Examination by Videolink as a Transfer of Foreign Evidence?

Compared to the preceding case where a foreign witness is summoned to appear before the trial court,¹²⁰ the situation regarding an examination via videolink is different. The foreign witness does not travel to the state of the trial court, but is located abroad when giving evidence. In other words, it is not the witness who travels to the state of the trial court, rather it is the wit-ness’ testimony that is brought to the trial court by videolink. Having said this, the question arises as to whether an examination by videolink does nevertheless qualify as a transfer of for-eign evidence.¹²¹ It appears that, thus far, this question has not been widely discussed.¹²²

According to Stadler, the examination of foreign third parties by the trial court via videolink interferes with foreign sovereignty. She maintains that the fact that the trial court conducts the questioning in its own jurisdiction is irrelevant, as the trial court becomes virtually active across national borders.¹²³

Schack also holds that an examination by videolink has to be performed by means of interna-tional judicial assistance. In this context, he refers to Articles 10(4) and 17(4)(3) of the Europe-an Evidence Regulation where it is mentioned that the requested state may use videoconferenc-ing when rendervideoconferenc-ing active judicial assistance and that, in case of passive judicial assistance, the requested state shall encourage the use of videolink technologies.¹²⁴ This view is shared by Schulze and Hess who note that the fact that the European Evidence Regulation includes the examination via videolink shows that the European legislator considers such questioning not as

119 Carrington PD ʻVirtuelles Zivilverfahren in den USA: Ein Besuch in John Bunyans Himmlischer Stadtʼ 1998 Zeitschrift für Zivilprozeß International 347 et seq.; Stadler A ʻ§ 128aʼ in Musielak H-J (ed) Kommentar zur Zivilprozessordnung mit Gerichtsverfassungsgesetz 2012 653 n. 7.

120 See para. V.B.1 above.

121 Cf. also Markus AR ʻNeue Entwicklungen bei der internationalen Rechtshilfe in Zivil- und Handelssachenʼ 2002 Schweizerische Zeitschrift für Wirtschafts- und Finanzmarktrecht78.

122 The following comments focus on the few legal scholars in Germany and Switzerland who have discussed this issue.

123 Stadler A ʻ§ 128aʼ in Musielak H-J (ed) Kommentar zur Zivilprozessordnung mit Gerichtsverfassungsgesetz 2012 653 n. 8; Stadler A ʻDer Zivilprozeß und neue Formen der Informationstechnikʼ 2002 Zeitschrift für Zi-vilprozeß 441.

124 Schack H Internationales Zivilverfahrensrecht 2010 276 n. 807.

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a transfer of foreign evidence, but as evidence-taking on foreign territory which requires inter-national judicial assistance.¹²⁵

Markus compares the examination by videolink with the written reply a foreign witness sub-mits to the trial court in response to a questionnaire issued by the latter¹²⁶ and considers such reply as a transfer of foreign evidence. He argues that if one merely takes into account the an-swers given by the foreign witness by videolink, such responses would not constitute a judicial act on foreign territory. Markus, however, emphasises that the examination by videolink is, un-like the written reply to a questionnaire, an interactive process between the witness and the trial court which includes an element of immediacy.¹²⁷ The answers given by the witness via video-link can, according to Markus, not be considered in isolation, but have to be seen as part of the witness examination which is a homogenous process that includes both the questions put to the witness and the answers given by him. Against this background, Markus argues that the domi-ciles of all respective participants have to be taken into account and regards the examination by videolink as evidence-taking on foreign territory.¹²⁸

A similar view is shared by Küttler who maintains that in the context of an examination by videolink, the location where the evidence is taken extends from the domicile of the trial court to the state where the witness to be questioned is domiciled.¹²⁹

In contrast, Geimer and Berger consider the said examination not as interference with foreign sovereignty without, however, giving any reasons for his position.¹³⁰

It is submitted that the approach taken by Markus is not fully convincing. It is correct that the witness is located in the foreign state when answering the questions put to him by videolink.

However, it should also be noted that the trial court is situated outside the foreign state when asking the questions and receiving the witness’ answers. A considerable part of the witness

125 Hess B Europäisches Zivilprozessrecht2010474 n. 55; Schulze G ʻDialogische Beweisaufnahmen im interna-tionalen Rechtshilfeverkehr: Beweisaufnahmen im Ausland durch und im Beisein des Prozeßgerichtsʼ 2001 Praxis des Internationalen Privat- und Verfahrensrechts 529.

126 See in this regard para. V.E below.

127 In German called “Unmittelbarkeit”.

128 Markus AR ʻNeue Entwicklungen bei der internationalen Rechtshilfe in Zivil- und Handelssachenʼ 2002 Schweizerische Zeitschrift für Wirtschafts- und Finanzmarktrecht78 et seq.; Markus AR ʻRechtshilfe in Zivil-sachen: Ausgewählte Auszüge aus der neuen Wegleitung des Bundesamtes für Justizʼ in Leuenberger C and Guy J-A (eds) Rechtshilfe und Vollstreckung: Zivilsachen, Kindesentführungen und Konkurs 2004 26 et seq.

See also Hopf T ʻArt. 271ʼ in Niggli MA and Wiprächtiger H (eds) Basler Kommentar Strafrecht II Art. 111-392 StGB 1927 n. 23.

129 Küttler A Das Erlangen von Beweisen in den USA zur Verwertung im deutschen Zivilprozeß 2007 153.

130 Geimer R Internationales Zivilprozessrecht 2009 215 n. 437; Berger C ʻ§ 363ʼ in Stein F and Jonas M (ed) Kommentar zur Zivilprozeßordnung Band 5 §§ 328-510b 2006 318 n. 14.

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amination thus occurs in the jurisdiction of the trial court. Moreover, the differentiation be-tween the written reply of a witness to a questionnaire issued by the trial court and a respective oral testimony in the course of an examination by videolink, as outlined by Markus, seems ra-ther artificial. The way the questions by the trial court and the answers of the witness are transmitted, that is, usually by physical mail in case of a testimony based on a questionnaire or via videolink, should not be the crucial point. Rather, regard should be had to the question whether and, if so, to what extent these two forms of evidence-taking impair foreign sovereign-ty. It is submitted that a testimony based on a questionnaire and an examination by videolink may affect foreign sovereignty to the same extent, as in both cases, a witness answers questions by a trial court located in a different state. The interference with foreign sovereignty is, if at all, only marginal, as the trial court does not become physically active on foreign territory. Moreo-ver, one can argue that the witness examination is only concluded once the trial court has taken notice of the testimony, and that such notice takes place in the trial court’s jurisdiction and not at the foreign domicile of the witness.¹³¹

In the light of the above, it is submitted that the examination by videolink constitutes a transfer of foreign evidence.¹³² The testimony by videoconference should be treated the same way as evidence based on a questionnaire.¹³³ In this context, one has to bear in mind that the qualifica-tion of an examinaqualifica-tion by videolink as a transfer of foreign evidence does not give the trial court unconditional and unrestricted access to witnesses residing abroad. Rather, such access is limited by the fact that certain foreign witnesses are under no obligation to cooperate with the trial court and that, with regard to those witnesses who are obliged to collaborate, the compul-sion a trial court may use is restricted.¹³⁴ These limitations take sufficient account of the sover-eign interests of the forsover-eign state and, at the same time, contribute to the much needed facilita-tion of cross-border taking of evidence in civil and commercial matters. This is all the more true, as the examination by videolink is best suited to serve as an alternative to those cases where a foreign witness cannot be interrogated in the jurisdiction of the trial court. Finally, one has to keep in mind that the hostile stance civil-law countries generally take towards a request of a trial court for a transfer of foreign evidence is often not rooted in concerns of the respec-tive states about their sovereignty, but rather with an eye to protect their nationals and/or resi-dents from getting involved with foreign procedural laws with which the latter are

131 Cf. in this regard para. V.E.2.

132 See also in this regard fn. 104 above.

133 Which is to be regarded as a transfer of foreign evidence. See in this regard para. V.E.2 below.

134 Cf. para. IV.C.6 above.

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iar.¹³⁵ The foregoing comments not only apply to the examination of foreign witnesses by videolink, but to all other forms of transfer of foreign evidence.¹³⁶