Section 128a of the German Code of Civil Procedure (ZPO) opens up far-reaching possibilities for involving parties and other participants in the proceedings in oral hearings via video and audio transmission. Under Section 284 ZPO, video technology may also be used in the taking evidence. We have already explained the prerequisites for video hearings, as well as the criteria that must be considered when deciding for or against a video hearing involving purely domestic matters, in the first part of our article (Video Hearings Under Section 128a of the German Code of Civil Procedure: Requirements, Possibilities, and Limitations | ADVANT Beiten). However, what is primarily a matter of the suitability of the proceedings and the court’s procedural arrangements within Germany takes on an additional legal dimension as soon as parties or witnesses are located abroad.
After all, the technical possibility of joining the proceedings via video link does not in itself determine whether a German court is permitted to hear or examine a person abroad. The flexibility established by Section 128a ZPO is limited here by the territorial scope of state sovereignty. In this respect, the courts are bound by Article 25 of the German Constitutional Law (Grundgesetz, GG) in conjunction with Article 20 (2) GG to the general principles of international law, which are based on the continental European concept of sovereignty. This tension becomes particularly evident during the examination of witnesses. More difficult is the classification of parties and procedural acts that are less intrusive.
Judicial proceedings are an expression of state sovereignty and are, in principle, subject to territorial jurisdiction. Their conduct abroad thus requires a basis in international law or European Union law. The technical possibility of remote participation under Section 128a ZPO does not alter this. It extends the options for structuring proceedings, but not the territorial scope of German sovereignty.
This may initially seem like a mere technicality, particularly in cases of voluntary participation. However, what is decisive is not the consent of the person participating remotely, that is via video link, but the sovereignty of the state of residence. Moreover, judicial procedural acts may involve elements of state coercive power - such as obligations to tell the truth, measures to maintain order, or procedural obligations to cooperate - which a German court cannot enforce independently abroad. The principle of territoriality thus ensures the exclusive jurisdiction of the state of residence over sovereign interventions and prevents state powers from being extended in an uncoordinated manner beyond its own national borders.
The distinctions are most apparent when it comes to examining witnesses. The examination of witnesses is a classic form of taking evidence and is therefore a sovereign activity. If evidence is taken abroad, it directly affects the sovereignty of the residence state. A direct video examination of a witness residing abroad must therefore not be based solely on Section 128a ZPO but requires a corresponding legal basis.
Within the European Union, the Regulation on the Taking of Evidence (EU) 2020/1783 provides a specific legal framework for this purpose. Above all, it facilitates the direct taking of evidence by the requesting court via video conference, but integrates this into a regulated procedure for cooperation between Member States. Hence, video technology does not resolve the issue of territoriality but rather enables evidence to be taken precisely on the basis of an authorisation under EU law. In the case of witnesses in third countries, however, it must be examined whether a basis under international law or another means of international legal assistance is available.
Unlike in the case of the examination of a witness, the legal classification of parties and their authorised representatives has not been conclusively clarified. What is particularly disputed is whether the mere participation in a video hearing from abroad constitutes an exercise of German sovereign authority on foreign territory.
According to a widely held view, any cross-border judicial procedural act fundamentally affects the sovereignty of the residence state and thus requires a corresponding legal basis. According to this view, the voluntary nature of participation is irrelevant since it is not the rights of the person participating remotely that are affected but rather the sovereign rights of the foreign state. For instance, the Higher Regional Court of Karlsruhe (decision of 9 December 2025 – 18 UF 68/25) ruled that a father was not permitted to participate from Serbia in a hearing concerning a child custody case.
By contrast, a distinction is sometimes made based on the purpose of the video link. According to this approach, voluntary participation or an informal hearing should be permissible in any event where personal attendance has not been ordered and the video link does not serve the purpose of formally establishing the facts of the case. Accordingly, the Freiburg Administrative Court (11 March 2022 – 10 K 4411/19) permitted the managing director of a plaintiff based abroad to participate from abroad, provided that the legal representative was present in the courtroom and personal attendance had not been ordered.
There are already some doubts as to whether the mere authorisation of video participation constitutes an act of state authority abroad at all. It is of no relevance whether courtroom order can be maintained at the remote participant's location, especially since their participation can be ended at any time.
Consequently, the function of the specific procedural act takes on crucial importance. The more the video link serves the purpose of clarifying the facts of the case or involves binding procedural obligations, the more this implies a sovereign act. Where participation is purely voluntary, with no order to appear in person, concerns regarding sovereignty take second place to the right to participate.
For matters within the European Union, Regulation (EU) 2023/2844 on the digitalisation of judicial cooperation must also be observed. It establishes a framework under EU law for cross-border civil and commercial matters, enabling parties and their representatives to participate in oral hearings via video conference or other remote communication technology. he use of video technology continues to take place within the framework of coordinated cooperation and not as an autonomous exercise of state authority. For the EU’s internal market, this results in a clear distinction. Under Article 5 of this Regulation, a party or their representative in civil and commercial matters may voluntarily participate in an oral hearing via video conference, without the need for a prior request for legal assistance. This expressly does not apply to the examination of witnesses, meaning that the requirements of the Evidence-Taking Regulation still apply in this respect.
EU regulations thus confirm that the use of video technology cannot be used to unilaterally expand national sovereignty, but rather remains reliant on collaborative procedural structures.
Beyond the scope of EU regulations, the legal position remains uncertain where parties and representatives are to be connected from abroad, making it currently impossible to predict with sufficient certainty how courts will assess individual scenarios.
Procedural actions that serve to structure the proceedings, rather than establish the facts of the case, may prove less problematic. Examples of these include early first hearings (Section 275 ZPO), conciliation hearings (Section 278 ZPO), or the organisation hearing (Case Management Conference) before the Commercial Courts (Section 612 ZPO). Although the court still acts in a sovereign capacity here, the impact on national sovereignty is less intrusive, as no evidence is taken and no mandatory personal cooperation is required. However, there is no clear-cut distinction.
Ultimately, it is the function of the specific procedural act that is decisive. Here too, where measures are merely of a coordinating or procedural nature, concerns under international law should play a minor role.
Section 128a ZPO opens up considerable scope for a more efficient organisation of proceedings. Yet the sole regulatory effect of the provision ends at the national border. The technical possibility of joining remotely does not, in itself, empower German courts to carry out sovereign procedural acts abroad.
This becomes especially apparent in the context of the examination of witnesses, whereas, when it comes to parties and less intrusive procedural steps, the transition is gradual and, in some respects, blurred. The focus remains on the function of the specific procedural act. This transition area has not yet been conclusively resolved and is assessed differently in both case law and legal literature. Within the European Union, however, Article 5 of Regulation (EU) 2023/2844 has largely decoupled the voluntary participation of parties from legal assistance, meaning that the practical significance of the dispute arises primarily in relation to third countries.
Despite its practical scope, Section 128a ZPO thus remains, structurally speaking, an instrument focused on domestic matters. Video hearings offer a powerful means to shape modern proceedings, yet they provide no legal carte blanche for exercising sovereign power across borders.
