Prof. Dr. C.H. van Rhee, Professor of Law, Maastricht University & Mr. R. Verkerk, researcher, Maastricht University
Abstract After addressing some problems specific to comparative legal research in civil procedure, this article focuses on ‘families’ of civil procedure, fundamental and other civil procedural principles, contemporary trends and developments in civil litigation at the national and international level and harmonisation of civil procedural law.
Keywords: civil procedure, civil litigation, private law
0. Introduction When approached from a national point of view, the notion of ‘civil procedure’ does not pose major difficulties. In principle, civil procedure governs the adjudication of civil cases before a court of law. Apart from the occasional difficulty, for example the fact that in some countries such as France and the Netherlands there is limited room for deciding ‘civil’ claims for compensation in a criminal procedure, legal scholars and practitioners are perfectly able to give a definition of civil procedure in a national context. This is different in comparative legal research. Of course, also in this context one may claim that civil procedure governs the adjudication of civil cases before a court of law. However, if one observes this definition closely, one may conclude that it is problematic.
The first difficulty - and this will not come as a surprise for those who are familiar with the case- law of the European Court of Human Rights as regards the definition of ‘civil rights and obligations’ in Article 6 of the European Convention of Human Rights (Jacobs & White, 2002, 139-170) - is posed by the definition of a ‘civil case’. In England, for example, the adjective ‘civil’ is used in the dichotomy civil–criminal. In principle, cases that are not criminal in nature are classified as civil. As such they are subject to the rules of civil procedure. In other countries the definition of a civil case is different. This is due to the fact that in most Civil Law countries the main dichotomy is that between private law and public law. The rules of procedure that are applicable to cases within the ambit of public law are either criminal or administrative in nature. Administrative procedural rules are applicable as regards actions in which one of the parties is the State or another public authority. This results in a major difference as regards jurisdictions like England, where such actions are adjudicated on the basis of the ordinary civil procedure rules (Jolowicz, 2000, 11-22).
The second difficulty as regards the definition of civil procedure is related to the classification of rules as ‘procedural’ or ‘substantive’. This classification is of primary importance in an international context due to the applicability of the lex fori as regards procedural law (for examples, see Kerameus, 1997). Although a court may apply foreign substantive private law, it will under no circumstances adjudicate cases according to foreign civil procedure rules. At first sight the distinction between substantive law and procedural law seems clear. Substantive law inter alia defines, regulates and creates rights and duties, whereas procedural law regulates the legal proceedings in case of a dispute concerning these rights and duties. However, in practice the distinction is not always that clear. How should, for example, remedies in English law be classified? Do they belong to the domain of procedural or substantive law? (Andrews, 2003, No. 1.44) And to what area of the law do the rules on proof belong? In some jurisdictions, such as