X hits on this document





10 / 82

adversarial culture as one of the main reasons why English procedure before the reforms was slow and expensive.

In the United States, case management has also been on the agenda since experiments in this field were started in the pre-trial stage at the Circuit Court of Wayne County, Michigan, sitting in Detroit in the 1920s (Epp, 1991, 715-717). However, during trial the adversarial model is largely left untouched and hence the procedural system of the USA is very different from European procedural models. The role of the American judge in civil proceedings has been the subject of discussion during the last few decades. This discussion was started by a celebrated article of J.H. Langbein, entitled ‘The German Advantage in Civil Procedure’ (Langbein, 1985). In complex litigation in the United States Langbein saw ‘growing manifestations of judicial control of fact- gathering’. He stated: ‘Having now made the great leap from adversary control to judicial control of fact-gathering, we would need to take one further step to achieve real convergence with the German tradition: from judicial control to judicial conduct of the fact-gathering process. In the success of managerial judging, I see telling evidence [….] that judicial fact-gathering could work well in a system that preserved much of the rest of what we now have in civil procedure’. Langbein has triggered a discussion that continues until this very day (Allen, Köck, Riecherberg & Rosen, 1988; Bryan, 2004).

Apart from giving the judge a more active role, another strategy to decrease costs and undue delay is tailoring the procedure to the complexity of the case. This has resulted in the introduction of summary procedures for small claims litigation in many countries. In Austria, for example, summary proceedings for debt collection (Mahnverfahren) are obligatory for money claims not exceeding 30.000 Euro. In Poland there is a simplified fast-track procedure for small claims since the Reform of Civil Procedure in 2000. In England a small claims procedure was introduced in 1974, at first limited to claims under £100. Later this was changed to £1000. With the introduction of the 1998 Civil Procedural Rules the amount was raised further to £5000 for the majority of cases (Andrews, 2003, No. 22.01). Also as regards more complicated cases there is differentiation in England; the two other procedural tracks that are available are the fast-track and the multi-track.

At the European level a Green Paper on a European order for payment procedure and on measures to simplify and speed up small claims litigation has been issued in 2002 (COM (2002) 746 final, 20.12.2002). In this respect, one may also refer to the European Directive combating late payment in commercial transactions (2000/35/EC, 29.06.2000, Official Journal 2000 L200, 35-38).

A third way to reduce litigation costs and undue delay is avoiding litigation altogether or to stop it at an early stage. There is an increasing interest in Alternative Dispute Resolution (ADR) such as, for example, mediation, mini-trial and arbitration. Many countries have passed legislation to encourage ADR. In Austria, for example, legislation on mediation (Mediationgesetz) has been accepted by the Nationalrat recently. In Belgium new legislation in this field has been adopted by Parliament (new Sections 1724-1737 of the Belgian Judicial Code). Also on the supra-national level an interest has been shown in ADR. Within the framework of the Council of Europe, the Committee of Experts on the Efficiency of Justice (CJ-EJ) examines questions connected with mediation as an alternative to court proceedings in civil cases. The European Union has published a Green Paper on the issue of ADR, regarding alternative methods as an important means to enhance access to justice (COM (2002) 196 final, 19.04.2002). In addition the European Commission issued a preliminary draft proposal for a directive on certain aspects of mediation in civil and commercial matters in 2004 (COD/2004/0251).


Document info
Document views190
Page views197
Page last viewedThu Oct 27 22:46:18 UTC 2016