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Litigation

Last verified on Monday 26th June 2017

Ecuador

Eduardo Carmigniani, Hugo García Larriva, Daniel Dziouba and Carla Cepeda

    Overview

  1. 1.Court system
    Describe the general organisation of the court system for civil litigation.
    1. The court system for civil litigation is organised hierarchically in the following instances: (i) judges of first instance – with cantonal and special jurisdiction, (ii) provincial courts – with provincial jurisdiction and (iii) The National Court of Justice – with national jurisdiction. Civil disputes are litigated in courts of first instance and are organised by territorial jurisdiction.

      These courts resolve any kind of civil proceedings, including, commercial conflicts, corporate matters, contractual disputes, tort claims, mass claims and inheritance disputes. However, there are special courts that resolve specific civil issues, such as labour and family matters. The provincial courts are composed of chambers that are divided by matters, and they hear appeals from the judges of first instance. Finally, the National Court of Justice is the last and highest civil instance of the judiciary and hears only cassation recourses. Nevertheless, a party may file a constitutional injunction known as an Extraordinary Action of Protection against a final judicial decision, when that party considers that the court of final instance could have violated a constitutional right in the process.

      According to the Ecuadorian Constitution, the judiciary is not only independent from other governmental branches, but is also internally autonomous. In this sense, courts are not bound by past decisions made by other courts or by its own previous decisions. However, decisions rendered by the chambers of the National Court of Justice are mandatory precedents if a certain point of law is decided on three different occasions in the same and consistent manner, provided that the National Court of Justice decides to consider this decision as binding and mandatory precedent in a plenary session. 

      Ecuadorian judiciary is not a jury-based system, therefore, all cases are decided by judges. Generally, these judges are elected through public contests based on merit and their tenure in the judicial career.

  2. 2.The legal profession
    Describe the general organisation of the legal profession.
    1. There are three requirements to practise law in Ecuador: (i) to have a law degree issued by a university recognised by the Secretary of Higher Education of Ecuador, (ii) to have completed a 500-hours internship in a state entity in Ecuador, and (iii) to be registered in the Ecuadorian Lawyers Forum, which is administered by the Judiciary Council of Ecuador. 

  3. 3.General
    Give a brief overview of the political and social background as it relates to civil litigation.
    1. Ecuador has a civil law jurisdiction with traditional adversarial trials. The most important substantive law is the Civil Code, which was enacted in 1860 and has not had any significant reforms since. On 22 May 2016, the new General Organic Code of Processes (GOCP) was implemented with the purpose of regulating all judicial procedures in Ecuador (excluding constitutional, electoral and criminal matters). In general, the GOCP is a modern Code based on an oral and adversarial system, which contains few and simple procedures and is expected to significantly reduce the length of proceedings in the judiciary system.

      Judiciary caseload is, overall, heavy and proceedings tend to last several years. It is expected that the length and costs of judicial proceedings will considerably decrease with the GOCP enactment.

    Jurisdiction

  4. 4.Jurisdiction and venue
    What are the criteria for determining the jurisdiction and venue of the competent court for a civil matter?
    1. Ecuadorian jurisdiction is classified by territory, level of authority and subject matter. In general, civil issues will be heard by specialised judges of first instance at the place of residence of the defendant. However, the plaintiff can also choose from other proper venues, depending on the circumstances of the case. For example, the claimant could choose the venue corresponding to the place where the parties executed the contract, the place where the contract’s obligations were carried out, the place where the parties have their assets or the place stipulated in a contract. 

  5. 5.Forum shopping
    Does your jurisdiction commonly attract disputes that have a nexus with other jurisdictions?
    1. It is not common for Ecuador to attract disputes that have nexus with other jurisdictions. Most international issues that involve Ecuadorian parties are resolved by international arbitration due to the inability of the judiciary to deal with complex matters and the backlog in Ecuadorian courts. 

  6. 6.Pendency in another forum
    How will a court treat a request to hear a dispute that is already pending before another forum?
    1. If the exactly same dispute is being heard by two different courts, provided that (i) it pertains to the same subject matter, (ii) it involves the same parties, and (iii) the proceedings have the same causa petendi, a party can oppose a litis pendencedefence.

      If the dispute and the parties are the same but the causa petendi differs, a court can order the accumulation of the processes before the preliminary hearing in the following cases: (i) when the decision of the process can cause res judicata effects on the pending proceeding, (ii) when both processes resolve the same subject matter, (iii) when both processes have the same parties, goods and actions, and (iv) when the separation of the processes could also separate the procedural object.

  7. 7.

    Deference to arbitration
    How will the courts treat a dispute that is, or could be, subject to an arbitration clause or an agreement to arbitrate, including in interim proceedings?

    1. If the parties to a contract have entered into an arbitral agreement to resolve any dispute related thereto, pursuant to article 8 of the Arbitration and Mediation Law, a judge must decline its jurisdiction, provided that the defendant had presented as defence the existence of an arbitral agreement and that the existence of such agreement has been – preliminarily – proved.

      Under Ecuadorian law, interim proceedings such as document discovery, anticipated witness testimony and others, are permissible and have to be filed before a court. The Arbitration Law does not provide specific rules in this matter. If initiated, such interim proceedings in no way affect an arbitration clause or a potential agreement to arbitrate. They are filed solely and exclusively with the goal of obtaining evidence to be presented in a future arbitration.

      It is important to distinguish the interim proceedings to collect evidence from the possibility of requesting interim relief or conservatory measures. According to Ecuadorian Law, an Arbitral Tribunal and, before its appointment, the courts, are entitled to grant interim reliefs. An arbitral tribunal can also enforce directly such measures, insofar as the parties have agreed thereto in the arbitration agreement. 

  8. 8.Judicial review of arbitral awards on jurisdiction
    May courts in your country review arbitral awards on jurisdiction?
    1. In general, the competence-competence principle – by means of which arbitrators are entitled to decide upon their own jurisdiction – is respected in Ecuador. Nevertheless, a party may file a constitutional injunction known as an Extraordinary Action of Protection, by means of which the Constitutional Court could vacate an arbitrator’s decision on jurisdiction if it verifies that a constitutional right – in particular the right to be judged by a competent judge – was violated in the proceedings.

  9. 9.Anti-suit injunctions
    Are anti-suit injunctions available?
    1. It might be possible to argue that anti-suit injunctions against any jurisdictional proceeding or arbitral proceedings are not available in Ecuador since these proceedings are jurisdictional in nature and, therefore, no constitutional recourse other than an Extraordinary Action of Protection could be filed ex post. 

  10. 10.

    Sovereign immunity
    Which entities are immune from being sued in your jurisdiction? In what circumstances? In what circumstances can creditors enforce a court judgment or arbitral award against a sovereign or a state entity?

    1. Under domestic law, pursuant to the Law on Immunities Diplomatic Privileges and Franchises, diplomatic and consular agents, under the principle of reciprocity, are granted immunity of jurisdiction in criminal, civil and administrative matters. The same privileges can by granted by a Treaty to other entities.

      Under international law, since article 416 (9) of the Ecuadorian Constitution recognises international law as a norm of conduct of the state, principles of customary international law governing the immunity of jurisdiction of sovereign states and their property should apply. In this sense, it will be for the courts to apply the law of sovereign immunity of states and their property as portrayed by customary international law, and, consequently, to determine whether a particular case falls within the scope of such rules or not. 

      As per article 107 of the Organic Code for Planning and Public Finances, any estate entity has the obligation to comply with any judgment that has acquire res iudicata effect. An international arbitration award is granted such effect once it has been recognised by a competent court. According to article 103 of the GOCP, to recognise an international arbitral award against a sovereign or an estate entity, the petitioner, in addition to fulfilling all the general requirements to recognise international awards, should demonstrate that the decisions are in accordance with the Ecuadorian Constitution, the Ecuadorian law and with the international treaties adopted by Ecuador.  

    Procedure

  11. 11.Commencement and conduct of proceedings in general
    How are proceedings commenced? To what extent will a court actively lead the proceedings and to what extent will the court rely on the parties to further the proceedings?
    1. Proceedings are commenced by the plaintiff with the filing of its statement of claim. If the claim complies with all legal requirements, the judge will admit the claim and will serve the defendant with the statement of claim and will order to file a statement of defence within 30 days. The judge will admit both the plaintiff and the defence, and summon them to a preliminary hearing where the judge will decide on all formal matters that could void the process in the future. Thirty days after this preliminary hearing, there is a final hearing where the parties have to present their arguments and to practice evidence. The judge will decide the case at the conclusion of the hearing

       

      In general, proceedings are conducted and promoted by the parties. Judges’ decisions are based on the facts and arguments presented during the process. However, Ecuadorian courts are encouraged to behave actively and could, exceptionally, order the practice of new evidence.

  12. 12.Statement of claim
    What are the requirements for filing a claim? What is the pleading standard?
    1. The statement of claim must include the following requirements: (i) designation of the competent judge, (ii) provide sufficient information to identify the claimant and the defendant, (iii) a detailed statement of the facts of the case, (iv) the legal basis of the case (v) to present all the evidence available, (vi) relief requested, (vii) the kind of proceeding applicable to the case, (viii) signatures and other specific legal requirements.

  13. 13.Statement of defence
    What are the requirements for answering claims? What is the pleading standard?
    1. In general, the statement of defence must comply with the same requirements of the statement of claim. However, the defendant should also specify all arguments to support its defence and its personal perspective of the facts of the case. Additionally, the defendant should also announce its evidence and the relief it requests. 

  14. 14.Further briefs and submissions
    What are the rules regarding further briefs and submissions?
    1. The statement of claim can be amended before the defendant presents the statement of defence. If new facts arise, before the preliminary hearing, the statement of claim or defence could be amended accordingly. After this point, statements cannot be modified. However, the ordinary proceeding includes a stage of hearings, in which parties can clarify their arguments, relief requested and resolve any formal or procedural breach that could render the proceeding null and void. Third parties, who have interest in the dispute, can also intervene in the proceeding. For this to happen, they should present a request to partake, which will be resolved by the judge of the case. 

  15. 15.Publicity
    To what degree are civil proceedings made public?
    1. With the exception of cases that are legally declared confidential – such as national security, family, child and sexual-related matters – all Ecuadorian proceedings are public. Aside from these exceptions, non-parties are able to access and review all the information from legal proceedings and to attend hearings. The judiciary system has an online database where details of cases are publically available. Nevertheless, TV cameras, photographers and any other type of media and recording systems are prohibited in hearings.

    Pretrial settlement and ADR

  16. 16.Advice and settlement proposals
    Will a court render (interim) assessments about any factual or legal issues in dispute? What role and approach do courts typically take regarding settlement? Are there mandatory settlement conferences between the parties at the outset of or during the litigation?
    1. During a preliminary hearing, the judge should listen to the parties and encourage them to arrive a settlement. However, judges are not allowed to render interim assessments about any factual or legal issue in dispute. 

  17. 17.Mediation
    Is referral to mediation or another form of ADR an option, or even mandatory, before or during the litigation?
    1. During the preliminary hearing, the judge can refer the case to mediation. In domestic arbitration cases, it is mandatory to initiate a mediation process before the appointment of the Arbitral Tribunal. 

    Interim relief

  18. 18.Forms of interim relief
    What are the forms of emergency or interim relief?
    1. There are several forms of interim relief, such as, seizures of assets, prohibition on transfer, sale or encumbrance, prohibition to leave the country, retention of credits, and others. The party who is interested in applying for an interim relief should present a request to the Court of first instance and explain the urgency and risk in order to request an interim relief. 

  19. 19.Obtaining relief
    What must a petitioner show to obtain interim relief?
    1. To obtain an interim relief, the petitioner must show: (i) legitimation in the proceeding, (ii) existence of the credit, and (iii) the need of the relief requested.

    Decisions

  20. 20.Types of decisions
    What types of decisions (other than interim relief) may a court render in civil matters?
    1. The court may render two types of decisions. The first occurs during the preliminary hearing where the court will decide on formal matters and the validity and continuity of the proceeding. The second takes place during the judgment hearing, where the court will provide a final and biding decision about the dispute.

  21. 21.Timing of decisions
    At what stage of the proceedings may a court render a decision? Are motions to dismiss and summary judgment available?
    1. The court must render a decision at the conclusion of the judgment hearing, which takes place 30 days after the preliminary hearing.

      A defendant can also file a motion to dismiss the claim – under exceptional grounds – in its statement of defence. This motion has to be decided in the preliminary hearing.

      Additionally, summary judgment is also available in Ecuador. This kind of proceedings can only be applied in specific disputes, such as, divorce, expropriation, and family maintenance matters. These proceedings have only one hearing which takes place 30 days after the defendant submits his or her respond to the statement of claim. 

  22. 22.Default judgment
    Under which circumstances will a default judgment be rendered?
    1. A default judgment will be rendered when the defendant has failed to file its statement of claim or failed to submit any kind of defence in the proceeding. The court is obliged to consider these scenarios as a simple denial by the defendant of all the facts and arguments contained in the statement of claim, except for cases in which the law provides other effects. 

  23. 23.Duration of proceedings
    How long does it typically take a court of first instance to render a decision?
    1. The time it takes a court of first instance to render a decision is extremely variable depending on the complexity of the dispute and the level of active participation of the parties. Furthermore, since Ecuador has recently enacted a new procedural code, there is a lack of statistical data that can suggest an average processing time. It is worth mentioning that the law states that all proceedings should render a decision within 60 days.

    Parties

  24. 24.Third parties – joinder, third-party notice, intervenors
    How can third parties become involved in proceedings?
    1. The GOCP provides in article 46 that third parties may file a motion to intervene in any procedure when they believe a court order affects their rights in any matter. Evidence in support of this claim must be presented alongside the motion to intervene.

      Third parties may also file a motion to intervene in a proceeding when seeking declaration of legal title over the disputed right or when a court order, eg, a judgment against one of the parties, may negatively affect a substantial legal relationship between the losing party and the third party.  

    Evidence

  25. 25.Taking and adducing evidence
    Will a court take or initiate the taking of evidence or will it rely on the parties to request the taking of evidence and to present it?
    1. The general rule provides that a court may only request evidence in exceptional matters in order to clarify the facts of the dispute. Nevertheless, the GOCP provides that the parties shall present all the evidence they possess when filing the claim and request the additional evidence they deem necessary during the preliminary hearing. 

  26. 26.Disclosure
    Is an opponent obliged to produce evidence that is harmful to it in the proceedings? Is there a document disclosure procedure in place? What are the consequences if evidence is not produced by a party?
    1. Ecuadorian law does not provide for a default document disclosure procedure. However, if any of the parties requests a document in possession of the opponent and he accepts to have it, the possessing party has the legal duty to present it. Failure to provide such document may result in a sanction for bad faith and disloyal litigation. Furthermore, failure of presentation may result in adverse inferences.  

  27. 27.

    Witnesses of fact
    Please describe the key characteristics of witness evidence in your jurisdiction. Is witness preparation allowed?

    1. Witness evidence is produced in the final hearing. Examination and cross-examination is allowed. GOCP provides that witnesses may refuse to answer a question only on the following grounds when their answer may result in criminal responsibility or when their answer violates their duty of keeping reserve for professional reasons. Parties may object to questions when they believe they are suggestive, confusing, impertinent, vague or merely hypothetical. Answers, on the other hand, may be objected when biased or when they have no relation to the question. Refusal to answer may result in adverse inference. If a witness provides a false answer, the judge shall suspend the examination and immediately send a copy of the proceeding record to the General Prosecutor’s Office for prosecution on perjury grounds. The GOCP is silent with respect to the validity of witness preparation; nonetheless, it is worth mentioning that it is a common practice in Ecuador.

  28. 28.Expert witnesses
    Who appoints expert witnesses? What is the role of experts?
    1. Expert witnesses are defined by the GOCP as those people who have special knowledge on any scientific, technical, artistic, practical or professional subject and are in capacity of informing a judge on facts or circumstances related to the dispute. Expert witnesses may be appointed by either party or the judge. Expert witness must issue a report that has to be delivered and notified by the judge to the parties at least 10 days before the final hearing. The expert witness has a duty to attend the final hearing and both parties have the right to examine and cross-examine the expert. Once examination is over, if the judge deems it necessary and there is more than one expert witness report issued on the same matter, a debate may be opened between both experts. An additional expert report may be ordered by the judge if it keeps any doubts after the expert witness debate. If any expert witness fails to attend the final hearing his or her expert report will lose any evidential value. 

  29. 29.Party witnesses
    Can parties to proceedings (or a party’s directors and officers in the case of a legal person) act as witnesses? Can the court draw negative inferences from a party’s failure to testify or act as a witness?
    1. The GOCP allows parties of a proceeding to act as witnesses. This includes directors and officers of a legal person. Negative inferences may be drawn by the judge if a witness fails to testify. 

  30. 30.Foreign law and documentation
    How is foreign law or foreign-language documentation introduced into the proceedings and considered by the courts?
    1. Pursuant to article 162 of the GOCP, any party invoking the application of foreign law shall present a certification issued by a diplomatic agent or from a public officer of the state which law is sought to be applied, demonstrating that such law is authentic and in force.

      To introduce foreign-language documentation into the proceeding two conditions must be met: (i) the document must be translated to Spanish; and (ii) if the document is issued in a foreign territory, it either has to be authenticated by an Ecuadorian diplomatic agent resident in the State where the document was issued or it has to be duly apostilled following The Hague Apostille Convention.  

  31. 31.Standard of proof
    What standard of proof applies in civil litigation? Are there different standards for different issues?
    1. As in most civil law countries, in Ecuador the party who asserts the existence of a fact or a right carries the burden of proof of the alleged facts or rights. The general standard of proof followed by Ecuadorian case law is a balance of probabilities. Ecuadorian law does not follow a preponderance of the evidence approach or a beyond the reasonable doubt approach.  

    Appeals

  32. 32.Options for appeal
    What are the possibilities to appeal a judicial decision? How many levels of appeal are there?
    1. Ecuador has a three-tiered court system composed of a lower court, an intermediate appellate court and a National Court. 

      Pursuant to article 256 of the GOCP parties have the right to appeal judicial decisions before the intermediate appellate court (called the Provincial Court). The intermediate court may either confirm the decision of the lower court or it may set aside such decision and dictate a new one. 

      If a party is not satisfied with the decision taken by the intermediate court, the GOCP provides the parties the possibility to file a cassation recourse to the extent that the challenged decision falls within one of the situations described in article 268 eg (i) when the judge failed to apply procedure laws or substantial laws; (ii) when the judgment fails to meet form requirements; (iii) in cases of an ultra petita, extra petita or infra petita judgment.

      There is also the possibility to file an Extraordinary Action of Protection before the Constitutional Court, but only when any such decisions violate a constitutional right. It acts as an extraordinary recourse.         

  33. 33.

    Standard of review
    What aspects of a lower court's decisions will an appeals court review and by what standards?

    1. The intermediate court will review the lower courts’ decision applying a de novo review standard. It shall look at the facts and analyse the evidence on a reasonable valuation basis. The motioning party may request the practice of new evidence to prove facts that were not proven before the lower court.

      The National Court of Justice will revise a lower’s court decision under a stricter standard limited to the review of the legality of that decision. It will not review the findings of the lower’s court decision in reference to the existence of facts and rights or the value that the lower court has gave to the evidence presented in the proceedings.

  34. 34.Duration of appellate proceedings
    How long does it usually take to obtain an appellate decision?
    1. An appellate decision may take between three and six months. Cassation, however, may take between six and 12 months. 

    Special proceedings

  35. 35.Class actions
    Are class actions available?
    1. Civil class actions are not available under Ecuadorian law.

  36. 36.Derivative actions
    Are derivative actions available?
    1. Derivative actions are not available under Ecuadorian law. 

  37. 37.Fast-track proceedings
    Are fast-track proceedings available?
    1. Besides summary judgment, fast-track proceedings are not available under Ecuadorian law. 

  38. 38.Foreign-language proceedings
    Is it possible to conduct proceedings in a foreign language?
    1. All proceeding must be carried on in Spanish. 

    Effects of judgement and enforcement

  39. 39.Effects of a judgment
    What legal effects does a judgment have?
    1. All judgment that is final has res iudicataeffect under Ecuadorian law. Judgments are only binding and enforceable upon the parties of the dispute. Although a judgment may affect third party rights, if such party did not take part in the dispute the judgment will not have binding effect upon it (ie, it may not be enforced against it). 

  40. 40.Enforcement procedure
    What are the procedures and options for enforcing a domestic judgment?
    1. Enforcing domestic judgments is rather simple. Once a final judgment has been reached and is under res judicata effect an enforcement procedure has to be motioned. Enforcement will depend upon the type of obligation being enforced.

      When enforcing monetary judgments, the judge will order the debtor or losing party to pay the amount in cash or relinquish enough goods to cover the amount due.  

      When enforcing to do obligations, ie, when a judgment orders specific performance, the judge will set a time period for the losing party to execute the judgment. Lack of performance will give the winning party the following options: request the judge that performance be executed by a third party in which case the losing party shall assume the costs or request monetary compensation.

      When enforcing a judgment for breach of not do obligations the judge shall order the losing party to restore things to its original state; and if is not possible, the judge shall order monetary compensation.  

      After the enforcement motion has been admitted, the judge shall appoint an expert in order to determine capital, interest and judicial costs that shall be paid by the losing party. The debtor can only oppose the writ of execution arguing the enforced obligation has been fulfilled. If the losing party fails to comply with the writs of execution, the judge may order the seizure of goods for the amount owed and auction them to the public until the due amount is reached. 

  41. 41.Enforcement of foreign judgments
    Under what circumstances will a foreign judgment be enforced in your jurisdiction?
    1. The GOCP establishes a twofold procedure: first recognition and then enforcement. According to article 102 of the GOCP, the recognition of a foreign judgment must be initiated before the Provincial Court of the province where the defendant resides. According to the same article, once a leave for enforcement is obtained, a party seeking enforcement of a foreign judgment must resort to a judge of first instance for civil and commercial matters from the place where the defendant resides. If the defendant does not reside in Ecuador, the competent judge is, either, that of the place where the assets that will be the subject of enforcement are located, or that of the place where the arbitral awards must deploy its effects.

    Costs

  42. 42.Costs
    Will the successful party’s costs be borne by the opponent?
    1. The GOCP provides that costs shall be borne, not by the losing party, but by the party who has litigated in bad faith, maliciously or in a disloyal manner. 

  43. 43.Legal aid
    May a party apply for legal aid to finance court proceedings? What other options are available for parties who may not be able to afford litigation?
    1. In Ecuador court proceedings are free. However, when costs such as expert fees cannot be covered by one of the parties the GOCP provides that the state shall bear such costs.  

  44. 44.Contingency fees
    Are contingency fee arrangements permissible? Are they commonly used?
    1. Yes, contingency fee arrangements are admitted and are commonly used in Ecuadorian practice.

  45. 45.Third-party funding
    Is third-party funding allowed in your jurisdiction?
    1. Third-party funding is not common in Ecuadorian litigation. However, it is not forbidden by law.  

  46. 46.Fee scales
    Are there fee scales lawyers must follow? Are there upper or lower limits for fees charged by lawyers in your jurisdiction?
    1. There are no fee scales or limits on lawyer fees. 

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Questions

    Overview

  1. 1.Court system
    Describe the general organisation of the court system for civil litigation.
  2. 2.The legal profession
    Describe the general organisation of the legal profession.
  3. 3.General
    Give a brief overview of the political and social background as it relates to civil litigation.
  4. Jurisdiction

  5. 4.Jurisdiction and venue
    What are the criteria for determining the jurisdiction and venue of the competent court for a civil matter?
  6. 5.Forum shopping
    Does your jurisdiction commonly attract disputes that have a nexus with other jurisdictions?
  7. 6.Pendency in another forum
    How will a court treat a request to hear a dispute that is already pending before another forum?
  8. 7.

    Deference to arbitration
    How will the courts treat a dispute that is, or could be, subject to an arbitration clause or an agreement to arbitrate, including in interim proceedings?


  9. 8.Judicial review of arbitral awards on jurisdiction
    May courts in your country review arbitral awards on jurisdiction?
  10. 9.Anti-suit injunctions
    Are anti-suit injunctions available?
  11. 10.

    Sovereign immunity
    Which entities are immune from being sued in your jurisdiction? In what circumstances? In what circumstances can creditors enforce a court judgment or arbitral award against a sovereign or a state entity?


  12. Procedure

  13. 11.Commencement and conduct of proceedings in general
    How are proceedings commenced? To what extent will a court actively lead the proceedings and to what extent will the court rely on the parties to further the proceedings?
  14. 12.Statement of claim
    What are the requirements for filing a claim? What is the pleading standard?
  15. 13.Statement of defence
    What are the requirements for answering claims? What is the pleading standard?
  16. 14.Further briefs and submissions
    What are the rules regarding further briefs and submissions?
  17. 15.Publicity
    To what degree are civil proceedings made public?
  18. Pretrial settlement and ADR

  19. 16.Advice and settlement proposals
    Will a court render (interim) assessments about any factual or legal issues in dispute? What role and approach do courts typically take regarding settlement? Are there mandatory settlement conferences between the parties at the outset of or during the litigation?
  20. 17.Mediation
    Is referral to mediation or another form of ADR an option, or even mandatory, before or during the litigation?
  21. Interim relief

  22. 18.Forms of interim relief
    What are the forms of emergency or interim relief?
  23. 19.Obtaining relief
    What must a petitioner show to obtain interim relief?
  24. Decisions

  25. 20.Types of decisions
    What types of decisions (other than interim relief) may a court render in civil matters?
  26. 21.Timing of decisions
    At what stage of the proceedings may a court render a decision? Are motions to dismiss and summary judgment available?
  27. 22.Default judgment
    Under which circumstances will a default judgment be rendered?
  28. 23.Duration of proceedings
    How long does it typically take a court of first instance to render a decision?
  29. Parties

  30. 24.Third parties – joinder, third-party notice, intervenors
    How can third parties become involved in proceedings?
  31. Evidence

  32. 25.Taking and adducing evidence
    Will a court take or initiate the taking of evidence or will it rely on the parties to request the taking of evidence and to present it?
  33. 26.Disclosure
    Is an opponent obliged to produce evidence that is harmful to it in the proceedings? Is there a document disclosure procedure in place? What are the consequences if evidence is not produced by a party?
  34. 27.

    Witnesses of fact
    Please describe the key characteristics of witness evidence in your jurisdiction. Is witness preparation allowed?


  35. 28.Expert witnesses
    Who appoints expert witnesses? What is the role of experts?
  36. 29.Party witnesses
    Can parties to proceedings (or a party’s directors and officers in the case of a legal person) act as witnesses? Can the court draw negative inferences from a party’s failure to testify or act as a witness?
  37. 30.Foreign law and documentation
    How is foreign law or foreign-language documentation introduced into the proceedings and considered by the courts?
  38. 31.Standard of proof
    What standard of proof applies in civil litigation? Are there different standards for different issues?
  39. Appeals

  40. 32.Options for appeal
    What are the possibilities to appeal a judicial decision? How many levels of appeal are there?
  41. 33.

    Standard of review
    What aspects of a lower court's decisions will an appeals court review and by what standards?


  42. 34.Duration of appellate proceedings
    How long does it usually take to obtain an appellate decision?
  43. Special proceedings

  44. 35.Class actions
    Are class actions available?
  45. 36.Derivative actions
    Are derivative actions available?
  46. 37.Fast-track proceedings
    Are fast-track proceedings available?
  47. 38.Foreign-language proceedings
    Is it possible to conduct proceedings in a foreign language?
  48. Effects of judgement and enforcement

  49. 39.Effects of a judgment
    What legal effects does a judgment have?
  50. 40.Enforcement procedure
    What are the procedures and options for enforcing a domestic judgment?
  51. 41.Enforcement of foreign judgments
    Under what circumstances will a foreign judgment be enforced in your jurisdiction?
  52. Costs

  53. 42.Costs
    Will the successful party’s costs be borne by the opponent?
  54. 43.Legal aid
    May a party apply for legal aid to finance court proceedings? What other options are available for parties who may not be able to afford litigation?
  55. 44.Contingency fees
    Are contingency fee arrangements permissible? Are they commonly used?
  56. 45.Third-party funding
    Is third-party funding allowed in your jurisdiction?
  57. 46.Fee scales
    Are there fee scales lawyers must follow? Are there upper or lower limits for fees charged by lawyers in your jurisdiction?