A guide to the UPC and the UP - Flipbook - Page 269
Recording the Oral Hearing
14-26 An audio recording of the oral hearing will be produced, which will be made available to the
parties or their representatives at the Court’s premises after the hearing. 59 This differs albeit in
different ways to the practices of many of the Contracting Member States. For example under
German law, oral hearings are open to the public 60 while audio and video-recordings for
publication or public display are normally forbidden. 61 However, judges use dictation devices
to record some parts of the oral hearing, for example witness statements, for court-internal
use only. 62 In contrast, in Ireland, the parties regularly arrange for transcript writers to record
the proceedings and provide a daily transcript of the hearing; this is needed because of the
evidence adduced during the cross-examination of witnesses and experts which is then relied
on by the parties in the closing argument.
Procedure at Oral Hearing
Summary
14-27 As in all matters, the parties are expected to cooperate with the Court in preparing for
the oral hearing. 63 By the time the oral procedure starts, the judge-rapporteur will have
confirmed that the preparation of the case is “adequate”, the parties will have lodged any
and all further pleadings, documentary evidence, witness statements and expert reports,
and any experiments and inspections will have been undertaken in accordance with
the orders of the judge-rapporteur during the interim procedure. 64 The parties will also
have given their views on the scope of the oral evidence and the questions to be put to
the witnesses, and preparatory discussions with the witnesses and experts may have
taken place. 65 There should, therefore, be no new evidence submitted during the oral
procedure and no requests for additional evidence. 66 Indeed, there should be no evidential
surprises for either parties or the Court at the oral hearing.
14-28 The oral hearing is held before the panel and is under the control of the presiding judge. 67
The oral hearing consists of hearing the parties’ oral submissions 68 and, if ordered during the
interim procedure, the hearing of witnesses and experts. 69 The judges may provide a
preliminary introduction to the action and put questions to the parties, the parties’
representatives and any witnesses or experts. 70
Preliminary Introduction
14-29 The RoP provide that a preliminary introduction to the case may be given by the presiding judge
and the other judges of the panel at the beginning of the oral hearing. 71 At this point, the Court
may also put questions to the parties, to the parties’ representatives and to any witnesses
or experts. The aim of this provision is to enable the judges to lead the oral hearing in a
59
60
61
62
63
64
65
66
67
68
69
70
71
r.115 RoP.
s.169 Judicature Act (Germany) (Gerichtsverfassungsgesetz).
Zimmermann W, “Münchener Kommentar zur ZPO”, 4th edn, (Munich: C.H. Beck, 2013), § 169 GVG para. 44.
s.160a para. 1 German Civil Procedure Rules. See also Zimmermann W, “Münchner Kommentar zur ZPO”, 4th edn, § 169 GVG
para.49.
para.7 preamble to the RoP.
rr.110(1) and (2) RoP.
r.104(e) and (f) RoP.
The Court has the ability to take a party’s failure to comply with an order to produce evidence into account when deciding an
issue under rr.172(2) and 190(7) RoP.
r.112(1)RoP.
r.112(2)(a) RoP.
r.112(2)(b) RoP.
r.112(4) RoP.
r.112(4) RoP.
© Bird & Bird LLP | May 2023
A Guide to the UPC and the UP 259
