Attorneys drafting international contracts and making decisions about a choice of law should specially consider the rules of evidence. The rules of evidence vary from country to country and, particularly, when countries have dissimilar law systems. Indeed, the rules of evidence in civil law systems such as the European and Latin American are totally dissimilar to those in common law systems such as the United States. For instance, pre-trial discovery is not a common stage in civil law system proceedings; while it is a fundamental stage in common law systems. This article presents an example of pre-trial discovery in Asian countries as compared to the United States.'
Asian countries have different legal systems including common law, civil law, theocratic law, and a hybrid between civil and common law. Hence, regardless of the legal system, pre-trial discovery, as conceived by the U.S. system, is totally absent in Asia. This fact should be taken into consideration when drafting an Internet or any other contract involving an Asian country. Following, there is a summary of the pre-trial or discovery rules in some Asian countries as presented by the Lexis/Nexis article titled "Discovery Rules, Asia/Southeast Asia,” published in 2008.
China- It has a combination of civil law and socialist system. In China, as in most legal systems, the evidence is collected before the trial, but there is no pre-trial discovery as in the U.S. Permitted evidence are (1) documentary; (2) physical; (3) audio-visual; (4) witness testimony; (5) party statements; (6) expert testimony or conclusions; and (7) records. Courts are able to collect evidence if a party cannot provide that evidence; this includes evidence from third parties and from individuals with knowledge about the matter to be tried. Testimonies may be reviewed by the person providing them and they can make corrections or clarifications as they deem appropriate.
Hong Kong- Hong Kong has a strictly common law system. Thus, pre-trial discovery is similar to those in England and the United States. Yet, Hong Kong will not execute letters of request for the purpose of obtaining pre-trial discovery of documents despite being a signatory to the Hague Convention on the Taking of Evidence Abroad.
India- India has a common law system, except Goa, which has a civil law system. Thus, pre-trial discovery is allowed in India and courts have the power to order discovery and inspection of documents. Court may also issue summons to parties required to testify. India judicial system is similar to the American system.
Japan- Japan has a civil law system based on Germanic precepts. Pre-trial discovery for the production of documents is limited in Japan. For instance, the use of interrogatories or depositions is not allowed in Japan. Request for documents must be made through a motion that must specify the type of document requested, its content, and complete identification of the person/agency that holds that document.
Korea- South Korea has a Civil law system based on Germanic precepts; thus, pre-trial discovery, as in any civil law system, does not exist. As in Japan, in South Korea, a party may request the court to call for submission of documents held by another party or institution. However, to make such request, three conditions must be met: (1) the documents must be in the actual possession of the party; (2) the law allows the movant to obtain those documents; (3) the documents were created for the benefit of the movement or as part of a transaction between the movant and the holder of the documents.
Pakistan- Pakistan has an Islamic Law System, also known as Religious Law System. Islamic law systems based its law in religious documents and case law. Judges require both religious and legal training. The judge is the only person allowed to take depositions; he/she then writes a memorandum of the testimony and reads it to the witness, who can make corrections if necessary. These depositions are similar to those in civil law systems where the judge is the person that conducts depositions.
As one may conclude, discovery in some Asian countries may be very problematic or inexistent. This fact should be taken into consideration when drafting an Internet or international contract that involves an Asian nation. Sometimes the American attorney takes pre-trial discovery for granted without realizing the enormous differences that exist when it comes to the rules of evidence.