How is witness evidence dealt with in commercial litigation (and, in particular, do witnesses give oral and/or written evidence and what, if any, are the rules on cross-examination)? Are depositions permitted?
To prove the execution of a document related to a financial transaction, two marginal witnesses must be produced. Witness statements are therefore very important in commercial litigation.
Unless the witness is giving an affidavit-in-evidence which is always made in writing, the witness gives his/her testimony orally in open court in the form of a narrative which is reduced in writing and read aloud in the presence of the judge and the witness to ensure there is no discrepancy. The witness may produce documentary evidence in his/her statement and this process is referred to as the examination-in-chief. After the examination-in-chief is complete, the opposing party has the right to cross-examine the witness in which leading questions can be asked. Depositions are also permitted in certain cases.
In terms of Article 160 of the COCP, any party intending to produce a witness in any proceedings before any court may, together with the sworn application or the sworn reply, as the case may require, file in the registry of such court an affidavit taken by such witness before a judicial assistant or any other person authorised by law to administer oaths, and a copy of such affidavit shall be served on the other party. Affidavits may also be produced throughout the course of the proceedings. The opposite party has the right to cross-examine a witness; and in such cross-examination leading or suggestive questions are allowed.
In cross-examination, a witness may only be questioned on the facts deposed in his examination, or on matters calculated to impeach his credit. When the party cross-examining desires to prove by the same witness any circumstance not connected with the facts deposed in the examination, he must, unless the court, for just cause, shall direct otherwise, produce such witness in due time and examine him as his own witness. When both the examination and cross-examination are concluded, no further questions may be put by either of the parties; but it shall be lawful for the court, or for the party with the permission of the court, to ask such questions as arise out of the answers given in the course of the examination or cross-examination. Moreover, the court may at any stage of the examination or cross-examination, put to the witness such questions as it may deem necessary or expedient.
Where any person whose evidence is required in a cause which is pending, is about to leave Malta, or is so infirm or advanced in years that he might die or become unable to give his evidence before the time when such cause will come up for trial, or is unable to attend the trial, the court may at any stage of the proceedings, commit the examination of such person to a judicial assistant in which case the oath may be administered by the judicial assistant. In this case, the questions put to the witness, together with his answers thereto, shall be taken down in writing, and the deposition shall be signed or marked by the witness himself. The deposition shall also be signed by the judicial assistant, and shall then be sealed by the Registrar, and filed in the record of the proceedings.
A deposition may also occur where a demand to that effect is made to the First Hall Civil Court by means of a note by all parties to the action, and also in the case where the court so orders. The deposition shall be signed or marked by the witness and countersigned by the judicial assistant who shall then transmit it to the court registrar.
Witnesses must give both written evidence pre-trial and oral evidence during the trial.
Prior to the commencement of the trial, each party must exchange affidavits of the evidence-in-chief (“AEIC” or “AEICs”) of all witnesses.
At the trial, witnesses are cross-examined based on their earlier exchanged AEICs. If a witness does not attend the trial for cross-examination, his AEIC will not be received in evidence, except with the leave of the Court.
At the trial or hearing of any cause or matter, no deponent to an affidavit may give evidence-in-chief, the substance of which is not contained in his affidavit, unless in relation to matters which have arisen after the filing of that affidavit. However, the Court may, if it thinks just, order that such evidence be given orally at the trial or hearing of any cause or matter.
Depositions taken in any cause or matter may only be received in evidence at trial if: (a) the deposition was taken in pursuance of an order under Order 39, Rule 1 of the ROC; and (b) either the party against whom the evidence is offered consents, or it is proved to the Court’s satisfaction that the deponent is dead, or beyond the jurisdiction of the Court, or unable from sickness of other infirmity to attend the trial. A party intending to use any deposition in evidence at trial must, at a reasonable time before the trial, give notice of his intention to do so to the other party/parties.
Under the request of a party, the court may call a witness to testify at the hearing. Testimony is provided in an oral form, but at the suggestion of the court a witness may provide a written statement. The procedure for examining a witness is not regulated. In practice, a witness is first examined by the judge and then by the parties. Deposition are not known to the Russian system of law.
In general, witnesses are rarely used in the commercial courts and the judges prefer to rely on documentary evidence.
Witness evidence is regulated in the Spanish Civil Procedure Act. Witnesses must give oral evidence during the trial, individually, under oath, and without being able to hear other witnesses’ statements. Due to illness or other relevant circumstances, the court may sometimes allow witnesses to give testimony at their domicile, in the presence of court officials, the parties and their lawyers.
If the witness is a legal person or public entity, however, it may be allowed to give a written response.
Cross-examination is also regulated in the Spanish Civil Procedure Act. Once the party that proposed the witness has asked all their questions, other parties may pose questions of their own. The court will reject irrelevant or useless questions. The court may also pose questions to the witness to obtain clarifications and additional information.
Depositions are, in principle, not permitted.
Indonesian laws do not recognize depositions; however, affidavits and witnesses’ statements are recognized. According to Article 1866 of the Indonesian Civil Code, below are acknowledged as evidence:
a. Written documents;
d. Confession; and
In relation to witnesses, their affidavits will be used as both written documents and witness since affidavits are in principal written statements of the witness. However, they may also be presented in court proceeding to provide an oral statement under oath. There is no written rule regarding cross-examination.
Witness evidence is vital to commercial litigation although documentary evidence is often more reliable. As a rule, witness statements are to be given orally (sec. 377 et seq. ZPO). Only in rare cases may courts allow a witness to submit a written statement (sec. 377 (3) ZPO).
Cross-examination does not exist in German litigation. The court is in charge of the examination of the witness. The parties and their counsel may only request the court to ask additional questions (sec. 397 ZPO). In practice, however, the court usually allows the parties and is obligated (upon request) to allow their counsel to put such additional questions directly to the witness, subject to the condition that the questions are limited to the evidential issue upon which the witness is examined.
Witness may refuse to testify in court on personal grounds as well as for factual reasons (sec. 385 et seq. ZPO), e.g. in cases where their testimony could entail prosecution for a criminal offence or disclose technical or trade secrets.
Depositions are not admitted in German commercial litigation.
One of the requirements to offer witnesses in any commercial litigation, is that they must be announced at the time of filing the complaint or its answer, otherwise the witnesses will not be admitted, unless they constitute evidence not known at the time of filling.
Once admitted, the Court will schedule a date for the hearing, in which the witnesses will be examined by both parties, first by the offering party, and right after by opposing counsel. Each party is obliged to present their own witnesses, however, the Judge can issue a subpoena in case the witnesses refuse to appear.
According to the GCCP there are two categories of witness testimonies in commercial litigation: a) oral statements and b) written sworn statements.
Written sworn statements may be submitted by the parties with their pleadings (articles 421 et seqq. GCCP) as well as with their rejoinders. Each party is entitled to submit up to five sworn statements with its pleadings and up to three with its rejoinder.
The latest amendment to the GCCP by Law 4335/2015 has significantly reduced the role of oral witness statements in ordinary procedure, since oral witness examination may take place only if requested by the Court, in case it considers is necessary. In such a case oral statements may be provided only by persons who have already provided written sworn statements.
With regard to the particular monetary procedure, oral witnesses may be examined on the hearing date, one for each litigant party.
Written statements are admissible but need to comply with specific rules as to their content. Although the code of civil procedure provides for oral witness depositions, this is, in fact, rarely implemented by courts. In any case cross examination is not allowed. The questions may be only asked to the court who will in turn ask them to the witnesses.
The general rule is that the CFI will direct that the witness statement shall stand as the witness's evidence in chief, and all facts must be proved by a witness giving oral evidence at a trial. Parties exchange witness statements simultaneously prior to trial. A witness may only give evidence at trial where a witness statement has been served (unless the court has granted leave). The court may, on such terms as it thinks fit, permit the witness to amplify his witness statement and give evidence in relation to new matters which have arisen since the witness statement was served on the other party.
Each party has the right to cross-examine the opposing party’s witness at trial. The trial judge may assist in the cross-examination process by rephrasing questions such that they can be more easily understood by the witness (without assuming the role of an advocate). After cross-examination, the party calling the witness may re-examine him in relation to material elicited from the cross-examination process.
Depositions are permitted, provided the deposition is taken pursuant to an order of the court and the party against whom the evidence is offered consents. A party intending to use any deposition in evidence at trial must give notice to the other party of his intention to do so at a reasonable time before the trial.
The Code of Civil Procedure provides for both oral (Article 244 et seq.) and written (Article 257 bis) witness evidence. Oral witnessing before the judge is the commonly used one.
According to Article 253 of the Code, the judge questions the witness on the facts on which he or she is called to testify; the judge may also address to the witness, ex officio or at the request of a party, all the questions deemed useful to clarify the facts. In any case, unlike criminal trials, it is forbidden to the parties to directly question witnesses.
If there are discrepancies between the depositions of two or more witnesses, the judge, on the request of a party or ex officio, can order the comparison between/among them (Article 254).
However, upon agreement of the parties and taking into account the nature of the case and any other circumstances, the judge may order to take the deposition asking the witness to answer in writing to the relevant questions within the fixed deadline.
Witnesses usually give evidence by way of oral testimony on oath or affirmation, however in some instances facts may be proved on affidavit, or affidavits sworn by certain witnesses may be read into the court record.
In the Commercial Court, the parties to proceedings must exchange detailed witness statements in advance of trial outlining the core elements of the evidence that each particular witness proposes to give. At the trial itself, witnesses are subject to cross-examination following examination in chief. A witness may be cross-examined on their oral evidence and any affidavit evidence submitted by them. Depositions are not permitted.
Other than common law jurisdictions, Swiss law does not adopt the system of examination and cross-examination conducted by the parties themselves (and the judge as a "gate keeper"). The witness examination is rather conducted by the court at its own discretion. The parties may however ask the witnesses additional questions, either directly or through the court.
Written witness statements (depositions) are in principal permitted but not common in the Swiss litigation system. Such written statements are (even though not often) used in summary procedures (in particular regarding interim measures), where the only of evidence permitted is principally documentary evidence. The evidentiary value of written witness statements is however considered low, in particular where it is not supported by any oral examination or further evidence.
Witness evidence must be requested within 5 working days counted from the beginning of the proof-taking stage by submitting a list where the witnesses are duly individualized. The judge will schedule a hearing where witnesses will give their oral depositions regarding the questions submitted by the parties(direct-examination and cross-examination).
Witness’s interrogation is carried out by a “Receptor”, who transcripts questions and answers given by witnesses. Such transcription is finally signed by the witness, the judge, and the attorneys attending to the hearing.
As a general rule, only the witnesses included in the list can be examined in a proceeding in oral hearings. In the event that a party fails to provide the list of witnesses within the abovementioned period of time, that party will lose its right to do so.
As a general rule, under Chilean law witnesses must attend the court and make a deposition if they were summoned.
On a regular basis, written witnesses’ statements and witnesses’ depositions via videoconference are not admissible.
With few exceptions, giving testimony, under oath and orally, is mandatory for anyone who is summoned as witness. Depositions (Sw. vittnesattest) are rarely used, but permitted where the parties agree and it is not deemed to be manifestly inappropriate. A witness is never required to file a written statement before giving testimony. Expert witnesses are, however, expected to lodge a written statement prior to the main hearing. A witness examination is opened by the party that has invoked the witness unless the court decides otherwise. During this initial examination it is not permitted to lead the witness by asking questions inviting to a specific answer but during the counterparty’s cross-examination (or during re-examination) there are no such restrictions.
Depositions are allowed and witnesses must be present in court in order to provide oral evidence. The cross-examination is bounded by the facts brought up in the previous deposition.
A written deposition may be allowed by agreement of both parties, if it is shown that it would be seriously strenuous for the witness to be present at the hearing or if such presence proves to be impossible.
Nevertheless, affidavits are not allowed under Portuguese law.
Federal Law number 10 of 1992 on Evidence in Civil and Commercial Transaction (hereinafter referred to as the “Evidence Law”) covers the issue of witness evidence. Witnesses give their statements orally in court.
Witness evidence and witness statements are not permissible where the value involved exceeds AED 5,000 unless there was an agreement or a law provision to the contrary.
However, witness evidence is not admitted even if the value does not exceed AED 5,000 if it is required to refute the contents of a written document, or if the claim consists of the balance or part of a right which may only be established in writing.
There are exceptions to when witness evidence is accepted in matters that must be established in writing. For example, when written evidence cannot be obtained as a result of a material or moral bar, or when written evidence is lost due to a reason beyond a party’s control.
The party requesting the court to allow witness testimony must specify the facts he wants to establish in writing or verbally in a court hearing.
If the Court allows one of the parties to prove a fact by testimony of witnesses, the other party may disprove this fact in the same manner.
In addition, the Court may, ipso jure, decide on obtaining witness statements in the cases where the law admits the submission of proof in such a manner and if it deems it to the interest of reaching the truth.
Witnesses give testimonies separately without the presence of the other witnesses. Usually, witnesses for both parties are heard in the same hearing, and witness statements are obtained after the witness takes the legal oath.
Oral evidence is rare in Saudi Arabian commercial cases, due to the Islamic Law rule that the statements of a party to the proceedings have no evidential value. This rule extends to the servants or agents of a party to legal proceedings, so that only independent parties qualify as witnesses.
One important, and unusual, feature of Saudi Arabian law of evidence concerns the taking on an oath. If the claimant has failed to prove his case conclusively either through witnesses or documentary evidence, he may challenge the defendant to deny his liability on oath. If the defendant accepts the challenge and denies the claim on oath, the case is closed with very limited means of appeal. However, because of the extreme religious significance attached to demanding and taking an oath, the right to challenge a defendant on this basis is not frequently invoked.
As a rule, witnesses shall give oral evidence during the main hearing. The parties may agree that a written statement is acceptable. However, if the parties do not agree, written statements made for the purpose of the case may only be presented as evidence if the person who has made the statement, is also offered as a witness so he or she can be cross-examined during the oral hearing. There are no specific rules on cross-examination. As a general rule the court shall ensure that the examination is conducted in a manner that is conducive to bringing out clear and truthful testimony, and that is considerate to the witness. Questions that in their content or form suggest the desired answer shall not be asked unless they are asked to test the reliability of information that the witness has previously given or other special reasons so justify. Questions that are not pertinent to the case shall be rejected.
Facts possessed by a witness are ordinarily offered through live testimony of that witness at trial. However, there are circumstances (e.g., where a witness is unavailable to testify at trial) where such testimony can be offered into evidence through entry of the witness’s deposition, in lieu of, or in addition to, the witness’s live testimony.
Witnesses are subject to cross-examination, and the cross-examination is limited to the subject of the direct examination or issues affecting the witness’s credibility.
U.S. commercial litigation makes available pre-trial, recorded interrogations (i.e., depositions) of witnesses and potential witnesses, which may distinguish U.S. commercial litigation from litigation elsewhere.
As a principle rule, evidence is taken only during the course of the litigation, not before. Therefore, witnesses as well as parties need to testify orally before the court. Depositions, written witness statements or affidavits are not permitted. It needs to be noted that Austrian law distinguishes between witness testimony and the testimony of parties as certain rules regarding the hearing of witnesses do not apply to the hearing of parties.
If called as witness, witnesses are obliged to appear, to testify and to tell the truth before the court. Failing to do so can result in fines and/or imprisonment being imposed. The judge takes the lead in examining witnesses and questions every witness individually and in the absence of other witnesses. Thereafter, the parties or their legal representatives are given the opportunity to ask further questions. Contradicting witnesses may be confronted with each other. A witness may refuse to answer a question, if the answer would cause reputational or financial harm. In certain cases, a witness may testify in front of a delegate judge or the use of video conferencing might be allowed. Moreover, the rules on the safeguarding of evidence provide that a witness may be heard already before the oral hearing(s) if the questioning of that witness might become very difficult or impossible at a later stage.
Unlike in other legal systems, witness preparation is not common in Austria. Austrian attorneys may have contact with witnesses before and during proceedings, but each form of “inadmissible influence” is prohibited. Attorneys are therefore recommended to seek as little contact as possible with witnesses in order to avoid the appearance of undue influence and potential ethic charges.
As stated in #13, witnesses and the parties may be examined, although there is no deposition in Japan. The party asking for the examination of a witness or itself usually submits the written statements of the witnesses or itself before the examination is conducted. Cross-examination is conducted after the direct examination. Questions that may be asked during the cross-examination is limited to matters mentioned in the direct examination and matters related to those matters, and matters concerning the credibility of the testimony. Questions which have been covered by the previous questions, are unrelated to the issues, seek an opinion, or seek statements of facts which the witness has no direct personal knowledge or experience are prohibited unless there are justifiable grounds. Questions which insult or confuse the witness are also prohibited. Leading questions are allowed in cross-examinations.
Witnesses can be summoned to attend court. However, the normal procedure is for each side to produce and exchange written witness statements on which they rely well in advance of trial. These can be drafted by solicitors for the parties but should reflect the witnesses’ own words. The witness then typically confirms this evidence in person at the trial, together with any additional oral evidence, and then the other side is allowed to cross-examine the witness. Depositions are permitted in front of a judge, an examiner of the court or any other person the court appoints, but this is unusual.
In Denmark witnesses give oral statements. In arbitration the statements may be in writing.
It is a general rule that everyone has an obligation to make a statement before the court. This includes a duty to refresh the particular knowledge of the case. The party who has requested the witness may begin the questioning, and hereafter the opponent may question (cross). The cross examination is not limited to the issues or questions raised/asked in the examination in chief. Subsequently further questions can be asked if the need arises.
Professional secrecy and other duties of silence can exclude the use of specific witnesses. Further a witness can be exempted if a statement might damage the witness or his/hers next of kin.
In theory, witness evidence is admissible before French courts and may be requested by them.
In practice, witnesses are almost never summoned and heard by the Court and the parties base their claim on written documentary evidence, without resorting to oral evidence.
The examination-in-chief of witnesses in civil trials is generally carried out by way of affidavit. If the counter-party so desires, the witness is then cross-examined, if the party calling the witness so desires thereafter, the said witness is re-examined. The evidence is recorded either by the court or by the commissioner appointed by it.
Section 138 of the Evidence Act provides that the examination and cross-examination of witnesses must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.
Further, Section 146 of the Evidence Act provides a list of questions lawful in cross-examination. It states that a witness may be asked any questions which tend to test his veracity, discover who he is and what his position in life is. Further, in cross-examinations, it is also permissible for a party to ask leading questions. However, pre-trial recording of oral evidence in the nature of depositions is not recognised under the Code.
In domestic arbitrations, the arbitral tribunals in India typically follow the principles of the Code and Evidence Act in dealing with witness evidence.