Describe the trial process. Who is the decision-maker at trial? How is evidence dealt with? Is it written or oral, and what are the rules on cross-examination?
The judicial process in Belgium is adversarial, and competition damages claims are never tried before a jury. Hence, judges are the decision-makers. Those judges are usually legally trained, although the enterprise courts are composed of one professional magistrate who presides over the court and two laymen, who are usually business people.
Most cases start with a writ of summons from the claimant, and move forward with a written phase where parties exchange trial briefs and exhibits, before the case is orally argued at one or several hearings.
The courts enjoy wide discretionary powers in assessing evidence. In commercial matters, the parties may produce all types of evidence which they believe might convince the courts, with specific exceptions such as professional confidentiality rules. In civil cases, written evidence is required for proving legal acts above EUR 375 or when the opposing party relies upon written evidence.
Generally speaking, almost all evidence produced by the parties in Belgian proceedings is written in nature. Oral evidence is generally quite rare, and courts do not rely often to witness hearings because the procedure to hear witnesses is too burdensome. Where witnesses are heard, only the court is allowed to ask them questions. If either the claimant or a defendant wants to ask questions, it must first direct the question to the court, which may then decide whether or not to ask the question. Cross-examination of witnesses is therefore not permitted under Belgian law.
As a substitute for witness hearings, Belgian law allows parties to submit written witness statements, which are subject to formal requirements aimed at securing the veracity of the statements.
Private damages actions are heard by judges without a jury. The decision in State and Federal courts is made by a single judge, and it can be appealed to the State Court of Appeals (or Federal Court of Appeals, in case of federal jurisdiction). As a rule, all evidence is subject to cross-examination. Although rare, courts may enjoin a pre-trial hearing for the discussion of evidence to be presented. The court may also determine another hearing, for the presentation of evidence and trial, although this is more common in non-complex cases. As regards the form, usually evidences are presented to the court in written. Witnesses are cross-examined in specifically set hearings. All parties may question the witness through direct questioning, and the judge may also question the witness.
The competition damages claims will proceed in accordance with the CPL, and the judges will be the primary decision-maker at trial. Pursuant to the CPL, the trial for competition damages claims is conducted in the following sequence:
- Court Investigation
During the trial, there will be a court investigation procedure during which:
(i) the plaintiff states his/her/its claims;
(ii) the defendant states his/her/its defences;
(iii) the plaintiff presents his/her/its evidence (including the statement of Individuals with Expertise) and the defendant conducts the cross-examination on those evidence (including inquiring about the Individuals with Expertise or the witness appointed by the plaintiff);
(iv) the defendant presents his/her/its rebuttal evidence (including the statement of Individuals with Expertise) and the plaintiff conducts cross-examination on those evidence (including inquiring the Individuals with Expertise or witness appointed by the defendant);
(v) the Court-Appointed Professionals (if any) presents their survey or professional report and both the plaintiff and defendant conduct cross-examination on those surveys or reports, including inquiring about the Court-Appointed Professionals;
(vi) the court presents evidence collected by itself (if any) and both the plaintiff and defendant conduct cross-examination on such evidence.
(vii) the plaintiff inquires the defendant about the facts of the case;
(viii) the defendant inquires the plaintiff about the facts of the case; and
(ix) the judges inquire both parties about the facts of the case.
- Court Debate
After the court investigation stage is over, court debate will be conducted in the following order:
(i) oral statements by the plaintiff;
(ii) defence by the defendant; and
(iii) debate between the two sides.
After the court debate, judges will ask both parties about their intention to mediate. Upon receipt of a positive response from both parties, the court will organize the mediation discussion/negotiation immediately after trial or set up other mediate sessions.
- Closing Statement
Both parties briefly present their closing statement respectively.
The decision-maker at trial is the judge presiding during the process at the District Court. Evidence can be submitted either orally or in written form as mentioned above (Question 13).
The claimant has the burden of proof and therefore opens their case first by calling witnesses for the purposes of the examination-in-chief. In many cases the examination-in-chief is done through a written statement which the witness is called upon to orally affirm in Court.
The witnesses called by each party are subject to cross-examination by the opposing party Once the cross-examination is competed by the respective parties, the opposing party may re-examine the witness on matters arising out of the cross-examination. The witnesses may also be questioned by the Court at its discretion but, since the system is effectively adversarial question by the judge are limited and for clarification purposes. Once the testimonies are completed and all the evidence submitted before the Court the parties make their final submissions in the form of oral or written argument.
The trial process in civil and commercial disputes begins by filing a Statement of Claim before the Clerk of the competent Court. Once the Statement of Claim has been filed before the competent Court, the Court Clerk will open a Court file (provided the attendant Court fees have been paid) by entering the case onto the Court’s register (the date of registration marking the official date of commencement of the action before the Court), assign a case number and schedule a hearing for the case to be heard before the Court.
The Court Clerk then provides the Plaintiff with the Statement of Claim containing the case number and the hearing date. The Plaintiff then has the obligation to submit the Statement of Claim to the Court Bailiff Office, which shall notify the Statement of Claim to the Defendant(s) via bailiff notice. The Plaintiff shall then receive the executed Statement of Claim and present it in the first hearing before the Court. In practice, the Bailiff Office serves the notice within ten working days. There are no time limits for the notice to be served to the Defendant, however, the Plaintiff must establish to the Court that the Defendant has been duly notified of the hearing date.
The judge then shall decide the court sessions dates and allow for the submission of memorandums and supporting documents by both parties on equal footing.
Concerning the evidences, as explained earlier, the Egyptian Law No. 25 of 1968 concerning the Proof in Civil and Commercial Matters (“PCCM”) sets the standard of proof principles that the Court and the parties shall abide by. These principles include the following:
(i) The creditor (most likely the Claimant) shall bear the burden of proving obligations, while the debtor (most likely the Defendant) shall bear the burden of proving discharging the debt or the obligation.
(ii) The facts that are to be proved shall be related to the case, and shall be productive and admissible.
(iii) Official documents issued by a public servant or a person commissioned to perform a public service shall be binding vis-à-vis all people in terms of all contents recorded therein made by authors within the extent of their mandates, or signed by the concerned parties, unless they have been duly proved counterfeited.
(iv) If the original document exists, its authenticated copy - whether written or photographic - shall be binding to the extent of its matching to the original. A copy shall be authentic unless a party challenged it, then the copy shall be verified against the original.
(v) Where an original document doesn't exist, a copy shall be admitted in evidence as follows:
a. The authentic copy, whether executive or not, shall be admitted in evidence as the original, if its outer appearance doesn't create any doubt in being identical to the original.
b. The authentic copy shall be as admissible in evidence as the original document; however, in this case each party may demand verifying it against the original copy thereof.
c. Authentic copies taken from copies shall not be taken into consideration unless for the purpose of guidance only, as the case may be.
(vi) Unofficial documents shall be considered as issued by the person who signed it, unless where such a person explicitly denies that such handwriting, signature, seal, or fingerprint is attributable to him. Inheritors or successors may not be asked to deny, but it is sufficient for them to take the oath that they do not know that the handwriting, signature, seal, or fingerprint is attributable to the person from whom the right passed to the successor or inheritor.
(vii) An unofficial document shall not be an evidence vis-à-vis third parties unless when it has a fixed date. The document shall be considered to have a fixed date:
a. As of the date at which it is registered in the appropriate record.
b. As of the date at which its content is registered in another paper with a fixed date.
c. As of the date at which it is annotated by an authorized public servant.
d. As of the date of the death of a person who has a recognized trace on the paper such as a handwriting, signature, and fingerprints, or as of the date at which it became impossible for one of them to write or seal the instrument for a physical defect.
e. As of the date of the occurrence of an event that is conclusive in proving that the paper is issued before its occurrence.
Concerning cross examination, the Court and the parties may call witnesses for cross-examination, should the matter requires their presence for the sake of the dispute. The requesting party has to demand from the Court in writing or verbally during the Court hearing the specific information he is asking the witness to provide to the Court. In this case, the other party always preserve his right to challenge and cross-examine this witness either through documents or another witness testimony.
The hearing is conducted by the judge presiding the hearing. As an introduction, the judge usually summarises the case as well as the parties’ pleas and arguments. The court hearing then follows a rather informal path, always led by the presiding judge. The judge then usually either:
- asks the parties to plead on whatever elements they wish to discuss (there is no time limit but the oral pleadings usually last for around 30 minutes) before a Q&A session,
- ask the parties to respond to questions on specific elements of the case in the form of a Q&A session.
Before the commercial courts, evidence is freely presented by the parties. However, in practice, the parties base their claim on written documentary evidence disclosed prior to the hearing, without resorting to further oral evidence. As a principle, the burden of proof rests on the party who alleges a fact. There is no cross-examination process.
At the end of the hearing, the judge usually indicates when the court’s judgment will be rendered.
A cartel damages claim will be decided by the court, ie by one professional judge or by a panel of three professional judges.
German civil procedure provides for several types of evidence: expert testimony, witness testimony, evidence taken by visual inspection, records and documents as well as - under very narrow conditions and with less probative value - hearing the parties. Documentary and expert evidence are the most common forms of evidence in German cartel damage proceedings. Generally, German law does not provide for any form of compulsory production of documents by one party to another (for the exceptions with regard to cartel damage claims, see question 21) and witnesses do not provide written statements of their testimony. The evidence is introduced by ‘offering’ witness testimony in a written submission, and it is then upon the court to decide whether to admit the evidence whilst taking into account its relevancy for the outcome of the case. If admitted, the court appoints an expert or questions witnesses at the hearing with respect to particular facts for which their testimony has been ‘offered’. Cross-examination does not exist in German proceedings. The court is in charge of the examination of witnesses. The parties and their counsels may only request the court to ask additional questions or ask additional questions themselves if so granted by the court. The evidence is then subject to the free assessment of evidence at the court’s discretion (freie Beweiswürdigung) (see question 4).
The trial process in the Competition Tribunal is similar to the trial process in High Court proceedings. The Competition Tribunal will try to avoid formality in the trial process and the legal representatives are not required to be robed. The hearing will take place in open court unless otherwise directed. There is no jury trial in competition damages cases in Hong Kong.
The trial process for competition damages cases in Hong Kong will generally follow the ordinary course of a civil trial. The trial will start with the claimant’s opening arguments, and the court will in turn hear the evidence of the claimant’s witnesses. Each witness will be examined in chief by the claimant, cross-examined by the defendant, and re-examined by the claimant. After all the claimant's witnesses have given evidence, the claimant will close his/her case. The defendant will then repeat the same process with opening arguments, defendant witnesses (if applicable) and closing arguments. The claimant will have an opportunity to give closing arguments in reply afterwards. The court may then either orally deliver judgment immediately or hand down judgment in written form at a later date.
The presiding judge of the Competition Tribunal is the decision-maker at trial. This is the case, even if specially qualified persons are appointed as assessors to assist the Competition Tribunal. There is no jury trial in competition damages cases in Hong Kong.
Evidence is generally treated more flexibly before the Competition Tribunal than in ordinary civil proceedings in Hong Kong. Section 147 of the Competition Ordinance expressly provides that the Competition Tribunal is not bound by the usual rules of evidence. For example, hearsay evidence that may not be admissible in civil proceedings may nevertheless be admissible in proceedings before the Competition Tribunal.
Witness evidence is given orally in the witness box on oath/affirmation. Alternatively, evidence may be given through live video conferencing in the courtroom. In practice, written witness statements are often exchanged by the parties before trial. At trial, the witness would be shown a copy of such statement in the witness box to confirm that it is his/her statement, and the judge would be asked to allow the statement to stand as the evidence of that witness in the case.
The rules on cross-examination in competition damages actions are the same as those in civil proceedings. For instance, leading questions can be put to the witness in cross-examination. The right to cross-examination is not limited by the examination-in-chief, but extends to all issues in the action. However, the question must be relevant to the issues in dispute and the trial judge may disallow vexatious questions irrelevant to the issue. A witness would not be compelled to answer questions that may tend to expose him to any criminal offence or penalty. The trial judge decides whether a question has such tendency or not.
The claim is first submitted to the court with relevant and local jurisdiction, by filing a statement of claim. The plaintiff must ensure that the claim is submitted to the defendant, and the regular period for filing the statement of defense begins from the day the pleading is received by the recipient.
In a standard civil claim, the defendant may file a statement of defence within 30 days from service of the statement of claim. The plaintiff may file a rebuttal within 15 days of service of the statement of defence. Normally, after the parties have submitted their statements of objection, the court orders a document disclosure procedure. The parties must serve the other side's requests of general documents and a replay to interrogatories no later than 30 days after the last statement of defence or rebuttal has been filed. Specific document disclosure may be sought at any time on the trial.
After that, the file will be scheduled for pre-trial hearing, in which the judge will examine how it is best to proceed with the trial, simplify and streamline it.
At the end of the pre-trial stage, and when the judge considers that the case should continue to the next stage, the case will be scheduled for submission of evidence and trial hearing.
The Israeli legal system is adversarial, and therefore the judge manages the procedure and the manner in which the proceeding is conducted, but the parties are obligated to act to advance the case. Thus, the judge decides how the evidence will be presented, which evidence will be admissible, and how the witnesses will be examined.
The parties submit their evidence to the Court via their witnesses and experts, and they are cross-examined on their affidavits and opinions during the trial. Each document must be admitted into evidence via witness, who will submit a main affidavit to which he will attach the document. If the litigant has no control over the document, he shall invite the person holding the document and require him to present the document and it shall be submitted as evidence. In addition, in the absence of control over a witness, the litigant who wishes to summon the witness will request that the witness be examined first by him. After that, the other party will be able to cross-examine. While in direct examination only open questions should be asked, in cross-examination leading questions are allowed.
First, the prosecution's evidence will be presented, and then the defence's evidence will be presented. The court may permit the plaintiff to present refuting evidence. The limits that the court places in the course of an investigation are usually that the questions will be relevant to the conflict.
Unlike trials in the United States, there is no discovery or jury trial system and therefore the judge is the decision maker.
For both Type A and Type B claims referred to in Question 1, the claimant files an action by submitting a written complaint to the court and, in response thereto, the named defendant submits a written answer. The court designates dates for oral proceedings and the parties make written submissions and offer relevant evidence at a number of these oral proceedings. Evidence includes documentary evidence, testimony of one or more witnesses or expert witnesses and observation (by the judge, based on the judge’s five senses). The court has wide discretion regarding the types of evidence to be adopted and the assessment of adopted evidence, and finds facts entirely at its discretion (Principle of the Free Evaluation of Evidence, Article 247 of CCP).
When legal and factual issues have been sufficiently identified, the court conducts examinations of witnesses, which need to be conducted in as focused a manner as possible. The court has discretion to decide the case without examination of witnesses. In the cross-examination, it is prohibited to ask about any matters other than those matters that were raised in the direct examination, matters related thereto, and matters regarding the reliability of testimony. In the cross-examination, it is also prohibited to ask questions seeking statements on facts which the witness has not experienced directly.
The proceedings start with a writ of summons. The defendants will then have to submit their statement of defence, or may decide to submit preliminary motions first. There will usually be a second round of submissions on the merits. In complex cases, which is often the case in competition damages cases, the parties and the court will discuss the procedural order in a case management hearing. Proceedings can be bifurcated as well.
The decision-maker at trial is the court. In complex cases, the court will consist of three judges (generally appointed for the whole duration of the case). Case management hearings may be dealt with by one of those three judges. The parties define the legal scope of the proceedings - and in its decision - the court is not allowed to go beyond the ambit of the facts of the dispute. Although the court may not add facts if they were not alleged, the court may ex officio think of the relevant legal grounds for a claim or a defence.
Evidence can be supplied in any form, except where the law provides otherwise or the court decides otherwise. The parties can conclude an evidence agreement. Article 153 DCCP provides that these agreements remain inapplicable when they relate to the evidence of facts to which the law attaches consequences, which are not at the discretion of the parties. Generally, parties will submit written exhibits together with their statements and will offer to provide further evidence to the extent needed. In an interim judgment, the court can then decide that it requires further evidence (but proceedings do not always get to that stage). As noted above in relation to the expert evidence, the court is free in its assessment of the evidence provided. Expert evidence is common practice in competition law cases.
If called upon to testify, any person is in principle obliged to appear as a witness. A witness hearing is led by an examining judge, who in most cases questions the witness first. After that both parties are allowed to ask questions to the witness. Dutch procedural law is not familiar with the concept of cross examination.
The procedural rules of the Netherlands Commercial Court explicitly stipulate that parties may enter into an agreement by which they elect to depart from the statutory rules of evidence. Hence the parties can agree on e.g. cross examination of witnesses.
Considering the early stages of enforcement of the PCA, there has not been any trial involving its violation.
Based on general rules of procedure for civil cases, trial will commence with the plaintiff / complainant presenting evidence to prove the allegations in the complaint. The evidence may be purely oral testimony, or documents or objects to be identified by a witness. The defendant / respondent will have the chance to cross-examine witnesses presented by the plaintiff / complaint.
After the presentation of its evidence, the plaintiff / complainant will then submit such evidence for its admission by the court. The court will then rule on whether the evidence is admissible in accordance with the Philippine rules of evidence.
Thereafter, the defendant / respondent will have the opportunity to present its own evidence. The same process as described above will apply.
At all times during the trial, the decision-maker is the presiding judge of the court.
The general rule of the proceedings before Polish courts is that they are carried out mainly in writing. Certain requirements apply as the timing of presenting the facts of the case and evidence to substantiate it, as well as with regard to party’s submissions. During the hearings the parties may present their arguments orally.
It is the parties’ capacity and obligation to present the facts and evidence relevant to support one’s claim. Rarely would the court admit evidence acting ex officio, although it is permitted by the Polish procedural rules. It is the court who watches over the course of the proceedings and decides whether to allow certain evidence presented by the parties. In particular the court can refuse to allow certain evidence, if it finds that evidence requested or presented is not relevant to the case or is submitted only for the purposes of delaying proceedings.
As for the form or kinds of evidence that can be presented, a non-exhaustive list of forms of evidence admissible in Polish civil proceedings includes i.a. documents (official and private), witness statements (oral), expert opinions (written and oral), inspections and party’s testimony. As for the witnesses, at this point, there is no written witness statements in Polish procedure. A party adducing evidence by witness testimony should specify the facts to be established and identify witnesses to be summoned to testify in court. A witness testifies orally by first answering questions put to him or her by the presiding judge and then, the parties are allowed to conduct their examination, first direct and then cross examination.
A typical trial process is ruled by only one judge and is initiated by the written submissions of both parties. The evidence production before the court follows said stage of written submissions and is predominantly oral.
Witnesses will be firstly examined by the legal representative of the party who appointed them, and afterwards subjected to the examination of the counterparties legal representative. In any case, it is possible to direct and cross-examine witnesses, either by request of the parties or by order of the court.
The trial is a written process in which the court establishes a proof period in which all the requested and granted evidence must be produced.
The burden of producing a certain evidence is in the party that requested such evidence. Parties can be declared negligent in producing the evidence or a certain evidence can be determined to expire if it is not produced within the proof period.
The following evidence is admissible:
- Appointed experts. The experts can be cross examined at trial.
- Witnesses. The witnesses can be compelled to attendance at hearing and can be cross-examined at trial.
- Rogatory letters.
- Any other kind of evidence that the court considers appropriate, including evidence from criminal proceedings.
Competition law cases before the Patent and Market Court shall be heard by two legally trained judges and two economists. The process before the Patent and Market Court follow the standard civil procedure with a written and an oral phase. However, it is important to remember that as a main rule only what is brought forward during the oral hearing can form the basis of the judgment.
Cross-examinations are allowed and, contrary to what is allowed for the first witness examinations, leading questions are allowed during cross-examination.
General civil litigation provisions under the Civil Procedure Law No. 6100 also apply to antitrust-based tort claims. The decision-maker is the judge, and the Turkish judicial framework does not involve juries. Depending on the value of the lawsuit and the special provisions set forth in the legislation, one judge or a panel of three judges may decide the case.
In Turkish civil litigation, the general rule is that parties must submit and present their evidence to the case file and the judges do not bear the responsibility of looking for further evidence on their own.
The default rule in Turkish civil litigation is the “free evidence” rule. This means that cases may be proved with any kind of evidence, as long as the evidence is obtained legally. However, for claims exceeding certain amounts regulated by law, the “legal evidence system” is adopted instead. This means that the law requires the claim to be proved utilizing certain specific kinds of evidence, i.e., legal oath, definitive judgement and deed. These three types of evidence are deemed to show the actual truth. If any of this evidence is present in the case, the judge will not have any discretion over it.
Article 59 of the Competition Act also provides specific guidance in this regard and expressly adopts the free evidence rule, stating that the infringement may be established with all kinds of evidence.
Although the Civil Procedure Law does not classify evidence, Turkish legal literature does and categorizes evidence into two types: (i) conclusive evidence and (ii) discretionary evidence.
i. Conclusive Evidence: Legal oath, definitive judgement and deed (as explained above).
ii. Discretionary Evidence: Witness, expert and on-site examination. Judge has discretion over the discretionary evidence. Parties are entitled to ask questions to the witnesses in the hearing; however, parties have to ask their questions through the judge, as they are not allowed to address their questions directly to the witness.
The judges may evaluate discretionary evidence at their discretion, whereas they must consider conclusive evidence as the actual truth and have no discretion over it.
In the Turkish legal system, the proceedings mostly proceed through written petitions. Parties are obliged to submit their evidence to the court by way of petitions and they may request the court to write writs to related institutions to gather certain evidence.
While the actual trial process can vary by matter, generally the trial commences with an opening address by the claimant which provides a summary of the claimant's case against the defendant/s and the evidence which is anticipated to be given. This is followed by an opening address by the defendant/s.
The next step is oral evidence. The claimant's lay witnesses are called individually to give evidence-in-chief and be cross-examined by the defendant/s. The lay witnesses for the defendant/s are then called to give evidence-in-chief and be cross-examined.
Following lay witness evidence, expert evidence is given. Each party will call their expert/s who will deliver evidence-in-chief (usually by tendering an expert report) and be subject to cross-examination. Sometimes, a judge will order that each party's expert witness be called to give evidence and be cross-examined concurrently (colloquially known as 'hot-tubbing'). This process allows the judge to hear differing opinions from each expert witness in response to the same issues.
Following the close of expert evidence, the claimant will deliver closing submissions which summarises its case including the applicable law, the findings of fact it submits the court should make and the outcome it submits the court should find. This is followed by a closing address by the defendant/s and a short reply from the claimant.
The decision-maker at trial is a judge of the Federal Court of Australia.
Evidence will be admissible if it is relevant and not subject to an exclusionary rule. The main exclusionary rules are for hearsay and opinion evidence.
Witnesses can provide their evidence-in-chief orally during the trial or by way of written affidavit. Expert witnesses usually provide evidence-in-chief by way of a written expert report (see further above).
Parties are entitled to cross-examine any witness called to give evidence by another party. A party cannot cross-examine or impeach their own witness unless that witness is declared a "hostile" witness. If a party intends to rely on a challenge to another party's witness, then the ground of challenge must be put to the witness during cross-examination.
It is extremely rare for a competition class action in Canada to proceed through a full trial. While juries are theoretically available, they are not typically chosen in commercial matters. The decision maker at trial is likely to be a single judge. The evidence of witnesses is typically given orally, although special arrangements can be made to have the evidence in chief of witnesses submitted by way of affidavits and for their oral testimony to be limited to cross examination. Witnesses are subject to cross examination on all matters relevant to the issues in the case.
Where there has been a conviction in prior criminal proceedings on the same facts, the record of those proceedings is admissible at trial as prima face evidence that the conduct occurred.
Even though the ICCP sets forth different mandatory hearings (e.g., for the appearance of the parties, for the discussions on the requests for evidence, for the final submission of the claims and counterclaims), typically, the main steps of the civil proceedings are dealt with in writing.
As for the taking of evidence, all the means of proof set under the ICCP are admitted.
Save for the exceptions indicated below, the court shall examine exclusively the means of proof offered by the parties (e.g. documents, witnesses, etc.). Thereafter, the judge can decide whether to admit or reject oral evidence proposed by the parties and, in general, can freely evaluate the meaning of the evidence provided by the parties (documentary evidence included), save for some peculiar type of evidence the value of which is established by law (e.g. confessions).
As said, the parties can request the court to hear witnesses on specific circumstances. However, if the hearing of such witnesses is admitted by the court, the parties are not allowed to cross-examine them, as the judge is the only person entitled to ask questions and request clarifications to them.
The judge is also the only decision-maker as trials are not envisaged in civil litigation.
Provided that the main rule is that the parties shall provide evidence to support their claims, in some cases the court is vested with some investigatory powers. For example, the court can:
- carry out inspections;
- order the exhibition of documents to third parties or to parties at the latter’s request, provided that certain requirements are met;
- appoint experts for technical investigations, as stated above.
Broadly, a competition damages trial before a Romanian court shall observe the general procedure set forth by the Romanian civil procedure code.
Decision-making. Romania has a continental law system, thus the decision-maker at trial is the court – i.e., one judge in first instance competition damages cases, a panel of two judges in the appeal, and a panel of three judges in higher appeal.
Process phases. Largely, the trial will entail the following phases:
(a) The written phase. The plaintiff files a written statement of claim, presenting inter alia its (i) factual and legal reasoning, and (ii) supporting evidence. The statement of claim undergoes an administrative examination of compliance with the formal judicial requisites (e.g., stamp duty payment, indication of the defendants’ summoning address etc.); should it be the case, the plaintiff is given a term for the remedial of such errors. Upon being served the statement of claim, the defendant has 25 days to respond by statement of defence; then, conversely, the plaintiff may respond by an answer to the statement of defence, within 10 days of service of the statement of defence. Once the statement of defence is received, a first hearing is set by the judge.
(b) The court phase. The court phase entails (i) resolution of preliminary requests and procedural pleas (e.g., lack of jurisdiction of the Romanian courts, lack of active standing etc.), (ii) evidence examination and, thereafter, (ii) oral debates on the merits.
(c) The deliberation phase. The judge, upon hearing the concluding remarks of the parties, issues its ruling over the case. The actual reasoning of the ruling is drafted and served on the parties in the following months (i.e., approximately four-six months, or even more in complex cases) after the issuing of the ruling.
Evidence. Evidence is both written (e.g., documents, expert reports, specialist opinions), or oral (e.g., witness testimonies, cross-examination).
The evidence must be provided either by the parties, considering special timing requirements or it can be requested by the court ex officio (pursuant to its active role). Upon reasoned request of a plaintiff (containing reasonably available facts and evidence sufficient to support the plausibility of its claim for damages), the court may compel the defendant or a third party to disclose relevant evidence in their possession; conversely, the court may, upon request of the defendant, compel the plaintiff or a third party to disclose relevant evidence (see also question 21).
Cross-examination. Under Romanian law, cross-examination may be requested by (i) any of the parties or (ii) ex officio by the judge. The cross-examination procedure differs depending on whether it refers to (i) a natural person or (ii) a legal entity. In the case of a natural person, the judge will address direct questions to the cross-examined party orally, in the hearing; the parties may also suggest questions. With respect to legal entities, cross-examination is a written procedure: the cross-examination questions proposed by the plaintiff must be filed with the statement of claim (and by the defendant, with the statement of defence) and will be answered in writing by the representatives of such legal entity.
In both cases, as a general rule, the cross-examination questions must refer to facts personally known/ witnessed by the addressee. A refusal to answer may, according to the circumstances, be deemed by the court as an implied recognition of the facts alleged by the opposing party.
High Court cases are usually heard by a single judge. Claims in the CAT are generally heard by a three-member panel: a chairman and two ‘ordinary members’. The chairman is usually a judge of the High Court. The ordinary members may be drawn from a wider pool of lawyers, accountants, economists and other experts. Neither forum uses juries in competition cases.
Rules of evidence are found in the Civil Procedure Rules (for High Court claims), the CAT Rules 2015 (for matters in the CAT) and in the common law. Parties typically exchange written statements from factual and expert witnesses in advance of trial, as well as any other documentary evidence (please refer to question 21 for details of the disclosure process). Those witnesses confirm the accuracy of their written statement at the trial and are usually then cross-examined by the opposing party’s counsel. The approaches in the High Court and CAT are similar, although the CAT has specific powers to limit cross-examination as it sees fit (CAT Rules 2015, Rules 21(7) and 55(6)).
a. Individual Actions: The length and phases of the procedure depends on the value of the claim as mentioned in answer to question 6 above. Nevertheless, in general all the procedures have two phases:
- Written Phase: This phase including the filling of the claim, and the response of the defendant as well as the request and order of evidence. This phase ends with the decision of the judge to start the probationary period.
- Oral Phase: This phase comprehends at least one trial (depending on the length of the process) in which all the evidence will be received, including the practice of examination to the parties, witnesses or experts (as explained above).
If the claim has a minor or major value, they will have a second instance.
b. Collective actions
- The popular action has a mixed nature as explained below:
(i) the process has a written phase in which the claim is filled and responded;
(ii) the judge will organize a hearing in which the parties will discuss a plan to prevent the contingent damage, eliminate the danger, hazard, violation or grievance to the collective right and interests, or restore conditions to its prior state, as applicable.
(iii) If there is not agreement on this plan, the judge will move forward with the analysis of the evidence, will receive the written final allegations of the parties and will take its decision. All the abovementioned is made through written means, notwithstanding the possibility to undertake examinations, testimonies, visits, etc.
For both individual and collective actions it is possible for the parties to request the other party examination. In this case, the party that request it can make up to 20 questions (only 10 for claims of a minimum value). There is no contra examination in these cases.
Nevertheless, the Colombian law also provides that the judge shall thoroughly examine each party as part of the initial trial in order to determine the subject of the dispute.
Jury trials are available in suits for damages; however, suits for equitable relief are tried by the court. In a jury trial, parties file requests for the jury instructions they wish the court to give.
In a federal court, admissibility of evidence is governed by the Federal Rules of Evidence. Evidence may be either written [ie documentary] or oral [through the testimony of fact or expert witnesses], and under Rule 401 of the Federal Rules of Evidence ‘evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.’
Under Federal Rule of Evidence 614, each party is entitled to cross-examine witnesses. Additionally, the Rules provides that the court may examine a witness regardless of who calls the witness, subject to the parties’ objections.