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Equity, Prosperity and Dispute Resolution Across Borders
Letters Rogatory are the customary international law method for securing the assistance of the judicial authorities of a foreign state in aid of litigation.
They are the residual or default means available where relations between the states on point are not governed by treaty. Authority of consular representatives to issue and execute letters rogatory may also be expressly granted by treaty, for example in article 5 of the Vienna Convention on Consular relations, consuls are given express authority by virtue of their exquatur to execute letters rogatory and communicate them to the competent authorities within their consular district.
The letter rogatory is drawn by the solicitors for the party requiring foriegn judicial assistance in order to bring their evidence in the forum. The letter is framed as a letter of request and transmitted through the diplomatic channel.
"The diplomatic channel" usually entails
The letter should bear the seal of the Australian Court and be appropriately drafted and accompanied by a translation into the official language of the foreign country together with appropriate undertakings as to costs.
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.
When letters rogatory are executed by the foreign authorities, they are generally returned to the Department of Foreign Affairs and Trade via the diplomatic channel. Requesting counsel is also notified. At the request of the court, the executed letter rogatory and proof of service or evidence produced can be returned directly to requesting counsel.
The drafting and engrossing of letters rogatory is a specialist task.