establish the ‘substantive truth’ instead of basing his judgment on the truth as fabricated by the parties (the ‘formal truth’). Klein’s 1895 Code of Civil Procedure became very influential outside Austria and paved the way to an approach of civil procedural law which at the end of the twentieth century even became popular in England with its traditionally adversarial model of civil litigation. The 1998 English Civil Procedure Rules are the result of this development. Currently, the keyword in many countries is ‘co-operation’ between the parties and between the judge and the parties (see also Stadler, 2003, 57, 69).
2. Fundamental principles and ‘other’ principles of civil procedure A distinction must be made between fundamental principles and ‘other’ principles of civil procedure. Fundamental principles of civil procedure may be seen as standards to fulfil the requirements of justice (Andrews, 2003, No. 3.02). When these principles are ignored, one cannot speak of a fair trial. Other principles of civil procedure are not fundamental, but are nevertheless observed in many jurisdictions. If they are ignored, however, the fairness of the trial is not immediately endangered.
Although the precise content of a list of fundamental principles of civil procedure is subject to debate - one may think of the right to trial by jury of the 7th Amendment to the Constitution of the United States, a right which even in England is absent in most civil cases (Andrews, 2003, ch. 34) - many fundamental principles are widely shared throughout the world. Exemplary for the codification of (fundamental) principles of civil procedure in a national code are the principes directeurs du procès of the French Code of Civil Procedure. These Guiding Procedural Principles take the form of a chapter at the start of the Code. This Chapter is divided into ten sections devoted, respectively, to the judicial proceedings (Section 1, Articles 1-3), the subject- matter of the dispute (Section 2, Articles 4-5), facts (Section 3, Articles 6-8), evidence (Section 4, Articles 10-11), law (Section 5, Articles 12-13), adversarial procedure (Section 6, Articles 14- 17), defence (Section 7, Articles 18-20), conciliation (Section 8, Article 21), oral arguments (Section 9, Articles 22-23) and the duty of restraint (Section 10, Article 24) (Cadiet, 2005).
Fundamental principles of civil procedure have shaped and continue to shape civil procedure in many countries. A good example are the principles that may be found in Article 6 of the European Convention of Human Rights (on a world wide scale, Article 14(1) of the International Convenant on Civil and Political Rights of the United Nations contains similar guarantees). Only the first paragraph of Article 6 ECHR is applicable to civil litigation. It lays down that ‘[i]n the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.’ After a somewhat dormant existence in the years following the coming into force of the European Convention on 3 September 1953, Article 6 now figures prominently in the case-law of the European Court of Human Rights. On the basis of it, the European Court has worked out a detailed scheme of fundamental principles that must be observed by the Courts of the Members States of the Council of Europe (Jacobs & White, 2002, 139-170; Andrews, 2003, ch. 7). Article 6 ECHR has had a harmonising effect on the systems of civil procedure in Europe.
Apart from fundamental principles, ‘other’ principles of civil procedure may be distinguished. A combination of fundamental and ‘other’ principles may be found in the Principles (and Rules) of Transnational Civil Procedure that are currently being prepared 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). The project was instigated by the American Law Institute and aimed originally solely at creating transnational