Gathering Evidence in Aid of Foreign Litigation Guide |
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Bulgaria |
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| (Europe) Firm Penkov, Markov & Partners Updated 21 Mar 2022 | |
| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | Yes. There are generally two applicable regimes with respect to gathering evidence in aid of foreign litigation. For more information, please see below the answer to "Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes." below. It should be noted that there are a number of bilateral treaties between Bulgaria and other states which also cover the subject matter of foreign aid, so if a respective country does not seem to be able to utilize any of the methods described in point 2 below, the potential applicability of such bilateral treaty should also be investigated on a case-by-case basis. |
| Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes. | Yes, Bulgaria is a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”). However, since Bulgaria is a member state of the European Union, the Regulation 1206/2001 of 28 May 2001 on Cooperation Between the Courts of the Member States in the Taking of Evidence in Civil or Commercial Matters (the “Regulation”) is applicable between Bulgaria and the other member states (except Denmark). The Regulation shall prevail over the Hague Evidence Convention when applicable. In particular, the Regulation shall apply in civil or commercial matters where the court of a member state, in accordance with the provisions of the law of that state, requests (a) the competent court of another member state to take evidence; or (b) to take evidence directly in another member state. |
| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | Yes. Request by an EU member state should be submitted to the respective Bulgarian regional court within whose geographical jurisdiction the taking of evidence is to be performed. Additionally, the district court should be competent to approve the request when the latter concerns a direct taking of evidence by the foreign court. The request should be made using form A – Annex to the Regulation. On other hand, if the request is being sent by a non-member state and party to the Hague Evidence Convention, it should be submitted before the Bulgarian Ministry of Justice. Afterward, the Ministry of Justice will forward the request to the competent court or administrative authority. In both cases, the request should be made in Bulgarian or translated into Bulgarian, including all the accompanying documentation. |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | There is no restriction in this regard, as any type of admissible evidence could be sought including documents, depositions, questioning of a witness, examination with respect to the collection of items of evidence, etc. In any case, the evidence requested should be intended for use in judicial proceedings, commenced or contemplated. |
| Who bears the burden of showing whether any privileges apply? | In general, the burden of proof of any privileges lies on the party which claims that such privileges apply. When the Regulation is applicable, however, the requested court/administrative authority should verify whether the request for collection of evidence is admissible under the local regulation. When the privileges arising from the legislation of the jurisdiction of the requesting court, the latter should bear the burden to prove the existence of the privileges. When the Hague Evidence Convention is applicable, as per the Declaration of the Republic of Bulgaria made in Article 11, paragraph 2, the Bulgarian judge who reviews a letter of request under the Hague Evidence Convention is competent to recognize the privileges and duties to refuse to give evidence existing under the law of a third state provided that the letter of request contains information about the privileges and duties to refuse to give evidence under the law of that third State necessary for the application of Article 11, paragraph 2. |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | No, since the information sought should be allowable in accordance with the legislation of the jurisdiction of the asked country, which assessment would be made by the requested court. |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | According to the Regulation, the requesting court could request the usage of video or telephone conference calls. However, if the requested court is not able to fulfill the request for remote communication due to incompatibleness with its law or due to practical difficulties, it shall notify the requesting court. In general, the Bulgarian court would allow for remote conduct of depositions. |
| Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings? | Yes, there are two European instruments of this nature: Article 45 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), and Article 5, para. 1 of Council Regulation (EC) No 2271/96 of 22 November 1996 protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom. |
| May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice? | There are no restrictions in this regard, thus any Bulgarian citizen may give evidence in aid of foreign proceedings voluntarily. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | Both regimes described above shall be applicable for the arbitration proceedings as well. However, in order to be reviewed by the Bulgarian court, the request for collection of evidence should be sent through an institutionalized state court of a member-state/state-party to the Hague Evidence Convention and not by an arbitration court that is seated in the respective jurisdiction. Thus, the respective arbitration court should request from its local competent court to contact the Bulgarian court for gathering evidence in aid of the foreign arbitration proceedings. |
Gathering Evidence in Aid of Foreign Litigation Guide
Yes. There are generally two applicable regimes with respect to gathering evidence in aid of foreign litigation. For more information, please see below the answer to "Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes." below. It should be noted that there are a number of bilateral treaties between Bulgaria and other states which also cover the subject matter of foreign aid, so if a respective country does not seem to be able to utilize any of the methods described in point 2 below, the potential applicability of such bilateral treaty should also be investigated on a case-by-case basis.
Yes, Bulgaria is a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”). However, since Bulgaria is a member state of the European Union, the Regulation 1206/2001 of 28 May 2001 on Cooperation Between the Courts of the Member States in the Taking of Evidence in Civil or Commercial Matters (the “Regulation”) is applicable between Bulgaria and the other member states (except Denmark). The Regulation shall prevail over the Hague Evidence Convention when applicable.
In particular, the Regulation shall apply in civil or commercial matters where the court of a member state, in accordance with the provisions of the law of that state, requests (a) the competent court of another member state to take evidence; or (b) to take evidence directly in another member state.
Yes. Request by an EU member state should be submitted to the respective Bulgarian regional court within whose geographical jurisdiction the taking of evidence is to be performed. Additionally, the district court should be competent to approve the request when the latter concerns a direct taking of evidence by the foreign court. The request should be made using form A – Annex to the Regulation.
On other hand, if the request is being sent by a non-member state and party to the Hague Evidence Convention, it should be submitted before the Bulgarian Ministry of Justice. Afterward, the Ministry of Justice will forward the request to the competent court or administrative authority.
In both cases, the request should be made in Bulgarian or translated into Bulgarian, including all the accompanying documentation.
There is no restriction in this regard, as any type of admissible evidence could be sought including documents, depositions, questioning of a witness, examination with respect to the collection of items of evidence, etc.
In any case, the evidence requested should be intended for use in judicial proceedings, commenced or contemplated.
In general, the burden of proof of any privileges lies on the party which claims that such privileges apply.
When the Regulation is applicable, however, the requested court/administrative authority should verify whether the request for collection of evidence is admissible under the local regulation. When the privileges arising from the legislation of the jurisdiction of the requesting court, the latter should bear the burden to prove the existence of the privileges.
When the Hague Evidence Convention is applicable, as per the Declaration of the Republic of Bulgaria made in Article 11, paragraph 2, the Bulgarian judge who reviews a letter of request under the Hague Evidence Convention is competent to recognize the privileges and duties to refuse to give evidence existing under the law of a third state provided that the letter of request contains information about the privileges and duties to refuse to give evidence under the law of that third State necessary for the application of Article 11, paragraph 2.
No, since the information sought should be allowable in accordance with the legislation of the jurisdiction of the asked country, which assessment would be made by the requested court.
According to the Regulation, the requesting court could request the usage of video or telephone conference calls. However, if the requested court is not able to fulfill the request for remote communication due to incompatibleness with its law or due to practical difficulties, it shall notify the requesting court. In general, the Bulgarian court would allow for remote conduct of depositions.
Yes, there are two European instruments of this nature:
Article 45 of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation),
and
Article 5, para. 1 of Council Regulation (EC) No 2271/96 of 22 November 1996 protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom.
There are no restrictions in this regard, thus any Bulgarian citizen may give evidence in aid of foreign proceedings voluntarily.
Both regimes described above shall be applicable for the arbitration proceedings as well.
However, in order to be reviewed by the Bulgarian court, the request for collection of evidence should be sent through an institutionalized state court of a member-state/state-party to the Hague Evidence Convention and not by an arbitration court that is seated in the respective jurisdiction. Thus, the respective arbitration court should request from its local competent court to contact the Bulgarian court for gathering evidence in aid of the foreign arbitration proceedings.