Harmonization of Procedural Law

by Verena Brandt

1. Terminology

In the following article the term ‘harmonization of procedural law’ will be used in the broad sense as a generic term comprising projects which differ in regard to both the degree of harmonization they aim for as well as the matter they govern and their respective scope of application. It describes the entirety of all efforts taken at coordinating, assimilating and consolidating the law of civil procedure on national, European and other regional levels as well as those projects assuming a broader international scope.

On the one hand, there are tendencies for harmonizing cross-border cases, consequently concerning questions of private international law (PIL), in the form of international civil procedural law, such as questions on international jurisdiction, the service of documents, the cross-border taking of evidence or the recognition and enforcement of foreign judgments. On the other hand, there are attempts to coordinate, assimilate or even consolidate the procedural laws of different states.

2. The need for harmonization

Whether there is a need for harmonization at all is not without controversy. Except for the discussion on international civil procedural law, the need for harmonization has, with regard to the remaining procedural matters, long been denied. However, recently the need for procedural harmonization has become increasingly acknowledged, namely in order to be in line with harmonized substantive law. At the European level, the internal market (European internal market) operates as a strong influence towards harmonization, based on the consideration that the core of an efficient internal market is access to justice unhindered by differing procedural rules in the Member States. In addition, at the international level, a need for harmonization has been suggested given the increase in international trade relations. As a consequence of the latter, more and more foreign parties are involved in domestic proceedings. These parties, however, often find themselves at a disadvantage, due to being less familiar with the applicable procedural law than their domestic opponents (justice deficits). Also, legal internationalization and the resulting justice deficits may simultaneously lead to an increase in transaction costs (efficiency deficits).

3. Relation to the harmonization of substantive law

While it is currently widely agreed that without the harmonization of procedural law the application of harmonized substantive law is distorted, the sequence in which procedural and substantive harmonization are to be realized is again not free from dispute.

Procedural law, which is on the whole linked to a considerably lesser degree to historical, cultural and public policy factors than substantive law, offers a much easier field for harmonization. This is one reason why procedural unification was the forerunner in the German Reich with the procedural code from 1876/77 occurring more than 20 years before the codification of civil law came into effect. Similarly, before the US federal courts, a unified procedural law (FRCP) is applied whereas, according to the ‘Erie doctrine’, no unified substantive law even exists.

However, procedural assimilation should, as a rule, not predetermine the assimilation of the substantive law with its underlying policy and value considerations. Therefore, a minimum of substantive law harmonization is also required.

Examples of European harmonization efforts, which possess a close connection between the relevant issues of substantive law and procedural law are, inter alia, Dir 48/2004 of 29 April 2004 on the enforcement of intellectual property rights and the European Commission White Paper of 2 April 2008 regarding private antitrust enforcement (COM (2008) 165 final). This kind of harmonization of procedural law, however, carries the risk of creating a special procedural law, reserved only for certain areas of substantive law.

4. Limits of the harmonization of procedural law

The process of harmonizing procedural law easily finds its limits in those areas of the law that are, historically, politically and constitutionally, more strongly influenced by public policy considerations. With regard to the relation between the United States and continental Europe, the notion of transatlantic judicial conflict has become notorious. In particular, the rules on evidence make the clash of cultures obvious and are described as a ‘breaking point’ for any attempt of harmonization.

Doubts about the compatibility of the common law and the civil law in this respect are primarily based on the very different structure of the prevailing jury trial in American civil procedure. In this sense it has been argued, for instance, that there is no need for an instrument of fact-finding modelled on the American notion of discovery in a non-common law state. The jury trial is said to be the crucial factor for most of the characteristics of the Anglo-American procedural provisions, eg the characteristic that the case is decided on the basis of a single, continuous and oral hearing, which has in particular the consequence that each party must, even before the trial begins, be given the right to request that their opponents disclose information and documents which could be of any importance for the upcoming proceeding. Much of this assertion is true; the participation of the jury and the fact that there is a single trial indeed create many differences compared to the continental European proceeding. However, this aspect should not be overstated. In particular, the link between jury and discovery is, if generalized, incorrect since the provisions on discovery did not historically emanate from the common law tradition but rather from the courts of equity, where these provisions had been practised and advanced for some 600 years before they eventually made their way into the common law courts in the mid-19th century.

Moreover, there are several commentators who believe that, taking into consideration the Woolf reforms that came into force in 1999 and thoroughly revised the English civil procedural law, at the very least, the English procedural law has steadily been assimilating to the continental European system. With the prospect of a future complete consolidation of the systematic differences between civil law and common law, some commentators are even of the opinion that the English procedural law—already—holds a peculiar position in between civil law and common law (see, in particular: Neil Andrews, Peter Murray and Rolf Stürner). Another example that calls into question the traditional dualism of common law and civil law with regard to comparative procedural law is Japan, with its so-called ‘hybrid’ legal system in light of procedural provisions which are modelled largely after the German Code of Civil Procedure but are also partly diluted by provisions adopted from American law.

5. Instruments for the harmonization of procedural law

Instruments harmonizing procedural law include treaties, national legislation, so-called model laws (soft law) and at the European level: regulations and directives. The traditional instrument for harmonization had long been the treaty. However, due to the fact that parliamentary approval is now necessary in many states, the treaty has increasingly been considered to be a less efficient tool. Recently, ‘soft law’ has been increasingly used. It can be drafted without the involvement of the national legislature, but consequently lacks any (formal) legally binding effect.

In the area of international procedural law, harmonization efforts have mostly taken place at the intergovernmental level in the form of treaties. An early product of such an international convention is the Hague Convention of 17 July 1905 on Mutual Assistance in Civil Procedure. It governs issues of mutual legal assistance concerning the service of documents. A more recent example is the Hague Evidence Convention of 1970. The New York Convention on the Recognition and Enforcement of Arbitral Awards of 10 June 1958, as well as the European Brussels I Regulation (Reg 44/2001) should also be mentioned in this context.

With regard to the assimilation and consolidation of the national procedural laws, direct codifications are rare. Instead, soft law is predominant. Examples of the latter are the draft of the Storme Commission and the Código Procesal Civil modelo para Iberoamérica (Ibero-American Model Code for Civil Procedure), as well as the ALI/UNIDROIT project (UNIDROIT) at the international level, see 6. d) below).

But even at the national level, assimilations are likely to happen if a state is inspired by a certain mechanism of a neighbouring legal system and transplants it into its own legal system or at least develops something similar. This can be seen by the recent reforms in England and Germany, whereby both countries strongly assimilated their respective laws on civil procedure: in England by strengthening the role of the judge and his managing competencies (court management) and cutting short the extent of the discovery process; in Germany by widening the rights of the parties to access information (§ 142 ZPO).

6. Status quo of the harmonization of procedural law

a) European regulations and conventions

Key projects at the European level are the Brussels I and Brussels IIbis Regulations. The Brussels I Regulation that entered into force on 1 March 2002 is the successor of the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 27 September 1968 (Brussels Convention) (European civil procedure), which itself has been revised with regard to the European Court of Justice (ECJ) jurisprudence and also for the purpose of alleviating application problems. On interpreting the Brussels Convention and later the Brussels I Regulation, the ECJ has shaped the much more general notions of claim, of lis pendens and of the object of the case, thereby exceeding the actual fields of jurisdiction and enforcement and making it a ‘treasure trove for a general consolidation of civil procedure law’. The corresponding regulation for divorce is the Brussels IIbis Regulation which took the place of the Brussels II Regulation (family law (international); European family law (PIL); child law (international); on the European Evidence Regulation of 28 May 2001 (Reg 1206/ 2001): evidence (international)).

b) The Hague Conventions

A related project at the international level, although so far less successful, is the Hague Convention on Choice of Court Agreements (Hague Judgments Convention). At the instigation of the United States this project was initiated in 1992 by the Hague Conference on Private International Law with the aim of creating a global convention on jurisdiction and enforcement of judgments in civil and commercial matters. Points of contention were the sometimes very far-reaching American rules on jurisdiction such as the general ‘doing business’ jurisdiction as well as the ‘tag’ jurisdiction providing, respectively, that a mere commercial activity of the defendant in the forum state may give grounds for jurisdiction, even if it is not affiliated with the case, and that the mere notification of the defendant in the forum state is sufficient, regardless of the reason for the defendant’s presence in that state. The draft report, submitted in 1999 was to a large degree coherent with the Brussels Convention. This draft had three categories of jurisdiction: those existing in all states (white list), those that were banned (black list) and all those remaining (grey area). The United States, however, refused to give their consent to this draft; firstly, because they were unwilling to abandon their, as described above, rather extensive notions of jurisdiction; secondly because the jurisdiction of the plaintiff’s place of residence was irreconcilable with the US Constitution requiring a minimum of contact of the defendant with the forum state (due process). In order to prevent a total failure of the Convention, the lowest common denominator as to rules on recognition and enforcement of judgments was unanimously agreed upon on 30 June 2005. The Hague Judgments Convention was signed by the United States and the EU on 19 January 2009 and 1 April 2009, respectively (HCCH, Recueil des conventions (1951-2009), 476).

Of further importance is the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters of 15 November 1965 (HCCH, Recueil des conventions (1951-2009), 80), which governs the service of judicial and extrajudicial documents in civil and commercial matters abroad. It was based on the questionable concept that the contracting states are, due to their sovereignty, free to decide to not tolerate a judicial service instigated by foreign authorities within their own territory. Among the EU Member States (with the exception of Denmark) the Convention was replaced by the Service Regulation (Art 1 Reg 1393/2007 of 13 November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters). Service in accordance with the Hague Convention takes place via a central authority in the service state in one of the forms laid down by the law of the state or by special service in the form desired by the requesting authority, if this is permissible under the law of the requested state (Arts 2, 5 Hague Convention). A service request may, by way of exception, be refused if the requested state considers the service likely to endanger its national security (Art 13 Hague Convention). This is to be determined with regard to public policy considerations of the law of the requested state, especially with regard to its constitutional law which, in the case of Germany, would concern in particular, its fundamental rights. However, according to the Federal Constitutional Court of Germany (Bundesverfassungsgericht), the service of any action invoking a claim for punitive damages under US law generally fails to constitute a violation of the general freedom of action in connection with the rule of law (BVerfGE 91, 335). The service of a pre-trial discovery action also fails to constitute an evident violation (on the Evidence Convention of 18 March 1970: see evidence (international)).

c) Storme draft

An important project in the area of soft law at the European level is the Storme draft from 1999, undertaken initially at the request of the European Commission and to be designed as a European model civil code along the lines of the successful Ibero-American Model Code. Due to a lack of agreement in some key areas such as judicial organization, jurisdiction, arbitration and family litigation, the Storme draft was ultimately published as a mere collection of partial drafts whose 127 articles aim to be implemented by directives. The fundamental differences between continental European and Anglo-Saxon traditions are considered a major reason for the merely fragmentary character of the final draft. The group consisted of one representative for each of the then 12 European Member States, coming both from academia as well as from a more practical background.

d) Principles of transnational civil procedure

A major project on an international level defining the basic requirements for court proceedings are the Principles of Transnational Civil Procedure which were adopted in 2004 by ALI and UNIDROIT. The starting point of the principles are commercial matters, an aspect of particular practical importance since commercial litigation is generally outside the scope of the US jury system and one of the most intractable cultural problems in procedural matters. Furthermore, considerable preparatory work has already been done in this area by various international arbitration projects.

Beyond their scope of international commercial matters, the principles may provide assistance as a general basis for future reforms of civil proceedings since they have worldwide acceptance and formulate generally acceptable standards.

The principles are divided into 30 sections, formulating general requirements with regard to international jurisdiction, the role of the parties and the court, discovery, the taking of evidence and refusal rights, matters in dispute and costs. Additionally, so-called rules have been attached to the principles in the form of a Reporter’s Study. These rules contain examples for implementation of the more generally formulated principles. The aim of the project intended by Geoffrey Hazard and Michele Taruffo had indeed been the drafting of a procedural code for transnational civil proceedings with detailed provisions. The original rules which were developed for transnational civil procedure were supposed to be a compromise between the civil procedural law of continental character and US procedural law but were, in fact, more strongly modelled after the latter. When UNIDROIT joined the project, this was done under the condition that instead of rules there would be principles: first, because the gap between the cultures was considered far too deep to make it possible to develop a specific procedural code and, secondly, because the single states should be given the opportunity to implement the principles according to their respective national needs. Nevertheless, the rules were included as an appendix, presenting one possible way for implementation (among other possibilities) that might constitute a viable compromise for bridging the gap between the cultures.

e) International arbitration law

In international arbitration law there has been an intense discussion between the civil law and the common law traditions. The Rules on the Taking of Evidence in International Arbitration submitted by the International Bar Association (IBA) in 1999 constitute a promising attempt to bridge the gap between the two traditions with regard to access to information and the taking of evidence (arbitration (international)).

Literature

Mirjan R Damaska, The faces of Justice and State Authority: A Comparative Approach to the Legal Process (1986); Mauro Cappelletti (ed), Civil Procedure, IECL XVI (1987); Rolf Stürner, ‘Das europäische Zivilprozeßrecht, Einheit oder Vielfalt’ in Tübinger Symposium zum 80. Geburtstag von Fritz Baur (1992) 1; Marcel Storme (ed), Rapprochement du Droit Judiciaire de l’Union européenne (1994); Adrian A Zuckerman (ed), Civil Justice in Crisis—Comparative Perspectives of Civil Procedure (1999); John A Jolowicz, ‘On the comparison of procedures’ in Law and Justice in a Multistate World. Essays in Honor of Arthur T von Mehren (2002), 721; Konstantinos K Kerameus, ‘Angleichung des Zivilprozeßrechts in Europa’ (2002) 66 RabelsZ 1; Marcel Storme (ed), Procedural Laws in Europe (2003); Rolf Stürner, ‘The Principles of Transnational Civil Procedure’ (2005) 69 RabelsZ 201; Joachim Zekoll, ‘Comparative Civil Procedure’ in The Oxford Handbook of Comparative Law (2006) 1327; Stefan Huber, Entwicklung transnationaler Modellregeln für Zivilverfahren (2008).