The revival of witness evidence before the international chambers of the Paris Commercial Court and the Paris Court of Appeal
Jacques BOUYSSOU et Adrien BOYER
Whether used to proving disputed facts, explaining documents, providing background information or technical explanations, witness evidence plays a key role in establishing the truth, particularly in international commercial disputes.
In continental law countries, particularly France, witness evidence is still rarely used, despite the fact that it is permitted by French law. Litigants are rather hesitant to request it and judges are often reluctant to grant it. This assessment contrasts with arbitration proceedings, where litigants are used to calling experts and witnesses to support their arguments.
France has become more receptive to witness evidence since the creation of an international chamber at the Paris Court of Appeal to complement the existing chamber at the Paris Commercial Court. Accordingly, the practical guide to proceedings before the international commercial chambers of the Paris Commercial Court and the Paris Court of Appeal states that “the rules on judicial submission of evidence are strengthened by the possibility for the parties to be heard and to request examination of witnesses and oral arguments”.
Witness evidence before the French courts offers numerous guarantees compared to its use before an arbitral tribunal. Firstly, witnesses must take an oath. If they lie, they are liable to pay a fine up to 75,000 euros and to imprisonment. Secondly, and most importantly, witness evidence is administered under the supervision of the judge, who ensures that there are no abuses of questioning aimed at discrediting and exhausting witnesses, while directing the proceedings in the direction most conducive to establishing the truth. Finally, a decision based on evidence that has been judicially declared false may be subject to an application to reopen civil proceedings, which does not seem to be the case for decisions under French law.