Litigation Passport

How do your courts determine if they have jurisdiction?

Jurisdiction within the Federal and State/Territory court systems is determined by a number of factors including the purpose for which the court was established, the geographical location of the parties, contracts or property in dispute, the nature of the claim, and the monetary value involved in the dispute.

The Federal Court’s jurisdiction is broad, covering all (non-criminal) matters arising under any Commonwealth statute (and criminal matters under the Competition and Consumer Act). The Federal Courts also have “accrued” jurisdiction in relation to general matters arising out of the same facts, which may not otherwise fall within its general jurisdiction.

The State courts have jurisdiction over all matters over which the Australian Federal courts do not have exclusive jurisdiction. Much of Federal jurisdiction is non-exclusive, for example, proceedings under the Corporations Act and the Competition and Consumer Act can be brought in the Federal or State courts, subject to some statutory limitations.

Given the potential overlap in jurisdiction between State and Federal Courts, cross vesting legislation allows courts to make orders transferring matters between State jurisdictions, and between Federal and State Jurisdictions based on considerations as to the most appropriate forum.

Can a defendant dispute jurisdiction and if so, how?

Yes, a defendant can challenge jurisdiction. Jurisdictional challenges can arise between State and Federal courts, courts of different States, or where proceedings have been commenced in a foreign court (particularly where the parties have agreed that the foreign court will have exclusive jurisdiction over a particular dispute). The usual process for challenging jurisdiction involves an application to set aside service of the proceedings.

Where the defendant seeks to have another court hear and determine the proceedings, subject to any statutory provisions which mandate that proceedings be heard in a particular court or tribunal, the defendant must establish that the court in which the proceeding has been commenced is a ‘clearly inappropriate forum’. In determining whether a court is a ‘clearly inappropriate forum’, the court will consider factors such as the governing law of the contract or the wrong underlying the dispute, the location of witnesses and evidence, the residence or business address of the parties, any legitimate personal and judicial advantages only available to the claimant in litigating in Australia (for example, statutory causes of action), and the jurisdiction in which the parties’ conduct took place. The court may also decline to exercise jurisdiction where it considers the proceedings to be oppressive or vexatious.

A foreign defendant may also challenge jurisdiction of the courts on the basis that they are not subject to the jurisdiction. If the matter proceeds against the foreign defendant, there is a risk that it may not be enforceable against the foreign defendant over which a foreign court would have jurisdiction.

A defendant may also apply to stay court proceedings where the parties to the dispute have agreed to refer their disputes to arbitration pursuant to a valid arbitration agreement. The courts must stay the proceedings unless it can be established that the arbitration agreement is null and void, inoperative or incapable of being performed (International Arbitration Act 1974 (Cth) and uniform State Commercial Arbitration Acts).

Are parties in litigation under any obligation to keep the proceedings confidential?

Australia has an open court system, so proceedings are open to the public. There is no obligation on a party to litigation to keep the proceedings confidential unless the court has made orders to the contrary. There is, however, an obligation on parties who receive documents or information as a result of any rule or process, including discovered and subpoenaed documents not to use those documents for any purpose other than the proceedings in which the documents were produced until such information or documents have been received into evidence.

Can hearings be held in private and court documents restricted?

The courts have power to hold hearings ‘in camera’ (that is, closed court), to make orders supressing the names of parties or prohibiting publication, and to impose confidentiality regimes in relation to evidence. A court will not make orders for closed hearings except in exceptional circumstances, for example, where the court is hearing a matter concerning national security issues.

Some court documents filed in civil proceedings are available on request of a non-party from the relevant court registry. This is usually limited to pleadings and usually excludes witness statements and affidavits until after they have been formally received into evidence in open court.

Are there any pre-action considerations or processes that parties should take into account?

There is no general obligation on a claimant to issue a pre-action letter, or on a defendant to respond, however, the usual practice is for a potential claimant to make a formal demand in writing before the claimant commences proceedings. Pre—action communications are necessary to satisfy pre-action protocols in the Federal and some State jurisdictions.

In the Federal courts, claimants are required to take genuine steps to resolve a dispute before issue of proceedings and to file a ‘genuine steps’ statement with the court, setting out either the steps taken to resolve the dispute or the reasons why no genuine steps were taken.

In some States (notably, Victoria), litigants (and their solicitors) are subject to specific obligations which include obligations to use reasonable steps to resolve the dispute or narrow issues in dispute. These are known as the ‘overarching obligations’ and are imposed through the Civil Procedure Act (Vic) 2010. These are consistent with the strong culture of mediation and alternative dispute resolution in all Australian States and Territories.

Are there any consequences for non-compliance?

Failure to comply with the ‘genuine steps’ requirement does not preclude a claimant from commencing proceedings. However, the court may subsequently make adverse costs orders against the claimant.

In Victoria, the courts take into account parties’ compliance with the overarching obligations in making case management orders and can make adverse costs orders where there is a failure to comply.

How are proceedings commenced?

Proceedings are generally commenced by the filing of either a writ (with or without a statement of claim) or a similar originating process (or application). Where the proceeding is commenced by application, the claimant will usually also file evidence in support of its application (in the form of affidavits).

The civil procedure rules for each court will set out the requirements, which will depend on the relief a party is seeking from the court.

For domestic proceedings, how and by whom is service effected?

Service requirements will depend on the jurisdiction in which the proceeding is issued, the type of relief sought in the proceeding and the location of the defendant. Where service on the defendant is not possible in the manner prescribed by the relevant court rules, a court may make orders for ‘substituted’ service. A solicitor can accept service on behalf of a party where it has express instructions to do so.

Depending on the jurisdiction, service can be effected by personal service or by ordinary service.

Personal service is effected by leaving a copy of the originating document with the person being served, or if the person does not accept the document, by putting the copy of the document down in the person’s presence and telling the person the nature of the document. Personal service on a corporation means personally serving the document on the director or secretary of the company or posting it to, or leaving it at, the registered address of the business when the company is incorporated under the Corporations Act. If the company is insolvent, service can be effected by posting the documents to, or leaving them at, the registered address of the liquidator or administrator. Service on a lawyer who has instructions to accept service can also be effected by leaving the documents with a person employed at the registered address of the individual’s solicitor’s office. Agreements to accept service by email a commonplace.

Ordinary service applies where documents do not need to be served in person. It includes leaving documents at a person’s address or sending the documents by mail.

For foreign proceedings, what are the permitted methods of service in your jurisdiction?

Australia is a member to the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the Convention), which provides a mechanism for the transmission of documents for service to countries which are parties.

Under the Convention, extrajudicial documents coming from other contracting States can be filed with the Private International and Commercial Law Section of the Australian Government Attorney-General’s Department (Central Authority) enclosing a Letter of Request for transmission and a standard form available on the Central Authority website. Extrajudicial documents coming from non-contracting States can be filed for transmission through this mechanism, but the Central Authority retains discretion on whether to accept those documents.

The Central Authority then forwards the request to the Registrar of the Supreme Court of the State or Territory where the service is to be effected, and an officer of that court takes steps to serve the proceedings on the addressee in accordance with the information enclosed to the request. The requirements for personal service may vary between States and Territories, as each court has delegated jurisdiction to enact its rules in relation to domestic service of proceedings. The main advantage of using the process set out under the Convention is that a foreign litigant will receive an affidavit or certificate confirming service, or attempted service, for its subsequent use in the foreign jurisdiction.

All documents forwarded for service in Australia must be written in or translated into English unless an addressee voluntarily and expressly accepts service in another language.

Outside the process established by the Convention, Australia does not object to service by postal channels if the documents are posted using registered mail. However, the issuing party needs to refer to the rules of the foreign jurisdiction to ensure that postal service is accepted as a valid service in respect of the subject matter and foreign procedure.

Australia is also signatory to a number of bilateral treaties that provide alternative mechanisms for service of proceedings commenced within the jurisdiction of the parties to those treaties. By way of example, the bilateral agreements between Australia and the Republic of Korea, and Australia and Thailand, both contain mechanisms for service of proceedings in Australia.

Diplomatic channels are also available for transmission of documents, but they are not recommended as they are often subject to extensive delays. The Department of Foreign Affairs and Trade is the authority responsible for processing transmission of documents through diplomatic channels.

Alternatively, private process servers can be used to serve proceedings in Australia where the rules of the foreign jurisdiction permit this form of service.

Can third parties be joined to an action? What are the practical steps needed to achieve this?

Yes. The circumstances in which a third party can be joined to a proceeding will be set out in the civil procedure rules applicable to the relevant jurisdiction. The court can make an order joining a third party if it considers it necessary for the determination of all matters in dispute or, for example, where a defendant claims a third party has proportionate liability.

In practice, the application will usually be made by summons with evidence in written form, by way of one or more supporting affidavits and exhibits of documents referred in the content of the affidavits.

Are the courts able to hear two or more related or closely connected actions? If so, what are the practical steps needed to achieve this?

Courts can hear cases together where the proceedings give rise to a common question of law or fact and where all rights of relief claim in the originating process are in respect of, or arise out of, the same transaction.

What are the rules for disclosure in your jurisdiction?

Discovery or disclosure procedures vary between the different jurisdictions and are set out in the relevant court rules.

Discovery usually follows close of pleadings. It may be general discovery or limited by category and the courts have broad discretion to make orders or directions, including as to the categories. Discovery is not available as of right in all jurisdictions. In some cases, for example, in the Federal Court, a party must apply to the court for discovery, and discovery orders will only be made where the court considers the discovery to be necessary to facilitate the resolution of the proceedings.

Discovery is also available as a pre-issue procedure to identify a defendant or to enable a potential claimant to make a decision whether to commence proceedings (for example, where the potential claimant is unsure whether it has a cause of action). The courts have the power to make orders for third party discovery.

A party is not required to make discovery of documents which are privileged, and orders can be obtained to restrict access to confidential documents (either in whole or through redaction). The obligation to make discovery is an ongoing obligation, so that if a document comes into a party’s possession or control which falls within the scope of discovery in the relevant proceeding, that document must be discovered.

Are there any required processes e.g. eDisclosure/eDiscovery, predictive coding?

Discovery is generally made by listing the documents in an affidavit or a schedule to an affidavit and a representative of the party deposing that there are no further documents falling within the scope of the discovery obligations.

Some of the courts have practice notes or protocols setting out requirements for electronic discovery, including a requirement that emails and other documents be discovered in native format. In practice, in commercial matters, discovery is now almost always made electronically, and parties are encouraged to consult on the appropriate technology platform for each matter.

The extent to which parties use artificial intelligence to identify discoverable documents is usually a matter for the parties (and not something with which the court will concern itself). Ultimately, the obligation to make discovery rests on the parties and there is also an obligation on solicitors under professional practice rules to ensure that their clients are aware of the nature and extent of discovery obligations and the consequences of a failure to comply.

What are the sanctions for non-compliance?

The courts have broad powers to sanction a party which fails to make discovery in accordance with the obligations imposed on it. These include orders precluding a party from relying on a document which was not discovered in the proceeding, the dismissal of proceedings or the striking out of claims, adverse costs orders or, in more serious cases, a finding of contempt of court.

Are there any exceptions to these rules (e.g. on the grounds of public interest, privilege or confidentiality etc.)?

As noted above, a party is not required to disclose privileged documents through the discovery process.

Privilege includes legal professional privilege (litigation and advice privilege) and privilege against self-incrimination (for individuals only). A party can object to giving evidence on the ground that it is self-incriminatory, but the court retains the power to compel the production of that evidence, subject to a certificate of partial immunity, where the court is satisfied that it is in the in the interest of justice to do so.

Without prejudice communications (arising in the context of settlement discussions) are also exempt from discovery.

Certain other documents may be protected on the ground of public interest immunity, which protects highly confidential or sensitive information, for example, that contained in confidential government communications or papers. In some discrete cases, there are statutory prohibitions on the disclosure of documents and information, for example, in matters of national security.

Can non/third parties be compelled to disclose documents?

Yes. Third parties and non-parties may be compelled to produce documents either pursuant to an order for non-party discovery or pursuant to a subpoena.

What are the rules on privilege in your jurisdiction? When considering cross–border privilege, what is the test your courts apply to privilege? (i.e. will your jurisdiction determine privilege under its own system or that of the country from where the documents originated)?

A party can refuse to produce an otherwise discoverable document on the basis of legal professional privilege.

Legal professional privilege has two distinct limbs: firstly, it protects confidential communications made between a client, its lawyer and/or a third party for the purpose of obtaining legal advice (advice privilege); and, secondly, it protects those same type of communications where they are created for the dominant purpose of actual or anticipated legal proceedings.

The Australian courts will determine privilege under Australian law where privilege is claimed in an Australian proceeding. The privilege derives from the purpose for which the communication was created and ‘belongs’ to the client. It can be waived, either purposefully or unintentionally, by the client.

What are the rules in relation to expert evidence?

Unless a court makes orders to the contrary, a party to a proceeding can engage, and rely on evidence from, an expert.

An expert’s duty is to the court and the expert must be suitably qualified in the topic of their report and be able to give an independent opinion without acting as advocate for a party in the proceeding. Each of the courts has a code of conduct for experts and many of the courts set out specific procedures in practice notes or directions.

It is standard procedure in many courts to require experts to meet in an expert ‘conclave’ prior to the hearing (with or without lawyers) to identify issues on which they can agree and issues which remain in dispute. In some courts, the experts are required to prepare a joint report for the court with this information. Some judges, in their case management role, make prescriptive orders about the engagement of experts (including the number of experts which can be relied on by a party) and the questions which the expert(s) will be asked to address in a written report. These measures are designed to facilitate the efficient resolution of the dispute.

Are experts appointed by your courts or by the parties?

Conventionally, experts are appointed by the parties to the proceedings. However, in some State/Territory and Federal courts, the court may appoint an expert to report to the court on a particular issue arising in the proceedings. This generally only occurs where the court is required to determine complex technical matters, or where a lengthy examination of documents or accounts is necessary. A court may accept or reject the report provided by the expert and deliver judgment as it sees fit.

What are the rules in relation to the calling of factual witnesses?

Each party to proceedings is free to call factual witnesses to support its case and the courts do not interfere with or limit this right.

Where a person is unwilling to act as a witness, that person can be compelled to give evidence via a subpoena. Failure to comply with a subpoena, without lawful excuse, may result in the witness being held in contempt of court.

Factual evidence is usually filed after the close of pleadings and after discovery, although there are different rules in different specialist lists in the various courts.

Questions of admissibility of evidence from factual witnesses will be determined by the court, either prior to or at the evidentiary hearing.

Unless a witness is also a party to the proceedings, the court will usually order witnesses to remain outside of the hearing until they have given evidence and been cross-examined.

Is witness evidence submitted in written form or orally, or a combination of the two?

Evidence is usually prepared in the form of a witness statement or affidavit. Where a witness is not available to provide a statement or affidavit, the court may allow an outline of evidence to be filed for that witness with evidence in chief at the hearing.

Witnesses can also give evidence orally (although this will depend on directions or orders made by the court in a particular proceeding).

Are witnesses subject to cross-examination?

Witnesses are subject to cross-examination. It is usual for the parties to give each other notice of their intention to cross-examine each witness prior to the trial.

Where a witness provides evidence in the form of an affidavit or statement and is later unavailable to be cross-examined at the hearing, certain inferences can be drawn by the court about that witness’ evidence (including inferences which are adverse to the party who seeks to rely on the evidence).

Are the courts able to order interim remedies during proceedings, and if so, what remedies are available? (e.g. freezing injunctions, search orders or security for costs etc.)

The courts in Australia have power to grant a range of interim remedies, including interlocutory injunctions, freezing orders, and security for costs. Injunctions can be mandatory (requiring a party to take a particular step) or prohibitory (restraining certain conduct). The court has discretion in determining whether or not to grant an injunction

Interlocutory injunctions – in exercising its discretion the court will consider whether:

• the claimant can show, based on the existing evidence, that there is a sufficient likelihood of success or that there is a serious issue to be tried;
• the ‘balance of convenience’ favours granting the injunction, that is whether the inconvenience of harm to the claimant if an injunction is refused outweighs the harm to the defendant if the injunction is granted (or vice versa);
• damages would not be an adequate remedy for the claimant; and
• the claimant provides an undertaking as to damages – this ensures the defendant will not be at a financial loss if the court later decides that the injunction should not have been ordered.

Freezing orders – the court has the power to make freezing orders (also known as Mareva orders or asset preservation orders) to prevent a party disposing of or dealing with assets. Freezing orders are usually made in circumstances where the applicant has a monetary claim. They are generally obtained on a without notice (ex parte) basis with a with notice (inter partes) hearing held shortly after. A freezing order is an exceptional remedy and will not be granted lightly. Amongst other things, the court needs to be satisfied that the granting of the order is necessary to prevent the frustration or inhibition of the court’s process where there is a real danger that a judgment, or prospective judgment, of the court will be wholly or partly unsatisfied.

Security for costs – the court may make an order for security for costs where there is a real risk that the claimant, if it does not succeed in its claims, has no financial resources to pay the legal costs of the defendant. This is a discretionary remedy, and the court has wide powers. There are particular circumstances where security for costs is commonly granted, for example, where the claimant is out of the jurisdiction and has no assets within the jurisdiction or where the claimant is impecunious.

Can cases be dealt with summarily? For example, because there is no case to answer (e.g. summary judgment), or because a party has not taken a required step in the proceedings (e.g. default judgment for failing to file a defence)?

Default judgment: if a defendant fails to file an acknowledgement of the proceedings or take any steps in response to effective service of the proceeding within the time prescribed by the relevant court rules, the claimant can make an application for default judgment. This is a procedural default; it does not take into account the merits of the claim or defence.

Summary judgment and summary dismissal: most courts have the power to bring proceedings to an end at an early stage where either the claimant or the defendant has no prospects of success. This discretionary power is exercised to ensure the other party is not put to the expense and delay of a trial.

Summary judgment is generally not available where a party can show that there is a factual dispute or where the relevant law is in an uncertain state. The application is determined on the facts as pleaded at the time of the hearing of the application. The applicant must show that there is no real prospect of the other party succeeding in its claims.

A court can summarily dismiss a proceeding where the proceeding is frivolous, vexatious, fails to disclose a reasonable cause of action, or is an abuse of process.

Do the courts have powers to encourage settlement? Are there any formalities required to effect a settlement?

The courts actively encourage settlement and mediation is a mandatory step in most civil proceedings. Only a small proportion of civil claims proceed to a hearing.

Court ordered mediation can occur at any time throughout a proceeding but is most common immediately prior to the setting down of the matter for trial. It is not uncommon for parties to be ordered to mediate more than once and mediation is also a requisite step in disputes over legal costs and in appeals. The parties have the option of engaging a private mediator or, in most courts, using the services of a trained court representative. Where the mediation is court ordered, the mediator must report back to the court as to whether the matter has settled (but nothing further is disclosed about the mediation process).

In some cases, the courts invite the parties to adjourn and take part in a mediation during the hearing itself.

Are the legal costs recoverable from the unsuccessful party?

Generally, a percentage of the winning party’s costs is recoverable from the losing party. However, the State and Federal courts retain discretion to award costs as they see fit. In civil litigation the general rule is that the loser pays a part of the winner’s costs as ‘costs follow the event’, but the discretion of the courts is not fettered. The courts can also apportion costs having regard to the multiplicity of parties, actions, issues, and the mixed success enjoyed by the parties, or in relation to particular questions of parts of the proceedings.

The rules of each State and Federal jurisdiction will determine the recoverability of costs. Litigants generally have an opportunity to address the court on that issue at the end of the proceeding. Depending on the type of costs awarded, the successful party may be able to recover between 50% and 70% of its costs. The court has discretion to award the following type of costs:

• Party/party costs (standard basis of assessment) – these are costs that are deemed fair and reasonable in relation to professional fees and expenses which have been incurred by the successful party in pursuing a case or defending one triggered by the other party, and include costs which are ‘necessary and proper’ by reference to a scale of costs set by the court, or as assessed, this is usually between 50% to 70%.
• Solicitor/client (indemnity basis of assessment) – these are all costs reasonably incurred having regard to the scale of fees as set by the court, any costs agreement between the party to whom the costs are payable and the party’s solicitor, and expenses usually payable by a client to a solicitor. This comprises almost all of the party’s legal costs, but it does not include work undertaken outside the scope of the retainer for the court proceedings, this is usually between 60% and 70% (but only awarded where the court is satisfied that it is appropriate to depart from the ordinary practice, having regard to the issues discussed below).

The parties may agree on the amount of costs to be paid by one party to another. If they do not agree, the costs are determined by cost assessors appointed by the court.

Can the courts award costs as a sanction against a defaulting party?

The purpose of favourable costs orders is compensatory in nature and not punitive.

What circumstances will the court take into account when awarding costs?

The court can exercise its discretion to award solicitor/client (indemnity basis) costs where it is satisfied that a party has acted unreasonably or improperly, or in situations where a party has argued a hopeless case, abused the process of the court, or where a party failed to act reasonably in relation to an offer or compromise or a ‘Calderbank letter’.

If a party declines to accept an offer of compromise which is objectively reasonable, and ultimately the matter proceeds to trial and the court issues a judgment that is less favourable to that party than the offer, then the court will generally order that party to pay a higher proportion of the legal costs incurred by the other party.

What types of contingency or conditional fee arrangements between lawyers and their clients are available?

Contingency fees (where the amount payable to the lawyer is calculated by reference to the amount of any award or settlement or the value of any property that may be recovered in any proceedings) are currently prohibited by the laws governing legal practice in NSW and Western Australia. In June 2020, the Victorian Government enacted new legislation allowing claimant law firms to charge contingency fees in group proceedings (also known as class actions). The Supreme Court of Victoria approved the first application for a contingency fee funding arrangement in February 2022, when it fixed the lead claimant’s solicitors fees at 27.5% (inclusive of Goods and Services Tax) (in Allen v G8 Education Ltd [2022] VSC 32). It has been suggested that the availability of contingency fees may increase the number of group proceedings commenced in the State of Victoria.

Conditional costs agreements (where payment of some or all legal costs is conditional on achieving a stated outcome of the matter) are permitted in relation to civil proceedings, but conditional on all legal costs being fair and reasonable. Uplift fees are also permissible in conditional costs agreements provided the basis for calculating the uplift fee is separately defined in the agreement and certain caps apply.

Can parties use third party funding to finance proceedings? If so, are there any restrictions on this? (e.g. only available for certain types of claims or forum)

Third party or litigation funding is permitted in Australia and litigation funders are subject to regulation. Until 2022, litigation funders were classed as ‘managed investment schemes’ and subject to Chapter 5C of the Corporations Act. Funders remain subject to regulation under the Australian Securities and Investments Commission and must obtain an Australian Financial Services Licence.

Litigation funding is most common in class actions or group proceedings but is becoming more common in other types of civil proceedings (particularly where a claimant has limited financial resources with a claim or claims with strong prospects of success).

In what circumstances and on what grounds can an appeal be made? What is the procedure, timescale, and cost for appealing?

The rules governing appeals are contained in the regulations and legislation applicable to each court. In some cases, a litigant can appeal as of right; in other cases, an appeal is only allowed with the court’s leave. There are strict time requirements for the filing of appeals in most jurisdictions. An appeal to the High Court can only proceed where the High Court grants special leave.

In practice (except for an appeal to the High Court), an application for leave is often heard at the same time as the appeal itself.

Appeals are only available on questions of law. The appeal will be heard and determined without further evidence. The legal costs and the timing of appeals will depend on the scope of the appeal (and on the court’s schedule).

What is the procedure, timescale, and cost for enforcing local judgments?

The courts in each jurisdiction prescribe the procedures available for enforcing their judgments.

These may include a writ of possession or a warrant for possession for land, a writ of delivery of goods, a garnishee order, or a charging order (for monetary judgments). Where a corporate entity fails to satisfy a monetary judgment, the judgment creditor can apply for the appointment of a receiver or for the winding up of the corporate debtor. Failure by an individual to satisfy a judgment may result in bankruptcy proceedings.

Enforcement of a judgment is ordinarily a without notice (ex parte) procedure. Each court has its own requirements, including as to the initiating court documents. A judgment creditor who pursued its claims through the Federal Court can use the enforcement procedures of the relevant State courts to enforce a judgment.

What is the procedure, timescale, and cost for enforcing foreign judgments? Are there any reciprocal conventions that assist?

There are three avenues for enforcement of a foreign judgment in Australia: firstly, under specific treaty arrangements between Australia and the foreign jurisdiction (for example, New Zealand); secondly, though the Foreign Judgments Act 1991 (Cth) (FJA) (for jurisdictions listed in the regulations made under that Act); and, thirdly, at common law.

To be enforceable under the FJA, a judgment must be an enforceable money judgment that is final and conclusive and was made by a superior court of a country in relation to which the legislation applies or a nominated inferior court. A judgment may be final and conclusive even where an appeal is pending in the foreign jurisdiction. An application for enforcement must be made within 6 years of the date of the judgment.

Where the FJA does not apply, a party may seek enforcement at common law. Enforcement under common law will be available if the following four criteria are satisfied:

1. the parties to the application in the Australian courts are the same parties to those named in the judgment;
2. the foreign court has exercised an international jurisdiction that the Australian courts recognise;
3. the judgment is final and conclusive; and
4. the judgment is for a fixed monetary sum (although there are some exceptions).

An applicant for orders for enforcement of a foreign judgment must bring a fresh action in the Australian courts, suing for the judgment amount as a debt and/or bringing an action on the original cause of action and relying on the foreign judgment as an absence of defence to that claim.

There are limited defences available to a defendant resisting enforcement, including where:

1. the judgment was obtained by fraud;
2. the foreign court acted in a manner which is contrary to natural justice;
3. the foreign judgment is penal or a judgment debt for revenue debt; and
4. the judgment is contrary to public policy.

The question of whether a defence is available will depend on the facts of each case.

Does your jurisdiction recognise ADR (e.g. mediation etc.) and are there exceptions? Do the courts have power to encourage ADR? Are there sanctions for refusing to engage with ADR? What are the main ADR forums in your jurisdiction?

As noted above, mediation is a mandatory step in most civil proceedings. The courts also have power to refer disputes, or particular aspects of a dispute, to arbitration or for expert determination. The requirement in Federal courts that parties engage in ‘genuine steps’ to explore resolution of their dispute before commencing proceedings reflects the culture which embraces alternative dispute resolution.

Many Australian contracts contain escalation clauses, which require parties to engage in negotiation or mediation before pursuing claims through litigation or arbitration. Where the parties have chosen to refer disputes to arbitration, the courts will generally uphold the arbitration clause and stay the court proceedings. The Australian courts also have a proven track record in enforcing foreign arbitral awards. Consistent with the requirements of the New York Convention, there is no merits review of an award. Enforcement can only be resisted on specified procedural grounds or where the award is contrary to public policy.

What are the key developments in your jurisdiction (reforms, changes in legislation, growth areas, impact of technology etc.)

Technology – the Australian courts have embraced technology, with the establishment of online court registries and most offering virtual hearings (particularly for appeals and case management or directions hearings). This is expected to continue as new technology becomes available. The courts also actively engage with the legal profession and experts to explore options for improving access to justice.

Case management – active case management is a key feature in the Australian courts. Practice notes published by the commercial courts are based on efficient, timely, and appropriate resolution of disputes and courts are increasingly willing to make orders sanctioning parties who do not adhere to that objective. Consistent with this is the establishment (in most superior courts and some intermediate courts) of specialist lists with specific procedures which encourage efficiency and fairness.

Alternative dispute resolution – the court’s support for alternative dispute resolution procedures is strong. Mandatory mediation was introduced over a decade ago in most courts and there are ongoing steps to educate litigants about the options for dispute resolution, including a new referral system in the Victorian County Court where appropriate matters are, with the consent of the parties’, referred to arbitration even where the parties’ original agreements did not contain an arbitration clause.

How do your courts determine if they have jurisdiction?

A distinction must be made between the material and the territorial competence of the courts.

In terms of the material competence, the court before which a dispute is determined will depend on the nature of the dispute (e.g. labour law disputes), the nature of the parties (e.g. merchants) and the size of the amount involved.

In terms of the territorial competence, with the exception of cases where the law expressly determines which court has jurisdiction to hear the claim, or unless an agreement exists between the parties concerning which court is territorially competent, the claim can be brought:

1. before the court of the domicile of the defendant or one of the defendants;
2. before the court of the place where one or more of the obligations, which are the subject of the dispute, arose, or where they are, have been, or are to be performed;
3. before the court of the place of residence chosen for the execution of the deed;
4. if the defendant is not domiciled in Belgium, but abroad, then in the court of the place where the judicial officer has spoken to the defendant in person. This is the case when a defendant is not officially registered on an address (in Belgium or abroad). Such person can be brought before the court of the place where the bailiff has been able to reach them.

Can a defendant dispute jurisdiction and if so, how?

The defendant must invoke the lack of competence of the court seized before filing a defence, except when said (in)competence is a matter of public order. Moreover, the defendant may only reject the competence of the court seized if it identifies the court which, in its opinion, is competent.

Are parties in litigation under any obligation to keep the proceedings confidential?

The parties are, in principle, under no obligation to keep the proceedings confidential. However, within the framework of a settlement procedure, parties may agree on the confidentiality of the proceedings and of the contents of the settlement agreement. Conversely, Belgian attorneys are bound by a duty of professional secrecy.

Can hearings be held in private and court documents restricted?

Court hearings are held in public, and anyone is allowed to enter the room (i.e. not only those involved in the trial, but the public and press as well).

The court can order that the hearing, or a particular part of it be held in private if there is a danger to public order or public decency. Defendants are entitled to ask that the hearing be held in private if they fear that public proceedings may harm them. The judge is not obliged to grant this request.

Parties may ask a copy of court documents. If they are published, names and personal details etc. are redacted for privacy reasons.

Are there any pre-action considerations or processes that Parties should take into account?

It will depend on the circumstances and the nature of the case (such as when requesting the appointment of an expert). Some actions may require obtaining recent documents (for instance in the case of attachment proceedings of immovable property, recent land registry documents are necessary).

How are proceedings commenced in your jurisdiction?

Civil proceedings are usually commenced by serving a writ of summons on the opposing party. In a limited number of cases, it is sufficient to submit a request (unilateral or contradictory, depending on the circumstances) to court.

The cost of serving a writ of summons is usually between EUR 200 and EUR 500 per party to be summoned.

Register fees will also have to be paid. This is a tax in order to put the matter on the court’s agenda. The rates are set uniformly and vary according to the level of the court. Bringing a case before the justice of the peace costs EUR 50, doing so before the CFI and the commercial court costs EUR 165. Actions before the Court of Appeal cost EUR 400 and before the Court of Cassation EUR 650.

The cost of summonses and register fees are borne by the losing party at the end of the procedure. However, they must be advanced by the claimant.

For domestic proceedings, how and by whom is service effected?

A writ is served by a local bailiff, either directly on the person being served or to a relative he encounters at said person’s domicile, by leaving an enclosed envelope at this domicile, or by serving it at the elected place of domicile.

For foreign proceedings, what are the permitted methods of service in your jurisdiction?

There are three distinct methods via which foreign proceedings may be served in Belgian:

1. Under the Hague Service Convention, the service documents can be submitted to Belgium’s Central Authority, who will appoint a huissier de justice/ gerechtsdeurwaarder to serve the proceedings.
2. Informal appointment of a huissier de justice/ gerechtsdeurwaarder by the claimant. This is quicker than the method detailed in option one, as it bypasses the Central Authority.
3. Service via postal methods (under Article 10 of the Hague Service Convention) is also an acceptable method, provided the method used can be verified – e.g., through proof of delivery, or registered mail methods.

Is there a timetable parties must follow when submitting documents?

Usually, parties will agree on a date for the filing of written submissions and will request the judge to confirm the date. If no agreement can be reached, one of the parties will request the President of the Court to determine the dates on which the parties must file their respective submissions.

Can third parties be joined to an action? What are the practical steps needed to achieve this?

Third parties can join an action either through a voluntary or forced intervention.

When the third party requests to be allowed to defend its interests in a pending procedure (a voluntary intervention), it is via a request, which contains the arguments and submissions.

A forced intervention occurs when the third party is summoned by one or more parties in the course of the proceedings, via a writ of summons.

Are the courts able to hear two or more related or closely connected actions? If so, what are the practical steps needed to achieve this?

Legal actions may be treated as related cases where they are so closely connected that it is desirable to hear and rule on them together in order to avoid incompatible judgments, if the cases were heard separately.

Although parties may request that related cases be joined, the existence of a connection between the cases is determined at the discretion of the court, irrespective of the subject matter or cause of action, or the identity of the parties to the proceedings.

What are the rules for disclosure in your jurisdiction?

There is no disclosure or discovery as such in the Belgium civil law system. Parties are free to select what pieces of evidence they wish to use in proceedings.

However, where there are substantial, specific and consistent grounds for believing that a party is in possession of a document which proves the existence of a relevant fact, the court may order (on its own initiative or at the request of a party) that the document or a certified true copy thereof be added to the case-file.

Whilst every party has the burden of proving the facts they put forward, the court may nevertheless order any party to submit the evidence in its possession.

If a third party is in possession of a document required in the proceedings the court will first request the original or a copy of it to be added to the case-file within a certain time limit. The third party may then submit its observations, the parties will inspect and reply to them and finally the registrar will send the judge’s request for disclosure to the third party.

What are the rules on privilege in your jurisdiction?

Several professionals, including attorneys (avocats) are bound by strict client privilege. For attorneys, this privilege continues indefinitely and extends to all confidential information, which the attorney learns or ascertains during the performance of their instructions. Exchanges between lawyers, and between lawyers and their clients are covered by this privilege.

An attorney may only provide confidential information to the courts, arbitral tribunals, and third parties to the extent that:

1. the release of that information is relevant;
2. the disclosure of that information is in the interest of the client;
3. the client consents to the release of that information; and
4. the release of such information is not prohibited by law.

When considering cross–border privilege, what is the test your courts apply to privilege? (i.e. will your jurisdiction determine privilege under its own system or that of the country from where the documents originated)?

Belgian attorneys remain bound by privilege under the Belgian system, regardless of the country of origin of the documents. However, as prescribed by the Charter of Core Principles of the European Legal Profession and Code of Conduct for European Lawyers, if a lawyer intends to send communications to a lawyer in another member state belonging to the Council of the Bars and Law Societies of Europe (CCBE), which the sender wishes to remain confidential or without prejudice, they should clearly express this intention prior to releasing the first document. If the prospective recipient is unable to ensure their status as confidential or without prejudice, they should inform the sender without delay.

If writing to another lawyer from a country outside the CCBE, and in the absence of an agreement between their respective Bars, the sender may, if permitted by the ethical rules of their Bar, produce the correspondence, if it is not expressly stated to be confidential.

The President of the Bar is, in all cases, the sole judge of the fair application of the confidential nature of correspondence between lawyers. If a dispute relating to the production of correspondence arises between lawyers of different Bars, the correspondence may only be produced with the prior authorisation of the lawyers’ respective Bar Presidents. In the event of a dispute between the Presidents of the Bars, the decision will be made by the President of the Bar of the place of jurisdiction in which the correspondence is to be produced, provided that one of the lawyers concerned is registered there. In other cases, in particular if none of the lawyers concerned is admitted to the Bar of the place where the correspondence is to be produced, or before an international and foreign court, the most restrictive opinion will prevail.

What are the rules in relation to expert evidence? Are experts appointed by your courts or by the parties?

The court may, in order to resolve a dispute brought before it or in the event that a dispute is likely to arise in a real and immediate manner, order experts to investigate or give technical advice. The expert will report to the court, to whom it owes a duty.

Are experts appointed by your courts or by the parties?

Experts are appointed by the court, to whom they owe their duty. The court may appoint the parties’ agreed experts and may only deviate from the choice of the parties by means of a reasoned decision.

What are the rules in relation to the calling of factual witnesses?

If a party offers to provide evidence of a specific and relevant fact by one or more witnesses, the court may allow such evidence to be submitted. The court may also take the initiative to call on factual witnesses and may specify the names of the witnesses to be examined and determine the date and place

As of 1 November 2020, witness based evidence is allowed in Belgian civil law for cases with a value of less than € 3,500. Proof can be provided freely in any way for transactions under € 3.500. A written agreement is therefore not required in this case. Text messages, emails, witnesses, suspicions… are sufficient proof below the € 3,500 limit.

In the event of B2B transactions, the aforementioned cap in order to provide proof freely does not exist: proof can be provided freely regardless of the amount. Evidence between companies or against companies of acts committed by a company can be provided freely, even if it exceeds €3,500.

Is witness evidence submitted in written form or orally, or a combination of the two?

Since 2012, Belgian law allows witness evidence to be submitted in written form. The court may at any time conduct an oral hearing of the author of the written statement.

Are witnesses subject to cross-examination?

Parties are not allowed to interrupt the witness, nor to address them directly. Instead, parties must address the judge, who will then ask the witness questions.

Are the courts able to order interim remedies during proceedings, and if so, what remedies are available? (e.g. freezing injunctions, search orders, security for costs etc.)

The court may, at any stage of the case, order an interim measure to examine the claim or to settle an interim dispute concerning such a measure, (e.g. designation of a court expert, sequestration, urgent measures for the conservation of certain goods, etc.). To this end, the party desiring such a measure may apply to the court at any stage of the proceedings by a simple written request, submitted to the registry.

Interim measures such as provisional attachments, freezing injunctions, search orders and security for costs may also be requested.

Specific courts exist for certain measures, such as attachment. For example, Belgian law allows for conservatory attachment where:

1. a creditor does not yet dispose of an executable title;
2. in order to freeze the assets and for attachment proceedings in view of a forced sale, or once such title has been obtained.

More specifically, the Belgian Judicial Code provides the possibility for a creditor to file an ex parte petition to the judge (judge des saisies or beslagrechter) for permission to seize the property of the debtor, pending a final court decision where they can demonstrate to the judge that:

1. the case is urgent (proving the existence of a serious risk that the debtor is or will become insolvent);
2. the debt cannot reasonably be contested;
3. is due; and

the amount of the debt has been determined or at least that it is capable of being provisionally calculated.

Can cases be dealt with summarily? For example, because there is no case to answer (e.g. summary judgment), or because a party has not taken a required step in the proceedings (e.g. default judgment for failing to file a defence)?

If one of the parties does not appear at the preliminary hearing, a default judgment may be given against them.

Do the courts have powers to encourage settlement?

At the request of one of the parties or if the court deems it useful, the court can postpone the case to a fixed date (which cannot exceed one month), in order to enable the parties to explore whether their dispute can be resolved entirely or partially, and to obtain any useful information to this end. However, such postponement is subject to the agreement of the parties.

Are there any formalities required to effect a settlement?

The settlement agreement must be in writing.

Are the legal costs recoverable from the unsuccessful party?

The legal disbursement costs, such as the costs of summonses, register fees (see question 5), costs for the notification of a decision and other bailiff costs for the enforcement of the judgment are recoverable from the unsuccessful party.

Attorney’s fees are only partially recoverable through a judicial compensation fee. This is a fixed fee per claim (first instance, appeal) for the costs and fees of the lawyer of the successful party. The amount is determined according to the value of the claim: the greater the value of the claim, the greater the fee. Disputes that cannot be valued in monetary terms are subject to a separate lump sum. Such fee is rarely sufficient to cover the full lawyer’s fees.

What types of contingency or conditional fee arrangements between lawyers and their clients are available?

Lawyers are free to estimate their fees, without the client being subjected to unpredictability. With regard to a consumer (i.e. not a corporation or business person), the lawyer is obliged to provide information on the estimate of their fee in an understandable manner prior to their performance.

The same obligation does not exist when the client is a company or business person, but it is nevertheless recommended and customary to discuss the calculation of the fees in a correct way on being instructed.

There. are different ways of calculating fees and expenses:

1. According to an hourly rate
2. According to the value of the case: the client pays a certain percentage
3. According to the services provided: the client pays according to the work provided, the importance of the case, the degree of difficulty, the result or the urgency etc
4. Fixed amount: the client and the lawyer agree on a total amount
5. Annual contract: this method is often used by companies that deliver several cases to the same lawyer

An agreement that solely depends on the result (i.e. ‘no win no fee’) is strictly prohibited, even when the client is a company.

• Can parties use third party funding to finance proceedings? If so, are there any restrictions on this? (e.g. only available for certain types of claims or forum)

Parties are allowed to rely on third party funding to finance proceedings. Although third party funding is not specifically regulated under Belgian law, we are not aware of any restrictions as to the claims that can benefit from it.

The third party financier must not conceal a fraudulent operation, for example to facilitate acts of money laundering.

In what circumstances and on what grounds can an appeal be made?

Any first instance judgment can be appealed, unless the law provides otherwise. This principle of appeal applies only to judgments. In some cases, however, the law may impose limits on the possibility of appeal, e.g. when the value of a dispute does not exceed a certain amount.

What is the procedure, timescale, and cost for appealing?

An appeal is commenced by serving a writ of summons on the opposing party. In civil cases, an appeal will have to be filed with a bailiff within a month of the judgment. Failure to file within the time period will usually result in the case becoming time barred and the judgment will be final. The appeal procedure will generally follow the same format as the procedure in first instance. Appeal proceedings generally take around three years.

Appeal costs will depend on several factors, such as lawyer fees, legal fees and court registration fees.

What is the procedure, timescale, and cost for enforcing local judgments?

A judgment must be notified by a bailiff to the opposing party before it becomes enforceable. In general, the authority to enforce a judgment shall expire ten years after the date of its rendering. The costs of such notification will be between 200 and 500 EUR.

Once notified, the judgment will become final after one month (deadline for filing an appeal).

It is difficult to put a precise timescale on the enforcement proceedings. A reasonable amount of time must be granted to the opposing party to voluntarily comply with the judgment. What constitutes a “reasonable” amount of time will depend on the specifics of the case. The timescale will also depend on the type of assets that can be attached in order to obtain payment of the claim. In case of immovable property, the enforcement proceedings can take several months. In the case of movable property, the enforcement might be quicker.

If a judgment needs to be enforced, the enforcing party will usually be able to demand that the opposing party pay the costs of the enforcement.

What is the procedure, timescale, and cost for enforcing foreign judgments?

Article 22, paragraph 1 of the International Private Law Code sets out the principle of recognition de plano of foreign court decisions subject to the conditions laid down in article 25 of the International Private Law Code. The article provides that a foreign judgment will not be recognised or declared enforceable where:

1. the consequences of the recognition or of the declaration of enforceability would be manifestly incompatible with public policy. In assessing incompatibility, the extent to which the case is linked to the Belgian legal order and the seriousness of the consequences caused will be taken into account;
2. the rights of the defendant have been violated;
3. the decision was obtained solely to avoid the application of the law, in a matter in which the parties do not have free disposal of their rights;
4. it is still subject to ordinary appeal in accordance with the law of the State in which it was referred;
5. it is incompatible with a decision rendered in Belgium, or with a decision previously rendered abroad that may be recognised in Belgium;
6. the action was brought abroad following the lodging in Belgium of an action, which is still pending between the same parties and with the same subject matter;
7. the Belgian courts have exclusive jurisdiction to hear and determine the claim;
8. the jurisdiction of the foreign court was based exclusively on the presence of the defendant or of assets not directly related to the dispute in the State to which that court belongs.

As regards enforcement of foreign court decisions, article 23 of the International Private Law Code provides that in order to obtain an exequatur:

1. The CFI is competent to rule on actions for recognition or declaration of enforceability of a foreign judgment and the court with territorial jurisdiction is that of the defendant’s domicile or habitual residence; in the absence of domicile or residence in Belgium, the territorially competent court is that of the place of enforcement.
2. The action is brought and dealt with on the basis of a unilateral request. The applicant must elect a domicile within the jurisdiction of the court. The judge has to decide on the matter within a short period of time.
3. The foreign judicial decision against which an ordinary appeal has been lodged or which is subject to appeal may be provisionally enforced. The court may make enforcement subject to the provision of a security. If a judgment must be enforced, the enforcing party will usually be able to demand that the opposing party carry the costs of the enforcement.

Are there any reciprocal conventions that assist?

The most important legislation in this regard is The (Recast) Brussels I Regulation (EU Regulation 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters).

Article 1 of the (Recast) Brussels I Regulation states that it applies in civil and commercial matters whatever the nature of the court.

In short, the (Recast) Brussels I Regulation provides for a system of automatic recognition of judgments from other Member States’ courts.

In order to enforce a judgment, parties need to submit to the competent authority of the requested Member State:

1. an enforceable version of the judgment; and
2. the standard form as annexed to the Regulation, completed in the requesting Member State.

The competent authority of the requested Member State will then allocate a ‘passport’ to the foreign judgment.

Belgium is a party to the Lugano Convention on Jurisdiction and the Enforcement of Judgments in civil and commercial matters of 16 September 1988. It deals with recognition and enforcement of judgments in civil and commercial matters and is heavily inspired by the Brussels Convention of 27 September 1968 and its successors, Brussels I Regulation and the (Recast) Brussels I Regulation.

On 30 October 2007, an updated version of the Lugano Convention has been signed. It entered into force on 1 January 2010.

With the (Recast) Brussels I Regulation prevailing on the Lugano Convention as regards recognition and enforcement within the European Community, the Convention only deals with Belgium’s relations with Switzerland, Norway and Iceland and Denmark.

The recognition and execution of judgments from other foreign countries is governed by the Belgian International Private Law Code of 16 July 2004.

Belgian is also a member state to the 1958 ‘Convention on the Recognition and Enforcement of Foreign Arbitral Awards’ (more commonly known as the ‘New York Convention’).

Does your jurisdiction recognise ADR or NDR (e.g. mediation etc.) and are there exceptions? Do the courts have power to encourage ADR or NDR?

Yes, Belgian law recognises ADR such as arbitration and mediation; parties can rely on these methods to settle their disputes.

Do the courts have power to encourage ADR?

Yes, the judge can impose mediation, but parties are not obliged to reach an agreement and, to the extent that mediation proves unsuccessful, this will in principle not be sanctioned.

Are there sanctions for refusing to engage with ADR?

In local lease disputes, the sanction of not undertaking a prior settlement attempt is the inadmissibility of the demand.

What are the main ADR forums in your jurisdiction?

The main forum for ADR in Belgium is ‘CEPANI’, the Belgian Centre for Arbitration and Mediation.

What are the key developments in your jurisdiction (reforms, changes in legislation, growth areas, impact of technology etc.)

Belgian procedural law recently underwent some significant changes. We are unaware of any ground-breaking changes planned for the near future.

How do your courts determine if they have jurisdiction?

Art. 21 of Brazilian Code of Civil Procedure states that Brazilian courts have jurisdiction when the defendant is domiciled in Brazil or when the obligation was to be performed in Brazil, or the grounds for application are facts that occurred, or acts that were performed in Brazil. The Brazilian Code of Civil Procedure adds another criterion, stating that when the “foundation of a claim is a fact or action which took place in Brazil”, the Brazilian courts have jurisdiction.

Can a defendant dispute jurisdiction and if so, how?

A defendant can dispute the jurisdiction of the Brazilian courts. The Brazilian Code of Civil Procedure states that the court’s jurisdiction is one of the preliminary arguments that a defendant can deploy in the event they disagree with the court’s determination on this issue in favour of its own jurisdiction.

Are parties in litigation under any obligation to keep the proceedings confidential?

In general, lawsuits are public in Brazil.

Can hearings be held in private and court documents restricted?

Hearings can be held in private and access to court documents can be restricted in cases which require secrecy for public or social reasons, e.g. family disputes, cases involving sensitive information or information protected under the constitutional right to privacy, and confidential arbitration disputes which are referred to the courts.

The parties’ lawyers meet with judges in private in order to give oral submissions on the reasons for a certain petition or to clarify a certain aspect of the case, both in terms of the merits and procedure. There is no requirement to put the other side on notice of the meeting.

Are there any exceptions to confidentiality rules?

In very exceptional situations, third parties can access documents and/or decisions of cases, which are being heard in private, based on Art. 189, paragraph 2 of the Brazilian Code of Civil Procedure. The third party must prove a legitimate interest, i.e. that the section or decision of the confidential case directly affect the rights of that third party.

Are there any pre-action considerations or processes that Parties should take into account?

Brazil does not have any specific pre-action considerations or processes that the parties should take into account. Pursuant to paragraph 3 of Art. 3 of the Brazilian Code of Civil Procedure, the parties are encouraged to engage in out-of-court proceedings to resolve their disputes, such as participating in conciliation and mediation hearings.

Are there any consequences for non-compliance?

There are no consequences for non-compliance with out-of-court proceedings, which are not mandatory. In commercial matters, it is normal practice to file an ‘Extra-Judicial Notice’ (essentially, a letter before action) prior to commencing proceedings.

How are proceedings commenced in your jurisdiction?

Proceedings in Brazil are commenced with the filing of the claim in court. The claim is received by the judge who orders service of the claim on the defendant. Initial court fees and appeal fees usually represent a percentage of the value of the claim. Fees vary from court to court, and usually range from 2 – 4% of the claim value. However, minimum and maximum values apply.

For domestic proceedings, how and by whom is service effected?

For domestic proceedings, service is effected by ‘service warrants’ issued by the court. The warrants are delivered by an officer of the court, or by registered mail. Recent amendments to the Brazilian Code of Civil Procedure provide that email service is preferred. Since 30 May 2024, it has been mandatory for public entities and private companies, except for small businesses and individuals, to register their email addresses in a general unified database in order to be served with proceedings and court orders.

In very specific cases, if there is uncertainty as to who the defendant is, or if the defendant’s whereabouts is unknown, uncertain, or inaccessible, it is possible for ‘tacit’ service to be effected by publication of a notice of service on the court’s website and on the National Justice Counsel’s website. The court may also order the publication of the notice in a newspaper.

Is there a timetable parties must follow when submitting documents?

The date of service is the return date of the warrant (or Rogatory Letter, if the defendant is based abroad). From this date, the Brazilian Code of Civil Procedure establishes a hard deadline for the presentation of the defence (usually 15 working days). The deadline to present a reply is usually 15 working days after the judge orders its presentation. It is not possible to extend these timeframes.

For foreign proceedings, what are the permitted methods of service in your jurisdiction?

Service on a party domiciled abroad is made by Rogatory Letter. Rogatory Letters are issued by the court in Brazil, then validated by the Ministry of Justice in Brasilia and forwarded to the foreign country’s legal authorities, who serve the defendant in accordance with the rules of the foreign country. Once service is effected, the Rogatory Letter is sent back to the Ministry of Justice in Brasilia and forwarded to the court where the case is being heard.

Can third parties be joined to an action? What are the practical steps needed to achieve this?

Third parties can join, or be joined, to an action as co-claimants or co-defendants. The practical steps needed to achieve this are multiple and varied, and depend, primarily, on the legal relationship of the third party to the other parties to the proceedings and/or the facts of the case and/or the issue for determination.

Are the courts able to hear two or more related or closely connected actions? If so, what are the practical steps needed to achieve this?

Courts can determine two or more related or closely connected actions (e.g. with a common cause of action or a common object) simultaneously. The judge can consolidate the actions at their own discretion or upon application by one of the parties. However, both actions must be heard at the same time, even if they are being heard in different states and in different courts.

What are the rules for disclosure in your jurisdiction?

The ‘all cards on the table’ approach to disclosure does not exist under Brazilian civil procedural rules. As a general rule, each party discloses only the documents it requires to prosecute or defend its case, i.e. the documents on which it relies. The judge may allow the parties to present further documents during the course of the proceedings.

Are there any required processes e.g., eDisclosure/eDiscovery, predictive coding, etc?

There are no specific or prescribed processes for disclosure. The documents to be disclosed are usually collated by a party in the action and served on the other side as annexes to the disclosing party’s written submissions. There are no prescribed rules for eDisclosure, nor for the use of predictive coding.

What are the sanctions for non-compliance?

In some cases, the judge may order a party to disclose a certain document, usually upon application of one of the parties. According to the Brazilian Code of Civil Procedure, if the party does not comply with the order, the judge may draw adverse inferences by assuming, for example, that the facts which are alleged to be evidenced by the document are true. In addition, parties who do not comply with court ordered disclosure orders may be subject to a search and seizure order.

Are there are exceptions to these rules (e.g. on the grounds of public interest, privilege or confidentiality etc)?

There is a special measure for obtaining the pre-action disclosure of documents, e.g. where a party needs to access a specific document before filing suit. The party will need to provide detailed reasons about the relevance of the document and why it requires access to the document.

As per Art. 399 of the Brazilian Code of Civil Procedure, an opposing party will not be able to withhold disclosure of the requested document if:

1. It is under a legal obligation to disclose it; and/or
2. The party who requested disclosure of such document refers to it in evidence; and/or
3. The document, due to its contents, belongs to both parties; and/or
4. The document is not privileged or confidential.

Can non/third parties be compelled to disclose documents?

Non/third parties can be required to disclose documents in their possession. However, there are restrictions and exemptions, e.g. in circumstances where such documents contain privileged or confidential information. These requirements can be made on application of one of the parties and/or at the discretion of the judge.

What are the rules on privilege in your jurisdiction?

The Brazilian Code of Civil Procedure gives parties the right to refuse to adduce evidence (oral or written) on matters or documents which concern, or contain, privileged or confidential information.

‘Privilege‘ is not defined under Brazilian law. However, it is protected (at least in part) pursuant to the confidentiality provisions of Arts. 25 – 27 of the Brazilian BAR Code of Ethics.

When considering cross-border privilege, what is the test your courts apply to privilege (i.e. will your jurisdiction determine privilege under its own system or that of the country from where the documents originated)?

There is no clear set of rules on the protection granted by the Brazilian courts when considering cross-border privilege.

What are the rules in relation to expert evidence? Are experts appointed by your courts or by the parties?

Expert evidence is permitted in Brazil and is usually provided by a court appointed expert. The parties may appoint assistant experts to give their specialist opinion, and to question and/or challenge the opinion of the court appointed expert. The assistant experts, although appointed by one of the parties, are expected to be impartial.

All evidence produced by the court appointed expert is subject to examination, inspection, and evaluation by the judge and by the parties and/or their assistants.

What are the rules in relation to the calling of factual witnesses?

Factual witnesses can be called upon to give oral evidence. The judge can refuse the oral and/or written factual witness statements or testimony. Each party can call a maximum of 10 witnesses. A maximum of three witnesses can be called upon to testify about the same fact. The parties and the judge may cross-examine the witnesses.

Certain categories of individuals cannot be witnesses, e.g. where there is a lack of impartiality or independence.

Are the courts able to order interim remedies during proceedings, and if so, what remedies are available? (e.g. freezing injunctions, search orders or security for costs etc.)

The court is able to order interim remedies during proceedings under the Brazilian Code of Civil Procedure. There are two primary tests for obtaining interim relief, both of which much be satisfied in order for relief to be obtained:

1. The first test is based on urgency. The claimant must demonstrate that there is an imminent risk of damage, or a risk to the effectiveness of the proceedings, if the relief is not granted.
2. The second test is whether the claimant has provided sufficient evidence of a strong and credible case.

Interim remedies such as freezing injunctions and search orders are available in Brazil if the threshold test referred to above is met (i.e. as long as the party demonstrates the urgency of the measure and evidence of the alleged claim).

Security can be sought on the principal claim amount in some cases, usually to protect the effectiveness of the proceedings. However, a court in Brazil is unlikely to order security for costs.

The decision granting an interim remedy or injunction can be appealed or, at any moment, revoked or modified by the court who granted it.

Can cases be dealt with summarily? For example, because there is no case to answer (e.g. summary judgment), or because a party has not taken a required step in the proceedings (e.g. default judgment for failing to file a defence)?

Cases can be dealt with summarily when the issue to be decided concerns a matter of law, or a matter of law with limited factual content, and where the requirement for the presentation of further evidence (e.g. experts, witness, etc.) can be dispensed with. Cases may proceed on a summary basis upon application by one or both parties and/or at the discretion of the judge.

A court may also hand down summary judgment in cases where, for example, a party has filed defective pleadings, there is a lack of standing, or where the proceedings are brought in breach of an arbitration clause.

If a party fails to present a timely defence, judgment may be handed down in default, in which case the facts alleged by the claimant are deemed to be true and judgment is usually entered for the claimant.

Do the courts have powers to encourage settlement?

The 2015 Brazilian Code of Civil Procedure (in effect since 2016) requires the courts to promote settlement throughout the case.

The Code also provides that a mediation or conciliation hearing should take place before a defendant presents its defence. Presence at this hearing is not mandatory. However, the parties are encouraged to engage in settlement discussions from an early stage of the proceedings.

Are there any formalities required to effect a settlement?

Pursuant to Art. 3, paragraph 3 of the Brazilian Code of Civil Procedure, lawyers, public defendants, and public prosecutors are also encouraged to try and settle their cases.

If a settlement is reached through mediation and/or during the course of legal proceedings, it requires judicial ratification, in order to be valid, enforceable and binding.

Are the legal costs recoverable from the unsuccessful party?

The losing party will usually pay (i) all judicial costs; and (ii) the winning lawyers’ fees, known as ‘sucumbencia’. These legal fees are ordered by the court and are paid by the losing party directly to the winning party’s lawyers. According to the applicable legislation, ‘sucumbencia’ will normally range from 10% to 20% of the total amount awarded, depending on how diligent the lawyer was and how important and complex the case is. ‘Sucumbencia’ fees are due irrespective of the actual legal fees contractually engaged by the party with their lawyer (e.g. hourly rates or success fees). Lawyers’ contractual fees are not subject to this rule and are usually borne by each party.

As a general rule, lawyers’ contractual fees are not recoverable from the other side. In terms of the judicial costs, these are usually limited to a percentage of the amount in dispute, up to certain cap, which varies from court to court. By way of example, São Paulo State Courts, the busiest in Brazil, have a cap of BRL 111,060 (cc USD 19,593) for the filing of Claim Submissions. Appeals to the Court of Appeal and the higher courts are also charged, and the amounts disbursed can be recoverable from the losing party.

What types of contingency or conditional fee arrangements between lawyers and their clients are available?

Contingency or conditional fee arrangements are normal fee arrangements in Brazil. There are no specific rules between lawyers and their clients, relating to them, and the Brazilian Bar Association does allow lawyers to charge based on these arrangements. Hourly fees are also common, especially in larger and complex cases.

In usual circumstances, the parties are expected to bear their own litigation costs and fees. However, when a party can prove that it does not have the means to pay for its own defence, it can (even in civil matters) request free legal aid and exemption from the payment of court fees. This possibility is also open to claimants.

Can parties use third party funding to finance proceedings? If so, are there any restrictions on this? (e.g. only available for certain types of claims or forum)

There is no specific legislation on the matter of third party funding in Brazil, however the practice is not common. It is expected that third party funding will grow significantly in the coming years.

Are the legal costs recoverable from the unsuccessful party?

Costs are usually not recoverable and requests for the provision of security for costs are uncommon.

However, one of the unique features of the costs exposure landscape in Brazil is contained in Art. 85 of the Brazilian Code of Civil Procedure, which provides that a final judgment condemns the losing party to pay the winning lawyer’s fees. This rule, which is known as ‘sucumbencia‘, establishes that the losing party may be ordered to pay directly to the winning party’s lawyers, an amount ranging from 10% to 20% of judgment amount, as adjusted to include interest and monetary correction (inflation-linked interest).

Monetary correction is applied to the judgment sum. Interest is also applied, usually at a contractually agreed rate, alternatively at 1% per month. It should be noted that the application of interest and monetary correction to the judgment sum, and the timeframe to reach final judgment in Brazil have the potential to increase substantially the quantum of the initial claim.

In what circumstances and on what grounds can an appeal be made?

In Brazil, appeals can be filed on a wide range of procedural and substantive matters, in respect of interlocutory and final decisions. An appeal may be based on a mistake of law and/or a mistake of fact.

What is the procedure, timescale, and cost for appealing?

The general rule is that appeals are to be filed 15 working days after the publication of the decision which it seeks to challenge. The timeframe for the assessment of the appeal by the higher instance court will vary depending on the court, state, and the complexity of the appeal. In the most straightforward cases, an appeal is unlikely to take less than 12 months. Interlocutory appeals, which are filed against intermediate decisions, are usually judged more quickly by the higher courts, as such appeals usually address very specific points of a non-final decision by the lower instance.

The costs of an appeal normally vary from 2% to 4% of the value of the case or award, depending on the court and on the state, although maximum and minimum Brazilian real values apply.

What is the procedure, timescale, and cost for enforcing local judgments?

Local judgments are automatically enforceable in Brazil, however, a defendant must be served formally with a Payment Order if they do not comply with the judgment voluntarily.

After a defendant is served with a Payment Order issued by the court, they will have 15 working days to pay. If they do not pay, the amount due is increased by 10%, for attorney’s fees, and by a further penalty of 10%, plus interest and monetary correction (inflation-linked interest).

Once service of the Payment Order is validly made, a defendant can either pay; or request an instalment payment; or challenge the amount due. In the latter scenario, a defendant is not able to challenge the merits of the final decision, only the quantum and, in very limited cases, argue that the decision is null (e.g. issued in violation of due process).

What is the procedure, timescale, and cost for enforcing foreign judgments?

Foreign decisions must be validated by Brazil’s Superior Court of Justice. After the decision is formally recognised, the parties can enforce it through any federal court with jurisdiction over the parties.

This process of recognition has a number of formalities, such as the translation of the decision into Portuguese by a registered translator. The decision must also be notarised by a Brazilian consulate (not required in signatory countries to the Apostille Convention). The Superior Court of Justice will also assess whether the foreign judgment is compliant with the principals of due process and check that it does not violate Brazilian Public Order.

The Brazilian Code of Civil Procedure of 2015 provides limited scope for the parties to challenge the validity of a foreign decision if all the formal requirements for enforcement are met. The proceedings tend to take at least 2 – 4 years and costs vary depending on the amounts in dispute.

Are there any reciprocal conventions that assist?

Bi-lateral treaties of judicial cooperation between Brazil and other countries may expedite the recognition and enforcement procedures, as per Art. 960 of the Brazilian Code of Civil Procedure, however such treaties tend not to expedite matters substantially.

Brazil is also a signatory of the New York Convention on the Recognition of Foreign Arbitration Awards.

Does your jurisdiction recognise ADR or NDR (e.g. mediation etc.) and are there exceptions? Do the courts have power to encourage ADR or NDR?

Arbitration (the Chamber is usually sector specific), mediation, conciliation and dispute resolution hearings are the main ADR mechanisms in Brazil.

Brazil recognizes ADR and encourages the courts and the parties to use it in order to reduce the overwhelming number of civil and commercial proceedings, which have flooded the Brazilian courts. Private and public parties are encouraged to seek settlements at all stages prior to, and during, the proceedings.

Are there sanctions for refusing to engage with ADR?

The Brazilian Code of Civil Procedure of 2015 provides that a mediation or conciliation hearing should be set before the defence is presented. There are, however, no sanctions for refusing to engage with these processes.

What are the main ADR forums in your jurisdiction?

Mediation and conciliation, although encouraged by the Brazilian Code of Civil Procedure, are not as developed as in many other jurisdictions.

What are the key developments in your jurisdiction (reforms, changes in legislation, growth areas, impact of technology etc.)

In the last 20 years, Brazil has enacted a new Civil Code (2002) and a new Code of Civil Procedure (2015). As a general rule, judicial precedents are not binding, and many decisions based on similar facts are conflicting.

The new Brazilian Code of Civil Procedure was designed to reduce court bureaucracy and to promote ADR. Arbitration, mediation and conciliation have been on the rise since the enactment of the Code. The movement towards ADR is intended to unblock court congestion.

Brazilian court files are almost 100% online and digital for new cases. In due course, all proceedings in Brazil will be processed electronically. Lawyers can lodge documents online and follow the status of the case through the court websites. These reforms have reduced administrative costs. Hearings and judgment sessions often take the form of videoconferences.

The quantum of claims in Brazil has the potential to increase significantly by the application of interest and monetary correction (inflation-linked interest). The protracted timeframe to reach judgment makes the position worse. The current high rates of interest and inflation mean that the issue still requires careful analysis. However, the Brazilian Congress has passed a bill, which currently awaits presidential sing-off, which aims to reduce uncertainties in relation to the calculation of interest and monetary correction, with the ultimate goal of reducing their effect on the quantum of judicial disputes.

How do your courts determine if they have jurisdiction?

Prior to the amendment of Eastern Caribbean Supreme Court Civil Procedure Rules on 31 July 2023, parties who wished to serve proceedings out of the jurisdiction were required to obtain the permission of the Court.

The position following those amendments is that to serve BVI court proceedings out of the jurisdiction on a foreign defendant, claimants do not require the permission of the court however they/their legal practitioners are required to certify that such claims as suitable for service out of the jurisdiction and that the claim satisfies certain conditions.

Those conditions are that:

1. There is compliance with the methods of service provided by CPR rule 7.9 (i.e. by service through foreign governments, service on a State, service in accordance with the laws of the foreign country or personal service by the claimant or the claimant’s agent);
2. The court process falls within one of the jurisdictional gateways listed in CPR rule 7; and
3. The claimant has filed a certificate certifying that they/their legal practitioners confirm their belief that:
   1. the case falls within one of the jurisdictional gateways listed in rule CPR 7.3;
   2. the case is a proper one for the court’s jurisdiction;
   3. the claimant has a good arguable case; and
   4. the proposed method of service does not infringe the law of that foreign state.

The jurisdictional gateways that a claim is required to fall under are set out at CPR rule 7.3 are:

1. General Features (7.3(2)) – this section outlines general situations where the BVI court may accept jurisdiction
   1. Proceedings have been, or will be served against someone, and:
      • There is a real issue which it is reasonable for the court to try, and
      • The claimant wants to serve proceedings on another person who is outside the jurisdiction
   2. Where the claim is for an injunction ordering the defendant to do, or refrain from acting within the jurisdiction, or
   3. For a remedy against a person within the jurisdiction.
2. Contract claims (7.3(3))
   1. Where the breach of contract occurred within the jurisdiction.
   2. If the contracts states that BVI courts have jurisdiction, is governed by BVI law, was made by an agent in the BVI, or was made within the BVI
   3. Or where the claim is for a declaration that no contract exists, where (if the contract did exist) it would fulfil one of the conditions above.
3. Tort claims (7.3(4))
   1. Where the act causing the damage was committed in the BVI, or the damage was sustained in the BVI
4. Enforcement claims (7.3(5))
   1. If the claim is made to enforce any foreign judgment or arbitral award and is amenable to be enforced in the jurisdiction
5. Property claims (7.3(6))
   1. If the whole subject matter of the claim relates to property within the jurisdiction
6. Company-related claims (7.3(7)) – If the claim relates to
   1. The constitution, administration, management or conduct of the affairs;
   2. The ownership or control; or
   3. The insolvency of a company incorporated within the jurisdiction
7. Trust claims (7.3(8)) – if the claim relates to:
   1. A claim made for a remedy against a defendant as a constructive trustee, and liability arises out of the acts committed within the jurisdiction; or
   2. A claim is made:
      • For remedies which may be obtained in proceedings for the administration of the estate of, or
      • In probate proceedings relating to a person who died domiciled within the jurisdiction
   3. A claim is made for any remedy in proceedings to execute the trust of a written governed by BVI law
8. Restitution claim (7.3(9))
   1. If the defendant’s liability arises out of acts committed within the jurisdiction or out of acts which were to the detriment of a person domiciled within the jurisdiction
9. Enactments (7.3(10))
   1. If the claim is made under an enactment conferring jurisdiction on the court, if a claim is made under an enactment where the court has power to hear and determine any claim or proceedings.
10. Interim orders (7.3(11))
    1. Where an application is made for interim relief where proceedings have been or are about to be commenced in a foreign jurisdiction.
11. Costs orders (7.3(12))
    1. Where the claim is made for a costs order against a non-party to BVI proceedings

However, the ability to seek the permission of the court to serve the proceedings out of the jurisdiction is preserved under CPR rule 7.4. Claimants who are likely to still seek permission are likely to be those who are uncertain as to whether the requirements under CPR rule 7.2 have been satisfied, as well as in circumstances in which the claimant is seeking to serve by an alternative method, pursuant to CPR rule 7.10. The test for alternative service under CPR rule 7.10 is that the claimant must show that conventional service “cannot reasonably be effected”.

In relation to challenging the court’s jurisdiction on the basis of forum non conveniens – in OBM Limited v LSJ LLC BVIHCV 2009/0451, Indra Hariprashad-Charles, J. cited the dicta of Farwell L.J. in The Hagen [1908] P 189 at page 201, holding that the “jurisdiction to subject a foreigner to the jurisdiction of the court has been described as extraordinary and should only be exercised with great care and it remains open to the court to stay a case on the basis of forum non conveniens”.

Hariprashad-Charles, J. held that, in deciding the forum conveniens, the court will look first to see what factors there are which point in the direction of another forum. In that case it was noted there was no exclusive jurisdiction clause, but rather a choice of law clause. Nevertheless, the court declined jurisdiction, citing the dicta of Brandon, J., in The Eleftheria [1969] 1 Lloyd’s Rep 237 at page 246, where the court held:

“It seems to be clear, however, that, in general and other things being equal, it is more satisfactory for the law of a foreign country to be decided by the courts of that country. That would be my view, as a matter of common sense, apart from authority.”

The BVI court is likely to demure to the provisions of an exclusive jurisdiction clause agreed to by the parties to a contract – a recent application of this can be seen in Garkusha v Yegiazaryan and Others BVIHCMAP 2015/0010. Subject to the general principle that agreements cannot be made to oust the jurisdiction of the court, the choice of jurisdiction agreed by contracting parties is, on the whole, respected. In appropriate cases a choice of law clause may support an argument that the BVI is not the appropriate forum.

Can a defendant dispute jurisdiction and if so, how?

Yes. A defendant can challenge the jurisdiction of the BVI court by bringing an application under CPR rule 7.8 to set aside service on the basis that (a) the court process does not fall within a jurisdictional gateway, (b) the claimant does not have a good arguable case or (c) the case is not a proper one for the court’s jurisdiction (forum non conveniens).

Are parties in litigation under any obligation to keep the proceedings confidential? Can hearings be held in private and court documents restricted? Are there any exceptions to confidentiality rules?

Yes, BVI proceedings are generally confidential. A non-party may inspect only the following on the court file:

1. Claim form;
2. Notice of appeal;
3. Judgment or order made in the case; and
4. With the court’s leave, any other document.

All other documents remain confidential unless referred to in open court.

For particular sensitivities, the court file may be sealed to prevent public access. The court may anonymise names to protect confidentiality and hold private hearings.

Court hearings are generally public, although the majority in the Commercial Court and Civil Division are held in chambers. Whilst chambers hearings are not necessarily private, it is unusual for anyone other than parties or their legal practitioners to attend.

Certain hearings are held in ‘open court’ where the public or press may attend. These include trials and hearings to appoint liquidators.

CPR rule 28.17(1) provides that a party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, unless: (a) the document has been read to or by the court, or referred to in open court; or (b) (i) the party disclosing the document and the person to whom the document belongs; or (ii) the court, gives permission.

In any event, the court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court or referred to in open court. Such an application may be made by any party or person to whom the document belongs.

For particularly sensitive or confidential documents, the judge may agree to hold hearings in private, and/or to anonymise certain information in any judgment. It is therefore possible to preserve confidentiality in certain cases.

Are there any pre-action considerations or processes that Parties should take into account? Are there any consequences for non-compliance?

No, there are no pre-action directions or requirements in the BVI. However, the court has the ability to award adverse costs to reflect the conduct of the parties if appropriate, which can include steps taken, or not taken, pre-action.

How are proceedings commenced in your jurisdiction?

Proceedings are commenced by the court issuing a claim form and the claimant serving that on the defendant together with a statement of claim.

For domestic proceedings, how and by whom is service effected? Is there a timetable parties must follow when submitting documents?

The general rule is that a claim form must be personally served on each defendant (CPR rule 5.1) within 6 months of the date of issue for service within the BVI, and for service of a claim form outside of the jurisdiction, the period is 12 months. An application can be made to extend the time for service.

For foreign proceedings, what are the permitted methods of service in your jurisdiction?

This will be determined by the laws of the jurisdiction in which the foreign proceedings take place, and there is no specific requirement in BVI for foreign proceedings to be served in a method different to that of domestic proceedings.

One of the ways in which the BVI courts can provide assistance to foreign courts is to compel entities within the BVI to produce information or documentation. There are various ways in which a foreign court, or foreign litigants, may seek the assistance of the BVI courts in obtaining information and documentation. This includes the power of the BVI courts to grant Norwich Pharmacal relief in support of foreign proceedings, and a statutory power to order an entity in the BVI to produce documentation for use in foreign legal proceedings, pursuant to the BVI receiving a letter of request from that foreign court.

In addition to the provision of information and documentation, the BVI courts are also able to assist foreign courts by granting injunctive relief, or other forms of interim relief, in support of foreign court proceedings. The most prominent way in which assistance can be provided is through the granting of injunctive relief pending determination of foreign proceedings.

Is there a timetable parties must follow when submitting documents?

Yes, although this will vary on an individual basis.

Can third parties be joined to an action? What are the practical steps needed to achieve this?

CPR Part 19 governs the addition of parties and CPR 26 provides for the court’s ability to consolidate proceedings.

An interested party wishing to be joined can apply for an order for joinder.

The court has broad powers to add a party where:

• It is desirable to do so to resolve all of the matters in dispute; or
• There are issues involving the party to be added that are connected to the matters in dispute in the proceedings, and it is desirable to add the new party to resolve those issues.

If an order for joinder is made, the court may give directions as to the service of statements of case and other documents, and other appropriate case management.

Are the courts able to hear two or more related/closely connected actions? If so, what are the practical steps needed to achieve this?

CPR Part 26 provides the court with broad case management powers, including the power to consolidate proceedings. In so doing, the court will have regard to ‘the overriding objective’ set out in CPR rule 1.1(1), which is to enable the court to deal with cases justly. CPR rule 1.1(2) provides that dealing justly with the case includes:

1. Ensuring, so far as is practicable, that the parties are on an equal footing;
2. Saving expense;
3. Dealing with cases in ways which are proportionate to the:
   1. Amount of money involved;
   2. Importance of the case;
   3. Complexity of the issues; and
   4. Financial position of each party;
4. Ensuring that it is dealt with expeditiously; and
5. Allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

What are the rules for disclosure in your jurisdiction?

The rules governing the disclosure and inspection of documents are set out in CPR Part 28. The usual direction given by the court at a case management conference is that the parties should give standard disclosure. This means that a party must disclose all documents which are directly relevant to the matters in question in the proceedings (CPR rule 28.4). Pursuant to CPR rule 28.1(4), a document is ‘directly relevant’ if:

1. The party with control of the document intends to rely on it;
2. It tends to adversely affect that party’s case; or
3. It tends to support the other party’s case.

There is an obligation to produce a list of documents by way of disclosure. A person who claims the right to withhold inspection of documents must make that claim within their list, for example, documents which are privileged.

Applications for pre-action disclosure and specific disclosure for a document, or class of documents, can also be made.

Are there any required processes e.g. eDisclosure/eDiscovery, predictive coding etc?

There are no special rules concerning the disclosure of electronic documents, nor any special practices for conducting eDisclosure.

What are the sanctions for non-compliance?

If a party is not satisfied that the other party has complied with their disclosure obligations, then they are entitled to apply for specific disclosure of documents/classes of documents from that party. Further non-compliance may result in an adverse costs order against that party, or in extreme cases, unless orders with the sanction of strike-out for further non-compliance.

Are there any exceptions to these rules (e.g. on the grounds of public interest, privilege or confidentiality etc)?

The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court or referred to in open court. Such an application may be made by any party or person to whom the document belongs.

Can non/third parties be compelled to disclose documents?

The English common law rule in Norwich Pharmacal v Commissioners of Customs and Excise [1974] AC 133 (disclosure orders against third party wrong-doers) is followed in the BVI.

However, the BVI court will not permit a party to apply for a Norwich Pharmacal Order simply to strengthen its own case and will be less inclined to grant such relief if the applicant already knows of the location of assets, or the identity of a requisite party. The court will be especially slow to make such an order if the effect of it would be to pre-empt the disclosure that is likely to be given in the ordinary course under the CPR.

What are the rules on privilege in your jurisdiction?

The rules on privilege in the BVI are governed by the Evidence Act 2006. Similarly to English law and other common law jurisdictions, a party will not be required to disclose the contents of confidential documents or communications which were created for the dominant purpose of:

1. Providing legal advice (legal advice privilege); or
2. Providing or receiving legal services in relation to anticipated or pending legal proceeding (litigation privilege).

Like other common law jurisdictions, what matters in determining whether a document is classified as privileged is a matter of substance over form. Labelling a communication / document as “privileged and confidential” will not necessarily lead to the finding that it is so, and the substance of the communication/document would need to conform with the above requirements to be privileged.

During disclosure stage a party is still required to disclose the existence of the document over which privilege is claimed, however they are entitled to withhold inspection of that document.

Confidentiality is a fundamental component of privilege. Once the confidentiality of a document is ‘lost’ (i.e. it comes into the possession of third parties), privilege over that document will be lost.

When considering cross-border privilege, what is the test your courts apply to privilege? (i.e. will your jurisdiction determine privilege under its own system or that of the country from where the documents originated)?

See above.

What are the rules in relation to expert evidence?

CPR Part 32 sets out the rules governing experts and assessors.

Parties can only rely on expert evidence with the permission of the court. Such permission and directions to the experts will usually be provided at the case management conference. Directions will usually involve the exchange of expert reports by each side’s experts, with it likely that the court will require the experts to meet and prepare a joint statement to the court setting out the issues on which they agree, disagree, and the reasons for their disagreement.

Pursuant to CPR rule 32.2, expert evidence must be restricted to that which is reasonably required to resolve the proceedings justly. CPR rule 32.3 provides that it is the duty of an expert witness to help the court impartially on matters relevant to their expertise, and that this duty overrides any obligation to the person by whom they are instructed or paid. CPR rule 32.13 provides that an expert witness must address their report to the court and not to any person from whom the expert witness has received instructions.

Are experts appointed by your courts or by the parties?

Experts are appointed by the parties, however as mentioned above, permission from the court needs to be obtained by the parties in order to call experts. The court may direct expert witnesses to prepare an agreed statement of the basic ‘science’ which applies to matters relevant to their expertise. There is no provision in the CPR for what is colloquially known as ‘hot tubbing’ experts – the process of calling expert witnesses to give evidence and be cross-examined concurrently.

What are the rules in relation to the calling of factual witnesses? Is witness evidence submitted in written form or orally, or a combination of the two? Are witnesses subject to cross-examination?

Written witness statements of fact for each witness are generally exchanged by the parties prior to trial and stand as the evidence-in-chief of the witnesses to be called. Witnesses giving evidence at court are normally cross-examined before the court. Reluctant witnesses may be compelled to attend court upon the issue and service of a witness summons (CPR Part 33).

The court may give leave for witnesses to give evidence by video link.

The rules governing the form of witness statements and affidavits are set out in CPR Parts 29 and 30. A party may apply for an order for a person to be examined before the trial or the hearing of any application (CPR rule 33.7). Generally (and subject to any directions given by the court), the examination must be conducted in the same way as if the witness were giving evidence at trial. With the consent of the parties, the court may order that the evidence of a witness be taken as if before an examiner, but without an examiner being appointed or present (CPR rule 33.9).

Are the courts able to order interim remedies during proceedings, and if so, what remedies are available? (e.g. freezing injunctions, search orders or security for costs etc)

The BVI court is able to grant domestic interim remedies pursuant to section 24 of the Eastern Caribbean Supreme Court (Virgin Islands) Act. In early 2021, section 24A of the SCA was enacted, amending the SCA to give the BVI courts statutory jurisdiction to grant freestanding freezing orders and other interim relief in support of foreign proceedings.

Interim applications are a common and prevalent feature of commercial litigation in the BVI and a wide range of interim remedies are available. Some of the more common interim injunctions in the BVI include search orders, Norwich Pharmacal orders (third party disclosure – in particular against registered agents for details regarding the members of a BVI company) and freezing orders.

CPR Part 17 sets out the framework for interim applications, supplemented by a substantial body of common law and equitable principles, derived from decisions of both the BVI and English courts. An application for an interim remedy can be made at any time, including before proceedings are started and after judgment has been given (CPR 17.2(1)). The court may only grant an interim remedy before a claim has been issued if the matter is urgent or it is otherwise in the interests of justice to do so (EC CPR 17.2(3)). In appropriate circumstances such applications can be made without notice to the respondent (ex parte).

Factors the court is likely to take into account when determining an application for an interim remedy include delay, whether the injunction can be appropriately enforced, and whether the applicant has “clean hands”, i.e., no misconduct or illegality is linked to the relief sought. There must also be an actual or threatened breach of the applicant’s rights.

Can cases be dealt with summarily? For example, because there is no case to answer (e.g. summary judgment), or because a party has not taken a required step in the proceedings (e.g. default judgment for failing to file a defence)?

The court has the power to order summary and default judgment.

The court’s judgment can be for damages (e.g. lost contractual profits) or an order that a defaulting party perform their obligations under a contract (equitable remedy of specific performance). The BVI court also has the power to give declaratory relief.

Do the courts have powers to encourage settlement?

No.

Are there any formalities required to effect a settlement?

No.

What are the features of the costs regime in the BVI? Are the legal costs recoverable from the unsuccessful party?

Costs in civil litigation rest with the court, which has broad powers to award costs against the parties (and third parties) as it sees fit.

In certain claims there are fixed and prescribed costs regimes which apply, and which are calculated in accordance with the relevant provisions of the CPR. Appeal costs are assessed within their own specific framework in the CPR.

The court encourages the parties to attempt to agree costs amongst themselves, but failing which, will carry out a detailed assessment. Unlike other jurisdictions, there are no specialist cost judges in the BVI, so the assessment of costs is often dealt with by the presiding judge who has heard the matter.

In certain situations, usually for short hearings not lasting more than 1 day, costs would be assessed summarily.

There is no express provision at law, or otherwise, for indemnity costs in the BVI, but the court does retain its discretion to award punitive costs in circumstances where it sees fit.

Finally, as there are no pre-action protocols, there are no automatic cost consequences for any failure to attempt to resolve matters pre-action, however, the court does retain a discretion to reflect any pre-action conduct (or lack thereof) in any subsequent costs orders it makes

What types of contingency or conditional fee arrangements between lawyers and their clients are available?

The BVI follows the English common law position in relation to the prohibition on champerty and maintenance. The statutory developments in England in relation to conditional fee and contingency agreements do not apply within the context of contentious business in the BVI. Therefore, at present, the common law rules against champerty and maintenance prevent lawyers practising in the BVI from entering into such agreements.

Except to the extent that it has arguably been disapplied by the rules in relation to prescribed costs, the indemnity principle applies to litigation in the BVI. A litigant will therefore be able to recover from their opponent only to the extent that they were contractually liable to their lawyers.

Insurers can, and do, indemnify their insured in relation to litigation costs, but there is a very limited market for after-the-event litigation products.

Can parties use third party funding to finance proceedings? If so, are there any restrictions on this? (e.g. only available for certain types of claims or forum)

Whilst this is a grey area, Litigation funding is permissible as a matter of BVI law so that third parties can fund litigation and other liquidation fees and expenses, in appropriate cases, and on appropriate terms.

In what circumstances and on what grounds can an appeal be made? What is the procedure, timescale, and cost for appealing?

Where an appeal may be made only with the leave of the High Court or the Court of Appeal, a party wishing to appeal must apply for leave within 21 days of the order against which leave to appeal is sought. Where an application for leave to appeal has been refused by the High Court, an application for leave may be made to the Court of Appeal within 7 days of such refusal (CPR rule 62.2). An application for leave to appeal may be considered by a single Justice of Appeal, who may give leave without hearing the applicant. However, if the judge considering an application for permission to appeal is minded to refuse leave, they must direct: (a) that a hearing be fixed; and (b) whether that hearing is to be by a single judge or the court (CPR rule 62.2).

An appeal is made in the case of an appeal from the High Court by filing a notice of appeal (CPR rule 62.3). The notice of appeal must be filed: (a) in the case of an interlocutory appeal where leave is not required within 21 days of the date the decision appealed against was made; (b) in an interlocutory appeal where leave is required, within 21 days of the date when such leave was granted; or (c) in the case of any other appeal, within 42 days of the date when judgment is delivered or the order is made, whichever is the earlier.

Appeal from the Court of Appeal lies to the Judicial Committee of the Privy Council (the Privy Council), which is located in the United Kingdom. Such appeals are governed by the Judicial Committee (Appellate Jurisdiction) Rules Order 2024 and accompanying Practice Directions. In cases where permission to appeal is required, no appeal will be heard by the Privy Council unless permission has been granted by the Court of Appeal or the Privy Council (PC Rule 10). An application to the Privy Council for permission to appeal must be filed within 56 days from the date of the order or decision of the Court of Appeal or the date when the Court of Appeal refused permission. The Privy Council will normally consider permission applications on paper but may direct an oral hearing (PC Rules 15 and 16). Where the Privy Council grants permission to appeal an appellant must, within 14 days of the grant of permission, file a notice of an intention to proceed with the appeal in the appropriate form (PC Rule 17). Where permission has been granted by the Court of Appeal, an appellant must file a notice of appeal within 56 days of the date of the order, or the decision of the court below granting permission or final leave to appeal (PC Rule 18). Readers are directed to the PC Rules and Practice Directions which govern the content and numbers of copies of documents which must be filed.

What is the procedure, timescale, and cost for enforcing local judgments?

Domestic judgments are enforceable as soon as made. Modes of enforcement include:

1. Charging orders;
2. Attachment orders;
3. Injunctions;
4. A judgment summons;
5. Orders for seizure and sale of goods or property; and
6. Appointment of liquidators or receivers.

What is the procedure, timescale, and cost for enforcing foreign judgments? Are there any reciprocal conventions that assist?

Certain foreign judgments covered by the Reciprocal Enforcement of Judgments Act are enforceable through simple registration from one of the specified countries, which include the UK, Ireland, other countries of the Caribbean, and New South Wales in Australia.

Foreign money judgments not covered by the Act are enforced by simple debt claims, often determined summarily.

Non-money foreign judgments can be enforced (where relevant jurisdiction exists over the defendant and the claim is one recognised in the BVI) through commencement of an equitable execution claim at common law relying on issue estoppel to preclude further defence. Issues of public policy and rule of law are relevant to the enforcement of a foreign judgment.

Does your jurisdiction recognise ADR (e.g. mediation etc.) and are there exceptions? The CPR does not have any formal requirement for parties to participate in ADR or negotiated dispute resolution. The BVI courts have recognised mediation and other forms of settlement agreement historically. Do the courts have power to encourage ADR?

Yes.

Are there sanctions for refusing to engage with ADR?

Potentially – via costs orders.

What are the key developments in your jurisdiction (reforms, changes in legislation, growth areas, impact of technology etc.)?

The BVI remains a key jurisdiction for assisting litigants in other jurisdictions, and in particular the relatively recent enactment of section 24A of the SCA to give the BVI courts statutory jurisdiction to grant freestanding freezing orders and other interim relief in support of foreign proceedings.

Third party funding and access to justice are likely to become ever more prevalent in the BVI.

As mentioned above, given there is no longer a requirement to obtain court leave to serve proceedings outside the jurisdiction, we expect that this will lead to an increase in the number of applications to set aside service outside of the jurisdiction.

How do your courts determine if they have jurisdiction?

In the context of the CPL, PRC courts generally determine if they have jurisdiction based on the following tests:

1. Exclusive jurisdiction: In the PRC, certain types of cases can only be heard by PRC courts, where the CPL recognizes the concept of “exclusive jurisdiction”. From the latest amendments introduced in the CPL (2024 Amendments), two types of civil disputes have been added to the PRC courts’ exclusive jurisdiction: (i) disputes over the formation, dissolution, liquidation, or validity of a resolution of a legal entity or any other organization in the PRC, and (ii) disputes over the validity of intellectual property rights granted in the PRC.
2. Territorial Location: Generally, a civil case should be brought to the court at the location of the respondent, unless otherwise stipulated by law. For example, for contractual disputes, the court at the place of performance of the contract may have jurisdiction, and for tort disputes, the court at the place of occurrence of the tortious act may have jurisdiction. Under the 2024 Amendments, in addition to the six “connection points” under the old law (where PRC was the place of contractual signing, the place of contractual performance, the location of the subject matter of the dispute, the location of attachable property, the venue of the tort, or the residence of the representative office of the foreign party), PRC enterprises are now permitted to file claims against foreign defendants in respect of disputes that have “appropriate connections” with the PRC courts, which expands the jurisdiction of PRC courts over foreign-related civil and commercial claims.
3. Hierarchical jurisdiction: When the location of the competent court is determined, it is important to consider the four levels of the court. Most civil cases of the first instance should be brought to the Primary People’s Courts. However, where the object of the action reaches a certain threshold, or the case is of particular significance or complexity in the jurisdiction, some civil and commercial cases of the first instance could be brought to the Intermediate People’s Court or even the High People’s Court.
4. Jurisdiction by Agreement: In foreign-related civil cases, the parties may mutually agree in writing on the selection of a PRC court to have jurisdiction. Under the 2024 Amendments, such PRC courts do not need to have an “actual connection” with the dispute. However, such an agreement shall not violate the provisions on hierarchical jurisdiction and exclusive jurisdiction.
5. Jurisdiction by Submission: PRC courts shall be deemed to have jurisdiction if the relevant party has not objected to the jurisdiction but has responded with statements of defence or raised a counterclaim, unless the provisions on hierarchical jurisdiction and exclusive jurisdiction are violated.
6. Parallel Litigation: 2024 Amendments provide new rules relating to parallel litigations, where a Chinese court may still exercise jurisdiction over a case under certain circumstances even if the same dispute has been filed first in a foreign court.

Can a respondent dispute jurisdiction and if so, how?

Yes, a respondent can dispute jurisdiction by filing an objection with the court within 15 days after receiving a copy of the complaint, or within 30 days if the respondent has no domicile in PRC. If the court supports the objection, it will issue a ruling to transfer the case to the competent court having jurisdiction; conversely, if the court does not support the objection, it will issue a ruling to dismiss the objection. In relation to “Jurisdiction by Submission”, please refer to paragraph v. above.

Are parties in litigation under any obligation to keep the proceedings confidential?

The PRC laws do not expressly require parties in litigation to keep the proceedings confidential. However, cases involving the state secrets, personal privacy and trade secrets are not open to the public, and the parties to such proceedings are obligated to keep the evidence confidential.

Can hearings be held in private and court documents restricted?

Yes, hearings can be held in private and court documents can be restricted in certain circumstances. While the principle is the hearings are held in public, exceptions are made for cases involving state secrets or personal privacy, which will be heard in private; If a case involves divorce or trade secrets which one party apply for hearing in private, the hearing can be generally held in private.

In relation to the court documents, the public may access effective judgments and rulings, except for those involving state secrets, trade secrets, or personal privacy. Only parties to a case and their attorneys or competent representatives may have access to the materials relating to the case, subject to the scope and method provided by the Supreme People’s Court.

Are there any exceptions to confidentiality rules?

For the cases involving the state secrets, personal privacy and trade secrets, there is no exception to the confidentiality in those cases.

Are there any pre-action considerations or processes that Parties should take into account?

By law, there are no mandatory pre-action requirements before initiating civil proceedings. However, the parties can take the following circumstances into consideration:

1. Shareholder derivative lawsuit: unless in case of emergency, a shareholder must first request the board of directors to commence proceedings against the tortfeasor that has infringed the interest of the company or shareholders.
2. Labour disputes: the parties involved in a labour dispute are required to first submit the dispute to a labour arbitration commission in the district where the employer is located.
3. Preliminary injunctions: the court considers four factors before issuing a preliminary injunction that may require a party to perform, or refrain from performing, a particular act: the act being committed or about to be committed by the respondent, potential irreparable damage to the applicant, the adequacy of security provided by the applicant, and whether the injunction would harm the public interest.
4. Property preservation: property can be preserved by the court by means of seizure, impounding, freezing of accounts or any other means prescribed by the law, if it may be difficult or impossible to enforce a judgment due to the bad faith conduct of a party.
5. Evidence preservation: evidence can be preserved by the court before the hearing if there is the potential destruction of evidence or the difficulty of its later procurement.
6. Advance execution: the people’s court may, upon the application of the parties, order advance execution in claims for alimony, maintenance, pensions or medical expenses; compensation for labour claims; or where advance execution is required due to urgent circumstances. The factors considered by the people’s court when deciding to order advance execution include: a clear delineation of the parties’ rights and obligations, where non-implementation could gravely disrupt the applicant’s livelihood or business operation; and the respondent’s ability to fulfil the execution.

Only “evidence preservation” does not require the applicant to provide security, which differs from preliminary injunctions, property preservation and advance execution.

Are there any consequences of non-compliance with the pre-action requirements?

Not applicable. However, while there may not be specific pre-action requirements, compliance with the conditions of initiating civil claims is indeed crucial. If a party fails to comply with these conditions, their claim could be dismissed by the court.

How are proceedings commenced in your jurisdiction?

Proceedings are commenced when a claimant files a written complaint along with relevant evidence in the correct jurisdiction and the court accepts the complaint within seven days after receipt of a complaint.

Subject to any exceptions prescribed in laws (e.g., administrative compensation cases), the claimant shall pay the case acceptance fee within seven days after the next day following the receipt of the court’s demand notice on payment. The case acceptance fee is calculated by reference to the sum in dispute (or pursuant to the relevant laws if it is a non-property case) as follows:

For domestic proceedings, how and by whom is service effected？

Service is effected by the court and their own staff in the PRC. The general methods of service in domestic proceedings are as follows:

1. Direct (personal) service: The court staff personally deliver the judicial documents to the recipient. If the recipient is not present, the documents may be left with an adult residing with the recipient.
2. Mail service: The court may also send the judicial documents by registered mail. If the recipient refuses to sign for the mail, the documents may be deemed to have been served.
3. Public announcement: if the court fails to serve documents according to the methods provided by law, the court can serve the documents by public announcement. Service is deemed to have been made in a domestic case 30 days after the date of the public announcement.
4. Electronic Service: In some cases, electronic methods such as email may be used, but this is less common.

In PRC, the receipt of most judicial documents should be acknowledged. This includes contracts and other legal instruments. However, there are exceptions for certain types of documents such as judgments, rulings, and mediation statements. These documents are considered served once they have been delivered.

For domestic proceedings, now it would be easier and more flexible to serve foreign parties without a domicile under 2024 Amendments. In summary:

1. International Treaty: service can be done as specified in an international treaty between the state of the person to be served and China.
2. Diplomatic Channels: service can be done through diplomatic channels.
3. Embassy or Consulate: If the person to be served is a PRC national located abroad, service can be entrusted to the PRC embassy or consulate in that state.
4. Agent Ad Litem: Service can be done on the agent ad litem authorized by the person to be served (the legal representative or primary responsible persons in charge of the foreign parties).
5. Wholly Funded Enterprise or Representative Office: Service can be done on the wholly funded enterprise, representative office, or the branch or business agent authorized to accept service, established within China by the person to be served.
6. Foreigner or Stateless Person: If the person to be served is a foreigner or a stateless person who serves as the legal representative or principal person in charge of a legal person or other organization established within China and is a co-defendant with the legal person or other organization, service can be done on such legal person or other organization.
7. Foreign Legal Person or Other Organization: If the person to be served is a foreign legal person or other organization, and its legal representative or principal person in charge is within China, service can be done on such legal representative or principal person in charge.
8. Mail: Service can be done by post if it is permitted by the laws of the state where the person to be serviced is located. If the acknowledgment of service is not returned within three months after the date of posting, and various circumstances justify the assumption that the document has been served, the document shall be deemed to have been served on the date of expiry of the time limit.
9. Electronic Means: Service can be done by electronic means through which the receipt of the document may be acknowledged, unless otherwise prohibited by the laws of the state where the person to be serviced is located.
10. Other Means: Service can be done by other means agreed by the person to be serviced, unless otherwise prohibited by the laws of the state where such person is located. Service on PRC Branches and PRC WFOEs: PRC branches and wholly owned subsidiaries of foreign parties can their foreign headquarters without express authorization.
11. Public Announcements: If a document cannot be served by any of the above means, it shall be served by public announcement. The document shall be deemed to have been served after sixty (60) days from the date of the public announcement.

For foreign proceedings, what are the permitted methods of service in your jurisdiction？

Foreign courts cannot directly serve judicial documents to parties within PRC. They can serve through the following permitted methods:

1. Hague Service Convention: the PRC has acceded the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. As such, foreign courts may request PRC courts to assist in the service of legal documents, investigation, collection of evidence, and other acts in connection with litigation in accordance with international treaties concluded or acceded by PRC or in accordance with the principle of reciprocity.
2. Diplomatic Channels: Service can be done through diplomatic channels if no international treaty is in place. If the person to be served is a PRC citizen, the PRC embassy or consulate in the country where the person is located can be entrusted to serve on its behalf.
3. Service by a foreign embassy or consulate in China on its own nationals: The embassy or a consulate in the PRC of a foreign state may serve documents on, investigate, and take evidence from its nationals, provided that the PRC law is not violated and that no compulsory measures are adopted.

A letter of request for judicial assistance and annexes submitted by a foreign court to a PRC court should be accompanied by a Chinese translation, or text in another language as specified in the relevant international treaty.

Is there a timetable parties must follow when submitting documents?

The respondent is required to submit a written statement of defence within 15 days, or 30 days if the respondent is not domiciled in the PRC, after receiving a copy of the complaint.

The parties are to submit evidence, which may include documents, witness testimonies, expert opinions, or other relevant materials, within the period designated by the court. This period is typically not less than thirty (30) days, but it can be extended by agreement or with court approval before the deadline.

If a party is not satisfied with the judgment of the first instance court, they have the right to appeal to the next higher level. This appeal must be made within 15 days, or 30 days if the party is not domiciled in the PRC, following the service of the first instance court judgment.

Can third parties be joined to an action? What are the practical steps needed to achieve this?

Yes, a third party can join an action, The practical steps are as follows:

1. The third party makes an application to the court;
2. The third party provides reasons (for example, the third party has an independent claim regarding the same subject matter of a dispute, or it is an interested party to the outcome of the case);
3. The court will decide whether to allow the third party to be joined to the action;

Are the courts able to hear two or more related/closely connected action? If so, what are the practical steps needed to achieve this?

Yes, the PRC courts can two or more related/closely connected actions. The decision to consolidate hearings can be made either by the court on its own initiative or upon application by the parties involved. Specifically:

1. Joint Action: where the object of the actions is the same, or where the object of the actions is of the same category, if the court believes that consolidation is feasible, the court can consolidate the actions after obtaining the consent of the parties.
2. Court’s Initiative: The court can decide to consolidate hearings if disputes arise from the same facts and the parties separately sue in the same court. After a case is accepted and before the end of the court debate, if the claimant presents an additional claim against the respondent, the defendant counterclaims, or a third party puts forward a claim related to the case, the court should consolidate them if it believes the consolidation is feasible.

What are the rules for disclosure in your jurisdiction?

Discovery under the common law is not available in the PRC. Each party bears the burden of proof to support its own claims, but they are not obliged to disclose potentially damaging evidence. However, the PRC has procedures that resemble ‘disclosure/discovery’ in common law. This approach contrasts with common law systems, where discovery is a key part of the pre-trial process and parties are generally required to exchange relevant information, including that which may not be favourable to their case. For instance, under PRC law, if a respondent or third party is believed to possess relevant evidence, the plaintiff can request the court to compel its submission. If the respondent or the third-party refuses without a valid reason, the court may assume the truth of the plaintiff’s claim about the evidence.

Are there any required processes e.g. eDisclosure/eDiscovery, predictive coding etc.?

Not applicable.

What are the sanctions for non-compliance?

Not applicable.

Are there any exceptions to these rules? (e.g. on the grounds of public interest, privilege or confidentiality etc.)?

Not applicable.

Can non/third parties be compelled to disclose documents?

Not applicable.

What are the rules on privilege in your jurisdiction?

Rules on privilege in common law are not applicable in the PRC. However, there are some analogous concepts related to the attorney-client relationship in the PRC. For instance, PRC laws protect the confidentiality of documents and communications between a qualified lawyer (i.e., one who meets specific qualification criteria prescribed under applicable PRC laws and regulations) and their client during the lawyer’s practice. However, this confidentiality obligation does not extend to facts and information pertaining to a criminal offense that the client or someone else is preparing to commit or is currently committing.

When considering cross-border privilege, what is the test your courts apply to privilege? (i.e. will your jurisdiction determine privilege under its own system or that of the country from where the documents originated)?

Not applicable.

What are the rules in relation to expert evidence?

Experts can be appointed by either the parties or the courts. Parties involved in a case can apply to a people’s court for the examination of a specialised issue to verify a fact. If the parties cannot agree on an expert, the court will appoint one. If the court deems it necessary to examine a specialized issue, even if the parties do not apply for it, the court will appoint a qualified expert.

What are the rules in relation to expert evidence?

In PRC, the legal system permits expert opinion (also known as appraisal opinion). These are professional opinions given by neutral judicial expert institutions on specific factual issues related to a case.

The experts have the right to consult necessary materials for the examination and can question parties and witnesses if needed. They must issue a written expert opinion signed or sealed by them. If a party objects to the expert opinion or if the court finds it necessary, the expert must testify in court. If the expert refuses to testify after being notified by the court, their written opinion will not be used as a factual basis for the case. The party that bears the costs and expenses related to the examination can ask for reimbursement if the expert opinion is not used.

A party can also apply to the court to have a person with specialized expertise appear in court and provide opinions on an expert’s opinions or specialised issues.

In practice, the most frequently encountered professional issues include technical matters such as verifying the authenticity of signatures, establishing the causal link between environmental pollution and pollution emissions, paternity identification, and value assessment tasks like project cost assessment in construction projects.

What are the rules in relation to the calling of factual witnesses?

The application to summon witnesses to court shall be filed 10 days before the expiration date for producing evidence and is subject to the approval of the People’s court. If the People’s court approves the application, it informs the witnesses involved prior to the court hearing that they are expected to testify on the basis of facts. The court will highlight the legal consequences of giving false testimony. The losing party is responsible for all reasonable expenses incurred from the witness’s appearance at court. If a party requests a witness’ testimony, that party must initially cover these costs. If the court summons a witness without a party’s request, the court will advance these costs.

Is witness evidence submitted in written form or orally, or a combination of the two?

Witness evidence is submitted in written form and upon notice by a People’s court, a witness can testify in court. Under any of the following circumstances, a witness can testify by written testimony, audio-visual transmission technology, audio-visual recordings or any other means as permitted by a People’s court:

1. The witness is unable to appear in court for health reasons.
2. The witness is unable to appear in court for remote residence and travel difficulty.
3. The witness is unable to appear in court for a force majeure such as a natural disaster.
4. The witness is unable to appear in court for any other justifiable reason.

Are witnesses subject to cross-examination?

The PRC laws do not explicitly recognise the concept of “cross-examination”.

Instead, the PRC follows a different legal tradition and has its own unique procedures for questioning witnesses and presenting evidence in court. These procedures may differ significantly from the concept of “cross-examination” found in common law.

Can the court grant an order to investigate and gather evidence?

Yes, the CPL stipulates grants courts the authority to investigate and gather evidence from relevant entities or individuals, who are obliged to cooperate. If an entity required to assist in the investigation obstructs the process or refuses to cooperate, the court can order it to fulfil its obligation and impose a fine. The fine for individuals is capped at CNY100,000, while for units, it ranges from CNY50,000 to CNY1 million.

Can the evidence be collected outside PRC?

In addition to international treaties or diplomatic channels, the 2024 Amendments provides alternative methods for overseas evidence collection (i.e., entrusting the Chinese embassy or consulate in the relevant country to collect evidence from the parties or witnesses who are PRC nationals, utilizing instant message tools agreed upon by both parties, and implementing any other methods agreed upon by both parties), provided the such methods are not prohibited by the foreign jurisdiction. However, in line with the PRC’s reservation under the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, the Amendments prohibit direct evidence collection within the PRC for foreign proceedings without going through international treaty processes, unless approved by the relevant PRC authorities. Additionally, collecting evidence from overseas may incur extra costs, such as consular fees and translation fees.

Are the courts able to order interim remedies during proceedings, and if so, what remedies are available? (e.g. freezing injunctions, search orders or security for costs etc)

For interim remedies during proceedings, the remedies available include property preservation orders, evidence preservation orders, and conduct preservation orders.

It’s important to note that when an applicant applies for preservation to the PRC courts, they can be required to provide security for such preservation.

Can cases be dealt with summarily? For example, because there is no case to answer (e.g. summary judgment), or because a party has not taken a required step in the proceedings (e.g. default judgment for failing to file a defence)?

Yes, cases can be dealt with summarily. However, summary procedures and default judgments are used in different circumstances in the PRC.

Summary procedures are used in the Primary People’s Courts and the detached tribunals when the facts of the case are clear, the rights and obligations are definite, and the parties do not have disputes, or the disputes are simple. A summary procedure is usually presided over by a single judge or a panel, while a formal procedure is usually presided over by a three-judge collegial panel.

The PRC court can grant a default judgment under the following circumstances:

• Where a respondent refuses to appear in court without justifiable reasons after being summoned,
• Where a respondent leaves the courtroom during a court session without permission from the court,
• Where a respondent has filed a counterclaim;
• Where a claimant requests withdrawal of the action before a judgment is given, but the court decides not to grant the request, and the claimant refuses to appear in court without justifiable reasons after being summoned.

Do the courts have powers to encourage settlement?

PRC courts allow and encourage parties to reach a settlement agreement during the entire process of civil lawsuit. However, PRC courts do not have the power to force so.

Are there any formalities required to effect a settlement?

After a civil case is accepted by the court and before a judgment is made, if the parties reach a settlement on their own, they can submit a settlement agreement to the court. If the agreement is approved by the court, the case can be closed.

During the enforcement process of a judgment, if parties independently reach a settlement agreement, an enforcement officer records the agreement details, which both parties sign or seal. If an agreement is reached through deception or coercion, or if a party fails to fulfil the settlement agreement, the court can resume enforcing the original legal document (judgement, ruling, etc.) upon the other party’s request.

What types of contingency or conditional fee arrangements between lawyers and the clients are available?

For civil litigation in PRC, at the request of the client, a law firm can charge on contingency basis, i.e. “no win, no pay”. This arrangement means that the client only pays a fee if the case is successful.

In the PRC, while the specifics can vary, some general categories where contingency fees might not be permitted include:

1. Criminal cases;
2. Marriage cases;
3. Inheritance cases;
4. Cases of asking for social insurances or the minimum living costs;
5. Cases of asking for payments for supporting parents or supporting children, or for alimonies, pensions for the disabled or the family of the deceased, or welfare payments or compensations for work-related injuries; or
6. Cases of asking for payments for labour remunerations, etc.

Can parties use third party funding to finance proceedings? If so, are there any restrictions on this? (e.g. only available for certain types of claims or forum)

There is no specific rule on third-party funding to finance proceedings in the PRC. In practice, it is important to note that the legitimacy of third-party funding is largely at the discretion of the court since the PRC legislation neither prohibit third-party funding, nor expressly permit it in any of its provisions.

Are the legal costs recoverable from the unsuccessful party?

In general, each party shall bear its own legal costs. Nevertheless, legal costs can be recoverable from the unsuccessful party in PRC on the basis of agreement by the parties or specific laws and regulations. However, the court often awards the amount of fees and expenses based on the government’s recommended fee scale. This implies that the attorney fees and expenses of the successful party may not be fully reimbursed. It’s also important to note that the recovery of legal costs is often at the discretion of the court.

In what circumstances and on what grounds can an appeal be made? What is the procedure, timescale, and cost for appealing?

In the PRC, an appeal can be made under various circumstances and on different grounds.

1. Judgment: If not satisfied with a first instance judgment (including default judgment) of a local People’s court, a party has the right to file an appeal with the People’s court at the next higher level within 15 days, or 30 days if the party is domiciled outside PRC, from the date of service of the written judgment. The appellate court completes the trial and makes judgment within the three months following receipt of the appeal complaint, unless otherwise approved by the president of the appellate court.
2. Ruling: Against a first instance ruling of a local people’s court, a party has the right to file an appeal with the People’s court at the next higher level within 10 days, or 30 days if the party is not domiciled in PRC, from the date of service of the written ruling. The appellate court completes the trial and makes ruling within the 30 days following receipt of the appeal complaint, unless otherwise approved by the president of the appellate court.

As for the court fee for the appeal, it is the same as the “case acceptance fees” set out in section 5.

What is the procedure, timescale, and cost for enforcing local judgments?

An effective civil judgment or ruling can be enforced by the People’s court of first instance or the People’s court at the same level as the People’s court of first instance at the place where the assets are located. In the event that an application for the enforcement of an effective judgment or ruling is to be made, it must be submitted within a period of two years commencing from the final day of the prescribed time limit for the satisfaction of the judgment or ruling. In cases where the judgment or ruling does not provide a specific time limit for satisfaction, the aforementioned two-year period shall commence from the date on which the judgment or ruling officially takes effect.

What is the procedure timescale, and cost for enforcing foreign judgments?

A foreign court judgment can be recognised and enforced in the PRC if there is an international treaty concluded with the PRC and the foreign country where the foreign court is located, or if there is relationship of reciprocity between the two countries. The application to recognise and enforce must be filed within two years following the judgment comes into force.

A party can apply directly to a competent Intermediate People’s court for recognition and enforcement or apply to the foreign court to request recognition and enforcement on their behalf and in accordance with the principle of reciprocity or the provisions of an international treaty concluded or acceded to by the PRC. The Intermediate People’s court will issue a ruling to recognise the legal force of the judgment and issue an enforcement order at its discretion, as long as the judgment or ruling does not violate the basic principles of the laws, sovereignty, security and public interest of the PRC.

The 2024 Amendments formalizes the grounds on which Chinese courts may refuse to recognize foreign judgments. These include the following situations:

1. The foreign court lacks jurisdiction to rule over the dispute under its own law, the mandatory provisions of the CPL or based on the parties’ exclusive jurisdiction agreement;
2. The respondent was not duly summoned or lacked a reasonable opportunity to defend itself;
3. A party lacking capacity was not duly represented;
4. The foreign judgment was obtained through fraud;
5. A PRC court has already rendered a judgment on the same dispute, or recognized a judgment from another country on the same dispute; or
6. Recognition and enforcement would be contrary to basic principles of PRC law or harm national sovereignty, security, social or public interests.

Are there any reciprocal conventions that assist?

As of the date of this article, PRC has not acceded to the Hague Convention on The Recognition and Enforcement of Foreign Judgment in Civil and Commercial Matters 2019 (HCCH). Instead, PRC enforces foreign judgments through bilateral mutual legal assistance treaties with foreign countries.

Does your jurisdiction recognise ADR (e.g. mediation etc.) and are there exceptions?

Yes, the PRC courts recognize ADR methods, such as negotiation, mediation, arbitration.

1. Notably, mediation is another common form of ADR in the PRC. It can be conducted independently or in conjunction with litigation or arbitration. The typical types of mediation in PRC are as follows:
2. People’s Mediation/Civil Mediation – it refers to the activities of People’s Mediation Committee in PRC, which promote the parties to voluntarily reach mediation agreements through consultation. If an agreement is reached, parties can apply to the People’s court for confirmation. If confirmed, and one party fails to perform, the other party may apply for enforcement.
3. Judicial Mediation – Conducted by judges, this process can occur after the term for answering the claim expires but before judgment. If mediation fails or is rejected, the case proceeds to trial with the same judge.
4. Administrative Mediation – Conducted by government officials, this process can mediate relevant disputes within their areas of jurisdiction. It follows principles of voluntariness, legality, fairness, and impartiality, and is widely practiced in labour disputes and related areas.

Do the courts have power to encourage ADR?

The Chinese legal system generally encourages the use of ADR methods, such as mediation and arbitration. However, the PRC courts do not have power to force so. All civil cases suitable for mediation must first seek resolution through this process, which is integrated into the entire civil trial procedure.

Are there sanctions for refusing to engage with ADR?

No. ADR is conducted based on the parties’ voluntariness in China. The PRC law does not explicitly outline specific sanctions for refusing to engage with ADR.

What are the main ADR forums in your jurisdiction?

A specific forum suitable for a dispute would depend on various factors, including the nature of the dispute, the parties involved, and their agreement. Generally, the main ADR forums in the PRC include the following:

Arbitration: The PRC International Economic and Trade Arbitration Commission is one of the major arbitration institutions.

Mediation: As stated in paragraph 18.1, mediation can be conducted by the People’s Mediation Committees, the People’s courts and the government bodies.

What are the key developments in your jurisdiction (reforms, changes in legislation, growth areas, impact of technology etc.)?

2024 Amendments

On January 1, 2024, PRC’s new Civil Procedure law came into force, which represents a milestone of the civil litigation regime of PRC. This is the first substantive revision of the law in 30 years. The 2024 Amendments will impact both PRC enterprises doing business internationally and the multinationals doing business in PRC.

Enforcement of Judgments between Hong Kong and the Mainland China

On January 29, 2024, a new reciprocal enforcement of judgments regime between Hong Kong and the Mainland China was introduced. This regime is implemented through the Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance (Cap. 645) (the Ordinance), which have significantly improved the process of enforcing Hong Kong judgments in the Mainland China, making it more efficient and effective for parties involved in cross-border disputes.

How do your courts determine if they have jurisdiction?

The courts will determine whether they have jurisdiction either by reference to various international conventions or by reference to the agreement between the parties.

The Recast Brussels Regulation ceased to apply in England when the UK left the EU on 31 December 2020), except in relation to proceedings instituted by 11:00pm on that date. This note focusses on the position now the UK has left the EU.

The 2005 Hague Convention on Choice of Court Agreements

Where the parties have agreed a choice of court from one of the Convention countries, the courts of those countries must uphold the elected choice of court and jurisdiction.

The current Convention countries include: the UK, EU member states, Denmark, Albania, Mexico, Montenegro, Singapore, the Republic of Moldova, Ukraine, and Switzerland.

Jurisdiction Agreements

The court will also take into account whether the parties have agreed that a particular jurisdiction will apply to their disputes. A jurisdiction agreement can include an exclusive jurisdiction clause (where only the court named within the agreement will have jurisdiction), or a non-exclusive jurisdiction clause (where disputes can be heard in the courts of a particular jurisdiction, but without prejudice to the right of one or other of the parties to take a dispute to the courts of any other jurisdiction).

Where the agreement contains a clause specifying that the English courts have exclusive jurisdiction, a claimant will generally not need to apply for leave to serve outside of the jurisdiction. Where the agreement contains a non-exclusive jurisdiction clause a claimant may need to apply for leave to serve outside of the jurisdiction.

The Common Law Rules

If the Hague Convention 2005 does not apply or where there is no jurisdiction agreement, the court will use the common law rules for determining whether it has jurisdiction. This will include the court considering factors such as whether the defendant:

1. is within the jurisdiction and validly served within the jurisdiction;
2. has submitted to the jurisdiction;
3. was served outside of the jurisdiction – whether with the court’s permission¹, or validly served where the court’s permission was not required.

When seeking permission from the court, the key consideration is whether England is the “natural forum” for the claim – it must be the forum with the most real and substantial connection to the case.

Can a Defendant dispute jurisdiction and if so, how?

This is a complex area. However, defendants can dispute the jurisdiction of the English courts on a limited number of grounds. Essentially arguing the reverse of those on which a party seeks to found jurisdiction, e.g. where the parties have agreed an exclusive jurisdiction clause providing for disputes to be heard in a court other than the English courts; that a relevant Convention provides for the dispute to be heard by another jurisdiction’s court, or where service was not properly made.

To obtain permission to serve out of the jurisdiction it is necessary to show that the claim falls within one of a number of categories or jurisdictional “gateways” (listed in Practice Direction (PD) 6B.3.1, that the claim has a reasonable prospect of success, and that England is the proper place to bring the claim (CPR 6.37(3))

Are parties in litigation under any obligation to keep the proceedings confidential? Can hearings be held in private and court documents restricted? Are there any exceptions to confidentiality rules?

Other than in some extremely limited circumstances, detailed below, all court proceedings are held in public and documents submitted to the courts will all be publicly available. Parties are able to request that the court file is confidential and that hearings are held in private, where:

1. publicity would defeat the object of the hearing.
2. the hearing involves a matter of national security.
3. the hearing involves confidential information, and publicity would damage that confidentiality; and
4. it is a hearing of an application made without notice and it would be unjust to the respondent for there to be a public hearing.
5. the court for any other reason considers it to be necessary to secure the proper administration of justice.

Are there any pre-action considerations or processes that Parties should take into account?

The CPRs contain several pre-action protocols, which are specific to certain types of cases. These include, for example, the pre-action protocol on professional negligence claims and the pre-action protocol on construction claims. Where none of the specific pre-action protocols apply, the Practice Direction – Pre-Action Conduct and Protocols will apply.

The pre-action protocols provide a framework within which the parties will take steps to try and settle their dispute without litigation, encouraging early settlement and alternative dispute resolution. Parties that unreasonably refuse settlement offers, or invitations to participate in alternative dispute resolution may be considered unreasonable by the court and face costs sanctions as a result.

Following the recent case of Churchill v Merthyr Tydfil County Borough Council [2023] EWCA Civ 1416, the English courts now have the power to order parties to engage in alternative (ADR) or negotiated dispute resolution (NDR), including mediation, where appropriate.

The Practice Direction – Pre-Action Conduct and Protocols requires that the parties co-operate with one another to ensure a sufficient exchange of information enabling each side to understand the other’s position, and to ensure that the case is able to proceed efficiently. The parties must also consider whether negotiation or some other form of ADR/NDR could enable them to settle without issuing proceedings.

Are there any consequences for non-compliance?

The court will be interested in significant non-compliance with the pre-action protocols, rather than technical or minor shortcomings.

Significant non-compliance will be taken into account by the court when it considers costs. It can also be considered where the court is giving general directions for the case, and the court may also stay proceedings until the necessary steps have been taken to comply with the relevant pre-action protocol.

The court will also consider the effect of any non-compliance when deciding whether to impose sanctions. These sanctions may include an order that the party at fault pays the costs of the proceedings, or part of the costs of the other party, which may be ordered on an indemnity basis – that is, at cost rather than on a recoverable basis, which would usually be a lesser amount.

How are proceedings commenced in your jurisdiction? For domestic proceedings, how and by whom is service effected? Is there a timetable parties must follow when submitting documents?

High Court proceedings can either be a CPR Part 7 or Part 8 claim. Part 7 claims are in general disputes that are likely to need an exploration of the facts and evidence, whereas Part 8 claims are more discrete and capable of being dealt with without the need for substantial pleadings or investigation of the facts, and therefore Part 8 trials will generally take less time to reach a hearing and judgment. An example of a Part 8 claim is where a party seeks a declaration on the interpretation of a clause or meaning of a contractual term.

In this section we focus on the procedure around Part 7 claims, as these are the most common High Court claims.

Part 7 proceedings are commenced by the issue and service of a claim form. The claim form (which sets out the parties and summarises the cause of action) is issued by the court on the payment of a fee, for claims of £200,000 and above or claims that are unquantified, the fee is currently £10,000. The claim form must be served on the defendant within 4 months of issue. If the claimant wishes to serve the claim form on a defendant outside the jurisdiction, then this must be served within 6 months of the date of issuing the claim form. In either case time extensions may be permitted by the court.

‘Particulars of claim’, in which the claim is detailed, can be included in the body of the claim form itself, or alternatively, in a separate document served at the same time as the claim form, or if not, within 14 days of the service of the claim form. First class post, delivery in person, and by electronic means are all recognised as valid service methods.

For foreign proceedings, what are the permitted methods of service in your jurisdiction?

Service of foreign proceedings must be in accordance with CPRs Part 6.48 to 6.52, irrespective of whether the Hague Service Convention or other service conventions apply. However, the options for service will differ if the Hague Service Convention applies.

The relevant consular or authority of the originating country must send a written request for service to the UK’s Central Authority, that is the Senior Master at the Foreign Process Section, together with a translation of the request and documents into English.

Following which the English court sends the documents to be served to the county court bailiff nearest to the defendant, and it is the bailiff who serves the documents.

Where the claimant is based in a country that is a signatory to the Hague Service Convention, under Article 10, service can be:

1. direct by postal channels
2. through judicial officers, officials, or other competent persons.

Service under the Hague Service Convention through the UK’s central authority (the Senior Master at the Foreign Process Section) will take longer and may be more defensible than other methods of service.

Can third parties be joined to an action? What are the practical steps needed to achieve this?

There are three permitted categories of additional claims:

1. a defendant’s counterclaim;
2. a claim by the defendant for a contribution or indemnity against a new party; and
3. claims against third parties previously not a party to the claim.

For a claimant to add additional defendants after the claim form has been served, the permission of the court is required. The court will only grant permission for the additional defendant to be joined to the action if it is desirable in the circumstances, and it would enable the court to deal with the case justly, at a proportionate cost. The claimant is likely to be responsible for the costs arising from the process of adding an additional defendant. Where a new defendant is added, the claimant is likely to seek leave to amend its POC.

Are the courts able to hear two or more related/closely connected actions? If so, what are the practical steps needed to achieve this?

The court is able to make a Group Litigation Order. This is where an order is made which provides for the case management of claims which give rise to common or related issues of fact or law. The court can make such an order where there are or there are likely to be such common or related issues of fact or law between the claims.

What are the rules for disclosure in your jurisdiction?

The rules regarding disclosure underwent a significant review at the beginning of 2019 with the introduction of the ‘Disclosure Pilot’. The Pilot proved to be a success and, with very few changes, was made permanent in the Business and Property Courts from 1 October 2022 and is now known as Practice Direction 57AD ‘Disclosure in the Business and Property Courts’. The revised disclosure rules have improved the disclosure process making it more proportionate and cost-efficient.

Whilst PD57AD applies to most of the business focussed courts, the old disclosure rules prevail in a number of the courts, including the Admiralty Court. However, for the purposes of this chapter we will focus on PD57AD.

Under PD57AD there is an obligation on parties to ensure that they preserve any documents which may be relevant to the proceedings. Various document preservation steps will need to be complied with, and a party will need to make a declaration to the court that it has taken such steps, and its legal representatives will be required to make a declaration that they have properly advised their client on its obligations.

The rules provide for phased disclosure. In the first instance the claimant will, along with its claim form, provide its counterparty with Initial Disclosure, that is the key documents relied upon, adverse to its case, and those required to understand the claim. Initial Disclosure is not required where it would involve disclosing more than 1000 pages or 200 documents (whichever is greater), where the parties agree it is not required, or if the court orders it is not necessary. Where initial disclosure is given, the parties must provide a Disclosure Certificate certifying that all known adverse documents have been disclosed.

With the permission of the court (or upon its order), extended disclosure can be granted in addition to, or instead of, Initial Disclosure. Extended Disclosure comprises 5 models as follows:

1. Model A – disclosure of known adverse document only
2. Model B – limited disclosure of key documents (not already provided in the Initial Disclosure)
3. Model C – request led search-based disclosure (i.e. disclosure of specific documents/classes of documents)
4. Model D – narrow search-based disclosure
5. Model E – wide search-based disclosure (this will only be granted in exceptional cases)

Where the parties request Extended Disclosure, they will need to complete a Disclosure Review Document stating which of the above models (or combination) apply and setting out the issues on which the disclosure applies. The parties will further need to provide the Disclosure Certificate stated above, and the legal representatives will need to sign a Certificate of Compliance certifying that the disclosure duties have been explained to the client.

Are there any required processes e.g. eDisclosure/eDiscovery, AI, etc?

The rules are based upon the assumption that disclosure will be electronic – hence the term eDisclosure, and documents will be produced with their meta-data intact. The definition of a “document” in the context of disclosure includes electronic documents. Disclosure extends beyond electronic documents to for example, voice notes, social messaging, and images.

As stated above, as soon as a party becomes aware that it may be subjected to proceedings, it is under an obligation to ensure that it takes various document preservation steps including suspension of document deletion or destruction processes.

During the disclosure process, each party must ensure that they disclose documents in a format which allows the other party to easily access and review them. Documents should also be provided in a searchable ‘OCR’ format.

England has made use of analytics to reduce and interrogate the data with the use technology, by for example the use of Technology Assisted Review (TAR), which was permitted by the courts in the case of Pyrrho v MWB [2016] EWHC 256 (Ch), and its successor, Computer Assisted Learning (CAL). We are now seeing the use of Generative AI in the eDisclosure process, which will further help improve the speed of review and increase accuracy.

What are the sanctions for non-compliance?

Proceedings for contempt of court may be made against a person if they make a false Disclosure Certification or Certificate of Compliance.

Are there any exceptions to these rules (e.g. on the grounds of public interest, privilege or confidentiality etc)?

Documents can be withheld from disclosure and inspection if they are privileged (see section 8 below). In addition, where there are concerns over the confidentiality of a document, the court can order that such documents are disclosed only to a limited number of people, for example by creating a confidentiality ring.

Can non/third parties be compelled to disclose documents?

As part of its document preservation steps, the parties must ensure that they take reasonable steps to ensure that third parties do not delete or destroy any relevant documents, which they may be holding on behalf of that party, and are required to identify and contact any third parties that my hold relevant documents.

What are the rules on privilege in your jurisdiction?

Broadly speaking, there are two categories of privilege in England:

1. legal professional privilege; and
2. without prejudice privilege.

Legal professional privilege:

Under English law, legal professional privilege entitles a party to withhold evidence (electronic, written, or oral) and not disclose it to their counter-party, the court, or regulatory bodies (subject to certain exceptions). English law recognises two main types of legal professional privilege: legal advice privilege and litigation privilege.

1. Legal Advice Privilege (LAP) applies to a document that is a confidential communication between a lawyer and client, prepared for the dominant purpose of giving or receiving legal advice. There is a narrow definition of who the client is in the context of legal advice privilege. It will only extend to a small number of people who are responsible for the giving of instructions to the lawyers, and for the giving of legal advice.
2. Litigation privilege (LP) applies to a document that is a confidential communication between a lawyer and its client (or between either of them and a third party) where the dominant purpose in creating the document is to give or receive legal advice, evidence, or information for use in the conduct of the litigation. The litigation must have been reasonably in prospect at the time the document was created. LP will only apply if the litigation is a real likelihood rather than a mere possibility. Where a document has more than one purpose, litigation must be the dominant purpose, rather than being equal with another purpose.

Without prejudice (WP) privilege:

Without prejudice privilege will protect documents whose purpose is a genuine attempt to settle a dispute, for example in the context of settlement negotiations. Without prejudice communications will not be permitted to be shown to the court or divulged publicly without the parties’ consent, or where it is necessary to show the agreement reached, for example on enforcement. The courts will look at the substance of the documents rather than the form or naming of the documents i.e. simply calling a document “without prejudice” will not make it such.

Confidentiality is an essential element of privilege and so privilege will be lost where the privileged document loses confidentiality, for example by being disclosed, or referred to in submissions or witness statements.

When considering cross-border privilege, what is the test your courts apply to privilege (i.e. will your jurisdiction determine privilege under its own system or that of the country from where the documents originated)?

Under English law, the English courts when considering whether a document is privileged will only consider English law, the lex fori. It will not be relevant that the document is privileged under for example the law of the country in which it was produced².

What are the rules in relation to expert evidence?

The rules relating to the provision of expert evidence are found within CPR Part 35, and the relevant Court Guide.

The court is likely to be amenable to the appointment of an expert where the issue on which expert advice is needed is not legal and is outside of the court’s expertise.

Permission is required to rely on an expert and to introduce their report and evidence before the court. Parties will need to provide an estimate of the associated costs, identify the expert’s field, the issues they will address and, where available at that time, the name of the expert.

The expert evidence will be restricted to that which is reasonably required to resolve the proceedings, and will be in written form, unless the court orders otherwise.

Are experts appointed by your courts or by the parties?

An expert may be a party or court appointed expert. In either case the duty of the expert is to the court and not to be party appointing them, i.e. they must not be partisan.

The court has the power to direct that evidence be given by a single joint expert (rather than each party appointing their own). The parties can agree on such a single joint expert. In the absence of such an agreement, the court may select the expert itself.

What are the rules in relation to the calling of factual witnesses?

The court has the power to manage witness evidence. It can give directions which limit the issues of the witness evidence, determine the nature of the evidence, exclude evidence that would otherwise be admissible, identify the witnesses that can be called, limit the length or format of the witness statements, and limit cross-examination.

Practice Direction 57AC introduced a number of changes to factual trial witness statements in the Business and Property Courts, helping to ensure that witness statements are concise and focused on personal knowledge.

Witness statements must be filed and served within the time specified by the court in its directions, or there is a risk that the witness’ evidence will not be allowed to be relied upon, and they will not be allowed to give oral evidence at trial.

Witness statements must be verified by a statement of truth. Proceedings for contempt of court can be brought against a witness who makes, or causes to be made, a false statement in a witness statement without an honest belief in its truth.

Witness statements must be written in a witness’ own language and in their own words.

If a critical witness cannot be found, a party can apply to court for permission to provide a witness summary of their evidence. If a witness refuses to cooperate, they can be compelled to give evidence.

Factual witnesses are generally only permitted to give evidence as to fact, rather than opinion evidence.

Hearsay evidence is “a statement made, otherwise than by a person giving first-hand oral evidence in proceedings, which is tendered as evidence of the matters stated”, is permitted as provided for by the Civil Evidence Act 1995. However, a party must give notice to their counter-party that it intends to rely on the hearsay evidence, and that counter-party is able to apply to the court for the maker of the hearsay evidence to be called and cross-examined.

Are the courts able to order interim remedies during proceedings, and if so, what remedies are available? (e.g. freezing injunctions, search orders or security for costs etc)

The court has the power to grant a wide range of interim remedies, including interim injunctions, freezing orders, and orders relating to property.

Interim injunctions are either mandatory (requiring a party to do something), or prohibitory (requiring a party to refrain from doing something). In deciding whether to grant an interim injunction, the court will apply the tests set down in the American Cyanamid case. The court will first ask whether there’s a serious issue to be tried, and secondly whether damages will be an adequate remedy, such that the need for an injunction is obsolete. The court will then look to where the balance of convenience lies – an analysis of the inconvenience each party will suffer as a result of the injunction being granted/not being granted. This last test will vary on a case-by-case basis, and require the court to analyse the specific circumstances of each case.

The court also has the power to grant a freezing order (previously known as a Mareva injunction, on which case³ this firm acted), which prevents a party from dissipating its assets. It should be noted that a freezing order does not grant a proprietary right to the property itself. The court will need to be convinced that there is a good arguable case that there is a risk of dissipation and that the order is just and convenient.

In addition, the court also has a relatively wide discretion to order a party to pay amounts as security following a written application to do so. Most commonly, this power is sought where there are concerns about the residency of a party, or its ability to pay costs should it lose the underlying case. These are detailed in CPR Part 25.

Default Judgment

If a defendant fails to file an acknowledgement of service or a defence to the claim within the time limits prescribed under the CPRs, the claimant can obtain a default judgment upon application to the court.

Summary Judgment

The benchmark for a successful strike out application under English law is set high; an applicant will need to satisfy a two-limb test under CPR 24.3 and show that:

1. the claimant’s case/defendant’s defence has no real prospect of succeeding, and;
2. there is no other compelling reason why the case should proceed^.

No real prospect of success

To defeat the first limb under CPR 24.3, a respondent opposing an application for summary judgment will need to show the court that their case is more than merely arguable (International Finance Corp v Utexafrica Sprl [2001] EWHC 508). This does not mean that the respondent needs to show their case is likely to win or has a good chance of succeeding, but rather that their claim has a more than merely fanciful chance of success (Swain v Hillmann [1999] EWCA Civ 3053) and is not entirely without substance (Three Rivers No 3 [2001] UKHL 16).

No other compelling reason

Even where the first limb is satisfied, the court may still refuse to deal with the case summarily if the respondent can show no other compelling reason why the case should proceed to trial. Examples include where full disclosure has not yet taken place (denying the respondent the opportunity to fully understand its case), or if the facts are particularly complex and would therefore need to be dealt with at a full trial.

The court can:

1. grant/dismiss summary judgment on the whole or part of a claim/defence, upon which the case/defence (or part thereof) will not proceed or;
2. where the court does not feel that the claim/defence can be dismissed but recognises there is a small chance of success, make a conditional order allowing the claim/defence to succeed but requiring costs to be paid.

Do the courts have powers to encourage settlement?

The CPRs specifically state that litigation should be seen as a last resort; parties are encouraged to continually seek to settle their cases throughout the litigation lifecycle.

The most common method through which parties can attempt to settle their cases involves making a “Part 36 Offer”. These offers are made pursuant to Part 36 of the CPRs, and are made on a Without Prejudice basis, meaning that they can’t be presented to court as an admission of liability. If a party refuses to accept a Part 36 Offer and then goes on to obtain an award less favourable than what was offered (or loses the case entirely), then there may be serious cost consequences. In such a case, the court may award costs in the 70% range from the time that the Part 36 Offer was rejected, the rationale being that proceeding with the case after the award achieved nothing other than increasing costs for the parties. As such, Part 36 Offers are often made for tactical reasons. Part 36 offers are a strategic tool in legal negotiations, that encourage early settlement by imposing cost penalties on parties

Part 36 offers are a strategic tool for legal negotiation. By encouraging early settlement, the Part 36 offer promotes the efficient resolution of disputes and reduces the time and costs associated with prolonged litigation.

Where parties do agree settlement, this should be contained within a signed settlement agreement specifying the agreed terms.

Conditional Fee Arrangements

Conditional Fee Arrangements (CFAs) are where a party to litigation pays its legal advisor’s fees depending on the outcome and inclusive of a success uplift, and are recognised under English Law. However, as from April 2013, the success uplift is no longer recoverable from the losing party.

Damages Based Agreements

Damages Based Agreements (DBAs) are where a party to litigation pays its legal advisor an agreed percentage of the damages that they receive. Therefore, the payment made to the solicitor also depends on the success of the claim. Under English law, DBAs are heavily regulated by the Damages-Based Agreements Regulations 2013.

Third Party Litigation Funders

England has an active litigation funding and financing market, with a large number of providers. Third party litigation funding is not regulated by statute, but in 2011 the Ministry of Justice produced a voluntary code of conduct for providers. Adherence is voluntary, but necessary if a provider wants to become a part of the Association of Litigation Funders. Litigation funding is non-recourse, that is the funder will not be able to recover the costs it has paid in the lifetime of the case if the claim fails. However, if the claim is successful, the funder will recover a multiple of the investment it has agreed to make in the case, as agreed between it and the claimant. At HFW we have own litigation funding committee consisting of experienced litigators, who negotiate, advise on and arrange funding for litigation, arbitration, and mediation matters.

In what circumstances and on what grounds can an appeal be made?

Appeals are governed by CPR Part 52.

A party wishing to appeal a court judgment in England will first require permission for that judgment to be appealed. This can be sought from the lower court itself or, alternatively (and most commonly where such permission is refused), from the appeal court directly. The lower court may specify a time period within which such permission is to be lodged, or where no such direction is made, within 21 days after the lower court’s decision.

For permission to be granted, the court must be satisfied either that the appeal has a real prospect of success, or that there is some other compelling reason why the appeal should be heard. It is not sufficient that the requesting party simply disagrees with the judgment entered by the lower court.

1. Civil cases typically start in the County Court or the High Court
2. An appeal from a County Court decision usually goes to the High Court
3. Decisions from the High Court are usually appealed to the Court of Appeal (Civil Division)
4. In some cases, further appeals can be made to the UK Supreme Court, which is the final court of appeal

The Judicial Committee of the Privy Council is the highest court of appeal for many commonwealth countries, as well as the UK’s overseas territories, crown dependencies, and military sovereign base areas.

What is the procedure, timescale, and cost for enforcing local judgments?

A successful litigant (known as the judgment creditor) has a number of options for enforcing its judgment. One option is to simply take control of the defeated party’s goods using a writ of control granted by the High Court. Control can then be taken of the goods, which can be sold; the profits then used to satisfy the outstanding debt.

Under CPR 89 it is also possible to apply for an attachment order from the County Court, which will apply in respect of an individual. A proportion of the income of that individual will then be dedicated to paying off the debt owed.

It is also possible to apply for a charging order under CPR 73. A charging order will impose a charge over land which prevents a party from selling that land until it has paid its debt to the successful party. This can be a powerful tool in encouraging faster payment from a debtor and can be applied in conjunction with other forms of enforcement. The court will need to consider the interests of unsecured creditors as part of an application to grant a charging order.

Insolvency and winding-up are options, which will severely impact the financial and trading position of the judgment debtor are remedies available to the judgment creditor.

EU judgments

The Recast Brussels Regulation and 2007 Lugano Convention no longer apply in England following the end of the Brexit transition period on 31 December 2020, except for proceedings commenced before the end of the transition period.

The 2005 Hague Convention⁴ will apply in cases where the incoming judgment is in proceedings in an EU state pursuant to an exclusive jurisdiction clause in a relevant contract entered into on, or after, 15 October 2015.

Commonwealth

The Administration of Justice Act 1920 and the Foreign Judgments (Reciprocal Enforcement) Act 1993 provide a limited mechanism for judgments to be enforced from some current and former members of the Commonwealth. However, this route is limited to judgments for sums of money only.

Hague Convention 2005

The Hague Convention on Choice of Court Agreements 2005 came into effect in England on 1 January 2021 and applies to all EU member states as well as a number of other countries including, Albania, Denmark, Mexico, Montenegro, Singapore, the Republic of Moldova and Ukraine. The Hague Convention applies to agreements that give exclusive jurisdiction to the courts of a signatory state, but do not apply to all categories of claim, and careful consideration is required to identify where it will apply. Under the Convention, judgment will be enforceable in all other participating states. To enforce a judgment under the Hague Convention, various formalities must be adhered to.

English Common Law Rules

If the above or similar regimes do not apply, as is the case for the US and other jurisdictions, it may be possible to enforce a judgment according to the English common law rules. Under this process and where certain conditions are satisfied, the English court will treat a foreign judgment as a debt, and will give a judgment on that debt, which judgment will then be enforceable in the usual way for an English judgment.

Does your jurisdiction recognise ADR (e.g. mediation etc.) and are there exceptions?

Alternative Dispute Resolution (ADR) also known as Neutral Dispute Resolution (NDR), including mediation, early neutral evaluation and conciliation, are explicitly recognised under the CPRs. In fact, the court actively encourages parties to engage in ADR as part of its overriding duty to actively manage the case and the parties are obliged to consider at each stage of the proceedings whether ADR is appropriate. Where the court decides that ADR is appropriate, it has the power to order parties to engage in ADR or stay proceedings to facilitate ADR.⁵

There are a number of recognised leading mediation service provider in England, including the Centre for Effective Dispute Resolution. Alternatively, parties may also choose to appoint their own mediator with experience in the area to which the dispute relates.

What are the key developments in your jurisdiction (reforms, changes in legislation, growth areas, impact of technology etc.)

Generative AI

Generative AI is transforming litigation to improve the quality and efficiency of legal services. AI is already being used in litigation for eDisclosure and for identifying evidentiary details in statements of case and assisting in creating chronologies, and identifying discrepancies in evidence. Examples of its application, include:

1. Legal drafting and document review – AI tools may help to improve efficiency in the drafting and review process by producing draft documents that are tailored to specific contexts/ audiences.
2. Expert evidence – AI tools are likely to have many applications for the preparation of expert evidence e.g., through pattern analysis.
3. Legal research – legal research software can implement AI to scan through and analyse a large number of documents by using specific search criteria.
4. Predictive analysis – AI’s ability to process data and identify patterns could result in software being developed that can predict case outcomes.

Overall, the advancements in AI are likely to lead to significant time and costs savings throughout the litigation process. Key benefits include faster eDisclosure and drafting, enhanced legal research and predictive analysis. The use of AI will also have key implications for client experience – for example, firms can use AI to produce factual summaries for clients or could adopt AI-powered chatbots to assist with simple legal enquiries. The English courts are actively embracing generative AI, and the judiciary has issued guidance on the use of AI to assist judges and ensure that legal professionals can leverage AI’s capabilities effectively. Sir Geoffrey Vos, the Master of the Rolls and Head of Civil Justice in England and Wales, has also outlined a plan for the integration of AI into a new digital justice system, and proposed the establishment of a digital platform offering an AI-driven pre-action portal.

The courts’ encouragement of dispute resolution: Churchill v Merythr Tydfil County Borough Council [2023] EWCA Civ 1416

In this case, the Court of Appeal held that the court has the power to order parties to engage in non-court based dispute resolution processes, or stay the proceedings for this purpose, provided that the order does not impair the claimant’s right to proceed to a judicial hearing and is proportionate to in achieving the overriding objective of the court – to resolve the dispute fairly, quickly, and at proportionate cost.

If parties unreasonably refuse to engage in non-court based dispute resolution, under Churchill, the court is likely to take the view that that party is unreasonable and impose costs sanctions as a result. This further encourages parties to settle, leading to quicker, less expensive resolutions.

How do your courts determine if they have jurisdiction?

The civil and commercial courts determine their jurisdiction with regard to the rules contained in the French Civil Procedure Code (CPC).

For disputes involving parties from different jurisdictions, if the defendant is domiciled in the European Union (EU), jurisdiction is determined by the rules set out in the Brussels 1 Regulation (Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels)).

If the defendant is domiciled outside of the EU, domestic French rules, namely Arts. 42 – 46 of the CPC, determine jurisdiction. French case law has extended the application of these rules beyond purely domestic matters.

As a general rule, the court in the vicinity where the defendant resides has jurisdiction. However, other jurisdictional rules can also apply depending on the nature of the dispute (e.g. contractual, relating to tort, immovable property).

Strictly speaking, there is no doctrine whereby a court has the discretionary power to rule that another forum or court is better suited to hear the dispute before it (forum non conveniens) under French law.

Can a defendant dispute jurisdiction and if so, how?

A defendant can dispute the jurisdiction of the court. However, it must do so before raising any defence regarding the merits of the case (in limine litis).

The procedural objections which may be raised in order to dispute the court’s jurisdiction are determined by Arts. 73 – 91 of the CPC.

Are parties in litigation under any obligation to keep the proceedings confidential?

There is no general principle of confidentiality with respect to civil and commercial litigation. However, some proceedings are confidential by their very nature, for example, certain hearings in insolvency proceedings.

Can hearings be held in private and court documents restricted?

Art. 22 of the CPC provides that, as a general rule, proceedings are public in nature. As for legal documents, they can be confidential if they are part of exchanges between lawyers. Art. 29 of the CPC provides that a third party can be authorised by the judge to consult the case file and have a copy delivered to it, provided it has a legitimate interest.

Arts. 433 to 437 of the CPC provide for hearings held in private chambers, an exception to the rule that proceedings are public. This occurs, for example, with cases involving business or trade secrets and certain cases involving the status, capacity, or privacy of individuals. Art. 435 of the CPC allows the judge to decide to hold proceedings in private if (i) the proceedings being public would result in an invasion of privacy; (ii) all the parties so request; or (iii) there arises unrest likely to disturb the peaceful administration of justice.

Are there any exceptions to confidentiality rules?

See above.

Are there any pre-action considerations or processes that parties should take into account?

The entry into force of Decree No 2019-1333 on 1 January 2020 had reformed pre-action requirements. Art. 750-1 CPC provided that, before a judicial tribunal (tribunal judiciaire), in cases where the claim does not exceed EUR 5,000 (and in a few other specific cases), the parties must, subject to certain exceptions, attempt to reach an amicable solution to their dispute (through conciliation, mediation, or a participatory procedure) before a claim is filed. However, in a decision dated September 22, 2022 (no. 436939), France’s Conseil d’État annulled the provisions of Art. 750-1 CPC, finding that the provisions for exemptions from the conciliation requirement were not sufficiently specified and violated the right of access to a judge. A decree dated May 11, 2023 (no. 2023-307) has rewritten this article, now applicable to all proceedings initiated from October 1, 2023. Moreover, the above provision sets out that the claim form must describe the steps the parties took in attempting to reach an amicable resolution (Art. 54 CPC).

There may be other considerations depending on the nature of the dispute. For example, with respect to employment disputes, by law, there is a compulsory preliminary conciliation phase.

Are there any consequences for non-compliance?

In the cases provided for in the rewritten version of (or new version) Art. Art. 750-1 CPC, absent any attempt by the parties to reach an amicable solution to their dispute, the judge has jurisdiction to rule that the claim is inadmissible. The judge may also declare the claim form null and void if the efforts undertaken to reach an amicable resolution of the dispute are not indicated.

For claims in excess of EUR 5,000, the judge cannot compel the parties to attempt to reach an amicable solution. The judge can nevertheless endeavour to bring the parties closer together, but there is no sanction, strictly speaking, for a party who refuses to attempt preliminary conciliation.

The rules are different if, by way of a contract, the parties are subject to a conciliation or mediation clause. If the parties have agreed to such a procedure as a pre-requisite for filing a claim, failure to comply will result in the claim being inadmissible before the French courts.

How are proceedings commenced in your jurisdiction?

The rules of civil procedure provide that each set of proceedings is commenced by the submission of a claim form (assignation). However, there are exceptions to this rule, a claim can sometimes be filed by a unilateral application as a means of initiating without notice (ex parte) proceedings (sur requête).

The claim form is a document falling within the remit of the court bailiffs, by which the claimant summons its opponent to appear before the judge.

Decree No 2019-1333 and Decree No 2022-245 have extended the scope of the obligation to be represented by a lawyer before the CFI. It is, in principle, mandatory in front of the judicial tribunal, but non-mandatory in front of the Commercial Court where the claim does not exceed EUR 10,000. Additionally, representation in front of the Commercial Court is not mandatory, e.g. for proceedings related to corporate difficulties or to the maintenance of Trade and Company Registers.

Filing a claim before the judicial tribunal (tribunal judiciaire) is free, whereas it costs an average of EUR 60 before the Commercial Court (if there are two parties). In both cases, bailiff fees are also incurred.

For domestic proceedings, how and by whom is service effected?

The document commencing the proceedings must be served on the defendant. Notification by the bailiff constitutes service.

Service must be made personally for it to be valid, i.e. it must be delivered directly to the person concerned or, in the case of a corporation or other legal entity, to its legal representative or any other person with the authority to accept service. There are alternatives, if it is not possible to serve a physical person at their residence (Art. 655 CPC). There are also special rules for French overseas departments and territories (Art. 660 CPC).

For foreign proceedings, what are the permitted methods of service in your jurisdiction?

The CPC sets out rules relating to international service (both service in France of foreign proceedings and service of domestic proceedings outside of France). However, such provisions remain subject to the relevant EU regulations and international treaties (Art. 683 CPC).

When the dispute is within the EU, Recast Brussels provides simplified rules for service of documents via the authority designated by each EU Member State.

France is a party to the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (1965 Hague Convention), which will govern the process for service of documents by or on parties outside of the EU. It provides for a standardised method of service between the 79 states who are party to the Convention. Service is made through the Central Authority of each of the 79 States by using the “Model Forms” annexed to the 1965 Hague Convention.

In addition, bilateral conventions relating to the service of documents are in force between France and other States. These conventions provide for a specific procedure for service between the parties.

For documents intended to be served in a State outside the EU, which is not party to the 1965 Hague Convention, and in the absence of any bilateral convention in force between France and that State, the documents pass through the Attorney General’s office (parquet) and the Ministry of Justice before being served through diplomatic channels. A diplomatic and consular representative of the destination State is then responsible for delivering the documents to the defendant (Arts. 684 to 686 CPC).

For documents coming from a State outside of the EU, which is not a party to the 1965 Hague Convention, and in the absence of a bilateral agreement in force between France and that State, the documents pass through the Ministry of Justice and the office of the Attorney General of the High Court (tribunal judiciaire) before being sent to the national chamber of court bailiffs for service (Arts. 688-1 to 688-8 CPC).

Is there a timetable parties must follow when submitting documents?

The CPC sets out time limits for the delivery of the claim form to the registry and the procedural timings.

Pursuant to Decree No 2020-1452 (which entered into force on 1 January 2021), for standard proceedings before the judicial tribunal (tribunal judiciaire), the claim form must be submitted to the registry within 15 days before the hearing or it will lapse (Art. 754 CPC). With respect to defendants based in other jurisdictions, the deadlines/time limits for appearance before the court, appeal, opposition, third party opposition, are generally extended by 2 months due to the distance from the French court hearing the case (see Art. 643 et seq. of the CPC).

During the proceedings the parties must follow the timetable set by the court.

Can third parties be joined to an action? What are the practical steps needed to achieve this?

There are procedural tools available to join third parties to proceedings. The CPC provides for voluntary or forced interventions, joinder of co-defendants, and claims for third party contribution or indemnity (Arts. 66, 42 and 323 to 338 CPC). Although these tools meet different procedural needs, the rationale behind each remains the same, the aim is to join a party to a set of proceedings for the purposes of the proper conduct of those proceedings.

Applications to join a third party are also made by way of a claim form, whether in respect of joinder of co-defendants, claims for third party contribution or indemnity, or an application for forced intervention. The voluntary intervention of a third party is carried out by means of submissions that must be disclosed to each party. The requirements for each joinder application are the same, namely, the party seeking the joinder must have (i) an interest (either in bringing proceedings against the third party or in intervening in the proceedings); (ii) a claim to bring; and (iii) a sufficient connection with the proceedings.

Art. 333 of the CPC provides that a third party joined by means of one of these procedures cannot challenge the jurisdiction of the court hearing the original claim, even by invoking a jurisdiction clause. However, this applies only to domestic litigation, not EU or international litigation.

In international and EU litigation, the use of these joinder procedures applies only where there is no jurisdiction clause; a valid choice of forum clause prevents joinder.

Are the courts able to hear two or more related/closely connected actions? If so, what are the practical steps needed to achieve this?

The CPC sets out rules on the consolidation or joining of separate proceedings pending before the same court (jonction). The judge, either under their own jurisdiction or at the request of the parties, has the power to order the joinder of several proceedings before the same court if there is a sufficient link between the disputes such that there is an apparent need to have them heard together (Art. 367 CPC). A decision consolidating separate proceedings cannot be challenged by way of an appeal since it is procedural or administrative in nature. The competent judge likely to order consolidation is the pre-trial judge (Juge ou Conseiller de la mise en état), who presides over the case before it is decided on the merits.

There are rules regarding consolidation in cases of both ongoing legal actions (litispendance) and related actions (connexité), which allow two actions brought before different courts to be consolidated and heard before the same court:

1. In the case of ongoing actions, two courts of the same level are seized of the same dispute, and they both have jurisdiction to hear the case (Art. 100 CPC).
2. Where there is an ongoing legal action in the EU Member State courts, and a French court must stay the proceedings before it, pending a decision on jurisdiction by the court first seized (Art. 29 EU Reg. No 1215/2012).
3. In the case of related actions, different courts are seized of claims that are so closely connected that it is in the interest of the proper administration of justice to have them heard before the same court in order to avoid the risk of irreconcilable judgments resulting from separate proceedings (Art. 101 CPC).
4. With respect to related actions in another EU Member State, a French judge seized second has discretion over whether or not to stay the proceedings (Art. 30 EU Reg. No 1215/2012).
5. With respect to international litigation outside of the EU, a French court is not required to order a stay of proceedings. Doing so is discretionary, whether there are ongoing actions or related actions.

What are the rules for disclosure in your jurisdiction? Are there any required processes e.g. eDisclosure /eDiscovery, predictive coding etc?

The administration of evidence in civil and commercial litigation is governed by the rules of civil procedure. Under French law, the disclosure process differs to common law jurisdictions. In France, the parties choose the documents they produce in support of their claims.

It is possible to summon the opposing party to provide documents. Documents which are not voluntarily disclosed can be the subject of an injunction by a judge compelling the relevant party to disclose them, if necessary, by means of a financial penalty. Under French law, these documents must be disclosed “in good time” to be admissible in the proceedings (Art. 135 CPC).

What are the sanctions for non-compliance?

The rules of civil procedure allow a judge to compel a party to produce a document (Art. 133 CPC), if necessary, within a certain time limit subject to a fine in an amount set by the court and in compliance with other terms it sets (Art. 134 CPC). Additionally, a document that is not disclosed in time (too close to the end of the proceedings, for example) may be deemed inadmissible and excluded from the proceedings (Art. 135 CPC).

Are there any exceptions to these rules (e.g. on the grounds of public interest, privilege or confidentiality etc)?

There are a number of restrictions relating to the production of evidence in civil and commercial litigation. For example, correspondence between lawyers is covered by professional confidentiality, unless they expressly agree to it being disclosable. Correspondence between lawyers and their clients is also covered by confidentiality.

In certain circumstances, the right to privacy or trade secrets may also constitute obstacles to a request for the production of evidence. Nevertheless, there is a substantive right to evidence in France. Accordingly, these restrictions can be disregarded if (i) the relevant evidence is essential in demonstrating the facts pleaded; and (ii) the principle of proportionality (with respect to the conflicting interests involved) is respected. Some judgments also reject evidence obtained unfairly.

Can non/third parties be compelled to disclose documents?

Art. 138 of the CPC allows the judge to order the delivery and/or production of a document held by a third party. This application can be made without any particular formality (Art. 139 CPC). The judge cannot make the order under their own jurisdiction, however, a decision ordering the production of the document can be provisionally enforced (Art. 140 CPC).

What are the rules on privilege in your jurisdiction?

Correspondence between lawyers and their clients is confidential. Correspondence between lawyers is confidential unless they expressly agree to it being open (by affixing the word “OFFICIEL” to the correspondence).

When considering cross–border privilege, what is the test your courts apply to privilege? (i.e. will your jurisdiction determine privilege under its own system or that of the country from where the documents originated)?

The rules relating to the production of evidence in court are determined by the law of the forum as a matter of procedural law. The question of the admissibility of correspondence between lawyers registered with foreign legal professional institutions is governed by the ethical rules set out in the relevant foreign law(s), which a French judge will apply.

What are the rules in relation to expert evidence?

French law establishes a procedure for the appointment of a court appointed expert. The appointment of an expert can be requested before any proceedings have begun (Art. 145 CPC) or during ongoing proceedings. The purpose of the expert is to provide clarity to the judge on technical matters.

The court entrusts the expert with a specific mandate, which is then carried out in the presence of all parties. After technical investigations, a report is prepared by the expert and submitted to the court.

Are experts appointed by your courts or by the parties?

An expert can be appointed by the court at the request of a party (expert judiciaire). The appointed expert is taken from a pre-established list. The various courts of appeal manage their own lists of qualified experts within their (geographical) jurisdiction.

The expert investigation procedure involves the appointment of the expert by the court. The expert appointed is therefore neutral and independent of the parties. Their mandate is set by the court. However, the parties retain the right to be assisted by experts they appoint themselves.

The parties may also agree on the appointment of an independent joint expert (expertise amiable contradictoire).

What are the rules in relation to the calling of factual witnesses?

The rules of civil procedure include provisions relating to witness evidence. Art. 160 onwards of the CPC sets out the rules on oral and written testimony. Witnesses can both produce written statements and give oral evidence. However, witness testimony in civil and commercial proceedings is not used as frequently as in common law countries, and generally witness testimony is given less weight than documentary evidence.

The evidential value of witness testimony is a matter for the discretion of the judge. The judge can decide that any competent person be called to testify in court. Witnesses can refuse to give oral evidence, but the judge will review their reason for refusing.

Notwithstanding the above, the recently established International Paris Commercial Court and Paris Court of Appeal are expanding the use of witness testimony in the resolution of international trade disputes, The protocols relating to procedural rules applicable to these courts expressly set out that testimonial evidence can be relied on by parties before the International Chambers.

Is witness evidence submitted in written form or orally, or a combination of the two?

The French rules of civil procedure provide for both the written testimony of a witness and the hearing of witness evidence in court by the judge. The evidential value given to written testimonial evidence is a matter for the discretion of the court. The hearing of witnesses in commercial litigation is unusual, with the exception of the International Courts mentioned above.

Are witnesses subject to cross-examination?

The CPC does not provide for the cross-examination of witnesses or experts. It is the judge’s prerogative to question the factual witnesses or experts at a hearing. The right of the judge to hear witnesses in civil and commercial litigation is rarely used in French proceedings. However, during expert investigations, the expert appointed by the court interviews witnesses frequently.

Again, the practice before the International Courts differs. As mentioned, the protocols provide that the judge, following their own examination, can then invite the parties to question the witnesses.

Are the courts able to order interim remedies during proceedings, and if so, what remedies are available? (e.g. freezing injunctions, search orders or security for costs etc)

French courts can order provisional and conservatory measures in the context of civil and commercial proceedings. The rules of civil procedure provide that such measures can be ordered before proceedings begin, in particular to preserve evidence or establish facts that will have an incidence for the determination of the disputed elements, or in order to preserve documents or a certain state of affairs. These measures include the safeguarding of documents but also the conservatory seizure of assets. The court can be seized by way of summary proceedings, and without notice to the respondent (ex parte), if the circumstances justify it.

After proceedings have begun it is still possible to ask the court, either during proceedings on the merits or summary proceedings, to order provisional or conservatory measures.

Internationally, the granting of provisional or conservatory measures is governed by Recast Brussels, and certain other international conventions to which France is a party (e.g. the Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters of 21 December 2007).

Can cases be dealt with summarily? For example, because there is no case to answer (e.g. summary judgment), or because a party has not taken a required step in the proceedings (e.g. default judgment for failing to file a defence)?

Summary procedures can be utilised when there is no serious dispute in respect of the relevant claim. The decision is provisional (provisoire) (it does not decide the dispute on its merits). The judge in summary proceedings is often presented as the ‘judge of the obvious’ (juge de l’évidence).

There are specific rules for judgments rendered in default and judgments that are, or are deemed to be, adversarial (contradictoire).

If the defendant fails to appear at the hearing without a legitimate reason, or fails to take the required procedural steps, an adversarial or deemed adversarial judgment (i.e. one rendered as if the defendant had appeared) can be rendered against it.

Where a judgment is rendered in default if the defendant has not appeared, but the summons had not reached them, a defendant is likely to make a particular type of appeal called an opposition (opposition) aiming to preserve its rights.

Do the courts have powers to encourage settlement?

In cases where an attempt to reach an amicable solution prior to filing a claim is not mandatory, the judge can nevertheless invite and encourage conciliation (Art. 21 CPC). Moreover, since 1 January 2020, in the cases provided for in Arts. 750-1 CPC (see s.4 pertaining to pre-action processes), attempting to reach an amicable settlement is a prerequisite for filing a claim (Decree No 2022-245).

The judge hearing the dispute may, after obtaining the parties’ consent, appoint a judicial conciliator or order mediation, covering all or part of the dispute (Article 1534 CPC). This rule applies in commercial matters (Article 1529 CPC).

In accordance with Decree No. 2023-686 of 29 July 2023, since 1 November 2023, the judge hearing the dispute or responsible for case management may, either at the request of one of the parties or on their own initiative after seeking the parties’ views, decide that the parties shall be summoned to an Amicable Settlement Hearing conducted by a judge who is not part of the trial formation (Article 1532 CPC).

In addition, Decree no. 2023-686 introduced a new procedure known as the “caesura” (césure du procès). This consists of having the judge rule on the merits of the dispute or part of it and sending the parties back to reach an agreement on the amount of compensation following the court’s ruling on the merits. The request for an adjournment is made by the parties and it is up to the judge to accept it.

Are there any formalities required to effect a settlement?

Any settlement agreement between the parties, whether reached following conciliation or mediation before or during court proceedings, is binding on the parties. The rules of civil procedure provide that a judge can approve the agreement in order to make it enforceable. It then has the same effect as a judgment.

Are the legal costs recoverable from the unsuccessful party?

The successful party is generally entitled to compensation for its legal costs (Art. 700 CPC). However, such compensation is awarded as a lump sum fixed by the judge and not in an amount that covers the costs actually incurred. A party must expressly request these costs to be awarded.

There are also court costs (dépens), which are governed by Art. 695 CPC, and can be recovered entirely by the successful party.

What types of contingency or conditional fee arrangements between lawyers and their clients are available?

Success fees are allowed under French law, where they are combined with e.g. the hourly rate or task, but lawyer’s fees based exclusively on success (‘no win – no fee’) are prohibited.

Success fees supplementing the hourly fee must be agreed in writing.

Can parties use third party funding to finance proceedings? If so, are there any restrictions on this? (e.g. only available for certain types of claims or forum)

Third party funding is not prohibited in France. It is, however, not regulated, and is therefore only subject to guidelines and recommendations (‘soft law’). Although mainly used in arbitration, litigation funding before State courts is possible, provided that the ethical rules of French lawyers are respected. The Council of the Paris Bar Association recently issued guidelines on the use of third party funding, with a view to encouraging the practice, whilst respecting these ethical rules, including those in relation to advertising, professional secrecy, possible conflicts of interest, and difficulties in collecting fees.

In what circumstances and on what grounds can an appeal be made?

An appeal is the ordinary means of overturning the decision of a CFI. It is normally possible to appeal all first instance judgments unless otherwise provided. There are exceptions, in particular for CFI judgments where the amount in dispute does not exceed EUR 5,000 and which are rendered at first instance but are final.

Any judgment which decides a part of a dispute on the merits can be appealed, as well as those ruling on events bringing proceedings to an end, such as procedural objections or inadmissibility.

All or part of a judgment can be appealed. An appeal has a devolutionary effect, i.e. it challenges in fact and in law the decision before the Court of Appeal. Moreover, a party is not authorised to introduce new/additional claims on appeal. However, there are exceptions to this rule, for example where new facts arise that were not apparent at first instance.

What is the procedure, timescale, and cost for appealing?

Any party with a direct interest in appealing may do so, but appeals are admissible only against a party to the first instance proceedings. The time limit for appeals in contentious matters is, in principle, 1 month. The time limit runs from the notification of the judgment, except in special cases where it runs from the day the judgment is delivered. There are a number of special time limits under French law, which can reduce the time limit to 15 days. The rules allowing for an extension of the deadlines where one party is based abroad also apply to appeals.

An appeal is commenced by a declaration of appeal, which must be filed electronically under penalty of inadmissibility, and must include the signature of the appellant’s lawyer and a copy of the decision being appealed. The declaration of appeal must include certain mandatory information. It may also be filed by joint application in certain circumstances. The appeal is subject to payment of a fixed filing fee of EUR 225.

What is the procedure, timescale, and cost for enforcing local judgments?

Pursuant to Decree No 2019-1333, since 1 January 2020, first instance decisions are, as a general rule, provisionally enforceable by law (even if an appeal is filed). Provisional enforceability can only be halted by the Court of Appeal if there is a serious ground to overturn the first instance judgment, and if enforcement is likely to lead to manifestly excessive consequences (Arts. 514 & 514-3 CPC).

The prerequisite for the enforcement of any judgment is service of the judgment on the party against whom it is rendered. Following such service, the judgment becomes enforceable. There are exceptions, certain judgments are enforceable from the date they are given by the court.

Judgments must be served by court bailiffs. The service procedure is fast and inexpensive. Judgments can be enforced by way of attachment of assets belonging to the debtor (e.g. bank accounts, shares, real property, etc.).

Under French law, disputes arising from enforcement measures are heard before a special court (Juge de l’Exécution).

What is the procedure, timescale, and cost for enforcing foreign judgments?

With regard to the recognition of foreign judgments in France, a distinction must be made between judgments of the courts of an EU Member State and those of a non-EU Member State.

Recast Brussels provides for the automatic international movement or circulation of judgments within the EU. Thus, an enforceable decision in one Member State automatically receives recognition and does not require an official recognition by the government of each foreign State authorising them to exercise jurisdiction (exequatur).

In order to enforce a judgment rendered in another Member State in France (or any other Member State), it is only required that a copy of the judgment and a certificate, certifying that the judgment is enforceable (issued by the Registry of the relevant court) in the Member State from which the judgment originated, be provided to the bailiff.

For a judgment rendered in a non-EU jurisdiction, and in the absence of an international convention with that country, the French court applies a three-part test in relation to the recognition and exequatur of that judgment:

1. The indirect jurisdiction of the foreign judge is confirmed, i.e. the State in which the judgment was rendered must have had a sufficient connection with the dispute. A minor connection can suffice;
2. It is confirmed that the judgment complies with (French notions of) international public policy relating to substance and procedure; and
3. It is confirmed that there has been no evasion of the law (i.e. a fraudulent manoeuvre intended to grant jurisdiction to a given court or to be subject to a given law).

Are there any reciprocal conventions that assist?

France is party to several international conventions facilitating the recognition and enforcement of court decisions. The Lugano Convention creates a system similar to that of the Recast Brussels for decisions originating from Switzerland, Norway, Iceland and Liechtenstein.

The EU signed the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments. It entered into force in France and the other EU States on 1 September 2023.

Currently, most of the enforcement and recognition conventions to which France is a party are bilateral. For example, France is a party to many bilateral agreements with countries in North and West Africa.

Does your jurisdiction recognise ADR (e.g. mediation etc.) and are there exceptions?

The rules of civil procedure provide for different ADR regimes. French law encourages the out-of-court resolution of disputes. There are rules concerning conciliation, mediation, settlement participation agreements (les conventions de procédure participative), and arbitration. There are limits to the use of ADR in respect of matters which are not at the disposal of the parties, such as the status or capacity of persons, ADR cannot be used in respect of such matters.

Do the courts have power to encourage ADR?

The judge may encourage the parties to resolve their dispute amicably. To this end, the judge can, at any point during the proceedings, require the parties to attend an information session on mediation and conciliation procedures (Article 1533 CPC). The judge can also, with the parties’ consent, order a conciliation or mediation (see section 12 pertaining to settlement).

The judge may impose the use of an amicable resolution method only in specific cases provided for by law, which do not include employment law disputes. These cases include situations where the parties have entered into an agreement requiring them to attempt amicable resolution before initiating legal proceedings, disputes falling under Article 750-1 CPC (see section 4 on pre-action processes), or instances where the judge summons the parties to attend an Amicable Settlement Hearing (see section 12 on settlement).

Are there sanctions for refusing to engage with ADR?

It depends on how ADR is commenced:

1. If an ADR procedure has been contractually agreed to by way of an ADR clause, and one of the parties tries to proceed to litigation in contravention of this clause, their claim will be inadmissible until the ADR procedure is commenced.
2. Similarly, if an alternative dispute resolution procedure is provided for by law (e.g. Art. 750-1 CPC) his claim will be inadmissible.
3. If the parties decide before a court and by mutual agreement to try to settle their dispute by ADR, either party may terminate.

Furthermore, if a party fails to attend the information meeting provided for in Article 1533 CPC, they may be ordered to pay a civil fine of €10,000 (Art. 1533-3 CPC).

What are the main ADR forums in your jurisdiction?

The International Chamber of Commerce (ICC) is the most renowned arbitration and mediation institution in France, as well as globally. Other notable institutions include the Centre for Mediation and Arbitration of Paris (CMAP) and the Paris International Arbitration Chamber (CAIP), both of which provide comparable dispute resolution services.

What are the key developments in your jurisdiction (reforms, changes in legislation, growth areas, impact of technology etc)?

The law 2019-222 of 23 March 2019 introduced reforms that modified certain rules of French civil procedure. Many of these reforms came into force on the 1 January 2020 (most notably, with the enactment of Decree No 2019-1333).

Among the most important aspects of these reforms are the rules on mandatory representation before civil and commercial courts, and the rule that first instance decisions will automatically be provisionally enforceable. Law 2019-222 also increased the use of ADR in certain fields.

Another important change was the development and growing role of the International Paris Commercial Court and the Paris Court of Appeal. The rules of procedure before these courts reflect international practice and are flexible. The possibility of pleading in English and the greater reliance on witness evidence responds to the needs of international parties for the resolution of their international trade disputes. These chambers are further increasing France’s attractiveness as a forum for the resolution of cross-border business disputes.

Decree No 2023-1391 of 29 December 2023, reforming the appeal procedure, came into effect on 1 September 2024, and is applicable to appeal proceedings and referral proceedings following a Supreme Court judgment (cassation) introduced from that date.

This reform notably provides for:

1. The possibility of adding an annex to the notice of appeal (déclaration d’appel) (Art. 901 CPC);
2. A systematic invitation for the parties to enter into a participatory procedure agreement for the preparation of the appeal (Art. 905 CPC);
3. The extension of the time limit for serving the notice of appeal (Article 906-1 CPC) or for submitting pleadings (Art. 906-2 CPC) in expedited procedures;
4. The possibility for the judge to increase or reduce the time limits for submitting pleadings (Arts. 906-2 and 911 CPC);
5. A more precise definition of the powers of the Chamber President, the designated magistrate, or the pre-trial judge (CME).

Decree No 2024-673 of 2 July 2024, implementing various measures to simplify civil procedure, has been applicable to proceedings from its effective date of 1 September 2024.

It provides for the extension of the Amicable Settlement Hearing (ARA) to disputes under the jurisdiction of the commercial lease judge, the commercial court, and the commercial chamber of the judicial court in the departments of Bas-Rhin, Haut-Rhin, and Moselle.

Finally, Decree No 2024-673 also amended the procedural objections:

With effect from 1 September 2024, the panel of judges (instead of the Juge de la mise en état) are able to rule on motions to dismiss where this is justified by the complexity of the case or the progress of the investigation.

The list of decisions ruling on a dismissal that may be appealed has been reduced to cases where the decision puts an end to the proceedings (e.g., time-barring).

If procedural objections arise or come to light after the close of the pre-trial proceedings, it is still possible to file submissions.

Lastly, the decree makes changes to the CPC to facilitate the handling of procedural objections requiring a substantive issue to be decided first: the panel of judges will now be able to rule directly on the procedural objections, and the Juge de la mise en état will be able to rule on substantive issues when needed as a preliminary step to then rule on a procedural objection. Before, only the Juge de la mise en état could rule on procedural objections and only the panel of judges could rule on substantive issues.

Decree No. 2025-660 of 18 July 2025 reforms conventional case management and re-codifies ADR mechanisms. It has been in force since 1 September 2025 and applies to proceedings already underway on that date, except for measures relating to case preparation where it applies only to new proceedings.

Among the most significant reforms, the decree introduces simplified conventional case management—a procedure allowing the parties to govern the preparation of their case by agreement.

In addition, it extends the judge’s power to require the parties to attend an information session on mediation and conciliation procedures (Article 1533 CPC) and introduces a civil fine for failure to comply with such an order (Article 1533-3 CPC).

The decree also broadens the availability of the Amicable Settlement Hearing (ARA) to all courts, including the Court of Appeal and the Court of Cassation.

Lastly, it affirms the principle of confidentiality for all statements, writings, or actions made during an ARA, a conciliation conducted by a judicial conciliator, or a mediation, with certain prescribed exceptions (Article 1528-3 CPC).

How do your courts determine if they have jurisdiction?

In cases where the defendant is domiciled within the EU, Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast Brussels) the Brussels 1 (44/2001) / Recast Brussels (1215/2012) will determine the issue of jurisdiction.

In cases where Brussels 1/ Recast Brussels do not apply, the Greek courts will apply the provisions of the CCP to determine whether they have jurisdiction over the dispute.

Ordinarily, the issue of jurisdiction is raised, and will be dealt with, by the court in the context of the main proceedings, i.e. a full defence on the merits has to be submitted by the defendant, even if jurisdiction is being disputed.

Can a defendant dispute jurisdiction and if so, how?

Yes, in Greece a defendant can dispute jurisdiction. However, as mentioned above, a dispute as to jurisdiction will have to be raised and determined as part of a main defence, rather than as a preliminary issue.

Are parties in litigation under any obligation to keep the proceedings confidential?

Since 2019, the General Data Protection Regulation (GDPR) has been incorporated into Greek legislation. It imposes certain restrictions on the publication of court proceedings. The judgments of the courts (without reference to the names of the litigant parties) are published in legal journals.

Can hearings be held in private and court documents restricted?

Not ordinarily. Art. 113 of the CCP provides that all court hearings are to take place in public. The Court has the right to order exclude certain people from attending a hearing if their presence might be damaging to the public interest or security, or to order a hearing to be held in whole or in part in private. A decision to hold a hearing in private must itself be published in a public hearing. The prosecutor and parties present have the right to immediately appeal against the decision to hold a private hearing.

Are there any exceptions to confidentiality rules?

See above.

Are there any pre-action considerations or processes that parties should take into account?

In accordance with law 4640/2019 (mediation in civil and commercial disputes), for amounts exceeding EUR 30,000 and which are heard in accordance with the regular procedure (i.e. excluding certain types of claims which are heard in accordance with the special procedure, such as labour, lease contract, car accident claims, etc.), a mediation procedure is mandatory before the claim is litigated. Mediation is also mandatory for certain family disputes, whilst for the remaining disputes it is voluntary/optional. Any proceedings in which the Greek State, Local Authority or Public Law Legal Entity is a party to, are not subject to the provisions of this law.

Are there any consequences for non-compliance?

Where mediation is mandatory, the hearing of the lawsuit is inadmissible if the mediation procedure has not taken place. Moreover, in claims below EUR 30,000, failure of the lawyer to notify a client of the mediation option and to file the relevant form with the court by the time of the hearing of the lawsuit, may result in the claim being dismissed.

How are proceedings commenced in your jurisdiction?

Civil proceedings in Greece are commenced by the filing of a lawsuit (αγωγή), which is filed at the court and served by a court bailiff engaged by the claimant. There is a small filing fee. For claims exceeding EUR 250,000, a court fee, approximately equal to 1.2% of the amount claimed, must be paid by the time of the hearing of the lawsuit.

For domestic proceedings, how and by whom is service effected?

In Greece, proceedings must be served through a court bailiff, at the claimant’s request and expense.

Service on an individual defendant must be personal. Service on a corporation must be to the registered address of the company or to its legal representative.

If the individual cannot be located at their home/registered address, or if the corporation’s offices are closed, documents can be served by attaching them to the door of the relevant property in the presence of a witness. The bailiff will complete a certificate of service.

For foreign proceedings, what are the permitted methods of service in your jurisdiction?

For service of documents issued in a foreign EU Member State, EU Regulation No 1393/2007, applies. This provides for the transmission of documents and any other papers between transmitting agencies and receiving agencies. Service by post or through the judicial officers of the Member State addressed (direct service) is also admissible under the above Regulation.

Greece is also a party to the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters and applies the rules of service via diplomatic channels. With respect to non-EU countries which are not parties to the Hague Convention, the service must be carried out through the Public Prosecutor’s office and the Ministry of Foreign Affairs.

Is there a timetable parties must follow when submitting documents?

Following the commencement of proceedings, all supporting documents on which the claimant intends to rely must be filed with the court, and served on the defendant, within 120 days of proceedings being commenced if the defendant is domiciled/seated in Greece, or within 160 days if the defendant is domiciled abroad. Additional deadlines will follow once the defendant has registered an ‘appearance’ with the court.

With respect to claims heard in accordance with the Special Procedure (see section 4), the court sets a hearing date on issue of proceedings, by which date the parties are required to file and serve pleadings and supporting evidence.

Can third parties be joined to an action? What are the practical steps needed to achieve this?

A third party with a legitimate interest in the dispute may intervene (παρέμβαση) in the proceedings. It must file a claim form and serve it on the parties. The parties may also join others in the proceedings (προσεπίκληση) also using this process.

The court’s permission is not required in order for an intervention to be filed, but it will decide whether the intervention is lawful or not, i.e. whether the party filing it in the first place had a lawful interest to do so.

Are the courts able to hear two or more related/closely connected actions? If so, what are the practical steps needed to achieve this?

Pursuant to Art. 246 of the CCP, the court can decide to join related actions (whether between the same or different parties) if this would speed up the determination of the cases or result in a costs saving. The court can order this with or without the parties’ agreement.

What are the rules for disclosure in your jurisdiction? Are there any required processes e.g. eDisclosure/eDiscovery, predictive coding etc?

All documents to which references are made in the lawsuit, or on which a party seeks to rely, must be disclosed with the pleadings

It is possible to apply to the court for an order that a party discloses specific documents, however, this is a slow process requiring a full description of the required document(s). This application can be made either before the court which hears the main proceedings, or before the hearing of the main proceedings with a separate application if there is an urgency justifying the request.

There is no requirement to use eDisclosure/eDiscovery. All relevant documents must be submitted to the court in hard copy, however, it is anticipated that this will change over the next few years.

What are the sanctions for non-compliance?

Where there is a court order that certain disclosure be provided by a party, there may be some (minor) cost penalties imposed. Usually, adverse inferences are drawn by the fact that a party was unable to produce a specific document. It is not uncommon for documents produced too late, or too close to a hearing, to be deemed inadmissible.

Are there any exceptions to these rules (e.g. on the grounds of public interest, privilege or confidentiality etc)? Can non/third parties be compelled to disclose documents?

Art. 450 of the CCP makes no distinction between a party and a third party when it comes to disclosure of documents that the court orders to be disclosed. Third parties can be ordered to give disclosure, a notable example is the situation of security measures imposed on bank accounts held with a specific bank, in relation to which, the bank has an independent duty to disclose what sums, if any, it holds in the name of the respondent.

Disclosure by a third party can be opposed on the usual grounds of public interest, confidentiality, etc.

What are the rules on privilege in your jurisdiction?

Legal professional privilege (lawyer/client communications) is protected in Greece pursuant to the lawyers’ code and Arts. 400-401 and 450 of the CCP.

Arts. 400-401 identify communications which are regarded as ‘confidential’ in the following categories: clerics, lawyers, notary publics, doctors, chemists, nurses, midwives and their assistants, and general advisors of the parties.

Correspondence which is marked ‘without prejudice’ will be disclosable/unprotected.

When considering cross–border privilege, what is the test your courts apply to privilege? (i.e. will your jurisdiction determine privilege under its own system or that of the country from where the documents originated)?

Greek courts will determine such issues under Greek law, being the law of the country in which the action is brought (lex fori), as this is regarded as a procedural matter.

What are the rules in relation to expert evidence?

There is a process (under Art. 368 of the CCP) for a court-appointed expert, where the case requires it, or on application of one of the parties, where the issues involved require special knowledge of sciences or the arts.

Alternatively, the parties may each adduce their own expert evidence; defined as ‘technical consultants’ (Art. 390-392 of the CCP).

Are experts appointed by your courts or by the parties?

The court is entitled to appoint one or more experts in cases where it finds that a matter requires particular knowledge of sciences or arts to be understood (Art. 368(1) CCP). Appointment of experts under Art. 368(1) CCP is independent of the litigating parties’ requests for appointment of experts. Where a litigating party wishes to appoint experts, a relevant motion is made under Art. 368(2) CCP and the court exercises discretion as to whether such appointment is required prior to granting the motion and appointing an expert.

The expert investigation procedure involves the appointment of the expert by the court. The expert appointed is therefore neutral and independent of the parties. Their mandate is set by the court.

However, the parties retain the right to be assisted by technical consultants they appoint themselves (‘experts privés de partie‘). These consultants are selected by the parties from a group of court-appointed experts (Art. 391 CCP).

The parties may also agree on the appointment of an independent joint expert (‘expertise amiable contradictoire’).

The court evaluates the evidence presented by the judicially appointed experts and the parties’ technical consultants.

What are the rules in relation to the calling of factual witnesses?

Art. 393-411 of the CCP deal with witnesses of fact. Sworn affidavits are admissible in evidence and are generally reviewed by the court in the absence of other witnesses and the parties (Art. 409). At the time of the swearing of the affidavits, the parties are not allowed to ask questions to the witnesses, whilst the witnesses are examined by the judge and examined and cross-examined by the litigant parties only when they testify in person before the court. Hearsay evidence is admissible on the condition that the witness explains from where they gained the information.

In main proceedings (see above) the court is entitled to order the examination of witnesses before it (which is rare). When this is the case, the court and the parties’ lawyers examine and cross-examine the witnesses. Usually, however, in such proceedings the court only relies on the sworn affidavits which are submitted with the parties’ pleadings. In special proceedings (see above), however, the examination and cross-examination of the witnesses take place at the hearing of the lawsuit without the court having to order a hearing allowing the examination.

Is witness evidence submitted in written form or orally, or a combination of the two?

The Greek rules of civil procedure provide for both the written testimony of a witness and the hearing of witnesses in court by the judge. The evidential value given to written testimonial evidence is at the discretion of the court.

Are the courts able to order interim remedies during proceedings, and if so, what remedies are available? (e.g. freezing injunctions, search orders or security for costs etc)

The Greek courts can order provisional and conservatory interim measures in the context of civil and commercial proceedings. The CCP provides that such measures may be ordered before proceedings begin, in particular to preserve evidence, establish disputed facts, or in order to preserve documents. These measures include the safeguarding of documents and the seizure of assets. The court may hear the application by way of summary proceedings, or even without notice to the other party (ex parte), if the circumstances justify it.

After proceedings have begun, it is still possible to ask the court, during either full proceedings on the merits or ancillary proceedings, to order provisional or conservatory interim measures.

Moreover, when a first instance judgment is issued which upholds a claim, such judgment (even if subject to appeal) gives the claimant the right to impose a conservatory attachment over the assets of the defendant and/or to register a mortgage over the defendant’s real estate property.

Can cases be dealt with summarily? For example, because there is no case to answer (e.g. summary judgment), or because a party has not taken a required step in the proceedings (e.g. default judgment for failing to file a defence)?

Summary judgments are not available in civil proceedings in Greece. The right to a trial takes precedence and a final judgment must be issued. If a defendant fails to appear, the case will be considered in its absence and judgment entered.

Do the courts have powers to encourage settlement?

The judge has an obligation to discuss conciliation with the parties. The mediation procedure (see the response to section 4 above) is relatively new and it is usually treated by the parties as a necessary formality.

Are there any formalities required to effect a settlement?

The persons executing a settlement agreement must be duly authorised by the party they represent through a power of attorney. Settlement agreements can also by certified by the court, in which case they become executory titles, i.e. titles which give to a litigant party the right to commence enforcement proceedings (such as the attachment of assets).

Are the legal costs recoverable from the unsuccessful party?

The general rule is that the unsuccessful party pays the costs of the successful party (Art. 176 CCP).

Under Art. 189 CCP, a party may recover only those legal costs which are necessary for the litigants’ participation in the judicial proceedings, such as any paid court fee; lawyers’ fees; witness’ expenses; remuneration of experts; and travel expenses of the parties.

However, Greek courts usually order the unsuccessful party to pay a nominal amount, which is a fraction of the actual costs incurred by the successful party.

The courts may also offset the parties’ costs against each other in certain cases, e.g. in cases where the interpretation of the law applicable to the dispute is exceptionally difficult or questionable. The costs awarded by the court do not represent the actual costs of the successful party but are calculated on a pro rata basis over the monetary value of the dispute’s claim.

What types of contingency or conditional fee arrangements between lawyers and their clients are available?

The Lawyers’ Code provides for the minimum remuneration of a claimant’s lawyer by way of a percentage of any recovery (2% for sums up to EUR 200,000 and on a sliding scale down to 0.05% for sums over EUR 25 million). This is rarely implemented in practice; however, clients should be aware of this and insist on a written agreement as to fees before proceeding to instruct a Greek lawyer. It is expressly forbidden for lawyers to provide their services for free.

Lawyers are also allowed to take cases on a contingency basis, with the maximum allowed fee being 20% of the amount to be recovered by the defendant. In order for such agreements to be valid they must be filed with the Lawyers’ Bar Association.

Can parties use third party funding to finance proceedings? If so, are there any restrictions on this? (e.g. only available for certain types of claims or forum)

Third party financing of trials, or third party funding, is not prohibited in Greece. However, it is not regulated.

In what circumstances and on what grounds can an appeal be made?

All first instance final judgments, with the exception of those involving an amount of EUR 1,500 or less, can be appealed before the Court of Appeal. No leave to appeal is required. Further appeals before the Supreme Court can only be made on points of law.

What is the procedure, timescale, and cost for appealing?

An appeal is filed with the court that issued the final judgment under appeal.

The deadline is 30 days where the appellant is domiciled in Greece, and 60 days where they are domiciled abroad, unless the final judgment has not been served, in which case the right of appeal survives for 2 years after the handing down of the judgment.

There are nominal costs for lodging an appeal.

From the date of the filing of an appeal until the issuance of a judgment by the Court of Appeal, usually 18 months to 3 years will lapse, depending on whether the case will be postponed (one postponement is allowed and is granted at the court’s discretion).

What is the procedure, timescale, and cost for enforcing local judgments?

Unappealable judgments, as well as first instance judgments, which are subject to appeal but, for special reasons, are declared enforceable by the court that issued them, can be enforced. The pre-requisite for the enforcement of any judgment is service of the judgment on the party against whom it is given by a court bailiff. Following service, the defendant is entitled to file an application requesting the stay of the judgment’s enforceability.

What is the procedure, timescale, and cost for enforcing foreign judgments?

With regard to the recognition of foreign judgments in Greece, a distinction must be made between judgments of the courts of an EU Member State and those of a non-EU Member State.

Brussels 1 (44/2001) and Recast Brussels provides for the automatic international recognition of judgments within the EU. Therefore, an enforceable decision in one Member State automatically receives recognition and does not require recognition (exequatur) by the courts of the other Member State.

For a judgment from a country that is a non-EU Member State, Art. 323 of the CCP provides that the judgment of a foreign civil court will be recognised without other requirements, provided that (i) the decision is final and enforceable in its country of issue; (ii) the relevant court is recognised as competent as a matter of Greek law; (iii) the defendant was entitled to defend its position or, if not, it was treated in the same way as the citizens of the relevant jurisdiction; (iv) the decision does not conflict with an existing decision of the Greek court in relation to the same matter; and (v) is not contrary to Greek ethical considerations or the public interest.

Are there any reciprocal conventions that assist?

Greece is party to several international conventions facilitating the recognition and enforcement of court decisions. The Lugano Convention creates a system similar to that of the Brussels 1/Recast Brussels for decisions originating from Switzerland, Norway, Iceland, and Liechtenstein.

The EU has expressed its intent to be a signatory to the new 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, which will bind Greece once the convention enters into force. In particular, the European Commission adopted on 16 July 2021 a proposal for the EU to accede to the 2019 Hague Judgments Convention. In order for the EU to join the Convention, the Commission’s proposal will have to be adopted by the European Council, with the European Parliament’s consent.

Currently, most of the enforcement and recognition conventions to which Greece is a party are bilateral.

Does your jurisdiction recognise ADR (e.g. mediation etc.) and are there exceptions?

With respect to mediation, see section 4 above. The mediation procedure is mandatory in order for certain lawsuits to be admissible for a hearing, whilst the parties can also voluntarily participate in mediation throughout the course of a litigation.

Do the courts have power to encourage ADR?

See the discussion in section 4 above. Law 4640/2019 regulates all issues related to mediation.

Are there sanctions for refusing to engage with ADR?

Law 4640/2019 provides that parties who do not take part in a mediation, which is compulsory by law, are fined by the court. Fines range from EUR 100 to EUR 500. The aforementioned law also provides that the appointed lawyer must inform its client of the possibility of mediation and must submit, along with any claim form, a form indicating the party’s position as regards to mediation and the steps taken. Not to do so may result in the claim being dismissed without hearing.

What are the main ADR forums in your jurisdiction?

Many Greek lawyers are now licensed mediators. According to law 4640/2019, if the litigant parties do not agree on the individual to be mediator, a mediator is appointed by the Central Mediation Committee, which is a public institution that licenses mediators.

What are the key developments in your jurisdiction (reforms, changes in legislation, growth areas, impact of technology etc)?

Recent revisions to the CCP have involved civil/commercial, criminal, and insolvency proceedings.

There is extensive discussion about making civil and commercial disputes quicker with fewer delays, however, detailed reform has yet to be announced.

In this respect, recent amendments of the CCP introduced for the first time the electronic submission of lawsuits, appeals, and pleadings before Greek courts (these are currently not widely used) and set a term of 120 days (or 160 in case of citizens domiciled/seated abroad) for the service of a lawsuit filed with a Greek court and the submission of pleadings and documentary evidence before the same.

Moreover, one of the most recent relevant pieces of legislation involves mediation (as discussed above) and it remains to be seen how the reforms will affect the parties’ willingness to participate.

Currently, the biggest incentive to settlement is not the cost of legal proceedings, but the long and uncertain delays in obtaining a final, unappealable, and enforceable judgment.

How do your courts determine if they have jurisdiction?

The courts will consider the type of claim and its value. The Small Claims Tribunal has jurisdiction to hear a civil action where the amount claimed does not exceed HKD 75,000, and the District Court where it does not exceed HKD 3,000,000. The Court of First Instance has unlimited civil jurisdiction. The Court of Appeal has jurisdiction to hear an appeal from any judgment or order of the District Court and the Court of First Instance in any civil matter, as well as appeals from the Lands Tribunal and the Competition Tribunal. It also makes rulings on questions of law referred to it by the lower courts. The Hong Kong Court of Final Appeal is the ultimate appellate court.

Can a defendant dispute jurisdiction and if so, how?

Where an action commenced in the District Court is outside the court’s jurisdiction but is within the jurisdiction of the Court of First Instance, the District Court can, either of its own motion or on the application of a party, order that an action is transferred to the Court of First Instance. Where the defendant makes a counterclaim, either the whole proceedings will be transferred, or the claim and counterclaim can be heard by different courts (District Court Ordinance (Cap. 336), s.41).

A claim before the Court of First Instance can also be transferred wholly or partly to the District Court by the Court of First Instance or on the application of a party (District Court Ordinance (Cap. 336), s.43).

Parties can also consent to the proceedings being transferred wholly or partly from the Court of First Instance to the District Court which is outside the jurisdiction of the District Court but would have been within its jurisdiction except for the monetary limits (District Court Ordinance (Cap. 336), s.44).

Additionally, where proceedings are deemed to involve important questions of law, the Secretary of Justice can apply to transfer proceedings from the District Court to the Court of First Instance.

Are parties in litigation under any obligation to keep the proceedings confidential?

Hearings in Hong Kong are usually held in open court in accordance with the principle of open justice. Whilst there is no obligation to keep the existence of litigation confidential, not all court filings will be publicly available.

Can hearings be held in private and court documents restricted? Are there any exceptions to confidentiality rules?

Certain hearings are held in private when required by statute or where the presence of the public would render the administration of justice impracticable. This includes arbitration related court proceedings, intellectual property, and obtaining evidence for foreign proceedings. Furthermore, without notice (ex parte) applications for injunctions are held in private.

A party can also apply to the court for a hearing to be closed to the public for the whole or part of the hearing. Where the court determines that one or more of the reasons in Art. 10 of the Hong Kong Bill of Rights Ordinance Cap.383 are satisfied, the court can on its own motion, or on a party’s application, order that a hearing open to the public be closed for the whole or part of the hearing.

Writs of summons or other originating process are public documents and can be obtained from the court registry (O.63, r.4). Otherwise, pleadings and other documents filed in respect of court proceedings are confidential and may not be obtained or inspected without the court’s permission. Such documents cease to be confidential if they are referred to in open court.

Are there any pre-action considerations or processes that parties should take into account?

Outside personal injury actions, there are currently no pre-action requirements imposed on parties. However, pre-action conduct can be considered when assessing costs. A letter before action is generally sent.

Whilst there are limited pre-action rules, the cause of action, identity of parties, limitation periods, alternatives to litigation, and funding should be considered.

How are proceedings commenced in your jurisdiction?

There are four methods of commencing an action in Hong Kong depending on the type of claim. These include: a writ of summons, an originating summons, an origination motion, and an originating petition. A writ of summons is the most common means of commencing an action. The use of an originating motion or petition is reserved to limited situations.

A writ of summons should include a concise endorsement of claim (generally endorsed) or a statement of claim (specially endorsed) and be accompanied by a prescribed form of acknowledgment of service. The writ must be sealed by the court. The cost of issuing a writ in the High Court is currently HKD 1,045, which is paid by the plaintiff (High Court Fee Rules (Cap. 4D), First Schedule).

For domestic proceedings, how and by whom is service effected?

A writ of summons can be served on a defendant in Hong Kong by personal service, registered post, or by inserting the documents into the letter box at the defendant’s usual or last known address (or, in the case of a corporation, at the registered address) (O.10, r.1). Service is usually carried out by the plaintiff’s solicitor.

For foreign proceedings, what are the permitted methods of service in your jurisdiction?

In respect of foreign proceedings, service can be by the same methods as domestic proceedings. Hong Kong is a party to the Convention on the service abroad of judicial and extra-judicial documents in civil or commercial matters signed at The Hague on 15 November 1965 (Hague Service Convention) and so service can be by sending the proceedings to the Chief Secretary of HKSAR along with a written request from the relevant authority in the originating jurisdiction. Similar provisions apply to proceedings in the People’s Republic of China (PRC).

Is there a timetable parties must follow when submitting documents?

A writ of summons is valid for 12 months from the date of issue, but in certain circumstances, this can be extended by the court where the writ has not been served on the defendant.

The defendant should file an acknowledgement of service indicating whether they intend to defend the action within 14 days after service of the writ (including the day of service) (O.12, r.5).

If a statement of claim is not served alongside the writ, it must be served within 14 days after the defendant gives notice of intention to defend (O.18, r.1).

The defendant must file a defence within 28 days after the time prescribed for acknowledging service of a specially endorsed writ, or within 28 days after receipt of the statement of claim if the writ was generally indorsed (O.18, r.2).

The plaintiff can file a reply within 28 days of the defence (O.18, r.3).

Can third parties be joined to an action? What are the practical steps needed to achieve this?

In Hong Kong, joinder of parties is allowed as of right; two or more people may be joined as plaintiffs or defendants (O.15, r.4), subject to two conditions: (i) the right to relief must in each case be in respect of, or arise out of, the same transaction or series of transactions; and (ii) there must be a common question of law or fact. In respect of the second condition, if the factual issues are the same, the legal issues need not be the same (Fortis Bank Asia HK v Sino Global International Ltd [2004] 2 H.K.L.R.D. 1062). Otherwise, joinder of parties is also allowed with the court’s permission in all other cases.

If the court deems that the joinder of parties may embarrass or delay the trial, or is otherwise inconvenient, the court can order separate trials or make such other order as is expedient (O.15, r.5). The court will generally act on the application of a plaintiff.

Generally, co-plaintiffs must use the same solicitors and counsel (Lewis v Daily Telegraph Ltd (No. 2) [1964] 2 Q.B. 601, CA).

Are the courts able to hear two or more related/closely connected actions? If so, what are the practical steps needed to achieve this?

In certain circumstances, the court will order for different actions to either be consolidated or heard together (O.4, r.9). Partial consolidation can also be ordered.

Circumstances in which the court may make such an order in respect of two or more actions are as follows:

1. A common question of law or fact arises in both or all of them; or
2. The rights to relief claimed are in respect of, or arise out of, the same transaction or series of transactions; or
3. Some other reason as to why it is desirable to make an order.

In determining whether to make such an order, the court will consider: the justice of the situation; the underlying objectives of the court rules (O.1A, r.1); and costs and time saving.

Consolidation can occur as soon as the writs are issued and before service. An application for actions to be consolidated or heard together should be made as soon as possible by summons, or if the application has not been made prior, at the hearing of the case management summons.

What are the rules for disclosure in your jurisdiction? Are there any required processes e.g. eDisclosure/eDiscovery, predictive coding etc?

In Hong Kong, parties are required to disclose all documents that are in their possession, custody, or power (O.24, r.1) and on which they seek to rely, and also those documents which are adverse to their case or the other party’s case, or support the other party’s case.

Mutual discovery occurs automatically after the close of pleadings. Parties produce lists of all relevant documents, which must be provided on request or be made available for inspection. Parties are under a continuing obligation to disclose all relevant documents until the conclusion of the proceedings. If a party fails to meet its obligations under automatic disclosure, on the application of a party the court can order discovery (O.24, r.3).

The court can also order the disclosure of specific documents or a specific class of document (O.24, r.7). The application for specific disclosure should be supported by an affidavit. Such an order is narrow in scope.

Are there any required processes e.g. eDisclosure or eDiscovery, predictive coding etc?

Hong Kong has launched a pilot scheme in respect of disclosure and inspection of electronically stored documents for the High Court’s Commercial List by way of a Practice Direction that came into force on 1 September 2014 (PDSL1.2).

Under PDSL1.2, the court can also of its own motion, or on a party’s application, direct that PDSL1.2 apply to a case that is not on the Commercial List. The purpose of PDSL1.2 is to provide a framework for the reasonable, proportionate, and economical discovery and supply of electronic documents. It is also to encourage and assist the parties to reach agreement in relation to the disclosure of such documents in a proportionate and cost-effective manner.

What are the sanctions for non-compliance?

If a party fails to meet the requirements for disclosure, the court can make any order it thinks just (O.24, r.16), which can include dismissing the action, striking out the defence, or giving an order for committal for contempt.

Are there any exceptions to these rules (e.g. on the grounds of public interest, privilege or confidentiality etc)?

There are certain exceptions to the rules on disclosure such as privilege, and on the ground that disclosure would be injurious to the public interest (O.24, r.15). Furthermore, the court has the power to limit disclosure on its own discretion, an order may be made where technical secrets are concerned.

Can non/third parties be compelled to disclose documents?

As a result of the Civil Justice Reform in 2009, the availability of pre-action disclosure against a likely party, and disclosure against a non-party, was extended from personal injury actions only, to include all actions in Hong Kong (High Court Ordinance (Cap. 4), s.42 and O.24 r.7A). The applicant must satisfy the court that the order is necessary either for disposing fairly of the cause or for saving costs (O.24, r.8), that the documents are relevant to the issues in dispute (O.24, r.7A(3)(b)), and that the documents are likely to be in the possession, custody or power of the third party (O.24 r.7A(3)(b)).

Furthermore, the court can make a Norwich Pharmacal Order requiring an innocent third party who has become involved in unlawful conduct to assist the person who suffered damage by giving full information and disclosing the identity of the wrongdoers (so named after the English case, Norwich Pharmacal Co. v Commissioners of Customs and Excise [1974] AC 133). The scope of the Norwich Pharmacal principle has been extended by the court throughout the years including for example, disclosure being granted against a defendant to enable a plaintiff to use the fruits of discovery to bring proceedings against a third party even though it could not be ascertained whether the third party had committed a tort against the plaintiff without the information sought (P v T Ltd [1997] 1 WLR 1309).

What are the rules on privilege in your jurisdiction?

Certain documents are privileged from production and inspection and are not required to be disclosed (O.24, r.5). These documents include those that are protected by legal professional privilege, without prejudice correspondence created for the purpose of settlement, documents protected on the ground of public policy, and documents that would incriminate a party.

Documents protected by legal professional privilege fall within two classes: (i) legal advice privilege, which concerns documents that are privileged whether or not litigation was contemplated at the time they were created and (ii) litigation privilege, which concerns documents that are only privileged if litigation was reasonably contemplated or pending when the documents were created. Legal advice privilege applies only to confidential communications between a client and its legal advisers where the document comes into existence for the dominant purpose of obtaining legal advice. Hong Kong rejected the English court’s narrow ‘Three Rivers‘ definition of client in Citic Pacific Ltd v Secretary for Justice (No.2) [2015] 4 HKLRD 20.

The court also has equitable jurisdiction to limit publication of confidential information.

When considering cross–border privilege, what is the test your courts apply to privilege? (i.e. will your jurisdiction determine privilege under its own system or that of the country from where the documents originated)?

Where there is a conflict of laws, lex fori applies in relation to legal professional privilege; the law of where the proceedings are being heard applies rather than where advice was given or where the document was made (Super Worth International Ltd v Commissioner of the Independent Commission Against Corruption [2016] 1 HKLRD 281).

In respect of original foreign proceedings followed by an action in Hong Kong, a party is entitled to assert privilege in the subsequent action, provided that there is sufficient connection for documents to be relevant. The use of documents in foreign proceedings does not constitute a waiver of the privilege where the documents were brought into existence for the purpose of such litigation (Minnesota Mining & Manufacturing Co. v. Rennicks (U.K.) Ltd [1991] F.S.R. 97).

What are the rules in relation to expert evidence?

Expert evidence can only be adduced with the leave of the court or where all parties agree (O.38, r.36). When applying for leave, the burden is on the party to show that the expert evidence is relevant to the issues in dispute. Expert witnesses have an overriding duty to the court; their report must be verified by a statement of truth and parties must also provide the expert with a copy of the Code of Conduct for Expert Witnesses.

Are experts appointed by your courts or by the parties?

Generally, the parties will seek to appoint their own experts. In order to avoid calling excessive numbers of experts, the court has the power to limit the number of expert witnesses and can make an order for a single joint expert. The parties can also agree to a joint expert. The court can direct the parties to appoint the joint expert with certain specifications, such as the expert’s scope, or the court can assist in selecting the expert where the parties cannot agree. If parties object to a joint expert, then they are given the opportunity to show their reasoning. Consequently, they may be allowed to appoint their own experts.

A court expert can also be appointed to assist the court on the application of a party (O.40).

What are the rules in relation to the calling of factual witnesses?

Parties can choose which witnesses they wish to call and in which order (Briscoe v Briscoe [1968] P. 501). With a view to controlling costs and time, the court can limit the number of witnesses that a party may call on a specific issue (O.35, r.3A).

Is witness evidence submitted in written form or orally, or a combination of the two?

Written witness statements on which parties wish to rely are exchanged prior to trial. Generally, regarding an action begun by writ, facts required to be proved at trial shall be done so by the examination of the witnesses orally and in open court (O.38, r.1).

Without the court’s permission, a witness who has not provided a witness statement will not be able to give oral evidence at trial.

Are witnesses subject to cross-examination?

Typically, the court will direct that witness statements will stand as evidence-in-chief and therefore, the opposing party will be able to cross-examine the witness at trial. Cross-examination is not limited by the scope of examination-in-chief and can refer to any of the issues in dispute. Following cross-examination, the party calling the witness can re-examine the witness. Questions to the witness can be rephrased by the judge where assistance is required.

Are the courts able to order interim remedies during proceedings, and if so, what remedies are available? (e.g. freezing injunctions, search orders or security for costs etc)

The Hong Kong courts, in appropriate circumstances, are able to grant interim relief. The significant forms of interim relief are interlocutory injunctions, preservation of property, and search orders.

Parties are able to apply to the court for an interlocutory injunction (O.29, r.1). Applications should be made after the writ has been issued, however, the court may see fit to grant an injunction prior to the writ’s issue in urgent cases. Furthermore, where the case is one of urgency, an application for an injunction can be made without notice (ex parte) on affidavit.

The court can grant Mareva injunctions to restrain defendants from disposing of, or otherwise dealing with, their assets, thereby preventing them from removing their assets from the jurisdiction to defeat any later judgment.

Anton Piller orders can also be granted for the purpose of preserving documents relating to the action and enabling the plaintiff to seize documents from defendant’s premises. An order can also be made for the inspection of property (High Court Ordinance (Cap. 4), s.44).

Security for costs can be sought in Hong Kong, and in certain circumstances, the court will order the plaintiff to give security for their opponent’s costs (O.23, Companies Ordinance (Cap. 622) s.905). Relevant circumstances include where the plaintiff does not reside in Hong Kong, or when the plaintiff is a limited company or company incorporated outside of Hong Kong, and there is reason to believe that it would be unable to pay the defendant’s costs if ordered to do so. An application for security for costs can be made at any time during the proceedings.

The court is able to order a party to make an interim payment into court on account of any damages, debt, or other sum, which that party may be held liable to pay by final judgment or order (O.29).

A party can apply to the court for further and better particulars where they believe that their opponent’s pleading provides inadequate details (O.12, r.3). The court will only make such an order if it is deemed necessary, either for disposing fairly of the action, or for saving costs.

Furthermore, the courts have the jurisdiction to grant interim relief in aid of an action commenced outside Hong Kong (High Court Ordinance (Cap. 4), s.21M).

Can cases be dealt with summarily? For example, because there is no case to answer (e.g. summary judgment), or because a party has not taken a required step in the proceedings (e.g. default judgment for failing to file a defence)?

A plaintiff (or a defendant making a counterclaim) is able to obtain judgment without proceeding to trial where they believe that their opponent has no defence to the claim (O.14). Summary judgment can be given on one or more claims within a writ, or on part of a claim.

An application for summary judgment can be made once a statement of claim has been served on the defendant and that defendant has given notice of intention to defend the action. The application must be accompanied by an affidavit and the party opposing the application must also file an affidavit in support of its defence. A judgment against a party that does not appear at the hearing for summary judgment may be set aside or varied by the court.

Default judgment is generally available where a defendant fails to give notice of intention to defend (O.13) or fails to file its defence within the prescribed time limit (O.19). Where a plaintiff fails to serve a statement of claim, the defendant may apply for the action to be dismissed (O.19, r.1).

Do the courts have powers to encourage settlement?

The court rules facilitate early settlement of claims by providing simple and flexible provisions for a binding admission to be made by a defendant to all or part of a monetary claim (O.13A).

In order to encourage parties to reach a settlement, the court is able to impose sanctions on a party that fails to obtain a judgment more advantageous than a sanctioned offer made by their opponent (O.22). Furthermore, the court can make an adverse costs order where a party unreasonably refuses to engage in mediation (PD.31).

Are there any formalities required to effect a settlement?

For the purposes of enforcement, a formal settlement agreement is recommended as such a contract is legally binding, but it is not required.

Are the legal costs recoverable from the unsuccessful party?

The court has a discretion to award costs (O.62). The court will generally order ‘costs follow the event’ with the unsuccessful party being ordered to pay a proportion of the winning party’s costs in addition to its own legal costs. Dependent on the basis of assessment of the costs, a successful party is likely to recover up to about 60% of its legal costs.

What types of contingency or conditional fee arrangements between lawyers and their clients are available?

In Hong Kong, maintenance and champerty are criminal offences, torts, and a ground of public policy for invalidating contracts. Consequently, contingency or conditional fee arrangements are generally not permitted and can result in a fine and imprisonment of up to 7 years for the solicitor (Legal Practitioners Ordinance (Cap. 159), s.64 and Criminal Procedures Ordinance (Cap, 221), s. 101I). Amendments to the Arbitration Ordinance Cap.609 have been passed to allow success fee agreements for arbitration in Hong Kong. The amendments and necessary subsidiary legislation are anticipated to come into full effect later in 2022.

Whilst the Criminal Law Act 1967 abolished the offences and torts of maintenance and champerty under English law, these reforms have not been followed in Hong Kong.

Can parties use third party funding to finance proceedings? If so, are there any restrictions on this? (e.g. only available for certain types of claims or forum)

Generally, third party funding is not permitted to finance proceedings, however, there are three exceptions to the doctrines of maintenance and champerty: where the third party has a legitimate common interest in the outcome of the proceedings, where the third party funding enables access to justice, and certain miscellaneous circumstances.

Such circumstances include liquidation proceedings, the sale and assignment by a trustee in bankruptcy of an action commenced in the bankruptcy to a purchaser for value, and the development of the doctrine of subrogation as applied to contracts of insurance as instances.

Third party funding of arbitration and mediation is permitted in Hong Kong (Arbitration and Mediation Legislation (Third Party Funding) (Amendment) Ordinance 2017).

In what circumstances and on what grounds can an appeal be made?

Against most decisions made by masters, there is a right to appeal to a judge in chambers (O.58, r.1). The judge will not be limited by the master’s exercise of discretion. Such an appeal can be made by serving notice within 14 days of the judgment, order, or decision.

In respect of decisions made by judges, a party has the right to appeal final judgments or orders to the Court of Appeal and must do so within 28 days of the decision (High Court Ordinance (Cap. 4), s.14). A notice of appeal should be served specifying the grounds of appeal and the order that is being sought. No leave to appeal is required.

With regards to interlocutory judgments or orders, generally leave to appeal is required. A party can apply to the judge for leave within 14 days from the date of the decision by way of summons, supported by a statement setting out why the party thinks that leave should be granted. If leave is refused, the party can apply for leave to appeal within 14 days from the date of refusal to the Court of Appeal. The Court of Appeal can grant leave on such terms as it sees fit (O.59, r.2A).

The Court of Appeal has the power to consider appeals on questions of law or fact, or against the court’s exercise of its discretion (O.59). A party can appeal an order made by a judge but not the reasons they gave for their decision (Lake v Lake [1955] P.336). The court can make any order that it thinks just.

If a party wishes to appeal a judgment of the Court of Appeal, it should first seek leave to appeal from the Court of Appeal and if refused, from the Court of Final Appeal. The application for leave to appeal should be made by motion and within 28 days of the judgment. Leave can be granted if the question involved in the appeal is one of great general or public importance, or if it otherwise ought to be submitted to the Court of Final of Appeal for decision (Hong Kong Court of Final Appeal Ordinance (Cap.484), s.22-27).

What is the procedure, timescale, and cost for appealing?

In the Court of Appeal, the cost of setting down a civil appeal is HKD 1,045 (High Court Fee Rules (Cap. 4D), First Schedule).

The cost of filing an application for leave to appeal at the Court of Final Appeal is HKD 1,045 and HKD 2,090 for filing a Notice of Appeal (Hong Kong Court of Final Appeal Fees Rules (Cap. 484B), Schedule.

What is the procedure, timescale, and cost for enforcing local judgments?

In order to ascertain the judgment debtor’s assets prior to enforcement, there is the option of oral examination in court where the judgment debtor must answer questions in respect of their assets and means of satisfying the judgment debt.

There are various means of enforcing judgments in Hong Kong (O.45-52), including a writ of fieri facias, charging orders, and garnishee orders.

Enforcement by way of a writ of fieri facias enables a bailiff to seize the goods, chattels, and other property of the judgment debtor to satisfy the judgment debt together with interest and the costs of the execution. Following the seizure, if the debtor fails to make payment, the goods will be sold with the proceeds being given to the creditor (O.47).

Charging orders involve the court imposing a charge on the property of a judgment debtor for the purpose of securing the payment of money due under a judgment (O.50). The registration of a charging order over land lapses after 5 years but it may be re-registered (Land Registration Ordinance (Cap. 128), s.17).

Under garnishee proceedings, the court can order a third party who owes a debt to the judgment creditor (garnishee) to pay sums due directly to the judgment creditor (O.49). The debt must be at least HKD 1,000 and the garnishee must be in Hong Kong. An application for a garnishee order nisi (i.e. taking effect after a specified time or certain conditions are met) is made ex parte by affidavit and draft order. The order nisi must be served on the garnishee at least 15 days before the date fixed for further consideration, and on the debtor at least 7 days after the order has been served on the garnishee and at least 7 days before the date fixed for further consideration (O.49, r.3). An affidavit of service should be filed. At the hearing for further consideration, if the order is not disputed or the garnishee does not attend, the court may make the order absolute and order the garnishee to pay.

What is the procedure, timescale, and cost for enforcing foreign judgments?

In respect of PRC proceedings, under the Mainland Judgments (Reciprocal Enforcement) Ordinance (Cap. 597), the Hong Kong courts will register a PRC final money judgment if the judgment is enforceable in the PRC. and is given from a designated court. The application to register the judgment must be made within 2 years from the date on which the judgment takes effect. This regime has been recently expanded by the Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance (Cap. 645), allowing greater enforcement of PRC judgments handed down on or after 29 January 2024. The judgment debtor may apply to set aside the registration of the PRC judgment, however if it fails to do so, the judgment creditor can apply for enforcement of the judgment. Under the Foreign Judgments (Reciprocal Enforcement) Ordinance (Cap. 319), certain judgments by certain jurisdictions are recognised. The jurisdictions include: Australia, Austria, Belgium, Bermuda, Brunei, France, Germany, India, Israel, Italy, Malaysia, Netherlands, New Zealand, Singapore, and Sri Lanka. The judgment must be a final and enforceable judgment from a ‘superior’ court, being one with unlimited civil and criminal jurisdiction. An application to register the judgment should be made ex parte and be supported by an affidavit and draft order. The application must be made within 6 years from the date on which the judgment takes effect. The judgment debtor can apply to set aside the registration of the judgment, however if it fails to do so, the judgment creditor can apply for enforcement of the judgment.

In addition, Hong Kong common law provides that a foreign judgment can be recognised in certain circumstances. The judgment must be final, for a fixed sum, and be from a superior court. The application to register the judgment must be made within 12 years from the date on which the judgment takes effect. The procedure for registering such an action requires commencing an action by writ, setting out the details of the foreign judgment in the statement of claim. Once notice of intention to defend has been served, an application for summary judgment can be made. Following judgment, the foreign judgment can be enforced locally.

Generally, it can take about 2 – 4 months to register a foreign judgment under one of the reciprocal conventions mentioned above, and about 6 – 12 months under the common law method.

Does your jurisdiction recognise ADR (e.g. mediation etc.) and are there exceptions?

Hong Kong recognises alternative means of dispute resolution including mediation, arbitration, and tribunals (privately constituted, statute-based, or public tribunals.)

Do the courts have power to encourage ADR?

Under the court rules, parties must complete a timetabling questionnaire after the close of pleadings in which parties are obliged to indicate whether they have attempted, or are willing to attempt to settle, the case by ADR procedures (O.25, r.1 and PD5.2). Legally represented parties must also file a mediation certificate alongside the questionnaire indicating whether they are willing to use mediation and requiring solicitors to confirm that their clients have been informed of the availability of mediation (PD.31).

The courts have the power to order a stay of proceedings in favour of mediation and arbitration (PD.31).

Are there sanctions for refusing to engage with ADR?

The court can make an adverse costs order where a party unreasonably refuses to engage in mediation (PD.31).

What are the main ADR forums in your jurisdiction?

Hong Kong has an established legal framework for the use of mediation as a form of dispute resolution. The Hong Kong Mediation Accreditation Association Limited (HKMAAL) has been working since 2012 to set standards and encourage the development of professional mediation services. Within the Hong Kong International Arbitration Centre (HKIAC), the Hong Kong Mediation Council (HKMC) also operates to promote development of and use of mediation. There is also focus to develop a Greater Bay Area Mediation Platform to promote cross-border mediation as a form of alternative dispute resolution in the Greater Bay Area. Although Hong Kong does not have a statutory adjudication scheme this form of ADR is seen in a construction context. The HKIAC, published the HKIAC Adjudication Rules 2009 and maintains a panel of adjudicators.

What are the key developments in your jurisdiction (reforms, changes in legislation, growth areas, impact of technology etc)?

In January 2019, the Hong Kong Government and the Supreme People’s Court of the PRC entered into the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the Hong Kong Special Administrative Region (Arrangement). As outlined above, the Arrangement now applies in Hong Kong under the Mainland Judgments in Civil and Commercial Matters (Reciprocal Enforcement) Ordinance (Cap. 645) and builds upon the existing reciprocal enforcement regime with the PRC. It covers civil judgments and both monetary and non-monetary relief and will apply to judgments made on or after 29 January 2024.

Currently there is no statutory corporate rescue regime in place in Hong Kong. If a company and all of its creditors do not come to a voluntary agreement, the only options available to the company are a scheme of arrangement or provisional liquidation. A draft bill was prepared in 2003 but was never enacted and lapsed. After delays, on instructions from the Official Receiver, the Financial Services and Treasury Bureau has prepared new legislation to introduce corporate rescue procedures. The draft Companies (Corporate Rescue) Bill and subsidiary legislation was intended to be introduced to the Legislative Council for approval in early 2021. At the time of writing, there have been no further updates regarding a legislative timetable.

The Supreme People’s Court and Hong Kong SAR Government agreed on 14 May 2021 to establish a framework for mutual recognition and assistance to insolvency proceedings between the Hong Kong High Court and the PRC People’s Courts. Applications under this scheme have already been granted.

The Department of Justice (DoJ) is actively promoting and facilitating the wider use of LawTech in Hong Kong. As one of a number of initiatives, the eBRAM (Electronic Business elated Arbitration and Mediation) Centre working with the DoJ launched the Hong Kong Legal Cloud on 1 March 2022.

The Court Proceedings (Electronic Technology) Bill was passed on 17 July 2020, further to which the Judiciary has introduced an Integrated Court Case Management System (iCMS) to facilitate the handling of court related documents and payments through electronic mode. The iCMS system will be rolled out in stages and is currently available on a voluntary basis to personal injuries and tax claims in the District Court. PDSL1.3 which came into effect on 11 May 2022 sets out the requirements for the use of eBundles in the Commercial Court.

The Hong Kong Judiciary is committed to making continual efforts in harnessing technology to enhance the efficiency of court businesses and policymakers and regulators have also been promoting the modernisation of proceedings in Hong Kong using technology.

Promoting Hong Kong as a venue for international dispute resolution remains a development focus in the Outline Development Plan for the Guangdong-Hong Kong-Macao Greater Bay Area.

How do your courts determine if they have jurisdiction?

Generally, the court has jurisdiction if one of the defendants is resident in Kuwait, or if the whole or part of the contract was performed in Kuwait.

Can a defendant dispute jurisdiction and if so, how?

The court is able to determine its own capacity to rule over the matter whether on its own volition, or if challenged by the defendant. Arguments related to jurisdiction should be raised before discussing the merits. The court usually rules on jurisdictional issues while rendering its final judgment rather than in the form of interim judgments.

Are parties in litigation under any obligation to keep the proceedings confidential?

Generally, in civil and commercial matters, court hearings are open to the public unless the parties have requested their case be heard privately; however, this is subject to the court’s approval.

The Supreme Court publishes its key judgments which are made available to the public, as well as lawyers.

Can hearings be held in private and court documents restricted?

In certain circumstances, depending on the court’s discretion upon a litigant’s request, court hearings can be held in private. Hearings of criminal proceedings against minors are usually held in private. In all cases, courts are required to mention in their judgments if hearings were held in public or in private.

Subject to the court’s approval, documents can be photocopied in civil matters by the parties to the proceedings.

Are there any exceptions to confidentiality rules?

No documents can be made available, even to the litigation parties, without a court order.

Are there any pre-action considerations or processes that Parties should take into account?

In some cases, the claimant cannot commence proceedings before serving legal notice to the defendant (e.g. prior to termination of bilateral agreements Art. 209 of the 1980 Civil Code, and in claiming compensations in certain circumstances Art. 297 of the 1980 Civil Code). It is now common practice for the claimant to notify the defendant before filing any case unless in without notice (ex parte) proceedings.

In limited cases, the claimant will be required to file a complaint before a dispute resolution committee or a certain governmental body to have it settled amicably or receive a no-objection certificate (NOC) before filing a case before the Kuwaiti courts.

Are there any consequences for non-compliance?

The proceedings might be dismissed for being premature or not following the prescribed procedures.

How are proceedings commenced in your jurisdiction?

Proceedings are commenced by filing a statement of claim before the competent court. The supporting documentation should be submitted in the first hearing. Case registration will not be accepted unless the related fees are paid. Court fees are usually around 1% of the claim amount with no cap.

For domestic proceedings, how and by whom is service effected?

The service is made through a court bailiff. If the court bailiff cannot effect the service there are alternative ways to do so, such as via newspaper, post, or email. These alternative means of service are very limited and not recommended as they might jeopardise the case procedurally.

Is there a timetable parties must follow when submitting documents?

Foreign proceedings are served through diplomatic channels, as Kuwait is a signatory to the Hague Service Convention of 1965 since 2002.

For foreign proceedings, what are the permitted methods of service in your jurisdiction?

There is no strict timetable when submitting documents except for when the court adjourns the hearing specifically for the parties to submit documents, in which case the parties should comply to the court order by submitting their documents on the given date.

Can third parties be joined to an action? What are the practical steps needed to achieve this?

Third parties can join proceedings before the Court of First Instance only. This is achieved through an application to that court. A party can be adjoined to a case as a defendant before the Court of First Instance only; however, the same can be done before the appeal court as well if such party is requested to provide evidence or be informed of the judgment.

Are the courts able to hear two or more related/closely connected actions? If so, what are the practical steps needed to achieve this?

The court can hear counterclaims related to the connected actions. Similarly, connected cases and appeals can be adjoined in order to be heard by the same panel.

What are the rules for disclosure in your jurisdiction?

Unlike the common law, there are no strict rules for disclosure in Kuwait. However, litigants can file an application to the court requesting to order the other party to disclose documents under their possession.

Are there any requires processes e.g., eDisclosure/eDiscovery, predictive coding, etc?

Filing an application before the court and obtaining a court order in this regard.

What are the sanctions for non-compliance?

If the court issued an order and the documents are then not disclosed, the court may find that the party who failed to disclose the documents is not complying with the court order. It will then impose fines on the non-compliant party which may affect the prospects of success in the case.

Can non/third parties be compelled to disclose documents?

Yes, if there is a court order.

What are the rules on privilege in your jurisdiction?

N/A

What are the rules in relation to expert evidence?

The findings of a court appointed expert are key. The Kuwaiti courts often heavily rely on expert evidence.

Are experts appointed by your courts or by the parties?

When appointing an expert, the court refers to the Experts Department which falls under the Ministry of Justice. The Experts Department then appoints an expert as per their internal lists.

What are the rules in relation to the calling of factual witnesses?

It is possible for the court to call a factual witness. The court usually calls experts to give factual witness or allows experts to hear witnesses and report to the court.

Is witness evidence submitted in written form or orally, or a combination of the two?

A combination of the two. However, written witness statements, like affidavits, are usually not heavily relied upon.

Are witnesses subject to cross-examination?

Yes.

Are the courts able to order interim remedies during proceedings, and if so, what remedies are available? (e.g. freezing injunctions, search orders or security for costs etc)

The court can issue attachment orders, travel bans, or search orders etc. during or prior to the proceedings.

Can cases be dealt with summarily? For example, because there is no case to answer (e.g. summary judgment), or because a party has not taken a required step in the proceedings (e.g. default judgment for failing to file a defence)?

The court can issue a default judgment upon request. However, the concept of summarily deciding a case does not formally exist.

Do the courts have powers to encourage settlement?

The court can encourage the parties to settle the dispute. Experts also tend to do the same.

Are there any formalities required to effect a settlement?

Only the parties who have the authority can negotiate and sign a settlement agreement. It is preferable/advisable to notarise any out of court settlement; if the case is active, such agreement should be submitted to the court to terminate the litigation accordingly.

Are the legal costs recoverable from the unsuccessful party?

The legal costs are not recoverable in Kuwait. The court fees are recoverable for the successful party.

What types of contingency or conditional fee arrangements between lawyers and their clients are available?

The Kuwaiti market accommodates different types of fee arrangements including time spend basis, fixed fees, fee cap etc.

Can parties use third party funding to finance proceedings? If so, are there any restrictions on this? (e.g. only available for certain types of claims or forum)

It is not a common practice and is not a regulated area. However, there is no regulation banning parties from engaging litigation funding. It is being marketed currently on a limited level.

In what circumstances and on what grounds can an appeal be made?

If the claim amount exceeds KD 5,000, the parties will have an automatic right to appeal before the appellate court. Further, appeal court judgments can be challenged before the Court of Cassation.

The grounds of an appeal can vary (e.g. if the court ignored evidence or overlooked an argument raised by the parties).

What is the procedure, timescale, and cost for appealing?

In civil and commercial cases, the Court of First Instance judgment is subject to appeal within 30 days from the next day of the judgment date. The required court fee is approximately KD 50.

The appellate court judgment can be challenged within 60 days from the next day of the judgment date. The required court fee is approximately KD 100.

What is the procedure, timescale, and cost for enforcing local judgments?

It depends on the process of locating/identifying the debtors’ financials and the ability to notify them. However, the Enforcement Court usually takes around 4 months.

Upon the request of the creditor, the Enforcement Court can freeze the assets of the debtor and, in some cases, issue a local arrest warrant against the debtor (the manager in the case of a limited liability company). The required court fee for the enforcement procedures is approximately KD 5 per application.

What is the procedure, timescale, and cost for enforcing foreign judgments?

In practice, an application for enforcement must be made to the Kuwait Court of First Instance. The following requirements are to be met in order for a foreign judgment to be enforceable:

1. that the judgment/award is rendered by a competent court in compliance with the law of the country in which it was issued;
2. that the parties to the litigation were properly served and properly appeared;
3. that the judgment/award is final; and
4. that it does not contradict a judgment issued by a Kuwaiti court and does not breach public policy.

In theory, the Court of First Instance will review the award and decide whether it may be enforced procedurally; the court should not review the merits of the underlying claim.

The court order may be appealed in accordance with the rules and procedures prescribed for filing an appeal.

The court fees for filing recognition application are around KD 5.

Are there any reciprocal conventions that assist?

Yes, the Riyadh Agreement for Judicial Cooperation, which includes 16 Arab countries, allows for full recognition of the judgments issued by the courts of the Member States.

Does your jurisdiction recognise ADR or NDR (e.g. mediation etc.) and are there exceptions? Do the courts have power to encourage ADR or NDR?

Officially, Kuwait recognises arbitration only. Although parties are free to agree to ADR if they so wish, the Kuwaiti legal system does not recognise mediation or any other form of ADR. The way around this is having an informal mediation before translating the outcome into a settlement agreement. The courts do not have power to encourage ADR.

Are there sanctions for refusing to engage with ADR?

Unless there is a contractual obligation to settle disputes via ADR, there are no sanctions for refusing to engage with it.

What are the main ADR forums in your jurisdiction?

The most popular forum is the Kuwait Commercial Arbitration Centre (supervised by the Kuwaiti Chamber of Commerce).

What are the key developments in your jurisdiction (reforms, changes in legislation, growth areas, impact of technology etc.)

Although not directly linked to litigation, in January 2024, the Law No. 1/2024 amending the Law No. 68/1980 on the Commercial Transactions Law and the Law No. 49/2016 on Public Tenders is considered a great leap toward liberating in the Kuwaiti market. The Commercial Transactions Law as amended is now allowing foreign companies to establish branches without having to be represented by a local agent. Further, the same amendment allows the foreign companies to bid directly for projects from the Kuwaiti Government without having to be joined by a local agent.

How do your courts determine if they have jurisdiction?

Subject matter jurisdiction and personal jurisdiction are, of course, determined by law. Most of the rules are present in the Code of Civil Procedure. The Justice of the Peace and the First Instance Court have general subject matter jurisdiction, although their respective jurisdiction depends on the amount at stake (i.e. for the Justice of the Peace it is EUR 10,000). The Justice of the Peace also has specific jurisdiction over certain matters.

The specialised courts have a very limited jurisdiction, which is defined in the laws which created them.

Regarding personal jurisdiction, the domicile of the defendant (or of one of the defendants) in Monaco is the main criteria determining the courts’ jurisdiction.

The new International Private Law Code (Law n°1448 of June 28, 2017) also provides that Monegasque courts have jurisdiction:

1. regarding real property rights, tenancies of immovable property, and rights in companies holding immovable property, when the immovable property is located in the Principality of Monaco;
2. regarding contracts, when the goods have been or are to be delivered, or if the services were provided in the Principality;
3. regarding consumer contracts referred to in Art. 70 of this Law, when the claimant is the consumer and is domiciled in the Principality;
4. regarding individual employment contracts, when the claimant is the employee and is domiciled in the Principality, or when the employee habitually performs his work there, or when he is a teleworker as per the conditions set out by the legislative provisions regarding teleworking, or when the employment contract was executed in the Principality;
5. regarding torts, when the tortious act occurred in the Principality or if the damage was suffered there;
6. regarding successions, when the succession opened in the Principality, or when an immovable asset belonging to the estate is located in the Principality, as well as third party claims against an heir or executor, and claims between heirs until the final division of the assets;
7. regarding corporate matters, until the final liquidation of the company if it still has its registered office in the Principality;
8. regarding insolvency proceedings for settlement of assets and liabilities arising from the application of Arts. 408 – 609 of the Code of Commerce when the commercial activity is carried out in the Principality;
9. regarding the enforcement, validity, or release of attachments granted in the Principality and generally, regarding all claims for interim or provisional relief, even when the Monegasque courts lack jurisdiction to rule on the merits; and
10. regarding the enforcement of foreign judgments and deeds.

Can a defendant dispute jurisdiction and if so, how?

Yes, a defendant can dispute jurisdiction before the court. In order to do so, the defendant must raise a motion for lack of jurisdiction before any defense on the merits (in limine litis). However, in cases where the court lacks subject matter jurisdiction, such lack of jurisdiction may be raised at any time and the court will make its own determination.

Are parties in litigation under any obligation to keep the proceedings confidential?

No, although invasion of privacy could be subsequently punished.

Can hearings be held in private and court documents restricted?

Hearings can be held in private depending on the subject matter (e.g. civil and marital status, family matters, etc.) and on the type of proceedings.

Court documents should not be disclosed outside of the current proceedings, or to any person not involved in the proceedings. Moreover, many court decisions are not published and, therefore, confidential to the public.

However, it is possible to submit a duly substantiated request for a copy of a court decision to the public prosecutor.

Are there any exceptions to confidentiality rules?

No, confidentiality is the exception rather than the default position.

Are there any pre-action considerations or processes that parties should take into account?

It is possible for the parties to gather evidence with the support of the court, apart from for trial, by filing an application with the President of the First Instance Court, this is done without notice (ex parte) to the opponent.

On this basis, the President of the First Instance Court could render several orders:

1. obtaining disclosure order (ordonnance de compulsoire) allowing a bailiff to gather evidence by records or documents;
2. report order (ordonnance aux fins de constat) allowing a bailiff to prepare a report regarding certain facts to be noticed in the opponent’s or a third party’s premises.

Additionally, one could apply for a security without notice to the other party, and before initiating proceedings on the merits. Such security includes, but is not limited to:

1. attachment (saisie-arrêt) on bank accounts or other movable assets held by third parties for the debtor;
2. attachment of shares (saisie-arrêt des titres nominatifs);
3. precautionary seizure (saisie conservatoire) of movable assets; and
4. interim mortgage on real property.

Are there any consequences for non-compliance?

Regarding security, non-compliance would lead the third party to be liable for the security sought. Criminal sanctions could also be made against the debtor/third party. Resisting evidence gathering orders could also lead to criminal sanctions. Furthermore, the judge could draw adverse inferences.

How are proceedings commenced in your jurisdiction?

The commencement of proceedings is effected by way of summons served on the opposite party by a bailiff.

For domestic proceedings, how and by whom is service effected?

The summons are drafted by the claimant’s lawyer and served on the defendant by a bailiff. The bailiff will try to serve the defendant in person, however, in the event that it is not possible to do so, the bailiff will leave the summons at the Monaco City Hall.

For foreign proceedings, what are the permitted methods of service in your jurisdiction?

Three methods of service are possible:

1. Service through diplomatic channels (service of judicial documents upon persons abroad, without application of any compulsion, directly through its diplomatic or consular agents).
2. Monaco is party to The Hague Convention of November 15, 1965, on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, therefore, service of documents originating from states that are parties to this convention can be made by contacting the Monegasque Central Authority (Direction des Services Judiciaires, Palais de Justice, 5 rue Colonel Bellando de Castro, MC – 98000 MONACO). The transmission must be made according to the form set out by the Hague Convention, in accordance with Art. 3 (a specific form attached to the Convention along with the document(s) to be served).

   Although the Monegasque authorities have not declared any specific requirement regarding the translation of the documentation, in practice, they require that the request be translated into French.

   As soon as the formal request has been taken into account, the Direction des Services Judiciaires may proceed by two means of notification, which are either the formal notification (i.e. service by a bailiff), or the simple notification (i.e. notification by the Prosecutor’s general services), in accordance with the request of the notifying party. These two kinds of notification are the only ones accepted by the Monegasque authorities in accordance with the declaration made to the Permanent Office of the Hague Convention.

   Also note that, in accordance with Art. 10 of the Convention, the request made to the Monegasque authorities can be initiated by any interested person or authorised public officer (such as a foreign bailiff).

3. Service directly made by a bailiff with the assistance of a Monegasque lawyer.

Is there a timetable parties must follow when submitting documents?

Yes, the court fixes a timetable that parties must follow to submit their pleadings and supporting evidence. It is nevertheless possible to obtain additional time in certain circumstances.

Can third parties be joined to an action? What are the practical steps needed to achieve this?

Third parties can voluntarily join and can forcibly be joined to an action.

Voluntary joinder of action is simply made by pleadings deposited at the hearing, whereas forced joinder is made by summons served upon the third party after being authorised by the court, and consolidation of the actions is requested to the court.

Are the courts able to hear two or more related/closely connected actions? If so, what are the practical steps needed to achieve this?

Yes, the courts are able to hear two or more related, or closely connected, actions.

It is possible to claim the consolidation of two or more pending actions in the pleadings filed for each of those actions.

Parties to the same action can present incidental claims, such as additional claims or counterclaims, provided that they arise out of the same cause of action as the initial claim, form a defense to that claim, or seek a set-off benefit. Incidental claims are introduced in the pleadings (whether in the answer or the counter response).

What are the rules for disclosure in your jurisdiction?

There is no obligation of disclosure. Each party may only disclose the documents necessary to prove its arguments.

Before the proceedings, the party who wants to obtain certain documents can use a disclosure order (ordonnance de compulsoire) where the President of the First Instance Court authorises a bailiff to obtain certain documents.

When the proceedings have begun, it is possible to ask the court to order the opposite party to produce evidence referred to in the pleadings and, theoretically, to produce evidence that is not even referred to in the said pleadings (although it is unusual and there is no published case law on the issue).

What are the sanctions for non-compliance?

Non-compliance could lead to criminal sanctions and adverse inferences.

Are there any exceptions to these rules (e.g. on the grounds of public interest, privilege or confidentiality etc)?

Some professionals (e.g. lawyers, notaries, accountants, doctors, bankers, etc.) are subject to an obligation of confidentiality, or secrecy, or the equivalent thereof. Hence, documents from these professionals could only be produced under very limited conditions, such as when defending themselves against their clients.

Can non/third parties be compelled to disclose documents?

Yes, through the aforementioned disclosure order (ordonnance de compulsoire).

What are the rules on privilege in your jurisdiction?

Parents, in-laws in direct line, as well as the former spouse of one of the parties, can refuse to testify before courts. There are also confidentiality obligations for some professions (see above).

When considering cross-border privilege, what is the test your courts apply to privilege (i.e. will your jurisdiction determine privilege under its own system or that of the country from where the documents originated)?

The law on this point is not clear. We believe that Monegasque courts would apply Monegasque law to the question of whether privilege applies.

What are the rules in relation to expert evidence?

Experts are appointed from a list of individuals authorised to act as experts before the courts. They are only competent to report on issues of fact and cannot give legal opinions. A judge is designated to control the execution of the expert’s evidence. The expert can be challenged. In the event that several experts are appointed, a single report will be drafted, but each expert can insert a dissenting opinion. Also, the expert can obtain the opinion of another qualified third party, provided that this opinion is included in the expert report. The court is not bound by the determinations, opinions, or conclusions of the expert.

Are experts appointed by your courts or by the parties?

Experts can be appointed by the courts or by each party who may present its own ‘expert evidence’ which will not be subject to the aforementioned rules (e.g. foreign legal opinion). The court’s decision appointing an expert can be directly appealed, and even when experts are appointed by the courts, the costs are borne by the parties.

What are the rules in relation to the calling of factual witnesses?

The court can admit as evidence statements of witnesses who have personally observed the facts of the case. They can be written statements made by the witnesses, or after an enquiry conducted by the judge. Exceptionally, the judge can make a written decision to hear the witnesses without the direct intervention of the parties, the parties then submit their lists of questions for the witnesses to the judge.

Is witness evidence submitted in written form or orally, or a combination of the two?

Witness evidence is usually submitted in written form, but witnesses can exceptionally be called at a hearing for oral questioning.

Are witnesses subject to cross-examination?

Cross-examination is not strictly speaking allowed, but the court can question the witnesses on behalf of each party.

Are the courts able to order interim remedies during proceedings, and if so, what remedies are available? (e.g. freezing injunctions, search orders or security for costs etc).

The courts are able to order pre-action measures (see Question 4) and interim remedies during proceedings.

It is possible to start expedited proceedings before the President of the First Instance Court, who will be able to order any interim remedy before the action on the merits starts or proceeds any further.

Can cases be dealt with summarily? For example, because there is no case to answer (e.g. summary judgment), or because a party has not taken a required step in the proceedings (e.g. default judgment for failing to file a defence)?

It is possible to deal summarily with a case by way of expedited proceedings which are not however, proceedings on the merits, and are not a re-hearing of the case (res judicata). Cases can be dismissed early for several reasons, including: on the basis of lack of jurisdiction, lack of interest, lack of status to act, procedural defect, material legal defect, res judicata, statute of limitations, or time limit to accomplish a certain act (e.g. file an appeal). This list is not exhaustive.

If a party does not take a required step in the proceedings, several sanctions are possible depending on the stage of the proceedings, and the breach in question. For instance, it is possible to suspend or terminate the proceedings for such failure and a default judgment could be pronounced when the defendant does not appear in court.

Do the courts have powers to encourage settlement?

Settlements are conducted out of court, in writing or orally, between lawyers for confidentiality purposes, and cannot be disclosed to the court except when explicitly authorised by the parties in writing.

If the settlement is conducted between the parties directly, it is not privileged.

Are there any formalities required to effect a settlement?

A settlement should be finalised in writing and the court will endorse it at the parties’ request.

Are the legal costs recoverable from the unsuccessful party?

Until recently, only two types of legal costs needed to be distinguished in Monaco: specific judicial costs called ‘dépens’ on the one hand, and regular lawyer’s fees on the other hand (as opposed to regulated lawyer’s fees, see below).

The losing party usually bears the ‘dépens’. Such ‘dépens’ encompass service, translation, judicial expertise, court costs and, more generally, all legal costs outside of lawyer’s fees. They are collected by the lawyer of the successful party and are used to reimburse the costs of the relevant third parties (bailiffs, translators, judicial experts, etc.) and the court expenses. Such costs are usually limited (a few thousand euros).

Another part of the ‘dépens’ encompasses regulated lawyer’s fees (called ‘émoluments’) under Ordinance n°15.173 of 8 January 2002. The latter are two-fold (a flat fee, as well as a proportional fee) and depend on the amount at stake. Please note that such regulated lawyer’s fees are owed by the losing party to the lawyer of the successful party, in addition to regular lawyer’s fees (called ‘honoraires’), which remain borne by the parties respectively for each of their lawyers.

Regular lawyer’s fees are difficult to estimate as they depend on the number of hours that will be spent on the case, the firms’ billing policies, the resistance of the opposing party, and the various issues that could arise during litigation.

Until recently, legal fees incurred by the prevailing party at trial were not reimbursed by the other party.

As a result, the claims for damages made by the respective parties usually included lawyer’s fees, or at least part of it.

The winning party could then have hoped to recover the legal fees, or at least part of them, if it succeeded in its action.

Now, Art. 238-1 of Law No. 1.511 of December 2, 2021, which amends the Civil Procedure Law, provides that:

“The judge shall order the party required to pay the costs or who loses the case to pay:

1° to the other party the sum he shall determine, in respect of the costs incurred and not included in the ‘dépens’ ;

2° and, if applicable, to the lawyer of the beneficiary of legal aid, an amount for fees and costs, not included in the costs, that the beneficiary of legal aid would have incurred if he had not had this assistance.

In all cases, the judge will take into account the equity or the economic situation of the condemned party. He may, even on his own initiative, for reasons derived from the same considerations, say that there is no need for such awards. Nevertheless, if it awards a sum under 2° of this article, it may not be less than the State’s contributory share.

The lawyer of the beneficiary of legal aid may not accumulate the sum provided for under 2° of this article with the contributory share of the State.”

Art. 238-1 thus allows the parties to formulate their requests for payment of a sum called ‘frais irrépétibles non compris dans les dépens’, a sum which is distinct from damages and generally represents the lawyer’s fees.

This provision being recent, there is not yet the necessary hindsight to allow us to comment on its interpretation or its application in the Principality.

What is certain is that this sum must remain reasonable and distinguishable from damages.

However, the judge is free to grant this request, or to reduce the amount, if the judge deems it to be excessive.

What types of contingency or conditional fee arrangements between lawyers and their clients are available?

Legal fees are usually billed on a time-spent basis, according to hourly rates, depending on the firm and the various partners or associates dealing with the case. Some law firms may agree to bill on the basis of a flat flee in specific cases. Lawyers’ fees are not subject to VAT.

Contingency fees are, in principle, prohibited by Art. 25 of Law n°1047 of July 28, 1982. Nonetheless, there is a trend in Monegasque case law to soften the prohibition by allowing additional fees (besides strictly time-based fees), linked to the favorable outcome of the case where the lawyer’s work was decisive in obtaining the said outcome, and provided that those additional fees have been specifically agreed in advance by the client when signing the power of lawyer or letter of engagement.

Can parties use third party funding to finance proceedings? If so, are there any restrictions on this? (e.g. only available for certain types of claims or forum).

Third party funding is neither expressly allowed nor expressly forbidden in Monaco. It is still very unusual.

Third party funding should not interfere with the lawyer-client relationship. For instance, the third party is not entitled to receive correspondence directed to the client and the lawyer should not receive instructions from this third party, despite the fact that this third party is actually paying the lawyer.

In what circumstances and on what grounds can an appeal be made?

Appeals before the Court of Appeal can be made on facts and law, whereas appeals made before the Court of Revision can only be made on points of law for Court of Appeal judgments or illegality for Justice of the Peace judgments.

Most judgments/orders can be immediately appealed, although, some decisions can only be challenged with the decision on the merits (e.g. measures of inquiry).

In certain cases, the right to appeal depends on the subject matter and the amount at stake.

What is the procedure, timescale, and cost for appealing?

The usual time period to appeal is 30 days from the date the judgment was served upon the opposing party, unless specifically provided otherwise. It is lodged by declaration at the clerk’s office by the appellant’s lawyer.

The appellant has 30 days from the expiry of the above-mentioned time limit to file their arguments by a writ of summons served upon the opposing party by a bailiff. The appeal suspends the enforcement of the judgment, unless provisional enforcement has been granted. However, the provisional enforcement may be revoked by the Court of Appeal.

Proceedings before the Court of Appeal usually take less than 12 months, although, they can last longer.

The final appeal before the Court of Revision must be made within 30 days from the date the Court of Appeal’s decision was served. This time period can be extended depending on where the served party is located.

The appeal before the Court of Revision is lodged by declaration to the court clerk’s office. The appellant must then serve notice to the other party within 30 days following this declaration, accompanied by the pleadings.

Proceedings before the Court of Revision usually take less than 12 months.

An appeal to the Court of Revision does not suspend the challenged decision except in cases of divorce, legal separation, opposition to marriage, nullity of marriage, cancellation of mortgage, and in other cases specially provided for by law.

What is the procedure, timescale, and cost for enforcing local judgments?

A Monegasque judgment must be final, not subject to further appeal, and must have been served upon the opposing party in order to be enforceable. Exceptionally, it is possible to enforce a judgment that is not final, when the provisional enforcement was granted (it is automatically granted in some instances such as expedited proceedings). Accordingly, it is usually not possible to enforce a judgment before the Court of Appeal’s ruling or before the deadline to appeal has passed.

Enforcement is accomplished through a bailiff who, once in possession of the enforceable judgment, will be able to proceed with the seizure of the debtor’s assets. The timescale and costs will vary greatly depending on the number or type of enforcement proceedings necessary to obtain full payment or compliance with the judgment.

What is the procedure, timescale, and cost for enforcing foreign judgments?

Enforcement proceedings of foreign decisions follow the procedure of recognition (exequatur) and are governed by Arts. 13 – 20 of the Code of Private International Law (Law n°1448 of June 28, 2017), supplemented by the provisions of Arts. 470 – 486 of the Code of Civil Procedure, and, where applicable, international conventions.

Enforcement proceedings are adversarial proceedings brought before the First Instance Court of Monaco by way of summons served on the defendant by a Monegasque bailiff and filed with the court.

Art. 18 of the Code of Private International Law provides that the claimant seeking enforcement must provide the court with the following:

1. an authenticated original copy of the judgment;
2. the original of the deed of service or of any other deed evidencing the service in the state where the judgment was issued;
3. a certificate issued either by the foreign court which issued the judgment, or by the court’s clerk, confirming that no appeal or opposition was, or can be, made against the foreign judgment, and that such judgment is enforceable within the territory of the state in which it was issued.

These documents have to be certified by a diplomatic agent of Monaco or a competent authority in the foreign country (through the formality of legalisation or of the apostille, depending on whether the foreign country is a party to the Convention of 5 October 1961 abolishing the Requirement of Legalisation for Foreign Public Documents or not).

When they are drafted in a foreign language, all documents must be translated into French by a certified translator.

The estimated time period from the date of filing of the application, until the date of the enforcement of the foreign judgment may vary according to the circumstances. The decision could be rendered within a few months after the procedure was filed, if unopposed. If opposed, the procedure is more likely to last several years, bearing in mind that an appeal may be lodged against the first instance judgment and that this appeal would suspend enforcement (although it is possible to ask for the provisional enforcement of the First Instance Court’s decision).

Are there any reciprocal conventions that assist?

Monaco has signed one treaty applicable to this issue with France.

Also, the Hague Convention of 13 January 2000 on the International Protection of Adults, which applies in international situations to the protection of adults who, due to an deterioration or insufficiency of their personal faculties, are unable to protect their interests, to which Monaco is party, provides for the recognition by operation of law of the measures taken by the authorities of other contracting states, whereas enforcement is still governed by the procedure of the state where enforcement is sought (i.e. Law n°1448 of June 28, 2017 in Monaco).

Does your jurisdiction recognise ADR (e.g. mediation etc) and are there exceptions?

Monegasque law does not provide generally for mediation although it is expressly contemplated for administrative matters, as well as for legal separation and divorce.

Reconciliation is provided for in the Monegasque Code of Civil Procedure.

Furthermore, there are two ways in Monaco to have a dispute settled by an arbitration tribunal:

1. either by inserting an arbitration clause in a written instrument before a dispute arises; or
2. by signing a compromise once the dispute has arisen.

Everyone can compromise on the rights they have the free disposal of in civil and commercial matters.

Do the courts have power to encourage ADR?

Attempts of reconciliation or mediation are sometimes pre-requisites to court proceedings (family issues, commercial rent issues, labour issues). Also, an attempt of reconciliation is mandatory (subject to limited exceptions) before the Justice of the Peace.

Please note that the First Instance Court may order, in all matters and in any case, an attempt of reconciliation.

If arbitration is a method chosen by the parties, the courts cannot compel them to proceed to litigation without their consent.

Are there sanctions for refusing to engage with ADR?

A claimant who does not participate in the attempt of judicial reconciliation could be sentenced to a fine of EUR 30.

Not participating in the attempt of reconciliation, mediation, or arbitration when it is mandatory or provided in a written instrument could possibly lead to rendering a claim inadmissible before the courts.

What are the main ADR forums in your jurisdiction?

The judicial reconciliation attempt can occur before the Justice of the Peace or the First Instance Court.

Mediation in the case of administrative matters is conducted by the High Commissioner for the Protection of Rights, Liberties, and for Mediation.

Two arbitration institutions exist in Monaco, but they are related to specific fields:

Maritime disputes: 30 years ago, a Maritime Chamber of Arbitration was created in order to settle maritime disputes. This institution was initially very successful, however, then saw its activity decrease to the extent of becoming dormant.

1. Collective labor conflicts: a commission of reconciliation for collective labour conflicts was created by Law n°473 dated 4 March, 1948. If the parties do not reach an agreement, the disputes are submitted to an arbitration procedure. An appeal is possible before the Supreme Court of Arbitration in very limited situations (such as violation of the law, acting beyond legal power or authority (ultra vires), lack of jurisdiction).

Other than those mentioned above, there is no specific ADR forum in Monaco.

What are the key developments in your jurisdiction (reforms, changes in legislation, growth areas, impact of technology etc)

Four of the most important recent reforms are:

1. Law n° 1.511 of December 2, 2021, modifying the civil procedure:
   1. The purpose of this bill is to amend and supplement the provisions of Monegasque law governing civil procedure with a view to meeting the needs of practice, as well as those of modern and efficient justice.
   2. Thus, in order to meet the needs of practice, this statute provides, in particular, for the introduction of the mechanism of the astreinte, which makes it possible to prevent difficulties in the enforcement of court decisions, as well as the creation of partial legal aid, which should contribute to widening the circle of persons eligible for such assistance.
   3. In addition, in order to update certain outdated provisions, this bill aims to introduce several innovations in Monegasque civil procedure, including the generalisation of the obligation to be represented by a Avocat-Défenseur before the Court of First Instance, the modernisation and clarification of the rules relating to jurisdictional competence, the reconstruction of the mechanism relating to orders issued on the basis of request, the clarification of the powers of the judge for summary proceedings and the reform of the rules of procedure applicable before the Court of Revision.
2. A series of new laws has supplemented Law n° 1.362 of August 3, 2009, relating to the fight against money laundering, terrorism financing and corruption, such as Law n° 1.503 of December 23, 2020, Law n° 1.520 of February 11, 2022, Law n° 1.537 of December 9, 2022, Law n° 1.549 of July 6, 2023, Law n° 1.550 of August 10, 2023, Law n° 1.553 of December 7, 2023, and Law n° 1.559 of February 29, 2024. The Principality of Monaco has undertaken to adopt measures equivalent to the European Union directives.
3. Law n° 1.565 of December 3, 2024, relating to the protection of personal data, offers a strong level of protection similar to the General Regulations on Data Protection of the European Union (GDPR). Furthermore, on March 6, 2025, Monaco ratified via Law n° 1.566 of December 3, 2024, the Protocol (223) amending the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data.
4. Law n° 1.573 of April 8, 2025, relating to the modernization of company law, clarifies the legal framework and increases attractiveness for Monaco. The new law simplifies the procedures (board meetings by videoconference or telecommunications means) and creates more flexible structures (such as the single-shareholder limited liability company). Law n° 1.573 is the first of a series of laws to be adopted in the near future.

How do your courts determine if they have jurisdiction?

Generally speaking, the courts will have jurisdiction if one of the defendants is domiciled in the KSA, or if the contract, or part of it has been performed in the KSA.

Can a defendant dispute jurisdiction and if so, how?

It is possible to challenge the jurisdiction of the court by submitting the challenge before arguing the merits of the dispute.

Are parties in litigation under any obligation to keep the proceedings confidential?

Court hearings are open to public. Additionally, there is a monthly publication of Supreme Court judgments available to the public and lawyers.

In Saudi Arabia, parties involved in litigation are not specifically obligated to keep the proceedings confidential. However, lawyers are prohibited from providing legal advice that would assist clients in breaching Saudi law, and there is a general obligation for lawyers not to breach confidentiality (New rules of professional conduct for lawyers in The Kingdom of Saudi). Additionally, organisations are required to maintain adequate security for personal information. While there is no strict confidentiality requirement for litigation proceedings, parties should exercise discretion and follow legal and ethical guidelines.

Can hearings be held in private and court documents restricted?

Hearings are held in open court unless the court or the parties prefer otherwise.

Hearings will be held in private to:

1. Maintain order;
2. Observe public morality; or
3. Protect the privacy of the family.

Are there any exceptions to confidentiality rules?

No, not without a court order

Are there any pre-action considerations or processes that parties should take into account?

Yes. In certain disputes, the claimant is required to file the proceedings before a special committee in charge of assisting the parties to reach amicable settlement before commencing proceedings.

There are circumstances where the claimant cannot commence proceedings before serving legal notice on the defendant. For example:

1. In labour disputes, the application must first be submitted to the ‘Labor Dispute Settlement Committee’, which offers reconciliation between the parties and in the event that an amicable settlement is not reached, it is referred to the General Court; and
2. In the event of administrative disputes, there are some claims, which require the claimant to file a grievance with the administrative authority that issued the decision within 60 days from the date of receiving the decision, before being able to register the case with the court. For example, in aviation disputes the claimant must file a complaint with the General Authority of Civil Aviation before filing a claim in the competent court.
3. Some disputes in commercial cases require a reconciliation request to be submitted prior to submitting the case to the court, in accordance with the commercial court law and its executive regulation.

Are there any consequences for non-compliance?

The proceedings can be dismissed for being premature or for not following the prescribed procedures.

How are proceedings commenced in your jurisdiction?

By filing a statement of claim, along with supporting documents, before the competent court.

The Judicial Costs Law was issued by a Royal Decree No. (M/16) dated 30/1/1443 AH, which sets the court fees, which will be in an amount not exceeding 5% of the value of the claim, up to a maximum of one million riyals. The fees are determined as follows:

1. (5%) if the claim value is less than SAR 100,000
2. (4%) if the claim value is SAR 100,000 (one hundred thousand) or more, and less than SAR 500,000.
3. (3%) if the claim value is SAR 500,000 or more, and less than SAR 1,000,000.
4. (2%) if the claim value is SAR 1,000,000 or more.

All claims in the Saudi courts are subject to judicial costs law, except for the following:

1. General criminal cases, disciplinary cases and the requests related there to;
2. Cases and requests that are within the jurisdiction of personal status courts, except for requests for cassation or reconsideration;
3. Cases and requests that fall within the jurisdiction of the Board of Grievances;
4. Cases and requests related to cases for division of estates, except for the request for cassation and the request for reconsideration;
5. Cases and Requests arising from the application of the provisions of the Bankruptcy Law; and
6. Terminations and Requests related thereto.

For domestic proceedings, how and by whom is service effected?

Service is provided by the court through the e-system. The litigants are notified via a text message sent to the mobile number of the defendant registered in the system of the Ministry of Interior through the service (Absher) or via email in accordance with a Royal decree No. 14388 dated 25/03/1439, which provides for:

1. Text message via a certified phone (The certified phone number means the mobile number of a Saudi or non-Saudi citizen, whose name is officially registered with the Saudi Ministry of Interior, according to which all official transactions and notifications are carried out inside the Kingdom.)
2. Via an email to the legal or natural person.
3. Through any of the (natural or legal) person accounts registered in any of the government automated systems.

For foreign proceedings, what are the permitted methods of service in your jurisdiction?

Through the diplomatic channels.

Is there a timetable parties must follow when submitting documents?

In practice, there is no strict timetable for submitting documents, except when ordered by and set out by the court. However, a timetable should be followed by the parties when filing appeals.

Can third parties be joined to an action? What are the practical steps needed to achieve this?

Third parties can join proceedings before the CFI, where it is deemed necessary, and on application to the CFI.

Are the courts able to hear two or more related/closely connected actions? If so, what are the practical steps needed to achieve this?

The court can hear counterclaims related to the connected actions.

For example, in accordance with Article 82 of the Law of Civil Procedure (incidental petitions will be filed by the claimant or defendant by means of a memorandum served on the parties before the day of the hearing, in accordance with applicable case-filing procedures, or pursuant to an oral petition made during the hearing in the presence of the parties. The petition will be recorded in the hearing transcript. No incidental petitions are permitted after the closing of proceedings.)

The defendant can make the following related applications (Article 84):

1. Application for judicial offset;
2. Application for a judgment for compensatory damages sustained as a result of the original case or proceedings;
3. Any application, which if granted, results in the court not giving judgment on all or some of the claims, or giving judgment for the defendant on some of the items claimed;
4. Any application indivisibly linked to the original case; or
5. Applications as permitted by the court in connection with the original case.

The court will rule on an incidental application at the main hearing where possible, and the judgment of the application will be issued before the main judgment. Where this is not possible, the court will retain the incidental application for ruling upon determining its validity.

What are the rules for disclosure in your jurisdiction? Are there any required processes e.g. eDisclosure/eDiscovery, predictive coding etc?

There are no strict rules for disclosure in KSA. However, parties can request the court to order the other party to disclose documents in their possession.

Are there any required processes e.g. eDisclosure/eDiscovery, predictive coding etc?

Yes, parties need to file an application before the court and obtain a relevant court order.

What are the sanctions for non-compliance?

Parties who do not provide court ordered disclosure may be held in contempt of court, which may affect the prospects of success in the case.

Are there any exceptions to these rules (e.g. on the grounds of public interest, privilege or confidentiality etc)?

Not applicable.

Can non/third parties be compelled to disclose documents?

Yes, if there is a court order.

What are the rules on privilege in your jurisdiction?

Not applicable

When considering cross–border privilege, what is the test your courts apply to privilege? (i.e. will your jurisdiction determine privilege under its own system or that of the country from where the documents originated)?

Not applicable.

What are the rules in relation to expert evidence?

The courts in the KSA rely heavily on the findings of the court appointed expert.

Are experts appointed by your courts or by the parties?

Court appoints the expert from its internal list.

What are the rules in relation to the calling of factual witnesses?

It is common for the court to call factual witnesses.

Is witness evidence submitted in written form or orally, or a combination of the two?

A combination of the two.

Are witnesses subject to cross-examination?

Yes.

Are the courts able to order interim remedies during proceedings, and if so, what remedies are available? (e.g. freezing injunctions, search orders or security for costs etc)

Yes, the court can issue attachment orders, travel bans, search orders etc during the proceedings

Can cases be dealt with summarily? For example, because there is no case to answer (e.g. summary judgment), or because a party has not taken a required step in the proceedings (e.g. default judgment for failing to file a defence)?

It is possible to request the court to issue a default judgment. However, the concept of summarily deciding a case does not formally exist.

Do the courts have powers to encourage settlement?

The Case Management Department of the court will encourage the parties to settle the dispute.

Are there any formalities required to effect a settlement?

Any settlement agreement should be concluded by the those will authority to do so. This is done through the Taradhi platform, a digital platform that provides the beneficiary with all reconciliation procedures in a completely electronic form, from submitting the request until the issuance of the reconciliation document, which is considered an executive document, or a report that reconciliation is impossible, without the need to visit reconciliation offices within the courts.

In commercial cases, the Taradhi Office shall set a date for reconciliation within a period not exceeding 14 days from the date of registration of the reconciliation request. The party to the reconciliation shall be determined by the Reconciliation Office or the reconciliation applicant. In the event of the absence of the parties or one of them, another date shall be set by the office within seven days of the first date, taking into account whatever appropriateness may be possible. In the event of the absence of the parties or one of them for the second time or his inability, the reconciliation request shall be archived.

In Labour cases the settlement request is submitted to the Settlement Department: The Ministry of Human Resources and Social Development (HRSD) through this link (mol.gov.sa). The settlement department must work to resolve the dispute within 21 days from the date of the first session. If reconciliation is not possible, the plaintiff shall submit the lawsuit to the labour court.

It is preferable/advisable to notarise any out of court settlement.

Are the legal costs recoverable from the unsuccessful party?

According to article 13 of the Judicial Costs Law, the unsuccessful party will bear the costs. If the case ends by conciliation, the parties will bear the costs equally unless they agree otherwise.

There are some courts that recently issued judgments to recover the attorney fees paid by the plaintiff.

What types of contingency or conditional fee arrangements between lawyers and their clients are available?

Time spent basis, fixed fees, fee cap, and lump sum.

Can parties use third party funding to finance proceedings? If so, are there any restrictions on this? (e.g. only available for certain types of claims/forum)

There are no restrictions, but this is not common practice in the KSA.

In what circumstances and on what grounds can an appeal be made?

The grounds for appeal are varied. For example, if the judgment is contrary to a rule of public order or law; if the court did not give the parties the ability to defend the matter; or if the court ignored evidence submitted by the parties.

The CFI judgment can be challenged before the Court of Appeal if the claim amount exceeds SAR 50,000.

What is the procedure, timescale, and cost for appealing?

The date for filing an appeal is 30 days, save for judgments issued in urgent matters, where it is only 10 days

The fee to file an appeal is SAR 5,000.

What is the procedure, timescale, and cost for enforcing local judgments?

It depends on the financial position of the debtor. However, the process via the Enforcement Court can take 6-12 months.

Judgments are submitted via the court website within 5 days, and the court then issues an order compelling the debtor to pay the amount due. If the debtor does not pay the debt, the Execution Judge takes the measures mentioned in Article 46 of the Enforcement Law. The most important of these measures is the ban on travel, the suspension of services, seizure of funds, selling real estate or cars owned by the debtor, and imprisonment if the debt exceeds SAR 1,000,000.

There are no court enforcement fees.

What is the procedure, timescale, and cost for enforcing foreign judgments?

Judgments and orders delivered by a foreign country are enforceable in the KSA.

Are there any reciprocal conventions that assist?

Yes, under the Riyadh Agreement for Judicial Cooperation

Article 31 of the Riyadh Arab Agreement on Judicial Cooperation (1983), stipulates that “a ruling issued by the courts of one of the Contracting Parties and recognized by one of the other Contracting Parties, in accordance with the provisions of this Agreement, shall be enforceable by the other Contracting Party when it is enforceable by the Contracting Party of the Court which issued the Agreement.”

The procedures concerning the recognition and implementation of the ruling are subject to the law of the Contracting Party, who is required to recognise the ruling, within the limits required by the Agreement.

Does your jurisdiction recognise ADR (e.g. mediation etc.) and are there exceptions?

The KSA formally recognises arbitration and recently there is formal legislative recognition of mediation or any other form of ADR, but parties are free to agree to ADR if they so wish. (According to the Commercial Court Law and its Executive Regulations)

Do the courts have power to encourage ADR?

Yes, according to the Commercial Court Law and its Executive Regulations

Are there sanctions for refusing to engage with ADR?

No. Unless, there is a contractual obligation to engage in ADR.

What are the main ADR forums in your jurisdiction?

Arbitration, reconciliation, and mediation.

What are the key developments in your jurisdiction (reforms, changes in legislation, growth areas, impact of technology etc)?

Recently the Law of Civil Procedure was amended to facilitate the litigation process.

On November 27, 2019, the Saudi Cabinet passed a resolution endorsing the amendments of Articles No. 55 and 56 of the Law of Civil Procedure promulgated in the KSA, which pertain to the non-appearance of litigants in court hearings. The objective of the amendment was to set out details, which have to do with initiating legal actions before the Saudi courts for expediting the handling of numerous disputes and filling the gap, which may be exploited by litigants to extend the duration of litigation before the courts. For example:

Amendment of Article No. 55:

Prior to amendment, Article No. 55 stipulated: “If the plaintiff is absent from a hearing without an excuse acceptable to the court, the case shall be dismissed. The plaintiffs may, however, petition continuation of the case. In this case, the court shall schedule a hearing for consideration and shall notify the defendant. If the plaintiff is absent again without an excuse acceptable to the court, the case shall be dismissed and may only be heard pursuant to a decision by the Supreme Court.”

Post amendment article No. 55 now stipulates: “If the plaintiff fails to appear in a court hearing without an excuse acceptable to the court, then it may decide to strike the case off. If the 60 days’ time limit elapses and the plaintiff does not request the continuation of the case after striking it off or failing to appear in court after resumption of the case, then the case shall be regarded as never filed. If the plaintiff then asked for the continuation of the case, the court shall decide the case at its own discretion such that the case has never been filed.”

Explanation: the amendment has an added duration of 60 days’ within which the claimant should apply for restoration of the case. The court may dismiss the case if the claimant fails to submit a request to the court to proceed with the case or fails to appear at the hearing.

This will end the matter even if the party submits further applications to restore/resume the case.

Recently, The Kingdom issued three new laws, which are the Law of Evidence, Personal Status Law and Civil Transactions Law. These three laws have been promulgated by the Royal Decree No (M/43), dated 26/05/1443 H (31/12/2021). On 8 July 2022, a new Evidence Law came into force in Saudi Arabia. The new law aims to eliminate discrepancies in courts.

1. The new Evidence Law will apply to all civil and commercial transactions. Furthermore, it is applicable to criminal cases to the extent that there is no regulating provision in the Law of Criminal Procedure and the norm is applicable in criminal law by its nature. In the absence of a provision in the Law of Civil Procedure before the Board of Grievances, the law is also applicable to administrative cases.The new Evidence Law will replace the provisions in the Law of Civil Procedure and Law of Commercial Courts on the law of evidence, so that all the provisions on the law of evidence will be available in one law.
2. The Saudi Civil Transactions Law (CTL) was enacted on 19 June 2023 by Royal Decree M/191. The CTL is a landmark piece of legislation for Saudi Arabia as it codifies for the first time the law governing contract and tort in the Kingdom.
3. A personal status law as part of its reform efforts. This was announced in March 2022. The new law came into force 90 days later, on Saturday, June 18, 2022.

The reform of the Personal Status Law took place within the framework of the reform of the legal system initiated and supervised by the crown prince of Saudi Arabia. The law reform is in line with Saudi Vision 2030, which aims to enhance quality of life, integrity, protection of human rights and efficiency of systems, as well as improve services.

This reform aims to provide a clear legal framework for families through more than 250 articles and is intended to support family stability. The law seeks to improve the status of the family, women and children, and aims to limit the discretionary power of the judge to prevent discrepancy of judicial rulings in this regard.

The new law is based on the rules of the Islamic Shariah Code and its objectives, the latest legal trends and modern international judicial practices. In addition, according to the Crown Prince, the new law will lead to improvements in human rights, family stability and the empowerment of women and promotion of rights.

These reforms support the realisation of the Kingdom’s Vision 2030 and Saudi Arabia’s goal of developing its judiciary to be in line with global methods and practices. It is expected that the new laws will help to achieve sustainable development and create an attractive legal environment that allows for greater confidence in contracts and obligations in general.

How do your courts determine if they have jurisdiction?

The parties bring the dispute before the courts in accordance with the rules of the CPC. The courts will determine whether they have jurisdiction over the subject matter.

Can a defendant dispute jurisdiction and if so, how?

Yes, the defendant can raise the court’s jurisdiction as a preliminary question. It may also appeal against a judgment of admissibility or non-admissibility. If the defendant enters an appearance on the merits without objecting to the court’s jurisdiction, then any objections to the court’s jurisdiction will be deemed to be waived.

Are parties in litigation under any obligation to keep the proceedings confidential?

No. Under Swiss law, the principle of transparency is fundamental to the proceedings. In principle, hearings and any oral handing down of judgments will be conducted in public and the decisions will be accessible to the public.

Can hearings be held in private and court documents restricted?

Hearings may be held completely or partially in private when required by the public interest (e.g. diplomatic or military secrecy), or by the legitimate interests of individuals (e.g. business secrecy), and some proceedings are confidential by nature (e.g. family law proceedings or conciliation hearings). Regarding the conciliation proceedings, the statements of the parties cannot be recorded or used subsequently in court proceedings.

Access to procedural documents and the right to consult the files are components of the right to be heard. The right to be heard can only be restricted in the case of a conflict with overriding public or private interests.

Are there any pre-action considerations or processes that parties should take into account?

No. Unlike in English proceedings, there are no rules setting out how the courts expect parties to behave prior to commencement of any claim, and there are no mandatory steps a party must take before initiating proceedings.

Swiss law allows an application to be filed for precautionary taking of evidence where the law grants the right to do so, or if the applicant shows credibly that the evidence is at risk, or that it has a legitimate interest to obtain the evidence.

Are there any consequences for non-compliance?

Since there are no mandatory pre-action rules, there are no direct consequences for non-compliance. However, not responding to a letter of demand might result in unnecessary proceedings, and this may well be taken into account by the court when allocating the court costs between the claimant and the defendant.

How are proceedings commenced in your jurisdiction?

Under Swiss law, proceedings generally commence with an application for conciliation. The conciliation proceedings are generally a prerequisite to the matter being decided on the merits. The conciliation authority will attempt to reconcile the parties in an informal manner during a hearing where the parties must appear in person (subject to certain exceptions, such as a party being domiciled abroad, or prevented from appearing due to illness, or age, or for another good reason). The statements of the parties within the conciliation procedure cannot be recorded or used subsequently in court proceedings (i.e. during the trial on the merits of the case).

At the end of the conciliation hearing, if an agreement is reached, the conciliation authority will place on record the terms of the settlement, the acceptance of the claim, or the unconditional withdrawal of the action, and have the record signed by the parties. Each party receives a copy of the record. Such settlement, acceptance, or unconditional withdrawal will have the effect of a binding decision.

If the conciliation procedure has not been successful, the conciliation authority will record that no agreement is reached and will grant the plaintiff permission to proceed. The latter must then file an action in court within the prescribed deadlines.

In certain limited cases, the conciliation authority can submit a draft judgment to the parties, which will be deemed to be accepted and will have the effect of a binding decision if none of the parties reject it within 20 days of its communication. In financial disputes, with a disputed value not exceeding CHF 2,000, the conciliation authority can render a decision on the merits directly if the claimant so requests.

For domestic proceedings, how and by whom is service effected?

The summons, rulings, and decisions are served by registered mail or by other means against confirmation of receipt. Other documents may be served by regular mail. With the consent of the concerned person, summons, rulings, and decisions can be served electronically. They must bear an electronic signature in accordance with the Federal Act on Electronic Signatures. It is worth noting that service is effected by the courts and not by parties.

For foreign proceedings, what are the permitted methods of service in your jurisdiction?

The service of judicial and extrajudicial documents in civil and commercial matters is governed either by the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (1965 Hague Convention), or bilateral agreements between Switzerland and certain states that authorise direct contact between judicial authorities. According to the 1965 Hague Convention, each contracting state must designate a central authority to receive and deal with requests for service from another contracting state. In Switzerland, every canton has its own central authority, which must serve documents in accordance with the service rules for domestic proceedings prescribed by Swiss law.

Where there is no applicable international treaty, Switzerland applies the Hague Convention relating to Civil Procedure of 1 March 1954 (1954 Hague Convention). According to the 1954 Hague Convention, foreign authorities must send the documents to be served to the consulate, embassy, or other representative of its country in Switzerland. The representative addresses a request to the Federal Office of Justice (FOJ), which in turn passes it on to the competent cantonal authority.

Is there a timetable parties must follow when submitting documents?

Under Swiss procedural law, the management of civil cases falls within the responsibility of the courts. The parties have very limited influence on case management. However, deadlines for the filing of briefs may sometimes be extended. Many courts, for example, initially set a deadline of only about 30 days to file the statement of defence but allow that deadline to be extended for another 30 days.

Can third parties be joined to an action? What are the practical steps needed to achieve this?

Third parties can be joined to an action in the form of a:

• Voluntary intervention: a third party can bring a claim directly against both parties in the court in which the dispute is pending at first instance (this is not possible in the conciliation or appeal procedure) or intervene, at any time, as an accessory party to support the position of one of the parties. In such a case, the third party will have to show a credible legal interest in having a pending dispute decided in favour of one of the parties.
• Third party notice: a party can notify a third party of the dispute if, in the event of being unsuccessful, it might take recourse against or be subject to recourse by a third party. The notified third party can intervene in favour of the principal party, without further conditions, or proceed in place of the notifying principal party with the consent of the latter. If the notified third party refuses to intervene, the proceedings continue without considering the third party.
• Third party action: a party to the main proceedings can assert the rights it considers it has, or will have, against the notified third party in the event the claim does not succeed before the court. The third party action is not admissible under simplified or summary proceedings. The request for admission of the third party action must be made with the answer or reply in the main proceedings. The principal party sets out the claim and arguments to be raised against the third party, together with a brief statement of the grounds.

Are the courts able to hear two or more related/closely connected actions? If so, what are the practical steps needed to achieve this?

If it seems appropriate to the judge, the latter can order the joinder of two or more actions. Such a joinder is not governed by precise criteria, such as a connection between the actions. The only legal criterion is the simplification of the proceedings according to the court’s assessment. This decision will naturally have to be accompanied by the organisation of the new proceedings after joinder. According to the case law of the Swiss Supreme Court, in order to join two or more cases, the applicable procedure of those cases must be identical.

Such a decision can be taken by the court of its own initiative or upon request of one of the parties.

What are the rules for disclosure in your jurisdiction? Are there any required processes e.g. eDisclosure/eDiscovery, predictive coding etc?

A disclosure procedure, as seen in common law jurisdictions, does not exist under Swiss law. During the pleadings and upon the request of a party, the court can order the other party to produce specific documents. In order to prevent fishing expeditions, the requesting party needs to specify the document in the opposing party’s possession in detail and explain to the court how it will be relevant to the merits of the case. Such document production requests are not similar to the large-scale, pre-trial discovery known in some common law jurisdictions.

However, the parties and third parties are under a duty to cooperate in the taking of evidence. In particular, they have the duty to make a truthful deposition as a party or a witness, to produce physical records, and to allow an examination of their person or property by an expert if ordered to do so by the court. Accordingly, a court may order a party, upon specific request of the other party, to produce certain specified documents relevant to the outcome of the case.

What are the sanctions for non-compliance?

If a party fails to cooperate without justification, the court will take this into account when appraising the evidence and draw adverse inferences. Unlike third parties, the parties will not face sanctions if they refuse to collaborate without justification.

If a third party refuses to cooperate without proper grounds, the court can impose a disciplinary fine of up to CHF 1,000, threaten sanctions under Art. 292 (contempt of official orders) of the Swiss Criminal Code (SCC), order the use of compulsory measures, or charge the third party the costs caused by its refusal to participate.

Are there any exceptions to these rules (e.g. on the grounds of public interest, privilege or confidentiality etc)?

If the document to be produced contains information or data which could harm the legitimate interests of a party or other individuals, in particular personal data or business secrets, the court must take the necessary measures to protect such interests. The court can, in particular, exclude the opposing party from having access to the documents submitted as evidence or make only extracts available. Furthermore, correspondence between a party or a third party and a lawyer are not subject to disclosure.

Under certain conditions, parties and third parties have a right to refuse to cooperate. A party can refuse to cooperate if the taking of evidence would expose a close associate to criminal prosecution or civil liability, or if the disclosure of a secret would be an offence under Art. 321 SCC (breach of professional confidentiality).

Regarding third parties, the following persons have an absolute right to refuse to cooperate:

• Any person who is or was married to or cohabits with a party;
• Any person who has a child with a party;
• Any person who is related to a party by birth or marriage, in direct line, or collaterally up to the third degree;
• The foster parents, foster children, and foster siblings of a party;
• The person appointed guardian or deputy for a party; and
• Lawyers when their cooperation would consist of a breach of their duty of confidentiality.

Third parties may also have a limited right to refuse to cooperate if certain conditions are met (for example. a third party can refuse to cooperate in establishing facts that would expose themselves or a close associate to criminal prosecution or civil liability, to the extent that the revelation of a secret would be punishable by virtue of Art. 321 SCC (breach of professional confidentiality).

Can non/third parties be compelled to disclose documents?

Yes. As indicated above, if a third party refuses to cooperate without proper justification, the court can order the use of compulsory measures, for example, have the police enter the property of such third party to collect the documents the third party is refusing to disclose. Furthermore, the court can impose the other sanctions mentioned above against the third party.

What are the rules on privilege in your jurisdiction?

In respect of lawyer-client privilege, neither the lawyer, nor the client/party, nor third parties, have a duty to disclose privileged correspondence to the court. The privilege not only includes letters and emails, but also memos, strategy papers, draft agreements, draft settlement proposals or the like. The protection only goes so far, as it covers correspondence specifically in the context of a lawyer’s activity in representing or consulting clients (the protection does not apply in the case where the lawyer is also an accused). Other activities sometimes carried out by lawyers, such as board membership, asset management, or clerk services are not privileged.

When considering cross-border privilege, what is the test your courts apply to privilege? (i.e. will your jurisdiction determine privilege under its own system or that of the country from where the documents originated)?

Any foreign lawyer is subject to Art. 321 SCC (breach of professional confidentiality) in relation to the activities they are performing as a lawyer. Hence, if the collaboration would result in a breach of their duty of confidentiality, a foreign lawyer would have the right to refuse to collaborate.

What are the rules in relation to expert evidence?

At the request of a party or on its own volition, the court can obtain an opinion from one or more experts. The court must hear the parties first. Experts may be recused on the same grounds as judges and judicial officers. If two or more experts have been mandated, each one shall submit a separate opinion, unless the court decides otherwise.

The expert is a person with special expertise whose duty is to assess and confirm disputed questions of facts or foreign law that the court is not able to determine. Experts are under a duty to tell the truth and become liable to prosecution if they commit perjury.

The court instructs the expert and submits relevant questions to them, either in writing or orally at the hearing. The parties have the opportunity to comment on the questions and request their amendment or modification. If the expert does not submit their opinion on time, the court can revoke the mandate and instruct another expert. If an opinion is incomplete, unclear, or insufficiently reasoned, the court may at the request of a party or in its discretion, order that the opinion be completed or explained, or it may call in another expert.

Are experts appointed by your courts or by the parties?

Before 1^st January 2025, only the courts had the power to appoint experts to give expert evidence and evidence rendered by party appointed experts were deemed to be mere allegations by the appointing party. With the amendments of the CPC (entered into force on 1st January 2025), evidence rendered by party appointed experts have still not the same weight as court-appointed experts, however they are considered means of evidence (and not mere allegations) and, as such, are subject to the assessment of the court.

What are the rules in relation to the calling of factual witnesses?

The court may question the parties on relevant facts of the case and may even order them to give evidence, subject to criminal penalties for failure to do. However, only persons who are not a party to the proceedings can testify on factual matters that they have directly witnessed. Since the court generally does not take evidence on its own initiative, it will only summon witnesses who have been nominated by a party and whose testimony it considers relevant to the case. If summoned by the court, the witness has a duty to appear at the hearing and to tell the truth unless, under certain circumstances set out by statutory law, the witness has the right to refuse testimony.

Is witness evidence submitted in written form or orally, or a combination of the two?

Written witness statements are in principle admitted in exceptional circumstances and are not common in the Swiss litigation system. They may for example be (rarely) used in summary procedures where the evidence permitted is principally documentary evidence. The evidentiary value of written witness statements is considered low. Under Swiss law, the parties are not allowed to discuss the case with their witnesses before they testify and should refrain from contacting their witnesses.

Are witnesses subject to cross-examination?

Unlike common law jurisdictions, Swiss law does not adopt the system of examination and cross-examination conducted by the parties themselves, and the option under Swiss law to ask witnesses further questions does not come anywhere near an English style cross-examination. The witness examination is instead conducted by the court at its own discretion. Generally, the court first asks witnesses to state their particulars and personal relationship to the parties and any other circumstances that may be relevant. Then, the court invites them to state their factual observations and finally goes on to ask specific questions. Subsequently, it may be possible for the parties to request that further questions are put to the witness or, with the consent of the court, may ask questions themselves during the hearing.

Are the courts able to order interim remedies during proceedings, and if so, what remedies are available? (e.g. freezing injunctions, search orders or security for costs etc)

Yes. Applications for interim remedies can be filed within substantive proceedings to prevent an imminent harm while awaiting judgment on the merits. The court can issue an injunction, an order to remedy an unlawful situation, an order to a registered authority or to a third party, an order for performance in kind, or an order to pay a sum of money in the cases provided by the law. For interim measures to be ordered, the applicant must show that a right to which it is entitled has been breached, or that a breach is anticipated, and that the breach may cause harm to the applicant that is not easily repaired. The court will refrain from ordering interim measures if the opposing party provides appropriate security.

In cases of particular urgency, and where there is a risk that enforcement of the measure will be frustrated, the court may order interim measures immediately without hearing the opposing party.

Such interim measures may also be filed outside the scope of any pending proceedings on the merits of a case. If the substantive action is not yet pending, the court will set a deadline within which the applicant must file its substantive action, failing which, the interim measures will automatically become ineffective.

Further, a creditor can file an application for attachment/freezing of assets without prior judgment, provided certain conditions are met. Among other cases for attachment, a creditor can obtain an attachment order over the debtor’s assets if the debtor does not live in Switzerland, and if the claim has a sufficient link with Switzerland or is based on a signed acknowledgment of debt (within the meaning of the Swiss Debt Enforcement and Bankruptcy Act).

As regards to security for costs, the defendant can request that the claimant provides security for legal costs provided various conditions are met (in particular, if there is a significant risk that the compensation for legal cost will not be paid). In case of interim relief, the court can make the interim measure conditional upon the payment of security by the applicant, if it is anticipated that the measures will likely cause loss or damage to the opposing party.

Can cases be dealt with summarily? For example, because there is no case to answer (e.g. summary judgment), or because a party has not taken a required step in the proceedings (e.g. default judgment for failing to file a defence)?

Yes. Notably if the claimant does not appear in a conciliation hearing without being exempt; if both parties fail to attend the main hearing (audience des débats principaux) or if the proceedings become groundless for whatever reason. However, in the case where a defence is not filed on time, the court would not render a default judgment but would allow the defendant a short period of grace to file its statement of defence. If the statement of defence is not filed by the end of the period of grace, the court shall make a final decision provided the court is in a position to make a decision. Otherwise, it would summon the parties to the main hearing.

Do the courts have powers to encourage settlement?

Yes. Except in certain proceedings, all litigation is subject to a prior conciliation where the conciliation authority attempts to reconcile the parties in an informal manner (see above under section 5). It should also be noted that if all the parties so request, the conciliation proceedings can be replaced by mediation. In general, the request for arbitration is made in the application for conciliation or at the conciliation hearing. However, mediation can also happen during court proceedings. Indeed, the court may recommend (but not insist on) mediation to the parties at any time during the trial, and the parties may at any time make a joint request for mediation. In such cases, the court proceedings remain suspended until the request is withdrawn by one of the parties or until the court is notified of the end of the mediation.

Are there any formalities required to effect a settlement?

No. As long as the parties are willing to effect a settlement, the conciliation authority will record the terms of the settlement. If a settlement is reached during a mediation, the parties may jointly request that the agreement reached through mediation be approved. Such approved agreement will have the same effect as a legally binding decision.

Are the legal costs recoverable from the unsuccessful party?

Yes, the legal costs are generally recoverable to some extent in the case of success. The extent of the indemnity for legal costs granted by the court depends on the procedural laws of the canton where the litigation is initiated. In general, the courts located in the German-speaking part of Switzerland tend to grant the successful party higher indemnities for legal costs than the courts of the French-speaking part of Switzerland.

What types of contingency or conditional fee arrangements between lawyers and their clients are available?

Swiss law prohibits a fee arrangement on a ‘no win no fee’ basis. Under Swiss law, it is lawful for parties and their lawyer to agree a contingency fee, under which the fees are increased by a bonus if the case is successful provided the following conditions are met:

• Regardless of whether the case is successful or not, the agreed base remuneration of the lawyer (hourly rate, without the bonus) shall not only cover its basic costs, but shall also ensure a reasonable profit for the lawyer;
• The bonus cannot reach an amount that would impair the independence of the lawyer so that it would constitute an excessive advantage;
• The bonus cannot exceed the hourly rate of remuneration (max. 50%); and
• The contingency arrangement must be concluded at the beginning of the contract between the lawyer and the client or after the litigation, but not during the case.

Besides contingency fee arrangements, the lawyer and the client can agree on a fee quote or an instalment plan.

Can parties use third party funding to finance proceedings? If so, are there any restrictions on this? (e.g. only available for certain types of claims or forum)

There are no specific statutory rules concerning third party funding in Swiss law, however, the case law of the Swiss Federal Supreme Court has established that such funding is legal under Swiss law regardless of the type of claim or forum. The restrictions on third party funding are only related to the lawyers’ duties, such as: (i) independence; (ii) to keep client-related information confidential; and (iii) to avoid conflicts of interest.

Regarding legal aid, this may be used to finance litigation. Generally speaking, a natural person (to the exclusion of legal persons such as companies) is entitled to legal aid if they have insufficient financial resources and their case has a reasonable prospect of success. Legal aid includes an exemption from the obligation to pay advances and provide security, an exemption from court costs, and the appointment by the court of a lawyer under the legal aid system if necessary to protect the rights of the party concerned, and in particular if the opposing party is represented by a lawyer. The grant of legal aid does not relieve the person concerned from paying legal costs to the opposing party. Furthermore, the person must reimburse the legal aid received as soon as they are in a position to do so.

In what circumstances and on what grounds can an appeal be made?

Regarding commercial disputes, the Swiss civil procedure system provides for the following legal remedies before the cantonal courts: appeals, objections, revisions, clarifications, and rectifications. Before the Swiss Federal Supreme Court, Swiss procedural law provides for appeal in civil matters, subsidiary constitutional appeal, revision, clarification, and rectification.

The most frequently used legal remedies are the appeal and objection in the proceedings before the cantonal courts, and the appeal in civil matters to the Swiss Federal Supreme Court. Swiss procedural law is strongly oriented towards written procedure.

The decisions of the higher cantonal court (sometimes the sole cantonal court in the cases where Swiss procedural law provides that the claim may/must be brought directly before the higher cantonal court) may be appealed before the Swiss Federal Supreme Court, subject to certain conditions. Generally speaking, a minimum value of the disputed claim is required (CHF 15,000 in employment and tenancy cases, CHF 30,000 in any other case). This minimum value is not required in the following circumstances:

• A fundamental point of law is at stake (this condition has rarely ever been met);
• A federal law provides for a single cantonal instance decision;
• Where the appeal is made against a decision of the Federal Patent Court; or
• In certain debt collection and bankruptcy matters.

What is the procedure, timescale, and cost for appealing?

The appeal must be filed in writing, with a statement of the grounds, with the appellate court within 30 days of service of the challenged decision, unless the decision was rendered in summary proceedings, in which case the deadline for filing the appeal is 10 days. The appellate court will then serve the appeal on the opposing party for its written comments (in answer to the appeal), which must be filed within 30 days, or 10 days if the challenged decision was rendered in summary proceedings. The opposing party can file a cross appeal, together with its answer, unless the challenged decision was rendered in summary proceedings, in which case the cross appeal is not admissible.

What is the procedure, timescale, and cost for enforcing local judgments?

Swiss law makes a distinction between the enforcement of monetary and non-monetary judgments. Monetary judgments are enforced under the Debt Collection and Bankruptcy Act (DCBA), whereas non-monetary judgments are enforced under the CPC.

The only condition for a domestic judgment to be enforceable is that the decision be in force. Swiss domestic civil judgments are enforceable throughout the country without any requirement for recognition proceedings.

The enforcement procedure for monetary judgments is governed by the DCBA. Debt collection proceedings commence with a request to issue an order to pay by the competent debt collection office. The conditions of enforceability of the judgment are assessed during the proceedings to set aside the objection to the order to pay. After the objection to the order to pay is set aside, the creditor requests the continuation of the debt collection procedure. The debt collection office will then proceed with seizing and realising the assets of the debtor.

Non-monetary judgments are enforced under Art. 335 and following CPC before the civil enforcement court. Enforcement measures can be provided for in the judgment itself if the claimant requested them during the trial. In such a case, if the judgment contains precise orders of execution, an enforcement procedure will not be necessary (Arts. 236(3) and 337(1) CPC). In all other cases, including foreign judgment, separate enforcement proceedings must be instituted by the applicant after the judgment comes into force.

All other judgments are enforced according to the principles stated in the CPC. These judgments are enforced directly or indirectly.

Under Art. 341 CPC, the enforcing court will examine enforceability. It allows the defendant a brief period within which to file any comments. On the merits, the defendant can only argue that matters preventing enforcement of the decision have occurred since notice was given, (such as extinction, postponement, prescription, or forfeiture of the right to due performance). Extinction and postponement must be proved by documentary evidence. For foreign judgments, the debtor can raise grounds to refuse to recognise or enforce, provided under Art. 27 of the Private International Law Act (PILA). The court’s decision is handed down in summary proceedings.

The enforcement of foreign judgments (like the enforcement of domestic judgments) is subject to summary proceedings. In principle, only documentary evidence is admissible.

If a judgment cannot be directly enforced, a request for enforcement must be submitted to the relevant enforcing court. The applicant must establish that the requirements for enforcement apply and produce the necessary physical record. The enforcing court can order protective measures, if necessary, without hearing the opposing party beforehand. The enforcing court examines the enforceability of a given judgment and issues a decision under summary proceedings. Once the enforceability of the decision has been accepted, the enforcing court can:

• Issue a criminal penalty under Art. 292 SCC;
• Impose a disciplinary fine of up to CHF 5,000;
• Impose a disciplinary fine of up to CHF 1,000 for each day of non-compliance;
• Order a compulsory measure such as taking away a movable item or vacating immovable property; or
• Order performance by a third party.

If the court making the decision has already ordered the necessary enforcement measures, the decision can be directly enforced.

Parties and third parties can contest enforcement decisions by filing an objection.

Timescale and costs are the same as in summary proceedings. It should be noted that if the decision cannot be directly enforced, the enforcing court will allow the unsuccessful party a brief period within which to file its comments.

What is the procedure, timescale, and cost for enforcing foreign judgments?

Recognition and enforcement of a foreign judgment in Switzerland is subject to the provisions of the PILA, unless the judgment emanates from a state that is party to a bilateral or multilateral treaty for the reciprocal recognition and enforcement of foreign judgments to which Switzerland is also a party.

Under Swiss law, there is a formal distinction between recognition and enforcement of a foreign judgment. The recognition of a foreign judgment is a prerequisite for enforceability. Recognition of a foreign judgment can be sought separately or as mentioned above, as a preliminary issue in enforcement proceedings. Under the PILA, a foreign judgment will be recognised in Switzerland if:

• The judicial or administrative authorities of the state in which the judgment was rendered had jurisdiction;
• No ordinary appeal can be lodged against the judgment, or the judgment is final; and
• There are no grounds for refusal as exhaustively listed in the PILA, such as an incompatibility with Switzerland’s public policy, defective service, violation of the right to be heard, or an attempt to have the same matter re-tried.

The most efficient way to have a foreign monetary judgment enforced in Switzerland is to initiate debt enforcement proceedings under the DCBA. Upon the creditor’s request, the debt collection office serves a payment order on the debtor. The debtor can file an objection within 10 days of service of the payment order. If the debtor does not object to the payment order, the debt collection office will proceed to enforce the debt. If the debtor files an objection, the creditor, 1 year from service of the payment order to the debtor, must commence summary proceedings before the cantonal court of first instance to have the objection set aside. At this stage the court will decide, as a preliminary issue, on the recognition and enforcement of the foreign judgment. However, a party may also choose to first seek a court declaration on the recognition and enforceability of the foreign judgment in separate recognition proceedings. In such cases, the application must be directed to the cantonal court of first instance.

The whole procedure usually takes between 3 months and 2 years (if it goes all the way to the Supreme Court), provided that there is no unexpected delay resulting, for instance, from the service of documents abroad.

The costs of the proceedings depend on the amount in dispute and must be advanced by the claimant. The court may demand that the plaintiff make an advance payment not exceeding one half of the expected court costs. If the claimant prevails, these costs will eventually be borne by the respondent. Further costs may arise in connection with the services of the debt collection office, the service of legal documents outside Switzerland, objection and appeal proceedings, or translation costs. Generally, court costs are lower if enforcement of a foreign judgment is sought within the framework of debt collection proceedings, rather than in separate recognition proceedings.

Are there any reciprocal conventions that assist?

The most relevant treaty in force in Switzerland in this respect is the 2007 revised Lugano Convention on Jurisdiction, Recognition and Enforcement of Judgments in Civil and Commercial Matters (Lugano Convention).

A court seized with a request for enforcement of a judgment rendered in one of the Lugano Convention Member States must declare it immediately enforceable, upon mere satisfaction of formal conditions. If the opposing party contests the recognition of the foreign judgment, the recognition will be refused if (i) it is in violation of Switzerland’s public policy; (ii) there is an absence of a proper notice to the defendant in case of a default judgment; or (iii) the judgment contradicts a previous judgment rendered between the parties for the same dispute, provided that such a judgment can be recognised in Switzerland.

The Convention of 30 June 2005 on Choice of Court Agreements (2005 Hague Convention) entered into force in Switzerland 1^st January 2025. A judgment rendered in of the 2005 Hague Convention Member State might be refused in Switzerland only on the grounds specified in this convention, namely:

1. the agreement was null and void under the law of the State of the chosen court, unless the chosen court has determined that the agreement is valid;
2. a party lacked the capacity to conclude the agreement under the law of the requested State;
3. the document which instituted the proceedings or an equivalent document, including the essential elements of the claim,
   1. was not notified to the defendant in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant entered an appearance and presented his case without contesting notification in the court of origin, provided that the law of the State of origin permitted notification to be contested; or
   2. was notified to the defendant in the requested State in a manner that is incompatible with fundamental principles of the requested State concerning service of documents;
4. the judgment was obtained by fraud in connection with a matter of procedure;
5. recognition or enforcement would be manifestly incompatible with the public policy of the requested State, including situations where the specific proceedings leading to the judgment were incompatible with fundamental principles of procedural fairness of that State;
6. the judgment is inconsistent with a judgment given in the requested State in a dispute between the same parties; or
7. the judgment is inconsistent with an earlier judgment given in another State between the same parties on the same cause of action, provided that the earlier judgment fulfils the conditions necessary for its recognition in the requested State.

Does your jurisdiction recognise ADR (e.g. mediation etc.) and are there exceptions?

In Switzerland the following forms of ADR are recognised:

• Negotiation: at the parties’ discretion;
• Conciliation: mandatory following Art. 197 CPC;
• Arbitration: based on the agreement of the parties (Art. 61 CPC; Art. 176 ff LDIP);
• Mediation: expressly recognised in the CPC as a form of ADR; and
• Collaborative law: provided by professional associations, however, there is no existing legislation or soft law.

Do the courts have power to encourage ADR?

Except in certain proceedings, any litigation is subject to a prior conciliation procedure where the conciliation authority shall attempt to reconcile the parties in an informal manner (see above under section 5). Upon the request of the parties themselves, or as recommended by the court, the conciliation procedure can be replaced by a mediation. The court can recommend mediation to the parties at any time during the trial on the merits of a case, and the parties can make a joint request for mediation. If settlement is reached by mediation, the settlement agreement is approved by the court, and then has the same effect as a binding and enforceable judgment.

Are there sanctions for refusing to engage with ADR?

No, there are no direct consequences for refusing to engage with ADR, as it is done mainly on a voluntary basis. Even in the case of a prior mandatory conciliation procedure, the parties are not obliged to find an agreement. If the conciliation is unsuccessful, the conciliation authority will simply record that no agreement has been reached and allow the claimant to proceed.

What are the main ADR forums in your jurisdiction?

For arbitration and mediation, the main arbitration and mediation institutions are the Swiss Arbitration Centre, ICC, etc.

The cantons are competent to designate the forum for conciliation (conciliation in accordance with Art. 197 ff CPC). Frequently, such a forum is the first instance cantonal tribunal of the canton. In the case where the conciliation attempt is not successful, the judge of such a conciliation will not be part of the tribunal in the subsequent court action.

What are the key developments in your jurisdiction (reforms, changes in legislation, growth areas, impact of technology etc)?

On 1^st January 2025, partial amendments to the CPC entered into force. Those amendments are notably the following:

• Reduced advance payment of costs (the court or the conciliation authority may demand that the plaintiff make an advance payment not exceeding one half of the expected court costs);
• Cantons can allow proceedings to be conducted in English;
• With the agreement of the parties, courts may conduct procedural acts orally on request or ex officio by using electronic audio or video equipment, in particular by videoconference, or authorise the persons participating in the proceedings to do so by using such equipment;
• Similarly to external lawyers, in-house counsel have also the right to refuse to cooperate provided that the activity in question would be considered profession-specific for a lawyer;
• Evidence rendered by party appointed experts are considered means of evidence (and not mere allegations, see section 9 above);
• Incorporation of selective jurisprudence of the Swiss Supreme Court, clarifying the CPC; and
• Enhancement and development of the conciliation procedure.

How do your courts determine if they have jurisdiction?

DIF­C

Art. 5 of Dubai Law No 12 of 2004 (as amended) in respect of the Judicial Authority of the DIFC provides that the DIFC courts have exclusive jurisdiction over:

1. Civil or commercial claims and actions involving the DIFC, any of the DIFC’s bodies or any of the DIFC’s establishments or licensed DIFC establishment;
2. Civil or commercial claims and actions arising from or related to a contract or promised contract, whether party or wholly concluded, finalised or performed within the DIFC pursuant to express or implied terms stipulated in the contract;
3. Civil or commercial claims and actions arising out of or relating to any incident or transaction which has been wholly or partly performed within the DIFC and is related to DIFC activities;
4. Appeals against decisions or procedures made by the DIFC bodies where DIFC laws and regulations permit such appeals;
5. Any claim or action over which the courts have jurisdiction in accordance with DIFC laws and regulations.

Furthermore, the DIFC courts may hear and determine any civil or commercial claims or actions where the parties agree in writing to the jurisdiction of the courts, whether before or after the dispute arises.

Although the matter has been contentious, the DIFC courts have been used as a conduit for the enforcement of non-DIFC judgments and arbitration awards even where there is no connection to the DIFC. However, it is challenging to enforce and execute these judgments outside the DIFC, in the onshore UAE courts.

ADGM

In accordance with Abu Dhabi Law No. 4 of 2013 (as amended) (the ADGM Founding Law), the ADGM has exclusive jurisdiction over the following matters:

1. Civil or commercial claims and disputes involving ADGM or any ADGM authorities or establishments;
2. Civil or commercial claims and disputes arising out of or relating to a contract entered into, executed or performed in whole or in part in the ADGM, or a transaction entered into or performed in whole or in part in the ADGM, or to an incident that occurred in whole or in part in the ADGM;
3. Any appeal against a decision or a procedure issued by any ADGM authorities in accordance with the ADGM Regulations;
4. Any request, claim or dispute which the ADGM courts have jurisdiction to consider under the ADGM Regulations; and
5. Any issues as to the interpretation of any articles of the ADGM Regulations.

Art. 13(8) of the ADGM Founding Law confirms the ‘opt in’ jurisdiction of the ADGM courts, confirming that the courts “may hear and adjudicate any civil or commercial claim or dispute where the parties agree in writing to file such claim or dispute with them whether before or after the claim or dispute arises.”

The ADGM Founding Law confirms that the ADGM courts cannot be used as a conduit for the enforcement of non-ADGM judgments and awards in other jurisdictions outside of the ADGM, principally in onshore Abu Dhabi.

Can a defendant dispute jurisdiction and if so, how?

Yes, it is possible to challenge jurisdiction in both the DIFC and the ADGM courts.

In the DIFC courts, a defendant can apply to the court within 14 days of filing an acknowledgment of service and the application must be supported by evidence.

There is an additional option for DIFC court proceedings. Where a conflict of jurisdiction arises between the Dubai and the DIFC courts, a party can make an application to the Joint Judicial Committee, who will determine the competent court to hear the claim.

In the ADGM courts, the defendant can make an application supported by written evidence disputing the court’s jurisdiction within 28 days after filing and serving of acknowledgment of service.

Are parties in litigation under any obligation to keep the proceedings confidential?

No. Save in exceptional circumstances, proceedings in the DIFC and the ADGM courts are held in public, and there is no obligation to keep the proceedings confidential.

Can hearings be held in private and court documents restricted?

DIFC

Generally, all CFI and COA hearings are heard in public. All hearings held in the DIFC courts are available to view on YouTube. However, a hearing, or any part of it, may be held in private if it meets the requirements of 35.4 of the DIFC Court Rules (RDC).

The general rule is that a person who is a not a party to proceedings may obtain from the court a copy of statements of case and judgments or orders given or made in public. A non-party generally will not be able to obtain copies of other court documents without the permission of the court.

In the SCT, hearings take place in private, and judgments are confidential.

ADGM

All hearings before the ADGM courts, including the Small Claims Division are held in public. The ADGM court can direct that a hearing, or any part of it, be held in private for all the same reasons as the DIFC courts.

Subject to any relevant practice direction, a person who is not a party to proceedings can, unless the court orders otherwise, obtain from the court records a copy of a statement of case (but not any documents filed with or attached to the statement of case), and a judgment or order given or made in public (whether or not made at a hearing).

Are there any exceptions to confidentiality rules?

In certain circumstances, hearings will be held in private, and proceedings will be kept confidential, for example, with respect to claims relating to arbitration proceedings. When this happens, judgments and orders can still be made public but are anonymised.

All DIFC and ADGM court-annexed mediation proceedings are without prejudice and confidential.

Are there any pre-action considerations or processes that parties should take into account?

DIFC

There is no formal pre-action process or protocol applicable to the DIFC court proceedings.

A party can apply for relief (for example, urgent interim relief or pre-action disclosure) before commencing proceedings and such applications are made under Part 8 of the RDC, unless the court orders otherwise.

ADGM

The ADGM courts do not impose any formal pre-action protocols for parties litigating in the ADGM.

An application for an urgent interim remedy can be made prior to the filing of a claim on condition that an undertaking is given to the court to file such a claim within a period of 2 days after the application is filed, or within such period as the court directs.

Are there any consequences for non-compliance?

There are no pre-action protocols in the DIFC or ADGM courts, and therefore no consequences for non-compliance.

How are proceedings commenced in your jurisdiction?

DIFC

Claims are commenced by filing a claim form under either Part 7 or Part 8 of the RDC and paying the applicable court fee. The Part 7 claim form is the most commonly used claim form for claims that do not fall under the jurisdiction of the SCT. The Part 8 claim form is used where the claimant seeks a decision on a question that is unlikely to involve a substantial dispute of fact or where there is a rule or practice direction which permits or requires its use.

The filing fees for Part 7 and Part 8 claims are 5% of the value of the claim and/or property with a minimum of USD 5,000 and a maximum of USD 130,000. The fee for a non-monetary Part 8 claim is USD 5,000.

Particulars of claim can either be filed with the claim form or filed within 28 days of the defendant indicating an intention to defend the claim via an acknowledgment of service.

ADGM

Similarly, proceedings in the ADGM court are commenced by filing a claim form under either Part 5 or Rule 30 procedure (an expedited procedure where the claim involves a question which is unlikely to involve a substantial dispute of fact) of the ADGM CPR.

The court fee depends on the value of the claim. It is USD 5,000 for claims including unquantified damages claims, arbitration claims, and judicial review proceedings. There is a sliding scale for the calculation of the court fee, subject to a maximum of USD 70,000.

Particulars of claim can either be filed with the claim form or filed within 28 days of the defendant indicating an intention to defend the claim via an acknowledgment of service. The general rule is that particulars of claim must be filed with the claim form unless the court directs otherwise.

For domestic proceedings, how and by whom is service effected?

Service is in accordance with the relevant court rules and claimants will need to confirm service to the court, for example by filing a certificate of service, indicating the relevant rule and date of service.

Service of the claim form is governed by Part 9 of the RDC or Part 4 of the ADGM CPR, but it is usually undertaken by personal service, courier, or by means of electronic communication (e.g. by email).

For SCT proceedings, service is made by the Registry.

For foreign proceedings, what are the permitted methods of service in your jurisdiction?

Where the claim form is to be served in an Emirate, other than Dubai, it can be served by personal service, courier, or email. The claim form must be accompanied by a certified Arabic translation.

Given the international nature of the DIFC and the ADGM courts, claimants are not required to obtain the court’s permission to serve proceedings on defendants outside of the jurisdiction.

Is there a timetable parties must follow when submitting documents?

For CFI proceedings, service of the claim form must be by the claimant:

• Within 4 months where service is within the DIFC or Dubai;
• Or within 6 months where service is outside of the DIFC or Dubai.

The procedure and timeframe for service of ADGM CFI proceedings is the same as set out above in respect of DIFC court proceedings, under equivalent provisions of the ADGM Rules (which are set out in Part 5).

For SCT proceedings, where the claim is served within the jurisdiction of the ADGM or Abu Dhabi, the claim form must be served by the claimant within 14 days. If the claim form is served out of the jurisdiction of the ADGM or Abu Dhabi, it must be served within 21 days.

In both DIFC and ADGM court proceedings, a defendant must file and, at the same time, serve a copy of the acknowledgment of service on the claimant and every other party within 14 days of service of the claim form.

Can third parties be joined to an action? What are the practical steps needed to achieve this?

DIFC

Once the claim form has been served, the court’s permission is required to remove, add, or substitute a party. An application for permission to join or substitute a party can be made by an existing party or by a person who wishes to become a party. Such an application must be supported by evidence and served on all existing parties to the case.

ADGM

ADGM CPR Part 56 provides for the removal, addition, or substitution of parties. An application under this rule can be made by an existing party or by a person who wishes to become a party.

Are the courts able to hear two or more related/closely connected actions? If so, what are the practical steps needed to achieve this?

DIFC

The court can exercise its case management powers to consolidate proceedings under RDC 4.2(7). It would be necessary for the party who seeks consolidation to file an application under RDC 23.

While the DIFC courts have no mechanism for class actions, they can make a Group Litigation Order (GLO). To date, there have been no GLOs in the DIFC courts.

ADGM

Although there is no express rule in the ADGM CPR that permits consolidation, under ADGM CPR Part 8, the court can make any order, give any direction, or take any steps it considers appropriate for the purpose of managing the proceedings and furthering the overriding objective, including consolidating two or more related/connected actions.

The ADGM courts have no mechanism for class actions.

What are the rules for disclosure in your jurisdiction?

DIFC

It is important to highlight that the position in respect of document production is similar to the practice in international arbitration and is not the same as under the English Civil Procedure Rules. In the DIFC courts, for example, there is no obligation to disclose documents which are adverse to one’s own case.

After the initial stages described above, the parties are then given the opportunity to submit requests to produce documents to the other parties, in which they must precisely identify the documents they wish to request and explain (among other things) why they are relevant and material to the outcome of the case.

ADGM

Pursuant to ADGM CPR Part 13, the default position is similar in that parties must give to all other parties ‘standard disclosure’ of documents. In this context, standard disclosure means disclosing all the documents on which a party relies. This default position will vary depending on the type of proceedings, the agreement of the parties, or direction from the court.

After the initial stages described above, the parties are then given the opportunity to make an application for ‘specific disclosure’.

Are there any required processes e.g. eDisclosure/eDiscovery, predictive coding etc?

There are no required processes for disclosure in the DIFC and the ADGM courts such as those involving eDisclosure. However, parties are encouraged to engage in appropriate and reasonable procedures in each particular case and agree them at the time of the CMC.

What are the sanctions for non-compliance?

Proceedings for contempt of court can be brought against a person if they make, or cause, a false disclosure statement, without honest belief in its truth. Further sanctions may apply to a party that misuses any information which has been provided in the course of disclosure.

Parties can also be penalised through costs consequences.

Are there any exceptions to these rules (e.g. on the grounds of public interest, privilege or confidentiality etc)?

DIFC

The court can, at the request of a party or on its own initiative, exclude from production any document for various reasons including privilege. A person can apply, without notice, for an order permitting him to withhold production of a document on the ground that production would damage the public interest.

ADGM

There are not as many grounds expressly stated in the ADGM CPR for withholding disclosure. However, a party to whom a document has been disclosed has a right to inspect that document, except where the document or a copy of it is no longer in the control of the party who disclosed it, or the party disclosing the document has a right or a duty to withhold inspection of it, including (without limitation) privileged documents.

Can non/third parties be compelled to disclose documents?

In both the DIFC and ADGM courts, parties may make applications seeking orders for production of documents or inspection of property against a non-party.

Following an application, the court has power to compel a party, including a non-party, to disclose whether any documents are in its possession, and to produce said documents.

What are the rules on privilege in your jurisdiction?

DIFC

A party can withhold documents from disclosure to their opponents on grounds of “legal impediment or privilege” (RDC 28.28(2)). ‘Privilege’ is defined in the RDC as “the right of a party to refuse to disclose a document or to produce a document or to refuse to answer questions on the ground of some special interest recognised by law” (Schedule of Definitions to RDC Part 2).

This provides wide discretion to the DIFC courts to refer to an existing rule or create a new set of privilege rules applicable to disputes. However, it is perhaps to be expected that the DIFC courts will take into account types of privilege as developed in other common law jurisdictions.

ADGM

Similarly, in ADGM court proceedings, a party can withhold documents from disclosure on the basis that they are privileged. However, there is no definition of privilege under ADGM law or in the ADGM CPR. Due to the application of English law in the ADGM courts, it is likely that common law and English legal principles of privilege will be applicable in the ADGM courts.

When considering cross–border privilege, what is the test your courts apply to privilege? (i.e. will your jurisdiction determine privilege under its own system or that of the country from where the documents originated)?

As indicated above, there are no express tests that are stipulated under DIFC law or ADGM law when considering cross-border privilege. It is likely that the court will determine legal privilege under the legal or ethical rules applicable on a case-by-case basis.

What are the rules in relation to expert evidence?

DIFC

Parties can rely on expert evidence during proceedings. As in other common law jurisdictions, an expert’s primary duty is to the court and the court can restrict the expert’s evidence to what is required to resolve the proceedings.

Parties must collaboratively agree directions before instructing experts, usually at the time of the CMC. A judge can appoint an independent expert to assist it in making a decision on the matters put before any expert. The parties can comment upon the expert’s report/submissions. Expert evidence is given by way of a written report.

ADGM

In accordance with the ADGM CPR, it is the duty of experts to help the court on matters within their expertise. This duty overrides any obligation to the person from whom the respective expert has received instructions or by whom they are paid.

Expert evidence is given in a written report unless the court directs otherwise. Where a party has disclosed an expert’s report, any party can use it as evidence at the trial. A party who fails to disclose an expert’s report cannot use the report at the trial or call the expert to give evidence orally, unless the court gives permission.

What are the rules in relation to the calling of factual witnesses?

DIFC

The general rule is that any fact which needs to be proved by the evidence of witnesses must be proved at trial by oral evidence given in public; and at any other hearing, in writing. The court can control the evidence by giving directions as to the issues on which it requires evidence; the nature of the evidence which it requires to decide those issues; and the way in which the evidence is to be placed before it.

ADGM

The general rule is that any fact, which needs to be proved by the evidence of witnesses, must be proved at trial by their oral evidence given in public; and at any other hearing, in writing in the form of a witness statement under ADGM CPR Part 94 or an affidavit under Part 104, as applicable, subject to any provision to the contrary contained in the Rules, or elsewhere, and to any order of the court.

Is witness evidence submitted in written form or orally, or a combination of the two?

Generally, both. In relation to both witness evidence and expert evidence, any evidence to be relied on in court must be provided in written format. The court may require the attendance of any witness at a hearing and give evidence under oath on its own accord or upon request by one of the parties.

Are witnesses subject to cross-examination?

DIFC

Cross-examination must be approved by the court before the trial.

ADGM

Parties who wish to cross-examine a witness must apply to the court for permission to do so before the trial. If the court gives permission, but the person in question does not attend, their evidence cannot be used without the court’s permission.

Are experts appointed by your courts or by the parties?

Parties must obtain the court’s permission before instructing an expert. The court can direct that a single joint expert be instructed and will appoint the expert itself if the parties cannot agree to a joint expert.

Are the courts able to order interim remedies during proceedings, and if so, what remedies are available? (e.g. freezing injunctions, search orders or security for costs etc)

DIFC and ADGM

Provided that the DIFC or the ADGM courts have jurisdiction, interim remedies can be granted on application.

The remedies include injunctions, declarations, freezing orders, search orders, anti-suit injunctions, proprietary injunctions, interim payment orders, disclosure orders, and security for costs.

Can cases be dealt with summarily? For example, because there is no case to answer (e.g. summary judgment), or because a party has not taken a required step in the proceedings (e.g. default judgment for failing to file a defence)?

DIFC

A default judgment can be obtained where a defendant has failed to file an acknowledgement of service or a defence. The request for default judgment is usually determined on a without notice (ex parte) basis, but the defendant will have an opportunity to apply for the default judgment to be set aside, provided it makes the application promptly.

If the defendant does file an acknowledgement of service and/or a defence, the claimant can apply for immediate judgment which will be granted if the court is persuaded that the claim has no real prospects of succeeding, or the defendant has no real prospect of successfully defending the claim, and there is no other compelling reason why the case should continue to trial.

ADGM

As in the DIFC courts, a default judgment can be obtained where a defendant has failed to file an acknowledgement of service or a defence.

Separately, a summary judgment can be obtained if the court finds that the claimant has no real prospect of succeeding, or the defendant has no real prospect of successfully defending the claim, and there is no other compelling reason why the case should continue to trial.

Do the courts have powers to encourage settlement?

DIFC

Yes, there can be cost consequences for parties who fail to engage in settlement discussions and/or alternative dispute resolution at the appropriate time.

ADGM

The court also encourages the parties to consider settlement. A party can, when filing the completed directions questionnaire, make a written request for the proceedings to be stayed while the parties try to settle the case.

Are there any formalities required to effect a settlement?

DIFC

The RDC facilitates parties making settlement offers. A Part 32 offer is a formal offer from a party to pay a certain sum of money in settlement of the claim. A Part 32 offer can be made by a party prior to the commencement of the proceedings, or at any time during the proceedings until 21 days prior to the trial date. The Rules provide that if an offer is not accepted, and the party fails to obtain a more advantageous judgment, the party will be liable for the legal costs of the proceedings starting from the date on which the Part 32 offer was rejected, plus interest.

ADGM

There is an almost identical procedure under the ADGM CPR for settlement offers under Part 18.

Are the legal costs recoverable from the unsuccessful party?

DIFC

The DIFC courts have broad discretion when awarding costs, but the general rule is that costs should follow the event and that losing parties should pay the costs of the successful party. The courts follow the approach of the English courts and will award costs on a standard basis (where 60-70% of costs incurred are awarded), or on an indemnity basis (where 75-85% of costs incurred are awarded).

ADGM

The ADGM courts follow the same approach as the DIFC courts and will order losing parties to pay the successful party’s costs. The usual percentages are the same.

Can the courts award costs as a sanction against a defaulting party?

DIFC

Yes, the courts have broad powers to sanction defaulting parties with costs consequences. There are specific provisions for specific breaches of the RDC, in addition to general case management powers. Parties may be sanctioned for breaches of procedural rules as well.

ADGM

Under ADGM CPR 247, a party who has not complied with a mandatory order, an injunction, or a judgment or order for the specific performance of a contract, may be ordered to pay costs of the non-defaulting party.

What circumstances will the court take into account when awarding costs?

DIFC

Under RDC 38.8, in deciding what order (if any) to make about costs, the court must have regard to all the circumstances, including the conduct of all the parties; whether a party has succeeded on part of, or all of, their case, and any settlement offers made or dismissed.

ADGM

The ADGM courts take into account all circumstances when awarding costs, including the conduct of the parties.

What types of contingency or conditional fee arrangements between lawyers and their clients are available?

DIFC

Funding arrangements (including conditional fee arrangements (CFAs)) between lawyers and their clients are permitted under DIFC law, but there is an onus on the lawyer to ensure that the terms of the fee agreement are clear and transparent. CFAs should not be structured to permit lawyers to be rewarded by reference to the share of the proceeds on success. It is generally considered that damages-based agreements (DBAs) and contingency fee arrangements are not permitted in the DIFC.

ADGM

Contingency fee agreements, CFAs, and DBAs are permitted in the ADGM courts.

Can parties use third party funding to finance proceedings? If so, are there any restrictions on this? (e.g. only available for certain types of claims or forum)

DIFC

Yes, this is permitted in the DIFC courts. Third party funding in the DIFC is primarily governed by DIFC Court Practice Direction No. 2 of 2017, which confirms that third party funding is permitted in the context of DIFC court proceedings.

There is a prohibition on DIFC court practitioners receiving referral fees, or benefits of any kind, from a funder arising from the referral of a client to the funder, unless full disclosure is made in writing to the client. The DIFC courts have inherent jurisdiction to make costs orders against third parties, including funders, where appropriate.

ADGM

Yes, this is permitted in the ADGM courts. Third party funding is governed by the ADGM Litigation Funding Rules 2019.

A funded party is required to give notice in writing to every other party to the relevant dispute that it has entered into a funding agreement.

In what circumstances and on what grounds can an appeal be made? What is the procedure, timescale, and cost for appealing?

DIFC

The COA has exclusive jurisdiction over appeals filed against judgments/awards made by the CFI. Judgments of the DIFC COA are final and cannot be challenged by an appeal.

The general rule is that an appellant or respondent requires permission to appeal. Permission to appeal will only be given where the lower court or the appeal court considers that the appeal has a real prospect of success; or there is some other compelling reason why the appeal should be heard. Generally, the compelling reason will be that there is an issue of public importance to be determined. Applications for permission to appeal must be made to the lower court first and then to the appeal court (if the first application does not succeed).

ADGM

The COA has exclusive jurisdiction to hear and determine appeals from any judgment, decision, or order of the CFI. Judgments of the COA are final and may not be challenged by any method of appeal.

Permission to appeal can only be given where the lower court or the appeal court considers that the appeal would have a real prospect of success; or there is some other compelling reason why the appeal should be heard. Generally, the compelling reason will be that there is an issue of public importance to be determined.

What is the procedure, timescale, and cost for appealing?

DIFC

An appellant must file the appellant’s notice within 21 days after the date of the judgment. The appellant’s notice should be accompanied by a skeleton argument and other relevant documents (but these may be filed 21 days later).

In the event that permission to appeal is granted, within 21 days the respondent needs to file a respondent’s notice and skeleton argument. After the submissions have been filed, the DIFC COA will fix a hearing for the parties to be heard. The fee for filing an appeal is USD 5,000. Unless the DIFC COA orders otherwise, an appeal will not stay any decision of the lower court.

ADGM

An application for permission to appeal must be made to the CFI by application notice filed in the proceeding within 14 days of the day on which the disputed judgment or order was pronounced or made.

Where the ADGM CFI refuses the application for permission to appeal, a further application to the ADGM COA can be made within 28 days of the date of refusal.

The application for permission to appeal will be considered by three judges without a hearing. Once permission has been granted, a hearing to determine the appeal will be heard in open court. The fee for filing an application for permission to appeal is USD 2,000 and for the appeal is USD 3,000.

What is the procedure, timescale, and cost for enforcing local judgments?

DIFC

Enforcement of DIFC court judgments in the DIFC

Provided that the judgment is final and executory, and the time stipulated for payment on a money judgment has expired, a judgment creditor can enforce a judgment or order the payment of money in the DIFC by various methods, including charges over property.

A judgment creditor can also make an application to compel a judgment debtor (or an officer of the company) to attend court to disclose information on assets and the financial position of the judgment debtor. Execution methods can be used sequentially or simultaneously as appropriate.

Enforcement of DIFC court judgments in the onshore Dubai courts

Upon receipt of a DIFC judgment, it can be enforced through the Dubai courts if the judgment to be executed is final and executory. An application for enforcement in form P45/01 should request that the court issue an execution letter addressed to the Chief Justice of the Dubai courts.

Subsequently, an enforcement application must be issued in the Dubai court. The execution judge will apply the execution procedure and rules stipulated in the Federal Law No. 11 of 1992, as amended (UAE Civil Procedure Code). The execution judge will not reconsider the merits of the judgment.

The DIFC court judgment is converted into a judgment of the Dubai court, which can subsequently be enforced under any enforcement treaties to which the UAE is a party.

ADGM

Enforcement of ADGM court judgments in the ADGM

The procedure for enforcing an ADGM court judgment in the ADGM is similar to enforcing a DIFC court judgment in the DIFC. An application must be made, and various methods can be taken simultaneously or sequentially.

Enforcement of ADGM court judgments and awards in the onshore Abu Dhabi courts

The enforcement of ADGM judgments in the onshore Abu Dhabi courts is governed by the Memorandum of Understanding between the ADGM courts and the Abu Dhabi Judicial Department (MOU) allowing for the direct enforcement of ADGM court judgments and arbitral awards in onshore Abu Dhabi.

Under the MOU, reciprocal enforcement takes place without re-examination of the merits of the original judgment, which will allow qualifying judgments to pass unfettered between the courts.

The judgment to be enforced is first required to be affixed with an executory formula by the court that issued the judgment and translated as appropriate.

The judgment can subsequently be enforced under any enforcement treaties to which the UAE is a party.

What is the procedure, timescale, and cost for enforcing foreign judgments? Are there any reciprocal conventions that assist?

DIFC

The DIFC CFI has jurisdiction to ratify any judgment, order, or award of any recognised:

1. Foreign court;
2. Court of Dubai or the UAE;
3. Arbitral award;
4. Foreign arbitral award; or
5. Orders for the purposes of any subsequent application for enforcement in the courts of Dubai.

Where there is a treaty between the UAE and the enforcing jurisdiction, enforcement will be governed by the terms of that treaty. In the absence of a treaty for the enforcement of judgment or award, in order to be enforced in the DIFC courts:

1. The foreign judgment/award must be final and unappealable (res judicata);
2. The DIFC courts will not enforce certain types of foreign judgment/awards (i.e. judgments/awards ordering the payment of taxes, fines or penalties);
3. The foreign court must have had jurisdiction to determine the dispute;
4. The foreign judgment/award must not be contrary to public policy;
5. The subject proceedings must not have been conducted in a manner which the DIFC courts regard as contrary to the principles of natural justice.

A foreign judgment may not ordinarily be challenged on the merits, substantive grounds, or on the basis that it contains an error of fact or law.

ADGM

Where the UAE has entered into an applicable treaty with a foreign country for the mutual recognition and enforcement of judgments/awards, the courts will:

1. Comply with the terms of such treaty; and
2. Recognise and enforce judgments/awards rendered by that foreign country.

Are there any reciprocal conventions that assist?

The DIFC and the ADGM are not States or sovereign entities and they have no capacity to enter into international treaties.

Where the UAE has entered into an applicable treaty for the mutual enforcement of judgments, orders, or awards, the DIFC and the ADGM courts will comply with the terms of such treaty.

In addition, the DIFC and ADGM courts have signed memoranda of guidance, mainly on reciprocal enforcement, with many courts globally, especially in the common law world.

Does your jurisdiction recognise ADR (e.g. mediation etc.) and are there exceptions?

DIFC

Yes, the courts promote the use of ADR and there are no exceptions.

ADGM

Yes, the ADGM courts promote the use of ADR in appropriate circumstances. Further, parties can participate in court-annexed mediation, whereby the parties voluntarily refer the dispute to mediation or the ADGM court makes an order for mediation.

Do the courts have power to encourage ADR?

DIFC

Whilst the DIFC courts remain the appropriate forum for resolving most disputes, the view of the court is that the settlement of disputes by means of ADR can reduce costs and save the parties time in resolving their disputes.

Under RDC 27.3, the court has the power to order ADR (see also Registrar’s Direction No. 1 of 2018). Further, pursuant to RDC 27.4, legal representatives should consider the possibility of attempting to resolve the dispute or particular issues by alternative dispute resolution.

ADGM

The courts encourage the parties to consider ADR. A party can, when filing the completed directions questionnaire, make a written request for the proceedings to be stayed while the parties try to settle the case by ADR or other means. If the court otherwise considers that such a stay would be appropriate, it will direct that the proceedings, either in whole or in part, be stayed for such period as it considers appropriate.

What are the main ADR forums in your jurisdiction?

The main fora of ADR available to parties litigating in the DIFC courts is the Dubai International Arbitration Centre (DIAC) which offers mediation as well as arbitration services.

ADGM courts provide a court-annexed mediation service. Mediations can take place under the auspices of the ADGM Arbitration Centre with internationally accredited mediators from ADGM courts.

Are there sanctions for refusing to engage with ADR?

In exercising its discretion as to costs in the proceedings, the DIFC and ADGM courts will often take into account the parties’ conduct in relation to any attempt to resolve the dispute by mediation or through other methods of ADR.

What are the key developments in your jurisdiction (reforms, changes in legislation, growth areas, impact of technology etc)?

DIFC

The DIFC courts have taken a leading role in using technology, and during the pandemic, the courts became fully virtual. The DIFC courts are paperless: in November 2021, DIFC courts confirmed 100% of internal processes and customer-facing services were operating fully digitally.

In 2021, the Digital Economy Court was established to deal with claims relating to the digital economy including those involving digital assets, and various other related matters.

ADGM

The ADGM courts have taken significant strides to become a leading dispute resolution forum in the region, with emphasis on providing a user-friendly service, and accessible and robust case management. These courts have also adapted to the use of technology and provide virtual hearings, as appropriate. They are also taking a leading role in dealing with insolvency matters, with recent high-profile cases where companies based outside of the ADGM have been transferred into the ADGM to take advantage of a more sophisticated insolvency regime in the freezone.

How do your courts determine if they have jurisdiction?

Generally, the court has jurisdiction if one of the defendants is domiciled in the UAE, or if the contract or part of it has been performed in the UAE.

Can a defendant dispute jurisdiction and if so, how?

It is possible to challenge the jurisdiction of the court. The challenge should be submitted to the court before arguing the merits of the dispute. The defendant can request the court to dismiss the proceedings on the basis that the court doesn’t have jurisdiction to hear the case.

Are parties in litigation under any obligation to keep the proceedings confidential?

Court hearings are public. The Supreme Court judgments are published on a monthly basis, and available to lawyers and the public.

Can hearings be held in private and court documents restricted?

Normally, court hearings are held in public. However, there are certain exceptions, determined at the court’s discretion when requested by the parties. Judgments note whether hearings were held in public or private.

Documents can be photocopied in civil matters by the parties to the proceedings.

Are there any exceptions to confidentiality rules?

The court can decide to hold hearings in private in order to maintain the public order, observe the morality or the sanctity of the family

Are there any pre-action considerations or processes that parties should take into account?

Yes. In certain disputes, the claimant is required to file the proceedings before a special committee responsible for assisting the parties in reaching an amicable settlement before proceedings go to the competent court. In some cases, the claimant cannot commence proceedings before serving legal notice on the defendant.

Are there any consequences for non-compliance?

Proceedings can be dismissed for being premature or not following the prescribed procedures.

How are proceedings commenced in your jurisdiction?

By filing a statement of claim, along with supporting documents before the competent court (e.g. the fees cap before Dubai court is AED40,000).

For domestic proceedings, how and by whom is service effected?

In practice, service of local process on companies is usually via the courts, through their bailiffs, by delivery to the relevant company’s head office, addressed to its legal representative (manager/chairman), or to any of its shareholders. In the absence of any such person, service can be by delivery to an employee present at the head office.

Where the head office is closed or service is refused by the relevant person, service can be by “posting or publication”. However, Article 6(2) of the Civil Procedure Law No. 42 of 2022 also allows for service by “voice or video recorded calls, SMS, smart applications, e-mail or fax, any other means of modern technology or any other means agreed by the parties” in the first instance. That said, in practice, courts will usually try to serve through their bailiffs, and only if this fails can the claimant/applicant then seek permission for service by email/alternative means.

For foreign proceedings, what are the permitted methods of service in your jurisdiction?

The above methods govern service of local proceedings and do not apply to service of foreign proceedings in the UAE. UAE Law does not regulate the methods of serving foreign proceedings in the UAE. The question of service of foreign proceedings in the UAE has been the subject of much debate, and it continues to be. The traditional view has always been that service of foreign process in the UAE should be via diplomatic channels. In our view, proceeding via diplomatic channels is still the preferred method and will limit the risk of subsequent challenge for defective service.

Is there a timetable parties must follow when submitting documents?

In practice, there is no strict timetable when submitting documents except for when the court adjourns the hearing in order for the parties to submit documents, in which case the parties should comply with the court order and submit their documents in time.

However, there is a timetable for filing appeals, usually the time frame is 30 days from the following date in which the judgment was issued. However, the timeframe could vary depending on the court and the case.

Can third parties be joined to an action? What are the practical steps needed to achieve this?

Any third party with an interest can only join proceedings before the court of First Instance, on application to that court. The court will order the third party to pay the court fees before considering their application. The court will issue a decision in relation to the third party’s application upon rendering its substantive judgment.

The claimant and/or the defendant can also request the court to join a third party to the proceedings.

The court also has discretion to join any third party, even where the parties do not request the court to do so, as provided for by Articles (96, 97 and 98) of the Civil Procedures Law.

Are the courts able to hear two or more related/closely connected actions? If so, what are the practical steps needed to achieve this?

The court can hear counterclaims related to connected actions.

What are the rules for disclosure in your jurisdiction? Are there any required processes e.g. eDisclosure/eDiscovery, predictive coding etc?

Unlike the common law, there are no strict rules for disclosure in the UAE. However, litigants can file an application to the court requesting an order that the other party disclose documents under their possession.

Are there any required processes e.g. eDisclosure/eDiscovery, predictive coding etc?

eDisclosure is not widely used in the UAE because there is no formal disclosure requirement as a matter of UAE Law.

What are the sanctions for non-compliance?

If the court issued an order and the documents are then not disclosed, the court can impose fines on the non-compliant party, and it may affect the prospects of success in the case.

Are there any exceptions to these rules (e.g. on the grounds of public interest, privilege or confidentiality etc)?

Not applicable.

Can non/third parties be compelled to disclose documents?

Yes, if there is a court order. This on the basis of Article (36) of the UAE Evidence Law No 35 of 2022 which states that:

“The court or the supervising judge, as the case may be, may sua sponte or at the request of one of the litigants, and during the proceedings albeit before the court of appeal, decide the following: 1- To bring in a third party to require them to submit a document in their possession. 2- To request a document from a public authority or a copy thereof certified to be a true copy of the original if that is not possible for the litigant. The court or the supervising judge, as the case may be, may request the public authority to submit in writing or orally the information relevant to the case which it has in its possession, without prejudice to the provisions of the relevant legislation”..”

What are the rules on privilege in your jurisdiction?

There is no legal privilege as such in the UAE. There is no general disclosure obligation in the UAE. Also, there is no concept of without prejudice in the UAE.

When considering cross-border privilege, what is the test your courts apply to privilege (i.e. will your jurisdiction determine privilege under its own system or that of the country from where the documents originated)?

Not applicable.

What are the rules in relation to expert evidence?

The courts in the UAE rely heavily on the findings of the expert appointed by the court.

Are experts appointed by your courts or by the parties?

In theory, the parties can agree on the expert. However, in practice, the court appoints the expert from its list of preferred experts.

What are the rules in relation to the calling of factual witnesses?

It is possible for the court to call a factual witness.

Is witness evidence submitted in written form or orally, or a combination of the two?

Combination of the two.

Are witnesses subject to cross-examination?

Yes.

Are the courts able to order interim remedies during proceedings, and if so, what remedies are available? (e.g. freezing injunctions, search orders or security for costs etc)

The Urgent Matter Judge and the court can issue an attachment order, travel ban, or a search order etc.

Can cases be dealt with summarily? For example, because there is no case to answer (e.g. summary judgment), or because a party has not taken a required step in the proceedings (e.g. default judgment for failing to file a defence)?

It is possible to request the court to issue a default judgment. However, the concept of summarily deciding a case does not formally exist.

Do the courts have powers to encourage settlement?

The Centre for Amicable Resolution of Disputes in Dubai encourages parties to settle disputes.

The Centre was launched by the Department of Economic Development with the Dubai courts to encourage the parties to settle disputes before refereeing the proceedings to the competent court.

Also, it is possible for the parties to sign settlement agreements before the Centre.

Are there any formalities required on settlement?

Any settlement agreement should be concluded by the parties with the required capacity. It is advisable for settlement agreements to be notarised.

Are the legal costs recoverable from the unsuccessful party?

Legal costs are not recoverable in the UAE. The court fees are only recoverable for the successful party.

What types of contingency or conditional fee arrangements between lawyers and their clients are available?

Time spend basis, fixed fees, fee cap, and lump sum.

Can parties use third party funding to finance proceedings? If so, are there any restrictions on this (e.g. only available for certain types of claims or forum)?

This is not common practice in the UAE.

In what circumstances and on what grounds can an appeal be made?

The Court of First Instance judgment can be challenged before the Court of Appeal if the claim amount exceeds AED50,000. For appeals over AED500,000, appeals are to the Court of Cassation.

The grounds of appeal include where:

1. The judgment is contrary to a rule of public order or law; or
2. The court did not give the parties the full right to defend the matter; or
3. The court failed to give sufficient consideration to evidence submitted by the parties.

What is the procedure, timescale, and cost for appealing?

The Court of First Instance judgment is subject to appeal within 30 days from the day after the date of the judgment and 10 days for summary proceedings. The court fee for the appeal is approximately AED20,000.

The Court of Appeal judgment is subject to cassation within 30 days from the day following the date of the judgment. The court fee for the appeal is approximately AED5,500.

What is the procedure, timescale, and cost for enforcing local judgments?

It depends on the type of debtor’s assets.

Upon the request of the creditor, the Enforcement Court will freeze the assets of the debtor and in some cases issue a local arrest warrant against the debtor. The court fee is approximately AED5,000.

What is the procedure, timescale, and cost for enforcing foreign judgments?

Judgments and orders from a foreign country may be ordered to be executed in the UAE.

The application for execution is made via a petition and submitted to the court. The judge will issue their order within five days from the date of the application submission.

The execution judge’s order can be appealed in accordance with the rules of the UAE Civil Procedures Law.

The court fee for filing a recognition application is approximately AED500.

Are there any reciprocal conventions that assist?

Yes, the Riyadh Agreement for Judicial Cooperation, which includes 16 Arab countries and allows for full recognition of the judgments issued by the courts of the member states; Gulf Cooperation Council Convention for the Execution of Judgments; and the UAE entered into a number of bilateral judicial agreements on international judicial cooperation with several countries.

Does your jurisdiction recognise ADR (e.g. mediation etc.) and are there exceptions?

The UAE formally recognises arbitration only. There is no formal legislative recognition of mediation or any other form of ADR, but parties are free to agree to ADR if they wish.

Do the courts have power to encourage ADR?

No.

Are there sanctions for refusing to engage with ADR?

No. Unless there is a contractual obligation to engage in ADR.

What are the main ADR forums in your jurisdiction?

Not applicable.

What are the key developments in your jurisdiction (reforms, changes in legislation, growth areas, impact of technology etc)?

The Civil Procedures Law has recently been amended to speed up the litigation process and facilitate the enforcement of the foreign and arbitration awards.

How do your courts determine if they have jurisdiction?

Jurisdiction refers to the types of cases a court may hear. Federal courts handle matters involving federal law. Federal crimes and civil lawsuits against the government go to federal district court. Other cases that must be heard in federal court include:

• Those where the United States is a party
• Violations of the U.S. Constitution or federal laws
• Diversity actions (disputes between parties from different states and the claim is in excess of USD75,000)
• Bankruptcy, copyright, patent, and maritime law cases
• In some cases, both federal and state courts have jurisdiction. Parties may choose which court will hear their case.

State courts have general jurisdiction, meaning they have authority over all kinds of cases. Federal courts have limited jurisdiction and only hear matters involving federal questions and constitutional matters.

State courts have jurisdiction over state laws. Criminal cases and disputes between residents of the same state are heard in the state where the incident occurred. Contract cases are generally heard in state court.

Can a defendant dispute jurisdiction and if so, how?

A defendant can challenge the court’s subject matter jurisdiction and/or personal jurisdiction in a motion to dismiss (Fed. R. Civ. P. 12(b)(1)-(2)). A defendant cannot inadvertently or intentionally (e.g. by agreement) waive its right to object to the court’s lack of subject matter jurisdiction. Therefore, a party may challenge a defect in the court’s subject matter jurisdiction at any time, including on appeal. Further, if at any time a district court determines that it does not have subject matter jurisdiction, it must dismiss the suit, even without motion by the defendant (Fed. R. Civ. P. 12(h)(3)).

Are parties in litigation under any obligation to keep the proceedings confidential?

During discovery, federal courts can issue orders protecting a party or person required to disclose trade secret, commercial information, or other confidential matters for ‘good cause’ (Fed. R. Civ. P. 26(c)). ‘Good cause’ is not a difficult standard to meet. Typically, parties will enter into a confidentiality agreement with a simple statement that the parties anticipate the exchange of sensitive, proprietary information, or enabling persons to be identified, subject to applicable state and/or federal privacy statutes. They will then ask the court to enforce the agreement through a protective order.

Parties should, however, not presume that documents designated ‘confidential’ in discovery will be sealed when the document is attached to a motion or other court filing. Public access to court records is fundamental to the federal judicial system. As a result, a party seeking to seal a judicial record must overcome the strong presumption for access to court records by demonstrating ‘compelling reasons’ supported by specific factual findings. When considering a request to seal, the court must carefully balance the competing interests of the public’s right of access and those of the party seeking to keep the judicial records secret.

Generally, however, federal courts require that anyone filing a court document must redact certain personal information in the interest of privacy, including social security or taxpayer identification numbers, dates of birth, names of minor children, financial account information, and in criminal cases, home addresses.

Can hearings be held in private and court documents restricted?

A party may request that hearings are held in private (in camera) so the parties and the court can discuss issues related to confidentiality in private.

Are there any exceptions to confidentiality rules?

Generally, information which is in the public domain prior to the confidentiality order, or which becomes public thereafter, is not protected.

Are there any pre-action considerations or processes that parties should take into account?

Before filing suit, a claimant must conduct a reasonable inquiry into the claim. If the claimant fails to reasonably inquire into the validity of the claim and it is later found to be frivolous, the claimant, on motion by the defendant, may be liable for sanctions including a fine.

One important pre-action consideration is the deadline to file the claim. Counsel should consider the effect of any applicable statute of limitations, statute of repose, and tolling provisions.

In the U.S., these rules vary greatly between jurisdictions, for example:

Are there any consequences for non-compliance?

Compliance with the applicable statute of limitations requires both timely filing of the claim and service upon the defendant. Failure to execute both actions gives rise to a motion to dismiss by the defendant. This then places the burden of proof on the claimant to produce evidence that due diligence was exercised.

How are proceedings commenced in your jurisdiction?

A claimant sues by filing a complaint and paying the filing fee. This fee typically changes on an annual basis. The claimant then has 90 days from the date the complaint is filed to serve a defendant in the U.S., or to show good cause as to why it cannot (Fed. R. Civ. P. 4(m)). If good cause is not shown, the claimant risks the court dismissing the suit. For service abroad, the courts are split on a precise deadline, but generally agree that the claimant must demonstrate reasonable diligence in attempting service in a foreign country.

For domestic proceedings, how and by whom is service effected?

Service under federal rules depends on the status of the defendant (e.g., person or entity) and whether the defendant is domestic or foreign (Fed. R. Civ. P. 4(e)-(j)). A claimant can serve on the domestic defendant in a variety of specified ways, including in person, by mail, by leaving the process at the defendant’s dwelling with an adult, by publication, or by long-arm statute. Rules differ regarding service on the U.S. government and its agencies, corporations, officers, or employees.

For foreign proceedings, what are the permitted methods of service in your jurisdiction?

For service on foreign defendants, federal courts favour the use of service according to the 1965 Hague Convention or any other applicable treaty (Fed. R. Civ. P. 4(f)). If no internationally agreed means of service is available, or if the treaty allows but does not specify other means of service, Rule 4 sets out alternative methods of service.

The Federal Rules of Civil Procedure also permit the claimant to seek a waiver of service from the defendant (Fed. R. Civ. P. 4(d)), which if agreed, gives the defendant additional time to respond. If the waiver request is held to be a correct request and the defendant refuses, the court can impose the cost of service on the defendant.

Is there a timetable parties must follow when submitting documents?

Once served, the defendant generally has 21 days in which to file its answer or responsive pleadings.

Can third parties be joined to an action? What are the practical steps needed to achieve this?

A defendant can join third parties by applying to the court to add any party it believes should be before the court (Fed. R. Civ. P. 14). Typically, the court sets the joinder deadline in its scheduling order. A defendant may seek to bring in new or third parties after expiration of the joinder deadline but must seek permission from the court to do so.

Are the courts able to hear two or more related/closely connected actions? If so, what are the practical steps needed to achieve this?

Courts have broad discretion to consolidate claims when they involve common questions of law and fact, when the parties would not be prejudiced by consolidation, and when consolidation would serve the interests of judicial economy (Fed. R. Civ. P. 42(a)). Courts often require parties at the beginning of a case to disclose the existence of other lawsuits involving the same or similar facts or parties. Further, any party may apply to seek consolidation.

What are the rules for disclosure in your jurisdiction?

The Federal Rules of Civil Procedure mandate initial disclosures required by every party (Fed. R. Civ. P. 26(a)(1)). These rules specify mandatory disclosure after a defendant files its answer but before receiving a formal discovery request. In addition, the parties typically have to meet and discuss the case, exchange electronic data, and provide suggested case management deadlines in advance of the first scheduling conference before the judge.

Are there any required processes e.g. eDisclosure/eDiscovery, predictive coding etc?

Following the initial scheduling conference, the parties will exchange written discovery requests. Rule 26 sets out what documents and information are discoverable:

“Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable (Fed. R. Civ. P. 26(b)(1)).”

eDiscovery is subsumed under Rule 26 noted above and mandates that the parties maintain and search for relevant information that is electronically saved.

What are the sanctions for non-compliance?

The sanctions, if any, are entirely left up to the discretion of the district court judge. There are no set sanctions for discovery abuse.

Are there any exceptions to these rules (e.g. on the grounds of public interest, privilege or confidentiality etc)?

Parties can rely on certain categories of privilege when resisting discovery. A party can also object to the production, claiming that the documents sought are not relevant to any issue, or that the production of the documents is unduly burdensome.

Can non/third parties be compelled to disclose documents?

Parties can subpoena non-parties to produce documents and information relevant to the lawsuit. The non-parties, to some extent, can lodge the same objections as the parties. In addition, non-parties can seek reimbursement for the costs incurred in finding and producing the requested documents.

What are the rules on privilege in your jurisdiction?

Information and documents are not discoverable if they are privileged. Federal privilege is generally covered by common law principles. They range from lawyer-client privilege and work product protection to spousal privilege and settlement negotiations privilege.

Lawyer-client privilege is generally inviolate and will rarely, if ever, be overruled. It protects from discovery certain confidential communications made to obtain legal advice between the lawyer, the client, and their representatives. The client maintains the privilege, not the lawyer, and it continues for as long as the client asserts.

A lawyer’s work product is also protected from discovery. Although not technically a privilege, rather a qualified immunity, it protects from discovery work product prepared in anticipation of litigation by or for a party or its representative. Certain non-core work product can rarely be protected by the work product protection, even if the party can unequivocally state it anticipated litigation and retained counsel before that litigation. The work product protection typically will not apply to photographs of an accident scene, witness statements, or other documents and information that cannot be reasonably obtained by the opposing party by any other means.

When considering cross– border privilege, what is the test your courts apply to privilege? (i.e. will your jurisdiction determine privilege under its own system or that of the country from where the documents originated)?

Typically, a federal court will apply the rules of discovery and privilege inherent in the federal system rather than the rules of another country. In diversity cases, however, the federal court will apply state-court privilege law.

What are the rules in relation to expert evidence?

Parties must designate expert witnesses and provide detailed written statements of the testimony the experts intend to offer (Fed. R. Civ. P. 26(a)(2)).

Federal district judges act as ‘gatekeepers’ for all expert testimony by evaluating whether it satisfies the requirements of Rule 702 of the Federal Rules of Evidence. An expert’s opinion is admissible when: (i) the expert’s scientific, technical, or other specialised knowledge will help the fact finder in understanding the evidence or deciding a fact issue; (ii) the testimony is based on sufficient facts or data; (iii) the testimony is the product of reliable principles and methods; and (iv) the expert reliably applied those principles and methods to the facts.

Are experts appointed by your courts or by the parties?

The parties retain and compensate their own expert witnesses.

What are the rules in relation to the calling of factual witnesses?

Federal courts require parties to make certain mandatory disclosures to accelerate the exchange of basic information about the case. At the beginning of a case, parties make initial disclosures about potential witnesses, documentary evidence, damages, and insurance (Fed. R. Civ. P. 26(a)(1)). Before trial, the parties make final pre-trial disclosures identifying the evidence and witnesses they intend to offer (Fed. R. Civ. P. 26(a)(3)).

At trial, parties can offer the testimony of factual witnesses identified in their initial and final pre-trial disclosures. The court should generally admit all relevant evidence unless some rule or principle requires its exclusion (Fed. R. Evid. 402). Evidence is relevant if it makes a fact of consequence more or less probable than it would be without the evidence (Fed. R. Evid. 401).

Is witness evidence submitted in written form or orally, or a combination of the two?

In limited circumstances, a party can introduce the deposition testimony of a witness and may also introduce a deposition taken earlier in the same case when the witness is unavailable to testify live e.g. the witness died after the deposition, the witness is outside the subpoena power of the court, or the witness cannot attend because of age, illness, infirmity, or imprisonment (Fed. R. Evid. 32). A party can also use a deposition to contradict or impeach the testimony of the deponent when they testify at trial. There are other exceptions prescribed by the rules, including exceptional circumstances as upheld by the court.

Are witnesses subject to cross-examination?

At trial, and in pre-trial depositions, fact and expert witnesses give oral in person testimony. All witnesses are subject to cross-examination by the opposing counsel. A judge also has discretion under Federal Rule of Evidence 611(a) to question witnesses and ask questions submitted by jurors.

Are the courts able to order interim remedies during proceedings, and if so, what remedies are available? (e.g. freezing injunctions, search orders or security for costs etc.)

Federal courts can order interim remedies before trial, including injunctions (Fed. R. Civ. P. 65). Most injunctions are prohibitory, barring a party from continuing certain conduct; others are mandatory, requiring a party to act affirmatively. Courts frequently grant pre-trial injunctive relief in matters involving alleged misappropriation of proprietary information and/or trade secrets.

A federal court can issue a temporary restraining order (TRO) if the claimant demonstrates it will suffer immediate and irreparable damage, loss, or injury. The claimant must file a verified complaint (made under oath) or a supporting affidavit of a person with knowledge of facts relevant to the claim. The court can issue a TRO before the adverse party receives actual notice of the claim, or it responds. The TRO cannot exceed 14 days, unless the claimant provides substantive proof that the restraint should be for a longer period.

Upon request, the court can subsequently issue a preliminary injunction for longer periods following a hearing if the claimant can establish a need for injunctive relief over 14 days, or if the adverse party agrees to the injunction.

Can cases be dealt with summarily? For example, because there is no case to answer (e.g. summary judgment), or because a party has not taken a required step in the proceedings (e.g. default judgment for failing to file a defence)?

Courts can dispose of some cases without the need of a trial. At the outset, the court can enter a final judgment when a party fails to answer the lawsuit or defend the claim (Fed. R. Civ. P. 55). Courts do not generally favour default judgments and grant them sparingly, preferring instead to resolve disputes on the merits.

Later in the life of the case, a court can also grant a final or partial summary judgment (Fed. R. Civ. P. 56). Summary judgment procedure isolates and disposes of factually unsupported claims or defences when there is no genuine issue of material fact.

Other types of dispositive motions include the Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted, the Rule 12(c) motion for judgment on the pleadings, the Rule 50(a) motion for judgment as a matter of law made during trial, and a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction.

Do the courts have powers to encourage settlement?

Although courts cannot force parties to settle, they often encourage the parties to submit to ADR. Judges often mandate that parties attend mediation before proceeding to trial.

Are there any formalities required to effect a settlement?

Once the parties have resolved their disputes, a claimant dismisses the action by filing a stipulation of dismissal signed by all parties (Fed. R. Civ. P. 41(a)(1)).

Are the legal costs recoverable from the unsuccessful party?

In the U.S., federal and state courts typically follow the ‘American Rule’: each litigant pays its own lawyers’ fees unless a statute or contract provides otherwise.

What types of contingency or conditional fee arrangements between lawyers and their clients are available?

In lawsuits seeking money damages, claimant’s lawyers can offer contingency fee contracts rather than charging an hourly fee. The claimant pays the contingency fee, often one-third of the recovery, only if the case is successful. Some lawyers offer a hybrid contingency fee contract with a discounted hourly billing rate, along with the promise of a bonus if there is a successful outcome.

Can parties use third party funding to finance proceedings? If so, are there any restrictions on this? (e.g. only available for certain types of claims or forum)

Litigants in the federal court system can use third party litigation funding companies that invest in lawsuits in exchange for a percentage of any settlement or judgment. Critics believe that the practice increases the number of meritless claims, takes control out of the hands of the parties, and makes settling lawsuits more difficult and expensive. The practice generally operates secretly, as the Federal Rules of Civil Procedure do not require disclosure of such arrangements. Some districts, however, like the Southern District of Texas, require parties to disclose all entities financially interested in the outcome. The authorization, and use, of litigation funding is also impacted by each state’s bar association and regulation.

The rules dealing with third party funding vary widely from state to state.

In what circumstances and on what grounds can an appeal be made?

Ordinarily, a party can appeal only after the court renders a final judgment. A final judgment is the last decision from a court that resolves all issues and settles the parties’ rights regarding those issues. For example, after trial, the court will issue a final judgment. Similarly, a court will give a final judgment if it grants summary judgment.

Under limited circumstances, a party can file an interlocutory appeal while other aspects of the district court case are still proceeding. Certain statutes allow for an interlocutory appeal as a matter of right, including appeals from an order denying arbitration (9 United States Code (U.S.C.) § 16), an order granting, modifying, or denying a preliminary injunction (28 U.S.C. § 1292(a)), and an order appointing a receiver (28 U.S.C. § 1292(a)).

Under the collateral order doctrine, an appellate court will treat a pre-judgment order as final if it conclusively resolves an important issue independent of the merits, and the order is effectively unreviewable on appeal due to the irreversible effects of the decision. While few decisions qualify, most courts hold that orders denying sovereign or qualified immunity are reviewable under the collateral order doctrine, as is discovery imposed on a dis-interested third party. Other examples include pre-trial decisions compelling medication or a psychological examination of a defendant.

A discretionary interlocutory appeal may arise under 28 U.S.C. 1292(b) (an interlocutory order that features a controlling question of law where there is substantial ground for a difference of opinion) and where an immediate appeal may materially advance the ultimate termination of the litigation. To do so, the district court must first certify the legal issue for appeal and the appellate court has great discretion whether to accept it. Appellate courts strictly construe this authority for interlocutory review, and they usually look for: federal (not state) issues of law, legal questions effectively dispositive, and a split of authorities.

What is the procedure, timescale, and cost for appealing?

For an ordinary civil appeal at the conclusion of a case, a party must file a notice of appeal within 30 days after the entry of final judgment or order (Fed. Rule App. Pro. 4). Deadlines for interlocutory appeals often depend on the order appealed and whether there is a specific statute authorising the appeal.

It is critical that a party file its notice of appeal in a timely manner; filing late could result in waiver. The notice of appeal must identify the appellant, the appellate issues, and the court to which the appeal is sought. A party files the notice of appeal with the district court, after which the district court passes jurisdiction to the appellate court.

Parties often file post-judgment motions after trial, including motions for judgment as a matter of law, requests for a new trial, remittitur, costs, and applications for legal fees. These filings may extend the deadline to seek an appeal (Fed. R. Civ. Pr. 50(b); 52(b) 59 or 60). Litigants should proceed with caution, however, as filing successive post-trial motions may not extend the time to appeal. The party should carefully review applicable appellate decisions when considering the effect of successive post-trial motions on the deadline for filing a notice of appeal.

An appealing party must pay a filing fee when it files its notice of appeal. The district court sends the record to the court of appeals and the court of appeals’ clerk issues a briefing schedule. While many cases are decided on written briefs, the court of appeals may grant a request for oral argument.

The time it takes to obtain a decision will vary by circuit. It is not uncommon for a decision to take up to 18 months. The litigation costs vary greatly.

After receiving the decision of the court of appeals, a party can petition the U.S. Supreme Court to hear its further appeal. The Supreme Court receives approximately 7,000 to 8,000 petitions for a writ of certiorari each year; it grants the petitions in only about 80 cases. The Supreme Court may consider granting certiorari in these instances:

• Where a federal court of appeals has entered a decision in conflict with the decision of another federal court of appeals on the same important matter; has decided an important federal question so it conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for exercising the Supreme Court’s supervisory power;
• Where a state court of last resort has decided an important federal question, so it conflicts with the decision of another state court of last resort or of a federal court of appeals; or
• Where a state court or a federal court of appeals has decided an important question of federal law that has not been, but should be, settled by the Supreme Court, or has decided an important federal question so it conflicts with decisions of the Supreme Court.

What is the procedure, timescale, and cost for enforcing local judgments?

All states in the U.S., save California and Vermont, have adopted some version of the Uniform Enforcement of Foreign Judgments Act (UEFJA), which permits a foreign judgment obtained in one state to be enforced in another state. The party seeking to enforce files the judgment with a clerk of court in the second state under the procedures in the UEFJA. In this context, a foreign judgment could mean a federal court judgment or the judgment of the courts of another state.

Once a judgment is transferred under the UEFJA, it is entitled to full faith and credit, that is, the judgment must be given the same recognition and effect as a judgment of the second state. Full faith and credit may be withheld in only certain circumstances, including lack of jurisdiction by the court (where originally awarded or transferred), or lack of due process.

The deadline to enforce a judgment depends on the law of the state in which the party seeks enforcement. Each state will have its own statute of limitations governing enforcement. For example, in New York, the deadline is 20 years, while in Texas, it is 10 years.

Costs to enforce a judgment vary and depend greatly on whether the target attempts to hide assets. The most significant costs are legal fees, but certain law firms that specialise in recovery actions will proceed on a contingency basis. The costs of the recovery action may also be assessed against the target, depending on state law.

Are there any reciprocal conventions that assist?

The U.S. is not a signatory to any convention or treaty governing the recognition or enforcement of non-U.S. court judgments (i.e. foreign country judgments). Instead, recognition and enforcement of foreign country judgments is governed by individual state laws, even when the case is filed in federal court.

What is the procedure, timescale, and cost for enforcing foreign judgments?

Most states have adopted the Uniform Foreign Money Judgments Recognition Act (UFMJRA). The UFMJRA provides a standard framework for courts to recognise and enforce foreign country money judgments. States that have not adopted the UFMJRA generally recognise foreign country judgments under common law and principles of comity. Similarly, non-money judgments ordering or prohibiting a specific act may also be recognised under state laws, with similar results.

In states that have adopted the UFMJRA, a foreign country money judgment will be recognised only if the judgment is: (i) final; (ii) conclusive; and (iii) enforceable where rendered. In addition, a U.S. court cannot recognise the foreign country judgment if the foreign court: (i) was not impartial; (ii) did not offer due process of law; or (iii) did not have personal jurisdiction over the defendant.

Besides these mandatory requirements, courts in most states may deny recognition for other reasons. For example, the law in most states give courts discretion to deny recognition of a foreign country judgment if: (i) the judgment was obtained by fraud; (ii) there was insufficient notice of the foreign proceedings; (iii) the judgment goes against the state’s public policy; or (iv) the foreign judgment runs contrary to U.S. constitutional principles.

New York has codified its own version of the UFMJRA, the Recognition of Foreign Country Money Judgments (C.P.L.R. §§ 5301-5309). Under this act, most foreign court money judgments can be enforced in New York.

An action to enforce a final foreign judgment is an original proceeding and can be filed in state or federal court. State courts are generally more familiar with enforcing judgments, which is where the bulk of enforcement actions are filed. A judgment enforcement action is typically resolved via a motion for summary judgment and will generally not require a trial on the merits. Depending on the jurisdiction, the timescale for an enforcement action may vary.

Does your jurisdiction recognise ADR (e.g. mediation etc.) and are there exceptions?

ADR, particularly mediation, is common in both civil court and arbitration proceedings.

Mediation is a confidential proceeding designed to foster settlement aided by a neutral. The Federal Rules of Evidence do not recognise a mediation privilege; rather, the mediation’s confidentiality is protected by: (i) the parties’ written mediation agreement; (ii) Federal Rule of Evidence 408, which renders settlement discussions inadmissible; and (iii) the rules of professional conduct.

Parties to commercial contracts often insert ADR provisions to help resolve future disputes. For example, as a precursor to filing a claim, a contract may require a meeting between senior supervisory personnel before commencing non-binding arbitration.

Do the courts have power to encourage ADR?

Federal courts often encourage mediation. Although not universal, many federal district judges will insert a mediation deadline into the initial scheduling order. This means the parties must attend mediation and make a good faith effort to resolve the dispute before proceeding to trial. In some judicial districts, federal magistrate judges will conduct a settlement conference similar to a mediation. The parties are also free to engage in private mediation even without a court order.

District courts have significant inherent power to police the conduct of the parties, including sanctions if the court finds that a party acted in bad faith.

Are there sanctions for refusing to engage with ADR?

Court-ordered mediation does not require settlement to be achieved, but the court may impose sanctions if the parties did not participate in mediation in good faith (28 U.S.C. § 1927). This includes failure to attend mediation and breaching the confidentiality of the mediation. Sanctions might entail the cost of the mediation and the opposing party’s legal fees.

What are the main ADR forums in your jurisdiction?

ADR is a major litigation support industry in the U.S.; there is a large variety of ADR providers. Often, retired judges and lawyers offer their services as mediators and arbitrators. In addition, most arbitration providers, such as the American Arbitration Association (AAA), JAMS, formerly known as Judicial Arbitration and Mediation Services Inc., and the International Chamber of Commerce (ICC) provide ADR services. Parties often look to an ADR provider with an applicable industry/sector specific knowledge.

What are the key developments in your jurisdiction (reforms, changes in legislation, growth areas, impact of technology etc.)

U.S Supreme Court

Several amendments to the Federal Rules of Appellate Procedure (FRAP), Federal Rules of Civil Procedure (FRCP), and Federal Rules of Evidence (FRE) became effective on December 1, 2023.

The most important amendments significantly impact aspects of federal civil practice by, among other things:

Clarifying that the party proffering an expert must show by a preponderance of the evidence that the expert and their opinion meet FRE 702’s qualification, reliability, and relevance standards.

Requiring courts (not juries) to determine that an expert’s opinion reflects a reliable application of the expert’s methodology to the facts of the case.

Amended FRE 702 seeks to address rulings about the standard of admissibility where courts have either applied too liberal of a standard or failed to identify the standard they were applying. In addition, the amendments make clear that challenges to an expert’s methodology or the basis of an expert’s opinion are questions of admissibility and not weight. Courts must assess issues of relevance and reliability and not delegate them to the jury. (FRE 702; FRE 702 advisory committee’s note to 2023 amendment.)