The Taking of Evidence Abroad in Civil and Commercial Matters Via Electronic Means: Perspectives from Comparative and International Law

Abstract

            Technological developments have been transforming case management systems to promote efficiency and speedy trial. The COVID-19 pandemic situation has further accelerated the use of technology in courtrooms to respond to its outbreak. The taking of evidence abroad in civil and commercial matters via electronic means can substantially improve the efficiency of the court system in case handling. Also, it reduces costs and time for parties in the litigation, especially when a witness resides abroad and cannot physically appear before the court due to distance and other obstacles such as a pandemic. Although the taking of evidence abroad via electronic means is permitted under the Thai Civil Procedure Code and other relevant regulations, international law issues should also be taken into account. Given that witness examination proceedings are partially taken place abroad outside the court’s territory, it can be seen as an infringement of national sovereignty of other states. Besides, it may constitute a violation of domestic laws of the state, which is a place of residence of a witness. Some countries have enacted blocking statutes prohibiting a foreign authority from conducting a hearing of witnesses by video conference or other electronic means without their consent. The infringement of sovereignty or other states’ laws may disturb diplomatic relations as well as the recognition and enforcement of Thai judgments in foreign countries. Moreover, there are concerns over the due process requirement. Stated clearly, taking evidence via electronic means may affect both the quality of the witness examination process and the evaluation of evidence obtained through such means. Therefore, the use of electronic technology cannot always substitute for an in-person hearing.

This article proposes a legal framework for Thai courts to determine the conditions and requirements for using video-link and other electronic means in the taking of evidence abroad in civil and commercial matters. First, in addition to the requirements under the Thai Civil Procedure Code, Thai courts should consider whether international law and domestic law of the country, which is a witness's place of residence, allow them to use electronic means to examine witnesses from Thailand. Second, to investigate the appropriateness of such a method, Thai courts should consider the efficiency of the trial, the convenience and costs for the parties, the difficulties of a witness to be present in Thailand, and the characteristics and significance of a witness. Lastly, Thai courts should prepare appropriate safeguards to ensure that they can conduct a remote hearing effectively in a similar manner as an in-person hearing and that any party to the proceedings would not be unfairly prejudiced.