How is information and evidence submitted to the court scrutinised? For example, is cross-examination available and if so, how frequently is it employed in practice?

Intellectual Property

Bulgaria Small Flag Bulgaria

Evidences are submitted mostly in writing. Experts and witnesses are cross-examined during open hearings. Experts are appointed in almost every IP case as there are no special IP courts in Bulgaria.

Malaysia Small Flag Malaysia

Writ: Evidence tendered through witnesses and is open to cross examination. It is employed in every case.

Originating Summons: the Court will look at affidavit evidence and rebuttals.

Belgium Small Flag Belgium

Courts freely assess evidence submitted by parties. Written documents – especially if agreed or approved by both parties – will be given more weight than oral declarations.

In their submissions, parties must discuss the evidence they submitted.

The Belgian Judicial Code does not provide for a system of examination or cross-examination of parties and their witnesses, although a judge may order a call for witnesses but that is extremely rarely done.

Singapore Small Flag Singapore

Evidence at trial is provided via affidavits of evidence in chief, on which the deponents are cross-examined. Evidence during interlocutory proceedings is tendered by way of affidavit.

Cross-examination is a given at any trial.

For expert witnesses, the court has the discretion to order a hot-tubbing for experts instead of cross-examination.

France Small Flag France

The content and strength of evidence submitted by parties are freely assessed by the court, it being specified that:

  • the parties can freely discuss the probative value of an exhibit or the conclusions drawn from evidence.
  • the probative value can vary according to the type of evidence. For instance:

    - a stronger probative value will be granted to a judicial expertise compared to an amicable one.
    - a bailiff report is deemed to be valid unless an allegation of forgery is made.

French civil procedure does not provide any process of cross-examination of witnesses.

Portugal Small Flag Portugal

R: In Court or arbitration proceedings it is possible to call witnesses in order to obtain evidence. Technicians/experts may also be called if Judges believe that their cooperation is needed. There are no specific rules in this matter, general rules must be followed. It is really common to call witnesses and technicians in what regards do patents or copyright disputes. It is less common regarding other IP rights.

India Small Flag India

Information and evidence is produced before the court and taken on record in the form of documents, exhibits, and witness testimony. Admission and denial of documents is an important part of the process. Cross examination of witness is a necessary part of the trial stage and frequently practiced.

Greece Small Flag Greece

  • Under the current civil procedure system (in force as from January 2016), in main proceedings witness testimonies are submitted in the form of sworn affidavits, where cross-examination is not possible. As already noted in Q.18,in exceptional circumstances, the court may require that witnesses are examined and cross-examined during the hearing. The system does not apply to preliminary injunction proceedings where witnesses (one from each side) are examined and cross-examined during the hearing. Sworn affidavits and/or expert opinions are also available in preliminary injunction proceedings.
  • In criminal proceedings, the case file is the responsibility of the prosecuting authorities. However, parties to the proceedings, either at pre-trial, or during trial, may bring to the authorities' or the court's attention documents and evidence, pertinent to the case. Witnesses are examined and cross-examined during a criminal court hearing. In rare circumstances, where a witness is unavailable and the court finds it appropriate, the court may refer to the pre-trial testimony of such witness.
  • In administrative proceedings, the case file is the responsibility of the administrative authorities. However, parties to the proceedings, either at pre-trial, or during trial, may bring to the authorities' or the court's attention documents and evidence, pertinent to the case. Witnesses are very rarely examined in administrative proceedings. They may be examined and cross-examined either at the hearing, following prior notification, or before a Notary Public, again following prior notification. In both cases, cross-examination is available.

Japan Small Flag Japan

Parties may file with a court a request for an examination of a witness. Generally, a witness is examined in the following order: by the party who has requested the examination, the other party, and the presiding judge.

Mexico Small Flag Mexico

Cross-examination is not available in our jurisdiction. The Courts shall follow certain guidelines and principals when analysing some piece of evidence. Such guidelines and principals are provided in our legislation but also in our jurisprudence.

China Small Flag China

Cross-examination by a party's counsel of fact witnesses and/or expert witnesses is available in China in instances where such evidence is led. However, this by no means happens in all IP cases. In practice, China's legal regime prefers documentary evidence, scrutiny of which takes place via court debate led by counsel.

United Kingdom Small Flag United Kingdom

In the High Court, most witnesses providing expert and fact evidence will be called by the opponent for cross-examination during the trial. The length of cross-examination will depend on the nature of evidence given, how important it is to the case and its complexity. Typically an expert witness will be cross-examined for between 1-2 days. The barristers advising on a case will agree a timetable for the trial and the cross-examination of witnesses.

In the IPEC, the Court intends to provide more streamlined procedures. As a result cross-examination is less routine and, if it takes place, is limited to specific issues, making it considerably shorter in duration. An IPEC trial is limited to 2 days.

South Africa Small Flag South Africa

Patents and Designs
During a trial, cross-examination is available to scrutinise expert witnesses which is almost always employed in practice.

Plant Breeders’ Rights
During a trial, cross-examination is available to scrutinise expert witnesses which is almost always employed in practice.

Trade Marks and Copyright
In most cases, proceedings are filed by way of application and only documentary evidence is filed. However, in the event that it is necessary to file action proceedings, such as in a case where there is a dispute of fact, oral evidence by witnesses takes place and the witnesses may be cross-examined.

UAE Small Flag UAE

Evidence submitted to the UAE courts shall be by way of written submissions supported by documentary evidence, translated into Arabic (if in another language). The UAE Courts do not expect to see, and actively deter, witness statements, affidavits and other such legal instruments. As a result, witnesses of facts do not give oral evidence, unless a party is granted the right to call a witness.

The officials expect to see documentary evidence such as invoices, order forms, advertisements, registration certificates and such documents. Where the documents are issued outside of the UAE, such as foreign trade mark registration certificates, these will need to be legalised to the UAE Embassy in the country of issue.

Philippines Small Flag Philippines

Direct testimonies in intellectual property cases before the courts take the form of question-and-answer affidavits, also known as judicial affidavits. The affiant-witnesses who execute such affidavits must always be presented for oral cross-examination, otherwise, their judicial affidavits and testimonies are expunged from the court records. Documentary evidence attested to by such witnesses is already appended to their judicial affidavits.

United States Small Flag United States

Evidence is almost always introduced to the court through a sponsoring witness who has personal knowledge of the evidence and can confirm the veracity of what is offered. Sometimes, an expert witness without personal knowledge of the evidence can be used to introduce the evidence. Opposing parties almost always seek to cross-examine the sponsoring or expert witness.

Germany Small Flag Germany

Courts may order the parties to attend the hearing and may hear the parties and/or witnesses. Cross-examination is not available.

Switzerland Small Flag Switzerland

In Swiss civil court actions it is upon the parties to submit and substantiate any evidence they wish to bring forth. The judges will freely evaluate the information and evidence submitted. The parties can name witnesses and submit expert statements which the court evaluates. The court can order an evidentiary hearing where the judge(s) will question the parties and witnesses named by the parties. There is no cross-examination available under Swiss law but in these hearings, the parties or their legal representatives will be able to submit questions to the judge which he or she will then relay to the person questioned.

Ukraine Small Flag Ukraine

The parties to the proceeding are entitled to scrutinize and raise objections against evidence of each other. Then, all evidence is examined by the court. Examination of experts is available. In general jurisdiction court, examination of witnesses is also possible. Cross-examination of witnesses is not available; parties question witnesses one by one.

Turkey Small Flag Turkey

The evidence shall be assessed by the judge freely. Under Turkish Law, only judges are entitled to conduct the examination procedure, therefore, there is no provision for cross-examination on the contrary to the indictment system. Cross-examination is comparable to the “direct questioning” concept provided under CPC in doctrine but the difference is that indictment system provides that cross-examination shall be conducted by attorneys while Turkish Law provides that examination shall be conducted by the judge and in that respect, the attorneys are not able to take part in the examination in practice.

Sweden Small Flag Sweden

The court must decide the case based on all the facts of the matter, in accordance with the principle of free evaluation of evidence. Generally, the court applies the balance of probability test. In principle, the owner of the rights bears the primary burden of proof to establish infringement.

The most common form of evidence used in infringement proceedings is documentary evidence. Witness evidence is also commonly used and the principle that witnesses must be heard in person before the court is central in Swedish procedural law. Witnesses are heard at trial and are subjects to cross-examination by the parties.

Spain Small Flag Spain

The parties may request as evidence for the trial hearing: the other party cross-examination; expert opinions; judicial recognition; witnesses’ cross-examination.

Witnesses may be summoned by the judge after being proposed by the parties. The Court may also call witnesses on its own initiative. It is customary to call the inventor especially in patent invalidation proceedings, either as party or as witness. Giving false testimony is a criminal offense under Spanish law, and witnesses and experts are specifically warned before their deposition begins.

It is for the court to decide the necessity of carrying out the evidence requested by the parties (in addition to the documentary evidence filed in proceedings) on a case to case basis.

Israel Small Flag Israel

Israel has an adversarial legal system, and accordingly, witness testimony is presented in court and subject to cross-examination.

The testimony of witnesses is necessary to establish infringement before the courts. That said, most direct testimony is filed as an affidavit, and witnesses are only subjected to cross-examination in court.

Brazil Small Flag Brazil

The content and strength of evidence submitted by parties are freely assessed by the court. A recent change in the Brazilian Code of Civil Procedure allows cross-examination, which however is not that much employed in solving IP cases in Brazil.

Updated: November 2, 2017