Witness Examination Procedures in Cross-Border Commercial Litigation: Hearing and Evidence Practices Businesses Should Understand

In cross-border commercial disputes, businesses often focus on contracts, purchase orders, invoices, remittance records, customs documents, emails, or conversations conducted through messaging software. In many cases, however, witness statements may also become important information that helps the court clarify the facts.

For example, whether the parties orally changed payment terms, whether goods completed acceptance, whether technical documents were delivered, whether the scope of a license was renegotiated, or whether an agent acknowledged a debt may not always be fully ascertainable from written documents. Personnel who actually participated in the transaction may still need to appear in court and provide explanations.

These hearing procedures are commonly described as "cross-examination." In Taiwanese civil litigation, however, the more precise terms are "examination of witnesses" and "questioning by the parties." The court conducts the examination of the witness, while the parties may request that the presiding judge ask the witness questions or may ask questions directly after informing the presiding judge.

The Core Purpose of Witness Examination Is to Clarify the Facts to Be Proved

The purpose of civil litigation is not for a witness simply to express support for one party but to help the court clarify the "facts to be proved." Before requesting that a witness be summoned, a business should first determine what actually needs to be proved in the case and whether the witness can testify regarding matters personally experienced or observed.

For example, in a cross-border payment dispute, the facts to be proved may include "whether the goods were delivered," "whether the buyer completed acceptance," "whether the payment deadline was extended," or "whether the other party acknowledged the debt." In a technology cooperation dispute, the facts to be proved may include "whether technical information was delivered," "whether improvements were jointly completed by the parties," or "whether the scope of cooperation was changed."

A witness who merely heard information from another person or can explain only the internal position of the company is generally less helpful than a witness who can directly describe the transaction, the reasons why documents were created, or the actual content of communications. Witness selection should therefore focus on whether the individual had actual contact with the facts to be proved.

The Court Will Confirm the Identity of the Witness and the Credibility of the Testimony

Under the Code of Civil Procedure, the presiding judge must first ask a witness for the witness's name, age, occupation, and domicile or residence. When necessary, the court may also ask about the relationship between the witness and the parties and other matters concerning the credibility of the testimony.

For businesses, this means that the relationship between the witness and the company or transaction counterparty may affect the court's evaluation of the testimony. For example, if the witness is a current employee, former employee, employee of an affiliated enterprise, agent, business partner, or a person with a direct interest in the outcome of the litigation, the opposing party may challenge the credibility of the testimony during the hearing.

However, a relationship between the witness and the business does not necessarily make the testimony inadmissible. In practice, the court will still comprehensively assess whether the witness actually participated in the transaction, whether the testimony is internally consistent, whether it corresponds with documentary evidence, and whether other objective information provides corroboration.

Questioning in Civil Litigation Is Not Unrestricted

The current Code of Civil Procedure allows a party to request that the presiding judge ask a witness necessary questions or to ask questions directly after informing the presiding judge. Questions may also concern the credibility of the testimony.

However, questioning remains subject to the court's control of the proceedings. If a question is unrelated to the facts to be proved, repetitive, leading, insulting to the witness, or otherwise improper, the presiding judge may restrict or prohibit it upon application or on the court's own initiative. If a party objects to the restriction or prohibition of a question, the court must issue a ruling on the objection.

When preparing questions, businesses and their counsel should therefore avoid asking only conclusory questions such as "Did the other party maliciously delay payment?" or "Did we fully complete our contractual performance?" Such questions are generally less effective than specific questions about the factual sequence of events. Better questions focus on time, documents, transaction processes, and actual communications, such as when the goods were shipped, who signed for them, when an objection was raised, when payment was promised, and whether the payment terms were documented in writing or in messages.

Interpreters and Remote Hearings Should Be Arranged in Advance for Foreign Witnesses and Overseas Personnel

Cross-border commercial litigation frequently involves foreign responsible persons, overseas sales personnel, foreign procurement contacts, offshore agents, or foreign technical personnel. If a witness does not understand Mandarin, the Court Organization Act requires interpretation by an interpreter. Businesses should therefore inform the court in advance of the language used by the witness and confirm whether an interpreter must be arranged.

If a witness is located overseas or in another city or county and cannot appear personally, the current Code of Civil Procedure also permits the witness to be examined at the witness's location when the witness cannot appear or when other necessary circumstances exist. If audiovisual transmission technology is available between the witness's location and the court and the court considers its use appropriate, the witness may also be examined through that technology.

However, a request for remote examination is not automatically granted. The court will still consider the condition of the communication equipment, whether necessary assistance can be provided at the witness's location, whether the witness can testify freely, and whether the arrangement may affect the discovery of truth or the fairness of the proceedings. Businesses seeking to arrange remote testimony by an overseas witness should therefore confirm in advance the willingness of the witness, available equipment at the location, methods of identity verification, interpretation requirements, and availability for the scheduled hearing.

Witness Oaths and Written Statements Must Still Comply with Statutory Procedures

Witnesses are generally required to take an oath in accordance with the law and state that they will testify truthfully. The written oath also states that the witness is willing to be punished for perjury if false testimony is given. The purpose of the oath is to remind the witness of the legal responsibility associated with the testimony and reinforce the requirement of truthfulness.

Under specific circumstances, the court may also order both parties and the witness to prepare a written statement before a notary or, with the consent of both parties, permit the witness to provide a written statement outside the court. However, even if a written statement has been prepared, the court may still notify the witness to appear and testify if supplementary explanations are required or if a party requests that necessary questions be put to the witness.

A written witness statement therefore cannot simply be treated as a substitute that eliminates the need to appear in court. If the opposing party disputes its content or the court considers clarification necessary, the witness may still need to appear in court or undergo examination through remote technology.

Observation from an Actual Judgment: Testimony Must Be Evaluated Together with All Other Evidence

Although Supreme Court Civil Judgment No. 2999, Tai-Shang, 2021, was not a cross-border commercial case, its views regarding witness testimony and the evaluation of evidence remain relevant to businesses handling commercial litigation.

The case concerned repayment of a loan. The Supreme Court stated that although the probative value of testimony is determined by the trial court through its free evaluation of evidence, the court must still comprehensively assess the relationship between the witness and the parties, the circumstances through which the witness became involved in the facts to be proved, and the entire content of the witness's statements. That assessment is also constrained by the rules of experience and logic.

In that case, the Supreme Court found that the lower court had determined the existence of a particular claim without sufficiently evaluating and thoroughly examining the accountant's report, witness testimony, related judgments, and other evidence as a whole. The determination was therefore premature, and the Supreme Court vacated the original judgment and remanded the case to the Taiwan High Court.

This judgment reminds businesses that witness testimony does not exist in isolation. The court considers not only what the witness said but also whether the witness actually participated in the facts to be proved, whether the testimony is consistent with documentary information, whether it is corroborated by other evidence, and whether the overall evaluation complies with the rules of experience and logic.

Preparations Businesses Should Complete Before the Hearing

Although witness examination appears to be a procedure that occurs only on the hearing date, meaningful preparation should begin with preserving transaction documents and organizing the disputed issues in the case. Cases involving foreign elements frequently include multilingual documents, personnel from multiple countries, and multistage transaction processes. Without proper preparation, a witness may appear with an unclear memory, documents may not correspond with the testimony, questions may lack focus, or the opposing party may challenge the testimony.

• First confirm the facts to be proved: Identify the issues that genuinely require proof, such as whether a contract was formed, whether transaction terms were changed, whether goods were accepted, whether the payment deadline was extended, or whether the other party acknowledged the debt.
• Select witnesses who actually participated in the transaction: A witness should be able to explain personally observed facts rather than merely repeat information heard within the company or express the company's position.
• Establish a transaction timeline: Organize quotations, purchase orders, contracts, shipments, acceptance, payments, collection efforts, negotiations, and the development of the dispute by date.
• Ensure that the testimony corresponds with documents: The matters a witness may explain should correspond as closely as possible with contracts, emails, invoices, account statements, meeting records, screenshots of communications, or payment records.
• Address foreign-language and interpretation issues in advance: If the witness uses a foreign language, confirm the need for interpretation. If foreign-language contracts or emails are involved, assess whether translations are required.
• Assess the feasibility of remote examination: If the witness is overseas, confirm at an early stage the equipment available at the location, scheduling availability, identity-verification methods, an environment that permits free testimony, and whether the court may allow remote examination.

Cross-Border Legal Practice Recommendations

AIPT Group recommends that businesses treat witness examination as part of the overall evidentiary strategy when facing cross-border commercial litigation rather than searching for personnel to testify only shortly before the hearing.

• Preserve critical records from the beginning of the transaction: Cross-border transactions should retain contracts, purchase orders, quotations, acceptance records, payment records, collection records, meeting records, and correspondence to avoid relying solely on witness memory in the future.
• Clearly connect the witness to the disputed issues: Before requesting that a witness be summoned, confirm which facts the witness can explain and how the testimony will corroborate the documentary evidence.
• Questions should focus on specific facts: Questions should concentrate on the transaction process, payment terms, performance status, document preparation, and communications rather than emotional or conclusory questions.
• Plan interpretation for foreign witnesses in advance: If a witness is not familiar with Chinese, inform the court of the language requirements early to avoid discovering on the hearing date that the examination cannot proceed smoothly.
• Assess remote hearings for overseas witnesses in advance: Whether remote examination is appropriate must be considered by the court. Businesses should prepare specific reasons and supporting arrangements rather than merely asserting that the witness is located overseas.
• Avoid relying on a single witness: In practice, the testimony of one witness may not be sufficient to support every claim. Businesses should corroborate the testimony as much as possible with objective documents, transaction records, and other evidence.

Conclusion

The purpose of witness examination in cross-border commercial litigation is not to allow a witness to express support for a business but to help the court clarify the transaction and the facts to be proved. Under current laws and regulations, a party may request that the court ask questions or may ask questions directly, but the court will also control improper questioning and determine whether testimony should be accepted based on all the evidence and the rules of experience and logic.

For businesses, the most important step is to establish complete document management and transaction records before a dispute arises. After litigation begins, the facts to be proved, witness list, documentary evidence, interpretation requirements, and possibility of remote examination should be clearly organized. This allows witness examination to serve not merely as a hearing procedure but as an important tool for effectively supporting business claims and reducing cross-border litigation risks.

Sources: National Laws and Regulations Database｜Code of Civil Procedure
National Laws and Regulations Database｜Court Organization Act
National Laws and Regulations Database｜Regulations Governing Remote Hearings and Document Transmission in Civil Matters by Courts at All Levels
Supreme Court Civil Judgment No. 2999, Tai-Shang, 2021