Making a difference? The reform of the EU Evidence Regulation

On 30 June 2020, the European Parliament (EP) and the Council of Europe (EC) struck a “Deal on digitalisation of access to justice” to benefit EU citizens: the reform of the Evidence Regulation 1206/2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (‘Evidence Regulation’). 

The Evidence Regulation, which provides a framework for the transmission of cross-border evidence requests, had been touted as replacing for Europe the more cumbersome global regime of the 1970 HCCH Evidence Convention. Yet, successive reviews attested that it failed to reach its potential and in 2017, the EU embarked on a reform project to unlock finally the envisaged benefits of the instrument. This blog post highlights the key aspects of the reform.

Evidence:  The Key to Successful Dispute Resolution 

Proving your claim through evidence is critical for success in any dispute. However, in cross-border disputes, the need to draw on and obtain evidence that is located in another State (or evidence abroad) can dramatically increase the complexity of the dispute. Parties need to understand those complexities because they influence the strategic choices parties must make even before commencing, and during, litigation proceedings and arbitrations. Considerations include, for example:

• Whether the evidence abroad is held by a party to the dispute or a third party;
• The location of the parties and the evidence; and
• Whether there are bi- and / or multilateral international agreements that facilitate the taking of evidence abroad.

Bi- and multilateral instruments can make a real difference in this regard and the Evidence Regulation is one such instrument.

The EU Evidence Regulation 1206/2001

The Evidence Regulation seeks to establish a cooperative European framework for the swift and efficient transmission of requests for the taking of evidence in another EU Member State. It can support both litigation proceedings and arbitrations. At its core are three mechanisms: 

1. The forum court requests a court in another EU Member State to take the evidence on its behalf (active assistance); 
2. The forum court seeks permission from a court in another EU Member State to take evidence directly in that State (passive assistance);
3. The forum court conducts the evidence taking in the presence of a court in another EU Member State (referred to as “dialogical assistance”, a hybrid form of the active and passive assistance).

The underutilised Evidence Regulation

While the Evidence Regulation sets out to improve judicial cooperation and facilitate ease of access to evidence abroad, successive reviews have found that the Evidence Regulation remains significantly underutilised. The most recent review stated that its use is as low as 0.5 to 5% of all cross-border disputes within the EU (Deloitte Review, 2018). Moreover, all reviews concluded that the processes are inefficient and slow, largely owing to the underutilisation of digital technology.

Reforming the Evidence Regulation

In response to this, a reform project is underway to upgrade the Evidence Regulation by simplifying and diversifying the framework, and thereby creating greater legal protection and certainty. Specifically, four main reform measures that aim to facilitate more convenient access to evidence located in another EU Member State are central to this effort, with a strong focus on encouraging national courts to make greater use of digital technology. The key changes are:

1. Mandatory electronic transmission of requests and communications – transmission of requests for evidence and communications should be made electronically (proposed Art 6(1)) unless exceptional circumstances preclude electronic transmission (e.g. evidence that is unable to be transmitted electronically (proposed Art 6(4)). This includes the creation of a decentralised, purpose-built software that can interoperate with existing and future national systems.
2. Direct evidence taking through video conferencing – evidence from a witness, party or expert shall be taken via video conferencing if that person is domiciled in another Member State (proposed Art 17a).
3. Facilitation of taking evidence by diplomatic officers and consular agents – diplomatic officers and consular agents can take evidence in the territory of another Member State and within the area where they exercise their functions without prior permission (proposed Art 17b).
4. No rejection of digital evidence – evidence lawfully taken in another Member State cannot be rejected solely because of its digital nature (proposed Art 18).

The Benefits of the Reform Measures

The reform measures should benefit parties to litigation proceedings and arbitrations by improving on four important factors:

1. A simplified and convenient procedure – mandatory electronic transmission, video conferencing and facilitation of diplomatic officers and consular agents in taking evidence creates a more convenient and digitalised procedure and also reduces costs in time, money and effort.
2. Greater legal certainty – easing access to evidence and not allowing rejection of evidence lawfully taken solely because of its digital nature creates greater legal certainty for parties in a dispute.
3. Better protection – ensuring that information and data are adequately protected, especially in so far as they concern personal data.
4. Increased access to justice – facilitating judicial co-operation between courts of EU Member States increases access to justice for EU nationals and enhances the functioning of the judiciary.

Outlook 

There remain questions whether the reform can overcome the underutilisation of the Evidence Regulation. Of course, mandating electronic transmissions can improve inter-court usage. Also, encouraging overall the greater use of modern technologies and more direct procedures seem to make the package overall more attractive to parties. However, for parties to use the instrument more, they must know of its benefits – and previous promotional campaigns struggled to overcome the underutilisation of the Evidence Regulation.

Still, this reform has certainly the potential to make a difference. In the future, parties should consider using the reformed Evidence Regulation to take evidence abroad in litigation proceedings and arbitrations within Europe. If you have any questions relating to the reformed Evidence Regulation, and its suitability in your specific dispute, do not hesitate to contact our experts at Grotius Chambers.

Grotius Chambers thanks Mr Andre Bemmer for his kind assistance in preparing this blog post.

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