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?
Litigation & Dispute Resolution
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.