A guide to the UPC and the UP - Flipbook - Page 272
are vulnerable to manipulation. If they are permitted by the Court then one would expect the
Court to impose conditions to minimize the risk of the party on whose behalf the witness is
giving evidence manipulating the process to their advantage.
14-41 No further details are provided in the RoP as to the form of the evidence taking at the
oral hearing, and it is therefore presumed that a certain amount is left to the discretion of
the Court. Therefore, some procedures the Court may adopt could reflect what is termed as the
“couleur locale”. Although it is not mentioned in the RoP, it appears to be open to the Court to
order that experts from the same discipline give their evidence concurrently, a system known
as “hot-tubbing”. The UK courts have had the power to make such orders since April 2013
following the perceived success of a similar approach in Australian courts. Instead of one party’s
expert giving evidence and then being cross-examined on it, and the same happening with the
other party’s expert the experts are sworn in at the same time and are available,
simultaneously, for the judge to question.
Adjournment and Call for Further Evidence
14-42 In “exceptional circumstances” the Court may, after hearing the parties’ oral submissions,
decide to adjourn proceedings and call for further evidence. 89 It is unclear what the Court will
consider to be exceptional circumstances, but given the emphasis in the RoP on preparation for
the oral hearing and the expressed wish for cases to be heard within one year, it is suggested
that once a trial has started, it should only be adjourned circumstances where not to do so
would prejudice the outcome of the case on a significant point. This is in contrast to the practice
in Germany where it is possible to call for further evidence, and the court will issue a decision
on how evidence will be taken in the future proceedings if it cannot be taken immediately. 90
Preliminary Reference to the CJEU
14-43 At any stage of proceedings if the Court considers that a decision by the CJEU is necessary
before the Court can give judgment, a request can be made to the CJEU to make such a ruling. 91
It remains to be seen whether the Court will wait until the oral hearing to make such a
reference or if this is likely to occur at an earlier stage in proceedings. However, the Court
may stay proceedings once a reference has been made and if the proceedings are not stayed,
the Court will not give its judgment until the CJEU has ruled on the question. 92
Decisions and Orders of the Court
Deliberations
14-44 The Court deliberates in closed session; the presiding judge presides over the deliberations.
Only the judges who were present at the oral hearing may take part in the deliberations on
the decision. 93 The deliberations are to be, and are to remain, secret. 94 The deliberations should
take place as soon as possible after the closure of the oral hearing. 95
89
90
91
92
93
94
95
r.114 RoP.
Schäfers A, Benkard G, “Patentgesetz”, 11th edn, (Munich: C.H. Beck, 2015), § 88 para.10; Eichele H, Sänger I,
“Zivilprozessordnung”, 6th edn, (Baden-Baden: Nomos, 2015) § 358 paras 1 to 4.
r.266(1) RoP. The Court of Appeal, in contrast, must request a ruling from the CJEU in such circumstances.
r.266(5) RoP.
rr.344(1) and (2) RoP.
art.34 UPCA Statute.
r.344(3) RoP.
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A Guide to the UPC and the UP 262
