Preparation of Letters Rogatory
Disclaimer: The information in this circular relating to the legal requirements of specific foreign countries is provided for general information only and may not be totally accurate in a particular case. Questions involving interpretation of specific foreign laws should be addressed to foreign counsel. This circular seeks only to provide information; it is not an opinion on any aspect of U.S., foreign, or international law. The U.S. Department of State does not intend by the contents of this circular to take a position on any aspect of any pending litigation.
Summary: Letters rogatory are the customary method of obtaining judicial assistance from abroad in the absence of a treaty or executive agreement. Letters rogatory are requests from courts in one country to the judiciary of a foreign country requesting the performance of an act which, if done without the sanction of the foreign court, could constitute a violation of that country's sovereignty. Letters rogatory may be used in countries where multi-lateral or bilateral treaties on judicial assistance are not in force to effect service of process or to obtain evidence if permitted by the laws of the foreign country. 22 CFR 92.54 provides a definition of letters rogatory.
Time Frame for Execution of Letters Rogatory: Execution of letters rogatory may take a year or more worldwide. Letters rogatory are customarily transmitted via the diplomatic channel , a time-consuming means of transmission. The time involved may be shortened by transmitting a copy of the request through local legal counsel if permitted in the foreign country. Lists of foreign attorneys are available on the Internet pages of the consular sections of U.S. embassies and consulates abroad .
Suggestions for Drafting Letters Rogatory:
Essential elements of letters rogatory:
Signature and Authentication: Letters rogatory must be signed by a judge. The clerk should not sign on behalf of the judge. For most countries, the seal of the court and signature of the judge is sufficient. Consult our country-specific information for guidance about authentication procedures for particular countries. Many countries will not accept letters rogatory issued by an Administrative Law Judge. In administrative cases, it is possible to obtain letters rogatory issued by a federal district court under the All Writs Act, 28 U.S.C. 1651.
Translation: The letters rogatory and any accompanying documents must be translated into the official language of the foreign country. The translator should execute an affidavit as to the validity of the translation before a notary.
Number of Copies: Forward to the U.S. Department of State for transmittal to the foreign authorities:
Fees: The current consular fees for transmittal of letters rogatory are available in 22 CFR 22.1 Schedule of Fees. Counsel are requested to submit a certified bank check payable to the U.S. Embassy (insert name of capital of the foreign country, for example, U.S. Embassy Tokyo). Corporate or personal checks are not acceptable. Foreign authorities may also charge a fee. Counsel will be notified by the U.S. embassy and/or the Office of American Citizens Services and Crisis Management in the Department of State if the embassy is advised by foreign authorities of any applicable local fees. There is no consular fee for letters rogatory on behalf of federal, state or local government officials. If the letters rogatory request compulsion of evidence from more than one witness or service of process on more than one person, multiple fees may be charged if more than one foreign court is required to execute the request due to multiple jurisdictions.
Transmittal to the Department of State: The letters rogatory and accompanying documents may be submitted to the Office of American Citizen Services, (CA/OCS/ACS), U.S. Department of State, SA-29 4 th Floor, 2201 C Street NW, Washington, DC 20520-0001. Phone 1-888-407-4747.
Cover Letter: The documents should be accompanied by a cover letter including the following elements:
Transmittal of Letters Rogatory by Department of State to the Foreign Authorities through Diplomatic Channel: Letters rogatory generally are transmitted to foreign judicial authorities through the diplomatic channel. The diplomatic channel is a route by which the documents are sent to the foreign court. The normal process is as follows:
Execution of Letters Rogatory by the Foreign Court: The foreign court will execute letters rogatory in accordance with the laws and regulations of the foreign country. In compelling evidence, for example, many foreign courts do not permit foreign attorneys to participate in their court proceedings. Not all foreign countries utilize the services of court reporters or routinely provide verbatim transcripts. Sometimes the presiding judge will dictate his or her recollection of the witness' responses.
Return of Executed Letters Rogatory: When letters rogatory are executed by the foreign authorities, they are generally returned to the Department of State via the diplomatic channel and the Office of American Citizens Services will send them to the requesting court in the United States via certified mail. Requesting counsel is also notified. At the request of the court, the executed letter rogatory and proof of service/evidence produced can be returned directly to requesting counsel. If transmittal by commercial express delivery service is preferred, please include your account number in the covering letter.
Authority: The issuance of letters rogatory by federal courts is provided for under Rule 28(b) Fed. R. Civ. P. and Rule 4(f)(2)(B), Fed. R. Civ. P . Letters rogatory have also been issued under the All Writs Act, 28 U.S.C. 1651. 28 U.S.C. 1781 and 28 U.S.C. 1782 describe the transmittal of letters rogatory through the Department of State and through the district courts; 28 U.S.C. 1696 provides for the use of letters rogatory for service of process pursuant to a request by a foreign tribunal; Consular procedures for transmittal of letters rogatory are detailed in 22 CFR 92.66: Article 5(j), Vienna Convention on Consular Relations, 21 U.S.T. 77, 596 UNTS 261; TIAS 6820 (where applicable); and Bilateral Consular Conventions (where applicable.)
Questions: Additional questions regarding letters rogatory should be addressed to the appropriate geographic division of the Office of American Citizens Services, Tel: 1-888-407-4747.
American Bar Association, Obtaining Discovery Abroad (2006).
Born and Rutlege, International Civil Litigation in United States Courts, Aspen Publishers (2006).
Epstein, Snyder and Baldwin, International Litigation: A Guide to Jurisdiction, Practice and Strategy, Transnational Pub. (1998).
McClean, David, International Co-operation in Civil and Criminal Matters, Oxford University Press (2002).
Ristau, Bruno, International Judicial Assistance, Civil and Commercial, International Law Institute (1995).
SAMPLE REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE
NAME OF COURT IN SENDING STATE REQUESTING JUDICIAL ASSISTANCE
NAME OF PLAINTIFF
NAME OF DEFENDANT
REQUEST FOR INTERNATIONAL JUDICIAL ASSISTANCE (LETTER ROGATORY)
(NAME OF THE REQUESTING COURT) PRESENTS ITS COMPLIMENTS TO THE APPROPRIATE JUDICIAL AUTHORITY OF (NAME OF RECEIVING STATE), AND REQUESTS INTERNATIONAL JUDICIAL ASSISTANCE TO (OBTAIN EVIDENCE/EFFECT SERVICE OF PROCESS) TO BE USED IN A (CIVIL, CRIMINAL, ADMINISTRATIVE) PROCEEDING BEFORE THIS COURT IN THE ABOVE CAPTIONED MATTER. A (TRIAL/HEARING) ON THIS MATTER IS SCHEDULED AT PRESENT FOR (DATE) IN (CITY, STATE, COUNTRY).
THIS COURT REQUESTS THE ASSISTANCE DESCRIBED HEREIN AS NECESSARY IN THE INTERESTS OF JUSTICE. THE ASSISTANCE REQUESTED IS THAT THE APPROPRIATE JUDICIAL AUTHORITY OF (NAME OF RECEIVING STATE) (COMPEL THE APPEAR OF THE BELOW NAMED INDIVIDUALS TO GIVE EVIDENCE/PRODUCE DOCUMENTS) (EFFECT SERVICE OF PROCESS UPON THE BELOW NAMED INDIVIDUALS).
(NAMES OF WITNESSES/PERSONS TO BE SERVED)
(NATIONALITY OF WITNESSES/PERSONS TO BE SERVED)
(ADDRESSED OF WITNESSES/PERSONS TO BE SERVED)
(DESCRIPTION OF DOCUMENTS OR OTHER EVIDENCE TO BE PRODUCED)
(THE FACTS OF THE CASE PENDING BEFORE THE REQUESTING COURT SHOULD BE STATED BRIEFLY HERE, INCLUDING A LIST OF THOSE LAWS OF THE SENDING STATE WHICH GOVERN THE MATTER PENDING BEFORE THE COURT IN THE RECEIVING STATE.)
(IF THE REQUEST IS FOR EVIDENCE, THE QUESTIONS FOR THE WITNESSES SHOULD BE LISTED HERE).
(LIST ANY SPECIAL RIGHTS OF WITNESSES PURSUANT TO THE LAWS OF THE REQUESTING STATE HERE).
(LIST ANY SPECIAL METHODS OR PROCEDURES TO BE FOLLOWED).
(INCLUDE REQUEST FOR NOTIFICATION OF TIME AND PLACE FOR EXAMINATION OF WITNESSES/DOCUMENTS BEFORE THE COURT IN THE RECEIVING STATE HERE).
THE REQUESTING COURT SHOULD INCLUDE A STATEMENT EXPRESSING A WILLINGNESS TO PROVIDE SIMILAR ASSISTANCE TO JUDICIAL AUTHORITIES OF THE RECEIVING STATE.
REIMBURSEMENT FOR COSTS
THE REQUESTING COURT SHOULD INCLUDE A STATEMENT EXPRESSING A WILLINGNESS TO REIMBURSE THE JUDICIAL AUTHORITIES OF THE RECEIVING STATE FOR COSTS INCURRED IN EXECUTING THE REQUESTING COURT'S LETTERS ROGATORY.
SIGNATURE OF REQUESTING JUDGE
TYPED NAME OF REQUESTING JUDGE
NAME OF REQUESTING COURT
CITY, STATE, COUNTRY
(SEAL OF COURT)