OSUNA GONZALEZ Y ASOCIADOS, S.C.
ABOGADOS - ATTORNEYS AT LAW
A Mexican Law Firm Specializing in Cross-border Dispute Resolution and Arbitration
In the July 17, 2014 edition of the Federal Gazette, the Mexican Ministry of Foreign Affairs published the Convention on the Use of Videoconferencing In International Cooperation Between Judicial Systems (“the Convention”), and its Protocol.
The Convention recognizes the importance of technology as a means to provide a more agile, efficient and effective administration of justice, by providing for international judicial cooperation by way of the use of videoconferencing technology.
Article 1 addresses the scope of the Convention. In its broad wording it allows for the use of videoconferencing technology in civil, commercial and criminal matters and others in which the parties may expressly agree upon.
Article 2 of the Convention describes videoconferencing as the interactive means of communication that allows for the simultaneous transmission, in real time, of image, sound and data at a distance to one or more persons that provide their statement that are far from the competent authority for a process, with the purpose of taking the statement under the terms of the applicable law of the States involved in the process.
Article 3 of the Convention addreses the issue of the relationship between local and international Law. Under this provision, videoconferencing may be used when it is does not contradict domestic law of the parties; there must be a concret and individualized requested, transmitted from the requesting authority to the authority whose assistance is sought. It must be accepted by the assisting authority and it must be technically feasible. The Convention states that it is subsidiary to other obligations of the parties.
The Conduct of the Videoconference Hearing
Under article 4 of the Convention, if an authority needs to examine a person in the context of a judicial proceeding, as a party, witness or expert witness, or in pre-court proceedings of investigation, that person may be deposed by videoconference provided the following is satisfied:
a) The request to use videoconference must include the identification of the judicial authority making the request, and must provide a case number, name and office of the authority that shall conduct the proceeding, and if applicable
With regards to the actual conduct of the videoconference, article 5 of the Convention provides that the examination shall be made under the direction of the competent authority making the request or of under that judicial authority’s direction. Said provision also provides that if necessary, an interpreter may be made available. The authority before whom the interrogation takes place shall identify the person. The executing authority must provide security for this the parties involved.
The process provided for under this convention may also be used for criminal cases, unless a reservation is made to that effect by a contracting state. (Article 7 of the Convention).
In addition, Mexico singed on to a Protoco to the Conventionl, which provides some additional rules for its actual operation. (Hereinafter, the Protocol).
Amongst the issues address are compensation, language, and the transmission of requests.
Regarding the costs, the expenses involved in conducting the videoconference and the payment to the interpreters shall be borne by the requesting party, as well as the compensation paid to witnesses and experts, as well as their travel expenses, or shall be reimbursed by the requesting authority, unless the executing party waives its right to be reimbursed for all or part of these expenses.
With regards to the language to conduct the videoconferences, the video hearing may be conducted in Spanish or Portuguese, regardless of the official language of the requesting or executing state. Parties to the Protocol and Convention may make a declaration that the they shall only receive the request if made in a specific language.
Regarding the transmission of videoconference requests, these may be transmitted by electronic means, provided a written proof of transmission is generated in a manner that allows for its authenticity.
The states signatory to the Convention and Protocol are Argentina, Brasil, Chile, Colombia, Costa Rica, El Salvador, Guatemala, Spain, Panamá, Portugal, Dominican Republic, Bolivia, Cuba, Ecuador, Honduras, Mexico, Peru, Uruguay and Venezuela.
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