1Expanded version with added footnotes of a presentation of Prof. Gabrielle Kaufmann-Kohler at the Petersberger Schiedstage in February 2003.
60So Mock/Ginsburg, p. 381. It appears correct not to resort to the law governing the substance of the dispute. A choice of law clause in a contract would not cover issues such as privileges, nor would the law determined to be applicable failing a contractual choice. Applying the law with the closest connection to the evidence at issue also appears in line with the parties' legitimate expectations.
61Which resembles to some extent the cumulative application of the law of the court of origin (the court in which the action is pending and which issued the letters rogatory) and the court of execution (the court which carries out the request and takes the evidence) found in Article 11 Hague 1970 Evidence Convention.
62See Rule 26(b)(3) Federal Rules of Civil Procedure. See also Teply/Whitten, op.cit., p. 748.
63See for example Lücke/Walchshüfer, Münchener Kommentar zur Zivilprozessordnung, ad § 383, n° 37 and § 203 StGB (Strafgesetzbuch).