On 15 June 2020 the Supreme Court released an exposure draft on several provisions concerning evidence specifically relating to civil litigations involving IP matters.
The draft contains five chapters and 53 provisions, encompassing aspects of:
- the provision of evidence by the parties;
- the investigation of evidence;
- the collection and preservation of evidence;
- evidence exchange and cross-examination; and
- evidence assessment and admissibility.
The exposure draft also attempts to codify some customary practices – for example:
- Article 5 of the exposure draft enumerates admissible evidence in ascertaining damages for IP infringement, which includes:
- account books;
- accounting vouchers;
- annual reports of listed companies;
- assertions made on company websites or in brochures;
- industry margins;
- appraisal reports;
- IP licensing contracts; and
- the dossiers of market regulation, taxation and financial authorities.
- Article 7 of the exposure draft exempts parties' burden of proof in proving the primary facts ascertained by administrative decisions, provided that either no administrative proceeding has been initiated to challenge such decision or said decision has been upheld by effective court judgments, unless there is counterevidence to prove otherwise.
- Article 45 of the exposure draft establishes the principle in ascertaining the authenticity of electronic data – courts may acknowledge the authenticity of electronic data, including data which originates from the authorities, is legalised by a public notary or provided or confirmed by a neutral third-party evidence depository platform, unless there is counterevidence to prove otherwise.
