X hits on this document





12 / 82

c may be relevant in this context, which allows measures eliminating obstacles to the good functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States).

An important question is how procedural harmonisation can be achieved (Kerameus 1990; Stürner, 1992). One of approach is the drafting of a model code. An example is the Codigo Procesal Civil Modelo para Iberoamerica (1988). Although this code has no binding force, it is a model for reforms in procedural law in Latin America. An early example of its influence is the 1989 Codigo General del Proceso in Uruguay (Storme, 1994, 42).

A project aiming at partial harmonisation is that of a working group chaired by Professor Marcel Storme from Ghent. In their report, published in 1994, the working group presented a series of Articles with explanations aiming at the harmonisation of civil procedural law in the European Union (Storme, 1994). The topics that were addressed are: Conciliation, The Commencement of the Proceedings, Subject Matter of Litigation, Discovery, Evidence, Technology and Proof, Discontinuance, Default, Costs, Provisional Remedies, Order for Payment, Enforcement of Judgements or Order for the Payment of Money, Astreinte, Computation of Time, Nullities, and Rules relating to Judges and Judgements. The proposal is aimed at a European directive (see also Schwartze, 2000, 143).

An earlier attempt by the Council of Europe (Principes de procédure civile propres à améliorer le fonctionnement de la justice) was more restriced. The Council’s recommendation of 1984 addressed the formal course of proceedings (Council of Europe, R (84) 5, 28.02.1984). Part of its aims was to speed up the litigation process (Schwartze, 2000, 143).

The Storme Report has triggered some discussion. It was criticised by P.H. Lindblom (Lindblom, 1997). The main thrust of his criticism was that partial harmonisation will lead to great complexity because of the need to deal with the interaction between harmonised and non- harmonised rules. The author states that an analysis of the Storme Commission proposal demonstrates that they leave considerable uncertainty as to the remaining role of national laws, and that they would not gain universal acceptance because they would conflict with the approach adopted in some jurisdictions.

The Storme Report was followed by another project in the field of the harmonisation of civil procedural law: The Principles and Rules of Transnational Civil Procedure, drafted within the framework of the American Law Institute and UNIDROIT (Hazard, Taruffo, Stürner & Gidi, 2001; UNIDROIT 2004, Study LXXVI-Doc. 11; American Law Institute & UNIDROIT, 2006). These Principles and Rules aim at providing a framework that a country might adopt for the adjudication of disputes arising from international transactions that find their way into the ordinary courts of justice. The project is inspired in part by the model of the Federal Rules of Civil Procedure in the United States. The Transnational Civil Procedure Project conjectures that a procedure for litigation in transactions across national boundaries is also worth the attempt.

Apart from the above projects, it seems that systems of civil procedure have a tendency to converge ‘naturally’ due to the increasing contacts between the systems. There is, for example, reason to believe that the divide between Common Law and Civil Law countries is narrowing (Van Rhee, 2003). The forms of action, that set civil procedure in civil and Common Law countries apart, have been abandoned in most, if not all, Common Law jurisdictions during the nineteenth and twentieth centuries (Van Rhee, 2003). Apart from the United States of America, the Anglo-American civil jury has nearly disappeared from the legal landscape. Written elements


Document info
Document views160
Page views167
Page last viewedMon Oct 24 18:58:49 UTC 2016