France, rules on proof can be found both in the Civil Code and in the Code of Civil Procedure. In the Netherlands, which originally knew a system that was similar to that of France, the situation has changed. In that country the rules on proof have been transferred to the Code of Civil Procedure.
On the basis of the above one may conclude that defining ‘civil procedure’ in a comparative legal context is a difficult task. If one attempts to provide for a working definition nevertheless, it seems justified to closely follow the working definition for ‘civil litigation’ supplied by J.A. Jolowicz (Jolowicz, 2000, 20-22). The learned author states: (1) Civil litigation involves proceedings before a court of law; (2) The initiation of civil proceedings is a voluntary act; (3) The plaintiff acts in his own interest; (4) Civil litigation does not occur without the will of the defendant. It is this type of litigation that is governed by ‘civil procedure’. Of course, this definition, although much more useful in comparative legal studies than the definition mentioned in the initial paragraph, is not ideal either, for parts of the law that in some countries are brought under the heading ‘civil procedure’ cannot be brought under it. Problematic areas are, for example, the rules on judicial organisation, enforcement, and the rules on cases which do not involve the adjudication of contested matter but the performance of acts of an ‘administrative’ nature by a court of law (for example, the appointment of a guardian).
Apart from problems of definition, other difficulties specific to comparative legal research in the area of civil procedure can be mentioned. In a well-known article, J.H. Langbein, for example, criticises comparative legal research in American and German civil procedure by Johnson & Drew. Johnson & Drew came to the conclusion that American courts are ‘undermanned’ when compared to the much greater number of judges per capita in Germany. Langbein, however, points out that there is a fundamental difference between American and German civil procedure which makes this conclusion doubtful. He states that many of the tasks that are performed by the court in Germany are performed by the parties and their counsel in the American adversarial system. Therefore, a smaller number of judges is required (Langbein, 1979).
In the next paragraphs we will focus on a selection of topics that are of interest from a comparative legal point of view. First, some remarks will be made on ‘families of civil procedure’. Next, fundamental and other principles of civil procedure will be discussed. Thirdly, contemporary trends and developments in civil procedure in the various national systems of civil procedure will be addressed. Finally, some remarks will be made on harmonisation of civil procedural law (on these and related topics also, for example, Kaplan, 1960; Cappelletti, 1989; Jolowicz, 1990; Markesinis, 1990; Habscheid, 1991; Grunsky, 1992; Lemmens & Taelman, 1994-…; Civil Procedure in Europe, 1997-…; Jacob, 1998; Carpi & Lupoi, 2001; Stürner, 2001; Kötz, 2003; Storme, 2003).
1. Families of civil procedure At least two large families of civil procedure may be distinguished in today’s world: those that find their origin in the Common Law and those that have developed on the basis of the Romano- canonical procedure (Van Caenegem, 1973; Van Rhee, 2000).
The Common Law family is, of course, the result of the expansion of the British Empire, which brought the English system of civil litigation to places all over the world, for example the United States of America, Canada, Australia, India and South Africa.
Originally, the distinction between Common Law and Equity, which today is mainly relevant in the area of substantive law, also played a role in the field of procedure. In England, the three