Comparative Civil Procedure and Transnational 'Harmonization': A Law-and-Economics Perspective

Abstract

This paper presents a critical analysis of recent proposals for transnational harmonization of civil procedure law through the promotion of uniform principles of transnational civil procedure that would homogenize civil procedure law across national boundaries. A recent proposal of Principles of Transnational Civil Procedure for commercial disputes, by the American Law Institute jointly with UNIDROIT, is focused particularly on eliminating the distinctive features of American civil procedure, notably party control of procedure, expansive pretrial discovery, and jury trial. That proposal is criticized by this paper on the grounds that its normative objective of transnational uniformity in procedure is unexamined by its proposers and highly questionable as a matter of policy. After reviewing the principal differences across national systems as a matter of comparative procedure, the paper presents a general economic analysis of civil procedure, and detailed applications to the distinctive features of the American system. The paper then examines the question of diversity versus uniformity in civil procedural law. Given that disputes subjected to litigation are unlikely to be homogeneous, the case for a uniform procedural law appears weak. Rather, and particularly in the context of transnational commercial disputes, it seems likely that procedural rules should vary with the dispute, and that the disputing parties themselves should be permitted to choose among those applicable. By definition, the disputing parties are sophisticated businesses who will internalize the results of the litigation. From this point of view, diversity among national systems of procedure would contribute positively to the efficient resolution of disputes, by enabling contracting parties to choose among disparate procedural rules. In the context of transnational commercial disputes, contracting parties in fact have been choosing their own applicable substantive law, forum, and procedural rules (to some extent) for decades, and these choices have been respected in most countries. There is no ground for replacing this system with harmonized procedural law. The adoption of such a proposal would actually reduce the efficiency of the transnational procedural system.