An Analysis Of The Illegality Of United States Extraterritorial Discovery In The View Of International Law

With the deepening of economic globalization,there are more and more transnational civil and commercial litigation.As the key content of litigation,evidence often exists in more than one country,so the problem of obtaining foreign-located evidence arises.The Hague Evidence Convention is the multilateral convention to which many countries have acceded.In disregard of the obligations of the United States as a contracting party to the Convention,the Courts of the United States adopted domestic law to enforce extraterritorial discovery.American courts first confirm the two preconditions that for discovery the court has personal jurisdiction and there is a real conflict of laws,and then conduct an American-style analysis of international comity on the grounds that the Hague Convention on Evidence is not exclusive.Through a forum-biased analysis,the courts decide to apply the Federal Rules of Civil procedure for extraterritorial discovery.Based on the analysis of comity in American courts at all levels in the judgment,the courts’ consideration includes the importance of information,the degree of specificity of the request,whether the information originated from United States,the availability of alternative means of securing the information,the interests and information country interests balance,difficulty of complying with the request,and the good faith of the party resisting discovery.In the analysis of various elements,American courts change the connotation of elements themselves,magnify the interests of the United States,abuse of discretion and so on,so that the analysis results are almost in the favor of the American parties,that is,the domestic law of the United States is applied to the discovery of evidence.And in view of the extraterritorial evidence discovery of the United States,other countries have raised diplomatic protests,and passed legislation to restrict the acquisition of extraterritorial evidence in their own countries,requiring the United States to obtain evidence through judicial cooperation.In spite of foreign opposition and the plight of the foreign respondent,the United States requires the foreign parties to comply with the discovery order by means of the punishment of contempt of court.As a state party to the Hague Evidence Convention,the practice of the United States Court violates the principle of adherence to the Treaty.As an equal subject in the international community,any state has the highest power within its territory.The United States violated the principle of national sovereignty by forcing foreign claimants to comply with its domestic orders.In addition,due to the development of international law and domestic law of the development of differences,although through the judicial assistance outside forensics customary international law has not been formed,but it belongs to the international common practice,the United States unilaterally discovery is inconsistent with the international practice,therefore,integrated the above aspects,America’s approach is illegality under international law.By analyzing the illegality of American courts’ practices,this paper summarizes the analysis rules of American courts in the application of their own laws,finds out what China can do,and puts forward corresponding suggestions.