Evidence is the basis of every legal proceeding. In international disputes, crucial evidence is often located abroad. In our practice, we work with various routes: the EU Evidence Regulation, the Hague Evidence Convention, or the Dutch obligation to produce evidence under Article 843a of the Dutch Code of Civil Procedure. Which route is appropriate depends on the type of evidence, the jurisdiction, and the urgency. An incorrect approach leads to the rejection of the evidence in the proceedings.
What is the legal problem?
Collecting international evidence requires knowledge of legal aid, local procedural law, privacy rules, and sanctions law. What is permissible in the Netherlands may be prohibited elsewhere. An incorrect approach leads to the rejection of evidence in the proceedings, or worse: criminal information gathering under the GDPR. A growing problem for commercial disputes, especially with digital evidence.
What does the law say?
The Hague Evidence Convention of 1970 governs mutual legal assistance in obtaining evidence between contracting parties. Within the EU, this has been replaced by Regulation (EU) 2020/1783 (recast of the Evidence Regulation, applicable as of 1 July 2022). Under common law regimes (US, UK), discovery is very broad. The Dutch obligation to produce evidence under Section 843a of the Dutch Code of Civil Procedure is more limited but effective. The GDPR and local privacy rules set limits on data acquisition.
For arbitration, the IBA Rules on the Taking of Evidence in International Arbitration (2020) serve as the common standard.
What risks do companies face?
Unauthorized data acquisition can be punishable under the GDPR (fines of up to 4 percent of global turnover) and sectoral laws. Insufficient evidence weakens your case and can lead to a loss. Slow legal aid delays proceedings for years. US discovery can entail exorbitant costs. Evidence without authentication is rejected by judges. Sanctions and export controls can block data transfer.
Practical example from our practice
We represented a Dutch company that required evidence from an Indian subsidiary for a dispute in the Netherlands. A request under the Hague Evidence Convention took approximately a year. In the following dispute, we opted for arbitration under IBA Rules: the arbitrator decided on a Redfern Schedule within three weeks. Indian witnesses were heard via video link. Procedural obstacles were largely avoided, resulting in a total time saving of eight months.
What can you do?
Prepare evidence gathering. Combine routes: legal assistance under Regulation 2020/1783, contractual audit rights, voluntary cooperation. For digital evidence: use forensic experts and authenticate chains. Make IBA Rules explicit under arbitration. Document chains (chain of custody) carefully. Take GDPR and privacy laws into account. See also our article on The role of experts in international disputes.