Why is Harmonization of Common Law and Civil Law Procedures Possible in Arbitration but Not Litigation?
University of Missouri School of Law
May 17, 2013
Book Chapter in Cultura y Proceso (Mónica María Bustamante Rúa ed., 2013, Forthcoming)
University of Missouri School of Law Legal Studies Research Paper No. 2013-12
La versión española de este artículo se puede encontrar en: http://ssrn.com/abstract=2302829.
International commercial arbitration is often praised for its high degree of procedural autonomy, which allows parties to tailor the procedures to suit the dispute at hand. Although parties have long appreciated arbitration's ability to harmonize common law and civil law procedures, some end-users have recently criticized arbitration for being too expensive and legalistic. As a result, the international legal community is beginning to seek less-expensive options to arbitration. One potentially useful alternative would be to allow parties to customize the procedures used in litigation through the use of procedural contracts, thereby mirroring international commercial arbitration in several important ways.
Although some people may view the concept of procedural contracts as highly controversial, this kind of "privatized" litigation may be a useful means of minimizing the cost of international dispute resolution while also sidestepping some of the roadblocks that have occurred with respect to international treaties on matters of procedure. A number of courts and commentators have begun to consider issues relating to individualized procedures, and although much of the current discussion is taking place in the context of U.S. law, the concept of procedural autonomy is relevant to parties in a variety of jurisdictions. This essay therefore considers the proper boundaries of procedural autonomy in litigation, using the recent decision in Delaware Coalition for Open Government v. Strine as a jumping-off point for further discussion and analysis.
Number of Pages in PDF File: 29
Keywords: civil procedure, international commercial arbitration, common law, civil law, discovery, transnational litigation, procedural contracts, harmonization, ALI/UNIDROIT Principles of Transnational Civil Procedure, international treaty
Date posted: May 19, 2013