How is witness evidence dealt with in commercial litigation in your jurisdiction (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 (2nd edition)
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, especially witness intimidation. 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.
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.
In China, witnesses shall appear in court to testify and answer questions raised by the parties in court. Under the following circumstances, upon consent by the court, a witness may testify by way of written testimony, audio-visual transmission technique or audio-visual materials: (1) the witness is unable to be present in court due to health reason; (2) the witness is unable to be present in court due to long journey and inaccessibility; (3) the witness is unable to be present in court due to force majeure; or (4) other proper reason which blocks the witness from testifying. The testimony of a witness who fails to appear in court without due cause shall not be taken independently as the basis for determining case facts.
Chinese law does not clearly stipulate the practice of cross-examination nor deposition process. However, upon consent by the court, a litigant may question a witness during the trial process.
Witnesses testify orally before the court, without reading a previously written response. With the permission of the judge, the witness may use documents only for specifying numbers or names.
Witnesses can be cross-examined at trial, in the establishment of facts stage of the trial. After the hearing of the witness, the parties may ask questions, not directly, but by referring their queries to the judge, who then questions the witness.
A witness deposition is recorded in writing and signed by the witness. Written depositions submitted to the court instead of oral testimony do not have evidentiary value.
Evidence in support of interim applications (including applications for interim relief) is given by affidavit but the court may order the attendance of the deponent for cross-examination. At trial witnesses can either give their evidence orally or submit a written statement. Where a written statement is submitted the witness is required to attend court and adopt the content of his/her witness statement on oath.
Each party has the right to cross-examine the opposing party’s witnesses at trial. Following the conclusion of the cross-examination the witness may be re-examined by the party calling the witness in relation to the evidence given by the witness in the course of his cross-examination. Depositions are permitted if the court permits the taking of the deposition. A deposition can only be used at trial if the party on whose application the order permitting the taking of the deposition was made gave sufficient notice to all other parties to attend the examination of the deponent.
In court cases the witnesses give verbal statements whereas written witness statements often are used in arbitration. It is the principal rule that everyone is obliged to give statement in court as a witness and can be forced to do so in case they resist. Professional secrecy and other confidentiality obligations can exclude some individuals as witnesses. Furthermore, a witness who is related to a party can be exempted from giving statement and, similarly, if it exposes the witness or witness's related parties to the penalty of the law or harm to their safety or welfare or otherwise inflict significant harm on the witness or his related parties.
The party who has requested the witness starts the questioning, and hereafter the counterparty may engage in cross-examination of the witness, which is not limited to matters raised by the initial questioning. If the court finds it necessary, it can also ask the witness questions.
Leading questions are generally not allowed and the courts can interfere in the party’s questioning if necessary. Depositions are not used in Denmark.
Pursuant to the Egyptian Evidence Law no.25 for the year 1968, witness testimony is allowed. In civil and commercial proceedings, it is rare for a witness to give oral testimony, as the evidence provided to the court is usually written. The presiding judge may if he sees the need or based on the request of the parties depose the witness or allow the parties to question the witness, though in practice cross-exemption rarely happens.
In civil and commercial cases, written documents are the main form of evidence.
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.
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 refuses to appear.
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.
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(es) 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 evidence elicited during 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.
Witness evidence is normally prepared in the form of written witness statements or affidavits, which will stand as evidence in chief. Witnesses commonly give oral evidence and are cross examined. Parties are permitted to re-examine their own witnesses.
Evidence can be given “à futur” (in the form of a deposition) before a Commissioner if there is a requirement to preserve evidence in circumstances where the deponent is ill, in danger of death or likely to leave the island.
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.
Isle of Man
Witness evidence is provided usually by witness statements and sometimes by way of affidavits and depositions. Witnesses who attend voluntarily or are compelled to attend to give oral evidence are subject to cross-examination in the usual way which will be familiar to any common law lawyer. In proceedings under the chancery procedure unless the court requires or permits oral evidence to be given, only written evidence is to be given.
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.
Under Philippine rules of procedure, witnesses are required to reduce their testimonies in affidavit form. The affidavits take the place of the witnesses’ direct testimony. Documentary or object evidence must also be identified in and attached to the judicial affidavits.
At trial, the witnesses will identify their affidavits in open court and may be cross-examined in open court on the contents of their affidavits and on the exhibits attached. The witnesses may also be subjected to re-direct and re-cross examination in open court.
Depositions are permitted and either party may request for the deposition of any person. Depositions may be oral or written. In either case, the other party may cross-examine the deponent on his or her deposition. Further, generally, depositions may be used against any party who was present or represented at the taking of the deposition or who had notice thereof.
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 during 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.
In commercial litigations, the court orders examination of a witness on application of a party to the proceedings. In non-contentious procedure, the court may order examination of a witness also without a motion if the court finds it necessary to establish the factual situation.
Witnesses give only oral evidence during proceedings before a judge.
The court conducts the witness examination; the court first prompts the witness to describe everything he/she knows about the matter. During this stage the witness is not interrupted by questions. The parties to the proceeding, or with consent of the court also other attending subjects, may then pose questions to the witness.
The court conducts the witness examination by deciding on admissibility of the questions – inadmissible are questions that are not related to the subject-matter of the proceedings, captious questions or suggestive questions.
“Deposition”, as it is known in common law, is not known in Slovak law; it is therefore impossible to answer this question.
A witness of fact must give his or her testimony orally, direct before the court and, as a main rule, under oath. Sometimes testimony may be given via video or telephone conferencing. The parties may not invoke written witness statements. The witness may bring personal notes but is supposed to speak freely and not to read out of any prepared statements. A witness of fact is always subject to cross-examination. There are no specific rules as regards cross-examination. However, the court shall reject questions that are manifestly irrelevant to the matter at issue, confusing, or otherwise inappropriate. Depositions are not used.
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 will 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 and, if appropriate, adds any additional oral evidence. The other side is then allowed the opportunity to cross-examine the witness to test his evidence. A party may in some circumstances apply for a court order for a person to be examined before the trial takes place. Such depositions are permitted in front of a judge, an examiner of the court or any other person the court appoints, but are in practice very rare.
Articles 61-96 of the Law of Evidence provide the rules relating to the witness testimonies in the civil and commercial cases as a way of evidence. In light of the type of the witness evidence, Article 88 of the Law of Evidence stipulates that “Evidence by witnesses shall be given orally. Written statements may not be referred to in giving evidence unless the Court or the designated judge authorizes this and the nature of the case justifies it”. Cross-examinations are conducted by the court only or the designated judge whereby the party’s attorney raises the questions to the court and the court addresses the same to the witness with the ability to formulate the question as it deems appropriate.
Parties’ and/or witnesses’ depositions are permitted provided that they are authorized by the court, so that parties must convince the judge of its feasibility and relevance when asking for permission. Affidavits are not regulated and thus are not quite common, as parties tend to question due process on the basis that it does not allow for cross-examination. Furthermore, cross-examination is usually ruled based on the judge’s own criteria, but definitively permitted.
While Indonesian law does not recognize depositions, it does, however, recognizes affidavits and witnesses’ statements. According to Article 1866 of the Indonesian Civil Code, the following documents are acknowledged as evidence:
a. a written document;
b. a witness;
c. an inference;
d. a confession; and
e. an oath.
In relation to witnesses, their affidavits will be regarded as both written documents and witness since affidavits are, in principle, written statements of the witness. However, they may also be presented in a court proceeding to provide an oral statement under oath. There is no written rule regarding cross-examination.
For legal proceedings commenced by way of writ, witnesses of facts generally give evidence by witness statements and are subject to cross examination by the adverse party at trial. These witness statements will be admitted in court as sworn evidence during the examination in chief of the said witnesses.
The questions posed during cross examination must relate to the relevant facts but need not be confined to facts to which the witness testified during his examination in chief. Leading questions may be asked during cross examination. [Sections 138 and 143 of the EA]
For legal proceedings begun by originating summons and on any application made by notice of application, evidence shall be given by affidavit and parties are at liberty to apply for leave to cross-examine the deponents of affidavits.
Depositions are allowed under Order 39 rule 1 of the ROC where the court sees it necessary for the purpose of justice. A court order is a pre-requisite to the admission of evidence by deposition.
The witness examination is expressly recognized in Chilean law and is admitted both in the ordinary courts and in arbitration. The declaration is provided orally, despite the written record of the declaration in the case file.
There is no discovery in the Chilean civil procedure, but parties can request, as a pretrial interim measure, the deposition of the witnesses and even a request to admit by the other party. It is possible to questioning witnesses prior to the beginning of the trial, provided that there is a reasonable fear that the witness´ statement might not be available in a timely manner during trial because of serious impediment.
Back in the trial, it is also common for an "expert witness" to write a report and then appear in the process to recognize and explain it.
The party who calls the witness can direct questions to him. Also, during the examination of the witness, there is a possibility for the counterpart to, first, cross examine the witness as to his impartiality to eventually impeach the witness for certain specific causes stated in the law (e.g. being a close relative). In addition, the counterpart is allowed to generally cross examine the witness after direct examination.
It should be noted that in Chile witnesses can only be deposed within the 20 days legal term for the production of the evidence. These 20 day run from the issuance by the court of a resolution similar to the terms of reference which in this case are a list of the main relevant disputed issues of fact. Witnesses testimony, direct examination and cross examine must all be within the scope of the terms of reference.
In terms of Article 160 of the Code of Organisation and Civil Procedure, 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.
Where it is made to appear to the satisfaction of any of the superior courts, or that the evidence of any person who is absent from Malta is indispensable for the determination of any cause pending before any of such courts, it shall be lawful for the court to make an order declaring the examination of such witness to be necessary and the court may stay the proceedings after having complied with the provisions of article 158 of the Code of Organisation and Civil Procedure and adjourn the cause to a time within which such evidence is to be obtained.
As mentioned under question 13, witness statements are generally given orally and during court proceedings rather than in the form of (pre-prepared) written witness statements. Even though the CCP does not per se forbid the introduction of written witness statements, they are very rarely used in practice (also because of the applicable limitations that do not permit legal counsel to either assist in the preparation of written witness statements, nor to prepare witnesses for oral examination in court). In certain types of procedures (for example summary proceedings for obtaining interim relief), however, evidence must primarily be offered in the form of documents and as a consequence, in practice, written witness statements are sometimes introduced into evidence in such procedures (but – again – without the involvement whatsoever of legal counsel). As already mentioned, the probative value of written witness statements is generally considered to be rather low; which, apart from the possibility that the witness had been influenced by the interested party to make the statement, also stems from the fact that the witness signing such document does not, contrary to the witness that is formally examined by the court, face potential criminal charges if the statement proves to be untrue.
Apart from that, the court may obtain information in writing from official authorities or from private persons if the formal examination of a witness seems unnecessary. This might for example be the case if the employer of a party is asked by the court to confirm the income of the employee in writing.
In case a witness is summoned by the court to provide oral witness testimony, after being cautioned by the court to tell the truth, the witness will be asked questions directly by the court with regard to its personal details, its personal relationship with the parties as well as other circumstances which may be relevant to the credibility of its testimony and finally, regarding the facts of the case as observed by the witness. The parties may request that the court ask additional questions to the witness and may only themselves address additional questions directly to the witness after having obtained the permission of the court to do so. In that sense, there is only a very limited possibility of cross-examination in Swiss state court proceedings.
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.
With few exceptions, giving testimony, under oath and orally, is mandatory for anyone who is summoned as witness. Under certain conditions a testimony can be performed over video/telephone or as a pre-recorded examination (deposition). This is normally only allowed if a testimony at the main hearing is not possible or will be especially expensive or difficult in relation to the claim in dispute.
There are no special rules regulating cross-examination. However, the general prohibition against asking leading questions applies but can be accepted if it is done to test reliability of information that the witness has previously given.
The NCPC distinguishes two different processes for witness evidence: written attestations and investigations.
Written statements are documents prepared by witnesses without the presence of the judge, at the request of one of the parties to the dispute, and which are communicated in the context of a dispute. Investigations are hearings of witnesses to which the judge proceeds after having ordered it. Both processes are therefore distinguished by the way they enter the debates: while the written statements are not subject to any prior checking and are directly included in the debates at the sole initiative of the parties, the investigations require the prior intervention of the judge who decides on the admissibility of the evidence and its relevance.
Cross-examination does not exist under Luxembourg law. Only the judge may ask questions to a witness, questions which may be suggested by one party.
Regarding depositions, no other forms of witness evidence than the two described above are admitted under Luxembourg law.
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. 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.
In most commercial disputes, the parties support their claims or arguments by written evidence. Nevertheless, witness evidence may be presented in a standalone manner or along with documentary evidence. There are specific rules in CCP applied to witness evidence. For instance, testimony by witnesses who have an interest in the dispute is not acceptable. In addition, testimony of witnesses under the age of 15 is categorised as “presumptive” evidence, which can be prevailed by “persuasive” counterevidence.
Iranian law discriminates between witnesses based on their gender, and specific numbers of male or female witnesses may be required under CCP and the Civil Code in different disputes. In general, and in the absence of prevailing counterevidence, commercial litigation with financial implications can be proved by testimony of two male witnesses,or two female witnesses together with one male witness.
Witnesses are invited to a hearing session where oral or written witness statement will be obtained. Typically, it is the judge who asks questions from the witness; yet each party may challenge the credibility of the opponent’s witness, in which case the court must decide on credibility or qualification of the witness.
Depositions are mostly available in insolvency proceedings.
Witness evidence is fairly common in commercial litigation, although documentary evidence is often (far) more reliable. Most of the time, witness statements are given orally. An (oral) witness testimony of a party testifying on its own behalf is only accorded very limited evidentiary force; it needs to be substantiated with supplementary evidence.
Practice is likely to change, proposals for modernisation of law of evidence aim to provide for evidence, bundled together, prior to trial. Courts already allow a witness to submit a written statement.
Cross-examination does not exist in Dutch litigation. The court is in charge of the examination of the witness. In practice, the court usually allows the parties and is obligated (upon request) to allow their counsel to put 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.
Witnesses may refuse to testify in court on personal grounds as well as for factual reasons (section 165 DCCP), 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 Dutch commercial litigation.
Witness evidence may be declarations by the party or declarations by witnesses. This evidence must be requested by the parties when filing or answering a complaint. The parties shall identify its witnesses with their full name and address, the facts about which they will testify, and the requirements for the admissibility of the evidence. Witnesses shall answer the questions posed to them in examination and cross-examination in a clear and precise manner, and must be sworn as to the truthfulness of their testimony.
Declarations by the parties and the witnesses take place before the judge, orally, during trial. Testimony may be given in person or by video conference or other similar media. If the presence of a witness is necessary, travel expenses shall be borne by whomever requests it.
Witnesses are under obligation to answer the questions posed to them, except those that may generate criminal liability for themselves and their close relatives, as well as those which might cause a violation of their duty to observe professional confidentiality or secrecy.
Questions during examination and cross-examination may be objected to by the parties on grounds of unconstitutionality or being unlawful, leading, misleading, irrelevant, confusing or hypothetical or intended to elicit an opinion.
Should a declarant or witness fail to appear, the party who requested his appearance may move for a suspension of the proceeding, alleging that this is an essential piece of evidence and asking that the witness be constrained to appear by the authorities. Testimony may be taken in advance when there are fears the witness may die or be absent for an extended period.
Procedural law does not require a set number of witnesses to establish a fact. However, the new Commerce Code provides, for instance, that to prove mercantile or business practice the testimony of no less than five witnesses is required.
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.
Witnesses are questioned separately. Procedural rules do not contain any mention on written evidence. Moreover, the proceedings before the court are oral with the exception for the Court of Cassation, which nonetheless is not entitled to decide questions of fact. The evidence is to be recorded simultaneously through audio recording and by automated methods of summarisation. In case if the latter is not available, the protocol is formed by the secretary in a written form (in this case in practice, usually the hearing is postponed to resolve the technical issues). A witness must be informed about criminal liability for false evidence. A witness may only be asked questions included in the motion to call a witness and only those concerning the credibility of the witness evidence, including the relationship between the witness and the parties etc. The questions are first asked by the participant who made a motion to call a witness, followed by other participants and the court. Prompting or otherwise guiding questions are prohibited.
If a participant of the proceedings makes a motion to give witness evidence, the court can permit them to do so. If a participant of the proceedings makes a motion to call another participant to give witness evidence, the court can suggest them to do so. If the court finds that the latter refuses (avoids) to give testimony, the facts subject to proof through that testimony are considered proved. In both cases, the modalities mentioned above are equally applicable to the participants of the case.
A double examination is executed if previously questioned witnesses contradict to one another. During a double examination, witnesses are first asked about their relationship and then allowed to speak in turns. The questions are first asked by the participant who made a motion to make a double examination followed by other participants and the court. In the end, the statements made by the witnesses previously are made public by the court.