EUROPEAN CIVIL PROCEDURE SUMMARY, Schemi e mappe concettuali di Diritto Processuale Comunitario

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SUMMARY EUROPEAN CIVIL PROCEDURE LESS 1 CROSS-BORDER DISPUTE → dispute regarding different countries Methods of Dispute resolution of International Commercial Disputes: • Cross-border litigation • International commercial arbitration • Alternative Dispute Resolution: negotiation, mediation LITIGATION ARBITRATION NEGOTIATION MEDIATION PRO • Parties are compelled to comply with judgment • Right to appeal • Precedent setting • Discovery of info (other party) • Potential for predictable outcome PRO • Private • Faster • Parties can design the process • May be less expensive • Confidential process • More formal than mediation • Parties can choose substantive expert(s) to serve as arbitrator(s) PRO • Inexpensive • Faster • More private • Flexible • Risk-free • Potential for continued working relationship PRO • Confidential • Generally less expensive • Faster • Choice of mediator with substantive knowledge on dispute • 3rd party neutral help overcome impasses CONS • Longer time frame • Judgement subject to appeal • Costly • Damaging relationship • Public forum CONS • Outcome may be dependent on quality of mediator • Unsatisfactory outcomes may not be addressed by a judge • Lack of cooperation by a party may extend time and expense • Rising costs • Lack of transparency CONS • Can be a stalling tactic • No guarantee of resolution • Power imbalances may go unchecked • No guarantee of good faith • Lack of neutral 3rd party CONS • If claim could be settled in small claims court, mediation may be prohibitively expensive • Incompetent mediators risk • Parties’ rights may not be adequately protected • Legal precedents not created Who pays for litigation? The claimant must pay to have access to court system Legal aid for indigent people in many countries → essential for equality LESS 2 Third-party funding (litigation and arbitration) → arrangement where parties involved in a dispute look seeks funding from a third-party entity for its legal representation The third-party finances to make a profit on the resolution of the dispute (hedge funds, banks, …) IMPORTANT → if plaintiff asks for financial assistance: in case of win, pay percentage of the winning to the third-party, in case of loss DOESN’T have to pay the money back PROS: 1. Funders help individuals bring claims 2. Small companies seek funding to bring claims they could not afford otherwise 3. Large companies, often sued, seek funding to even the litigation line item on the balance sheet CONS: 1. T-P investments can increase abusive litigation 2. Can undercut parties’ and lawyers’ control over litigation 3. Can prolong litigation → settlement offers less attractive (share of proceeds) 4. T-P investments can ruin attorney-client relationship MAINTENANCE → (third-party) giving of assistance to a party in a litigation CHAMPERTY → is where third-party who’s giving assistance will receive a share of the litigation succeeds Statutory restrictions on T-PF → common law fears that T-P might be tempted to inflame damages, suppress evidence, etc LESS 3 1968 → brussels convention on jurisdiction 2012 → brussels I recast regulation → re-enactment with few changes of 1968 brussels convention Brussels I recast regulation: • RATIONE PERSONARUM legal proceedings where defendant domiciled in MS • RATIONE MATERIAE legal proceedings concerning civil and commercial matters PREDICTABILITY (Art. 4) • Persons domiciled in MS (regardless of nationality) shall be sued in that MS • Persons not nationals of MS (domiciled) shall be governed by the rules of jurisdiction applicable to nationals of that MS Art. 4 cannot be derogated by national law → only derogated by rules of brussels I recast regulation Art. 6 → If defendant not domiciled in MS jurisdiction is regulated by national law Art. 7.1 → (contractual claim) defendant not domiciled in MS can be sued in another MS that is the place of performance of the obligation Art. 33 → deals with proceedings involving same disputes parallel pending in a court of a Member State and in a court of a Third State Art. 34 → deals with proceedings involving related disputes parallel pending in a court of a Member State and in a court of a Third State Two problems: meaning of “same cause of action” and “between same parties” Third issue: meaning of “same subject-matter” (Art. 21) Same cause of action → CJEU, if the orders sought in the two sets of proceedings could contradict one another, the cause of action will be regarded as the same Same parties → where some but not all of the parties to the second action are the same as the parties to the first action, the lis pendens rule applies to the extent to which the parties are the same Same subject-matter → the same rights and legal arguments must be relied upon in the parallel proceedings Scope of EU legislation on lis pendens: • facilitate and promote EU internal market • favour free circulation of decisions • prevent contrasting, irreconcilable and inconsistent judgments • favour free circulation of decisions in MSs CONS of lis pendens rule: • forum shopping → o ITALIAN-TORPEDO PHONOMENON • forum running → ITALIAN TORPEDO PHENOMENON → filing for a declaratory judgment action or a nullity action in a MS where the judicial proceedings are slow as a simple means to delay a forthcoming positive claim Recital n. 22 brussels I recast regulation → to avoid abusive litigation tactics, lis pendens rule is not considered in cases regarding parties that made a court-choice agreement → designated court prevails even if it is seised subsequent to another court LIS ALIBI PENDENS → Art. 33 → gives MSs courts discretionary power in continuing or staying/dismissing their proceedings when the same ones are started in a Third State court COMMON LAW, theory of forum non conveniens → attempts to determine which court is more appropriate to hear the case, with little importance on which was seised first PRO: tries and find a rational solution CON: large measure of subjectivity involved, two courts may reach different conclusions Not necessary for a case to be pending, this theory applies also in situations where the case could have been brought before a court of another country LESS 9 RECOGNITION within EU → res judicata effect of a declaratory judgement rendered in one MS shall be automatically recognized in another MS (brussels I recast regulation) RES JUDICATA → principle that a cause of action may not be relitigated once it has been judged on the merits → finality ENFORCEMENT within EU → a condemnatory judgement rendered in one MS shall be automatically enforced in another MS (brussels I recast regulation) Effects judgements have under the laws of the issuing MS are automatically extended within the EU Some conditions for refusal of recognition and enforcement but burden of proof on the claimant of the refusal RECOGNITION/ENFORCEMENT us-eu → Hague convention not yet entered into force → no bilateral/multilateral convention/treaty → MS should apply its international law to recognize/enforce US judgement → time consuming IMPORTANT CONVENTIONS/TREATIES/REGULATIONS • Brussels Convention on Jurisdiction and the Enforcement of Judgments 1968 • Brussels I Recast Regulation 2012 • Regulation No. 1215/2012 • Hague Convention on Choice of Court Agreements 2005 • Hague Convention on Recognition and Enforcement of Foreign Judgements 2019