In 2013, a decision by the President of the Court of Appeals (Oberlandesgericht) Frankfurt led me to speculate whether Germany’s position on the pre-trial discovery of docments under the Hague Evidence Convention is softening. In April 2014, the Federal Ministry of Justice came forward with a proposal to modify Germany’s position on discovery of documents and to allow it in certain circumstances. In this post, I try to summarize the various responses to this initiative. Continue reading
On March 27/28, 2014, the Forum on Fraud, Asset Tracing and Recovery organized by C5 is being held in Geneva. I have the pleasure to be on a panel with Peter Burckhardt of Schellenberg Wittmer, Zurich and to present on taking of evidence abroad in civil fraud and asset tracing cases.
US discovery is a bone of contention between Germany and the United States. If you run a search for Justizkonflikt in a German legal data base, you will find hundreds of entries dealing with conflicts between the US and the German judicial systems – going back to Peter Schlosser’s 1985 publication which, if it not coined the phrase Justizkonflikt, certainly popularized it. If you look closer, you will find German authors and courts almost exclusively thinking about ways and means to protect German parties against US style discovery or US punitive damages awards. The fact that, on the other hand, US law is quite liberal in making US discovery available in support of foreign proceedings under 28 USC Sec. 1782 became more widely known only in the wake of the US Supreme Court’s 2004 decision in Intel Corp. v. Advanced Micro Devices, Inc. Continue reading