Technology is increasingly being utilised by courts and other bodies for the purpose of dispute resolution. For example, many courts and other dispute resolution bodies around the world, such as arbitration commissions, are conducting online proceedings. This has become even more relevant during pandemics such as the covid-19 pandemic, where people are unable to attend the proceedings in person (for a discussion about the contractual impact of pandemics on corporate and finance transactions, see China Business Law Journal volume 11, issue 5: Pandemics). In addition, many courts and other bodies are hearing evidence provided by witnesses via electronic means, such as video links (for a discussion about evidence given by expert witnesses, see China Business Law Journal volume 10, issue 4: Expert evidence).
This article considers the rules governing the giving of evidence by video link in civil proceedings. Separate rules and principles are relevant in the case of criminal proceedings, where the courts have to consider a range of special issues including the position of vulnerable witnesses and victims of crime. The article begins by examining the rules in common law jurisdictions. It then considers the rules in mainland China. Finally, it examines the situation where evidence from a foreign jurisdiction is collected in mainland China and considers whether this is possible, and, if so, whether evidence can be taken by video.
A former partner of Linklaters Shanghai, Andrew Godwin teaches law at Melbourne Law School in Australia, where he is an associate director of its Asian Law Centre. Andrew’s new book is a compilation of China Business Law Journal’s popular Lexicon series, entitled China Lexicon: Defining and translating legal terms. The book is published by Vantage Asia and available at www.vantageasia