Проблемы получения и представления доказательств в международном гражданском процессе
The article offers an analysis of the issues of taking evidence in the transnational civil procedure. The research methodology is based on the use of comparative legal analysis. The normative base of the research includes international legal acts, Russian and foreign national legislation, case-law of foreign courts. The authors emphasize that main difficulties in the resolution of transnational disputes result from the use of different pleading models, different evaluation of evidence aspects (as substantive or procedural categories), and the absence of a universally recognized and mandatory tool of taking evidence in a foreign jurisdiction. Besides, there is nearly always a need of autonomous qualification of each evidence law institute. The research comes to the conclusion that the main issue of judicial evidence in the context of international civil procedure is whether the court may apply foreign law if the substance of the dispute or the form of the transaction are subject to foreign law. Currently the legislation and case-law of common law countries provide for provisions on the possibility to use foreign evidence law and conflict rules determining the law applicable to evidence. In civil law systems there is a common rule that procedural matters are resolved in accordance with lex fori, with a developed system of procedural conflict rules. When there is a need to obtain evidence in a foreign jurisdiction, there are two modern ways to do it: 1) to use the tools of legal assistance provided for by international agreements (whether global or regional); or 2) taking evidence directly from a foreign participant, e.g., without sending an official request in a court of a State where the evidence and/or information are. The first way is the optimal one but its effectiveness is diminished because of a limited number of relevant international treaties’ members. Probably the best methodology in the current situation would be the use of lex mercatoria tools, in particular, the ALI/UNIDROIT Principles of Transnational Civil Procedure.