92
THE NEW ZEALAND GAZETTE.
[No. 4

taken in the territory of the other High Contracting Party,
such evidence may be taken in any of the ways prescribed in
Articles 7 and 8.
(b) For the purposes of the present convention the words—
(1) “Taking of evidence” shall be deemed to include the
taking of the statements of a Plaintiff or Defendant,
on oath or otherwise, the submission to a Plaintiff,
Defendant, expert, or any other person of any oath
with regard to any legal proceedings and the pro-
duction, identification, and examination of documents,
samples, or other objects ;
(2) “Witness” includes any person (whether Plaintiff,
Defendant, expert, or other person) from whom any
evidence as defined above is required to be taken.

Article 7.

(a) The judicial authority by whom the evidence is required
may, in accordance with the provisions of his law, address
himself by means of “Letters of Request” to the competent
authority of the country where the evidence is to be taken,
requesting such authority to take the evidence.
(b) The “Letter of Request” shall be drawn up in the
language of the country where the evidence is to be taken, or
be accompanied by a translation in such language. Such
translation shall be certified as correct by a Consular Officer
of the High Contracting Party from whose judicial authority
the request emanates. The “Letters of Request” shall state
the nature of the proceedings for which the evidence is required,
giving all necessary information in regard thereto, the names
and descriptions of the parties thereto, and the names,
descriptions, and addresses of the witnesses. They shall also
either be accompanied by a list of interrogatories to be put
to the witness or witnesses, or as the case may be, by a
description of the documents, samples, or other objects to be
produced, identified, or examined, and a translation thereof
certified as correct in the manner heretofore provided or shall
request the competent authority to allow such questions to
be asked viva voce as the parties or their representatives shall
desire to ask.
(c) The “Letters of Request” shall be transmitted—
In England, by a Portuguese Consular Officer to the Senior
Master of the Supreme Court of Judicature :
In Portugal, by a British Consular Officer to the President
of the Court of Appeal in the district in which the evidence
is to be taken.
In case the authority to whom “Letters of Request” are
transmitted is not competent to execute them, the “Letters
of Request” shall be forwarded without any further request
to the competent authority of his own country.
(d) The competent authority to whom the “Letters of
Request” are transmitted or forwarded shall give effect
thereto and obtain the evidence required by the use of the
same compulsory measures and the same procedure as are
employed in the execution of a commission or order emanating
from the authorities of his own country, except that, if a
wish that some special procedure should be followed is
expressed in the “Letters of Request,” such special procedure
shall be followed in so far as it is not incompatible with the
law of the country where the evidence is to be taken.
(e) The Consular Officer, by whom the “Letters of Request”
are transmitted, shall, if he so desires, be informed of the date
and place where the proceedings will take place, in order that
he may inform the interested party or parties who shall be
permitted to be present in person or to be represented if they
so desire.
(f) The execution of “Letters of Request” which comply
with the preceding provisions of this Article can only be
refused—
(1) If the authenticity of the “Letters of Request” is not
established ;
(2) If in the country where the evidence is to be taken the
execution of the “Letters of Request” in question
does not fall within the functions of the Judiciary ;
(3) If the High Contracting Party in whose territory the
evidence is to be taken considers that his sovereignty
or safety would be compromised thereby.
(g) In every instance where the “Letters of Request” are
not executed by the authority to whom they are addressed,
the latter will at once inform the Consular Officer by whom
they were transmitted, stating the grounds on which the
execution of the “Letters of Request” has been refused, or
the judicial authority to whom they have been forwarded.

Article 8.

(a) The evidence may also be taken, without any request
to or the intervention of the authorities of the country in
which it is to be taken, by a person in that country directly
appointed for the purpose by the court by whom the evidence
is required. A Consular Officer of the High Contracting Party
whose court requires the evidence or any other suitable person
may be so appointed.

(b) A person so appointed to take evidence may request the
individuals named by the court appointing him to appear
before him and give evidence. He may take all kinds of
evidence which are not contrary to the law of the country
where the evidence is being taken and shall have power to
administer an oath.
(c) Requests to appear issued by such person shall, unless
the recipient is a subject or citizen of the High Contracting
Party for whose judicial authority the evidence is required,
be drawn up in the language of the country where the evidence
is to be taken, or be accompanied by a translation into such
language.
(d) The evidence may be taken in accordance with the
procedure recognized by the law of the country for whose
judicial authority the evidence is required, and the parties
will have the right to be present or to be represented by
barristers or solicitors of that country or by any persons
competent to appear before the courts of either of the countries
concerned.
(e) It is understood that where the method of taking
evidence referred to in this Article is employed, the procedure
must be entirely voluntary and no measures of compulsion
can be employed and the admissibility of evidence so taken
remains a matter for the determination of the respective
courts of the High Contracting Parties in accordance with
their law.

Article 9.

The fact that an attempt to take evidence by the method
laid down in Article 8 has failed owing to the refusal of any
witness to appear or to give evidence, does not preclude a
request being subsequently made in accordance with Article 7.

Article 10.

(a) Where evidence is taken in the manner provided in
Article 7, the High Contracting Party, by whose judicial
authority the “Letters of Request” are addressed, shall
repay to the other High Contracting Party any expenses
incurred by the competent authority of the latter in the
execution of the request in respect of any charges and expenses
payable to witnesses, experts, interpreters, or translators,
the cost of obtaining the attendance of witnesses who have
not appeared voluntarily, and the charges and expenses
payable to any person whom such authority may have
deputed to act in cases where the law of his own country
permits this to be done, and any charges and expenses in-
curred by reason of a special procedure being requested and
followed. These expenses shall be such as are usually allowed
in similar cases in the courts of the country where the evidence
has been taken.
(b) The repayment of these expenses shall be claimed by
the competent authority by whom the “Letters of Request”
have been executed from the Consular Officer by whom they
were transmitted when sending to him the documents esta-
blishing their execution.
(c) Except as above provided, no fees of any description
shall be payable by one High Contracting Party to the other
in respect of the taking of evidence.

IV.—JUDICIAL ASSISTANCE FOR POOR PERSONS, IMPRISON-
MENT FOR DEBT, AND SECURITY FOR COSTS.

Article 11.

The subjects or citizens of one High Contracting Party
shall enjoy in the territory of the other High Contracting
Party a perfect equality of treatment with subjects or citizens
of that High Contracting Party as regards free judicial
assistance for poor persons and imprisonment for debt ;
and, provided that they are resident in any such territory,
shall not be compelled to give security for costs in any case
where a subject or citizen of such other High Contracting
Party would not be so compelled.

V.—GENERAL PROVISIONS.

Article 12.

Any difficulties which may arise in connection with the
operation of this Convention shall be settled through the
diplomatic channel.

Article 13.

The present Convention, of which the English and Portu-
guese texts are equally authentic, shall be subject to rati-
fication. Ratifications shall be exchanged in Lisbon.
The Convention shall come into force one month after the
date on which ratifications are exchanged and shall remain
in force for three years after the date of its coming into force.
If neither of the High Contracting Parties shall have given
notice through the diplomatic channel to the other not less
than six months before the expiration of the said period of
three years of his intention to terminate the Convention,
it shall remain in force until the expiration of six months
from the day on which either of the High Contracting Parties
shall have given notice to terminate it.