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Research On Conflicts Of Extraterritorial Discovery

Posted on:2003-04-26Degree:MasterType:Thesis
Country:ChinaCandidate:X B WenFull Text:PDF
GTID:2156360122967277Subject:Civil and Commercial Law
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This paper is mainly concerned about theoretic research. Discovery is an important part of the U.S. civil procedure. It is not only playing a substantial role in domestic litigation, but also is often used by U.S. litigants, so that a lot of conflicts of extraterritorial discovery have been produced. This paper aims at the follow goals: first, it gives a general introduction of the U.S. discovery system and its extraterritorial application, revealing the production, scope and limits of the extraterritorial effect of discovery, so that we can understand the extraterritorial application of discovery from the lay of system framework. Second, by explaining the emergence and forms of expression of conflicts of extraterritorial discovery, and analyzing the cause and substance of conflicts, it demonstrates the relation between extraterritorial discovery and state sovereignty. Third, it provides information about other nations' measures against U.S. extraterritorial discovery, including diplomatic objections, blocking statutes and other measures. It also introduces the exception of the Hague Evidence Convention about extraterritorial discovery. Then it evaluates the effect of the system, and prospects for the reducing and avoidance of conflicts. At last, combined with the practice of Chinese civil procedure, it analyses some effects by U.S. extraterritorial discovery, and then tables some pertinent proposals.Although many scholars have carried out overall and deep researches in U.S. discovery system, but it is still not enough to study about conflicts of extraterritorial discovery, which is the cross point of private international law and civil procedure law. The research about this is still a gap in China. The author first studies the extra territory effect of U.S. discovery, expounds the applicable methods of extraterritorial discovery, explains the causes of conflicts, and lists the forms of expression of conflicts. With the introduction about other nations' measures against extraterritorial discovery and the reservation clause of the Hague Evidence Convention, and considering the actual situation of our country, the author put forward some proposals against U.S. extraterritorial discovery. Finally, the author forecasts the prospect of resolving conflicts of extraterritorial discovery, and points out that theway to reduce and avoid the conflicts is to strengthen international judicial assistance among all nations.By reading literatures, sorting out materials and analyzing cases, with comparison method and balancing of interest, the author draws his own conclusions through comparison, analysis and induction. The conclusions of this paper are as the follows: (1) Discovery is a indispensable part of the U.S. civil procedure, so that its extraterritorial application is decided by American litigation concept; (2) There are many ways of the application of U.S. conflicts of extraterritorial discovery, mainly including production of documents and deposition, so it is diverse to discovery; (3) The production of conflicts of extraterritorial discovery is mainly because of the abroad scope of discovery. The scope is so wide that discovery does not accord with litigation systems of other nations, furthermore, discovery will violate the interest of other countries; (4) Because the U.S. courts carry out extraterritorial discovery according with domestic laws, other countries have to put forward objection and protest, such as diplomatic notes and making nondisclosure statutes; (5) The better way to reduce and avoid conflicts of extraterritorial discovery is the compromise settlement among all nations and strengthening international judicial assistance.
Keywords/Search Tags:discovery, extraterritorial application, conflict, blocking statutes
PDF Full Text Request
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