A Comparative Review of Offers to Settle - Would an Emerging Settlement Culture Pave the Way for Their Adoption in Continental Europe?

Abstract

The imposition of legal costs on litigants who have refused a reasonable offer (i.e. one that has not been improved by a final judgment) is increasingly used as a successful leverage to contain costs and expedite the resolution of civil disputes. This is perceived to be an effective technique, which is particular to common law jurisdictions, for encouraging settlements between two litigants. This article compares the English Pt 36 of the Civil Procedure Rules (CPR) on offers to settle with the equivalent rules employed in Ireland and United States, and it poses the question of why such rules are absent from the civil procedures in continental Europe. Accordingly, it examines how these procedures can operate, if at all, in arbitration and in civil law jurisdictions; this analysis is primarily undertaken with reference to the Spanish civil procedure. It is the contention of the article that while higher costs in litigation and a culture of court settlements have only triggered their adoption in common law jurisdictions, the emerging practice of Alternative Dispute Resolution (ADR) techniques may pave the way for embracing cost sanctions in continental Europe.

Keywords: negotiation, civil procedure, offers to settle