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Harmonisation of Civil Procedure and the Interaction with Private International Law

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Civil Litigation in a Globalising World

Abstract

Traditionally, private international law and civil procedural law are separate disciplines. Even today, many proceduralists seem not to be fully acquainted with the area of private international law, while many private international law experts lack thorough knowledge of (harmonised) civil procedure. However, modern private international law is closely interwoven with civil procedure. Firstly, harmonisation of private international law may be viewed as a preliminary stage in the harmonisation of civil procedure. Secondly, and in connection with the previous point, harmonisation of private international law rules may result in a spontaneous approximation of civil procedure. Thirdly, the harmonisation of private international law rules and civil procedure are dependent upon each other and go hand in hand. Particularly in the EU, there seems to be a gradual shift from harmonising private international law to harmonising civil procedure, by means of establishing minimum standards of civil procedure and introducing uniform European procedures. The lessons learnt from the more advanced harmonisation of private international law could benefit the process of approximation of civil procedure. As long as true common standards of civil procedure are not established, private international law rules will remain to be the primary object of harmonisation.

Professor at Erasmus School of Law, the Netherlands, www.xandrakramer.eu. This contribution has been made possible with the support of the Netherlands Organisation for Scientific Research (NWO) within its Innovational Research Incentives Scheme (VIDI).

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Notes

  1. 1.

    Due to the Europeanisation of private international law since the Treaty of Amsterdam, EU scholars and practitioners in particular evidently also require knowledge of EU law.

  2. 2.

    See, inter alia, Hess 2010.

  3. 3.

    It is for the same reason that for example the UNCITRAL Convention on the International Sale of Goods of 1980 is not a private international law convention but simply uniform (substantive) law.

  4. 4.

    Examples of more recent and well-known codifications are the private international Acts in the Netherlands, China, Turkey, Belgium, Germany, Italy, Austria, and Switzerland. Some of these Acts only cover choice of law (applicable law) aspects, others cover all aspects of private international law, notably the Turkish, Belgian, and Swiss Acts.

  5. 5.

    Several books are dedicated to European private international law as a special discipline, most notably Bogdan 2006 and Stone 2010 (revised version of the first edition of 2006).

  6. 6.

    See the website of the Hague Conference on Private International Law, http://www.hcch.net/index_en.php (last consulted in July 2011).

  7. 7.

    See, inter alia, Hartley 2009, 505, and from an English perspective, Fawcett and Carruthers 2008, 75–76. This rule is seldom codified, but it is said that the very nature of civil procedural rules, which embody the national sovereignty and identity of countries, imply that a court will always rely on its own rules of civil procedure. In the Netherlands, this rule is codified in the general principles of the tenth book of the Civil Code, devoted to private international law, which was adopted in 2011; see Art. 10:4 Dutch Civil Code (Burgerlijk Wetboek). See, for example, also Art. 8 Italian Civil Code (Código Civil). In most countries, it is generally accepted that, as a consequence of the private international law principle of application of the lex causae, foreign substantive law may be applied.

  8. 8.

    Erp 2002. The author concludes that it may very well be that resolving private international law issues is enough, and that the unification of private international law may well be the final stage in this process.

  9. 9.

    In Chapter 4 of the current volume, Visscher argues that from a law and economics point of view, harmonisation in civil procedure is not necessarily desirable. See on the harmonisation of civil procedure to facilitate the harmonisation of substantive law in Europe, inter alia, Kerameus 2011, 261–275.

  10. 10.

    Over the past several years, there has also been a certain degree of harmonisation of private international law through bilateral conventions.

  11. 11.

    See www.hcch.net (last consulted in July 2011). This number includes the European Union as a Regional Economic Integration Organisation (since 2007).

  12. 12.

    Until 1 December 2009, the date of the entry into force of the Lisbon Treaty, this was the European Community.

  13. 13.

    Art. 65 EC Treaty was introduced by the 1997 Treaty of Amsterdam, which came into force on 1 May 1999, and was as a result of the Lisbon Treaty replaced by Art. 81 of the Treaty on the Functioning of the European Union on 1 December 2009. This provision differs from its predecessor, but does not include substantial changes. See on the development of the EU competence, Kramer 2008a, 254–260. Before 1999 there were only two multilateral conventions in the EU: the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 1968, OJ 1972, L 299/32, and Convention 80/934/EEC on the Law Applicable to Contractual Obligations of 1980 (Rome Convention), OJ 1980, L 266/1.

  14. 14.

    See also on this distinction Kramer 2008a, 254.

  15. 15.

    Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.

  16. 16.

    Regulation No. 1393/2007 on the Service in the Member States of Judicial and Extrajudicial Documents in Civil or Commercial Matters, OJ 2007, L 324/79 (replacing Regulation No. 1348/2000).

  17. 17.

    See Art. 81(2), sub (a)–(d) TFEU. In the EC Treaty, these were laid down in Art. 65(1), sub (a) and (b).

  18. 18.

    See Art. 81(2), sub (f). In the EC Treaty, this was provided in Art. 65(1), sub (c).

  19. 19.

    Regulation No. 805/2004 creating a European Enforcement Order for Uncontested Claims, OJ 2004, L 143/15. See, inter alia, Rauscher 2004.

  20. 20.

    Regulation No. 1896/2006 creating a European Order for Payment Procedure, OJ 2006, L 399/1. See, inter alia, Kramer 2010, 17–39.

  21. 21.

    Regulation No. 861/2007 establishing a European Small Claims Procedure, OJ 2007, L 199/1. See, inter alia, Kramer 2008b, 355–373.

  22. 22.

    See Art. 3 of both regulations. The European Commission proposed to have these instruments applicable to national cases as well, but this was not acceptable to most Member States, as they were seen to run counter to the wording and scope of Art. 65 EC Treaty (currently Art. 81 TFEU). See on this issue, inter alia, Kramer 2007, 20–21.

  23. 23.

    Proposal for a Regulation Creating a European Account Preservation Order to facilitate cross-border debt recovery in civil and commercial matters, COM (2011) 445.

  24. 24.

    Tender on the Study of Minimum Standards of Procedural Law (2009/S 107-153954), 6 June 2009.

  25. 25.

    European Commission, Action Plan Implementing the Stockholm Programme, COM(2010) 171 final, 4.

  26. 26.

    Regulation No. 2201/2003 concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility, OJ 2003, L 388/1.

  27. 27.

    Stockholm Action Plan, see n. 25, 22–23.

  28. 28.

    Commission staff working document. Public Consultation: Towards a Coherent European Approach to Collective Redress Brussels, SEC(2011)173 final, 4 February 2011.

  29. 29.

    In the process of establishing a worldwide convention on jurisdiction and enforcement, and the consequent more narrow Hague Choice of Court Convention of 2005, the lack of uniform concepts was a reason to avoid definitions as much as possible. See on this Convention, inter alia, Schulz 2006, 243–286.

  30. 30.

    Though this provision includes a compromise on the two existing systems, and is thus not fully harmonised.

  31. 31.

    ECJ 13 July 1995, Case C-341/93, ECR I-2053 (Danværn Production v Schuhfabriken Otterbeck).

  32. 32.

    See further Sect. 6.4.2.

  33. 33.

    See Sect. 6.2 above.

  34. 34.

    Regulation No. 593/2008 on the Law Applicable to Contractual Obligations (Rome I), OJ 2008, L 177/6. Weller, in Calliess 2011, 53 and Klöhn, in Calliess 2011, 301–306.

  35. 35.

    Regulation No. 864/2007 on the Law Applicable to Non-Contractual Obligations (Rome II), OJ 2007, L 199/40, see Art. 1(3) and 22. See, inter alia, Dickinson 2008, 591–597.

  36. 36.

    See Art. 15 Rome II Regulation on the scope of the applicable law. Dickinson 2008, 587–591.

  37. 37.

    See Art. 3 Brussels I Regulation.

  38. 38.

    Storme 1994, 203-207 and Art. 10.

  39. 39.

    Art. 8 of the ALI/UNIDROIT Principles of Transnational Civil Procedure, as adopted by the American Law Institute and UNIDROIT in 2004. These Principles were published, accompanied by Rules and short commentaries in ALI/UNIDROIT Principles of Transnational Civil Procedure 2006.

  40. 40.

    Issues paper for the agenda of the Special Commission of June 1999, 17 (No. 14.4) and Work Doc. No. 95 E & F, Commission II, Jurisdiction and Foreign Judgements in Civil and Commercial Matters, Nineteenth Session, 18 June 2001, available on www.hcch.net (last consulted in July 2011), discussed by Kramer 2003, 315–316.

  41. 41.

    ECJ 26 March 1992, Case C-261/90, ECR I-2149 (Reichert v Dresdner Bank).

  42. 42.

    See Kramer 2003, 312–315.

  43. 43.

    ECJ 17 November 1998, Case C-391/95, ECR I-7091 (Van Uden v Deco-Line).

  44. 44.

    ECJ 27 April 2004, Case C-159/02, ECR I-3565 (Turner v Grovit).

  45. 45.

    ECJ 10 February 2009, Case C-185/07, ECR I-663 (Allianz v Westtankers).

  46. 46.

    Referring to the Hagen ruling (Case C-365/88, ECR I-1845), the ECJ argued that even if it were assumed that an injunction could be regarded as a measure of a procedural nature intended to safeguard the integrity of the proceedings pending before the court which issues it, and therefore as being a matter of national law alone, the application of national procedural rules may not impair the effectiveness of this EU instrument.

  47. 47.

    See also Storskrubb 2008, 93–94.

  48. 48.

    See Art. 5 Hague Service Convention and Art. 7 EU Service Regulation.

  49. 49.

    See Art. 7 and 8 EU Service Regulation.

  50. 50.

    Art. 15 Hague Service Convention and Art. 19 EU Service Regulation.

  51. 51.

    See Arts. 13, 14, and 15 European Enforcement Order.

  52. 52.

    Art. 19 European Enforcement Order.

  53. 53.

    See Sect.  6.3.3.

  54. 54.

    See Sect.  6.3.3.

  55. 55.

    See Kramer 2009, 77–86.

  56. 56.

    Some countries simply have a better infrastructure than others.

  57. 57.

    See Art. 30 Rome II Regulation.

  58. 58.

    Esplugues et al. 2011.

  59. 59.

    Following a ‘Feasibility Study on the Treatment of Foreign Law’ by the Permanent Bureau in 2007, in March 2009 a further Study was announced on ‘Accessing the Content of Foreign Law and the Need for the Development of a Global Instrument in this Area—A Possible Way Ahead,’ available at http://www.hcch.net/upload/wop/genaff_pd11a2009e.pdf (last consulted in July 2011).

  60. 60.

    Regulation No. 44/2001 Regulation No. 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, OJ 2001, L 12/1.

  61. 61.

    See n. 26.

  62. 62.

    Regulation No. 1346/2000 on Insolvency Proceedings, OJ 2000, L 160/1. There are several other special regulations that include rules on cross-border recognition and enforcement in the EU, including Regulation No. 4/2009 on Jurisdiction, Applicable Law, Recognition and Enforcement of Decisions and Cooperation in Matters Relating to Maintenance Obligations, OJ 2009, L 7/1. In the area of succession and wills and matrimonial property, the European Commission has adopted proposals; succession and wills: COM(2009)154 final; matrimonial property and registered partnerships: COM(2011) 126 final and COM(2011) 127 final.

  63. 63.

    Tampere European Council: Presidency Conclusions, 15 and 16 October 1999 (Presidency Conclusions, No. 200/1/99). See also the Programme of measures for implementation of the principle of mutual recognition of decisions in civil and commercial matters, 30 November 2000, OJ 2001, C 12/1.

  64. 64.

    See, inter alia, Cuniberti and Rueda 2011, 286–317; Beaumont and Johnston 2010, 249–279; Oberhammer 2010, 197–203; Schlosser 2010, 101-104; Cuniberti 2008, 371–376; Malatesta 2008, 1–8; Van der Grinten 2006, 71–83; Stadler 2004, 2–10.

  65. 65.

    See Sect.  6.3.3.

  66. 66.

    See n. 62.

  67. 67.

    Green Paper on the review of Council Regulation (EC) No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, COM(2009)175 of 21 April 2009.

  68. 68.

    Proposal for a Regulation of the European Parliament and of the Council on the jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Recast), COM(2010) 748 final of 14 December 2010.

  69. 69.

    Green Paper (n. 67), 2. Data research was conducted and published by Hess, Pfeiffer & Schlosser. See Hess et al. 2008, 126–167. This report was presented, in a slightly different form, to the European Commission in 2007. It must be noted that it includes scant data from the new Member States.

  70. 70.

    As the Commission optimistically notes in its Explanatory Memorandum, 6: ‘Today, judicial cooperation and the level of trust among Member States has reached a degree of maturity which permits the move towards a simpler, less costly, and more automatic system of circulation of judgments, removing the existing formalities among Member States’.

  71. 71.

    See, for example, the Green Paper (n. 67), 2–3 and also the Commission Proposal (n. 62), 6–7.

  72. 72.

    The existing grounds of refusal, included in Articles 34 and 35 Brussels I, relate to the offence of public policy (including procedural public policy), proper notice, irreconcilability, and the violation of jurisdiction rules relating to insurance and consumer contracts and certain exclusive grounds of jurisdiction.

  73. 73.

    See the literature included in n. 64.

  74. 74.

    Art. 45 of the Commission Proposal (n. 68).

  75. 75.

    Art. 45 of the Commission Proposal (n. 68).

  76. 76.

    See, inter alia, Hess 2010, 582 (No. 106).

  77. 77.

    See Art. 37 Commission Proposal (n. 68) and Explanatory Memorandum, 7–8.

  78. 78.

    See Sect.  6.3.3 and n. 28.

  79. 79.

    ECJ 22 December 2010, Case C-491/10 (Aguirre Zarraga v Pelz) (not yet published in ECR).

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  1. Erasmus School of Law, Rotterdam, The Netherlands

    Xandra E. Kramer

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  1. , Erasmus School of Law, Erasmus University Rotterdam, Burgemeester Oudlaan 50, Rotterdam, 3062 PA, Zuid-Holland, Netherlands

    X.E. Kramer

  2. , Faculty of Law, Maastricht University, Bouillonstraat 1-3, Maastricht, 6211 LH, Netherlands

    C.H. Rhee

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Kramer, X.E. (2012). Harmonisation of Civil Procedure and the Interaction with Private International 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_6

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