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Civil Procedure and Evidence

Michael A. Livingston, Pier Giuseppe Monateri, and Francesco Parisi

Mauro Capelletti, John Henry Meryman, and Joseph M. Perillo (eds)

in The Italian Legal System: An Introduction, Second Edition

This chapter provides an overview of civil procedure, including historical background; constitutional norms; investigation and discovery; appeals and judgments; and trends in procedural scholarship. ... More

This chapter provides an overview of civil procedure, including historical background; constitutional norms; investigation and discovery; appeals and judgments; and trends in procedural scholarship. There are also briefer discussions of the laws of evidence and of criminal and administrative procedures. The differences between Italian and American procedural norms, which flow from the civil–common law distinction but are augmented by various historical differences, are a major theme of this chapter.Less

Civil Procedure

Hiroshi Oda

in Japanese Law

This chapter discusses civil procedure in Japan. Topics covered include the Code of Civil Procedure, jurisdiction; capacity to be a party, standing, and the interest to initiate an action; ... More

This chapter discusses civil procedure in Japan. Topics covered include the Code of Civil Procedure, jurisdiction; capacity to be a party, standing, and the interest to initiate an action; preliminary procedure; oral proceedings, appeals, enforcement of judgements; and small claims procedure.Less

Civil Justice in Spain: Present and Future. Access, Cost, and Duration

Ignacio Díes-Picazo Giménez

in Civil Justice in Crisis: Comparative Perspectives of Civil Procedure

This chapter begins with a description of the characteristics of Spanish civil procedure. It then discusses the Spanish hierarchy of the courts, sources of civil procedural law, the basic Spanish ... More

This chapter begins with a description of the characteristics of Spanish civil procedure. It then discusses the Spanish hierarchy of the courts, sources of civil procedural law, the basic Spanish procedure, the Spanish legal profession, appeal procedure, the nature of civil litigation in Spain, principal problems of civil justice, legal aid, and alternative modes of dispute resolution, and the Civil Procedure Bill (1997).Less

The Portuguese System of Civil Procedure

Maria Manuel Leitãao Marques, Conceição Gomes, and João Pedroso

in Civil Justice in Crisis: Comparative Perspectives of Civil Procedure

This chapter begins with a description of the Portuguese system of civil procedure. It then discusses the problems of civil justice, reforms in the civil jurisdiction, and alternative modes of ... More

This chapter begins with a description of the Portuguese system of civil procedure. It then discusses the problems of civil justice, reforms in the civil jurisdiction, and alternative modes of dispute resolution.Less

The Ethos of the Woolf Reforms in the Transformations of Post-socialist Civil Procedures: Case Study of Poland

Magdalena Tulibacka

in The Civil Procedure Rules Ten Years On

This chapter focuses on the transformations in civil procedure rules and litigation practice of post-socialist states of central and eastern Europe, observed mainly through the example of Poland. ... More

This chapter focuses on the transformations in civil procedure rules and litigation practice of post-socialist states of central and eastern Europe, observed mainly through the example of Poland. They are presented from the perspective of the ethos of the Woolf Reforms. It also demonstrates the importance of legal culture and litigation practice for the implementation of these changes. Particular emphasis is placed on the role of the judiciary in civil litigation: it has been revolutionized by the Woolf Reforms and it has undergone transition in post-socialist states.Less

Preparing Germany for the Twenty-First Century †: The Reform of the Code of Civil Procedure

Giesela Rühl

in Comparative Law as Transnational Law: A Decade of the German Law Journal

The number and diversity of the recently enacted laws have resulted in confusion about the state of German civil procedure today. This chapter gives an overview of the most important changes. It ... More

The number and diversity of the recently enacted laws have resulted in confusion about the state of German civil procedure today. This chapter gives an overview of the most important changes. It focuses on reform that has changed the system of German civil justice in a more fundamental and far-reaching way: The Law on the Reform of Civil Procedure of July 27, 2001. In doing so, it accounts for the changes that have been made to the Code of Civil Procedure more recently through the Law on the Modernization of Justice of July 1, 2004, and the Law on the Remedies for Violations of the Right to be Heard of 2004 of December 9, 2004.Less

Justice in Crisis: England and Wales

Paul Michalik

in Civil Justice in Crisis: Comparative Perspectives of Civil Procedure

This chapter describes the existing system of civil procedure in England and Wales, and identifies the changing procedural principles that have underpinned English procedure over the past century. It ... More

This chapter describes the existing system of civil procedure in England and Wales, and identifies the changing procedural principles that have underpinned English procedure over the past century. It discusses the key problems associated with cost and delay, drawing on available statistical information. Finally, it describes the proposed reforms, and considers the extent to which these reforms are likely to reduce the problems associated with cost, delay, and complexity.Less

Legal Procedure

Simon Whittaker

in Principles of French Law

This discussion of legal procedure is divided into three parts: civil procedure, administrative procedure, and criminal procedure. The first part discusses the striking features of the French system, ... More

This discussion of legal procedure is divided into three parts: civil procedure, administrative procedure, and criminal procedure. The first part discusses the striking features of the French system, the proceedings in the Tribunal de Grande Instance, means of overturning a judgment, costs and legal aid, and the enforcement of judgments. The second part examines the access to the administrative courts, forms of redress, and proceedings in an administrative court. The last part looks at crime investigation, the decision to prosecute, the trial process, and post-trial issues.Less

Civil Procedure in the European Order: An Overview of the Latest Developments

Carla Crifò

in The Civil Procedure Rules Ten Years On

In the last ten years, there have been two major developments with regards to the rules of court in civil matters. One has been the creation and consolidation of the Civil Procedure Rules (CPR) upon ... More

In the last ten years, there have been two major developments with regards to the rules of court in civil matters. One has been the creation and consolidation of the Civil Procedure Rules (CPR) upon the suggestions, reports, and reforms based on Lord Woolf's findings. The other development has been the creation of a whole new legislative power with the attendant ‘policy agenda’ for the European institutions to issue Community wide rules of civil procedure, some directly and immediately applicable in all Member States. This chapter addresses questions concerned with the relationship between these two developments: whether they apply on the same level or on entirely different levels; if on the same level, whether they are complementary or antagonistic; whether the objectives driving one are compatible with the objectives driving the other; and if so, to what extent.Less

Introduction

Déirdre Dwyer

in The Civil Procedure Rules Ten Years On

The Civil Procedure Rules (CPR), which unified the rules of civil procedure in the High Court and county courts for the first time, took effect in April 1999. Based on the findings of Lord Woolf's ... More

The Civil Procedure Rules (CPR), which unified the rules of civil procedure in the High Court and county courts for the first time, took effect in April 1999. Based on the findings of Lord Woolf's Access to Justice inquiry, the CPR represented the single greatest change to the rules of civil procedure in England and Wales since the introduction of the Rules of the Supreme Court in 1883. This chapter discusses the broader historical, procedural, and policy contexts within which we might understand the CPR as being ‘a new procedural code’. It also discusses case management, costs and funding, civil evidence, and alternative dispute resolution. It also considers both the influence of the CPR on procedural reform in Europe, and the effects of EC.Less

CIVIL PROCEDURE

Neil Andrews

in English Private Law

This chapter first discusses the Civil Procedure Rules 1998 (CPR) and the sources of English civil procedure. It then covers the stages in the course of a civil action; commencement of proceedings; ... More

This chapter first discusses the Civil Procedure Rules 1998 (CPR) and the sources of English civil procedure. It then covers the stages in the course of a civil action; commencement of proceedings; accelerated and interim relief; case management; disclosure; legal advice and litigation privileges; experts; settlement and mediation; trial, evidence, and appeal; costs; res judicata and the principle of finality; enforcement; and proceedings under the Arbitration Act 1996.Less

The Influences of the CPR on Civil Procedure and Evidence Reform in the Netherlands

Daan Asser

in The Civil Procedure Rules Ten Years On

Although the Civil Procedure Rules (CPR) have not notably influenced the development of Dutch civil procedural law during the past decade prior to this book's publication, they have played a role in ... More

Although the Civil Procedure Rules (CPR) have not notably influenced the development of Dutch civil procedural law during the past decade prior to this book's publication, they have played a role in the discussion about the fundamentals of civil procedure that has taken place in the Netherlands country since 2002, the year in which its Code of Civil Procedure underwent a substantial update. This chapter discusses the influences of CPR on civil procedure and evidence reform in the Netherlands, such as the overriding objective of procedural justice, the duty of the parties to help the court to further that objective, case management by the court to the same end, the idea of ‘cards on the table’, expediency and proportionality, the responsibility of the parties to cooperate and aim at a settlement, and alternative ways of dispute resolution.Less

Mediation in the USA: Alternative Dispute Resolution between Legalism and Self-Determination

Rainer Kulms

in Mediation: Principles and Regulation in Comparative Perspective

In the United States, federal and state laws on mediation consist of a complex body of statutes, codes of civil procedure, local rules of court and common law rules of contract. Current practice ... More

In the United States, federal and state laws on mediation consist of a complex body of statutes, codes of civil procedure, local rules of court and common law rules of contract. Current practice strikes a balance between self-determination and court-ordered dispute settlement. As legalism crept in, California, Florida, Ohio (and, to a lesser extent, Texas) took the lead in regulating the relationship between mediation and the regular trial, incentives to mediate, confidentiality, enforcement of settlements and professional standards for mediators. This study reviews the substantive laws in leading US jurisdictions (including cost issues) and addresses specific mediation proceedings for bankruptcy and foreclosure, as well as in family, labour, criminal and administrative law. After four decades of alternative dispute resolution, the climate for mediation is changing again. Dispute resolution is shifting from the authoritative trial to alternative dispute settlement. Procedural justice has to compensate for abandoning the proverbial day in court.Less

The American Illness and Comparative Civil Procedure

Daniel Jutras

in The American Illness: Essays on the Rule of Law

This chapter compares the civil procedure law in the United States with Canada, a country that closely resembles the United States. It reviews the similarities and differences between the two and ... More

This chapter compares the civil procedure law in the United States with Canada, a country that closely resembles the United States. It reviews the similarities and differences between the two and notes that some of the reforms in Canada can be possible cures for what is termed the “American Illness”.Less

Procedure

Ross Cranston

in How Law Works

This chapter describes the implications of the Lord Woolf reforms for settlements, a less adversarial culture and the cost of litigation. In ... More

This chapter describes the implications of the Lord Woolf reforms for settlements, a less adversarial culture and the cost of litigation. In particular, it draws on the social research to explore civil procedure in England and Wales, mainly the big bang brought about by the Woolf reforms. In addition to what has been described as managerial judging or court control, some other broad themes of the procedural change such as facilitating settlement are described, dealing with cases proportionately and encouraging alternative dispute resolution. It starts by outlining the procedural changes themselves. The movement for greater court control runs in parallel with that to facilitate more settlements. It is proposed that one must know more of the operation of the civil justice system in England and Wales if he/she will pursue avenues for its future operation which accord with existing principles and achieve values such as equality before the law and more effective access to justice.Less

Civil Justice: Access, Cost, and Expedition. The Netherlands

Erhard Blankenburg

in Civil Justice in Crisis: Comparative Perspectives of Civil Procedure

This chapter starts with a description of the Dutch system of civil procedure. It then discusses Dutch courts and caseload issues, specific social institutions and the related proceedings, litigation ... More

This chapter starts with a description of the Dutch system of civil procedure. It then discusses Dutch courts and caseload issues, specific social institutions and the related proceedings, litigation avoidance in Dutch society and culture, patterns of litigation in a litigation-avoiding society, procedural issues, the legal profession, and alternative modes of dispute resolution. Overall, the Netherlands experiences less litigation, and fewer problems with court congestion, than its neighbours, not because there is no demand for litigation, but because the supply side of the legal profession and social institutions have responded to the existing incentives to create alternatives to the court process that work better and faster at less cost to the litigant.Less

Civil Wrongs and Civil Procedure

Matthew A. Shapiro

in Civil Wrongs and Justice in Private Law

This chapter addresses the significance of civil procedure in private law’s treatment of civil wrongs. It begins by canvassing contemporary private law theory, focusing in particular on the civil ... More

This chapter addresses the significance of civil procedure in private law’s treatment of civil wrongs. It begins by canvassing contemporary private law theory, focusing in particular on the civil recourse theory of tort law. The chapter notes that civil recourse theory incorporates assumptions about private law’s characteristic responses to wrongs, each of which is, ultimately, an assumption about the law of civil procedure. They include assumptions that civil litigation is strongly adversarial, that it provides plaintiffs with an opportunity to confront defendants for civil wrongs, and that it culminates in an authoritative judicial declaration of where things stand between the parties as a matter of right. This chapter also points out that civil recourse theorists tend to treat these features of procedural law as fixed and essential elements of tort law. But close examination shows this to be a mistake. The rise of routinized settlement and arbitration, among other things, suggests that private law’s procedural responses to civil wrongs are varied and changing, often in ways inconsistent with interpretations given by leading theorists.Less

Civil Justice Reform: Access, Cost, and Delay. The French Perspective

Loïc Cadiet

in Civil Justice in Crisis: Comparative Perspectives of Civil Procedure

For many years, French justice, like all other systems, has faced the dramatic consequences of the exploding volume of litigation. The long delays and high costs which this explosion causes are, to a ... More

For many years, French justice, like all other systems, has faced the dramatic consequences of the exploding volume of litigation. The long delays and high costs which this explosion causes are, to a certain extent, the counterpart of democratized access to law and justice. Although several reforms have been initiated, one should not forget that the current difficulties originate largely from the fact that the resources of the justice system have not risen proportionately to the sharp increase in the volume of litigation with which courts have been faced. The solution to the crisis is essentially financial. This chapter begins with a description of the French system of civil procedure. It then presents an outline for procedure. This is followed by discussions of the main problems encountered in the administration of civil justice, historical perspective of reform, alternative modes of dispute resolution, and the present state of affairs.Less