TRANSNATIONAL LITIGATION AND ELEMENTS OF FAIR TRIAL

Abstract

approach. The fair trial guarantee may be invoked to invalidate particular misconceived pieces of legislation or CO restrict their scope of application. It is worth noting that civil law courts are not alone in performing such operations. Judges in every country are more and more aware of belonging to a developing global community. The emergence of such a community of courts may achieve a number of goals in this respect: a cross-fertilization of legal cultures in general, but also solutions to some specific legal problems related to transnational disputes in particular. The Report gives some examples of inconsistencies of civil law systems that can be eliminated by applying the Fair trial guarantee. The first example is related to the lis alibi pendens exception. If the problem of lis alibi pendens and parallel proceedings is resolved on the basis of the continental European priority rule, it may well happen that a court is seised by, e.g., a inscriming procedings negative declaration (or relief), with a Revista Eletronica de Direito Processual – REDP. Volume 16. Julho a dezembro de 2015 Periodico Semestral da Pos-Graduacao Stricto Sensu em Direito Processual da UERJ Patrono: Jose Carlos Barbosa Moreira. ISSN 1982-7636. pp. 550-579 http://www.e-publicacoes.uerj.br/index.php/redp/index 511 view to prevent litigation before the second seised court. In such situations, avoid abusive litigation, the fair trial guarantee de lege lata may allow the second seis court to retain its jurisdictional powers and to go further with its proceedings, if it pears that the dispute will not be fairly and effectively resolved by the first seised cou The second example is related to the forum non conveniens doctrine. in cases when is absolutely inappropriate for the court vested with jurisdiction to handle proceedir with Foreign parties, e.g. because the court and the lawyer are completely ignorant of t foreign language and reliable translators are not available, the fair trial guarantee de If lata may exceptionally allow the court to decline its jurisdiction, applying the doctri of forum non conveniens. In the light of the U.S. due process guarantee we can look one of the most critical aspects related to the recognition and enforcement of judgment under the Brussels Convention and Regulation no 44/2001. Subject to few exceptio the jurisdiction of the court of the Member State of origin may not be reviewed by the court seised with the enforcement request in other Member States. The public policy defence may not be applied to the rules related to jurisdiction. The European solution is an example of the disproportionate influence of public policy considerations (in d case: the smooth functioning of the internal market) with regard to the balance between the plaintiff's and the defendant's interests. In other words, if the fairness of the exert of jurisdiction over a non-resident defendant is an element of fair trial, the respect this fairness, as is envisaged by the Convention and the EC Regulation no. 44120 norms on jurisdiction, should also be reviewed in the State where the recognition a enforcement is sought, through the public policy defence. It is true that the public policy exception is an emergency brake to be activated only in exceptional cases, but the cases cannot be restricted so as to prejudice the guarantee of a fair trial. National courts should be encouraged to take the opportunity to put a preliminary question before t ECI. under Art. 267, TFEU, on the validity of Art. 28, III, Convention (Arr. 35, I EC Regulation no 44/2001) vis-a-vis Art. 47 of the Charter of Fundamental Rights the European Union. VI. The final part of the report briefly sketches some specific aspects of the fair trial guarantee in transnational disputes, such as the principle of equality, the determinate of the judicial jurisdiction, the interim protection of rights, the right to Revista Eletronica de Direito Processual – REDP. Volume 16. Julho a dezembro de 2015 Periodico Semestral da Pos-Graduacao Stricto Sensu em Direito Processual da UERJ Patrono: Jose Carlos Barbosa Moreira. ISSN 1982-7636. pp. 550-579 http://www.e-publicacoes.uerj.br/index.php/redp/index 512 engage a lawyer, the language, the extension of time limits, the question of the abuse of process, the abuse of jurisdiction by the plaintiff, the public policy exception.