Comments on: Case of the Day: In re Frau R https://lettersblogatory.com/2016/04/14/case-day-re-frau-r/ The Blog of International Judicial Assistance Thu, 21 Nov 2024 02:15:06 +0000 hourly 1 https://wordpress.org/?v=6.9.4 By: Ted Folkman https://lettersblogatory.com/2016/04/14/case-day-re-frau-r/#comment-2506 Fri, 15 Apr 2016 14:56:39 +0000 https://lettersblogatory.com/?p=22414#comment-2506 In reply to Peter Bert.

Peter, I accept your charitable amendment to my reading of German law! A more precise statement would have focused on the power to gather documents not in the parties’ possession.

]]> By: Peter Bert https://lettersblogatory.com/2016/04/14/case-day-re-frau-r/#comment-2505 Fri, 15 Apr 2016 12:19:54 +0000 https://lettersblogatory.com/?p=22414#comment-2505 When I first read Ted’s comment, I took issue with the statement that in “Germany, it is the court’s obligation to obtain the relevant evidence”, as it struck me too far-reaching: German procedural law places the burden of offering the evidence on the parties. The duty to establish facts ex officio is an exemption; the most relevant application being in family law matters. On the other hand, the parties can only “offer” evidence, as the German technical term Beweisangebot nicely illustrates. It is for the judges to accept that offer: They control whether witnesses or experts that have been offered will actually be heard, and if so, which ones. Parties are free to introduce documents that they have in their possession into the proceedings, but access to documents they do not have in their possession again is controlled by the Courts, and so is the decision whether to seek judicial assistance, be it with respect to witnesses or documents abroad. So with that in mind, Ted may have overstated things only slightly.

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