European Procedural Law Research Articles

Parallel Arbitral Proceedings: An Analysis of the Issue of Parallel Arbitrations in International Commercial Arbitration within the European Legal Space

Abstract Avoiding lis pendens within the EU has always been considered a guarantee for effective judicial cooperation. However, since arbitration is excluded from the scope of European procedural law, questions have been raised as to how parallel arbitral and state court procedures will be regulated. This article aims to illustrate the mechanisms that have been proposed to resolve this issue outside the European Regulations’ scheme with a focus on parallel arbitrations. Under this scope, the author attempts to discuss the potential solutions that have been introduced in respect to “lis pendens” between an arbitral tribunal and a state court as well as their effectiveness. Taken the tie from this analysis, the last part of this article focuses on the issue of parallel arbitral procedures and whether conflicts of jurisdiction can be resolved by using the same mechanisms as adopted in the case of parallel the arbitral and state court proceedings.

Book review: Implementing EU Consumer Rights by National Procedural Law. Luxembourg Report on European Procedural Law. Volume II., edited by Burkhard Hess and Stephanie Law. (Munich/ Baden-Baden: C.H. Beck/Nomos, 2019.)

Book review: <i>Implementing EU Consumer Rights by National Procedural Law. Luxembourg Report on European Procedural Law. Volume II.</i>, edited by Burkhard Hess and Stephanie Law. (Munich/ Baden-Baden: C.H. Beck/Nomos, 2019.)

Conflicts of Jurisdiction in Criminal Law: Lessons from European Civil Procedure

One of the main purposes of private international law is the resolution of conflicts of jurisdiction in civil matters. In the European Union (EU), this goal is pursued by an articulate body of Regulations, forming part of what is usually labelled as ‘European procedural law’ or ‘European civil procedure’. In criminal law, by contrast, no such system exists: although Eurojust aims at resolving conflicts of jurisdiction by facilitating the identification of the jurisdiction that should prosecute cross-border crimes, no hard-law instrument regulates this matter in a binding fashion.Having noted this legislative gap, in January 2013 the European Law Institute accepted a project proposal dealing with the prevention and settlement of conflicts of jurisdiction in criminal law. One of the tasks of the Working Group focusing on this project was a comparison between private international law and criminal matters, so as to assess whether and to what extent the solutions adopted in the former field could be successfully transposed to the latter. This Chapter presents some reflections of the topic, triggered by the Working Group’s meetings and discussions.The Chapter proceeds in three parts. The first part preliminarily highlights some fundamental differences between civil and criminal justice, which must be taken into account. As the Chapter will show, the differences at hand constrain, to a certain extent, the feasibility of a cross-sectoral comparative exercise, but they by no means make it impossible. The second part looks at private international law in general and argues that some of its basic principles should be adopted in the field of conflicts of jurisdiction in criminal law too. Finally, the third part draws some specific lessons from European civil procedure in particular.

Analysis of the evolution and current status of the Austrian civil procedural law

The paper analyses the rules contained in the Austrian Civil Procedure Act. Although this act was adopted back in 1895, it is still in force. This continuity is a proof of the great value of this legislative document. This Act has had a significant influence on the Central and Eastern European procedural laws. From the period of its enactment, despite preserving its fundamental components, the Austrian Civil Procedure Act has been through a number of modifications, including the amendments that were introduced towards the end of 20th and in early 21st century. More recent modifications are a result of the influence of common European procedural law and concern the issues like jurisdiction, enforcement of decisions, proceedings concerning payment orders, special litigations, non-contentious proceedings. The Austrian civil procedural law, as a normative system, accompanied by a rich literature and creative judicial practice, has influenced the Serbian law, whose system and particular institutes have accepted the solutions contained in the Austrian law. The paper gives an overview of the systems and basic institutes of the Austrian civil procedure: complaint, response to the complaint, preliminary hearing, main hearing, evidence and evidentiary hearing, court's ruling. The aim is to consider the existing contents of the Austrian Civil Procedure Act in the context of reforms of the Serbian Civil Procedure Act.

Theoretical approach of the main means of appeals in the European procedural law.

Knowledge and understanding the means of appeals lodged before the courts of the European Union, limited only to the points of law, are very important taking into account the modality to control a judgment delivered by an inferior court exists since ancient times, being governed among others, by the Larin principle: res judicata pro veritate accipitur. In the following we will examine, in general, the judicial control of the judgments and orders delivered by the General Court and by the Civil Service Tribunal, as a specialized tribunal on civil servant issues, but also the sui generis means of appeals and the extraordinary means of reviews of the judgments and orders. We shall mention that all of them are exercised in accordance with the Rules of Procedure of the European courts and the Statute of the Court of Justice of the European Union. Another aspect to be mentioned is that the judjments of the Court of Justice cannot be challenged to another court, as they remain final and irrevocable.

European Account Preservation Order: What Does the Common Law Tradition Have to Say?

The European Account Preservation Order (“EAPO”) is the new promising instrument of the developing European procedural law. It is suggested that European legislators must aim at eliminating the uncertainties created by the different procedural rules across the European Union. This can be achieved on the basis of mutual trust, which materialises when solutions from all different legal families — those that admittedly function better — are recruited. The EAPO is a good opportunity to consider options from the common law tradition.

Ensuring equal legal aid to the citizens in the European Procedural Law

“The right of poor persons” or legal aid, as part of the free access to justice and a fundamental right of the citizens, represents one of the most important components of the right to defence in proceedings brought before the European Union’s courts, if we include also the exemption of taxes and other financial obligations that can be ordered whenever individuals for financial reasons, cannot afford hiring a lawyer, no matter the object of the dispute, such as: civil, labour, administrative etc.This right is provided for both in the European primary and secondary legislation, including in Article 47 para. 3 of the Charter of Fundamental Rights of the European Union, and also at the national level, namely in the national constitutions and legislations of the 28 Member States.Establishing minimum common rules relating to legal aid for disputes by the Council Directive 2003/8/EC in January 2003 to improve access to justice in cross-border disputes is considered to be a cornerstone in respecting the principl...

Procedural Convergence in Competition Law

In this article I will address the question of whether substantive statutory convergence, by which is meant that national statutory law holds norms that are substantively the same as European law norms, is followed by spontaneous procedural convergence. This question will be addressed in focusing on Dutch competition law, which is substantively the same as EC competition law. This means that at the statutory level there is substantive convergence, but not necessarily statutory procedural convergence. Following a general assumption that procedural law is shaped by substantive law, the expectation may be that the statutory substantive convergence in Dutch competition law will give rise to procedural convergence at the level of the courts. Though this article focuses on the influence of European procedural law on national Dutch court proceedings, its findings have a wider relevance, because of the implications these findings may have on the thesis of a general developing procedural ius commune.

A Major Step in the Harmonization of Procedural Law in Europe: The European Small Claims Procedure Accomplishments, New Features and Some Fundamental Questions of European Harmonization

textabstractEuropean civil procedural law has been in a constant state of flux since the coming into force of the Treaty of Amsterdam in 1999. The introduction of Article 65 EC Treaty was followed by numerous Community instruments in the field of civil procedure, mostly regulations that have direct binding force in the Member States. These have changed the face of litigation in the European Union.This paper focuses on the recent developments in European procedural law, and more in particular the establishment of the first two harmonized European procedures. The emphasis is on the European Small Claims Procedure, which as a full, adversarial procedure is more substantial than the primarily administrative European Order for Payment Procedure for uncontested claims. First on overview of harmonization of procedural law in Europe after the Treaty of Amsterdam is provided, then the European Small Claims Procedure is analyzed. The final section contains some thoughts on the harmonization of procedural law in Europe. First, the accomplishments and innovative features are discussed. Second, some difficulties and fundamental issues of the harmonization of procedural law in Europe are presented.

Tort and Contract Jurisdiction via the Internet: The Minimum Contacts Test and the Brussels Regulation Compared.

One of the most difficult topics in both American and European procedural law is the jurisdictional reach of courts over defendants in tort and contract actions. This has become particularly evident with the exponential increase in the use of the Internet as a communication and marketing device. Questions regarding the proper forum in, for example, defamation actions or consumer disputes present difficult questions for both American and European courts. The European Union's adoption of a new Regulation for cases filed on or after 1 March 2002 (the ‘Brussels Regulation’) presents an opportunity for fresh examination of this important topic.

Towards a Common European Procedural Law (part 2)

Towards a Common European Procedural Law (part 2)

Actio Pauliana Outside Bankruptcy and the Brussels Convention

It was Bert Voskuil, ten years ago when on a research semester at the Law Faculty of Uppsala University, who first introduced me to Dutch law, in Sweden a far too neglected area of comparative research. After a number of discussions or rather explanatory remarks from Bert Voskuil's side on the concept of levering (traditio), which was then my primary topic of interest, he also mentioned the important role in Dutch law of the actio Pauliana. I looked quite bewildered, since outside bankruptcy, this institution is, strangely enough, unknown in Scandinavian law. It caught my interest, and in a later work I made an effort to present it to the Swedish legal audience. Sweden is still outside the Community and barred from cooperation under the Brussels Convention. We are, however, on the point of ratifying the parallel Lugano Convention signed in 1988 by EEC and EFTA States. The choice of topic for mis Liber Amicorum, thus, came easily: some reflections on the actio Pauliana in European procedural law.

European Law: ending discrimination against girls in education

ABSTRACT This article examines the ways in which the European Convention on Human Rights and its case‐law could be used to combat sexist education in State or private schools as well as the development of concepts of philosophical convictions, the duty of the State and the rights of children. Children could use the Convention if their parents imposed a limited education on them, and better opportunities were offered through the State. The provisions under the European Community, though more limited, apply to vocational education and training and access to it. Such access has implications for secondary schooling. European Community law on equality for women could be especially valuable. The difficulties of using English law are reviewed and aspects of English and European procedural law noted. I conclude with suggestions for a feminist strategy to improve girls’ education and that of other disadvantaged groups who could use similar arguments.