From common rules to best practices in European Civil Procedure

Cover

From Common Rules to Best Practices in European Civil Procedure: An Introduction

(A) A New Era for Civil Procedure in the EU

(1) Policy and Legislative Perspectives

(2) An Academic Endeavour: the ELI-Unidroit European Rules of Civil Procedure

(3) From Common Rules to Best Practices

(B) Four Perspectives on EU Civil Justice

(1) Common Standards of EU Civil Procedure: Harmonization and Cooperation

(2) Procedural Innovation and e-Justice

(3) Alternative Dispute Resolution and Judicial Cooperation

(4) Promoting Best Practices in Judicial Cooperation

(C) Some Observations on Challenges and Future Avenues

(1) Justice for Growth and Justice as an End in Itself

(2) Horizontal and/or Vertical Harmonization: Towards More Coherence

(3) Towards “Minimum Common Standards”?

(4) Best Practices: Uniform and Effective Application

(5) Changing Dynamics in the EU

(D) Concluding Remarks

Common Rules and Best Practices From the Perspective of the European Commission

Common Rules and Best Practices From the Perspective of the European Parliament

Harmonizing Civil Procedure: Initial Remarks

(A) Preliminary Remark

(B) The Notion of a “Standard”

(C) Procedural rules, financial resources, mindsets

(D) Harmonization of Civil Procedure: Criticism

(E) Praesumptio Similitudinis?

(F) Procedural Law and Culture

(G) Drivers of Harmonization of Civil Procedure

(H) The “Quiet [?] Power of Indicators”

(I) The ELI/UNIDROIT Joint Project on European Rules of Civil Procedure

(J) Goals of Civil Justice

(K) Concluding Remarks

Approximation of Civil Procedural Law in the European Union

(A) Introduction

(B) Is Harmonization Necessary?

(C) How should Approximation be Achieved?

(D) Best Practices?

(E) How to Achieve Civil Procedural Alignment in Europe?

(F) Beyond Common Rules and Towards Best Practices; EU Justice Scoreboard

(G) Conclusion

Do We Need Harmonisation to Achieve Harmonious Cooperation?

Judicial Cooperation for Criminal Matters as a Testing Field

(A) Introduction

(B) History and Evolution of Judicial Cooperation in Criminal Matters

(1) Background and First Steps towards Judicial Cooperation in Criminal Matters

(2) Procedural Safeguards: From 2000 to 2009 and Beyond

(C) Mutual Recognition, Approximation, Equivalence, in Judicial Cooperation for Criminal Matters

(1) Mutual Recognition versus/and Approximation

(2) In the context of criminal judicial cooperation

(a) Mutual Recognition, Approximation and Fundamental Rights

(b) The CJEU. Mutual Trust beyond Approximation

(3) Allocation of Roles between the Issuing and the Requested Member States

(D) Approximation of Procedural Rights. The State of the Art

(1) Procedures for Mutual Recognition

(2) Approximation of Procedural Rights and Safeguards

(3) Assessment

(E) Judicial Cooperation in Civil Matters: A Comparison

(1) Articles 81, 82 TFUE

(a) A Divergent Wording

(b) Relevant Divergences

(2) Conceptual Bases. The Role of the Individual

(3) Nuances

(4) How, How Much

(F) Conclusion

Harmonious Judicial Cooperation Through Harmonisation: (What) Can We Learn From Criminal Matters?

(A) Introduction

(B) Has Harmonisation in Criminal Justice Led to Harmonious Cooperation?

(C) The Civil Justice Paradigm and the Role of Party Autonomy

(D) Minimum Standards as Maximum Standards

(E) Enforcement of Standards

(F) Conclusion

Harmonization of Civil Procedure: Is the United States a Model for the European Union?

(A) Introduction

(B) From the English Tradition to a United States Model

(C) The Limits of Procedural Harmonization in the US

(1) Procedural Diversity Across US States

(2) Procedural Diversity within the Federal System

(3) Procedural Diversity Between State Systems and the Federal System

(4) Implications for the European Union

(D) The Full Faith and Credit Alternative

(1) Full Faith and Credit

(2) Fundamental Principles of Procedure

(3) Implications for the EU

(E) The Politics of Procedural Reform

(G) Conclusion

Comments on Christopher A. Whytock, Harmonization of EU Procedural Law: Is the US a Positive or Negative Model?

(A) Introduction

(B) Reasons for legal transplants from the federal or European level to the member states

(C) The trickling down of European rules of civil procedure into the domestic legal systems

(1) Through domestic legislation

(a) Recognition and enforcement of third-state judgments

(b) Public policy

(c) Service of documents

(2) Through domestic courts

(a) In general

(b) Place of performance in contractual litigation

(c) Choice-of-court agreements with consumers

(d) Violations of personality rights via the internet

(e) Negative declaratory action and lis alibi pendens

(3) Conclusion

(D) Top-down harmonization

(E) "Full faith and credit" and mutual trust

(F) The political dimension

(G) Conclusion

From Drafting Common Rules to Implementing Electronic European Civil Procedures: The Rise of e-CODEX

(A) Introduction

(B) Research Methodology

(C) European Civil Procedures

(D) e-CODEX

(1) An introduction to the project

(2) Determining the technological and normative requirements

(a) Key legal requirements

(b) Key technological requirements

(c) Additional requirements

(3) The e-codex solution

(4) From developing to piloting

(E) Going Beyond

(1) Knowledge creation on cross-border procedures

(2) Policy making and Political dimensions

(F) Concluding remarks

Taking Justice Online: Developments in England and Wales and Their Potential Influence on European Procedural Harmonisation

(A) Introduction

(B) Background to the Reforms

(C) Two Routes to Reform

(1) The first route – The HMCTS Reform Programme

(2) The second route – JUSTICE, the CJC and the CCSR

(D) Inspiration for European Convergence

(E) Conclusion

Envisioning the Next Step in e-Justice: In Search of the Key to Provide Easy Access to Cross-border Justice for All Users

(A) Introduction

(B) Where It All Began: At the Origins of the Cross-border Access to Justice Topic

(C) The e-Justice Now

(1) e-Law

(2) e-Justice

The deployment of e-CODEX in the Civil Law domain experience

(D) Cross-border Justice From the User Perspective: The User Story Approach

(1) An Example of User Story Derived From the API for Justice Project: DIY Application for the European Order for Payment

(2) Getting away from frustration

(E) Where to Go From Here

E-Justice, Innovation and the EU

(A) Introduction: A Triad of Issues

(B) EU e-Justice

(1) Background

(2) Nascent e-Justice Developments

(a) Aims, Scope and Functions

(b) Achievements and Future Projects

(c) e-CODEX

(3) Analysis

(a) Challenge of Decentralisation and Interoperability

(b) Challenge of Functionality

(c) Additional Challenges

(C) Electronic Service of Documents

(1) Domestic Models in the EU

(2) Supra-National Regulations

(a) EU Civil Justice Acts

(b) Other Structures and Models

(3) Issues for the Legislator

(D) E-Justice and Innovation

(1) General Perspective: What is the Crux?

(2) EU Perspective: An Easy Fix or a True Change?

Litigation Costs and Procedural Cultures – New Avenues For Research in Procedural Law –

(A) Introductory Remarks

(B) Litigation Costs at the National Level

(1) Significance of Litigation Costs

(a) For the Users of Judicial Services

(b) For Third Individuals

(c) For the Providers of Judicial Services

(2) The Financial Risks of Litigation

(a) Court Fees

(b) Costs Arising from Taking of Evidence

(c) Attorney Fees

(3) Allocation of Financial Risks

(a) Allocation of Costs on the Demand Side

(i) Inter partes

(ii) Inter users

(b) Allocation of Costs on the Supply Side

(i) The allocation of costs on taxpayers

(ii) The limits of the allocation of costs to taxpayers in time of crisis

(c) Spreading Risks among Larger Groups

(i) Legal aid

(ii) Mutualising litigation risks among potential litigants

(iii) Litigation investors

(C) Litigation Costs in Cross-Border Cases

(1) Pre-litigation Costs

(2) Cost of Service

(3) Cost of Translation

(4) Cost of Applying and Proving Foreign Law

(a) Ex officio Application of Foreign Law

(b) Assessment of the Content of Foreign Law

(i) National practices

(ii) International and EU instruments

(5) Cost of Enforcement

(D) Conclusions

Consumer Dispute Resolution Mechanisms: Effective Enforcement and Common Principles

(A) Introduction

(B) Rise and Autonomy of CDR

(C) Effective Enforcement

(1) A(C)DR

(2) New Approaches of Enforcement

(D) Common Principles, Standards or Rules

(1) ADR Directive

(2) Guide for Regulating Dispute Resolution

(3) EU Collective Redress Policy

(4) Human Rights

(5) Administrative Justice

(E) Conclusion

The Need for Synergies In Judicial Cooperation and Dispute Resolution: Changes in the European Small Claims Procedure

(A) Introduction

(B) The Limited Success of the European Small Claims Procedure And The Reasons Behind Its Limited Use

(C) A Critical Analysis of the Recent Amendments of the ESCP Regulation

(1) Increasing the Economic Ceiling for Small Claims and Requiring Proportionate Fees

(2) Greater Use of Electronic Communications

(3) Extension of the Information Obligations

(4) The Enforcement Stage

(D) Obstacles in the Enforcement Process

(E) A Model of Cooperation Between the ESCP and Online Dispute Resolution

(1) The Need for Greater Synergy

(2) Pre-Action ODR

(3) Court-Annexed ADR Processes

(4) The EU ODR Platform

(F) Conclusions

Transplanting Best Practices from ADR Mechanisms to Court Proceedings in Cross-border Litigation?

(A) ADR Mechanisms and Court Proceedings: sometimes troublesome Synergies or Cross-fertilization?

(1) Synergies between ADR and Court Proceedings

(2) Transplants or Cross-fertilization between ADR and Court Proceedings to Overcome the Obstacles of Cross-border Litigation

(B) Best Practices in Business-to-Business Cross-border ADR Mechanisms: Lessons Learned from International Commercial Arbitration

(1) The Adjudicator Issue

(2) The Place for the Development of Proceedings

(3) The Issue of Language

(4) Case Management

(5) Costs

(C) Best Practices in C2B Cross-border ADR: Lessons Learned from Consumer Dispute Resolution Mechanisms

(1) Finding the Appropriate Body to Resolve a C2B Dispute

(2) Costs

(3) Duration

(4) Language

(5) The Issue of Enforcement

(D) Final Remarks

How can alternative mechanisms for dispute resolution contribute to judicial cooperation and what is needed to ensure effective enforcement in cross-border cases?

(A) The European Consumer Centres Network (ECC-Net)

(B) Judicial co-operation

(C) ADR entities and ODR-platform

(D) Enforcement and Consumer Protection Cooperation network

The Promotion of Best Practices in European Civil Procedure: Some Introductory Remarks

(A) Scope

(B) Legitimacy

(1) The Field is Occupied by European Legislation

(2) The Field is Occupied by National Legislation

(C) Mutual Trust

(1) When is there a need to further Mutual Trust?

(2) The Example of Judicial Expertise

(D) Identifying Best Practices

(E) Promoting Best Practices

European Order For Payment Procedure From the Businesses Perspective and Practice

(A) Context

(B) European Order for Payment Procedure: Practical Feedback from the Companies

(C) Best Practices in Companies Support

How can the best practices of legal professionals with judicial cooperation be operationalised to improve mutual trust?

Incorporating European Uniform Procedures into National Procedural Systems and Practice: Best Practices a Solution for Harmonious Application

(A) Introduction

(B) Methodology

(C) European Uniform Procedures

(D) Implementation Within National System and Practice

(E) Use of the European Uniform Procedures

(F) Best Practices: a Way to Address National Differences

(G) Final Remarks

Approximation of Procedural Law in Europe

(A) Lecture in Milano

(B) The third World Congress of the IAPL

Index