Litigation Costs and Procedural Cultures – New Avenues for Research in Procedural Law
in: X. E. Kramer, B. Hess (eds.), From Common Rules to Best Practices in European Civil Procedure, Nomos/Ashgate, Forthcoming
36 Pages Posted: 13 Feb 2017
Date Written: September 1, 2016
The European Union’s Area of Freedom, Security and Justice has been created to ensure the free movement of persons and to offer a high level of protection to citizens. Within this framework, the Commission has undertaken a broad range of actions regarding cross-border disputes, which range from the service of documents to the collection of evidence, as well as from a unified set of conflict of law rules to legal aid guidelines and promotion of ADR schemes. Next to hard law instruments (Regulations and Directives) additional operational measures have been adopted to support the cooperation between judicial authorities through new technologies, e-justice, judicial networks, benchmarking and monitoring of national judicial systems. The ultimate purpose of all of these efforts is the elimination of barriers in cross-border litigation.
However, given the limited competence of the Commission, sovereign-sensitive questions on litigation costs have been addressed at the European level only indirectly and through sectorial solutions, such as mutual recognition of judgements with minimum standards and limited grounds for rejection, standardised forms and pre-defined deadlines, as well as through the recently-designed simplified European procedures, which however have a narrow scope. Despite these EU interventions, Member Stares retain the monopoly of the regulation of the market of judicial and legal services in accordance with their own policies and objectives. As a result, litigation costs are not harmonised at the European level.
The purpose of this paper is to assess how this lack of harmonisation of litigation costs represents a real obstacle for citizens that are involved in cross-border disputes. The paper is divided into two parts. In the first part, we provide, through a stock-taking of the existent literature, the theoretical background of our research, and we analyse the different models for regulating litigation costs at the national level. Our comparison reveals that not only does pluralism exist, but the diversities across jurisdictions reflect conscious governmental choices in policy making that are deeply ingrained in the social, political and economic context of a State. The second part of the paper focuses on a more practical analysis at a European level. Following the development of a cross border dispute we track down in chronological order the most typical expenditures generated in cross border litigation and we examine how the regulatory issues affecting those costs have been tackled by the European legislator.
The variety of costs in a cross border context together with the diversities of their regulation at the national level shows that the EU action in this area is at present insufficient to guarantee a homogenous legal environment for litigants. At the same time, the complexity of these issues raises some questions on the most appropriate policies in this field regarding costs and their allocation.
Keywords: Civil Litigation, Costs, Access to Justice, Cross-border Disputes, Fees, Experts, Allocation of Costs, Application and Ascertainment of Foreign Law
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