the law of the
forum is the same as the foreign law.
7If the foreign law was treated as a fact, a complaint which failed to plead the
foreign law was subject to dismissal. "Proving" foreign law was often extremely diffi-
cult and costly under the technical rules of proof since a party was frequently forced
to present the fact-finders with expert witnesses and translations of foreign statutes
and court decisions. Further, once the jury had determined the foreign law in
question, their finding was not subject to appellate review; nor was it given stare
decisis effect. Most unusual of all was the paradoxical situation created wherein a
true question of law was to be decided by fact-finders. See Stern, Foreign Law in
the Courts: Judicial Notice and Proof, 45 CALIF. L. REy. 23, 24-29 (1957).
8 MAss. ANN. LAWS ch. 233, § 70 (1956).
Most jurisdictions have enacted statutes pertaining in some degree to judicial
notice of foreign country law: ARK. STAT. ANN. § 27.2504 (Supp. 1965); CAL. CIV.
PROC. CODE § 1875 (Supp. 1965), to be replaced by CAL. EVIDENCE CODE §§ 310-11,
450-60 (effective Jan. 1, 1967); CONN. GEN. STAT. ANN. §§ 52-163 to -164 (1960); KAN.
GEN. STAT. ANN. § 60-409 (1964); MD. ANN. CODE art. 35, § 47 (1965); MAss. ANN.
L_ws ch. 233, § 70 (1956); MICH. STAT. ANN. §§ 27A.2114, 27A.2118 (1962);- MIss.
CODE ANN. § 1761 (1956); NJ. STAT. ANN. § 2A:82-27 (Supp. 1965); N.Y.R. Civ.
PRAC. 4511; N.C. GEN. STAT. § 8-4 (1953); Okla. Laws 1965, ch. 144, at 168; VA.
CODE ANN. § 8-273 (1957); V.1. CODE tit. 5, §§ 4926-28 (Supp. 1965).
-0 In 1936 the Conference of Commissioners on Uniform Laws approved the Uni-

form Judicial Notice of Foreign Law Act. A copy of the act may be found in 9A
UNIFORM Lws ANN. 553 (1965). Section 5 of the act, however, specifically exempts
foreign country law from judicial notice treatment. 9A UNIFORM LAws ANN. 550
(1965) contains a list of the twenty-eight jurisdictions which have adopted this act.
Vol. 1966: 512] INTERNATIONAL LITIGATION
Rules of Evidence' and the Uniform Interstate and International
2
Procedure Act.'
The actual value of the state and uniform judicial notice statutes
can only be determined by reference to the requirements which a
pragmatically effective statute should fulfill.' 3 The first requisite
" 1This set of rules contains provisions pertaining to judicial notice. UNIFORM
RULES OF EVIDENCE 9-12. Rule 9 (2) (b) provides that the court may take judicial notice
of foreign country law without request by a party; rule 9 (3) requires that judicial
notice must be taken "if a party requests it and (a) furnishes the judge sufficient
information to enable him properly to comply with the request" and (b) gives notice
to the adverse party.
California, Kansas, and New York have adopted statutes almost identical to the
Uniform Rules of Evidence. CAL. EVIDENCE CODE §§ 450-60 (effective Jan. 1, 1967);
RAN. GEN. STAT. ANN. § 60-409 (1964); N.Y.R. Civ. PPAc. 4511. The Panama
Canal Zone has also adopted the Uniform Rules of Evidence, including those pro-
visions relating to judicial notice of foreign country law. C.Z. CODE tit. 5, §§ 2761-64
(1963).
2Need for reform in the area of civil litigation having interstate and international
aspects gave rise in 1958 to the establishment of a Commission and Advisory Com-
mittee on International Rules of Judicial Procedure. See Act of Sept. 2, 1958, 72 Stat.
1743. The Commission obtained the assistance of the Columbia Law School Project
on International Procedure under the direction of Professor Hans Smit. An initial
draft act was promulgated by this Commission and approved by the Conference of
Commissioners on Uniform State Laws and the American Bar Association in the
form of the Uniform Interstate and International Procedure Act in 1962. See 9B
UNIFORM LAws ANN. 80 (Supp. 1965). Arkansas, Oklahoma, and the Virgin Islands have
subsequently adopted this act. ARK. STAT. ANN. § 27-2504 (Supp. 1965); Okla. Laws 1965,
ch. 144, at 168; V.I. CODE tit. 5, §§ 4926-28 (Supp. 1965). See generally Leflar, Act 101
-Uniform Interstate and International Procedure Act, 17 ARK. L. R.v. 118 (1963);
Miller, supra note 1, at 1069-72; Note, 11 Am. J. COMP. L. 415 (1962).
' 3 Judicial notice has been viewed as the solution to various problems. It is
argued that the establishment of a judicial notice statute will tend to decrease "con-
tradictory conclusions as to the interpretation of identical provisions of foreign
law." Emanuel v. Feiereman, 202 Cal. App. 2d 552, 561, 20 Cal. Rptr. 883, 890 (Dist.
Ct. App. 1962) (dictum), speaking about the purposes of the California statute, CAL.
CIV. PROC. CODE § 1875. The financial burden on the impecunious party seeking to
prove foreign law has drawn criticism of the old rules by Professor Nussbaum, who
views the device of judicial notice as a definite improvement in this field. Nussbaum,
Proof of Foreign Law in New York: A Proposed Amendment, 57 COLuM. L. REV. 348
(1957); Nussbaum, Proving the Law of Foreign Countries, 3 Am. J. COMP. L. 60, 66
(1954). Professor McCormick views rigid requirements regarding expert witnesses as
unnecessary hindrances. McCormick, Judicial Notice, 5 VAND. L. REV. 296 (1952).
"IT]he adoption by the federal courts and by the states which have not yet adopted it,
of the flexible procedure of judicial notice, whereby the court is free to get its infor-
mation from any convenient source, seems the path of justice and common sense.
The courts could then accept, as they should, the opinions of experts submitted by
letters instead of being limited to cross-examined testimony." Id. at 309. As to the
procedural improvements attributable to judicial notice see generally 1 CALIF. LAiw
REVIsION REP. 1-21 (1957); Joseph, How the Adoption of the Uniform Rules of Evi-
dence Would Affect the Law of Evidence in Oregon: Rules 1-16, 41 ORE. L. REV.
275 (1962).
It is, however, interesting to note that the use of judicial notice with regard to
foreign country law has not been universally favored. It is argued by the opponents
 DUKE LAW JOURNAL [Vol. 1966: 512

is a means by which the foreign law may be effectively utilized to

govern all or part of a locally instituted action-this is the basic
purpose of the judicial notice statutes. Secondly, in order to allow
the adversary system to function fully, a means of notice to the ad-
verse parties 14 must be provided. Thirdly, an effective statute must
require that the tenor of the foreign law be a question of law for the
court and subsequently reviewable on appeal.' 5 Finally, certain
of judicial notice that the "roles" of the courts and litigants would be detrimentally
altered by such a statute, as the court would be overburdened and the attorneys not
responsible for researching the foreign law. See, e.g., Arams v. Arams, 182 Misc. 328,
182 Misc. 336, 45 N.Y.S.2d 251 (Sup. Ct. 1943); Sommerich & Busch, The Expert
Witness and the Proof of Foreign Law, 38 ComFL. L.Q. 125, 156-59 (1953); Stern,
supra note 7, at 40-45. But see Currie, supra note 1, at 991: "Judicial notice cannot
dispense with the necessity of work to find the rule of decision. It is unrealistic
and probably unwise to expect judicial notice to change the relative roles of court
and counsel by shifting the burden of that work to the court. It is positively dan-
gerous to entertain the notion that judicial notice can dispense with procedures which
safeguard the fairness of the adversary process."
In this connection it is interesting to note that the Massachusetts bar, upon
passage of the earliest judicial notice statute, felt it incumbent upon itself to warn
the members of the bar that "whenever the law of any jurisdiction outside of Massa-
chusetts shall be material, it shall be the duty of counsel to call to the attention of
the court such authorities or other material relating to the question as they wish the
the court to consider." Mass. L.Q., Nov. 1931, p. 8.
"'For a discussion of the need for notification of adverse parties under a judicial
notice statute, see 1 CALIF. LAw REVISION REP. 1-20 to -21 (1957).
2rA closely related problem, assuming the existence of a statute which makes
foreign law a reviewable question of law, is whether or not the appeals court may do
its own research and even notice law which was never brought to the attention of the
trial court. Allowing an appeals court to do its own research has been criticized.
See SOMMERICH & BuscH, FOREIGN LAW: A GUIDE TO PLEADING AND PROOF 68 (1959).
It would seem that courts have generally not allowed the introduction of foreign law
for the first time on appeal. See, e.g., People v. De Casaus, 194 Cal. App. 2d 666,
15 Cal. Rptr. 521 (Dist. Ct. App. 1961); Donahue v. Dal, Inc., 314 Mass. 460, 50 N.E.2d
207 (1943); Lennon v. Cohen, 264 Mass. 414, 163 N.E. 63 (1928). Some appellate courts
have applied this general rule so rigidly as to achieve rather unrealistic results.
See, e.g., Emanuel v. Feiereman, 202 Cal. App. 2d 555, 20 Cal. Rptr. 883 (Dist. Ct.
App. 1962), where an appellate court reversed a lower court decision obviously based
on foreign law because the lower court had failed to include in the record that it had
taken judicial notice of certain provisions of Soviet law.
There are, however, also interesting exceptions to this rule. The Massachusetts
court under its judicial notice statute, MAss. ANN. LAws ch. 233, § 70 (1956), said:
"We deem it our duty to decide this actual controversy. Even if not required to take
judicial notice of the law of Nevada, which is said not to have been brought to the
attention of the court below, we are nevertheless authorized to do so by . . . [the
state statute]." De Gategno v. De Gategno, 336 Mass. 426, 431, 146 N.E.2d 497, 500
(1957). Likewise, in New England Trust Co. v. Wood, 826 Mass. 239, 93 N.E.2d 547
(1950), where the law of Turkey had not been fully brought to the attention of the
court below, the court noted that "although not so required, we might take notice
of Turkish law." Id. at 243, 93 N.E.2d at 549; accord, Walker v. Lloyd, 295 Mass. 507,
4 N.E.2d 306 (1936); cf. Tsacoyeanes v. Canadian Pac. Ry., 339 Mass. 726, 162 N.E.2d
23 (1959). The Massachusetts appellate courts have been able to achieve results
contrary to the general rule by judicially transforming their statute, which is
Vol. 1966: 512] INTERNATIONAL LITIGATION
realistic considerations dictate that in the instance where the court
receives inadequate information concerning the foreign law and can-
not justly base its decision upon that law, it be empowered to dismiss
the action.'"

1. Foreign Law as Basis of a Local Action

As previously stated, one basic purpose of any judicial notice
statute is the effective ascertainment of foreign law so as to allow
such law to constitute the basis of an action in the local court.
couched in mandatory terms, see note 21 infra, into a permissive statute. The lan-
guage of the Massachusetts decisions has created the impression that whether or not
foreign law not previously introduced is noticed initially on appeal will be purely a
matter of discretion. The Massachusetts courts have also applied this interpretation
to their statute when faced with other situations. Cf. notes 21-22 infra and accom-
panying text.
It would seem that a procedure allowing the appellate court to judicially notice a
foreign law which had never been brought to the attention of the parties would be
extremely unfair to the party adversely affected by such foreign law. This situation
could be cured by permitting the appellate court to notice foreign law inde-
pendently, but requiring that court to give sufficient notice to the parties. The
Uniform Rules of Evidence specifically aim at this problem. Rule 12(3) states
"the reviewing court in its discretion may take judicial notice of any matter specified
in Rule 9 whether or not judicially noticed by the judge," UNIFORM RULEs OF EvI-
DENCE 12(3), while rule 12(4) provides that if the appeals court wishes to notice
matter not noticed previously, it must provide the parties with sufficient time in
which to present relevant information. UNIFORM RULEs OF EVIDENCE 12 (4).
36 See note 83 infra. It should be noted that, due to choice of law considerations,
the foreign law may not come into play at all as the rule of decision. See generally
CURRIE, SELECTED ESSAYS ON THE CONFLICT OF LAwS (1963); Garfinkel, Conflict of Laws
-A Survey of Past and Contemporary Theory, 16 HAsTINGs L.J. 21 (1965). An in-
ability to ascertain the content of foreign law may pose an interesting choice of law
dilemma, however. If the forum's choice of law rule points to an unascertainable
foreign law as the rule of decision, the forum may have no alternative to dismissal.
Whether such dismissal is with or without prejudice may depend upon whether the
forum will conclude that the party invoking the foreign law has failed to meet his
burden of proof or whether the dismissal is viewed as deriving from application of
the doctrine of forum non conveniens. Should the latter tack be taken, the judgment
may be framed in such a manner that it would not be res judicata on the merits
and the action could be brought in the foreign state or another state more able to as-
certain the law, if jurisdiction can be obtained. However, the prior determination
that foreign law is applicable might not be deemed binding in the eyes of a different
jurisdiction in which the action is subsequently brought, although it may be argued
that the first choice of law determination was res judicata. An alternative to dismissal
and its potential horrors would be utilization of the various common law presump-
tions as to the content of unproven foreign law. See note 6 supra.
A choice of law rule -which prohibits a local court from applying a foreign law
which contravenes the public policy of the forum has on occasion caused courts to
misapply the term "judicial notice." When faced with such an antipathetic law, one
court has stated that it would not take "judicial notice" of it. See Fitzgerald v.
Fitzgerald, 66 N.J. Super. 277, 168 A.2d 851 (N.J. Super. Ct. 1961) (dictum). The
obvious error here is that the courts have noticed the foreign law in order to make
the determination that it is contrary to local policy.
 DUKE LAW JOURNAL [Vol. 1966: 512

The thoroughness with which the foreign law on a particular point

can be ascertained is governed by innumerable variables such as
the availability of expert opinion on the foreign law, familiarity
with comparative law concepts on the part of the court and at-
torneys, and the adequacy of the local library facilities.' 7 The at-
tempted use of judicial notice statutes, most of which entail certain
inflexible distinctions,' for the purpose of dealing with the ex-
tremely flexible situations which arise in this area has placed upon
the courts the burden of extricating themselves from certain diffi-
cult situations. Regardless of whether the statutes have been
couched in mandatory or permissive terms, 19 the courts have almost
invariably reached the pragmatic result of noticing that law and
only that law which could, under the particular circumstances,
20
be effectively ascertained.
It is instructive to view the various state judicial notice statutes
and the ways in which the state courts have responded to individual
concrete cases. The Massachusetts statute, for example, is extremely
broad on its face and requires notice of any "material" statute or
case law extant in any jurisdiction.21 The Massachusetts courts,
however, have found it difficult to break away from the common law
rules. While they have not specifically stated that pleading and proof
are required, the fact that sufficient "evidence" is still a judicially-
imposed requisite would seem to indicate that some form of plead-
ing and proof may be necessary and that the Massachusetts courts
will not consider noticing law as to which they have not been given
22
adequate information.
17 See generally Nussbaum, Proving the Law of Foreign Countries, 3 Aai. J. COMP.
L. 60 (1954); Nussbaum, The Problem of Proving Foreign Law, 50 YALE L.J. 1018
(1941); Sommerich & Busch, The Expert Witness and the Proof of Foreign Law, 38
CORNELL L.Q. 125 (1953); Stem, supra note 7. One aspect of the adequacy of library
facilities is the availability of translations of foreign materials. A discussion of some
of the translations available is contained in Szladits, Note on Translations of Foreign
Civil and Commercial Codes, 3 Am.J. Comtp. L. 67, 68-71 (1954).
IsSee text accompanying notes 42-47 infra.
19Generally, statutes which require the local court to judicially notice foreign law
are termed "mandatory" and those which make judicial notice of foreign law a matter
of discretion with the court are termed "permissive."
2oSee notes 21-38 infra and accompanying text.
21 MAss. ANN. LAWS ch. 233, § 70 (1956): "The courts shall take judicial notice of
the law of the United States or of any state, territory or dependency thereof or of a
foreign country whenever the same shall be material." (Emphasis added.)
- Professor Nussbaum has noted the strange phenomenon occurring in the Massa-
chusetts court. "The Massachusetts courts seem not much impressed by the precept
of their legislature .... [Citation to Rodrigues v. Rodrigues, 286 Mass. 77, 190 N.E. 20
(1934)] where the court 'took judicial notice' on the basis of expert testimonyl
Vol. 1966: 512] INTERNATIONAL LITIGATION

Four other states, North Carolina, 23 Mississippi, 24 California, 25

and Virginia 26 also have statutes which, on their faces, may be termed
Perhaps the Massachusetts courts interpret the precept merely as barring notice of
foreign law from the jury." Nussbaum, Proving the Law of Foreign Countries, 3 Am.
J. CoMP. L. 60 n.3 (1954). In Rodrigues v. Rodrigues, supra, the court noted that
"merely to direct attention to the law of a foreign country written in a foreign
tongue does not make it a matter for judicial knowledge." Id. at 83, 190 N.E. at 22.
It has not been unusual for the Massachusetts courts to depart from the strict re-
quirement of the Massachusetts statute. See, e.g., Bergeron v. Bergeron, 287 Mass.
524, 192 N.E. 86 (1934); Gorrasi v. Manzella, 287 Mass. 165, 191 N.E. 676 (1934);
Lennon v. Cohen, 264 Mass. 414, 163 N.E. 63 (1928); MASs. L.Q., Oct.-Dec. 1939, p. 8.
But cf. Tsacoyeanes v. Canadian Pac. Ry., 339 Mass. 726, 162 N.E.2d 23 (1959) (where
foreign law not fully brought to attention of court, it might take judicial notice of
of such law); New England Trust Co. v. Wood, 326 Mass. 239, 93 N.E.2d 547 (1950).
Cf. note 15 supra.
23N.C. GEN. STAT. § 8-4 (1953): "When any question shall arise as to the law of...
any foreign country, the court shall take notice of such law in the same manner as if
the question arose under the law of this State."
-4Miss. CODE ANN. § 1761 (1956): "When any question shall arise as to the law of
the United States, or of any other state or territory of the United States ... or any
foreign country, the court shall take notice of such law in the same manner as if the
question arose under the law of this state." (Emphasis added.)
25 CAL. CIV. PROC. CODE § 1875 (Supp. 1965). The exact wording of the statute
makes it a bit difficult to determine whether or not the drafters intended the statute
to be mandatory. The statute states merely: "Courts . . . take judicial notice of" as
opposed to the other mandatory statutes which say "the Court shall take notice."
(Emphasis added.)
See Note, 32 CALIF. ST. BAR J. 564 (1957), which indicates that the California
statute is also mandatory with respect to foreign country law. In support of this
contention the author cites several California decisions where the statute was held to
be mandatory with regard to the law of sister-states. Id. at 566. Since the California
statute makes no distinction between the laws of sister-states and foreign countries, as
do N.Y.R. Civ. PtRAc. 4511, and UNIFoaM RULE OF EvIDENCE 9, the analogy
to foreign country law from these decisions involving sister-state law may be apt.
However, it should be noted that the California statute effective January 1, 1967,
is an enactment quite similar to the Uniform Rules of Evidence. CAL. EVIDENCE CODE
§§ 310-11, 450-60.
Section 310 reiterates the rule that the foreign law is a question of law for the
court; § 311 provides for application of local law or dismissal if the foreign law
cannot be determined; §§ 452-53 provide that the foreign country law may be noticed
by the court, and must be noticed if requested and sufficient information is supplied.
Despite the much clearer enumeration in the new California statute, the comment
to § 452 (f), states "subdivision (f) should be read in connection with §§ 310, 311,
453, and 454. These provisions retain the substance of the existing law which was
enacted in 1967 upon recommendation of the California Law Revision Commission."
Comment-Assembly Committee on Judiciary in CAL. EVIDENCE CODE § 452 (f), at 57.
28 "Whenever in any case it becomes necessary to ascertain what the law, statutory
or otherwise, of another ... country ... is, or was at any time, the court ... shall
take judicial notice thereof, and may consult any book of recognized authority pur-
porting to contain, state or explain the same, and may consider any testimony, in-
formation or argument that is offered on the subject." VA. CODE ANN. § 8-273 (1957).
The West Virginia statute, W. VA. CODE ANN. § 5711 (1961), is identical to the
Virginia statute and includes the same reference to the judicial notice of foreign
law. However, the title of the section and the comment following it both indicate
that it only applies to United States and sister-state law.
 DUKE LAW JOURNAL [Vol. 1966: 5l2

mandatory and which apply to sister-state and foreign country law

alike. Although no cases involving foreign country law have been
found in which these statutes have been construed, several state
decisions do present a rather interesting result. Under their respec-
tive judicial notice statutes, the courts of North Carolina and Mis-
sissippi have judicially noticed sister-state laws where no pleading or
proof whatsoever has taken place and where the courts have not
27
been presented with any information regarding the foreign law.
It would seem significant to observe in this connection that sister-
state law would not, under most circumstances, be subject to those
variables 28 which might make foreign country law difficult to de-
29
termine.
The conclusion that the courts will only notice that law which
they can ascertain is reinforced by the history of the New York
statutes. Prior to 1963, New York had a permissive statute which had
been interpreted as requiring pleading and proof of foreign law.8 0
The new New York statute31 was believed to be of a more mandatory
New Jersey also has a mandatory provision, although it is questionable whether
it applies to foreign country law. The New Jersey amendment, N.J. STAT. ANN.
§ 2A:82-27 (Supp. 1965), increased the purview of the earlier judicial notice statute
to include the law of a foreign country; however, the old New Jersey statute, N.J.
STAT. ANN. § 2A:82-31 (1952), which asserts that § 2A:82-27 does not include the law
of foreign
7
countries, is not listed as having been repealed in the 1965 supplement.
2 1n Arnold v. Ray Charles Enterprises, 264 N.C. 92, 141 S.E.2d 14 (1965), the
court took judicial notice of New York law although neither party made any ref.
erence to it. Accord, Floyd v. Vicksburg Cooperage Co., 156 Miss. 567, 126 So. 395
(1930); Caldwell v. Abernethy, 231 N.C. 692, 58 S.E.2d 763 (1950).
"' See note 17 supra and accompanying text.
"' The court will always-even given a statute which applies mandatorily to both
sister-state and foreign country law alike-judicially notice only those laws it can
pragmatically ascertain. See text accompanying notes 20-28 supra and text accompany-
ing notes 31-38 infra. It is submitted that since it will usually be more pragmatically
possible to ascertain sister-state law, the courts will draw a distinction between
sister-state and foreign country law and will almost always follow the literal wording
of the judicial notice statutes when confronted with sister-state law, while requiring
some degree of proof when dealing with foreign country law.
"N.Y. Sess. Laws 1943, ch. 536, § 6. See Walton v. Arabian American Oil Co.,
233 F.2d 541 (2d Cir.), cert. denied, 352 U.S. 872 (1956); Arams v. Arams, 182 Misc.
328, 182 Misc. 336, 45 N.Y.S.2d 251 (Sup. Ct. 1943).
- ""Every court may take judicial notice without request of . .. the laws of foreign
countries or their political subdivisions. Judicial notice shall be taken of matters
specified in this subdivision if a party requests it, furnishes the court sufficient in-
formation to enable it to comply with the request, and has given each adverse party
notice of his intention to request it. Notice shall be given in the pleading or prior
to the presentation of any evidence at the trial, but a court may require or permit
other notice." N.Y.R. Civ. PRAc. 4511 (b). Subsection (c) provides that the determina-
tion of the foreign law shall be a matter for the court, reviewable on appeal. N.Y.R.
Civ. PRAc. 4511 (c). Subsection (d) allows the court to "consider any testimony, docu-
ment, information or argument on the subject, whether offered by a party or dis.
covered through its own research." N.Y.R. Civ. PRAC. 4511 (d).
Vol. 1966. 512] INTERNATIONAL LITIGATION
nature.3 2 However, a recent decision would seem to indicate that
the courts have not altered their position;33 they will not judicially
notice laws as to which they have not been adequately informed. 34
The conclusion that the New York statutes have not done away with
the pleading and proving of foreign country law is buttressed by
the fact that foreign law is required to be pleaded "where a cause
of action or defense is based upon the law of a foreign country .... -35
The Maryland statute requires its courts to "take judicial notice
of the common law and statutes of every state, territory and other
jurisdiction of the United States, and of every other jurisdiction
having a system of law based on the common law of England."36
Such a statute seems to reflect recognition of the variables which
enter into each individual determination of foreign law. Here, the
Maryland legislature has determined that the problems involved
in ascertaining the tenor of laws of countries whose legal systems
are totally different from the laws of that state are too great to re-
quire that such laws be judicially noticed. It is, however, rather
interesting to note to what convoluted extremes the Maryland
courts have gone. In Reisig v. Associated Jewish Charities37 the
court was confronted with a claim based on the "law of Societies"
which had been promulgated by Palestine under Ottoman rule and
which had been retained under the British mandate and admin-
istered according to the common law of England. "In this situation,
" Sommerich & Busch, JudicialNotice of Law Under New York Civil Practice Law
and Rules, N.Y.L.J., Dec. 17-18, 1962, p. 4.
33Petition of Petrol Shipping Corp., 37 F.R.D. 437, 440 (S.D.N.Y. 1965). The court
felt that lack of sufficient information regarding the foreign law, and unfamiliarity
with the foreign legal system in question (law of Greece), gave the court discretionary
power to refuse to judicially notice the foreign country law.
"Thus, it would seem that the new New York statute, N.Y.R. CIV. PRAc.
4511, is still permissive with regard to foreign country law and the realistic result
is that a New York court will not judicially notice any foreign country law unless
enough "evidence" is presented to it so as to enable it to determine the substance
of the foreign law.
The illusory differences between the old statute, N.Y. Sesa. Laws 1943, ch. 536, § 1,
and the new N.Y.R. Civ. PRAc. 4511, are well stated by one commentator: "How
effective this innovation [rule 4511] will be in practice is difficult to say. A court
reluctant to take judicial notice of foreign law will always be able to state that it
has not been supplied with sufficient information." Herzog, Conflict of Laws, 14
SYRAcusE L. RaV. 147, 154 (1962).
25N.Y.R. Civ. PRAc. 3016(e). (Emphasis added.) The enactment of this section
supports the conclusion that the New York legislature did not intend to do
away with the requirement of pleading the foreign law. Sommerich & Busch, Judicial
Notice of Law Under New York Civil Practice Law and Rules, N.Y.L.J., Dec. 17-18,
1962, p. 4.
86MD. ANN. CODE art. 35, § 47 (1965). (Emphasis added.)
87 182 Md. 432, 34 A.2d 842 (1943).
 DUKE LAW JOURNAL [VCol. 1966:,512

the courts of Maryland are specially required to take judicial notice

of this foreign law and to apply it to the facts of the particular
case, 'as would be proper if such foreign law were domestic law.' "38
The Connecticut39 and Michigan" statutes would seem to im-
pose a more permissive judicial notice mandate. They provide that
the printed statutes and judicial decisions of foreign countries
shall be prima facie evidence and that the courts may take judicial
notice of them. Such permissive statutes are quite realistic in terms
of the problems mentioned above since they do not require the local
court to judicially notice any foreign country laws. Thus, when
faced with law about which no information can be ascertained, these
41
courts will not be forced to contort the notice statute.
Realizing the difficulty in ascertaining a specific foreign law, the
uniform laws have attempted to fix rigid classifications for the use
of the judicial notice device. The Uniform Judicial Notice of
Foreign Law Act 42 is mandatory with regard to sister-state law,4 3 but
still retains the pleading and proof requirements with regard to the
law of foreign countries. 44 Rule 9 of the Uniform Rules of Evi-
dence is somewhat of a hybrid. Sister-state law must be noticed by
a court and the court may on its own motion judicially notice the
law of a foreign country.45 The court must, however, judicially
notice foreign country law if three conditions are met: first, the
parties must request judicial notice of the foreign law; second, notice
must be given to the adverse party; finally, the court must be sup-
plied with "sufficient information to enable . . . [it] properly to
comply with the request." 46 It would seem that this last provision
preserves a large measure of judicial discretion which in effect
makes the statute permissive. 4 The Uniform Judicial Notice of
38 Id. at 437, 34 A.2d at 844.
39CONN. GEN. STAT. ANN. §§ 52-163 to -164 (1960). It should be noted that one of
the Connecticut statutes, CONN. GEN. STAT. ANN. § 52-163 (1960), speaks in mandatory
terms with respect to foreign statutes, while the other, CONN. GEN. STAT. ANN.
§ 52-164 (1960), is couched in permissive terms regarding foreign judicial decisions,
However, there is dicta in Bohenek v. Niedzviecki, 142 Conn. 278, 281, 113 A.2d
509, 510 (1955), construing both statutes as permissive.
'oMICH. STAT. ANN. §§ 27A.2114-.2115, 27A.2118 (1962).
" See notes 21-22 supra and accompanying text.
2See note 10 supra.
" UNIFORM JUDICIAL NOTICE OF FOREIGN LAW ACT § 1.
"UNIFORt JUDICIAL NOTICE OF FOREIGN LAIW AC § 5.
See note 11 supra.
UNIFORM RuLE OF EVIDENCE 9 (3).
"7Cf. notes 32-34 supra and accompanying text.
Vol. 1966: 512] INTERNATIONAL LITIGATION
Foreign Law Act and the Uniform Rules of Evidence reflect a
realistic approach to actual courtroom needs and situations since
they seem to recognize that sister-state law will normally be more
easily ascertained. However, the development of hard and fast
classifications in this area seems of dubious value and such rubrics
were avoided in the new Uniform Interstate and International Pro-
cedure Act, which represents the most flexible approach to date.
The draftsmen did not use the words "judicial notice" and elim-
inated all mandatory or permissive language. The act speaks only
of "determining" the foreign law and presents the basic, pragmatic
rules necessary for an accurate determination of such law. 48 Since
it has only recently been adopted in three jurisdictions, Arkansas,4 9
Oklahoma and the Virgin Islands, 50 no decisions construing the act
are available.
2. Notice Requirement
Under the common law, notice to the adverse party was em-
bodied in the pleadings. In the more traditional judicial notice acts
exemplified by the earlier state statutes, no mention is made of any
notice requirement. 51 For example, the Mississippi5 2 and North Caro-
lina53 enactments provide that the court shall take notice of the foreign
law in the same manner as if the question arose under the law of the
forum state. On its face, such statutes would seem to eliminate any
notice requirement, although some sort of notice might be achieved
through various court-rationalized requirements for pleading.54
However, notice is of such significance that it should be specifically
48 UNIFORM INTERSTATE AND INTERNATIONAL PROCEDURE Acr art. IV. Section 4.01
of article IV provides for notice to the adverse party, § 4.02 empowers the court to
consider any source of law, and § 4.03 provides that the foreign law shall be a
question of law determined by the court and reviewable on appeal.
19 ARK. STAT. ANN. § 27-2504 (Supp. 1965).
30Okla. Laws 1965, ch. 144, at 168; V.i. CODE tit. 5, §§ 4926-28 (Supp. 1965).
51
E.g., MASS. ANN. LAws ch. 233, § 70 (1956); Miss. CODE ANN. § 1761 (1956);
N.C. GRN. STAT. § 8-4 (1953); VA. CODE ANN. § 8-273 (1957).
512Miss. CODE, ANN. § 1761 (1956).
53 N.C. GEN. STAT. § 8-4 (1953).
"LIn the past, the courts of these states have strictly adhered to the letter
of their judicial statutes and, at least with regard to the law of sister states,
have required no pleading or notice whatsoever. See note 27 supra and accompanying
text. It might be argued that since neither of these states has ever had occasion
to determine foreign country law and their courts have not specifically dispensed
with some form of pleading and proof in such a situation, some form of notice
might come into play through court-made requirements of "Sufficient evidence" or
pleading and proof similar to those developed by the Massachusetts courts. See note
22 supra and accompanying text.
 DUKE LAW JOURNAL [Vol. 1966: 512

provided for by statute, and litigants should not have to rely on a

court's broad interpretation of a general judicial notice statute.
Thus, several state statutes contain the express requirement that
"reasonable notice" be given.55
Two of the three uniform acts also have sections specifically
applicable to the notice problem. 5 Rule 9 of the Uniform Rules of
Evidence does not provide for notice to the parties when the court
takes, as it is required to do, judicial notice of sister-state law. 7 As
to foreign country law, however, judicial notice may not be taken
until three conditions have been met," one of which is notice to
the adverse party. Rule 12, moreover, provides that in a subsequent
proceeding a judge taking judicial notice of "matter not thereto-
fore so noticed in the action shall afford the parties reasonable op-
portunity to present information relevant to the propriety of
taking such judicial notice . . ...9 Section 4.01 of the Uniform
Interstate and International Procedure Act requires a party "who
intends to raise an issue concerning the law of any jurisdiction
...outside this state . .. [to] give notice in his pleadings or other
reasonable notice."60 Section 4.02, however, allows the court to
55 E.g., CAL. CIV. PROC. CODE § 1875 (4) (Supp. 1965), to be replaced by CAL.
EVIDENCE CODE §§ 310-11, 450-60 (effective Jan. 1, 1967); MD. ANN. CODE art. 35,
§ 50 (1957). The New York statute specifically provides that "notice shall be given in
the pleadings or prior to the presentation of any evidence at the trial, but a court
may require or permit other notice." N.Y.R. Civ. PRAC. 4511 (b). However, rule
4511 (b) also allows the trial court, at its discretion, to take judicial notice of the
foreign country law even if not so requested. It is questionable whether any notice
to the parties will be requisite in this latter situation. Another New York statute,
N.Y.R. Cav. PRAc. 3016(e), requires notice for the adverse party from a litigant
relying on foreign law but does not refer specifically to the judicial notice situation.
See McLaughlin, Supplementary Practice Commentary to Rule 4511(b), in N.Y.R.
Civ. PRAc. 4511 (b), at 41-42 (Supp. 1965).
It might be argued that its proviso that "a court may require or permit other
notice" requires the court to give notice to the parties before the court takes judicial
notice. It is to be noted that this sentence proviso is not included in UNIFORM RULE
OF EVIDENCE 9, from which the New York law was drawn. Cf. Legislative Studies &
Reports in N.Y.R. Civ. PAc. 4511 (b), at 369-70, indicating that notice is not required
when judicial notice is taken.
56 Since the UNIFORM JUDICIAL NOTICE OF FOREIGN LAW ACr § 5 does not apply to
foreign country law, it is not directly applicable in this situation. In states which
have adopted only this act, the common law requirement of pleading and proof of
foreign country law applies and notice is effectuated through the pleadings. Western
Assur. Co. v. Bevacqua, 209 N.E.2d 249 (Ohio C.P. 1964); accord, Witt v. Realist, Inc.,
18 Wis.2d 282, 118 N.W.2d 85 (1962).
" UNIFORM RULE OF EVIDENCE 9.
58See note 46 supra and accompanying text.
1,UNIFORM RULE OF EVIDENCE 12 (4). See note 15 supra.
00 UNIFORM INTERSTATE AND INTERNATIONAL PROCEDURE ACT § 4.01.
Vol. 1966: 512] INTERNATIONAL LITIGATION

consider material on its own, and there is no provision which insures

that the parties will receive notice in such a situation. 61
A problem that arises in conjunction with the notice require-
ment is whether a court, once its attention and that of the adverse
party has been drawn to the law of another country, may judicially
notice recent foreign statutes or cases which are unknown to the
parties. 62 Certainly the court should be able to do so. Once the
party is put on notice that the law of a foreign state will be decisive
or germane, it is his duty to research that law just as he would in a
domestic case. Assuming that judicial notice is to be taken,6 3 there
can be no argument as to the remoteness of the law or decisions un-
der it. The law of a foreign country is a composite of various
sources; certainly that law cannot be judicially noticed unless the
forum court is allowed to approach the substantive foreign law in
the same thoroughgoing manner as it would the law of the forum.
A corollary to this is that once notice is provided, courts should
not be restricted as to the particular sources to which they may look
when taking judicial notice of foreign law. Various states have
recognized this question and have made specific reference to foreign
law sources which the courts might consider. New York allows the
court to "consider any testimony, document, information or argu-
ment on the subject." 64 The Virginia statute permits the court
to "consult any book of recognized authority purporting to contain,
state or explain ... [foreign law], and may consider any testimony,
information or argument that is offered on the subject." 65 The latter
statute appears to place no limit whatsoever upon the sources avail-
able to the court.66 Other state statutes make no reference whatso-
ever to sources to be used by the court in its determination of the
foreign law; they neither refer to specific sources nor give the court a
" With regard to this situation, the Commissioner'sNote to § 4.02 states: "The fear
that a court might surprise the litigants with a decision based on its own research
seems more apparent than real. Should the court come upon material that diverges
substantially from that presented by the parties, it should, at least in the normal case,
inform them of the fruits of its research. However, an inflexible notice requirement
seems undesirable." 91 UNiORm LAws ANN. 100 (Supp. 1965).
6 Cf. note 15 supra.
o' See note 17 supra.
0
-N.Y.R. CQv. PRAc. 4511 (Supp. 1965). A similar approach is taken in CAL. Civ.
PRoc. CODE § 1875 (Supp. 1965), to be replaced by CAL. EVIDENCE CODE § 454 (effective
Jan. 1, 1967).
ZVA. CODE ANN. § 8-273 (1957).
0 Cf. In re Reid, 198 F. Supp. 689 (W.D. Va. 1961), in which the court asserted
that "the statute law of Virginia in effect requires its courts to take judicial notice
of all of the decisions of all of the courts everywhere." Id. at 695 (dictum).
 DUKE LAW JOURNAL [Vol. 1966: 512

wide range in this field. 67 This has not, however, inhibited the
Massachusetts courts, for example, from reaching some rather in-
teresting and salutary results. In Universal Adjustment Corp. v.
Midland Bank Ltd.,68 the court took judicial notice of a Russian
court decision of 1883,;9 a Russian-United States treaty of 1909,70
and the Russian Government's comment on that treaty.71 Other
Massachusetts decisions indicate that the court has not viewed the
absence of specific sources as a limitation on its capacity to ascertain
the appropriate law. Massachusetts courts have gone so far as to
use inaccessible government information 72 and recent foreign de-
cisions unknown to the litigant. 73 The liberality of these decisions
and the applicable provisions of recent uniform acts74 accord with
the necessity for a broad source of law.
3.Foreign Law as Question for the Court
Due to the undesirable results obtained if foreign law is viewed
as a "fact,"' 75 the tenor of foreign law should quite definitely be a
question of law for the court rather than a question of fact to be
decided by the jury. This reform has, fortunately, found wide ac-
ceptance,76 although certain jurisdictions still adhere to the common
77
law treatment of foreign law questions.
67See statutes cited notes 21, 23-24 supra.
68
6 9 281 Mass. 303, 184 N.E. 152 (1933).
Id. at 327, 184 N.E. at 164.
70
Id. at 323, 184 N.E. at 162.
"I d. at 327, 184 N.E. at 164. Such a result would seem quite desirable. Once it is
determined that the foreign law is to provide the rule of decision, it is necessary to
ascertain as fully as possible the tenets of the foreign law. Any sources which elucidate
that law would appear to be relevant and thus within the scope of judicial notice.
Cf. text accompanying notes 62-63 supra.
1In Petition of Mazurowski, 331 Mass. 33, 116 N.E.2d 854 (1954), the probate
judge received information from the State Department relevant to questions of foreign
law concerning administrative procedure and regulation which were in the possession
of high-ranking government executives but which was not directly available to the
litigants.
73In Pilgrim v. MacGibbon, 313 Mass. 290, 47 N.E.2d 299 (1943), the court's at-
tention had been drawn generally to the law of Nova Scotia, and it judicially noticed
a new decision of the highest court of Nova Scotia. See also Ex parte Spears, 88 Cal.
640, 643, 26 Pac. 608, 609 (1891), where the court considered an entire volume of
foreign law despite the fact that only one section of it had been pleaded.
7" UNIFORM INTERSTATE AND INTERNATIONAL PROCEDURE ACT § 4.02; UNIFORIMx JU-
DICIAL NOTICE OF FOREIGN LAW § 2; UNIFORM RUL. OF EVIDENcE 10.
7r See notes 5-7 supra and accompanying text.
'1 All three Uniform laws contain provisions making foreign country law a question
for the court. UNIFORM INTERSTATE AND INTERNATIONAL PROCEDURE ACT § 4.03;
UNIFORM JUDICIAL NOTICE OF FOREIGN LAW Acr § 5; UNIFORM RULE OF EVIDENCE 10 (4).
77Sommerich and Busch state that common law as to judicial notice prevails in
Vol. 1966: 512] INTERNATIONAL LITIGATION

CONCLUSION
As noted previously, several provisions would seem to be
requisite in an effective foreign law statute. Briefly, these include a
means by which an action in the local court may be based on foreign
law; notice to the adverse parties; making foreign law a question
of law; making a foreign law determination reviewable on appeal;
and providing a method for the local court to dispose of the case
if the foreign law cannot be ascertained. From a review of the fore-
going case law, it may be seen that the various judicial notice statutes
have not provided any unique methods of facilitating the first of
these requisites, and the courts have been forced to resort to the
traditional requirements of pleading and proof.78 Statutes which
attempt to codify strict rules for situations which are subject to
Alabama, Colorado, Idaho, Nevada, New Hampshire, New Mexico and Utah. Soms-
MERICH 8 BUSCH, FOREIGN LAw: A GUIDE TO PLEADING AND PROOF 149-51 (1959).
The Alabama statute states: "The existence and tenor or effect of the laws of any
foreign country may be proved as facts by parol evidence .... " ALA. CODE tit. 7, §
425 (1960). It would seem that foreign country law will be a question of fact.
Whether a question for the court or jury is not specifically stated. However, it has
been held that the lower court's finding as to foreign law is reviewable on appeal.
Smith v. Blevin, 221 Ala. 24, 127 So. 155 (1929). This might indicate that the foreign
law is either a reviewable question of fact or a question of law.
The Idaho provisions indicate that foreign statutory and common law must be
proven as facts by evidence of expert witnesses, or certified copies of the foreign law.
IDAHO CODE ANN. §§ 9-804, 9-807" to -808 (1948). There seems also to be no specific
provision indicating whether it is a question of fact for the court or jury. In Newell
v. Newell, 77 Idaho 855, 298 P.2d 663 (1956), involving sister-state law, the court
held that foreign law must be pleaded and proved. However, it did not state whether
this was a question for the jury or the court. It might be argued that in the absence
of a specific provision making it a question for the court, general common law prin-
cipals would prevail and the foreign law would be a question for the fact-finder,
whether he be judge or jury.
The Utah rule is somewhat more explicit. UTAH R. Crv. P. 44(f) (1958). It
states that a printed copy of a foreign statute purporting to have been printed by the
foreign country is "presumptive evidence of the statute . . . . The unwritten . . . law
* . . of a foreign country, may be proved as a fact by oral evidence. The books of
reports of cases adjudged in the courts thereof must also be admitted as presumptive
evidence of the unwritten or common law thereof." UTAH R. Civ. P. 44( (1958).
The rule also provides that the court will determine the foreign law and this
finding will be subject to appellate review. The trial and appellate courts are not
limited in the sources to which they may look in order to ascertain the tenor of the
foreign law. UTAH R. Civ. P. 44(f) (1958). It should be noted that such a statute
seems to speak in mixed terms. That is, the language of the statute indicates foreign
law will be proved as a fact at the lower level; yet it will be reviewable on appeal.
It thus becomes difficult to discern whether the foreign law is being treated as
"fact" or "law."
" See notes 21-50 supra and accompanying text.
One commentator has quite correctly stated that "the asserted advantages of judicial
notice over the traditional methods of proof are largely illusory." Stern, Foreign
Law in the Courts: Judicial Notice and Proof, 45 CALIF. L. Rav. 28, 48 (1957).
 DUKE LAW JOURNAL [Vol. 1966: 512

significant, unpredictable variables 7 have been made flexible by

the courts,80 thus arriving at a result identical with the situation
prior to the enactment of the statutes. Because of the necessity of
allowing for these variables, only a pragmatic approach can be ef-
fective in the area of judicial notice of foreign country law. 8 '
Certainly the basic requirement of notice to the adverse party is
fulfilled by traditional methods of pleading and proof and there is
no need for a specific judicial notice statute to achieve this result.
The traditional requirements of proof, enforced by flexible and
non-technical rules of evidence which facilitate the employment
of expert witnesses, would dearly result in use for decisional pur-
poses of effectively ascertainable foreign law. This is simply a
realistic approach-what cannot be "proven" under the liberal rules
of evidence suggested cannot be realistically ascertained.
However, certain specific limitations should be engrafted upon
the traditional methods of proof. The tenor of the foreign law
should definitely be a question of law for the court, and it should
thus be reviewable on appeal.8 2 Further, in order to effectuate a prag-
matic approach to proving foreign law, it is necessary that a court
be allowed to use whatever sources of the foreign law it has at its
disposal in addition to the usual methods of proof.
Finally, if the court does not receive adequate information con-
cerning the foreign law and cannot therefore base its decision on
that law, some method of disposing of the case should be formulated
by the legislature. Absent statutory guidelines, several tacks ap-
pear to be open to a court faced with this problem. A court of
the foreign jurisdiction whose law is apposite might be requested
by letter to supply the law or to render an advisory opinion on the
question. The law of the forum might be applied by employing
the venerable but often problematic common law presumption that
the forum and foreign laws are the same. A third alternative may be
dismissal of the action, either on forum non conveniens grounds
or on the ground that the party asserting the foreign law has failed
to fulfill his burden of proof.8 3 Specific legislative directives in this
79 See note 17 supra and accompanying text.
80 See notes 15, 22, 68-73 supra and accompanying text.
81 The Uniform Interstate and International Procedure Act comes very close to
achieving this end. See notes 48-50 supra and accompanying text.
"See notes 15, 75-77 supra and accompanying text.
83 See note 16 supra.
The only provision which would seem to be lacking in the Uniform Interstate and
Vol. 1966: 512] INTERNATIONAL LITIGATION

area would be preferable, however, in order to provide a certain

and efficacious disposition in such situations.
II
DEPOSITION PRACTICE
Another major area in which there has been considerable in-
terest is state procedures for obtaining testimonial evidence abroad. 4
Almost all states have some type of statute or rule of court which
provides for the taking of depositions in foreign jurisdictions.8 5
Two basic deposition procedures have developed.8 6 One is the rather
International Procedure Act is one allowing the court to dispose of the case by
dismissal or by application of the law of the forum in situations where it is impossible
to determine the foreign law. CAL. Cv. PRoc. CODE § 1875 (Supp. 1965), to be replaced
by CAL. EVIDENCE CODE § 311 (effective Jan. 1, 1967), contains such a provision.
UNIFORm RULE OF EVIDENCE 10(3) also contemplates the situation where the court
cannot determine the foreign law.
It might be argued that the adoption of certain choice-of-law methodologies
would cover this situation. Under Professor Currie's governmental interest theory,
for example, unascertainable law could never form the basis for a decision since it
would be supplied in a choice-of-law situation only if the law [ex hypothesi unas-
certainable], by its terms and policies, evinces a legitimate governmental interest on
the part of the foreign jurisdiction. See CURRI, SELEamn ESSAYS ON TE CONFLICT
OF LAws 35-40 (1963).
'See generally DYER & SirnTH, FEDERAL EXAMINATIONS BEFORE TRIAL AND DEPosI-
TONS PRACTICE (1939); EBB, INTERNATIONAL BUSINESS 313 (1964); 8 WIGMORE, EVIDENCE
§§ 2195a-e (McNaughton rev. 1961); H. Jones, InternationalJudicial Assistance: Pro-
cedural Chaos and a Program for Reform, 62 YALE L.J. 515 (1953); Miller, Interna-
tional Cooperation in Litigation Between the United States and Switzerland: Unilateral
ProceduralAccommodation in a Test Tube, 49 MINN. L. REV. 1069 (1964); Note, 96
U. PA. L. REV. 241 (1947).
85 E.g., CAL. CIV. PROC. CODE §§ 2018(b), 2019, 2024 (Supp. 1965); COLO. REV.
STAT. ANN. R. Cxv. P. 28 (1963); CH. Or. R. 28 (b); D.C. CODE ANN. § 14-201 (1961);
ILL. REV. STAT. ch. 110, § 101.19-2 (1965); LA. REv. STAT. §§ 3771, 3773, 3776 (1950);
MASS. ANN. LAws ch. 222, § 4, ch. 233, §§ 41, 43, 52, 56 (1956); MICH. STAT. ANN.
GEN. CT. R. 304.2 (1964); Miss. CODE ANN. §§ 1703-04, 3980 (1957); N.Y. CIV. PRAC.
LAw §§ 3108, 3113 (a)(3), 3114; N.C. GEN. STAT. § 8-71 (Supp. 1965); N.C. Gen. Stat.
§ 8-83 (2) (1953); OHIo REV. CODE ANN. § 2319.12, .14 (Page 1954); Okla. Laws
1965, ch. 144, at 168; TENN. CODE ANN. §§ 24-902 (2), 24-916, 64-2306 (1955); UTAH
R. Civ. P. 28 (b); VA. CODE ANN. § 8-305 (Supp. 1964); W. VA. CODE ANN. §§ 5734-35
(1961); Wis. STAT. §§ 326.09 (2), 326.28 (1963).
For a complete listing of the various state statutes relevant to depositions taken
out-of-state, see 8 WIGMORE, EVIDENCE § 2195b, at 99 n.28 (McNaughton rev. 1961).
See also FED. R. Civ. P. 28 (b); Kaplan, Amendments of the Federal Rules of Civil
Procedure, 1961-1963 (IT), 77 HARv. L. REv. 801, 811-14 (1964).
80 Some writers have enumerated different classifications for the various means of
obtaining depositions abroad. Generally these classifications have included letters
rogatory, deposition by commission, deposition by "notice" to the adverse party
and the deposition by stipulation. See DYER & SMrrH, op. cit. supra note 84, §§ 585-607;
H. Jones, supra note 84, at 519.
These procedures have been sometimes intermingled, and clear dividing lines may
not always be discernible. For example in DYER &--SmTH, op. cit. supra note 84,
§§ 585-96, depositions by stipulation are discussed under the heading Depositions
 DUKE LAW JOURNAL [Vol. 1966: 512

familiar method of sending a letter rogatory to the foreign court.

This is a device by which the local court requests the coercive
assistance of the foreign court having jurisdiction over the desired
deponent.sr The second method is a deposition by a locally ap-
pointed commission. Under this procedure, the local court desig-
nates an individual or other tribunal as the "commissioner" before
whom the deposition is to be taken.88
The haphazard development of state deposition statutes is per-
haps due to the recent development of extensive uniform laws
dealing with this area.8 9 A review of the problems with which state
enactments have attempted to deal may, however, reveal certain
requirements which should be incorporated into statutes providing
for the taking of depositions in a foreign jurisdiction.

A. COMMISSIONS

1. Compliance with Foreign Court Requirements

Since the ultimate success of a deposition abroad depends to a
large degree on whether or not the foreign court will allow a locally
Abroad on Notice, and under the subheading of Depositions by stipulation, id. § 589,
a case involving commissions is discussed.
It is, however, questionable whether all four of these methods are of equal
value with regard to depositions taken in foreign countries. Although they are gen-
erally authorized methods, depositions on notice and by stipulation would not seem
to be as significant when the deposition is sought within a foreign jurisdiction. It is
possible that this is due to a feeling on the part of attorneys that a deposition in a
foreign country is a more formal matter than envisaged by these two procedures, and
they thus seek a local court-initiated procedure such as letters rogatory or a com-
mission for their dealings in a foreign country. It may, in part, also be due to the
hostile view which civil law countries take of any foreign persons or officials taking
depositions within their borders. See note 89 infra. In any case, it seems that the
great bulk of relevant cases in this area has been concerned with depositions taken
by means of commissions or letters rogatory. It is for this reason that the comment
speaks, in the main, of letters rogatory and commissions.
Of course, if the foreign country allows foreign individuals to enter for purposes
of a deposition and there is a voluntary deponent, stipulation or notice may prove
quite satisfactory. Cf. note 109 infra.
87 See generally DYER - Shirmf, op. cit. supra note 84, §§ 602-07; Symposiums, Lmrrms
ROGATORY (Grossman ed. 1956); 8 WIGMORE, EVIDENCE § 2195a (McNaughton rev.
1961).
88 For statutory examples of the second deposition procedure see, e.g., CAL. CIV.
PROC. CoDE § 2018 (b) (Supp. 1965); COLO. R. Civ. P. 28. See generally DYER & SMITH,
op. cit. supra note 84, §§ 597-601.
80 The Uniform Foreign Depositions Act does not concern itself with the taking
of depositions abroad for use in the local court. It directs its attention only toward
the foreign court or litigant seeking a deposition in the local jurisdiction. See notes
113-14 infra. However, the UNxFORM INTERSTATE ANn INTERNATIONAL PROCEDURE ACT
§ 3.01, does deal with the situation under consideration.
Vol. 1966: 512][ INTERNATIONAL LITIGATION
appointed commissioner to take a deposition within its borders, 90
it is of utmost importance that the local statute contain provisions
which will require the litigant to alert himself to certain foreign
procedures.91 Concomitantly, the local statute must also facilitate
compliance with such procedures.
Recognizing this need for compliance with foreign requirements,
a few state statutes specifically admonish the local litigant to look
to the relevant foreign law. For example, under the Colorado
statute both parties will be forced to examine the foreign law prior
to the deposition-the party seeking the deposition because he is
required to do so by the statute, and the adverse party in order to
reserve any objections to the procedure employed. 92 Louisiana
00 Certain countries, such as Switzerland, will not allow a foreign official to conduct
a deposition proceeding within their borders. See 8 WIGMORE, EVIDENCE § 2195a, at
91 n.1 (McNaughton rev. 1961). "This attitude is based on the view that because a
witness ordinarily is interrogated by a governmental official in Switzerland, it is an
act of 'authority' under article 271 of the Penal Code and cannot be undertaken by a
private person or an official of another country whenever the litigation is pending
before a court outside Switzerland." Miller, supra note 84, at 1087.
01
It may be efficacious to enact a provision in the local statute which would
require the local litigant and attorney to become cognizant of various foreign
requirements before a commission will be appointed. H. Jones, supra note 84, at 519.
Ignorance of the fact that foreign country procedures may have to be met in this
area could well have dire consequences for the attorneys and commissioners while
in the foreign country. See id. at 520-21. Various of these practical problems con-
fronting the local attorney are discussed in Doyle, Taking Evidence by Deposition and
Letters Rogatory and Obtaining Documents in Foreign Territory, 1959 A.B.A. SEc.
INT'L & ComP. L.-PROCEINGS 37. A collection of the various deposition procedures
required in the major countries of the world is contained in DYER & SMITH, op. cit.
supra note 84, §§ 1010-1355. An interesting question arises where the deposition
has been successfully taken and returned. If such deposition was taken under a
procedure violative of the foreign law, but not the local law, may the party against
whom the deposition is being introduced object to its introduction as evidence?
It might be argued that to admit such a deposition would undermine the comity
between the nations involved since it would give local validity to the violation of a
foreign law by the local individual. Further, where the privileges of the foreign
deponent are involved, there may be much stronger policy reasons for enforcing the
laiv of the place where the deposition is taken. Application of a choice of law rule
such as governmental interest analysis might well result in effect being given to the
policy considerations of the place where the deposition is to be taken. See, e.g.,
Palmer v. Fisher, 228 F.2d 603 (7th Cir. 1955), cert. denied, 351 U.S. 965 (1956); Ex
parte Sparrow, 14 F.R.D. 351 (N.D. Ala. 1953).
For a discussion of the various problems involved in a situation where the foreign
country's procedures with regard to privileges differs from those of the court where
the deposition is to be used, see Miller, supra note 84, at 1092-93.
" The Colorado statute, CoLo. R. Civ. P. 28 (d), states: "Upon proof that notice
to take a deposition outside the state of Colorado has been given .... the clerk shall
issue a commission . . . in the form prescribed by the state in which the deposition
is to be taken, such form to be presented by the party seeking the deposition. Any
error in the form or in the Commission . . . is waived unless objection thereto is
filed before time fixed in the notice." It would seem that the practical result of
 DUKE LAW JOURNAL [Vol. 1966: 512

specifically requires that the compulsory process for all depositions

taken abroad "be governed by the laws of the state 98 where the testi-
mony is to be taken."'9 4 It is interesting to note that such a statute
not only admonishes the litigant to ascertain foreign procedural
rules, but it requires, as a matter of local Louisiana law, that the
foreign procedure be adhered to.9 5
Various countries will differ as to which individuals they will
allow to take depositions within their borders. State statutes
have, with varying degrees of flexibility, addressed themselves to this
such a statute would be a deposition request which would be consistent with the
foreign procedure.
It seems questionable whether the phrase "state in which the deposition is to be
taken," may be construed to include "foreign country." Rule 28 (b) (2) indicates that
a deposition in a foreign country may be taken "before such person or officer as
may be appointed by commission or under letters rogatory." COLo. R. Civ. P. 28 (b) (2).
It may be argued that rule 28 (b) (2) is merely modified by rule 28 (d) and that thus
the "commission" contemplated in rule 28(b) (2) must be "in the form prescribed
by the state in which the deposition is to be taken." COLO. R. CIv. P. 28 (d).
It is, however, also possible that the legislature felt that too great a burden would
be placed upon the parties if they were forced to ascertain the foreign country
procedure, and rule 28 (d) may therefore be intended to apply only to depositions
to be taken with the United States.
93It is not clear whether the local litigant is, under the language of the statute,
required to follow the procedures of a foreign country. Cf. note 92 supra.
9
1 LA. REv. STAT. § 3773 (1950). The result of this provision is to require litigants
in the local courts to ascertain and follow the procedural laws of another jurisdiction.
An interesting situation would arise if, for some reason, a litigant in a Louisiana
court were to obtain a deposition in a foreign country by following procedures
which were in violation of the foreign laws but which met the deposition require-
ments of Louisiana. If the Louisiana court were to follow the letter of its statute,
it would seem that such a deposition should be excluded and any objection to its
admission sustained. Cf. note 91 supra.
95In conjunction with a statutory provision requiring litigants to uncover the
deposition requirements of foreign law, it could be extremely valuable if the local
courts were cognizant of these requirements and could thus deny a request which
failed to comply with the foreign law. The New York courts have been exceptionally
attentive to divergences in foreign procedures. In United States Neckware Corp. v.
Sinaco Co., 176 Misc. 51, 26 N.Y.S.2d 546 (Sup. Ct. 1941), the court, recognizing that
the Swiss courts would not allow the usual commission within its borders, denied a
motion for a commission to issue to the United States consular agent in Switzerland.
Letters rogatory were designated as the correct procedure under the circumstances,
Id. at 52, 26 N.Y.S.2d at 546. In In re Robbins' Will, 105 N.Y.S.2d 290 (Surm. Ct.
1950), a New York court refused to issue a commission to take the deposition of a
physician in France. One ground for this refusal mentioned by the court was the fact
that under French law, a doctor could not be compelled to testify concerning his
patients. The court also noted the fact that French law did not provide a procedure
by which witnesses could be compelled to give testimony for use in a case pending
outside of France. Id. at 292.
It is submitted that such awareness of foreign procedure on the part of the local
court may quite often save the litigants much time, expense, and embarrassment. It
will certainly help direct the litigant toward the procedure which is acceptable in the
foreign jurisdiction.
Vol. 1966: 512] INTERNATIONAL LITIGATION
problem. 96 Some of these statutes, at least on their faces, appear to
be limited in scope. They authorize depositions to be taken in a
foreign country by a "commissioner" in that country, 97 before a
mayor or official of the foreign city98 or before a "notary" of the
foreign country. 99 Although all of these statutes do represent an
attempt at flexibility, they nevertheless erect certain limitations
which may be unnecessary. To facilitate the deposition process, it
would appear desirable to defer completely to the foreign country
and allow a deposition to be taken by an individual specifically
charged by the foreign court or law with such a function. The
statutes of Illinois, 10 0 Mississippi1 0 1 and Massachusetts 10 2 seem to have
embodied such a provision by permitting the deposition to be taken
by a "competent person" in the foreign country'08 or by a person
authorized to administer oaths under the law of that jurisdiction.'0 4
Should the individual who administered the deposition be unaccept-
able to the local court, it could refuse to admit the testimony when
the deposition is returned. 10 5 The ad hoc approach would allow the
court to weigh and consider as an evidentiary matter the various
circumstances relevant to admissibility in each individual case. 0 6
g0 See also FED. IL Cav. P. 28 (b), which states: "In a foreign country, depositions
may be taken (1) on notice before a person authorized to administer oaths in the
place in which the examination is held, either by the law thereof or by the law of
the United States, or (2) before a person commissioned by the court, and a person
so commissioned shall have the power by virtue of his commission to administer
any necessary oath and take testimony, or (3) pursuant to a letter rogatory."
o7This seems to be a common type of provision which is usually included in most
statutes. See, e.g., CAL. Civ. PROC. CODE § 2018 (b) (Supp. 1965); DEL. CH. CT. R.
28 (b).
'5 E.g., Miss. CODE ANN. § 1704 (1957); VA. CODE ANN. § 8-305 (Supp. 1964);
W. VA. CODE ANN. § 5735 (1961). Although a reference to foreign city officials as
competent to take a deposition may in some instances allow the United States liti-
gants to comply with the foreign law, it must be remembered that merely because a
United States jurisdiction allows a foreign official to take the deposition does not
ipso facto guarantee that the procedure of the foreign country involved even con-
templates or allows its city officials to perform such tasks.
09E.g., N.C. GEN. STAT. § 8-71 (Supp. 1965); VA. CODE ANN. § 8-305 (Supp. 1964).
100 ILL. RIv. STAT. ch. 110, § 101.19-2 (2) (1965). This section is based on FE. R.
Civ. P. 28.
101 MIsS. CODE ANN. § 1704 (1957).
102 MAss. ANN. LAws ch. 233, § 41 (1956).
103 Ibid.
101ILL. REv. STAT. ch. 110, § 101.19-2 (2) (1965); Mms. CODE ANN. § 1704 (1957).
1o0 See notes 129-34 infra and accompanying text.
10
8A flexible approach to admissibility will enable a court to consider the need
for the particular testimony, the reliability of the person who administered it and
the cost in time and expenses to the litigants and court. The trial court should be
given broad discretion to weigh probative value against these countervailing factors.
See McContaCK, EVIDENCE § 152 (1954) for a similar approach regarding relevancy.
 DUKE LAW JOURNAL [Vol. 1966: 512

The Uniform Interstate and International Procedure Act's

provisions combine several methods embodied in the various state
statutes discussed above. Section 3.01 (a) lists a broad variety of
persons before whom a deposition may be taken and thus affords a
wide variety of possibilities,0 7 all with the purpose of allowing the
local litigant to comply with various foreign country requirements.
The breadth of the act on this matter is designed to insure that at
least one enumerated category of competent commissioners will be
acceptable to any given country. 08
A provision allowing the parties to stipulate to the acceptability
of an individual before whom the deposition is to be taken is also a
means by which a specific foreign country requirement may be com-
plied with. 10 9 Thus, the parties could examine the foreign law,
determine an acceptable individual according to such law, and
107 This section states that depositions may be taken before persons authorized to

do so in the place where the deposition is to be taken; before persons authorized

under the laws of the United States; before persons commisioned by the local court or
by the foreign court pursuant to a letter rogatory; or before a person to which
the parties have stipulated. UNIFORM INTERSTATE AND INTERNATIONAL PROCEDURE Aar
§ 3.01 (a).
108 See Commissioners' Note, 9B UNIFORM LAws ANN. 94 (Supp. 1965). "The need
to accommodate the public policy of many foreign countries makes it desirable to
permit as large a group of persons as possible to take examinations." Ibid. The
note then points out that the party should carefully scrutinize the law and require-
ments of the foreign country in regard to commissions since "compulsory process to
assist a commissioner is frequently not available in civil law countries. In some
instances, the appointment of a judicial officer in the country of examination may
obviate any reluctance to permit the execution of the commission or provide com-
pulsory process." Id. at 95.
Arkansas omits the section of the uniform act pertaining to depositions. However,
ARK. STAT. ANN. § 27-2503 (d) (Supp. 1965), is an adoption of UNIFORM INTERsTATE
AND INTERNATIONAL PROCEDURE AcT § 2.04, which pertains to assistance to tribunals
outside the state and the serving of documents for foreign litigants and courts.
UNIFORM INTERSTATE AND INTERNATIONAL PROCEDURE Aar § 2.04 has also been in-
corporated into 28 U.S.C. § 1782 (1964). Oklahoma has adopted the entire act, Okla.
Laws 1965, ch. 144, at 168. The Virgin Islands has, with few exceptions, adopted the
entire uniform act. V.I. CODE tit. 5, §§ 4901-05, 4911-14, 4921-22, 4926-28, 4931-34,
4941-43 (Supp. 1965).
1o CAL. CIV. PROC. CODE § 2018 (b) (Supp. 1965), states that anyone agreed to by
the parties may be a competent person before whom a deposition may be taken.
It should be noted, however, that it may be dangerous to stipulate to the ac-
ceptability of a commissioner who is not competent under the foreign law to take the
deposition. See Dorman, California's Statutory Contributions in the Field of Inter-
national Judicial Assistance, 39 L.A. BAR BuLL. 7, 31 (1963). Statutes such as Lou.
isiana's would ostensibly bar the admissibility of a deposition taken with this infirmity.
See notes 93-95 supra and accompanying text.
It may be re-emphasized that deposition by stipulation has often been considered
a separate procedure for the taking of depositions. See note 86 supra. However for
purposes of this comment, it is viewed as a laudatory provision in a local statute which
might afford the litigant an opportunity to comply with foreign requirements.
Vol. 1966: 512] INTERNATIONAL LITIGATION

stipulate that he be allowed to take the deposition. Several states

have provided for such a stipulation procedure,110 although a spe-
cific statute would not seem to be necessary in view of the wide dis-
cretion given the court under modem pretrial discovery proce-
dure."' It would seem that such a rule might be greatly limited
by the fact that an adverse party cannot be expected to be overly
helpful in obtaining testimony harmful to himself.1 12 However, if
the testimony sought is not known to be vitally detrimental to the
adverse party's case and the bar is an ethical one, this objection may
be more apparent than real.

2. Compulsory Process
An extremely interesting problem is presented by the need to
obtain compulsory process within a foreign jurisdiction,1 1 3 in order
to effectuate depositions taken abroad.11 4 State courts generally agree
120 E.g., CAL. CIV. PROC. CODE § 2018 (b) (Supp. 1965); MICH. GEN. CT. R. 304.2 (3);
VA. CODE ANN. § 8-305 (Supp. 1964). The Michigan rule states that depositions in a
foreign country may be taken "before any person upon whom the parties agree by
stipulation in writing or on the record." MICH. GEN. Or. R. 304.2(3).
The Virginia provision states that "if the deposition is to be taken in a foreign
country .... [it may be taken] before any person that the parties may agree upon in
writing . VA. CODE ANN. § 8-305 (Supp. 1964).
V..."
See also FED. R. Civ. P. 29: "If the parties so stipulate in writing, depositions may
be taken before any person, at any time or place, upon any notice, and in any
manner and when so taken may be used like other depositions."
2"L WRIGHT, FEDERAL COURTS § 81, at 309 (1963).
112Since the limitations on this type of procedure are obvious, these same statutes
also provide for the appointment by the court of a commissioner to take depositions.
CAL. CIV. PROC. CODE § 2018 (b) (Supp. 1965); MICH. GEN. CT. R. 304.2(2); VA. CODE
ANN. § 8-305 (Supp. 1964).
I"' Under letters rogatory, of course, the coercive power of the foreign court is used.
It would seem that under rare conditions, the compulsory process of the foreign court
might be invoked under a commission also. See DYER & SMITH, op. cit. supra note 84,
§ 598; notes 87 supra and 140 infra and accompanying text.
The Uniform Interstate and International Procedure Act does not mention any
specific means by which the local court might use its coercive power to obtain a
deposition abroad, although it does authorize the issuance of letters rogatory under
which the process of the foreign court may be utilized. UNIFORM INTERSTATE AND
INTERNATIONAL PROCEDURE ACT § 3.01 (a) (3).
Section 3.02 of the Uniform Interstate and International Procedure Act and
§ 1 of the Uniform Foreign Depositions Act do concern themselves with local
coercive assistance to foreign courts. See notes 89 supra and 114 infra.
114 Although the main body of this comment only concerns itself with the taking
of depositions abroad for use within the United States, the local taking of depositions
for use abroad also presents an interesting area of study.
The Uniform Interstate and International Procedure Act contains a provision
dealing with assistance to be rendered to litigants and courts outside the state. A
court of the state "may order a person who is domiciled or is found within this state
to give his testimony . . . for use in a proceeding in a tribunal outside this state.
The order may be made upon the application of any interested person or in re-
 DUKE LAW JOURNAL [Vol. 1966: 512

that their coercive power is limited to their own territory. 11 Cer-

tain diverse procedures, however, have been instituted by various
sponse to a letter rogatory and may prescribe the practice and procedure, which may
be wholly or in part the practice and procedure of the tribunal outside this
state, for taking the testimony . . . . To the extent that the order does not prescribe
otherwise, the practice and procedure shall be in accordance with that of the court
of this [sic] state issuing the order." UNIFORM INTERSTATE AND INTERNATIONAL PRO-
CEDuRE AcT § 3.02 (a).
The Uniform Foreign Depositions Act which has been rather widely adopted, pro.
vides that "whenever any mandate, writ or commission is issued out of any court of
record in any other state, territory, district or foreign jurisdiction, or whenever
upon notice or agreement it is required to take the testimony of a witness or wit-
nesses in this state, witnesses may be compelled to appear and testify in the same man-
ner and by the same process and proceeding as may be employed for the purpose
of taking testimony in proceedings pending in this state." UNIFORM FOREIGN Dmoss-
TIONs Aar § 1. For a complete listing of all states having adopted the act, see 9B
UNIFORM LAws ANN. 27 (Supp. 1965). Other states have developed their own
generic statutes which treat the problem in much the same manner. See, e.g.,
ILL. REv. STAT. ch. 110, § 101.19-8(2) (1965); MASS. ANN. LAws ch. 233, § 45
(1956); Miss. CODE ANN. § 1885 (1957); N.Y. Civ. PRAc. LAWv § 3102(e); N.C.
GEN. STAT. § 8-84 (1953); OHIO REv. CODE ANN. §§ 2319.08, .11 (Page 1954); TEx.
REv. Civ. STAT. ANN. art. 3769(a) (Supp. 1965); UTAH R. Civ. P. 26(g); Wis.
STAT. § 326.24 (1963). The United States, in contrast with many civil law coun-
tries, see note 90 supra, maintains a rather liberal attitude toward foreign re-
quests for assistance. In the absence of specific statutes to the contrary, neither the
federal government nor the states object to the taking of voluntary depositions here
for use abroad. See McCusker, Some United States Practices in InternationalJudicial
Assistance, 37 DEP'T STATE BULL 808, 809 (1957). Instances of exception to this
general attitude are rare. See Miller, supra note 84, at 1112-14 (1965).
2 See 8 WxMoasE, EVIDENCE § 2195a, at 89 (McNaughton rev. 1961). In Solliday
v. District Court, 135 Colo. 489, 313 P.2d 1000 (1957), the court asserted that "no
state has authority beyond its own borders .... Such recognition as is given our laws
or court orders by other states is based solely upon full faith and credit, comity,
contract due to uniform acts, or compact." Id. at 497-98, 313 P.2d at 1004. In this
case, the Colorado court held that it lacked jurisdiction to compel a corporate
official, domiciled in a foreign state, to give a deposition in the foreign court for use
in Colorado. This ruling was posited despite the fact that the corporation had
brought an action in the Colorado court and it was the defendant in that case who
sought the official's deposition. Comment, 9 OHIO ST. LJ. 679 (1948). In In re Robbins'
Will, 105 N.Y.S.2d 290 (Surr. Ct. 1950), the New York court suggested that it may
lack the power to compel a foreign national to take a deposition in his own country
since it would have been violative of the foreign country's laws. This latter
situation would seem to be the strongest case for holding that the local court lacks
jurisdiction. But cf. Note, 63 CoLumn. L. REv. 1441, 1458-65 (1963); Comment, 31
U. CHI. L. REv. 791, 798-99 & n.29 (1964) (implying that federal courts may require
production of documents in violation of the foreign law). The above Comment is
based upon the assumption that the United States court has jurisdiction over the
person ordered to produce. In State ex rel. Walling v. Sullivan, 245 Wis. 180, 13
N.W.2d 550 (1944), the Wisconsin court determined that it had not exceeded its
jurisdiction by ordering a non-resident defendant to appear before a notary in his
state for purposes of adverse examination. However the defendant had previously
appeared generally in the court and had been served with a summons. The court
stated that the order "had no extraterritorial effect, in the proper sense of the term."
Id. at 189-90, 13 N.W.2d., at 555. But see ILL. Rnv. STAT. ch. 110, §§ 16-17 (1965)
(long-arm jurisdiction statute); Nelson v. Miller, 11 Ill. 2d 378, 143 N.E.2d 673 (1957).
Vol. 1966: 512] INTERNATIONAL LITIGATION
states in an attempt to solve the enforcement problem. Illinois"6
and Michigan 1 7 have enacted statutes whereby the court may order
a non-resident plaintiff to appear at a "designated place" for the
purpose of having his deposition taken." 8 The Michigan rule pro-
vides that where "the deposition of a non-resident defendant cannot
be taken in the state of his residence, the court may order him...
to appear at a designated place . . . for the purpose of having his
deposition taken .... ,"19 Although the legislature's comment ac-
companying the Michigan rule views the cases of the non-resident
plaintiff and non-resident defendant in the same light, 20 such an
approach is not justified. The non-resident plaintiff is the "initi-
ator" of the proceeding; hence, it is not unfair to require him to
comply with the procedures of the court system which he has caused
to be set in motion. The case of the non-resident defendant is quite
distinguishable. He may have no in personam connection with the
local court' 21 and an attempt by that court to use its coercive power
extraterritorially would seem to be encroaching on the sovereignty
22
of the country where he resides.
120 ILL. REV. STAT. ch. 110, § 101.19-8 (3) (1965).
17 MIcH. GEN. CT. R. 305.2.
118 ILL. REV. STAT. ch. 110 § 101.19-8(3) (1965). MICH. GEN. CT. R. 3052 is almost
identical. These statutes appear to be based on federal case law which indicates
that in the absence of special circumstances a non-resident plaintiff must make
himself available for examination in the forum where the action has been
commenced or face dismissal under FED. R. Civ. P. 37(d). See, e.g., Sullivan
v. Southern Pac. Co., 7 F.R.D. 206 (S.D.N.Y. 1947); Producers Releasing Corp. DeCuba
v. PRC Pictures, Inc., 8 F.R.D. 254 (S.D.N.Y. 1948), modified, 176 F.2d 93 (2d Cir.
1949) (dismissal on merits modified to provide merely for dismissal).
1
" MICH. GEN. CT. R. 305.2.
Note that the statute refers to the deponent's "state of residence." It is not
certain whether this information subsumes deponents in foreign countries. This rule
authorizes the Michigan court to use its own coercive powers over a non-resident
who is in a foreign jurisdiction. It is questionable whether general principles of
sovereignty would suffer such a procedure. See generally 8 WIGMO, , EVIDENCE
§ 2195a (McNaughton rev. 1961).
120 Committee Comment, MICH. GEN. CT. R. 305.2 in Rules, MICH. STAT. ANN. at
128 (1964).
121The Michigan rule must, of course, be predicated upon the assumption that the
Michigan court has obtained jurisdiction over the non-resident defendant or his
property. To this extent, then, some slight nexus will by definition be requisite to
invocation of the deposition statute. Whether this nexus will be substantial enough
to justify an order that the defendant appear for the taking of his deposition will
turn upon the adequacy of the connections as gauged by the due process standards
of "'fair play and substantial justice.'" International Shoe Co. v. Washington, 326
U.S. 310, 316 (1945). See WIUaHT, FEDERAL CouRTs § 64 (1963). In an in rem pro-
ceeding involving the property of a foreign resident, the requisite connection is likely
to be absent.
210 See note 119 supra.
 DUKE LAW JOURNAL [Vol. 1966: 512

A foreign statute itself may provide another means by which

the local court can use its compulsory process within the borders of
the foreign state or country. Mississippi affords a ready analogy:
that state has enacted an unusual provision which allows a foreign
commissioner to enter Mississippi and use his own coercive power
123
in order to compel depositions within the state.
An entirely different approach is exemplified by the new federal
statutory provision. 124 It is based upon an assumption that a federal
court may be able to effect some sort of compulsory process based
on its own coercive power over citizens and residents who are tem-
porarily residing abroad. 25 There would appear to be no consti-
tutional limitations on the adoption by a state of the federal-type
rule in order to compel its own citizens and residents to either sub-
mit to a deposition within the foreign country or, where the foreign
country forbids this, to travel to a country nearby where such pro-
cedure would be accepted. 126 As with the federal rule, failure to
comply would lead to a contempt of court citation as well as at-
tachment and sale of property to satisfy the contempt judgment.
Even assuming that a state has no such statute, it may still be pos-
sible for the state court to invoke the federal court procedure. For
12 3 The Mississippi provision is unusual in that it gives "any commissioner ...
appointed by any court without the limits of this state, to take the deposition of any
witness residing or being in this state, . . . power to issue subpoenas for the witness
to be examined .... " Miss. CoDE ANN. § 1885 (1942).
28 U.S.C. § 1783 (a) (1964) states that "a court of the United States may order
124
the issuance of a subpoena requiring the appearance as a witness before it, or before
a person or body designated by it, or a national or resident of the United States who
is in a foreign country . . . if the court finds . . . that it is not possible to obtain his
testimony . . . in any manner." Under a recent amendment, the federal statute has
expanded the previous law, held constitutional in Blackmer v. United States, 284 U.S.
421 (1932), to include in its purview instances wherein the deposition is needed in a
civil action. 28 U.S.C. § 1784(d) (1964) provides for attachment of the witnesses'
property within the United States in order to satisfy the contempt finding.
1
'5A citizen's duty to testify in his country's courts continues while he is abroad.
Skiriotes v. Florida, 313 U.S. 69,73 (1941) (dictum); Blackmer v. United States, supra note
124; WIGMoRE, EVIDENCE § 2195c, at 102 (McNaughton rev. 1961). It would seem that the
states may have an analogous power with regard to their citizens. Cf. Milliken v.
Meyer, 311 U.S. 457, 463 (1940): "As in case of the authority of the United States
over its absent citizens . . . [Blackmer v. United States, supra note 124], the authority
of a state over one of its citizens is not terminated by the mere fact of his absence
from the state." It may, however, be questionable whether this state power would
extend to absent citizens located in foreign countries rather than sister states.
226 But see 8 WIGMORE, EVIDENCE § 2195c, at 101 (McNaughton rev. 1961), who
suggests that a United States court may notify a citizen to appear for a deposition
and if he fails to appear may punish him for contempt, but that United States court
order or subpoena to the citizen within a foreign jurisdiction would be considered
an intrusion on the jurisdictional sovereignty of the foreign country.
Vol. 1966: 512] INTERNATIONAL LITIGATION
example, the state could perhaps issue a letter rogatory to the federal
court requesting the latter to compel witnesses to testify by in-
voking the federal long-arm statute.127 Should this circuitous
method be employed, any violation of the federal order would be a
violation of the federal law, and the federal statute's coercive mea-
sures would be used against the unwilling deponent. 12

3. Procedural Safeguards in Deposition Practice

Although a foreign court may allow a deposition to be taken
within its borders, the deposition may have been taken, by neces-
sity, under circumstances not in accord with the normal procedure
required by the local court. 1 29 Several trial courts have realistically
12 7
It is questionable whether such a suggestion would be permissible under 28
U.S.G. § 1781 (1964). It might be argued that the statute by implication precludes
the contemplated action since it nowhere specifically sanctions such a procedure.
It specifically provides that the Department of State is empowered to transmit letters
rogatory from courts in the United States to foreign tribunals and to transmit foreign
letters to courts in the United States. 28 U.S.G. § 1781 (b) (1964) states that the
statute does not preclude the direct sending and receiving of letters by the courts in
the United States. However, there is no allusion to any procedure which contemplates
the use of letters rogatory between state and federal courts. 28 U.S.C. § 1783 (1964)
does not, however, mention that the subpoena will be issued only if the witness'
testimony is needed in a federal proceeding. Thus, the suggestion in the text would
seem not to be precluded by the federal statute.
It may be argued in favor of the proposal that state and federal courts are
"foreign" to each other with regard to their respective jurisdictions and if the issuance
of letters rogatory is an inherent power of a court, see note 138 infra and accompanying
text, there is no objection to the sending of a letter rogatory from one foreign
court to another.
128 It is interesting to note that if the proposed procedure were allowed, it could
result in a situation wherein the federal court would be using its compulsory process
to aid in litigation over which it might not legally have been given jurisdiction.
Hypothesize a situation where both parties to a suit based on local law are citizens
of the same state and one of the parties attempts to use the procedures suggested
in the text. Given the nature of letters rogatory, see text accompanying note 87 supra,
the federal court would be using its compulsory process to aid parties in an action
over which the federal courts have not been given jurisdiction. In such a situation,
use of federal process by a state court through the device of letters rogatory might
well be violative of due process.
A problem ancillary to obtaining effective coercive power over the deponent is a
means by which the perjured statements of deponents made in a foreign jurisdiction
may be punished. 18 U.S.C. § 1621 (1964) may be a harbinger of future state legislation
in this field. This federal statute provides for the punishment of perjured statements
whether "made within or without the United States." Ibid. (Emphasis added.)
2 In order to comply with certain foreign requirements such as the mode of
questioning or the person allowed to administer the oath, a commissioner admin-
istering a deposition abroad may have to alter the standard procedure which obtains
in local courts. If the deposition were taken under a letter rogatory, the procedure
used would be that of the foreign court, Commissioners' Note to the Uniform Inter-
state and International Procedure Act, 9B UNIFORm LAws ANN. 94, 96 (Supp. 1965),
and the chance of an inconsistency between the local procedure and the procedure
 DUKE LAW JOURNAL [Vol. 1966: 512

held that certain procedural inconsistencies will not be sufficient

to exclude the introduction of such depositions at the trial.18 0
This type of liberal, discretionary procedure would seem to be
imperative when dealing with divergent legal systems. If strict
local evidentiary requirements were applied to a deposition obtained
abroad, the amount of evidence ultimately admitted at trial might
be so small as to be of little value. A salutary procedure has been
codified by Massachusetts, whose statute provides that depositions
taken in foreign jurisdictions under procedures at variance with
local practice may be admitted into evidence at the court's dis-
cretion. 1 1. The Uniform Interstate and International Procedure
1 32
Act contains a similar provision.
Liberality in admission of foreign depositions would appear to
be concomitant with the need to relax procedural requirements in
order to facilitate the taking of depositions abroad. As an integral
part of the decision to admit the deposition, the local courts apply a
standard of relevancy. 133 A court should also weigh the reliability
of the deposition under the circumstances. The relevance is often
at issue before the deposition is returned as a factor in the decision
to issue a commission or a letter rogatory, although the standard of
1 84
relevance for admission of the deposition is necessarily higher.
under which the deposition was taken would be greater. "In executing a letter
rogatory, the courts of other countries may be expected to follow their customary
procedure for taking depositions. In many non common-law countries, the judge
questions the witness, sometimes without first administering an oath, attorneys put
any supplemental questions, either to the witness or through the judge, and the
judge dictates a summary of the testimony, which the witness acknowledges as
correct." Id. at 96.
1
23E.g., In re Derinza, 229 Mass. 435, 118 N.E. 942 (1918); Tyng v. Thayer, 90
Mass. (8 Allen) 391 (1864); Gersten v. Schroder Trust Co., 261 App. Div. 934, 25 N.Y.S.2d
461 (1941); see Commissioners' Note to the Uniform Interstate and International
Procedure Act, supra note 129, at 96. A liberal modicum of discretion should be
left to the trial judge in order to permit the local court to refuse to admit testimony
"taken under circumstances indicating that it is entitled to little credence ...." Ibid.
This discretionary power is embodied in UNIFORM INTERSTATE AND INTERNATIONAL
PRocEDuRE ACT § 3.01 (b). See note 132 infra.
131MASS. ANN. LAwS ch. 233, § 44 (1956).
132 "Evidence obtained in a foreign country in response to a letter rogatory need
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 any similar departure from the
requirements, for depositions taken within this state." UNIFORM INTERSTATE AND
INTEANATIONAL PROcEDURE Acr § 3.01. The federal rules also contain a similar
provision. FED. R. Civ. P. 28 (b). See generally Miller, supra note 84, at 1094-95 & n.79.
233See note 130 supra. This admission procedure would seem to be subject to the
usual discretionary powers given trial courts under the rules of evidence. See gen-
erally MCCORMICK, EVIDENCE § 152 (1954).
113A court may apply a lesser standard of relevancy before it issues a commission
or a letter rogatory. See, e.g., Kustka v. Belmont Terrace Holdings, Inc., 234 App.
Vol. 1966: 512] INTERNATIONAL LITIGATION

B. LETTERS ROGATORY
Even if the local deposition statute is drawn as broadly as pos-
sible, it may still be unwieldy in certain circumstances. The jealous
nature of sovereignty exhibited by some of the civil law countries
may, in effect, negate the effort of the domestic statute to obtain
flexibility. 135 In addition, local statutes have not as yet been able
to deal effectively with the problem of the involuntary deponent
located in a foreign country or with the deponent who makes per-
jurious declarations.
Letters rogatory may provide a solution to these problems. Such
letters are requests for coercive assistance sent by the local court
either directly to a foreign court or to a foreign government from
136
whence they are transmitted to the corresponding foreign court.
When letters rogatory are employed, the procedure used in taking
137
the deposition will be that of the foreign court. Issuance of letters
rogatory has been considered an inherent judicial power 138 and it
thus is quite possible that statutory authorization is not required.
It is obvious that since the procedure used under letters rogatory
139
is governed by the rules of the foreign court, the local litigant's

Div. 713, 252 N.Y. Supp. 840 (1931); Goshi Kaisha Yamamoto Sohonten v. France &
Canada Steam Ship Co., 196 App. Div. 551, 188 N.Y. Supp. 131 (1921). A state statute
may also reuire "sufficient cause" before a commission will be issued to take evidence
out of state. See, e.g., Wis. STAT. ANN § 326.26 (1958).
A returned deposition will be more carefully scrutinized with regard to relevancy.
In addition, local courts often question the procedure used by the foreign court or
commissioner in obtaining the deposition. See, e.g., Tyng v. Thayer, 90 Mass. (8
Allen) 391 (1864); Gersten v. Schroder Trust Co., 261 App. Div. 934, 25 N.Y.S.2d
461 (1941); Tomaka v. Pennsylvania R.R., 13 Misc. 2d 272, 177 N.Y.S.2d 858 (Sup.
Ct. 1958); La Greca v. Giaquinta, 129 N.Y.S.2d 565 (Sup. Ct. 1954); Ecco High Fre-
quency Corp. v. Amtorg Trading Corp., 196 Misc. 405, 94 N.Y.S.2d 400 (Sup. Ct.
1949); In re De Lowe's Estate, 143 N.Y.S.2d 270 (Surr. Ct. 1955). See also Comment, 9
Omo ST. L.J. 679 (1948).
13"See note 90 supra.
130See generally Doyle, supra note 91, at 37; authorities cited note 87 supra.
Various states have a provision regarding letters rogatory. See, e.g., CAL. Crv. PROC.
CODE § 2018 (Supp. 1965); COLO. R. Civ. P. 28 (b), (d); N.Y. Civ. PRAc. LAW §§ 3108,
3113 (a) (3). 28 U.S.C. § 1781 (1964) allows the United States Department of State to
receive and transmit letters rogatory to and from foreign countries. This facilitates
a procedure which has, in the past, been hampered by impediments imposed by the
State Department. H. Jones, InternationalJudicial Assistance: Procedural Chaos and
a Program for Reform, 62 YALE L.J. 515, 562 (1953).
117See In re Kadar's Estate, 6 Misc. 2d 650, 162 N.Y.S.2d 411 (Surr. Ct. 1957);
note 129 supra. See generally authorities cited note 87 supra.
138See, e.g., In re Martinelli, 219 Mass. 58, 106 N.E. 557 (1914); Decauville Auto.
Co. v. Metropolitan Bank, 124 App. Div. 478, 485, 108 N.Y. Supp. 1027, 1033 (1908); 8
WIGMomr, EVMENCE § 2195a, at 92 (McNaughton rev. 1961).
""See In re Kadar's Estate, 6 Misc. 2d. 650, 162 N.Y.S.2d 411 (Surr. Ct. 1957);
note 129 supra.
 DUKE LAW JOURNAL [Vol. 1966: 512

request, if honored by the foreign court, is assured of complying

with that court's requirements. The problem of the involuntary
deponent may also find its solution in the letters rogatory pro-
cedure. Because of the nature of the proceeding, the foreign court
may use its compulsory process and require the deponent to appear
before the court and give his testimony. 140 For the same reasons, it
would seem that the foreign court could apply sanctions to a witness
who has given perjured testimony.
Letters rogatory thus provide an excellent procedure for the
taking of depositions abroad. However, certain drawbacks do be-
come evident. Although some courts and commentators consider
letters rogatory cumbersome 14 or undesirable, 42 the major diffi-
culty would seem to arise when the deposition thus obtained is
offered for admission in the local proceeding. Since, under a letter
rogatory, the foreign court will quite definitely adhere to its own
procedural rules, 43 the local court may be faced with the problem of
either admitting testimony obtained under evidentiary practices
foreign and possibly antithetic to the local court or excluding testi-
mony which may be an integral part of the litigant's cause of action.
Again, liberal rules of admissibility will be requisite to a viable
utilization of this procedure. 44
Additional problems may also present themselves: the foreign
court may simply refuse to execute the letter; the foreign court may
not have a procedure for compulsory process in such a situation;
or the foreign court may be burdened by the fact that it will have
to inquire into the relevance and justice of the evidence sought in
order to protect its own citizens or persons resident under its juris-
diction.
140
See generally Doyle, supra note 91, at 37; Commissioners' Note to Uniform
Interstate and International Procedure Act, 9B UNIFOM LAws ANN. 94, 95 (Supp.
1965); authorities cited note 84 supra.
1'l Note, 96 U. PA. L. REV. 241, 249 (1947).

14La Greca v. Giaquinta, 129 N.Y.S.2d 565, 567 (Sup. Ct. 1954). Professor
Wigmore also points out that the use of letters rogatory may present problems since
it may often be quite difficult to determine the appropriate foreign court, obtain
accurate information concerning its procedures and specific jurisdictional limits and
receive assistance with the linguistic problems involved in making such a request of
a foreign court. 8 WIGMORE, EVIDENCE § 2195b, at 94 (McNaughton rev. 1961). It
would seem that the unfavorable light in which letters rogatory have sometimes
been characterized may be due to the fact that the local court is forced to give up a
good deal of control over the deposition when it is taken. In re Kadar's Estate, 6
Misc. 2d 650, 162 N.Y.S.2d 411 (Surr. Ct. 1957); note 129 supra.
"'3 See note 129 and text accompanying note 137 supra.
14 See notes 129-34 supra and accompanying text.
Vol. 1966: 512] INTERNATIONAL LITIGATION

Recognizing the various advantages' 45 of letters rogatory, section

3.01 of the Uniform Interstate and International Procedure Act
authorizes this issuance. The act emphasizes that the letters should
be issued liberally, and the litigant need not show that all other
measures are impractical. 146 It is specifically provided that the re-
quest for assistance from the foreign court must be issued through
47
the local court and not by an individual acting on his own behalf. 1
Foreseeing the problem which the local court may face upon return
of the executed letter rogatory, 48 the act specifically authorizes the
local court to admit a deposition obtained under circumstances not
fully coterminous with local procedure. 49 The act also contains
provisions authorizing a local court to honor any letters rogatory
from foreign courts.150
CONCLUSION

It would seem that under current conditions, viable statutes

for the taking of depositions abroad must contain provisions relat-
ing to both letters rogatory and deposition by commission, and the
Uniform Interstate and International Procedure Act affords an ex-
cellent model in this regard. This eclectic approach will enable
the local court to treat various situations as effectively as possible.
Where a foreign court will allow a deposition to be taken by com-
mission, the local court, since deposition practice is greatly facilitated,
may exercise a greater degree of control over the proceedings in the
foreign country. 151 If the commission procedure is not allowed and
the witness will not voluntarily tender his statement, letters rogatory
provide the most feasible answer. The local court might be in a
better bargaining position, both with regard to a foreign court's
allowance of a deposition within its borders and with regard to
requests for the execution of letters rogatory, if some sort of re-
ciprocal requirement were included in the local statute. 52 Such
parochialism could, however, create unnecessary hostility by foreign
14 See notes 139-40 supra and accompanying text.
14 UNIFORM INTERSTATE AND INTERNATIONAL PROCEDmE ACT § 3.01 (b).
14 7
UNIFORM INTERSTATE AND INTERNATIONAL PROCEDURE Acr § 3.01 (a) (3). Contra,
Micr. GEN. CT. R. 305.3, which specifically contemplates a direct request for as-
sistance to the foreign court from the local litigant.
148 See notes 129-34 supra and accompanying text.
1'9 UNIFORM INTERSTATE AND INTERNATIONAL PROCEDuRE AcT § 3.01 (b).
40 UNIFORM INTERSTATE AND INTERNATIONAL PROcEDuRE Acr § 3.02. See notes 113-14
1

supra.
151 See notes 142-43 supra and accompanying text.
51
1 See, e.g., VA. CODE ANN. § 8-316.2 (Supp. 1964); Wis. STAT. ANN. § 326.24 (1958).
544 DUKE LAW JOURNAL [Vol. 1966: 512

courts which may be bound to some extent by statutory strictures.

Thus, the initial step toward international judicial assistance should
perhaps be undertaken by negotiating bilateral treaties governing
15 3
deposition practice.
15'See 8 WiGMoPE, EVIDENCE § 2195 (b) (McNaughton rev. 1961); Note, 96 U. PA.
L. REv. 241, 254 (1947).
In answer to the argument that state procedure would not be aided by bilateral
treaties on a national level, Professor Jones points out that "it is doubtful that it
would be argued today that the benefits of procedural reform must be denied the state
courts in the international field where the states themselves are powerless to act," since
a United States treaty would also be the law of the states, U.S. CONST. art. VI, § 2.
H. Jones, supra note 136, at 562. However, it should be noted that although the
treaties of the United States become binding upon the states, U.S. CONST. art. VI, § 2,
there is no guarantee that a foreign country will render assistance to the states if it
has only agreed to cooperation with the United States. Such a treaty should specifically
provide that the states may avail themselves of the assistance of the foreign signatory.