1        The Right of the Parties to Present Their Case

2. Many national constitutions either expressly or impliedly provide for the right of the parties to present their case.^[1] There are even supranational binding instruments which guarantee this fundamental right. Important examples are the European Convention of Human Rights^[2], the EU Charter of Fundamental Rights^[3], the American Convention on Human Rights^[4], the African Charter on Human and Peoples’ Rights^[5], the Arab Charter for Human Rights (ACHR)^[6] and the Statute of the Arab Court of Human Rights.
3. Even beyond regional areas with state systems of similar legal culture, there is worldwide unanimity about the core content of the parties’ right to present their case, which is reflected by the Universal Declaration of Human Rights^[7] and the International Covenant on Civil and Political Rights^[8].
4. In particular, the parties’ right to present their case comprises the right to be notified and the right to be heard.^[9] This means for the question of structuring civil proceedings that, as a matter of principle, the proceedings, that are introduced by the claimant, cannot continue without the defendant being informed about these proceedings and having got the possibility to defend their position. Ex-parte proceedings must remain an exception reserved for urgent matters, and in such cases the defendant is to be heard as soon as possible afterwards.^[10]
5. The parties’ right to present their case is also crucial for the claimant. It guarantees them the possibility to put forward all the factual and legal allegations and offers of evidence that are necessary for convincing the court about the plaintiff’s rights. Without this possibility, the right to effective relief^[11] would be undermined.
6. These dimensions of the parties’ right to present their case would be an argument for a procedural system which would allow the parties to present their allegations without any time limits.^[12] 
7. The Norwegian system works according to this model in practice (for the theoretical approach see below chapter 1.2 ‘The principle of concentrated presentation of facts and offers of evidence’). Although the principle of proportionality permeates the rules of the Norwegian Dispute Act, including the rules on case management in Sec 9-4, Norwegian judges do not limit the duration of the parties’ presentations. However, the drawback of this approach is that court hearings are overly long, which increases delay and costs.^[13] 
8. Such a system, however, bears the risk of delaying strategies on the defendant’s side and of an inefficient use of judicial resources.^[14] Consequently, for the sake of efficiency, in many systems, the parties’ right to present their case is limited by rules requiring the presentation of factual allegations and offers of evidence within certain time limits.^[15] The structure of civil litigation is largely influenced by such an approach, which in many systems is called ‘principle of concentration’.^[16] The US Procedural rules similarly prescribe time limitations for pleading, discovery, and disclosure of information, but these rules are not denominated as the ‘principle of concentration’.
9. In other countries, eg, in Spain, the expression ‘principle of concentration’ is normally not used in this sense of ‘requiring submission of facts and offers of evidence to be put forward as early as possible within the proceedings’. It is rather reserved for the idea not to split the main hearing into several hearings that are far from each other in terms of time. In fact, the notion of ‘concentration’ in Spain is linked to orality, immediacy and the value of direct contact between the adjudicator, the parties and the evidence: in Spain, it is common ground that the oral presentation of the arguments and the testimony before the adjudicator contribute to a judgment of better quality; it is required that the arguments and testimony are proffered either in a single ‘concentrated’ hearing or a series of ‘concentrated’ (=very close to each other in terms of time) hearings. The purpose of this ‘concentration’ is to make it easier for the adjudicator to remember all the arguments and testimony and make an overall evaluation when giving the judgment.^[17] There are however some Spanish authors who take account of how other systems define the idea of ‘concentration’ in the sense indicated above (requiring the concentrated submission of facts and offers of evidence at an early stage of the proceedings).^[18]
10. In this comparative analysis, the term ‘principle of concentration’ is used in a broad sense comprising all the dimensions indicated above. The following section however focuses on the concentrated presentation of facts and offers of evidence. The other dimensions of the principle of concentration will be discusses in chapter 2 dealing with the different stages of the proceedings.

2        The Principle of Concentrated Presentation of Facts and Offers of Evidence

11. To implement the principle of concentrated presentation of facts and offers of evidence, many different approaches are conceivable.

2.1        The Flexible Approach

12. Many national systems follow a flexible approach, which gives the judge wide case management powers (for a detailed analysis of the court management, see chapter 2.3). To illustrate the functioning of such a flexible approach, the solutions of the procedural systems of the following countries will be outlined: Germany, Slovenia, Brazil, Japan, Togo, and the US, on the one hand, and Belgium, the Netherlands and Norway on the other hand. A short look at the ELI/UNIDROIT Model European Rules of Civil Procedure will round out the analysis.
13.  Under the German system, there is one general rule which states that

[…] each party is to submit to the court its means of challenge or defence, specifically allegations, denials, objections, defence pleas, evidence and objections to evidence submitted, as promptly as, based on the circumstances of the proceedings, this corresponds to a diligent pursuit of the court proceedings and serves to promote them.^[19]

14. This general rule leaves much room for the evaluation of each individual case with its specific circumstances. The claimant is not obliged to bring all thinkable allegations right at the beginning, but they are entitled to concentrate on the main line of reasoning. Depending on the defendant’s allegations in their statement of defence, the claimant can then bring new allegations in their answer. This is a rather flexible approach, which allows the court to adapt the conduct of the proceedings to the individual circumstances of each case, but which has the disadvantage of creating a certain degree of legal uncertainty.
15. In addition to this general rule, the court has the power (and depending on the circumstances the duty) to determine precise deadlines for specific procedural acts, in particular for the submission of the statements of defence and the claimant’s answers to these statements.^[20] If a party does not respect the general rule of Sec 282 German CCP (GCCP) or the time limits set by the court, the court will refuse the corresponding allegations of fact and offers of evidence unless their consideration does not create any delay in the proceedings or the violation of the principle of concentrated presentation is sufficiently excused.^[21] 
16. Objections to the admissibility of the claim are subject to particularly strict requirements. In any case, the defendant must raise these objections prior to being heard on the merits, and if the defendant does not respect an earlier deadline set by the court and cannot present a sufficiently substantiated excuse for this, the objections presented belatedly will not be taken into consideration.^[22] 
17. In Slovenia the parties may assert new facts and evidence at the first main hearing at the latest (Art 286 CPA). At subsequent main hearings the parties are allowed to present new facts and new evidence only if they were not able to submit them at the first main hearing through no fault of their own. The rule is thus flexible, and it is not applied strictly. Nevertheless, it still has certain deterrent effect at least. Understandably, the rule that the parties may bring forward new facts and evidence as late as in the first session of the main hearing, does not allow for an effective preparation of the main hearing. The importance of the preparatory stage of proceedings is diminished (and in practice, the distinction between pre-trial and trial – or preparatory stage and main hearing – is hardly existent). In addition, pursuant to Art 286a CPA, the court may ask the parties specific questions (eg, to submit specific items of evidence, to give additional factual explanations or clarifications, to reply to the other party’s submissions). It may set a (cut-off) time limit thereto. Similar exceptions as mentioned above (no fault, no delay) apply.
18. The 2008 CPA amendment gave judges tools to implement a kind of written preparatory procedure, thus strengthening the preparatory stage and ensuring a better preparation of the main hearing. Judges now have the power to require (and to impose binding time limits) that parties make further submissions and clarifications concerning facts, evidence and legal positions in the set time limit.^[23] The judge may exercise this discretion already in a written form before the main hearing. The discussed provision is framed following the example of Art 273 of the GCPC (according to which a court can demand from the parties to submit written statements on certain points that need to be clarified). If a court sets the time limits for the filing of new preparatory submissions and this time limit is not met, new submissions made after the time period has expired are admissible only if the court is convinced that admitting them will not delay the resolution of the dispute or if the party provides an adequate justification for the delay in presenting them.^[24] The discussed tools are optional; the judge is empowered but not obliged to use them. Thus, in line with the world-wide trends in development of civil procedure, more room is now provided for the judge to adapt the unfolding of proceedings and its timeframe to the characteristics of each particular case. A judge can decide, according to the particularities of the given case, whether it shall implement a written preparatory procedure or whether a main hearing shall take place and the case shall be discussed orally with the parties. The latest amendment of the CPA promoted the idea of cooperation between the judge and the parties, eg, by requiring the court to adopt, after consultation with the Parties, a procedural plan.^[25] This should include both issues of substantive preparation of the case (determining relevant and disputed facts and preliminary legal basis) as well as procedural preparation (eg, targeted dates for submissions and hearings).
19. In Japan, there is the principle of planned trials. This means that the court and the parties shall try to abide by the planned progress of litigation proceedings with the objective of achieving a fair and speedy trial.^[26] As of timing for presenting allegations and evidence, the Japanese system generally follows German law tradition: Allegations and evidence shall be presented at an appropriate time, in accordance with the status of progress in the litigation (principle of presentation at an appropriate time).^[27] In order to implement this principle, there are three provisions. The first is JCCP Art 157 (1):

With regard to allegations or evidence that a party has presented after the time for doing so, whether intentionally or through gross negligence, if the court finds that such allegations or evidence will delay the conclusion of litigation, it may rule to dismiss them without prejudice, upon petition or sua sponte.^[28] 

20. The second is JCCP Art 157 (2): ‘The provisions of the preceding paragraph also apply if a party does not give the necessary explanation with regard to allegations or evidence whose import is unclear, or does not appear on the date for giving an explanation’.^[29] The third is the special provision of dismissal of allegations or evidence without prejudice when a plan for trial has been established:

If a time frame for presenting allegations and evidence on a specific matter is specified pursuant to the provisions of Art 147-3, paragraph (3) or Art 156-2 (including as applied mutatis mutandis pursuant to Art 170, paragraph (5)), and the court, with regard to allegations or evidence that a party has presented after the expiration of such time frame, finds that such allegations or evidence would be substantially detrimental to the progress of litigation proceedings based on the plan for trial, the court may rule to dismiss them without prejudice upon petition or sua sponte; provided, however, that this does not apply if the party has made a prima facie showing of reasonable grounds for the party having been unable to present the allegations or evidence within that time frame.^[30] 

21. If the court of first instance decides to follow one of the proceedings for issue and evidence arrangement before the trial (oral arguments proceeding), there is a very particular incentive for the parties to present facts and to offer evidence as early as possible. Judges often choose the preparatory proceedings for the trial.^[31] It is not open to the public but it is guaranteed that both parties can attend the preparatory hearing.^[32] During such a hearing, the court may reach a judicial decision regarding the offering of evidence or any other judicial decision that may be reached during a hearing other than a hearing for oral arguments, and may examine written evidence and objects.^[33] For such a case, the JCCP states that, at the request of the adverse party, a party that has presented allegations or evidence after the closure of the preparatory proceedings shall explain to the adverse party the reasons why the party was unable to present the allegations or evidence prior to the closure of the preparatory proceedings. This is the Japanese way to encourage both parties to present allegations and evidence as early as possible. This is not a rigid preclusion and sanction system but has rather the indirect effect to motivate the professional lawyers who want to avoid explanation, which means excuse.
22. Finally, there is the Japanese Act on the Expediting of Trials.^[34] The average duration of litigation proceedings in first instance of District Court (not Summary Court) is about 10 months.
23. Under Brazilian Procedural Law, the principle of concentrated presentation of facts and offers of evidence is implicit, based on several rules contained in the Brazilian Code of Civil Procedure and applied with some flexibility. The parties may present their arguments at different moments of the procedure, according to the respective phase. In the initial phase, the claimant must lay down the essential facts (cause of action) and the claim in the statement of claim; there are only limited possibilities to alter the initial claim. In response, it is up to the defendant to present their defence, alleging procedural preliminaries or arguments on the merits. The parties must indicate, at this initial stage, the intended pieces of evidence to be produced. Certainly, during the proceedings, supervening facts might be presented and require new pieces of evidence. After this initial phase, the evidentiary and decision phases follow. In all these phases, there are certain deadlines; but the Brazilian CPC foresees the possibility for the judge^[35] to extend procedural deadlines with the objective of guaranteeing the parties right to present their case.^[36] The judge also has the power to change the order of the taking of evidence, adapting them to the specific circumstances of the dispute. However, public order issues may be alleged and decided at any time.^[37]
24. The new Brazilian Code of Civil Procedure also has some other new and important provisions and possibilities that may be emphasised in this context: a) the rule contained in Art 190, in the sense that parties may conclude procedural conventions providing for changes in the procedure with the aim of adjusting it to the specifics of the case; so, they can agree on special rules for the procedural burdens, powers, and duties before or during the proceedings; b) Art 191 establishes that the judge and the parties may, by mutual agreement, establish a timetable for the execution of procedural acts. The deadlines set in the agreed calendar will only be modified in exceptional, duly justified cases. When the parties establish by agreement the procedural schedule, there is no need to communicate the dates for specific procedural acts to the parties (subpoena).
25. In the United States, federal procedural rules prescribe the timing of deadlines for submission of pleadings, including the plaintiff’s complaint and the defendant’s answer, including any submissions as the part of third-party practice by impleading litigants. In addition to deadlines for submission of pleadings, rules also govern deadlines for the conduct of discovery, including discovery by expert witnesses. At the outset of litigation, the judge will meet with the parties and will accomplish a scheduling order that sets out deadlines for submission of pleadings, amended pleadings, discovery, and dispositive motions. This scheduling order is binding on the parties to the litigation, although in special circumstances attorneys may request extension of time in which to make filings.^[38] If the parties mutually agree to an extension of time, the judge will typically grant such an extension. If the parties do not agree, then the judge can grant or deny a motion for extension of time in the judge’s discretion. Before trial, the judge has the power to make rulings on the admissibility of evidence in so-called motions in limine.
26. Art 75 of the Code of civil procedure of Togo states:

If the proof of the facts of the case requires investigation measures, these are ordered by the court at the joint request of the parties or even ex officio. After execution of the measures of investigation within the time limits fixed by the president of the court or his delegate, the clerk notifies the minutes or reports of these measures to each of the parties and convenes them for the hearing of the judgment according to the new deadline fixed by the president of the court.

This procedural arrangement could be seen as a time-frame flexible approach.

27. In Belgium, the claimant is allowed to change the initial claim and to add additional or new claims in the course of the proceedings. The amended, expanded or new claim should be based on a fact, or an act relied upon in the act initiating the procedure. ^[39] This requirement is, however, not interpreted very strictly. As long as there is a connection between the amended, extended or new claim and the facts and acts relied upon in the act initiating the proceedings, the requirement is fulfilled.^[40] Facts can also be amplified or supplemented for this purpose. Moreover, the violation of this rule cannot be raised by the court of its own motion. Parties can thus agree to extend the scope of the proceedings to other issues. Of course, the opportunity to do so also depends on the procedural calendar agreed upon by the parties or imposed by the court. In principle, it is not possible to amend or extend a claim or to bring a new claim after final submissions have been exchanged, as this may violate the other party’s right to due process. But again, it should be stressed that Belgian civil procedure is very liberal/flexible (party driven) and a request may always be granted where the other party agrees.
28. In the Netherlands, a claimant has the power to limit^[41], extend or change^[42] their claims or the grounds relied upon as long as the judge has not yet communicated the term in which a final judgment will be delivered. The defendant can oppose the extension or change of the claim where this would be in breach with the requirements of due process. The judge may also reject a change or extension of a claim on this ground of its own motion.^[43] 
29. The Norwegian system is theoretically also based on the general idea of concentration, but very flexible in practice (see above chapter 1.1). Sec 1-1 of the Norwegian Dispute Acts identifies the purpose of the Act and the general principles that it is based on. The aim of sound, efficient and trustworthy proceedings is interpreted to encompass the principle of concentration.^[44] The concentration of the ambit of the dispute and the evidence is regulated by giving judges a duty to clarify incomplete and unclear allegations,^[45] and in the duty to exercise efficient case management.^[46] However, courts practice the rules on preclusion of new claims, grounds for claims and evidence leniently, thus watering down the rules. This was identified as a problem by the Norwegian Court Commission in its 2020 report. ^[47] The commission proposed several measures including adding an explicit statement that the court has an obligation to assist the parties in specifying, and when appropriate, narrowing, the ambit of the dispute during the case management hearing, spending more time in case management hearings and the court drafting a summary of the case before or after the case management hearing.^[48] The case summary is inspired by Swedish and Finnish law.
30. The ELI/UNIDROIT Model European Rules of Civil Procedure are also based on a flexible approach, which is composed of the general duty of the parties to present their allegations in due course^[49] and of the court’s power to set specific deadlines.^[50] Only for very specific procedural acts, the Model Rules provide for a precise deadline.^[51] 

2.2        The Rigid Approach

31. At the opposite end of the flexible approach, there is the Spanish system, which represents a paradigm of a rigid approach, where concentration is reinforced with a strict legal preclusion.
32. On the one hand, the Spanish system aims at concentrating the allegation of the full list of facts and legal perspectives of the case,^[52] as well as the submission of the bulk of the evidence, right at the beginning of the proceedings and in a short period of time, namely the time between the filing of the statement of claim and the filing of the statement of defence. On the other hand, once this period has elapsed, a strict legal preclusion applies, whereby the parties are ex lege barred from introducing any element of fact, law or evidence that they could have submitted during the aforementioned period.
33. In this regard, first, the claimant is required to include into the statement of claim an exhaustive description of all the facts and legal grounds upon which the claim is based, as well as to attach all their documentary evidence.^[53] Then, the same applies to the defendant, who has a non-extendable time-limit of 20 working days (10 working days in cases up to EUR 15,000) to file a statement of defence that includes all potential relevant facts and legal grounds of defence and to attach all relevant documentary evidence.^[54] Once the two statements have been filed – with the attached documents -, a strict legal preclusion applies and hardly any changes are admissible.^[55] After the two initial briefs have been handed in, the full picture of the dispute is expected to become ‘frozen’ and anything that happens afterwards shall consider the dispute as defined by the initial briefs.
34. These strict rules combining concentration and strict legal preclusion provide certainty to the court and the parties, who, from a very early stage, get to know what the full picture of the dispute is and what are the ‘weapons’ of the opponent. Importantly, they are also meant to contribute to speeding up the proceedings, since it prevents the procedure from going back and forth, with the inclusion of new data creating delays in terms of additional procedural efforts, efforts consisting of, at least, the preparation of requests for the inclusion, allegations of the opposing party as to whether the requests should be accepted or not, and decisions of the court on the acceptance or denial of the requests. Finally, they are also understood to prevent abuses and foster the due diligence and responsibility of the parties and their representatives, as they are aware that only they (not the other parties nor the Justice system) will bear the negative consequences of any intentional or neglectful mistake they make.^[56]
35. The rigid rules may, nevertheless, entail some risks to the fairness of the final outcome in terms of allowing for the possibility of a judgment that does not finally take into account relevant information or evidence that one of the litigants forgot to disclose at the right time. Indeed, under the rigid Spanish system, any omission may end up being fatal for the interests of the party, who might eventually lose the pending case and be left with the only solution of instituting a follow-up suit against their legal representative for the damages arising from a lack of professional diligence.
36. In light of these risks to fairness or the final outcome, the Spanish system provides for a escape valve of the rigid system: when a party demonstrates that a failure to mention a fact or a legal argument, or failure to submit a piece of documentary evidence, was not at all due to a lack of diligence attributable to the party themselves or to their lawyer (because it was truly impossible for the party and their lawyer to have knowledge of the omitted defence or evidence or of its relevance to the proceedings), the omitted fact, legal perspective or piece of evidence could still be admitted at a later stage in the pending proceedings. However, the truth is that Spanish courts are very reluctant to apply this escape valve, and the majority of the requests for a late submission are rejected.

2.3        Impact on the Structure of Civil Litigation

37. The principle of concentrated presentation of facts and offers of evidence ensures that the court has enough information after the exchange of the first statement of claim and the first statement of defence for gaining a sufficiently clear understanding of the case. Such an understanding significantly increases the chance that the court can manage the case efficiently. So, the principle of concentrated presentation does not only influence the time for bringing forward certain allegations, but it also has a clear influence on the entire structure of civil litigation insofar as it allows an efficient case management avoiding the discussion of irrelevant aspects. It is interesting to note that in several procedural systems, recent reforms have established the possibility for the court to set up a timetable for the proceedings in cooperation with the parties, which then becomes binding (for more details, see chapter 2 subdivision 4.4.3).

3        The Public Character of the Proceedings

38. The parties’ right to a public hearing is one of the most important procedural rights. It is often guaranteed by constitutional law – either expressly^[57] or impliedly^[58] – and binding supranational instruments, such as the European Convention on Human rights.^[59] The ELI/UNIDROIT Model European Rules of Civil Procedure also comprise a corresponding rule.^[60] It is interesting to observe that the American Convention on Human Rights expressly establishes the public character only for criminal proceedings.^[61] This might reflect a general trend to put more emphasis on the public character of proceedings in the criminal context (for a detailed analysis of the principle of public proceedings, see part 4 ‘Constitutionalization and Fundamentalization of Civil Procedure Guarantees and Principles’, chapter on ‘the right to public proceedings’).
39. A question which is highly debated in the context of civil proceedings concerns the right of the parties to waive their right to a public hearing. Traditionally, the right to a public hearing was considered to protect the parties against unfair treatment by the court.^[62] In systems where the citizens have developed a high degree of confidence in state courts, the parties do not fear unfair treatment by the courts but rather the publicity of their case.

3.1        The Purposes of the Public Character

40. The principle of public proceedings is strongly embedded in traditional justice systems in most African cultures and serves two essential functions. First, it reinforces the legitimacy of traditional authorities and their power to dispense justice on behalf of society. In addition, it guarantees the existence of ‘witnesses’ during the proceedings and the delivery of the final judgment.^[63]
41. The public nature of court proceedings is also protected by the Belgian Constitution and can only be departed from where this would endanger public order or good morals.^[64] That being said, the Belgian Judicial Code provides for further exceptions to this rule, in particular in family matters,^[65] and also the protection of trade secrets or the confidential nature of other data may warrant a limitation of the public nature of proceedings.^[66] 
42. In Brazil, the principle of public proceedings concerns the hearings and the trial sessions as well as the case files, the respective decisions, and general access to the judiciary's buildings – certainly in accordance with the working hours and the service standards.^[67] However, the constitutional provisions make clear that the principle of public proceedings is not absolute and can be restricted for protecting privacy or the public interest.^[68] 
43. In the United States, generally all hearings and trials are open to the public as an aspect of fundamental due process guaranteed to litigants by the Fifth and Fourteenth Amendments to the US Constitution, and the Seventh Amendment to a right to trial by jury. Due process requires that litigants have notice of the proceedings and the opportunity to be heard. In some circumstances the judge may limit access to a public trial where the presence of persons in the courtroom might be unduly prejudicial to litigants involved in the proceedings. For example, in DES^[69] litigation the trial judge ordered that DES injured children (as plaintiffs) be excluded from the trial courtroom as potentially unduly prejudicial to the defendants in the lawsuit. However, the trial judge made arrangements for the DES victims’ plaintiffs to watch the proceedings remotely on video and outside the courtroom. If members of the public who are physically present in the courtroom and become unduly disruptive of the proceedings, the judge may order the removal of disruptive members of the public.
44. Also in the Netherlands, the public nature of courts proceedings is protected by the Constitution.^[70] The public nature can only be departed from in circumstances determined by law.^[71]
45. In Japan, the right to a public trial is a constitutional principle.^[72] The parties cannot limit this principle by way of consent. This very rigid approach is a consequence of historical experience.
46. The situation is different in Iran. Principle 165 of Iran’s Constitution (1979) states:

Trials are to be held openly and members of the public may attend without any restriction, unless the court determines that an open trial would be detrimental to public morality or discipline, or if in case of private disputes, both the parties request not to hold open hearing.

This makes clear that in private disputes, the parties have the possibility to exclude the public. In practice it is, however, not always the parties who decide; it must be observed that, in practice, courts often refuse a public hearing even if neither party makes such a request.^[73]

47. Finally, it can be observed that not in all, but in many procedural systems, for example in Belgium, Brazil, Germany, Japan, Norway, Slovenia, Spain, Togo, and the United States, the public character of the proceedings is also considered as a principle of public policy. As such, it is not only established in the interest of the parties but also in the interest of the whole society. It is considered as an instrument designed to create confidence in the judicial system.^[74] Control of the judiciary can be exercised by any person.

3.2        The Impact on the Structure of Civil Litigation

48. An understanding of the principle of public proceedings in such a sense that it does not only protect the individual parties but also the public interest has an important influence on the structure of civil litigation as it bars parties from shaping their own procedure without public elements.^[75] 
49. A different question is whether the public element is necessarily a public hearing. The overview of the different national approaches in section 3.1 has shown that many systems provide for proceedings without public hearing, eg, for reasons of efficiency in the context of small claims. One example is the EU small claims regulation, which is however limited to transnational cases where the organization of a hearing is more complicated and leads to a heavier burden for the parties than in national cases.^[76] Another example is the development of pure online proceedings without videoconferencing. In Norway, there is a specific mechanism for out-of-court dispute resolution, particularly in consumer cases. The proceedings in these cases are purely written, and the decisions of the public CDR body are enforceable and governed by the rules on res judicata like a court ruling.^[77] 
50. Considering modern technology, the absence of a public hearing does however not necessarily mean that the principle of public proceedings is not respected. If public control can be ensured by other public elements which are also a solid basis for gaining and keeping confidence in the judicial authorities, proceedings without public hearing should be in conformity with the principle of public proceedings and, thus parties could be given the possibility to waive their right to a public hearing.^[78] Other elements that could ensure the public character of the proceedings are public access to key documents of the case, the public ruling and the publication of all decisions. In this context, the use of new technologies might play an important role.^[79] 
51. The English Procedural law, for example, guarantees public access to essential court documents.^[80] Also in Spain, all court records are considered to be public, and non-parties may obtain anonymized copies if they show a ‘legitimate interest’.^[81] The Norwegian Dispute Act Sect 14-2 grants a general access to court records and rulings, as well as many written statements and submissions and evidence, and the Japanese Code of civil procedure also contains a provision that quite generously grants access to court records at the outset while protecting legitimate interests against disclosure.^[82]
52. In the United States, all pleadings filed with the court are public documents and subject to access by the public and the media. However, ready access to court documents currently is limited by the requesting party’s ability to pay for access and downloading of such documents, which may be very expensive. Information disclosed during discovery generally is not made public and may be sealed by court order or subject to non-disclosure as a result of protective orders. On the other hand, discovery materials may be obtained through judicial order. Judicial orders and jury verdicts are all a matter of public record in the United States.
53. Certainly, such an approach raises issues of data protection (for this problem, see part 9 of this compendium on ‘Digital Revolution and Procedure’, chapter 3).
54. In any case it is to be noted that a public hearing is still a corner stone of civil proceedings in many countries. Both in Belgium and the Netherlands, the principle of the public nature of the proceedings very much entails a public hearing. Both constitutions^[83] and civil procedure rules^[84] explicitly refer to the public nature of the hearing.
55. In Slovenia, according to Art 24 of the Constitution, the judgments are pronounced in public. But very often, the courts do not deliver a judgment in a hearing, but at a later stage, in writing, only made available to the parties. Concerning publication of the judgments, two issues arise: (1) judgments of the first instance courts are not publicly available in official and free access databases; (2) strict rules on ‘anonymization’ apply – names of the parties (either natural or legal persons) are deleted.
56. In Togo, logistical difficulties prevent the public from accessing court rulings. However, in the process of modernising the justice system, websites have been created for the publication of rulings, especially in commercial matters where the interest of the public to access to essential courts documents is more significant.

3.3        Conclusion

57. Two developments can be observed: On the one hand in systems where the people have developed a high degree of trust into the judiciary, parties are increasingly interested in excluding the public from their proceedings; additionally, states all over the world create new procedures for certain types of cases where the courts can conduct the proceedings without public hearing for reasons of efficiency. On the other hand, new public elements have become increasingly important and might diminish the importance of public hearings as guarantor of the public character of the proceedings.  

4        Written-Based and Oral-Based Approaches

58. Written and oral elements are not a value by themselves. They always serve a certain procedural purpose.
59. Written elements are often said to constitute a better basis for the court when it has to render a judgment. Due to their clarity and certainty, they are intended to protect the parties against arbitrary decision making.^[85] 
60. Oral elements are often considered to ensure the public character of the proceedings, to guarantee the parties’ right to be heard and to facilitate an amicable solution of the dispute. Oral elements of the procedure lead to the follow-up question of immediacy.
61. Whether a system follows a written-based or an oral-based approach has a very strong impact on the structure of civil litigation. Oral elements always presuppose a meeting of the court with the parties and their representatives, and when indicated, with other persons, such as witnesses. Thanks to modern technology they do not necessarily have to meet in person; they can also meet virtually via videoconference, or even a telephone conference might be sufficient. But the court must organize such a meeting where each person concerned has to be available. This can prolongate the proceedings; in particular, but not exclusively, under Covid conditions, this has become a real problem.^[86] 

4.1        Traditional Distinction between Written-Based and Oral-Based Approaches

62. Traditionally, there was a clear distinction between systems that followed the written-based approach and systems that followed the oral-based approach. The German Code of Civil Procedure of 1877, which entered into force in 1879, implemented the oral-based approach. The court was only empowered to take into consideration allegations that were presented during the oral hearings. Allegations that were solely put forward in the written memoranda remained unconsidered.^[87] 
63. Almost 100 years later, the new French Code of Civil Procedure from 1976^[88] still clearly distinguished between an oral-based and a written-based approach. It provided for the oral-based approach in its pure form for disputes of small amounts (nowadays, this category goes up to EUR 10,000^[89]; for the recent development, see below 4.2).
64. While the law in Slovenia proclaims the importance of orality of proceedings (Art 4 CPA), the practice clearly moves towards accentuated written procedure. This goes on account of the – unwarranted – habit of piece-meal style of litigation where the parties file numerous ‘preparatory briefs’ between the sessions of the main hearing; the latter are often adjourned as the opponent requires more time for preparation. The practical experience also clearly shows that the ‘style’ of litigation very much depends on the method of lawyer’s remuneration. The Slovenian Lawyer’s tariff is based on a ‘taximeter’ approach (same as in Austria); each submitted document entitles a lawyer to a fee. For a certain time though, the legislature opted for the ‘German’ system of lump-sum fees regardless of the number of written submissions filed during the proceedings. Remarkably, the practical effect was an immediate decrease of lawyers’ written briefs. Yet, the powerful lobbying of lawyers resulted in a shift back to the Taximeter model – and judges already report that the number of written briefs (which also results in the number of adjournments of hearings) has rapidly grown again.
65. In Japan, the oral argument is essential to civil litigation proceedings,^[90] but JCCP Art 161(1) provides that oral arguments shall be prepared in writing. Therefore, many cases of real oral argument in Japan just become the place for an exchange of briefs except examinations of witnesses and parties and expert witnesses. For specific situations, the rules provide for a decision without hearing. This concerns for example the case where the complaint is not in accordance with the law and the defect cannot be corrected.^[91]
66. The Spanish system was entirely written-based from the thirteenth century until the entry into force of the new Code of Civil Procedure in January 2001.^[92] The new Code entailed a true procedural revolution, as it implemented an oral-based approach and put an end to centuries of written-based tradition.^[93]
67. In Belgium, written submissions are the basis of civil proceedings. As a rule, a judge is only required to respond to pleas and arguments included in the parties’ written submissions.^[94] While parties are not prevented from pleading issues at the oral hearing that were not included in their written submissions, a judge is not obliged to respond to them in its judgment. Only in cases where ‘short debates’ are possible, the case will immediately be pleaded at the initial hearing or at a hearing shortly thereafter and no exchange of written submissions will take place.^[95] Further to this, first-instance proceedings before juge de paix (the Justice of the Peace) tend to be more informal than first-instance proceedings before tribunal de première instance (the court of first instance) and are often oral based. A distinction thus appears to emerge between low-value, simple claims on the one hand, where written elements are less important, and high-value or complicated claims, where written submissions are at the core of the proceedings. In those cases, the oral hearing is usually no more than a repetition of the written submissions, unless the court seizes on the opportunity to ask questions or further clarifications – this depends very much on the individual judge.
68. The United States does not have a strong written or oral tradition exclusively. The US has always had a combined system of written and oral elements to its procedural law, to be discussed in the following section.
69. In Togo there is no formal distinction between oral and written proceedings. This is so because in all matters the procedure is oral except for reasons related to public order.

4.2        Recent Development Towards a Combination of Written and Oral Elements

70. It can be observed that many systems that had chosen one approach as their starting point have evolved away from it. Nowadays, we often find a mixture of oral and written elements. Formally, many systems have upheld their traditional rule that only written elements or only oral elements are to be considered by the court for the final judgment. But as both approaches in their pure form are too complicated for everyday court life, elements of the other approach have been incorporated.
71. This is, for example, the situation under German law. The original purely oral-based approach turned out to be cumbersome. The practice found ways to circumvent the formal requirements of oral presentation, and finally, the German legislator allowed the parties and their lawyers to make a simple oral reference to the written memoranda during the oral hearing, which was then considered to fulfil the condition of oral presentation.^[96] This rule has put the ideal of an oral-based approach far into perspective.
72. This was also the approach taken by the new Spanish Code of Civil Procedure, under which the court may take into account any written materials appearing in the court file, so long they are referred to by the parties. Thus, there is no need to read out the text of briefs, documents or expert reports in the courtroom: the parties may simply refer to them and the court will be then expected to read them and extract from them the proper legal consequences, if any. This approach explains why no final hearing is required when the parties agree on the facts and they limit the dispute to a purely legal issue,^[97] or when all the evidence is of documentary nature.^[98] And it also explains why, in cases up to EUR 15,000 no hearing will be held if no party requests it and the court deems the hearing to be unnecessary.^[99]
73. Oral hearings stand very strong in Norway, too strong, one could argue. Although the Dispute Act does not require the parties to do so, normally they will read aloud relevant passages from written evidence and applicable legal sources, including preparatory works and legal doctrinal writings.^[100] In a recent defamation case, one party insisted that the entire novel (approximately 300 pages) would have to be read aloud in the main hearing for the judge to be able to decide whether it was defamatory. The case settled, so the judge and the parties did not have to sit for hours listening to someone reading the book. In the Norwegian climate case, several days were spent in the Norwegian Supreme Court on reading aloud from government documents.
74. Under French law, it also turned out that even within the limited area of disputes up to an amount of EUR 10,000, the purely oral-based approach was unpracticable. In a first reaction, the Cour de cassation decided that parties respected the requirement of orality by referring to their written statements,^[101] and the French legislator followed in 2010 by adopting a corresponding regulation.^[102] For disputes of an amount higher than EUR 10,000, we can observe the opposite development in France: For this type of dispute, the French Code of civil procedure from 1976 provides for a procedure which is qualified as written.^[103] So, written elements are the determinant factors of the proceedings. The court is only allowed to take into consideration what is documented in the case file.^[104] Accordingly, the term ‘written elements’ is to be understood in a broad sense, also comprising all forms of electronic communication and documentation. But there is, in general^[105], an oral hearing at the end of the proceedings, which is intended to allow an uncomplicated exchange of views between the court and the parties and to guarantee the public character of the proceedings.^[106] Currently, there is a strong debate about the question whether to strengthen this oral hearing.^[107] 
75. In Brazilian law, in terms of assessment of evidence, there is no distinction between whether it was produced orally or in writing. The legislator has repeatedly sought to strengthen hearings and, consequently, face-to-face procedural acts with the main purpose to achieve consensual solutions. Whether oral or written acts are more important, seems to depend on the object of the dispute. In certain areas, such as family law, oral evidence is widely used. In others, such as conflicts related to public law, the evidence is essentially documentary.
76. In the Netherlands, the oral hearing has a multiple goal. Next to the traditional function of allowing parties to plead their case, the judge can use the oral hearing as a case management conference or to verify whether an agreement between the parties is possible.^[108] In light of this, the oral hearing has become an important element in Dutch civil proceedings.^[109] The strongest element of orality in Dutch civil procedure is that a judge may deliver an oral (final) judgment at the end of an oral hearing.^[110] Conversely, a judge may also dispense with the oral hearing in case he or she does not find an oral hearing appropriate.^[111]
77. The Iranian system having adopted a written-based approach in 1952 also integrated oral elements into their current system of civil procedure. So, in the first instance, the courts determine a hearing.^[112]
78. Although Japan follows an oral-based model, briefs have an important role. According to the principle of the freedom of personal conviction, in reaching a judgment, the court decides whether to find allegations of fact to be true on the basis of their personal conviction.^[113]
79. The United States incorporates a procedural system of mixed written and oral components. The fundamental documents setting forth the basis for the litigation are accomplished through written pleadings such as the complaint, answer, and reply.^[114] Procedural motions to dismiss the litigation at any early stage before trial are accomplished through written motion practice.^[115] Many of the discovery mechanisms, such as requests for admissions or interrogatories, are conducted by written instruments. However, American procedure includes a large oral component. The rules require multiple pre-trial conferences among the attorneys and the judge to agree on litigation scheduling and cooperative efforts at settlement. The court may request that the attorneys present their pre-trial dispositive motions through an oral hearing before the judge. Deposition testimony is conducted through oral proceedings. All hearings and the trial itself will be conducted orally.

4.2.1        Relation Between Oral Elements and the Public Character of the Proceedings

80. Under the German procedural system, where the starting point was the oral-based approach, oral elements have always kept their importance for ensuring the public character of the proceedings (for the relation between oral elements and the public character of the proceedings, see above chapter 2.3). When the German Code of Civil Procedure was adopted in the nineteenth century, the only realistic way for giving the public the chance to follow the proceedings was conducting oral hearings. Nowadays, new technologies have opened new possibilities. The more other elements ensure the public character of the proceedings, the less important is an oral hearing for implementing the principle of public proceedings (see above chapter 2.3).

4.2.2        The Relation Between Oral elements and the Right to be Heard

81. There is however another purpose of oral elements: in many systems they are considered to guarantee the parties’ right to be heard.^[116] People often understand better if they talk, and citizens might have more confidence in the final judgment if they had the possibility to tell the judge their own story. This, however, might depend on the nature of the parties: The less professional a party is, the more they might feel the need to talk to the judge face-to-face. But even this may be changing over time. People growing up in a world where online chatting replaces face-to-face communication might develop new preferences.
82. If a hearing is intended to guarantee the parties’ right to be heard, the hearing must be organized accordingly. It should give the parties the possibility to argue their case.
83. Under German law, the theoretical approach goes indeed into this direction. Sec 137 of the German Code of Civil Procedure states:

(1) […]

(2) The parties are to make their submissions ex tempore; they are to summarize the case as regards its facts and circumstances and as regards its legal ramifications.

(3) The parties may refer to documents, provided that none of the parties object to this and provided that the court believes such reference is reasonable. Documents will be read out only insofar as their exact wording is relevant.

(4) In proceedings in which the parties must be represented by counsel, the attorney and, upon corresponding application being made, the party itself are to be granted leave to speak.^[117]

84. In practice, the representatives of parties tend to limit their pleading to a reference to the written memoranda if the case at hand is rather simple. But if a case is complex, the hearing might last several hours and lead to a real dialogue between the judge(s), the representatives of the parties and – depending on the circumstances – the parties themselves. The judge manages the hearing and focusses the discussion on the elements which are relevant for rendering the final judgment. The hearing is also the place where the taking of evidence is carried out so that the parties can directly discuss with the judge the results thereof and lay out their impressions.^[118] The objective is to concentrate the main hearing on one date; this requires a good preparation of the hearing. The preparatory phase can be written-based or oral-based or a mixture of both depending on the complexity of the case and on the chances of an early finding of an amicable solution (for more details concerning the relation between oral elements and an amicable solution see chapter 4.2.2; for details about the structure of the proceedings and the place of the hearing(s) within the proceedings, see chapter 2).
85. On the surface, this is very similar in Norway, but there is one important exception: case management hearings are mandatory,^[119] under the German system only before the new Commercial Courts.^[120] Exceptions are very rare. There is no case management hearing in small claims cases, ie, when the amount in dispute is below NOK 250,000 (approximately EUR 25,000 – about 6 months income for many people). Case management hearings are disproportionately short, too short according to the Courts Commission,^[121] compared to main hearings, and focussed on procedural issues and evidence: shall there be court-conducted mediation, shall there be another preparatory hearing (which is uncommon), should proceedings be split, or joinder take place, when shall the main hearing be held and what duration is expected? Further issues addressed during case management hearings are: timing and number of written submissions, if any, is an expert needed and what is the mandate of the experts(s), how are experts selected, need to provide access to evidence (disclosure) etc.^[122]
86. And there is another difference between the Norwegian and the German system: judges are not allowed to indicate how they view the case; such an indication would constitute a violation of the principle of impartiality.
87. In Brazil, the right to be heard does not necessarily need to be carried out orally. It can be satisfied through oral or written elements, by the party or by its representative. In current times, there has also been an increase in online procedural acts, with the possibility of assisting judges and judiciary officials by videoconference hearings and virtual or telepresence sessions, and even by sending recorded allegations and testimonies^[123].
88. Compared to procedural systems such as the German and the Dutch one, where the main oral hearing takes place after intensive instruction and preparation by the judge, the Belgian system is rather peculiar. After an initial hearing where parties agree on or are imposed with a calendar for exchange of written submissions, the phase before the oral hearing takes place solely between the parties. They exchange multiple written statements between them before coming to final written submissions, which will determine the ambit of the case and the issues to be dealt with by the judge. During the written phase, parties may apply to the judge to order the taking of evidence but usually all evidence is written and attached to the submissions – alternatively, a request for evidentiary measures is included in the final written submissions and thus to be dealt with by the judge after the oral hearing. The exchange of written submissions is followed by an oral hearing, which often takes the form of traditional pleadings. The judge may or may not be prepared – Belgian civil procedure is not geared towards a fully prepared judge (there is generally no interaction between the judge and the parties during the exchange of written submissions prior to the oral hearing), it depends on the judge in question whether he or she is willing to do the work – and this will determine the course of the oral hearing. After the oral hearing, there is a deliberation phase of one month during which the judge has to come to a judgment. It is during that phase that a judge may discover that an important point has not been discussed by the parties or that it may be necessary to hear a witness or to order an expertise. In such instances, the proceedings will be reopened by way of an interlocutory judgment, in which the judge will set out the issues to be determined. Parties are then invited to respond by another round of written submissions, followed by another hearing on the particular issues. After that hearing, a new deliberation phase will start, in which it cannot be absolutely excluded – although unlikely – that the judge will reopen the proceedings again. All this shows that the Belgian system is based on written submissions and oral hearings. It can however be observed that the idea of the oral hearings as elements of the parties’ right to be heard does not resonate much in Belgian civil procedure. It is rather the opportunity to submit written observations that secures a party’s right to be heard – not the day in court.
89. Many Japanese judges are careful not to give a surprise judgment and raise relevant points during the oral hearing.
90. In the Iranian system, the proceeding is initiated by the written statement of claim by the plaintiff and the statement of defence by the defendant. As soon as the exchange of the written statements is finished, the court will schedule the first oral hearing, but Art 93 CPC still allows: ‘Parties to the action may attend the court hearing, or otherwise send in a written submission.’ In practice, since the courts are so busy, they encourage the parties to submit their written submissions. Some professionals even think it would be better to eliminate oral hearings completely from the civil proceedings.
91. The United States does not have comfortable rhetorical analogy to European concepts of extensive ‘preparatory’ phases before a main hearing, because the United States has a jury trial system. Very few cases in the United States are bench trials conducted exclusively by the judge where the judge will extensively work with the attorneys to limit the scope of the dispute. Some bench trials may be mandated by statute, or by consent of the parties. But bench trials are rare. In the US, in the ordinary course of pre-trial procedure the scope of the litigation may be narrowed through a judge’s rulings made during pre-trial motion practice to dismiss the case, or for a more definite statement by the parties, or by motions to strike pleadings. Typically, these motions are decided on the written submissions, or in some instances the judge may ask the litigants to appear before the judge to argue the merits of these motions. If a case proceeds to a jury trial, the judge will issue a pre-trial order that sets out the scope of the triable claims and defences and any rulings on the admissibility of evidence, including expert witness testimony.

4.2.3        The Relation Between Oral Elements and Efforts to Find an Amicable Solution

92. Oral elements have particularly (re)gained in importance by procedural reforms which have put an emphasis on the court’s mission to encourage and support the parties for finding an amicable solution for their dispute.^[124] In Germany, there can be observed a clear development towards an active judge who should make substantial efforts for coming to a settlement agreement. The German legislator has even established a special oral hearing which is exclusively intended to explore the possibilities for such a settlement.^[125] During this hearing, the judge tries to enlarge the discussion to the long-term interests of the parties going beyond the actual legal dispute.^[126] This requires a real dialogue between the judge(s) and the parties or their representatives.
93. The situation is almost similar in Japan. Since the number of judges is limited and the courts are overcharged, many judges try to resolve disputes through settlement. In particular, in cases where continuous dispute resolution is desirable, such as labour-related disputes, judges actively attempt to reach settlements. Oral argument proceedings and settlement proceedings are strictly distinctive. The disclosure of intermediate thoughts of the judge in the course of settlement efforts varies from judge to judge, and some judges strongly recommend both parties to reach settlement in order to avoid writing a judgment. In lease-related disputes on land and house, the Land and House Lease Act provides for an obligatory mediation effort before going to court.
94. In Spain, the judge presiding the preparatory hearing is expected to begin the hearing by exploring whether the parties have reached a settlement or are willing to reach such settlement;^[127] and this possibility remains open during the whole proceedings.^[128]
95. In the Iranian system, courts often use the oral hearing for an attempt to reach an amicable solution. Although there is no legal duty for the court to do so, sometimes when it comes to a complex case from which the court wishes to get rid of, the court may even offer to refer the case to arbitration.
96. Norwegian judges have a duty to promote settlement in regular court proceedings or divert the case to court-conducted mediation, when appropriate, pursuant to DA Sec 8-1 and 8-3.^[129]
97. The Brazilian legislator has also been trying to increase consensual solutions, which still have relatively low numbers, around ten percent of the cases filed, by imposing the use of hearings focused centrally on the use of mediation and conciliation. However, the will of the legislator seems to find an obstacle in practice, as many processes end up developing without the aforementioned conciliation and mediation hearing.
98. In Togo, it is especially in commercial matters that we can observe the tendency towards an active judge, who simplifies the amicable resolution of disputes. Based on OHADA law, Art 20 of the 2020 Law instituting commercial jurisdictions allows the judge to engage in a real dialogue with the parties with the view of arriving at an amicable solution.
99. In the Netherlands, an explicit goal of an oral hearing is to find an agreement between the parties.^[130] In practice, the judge may give his or her preliminary ideas about the outcome of the case, whether or not at the request of the parties, in order to stimulate the parties to come to an agreement. The judge will not take part in the attempt to come to an agreement but may instigate parties to undertake an attempt. Regarding the notion of ‘oral hearing’, it should be pointed out that the attempt to come to an agreement does not necessarily happen at the main hearing. An oral hearing may be ordered for such purposes at any moment during the proceedings.^[131] In appeal cases, for example, a practice exists by which the appeal court orders an oral hearing immediately after the introduction of the appeal (this is called a ‘mondelinge behandeling na aanbrengen’) for the purpose of checking whether an agreement is possible. Where this is not possible, the hearing will turn into a case management conference.
100. In Slovenia, one of the purposes of the preparatory conference (which is quasi obligatory) is that the judge and the parties should try to reach an in-court settlement, but also to examine options for ADR). In a preparatory conference a judge (the same judge to whom the case is assigned for ordinary adjudication) has an active role and must openly discuss with the parties factual and legal issues and possible settlement options. In line with traditional role of the judge in an Austrian-based type of civil procedure, a civil judge is expected to undertake an active role in assisting parties to reach settlement during the whole trial, not only in the preparatory conference. Judges have quite broad space in that regard and are not prevented from actively giving proposals and hints, including openly stating their preliminary legal evaluations of the case (which often serves as a basis for a settlement), however they must be observant of the limits, imposed by the requirement of neutrality and impartiality.
101. In the United States there has been a recent trend towards more activist judges encouraging party settlement. The judge will raise the prospect of settlement at the initial meeting of the litigants at the outset of the litigation, during the time when the judge will work with the attorneys to create a scheduling order. In the U.S., non-complex litigation typically is party-initiated and party-run, with little intercession by the presiding judge. Some courts or judges may require that parties attend mediation at certain times during the case development. During motions practice or pre-trial hearings, judges may use their auspices to inquire concerning the status of possible settlement initiatives and may use the judicial office to encourage such settlement.
102. So, it can be observed that in many systems, for settlement negotiations judges seem to prefer oral hearings to an exchange of written statements. Modern forms of online mediation services however raise the question whether this attitude is still justified. For the time being, it can however be stated that oral elements are often combined with an active judge, who has the mission to encourage and support the parties for finding an amicable solution. This approach has also found its way into the ELI/UNIDROIT Model European Rules of Civil Procedure^[132] (cf chapters 1.III and 4.2.6).

4.2.4        Oral Elements and the Question of Immediacy

103. Oral elements always lead to the follow-up question of whether the judges who render the final judgment and the judges who follow/guide the oral elements of the proceedings must be the same persons (‘principle of immediacy’).
104. The German procedural system is governed by the principle of immediacy.^[133] There are however some important exceptions. For the taking of evidence, in particular for the examination of witnesses who cannot come to the court room, courts resort to delegated and requested judges, who summarize the results of the witness examination in a protocol.^[134] There is no verbatim protocol.^[135] Another exception concerns the situation in which a judge is replaced by another, either due to retirement, illness or a planned change of position. Here, in general, it suffices that the new judge is present during the final main hearing; the taking of evidence and the hearings that had been conducted before are only repeated under very specific circumstances.^[136] This shows, that under German law the replacement of a judge does not have a serious impact on the structure of the proceedings: The new judge continues where the former judge has stopped – with the exception of the final hearing. But as the time span between the final hearing and the finding of the final decision is usually quite short,^[137] this seldom creates difficulties.
105. A similar approach is to be found in the Spanish system. When there is evidence that it is impossible or very difficult to be taken at the final hearing (eg, witness living far away, without any possibilities of giving testimony via video-conference), the evidence may be taken by a different court; and the results will be documented or video-recorded and, then, evaluated by the court presiding the final hearing and giving judgment.^[138] Also, it is not required that the Spanish judge conducting the preparatory hearing is the same judge presiding the final hearing and giving judgment.^[139] And, eventually, only when the judge presiding the final hearing subsequently becomes incapable of rendering the judgment (eg, because the judge dies or falls seriously ill for a long period of time) and the only option to decide the case is bringing a new judge in, should the final hearing be repeated before this new judge.^[140]
106. A relatively new phenomenon concerning the principle of immediacy is the use of modern technology for conducting the hearing(s). Hearings can be organized remotely in many procedural systems all over the world. Under Covid, the instrument of remote hearings became part of daily court life even in those countries where it had been sleeping beauty before.^[141] On the one hand, the use of remote hearings makes oral elements possible even where a meeting in person is not possible and thus opens the path for a pragmatic implementation of an oral-based approach. On the other hand, it has to be seen that the personal impression in a remote hearing might be different in comparison to an impression gained in a meeting in person.^[142] This is the reason why judges in Germany are reluctant to use remote technique for the examination of a witness (for the question of immediacy in the context of the taking of evidence, see part 8). A reason for the reluctance might be the missing of official guidelines for the use of video conferencing. Such guidelines exist, eg, in the English system in annex 3 to Practice Direction 32 and also in the Spanish system in the form of a Guide prepared by the General Council for the Judiciary.^[143]
107. In Iran the situation is quite similar to Germany. Iran’s civil procedural system follows the principle of immediacy. However, it seems that the scope of exceptions of Iran’s Code of Civil Procedure is broader than under the German legal system. Art 244 GCCP provides:

If the witness is unable to appear before the court, and likewise in instances where the court deems it necessary, the court may hear the witness’s testimony at their home, or at the place of their work, or at the place of dispute, through one of the judges of the court.

108. Under the title ‘Site Inspection and Local Investigations’ Art 255 specifies: ‘Writ of site inspection or local investigations may be enforced by one of the judges of the court or the investigating magistrate.’ On preserving evidence, Art 153 states:

The court may refer the securing of evidence to the alternate judge, or the chief clerk of the court, with the exception of cases where only the securing of evidence constitutes the basis of the court’s judgment. In such a case the judge issuing the judgment must take action personally, or the report on the securing of evidence is trusted by the court.

109. In Norway, remote examination of experts and expert witnesses by telephone was common before the pandemic. By doing so, experts could avoid time-consuming travel to and from the court. During and after the pandemic, videoconferencing has largely replaced telephone conferencing. Witnesses, particularly those that are considered relatively trustworthy, can be examined remotely when travel entails high costs. Norwegian geography and climate are likely to have influenced the openness to remote examination of witnesses. Case management hearings are as a rule conducted remotely; this was already true before the pandemic.^[144] 
110. The final hearing in small claims proceedings can be conducted remotely at the discretion of the court.^[145] In regular proceedings, the main hearing can be conducted remotely or a party can attend remotely when the court finds it suitable and justifiable (reasonable), or it is specifically provided (as is the case for preparatory hearings and for small claims proceedings).^[146] Before the pandemic, the parties had to consent. One partly could thus unreasonably refuse to consent, and thus delay the proceedings. Remote hearings and examinations are not considered to violate the principle of immediacy in Norway.
111. In the post-pandemic Brazilian reality, there is also a lively debate about the return of face-to-face activities or whether virtual hearings can be fully equivalent or not for the collection of evidence and the performance of other procedural acts. There is no resistance from the judges to carrying out procedural steps online. By contrast, the re-establishment of face-to-face hearings is defended especially by some lawyers and by governing bodies of the Judiciary as the National Council of Justice (CNJ).
112. In Togo, even before the pandemic, a process of modernization of the justice system had been initiated, resulting in the digitalization of certain aspects of the procedure. Today, the referral of cases to the judge and the payment of procedural costs is done online, especially in commercial matters. But there is still no possibility to guarantee the participation of the parties via video conference.
113. In Belgium, certainly in civil proceedings, there is a return to the pre-pandemic practice of in person court hearings. The debate on online court hearings is non-existent, which is perhaps due to the limited size of Belgium, court hearings not requiring an excessive amount of travelling. That being said, although civil procedure in Belgium is largely based on written submissions and evidence, the principle of immediacy is considered to be important. A judgment may only be decided by judges who were present during all hearings connected with the case^[147] – apart from the initial hearing.
114. In Slovenia, Art 214.a CPA states that if both parties agree and if the judge so decides, the parties, their representatives and/or witnesses and experts are allowed to attend the hearing remotely via videoconference (the judge should be in the courtroom, though; at least in the post-pandemic conditions). This method is however rarely used unless in cross-border context pursuant to the EU Taking of Evidence Regulation.
115. Japanese judges are reluctant to use remote technique for the examination of a witnesses. The situation is quite similar to Germany. Under the current Act, video conferencing is permitted for the examination of witnesses,^[148] parties^[149] and expert witnesses^[150] during the trial (oral argument) of the ordinary litigation. Written preparatory proceedings and examination of witnesses in trial are allowed in small claims proceedings.^[151]
116. Telephone conferencing is permitted for preparatory proceedings.^[152] However, this applies only if one of the parties appears on that date.^[153] This was not a convincing system under the Covid-19 pandemic because at least one party has to come to the court. Therefore, a new reform Act permits web conference systems even when both parties don't come to court. Under the Covid-19 pandemic, the written preparatory proceedings, which is one of the proceedings of allegation and evidence arrangement, was frequently made use of. If a party resides in a distant location or if the court finds it to be appropriate for any other reason, the court may refer a case to written preparatory proceedings (meaning proceedings for arranging issues and evidence through the submission of briefs, etc, without the appearance of the parties).^[154] The same is true for the use of telephone conference systems in the case in which both parties live in remote islands. The courts prefer Web conference systems, ie, Zoom/Reams. But this does not allow to take documentary evidence.  
117. The United States common law system has no rhetorical concept of ‘immediacy’, and this language makes no sense to an American lawyer. To the extent that the concept of immediacy refers to the continuity of judicial involvement or oversight of litigation from initiation through verdict, settlement, or disposition of the litigation, usually a single judge is assigned to supervise and manage a case. However, in the same case, a judge may be assisted in various procedural rulings by magistrate judges who work with the federal judge. In addition, during the course of litigation a judge may be recused from a case or reassign the litigation to another judge. Such assistance by a magistrate judge, recusal, or case reassignment does not affect the validity of the proceedings.

Abbreviations and Acronyms        

Abbreviations which are not contained in this list are based on the Cardiff index of legal abbreviations. 

ACHPR	African Court on Human and Peoples’ Rights
ADR	Alternative dispute resolution
ALI	American Law Institute
Art	Article/Articles
BGH	Bundesgerichtshof (Federal Court of Justice) (Germany)
BID	Banco Interamericano de Desarrollo (Inter-American Development Bank)
CEPEJ	Conseil de l'Europe Commission européenne pour l’efficacité de la justice (Council of Europe European Commission for the efficiency of justice)
cf	confer (compare)
ch	chapter
CIDH	Corte Interamericana de Derechos Humanos (Interamerican Court of Human Rights)
CJEU	Court of Justice of the European Union
CNJ	National Council of Justice (Brazil)
CPA	Civil Procedure Act (Slovenia)
DA	The Dispute Act (Norway)
DES	Synthetic Drug Diethylstilbestrol
EBRD	European Bank for Reconstruction and Development
edn	edition/editions
ed	editor/editors
etc	et cetera
ECtHR	European Court of Human Rights
ECLI	European Case Law Identifier
eg	exempli gratia (for example)
ELI	European Law Institute
EU	European Union
EUR	Euro
FRCCP	Code of Civil Procedure (France)
ff	following
fn	footnote (external, ie, in other chapters or in citations)
GCCP	Code of Civil Procedure (Germany)
GVG	Gerichtsverfassungsgesetz (Courts Constitution Act) (Germany)
ibid	ibidem (in the same place)
ICT	Information and Communication Technologies
ie	id est (that is)
IIDP	Instituto Iberoamericano de Derecho Procesal (Iberoamerican Institute of Procedural Law)
JC	Judicial Code
JCCP	Code of Civil Procedure (Japan)
JPY	Japanese Yen
LEC	Ley de Enjuiciamiento Civil (Code of Civil Procedure) (Spain)
n	footnote (internal, ie, within the same chapter)
no	number/numbers
OHADA	Organization for the harmonisation of Business Law in Africa
para	paragraph/paragraphs
pt	part
Sec	Section/Sections
SCC	Supreme Court Canada
SME	small and medium-sized enterprise
supp	supplement/supplements
trans/tr	translated, translation/translator
UK	United Kingdom
UNIDROIT	Institut international pour l’unification du droit privé (International Institute for the Unification of Private Law)
UP	University Press
US / USA	United States of America
USD	United States Dollar
USFRCP	Federal Rules of Civil Procedure
v	versus
vol	volume/volumes
WB	World Bank
ZKM	Zeitschrift für Konfliktmanagement (Journal for Conflict Management) (Germany)

Legislation

International/Supranational

African Charter on Human and Peoples’ Rights 1981

Agreement on the European Economic Area, OJ No L 1, 3.1.1994, p. 3 (EU)

American Convention on Human Rights 1969

Arab Charter on Human Rights 2004

Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ L 339, 21.12.2007, p. 3-41 (EU)

Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commerical Matters 1965 (HCCH)

Council Directive on unfair contract terms in consumer contracts, 93/13/EEC of 5 April 1993 (EU)

EU Charter of Fundamental Rights 2000

European Convention on Human Rights 1950

International Covenant on Civil and Political Rights 1966

Proposal for a Directive of the European Parliament and of the Council on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”), COM(2022) 177 final (EU)

Regulation establishing a European Small Claims Procedure, 861/2007 of 11 July 2007 (EU)

Regulation on cooperation between the courts of the Member States in the taking of civil or commercial matters, 2020/1783 of 25 November 2020 (EU)

Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), 1215/2012 of 12 December 2012 (EU)

Statute of the Arab Court of Human Rights 2014

Universal Declaration of Human Rights 1948

National

Act on the Expediting of Trials 2003 (Japan)

Act on Land and Building Leases 1991 (Japan)

Belgian Judicial Code (see Gerechtelijk Wetboek)

Burgerlijk Wetboek, Dutch Civil Code (the Netherlands)

Civil Provisional Remedies Act 1989 (Japan)

Code de l’organisation judiciaire (French Courts Constitution Act) (France)

Code de procédure civile (Code of Civil Procedure) (France)

Code of Judicial Procedure (Finland)

Código Civil Español (Spanish Civil Code) (Spain)

Código de Processo Civil Brasileiro 2015 (Brazilian Code of Civil Procedure) (Brazil)

Constitución Española 1978 (The Spanish Constitution) (Spain)

Constituição da República Federativa do Brasil (The Constitution of the Federative Republic of Brazil) (Brazil)

De Belgische Grondwet, La Constitution Belge (The Belgian Constitution) (Belgium)

Decrét n° 75-1123 du 5 deciembre 1975 instituant un nouveau code de procédure civile 1975 (Decree establishing a new code of civil procedure) (France)

Decrét n° 2010-1165 du 1er octobre 2010 relatif á la conciliation et á la procedure orale en matière civile, commerciale et sociale 2010 (Decree dealing with conciliation and oral proceedings in civil, commercial and social matters) (France)

Dutch Code of Civil Procedure (Netherlands)

Federal Rules of Civil Procedure (USA)

Gerechtelijk Wetboek, Code Judiciaire (Belgian Judicial Code) (Belgium)

Gerichtsverfassungsgesetz (Courts Constitution Act) (Germany)

Grundgesetz für die Bundesrepublik Deutschland (Constitution of the Federal Republic of Germany) (Germany)

Iran’s Code of Civil Procedure (Iran)

Japanese Code of Civil Procedure 1996 (Japan)

Kongeriket Norges Grunnlov (The Constitution of the Kingdom of Norway) (Norway)

Ley de Asistencia Jurídica Gratuita 1996 (Free Legal Aid Act) (Spain)

Ley de Enjuiciamiento Civil 2000 (Spanish Code of Civil Procedure) (Spain)

Ley de Patentes 2015 (Law on Patents) (Spain)

Ley de Secretos Empresariales 2019 (Law on Trade Secrets) (Spain)

Ley de Seguridad Privada 2014 (Law on Private Security) (Spain)

Ley Orgánica del Poder Judicial (Organic Law on the Judiciary) (Spain)

Ley reguladora del uso de las tecnologias de la información y la comunicación en la Administración de Justicia 2011 (Law regulating the use of information and communication technologies in the Administration of Justice) (Spain)

Loi n° 2007-1787 du 20 décembre 2007 relative á la simplification du droit (1) 2007 (Law relating to the simplification of law) (France)

Loi n° 2020-002 du 7 janvier 2020 portant modification de la loi n° 2018-028 du 10 decembre 2018 instituant les juridictions commerciales en republique togolaise 2020 (Law on amending the law on instituting commercial restrictions) (Togo)

Lov om mekling og rettergang I sivile tvister (tvisteloven) 2005 (Act relating to the mediation and procedure in civil disputes (The Dispute Act)) (Norway)

Lov om rettsgebyr (rettsgebyrloven) 1982 (Court Fees Act) (Norway)

Northern Territory of Australia Supreme Court Rules 1987 (Australia)

Patent Act 1959 (Japan)

Personal Status Litigation Act 2003 (Japan)

Real Decreto por el que aprueba el Reglamento de Seguridad Privada 1994 (Law which approves the regulation of private security) (Spain)

Rechtsanwaltsvergütungsgesetz (Germany – RVG – Law on the lawyers’ fees)

Rules of Court 2021 (Singapore)

Slovenian Civil Procedure Act 1999 (Slovenia)

The Act on Alternative Dispute Resolution in Judicial Matters 2009 (Slovenia)

The Civil Procedure Act (Serbia)

The Civil Procedure Rules 1998 (England)

The Constitution of Afghanistan 2004 (Afghanistan)

The Constitution of Japan (Japan)

The Constitution of the Federal Republic of Nigeria 1999 (Nigeria)

The Constitution of the Islamic Republic of Iran 1979 (Iran)

The Constitution of the Kingdom of the Netherlands (Netherlands)

The Constitution of the Republic of Ghana 1992 (Ghana)

The Constitution of the Republic of Slovenia (Slovenia)

The Constitution of the Socialist Republic of Vietnam (Vietnam)

The Constitution of the United States of America (USA)

The Swedish Code of Judicial Procedure 1942 (Sweden)

Togo Code de procédure civile 2021 (Code of Civil Procedure) (Togo)

Unfair Competition Prevention Act 1993 (Japan)

United States Code (USA)

Zivilprozessordnung (Austrian Code of Civil Procedure) (Austria)

Zivilprozessordnung (German Code of Civil Procedure) (Germany)

Zivilprozessordnung (Swiss Code of Civil Procedure) (Switzerland)

Model Rules and Guides

Compendium of “best practices” on time management of judicial proceedings 2006 (CEPEJ)

CEPEJ(2018)20R EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE (CEPEJ) REVISED SATURN GUIDELINES FOR JUDICIAL TIME MANAGEMENT (3rd revision) as adopted at the 31th plenary meeting of the CEPEJ Strasbourg, 3 and 4 December 2018.

CEPEJ(2006)13 EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE (CEPEJ) Compendium of ‘best practices’ on time management of judicial proceedings (https://rm.coe.int/16807473ab).

Effective Management of Arbitration – A Guide for In-House Counsel and Other Party Representatives (ICC Commission on Arbitration and ADR)

Guía para la celebración de actuaciones judiciales con medios telemáticos (Guide for conducting telematic judicial proceedings) (Spain)

Managing Arbitrations and Procedural Orders 2015 (Chartered Institute of Arbitrators)

Model European Rules of Civil Procedure 2020 (ELI/UNIDROIT)

Notes on Organizing Arbitral Proceedings 2016 (UNCITRAL)

Practice Direction 32 - Evidence (England)

Practice Direction HC97 Written Submissions and Issue Papers 2020 (Ireland)

Principles of Transnational Civil Procedure 2005 (ALI/UNIDROIT)

Report on Techniques for Controlling Time and Costs in Arbitration (ICC Arbitration Commission)

Revised Saturn Guidelines for Judicial Time Management 2018 (CEPEJ)

Cases

International/Supranational

Gothaer Allgemeine Versicherung AG and Others v Samskip GmbH, Case C-3456/12 (CJEU), Judgment 15 November 2012 [ECLI:EU:C:2012:719].

Karel de Grote – Hogeschool Katholieke Hogeschool Antwerpen VZW v Susan Romy Jozef Kuijpers, Case C-147/16 (CJEU), Judgment 17 May 2018 [ECLI:EU:C:2018:320].

National

Hadmor Productions Ltd v Hamilton (House of Lords, UK), [1983] 1 AC 191

Chambers v. NASCO, Inc (Supreme Court, United States), Judgment 6 June 1991 [501 U.S. 32 (1991)].

Lujan v. Defenders of Wildlife (Supreme Court, United States), Judgment 12 June 1992 [504 U.S. 555 (1992)].

Case n° 96-44-672 (Cour de cassation, chambre sociale, France), Judgment 17 July 1997 [Bulletin 1997 V n° 281, p. 204].

Case 2710-2001 (Constitutional Court, Spain), Judgment 182/2003 of 20 October 2003 [ECLI:ES:TC:2003:182].

Bell Atlantic Corp. v. Twombley (Supreme Court, United States), Judgment 21 May 2007 [550 U.S. 544 (2007)].

Ashcroft v. Iqbal (Supreme Court, United States), Judgment 18 May 2009 [556 U.S. 662 (2009)].

Slovenian Constitutional Court No. Up-2443/08 of 7 October 2009.

Case U-I-164/09 (Constitutional Court, Slovenia), Judgment 4 February 2010 [ECLI:SI:USRS:2010:U.I.164.09].

Case U-I-200/09 (Constitutional Court, Slovenia), Judgment 20 May 2010 [ECLI: SI:USRS:2010:U.I.200.09].

Constitutional Court of Slovenia, Judgment Up-603/13, 16 February 2016.

Cour de cassation, Belgium, Judgment 23 December 2016, published in Rechtskundig Weekblad 2016-17, 1090.

Young Crystal Ltd and Others v Hang Seng Bank Ltd (Court of First Instance, Hong Kong), Judgment 30 May 2022 [2022 HKCFI 1589].

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