This Note argues that U.S. courts should examine requests for international judicial assistance from non-U.S. courts by using a standard that looks to both the characteristics of the requesting party and the nature of the non-U.S. proceeding. Part I discusses international judicial assistance generally and examines the 1964 amendments to the Judicial Assistance Statute. Part II of this Note details the different approaches by which the U.S. circuit courts have dealt with the deletion of the word “pending” from the amended Statute. Part III suggests that U.S. courts responding to letters rogatory should uniformly institute a two-part test that reflects not only the congressional intent and public policy concerns that prompted the 1964 amendments, but that also acknowledges the countervailing privacy interests of U.S. residents subjected to such requests. First, courts should look to whether the non-U.S. party is a tribunal or an interested party. If an adjudicatory tribunal is the source of the judicial assistance request, a lesser degree of development of the non-U.S. proceeding should be required for the granting of assistance. If an interested person, however, is the source of the request, the non-U.S. party should be required to show a more developed non-U.S. proceeding before assistance is granted. This Note concludes that, in light of the present confusion over prevailing approaches to the “non-pending” standards, courts should adopt a uniform standard that negotiates a middle path between granting all requests for international judicial assistance and refusing requests for assistance from all but the most advanced non-U.S. proceedings.
Eileen P. McCarthy,
A Proposed Uniform Standard for U.S. Courts in Granting Requests for International Judicial Assistance,
15 Fordham Int'l L.J. 772
Available at: http://ir.lawnet.fordham.edu/ilj/vol15/iss3/8