Vorlesung / Course Einführung in die Rechtsvergleichung Introduction to Comparative Law

Size: px

Start display at page:

Download "Vorlesung / Course Einführung in die Rechtsvergleichung Introduction to Comparative Law"

Aron Palmer
5 years ago
Views:

1 Prof. Dr. Alexander Trunk Vorlesung / Course Einführung in die Rechtsvergleichung Introduction to Comparative Law Winter term (WS)

2 : Basic questions and structures of comparative law Basic structures of comparative law (contd.) : Methods of comparative law : Methods of comp. law (cont d.). Legal families (overview) : German legal family (deutscher Rechtskreis) : French legal family : Anglo-American legal family : Exercise (voluntary test) : The legal systems in Northern and Eastern Europe : Legal systems in Asia. Religious laws (overview) : Islamic law : Contracts law : Torts law : Property law (Sachenrecht) : Civil procedure and arbitration

3 Civil procedure

6 Law of civil procedure - basics Notion of civil procedure Relation of civil procedure law with other procedural law: court organization, administrative and criminal disputes, special civil proceedings Structure of the law of civil procedure: general provisions, commencement of proceeding, subject matter of litigation, parties, role of court, evidence, court hearing, default, orders and judgments, execution

7 Typical issues of civil procedure law Organization and competence of courts Procedural maxims Steps of the proceeding (e.g. discovery?) Efficiency of the proceeding (cf CEPEJ) The judgment and its effects Costs Execution of judgments

9 Legal sources of civil procedure law Germany, Austria, Switzerland: Codes of civil procedure (most recent CH: 2008) France: Code de procédure civile (since 1973/2007) Scandinavia: Civil procedure codes (e.g. Sweden 1942) Eastern Europe, e.g. Russia: separate Codes of Civil procedure and economic procedure UK: Civil procedure rules (1998) USA: Federal Rules of Civil Procedure (since 1938), Federal Rules of Evidence (since 1975). State Rules of Civil Procedure. Unification of law: EU law, ALI/Unidroit Principles of Transnational Civil Procedure (2004), project of European Rules of Civil Procedure.

11 French (New) Code of Civil Procedure BOOK I: PROVISIONS COMMON TO ALL COURTS Articles 1 to 749 e.g. TITLE I: PRELIMINARY PROVISIONS Articles 1 to 29 CHAPTER I: GUIDING PRINCIPLES FOR TRIAL TITLE II: RIGHT OF ACTION Articles 30 to 32-1 TITLE III: JURISDICTION Articles 33 to 52 TITLE IV: ACTION IN LAW Articles 53 to 70 BOOK II: SPECIFIC PROVISIONS RELATING TO EACH COURT Articles 755 to 1037 BOOK III: SPECIFIC PROVISIONS APPLICABLE TO CERTAIN SUBJECT-MATTERS Articles 1038 to BOOK IV: ARBITRATION Articles 1442 to 1507

12 Swiss Code of Civil Procedure Part 1: General Provisions Title 1: Subject Matter and Scope of Application Art.1 3 Title 2: Jurisdiction of the Courts and Recusal (4-51) Title 3: Procedural Principles and Procedural Requirements Chapter 1: Procedural Principles (52-58 Chapter 2: Procedural Requirements (59-61) Title 4: Pendency and Effects of Withdrawal of the Action (62-65) Title 5: Parties and Participation of Third Parties (66 90) Title 7: Value in Dispute Title 8: Costs and Legal Aid Title 9: Director of Proceedings, Procedural Acts and Deadlines Title 10: Evidence ( ) Part 2: Special Provisions Title 1: Attempt at Conciliation Title 2: Mediation Title 3: Ordinary Proceedings ( Title 5: Summary Proceedings Title 6: Special Proceedings in Marital Law Title 9: Appellate Remedies ( ) Title 10: Enforcement Part 3: Arbitration

14 German, Swiss and French Codes of Civil Procedure Part 1: General Provisions Title 1: Subject Matter and Scope of Application Title 2: Jurisdiction of the Courts and Recusal Title 3: Procedural Principles and Procedural Requirements Chapter 1: Procedural Principles Chapter 2: Procedural Requirements Title 4: Pendency and Effects of Withdrawal of the Action Title 5: Parties and Participation of Third Parties Title 7: Value in Dispute Title 8: Costs and Legal Aid Title 9: Director of Proceedings, Procedural Acts and Deadlines Title 10: Evidence ( ) Part 2: Special Provisions Title 1: Attempt at Conciliation Title 2: Mediation Title 3: Ordinary Proceedings Title 5: Summary Proceedings Title 6: Special Proceedings in Marital Law Title 9: Appellate Remedies Title 10: Enforcement Part 3: Arbitration Book 1 General regulations Chapter 1 Courts Title 2 Venue (sec.12-40) Chapter 2 Parties Title 4 Attorneys of record and counsel Title 5 Costs of the proceedings Title 7 Assistance with court costs; advance on the costs of litigation Chapter 3 Proceedings (128 Title 2 Procedure for the Service of Records or Documents (166 Title 3 Summonses, hearings, and periods Title 5 Interruption and suspension of the proceedings Book 2 Procedural rules for proceedings before the courts of first instance Chapter 1 Proceedings before the regional courts (Landgerichte) (253 -) Book 3 Appellate remedies (511 Book 4 Reopening of proceedings Book 5 Proceedings on claims arising from a deed from a bill of exchange Book 6 (family matters: repealed) Book 7 Summary proceedings for a payment order Book 8 Compulsory enforcement Book 9 (repealed) Book 10 Arbitration proceedings Book 11 Judicial collaboration within the European Union

16 F.R.Civ.P. (US) TITLE I. SCOPE OF RULES; FORM OF ACTION TITLE II. COMMENCING AN ACTION; SERVICE OF PROCESS, PLEADINGS, MOTIONS, AND ORDERS TITLE III. PLEADINGS AND MOTIONS TITLE IV. PARTIES TITLE V. DISCLOSURES AND DISCOVERY TITLE VI. TRIALS TITLE VII. JUDGMENT TITLE VIII. PROVISIONAL AND FINAL REMEDIES TITLE IX XI

17 Federal Rules of Evidence (US) ARTICLE I. GENERAL PROVISIONS ARTICLE II. JUDICIAL NOTICE ARTICLE III. PRESUMPTIONS IN CIVIL CASES ARTICLE IV. RELEVANCE AND ITS LIMITS ARTICLE V. PRIVILEGES ARTICLE VI. WITNESSES ARTICLE VII. OPINIONS AND EXPERT TESTIMONY ARTICLE VIII. HEARSAY ARTICLE IX. AUTHENTICATION AND IDENTIFICATION ARTICLE X. CONTENTS OF WRITINGS, RECORDINGS, AND PHOTOGRAPHS ARTICLE XI. MISCELLANEOUS RULES

18 Procedural maxims Principle of party disposition (Dispositionsmaxime) Adversarial system (Verhandlungsmaxime) Principle of due process American rule of costs and contingency fees Others

19 Procedural maxims under the French (New) Code of Civil Procedure CHAPTER I: GUIDING PRINCIPLES FOR TRIAL Articles 1 to 24 Article 1: Unless otherwise provided by law, only the parties may institute a proceeding. They may put an end to the latter prior to its extinction by virtue of the court's decision or by virtue of the law. Article 3: The judge supervises the proper progress of the proceeding; he has the authority to define the time-limits and order the necessary measures. Article 4: The subject-matter of the dispute is determined by the respective claims of the parties. Article 9: Each party must prove, according to the law, the facts necessary for the success of his claim. Article 10: The judge has the authority to order sua sponte any legally appropriate investigation measures.

21 Due process clause Fifth Amendment to the United States Constitution (1791): [N]or shall any person... be deprived of life, liberty, or property, without due process of law... Similar: 14 th Amendment (1868) (for States) From Wikipedia: Procedural due process: This protection extends to all government proceedings that can result in an individual's deprivation, whether civil or criminal in nature An unbiased tribunal. --- Notice of the proposed action and the grounds asserted for it Opportunity to present reasons why the proposed action should not be taken. --- The right to present evidence, including the right to call witnesses The right to know opposing evidence The right to cross-examine adverse witnesses. --- A decision based exclusively on the evidence presented. --- Opportunity to be represented by counsel Requirement that the tribunal prepare a record of the evidence presented. --- Requirement that the tribunal prepare written findings of fact and reasons for its decision. Civil procedural due process Procedural due process is essentially based on the concept of "fundamental fairness. Procedural due process mandates that he or she is entitled to adequate notice, a hearing, and a neutral judge. The Supreme Court has formulated a balancing test Procedural due process has also been an important factor in the development of the law of personal jurisdiction,

22 Civil procedure cases Case 1: Purchaser does not pay seller. How can seller get his money? Case 2: Where can seller sue the purchaser? Case 3: Under what conditions can the parties engage lawyers?

23 International Commercial Arbitration

27 International Commercial Arbitration some basics Notion of international commercial arbitration proceedings in non-governmental (non-court) forum quasi-judicial proceeding, but more flexible Binding decisions ( award ) Distinguish from mediation Types of international arbitration: Public international private (commercial) Institutional/ad hoc, e.g. ICC, SCC, LCIA, MKAS, CIETAC, DIS

28 Legal sources of international commercial arbitration International sources: mainly UNCITRAL UN-Convention 1958 UNCITRAL Model Law on International Commercial Arbitration 1985/2006: transposed eg in German ZPO Soft law : UNCITRAL Rules on Transparency in Treatybased Investor-State Arbitration (1 April 2014), Arbitration Rules of different institutions or (independent) UNCITRAL Arbitration Rules National sources: Codes of civil procedure, sometimes distinct legislation on domestic and international arbitration (e.g. Russia, Switzerland, France)

29 International commercial arbitration elements of comparison UNCITRAL Model Law 1958 adopted? UN Convention 1958 adopted? Degree of arbitration-friendlyness of national legislation and national courts? Quality of arbitration institutions? Includes specifics of arbitration rules (e.g. open or closed list of arbitrators, quality and independence of arbitrators, language, freedom of choice of law and/or procedure)

Leading arbitration institutions, see e.g. Born, Int. Commercial Arbitration, 2nd ed. (2014) 1. International Chamber of Commerce (ICC) International Court of Arbitration 2.

32 Leading arbitration institutions, see e.g. Born, Int. Commercial Arbitration, 2nd ed. (2014) 1. International Chamber of Commerce (ICC) International Court of Arbitration 2. London Court of International Arbitration (LCIA) 3. American Arbitration Association and International Center for Dispute Resolution 4. Permanent Court of Arbitration 5. Swiss Chamber s Arbitration Institution 6. Vienna International Arbitral Centre 7. Stockholm Chamber of Commerce Arbitration Institute 10. Chinese International Economic and Trade Arbitration Centre

Vorlesung / Course Einführung in die Rechtsvergleichung Introduction to Comparative Law

Prof. Dr. Alexander Trunk Vorlesung / Course Einführung in die Rechtsvergleichung Introduction to Comparative Law Winter term (WS) 2015-2016 http://www.eastlaw.uni-kiel.de 20.10.2015: Basic questions and