The Structure of Civil Proceedings and Why It Matters: Exploratory Observations on Future ELI-UNIDROIT European Rules of Civil Procedure

Unif. Law Rev. (2014) 19 (2), pp. 218-238

16 Pages Posted: 15 Aug 2014  

Xandra E. Kramer

Erasmus University Rotterdam (EUR), Erasmus School of Law; Utrecht University School of Law

Date Written: April 1, 2014

Abstract

This paper addresses the structure of proceedings as one of the topics that should be considered for the purpose of adapting the ALI/UNIDROIT PTCP to the EU context. The topic has received little attention in academic literature. This paper aims to explain the importance and essence of the structure of proceedings in general, as well as for the development of European civil procedure rules in particular. Furthermore, this paper will evaluate Principle 9 and related provisions of the PTCP, and contrast these with European developments and the existing legislative framework. The paper presents a view on the envisaged European Rules of Civil Procedure, and in particular on a possible rule on the structure of proceedings.

It is submitted that a full harmonisation of the structure of the proceedings will probably be hard to achieve within the near future. First, the structure of the proceedings is deeply rooted in legal traditions and interwoven with the judicial organisation. Second, the structure depends upon further goal definition, and whether that tends more towards a reactive or an activist approach, to use the Damaška model. However, civil procedure is converging in the Member States, and even beyond, as the reporters of the PTCP had already noted. The high costs of civil proceedings for individual litigants and for society as a whole, along with the need to reduce delays, have called for efficiency measures and active case management. It is concluded that the structure provided by the PTCP is a good point of departure. The human rights instruments, the rich case law of the ECtHR, and the growing body of CJEU case law provide guidelines for the foundation upon which the structure of the proceedings can be further developed. Important elements for the basic structure and further details can be found in the various instruments, including those establishing uniform European procedures. Additionally, the Agreement and (draft) Rules of Procedure for the Unified Patent Court − though these are designed for a very specific category of cases − may prove to provide a new standard of adjudication in Europe.

Keywords: civil procedure, harmonisation, ELI/UNIDROIT rules of civil procedure, structure of civil proceedings, case management, procedural efficiency

JEL Classification: K10,K20,K40,K41

Suggested Citation

Kramer, Xandra E., The Structure of Civil Proceedings and Why It Matters: Exploratory Observations on Future ELI-UNIDROIT European Rules of Civil Procedure (April 1, 2014). Unif. Law Rev. (2014) 19 (2), pp. 218-238. Available at SSRN: https://ssrn.com/abstract=2480052

Xandra E. Kramer (Contact Author)

Erasmus University Rotterdam (EUR), Erasmus School of Law ( email )

3000 DR Rotterdam
Netherlands

Utrecht University School of Law ( email )

Janskerkhof 3
Utrecht, 3512 BK
Netherlands

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