Principles Of Transnational Civil Procedure Research Articles

Efficiency and Values in the Constitution of Civil Procedure

In this paper, the authors identify important gaps in the literature on civil procedure reform and suggest avenues for further research. Taking a critical look at the consensus that prevails across jurisdictions regarding the need to reform civil procedure, the authors insist on putting efficiency in perspective and on acknowledging the relative lack of reliable data on which to ground proposed changes to civil procedure in the United Kingdom, the United States, and Canada. The methodological challenges posed by data collection may be overcome by considering converging procedural practices as well as harmonisation endeavours such as the ALI/UNIDROIT Principles of Transnational Civil Procedure. In addition, certain theoretical assumptions may be fleshed out through the exercise of classifying the fundamental values of justice underlying procedural arrangements across jurisdictions.

Due notice of proceedings: present and future

The purpose of this article, which is based on my presentation to the exploratory workshop of the European Law Institute and the International Institute for the Unification of Private Law (Unidroit), is first to map and explore the situation that we have today in the supranational landscape of the European Union (EU) in relation to cross-border due notice of proceedings.1 Thereafter, my aim is to compare these findings to more overarching projects, including the Principles of Transnational Civil Procedure (PTCP), developed by the American Law Institute (ALI) and Unidroit.2 Finally, I hope to make some preliminary observations for the future in relation to the potential synergies and challenges we face in Europe today. For the sake of clarity, the terms to ‘give notice’ and to ‘serve’ will be used interchangeably in this article to denote the formalized legal action of delivery or remittance of certain documents. The title of this article implies that it will focus specifically on giving due notice of proceedings—that is, focus on the specific rules for correctly giving notice of, or serving documents that institute, legal proceedings. This means in simple terms the procedure to make the addressee or defendant party aware of legal action taken against it. In part, the service rules described in this article may be more general and apply more broadly than just the giving notice of a claim.

The structure of civil proceedings and why it matters: exploratory observations on future ELI-UNIDROIT European rules of civil procedure

Most domestic codes of civil procedure do not devote a separate provision to the structure of proceedings. The basic structure of the procedure can, however, be deduced from a range of provisions, commencing with rules on the initiation of the procedure and ending with the final judgment. Most of these provisions are rather detailed and technical. The overriding aim of these provisions, however, is to guarantee a due process of law (proper procedural order) that, on the one hand, secures procedural rights, including fundamental rights, and, on the other hand, fosters procedural efficiency. Particularly in recent decades, a focal point of domestic civil procedural reform has been to increase the efficiency of civil proceedings, although it has also been shown that the swiftness of proceedings was already a matter of concern in the fourteenth century in Romano-canonical procedures.1 Despite the general absence of a provision or section specifically devoted to the structure of the proceedings in national codifications, the drafters of the Principles of Transnational Civil Procedure (PTCP), prepared by the International Institute for the Unification of Private Law (Unidroit) and the American Law Institute (ALI), decided to dedicate a principle to this matter.2 Principle 9, entitled ‘The Structure of the Proceedings’ lays down the basic structure of the procedure. It provides that ordinarily the proceedings should consist of three phases: (i) the pleading phase; (ii) the interim phase; and (iii) the final phase. The comments to this Principle clarify that the ‘concept of “structure” of the proceedings should be applied flexibly, according to the nature of the particular case’.3 This explanation signifies the open and discretionary nature of this Principle and is especially important since the structure of the proceedings differs for each country and is closely interwoven with the judicial organization and legal culture.4 As a preliminary observation, it is submitted that a complete unification of the structure of all proceedings is probably not feasible and may not be desirable in light of the existing judicial diversity as well as of the need to adapt to the circumstances of the case and to changes in society.

Principles of European civil procedure or a European model code?Some considerations on the joint ELI-UNIDROIT project

The following considerations were the subject of the author’s closing remarks at the workshop entitled ‘From Transnational Principles to European Rules of Civil Procedure’, which was held in Vienna in October 2013. His remarks were not designed to summarize or discuss the full contents of all of the papers and contributions of the meeting in Vienna. Rather, they tried to develop some helpful thoughts on the further development and organization of the planned project of the European Law Institute (ELI) and the International Institute for the Unification of Private Law (Unidroit). The workshop’s informative papers and its enlightening discussions make it much easier to attempt to form a conception of the planned project. The author’s experiences in writing the feasibility study and as a co-reporter of the Principles of Transnational Civil Procedure (PTCP), which were prepared by the American Law Institute (ALI) and Unidroit, may give some additional guidance.1

Efficiency and Values in the Constitution of Civil Procedure

In this paper, the authors identify important gaps in the literature on civil procedure reform and suggest avenues for further research. Taking a critical look at the consensus that prevails across jurisdictions regarding the need to reform civil procedure, the authors insist on putting efficiency in perspective and on acknowledging the relative lack of reliable data on which to ground proposed changes to civil procedure in the United Kingdom, the United States, and Canada. The methodological challenges posed by data collection may be overcome by considering converging procedural practices as well as harmonisation endeavours such as the ALI/UNIDROIT Principles of Transnational Civil Procedure. In addition, certain theoretical assumptions may be fleshed out through the exercise of classifying the fundamental values of justice underlying procedural arrangements across jurisdictions.

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

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.

Beyond Winning: Case Management and the Role of Lawyers in the Principles

This paper will focus on the role of lawyers in the Principles of Transnational Civil Procedure that have been published by UNIDROIT/ALI. These principles are meant to be a stimulus for harmonisation and improvement of civil procedure. Litigation however is not only, perhaps not even primarily about rules. It is also about practice. Therefore, whoever wants to improve a system of procedural rules, or aims at designing principles that can set an example for reforms in civil litigation, should keep in mind the practitioners: the lawyers and the judges.Several problems are not resolved in the Principles, and possibly can't be resolved within principles of this kind. The problem I will address here is not an exclusive problem of the Principles. It is common to most modern systems of civil procedure, which prescribe judicial case management, because these systems also oblige the parties to cooperate in order to reach the desired efficiency in litigating. This inevitably raises the question: how does one persuade parties and their lawyers to cooperate in civil litigation?This question I will address in the second and main part of this paper. However, the paper opens with an introduction to those Principles that are relevant for the role of the lawyers in civil procedure, by means of a comparison of these principles with Dutch rules and norms.

Applicability of the 2004 ALI / UNIDROIT Principles of Transnational Civil Procedure

This research deals with the Transnational Civil Procedure Principles adopted by the American Law Institute (ALI) and the International Institute for the Unification of Private Law (Unidroit), in Rome, in 2004. It emphasizes the importance of these Principles in the field of international commercial arbitration; these Principles are the first instrument as such that deals with civil procedure, especially because the experience of international conventions in this field was not satisfactory. This research stipulates the matters addressed by the Principles. It also clarifies the cases of their application, whether by the agreement of the parties or by the adoption of the principles by the legislature. In order to cope with the international development and to encourage the foreign trade, it was finally recommended that the legislature in the Arab countries should adopt these Principles as special civil procedure rules for the matters they address, namely the transnational adjudication. The legislature may also constitute a special court to apply the Principles to all disputes in the transnational commercial (and civil) matters.

Principles of Transnational Civil Procedure

Principles of Transnational Civil Procedure

The Principles of Transnational Civil Procedure, An Introduction to Their Basic Conceptions

The Principles of Transnational Civil Procedure, An Introduction to Their Basic Conceptions

Scope of Application of the ALI / UNIDROIT Principles of Transnational Civil Procedure

Journal Article Scope of Application of the ALI / UNIDROIT Principles of Transnational Civil Procedure Get access Konstantinos D. Kerameus Konstantinos D. Kerameus Search for other works by this author on: Oxford Academic Google Scholar Uniform Law Review, Volume 9, Issue 4, December 2004, Pages 847–857, https://doi.org/10.1093/ulr/9.4.847 Published: 01 December 2004

The Ali / Unidroit Principles of Transnational Civil Procedure as Global Standards for Adjudication ?

The Ali / Unidroit Principles of Transnational Civil Procedure as Global Standards for Adjudication ?

The Synthesis of Common and Civil Law Standard of Proof Formulae in the Ali / Unidroit Principles of Transnational Civil Procedure

The Synthesis of Common and Civil Law Standard of Proof Formulae in the Ali / Unidroit Principles of Transnational Civil Procedure

The Proposed ALI / UNIDROIT Principles of Transnational Civil Procedure and their Relationship to Australian Jurisdictions

The Proposed ALI / UNIDROIT Principles of Transnational Civil Procedure and their Relationship to Australian Jurisdictions