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Harmonization of Civil Procedure

Harmonization of Civil Procedure. Prof. Dr. C.H. van Rhee Maastricht University The Netherlands remco.vanrhee@maastrichtuniversity.nl. INTRODUCTION. Spontaneous harmonisation: Law reform at the national level (1)

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Harmonization of Civil Procedure

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  1. Harmonization of Civil Procedure Prof. Dr. C.H. van Rhee Maastricht University The Netherlands remco.vanrhee@maastrichtuniversity.nl

  2. INTRODUCTION • Spontaneous harmonisation: Law reform at the national level (1) • Harmonisation as a side-effect: Competition between civil procedural systems (2) • Intended harmonisation: Harmonisation on an international and global scale (3)

  3. 1SPONTANEOUS HARMONISATIONLaw reform at the national level

  4. 1. LAW REFORM • Spontaneous harmonisation: long history • Ius Commune & Romano-canonical procedure (ca. 1100 – ca. 1800) • Codification period and beyond (ca. 1800 – present)

  5. 1. LAW REFORM • Major example spontaneous harmonisation 20th century • From Party-Autonomy to Judicial Case-Management • Party-autonomy: heritage French Revolution (1806 Code de procédure civile) • Civil litigation only of interest to parties • Limited directive powers for judge • Where powers exist, judge hesitant to use them • Franz Klein (Austria 1895): Civil litigation of interest to society as a whole • Sozialfunktion / Wohlfahrtsfunktion (Pro Futuro)

  6. 1. LAW REFORM • Civil litigation is negative phenomenon, so it must be quick, efficient and cheap • Parties should co-operate in order to facilitate judgment • Substantive truth instead of formal truth = Wahrheitspflicht

  7. 1. LAW REFORM • Case-management: a success story • Germany (Emminger Novelle 1924; Wahrheitsplicht 1933) • France (juge de la mise en état; co-operation) • England & Wales (Lord Woolf) • The Netherlands • ………..

  8. 1. LAW REFORM • EXPLANATION?

  9. 2.HARMONISATION AS A SIDE-EFFECTCompetition between national procedural systems

  10. 2. COMPETITION Which legal system is most attractive for businesses?? • Starting point: Lex fori • However: Choice of forum • Not in consumer cases, real estate • Often in contract law • Hodges & Vogenauer (Oxford): Businesses have preferences • May opt for ADR or Arbitration • If not: choice of forum (state court) STUDIES OF THE OXFORD INSTITUTE OF EUROPEAN AND COMPARATIVE LAWCivil Justice Systems in Europe: Implications for Choice of Forum and Choice of Contract Law Edited by Stefan Vogenauer and Christopher Hodges Hart Publishing, Oxford December 2009

  11. 2. COMPETITION • Choice of forum influenced by civil procedural law of forum • Competitive procedural law of interest for state • National cases before national courts • Attracting Businesses • Development of national legal services market • ……………..

  12. 2. COMPETITION • How to become competitive? • Complete overhaul of national civil procedure • Flexibility: leaving litigants a choice • Possible? • Yes, especially as regards ‘unrelated’ rules (conciliation, commencement, computation of time, subject matter of litigation, …..) • Case-management?

  13. 3.INTENDED HARMONISATIONInternational and global harmonisation projects

  14. 3. HARMONISATION • Why harmonisation important????

  15. 3. HARMONISATION • Prof. Gutteridge in 1946: It is obvious that no scheme of unification can be regarded as satisfactory if proceedings in one of the participating countries are more dilatory and expensive than in others, or if the remedies afforded by the unified law are not the same …. If unification is to possess any real value it is essential that the unified rules should be applied in practice without any impediments created by procedural difficulties.

  16. 3. HARMONISATION • Procedural differences may result in: • differences in the application of substantive law (Gutteridge) • unacceptable barriers as regards the human right of access to justice • discrimination between citizens and non-citizens • economic disadvantages (competition) • ……

  17. 3. HARMONISATION • EU context: differences may result in fragmented market (four freedoms endangered) • Some harmonizing effects of Art. 6 ECHR (Council of Europe – not EU! - see also art. 47 Charter of Fundamental Rights of the European Union)

  18. 3. HARMONISATION • EU attempts to harmonize civil procedure based on art. 65 ECT (to be incorporated in a new art. 81 ECT as a result of the Lisbon Treaty)

  19. 3. HARMONISATION Art. 65 ECT Measures in the field of judicial cooperation in civil matters having cross-border implications, to be taken in accordance with Article 67 and in so far as necessary for the proper functioning of the internal market, shall include: a) improving and simplifying: the system for cross-border service of judicial and extrajudicial documents, cooperation in the taking of evidence the recognition and enforcement of decisions in civil and commercial cases, including decisions in extrajudicial cases; b) promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws and of jurisdiction; c) eliminating obstacles to the good functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States.

  20. 3. HARMONISATION • Limitations Art. 65 (and new Art. 81) • Subsidiarity & Proportionality (Art. 5 ECT) • Current state of affairs as regards EU civil procedural rules • Regulations • Directives • Green papers

  21. 3. HARMONISATION • EU harmonization only for international cases? • Not necessarily so: Art. 65(c) ECT • Purely national cases may also have cross-border implications etc. • However: Small Claims • First attempt at harmonization of procedural law in EU member states (also purely national): Storme Report (1994)

  22. 3. HARMONISATION • Criticism P.H. Lindblom, ‘Harmony of Legal Spheres’, European Review of Private Law: • Lacks cohesion and clarity • Minimum requirements or standard rules? • If minimum requirements: harmonization jeopardized? • Rules too general/do not address the real problems • E.g. Any person duly summoned in accordance with the law of a Member State to give evidence before a court of that State shall be under a duty to appear before that court and give evidence.

  23. 3. HARMONISATION • Principles of Transnational Civil Procedure (Hazard/Taruffo 2006) • ALI/Unidroit: Global perspective • Aim at International Commercial Litigation (no jury) The explosion in transnational commerce has changed the world forever. International commerce and investment are increasing at an enormous rate and the rate of change is continuing to accelerate. The legal procedures applicable to the global community, however, have not kept pace and are still largely confined to and limited by individual national jurisdictions.

  24. 3. HARMONISATION • 31 Principles & Comments • Go further than current international conventions (Hague conventions) • Blend between Civil Law & Common Law • Limited discovery, corrected by burden of proof shifting • Concentration, but not necessarily a single trial • Best practices and benchmarks • When Principles silent: rule of forum applies

  25. 3. HARMONISATION • Also relevant beyond commercial cases • Arbitration • Reform of national civil procedure in general (recognition and enforcement) • Providing guidance in legal practice (discretionary powers judge)

  26. 3. HARMONISATION • Procedure in 3 stages • No notice pleading like in US • All contentions of parties to be considered by court • Principle of finality • Costs: the looser pays (NOT the American cost rule) • Avoid favouring national parties in international litigation • Amicus curiae • Appeal is limited to re-evaluating first-instance judgment

  27. 3. HARMONISATION • Case-management • Principle 14 (court manages case actively) • Principle 22,2,1 and 2 (court invites parties to amend contentions of law or fact/offer additional legal argument and evidence) • Principle 7,2 (parties must co-operate) • Principle 17 (sanctions)

  28. 3. HARMONISATION • Principle 14 • 14. Court Responsibility for Direction of the Proceeding • 14.1 Commencing as early as practicable, the court should actively manage the proceeding, exercising discretion to achieve disposition of the dispute fairly, efficiently, and with reasonable speed. Consideration should be given to the transnational character of the dispute. • 14.2 To the extent reasonably practicable, the court should manage the proceeding in consultation with the parties. • 14.3 The court should determine the order in which issues are to be resolved, and fix a time­table for all stages of the proceeding, including dates and deadlines. The court may revise such directions.

  29. CONCLUSION

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