Gathering Evidence in Aid of Foreign Litigation Guide |
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Luxembourg |
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| (Europe) Firm Arendt & Medernach Updated 23 Mar 2022 | |
| Does your jurisdiction permit gathering evidence in aid of foreign litigation? | 1.1 Luxembourg permits gathering evidence in aid of foreign litigation. 1.2 Luxembourg is a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”), which provides for methods of cooperation in civil and commercial matters between the contracting states to obtain evidence which is intended for use in judicial proceedings, commenced or contemplated. 1.3 With the courts of other EU member states (excluding Denmark), Luxembourg applies Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of Member States in the Taking of Evidence in Civil or Commercial Matters (the “Evidence Regulation”). The Evidence Regulation was adopted with the aim of facilitating cooperation between member states in order to be able to carry out investigative measures upon the territory of a member state other than the one in which judicial proceedings have been commenced or are contemplated. The Evidence Regulation will be repealed and replaced as of July 1, 2022, by Regulation (EU) 2020/1783 of the European Parliament and of the Council of 25 November 2020 on Cooperation Between the Courts of the Member States in the Taking of Evidence in Civil or Commercial Matters (taking of evidence) (recast), which recasts the cooperation mechanisms and promotes the use of new technologies. 1.4 To obtain evidence, which is intended for use in judicial proceedings contemplated, parties can rely on Article 350 of the New Code of Civil Procedure (the “NCCP”) in order to bring claims for the gathering of evidence under certain conditions. Article 350 of the NCCP allows the parties to apply for the gathering of evidence in summary proceedings prior to any proceedings on the merits and under certain conditions. Article 350 NCCP states that “[i]f there is a legitimate reason to preserve or establish before any trial the proof of facts on which the solution of a dispute may depend, legally admissible measures of inquiry may be ordered at the request of any interested party, upon application or in summary proceedings.” (free translation). Article 350 of the NCCP allows parties to apply for the gathering of evidence in summary proceedings prior to any proceedings on the merits. According to case law, four conditions must be met for a successful Article 350 claim:
1.5 It is worth noting that Luxembourg’s legal system is based on civil law and the process of taking evidence to support legal proceedings differs from most common law systems (for instance, discovery proceedings do not exist as such under Luxembourg law). 1.6 Luxembourg is a party to the European Convention on Information on Foreign Law of 7 June 1968. Under this convention, the contracting parties undertake to supply one another with information (evidence) on their law and procedure in civil and commercial fields as well as on their judicial organization. |
| Is your jurisdiction a party to the Hague Evidence Convention? Are there other statutory requirements for obtaining evidence in aid of foreign litigation? Please indicate the relevant statutes. | Luxembourg is a party to the Hague Evidence Convention. Under the Hague Evidence Convention, the central authority (who is the Procureur Général d’Etat - General State Prosecutor for Luxembourg) is required to transmit the request to the national authority competent to execute it. Article 9 §1 of the Hague Evidence Convention reads: “The judicial authority which executes a Letter of Request shall apply its own law as to the methods and procedures to be followed.” Therefore, Luxembourg laws relating to civil and commercial judicial proceedings will apply. For instance, a witness, whose testimony is required by a letter of request sent in the context of the Hague Evidence Convention, will be examined in Luxembourg in the manner a witness would be examined during an ordinary Luxembourg civil or commercial judicial proceeding. In Luxembourg, Articles 399 to 431 of the NCCP govern the issue of witness testimony during civil or commercial judicial proceedings. previously, In the case of a request for testimony, the General State Prosecutor will transmit the request to the District Court, a registry for investigation (“greffe des enquêtes”), who will convene in writing the witness asking to testify in accordance with the NCCP. |
| Do requests for gathering evidence require approval by a court or administrative body? Please indicate the appropriate forum for making such requests. | 3.1 Under the Hague Evidence Convention, the central authority (who is the Procureur général d'Etat - General State Prosecutor for Luxembourg) is required to transmit the request to the competent national authority to execute it. The execution of a letter of request under the Hague Evidence Convention may be refused only to the extent that:
Article 9 §1 of the Hague Evidence Convention reads: “The judicial authority which executes a Letter of Request shall apply its own law as to the methods and procedures to be followed.” The General State Prosecutor will transmit the request to the judicial authority competent to execute the request. For example, in case of a request for testimony, the General State Prosecutor will transmit the request to the District Court, registry for investigation (“greffe des enquêtes”), who will convene in writing the witness asked to testify in accordance with the NCCP. 3.2 Under the Evidence Regulation, any court of a member state (other than Denmark) may request the competent court of another member state to take evidence, or to be allowed to take evidence directly in another member state. Each member state shall designate a central body responsible for:
In Luxembourg, the central body is the Parquet Général (General State Prosecutor). The execution of such a request may be refused if:
3.3 Requests under Article 350 of the NCCP are brought before the President of the District Court sitting in summary matters. |
| What types of information can be sought? Requests for Documents? Written questions? Depositions? | The notion of taking of evidence is neither expressly defined by the Hague Evidence Convention nor the Evidence Regulation. However, the Evidence Regulation provides for the examination of persons or any other form of taking of evidence such as documents or other objects to be inspected. According to Luxembourg case law, the notion of taking evidence is interpreted broadly and includes requests for the disclosure of documents. The different measures foreseen in the NCCP are personal observations by the court, interrogations of the parties, third party declarations (such as written or oral testimonies, investigations) and investigative measures carried out by an expert (such as expertise, observations, consultations). Claims under Article 350 of the NCCP are limited to investigative measures provided for under Luxembourg law. Investigative measures may be executed in accordance with a specific procedure provided for by the law of the requesting party, provided it is generally compatible with Luxembourg law (including public policy) and internal procedures. This follows from Article 9 of the Hague Evidence Convention and Article 10(2) and (3) of the Evidence Regulation. According to Article 23 of the Hague Evidence Convention, “a Contracting State may at the time of signature, ratification or accession, declare that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.” Luxembourg made such a declaration in 1977 when it ratified the Hague Evidence Convention that prohibits the execution of letters of request issued for the purpose of obtaining pre-trial discovery of documents.1 Although Luxembourg has not changed its reservation under the Hague Evidence Convention in terms of pre-trial discovery, one recent Luxembourg case law (2019) has held that the spirit of the Hague Evidence Convention and the interpretation of Article 23 given by experts post-1977 would prohibit a Luxembourg judge from rejecting off-hand a request for pre-trial discovery issued by a common law country “without analyzing that the Letter of Request is sufficiently explicit as regards the identification and the relevance of the requested information”. Similarly, recent case law has held that documents, requested under the Evidence Regulation, must be identified (or identifiable) and should probably, if not certainly, exist in the hands of the addressee of the request.
[1] Law of 19 March 1977, Article unique, Par. 1, 3rd ident, Mém. A n°15 of 26 March 1977, p 400. |
| Who bears the burden of showing whether any privileges apply? | Under Luxembourg law, the person claiming that any privileges apply bears the burden of showing that such a privilege applies. Article 11 of the Hague Evidence Convention states that the person concerned may refuse to give evidence in so far as he has a privilege or duty to refuse to give the evidence (i) under the law of the state of execution or (ii) under the law of the state of origin, and where the privilege or duty has been specified or confirmed by the requesting authority. Similarly, Article 14 (1) of the Evidence Regulation also provides that a request for the hearing of a person shall not be executed when the person concerned claims the right to refuse to give evidence or to be prohibited from giving evidence, (a) under the law of the member state of the requested court; or (b) under the law of the member state of the requesting court, and such right has been specified in the request, or, if need be, at the instance of the requested court, has been confirmed by the requesting court. For example, persons entrusted with secrets by their status or profession are subject to professional secrecy rules under Luxembourg law. Luxembourg case law considers professional secrecy as an absolute obligation (obligation de résultat) and not as a mere best efforts obligation (obligation de moyens). Violations of professional secrecy obligation may further be criminally sanctioned. A limited list of exceptions is provided for by Luxembourg law, including the situation where the persons bound by professional secrecy are summoned to testify in Court as well as the situation where such persons are authorised or required by or pursuant to any legislative provision to disclose information covered by professional secrecy. According to established Luxembourg case law, persons bound by professional secrecy (such as bank secrecy) when called as witnesses may, but cannot be forced to, give evidence in court. Although there is, to our knowledge, no case law on these specific exceptions, it is, in practice, generally admitted that such exceptions only refer to Luxembourg statutory provisions and to Luxembourg judicial authorities, and not to foreign laws or foreign courts. The Luxembourg government seems to have adopted an opposite position1 in a case before the Court of Justice of the European Union stating that Luxembourg legislation on bank secrecy does not prohibit the persons concerned from disclosing information covered by bank secrecy where they are summoned to appear as witnesses before the judicial authorities of another member state. Such position has however never been confirmed by the Luxembourg Courts. In addition, under Luxembourg law, relatives or direct descendants of one of the parties or of his or her spouse, even if divorced, may nevertheless refuse to testify according to Article 406 of the NCCP.
[1] CJCE, Der Weduwe, 10 December 2002, Opinion of Advocate General delivered on 23 April 2002, §48 |
| Does there need to be any showing that the information sought is allowable in the foreign jurisdiction in which the action is pending? | Nothing is foreseen in that regard in the Hague Evidence Convention nor in the Evidence Regulation. Thus showing that the information sought is allowable in the foreign jurisdiction seems not to be a requirement for the execution of letters of request issued in respect of these two instruments. When an investigative measure is requested based on Article 350 of the NCCP, the taking of evidence must be legally admissible according to Luxembourg law and, as described above, pertinent in terms of the outcome of the dispute at stake. If proof is given that the information (document) sought is actually not allowable under the laws of the competent jurisdiction, there might be an argument to determine that the information (document) sought may not be pertinent within the meaning of Luxembourg law. |
| If your jurisdiction allows depositions, may they be conducted remotely (by videoconference, Zoom etc.) | Article 10(4) of the Evidence Regulation provides for the possibility to use communication technology during taking of evidence, in particular by using videoconferencing and teleconferencing systems. There is no specific provision for videoconferencing under Luxembourg law. Videoconferencing is subject to the common rules of the NCCP regarding witness hearings, personal observation by the court and personal appearances. Courts are properly equipped and a judge, a registrar, an interpreter and a technician are present on the date set for the investigative measure. The court may make an audio or video recording of all or part of the preparatory inquiries. The recording is kept at the court registry. Either party may ask for a copy or a transcript at their own expense. |
| Has your jurisdiction adopted any “blocking statutes” that limit the extent to which residents in your jurisdiction may give evidence in a foreign court’s civil or criminal proceedings? | As a matter of principle, any person may be heard as a witness, except those who lack the legal capacity to testify in court. People who may not testify may, however, be heard under the same conditions but without swearing in. Any person summoned to testify will be bound to do so. Nevertheless, please note that persons who present a legitimate excuse (motifs légitimes) may be exempted from testifying (mainly people subject to rules of professional secrecy) such as parents or relatives in direct line of one party or of his spouse or even divorced (Article 406 of the New Code of Civil procedure1). Any other party than the parties themselves can be heard as witnesses. It is however a principle under Luxembourg law that a party cannot be a witness in their own case. In specific contexts, case law held, based on this principle, the following persons cannot be heard as witnesses:
Furthermore, in order for the court to accept an offer for witness evidence, it is also necessary that the testimony does not violate the right to a fair trial, within the meaning of Article 6 of the European Convention on Human Rights and Fundamental Freedoms. Regarding the criminal aspect, there are relevant provisions in (i) the Law of 8 August 2000 on Mutual Assistance in Criminal Matters, (ii) the European Convention on Mutual Assistance in Criminal Matters of 13 December 1957 (and the Additional Protocol of 17 March 1978 - the Second Additional Protocol of 8 November 2001 has not been ratified by Luxembourg), and (iii) the Convention of 29 May 2009 on Mutual Assistance in Criminal Matters between the Member States of the European Union (and the Protocol of 16 October 2001).
[1] Article 406 of the New Code of Civil procedure: (Est tenu de déposer quiconque en est légalement requis. Peuvent être dispensées de déposer les personnes qui justifient d'un motif légitime. Peuvent s'y refuser les parents ou alliés en ligne directe de l'une des parties ou son conjoint, même divorcé). |
| May citizens residing in your jurisdiction voluntarily give evidence in a foreign proceeding? If not, what procedure must be followed before they can give evidence? If such restrictions exist, are they enforced in practice? | We are not aware of any restrictions in this scope under Luxembourg law. Furthermore, Article 17(2) of the Evidence Regulation provides for the direct taking of evidence on a voluntary basis without the need for coercive measures. It implies that when a witness is heard, the person should be informed that his testimony needs to take place on a voluntary basis. |
| Would your answers differ materially if the foreign proceeding is arbitration, and if so how? | No, neither the Evidence Regulation nor the Hague Evidence Convention applies to arbitration. That being said, some jurisdictions have procedures in place in order to allow an arbitral tribunal to benefit from these international instruments by placing a request with a national “sponsor” judge to issue letters of request. |
Gathering Evidence in Aid of Foreign Litigation Guide
1.1 Luxembourg permits gathering evidence in aid of foreign litigation.
1.2 Luxembourg is a party to the Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Evidence Convention”), which provides for methods of cooperation in civil and commercial matters between the contracting states to obtain evidence which is intended for use in judicial proceedings, commenced or contemplated.
1.3 With the courts of other EU member states (excluding Denmark), Luxembourg applies Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of Member States in the Taking of Evidence in Civil or Commercial Matters (the “Evidence Regulation”). The Evidence Regulation was adopted with the aim of facilitating cooperation between member states in order to be able to carry out investigative measures upon the territory of a member state other than the one in which judicial proceedings have been commenced or are contemplated. The Evidence Regulation will be repealed and replaced as of July 1, 2022, by Regulation (EU) 2020/1783 of the European Parliament and of the Council of 25 November 2020 on Cooperation Between the Courts of the Member States in the Taking of Evidence in Civil or Commercial Matters (taking of evidence) (recast), which recasts the cooperation mechanisms and promotes the use of new technologies.
1.4 To obtain evidence, which is intended for use in judicial proceedings contemplated, parties can rely on Article 350 of the New Code of Civil Procedure (the “NCCP”) in order to bring claims for the gathering of evidence under certain conditions. Article 350 of the NCCP allows the parties to apply for the gathering of evidence in summary proceedings prior to any proceedings on the merits and under certain conditions. Article 350 NCCP states that “[i]f there is a legitimate reason to preserve or establish before any trial the proof of facts on which the solution of a dispute may depend, legally admissible measures of inquiry may be ordered at the request of any interested party, upon application or in summary proceedings.” (free translation).
Article 350 of the NCCP allows parties to apply for the gathering of evidence in summary proceedings prior to any proceedings on the merits. According to case law, four conditions must be met for a successful Article 350 claim:
- the solution to the dispute depends on the fact or evidence in question,
- there is a legitimate reason to establish the fact or preserve the evidence,
- the requested measure must be legally admissible, and
- no proceedings on the merits have commenced.
1.5 It is worth noting that Luxembourg’s legal system is based on civil law and the process of taking evidence to support legal proceedings differs from most common law systems (for instance, discovery proceedings do not exist as such under Luxembourg law).
1.6 Luxembourg is a party to the European Convention on Information on Foreign Law of 7 June 1968. Under this convention, the contracting parties undertake to supply one another with information (evidence) on their law and procedure in civil and commercial fields as well as on their judicial organization.
Luxembourg is a party to the Hague Evidence Convention.
Under the Hague Evidence Convention, the central authority (who is the Procureur Général d’Etat - General State Prosecutor for Luxembourg) is required to transmit the request to the national authority competent to execute it.
Article 9 §1 of the Hague Evidence Convention reads:
“The judicial authority which executes a Letter of Request shall apply its own law as to the methods and procedures to be followed.”
Therefore, Luxembourg laws relating to civil and commercial judicial proceedings will apply.
For instance, a witness, whose testimony is required by a letter of request sent in the context of the Hague Evidence Convention, will be examined in Luxembourg in the manner a witness would be examined during an ordinary Luxembourg civil or commercial judicial proceeding.
In Luxembourg, Articles 399 to 431 of the NCCP govern the issue of witness testimony during civil or commercial judicial proceedings.
previously,
In the case of a request for testimony, the General State Prosecutor will transmit the request to the District Court, a registry for investigation (“greffe des enquêtes”), who will convene in writing the witness asking to testify in accordance with the NCCP.
3.1 Under the Hague Evidence Convention, the central authority (who is the Procureur général d'Etat - General State Prosecutor for Luxembourg) is required to transmit the request to the competent national authority to execute it.
The execution of a letter of request under the Hague Evidence Convention may be refused only to the extent that:
- in the state of execution, the execution of the letter of request does not fall within the functions of the judiciary; or
- the state addressed considers that its sovereignty or security would be prejudiced thereby.
Article 9 §1 of the Hague Evidence Convention reads:
“The judicial authority which executes a Letter of Request shall apply its own law as to the methods and procedures to be followed.”
The General State Prosecutor will transmit the request to the judicial authority competent to execute the request. For example, in case of a request for testimony, the General State Prosecutor will transmit the request to the District Court, registry for investigation (“greffe des enquêtes”), who will convene in writing the witness asked to testify in accordance with the NCCP.
3.2 Under the Evidence Regulation, any court of a member state (other than Denmark) may request the competent court of another member state to take evidence, or to be allowed to take evidence directly in another member state. Each member state shall designate a central body responsible for:
- supplying information to the courts;
- seeking solutions to any difficulties which may arise related to a request;
- forwarding, in exceptional cases, at the request of a requesting court, a request to the competent court.
In Luxembourg, the central body is the Parquet Général (General State Prosecutor).
The execution of such a request may be refused if:
- the request does not fall within the scope of Regulation No. 1206/2001;
- the execution of the request does not fall within the functions of the judiciary;
- the request is incomplete;
- a person of whom a hearing has been requested invokes a right to refuse, or a prohibition, from giving evidence (i) under the law of the member state of the requested court or (ii) under the law of the member state of the requesting court and such right has been specified in the request or has been confirmed by the requesting court; or
- a deposit or advance relating to the costs of consulting an expert has not been made.
3.3 Requests under Article 350 of the NCCP are brought before the President of the District Court sitting in summary matters.
The notion of taking of evidence is neither expressly defined by the Hague Evidence Convention nor the Evidence Regulation. However, the Evidence Regulation provides for the examination of persons or any other form of taking of evidence such as documents or other objects to be inspected.
According to Luxembourg case law, the notion of taking evidence is interpreted broadly and includes requests for the disclosure of documents. The different measures foreseen in the NCCP are personal observations by the court, interrogations of the parties, third party declarations (such as written or oral testimonies, investigations) and investigative measures carried out by an expert (such as expertise, observations, consultations).
Claims under Article 350 of the NCCP are limited to investigative measures provided for under Luxembourg law.
Investigative measures may be executed in accordance with a specific procedure provided for by the law of the requesting party, provided it is generally compatible with Luxembourg law (including public policy) and internal procedures. This follows from Article 9 of the Hague Evidence Convention and Article 10(2) and (3) of the Evidence Regulation.
According to Article 23 of the Hague Evidence Convention, “a Contracting State may at the time of signature, ratification or accession, declare that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law countries.” Luxembourg made such a declaration in 1977 when it ratified the Hague Evidence Convention that prohibits the execution of letters of request issued for the purpose of obtaining pre-trial discovery of documents.1 Although Luxembourg has not changed its reservation under the Hague Evidence Convention in terms of pre-trial discovery, one recent Luxembourg case law (2019) has held that the spirit of the Hague Evidence Convention and the interpretation of Article 23 given by experts post-1977 would prohibit a Luxembourg judge from rejecting off-hand a request for pre-trial discovery issued by a common law country “without analyzing that the Letter of Request is sufficiently explicit as regards the identification and the relevance of the requested information”.
Similarly, recent case law has held that documents, requested under the Evidence Regulation, must be identified (or identifiable) and should probably, if not certainly, exist in the hands of the addressee of the request.
[1] Law of 19 March 1977, Article unique, Par. 1, 3rd ident, Mém. A n°15 of 26 March 1977, p 400.
Under Luxembourg law, the person claiming that any privileges apply bears the burden of showing that such a privilege applies.
Article 11 of the Hague Evidence Convention states that the person concerned may refuse to give evidence in so far as he has a privilege or duty to refuse to give the evidence (i) under the law of the state of execution or (ii) under the law of the state of origin, and where the privilege or duty has been specified or confirmed by the requesting authority.
Similarly, Article 14 (1) of the Evidence Regulation also provides that a request for the hearing of a person shall not be executed when the person concerned claims the right to refuse to give evidence or to be prohibited from giving evidence, (a) under the law of the member state of the requested court; or (b) under the law of the member state of the requesting court, and such right has been specified in the request, or, if need be, at the instance of the requested court, has been confirmed by the requesting court.
For example, persons entrusted with secrets by their status or profession are subject to professional secrecy rules under Luxembourg law.
Luxembourg case law considers professional secrecy as an absolute obligation (obligation de résultat) and not as a mere best efforts obligation (obligation de moyens). Violations of professional secrecy obligation may further be criminally sanctioned.
A limited list of exceptions is provided for by Luxembourg law, including the situation where the persons bound by professional secrecy are summoned to testify in Court as well as the situation where such persons are authorised or required by or pursuant to any legislative provision to disclose information covered by professional secrecy.
According to established Luxembourg case law, persons bound by professional secrecy (such as bank secrecy) when called as witnesses may, but cannot be forced to, give evidence in court. Although there is, to our knowledge, no case law on these specific exceptions, it is, in practice, generally admitted that such exceptions only refer to Luxembourg statutory provisions and to Luxembourg judicial authorities, and not to foreign laws or foreign courts.
The Luxembourg government seems to have adopted an opposite position1 in a case before the Court of Justice of the European Union stating that Luxembourg legislation on bank secrecy does not prohibit the persons concerned from disclosing information covered by bank secrecy where they are summoned to appear as witnesses before the judicial authorities of another member state. Such position has however never been confirmed by the Luxembourg Courts.
In addition, under Luxembourg law, relatives or direct descendants of one of the parties or of his or her spouse, even if divorced, may nevertheless refuse to testify according to Article 406 of the NCCP.
[1] CJCE, Der Weduwe, 10 December 2002, Opinion of Advocate General delivered on 23 April 2002, §48
Nothing is foreseen in that regard in the Hague Evidence Convention nor in the Evidence Regulation. Thus showing that the information sought is allowable in the foreign jurisdiction seems not to be a requirement for the execution of letters of request issued in respect of these two instruments.
When an investigative measure is requested based on Article 350 of the NCCP, the taking of evidence must be legally admissible according to Luxembourg law and, as described above, pertinent in terms of the outcome of the dispute at stake. If proof is given that the information (document) sought is actually not allowable under the laws of the competent jurisdiction, there might be an argument to determine that the information (document) sought may not be pertinent within the meaning of Luxembourg law.
Article 10(4) of the Evidence Regulation provides for the possibility to use communication technology during taking of evidence, in particular by using videoconferencing and teleconferencing systems.
There is no specific provision for videoconferencing under Luxembourg law. Videoconferencing is subject to the common rules of the NCCP regarding witness hearings, personal observation by the court and personal appearances. Courts are properly equipped and a judge, a registrar, an interpreter and a technician are present on the date set for the investigative measure.
The court may make an audio or video recording of all or part of the preparatory inquiries. The recording is kept at the court registry. Either party may ask for a copy or a transcript at their own expense.
As a matter of principle, any person may be heard as a witness, except those who lack the legal capacity to testify in court. People who may not testify may, however, be heard under the same conditions but without swearing in.
Any person summoned to testify will be bound to do so. Nevertheless, please note that persons who present a legitimate excuse (motifs légitimes) may be exempted from testifying (mainly people subject to rules of professional secrecy) such as parents or relatives in direct line of one party or of his spouse or even divorced (Article 406 of the New Code of Civil procedure1). Any other party than the parties themselves can be heard as witnesses.
It is however a principle under Luxembourg law that a party cannot be a witness in their own case. In specific contexts, case law held, based on this principle, the following persons cannot be heard as witnesses:
- descendants, when heard on grievances raised by spouses in support of their claim;
- spouses married under the regime of full community; and
- mayors in a dispute concerning their municipality;
- The capacity of a shareholder, director or manager of a company to testify before court depends on the facts. Luxembourg case law is not unanimous.
Furthermore, in order for the court to accept an offer for witness evidence, it is also necessary that the testimony does not violate the right to a fair trial, within the meaning of Article 6 of the European Convention on Human Rights and Fundamental Freedoms.
Regarding the criminal aspect, there are relevant provisions in (i) the Law of 8 August 2000 on Mutual Assistance in Criminal Matters, (ii) the European Convention on Mutual Assistance in Criminal Matters of 13 December 1957 (and the Additional Protocol of 17 March 1978 - the Second Additional Protocol of 8 November 2001 has not been ratified by Luxembourg), and (iii) the Convention of 29 May 2009 on Mutual Assistance in Criminal Matters between the Member States of the European Union (and the Protocol of 16 October 2001).
[1] Article 406 of the New Code of Civil procedure: (Est tenu de déposer quiconque en est légalement requis. Peuvent être dispensées de déposer les personnes qui justifient d'un motif légitime. Peuvent s'y refuser les parents ou alliés en ligne directe de l'une des parties ou son conjoint, même divorcé).
We are not aware of any restrictions in this scope under Luxembourg law.
Furthermore, Article 17(2) of the Evidence Regulation provides for the direct taking of evidence on a voluntary basis without the need for coercive measures. It implies that when a witness is heard, the person should be informed that his testimony needs to take place on a voluntary basis.
No, neither the Evidence Regulation nor the Hague Evidence Convention applies to arbitration. That being said, some jurisdictions have procedures in place in order to allow an arbitral tribunal to benefit from these international instruments by placing a request with a national “sponsor” judge to issue letters of request.