National Civil Procedure Research Articles

Unification of the Case-law within the Civil Procedure System of Romania

The present article contains the main legal practice unification mechanisms, as regulated by the Romanian legislator in accordance with the current Civil Procedure Code, as well as those partaking to the Supreme Court jurisprudence in conjuncture with the lower courts by granting a uniform settlement on the legal issues comprised by the litigations referred to. The presentation starts off with the referral in the interest of the law, a traditional instrument within the national civil procedure legal sphere of activity, it continues with the notification of the Supreme Court for settling certain legal matters, a novelty at national level and of whose practical utility has already been recognised, and it ends by making reference to the second appeal, as an extraordinary means of challenge, with a relatively reduced efficiency, at present, in settling the different interpretations of the legal norms.

European Commission an Evaluation Study of the Impact of National Procedural Laws and Practices on the Equivalence and Effectiveness of the Procedural Protection of Consumers under EU Law JUST/2014/RCON/PR/CIVI/0082

European Commission Study JUST/2014/RCON/PR/CIVI/0082 on National Civil Procedure Laws of 28 MS and the Enforcement of European Union Law led by Max Planck Institute for Procedural Law in Luxembourg: An evaluation study of national procedural laws and practices in terms of their impact on the free circulation of judgments and on the equivalence and effectiveness of the procedural protection of consumers under EU consumer law. The consumer protection strand of the study evaluates whether and to what extent national procedural laws and practices ensure the effective procedural protection of EU consumers. Both strands of the study investigate the legal and the practical situations in the civil procedural laws of the 28 EU Member States.

The European Union and National Civil Procedure. Ed. by Anna Nylund and Bart Krans. – Cambridge: intersentia 2016. XII, 173 S. (Ius Commune Europaeum. 150.)

The European Union and National Civil Procedure. Ed. by Anna Nylund and Bart Krans. – Cambridge: intersentia 2016. XII, 173 S. (Ius Commune Europaeum. 150.)

Book Review: The European Union and National Civil Procedure, edited by Anna Nylund and Bart Krans. (Antwerp: Intersentia, 2016)

Book Review: <i>The European Union and National Civil Procedure</i>, edited by Anna Nylund and Bart Krans. (Antwerp: Intersentia, 2016)

Sovereignty and National Civil Procedure: An Analysis of State Practice in Japan

Sovereignty and National Civil Procedure: An Analysis of State Practice in Japan

EU Law and National Civil Procedure Law: An Invisible Pillar

Abstract: The Europeanization of national civil procedure law consists out of several pillars. The influence of the European Convention on Human Rights (ECHR) is well known. A second pillar of the European influence on civil procedure law is the growing number of European regulations concerning the crossroads of civil procedure law and private international law. This article focuses on the Europeanization of national law by a third, ‘invisible pillar’. The European influence in the ‘invisible pillar’ concerns many topics, such as ex officio application law, burden of proof, means of proof, costs, the free choice of a lawyer, the threshold amount exempt from seizure and arbitration. The first part of this invisible pillar follows from the role of national civil procedure law in enforcing EU law. The European Court leaves the procedural law to the national courts. The second area of the invisible pillar concerns procedural rules in Directives. A close look at several Directives reveals that the list of procedural topics touched upon by Directives is far from small. Directives contain procedural rules relevant for various capita of the civil procedure law of the Member States. This article seeks to shine some light on parts of this pillar by examining three topics: ex officio application, costs and the free choice of a lawyer, and legal expenses insurance. These examples serve to demonstrate that this area covers a wide variety of topics. Three problems relating to this invisible pillar will be identified: uncertainty, external differences, and internal differences.

Is There a Default Principle of Cost Allocation in International Arbitration?

This study looks at the interaction between cost allocation systems as they have developed in national civil procedure and the cost allocation principles found in the arbitration rules of those jurisdictions. I define two basic approaches to cost allocation: one, known as the 'American rule', which is outcome neutral and the other, which is the allocation of costs based on the outcome of the case. Within the latter 'outcome based' allocation, I identify three methods. After looking at the policy considerations which drive these four approaches, the study analyses the cost decisions of fifty-three awards, with a view to identifying any empirical evidence of a default principle of last allocation in international arbitration.

Access to Justice or Access to States Courtss Justice in Europe? The Directive 2008/52/EC on Civil and Commercial Mediation

Modern societies are very much linked to the idea of litigation. A hidden rule seems to exist in the sense that the more advanced a society is the highest level of litigation it suffers. This increase in the level of litigation amounts to a sort of “litigation explosion” that has traditionally been linked to State courts. This explosion is said to put the whole judiciary system under pressure in so far the volume of disputes brought before State courts increases, the proceedings become more and more lengthy and the costs incurred in such proceedings also augment. The goal to tackle this explosion underpins most of the reforms that modern national civil procedure laws have suffered in many countries for the last two decades and fuels the growing support of ADR devices in many parts of the world in an effort to make the procedure system more efficient and affordable for the parties. This explosion was first reported in USA and now is fully ascertainable in many parts of the world where litigation grows steadily. In Europe it actually entails growing concerns about the maintenance of the level of quality of the judiciary system despite the budgetary efforts done for many years by the several European Governments in their judicial system, and consequently therewith of the full preservation of the principle of access to justice in the continent. This situation raises the issue of ascertaining to what extent the current situation of considering the principle of access to justice solely referred to access to State courts justice may be maintained or a move towards a broader understanding of this principle in the sense of embodying a joint reference to State courts and ADR devices is under way. The solution provided to this question will tailor the notion of justice in the XXI Century.

The Preclusive Effect of U.S. Class Action Judgments in Switzerland: Does a Judgment in an Opt-Out Class Action before a U.S. Court Preclude Absent Plaintiff Class Members from (Re)-Litigating Their Individual Claims in Switzerland?

The Swiss legislator has so far refused to implement any substantial form of representative litigation into national civil procedure law. As an indirect consequence of the absence of domestic group litigation in Switzerland, it is unclear how Swiss courts have to deal with foreign class actions. One crucial question is whether money judgments in foreign class actions are enforceable in Switzerland, i.e. whether a class representative is able to enforce a judgment in favor of the class in this country. Yet foreign class actions also raise the additional issue whether absent class members are precluded from individually litigating their claims, particularly in case the class action was unsuccessful. While, according to the concept of U.S. opt-out class actions, individual claimants are generally barred from suing upon their own causes of action that have already been litigated in the context of a class action, the same issue is so far unresolved in the international context. Absent a relevant statutory provision or case law regarding this question, the opinions in Switzerland differ considerably.In the United States, the issue of preclusion of class members in other countries has attracted increasing interest over the last few years. Acknowledging the risk that plaintiff class members might attempt to (re-)litigate their claims in foreign jurisdictions, U.S. courts have started to take the anticipated recognition/non-recognition of the class action judgment in the plaintiffs’ home countries into account when asked to certify an international plaintiff-class.In this article, I will analyze the issues arising when a defendant argues in a Swiss court proceeding that the plaintiff was part of a class which has already litigated its members’ claims in the United States and that the plaintiff should therefore be precluded with his individual lawsuit. Then, I will examine how well Switzerland fares with its current provisions on the international level, in particular in light of the mentioned development in U.S. law regarding transnational class actions.

The Use of National Civil Procedure Rules in International Arbitration

This paper argues that the use of civil procedure rules is anathema to the international arbitrator. In international arbitration proceedings, civil procedure rules will only be invoked in exceptional circumstances where the procedural requirements of the place of arbitration so require or where the parties and the tribunal specifically agree for the proceedings to be conducted in accordance with such rules.