A guide to the UPC and the UP - Flipbook - Page 271
close proximity to the date set for the oral hearing. Whether such optimistic time frames are
realistic where questioning the witnesses and/or the experts by the judges and parties is to
feature remains to be seen and will of course be very case dependent.
14-35 Before a witness or expert gives any oral testimony to the Court, and after their identity has
been established, the presiding judge will ask them to make the following declaration:
“I solemnly, sincerely and truly declare and affirm that the evidence I shall give shall be
the truth, the whole truth and nothing but the truth.”
14-36 Where a witness or expert has signed a written witness statement or report they will be asked
to confirm that the evidence given therein is correct. The witness or expert may elaborate on
the evidence contained in the written witness statement or report when responding to the
questions put by the judges and the parties, but only to the extent allowed by the RoP; this is
not an opportunity to adduce new evidence. 82
14-37 Witnesses who have not signed witness statements may also be summoned to give oral
testimony and they too will be required to make a declaration as to the truth of the evidence
that they will give. Thereafter, although they will be questioned along the lines of the written
summary provided by the party wanting them to give evidence, 83 there is no requirement that
they shall begin by confirming the accuracy or otherwise of the written summary.
14-38 Questioning of witnesses and experts is limited to the issues identified by the judge-rapporteur
or presiding judge as requiring a decision on the basis of oral evidence. 84 Thus, as is the practice
in most Contracting Member States, it would appear that the focus will be to test a given
opinion or statement of fact that is not agreed by the other party. It will not be a reiteration of
the written evidence, save for any clarification needed by the panel, nor will there be any
common law-style cross-examination led by the parties. The presiding judge and other judges
of the panel will put their questions to the witness or expert. Only under the control of the
presiding judge, may the parties then put their questions to the witness or expert. The presiding
judge may prohibit any questions which are not designed to adduce admissible evidence. 85
This seems to be more akin to the approach used in Germany and the Netherlands, in which
there is no common law style of cross-examination of witnesses and experts, and it is the
judges who initially ask questions. 86
14-39 There may be some differences of approach between judges in the early days of the Court as
to what, by way of questioning, is allowed and what is not. Those judges coming from common
law jurisdictions where cross-examination is a key part of the adversarial system may be more
open to the parties thoroughly exploring the issues with the witnesses and experts than those
coming from civil law jurisdictions where either no or very little questioning of witnesses takes
place and where the questioning is conducted primarily by the judges. Given these differing
legal backgrounds of the judges it will be interesting to see exactly how cross-examination is
dealt with in the Court.
14-40 A witness/expert may be permitted to give evidence in a language other than that designated
for the proceedings. 87 Decisions as to interpretation required will have been made during the
written or the interim procedure. The Court may allow a witness to give evidence through
electronic means, such as video conference, 88 for example, where the witness is unable to
travel to the hearing. It is to be seen, however, how much this option will be used in practice.
As expressed during the public consultation on the RoP, witness hearings through such means
82
83
84
85
86
87
88
rr.178(1) to (5) RoP.
r.175(1)RoP.
r.113(2) RoP. R.104(e) RoP gives the judge-rapporteur the power to, where appropriate, issue orders regarding
the matters to be the subject of oral evidence and the scope of questions to be put to the witnesses.
r.112(5) RoP.
s.396 German Code of Civil Procedure.
r.112(6) RoP.
r.112(3)(b) RoP.
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A Guide to the UPC and the UP 261
