Abstract
This chapter deals with the interaction between procedural law and substantive private law in the context of a partially harmonised but mainly non harmonised substantive law. It also discusses civil proceedings dealing with matters not exclusively governed by domestic law. Procedural law should take into account that the applicable private law is often drafted or developed having regard to different rules of procedure (foreign private law) or without taking into consideration the existing rules of civil procedure. The author illustrates more specifically the possible problems with regard to (1) procedural rules concerning the availability of and access to procedures and the powers of courts, (2) the protection of defendants and (3) a change of parties or their rights under substantive law during the course of the proceedings.
Professor of civil and commercial law and jurisprudence at the KU Leuven; member of the Brussels Bar.
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Notes
- 1.
Harmonised or ‘common’ private law in the sense of supranational or European common law (and clearly not meaning the common law of England and Wales or any other form of Anglo-American common law).
- 2.
I do not mention ‘dispute resolution’ as a specific purpose of civil procedure, as it is rather a purpose of the law as such: the capability of ending disputes by their acceptance when applied to a dispute is one of the criteria for good rules in general (as well for substantive rules as for procedural rules). But it is one of the purposes of rules of civil procedure specifically to legitimise the outcome of the proceedings, or at least to legitimise the fact that those substantive law rules which have been applied were applied.
- 3.
The 1980 New York Convention on the Limitation Period in the International Sale of Goods, on the other hand, basically deals only with judicial proceedings and arbitration proceedings (see Artt. 13 to 15).
- 4.
The drafters of the DCFR have chosen a mixed solution in Art. III-7:302 (2): in principle, judicial proceedings only suspend the running of prescription, but ‘where the proceedings end within the last six months of the prescription period without a decision on the merits, the period of prescription does not expire before six months have passed after the time when the proceedings ended.’ In my opinion, a simpler solution has to be preferred, but at least the solution is better than Art. 14:302 PECL (Principles of European Contract Law), which provided a mere suspension without any fixed period of extension.
- 5.
ECJ 19 June 1990, Case C-213/89, ECR I-2433 (Factortame).
- 6.
Cass. (B) 21 December 2009, Journal des Tribunaux 2010, 129 note E. David.
- 7.
ECJ 11 July 1991, Case C-87-89/90, ECR I-3757 (Verholen).
- 8.
Regulation No. 1346/2000 on insolvency proceedings, OJ 2000, L 160, Art.18:
-
‘1.
The liquidator appointed by a court which has jurisdiction pursuant to Art. 3(1) may exercise all the powers conferred on him by the law of the State of the opening of proceedings in another Member State, as long as no other insolvency proceedings have been opened there nor any preservation measure to the contrary has been taken there further to a request for the opening of insolvency proceedings in that State. He may in particular remove the debtor's assets from the territory of the Member State in which they are situated, subject to Art. 5 and 7.
-
2.
The liquidator appointed by a court which has jurisdiction pursuant to Art. 3(2) may in any other Member State claim through the courts or out of court that moveable property was removed from the territory of the State of the opening of proceedings to the territory of that other Member State after the opening of the insolvency proceedings. He may also bring any action to set aside which is in the interests of the creditors.
-
3.
In exercising his powers, the liquidator shall comply with the law of the Member State within the territory of which he intends to take action, in particular with regard to procedures for the realisation of assets. Those powers may not include coercive measures or the right to rule on legal proceedings or disputes’.
-
‘1.
- 9.
ECJ 26 October 2006, Case C-168/05, ECR I-10421 (Mostaza Claro).
- 10.
See especially ECJ 14 December 1995, Case C-312/93, ECR I-4599 (Peterbroeck, Van Campenhout v. Belgische Staat).
- 11.
In using privilege and immunity, I am implicitly referring to the terminology of Hohfeld 1913/1917.
- 12.
Degenkolb 1877.
- 13.
ECJ 4 June 2009, Case C-243/08, ECR I-4713 (Pannon GSM), annotated by Ancery and Wissink 2010, 307–316.
- 14.
- 15.
Directive 2000/35/EC on combating late payment in commercial transactions, OJ 2000, L 200/35.
- 16.
Directive 2011/7/EU on combating late payment in commercial transactions, OJ 2011, L 48/1.
- 17.
Most of the relevant questions have at some length in an article dealing with Belgian and Dutch law by Storme 1994, 178.
- 18.
Cass. (B.) 6 May 1994, annotated by Storme 1995, 43–44.
- 19.
Darbellay 1964, 427.
References
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Storme, M.E. (2012). Harmonisation of Civil Procedure and the Interaction with Substantive Private Law. In: Kramer, X., Rhee, C. (eds) Civil Litigation in a Globalising World. T.M.C. Asser Press. https://doi.org/10.1007/978-90-6704-817-0_7
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