Harmonization of Civil Procedure Prof. Dr. C.H. van Rhee Maastricht University The Netherlands [email protected]

Harmonization of Civil Harmonization of Civil ProcedureProcedure

Prof. Dr. C.H. van RheeProf. Dr. C.H. van RheeMaastricht UniversityMaastricht University

The NetherlandsThe Netherlands

[email protected]@maastrichtuniversity.nl

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INTRODUCTIONINTRODUCTION

Spontaneous harmonisation: Law Spontaneous harmonisation: Law reform at the national level (1)reform at the national level (1)

Harmonisation as a side-effect: Harmonisation as a side-effect: Competition between civil procedural Competition between civil procedural systems (2)systems (2)

Intended harmonisation: Intended harmonisation: Harmonisation on an international Harmonisation on an international and global scale (3)and global scale (3)

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11SPONTANEOUS SPONTANEOUS

HARMONISATIONHARMONISATION

Law reform at the national levelLaw reform at the national level

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1. LAW REFORM1. LAW REFORM

Spontaneous harmonisation: long Spontaneous harmonisation: long historyhistory

Ius Commune & Romano-canonical Ius Commune & Romano-canonical procedure (ca. 1100 – ca. 1800)procedure (ca. 1100 – ca. 1800)

Codification period and beyond Codification period and beyond

(ca. 1800 – present)(ca. 1800 – present)

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Major example spontaneous harmonisation Major example spontaneous harmonisation 20th century20th century• From Party-Autonomy to Judicial Case-From Party-Autonomy to Judicial Case-

ManagementManagement Party-autonomy: heritage French Revolution (1806 Party-autonomy: heritage French Revolution (1806

Code de procédure civile)Code de procédure civile) Civil litigation only of interest to partiesCivil litigation only of interest to parties Limited directive powers for judgeLimited directive powers for judge Where powers exist, judge hesitant to use themWhere powers exist, judge hesitant to use them Franz Klein (Austria 1895): Civil litigation of interest Franz Klein (Austria 1895): Civil litigation of interest

to society as a wholeto society as a whole• Sozialfunktion / Wohlfahrtsfunktion (Sozialfunktion / Wohlfahrtsfunktion (Pro FuturoPro Futuro))

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Civil litigation is negative Civil litigation is negative phenomenon, so it must be quick, phenomenon, so it must be quick, efficient and cheapefficient and cheap

Parties should co-operate in order to Parties should co-operate in order to facilitate judgmentfacilitate judgment

Substantive truth instead of formal Substantive truth instead of formal truth = Wahrheitspflichttruth = Wahrheitspflicht

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Case-management: a success storyCase-management: a success story• Germany (Emminger Novelle 1924; Germany (Emminger Novelle 1924;

Wahrheitsplicht 1933)Wahrheitsplicht 1933)• France (juge de la mise en état; co-France (juge de la mise en état; co-

operation)operation)• England & Wales (Lord Woolf)England & Wales (Lord Woolf)• The NetherlandsThe Netherlands• ………………....

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EXPLANATION?EXPLANATION?

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2.2.HARMONISATION AS A SIDE-HARMONISATION AS A SIDE-

EFFECTEFFECT

Competition between national Competition between national procedural systemsprocedural systems

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2. COMPETITION2. COMPETITION

Starting point: Lex foriStarting point: Lex fori However: Choice of forumHowever: Choice of forum

• Not in consumer cases, real estateNot in consumer cases, real estate• Often in contract lawOften in contract law

Hodges & Vogenauer (Oxford): Hodges & Vogenauer (Oxford): Businesses have preferencesBusinesses have preferences• May opt for ADR or ArbitrationMay opt for ADR or Arbitration• If not: choice of forum (state court)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 LawEdited by Stefan Vogenauer and Christopher HodgesHart Publishing, Oxford December 2009

Which legal system is most attractive for businesses??

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Choice of forum influenced by civil Choice of forum influenced by civil procedural law of forumprocedural law of forum

Competitive procedural law of interest for Competitive procedural law of interest for statestate• National cases before national courtsNational cases before national courts• Attracting BusinessesAttracting Businesses• Development of national legal services marketDevelopment of national legal services market• …………………………....

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How to become competitive?How to become competitive?• Complete overhaul of national civil Complete overhaul of national civil

procedureprocedure• Flexibility: leaving litigants a choiceFlexibility: leaving litigants a choice

Possible?Possible? Yes, especially as regards ‘unrelated’ rules Yes, especially as regards ‘unrelated’ rules

(conciliation, commencement, computation (conciliation, commencement, computation of time, subject matter of litigation, …..)of time, subject matter of litigation, …..)

Case-management?Case-management?

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3.3.INTENDED HARMONISATIONINTENDED HARMONISATION

International and global International and global harmonisation projectsharmonisation projects

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3. HARMONISATION3. HARMONISATION

Why harmonisation important????Why harmonisation important????

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3. HARMONISATION3. HARMONISATION Prof. Gutteridge in 1946:Prof. Gutteridge in 1946:

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

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Procedural differences may result in:Procedural differences may result in:• differences in the application of differences in the application of

substantive law (Gutteridge)substantive law (Gutteridge)• unacceptable barriers as regards the unacceptable barriers as regards the

human right of access to justicehuman right of access to justice• discrimination between citizens and discrimination between citizens and

non-citizensnon-citizens• economic disadvantages (competition)economic disadvantages (competition)• …………

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EU context: differences may result in EU context: differences may result in fragmented market (four freedoms fragmented market (four freedoms endangered)endangered)

Some harmonizing effects of Art. 6 Some harmonizing effects of Art. 6 ECHR (Council of Europe – not EU! - ECHR (Council of Europe – not EU! - see also art. 47 Charter of see also art. 47 Charter of Fundamental Rights of the European Fundamental Rights of the European Union)Union)

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

3. HARMONISATION3. HARMONISATIONArt. 65 ECTArt. 65 ECTMeasures in the field of judicial cooperation in civil matters having Measures in the field of judicial cooperation in civil matters having cross-border implications, to be taken in accordance with Article 67 cross-border implications, to be taken in accordance with Article 67 and in so far as necessary for the proper functioning of the internal and in so far as necessary for the proper functioning of the internal market, shall include:market, shall include:

a) improving and simplifying:a) improving and simplifying:• the system for cross-border service of judicial and extrajudicial the system for cross-border service of judicial and extrajudicial

documents,documents,• cooperation in the taking of evidencecooperation in the taking of evidence• the recognition and enforcement of decisions in civilthe recognition and enforcement of decisions in civil and and

commercial cases, including decisions in extrajudicial cases;commercial cases, including decisions in extrajudicial cases;b) promoting the compatibility of the rules applicable in the Member b) promoting the compatibility of the rules applicable in the Member

States concerning the conflict of laws and of jurisdiction;States concerning the conflict of laws and of jurisdiction;c) eliminating obstacles to the good functioning of civil proceedings, if c) eliminating obstacles to the good functioning of civil proceedings, if

necessary by promoting the compatibility of the rules on civil necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States.procedure applicable in the Member States.

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Limitations Art. 65 (and new Art. 81)Limitations Art. 65 (and new Art. 81)• Subsidiarity & Proportionality (Art. 5 Subsidiarity & Proportionality (Art. 5

ECT)ECT) Current state of affairs as regards EU Current state of affairs as regards EU

civil procedural rulescivil procedural rules• RegulationsRegulations• DirectivesDirectives• Green papersGreen papers

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EU harmonization only for international EU harmonization only for international cases?cases?

Not necessarily so: Art. 65(c) ECTNot necessarily so: Art. 65(c) ECT Purely national cases may also have cross-Purely national cases may also have cross-

border implications etc.border implications etc. However: Small ClaimsHowever: Small Claims First attempt at harmonization of First attempt at harmonization of

procedural law in EU member states (also procedural law in EU member states (also purely national): purely national): Storme ReportStorme Report (1994) (1994)

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3. HARMONISATION3. HARMONISATION Criticism P.H. Lindblom, ‘Harmony of Legal Criticism P.H. Lindblom, ‘Harmony of Legal

Spheres’, European Review of Private Law:Spheres’, European Review of Private Law:• Lacks cohesion and clarityLacks cohesion and clarity• Minimum requirements or standard rules?Minimum requirements or standard rules?• If minimum requirements: harmonization If minimum requirements: harmonization

jeopardized?jeopardized?• Rules too general/do not address the real Rules too general/do not address the real

problemsproblems

E.g. Any person duly summoned in accordance with E.g. Any person duly summoned in accordance with the law of a Member State to give evidence before a the law of a Member State to give evidence before a court of that State shall be under a duty to appear court of that State shall be under a duty to appear before that court and give evidence.before that court and give evidence.

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Principles of Transnational Civil Principles of Transnational Civil ProcedureProcedure (Hazard/Taruffo 2006) (Hazard/Taruffo 2006)

ALI/Unidroit: Global perspectiveALI/Unidroit: Global perspective Aim at International Commercial Aim at International Commercial

Litigation (no jury)Litigation (no jury)The explosion in transnational commerce has The explosion in transnational commerce has changed the world forever. International changed the world forever. International commerce and investment are increasing at an commerce and investment are increasing at an enormous rate enormous rate and the rate of change is and the rate of change is continuing to accelerate. The legal procedures continuing to accelerate. The legal procedures applicable to the global community, however, applicable to the global community, however, have not kept pace and are still largely have not kept pace and are still largely confined to and limited by individual national confined to and limited by individual national jurisdictions.jurisdictions.

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31 Principles & Comments31 Principles & Comments Go further than current international Go further than current international

conventions (Hague conventions)conventions (Hague conventions) Blend between Civil Law & Common LawBlend between Civil Law & Common Law

• Limited discovery, corrected by burden of proof Limited discovery, corrected by burden of proof shiftingshifting

• Concentration, but not necessarily a single trialConcentration, but not necessarily a single trial Best practices and benchmarksBest practices and benchmarks When Principles silent: rule of forum When Principles silent: rule of forum

appliesapplies

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Also relevant beyond commercial Also relevant beyond commercial casescases• ArbitrationArbitration• Reform of national civil procedure in Reform of national civil procedure in

general (recognition and enforcement)general (recognition and enforcement)• Providing guidance in legal practice Providing guidance in legal practice

(discretionary powers judge)(discretionary powers judge)

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3. HARMONISATION3. HARMONISATION Procedure in 3 stagesProcedure in 3 stages No notice pleading like in USNo notice pleading like in US All contentions of parties to be considered by All contentions of parties to be considered by

courtcourt Principle of finalityPrinciple of finality Costs: the looser pays (NOT the American cost Costs: the looser pays (NOT the American cost

rule)rule) Avoid favouring national parties in international Avoid favouring national parties in international

litigationlitigation Amicus curiaeAmicus curiae Appeal is limited to re-evaluating first-instance Appeal is limited to re-evaluating first-instance

judgmentjudgment

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Case-managementCase-management Principle 14 (court manages case actively)Principle 14 (court manages case actively) Principle 22,2,1 and 2 (court invites parties Principle 22,2,1 and 2 (court invites parties

to amend contentions of law or fact/offer to amend contentions of law or fact/offer additional legal argument and evidence)additional legal argument and evidence)

Principle 7,2 (parties must co-operate)Principle 7,2 (parties must co-operate) Principle 17 (sanctions)Principle 17 (sanctions)

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3. HARMONISATION3. HARMONISATION Principle 14Principle 14 14. Court Responsibility for Direction of the Proceeding14. Court Responsibility for Direction of the Proceeding 14.1 Commencing as early as practicable, the court should 14.1 Commencing as early as practicable, the court should

actively manage the proceeding, exercising discretion to actively manage the proceeding, exercising discretion to achieve disposition of the dispute fairly, efficiently, and with achieve disposition of the dispute fairly, efficiently, and with reasonable speed. Consideration should be given to the reasonable speed. Consideration should be given to the transnational character of the dispute.transnational character of the dispute.

14.2 To the extent reasonably practicable, the court should 14.2 To the extent reasonably practicable, the court should manage the proceeding in consultation with the parties.manage the proceeding in consultation with the parties.

14.3 The court should determine the order in which issues 14.3 The court should determine the order in which issues are to be resolved, and fix a time table for all stages of the are to be resolved, and fix a time table for all stages of the proceeding, including dates and deadlines. The court may proceeding, including dates and deadlines. The court may revise such directions.revise such directions.

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CONCLUSIONCONCLUSION

Documents

Harmonization of Civil Procedure Prof. Dr. C.H. van Rhee Maastricht University The Netherlands [email protected]