Civil Procedure Rules Research Articles

Removal of the right to inherit one of the parents

The article is devoted to the study of the legal status of one of the parents who was deprived of parental rights and removed from the right to inherit. The legal status of the testator's child has been studied. Reasoned proposal on the need for intentional failure of the heirs to fulfill their responsibilities for the maintenance of the testator-child, improper care, failure to provide the necessary assistance and care.
 Disputes over removal from the right to inherit are one of the most common categories of cases heard by courts under the rules of civil procedure. The complexity of this category of disputes is explained by the fact that at the time of the inheritance of the testator-child is no longer alive. Therefore, obtaining information about the circumstances and facts that are relevant to the case, for objective reasons, is difficult. Difficulties also arise when establishing facts of legal significance.
 The correlation of the provisions of the Civil and Family Codes of Ukraine on the grounds and conditions of removal from the right to inherit has been studied. According to Article 164 of the Family Code of Ukraine, evasion of parental responsibilities entails deprivation of parental rights. Thus, the norm of Article 1224 of the Civil Code of Ukraine is natural, which regulates that parents deprived of parental rights are not entitled to inherit by law after the child-heir.
 It is concluded that it is necessary to recognize postmortem children as heirs at law and by will, by making appropriate changes to the civil legislation of Ukraine and give them the right to inherit.It is substantiated that a person's evasion of assistance to a testator in need of assistance is intentional acts or omissions aimed at evading the obligation to provide support and assistance to the testator, ie evasion related to the guilty conduct of a person who was aware of his obligation. language, had the opportunity to perform it, but did not take the necessary action.

Substituted service in Australia: problem, tension, and proposed solution

Substituted service is an important and frequently used method to bring judicial documents to a defendant’s attention when service of process in the manner otherwise required by the civil procedure rule is impracticable. Between substituted service and the Hague Service Convention 1965 exists a tension: as the scope of substituted service expands, the application of the Convention shrinks. The tension predated the pandemic but has become increasingly acute as Australian courts have frequently been called upon to address when substituted service may be ordered to replace service under the Convention. Addressing this tension is significant but complex as it involves Australia's international obligation to follow the Convention, a plaintiff's legitimate expectation to quickly effect service of process, and a defendant's fundamental right to due process. This paper is a digest of Australian private international law on substituted service. It provides timely proposals both at the domestic and international dimensions to address this tension.

Territorial jurisdiction of the National Industrial Court of Nigeria (NICN) and therequirement of endorsing originating processes under the Sheriffs and Civil Process Act (SCPA) determined

When a case is filed at the National Industrial Court of Nigeria (NICN), apart from its Civil Procedure Rules, the service of originating processes in Nigeria is regulated by the Sheriffs and Civil Process Act (SCPA), just as in all other courts under the 1999 Constitution of the Federal Republic of Nigeria (1999 CFRN). The SCPA requires that, when an originating process is issued in one State but is to be served in another, there must be an endorsement on the process disclosing this fact, or else the service shall be rendered void. Is this requirement of the SCPA applicable to the NICN, and what effect does it have on its efficiency, given that the NICN is a specialised court dealing with matters requiring expeditious settlement, free of technicalities? This article, using doctrinal methodology, will catechise the territorial jurisdiction of the NICN vis-à-vis the SCPA on endorsement of originating processes by appraising the Court of Appeal’s decision in Johnson v Eze where it held that the provisions of ss 97, 98 and 99 of the SCPA are inapplicable to the NICN because of s 2 of the SCPA, s 21(1) andd(2) of the National Industrial Court Act, 2006 and Order 7, Rule 15(1) and (2) of the NICN Rules, 2017. The effect of the judgment on the jurisdiction and mandate of the NICN under extant laws is also discussed. The authors argue that making the court amenable to the provisions of the SCPA will usher in technicalities that can frustrate the mandate of the NICN. Thus, the decision is a welcome development, which should not be overturned in subsequent decisions.

Digitalization of civil proceedings in the USA: consolidation of the procedure for electronic disclosure of evidence (“e-discovery”)

The article notes that electronic disclosure of evidence (“e-discovery”) refers to the disclosure of evidence during the pre-trial stage of court proceedings, such as civil proceedings (litigation) or government investigations, when the requested information is in electronic format. Electronic information is considered different from paper because of its immaterial form, volume, transience and impermanence. Electronic information is usually accompanied by metadata, which is not present in paper documents and which can play an important role as evidence. The main document that allowed the digitalization of US civil proceedings was the amendments of 2006 and 2015 to the Federal Rules of Civil Procedure governing the conduct of Court proceedings in US federal Courts. It is emphasized that one of the most hotly contested aspects of electronic disclosure of evidence has become the problem of electronic data security. The destruction of emails and other electronic data is as egregious and punishable by the court as the destruction of other documentary evidence related to a civil lawsuit. The decision in the case “Zubulake v. UBS Warburg” 2005 established important practices regarding “e-discovery”. In addition, this decision showed that various specialists can be involved in the project of electronic disclosure of evidence: lawyers of the parties, forensic experts, IT managers and office managers. In this regard, the comparative analysis of the above issues is of particular importance.

Driving Diverse Representation of Diverse Classes

Why have federal courts overwhelmingly appointed white men to represent diverse consumer classes? Rule 23(g) of the Federal Rules of Civil Procedure requires courts to appoint the attorneys “best able to represent the interests of class members” to serve as class counsel. But courts’ recurrent conclusion that white men best fit the federally mandated job description not only gives the appearance of discrimination, but harms class members that suffer from outcomes plagued by groupthink and cognitive biases. This Article sets out to uncover why white male repeat players continue to dominate class counsel appointments and proposes a practical and immediately implementable solution for the judiciary to improve class counsel diversity. The Article examines all class action auto defect multidistrict litigation suits. By focusing on this subset of cases that span across five decades, it observes potential tendencies of certain courts (i.e., white, Republican-appointed, and female courts) to appoint white men and identifies different processes and criteria courts have implemented and considered that have resulted in the appointment of more female and minority attorneys. The Article finds, however, that the gender and racial gaps remain stark, largely because courts understandably place an almost dispositive value on attorneys’ prior experience serving as class counsel, a role white men have traditionally monopolized. It proposes a way to resolve this Catch-22 problem—a two-tier joint appointment structure that collectively evaluates the experience and diversity of counsel and removes the insurmountable entry barriers to the plaintiffs’ counsel class action bar.

Građansko pravosuđe i građanska pravda

The term "civil justice" as used here encompasses a wide range of issues related to civil procedural law, as part of EU legislation such as the "European judicial area" or the "European legal zone", where "judicial cooperation in civil matter" is intended as a means to achieve the greater goal of progressively establishing the "area of freedom, security and justice". Civil judiciary is not limited to the notion of useful "cooperation" between judicial authorities in different Member States in the context of ongoing litigation. Instead, more far-reaching (and politically sensitive) measures are envisaged, such as measures to harmonize the rules of civil procedure and the effects of judicial decisions outside the borders of the Member State making the decision.

ПРИНЦИП ПРАВА БУТИ ПОЧУТИМ (RIGHT TO BE HEARD) У ЦИВІЛЬНОМУ СУДОЧИНСТВІ: МОДЕЛЬНІ ЄВРОПЕЙСЬКІ ПРАВИЛА ЦИВІЛЬНОГО ПРОЦЕСУ ELI/UNIDROIT, ПРАКТИКА ЄСПЛ І НАЦІОНАЛЬНИЙ КОНТЕКСТ

The article addresses the right to be heard as one of the new principles of civil procedure being analyzed through the prism of the provisions of the ELI/UNIDROIT Model European Rules of Civil Procedure and para. 1 of art. 6 of the European Convention on Human Rights and Fundamental Freedoms and the practice of the European Court of Human Rights. The paper highlights the problems of implementation of this principle at the national level. Within the framework of the ELI/UNIDROIT Model European Rules of Civil Procedure, the principle of the right to be heard includes: a) a fair opportunity to present claim and defense in court (Rule 11); b) the reasoned judgments, relied on the basis of the case file and the legal issues which the parties were able to comment on (Rule 12); c) the prohibition on the court communicating with a party in the absence of other party (Rule 13). Based on the analysis of the ELI / UNIDROIT Model European Rules of Civil Procedure and the case law of the ECtHR, the author advocates the view, according to which, the implementation of the principle of the right to be heard calls for the existence of a number of procedural guarantees of 'fair hearing' (para. 1 art. 6 of the ECHR). It is concluded that in modern conditions the principle of the right to be heard in its legal content is reduced to the requirement to provide a party to the proceedings the opportunity to bring to court their claims and objections, to effectively present their legal position before the court on equal terms with those given to the other party, as well as to obtain a reasoned court judgment. The implementation of this principle is associated with three groups of guarantees: a) guarantees that are prerequisites for the exercise of the right to be heard (proper notification of the person about the date, time and place of the court hearing); b) guarantees that constitute the core of the right to be heard and are implemented during the trial (oral hearing; opportunity to participate in the proceedings; the principle of 'equality of arms' and adversarial process); c) guarantees that are implemented after consideration of the case (a reasoned court judgment).

The ELI / UNIDROIT Model European Rules of Civil Procedure

The ELI / UNIDROIT Model European Rules of Civil Procedure

О праве на получение копии апелляционного определения (практика, инструкции, закон)

The civil procedural rules directly provide for the delivery and sending a copy of the court decision by the court of the first instance to the persons participating in the case, as well as some court rulings. In the article, the authors analyse the common practice of the courts of appeal, according to which the participating parties do not receive a copy of the ruling of the appellate court directly from the court of appeal. The parties themselves must apply to the court of first instance with a request for a copy of the judicial act. The authors investigate the reasons for the emergence of such judicial practice and raise the question of its compliance with the civil procedural law.

Решение, принятое по делу в рамках упрощенного производства

The article highlights the peculiarity of the rules for making a decision by the court according to the rules on simplified proceedings, notes the incompleteness in this regard, begun in 2016, of the reform of the civil procedure legislation, which negatively affects the application of the procedure under consideration. In the research, the author focuses on the court decision made as a result of the consideration of a civil case in a truncated form in connection with the likely consequences of its cancellation. Research results. Arguments are given for the need for legislative consolidation of the preparation of a decision in full, including the reasoning part, as a general mandatory rule of a simplified procedure. The article substantiates the motivation as an integral and inextricably linked with other procedural institutions property of a court decision. A critical assessment of the grounds for preparing a reasoned decision is given. The law-making activity of the Supreme Court of the Russian Federation is noted, which negatively affects the stability of the state system. The conclusion is formulated that the approach to the preparation of a reasoned judicial act does not correspond to the established goals of improving legislation, the essence of simplified procedures. There is an indissoluble connection between the rules of consideration of the case in a simplified procedure by the court of first instance and consideration of the complaint by the court of appeal. The article presents the judicial practice, revealing the content of the grounds for annulment of the court decision. There is a need to differentiate the powers of the court of appeal, depending on the basis of the cancellation of the court’s decision. Discussions and conclusions. Recommendations for further improvement of the civil procedure rules on simplified proceedings in terms of the rules for making a court decision, as well as the grounds and procedure for its cancellation, have been developed.

Conciliation in Civil Proceedings: Concept, Features, Procedural Forms

Where it is necessary to protect violated, unrecognized or contested rights, freedoms and interests and the legal recourse is chosen for it, each person hopes to receive effective protection in the near future. Unfortunately, such expectations are not always justified because of different objective and subjective factors. A variety of conciliation procedures, through which the dispute is settled by mutual agreement of its parties, are therefore widely available. Similar procedures did not go unnoticed in civil proceedings. However, despite the increased attention to various forms of conciliation at the international level, by the state and in research, today there is no clear definition of the concept, understanding the characteristics of conciliation in the process, as well there is no unanimity on its procedural forms. Such circumstances cause problems in the application of conciliation regulations in civil proceedings. Therefore, the purpose of the article is to define the concept of conciliation in civil proceedings, highlighting and analysis of its characteristics, on the basis of which the existence of procedural forms of conciliation, which can be used by the parties to civil case, is justified. Based on the features of procedural conciliation identified in the research, it is concluded that it is the procedure for the settlement of private law disputes referred to the courts, regulated by the rules of Civil Procedure and applied by the parties for their free will with a view to reaching mutually advantageous agreements between them, which are recorded in the procedural act. At the same time, the Civil Procedural legislation of Ukraine regulates two procedural forms of conciliation nowadays: settlement by a judge (it is the procedure provided by procedural law, conducted by a judge with proceedings in the relevant case) and conclusion and approval of a settlement agreement, which means an agreement reached by the parties to a civil case to settle a dispute referred to court on the basis of mutual concessions, which concerns only the rights and obligations of the parties.

ПОНЯТИЕ СИСТЕМЫ ГРАЖДАНСКОГО ПРОЦЕССУАЛЬНОГО ПРАВА

The study puts forward the thesis that the basis for the allocation of structural subdivisions of civil procedural law is mainly the subject of legal regulation. The complex internal structure of the system of this branch of law is due primarily to the diversity of civil procedural relations that constitute the subject of regulation of this branch of law. The work reveals the essential features of the concept of “system of civil procedural law”, defines the grounds for its structural subdivisions and their composition, gives the definition of this category. In particular, the author has formulated the idea that the system of civil procedural law is an internally coordinated set of civil procedural rules, institutions and other relatively independent structural subdivisions of this branch of law, naturally interconnected into a single whole due to the unity of civil procedural relations. Also in this study the point of view is expressed that each level of the system, as well as the entire system of civil procedural law as a whole, is characterized not only by typical features of its constituent elements, but also by their typical, regular relationships that constitute its structure.

Judicial procedural issues of choosing an effective method of legal protection in civil cases

Keywords: civil procedural protection, court effective way of protection, civilprocess
 The article is devoted to the study of Civil Procedureaspects of the court's application of a proper and effective method of protecting aviolated right within the frame of its own judicial discretion. Attention is paid to thestudy of the legal nature of civil protection, existing doctrinal positions, as well as thelegal and regulatory environment. The features of the exercise of discretionary powersby the court regarding the use of an effective method of protecting violated privatelaw have been established. It is indicated that the court is empowered to choose an effectivemethod of legal protection exclusively within the limits of the statement ofclaim — claims are detailed. It is emphasized that when choosing an effective methodof protection, the principle of the rule of law must be observed, in accordance with theprovisions of Article 10 of the Civil Procedural Code of Ukraine (“CPCU”). This meansthat an effective method of legal protection must be correlated with the provisions ofthe Convention for the protection of human rights and fundamental freedoms and thecase law of the European Court of Human Rights. This universal provision applies toall cases of claim proceedings, namely the claim, which are decided by the rules ofcivil procedure. The peculiarity of the court's use of an effective method of protectionin civil cases is that it can choose an effective method of legal protection only in courtcases in which the claim is considered, as well as when the law or agreements do notdetermine the effective method of legal protection. On the basis of the conducted scientificresearch, the author has developed own gradation of legal criteria of choice bycourt of an effective way of legal protection at consideration of civil cases. Such a gradationis universal for all cases considered by the court under the rules of civil procedure.Exceptions to the above regarding the application of a specific method of protectionare cases related to compensation for damage caused to an individual as a resultof withdrawal of an insolvent bank from the market or liquidation of the bank.

Excerpts from the Model Rules of Dating Procedure

Nearly thirty years have passed since the first major attempt at defining a “law of love.” Throughout that timeframe, many a first-year law student has struggled with the framework of modern American civil litigation, a framework exceptionally difficult to comprehend until it has been articulated in its entirety. At the same time, there exists an intersection between the processes of modern dating and civil litigation that has not been unpacked, a gap in the scholarly literature that this essay seeks to begin to fill. Simultaneously seeking to articulate the law of love to those inclined towards litigation and render civil procedure a more relatable construct to the starting law student, the crux of this essay is the notion that the Federal Rules of Civil Procedure more or less map onto a dating manual.

About ELI-Unidroit Rules Adoption and Translation into Ukrainian

The Model European Rules of Civil Procedure prepared by the European Law Institute with the International Institute for the Unification of Private Law during 2013-2021 have a great potential impact on the harmonisation of civil procedure and have attracted the attention of scholars from all over the world. For Ukraine, as well as for other EU entrance candidate countries, these Rules are an opportunity to harmonise the national civil process with EU law and create the necessary basis for the adaptation of European law and EU membership. In view of this, the preparation of their official translation into Ukrainian, which will be carried out is a relevant issue. To properly implement this task, a scientific council has been formed, which includes leading Ukrainian scientists and specialists in the field of civil procedure. Moreover, in order to methodologically support the translation process, ensure terminological consistency and uniformity, a terminological English-Ukrainian glossary of Model Rules of Civil Procedure is being compiled in parallel with the translation process. Establishing methodological basis of translation and careful choosing sources of reference is another important condition for quality translation. See more about Ukrainian translation of the Rules in this note.

The Roberts Court and Lost ESI

John G. Roberts, Jr. was confirmed as Chief Justice of the U.S. Supreme Court in September, 2005. Since then, there have been two major changes in the Federal Rules of Civil Procedure (FRCP) involving losses of discoverable electronically stored information (esi). These changes address the duties of preserving some esi for federal civil litigation and the sanctions available for preservation failures. The changes were embodied in FRCP 37, once in 2006 and once in 2015. The current Rule 37(e) provisions have always been accompanied by other FRCP discovery provisions on esi, with some predating any version of Rule 37(e). To date, Congress has remained quiet on lost esi in federal civil actions. This article reviews the history behind, and all the current, FRCP provisions on esi, particularly the Rule 37(e) changes. It also reviews the proposed esi changes to Rule 37 in 2013 that were not adopted. These reviews will focus on how the FRCP has addressed and now addresses lost discoverable esi. These reviews are accompanied by an examination of state civil procedure laws on presuit and postsuit esi losses. State laws are examined as they suggest potential FRCP reforms. A brief survey of state spoliation claims, whether in tort, contract, or otherwise, follows because these claims can be pursued in federal courts for either presuit or postsuit esi losses impacting pending civil actions. All this will then serves as the basis for exploring significant issues on lost esi in federal civil actions. Such issues include the uncertainties arising from the FRCP distinctions between esi and nonesi, as well as between varying forms of esi; the challenges in pursuing state spoliation claims in related federal civil actions; and, the problems arising when discoverable esi is lost by nonparties. The explorations will lead to some tentative thoughts on FRCP reforms involving lost esi that would prompt greater justice, efficiency and economy, per the FRCP 1 mandate. Possible new approaches include FRCP amendments broadening the opportunities for presuit esi discovery and creating new avenues for presuit protective orders on behalf of those possessing or controlling relevant esi, perhaps modeled a bit on the recent Arizona Civil Procedure Rule 45.2.

Transitivity Analysis of Pakistan's Code of Civil Procedure 1908: A Corpus-Based Study

The language of law is complex and needs to be investigated to facilitate its easy understanding. The present study addresses this need by analyzing a mini-corpus comprising two short texts taken from Pakistan's Code of Civil Procedure 1908 and the U.K.'s Civil Procedure Rules 1998 with Halliday's ideational metafunction, which is suited for analyzing procedural texts (Halliday & Matthiessen, 2004). The study identified the transitivity patterns in the mini corpus. The findings showed simpler construction of processes in the U.K. civil procedure text sample as compared to Pakistan's Civil Procedure text sample, whereas the analysis showed a similar complex construction of nominal phrases in both texts. The study is expected to contribute toward an easy understanding of legal language. It is also hoped that this study will promote further research in this important area with pedagogical implications.

The Politics of Civil Procedure: The Curious Story of the Process for the Eviction of Tenants

Abstract This article examines the process for the eviction of tenants (PET), which offers landlords a swift path for obtaining an eviction order against their tenants, as a case study exposing the politics of procedure. It shows that the PET is but one stage in a longstanding battle waged between two interest groups—landlords and tenants—involving both substantive law and procedural law. But while the story of their conflict over substantive law, fought in the parliament through the regular legislative process, is well-known, the story of the procedural amendments, despite their immense impact, remains shrouded in mystery and is told here for the first time. The reason for that, we argue, is that despite the vast impact of procedure on substantive right, many in the Israeli legal system mistakenly view civil procedure rules as highly technical and neutral directives for the day-to-day operation of the litigation process. The conclusion from such a view is that rulemaking should be left to expert legal technicians and court administrators and that transparency mechanisms or public participation are to be avoided as unnecessary due to the costs and burdens they impose on the rulemaking process. The article concludes with a call for overhauling the rulemaking process in Israel. We argue that the secretive and opaque process is anathema to democracy. Bearing in mind that procedural rules are inevitably imbued with substantive values and have an enormous effect on the substantive rights of the citizenry, the rulemaking process should be radically altered to enable all interested parties to take part in the process, making it far more transparent and subject to public scrutiny in all its stages.

The definition of the term Affidavit in England and Ukraine through the prism of commercial relations between the legal entities

The article presents the outcome of the research and analysis of the concept originated in the common law countries – Affidavitand its application and usage in Ukraine.The focus is made on the legal nature of Affidavit which can slightly vary in different case-law countries. As the analyzed conceptis not relevant to the civil law jurisdictions, the conclusion includes the author`s opinion that the concept by its very nature may havedifferent impact on the outcome of the commercial proceedings in Ukraine.The jurisdiction of England of Wales is chosen as an example jurisdiction for the analysis of the definition of Affidavit. It is foundout that the essence of the term is clarified through both precedents and statutory instruments.One of the main Act which is analyzed throughout the article is the Civil Procedure Rules 1998 (hereinafter – CPR). Accordingto the Glossary section of the CPR the Affidavit is a written, sworn statement of evidence. The nature of this term is explained in detailsin the Part 32 of the CPR which is called – Evidence.According to the general rule of evidence of witness stipulated by section 32.2. of the Part 32 of the CPR any fact which needs tobe proven by the evidence of witnesses is to be proved at trial, by their oral evidence given in public; and at any other hearing, by theirevidence in writing. This is subject to any provision to the contrary contained in these Rules or elsewhere; or to any order of the court.According to the section 32.15 of the Part 32 of the CPR the Evidence must be given by affidavit instead of or in addition to awitness statement if this is required by the court, or by other rules.The analysis made within the article proves and shares the conclusions of the earlier researches as for the paramount role of witnessevidence in the case-law jurisdiction.The form of making the affidavit is analyzed and some views on the validity of Affidavit made in a remote way are highlighted.As for the role of Affidavit in economic proceedings in Ukraine, the conclusion is made that the main nature of the documentmade as an Affidavit in England but filed within the proceedings in Ukraine will be a type of the witness statement. Affidavit in theoutlined situation cannot be treated as an exhibit within the meaning given to exhibits (written document distinct from the witness statementor affidavit) by the Economic Procedural Code of Ukraine.At the same time, it is stressed out that if the Affidavit is made in the other country, its nature may vary and its outcome on theproceedings may be also different.

The Ice Breaking Decision of the Court of Appeal in Spog v. Pan Peninsula

When Hon. Justice Inumidun Akande (Rtd), an erstwhile Chief Judge of Lagos State, unveiled the High Court of Lagos State (Civil procedure) Rules in 2012, a major striking feature was the introduction of the Pre-action Protocol Form 01 as one of the documents that must necessarily accompany a writ of summons or originating summons by virtue of Order 3 rules 2 and 8 which inexplicably omitted originating motions from the processes that must be so accompanied.