In Germany oral hearings are usually held in person but they can be conducted by video conference thanks to a change to the code of civil procedure made in 2002. This says that the court may allow the parties, their representatives and advisers to be at another place during the oral proceedings and to perform procedural acts there, which are transmitted live by video and sound.
Lawyers can request a hearing by video conference and judges may allow video conferences if they consider it appropriate and the technical means are available to the court.
However, many courts do not yet have the appropriate facilities or the judges lack the necessary experience or technical skills so the use of communications technology in German court proceedings has been a rare exception until recently.
Coronavirus lockdown and movement restrictions may provide a boost to the use of video conferences. Several courts started proactively offering to hold hearings by video conference and parties are calling for an accelerated digitalisation of the German judicial system.
The use of video technology has many advantages: by providing an alternative to the cancellation or rescheduling of appointments it can help avoid a backlog of cases, reducing the time that parties have to wait for a decision in their case. With only a few cases suitable for processing using only written proceedings, video conferencing can help speed up the rate at which oral hearings can be conducted. But the use of video technology also involves risks, and technical problems can be used as basis for later appeals and revisions.
However, the use of video technology has advantages beyond the pandemic, especially when the personal appearance of a party or a witness is not possible or would only be possible with great effort. Video conferences might also be appropriate for environmental reasons to cut down on excessive travel.
This procedure is also possible if everyone participates in the trial via video. In case of public trials, it must be possible for visitors to follow the trial in the courtroom via video, so the publicity of the trial required by German court constitution law is not affected.
In a usual court hearing, there is no verbatim record and also no audio or video recording of it. The judge will only prepare summary minutes of the hearing referencing the key events, such as the parties' motions, factual or legal arguments not yet contained in the written pleadings and procedural decisions of the court. In case of witness or expert examination, the testimony is also recorded only in a concise form and is paraphrased by the judge.
The minutes are audio recorded, transcribed and made available to the parties several days after the hearing. The parties may rely on these transcripts in their pleadings, but these minutes do not have the probative force of an official court record.
Despite the advantages set out above, video conferences will most likely remain the exception in German litigation proceedings even after the pandemic. Even when virtual hearings are conducted, judges do have to be present in the court room to ensure that the publicity of the trial is guaranteed. Most courts are not technically equipped in a way that would allow every chamber to hold their weekly oral hearings virtually, and many judges will still want to hear witnesses in person in order to assess their credibility.
So while we believe that more and more arbitration hearings will be conducted virtually in future, German court hearings will most likely be continued to be held in person.
Further information is available in a manual covering practical issues particularly relevant to foreign parties which you can request from Sibylle Schumacher and Julia Kölzer.