Civil Litigation in Comparative Context

NEW YORK UNIVERSITY
SCHOOL OF LAW
PUBLIC LAW & LEGAL THEORY RESEARCH PAPER SERIES
WORKING PAPER NO. 17-37
LAW & ECONOMICS RESEARCH PAPER SERIES

WORKING PAPER NO. 17-35
Civil Litigation in Comparative Context
Oscar G. Chase, Helen Hershkoff, Linda J. Silberman, John Sorabji, Rolf

Stürner, Yasuhei Taniguchi, Vicenzo Varano
September 2017
Electronic copy available at: https://ssrn.com/abstract=3041554

TABLE OF CONTENTS
—————
PREFACE TO THE SECOND EDITION ....................................................................... V
PREFACE TO THE FIRST EDITION ......................................................................... VII
LIST OF CREDITS ................................................................................................... XI
TABLE OF CASES ................................................................................................ XLV
Chapter 1. An Introduction and Overview................................................. 1

I. Introduction .................................................................................................. 1
A. Why Take a Global Approach to the Study of Civil Procedure? ........ 1
B. Categorizing the World’s Legal Systems and Their Procedures ....... 3
Questions .............................................................................................. 4
II. An Overview of Different Procedural Systems ........................................... 5
A. The Civil Law System .......................................................................... 5
1. Introduction .................................................................................. 5
2. The Machinery of Justice: Courts and Judges in the Civil
Law Tradition ............................................................................... 6
3. The Proceeding of First Instance ................................................. 8
4. Special Proceedings .................................................................... 12
5. Appeals ........................................................................................ 13
6. Enforcement of Judgments ........................................................ 15
7. Alternative Methods of Dispute Resolution .............................. 15
8. The Performance of the Civil Law Procedural Model: A
Tentative Assessment ................................................................ 16
B. The Common Law System—England ............................................... 18
1. Introduction ................................................................................ 18
2. Outline of Litigation in England ............................................... 18
a. The Overriding Objective—Procedure’s Aim .................... 18
b. Proportionality .................................................................... 19
c. Pre-Action Protocols ........................................................... 20
d. Commencing and Serving Proceedings ............................. 20
e. The Defendant’s Response ................................................. 21
f. Default Judgment ............................................................... 21
g. Summary Judgment and Strike Out ................................. 22
h. Case Management .............................................................. 22
i. Costs Budgeting and Management.................................... 24
j. Rule Compliance ................................................................. 24
k. Interim Measures ............................................................... 25
(i) Protective Orders ........................................................ 25
(ii) Facilitative or Process Orders .................................... 26
l. Documentary Evidence ....................................................... 27
m. Witness Evidence ................................................................ 27
n. Evidentiary Privileges ........................................................ 28
xxix

xxx TABLE OF CONTENTS
o. Closed Material Proceedings .............................................. 29

p. Trial ..................................................................................... 30
q. Appeal .................................................................................. 30
r. Offers to Settle .................................................................... 30
s. Costs .................................................................................... 31
t. Litigation Funding .............................................................. 32
C. The Common Law System—The United States ............................... 32
1. Introduction ................................................................................ 32
2. Overview of a Lawsuit in the United States ............................. 33
a. Investigation and Fee Arrangements ................................ 33
b. Choice of Court .................................................................... 34
c. Commencing the Proceeding and Serving the
Defendant ............................................................................ 34
d. Defendant’s Responses ....................................................... 35
e. Case Management and Pretrial Discovery........................ 36
f. Summary Judgment ........................................................... 38
g. Trial ..................................................................................... 39
h. Taking the Case from the Jury and Post-Verdict
Motions ................................................................................ 41
i. Appeals ................................................................................ 42
3. Conclusion ................................................................................... 42
D. Japan ................................................................................................... 43
1. Introduction and Historical Background of Japanese Civil
Procedure .................................................................................... 43
2. Post-War Reform ........................................................................ 45
3. Civil Procedure in the Post-War Period .................................... 47
4. A New Trend of Judge-Lawyer Cooperation—Successful
Preparation and Concentration of Witness Examination ........ 49
5. Additional Amendments ............................................................ 54
6. Prospects and Conclusion—The Need for Solid
Infrastructure ............................................................................. 56
III. Other Systems: An Apologia ...................................................................... 60
Chapter 2. The Structure of the Legal Profession ................................. 63

I. Introduction ................................................................................................ 63
II. The Education of Civil Lawyers ................................................................ 64
Mirjan Damaška, A Continental Lawyer in an American Law School:
Trials and Tribulations of Adjustment ............................................. 64
Notes and Questions .................................................................................. 69
III. The Legal Profession vs. The Legal Professions ...................................... 72
John Henry Merryman, The Civil Law Tradition .................................... 72
Notes and Questions .................................................................................. 78
IV. The Structure of the Legal Profession in the Civil Law: The Role
of the Judge in Germany, France, Italy, and Japan ................................ 80
Notes ........................................................................................................... 81

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A. Germany.............................................................................................. 81
Fundamental Law (Grundgesetz) of the Federal Republic of
Germany of 1949 ......................................................................... 81
Peter L. Murray and Rolf Stürner, German Civil Justice ............... 82
Peter L. Murray and Rolf Stürner, German Civil Justice ............... 85
Notes and Questions .......................................................................... 92
Peter Murray & Rolf Stürner, The Civil Law Notary—Neutral
Lawyer for the Situation ............................................................ 93
Notes and Questions .......................................................................... 95
B. France.................................................................................................. 95
Constitution of the Republic of France ............................................. 95
Notes on the French Legal Profession .............................................. 97
C. Italy ................................................................................................... 100
Constitution of the Italian Republic ................................................ 100
Sara Benvenuti, The Machinery of Justice in Italy ....................... 102
Notes and Questions ........................................................................ 106
D. Japan ................................................................................................. 108
The Constitution of Japan ............................................................... 108
Yukiko Hasebe, Civil Justice Reform: Access, Cost, and
Expedition. The Japanese Perspective .................................... 109
Yasuhei Taniguchi, Japan’s Recent Civil Procedure Reform: Its
Seeming Success and Left Problems ....................................... 110
Notes on Developments in Japan .................................................... 114
V. The Structure of the Legal Profession in the Common Law: England
and the United States .............................................................................. 117
A. England ............................................................................................. 118
1. Judges ........................................................................................ 118
2. Lawyers ..................................................................................... 120
B. The United States............................................................................. 124
Constitution of the United States.................................................... 124
1. Judges ........................................................................................ 125
Henry J. Abraham, The Judicial Process: An Introductory
Analysis of the Courts of the United States, England,
and France......................................................................... 125
Notes and Questions ................................................................. 129
2. Legal Education and the Regulation of Attorneys ................. 130
David S. Clark, Legal Education and the Legal
Profession .......................................................................... 130
Chapter 3. Organization of the Courts .................................................... 137

I. Introduction .............................................................................................. 137
II. Civil Law Systems: Germany, France, Italy, and Japan ....................... 138
A. Germany............................................................................................ 138
Germany .................................................................................... 138
Peter L. Murray and Rolf Stürner, German Civil Justice ............. 139
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Rolf Stürner, The New Role of Supreme Courts in a Political and

Institutional Context from the German Point of View........... 148
B. France................................................................................................ 151
Loïc Cadiet, Introduction to French Civil Justice System and
Civil Procedural Law ................................................................ 151
C. Italy ................................................................................................... 155
The Constitution of the Republic of Italy ........................................ 155
Notes.................................................................................................. 155
D. Japan ................................................................................................. 159
Constitution of Japan ....................................................................... 160
Note ................................................................................................... 161
III. Courts in the Common Law: England and the United States............... 161
A. England ............................................................................................. 161
Constitutional Reform Act ............................................................... 161
Senior Courts Act ............................................................................. 162
County Court Act .............................................................................. 162
1. Statutory Underpinning ........................................................... 162
2. The Civil Courts ........................................................................ 163
3. Judiciary .................................................................................... 164
4. Judicial Administration ........................................................... 165
5. Judicial Appointments ............................................................. 166
6. Courts and Tribunals’ Jurisdiction.......................................... 167
7. Courts and Tribunals Administration ..................................... 170
B. The United States............................................................................. 171
Constitution of the United States.................................................... 171
Alexis De Tocqueville, Democracy in America ............................... 172
Geoffrey C. Hazard, Jr. and Michele Taruffo, American Civil
Procedure: An Introduction...................................................... 173
Peter Hay, Law of the United States: An Overview ...................... 174
Note ................................................................................................... 177
IV. Constitutional Courts............................................................................... 178
Mauro Cappelletti, The Judicial Process in Comparative
Perspective ........................................................................................ 178
John E. Ferejohn, Constitutional Review in the Global Context .......... 181
A. Germany............................................................................................ 183
Germany .................................................................................... 183
Rolf Stürner, The New Role of Supreme Courts in a Political and
Institutional Context from a German Point of View .............. 184
B. Italy ................................................................................................... 185
Constitution of the Republic of Italy ............................................... 185
Vittoria Barsotti, Paolo Carozza, Marta Cartabia and Andrea
Simoncini, Italian Constitutional Justice in Global
Context ...................................................................................... 187
C. France................................................................................................ 195
Constitution of the Republic of France ........................................... 195
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Pasquale Pasquino, The New Constitutional Adjudication in

France. The Reform of the Referral to the French
Constitutional Council in Light of the Italian Model ............. 198
Note ................................................................................................... 202
V. Supra-National Courts............................................................................. 203
A. Introductory Note ............................................................................. 203
B. Court of Justice of the European Union ......................................... 204
Treaty on the European Union ........................................................ 204
Treaty on the Functioning of the European Union ........................ 205
Notes.................................................................................................. 205
C. The European Court of Human Rights ........................................... 208
Peter L. Murray & Rolf Stürner, German Civil Justice ................ 208
Note ................................................................................................... 209
Notes on Dialogue Among Courts ................................................... 210
VI. Stare Decisis: A Comparative Perspective ............................................. 211
Konrad Zweigert and Hein Kötz, Introduction to Comparative Law ... 211
Mauro Cappelletti, The Doctrine of Stare Decisis and the Civil Law:
A Fundamental Difference—Or No Difference at All? ................... 215
Note and Question .................................................................................... 219
Chapter 4. Initiating a Law Suit, Defining the Issues, and

Gathering the Evidence ...................................................................... 221
I. Introduction .............................................................................................. 221
II. Commencement and Notification of Proceedings ................................... 221
A. Commencement of Proceedings ....................................................... 223
1. England ..................................................................................... 223
Civil Procedure Rules ............................................................... 223
Note on Claim Initiation in England ....................................... 223
2. Germany .................................................................................... 225
German Code of Civil Procedure ............................................. 225
Note on Claim Initiation in Germany ..................................... 226
3. Italy ........................................................................................... 228
Note on Claim Initiation in Italy ............................................. 228
4. Japan ......................................................................................... 230
Code of Civil Procedure ............................................................ 230
Note on Claim Initiation in Japan........................................... 230
5. The United States ..................................................................... 231
Federal Rules of Civil Procedure ............................................. 231
Note on Claim Initiation in the United States ....................... 232
III. Notification of Proceedings ...................................................................... 234
A. England ............................................................................................. 234
Civil Procedure Rules ....................................................................... 234
Note on Service of the Claim Form in England .............................. 236
B. Germany............................................................................................ 237
German Code of Civil Procedure ..................................................... 237
Note on Service of the Claim in Germany ...................................... 240
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C.
Italy ................................................................................................... 242
Note on Service of the Claim in Italy .............................................. 242
D. Japan ................................................................................................. 243
Code of Civil Procedure .................................................................... 243
Note on Service of Process in Japan ................................................ 244
E. The United States............................................................................. 246
Federal Rules of Civil Procedure ..................................................... 246
Note on Service of Process in the United States ............................ 249
IV. Identifying the Issues............................................................................... 251
A. England ............................................................................................. 251
Note on Identifying the Issues in England ..................................... 253
B. Germany............................................................................................ 254
Note on Issue Identification in Germany ........................................ 258
C. Italy ................................................................................................... 260
Note on Issue Identification in Italy ............................................... 260
D. Japan ................................................................................................. 262
Note on Issue Identification in Japan ............................................. 264
E. France................................................................................................ 266
French Code of Civil Procedure ....................................................... 266
Note on Initiating and Pleading a Case in France ......................... 268
Loïc Cadiet, Introduction to French Civil Justice System and
Civil Procedural Law ................................................................ 268
F. The United States............................................................................. 272
Note on Pleading Practice in the United States ............................. 278
V. Learning the Facts—Discovery and Privilege ........................................ 281
A. England ............................................................................................. 281
Note on Discovery and Privilege in England .................................. 286
Note on Search Orders in England ................................................. 290
B. Germany............................................................................................ 292
Note on Discovery and Privileges in Germany ............................... 295
C. Italy ................................................................................................... 302
Note on Discovery and Privileges in Italy....................................... 302
D. Japan ................................................................................................. 303
Note on Discovery and Privilege in Japan ...................................... 310
Note on Discovery and Privilege in the United States................... 325
TABLE OF CONTENTS xxxv

Nicolò Trocker and Vincenzo Varano, Concluding Remarks ......... 331
VI. The Problem of Electronically Stored Information ................................ 334
A. England ............................................................................................. 334
B. Germany............................................................................................ 335
C. The United States............................................................................. 336
Note on Electronic Discovery ........................................................... 336
Chapter 5. Resolving the Case in the First Instance Court: The

Trial and Analogous Processes ......................................................... 341
I. Introduction .............................................................................................. 341
Notes and Questions ................................................................................ 341
II. The Structure of the “First Instance” Proceeding .................................. 342
John H. Langbein, The German Advantage in Civil Procedure ........... 343
Note on the First Instance Process in Italy and Japan ......................... 345
Note on the First Instance Process in France ........................................ 346
Loïc Cadiet, Introduction to French Civil Justice System and Civil
Procedural Law ................................................................................. 346
Note on Fact Finding in France .............................................................. 348
Frédérique Ferrand, The Respective Role of the Judge and the
Parties in the Preparation of the Case in France........................... 348
Daniel Soulez Lariviere, Overview of the Problems of French Civil
Procedure .......................................................................................... 349
III. The Role of the Judge and Attorney at the Hearing .............................. 350
Oscar G. Chase, Law, Culture and Ritual: Disputing Processes in
Cross-Cultural Context .................................................................... 350
Rolf Stürner, Party Autonomy Versus Judicial Power .......................... 353
Notes ......................................................................................................... 354
Neil Andrews, A New Civil Procedure Code for England: Party-
Control “Going, Going, Gone” .......................................................... 355
A. Representative Rules ....................................................................... 360
Federal Rule of Civil Procedure 16 .......................................... 360
2. England ..................................................................................... 360
Civil Procedure Rules, Rule 1.4 ............................................... 360
3. Germany .................................................................................... 361
4. Japan ......................................................................................... 363
IV. Evidence and Presentation of Proof ........................................................ 364
Mirjan R. Damaška, Evidence Law Adrift ............................................. 364
Note on Expert Testimony ....................................................................... 366
John H. Langbein, The German Advantage in Civil Procedure ........... 366
xxxvi TABLE OF CONTENTS
Richard W. Hulbert, Comment on French Civil Procedure ................... 370

V. Decision Makers ....................................................................................... 371
Oscar G. Chase, Law, Culture and Ritual: Disputing Processes in
Cross-Cultural Context .................................................................... 371
Alan B. Morrison, Courts, in Fundamentals of American Law............. 372
Note ........................................................................................................... 375
Peter L. Murray and Rolf Stürner, German Civil Justice ..................... 376
Questions .................................................................................................. 380
Chapter 6. Simplified Procedures, “Short Cuts” to Judgment, and

Provisional Remedies .......................................................................... 381
I. Introduction .............................................................................................. 381
II. Short Cuts to Judgment ........................................................................... 383
A. Summary Relief and Documentary Evidence ................................. 384
1. England ..................................................................................... 384
B. Summary Relief and Specialized Proceedings ................................ 388
1. Germany .................................................................................... 388
2. Italy ........................................................................................... 389
3. Japan ......................................................................................... 389
C. Special Procedures and Small Claims............................................. 396
1. England ..................................................................................... 397
2. Germany .................................................................................... 397
3. Japan ......................................................................................... 398
New York Civil Court Act, § 1803............................................ 398
III. Provisional Remedies: Comparative Overview ...................................... 404
A. Provisional Remedies as Asset-Protective Relief ........................... 405
1. England ..................................................................................... 405
2. Germany .................................................................................... 406
3. Italy ........................................................................................... 407
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4.
Japan ......................................................................................... 408
Civil Provisional Remedies Act ................................................ 408
New York Civil Practice Law and Rules ................................. 413
B. Provisional Remedies and the Freezing Order ............................... 423
IV. Future Trends........................................................................................... 428
Chapter 7. Appeal ......................................................................................... 431

I. Introduction .............................................................................................. 431
II. England ..................................................................................................... 432
Civil Procedure Rules ............................................................................... 432
A. The Appeals Process in England ..................................................... 436
H.L. v. Canada (Attorney General) ................................................. 442
III. The United States .................................................................................... 444
Title 28, United States Code—Judiciary and Judicial Procedure......... 444
Federal Rules of Civil Procedure ............................................................. 445
Federal Rules of Appellate Procedure..................................................... 447
A. The Appeals Process in the United States ...................................... 447
New York Civil Practice Law and Rules ......................................... 448
IV. Germany ................................................................................................... 452
German Code of Civil Procedure ............................................................. 452
A. The Appeals Process in Germany .................................................... 458
V. France ....................................................................................................... 466
French Code of Civil Procedure ............................................................... 466
Note and Questions .................................................................................. 467
VI. Italy ........................................................................................................... 468
Code of Civil Procedure ............................................................................ 468
A. The Appeals Process in Italy ........................................................... 470
Note and Question ............................................................................ 472
VII. Japan ......................................................................................................... 472
Code of Civil Procedure ............................................................................ 472
A. The Appeals Process in Japan ......................................................... 475
VIII. Comparing Appeal Systems.................................................................... 477
Notes and Questions ............................................................................... 479
Chapter 8. Aggregation of Parties, Claims, and Actions .................... 481

I. Introduction .............................................................................................. 481
xxxviii TABLE OF CONTENTS
II. Joinder of Parties ..................................................................................... 483

A. England ............................................................................................. 483
Civil Procedure Rules 1998 .............................................................. 483
B. Germany............................................................................................ 484
C. Italy ................................................................................................... 485
D. Japan ................................................................................................. 486
III. Joinder of Claims...................................................................................... 495
A. England ............................................................................................. 495
B. Germany............................................................................................ 496
C. Italy ................................................................................................... 496
D. Japan ................................................................................................. 497
IV. Joinder and the Right to Recover Reimbursement: The Example of
Impleader .................................................................................................. 501
A. England ............................................................................................. 501
B. Germany............................................................................................ 502
C. Italy ................................................................................................... 502
D. The United States............................................................................. 502
V. Collective or Representative Actions ...................................................... 504
A. Group Action Through Simple Joinder: Examples from
Germany and Japan ......................................................................... 507
1. Germany: The Deutsche Telekom Litigation ........................... 507
2. Japan: Joinder of Claims as a Method of Aggregation........... 507
B. Litigation by Association.................................................................. 510
1. European Union ........................................................................ 510
Directive 2009/22/EC of the European Parliament and of the
Council of 23 April 2009 on Injunctions for the Protection
of Consumers’ Interests ............................................................ 510
TABLE OF CONTENTS xxxix
2.
Italy ........................................................................................... 512
Consumer Code of 2005 ............................................................ 512
C. Test Cases as a Form of Group Action ............................................ 517
1. Germany .................................................................................... 517
Act on Model Case Proceedings in Disputes under Capital
Markets Law ..................................................................... 517
D. Group Action Through Representative Devices: The Class
Action and Related Procedures........................................................ 526
1. England ..................................................................................... 527
2. Italy ........................................................................................... 527
Consumer Code of 2005 ............................................................ 527
3. Japan ......................................................................................... 531
E. “Funds Solutions” to Collective Harms ........................................... 548
VI. Consolidation of Cases Within a Single Legal System .......................... 553
A. England ............................................................................................. 554
B. Germany............................................................................................ 554
C. Italy ................................................................................................... 554
D. Japan ................................................................................................. 555
Title 28, United States Code—Judiciary and Judicial
Procedure .................................................................................. 556
VII. Future Trends........................................................................................... 559
A. Procedural Aggregation and the Influence of Political and
Social Structures .............................................................................. 559
B. Bridging the Gap Between Substance and Procedure: New
Kinds of Civil Processes and the Example of the Netherlands ..... 561
Chapter 9. Finality and Preclusion .......................................................... 563

I. Introduction .............................................................................................. 563
II. Preclusion Doctrine as Applied by National Courts .............................. 566
A. The United States............................................................................. 566
Notes and Comments ....................................................................... 570
xl TABLE OF CONTENTS
B. England ............................................................................................. 570

Zuckerman on Civil Procedure: Principles of Practice ................... 571
C. Germany............................................................................................ 577
Peter L. Murray and Rolf Stürner, German Civil Justice ............. 578
D. Japan ................................................................................................. 581
Takaaki Hattori and Dan Fenno Henderson, Civil Procedure
in Japan ..................................................................................... 583
E. France................................................................................................ 586
Rolf Stürner, Preclusive Effects of Foreign Judgments—The
European Tradition .................................................................. 587
F. Spain.................................................................................................. 589
Ley 1/2000 ......................................................................................... 591
Robert C. Casad, Issue Preclusion in the Law of Spain: Cosa
Juzgada Positiva ....................................................................... 592
General Observations ....................................................................... 593
Chapter 10. Enforcement of Judgments ................................................. 595

I. Introduction .............................................................................................. 595
II. Agents Responsible for Execution ........................................................... 595
Wendy Kennett, Enforcement: General Report ..................................... 596
III. The Concept of “Execution Title” in Civil Law ....................................... 600
K.D. Kerameus, Enforcement in the International Context ................. 601
A. European Union................................................................................ 602
Wendy Kennett, Enforcement: General Report .............................. 602
B. Japan ................................................................................................. 603
Civil Execution Act ........................................................................... 603
C. Italy ................................................................................................... 604
Alexander Layton & Hugh Mercer, eds. 2 European Civil
Practice ...................................................................................... 604
Elisabetta Silvestri, Enforcement of Civil Judgments and
Orders in Italy: An Overview ................................................... 604
D. Germany............................................................................................ 605
Alexander Layton & Hugh Mercer, eds. 2 European Civil
Practice ...................................................................................... 605
Note ................................................................................................... 605
E. France................................................................................................ 606
Alexander Layton & Hugh Mercer, eds., 2 European Civil
Practice ...................................................................................... 606
Note and Question ............................................................................ 606
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IV. Enforcement of Money Claims and Non-Money Claims Compared ...... 606
K.D. Kerameus, Enforcement in the International Context ................. 608
A. The United States............................................................................. 608
Note ................................................................................................... 609
Note ................................................................................................... 610
B. Germany............................................................................................ 610
C. England ............................................................................................. 611
Zuckerman on Civil Procedure: Principles of Practice ................... 612
D. Italy ................................................................................................... 613
Practice ...................................................................................... 613
Elisabetta Silvestri, Enforcement of Civil Judgments and
Orders in Italy: An Overview ................................................... 614
E. France................................................................................................ 616
Practice ...................................................................................... 616
Question ............................................................................................ 616
V. Proceedings for Execution of Money Claims .......................................... 616
A. Preliminary Remarks ....................................................................... 616
1. Availability of Discovery of Debtor’s Asset ............................. 616
2. Treatment of Competing Creditors ......................................... 618
3. Exemptions ............................................................................... 619
4. Enforcement of Security Rights ............................................... 619
B. Execution on Variety of Properties ................................................. 620
1. Execution on Chattels .............................................................. 620
2. Execution on Claims ................................................................. 620
3. Execution on Real Property ..................................................... 622
a. Japan ................................................................................. 624
Civil Execution Act ........................................................... 624
Takaaki Hattori and Dan Fenno Henderson, Civil
Procedure in Japan ................................................... 625
b. England ............................................................................. 625
Civil Procedure Rules ....................................................... 625
Zuckerman on Civil Procedure: Principles of Practice ... 626
c. Germany ............................................................................ 629
Peter L. Murray & Rolf Stürner, German Civil
Justice ........................................................................ 629
Note.................................................................................... 629
xlii TABLE OF CONTENTS
Astrid Stadler and Wolfgang Hau, The Law of Civil

Procedure ................................................................... 630
Alexander Layton & Hugh Mercer, eds., 2 European
Civil Practice ............................................................. 631
Note.................................................................................... 631
d. The United States ............................................................. 632
Federal Rules of Civil Procedure ..................................... 632
e. France ................................................................................ 633
Alexander Layton & Hugh Mercer, eds., 2 European
Civil Practice ............................................................. 633
Cour de Cassation ............................................................. 633
Question............................................................................. 634
VI. Relief from Execution ............................................................................... 634
A. Germany............................................................................................ 636
Astrid Stadler and Wolfgang Hau, The Law of Civil Procedure ... 636
B. England ............................................................................................. 637
Practice ...................................................................................... 637
C. Italy ................................................................................................... 639
Practice ...................................................................................... 639
D. Japan ................................................................................................. 639
Civil Execution Act ........................................................................... 639
VII. Concluding Note ....................................................................................... 642
Chapter 11. Transnational Litigation...................................................... 643

I. Introduction .............................................................................................. 643
II. Forum Access: Jurisdiction ...................................................................... 644
A. Germany............................................................................................ 644
B. The European Union ........................................................................ 647
Regulation (EU) No. 1215/2012 of December 12, 2012 on
Jurisdiction and the Recognition and Enforcement of
Judgments in Civil and Commercial Matters......................... 647
C. Italy ................................................................................................... 651
Michele Angelo Lupoi, “Part II. Jurisdiction”................................. 651
D. France................................................................................................ 652
French Civil Code ............................................................................. 652
French Code of Civil Procedure ....................................................... 652
TABLE OF CONTENTS xliii
E.Japan ................................................................................................. 654

F. England ............................................................................................. 658
G. The United States............................................................................. 661
H. Canada .............................................................................................. 665
Brandon Kain, Elder Marques, & Byron Shaw, The Van
Breda Trilogy—Part II—A New Test for Jurisdiction
Simpliciter ................................................................................. 666
Comparative Observations .............................................................. 670
III. Forum Access: Forum Non Conveniens/Lis Pendens............................. 674
Linda J. Silberman, Lis Alibi Pendens ................................................... 676
A. The European Union ........................................................................ 680
IV. Recognition and Enforcement of Foreign Judgments ............................ 684
A. The European Union ........................................................................ 686
Laurens Je Timmer, Abolition of Exequatur under the
Brussels I Regulation: Ill Conceived and Premature? ........... 687
B. Germany............................................................................................ 690
C. Italy ................................................................................................... 692
D. Japan ................................................................................................. 693
Uniform Foreign-Country Money Judgments Recognition Act ..... 695
Restatement (Fourth) of Foreign Relations Law, Tentative
Draft No. 1 (March 31, 2014), Part IV. Enforcement—
Recognition and Enforcement of Foreign Judgments in
the United States ...................................................................... 699
F. Canada .............................................................................................. 703
Geneviève Saumier, Recognition and Enforcement of Foreign
Judgments in the Canadian Common Law Provinces ........... 704
G. England ............................................................................................. 706
Adrian Briggs, Civil Jurisdiction and Judgments .......................... 706
xliv TABLE OF CONTENTS
Comparative Observations .............................................................. 708

Chapter 12. Harmonization ........................................................................ 715

I. Introduction .............................................................................................. 715
Michele Taruffo, Harmonization in a Global Context: The
ALI/UNIDROIT Principles, in Civil Litigation in a Globalising
World ................................................................................................. 716
Notes ......................................................................................................... 717
II. Is Harmonization Desirable? ................................................................... 719
Gerhard Walter and Samuel P. Baumgartner, Utility and Feasibility
of Transnational Rules of Civil Procedure: Some German and
Swiss Reactions to the Hazard-Taruffo Project .............................. 720
Notes ......................................................................................................... 723
Mirjan Damaška, The Uncertain Fate of Evidentiary Transplants:
Anglo-American and Continental Experiments ............................. 724
Notes ......................................................................................................... 725
III. Economic Analysis of Harmonization of Procedure ............................... 725
Geoffrey P. Miller, The Legal-Economic Analysis of Comparative
Civil Procedure ................................................................................. 726
Notes ......................................................................................................... 727
IV. Treaties as Instruments of Harmonization ............................................ 728
Société Nationale Industrielle Aérospatiale v. United States District
Court for the Southern District of Iowa .......................................... 728
V. Regional Harmonization: Toward European Civil Procedure? ............. 738
Vincenzo Varano, Civil Justice Systems in Europe: Current
Approximation Trends ..................................................................... 738
Note ........................................................................................................... 739
VI. Additional Trends..................................................................................... 741
Nicoló Trocker and Vincenzo Varano, Concluding Remarks, in The
Reforms of Civil Procedure in Comparative Perspective ............... 741
Note ........................................................................................................... 745
Questions .................................................................................................. 747
INDEX ................................................................................................................. 749
CHAPTER 1
AN INTRODUCTION AND OVERVIEW

■ ■ ■
I. INTRODUCTION
A. WHY TAKE A GLOBAL APPROACH TO
THE STUDY OF CIVIL PROCEDURE?
If civil procedure has been part of your law studies, you have so far
probably focused on how courts resolve disputes in your nation. We think
it is desirable to put the subject into a broader perspective by introducing
you to the procedures used in other nations. As Professors Henry Hart
and Albert Sacks famously explained a half century ago:
[T]he possible variations in particular types of procedures are
endless. So also are the variations in the relationships between
each type of procedure and the system as a whole. * * * [N]o
social question can be intelligently studied without a sensitive
regard to the distinctive character of the institutional system
within which the particular question arises.1
To this end, we have prepared materials that can be studied along
with national rules that deal with a functionally similar stage of the
litigation process. This brief introductory note will give you some
background by sketching out the major differences among the various
systems in use throughout the world. We begin by explaining why we
think the global method—incorporating international, transnational, and
comparative approaches—is useful and by noting a few of the problems
that this method inevitably faces.
Good reasons favor taking a global approach to the study of civil
procedure. For one, it highlights the reality that procedural systems are
the product of choice; there is no universal consensus on how best to serve
the values of accuracy, fairness, and efficiency, and even on whether
these are the values that a procedural system ought to serve. Exposure to
the choices made by some other systems will help you to think critically
about your own and will present alternatives to consider. Professor John
Langbein, for example, has argued that the American procedural system
leaves much to be desired when compared to that of Germany. His article,
1 Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in the
Making and Application of Law 6 (William N. Eskridge, Jr. and Philip P. Frickey eds., 1994).
1
2 AN INTRODUCTION AND OVERVIEW CH. 1
The German Advantage in Civil Procedure,2 has prompted a great deal of

discussion.3 More fundamentally, because rules of procedure have
political implications—affecting such issues as the enforcement of rights,
the distribution of wealth, and the allocation of opportunity—it is
important, as Professor Mauro Cappelletti argued, to consider a
procedural rule’s “ideological foundations, its philosophical background,
its socio-political impact.”4 We suggest that you consider the
consequences for different social sectors and interest groups of the key
differences among the procedural systems that are presented.
Second, the study of other procedural systems will let you see more
clearly the inter-connection of procedural rules. Professor Andreas
Lowenfeld compared the development of a procedural system to the
child’s game of pick-up-sticks, in that it is very hard to move one piece
without disturbing the whole board.5 This is also what lawyers mean
when they refer to procedural systems as a “seamless web.” Whether or
not a jury is used to decide issues of fact, for example, will affect the way
in which the facts of a dispute are investigated and presented, as we will
describe below.
Finally, and most obviously, there are pragmatic considerations to
taking a global approach to civil procedure, stemming from the increasing
internationalization of both the law and the legal profession. In the
course of your careers, many of you will be called to represent clients
whose interests and needs transcend the borders of your home nation.
Whether this means litigating on behalf of human rights, representing a
parent in a custody dispute with a spouse in another country, or
negotiating a multi-national contract, it will be essential to have some
sense of how current or future disputes would be handled in the relevant
foreign legal system.6 Moreover, as stewards of the legal system, you will
bear the primary responsibility for making changes to today’s procedural
system that respond to the needs of a globalized economy. It will be up to
you to construct methods for fair, accurate, and efficient adjudication of
disputes involving parties from many parts of the world. In sum, we hope
2 52 U. Chi. L. Rev. 823 (1985).

3 See, e.g., Oscar G. Chase, Legal Processes and National Culture, 5 Cardozo J. Int’l and
Comp. L. 1 (1997); John C. Reitz, Why We Probably Cannot Adopt the German Advantage in
Civil Procedure, 75 Iowa L. Rev. 987 (1990).
4 Mauro Cappelletti, Social and Political Aspects of Civil Procedure—Reforms and Trends
in Western and Eastern Europe, 69 Mich. L. Rev. 847, 882 (1971).
5 Andreas F. Lowenfeld, Introduction: The Elements of Procedure: Are They Separately
Portable?, 45 Am. J. Comp. L. 649, 652 (1997).
6 Those of you interested in human rights litigation might enjoy looking at Laurence
Helfer, Forum Shopping for Human Rights, 148 U. Pa. L. Rev. 285 (1999), for a discussion of the
impact of different procedural systems on the enforcement of international norms of justice.
SEC. I INTRODUCTION 3
that you find a global approach to the study of civil procedure to be both
stimulating and informative.7
B. CATEGORIZING THE WORLD’S LEGAL

SYSTEMS AND THEIR PROCEDURES
The world’s modern legal systems are for convenience usually divided
into two major groupings, the “common law” and the “civil law”
countries.8 The United States is a member of the common law family, like
other nations with legal roots in England. Most other countries share the
civil law tradition, which originated in the Roman Empire and then
spread to Continental Europe. This may have been the result of prior
colonialism (as with Latin America) or conscious adaptation from foreign
systems (as with Japan and China). Although there are significant
differences in the historical development and styles of legal reasoning
between the common law and civil law systems, most important for your
global appreciation of civil procedure are the differences in the rules that
govern disputes in court.
(Please keep in mind the different uses of the word “civil.” “Civil”
procedure is the process used for typical private disputes such as tort or
contract and is distinguished from the procedure used to prosecute
crimes. The word “civil” has an entirely different meaning when used to
differentiate between the “common law” and “civil law” families. In the
latter situation, “civil” refers, as already noted, to the legal system
originating in Continental Europe.)
Differences in the rules of civil procedure have led to the
controversial division of procedural systems into “adversarial” and
“inquisitorial.” Commentators often refer to procedure in common law
(Anglo-American) countries as “adversarial” because this system vests a
good deal of control over the proceedings in the parties and their
attorneys, which allows for a sharper clash of forensic skills in the
courtroom. Under the civil law system, on the other hand, the process
tends to reserve more authority over the law suit to the presiding judge,
even including responsibility for questioning witnesses; this prompts the
“inquisitorial” label. Many observers emphasize this differential
allocation of authority between the parties and the judge as the defining
distinction between common law and civil law procedural systems.
However, the literature also sharply criticizes this terminology, in part
7 See Helen Hershkoff, Integrating Transnational Legal Perspectives Into the First Year
Civil Procedure Curriculum, 56 J. Legal Educ. 479 (2006).
8 The continued division of the world’s procedural systems into the classic common law/
civil law divide is explored and debated in Common Law, Civil Law and the Future of Categories
(Janet Walker and Oscar G. Chase eds., 2010) (hereinafter “Walker & Chase”), an edited
compilation of papers presented at a conference held in Toronto in 2009. For a discussion of this
categorization and of its limitations, see also Schlesinger’s Comparative Law 177–279 (7th ed.
2009 by Ugo Mattei, Teemu Ruskola, Antonio Gidi) (hereinafter, “Schlesinger”).
because the categories are imperfect at best—differences between nations

within a category can be considerable.9 Thus, although the United States
and England are both “common law” countries with “adversarial”
procedural systems, one finds many differences between them.10 Most
notably, the availability of a jury in civil cases, which is common in the
United States, has been virtually eliminated in England. In addition, one
can point to an erosion of some of the differences between the common
law and civil law systems.
Moreover, the words “adversarial” and “inquisitorial” are
mischievous in this context in another way: many Continental lawyers
deny, sometimes vehemently, that their system is “inquisitorial” in any
pejorative sense. They reject any implication that their processes are
similar to the infamous “Inquisition” of the medieval Church.11 And it is
certainly the case that the dispute resolution procedures of all modern
states share such deep principles as the right to be heard and to present
evidence, the right to representation by counsel, and the right to an
impartial adjudicator.
Nonetheless, the labels serve as useful shorthand, so long as we
recall their limitations. Even Professor Mirjan Damaška, who criticizes
too simplistic a reliance on this division, agrees that “the core meaning of
the opposition remains reasonably certain. The adversarial mode of
proceeding takes its shape from a contest or a dispute: it unfolds as an
engagement of two adversaries before a relatively passive decision maker
whose principal duty is to reach a verdict. The non-adversarial mode is
structured as an official inquiry.”12
We now turn to brief descriptions of the systems represented by the
authors of this book. We begin with an overview of the civil law system,
follow that with two “common law” examples—England and the United
States—and conclude with Japan, whose system combines elements of
civil law and common law procedure. These will help you to better
understand the chapters that follow, each of which deals with a different
aspect of procedure emphasizing the functions to be served.
QUESTIONS
What are the principal differences among the systems described? To
what extent might they be influenced by the culture or history of the nation
9 See Mirjan R. Damaska, The Faces of Justice and State Authority 3–6 (1986)
(hereinafter, “Damaska”).
10 Id. at 5.
11 See id. at 4 (noting that “[t]o Anglo-Americans, * * * the two concepts are suffused with
value judgments: the adversary system provides tropes of rhetoric extolling the virtues of liberal
administration of justice in contrast to an antipodal authoritarian process”).
12 Id. at 3.
SEC. II AN OVERVIEW OF DIFFERENT PROCEDURAL SYSTEMS 5
at hand? Do any of the systems strike you as noticeably preferable to others?

On what basis?
II. AN OVERVIEW OF DIFFERENT

PROCEDURAL SYSTEMS
A. THE CIVIL LAW SYSTEM
1. Introduction
This section sketches the main features of the civil law model of
procedure. However, some early warnings are appropriate. Unless we
want to fall into stereotypes, it is not correct to let the reader assume that
there is only one model of civil law procedure, and that such systems of
procedure as, for example, the German and the Italian are just the same.
There are as many differences among civil law systems as between the
common law systems of England and the United States.
The second warning concerns the differences between civil law and
common law procedure. In a historical perspective, it may be easy to
identify certain key differences between the two, which have contributed
to the establishment of two models of procedure. As is well known, the
jury trial has informed the common law tradition and explains the main
features of that procedure. The concentration, orality, and immediacy of
procedure, especially at the proof taking stage, are certainly related to the
presence of the jury, as well as a passive role for the judge and the
markedly adversarial nature of the proceeding. On the civil law side, no
significant lay participation similar to the jury has ever been an
important aspect of procedure. The fact-finding process has always been
entrusted to a professional judge, endowed also with initiative powers;
the proceeding, in turn, has been characterized by a piecemeal unfolding,
by the predominance of writing, and the lack of immediacy.13
If there have been, and there are still, differences, though less and
less crucial, the other stereotype to be avoided (as already noted) is that
between a common law “adversarial” model and a civil law “inquisitorial”
model. By now, a general consensus has developed that the two models
are less at odds than they have often been described; that they share the
same fundamental principles (independence and impartiality of the
adjudicator; right to be heard) and attribute the same purpose to civil
procedure—the efficient and just dispatch of disputes; and that they both
stick to a private conception of procedure. The role of the judge can be
more or less active; she can be vested with more or less penetrating
powers (and she is certainly more active, and vested with broader powers
13 On the historical differences between common law and civil law procedure, see Mauro
Cappelletti and Bryant G. Garth, Civil Procedure, Ch. 1, at 3–8, XVI International Encyclopedia
of Comparative Law (1987).
in the Austrian or German model of procedure than in the Italian or in

the common law model—though not in the post-1999 English model), but
procedure in both traditions has always been based on the same principle
of party disposition in its various facets.
With the above warnings in mind, we shall try to identify the
principal core elements of civil law procedure, especially in comparison
with the common law model, through the lenses of German, French, and
Italian procedure. Points deserving to be highlighted at this stage in the
comparison are the organization of the courts, the judiciary, and the
stages of the first instance proceeding, with particular reference to
discovery and proof taking, summary and provisional remedies and their
role, appeals, and enforcement of judgments. A more in depth treatment
will be offered in later chapters.
2. The Machinery of Justice: Courts and Judges in the Civil

Law Tradition
The machinery of justice in a civil law country reflects a distinctively
different approach to the organization of the courts and the judiciary than
its common law counterpart.
Civil law systems organize courts based on a plurality of separate
court hierarchies, as opposed to common law countries that organize
courts on the principle of a single court hierarchy (albeit with some
specialized trial courts, such as “family courts”). The “ordinary” courts in
civil law countries deal only with civil and criminal matters. However,
some civil law countries—Germany, for example—have as many as five
court hierarchies: civil and criminal, administrative, labor, social, and
financial courts,14 each with its own trial and appellate courts. In
addition, judicial review of legislation is entrusted to an ad hoc
constitutional court. In some cases, such as that of France, review has
been considered to be more political than judicial, since the Constitution
of 1958 vested it in a body, the Conseil constitutionnel, which had the
power to check the constitutionality of statutes prior to their
promulgation. However, an important reform of 2008 gave the Conseil
constitutionnel the power to review the constitutionality of statutes also
14 On the organization of courts, see generally Schlesinger, supra note 8, at 489–554. For
Germany, see Peter L. Murray and Rolf Stürner, German Civil Justice, especially Chapter 4
(2004)(hereinafter Murray & Stürner; for Italy, see Vincenzo Varano, Machinery of Justice, in
Introduction to Italian Law 99–124 (Jeffrey S. Lena and Ugo Mattei, eds., 2002);, and, more
recently, Sara Benvenuti, The Italian Machinery of Justice, in Fundamentals of Italian Law
143–162 (Alessandra De Luca and Alessandro Simoni eds., 2014); for France, see Roger Perrot,
Institutions Judiciaires (15th ed. 2012); Jean Vincent, Serge Guinchard, Gabriel Montagnier,
and André Varinard, Institutions Judiciaires (6th ed. 2001) (hereinafter “Vincent”); Loïc Cadiet,
Civil Justice Reform: Access, Cost, and Delay. The French Perspective, in Civil Justice in Crisis
291–346 (Adrian A.S. Zuckerman, ed., 1999).
after their promulgation upon referral of the Cour de cassation and the
Conseil d’Etat.15
Several reasons help to explain the civil law system’s reliance on a
plurality of court hierarchies, including a more rigid conception of
separation of powers and the search for specialization. The use of a
centralized court for constitutional judicial review is further explained by
the plurality of supreme courts and the possibility of conflicts among
them, the relative weakness of the precedential value of their decisions,
and the fact that a career judiciary is not well trained to deal with policy
oriented issues.16 We focus in this section on the system of ordinary
courts, which in a civil law country is typically based on the following
pattern. The jurisdiction over first instance proceedings is usually
distributed between two sets of courts. The jurisdiction of the lower set
extends to relatively small claims, but may also cover certain subjects
independently from the value at stake. In some countries, the judges
vested with this jurisdiction are honorary lay judges, as in Italy since
1991 (giudici di pace); in others, such as France (tribunaux d’instance)17
and Germany (Amtsgerichte) they are professional judges. Lower courts
are distributed all over the country, close to their potential users. In turn,
the higher courts of first instance—Tribunaux de grande instance in
France, Landgerichte in Germany, Tribunali in Italy—are courts of
general jurisdiction, and are generally located in major cities. The
prevailing tradition in the civil law has been in favor of adjudicating
panels, usually sitting with three judges, even in first instance courts of
general jurisdiction. More recently, the trend towards single judge courts
seems to be taking foot, as in Italy, where, however, the Tribunali, since
1998, sit as a three judge panel in a rather substantial number of more
serious or complicated cases, including, for instance, class actions.18
There are two levels of appellate courts. The intermediate courts of
appeal sit as three judge panels, and are generally distributed on a
regional basis. Appeal normally involves a full review of the case and is
not limited to questions of law. The supreme court sits, though not
invariably, in the capital city, and reviews appellate judgments only for
errors of law. Contrary to the common law idea of a supreme court, the
highest courts in the civil law are large bodies divided into several
divisions, civil and criminal, and staffed by several dozens of judges (140
15 See Chapter 3, Section V.

16 For a comparative discussion of the different models of judicial review, see the seminal
book by Mauro Cappelletti, Judicial Review in the Contemporary World (1971).
17 In France, at first instance, there are also special civil courts which are staffed
exclusively (tribunaux de commerce: commercial courts), or at least in part (labor courts: conseils
de prud’hommes; agricultural tribunals: tribunaux paritaires des baux ruraux; social security
disputes: tribunaux des affaires de sécurité sociale) by lay judges representative of the opposing
interests, according to a long standing tradition.
18 On the introduction of class actions in Italy, see Chapter 8, infra.
in Italy, for example). More judges are attached to a division than are
necessary to decide a case.
Turning to the judges themselves, the feature that makes the
comparison with the common law particularly interesting is that judges
in the civil law system are career judges. There may be variations from
one country to the other—in France attendance of the Ecole Nationale de
la Magistrature is required prior to seeking admission to the judiciary
through competition; in Germany, a higher degree of university education
has to be achieved through the second “Staatsexamen”; in Italy, the
national competition is no longer open to all law graduates, but, according
to the Law of July 30, 2007, n. 111, only to law graduates who have
acquired some further qualification, such as a PhD, practice at the bar,
experience in the civil service, etc. However, the fundamental common
principle is that the judiciary is one of the careers open to law graduates,
who, once admitted, proceed toward the upper levels of the hierarchy on
the basis of seniority as well as merits. Professional judges in a civil law
country typically number several thousand (roughly 9,000 in Italy, 8,000
in France and over 20,000 in Germany.19 Interestingly enough, public
prosecutors are part of the judiciary (and counted in those numbers, at
least in France, and Italy), even though the prevailing rule is that of a
career separation between judges and prosecutors.20 Judges in a civil law
country are in some respects similar to civil servants. Moreover, although
civil law constitutions tend to provide for strong guarantees of judicial
independence, these provisions do not inevitably apply, or apply to the
same extent, to prosecutors.
3. The Proceeding of First Instance

The most significant feature of the traditional structure of the first
instance proceeding (“trial” stage) is that it is not divided sharply into a
pre-trial and trial stage, as is the case in the Anglo American model.
Rather, the proceeding unfolds in a piecemeal fashion through an
indefinite series of hearings without any “precisely defined boundaries
between preliminary, evidentiary and plenary proceedings.”21 In these
19 For Germany, Murray & Stürner, supra note 14, at 38, give the figure of 20,969 judges
and add that “[I]n the entire world Germany is number one both in the absolute number of
professional judges employed as well as the number of judges per capita”; for Italy, the Law of
November 13, 2008, n. 181, indicates the number of 9,921 ordinary judges, but only 8,461 are in
service: see www.csm.it/ (last visited March 17, 2017); for France, the number given by the
Conseil Superieur de la Magistrature, at the date of December 31, 2013, is 8,355, but in fact
7,703 of them are in service as judges: see www.conseil-superieur-magistrature.fr/rapports-
annuels-d-activite.
20 The Law of July 30, 2007, n. 111, limits the possibility to move from the bench to the
prosecution, and vice versa.

21 Murray & Stürner, supra note 14, at 14. For a short description of the traditional system
of litigation in Italy, which, although frequently modified since the 1990’s has not solved the
problem of delay seriously affecting the administration of justice, see Vincenzo Varano, Civil
hearings, the case is “prepared,” attempts at settlement are effected,

evidence is offered, admitted and eventually presented, pleadings and
briefs are exchanged, amended, and filed with the court. The judgment of
the court will usually be rendered in written form, sometime after all the
evidence has been taken and the final briefs have been submitted.
However, a number of civil law countries show an important trend of
reform towards adjudicative concentration, aimed at meeting a demand
for the rationalization of litigation and the reduction of delay. This reform
favors a two stage procedural model directed respectively to the
preparation (and possibly the anticipated solution) of the case, and then
to the proof taking and decision, concentrated, if possible, in one single
main hearing. This assumes that there has been a sufficient clarification
and narrowing of the issues in the preparation stage, which is
increasingly being pursued by strengthening the role of the judge. Many
procedural rules in the various countries have this goal in mind. Section
139 of the German Code of Civil Procedure vests with the judge the duty
to clarify the issues, while sections 272–273 give her the power to order a
series of activities in view of a carefully prepared main hearing. Under
the French code, the court may ask clarifying questions from the parties
pursuant to articles 8, 13, 442 of the Nouveau Code de procédure civile
(which is by now referred to as the Code de procédure civile, the
abbreviation being accordingly CPC); in turn, the code takes away from
the parties the direction of the process, and transfers it to the judge who
can mold it according to the difficulty of the particular case (arts. 3, 763–
764 of the CPC).22
A system of fact pleading prevails in the civil law model of procedure.
This means, e.g., that the initial statement of claim must illustrate the
facts at issue, the legal arguments supporting the claim, and must
include offers of evidence, oral and written, and the prayers for relief. The
reliance on fact pleading diminishes the need for American-style
discovery devices, which are largely absent from civil law procedural
systems. However, the approach to discovery is changing in the civil law
world, prompted by the search for concentration as well as the pursuit for
justice on the merits. So, for instance, art. 10 of the French Civil Code, as
amended in 1972, introduces a general duty of procedural disclosure, by
providing that “each party must bring her contribution to the
administration of justice in view of the ascertainment of the truth,” and
that the party who defaults without justification can be forced to fulfill
Procedure Reform in Italy, 45 Am. J. Comp. L. 657 (1997). See also Remo Caponi, Italian Civil
Justice Reform 2009, 14 Zeitschrift für Zivilprozess International 143 (2009).
22 For France, see Frédérique Ferrand, The Respective Role of the Judge and the Parties in
the Preparation of the Case in France; for Germany, see Gerhard Walter, The German Civil
Procedure Reform Act 2002: Much Ado About Nothing?, both in The Reforms of Civil Procedure
in Comparative Perspective 7, 67 (Nicolò Trocker and Vincenzo Varano, eds., 2005).
her duty through the imposition of an astreinte.23 In turn, art. 11 of the

dispositions liminaires of the CPC reaffirms the duty of the parties to
contribute to the proof-taking, and specifies that it will be sanctioned as
far as the disclosure of documents is concerned. Even more interestingly,
French courts have interpreted art. 145 of the CPC so as to facilitate the
securing of documents from the opponent or a third party before, and
independently from, litigation, even beyond the need to conserve or
establish facts upon which a solution of the dispute may depend.24 A
similar trend is evident in Germany, where the 2001 amendments of
§§ 142 and 144 have granted the courts the power to order parties or
third parties to disclose documents in their possession on the simple basis
that they may be relevant to the issues raised for the decision—a nearly
revolutionary reform with regard to the German tradition of procedural
law.25
In some respects, the principle of party presentation dominates the
civil law of evidence as much as it does the common law. Under civil law
procedural codes, the judge does not conduct official investigation: the
court, with limited exceptions, is confined to those proofs which have been
offered by the parties.26 Notwithstanding this crucial similarity, there are
still significant differences between the civil law system’s approach to
evidence and that taken in common law systems.
First, the civil law of evidence historically has relied on the
preponderance of written over oral evidence. Indeed, documents do not
even need to be introduced as evidence: they prove their own existence
unless they are specifically challenged. If they are drafted by a notary,
they are defined as public acts and constitute legal proof, until and unless
they are challenged by means of a very complicated procedure with
criminal connotations. The importance of written evidence is further
enhanced in some countries, such as France and Italy, which restrict,
23 The astreinte is an order of the court to the judgment debtor to pay a monetary penalty to
the creditor for failure to comply with the judgment. What is particularly interesting is that the
remedy has been judicially created and developed, and that it has been recognized by the Law
no. 72–676 of July 5, 1972. See J. Bearsdley, Compelling Contract Performance in France, 1
Hastings Int’l and Comp. L. Rev. 93 (1977). An analogous coercive measure has been introduced
in Italy by the Law n. 69 of June 18, 2009: see art. 614-bis of the Code of civil procedure. See
Caponi, supra note 21, at 150–51.
24 See Gerard Chabot, Remarques sur la finalité probatoire de l’art. 145 NCPC, Dalloz,
2000, at 256.
25 See Walter, supra note 22 at 75–77; Murray & Stürner, supra note 14 at 639–640.
26 See Michele Taruffo, Civil Procedure and the Path of a Civil Case, in Lena and Mattei,
supra note 14, at 168. The author refers to Italy, but the statement applies as well to the civil
law. Under German law, the judge has more power, but will ordinarily hear the evidence which
the parties have presented. The judges can, however, order production of relevant documents
and tangible things on its own motion. “The court is restricted to witnesses named at least by one
of the parties.” Murray & Stürner, supra note 14, at 14.
though with qualifications, oral proof of contracts involving more than a

certain value.27
Secondly, the civil law of evidence is based on the principle of the free
evaluation of evidence, which at least in theory should not leave much
room to the exclusionary rules, so typical of the common law tradition of
the jury. The principle, however, has its exceptions. We have already
mentioned the strong evidentiary value of documents. We can now add
the so called decisory oath (giuramento decisorio), an ancient and seldom-
used relic still surviving in some jurisdictions (France and Italy among
them) according to which if a party accepts the challenge of the opponent
to swear to the truth of a favorable material fact under the threat of
religious and moral sanctions in case of perjury, the oath will determine
the outcome of the case.28 Also to be mentioned is the rule that parties
cannot be heard as witnesses though they can make probative statements
by way of confessions and oaths. The disqualification of the parties is a
firm, though criticized, principle of the civil law codes. In general,
however, the parties can be examined by the judge, and their unsworn
statements will be freely evaluated.29 Thirdly, there are substantial
differences concerning the examination of witnesses. The civil law does
not provide for cross-examination. All the questions are asked by the
judge. The parties are entitled to suggest further questions, but they will
be actually addressed by the judge.30
A final difference concerns expert evidence. The prevailing rule in the
civil law countries requires a court appointed expert, as compared to the
partisan expert system of the common law jurisdiction. The parties, if the
court decides to appoint an expert—who is considered an auxiliary of the
court rather than a witness—may in turn appoint their own. The latter,
however, are not considered a source of evidence.31
Once the proof taking stage is concluded, and the parties have had a
final round of briefs and oral arguments, the court will render its
decision. For common lawyers, it will be interesting to know that the
judgment (i.e. the dispositive part of the decision) is invariably
accompanied by the reasons for the decision—which are considered
everywhere as a requirement of fairness. This requirement is in some
27 See generally Schlesinger, supra note 8, at 777–778.

28 See Taruffo, supra note 26, at 171, who adds that the oath may also be initiated by the
court in two cases: “When there is some evidence of a fact but the court thinks that it should be
supported by a sworn statement” (giuramento suppletorio), or when it may be useful to
determine the value of something (giuramento estimatorio).
29 See the monumental two volume work by Mauro Cappelletti, La testimonianza della
parte nel sistema dell’ oralità 22 (1962).

30 See Schlesinger, supra note 8, at 773–786.
31 See Taruffo, supra note 26, at 172–173. The rule is the same throughout the civil law,
with England coming close under the new Rules of Procedure.

countries enshrined in the Constitution.32 The style of the decision varies

significantly from one country to the other, but two features are common
and noteworthy. First, even if the decision has been rendered by a panel,
neither separate opinions, if any, nor the votes of individual judges are
disclosed—and this can be probably explained by the status of the judge
as a civil servant. Among the notable exceptions are the decisions of all
Spanish courts, and those of the German Constitutional Court. Second, as
compared to the common law, the emphasis is on law rather than on the
facts, to the point that legal journals often omit the publication of the
“facts” of the case—and this has to do with the deductive nature of the
judicial process in the civil law.
4. Special Proceedings
The procedural codes of the civil law area provide for a number of
special proceedings to be used in particular cases. In Italy, for instance,
labor disputes and landlord-tenant cases are handled through a
streamlined procedure aiming “at a quicker and more effective disposition
of cases.”33 In 2009, there was added34 a “fast track” called procedimento
sommario di cognizione) for disputes that fall within the jurisdiction of
the Tribunale sitting as a single judge court, “in order to deal with ‘simple
cases’ in a more flexible and speedy way.”35
Other types of special procedures are used very frequently for the
collection of debts, whenever the claim is not likely to be seriously
contested: the Italian procedimento di ingiunzione and the German
Mahnprozess36 are important examples of summary proceedings
addressed to solve very quickly and effectively questions of that kind. If
32 See, e.g., the Italian Constitution, art. 111 para. 6.

33 Taruffo, supra note 26, at 161.
34 Law no. 69 of 2009 (embodied in art. 702-bis, 702-ter, 702-quater of the Code).
35 Caponi, supra note 21, at 146–48. The most important criticism which can be made of the
new procedure is that the assignment of cases to the fast track is made in the abstract by the
law, not on a case by case by the judge: see id. at 147–148.
36 As to the Italian procedimento di ingiunzione, “[it] is available to the creditor with
written proof of his or her right to monetary payment or to the delivery of movable goods. In such
cases, the creditor may obtain from the court a decree inaudita altera parte * * *. If the debtor
thinks that it has been wrongly issued, the order may be attacked in subsequent proceedings”.
Taruffo, supra note 24, at 161. Sergio Chiarloni, another noted Italian proceduralist, points out
to the importance of the ingiunzione procedure: “Every year in Italy courts issue more
ingiunzione decrees than judgments after ordinary proceedings (617,179 injunctions as compared
to 350,936 judgments in 1992)”. See Sergio Chiarloni, Civil Justice and its Paradoxes: An Italian
Perspective, in Zuckerman, supra note 14, at 272. The Mahnprozess, or statutory warning
procedure, can be used to get prompt enforcement of claims for the payment of money which are
not likely to be in dispute. Using preprinted forms creditors can cause their debtors to be served
with warning notices (Mahnbescheide) and notices of impending execution
(Vollstreckungsbescheide) that will ultimately support executions if timely objections are not filed
by the debtors. A simplified procedure also exists for claims based solely on documentary
evidence, such as checks (Urkundenprozess, Scheckprozess). See Murray & Stürner, supra note
14, at 18.
the debtor wishes to contest the order of payment issued summarily by

the court, she will have to initiate an ordinary proceeding.
Provisional remedies aimed at preserving the status quo, and/or at
assuring some kind of temporary relief until a final judgment is entered
are available within the civil law as much as in common law jurisdictions.
Prominent among them is the French référé. Traditionally, it is a
provisional measure which can be granted by the judge in cases of
urgency and in the absence of a serious question (CPC, art. 808) in order
to prevent irreparable harm, protect assets, etc. The code, however, as
amended in 1985 and 1987, has introduced other forms of référé,
authorizing the judge to grant an advance payment on a claim (référé-
provision), or to order the performance of obligations (référé-injonction),
as long as the claim is not seriously contested, while the requirement of
urgency has been dropped. As a consequence, resort to référé procedure is
used very frequently, and litigation is often discontinued once the order—
which is subject to enforcement in the same way as a judgment—has been
granted.37 As Fréderique Ferrand has aptly pointed out, the référé has
become a “ ‘safety valve’ for a judicial system overloaded with many
cases.”38
5. Appeals
First instance judgments are subject to appeal as of right in most if
not all jurisdictions, and in most cases. The right of appeal has no
constitutional basis anywhere, but it is so deeply rooted in tradition as to
be considered a part of the fundamental guarantee of a fair procedure.
Appeal normally involves a full review of the case and is not limited to
questions of law. The scope of appeal is traditionally very broad, and may
extend to new facts not asserted below, new defenses and new evidence
not introduced during the first instance proceeding. Though the scope of
appeal has been limited in recent years,39 the comment can still be made
that it may be “considered as a continuation of the first instance
37 On the référé procedure, see generally Loïc Cadiet and Emmanuel Jeuland, Droit
Judiciaire Privé 546–556 (9th ed. 2016). See also Wallace R. Baker and Patrick de Fontbressin,
The French Référé Procedure—A Legal Miracle?, 2 Miami Y.B. Int’l L. 1 (1992).
38 See Ferrand, supra note 22, n. 2.
39 In Italy, for instance, the law of November 26, 1990, no. 353 has reformed significantly
the intermediate appeal. First, it has provided that, as a rule, the first instance judgment is
immediately enforceable. Secondly, the reform has somewhat limited the scope of the appeal, and
prohibited the introduction on appeal of new defenses and new evidence: see Varano, supra note
21, at 671. However, the intermediate appeal is experiencing very long delays. “With the aim of
reducing the number of appeals effectively heard by the courts, the legislator introduced in 2012
a so-called filter, allowing the court to quickly dispose by way of a summary order of appeals that
do not appear to have ‘reasonable chances of being successful’ (arts. 348-bis and ter)”: Nicolò
Trocker and Giacomo Pailli, Basic Features of Civil Procedure, in Fundamentals of Italian Law,
supra note 14, at 175. It is still too early to assess the effectiveness of this reform. See Chapter 7,
Sec. VII infra.
proceedings rather than as a totally separate review”,40 i.e., a “second

instance” proceeding.
According to tradition, appeals to the court of last resort may also be
taken as of right. Review can be in the form of “cassation” or that of
“revision.” In any case, it is limited to errors of law. Under the “cassation”
model, originating in France at the time of the Revolution, the Supreme
Court (Cour de Cassation in France, Corte di Cassazione in Italy) either
affirms the judgment from below, which then becomes final, or quashes it.
In the latter case, the court cannot ordinarily render a judgment of its
own, but must remand the case for a new decision to a different court on
the same level as the court which rendered the judgment that has been
quashed. Under the “revision” model, of German origin, the court is
instead allowed to decide the case on the merits.
Although supreme courts have also the power and the duty to assure
the uniformity in the interpretation and application of the law, they lack
the discretionary case selection power which allows their common law
counterparts to effectively perform that function. As a consequence,
review tends to be considered simply another opportunity to present one’s
case, and thus a “third instance.” This means, in turn, that thousands of
appeals are brought every year to the supreme courts, and that they
render thousands of decisions, which lack the precedential value attached
to decisions of the House of Lords (now the Supreme Court of the United
Kingdom) or the Supreme Court of the U.S. Only in recent years have
some legal systems such as France, Germany, and Spain introduced
filters aimed at reducing the caseload and backlog of their supreme
courts, so that they can perform more properly their role.41
Decisions of the highest courts are not subject to other appeals. In
Germany, however, an appeal may lie to the Federal Constitutional Court
against decisions which are alleged to violate a fundamental right
protected by the Federal Constitution (Bundesverfassungsbeschwerde).42
The European Court of Justice and the European Court of Human
Rights, often referred to as the “Strasbourg Court,” have played
increasingly important roles. The former has jurisdiction over the
European Union; the latter concerns those countries which have signed
the European Convention for the Protection of Human Rights and
Fundamental Freedoms, and include nearly all European countries
including Russia and Turkey. Courts of the European Union countries
may—or must, if they are the court “against whose decision there is no
40Murray & Stürner, supra note 14, at 16.

41Recently, also Italy has tried to introduce some kind of filters in order to reduce the
workload of the supreme court, but commentators doubt that they may serve the purpose, and in
any case the limited application experience makes it hard to predict whether they can achieve
some effective result: see Chapter 7, Section II, infra.
42 Murray & Stürner, supra note 14, at 408–417.
judicial remedy under national law”—refer issues concerning the

interpretation of European Law to the European Court of Justice, whose
decisions will be binding on national courts.43 On the other hand, parties
who allege violations of the European Convention may apply to the
Strasbourg Court for relief against their own government, after having
exhausted all available administrative or judicial appeals in the signatory
state.44
6. Enforcement of Judgments
The general rule is that final judgments are automatically
enforceable. Judgments subject to appeal are also immediately
enforceable, though a security may have to be posted.45 If the judgment is
not complied with, the judgment creditor will seek compliance in court,
opening an execution proceeding which is everywhere complicated, and
somewhere—as in Italy—slow and ineffective.46 Execution of money
judgments is directed against the property (chattels, real estate, and
intangible property) of the judgment debtor, which will be sold at the
latter’s expense in order to satisfy the judgment creditor. Enforcement of
judgments not for money, and in particular decrees for specific
performance, is supported by coercive measures in Germany and France,
and recently also in Italy.47 The difference between German and French
law is that according to the former the fine imposed on the recalcitrant
judgment debtor goes to the state (§ 890 ZPO), while the French astreinte
accrues to the judgment creditor.48
7. Alternative Methods of Dispute Resolution

The tradition prevailing in the civil law systems does not favor the
resort to alternative methods of dispute resolution on a large scale similar
to that which characterizes the recent developments in the common law
jurisdictions. Due to a different cultural perspective, the civil law
procedural systems emphasize the importance of the decision of the judge
as the normal way of disposing of the controversies. The right to sue is
seen as the right to a judge and a decision by the judge.
In recent years, however, many European countries have witnessed
“an increase in out-of-court mechanisms of dispute resolution, based on
the growing awareness that the machinery of state justice is unable to
43 See art. 234 (formerly art. 177) of the European Treaty.

44 The decision by the ECHR is binding on the petitioner, the government of the country
against which the case has been taken, and the courts of that country. The Court may render a
declaratory judgment to be implemented through national judicial relief or may grant damages.
45 See, e.g., Murray & Stürner, supra note 14, at 446 (Germany).
46 See Taruffo, supra note 26, at 177–179.
47 See art. 614-bis of the Code, introduced by the Law no. 69 of 2009, and note 23 supra.
48 For an exhaustive comparative treatment, see Schlesinger, supra note 8, at 879–885,
especially at 884.
meet an ever growing demand of justice. In a number of areas there are

conciliatory procedures that aim at favoring settlements. In some areas
the possibility to resort to the judge is made conditional upon the
completion of the conciliatory procedure.”49
The Directive 2008/52EC of the European Parliament and of the
Council on certain aspects of mediation in civil and commercial matters50
has caused interesting developments in many member States, such as
Germany and France, where the scope of the implementing acts exceed
the requirements of the Directive. While the latter provides only for cross-
border and commercial disputes, the German statute and the French
Ordonnance broaden its scope to cover also mediation inside the country,
irrespective of the place of residence of the parties concerned. In Italy, the
legislative decree no. 28 of March 4, 2010 went as far as providing for a
mandatory mediation attempt for a large number of matters as a
requisite to institute judicial proceedings. This part of the law was
quashed by the Constitutional Court on a technical profile in 2012, but
was reinstated.51
8. The Performance of the Civil Law Procedural Model:

A Tentative Assessment
Having sketched out the civil law model of procedure, we attempt
here an assessment of its performance. We start from the premise made
at the outset: just as there are differences among the various procedural
systems that share the civil law model, so there are differences from the
perspective of actual performance.
As to Germany, for instance, Professor Rolf Stürner, one of the
authors of this book, states that the German civil litigation system works
well in that private rights are vindicated according to the norms of law.
He adds that some critics have observed that the relatively low costs and
efficient processes incentivize the use of the courts too readily.52 To the
other extreme is Italy, whose procedure is characterized by such a
pathological delay as to warrant the statement: “The Italian civil process
is largely useless to citizens who ask for justice.”53
Statistical data confirm the above statements. They indicate that in
Italy an average of almost ten years is needed for the final determination
of a civil dispute through first instance, appeal, and review by the Corte
49Trocker & Pailli, supra note 39, at 181.

50Official Journal L 24.5.2008, at 3.
51 Art. 84 of the Law decree of June 21, 2013, no. 69, as converted by the Law of August 9,
2013. Trocker & Pailli, supra note 39, at 181–82. The basic argument used by the Constitutional
Court was that the enabling legislation did not authorize the Government to adopt a mandatory
mediation. See id. at 182, n. 17.
52 Murray and Stürner, supra note 14, at 19.
53 See Chiarloni, supra note 36, at 264.

di cassazione. This figure explains the countless decisions rendered by the

European Court of Human Rights against Italy for the violation of the
right to a reasonable duration of proceedings (art. 6, para. 1 of the
European Convention).54 France and Germany fare incomparably better
with regard to delay. In France, Frédérique Ferrand reports an average
duration in 2001 of 9.1 months before the court of first instance of general
jurisdiction; 17.7 months before the Cour d’appel and 24.8 months before
the Cour de Cassation.55 Even more impressively, in Germany, the
average duration in 1998, of a first instance proceeding before the
Landgericht was 6.7 months; of an appellate proceeding before the
Oberlandesgericht, 8.5 months; while the Bundesgerichtshof disposed in
“less than 6 months in 30% of the cases and less than a year in 70% of the
cases.”56
From the point of view of costs, the civil justice systems which we
have briefly discussed can be commented upon favorably. Once again, a
statement by Murray and Stürner may be quoted to illustrate the
situation in Germany and to some extent in other countries as well: * * *
“the German system offers parties access to justice at relatively modest
cost. The division of labor between judge and lawyers and the effect of the
statutory fee schedule and fee shifting regime combine to moderate the
parties’ overall costs to conduct litigation in German courts.”57
Furthermore, in Germany and to varying degrees in other civil law
countries such as France and to a lesser extent, Italy, a rather
sophisticated system of state funded legal aid contributes to attenuate the
economic barriers to access to justice for its low income citizens. At the
same time, legal cost insurance schemes are becoming rather common,
which in general reimburse the policy-holder’s costs for their attorney’s
fees as well as the opponent’s legal costs in case of defeat.58 Finally, we
54 See Varano, supra note 14, at 111–112. The statistical data confirm year after year the
deterioration of the Italian civil process, and the failure of the ‘urgent measures’ enacted by the
legislator almost every year, which demonstrates, in the end, the lack of an organic coherent
reform project. The Annual Report on the administration of justice by the President of the Court
of Cassation, indicates an average delay of 358, 437, and 1051 days respectively for proceedings
before the Justices of the peace, the tribunals and the courts of appeal, while a proceeding before
the Court of Cassation takes as long as an average of 1293 days. The Report, dated January 20,
2014, can be seen at www.giustizia.it. It may be interesting to underline that the excessive
Italian delay is one of the reasons which discourages foreign investments in Italy, which, among
other things, is one of the countries where the rate of corruption is high but the relevant
proceedings may not reach their conclusion due to the statute of limitation. See EU Anti-
Corruption Report, COM (2014) 38 Final.
55 See Ferrand, supra note 22, at note 30. The Annuaire Statistique de la Justice, Edition
2011–12, seems to indicate that the performance of French courts, as far as delay is concerned,
has even improved: in 2010, the average duration of a proceeding decided on the merits is 4.8
mos for the tribunaux d’instance, 9.3 months for the tribunaux de grand instance, 12.3 months
for the cours d’appel, 15.2 months for the Cour de Cassation.
56 See Murray & Stürner, supra note 14, at 82–83.
57 Id. at 19.
58 For Germany, see id. at 116–125; for France, see Cadiet and Jeuland, supra note 37, at
65–68.
may ask how the civil law and common law processes compare with
respect to producing judgments that accurately reflect the facts in
dispute. On this score, the American reliance on lay juries whose verdicts
are unsupported by any offering of supportive reasons is suspect in the
minds of civil law jurists. Similarly criticized is the passivity of the
American judge, who rarely acts to remedy the inequality of “litigation
arms” when one party enjoys enormously greater resources than another.
On the other hand, common law jurists are uncomfortable with the
relative passivity of the civil law attorney at the trial and the absence of
vigorous cross-examination of witnesses. Moreover, the lack of probing,
lawyer-driven pre-trial discovery in the civil law world may prevent the
proverbial “smoking gun” from coming to light. Since the accuracy of any
sui generis dispute can never be tested scientifically, we urge the reader
to explore these arguments in the light of the detailed materials that
follow.
B. THE COMMON LAW SYSTEM—ENGLAND

1. Introduction
Civil litigation, whether in the County Court, High Court, or Court of
Appeal (Civil Division) in England and Wales (hereafter England) is
governed by the Civil Procedure Rules 1998 (the CPR).59 Practice
Directions (PDs) supplement individual rules within the CPR.60 They are
intended to elaborate the rules by, for instance, providing detailed
provisions prescribing their application or explaining how the rules ought
to be applied. Freestanding PDs, which do not supplement the CPR,
provide additional rules where the CPR does not provide a relevant rule.
Guidance further supplements the rules and PDs.61
2. Outline of Litigation in England
a. The Overriding Objective—Procedure’s Aim

The overriding objective of the CPR is to enable the court to deal with
cases justly and at proportionate cost (CPR r. 1.1). The court must
interpret rules and manage cases to achieve this aim. Parties are
required to assist the court in doing so. Dealing with a case justly and at
59 Specialist proceedings, such as insolvency, bankruptcy and family proceedings fall
outside the scope of the CPR and are governed by their own procedural codes. The CPR is
delegated legislation, drafted by the Civil Procedure Rule Committee, and approved by
Parliament: Civil Procedure Act 1997.
60 Issued by the Master of the Rolls (the President of the Civil Division of the Court of
Appeal) under delegated authority from the Lord Chief Justice with the concurrence of the Lord
Chancellor: Constitutional Reform Act 2005. The power to make PDs derives from the courts’
inherent common law jurisdiction to manage its own process.
61 See generally: the Chancery Guide; The Queen’s Bench Guide; The Admiralty and
Commercial Court Guide; the Mercantile Court Guide; the Technology and Construction Court
Guide; the Intellectual Property and Enterprise Court Guide.
proportionate cost includes: ensuring that the parties are on an equal

footing; saving expense; dealing with the case in ways which are
proportionate to the amount of money involved, the importance of the
case, the complexity of the issues; and the parties’ financial position;
ensuring that it is dealt with expeditiously and fairly; allotting to it an
appropriate share of the court’s resources, while taking into account the
need to allot resources to other cases; and enforcing compliance with
rules, practice directions and orders. Through ensuring that cases are
dealt with justly the court seeks to secure justice on the merits at
proportionate cost and reasonable time, while also ensuring that it
effectively rations access to the courts in an equitable manner across all
litigants. A corollary of this is that English procedure no longer
understands its primary aim to be the achievement of justice on the
merits. Under the CPR there is thus a greater emphasis on distributive
justice than was previously the case in England.62
b. Proportionality
Proportionality has not, historically, been a fundamental principle of
English procedure. With the introduction of the CPR’s overriding
objective it has now taken on a central role. Its importance stems from
the shift away from the idea that procedural fairness is something to be
determined by reference to individual proceedings, but is rather to be
assessed by a consideration of how the civil justice system operates as a
whole. This will inevitably require individual cases to be considered in
assessing whether process is fair. It goes beyond that however, with fair
process assessed as a function of securing effective access to the court to
all litigants, of the need to secure the public interest in the efficient use of
the courts’ resources, and securing public confidence in the justice system.
To do this proportionality has two aspects: individual and collective
proportionality.
The former requires process to be carried out so as to ensure that a
proper balance is struck between the costs of claim and the value of the
benefit to be obtained from a merits-based judgment. Costs are to be no
more than proportionate, for instance, to the value of the claim. This may,
for instance, require the court to limit evidentiary disclosure or the
number of expert witnesses called by the parties. Collective
proportionality requires the court to ensure that each individual claim
has access to an equitable, rationed share of its resources. This aims at
maximizing access to the civil justice system, and is primarily to be
achieved through effective case management carried out consistently with
the overriding objective. This aspect of proportionality may where there
has, for instance, been repeated failures by litigants to comply with
procedural obligations to strike a claim out for non-compliance and refuse
62 John Sorabji, English Civil Justice after Woolf and Jackson (Cambridge, 2014).
relief from that sanction or to bar a party from relying on probative, and
otherwise admissible, evidence. As the courts have acknowledged while
such measures may produce what appears to be, and may well be,
injustice in the individual case, they are justified by the need to secure
the wider public interest in the efficient management of all claims and in
securing effective access to the courts for other litigants.
c. Pre-Action Protocols
Before parties commence litigation they are required to enter into
discussions with each other in order to do two things: seek to resolve the
dispute amicably or, if that is not possible, facilitate the more efficient
prosecution of their claim before the courts. This is required by a
combination of a PD governing pre-action conduct (PD-PAC) generally
and a number of specific Pre-Action Protocols (PAPs), which taken
together set out a code of best practice for the pre-action stage of a range
of different disputes.63
The PAPs work by requiring parties, within short, specified periods
of time, to engage in: the early identification of the issues in dispute and
exchange of information, including disclosure of relevant (including
disclosure if relevant) and the early appointment of experts. They require
parties to give specific consideration to engaging in any of a variety of
means of alternative dispute resolution (ADR), emphasizing that
litigation ought to be a last resort for the parties. They thus seek to foster
an early ‘cards on the table’ approach to dispute-resolution, better merits-
assessment by the respective parties and consensual settlement.
The PAPs are not mandatory. Apart from the PD-PAC they do not
have the force of law. Notwithstanding this, compliance with them is both
advisable and expected, and they play a considerable role in the litigation
process. Non-compliance with an applicable PAP may also result in the
court making an adverse costs order against the party responsible at the
conclusion of proceedings (CPR r.44.2(5)(a)).
d. Commencing and Serving Proceedings

There are two means by which proceedings can be commenced. The
principal mechanism is through using a CPR Part 7 claim form. In claims
where there is, for instance, no factual dispute, an alternative mechanism
exists: that provided through the use of a CPR Part 8 claim form. Issuing
the relevant claim form, which must set out basic details such as who the
parties are, the nature of the claim, the remedy sought and its value if it
is a claim for damages, in either the County Court or High Court formally
commences legal proceedings. The claim form also provides the defendant
63 A full list of the PAPs can be found at: https://www.justice.gov.uk/courts/procedure-rules/
civil/protocol.
with information on how and when to respond to the claim. It can also be
accompanied by detailed Particulars of Claim, which fully set out the
facts and allegations of the claim. These can also however be sent
separately. The claim form and particulars of claim, along with the
defense, are known as ‘statements of case.’ Once a claim form is issued a
claim can no longer be statute-barred, assuming it is issued prior to
expiry of any relevant limitation period. Historically the party issuing a
claim was known as the plaintiff. Since 1999 the term plaintiff is no
longer used and has been replaced by ‘claimant’. Service has two distinct
aspects: deemed and actual service. In order to ensure that proceedings
can continue where a defendant does not, for whatever reason,
acknowledge service or file a defense, rules specify the date on which
service is deemed to have taken place.
e. The Defendant’s Response

A defendant to a claim is under no duty to respond to it but if the
defendant chooses not to respond to the claim, the claimant is thereafter
able to seek a default judgment (see below).
A defendant may defend a claim on procedural grounds, by disputing
the court’s jurisdiction to try the claim, or on substantive grounds by
disputing the merits of the claim. If they choose to contest the claim on
both grounds, the jurisdictional issue will have to be resolved first. In
order to defend the claim the defendant must serve a defense on the
claimant and file it with the court. The defense must deal with each of the
allegations set out in the claim form. A defendant has three options here.
Allegations can be admitted or denied. If they are denied, the defendant
should set out positive reasons why they are denied and, if it is the case,
any positive alternative. If the defendant sets out a positive alternative,
the claimant is able, in a further statement of case known as a Reply, to
respond to it.64 Finally, if the defendant is not in a position, because the
allegation is for instance outside his or her knowledge, they can put the
claimant to proof. If a defendant takes none of these options and simply
does not respond to an allegation they are deemed to have admitted it.
f. Default Judgment
Where a defendant fails to respond to a claim, the claimant can apply
to the court to enter judgment in default unless the defendant has applied
to have the claim struck out as an abuse of process or has applied for
summary judgment, has admitted the claim or has satisfied the claim.
Assuming none of these issues arise, in order to obtain a default judgment
a claimant must satisfy the court that the defendant has failed to file
with the court either a document acknowledging service of the claim or a
64 Further statements of case are possible. They are however extremely rare and require
the court’s permission.

defense and that the time to file them has expired. If both conditions are
satisfied a court officer will enter judgment as an administrative act.
g. Summary Judgment and Strike Out

In addition to default judgment, the CPR provides two forms of
truncated procedure through which proceedings can be determined
without recourse to the full pre-trial and trial process: summary
judgment and strike out. Unlike default judgment, which involves no
assessment of the substantive merits of a claim, both forms of truncated
procedure require the court to make a determination of the merits of the
claim, albeit the latter can also be based on procedural non-compliance.
Either a claimant or defendant can obtain summary judgment. In
order to obtain such a judgment the court will need to be persuaded on
the evidence available at the time that the claim or defense has no real
prospect of succeeding if allowed to go to trial or that there is no other
compelling reason to allow the matter to go forward to trial. Summary
judgment can also be obtained on any issue in the proceedings. As a
decision on the merits such decisions are capable of appellate challenge.
Should the court conclude that while summary judgment should not be
granted it can, while refusing the application, give further directions for
the future management of the claim including, for instance, a
requirement that the party against whom judgment was sought give
security for the costs of the claim.
The second form of truncated procedure is that of strike out. Again
either party can apply for such an order, seeking either a claim or a
defense to be struck out. A claim, defense or part of either may be struck
out on three different grounds: first, that it discloses no reasonable
grounds for bringing or defending the claim e.g., the claim form discloses
no cause of action known to English law; secondly, that to allow the claim
or defense to go to trial would amount to an abuse of process or otherwise
obstruct the court’s just disposal of the claim; or, where a party had failed
to comply with a court order, rule of court or PD. It can thus be obtained
on either substantive or procedural grounds. As with summary judgment
a strike out decision can be challenged on appeal.
h. Case Management
Until the CPR’s introduction the management of procedure, and the
progress of claim during its pre-trial phase, lay in the hands of the
parties. In order to secure the reduction in litigation costs, and promote
procedural economy and efficiency, party control of litigation was replaced
with active case management by the court. Such management has to be
carried out so as to further the overriding objective.
The court has a number of different powers that enable it to manage

litigation. The first type of case management power is structural and
seeks to match a claim to the form of process proportionate to its value
and complexity. It seeks to match the nature and level of process to the
value and complexity of the claim by allocating proceedings to a specific
case management or procedural case track. There are three such tracks:
the small claims track, the fast track and the multi-track. The small
claims track is intended for straightforward and low value claims i.e.,
claims below £10,000 or if a personal injury claim below £1,000. The fast
track is aimed at moderately complex and medium value claims i.e., those
above £10,000 but below £25,000. The multi-track is for all claims above
£25,000 in value.
Once a claim is allocated to a track, the second aspect of case
management arises. This seeks to tailor the process to the individual
claim through the court giving specific case management directions or
orders. These orders are wide ranging. They can, for instance, set the pre-
trial timetable e.g., the time within which and by which witness or expert
evidence should be obtained and exchanged by the parties. They can deal
with the scope of disclosure. They can set when the trial is to take place
and how long the trial is to last. Such orders will also specify what steps
the parties have to take to consider engaging in alternative dispute
resolution. The court cannot mandate parties to do so, but it can
encourage the use of ADR in very strong terms and order parties to take
part in an Early Neutral Evaluation. Parties that refuse to take part in
ADR are at risk of adverse cost orders if the court finds that the refusal
was unreasonable. In addition to these powers the court can also direct
the parties to deal with an issue in their dispute on a preliminary basis.
This is usually done if the determination of that issue is likely to
determine the claim as a whole. It can also order to joinder of claims or
require the consolidation of proceedings. In certain circumstances the
court can order to docketing of cases that are allocated to the multi-track
i.e., order that a specified judge only deals with the pre-trial process. This
is ordered where docketing will enable the more efficient and economical
progress of the claim by, for instance, reducing the length of case
management hearings through increased familiarity by the judge with
the proceedings.
The effective management of proceedings requires effective
compliance powers on the part of the court. As such the court has powers
both within the CPR and under its inherent jurisdiction to secure
compliance and to impose adverse consequences on parties who fail to
carry out case management directions appropriately. The court can also
take steps protect its process from abuse by, for instance, imposition of
fines or imprisonment for contempt of court. It can also protect its process
from being abused by individuals who persistently make meritless or
vexatious claims by restricting their access to the court through the

imposition of a civil restraint order. Such orders bar an individual from
issuing proceedings or carrying out litigation without obtaining the prior
permission of the court, such permission to be sought in writing only.
i. Costs Budgeting and Management

Costs management requires the parties to prepare and exchange
costs budgets i.e., a budget of their proposed legal costs for the
proportionate conduct of the litigation. This must be done at the outset of
the proceedings. The court will then consider the budgets, and if the
parties have agreed them record that fact. To the extent the parties
cannot agree on the budgets, the court will determine what they should
be i.e., what costs are proportionate. The budgets can be varied either by
consent of the parties or by the court if necessary to take account of
developments that were not anticipated at the start of the claim. If, for
instance, a particular issue on investigation is more complex and requires
greater work than originally thought the budget could be varied to reflect
the need for additional work and its attendant costs. Once agreed or
approved the court will then manage the claim so as to ensure that the
costs remain within the budgetary limits. Recoverability of costs by the
winning party at the conclusion of the litigation will then also be
determined by reference to the budget. Ordinarily this will mean that
recoverability will be limited by the budget.
j. Rule Compliance
English procedure traditionally took a lax approach to compliance
and an equally liberal approach to granting relief from the adverse
consequences of non-compliance. Relief would generally be granted where
a defaulter could show that a trial on the merits was still possible, that
any prejudice caused by the default to the other party could be
compensated by costs. This approach was taken as the courts understood
procedure’s overarching aim to be the determination of claims on their
substantive merits; to secure justice on the merits.
The CPR and particularly the introduction of the overriding objective
were intended to change this approach. They were intended to introduce a
stricter approach to compliance and a more restrictive approach to grants
of relief. This required the court to not only consider the effect of the
default and any grant of relief on the parties, but also the prejudice to
other litigants they caused. The reform did not take hold however. In
2013 a further attempt was made to introduce the stricter new approach
through amendments to the overriding objective and the power to grant
relief from the consequences of procedural default. Those amendments
emphasized the importance of rule-compliance (CPR r1.1(2)(f) and r.3.9).
In 2014 the Court of Appeal explained the new approach to be

taken.65 The new test requires the court to first consider if the default or
non-compliance was serious or significant. This requires a consideration
of the wider public interest i.e., the effect on other litigants flowing from
the default and application for relief. If this limb of the test is satisfied,
the defaulter has to show that there was good reason for the default. If
this is satisfied, the court has to then consider all the circumstances of
the case in order to ensure that the application is dealt with justly.
k. Interim Measures
There are two broad types of interim measures in English procedure,
those that preserve substantive legal or equitable rights pending trial and
final judgment (‘protective orders’) and those that enable parties to secure
evidence or information (‘process or facilitative orders’).66 Both types of
order are made during the course of proceedings. They can be granted on
either an ex parte or inter partes basis. Where they are granted on an ex
parte basis the court will ensure that the issue comes back before the
court to be reheard on an inter partes basis. In order to safeguard the
respondent’s procedural rights an applicant at an ex parte hearing is
under a duty to give what is known as ‘full and frank disclosure’ to the
court. This requires them to provide the court with all relevant
information whether that supports or is adverse to the grant of an order
in their favor.
(i) Protective Orders

The main and most widely used forms of protective order are: interim
injunctions; freezing injunctions; and security for costs. Other such orders
are: interim declarations; interim payments; and orders for delivery up.
The most common form of interim order is the interim injunction, an
order that requires a party to either refrain from doing something or
requires something to be done. The rationale underpinning the grant of
such an order is to facilitate the court’s ability to secure justice on the
merits at trial. The grant of such an order is dependent on the applicant
establishing that there is a serious issue to be tried in the claim and that
if the order is not granted the applicant would not be capable of being
adequately compensated in damages for any loss. The court will thus
have to assess, amongst other things, the nature of the potential harm to
the applicant of not granting the order, the nature of any harm to the
respondent of granting it, and the ability of both parties to provide the
other with adequate compensation. It must also assess where the ‘balance
65 Mitchell v News Group Newspapers Ltd [2013] EWCA Civ 1537, [2014] WLR 795;
Denton v TH White Ltd [2014] EWCA Civ 906, [2014] 1 WLR 3926.
66 Following Adrian Zuckerman, Zuckerman on Civil Procedure—Principles of Practice (3rd
ed, 2013) (Sweet & Maxwell), chapters 10 and 15.26ff;

of convenience’ lies i.e., does it favor granting or refusing the application.

In assessing this the court will consider a number of factors e.g., the need
to preserve the status quo, the extent to which any harm to either party is
not compensable if they succeed at trial having lost at the interim
injunction stage, the merits of the party’s cases based on the documentary
evidence and submissions at the interim injunction hearings.
A freezing injunction is an interim order that enjoins a party from
dealing with their assets within and, in certain cases, outside the
jurisdiction. They seek to preserve assets from dissipation prior to
judgment and/or to stop them from being removed from the jurisdiction.
While there are a number of factors that must be present to justify the
grant of such an order, the central criterion is that there must be a real
risk of dissipation of assets. They cannot however be obtained in order to
secure security for judgment. If granted they can have domestic or
worldwide effect and act in personem. They are made on an ex parte basis,
as advance notice to a respondent would enable the intended order to be
frustrated. They take effect upon the court making the order. Failure to
comply with the order is punishable as a contempt of court. Such orders
will typical make provision for the respondent to have access to necessary
living expenses, funds to pay their lawyers and other, good faith,
liabilities.
There is generally speaking no mechanism through which a party
can obtain security for the costs of litigation. One exception however
exists in this regard. A claimant, and only a claimant, may be required to
give security for the defendant’s potential litigation costs. Such an order
can only be made if it is just to do so in all the circumstances and one of a
number of criteria is met i.e., that a statute permits the order to be made,
the claimant is not resident in England or, for instance, the European
Union, the claimant is a company and there is good reason to believe it
would be unable to pay the costs, the claimant has either failed to give its
address or given a false address, or has taken steps to avoid paying any
costs liability. If granted the order requires the amount ordered to be paid
into court. Failure to comply with such an order can result in judgment
for the claimant through the defendant’s case being struck out.
(ii) Facilitative or Process Orders

The main forms of facilitative or process order are search orders and
orders relating to the preservation and inspection of property.67
Civil search orders, which were an innovation of the 1970s, enable an
applicant to go onto the respondent’s premises and inspect property and,
where necessary, ensure that it and documents are removed into safe
67 Other forms of such orders are: information orders; disclosure orders; orders for
preparing and filing accounts.

custody. Forcible entry is not permitted, albeit a refusal to grant entry in

the face of an order is a contempt of court, which is punishable by way of
fine and/or imprisonment. The rationale underpinning this order, which
can be made to support the disclosure process (see below) is to ensure that
evidence is not destroyed. Given this such orders are invariably granted
on an ex parte basis. To obtain such an order an applicant must satisfy
the court, amongst other things, that it has a strong prima facie case in
its substantive claim and that there is a serious risk that absent the order
important evidence is likely to be destroyed.
l. Documentary Evidence
English procedure contains a number of different mechanisms
through which documentary, including electronic documents, can be
obtained by parties and adduced in evidence. The nature of documentary
disclosure, which was until 1999 called ‘discovery’, is the same
irrespective of the nature or type of claim that is pursued. It does not, for
instance, vary depending on whether the claim is contractual or tortious.
The primary aim of disclosure is to ensure that all relevant, admissible,
evidence is available at the earliest possible stage of proceedings and,
particularly, at trial. It thus facilitates the ‘cards on the table’ approach to
litigation introduced in the 1990s as well as the achievement of justice on
the merits. It also serves to promote equality of arms through providing
equal access to evidence. It facilitates settlement by enabling parties to
assess the strength of their and their opponent’s evidence, thus
facilitating effective assessment of the merits of their case or of an issue
or issues in the proceedings. It also promotes procedural economy by
reducing the prospect that parties will be surprised at trial by evidence
they have not previously seen, thereby engendering adjournments to
enable them to consider the evidence. And even where a claim does not
settle, where disclosure enables an issue or issue to be resolved it narrows
the dispute thus enabling the court to deal with the trial more
expeditiously.
m. Witness Evidence
Parties may rely on evidence from witnesses of fact. In order to
adduce evidence from a witness of fact litigants must now serve a
statement, known as a witness statement, setting out what the witness
would historically have said during their evidence-in-chief at trial. It
must contain confirmation by the witness that its contents are true. The
witness statement must be served in advance of the trial on all parties
and filed with the court. If it is not possible to prepare such a statement,
the party on whose behalf the witness is to be tendered at trial may
prepare a Witness Summary. This is a document that gives a concise
synopsis of the evidence that it is expected the witness will give at trial.
These documents do not stand as evidence at trial. Finally, witness

evidence can be taken by way of deposition. The use of depositions does
not however form part of the discovery or disclosure process, as in other
jurisdictions such as the United States. It does not provide a means of
obtaining evidence prior to trial. The deposition process can only be used
to secure evidence for trial where it is apparent that a witness will not be
available at trial, for instance because they will unavoidably be out of the
country or they are in the final stages of a terminal illness, their evidence
can be taken by way of deposition.
Parties can also adduce expert evidence. Within their field of
expertise an expert may, for instance, give opinion evidence or give
factual evidence on matters only observable by those with specific
expertise in an area. They may only however give evidence with the prior
permission of the court. The general approach to expert evidence is to
restrict it in terms of numbers of experts. Except in high value and/or
complex cases the presumption is that only one expert, appointed by all
parties jointly will be permitted, known as the Single Joint Expert. Any
expert appointed, whether a single joint expert or a party-appointed
expert is subject to an overriding duty to the court, one that overrides any
duty they might have or instructions received from the party appointing
and paying for them (CPR r.35.1). The court does not have a power to
appoint its own expert.
Until 2011 all witnesses, whether of fact or expert witnesses, had an
absolute immunity from suit for anything they said while giving evidence.
They could not, for instance, be sued for negligence, defamation, deceit or
malicious prosecution in respect of their evidence. In 2011 the United
Kingdom Supreme Court abolished expert immunity from suit in respect
of breach of duty i.e., negligence claims.
n. Evidentiary Privileges
English procedure recognizes a number of evidentiary privileges,
which variously render certain types of documentary or witness evidence
either inadmissible in civil proceedings or immune from compulsory
disclosure.
The most prominent of these privileges is legal professional privilege,
specifically litigation privilege. This renders confidential communications
that pass between lawyer and client, and between a lawyer and certain
third parties, immune from the disclosure obligation. In order to fall
within the ambit of this privilege such communications must come into
being for the purpose of actual or anticipated legal proceedings. Such
communications are however admissible if the client elects to waive the
privilege or if the communication ceases to be confidential for whatever
reason.
Individuals can also rely on the privilege against self-incrimination

in order to refuse to provide information. This privilege, or immunity, is
not however absolute. It has been subject to significant criticism as being,
for instance, unprincipled in scope and application over recent years, with
a number of calls for its abolition or reform. It has also been subject to a
number of statutory reforms that have limited its scope. It has, for
instance, been abolished in respect of certain types of claim (Insolvency
Act 1986, s433). In others it has been replaced with a ‘use immunity’, i.e.,
the privilege cannot be relied on in civil proceedings but any self-
incriminatory material that comes to light in those proceedings cannot be
adduced or used in criminal proceedings (Theft Act 1968, s3(1)).
Other privileges are: without-prejudice immunity, which renders
communications between parties for the purpose of settlement
negotiations inadmissible except in costs-proceedings i.e., those
proceedings following settlement or judgment that are concerned with
determining the parties’ costs liability; public interest immunity, which
renders sensitive matters, such as national security information,
diplomatic secrets, matters concerning the operation of the government or
of policing, both immune from compulsory disclosure and inadmissible.
o. Closed Material Proceedings

In 2013, as a consequence of the Justice and Security Act 2013, a new
form of civil proceedings was introduced; one that the United Kingdom
Supreme Court had previously held was contrary to the common law,
constitutional, right to fair trial.68 This type of proceeding—a CMP or
closed material proceeding—involves a process whereby one party,
usually the claimant, is barred from seeing evidence, which is ordinarily
evidence said to raise issues of national security, the other party relies on.
The evidence is adduced before the court in a session from which the
other party is barred from attending either personally or through their
lawyers. The procedure thus makes substantial inroads into a number of
aspects of due process e.g., proper notice, an effective adversarial hearing,
equality of arms. In order, to a certain extent, to ameliorate these
deficiencies the Attorney-General may appoint a ‘Special Advocate’, who
may be shown the ‘secret evidence’ and may test it before the court. The
Special Advocate is not however instructed on behalf of the party barred
from this part of the proceedings, nor may they provide the party with
another more than the ‘gist’ of what the material contains. The
introduction and use of CMPs remains highly controversial.
68 Al Rawi v The Security Service [2011] UKSC 34, [2012] 1 AC 531.

p. Trial
Historically, civil trials were conducted before a judge and jury. The
court retains a residual power to hold a civil jury trial, in practically all
cases however trials will be conducted before a judge alone. Trials form
the final part of the proceedings. They are structurally distinct from the
pre-trial process and any appellate procedure. Unlike in some civil law
jurisdictions, the trial is a continuous event; a product of its historical
jury trial basis.
The trial has a number of discrete phases. It remains predominantly
an oral process, although the degree of orality has declined over recent
decades. It commences with opening speeches, where the parties’ legal
representative outlines their case. This phase plays less of a prominent
role today, as the parties are required to submit their documentary
evidence, witness statements, legal authorities, and skeleton arguments
(the lawyers’ outline written submissions) well before the trial takes
place. The judge will have read these documents before the trial
commences.
Following the opening, evidence is presented and tested by the
parties. Witnesses are no longer examined-in-chief. Their written, witness
statements are taken to stand as their evidence-in-chief. Oral cross-
examination and re-examination takes place immediately after a witness
has confirmed the veracity of their witness statement. Expert evidence is
given by way of written report. Experts are also subject to oral cross-
examination. Where there are a large number of experts, the court now
has a discretionary power to direct their evidence be given concurrently
through a process colloquially known as ‘hot-tubbing’.
Once the evidential phase of the trial has concluded the parties’ legal
representatives make their submissions on any relevant law, summarize
the evidence and make any final submissions. An ex tempore oral
judgment may be given immediately thereafter. Alternatively, the judge
may indicate the court’s decision with a written judgment to follow, or the
decision and judgment may be reserved until a later date.
q. Appeal
Parties can appeal judicial decisions on grounds of error of fact or
law. Save in a small number of instances e.g., where the liberty of a
person is at stake, appeals can only be brought with the permission of the
court.
r. Offers to Settle
Parties have always been able to make offers to settle litigation. The
CPR introduced a self-contained regime the aim of which was to
encourage early, fair settlement of proceedings. This is set out in highly
technical form in CPR Part 36. It provides incentives to both claimants

and defendants to make and accept such offers. It also provides a means
through which a party can seek to secure a degree of protection against
any potential adverse costs consequences arising from the litigation.
The process enables either party to make an offer to settle the claim
for a specified amount. Where an offer is accepted, the claimant is
entitled to recover their costs up to the date on which the party who had
made the offer was notified of its acceptance. Where an offer is not
accepted, its consequences depend upon which party made the offer.
Where a claimant, who otherwise succeeds at trial or at appeal, fails to
beat a defendant’s offer they will be liable to pay the former’s costs from
the date they offer was made and interest on their costs. Where a
defendant fails to beat a claimant’s offer at trial, the latter becomes
entitled to enhanced costs, interest on costs and damages. Success or
failure is very strict in its application. It is measured purely in financial
terms no matter how small the amount in question. For instance, if a
claimant makes a Part 36 offer to settle for £50,000 and the judgment at
trial was for £50,001, the offer would have been beaten.
s. Costs
Litigation cost in England has been subject to considerable scrutiny
over the past two decades. Procedural reform has been predicated on an
understanding that costs are excessive and need to be reduced.
While the award of costs is a matter of the court’s discretion, that
discretion is governed by clear principles. The primary principle
governing the discretion is that, ordinarily, the unsuccessful party will be
ordered to pay the successful party’s costs. This applies at both interim
and final hearings. A successful party will not however be awarded all
their costs. First, they will only be able to recover those costs that they
are under a legal liability to pay to, for instance, their legal
representative. Costs can thus only be awarded to indemnify the
successful party. This is known as the indemnity rule. The application of
this rule has, in recent years, given rise to substantial litigation as
unsuccessful litigants have sought to avoid a liability to pay the
successful party’s costs on the basis that the latter is under no legal
liability to pay their lawyer’s fees. Secondly, in determining whether and
what amount to award a successful party, the court will take account of a
number of factors, such as the pre-action and post-issue conduct of the
parties, the extent to which a party succeeded in the litigation, and
whether there had been any admissible offers to settle the litigation.
Thirdly, any costs award is subject to an overarching limitation. The
court will only allow recoverability of those costs that are proportionate.
It is no longer the case that costs reasonably and necessarily incurred are
recoverable. Proportionate costs are those that ‘bear a reasonable
relationship’ to: the amount in dispute or the value of non-monetary relief

sought; the claim’s complexity; any additional i.e., otherwise avoidable,
work generated by the conduct of the unsuccessful party; and any wider
relevant factors, such as the public importance of the litigation (CPR
r.44.3(5)).
t. Litigation Funding
Historically, litigation was funded by parties agreeing to pay their
lawyers for work done under their retainer. Contingency funding
agreements were not permitted. Liberalization in the 1990s introduced a
form of contingency fee funding via conditional fee agreements (CFAs).
The majority of these funding arrangements are used in personal injury
claims. They provide for a lawyer to be paid their normal hourly fee and
success-based percentage uplift in the event of success only. Further
reforms, in 2013, introduced a further form of contingency fee agreement,
known as a Damages-based agreement (DBA). This form of agreement,
based on a similar scheme operative in Ontario, Canada, operates in the
same way as a CFA. The central difference between the two is that under
a DBA the uplift is calculated as a percentage of the value of the claim
i.e., of the damages. Additionally, the courts have developed the common
law to permit third party litigation funding.
C. THE COMMON LAW SYSTEM—

THE UNITED STATES
1. Introduction
When discussing “procedure” in the United States, one must keep in
mind that the United States has a federal system of government in which
power is shared between the fifty states of the union and the federal
government. Each of the states and the federal government has its own
system of courts. Typically there are three tiers—a trial court, an
intermediate court of appeals, and a supreme court—although in some
state systems there are only two tiers. In the federal system, the trial
courts are called district courts and the intermediate courts (responsible
for a geographic region known as a circuit) are called courts of appeals.
The highest court is the Supreme Court of the United States. The
Supreme Court functions as a final appellate authority not only over
cases brought in the federal courts but also over cases brought in the
state courts that raise issues of federal law. The state courts have plenary
authority to hear cases involving any matter not exclusively reserved to
the federal courts. Within a particular state system, there may be
specialized courts, such as criminal courts or family courts, as well as
courts of general jurisdiction. The federal courts have limited authority,
however, and can only hear cases where jurisdiction is expressly
conferred by federal statute and falls within the judicial power of the
United States as defined in the Constitution. In certain areas, such as
bankruptcy and copyrights/patents, federal statutes have made the
jurisdiction of the federal courts exclusive. But it is the state courts that
hear most cases, and almost 98% of all civil litigation takes places in the
state courts. An unusual feature of American courts, both state and
federal, is that any trial judge or appellate court has the authority to
review the constitutionality of a statute or of other governmental actions.
Unlike many other systems there is no special constitutional court that
has exclusive jurisdiction over such issues.
The Federal Rules of Civil Procedure set forth the procedure for cases
brought in the federal courts. The state courts have their own set of
procedures, although some states have promulgated rules quite similar to
the Federal Rules. In a few instances, there are some distinctive
departures,69 but it is nonetheless appropriate to discuss a general
system of procedure that operates in courts in the United States.70
2. Overview of a Lawsuit in the United States
a. Investigation and Fee Arrangements

A client contemplating litigation will usually consult with an
attorney. Unlike the English system, there are no formal pre-action
protocols imposed on the lawyer, but a lawyer in the U.S. system does
have a professional obligation under professional codes of conduct to
ascertain that the client has in fact suffered a wrong that gives rise to a
legal obligation capable of redress by a court. The attorney interviews the
client to learn the client’s version of the facts, and then conducts legal
research to determine whether the client has a viable claim. In addition
to the ethical rules of professional responsibility governing the conduct of
lawyers, the procedural rules in federal courts71 and in many state courts
may impose a formal certification requirement upon an attorney to state
that the lawyer has conducted an investigation into the facts and the law
prior to filing suit.
The lawyer will make some arrangement with the client for payment
of the fee. Unlike the “loser pays” rule typical in most other judicial
systems, in the United States each side generally pays for its own
69 For example, California has successfully implemented a fast track system in its state
courts, and Arizona has adopted fee shifting offers of judgment, judicial evaluation by litigants
and use of pro-tem judges. See William W. Schwarzer, Comment on Burbank and Silberman, 45
Am. J. Comp. L. 705, 705–706 (1997).
70 For other overviews, see Outline of a Lawsuit, in Linda Silberman, Allan Stein, and
Tobias Wolff, Civil Procedure: Theory and Practice 1–12 (4th ed. 2013); Jack H. Friedenthal,
Arthur R. Miller, John E. Sexton and Helen Hershkoff, Civil Procedure, Cases and Materials,
Chapter 1 (11th ed. 2013).
71 See, e.g., Fed. R. Civ. Proc. 11.
attorneys’ fees whether the party wins or loses.72 In some cases,

particular statutes may permit prevailing parties, often limited to
plaintiffs, to recover their attorneys’ fees from the other side. In addition,
a “contingent fee” is a common method of financing litigation in the
United States. Under this arrangement, a client agrees to pay the
attorney a percentage of any recovery should the plaintiff win, but has no
responsibility for payment should the plaintiff lose.
b. Choice of Court
Whether the plaintiff decides to sue in a state or federal court will be
in part a function of the allocation of subject matter jurisdiction between
the state and federal systems. In some circumstances, the plaintiff may
have a choice between state or federal court, whereas in other situations,
the matter may lie within the sole competence of one or the other. Also, if
suit is brought in a state court, a defendant, in limited circumstances,
may be able to move the case to federal court. In addition, in the United
States, a plaintiff may have a choice as to the particular state of the
United States in which to bring suit. Often, plaintiffs may desire to sue in
their home state if they can obtain personal jurisdiction over the
defendant, but other factors—including backlog and caseload, choice of
law rules, or particular procedural rules, such as unanimous or non-
unanimous jury verdicts—may influence a plaintiff’s selection of the
court.
c. Commencing the Proceeding and Serving the Defendant

An action is usually commenced by the filing of a complaint or a
summons. In some jurisdictions, the summons will be brief and reveal
only that a lawsuit has been initiated; in others, the summons will be
more elaborate and give a short synopsis of the type of claim that the
plaintiff is asserting. In those jurisdictions where a complaint rather than
just a summons is required to commence a lawsuit, the complaint will
contain allegations of the plaintiff’s claim against the defendant.
Depending upon the particular jurisdiction, the complaint may be
relatively sparse, merely stating the nature of the legal obligation and
requesting relief; alternatively, the complaint may provide a more
detailed account of the events giving rise to the claim and specifying the
nature of the damages or other relief.73 As described more fully in Section
IV of Chapter 4, the Supreme Court of the United States abrogated the
“notice pleading” of the claim that had been acceptable under the federal
rules and imposed a more demanding requirement that the complaint set
72 One notable exception in the United States is Alaska, where there is a general two-way
“loser pays” statute.

73 The most common type of relief is a request for money damages. The plaintiff may also
seek an injunction, which is an order by the court that the defendant either perform a particular
act or refrain from engaging in certain conduct.
forth allegations that made the it “plausible” that plaintiff is entitled to

relief. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); and
Ashcroft v. Iqbal, 556 U.S. 662 (2009).
In some circumstances, the plaintiff may be able to seek certain types
of “interim” relief, such as a preliminary injunction or a temporary
restraining order, if it appears that plaintiff will suffer imminent harm or
that the defendant may remove assets during the proceedings. In extreme
cases, such an order may even be granted ex parte.
Typically, either the summons, or the summons and complaint, will
be served upon the defendant. Service can be made in a variety of ways.
The traditional method is personal service, whereby a judicial official or
private person authorized by law will personally deliver the summons
and complaint to the defendant. Today, most judicial systems permit
service to be made through the mail, requiring that the defendant return
a signed receipt acknowledging that service has been made.
d. Defendant’s Responses
Once the defendant has been notified of the lawsuit, the defendant
has a number of possible responses. The defendant may attempt to have
the case dismissed without taking a position on the facts by filing a
dispositive motion to have the suit dismissed on either procedural or
merits grounds. For example, the defendant may offer an objection to the
particular court in which the action is filed by making a motion to dismiss
for lack of personal or subject matter jurisdiction or venue; or defendant
may believe that under the applicable law, no viable claim has been
asserted and may move to dismiss the action for failure to state a claim.
Alternatively, the defendant may choose to raise these objections as
defenses to be included in the answer. In the answer, which serves as the
defendant’s response to the complaint, the defendant will either admit or
deny the allegations of the complaint as well as raise any specific
affirmative defenses that defendant has to the complaint. In addition, the
defendant may assert a counterclaim against the plaintiff, alleging claims
that the defendant has against the plaintiff. In some jurisdictions, if the
counterclaim is closely related to the plaintiff’s claim it must be asserted
or it will be waived.74
The pleading stage of an American lawsuit has a limited role to play
in the ultimate framing of issues in the litigation unless the case is
dismissed because the complaint failed to meet the requirements of
“plausibility” described above. The later stages of the pretrial process,
specifically case management in the context of discovery, do a more
robust job in illuminating the nature of the dispute between the parties.
74 See, e.g., Fed. R. Civ. Proc. 13(a).

e. Case Management and Pretrial Discovery

Unlike civil law systems where civil litigation often proceeds along a
continuum, a lawsuit in the United States is bifurcated into pretrial and
trial phases. The pretrial phase sets the stage for the trial and it includes
not only the pleadings and motion practice discussed above but also case
management and pretrial discovery. The pretrial phase of litigation is
subject to judicial oversight and case management. Case management
has become an important element of procedural reform in the United
States75 and includes a variety of devices, such as pretrial conferences,
pretrial orders, and sanctions. In addition to certification requirements
imposed upon lawyers with respect to pleadings and motions and
discovery requests and objections, other procedural rules have sought to
confirm the authority and underscore the responsibility of trial judges to
actively manage the pretrial process. For example, a revision of Rule 16 of
the Federal Rules of Civil Procedure dealing with pretrial conferences
sends a message that judges should take command of the pretrial process
to move cases along and to help effectuate settlement.76 In addition to
requiring an early pretrial scheduling order, the Rule identifies the
specific issues that should be addressed by the court and the parties,
including the formulation and simplification of issues, the control and
scheduling of discovery, restrictions on expert testimony, and the
possibility of settlement. Indeed, the vast majority of civil cases are
settled before reaching a trial.
One of the significant features of the American legal system is the
ability of a litigant to obtain relevant information and documents from
the opposing party and from third persons. Traditionally, most discovery
in courts in the United States was adversarial—that is, a party would
produce information only in response to a request by the opposing party.
More recent reforms in discovery practice, both in the federal courts77 and
in some state systems78, have produced rules that impose obligations of
mandatory initial disclosure upon the parties, whereby each party is
required to produce certain types of information without a specific request
by his adversary. The required disclosures encompass names of persons
likely to have “information that the disclosing party may use to support
its claims or defenses,” copies of, or the location of, documents that the
75 See Stephen B. Burbank and Linda J. Silberman, Civil Procedure Reform in
Comparative Context: The United States of America, 45 Am. J. Comp. L. 675, 678–683 (1997).
76 See David Shapiro, Federal Rule 16: A Look at the Theory and Practice of Rulemaking,
137 U. Pa. L. Rev. 1969 (1989).

77 For a discussion of the reforms under the Federal Rules, see Burbank & Silberman,
supra note 75, at 678–683; Carl Tobias, Congress and the 2000 Federal Civil Rules Amendments,
22 Cardozo L. Rev. 75 (2000).
78 See, e.g., Alaska R. Civ. P. 26; Ariz. R. Civ. P. 26.1(a); Ill. S.Ct. R. 222(d); Utah R. Civ. P.
26(a) (1). For an excellent survey of discovery practice reforms in the state courts, see Seymour
Moskowitz, Rediscovering Discovery: State Procedural Rules and the Level Playing Field, 54
Rutgers L. Rev. 595 (2002).
disclosing party may use to support its claims or defenses, computation of

damages sought by the disclosing party, and any relevant insurance
coverage.79 Later in the pretrial process, other disclosures relating to
expert testimony and other trial witnesses may be required.80 In addition,
other adversarial discovery devices may be used to supplement
information obtained through the initial disclosures; these include
interrogatories, depositions, requests for production of documents,
medical examinations, and requests for admission. Certain of these
devices—depositions and production of documents—may be used to obtain
information from non-parties to the lawsuit when a subpoena is issued for
attendance or production. The propriety and extent of these discovery
devices is subject to the control of the court. Moreover, recent discovery
reforms in both state81 and federal courts82 have imposed various
limitations on the number and length of certain types of discovery. Also,
in the federal system and some state systems, lawyers must certify that
their discovery requests, responses, and objections are warranted and not
unreasonable given the context of the particular case; and violators will
be subject to sanctions.83 Many of the discovery devices used in the
United States, such as interrogatories and exchange of documents, are
found in other common law systems. The oral deposition, however, is
more unusual. In the United States, a deposition—an examination of a
witness under oath—may usually be taken of “any person”,84 although a
subpoena is required to compel the attendance of a nonparty.85 That
contrasts with the approach in other common law countries where
depositions, if appropriate at all, are directed only to a party86 or when
that rule is relaxed, to a non-party in very limited circumstances.87 In the
79 See, e.g., Fed. R. Civ. P. 26(a) (1).

80 For example, the Federal Rules require that unless the court allows a greater time,
within 90 days of the trial, a party must disclose to the other side the identity of any person who
it will call as an expert, to be accompanied by the expert’s report. See Fed. R. Civ. Proc. 26(a) (2);
and within 30 days of the trial disclose the names of witnesses and identification of documents to
be used at trial. See Fed. R. Civ. Proc. 26(a) (3).
81 See Moskowitz, supra note 78, at 613, 617–618.
82 In the federal courts, for example, leave of court is required if more than ten depositions
are proposed (Fed. R. Civ. Proc. 30 (a)(2)(A)), or if more than 25 interrogatories are to be served
(Fed. R. Civ. Proc. 33). Also, unless authorized by the court or stipulated by the parties, a
deposition is limited to one day of seven hours (Fed. R. Civ. Proc. 30(d)(2)).
83 See, e.g., Fed. R. Civ. Proc. 26(g).
84 See Fed. R. Civ. Proc. 30.
85 See. Fed. R. Civ. Proc. 45.
86 In Canada, depositions are called “examinations for discovery.” There is a right to
examine each individual party and one representative of each corporate party. Non-parties can
be examined in Canada only when it can be shown that the party seeking information cannot
obtain it in another way and that it would be unfair to proceed to trial without this information.
See Stephen N. Subrin, Discovery in Global Perspective: Are We Nuts? 52 De Paul L. Rev. 299,
306–307 (2002).
87 For example, in Canada, if a witness is unlikely to be available for trial, a party may
apply to the court for permission to take an oral deposition for use at trial. Id. at 306 n. 34. See
also, in England, CPR 34.8.
United States, the deposition is primarily used to elicit information in

preparation for trial, but deposition testimony may also be used at trial
for limited purposes, such as to impeach a witness’s trial testimony88 or in
special circumstances, such as if the witness is unavailable at trial.89
The scope of discovery in courts in the United States has, since the
enactment of the Federal Rules of Civil Procedure, been very broad but in
recent years the trend is toward a narrowing construction. A party may
seek information regarding any matter, not privileged, that is relevant to
any party’s claim or defense and proportional to the needs of the case.90
Relevant information need not be admissible at the trial if the discovery
appears reasonably calculated to lead to the discovery of admissible
evidence.91 The broad scope of discovery also allows each party to require
other parties to allow inspection of any and all documents that meet the
open-ended test of relevance as well as to obtain documents under that
standard from non-parties to the lawsuit. Privileged information is
protected from discovery. The important attorney-client privilege, for
example, protects communications between attorney and client for the
purpose of securing legal advice. Most courts in the United States also
offer a more limited protection for materials produced by the lawyer as
part of the legal preparation of the case. Thus there is a presumptive
privilege for all materials “prepared in anticipation of litigation,” and
such material is discoverable only upon a showing that the party has
substantial need of the information and cannot obtain it through
alternative means.92
f. Summary Judgment
One of the perceived advantages of broad discovery practice is to
allow the parties to evaluate the strengths and weaknesses of their
respective cases based on information that will be produced at trial, and
ideally induce a settlement between the parties. Moreover, if, at the close
of discovery, one of the parties does not have a sufficient evidentiary basis
to support a verdict or judgment in its favor, it would be futile to proceed
to trial. Accordingly, procedural systems in the United States provide for
a method of “summary judgment” to dispose of a case without a full trial
when it is determined that there is “no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of
88 See Fed. R. Civ. Proc. 32(a)(1).

89 See Fed. R. Civ. Proc. 32(a)(3).
90 Fed. R. Civ. Proc. 26(b)(1). In 2015 Fed. R. Civ. Proc. 26(b)(1) was amended to require
that discovery be “proportional to the needs of the case” and set forth the factors to be
considered. In some state systems, relevance to the “subject matter of the action” and “not
privileged” is all that is required.
91 See Fed. R. Civ. Proc. 26(b)(1).
92 See, e.g., Fed. R. Civ. Proc. 26(b)(3).

law.”93 In determining whether a party has satisfied its burden of

producing evidence that would entitle it to proceed to trial, the court
considers the discovery already conducted as well as affidavits of other
potential witnesses. With evidence in this form, of course, the court does
not assess the strength of the evidence or the credibility of the statements
but only whether the evidence presents a “genuine issue of material fact”
that should be resolved at a full trial. Either of the parties, or both, may
move for summary judgment.
g. Trial
Following the pretrial process, if a case has not been otherwise
resolved by summary judgment or settlement, it will be set for trial. The
fact finder will be a judge or a jury. In the federal courts, the Seventh
Amendment of the Constitution assures a right to trial by jury for any
controversy over twenty dollars, where the suit was one that could be
brought “at common law.” This reference to “common law” relies on the
historical distinction between “law” and “equity” to determine whether a
party has a constitutional right to a jury trial in the United States today.
Because in England a jury was available only in the common law courts
and not in equity (the court of Chancery), a jury trial right will attach
only if the asserted claim or counterclaim is one that has an historical
common law analogue. Most federal cases involving claims that seek
damages do give rise to a right to a jury trial. Many state constitutions
contain similar provisions, but the jury trial right in the state court is tied
to an interpretation of the state and not the federal Constitution. In order
to effectuate the “right” to a jury trial, a party must affirmatively make a
demand for a trial by jury, or the “right” is waived. In practice, however,
most cases are resolved by pretrial motions or are settled, and only about
two percent of all federal civil cases are decided by a jury.
At one time, a federal civil jury required twelve members and a
unanimous verdict. The Supreme Court of the United States later held
that the Seventh Amendment permits less than twelve jurors in a federal
civil case. However, unanimity is still required for a federal jury. The size
and unanimity requirements in state courts are different, and non-
unanimous jury verdicts are permitted in many states. When a jury has
been demanded, a panel of prospective jurors will be selected. Voir dire of
prospective jurors is conducted in order to determine whether a juror has
any prior knowledge of the case or involvement with the parties or any
particular bias that might affect the outcome of the case, and if so, the
juror can be discharged “for cause.” A party may also move to strike a
juror without cause—via a peremptory challenge—but such challenges
93 See, e.g., Fed. R. Civ. Proc. 56(c).

are limited. In federal courts, the judge usually conducts the voir dire; in
many states, the task is for the attorneys for the parties.94
The trial in courts in the United States is conducted by the attorneys
for the parties. The trial is continuous with the presentation of both oral
and documentary evidence by both sides. The plaintiff proceeds first;
plaintiff’s lawyer calls witnesses to testify in open court by direct
examination.95 Defendant’s lawyer then conducts cross-examination of
each witness. These examinations are often followed by redirect and re-
cross. The responsibility for introducing evidence either through
witnesses or documents is with the lawyers. The judge generally
intercedes only when asked to rule on an evidentiary objection, although
on occasion, particularly when no jury is involved, may take a more active
role and pose a question to the witness.
Largely because of the institution of the jury, there are elaborate
rules of evidence governing the admissibility of evidence at trial.
However, if the opposing counsel does not raise a timely objection to the
admissibility of particular evidence, the evidence will be admitted, any
objection having been waived. A striking aspect of American trial practice
is the approach to expert testimony.96 In courts in the United States,
experts usually appear as a witness on behalf of one of the parties; the
expert will have been chosen, prepared and compensated by the party.
The result is often a “battle of experts,” with conflicting testimony to be
resolved by the trier of fact, often the jury. The rules of evidence in many
jurisdictions allow a judge to appoint a neutral expert, but most judges do
not exercise the privilege.
Before the case goes to the jury, counsel will make closing
arguments. The judge will instruct the jury on the legal rules it is to
apply. A jury will usually render a general verdict, merely stating
whether the verdict is for the plaintiff or the defendant, and if for the
plaintiff, the amount of damages. With a general verdict, the jury does
not give reasons for its decision—a feature that other countries have been
critical of, leading some civil law systems to refuse to enforce a U.S.
judgment based on a jury verdict. In the discretion of the court, a jury can
be asked to render a special verdict that will require the jury to respond
to particular questions, either in lieu of or in addition to a general verdict.
94 See generally Stephan Landsman, The Civil Jury in America, 62 Law and Contemp.
Probs. 285, 292–293 (1999).

95 Thus, the trial in a U.S. court may look substantially different than a trial in England
where under the CPR witness statements are substituted for oral evidence-in-chief. See Richard
L. Marcus, Putting American Procedural Exceptionalism into a Globalized Context, 53 Am. J.
Comp. L. 709, 716–717 (2005).
96 See Oscar G. Chase, American “Exceptionalism” and Comparative Procedure, 50 Am. J.
Comp. L. 277 (2002); Langbein, supra note 2, at 835–836 (1985).

h. Taking the Case from the Jury and Post-Verdict

Motions
Certain procedures unique to American civil procedure are a direct
function of the use of juries in the American system and the concomitant
attempt to ensure that a jury performs its role of determining the facts
and applying the law, as instructed by the judge, to those facts. After the
plaintiff has presented its case, and any time before the case is given to
the jury, the defendant may request a judgment as a matter of law.97 The
underlying purpose of this motion is to ensure that the jury performs its
function and to prevent the jury from deciding a case in favor of a party
when there is a lack of evidence to support a jury verdict for that party.
For example, if there is no evidence from which a jury could find in the
plaintiff’s favor on a critical issue that is part of the plaintiff’s case, there
is no role for the jury and the court will not permit the jury to decide the
case. Usually the court will want to hear both sides’ evidence, even if it
might be inclined to grant the motion. Accordingly, the presentation of
the defendant’s case will continue, and after presentation of that
evidence, the defendant may again make the motion for a judgment as a
matter of law in defendant’s favor, or may make the motion for the first
time if it was not made earlier. Also, the plaintiff may make a motion for
judgment as a matter of law if plaintiff believes there is no basis on which
a jury could find for the defendant, although usually issues of credibility
are for the jury to determine.
In most circumstances, the judge will permit the case to go to the
jury rather than grant a motion for judgment as a matter of law. A judge
usually prefers this alternative to taking the case from the jury because
there is always the possibility that the jury will decide in favor of the
movant’s position, thereby eliminating any need to decide that question.
Also, the judge actually has a second opportunity to determine whether
there was a reasonable basis for the jury to decide the case in the way it
did since the losing party may make a post-verdict motion for a judgment
as a matter of law notwithstanding the jury verdict.98 Indeed, one of the
reasons a judge prefers to allow a case to proceed to verdict is that if an
appellate court reverses the trial judge’s determination that the case was
not one properly for the jury, the jury verdict can be reinstated and a new
trial will not be required.
An alternative post-trial motion that may be made by the verdict
loser is a motion for a new trial, which may assert various grounds
including an error that justifies a new trial or that the verdict was
against the clear weight of the evidence. If the post-trial motions are
denied, the judge will enter a judgment based upon the jury verdict.
97 In the federal courts, see Fed. R. Civ. Proc. 50(a).

98 In the federal courts, see Fed. R. Civ. Proc. 50(b).
Of course, not all cases are tried by a jury, and when the judge hears
a case without a jury, the judge will make findings of fact and conclusions
of law prior to entry of judgment.
i. Appeals
Appeals in state and federal courts in the United States are based on
the written record of the trial court proceeding. Unlike in many civil law
countries, an appeals court does not hear additional testimony or consider
additional documents. The record on appeal contains the pleadings and a
verbatim transcript of the trial. The parties present their contentions by
written briefs, often supplemented by oral argument. Appellate courts are
typically multi-member tribunals, with appeals heard before panels of the
court.
In some judicial systems in the United States, including the federal
system, appeals are only available after a “final decision” by a lower
court. In some states, however, interlocutory appeals are permitted, and a
party may appeal a procedural ruling, such as the denial of a motion,
during the proceedings and before any final judgment is issued.
One of the consequences of “appeal on the record” is that appellate
courts in the United States do not exercise plenary review of the findings
of fact made by the judge or jury. However, they do review questions of
law “de novo,” giving no weight to the trial court’s conclusions of law.
There are some specific matters said to be within the trial court’s
discretion, such as a motion to grant or deny a new trial, and on those
issues, the trial court’s ruling will only be overturned for an “abuse of
discretion.” As for questions of fact, in a case tried by a jury the factual
determinations of the jury cannot be reviewed. In a case tried by a judge,
the judge’s findings of facts will not be overturned unless they are “clearly
erroneous.”
An appellate court has power to affirm, reverse, vacate, or modify the
judgment of the trial court. If it reverses, the court may enter judgment
accordingly, or it may remand the case to the trial court for further
proceedings.
Decisions are often accompanied by written opinions signed by one of
the judge of the panel hearing the appeal. In some systems, provision is
made for summary dispositions of appeals without opinion.
3. Conclusion
Procedure in the United States shares a number of traditions with
other common law systems, including England—the historical source
much of American procedure, including the use of juries to decide
questions of fact (although England no longer uses juries in most civil
cases). Perhaps most distinct, at least in respect of a comparison with
civil law systems of justice, is the embrace of a more adversarial system of

justice where the responsibility for both developing and presenting a case
rests with the lawyers and where the lawyer’s primary obligation is to
frame a client’s case in as favorable a light as possible. The premise of the
American adversary system is that each party will discover and present
evidence that will favor its own case and disclose weaknesses in the other
side’s case; through this bilateral presentation of facts and legal
argument, truth will emerge to the impartial decisionmaker.99 Also, in
the United States, as in most common law countries, there is a division of
function between pretrial and trial, and formal evidence is introduced in
what is usually one concentrated trial, even though the proceedings may
take place over a number of days or weeks. However, there are a number
of features of the American system of justice that are unique even when
compared to other common law systems. These include the ability to
finance litigation through the contingent fee system, the availability of
broad party-initiated pretrial discovery that extends beyond the
immediate parties to the lawsuit, the allocation of principal fact-finding to
a jury of lay persons, and the relatively passive role of the judge at trial.
Such tools, when combined with a philosophy that litigation is the means
to develop the common law and serves to articulate social norms and
regulate the behavior of both private entities and the government, give
civil litigation in the United States a more prominent and substantial role
in the social and governmental order than in most other countries of the
world.100
D. JAPAN101
1. Introduction and Historical Background of Japanese Civil
Procedure
As is well known, Japan is today a highly industrialized modern
country. Its industrialization and modernization (or westernization) has
taken place, however, during the mere past one and one-half centuries.
The unique history of modern Japan has left various traces of indigenous
and foreign influences on its civil procedure which are of interest from a
comparative point of view. In summary, we can find in it a hybrid
character of civil law and common law procedure operating in the unique
dispute resolution culture of Japan. Most recently, Japan has experienced
significant civil procedure reform by a new Code of Civil Procedure of
1996 and further amendments to it in 2003. Commentators see not just a
99 See Silberman, Stein & Wolff, supra note 70, at 3; Chase, supra note 96, at 276–77.
100See generally Robert A. Kagan, Adversarial Legalism: The American Way of Law (2001).
101 Adapted from Yasuhei Taniguchi, Japan’s Recent Civil Procedure Reform: Its Seeming
Success and Left Problems, in Trocker and Varano, supra note 22, 91–113.
reform of the rules of civil procedure but also a change in the actual
practice without which any “reform” would be meaningless.102
Japan was closed to the outside world until 1853 when American
Commodore Perry forced the then Shogunate government of Japan to
open the country for commerce. This impact finally led in 1888 to the
demise of the Shogun’s feudal regime and creation of a new government of
the Emperor. The new regime decided to modernize, among many other
things, the legal system after the Western models. Students were sent to
and advisors were invited from advanced Western countries. Various
systems were competing to win adoption for some two decades, first
English, then French and finally German. The first comprehensive Code
of Civil Procedure was adopted in 1890. This Code was largely a verbatim
translation of the German Code of Civil Procedure (ZPO of 1877). The
most significant departure was the absence of a provision requiring
representation of the parties by a qualified lawyer before the district
court (first instance court of general jurisdiction) and above. This is
explained by the small number of practicing lawyers at the time, was a
legacy of the previous regime which banned the legal profession as
immoral and whose imprint is still noticeable today in the form of a
considerable amount of pro se litigation.
Apart from some minor changes, the procedural system remained
distinctively German as a whole through the first half of the twentieth
century. Since adoption of German law occurred in all other fields of law
as well, German legal doctrines, legal concepts, and legal terminologies
(in Japanese translations) played a predominant role in the Japanese
legal scholarship and legal education. The situation had to change in 1945
with the Japanese defeat in the Pacific War. The Allied (in fact American)
occupation of Japan until 1952 resulted in a considerable
Americanization of the Japanese legal system. First of all, the
Constitution was rewritten. The new Constitution of 1946 (enforced from
102 For additional references, see Yasuhei Taniguchi, The 1996 Code of Civil Procedure of
Japan—A Procedure for the Coming Century? 45 Am. J. Comp. L. 767 (1997); Yasuhei
Taniguchi, Development of Civil Procedure in Japan: An Experiment to Fuse Civil Law and
Common Law, in Festschrift for Prof. Németh 759 (Varga, ed. 2003); Yasuhei Taniguchi,
Between Verhandlungsmaxime and Adversary System: In Search for Place of Japanese Civil
Procedure, in Festschrift für Karl Heinz Schwab 487 (Peter Gottwald and Hanns Prütting, eds.,
1990); Yasuhei Taniguchi, Civil Procedure: Development of Adversary System in Civil Procedure
in Japan, in Japanese Law in Turning Point (Daniel Foote and Veronica Taylor, eds. (2007));
Carl F. Goodman, The Somewhat Less Reluctant Litigant: Japan’s Changing View Towards Civil
Litigation, 32 Law and Pol’y Int’l Bus. 769 (2001).
For a discussion of the new Code of Civil Procedure, see also Takeshi Kojima, Japanese Civil
Procedure in Comparative Law Perspective, 46 U. Kan. L. Rev. 687 (1998); Shozo Ota, Reform of
Civil Procedure in Japan, 49 Am. J. Comp. L. 561 (2001); Masako Kamiya, Narrowing the
Avenues to Japan’s Supreme Court: The Policy Implications of Japan’s Code of Civil Procedure
Reforms, 4 Australian J. Asian L. 53 (2002) (dealing with the adoption by the new Code of Civil
Procedure of 1996 of a certiorari-like discretionary appeal to the Supreme Court). See also Carl
F. Goodman, Justice and Civil Procedure in Japan (2004); and Curtis J. Milhaupt, J. Mark
Ramseyer, and Mark D. West, The Japanese Legal System (2006).
1947) abolished a typical civil law institution—the administrative court—

and created an American type Supreme Court of only 15 Justices
equipped with a constitutional review power and rule-making power for
procedures. The Supreme Court, along with lower courts thereunder, was
separated from the Ministry of Justice to become organizationally
independent vis-à-vis the legislative and the executive branches. The civil
law features of the lower court judiciary were not altered, however, and
judges are normally appointed without any law practice experience and
gradually promoted within the judiciary. Moreover, they can be posted for
a varying term (three to ten years) in an administrative position not only
within the judiciary (General Secretariat of the Supreme Court) but also
in the Ministry of Justice and elsewhere within the executive branch.
2. Post-War Reform
Post-War reform of civil procedure in Japan was not extensive when
compared with the total reform of the criminal procedure occurring at the
same time. Only two provisions of the Code of Civil Procedure were
changed: Firstly, the provision authorizing the judge to examine evidence
ex officio was repealed. Secondly, the provision mandating that the
presiding judge first examine a witness was amended to require the party
who called the witness to ask questions first to be followed by a cross-
examination by the adversary party. The judge’s intervention was made
only supplementary. It goes without saying that the American ideology of
adversarial procedure motivated the reform. The original provision—
which allowed the judge to ask questions and make suggestions to the
parties in an attempt to clarify the matters in dispute and so to guide
them to a proper direction—was left intact perhaps because the language
of the provision was not mandatory although in practice the judge’s
clarification was considered a duty and a failure to exercise it properly
was held to be a reversible error. However, in the light of adversarialism,
as expressed in the two amendments, the Supreme Court held that a
failure to exercise clarification was no longer a reversible error. Such case
law and these two amendments in the Code seemed to complete a
transformation from a judge-dominated procedure into a party-driven
adversary procedure.
The reality was not so simple. Lawyers were not ready to practice the
adversary system. Moreover, as indicated above, Japanese litigants did
not have to retain a lawyer to litigate. The number of lawyers did not
increase to catch up with population increase. As of the 1940’s and 1950’s
when the new adversarial ideology was introduced, there were still many
litigants without lawyers. The ideal of the adversary system was quite
foreign to them. A passive judge who did not exercise clarification often
meant a lost case for the party without a lawyer if the other party had
one. If both sides were not represented, the judge would be in limbo
unless he actively intervened in the process in order to guide the lay

parties through clarifications and suggestions. Having realized this
reality, the Supreme Court changed its view in the mid-1950’s and held
that a failure to exercise the clarification power was a reversible error.
Ever since, the same position has been kept and even strengthened.
Today, the clarification as a judge’s duty is a firmly established part of
the Japanese procedure. In the light of this change, the aforementioned
repeal of the explicit provision for judge’s ex officio evidence taking must
lose most of its significance because the judge may induce a party by way
of clarification to produce particular evidence instead of initiating an
examination of his own.
The above account may give an impression that Japanese civil
procedure has returned to the pre-War state. It is not exactly so. One
aspect of adversary procedure introduced during the post-War period is
the principal and cross-examination of witnesses by the parties
themselves. Although this new method did not at first function well,
members of the bar certainly enjoyed the new privilege. As a corollary to
the post-War adversary system, lawyers were now encouraged, rather
than prohibited as in the pre-War period and in many other civil law
countries today, to meet prospective witnesses to better prepare for
questioning in court. Despite some criticism from a point of view of
efficiency, the new system has generally settled in practice. In the
meantime, lawyers have trained themselves in skills of examination, if
not so well as in common law countries. Thus, Japanese procedure has
gained a truly hybrid character as far as a lawyer appears for both
parties.
Here again, however, we must keep in mind an unchanged aspect as
basso continuo in the tunes of Japanese civil procedure: the recurring
problem of lay litigants without a lawyer. This is one of the reasons that
the recent new Code of Civil Procedure of 1996 changed the system a bit
by allowing the judge to change the order of witness examination with
agreement of the parties, so that the judge can now initiate the
questioning. The new provision on the face applies to all kinds of
litigation, even to one with lawyers for both sides, but lawyers would not
normally agree to a change of order. The provision will serve better pro se
litigation. The issue of pro se litigation in fact adds one more element to
the civil law—common law hybrid, i.e., a Japanese indigenous element. A
considerable amount of litigation is still conducted without any lawyer or
with a lawyer for only one side, usually the plaintiff in the district courts,
the first instance court of general jurisdiction. Nationwide, about one-fifth
of cases have been consistently handled without any lawyer, although the
rate is lower in large cities where lawyers are more available. The
implication of this, along with other indigenous elements in the setting of
Japanese civil procedure, will be discussed later.
It bears noting that a change in attitude among Japanese lawyers

greatly contributed to the success of recent civil procedure reform. As
described in Chapter 2, Structure of the Legal Profession, the quality and
prestige of the Japanese bar has increased greatly in recent decades.
3. Civil Procedure in the Post-War Period

The newly imported adversarial aspects of Japanese procedure mark
a significant departure from civil law practice, where the judge takes
responsibility for eliciting information from witnesses although witnesses
must be proposed by the parties. Civil law procedures generally adopt the
principle of party control or party presentation. But party control stops at
presentation of allegation and evidence. In case of testimonial evidence,
the party’s control would not be complete unless the party is given
authority to elicit desired information to support his case from the
witness he presents to the court. An essential element of adversarial
procedure can be found in this aspect.
Let us examine next how these hybrid characteristics of Japanese
procedure are expressed in the mode of hearing in court. The original
German type of procedure did not distinguish chronologically the
pleading stage and evidence taking stage. These two stages were
deliberately made amenable to being mingled and to come one after
another as proceedings unfold. Given no constriction of time resulting
from the jury system, it was certainly a good policy in order to avoid
surprise by evidence and undesirable outcomes resulting from strict
preclusion of late submission of new allegations or evidence, thus
enabling the judge to reach a substantively just final judgment. But, at
the same time, it was accompanied by a danger of inviting delay because
there was no real deadline for any procedural action for a party to take.
In an attempt to assure that the preparation could be carried out
efficiently and completely, a 1926 amendment made the preparatory
proceedings semi-obligatory and imposed a preclusion on late factual
allegations and proposals of evidence. The post-War reform pursued the
same direction by encouraging the parties to prepare well by meeting
prospective witnesses beforehand. But with inactive lawyers and ignorant
lay litigants, the enforcement of preclusion was felt by judges as inviting
only injustice. It is also pointed out that the parties, being afraid of
preclusion, tended to submit an excessive amount of hypothetical
allegations and evidence, which unnecessarily delayed the whole
proceedings. The preparatory proceedings were not used and virtually
forgotten.
The typical unfolding of civil litigation which gradually developed
during the 100 years of practice is commonly referred to as the “May-rain”
or “dentist” method. Hearings take place only intermittently just as the
rain in May tends to fall only occasionally in Japan and the dentist treats
perhaps everywhere a patient with an interval between visits. What

typically happened in Japan was a long dragged out series of short
hearings to complete a preliminary stage of identifying the issues to be
followed by a series of short witness examination sessions. First, several
sessions with an interval of several months were spent exchanging briefs
and documentary evidence with clarification requested by the judge or the
adversary party. When witness testimony was taken, it was again
piecemeal. One witness was examined in a hearing session of 30 minutes
and the next hearing would often be a couple of months later to examine a
next witness or even to continue to examine the same witness (often
cross-examination). As a result of the testimony, a party might wish to
amend the pleadings, which was liberally allowed. Thus, the case
unfolded only gradually toward a conclusion of the hearing by repeating
testimony-taking and pleadings one after another.
Comparing this with American style litigation, an eminent American
observer of the Japanese civil procedure, the late Professor Dan F.
Henderson, once appropriately remarked that the first half of litigation
process in Japan serves only the purpose of de facto discovery.103 If it is
so, it is not easy for the judge to narrowly identify the issues of a case in
an early stage of proceedings because the parties themselves do not yet
know how to formulate the case. In American procedure, an extensive
discovery serves that purpose. A cause of the failure of the 1926 reform
and the post-War reform is found in that a preparatory procedure was
imposed on the parties without giving them a tool to gather information
and evidence. Unless the parties are sufficiently informed of the facts and
evidence to prove them, no real issues can be definitely identified so that
the ensuing witness examination may finally resolve the dispute.
The 1996 Code again tried to tackle this problem. It not only
reshaped the preparatory proceedings but also expanded the parties’
ability to collect information and evidence. Although an adoption of
American type discovery was rejected, the Code adopted a new device
called “inter-party inquiry” which allows a party to ask for relevant
information from the adversary and, more importantly, it expanded the
scope of the document production order. The experience for some 5 years
under the new Code had shown that the “inter-party inquiry” is not
effective because of lack of sanction for non-compliance but the expanded
document production order has been working relatively satisfactorily.
Since the court is now ready to issue an order, the parties, if requested by
the other party, have become generally willing to produce the demanded
document voluntarily even without any court order.
A further amendment in the same direction took place in 2003 which,
as explained below, enables the parties to collect information and
103 Dan F. Henderson, Civil Procedure, Code of, in 1 Kodansha Encyclopedia of Japan 318,
320 (right column 8) (1983).

evidence from the prospective adversary or from a third party even before
instituting an action. The effectiveness of this new institution is still to be
seen. But even without this new device in place, the preparatory
proceedings under the new Code seem to have gained certain solid footing
in actual practice. It must be remembered, however, that the reform in
this respect was not really an innovation by the new legislation. It was
rather a codification of a preceding practice. From the mid 1980’s, some
willing judges with cooperation by willing lawyers started a preparatory
procedure commonly called “the argument-settlement session.” This was
the beginning of the recent civil procedure reform movement which is still
continuing today, as section 4 explains.
4. A New Trend of Judge-Lawyer Cooperation—Successful

Preparation and Concentration of Witness Examination
It was a common practice under the old Code that the judge held a
special in camera session for settlement of dispute often using the
technique of caucusing. In such a session, the judge helps the parties (not
only lawyers but also often the parties in person) broadly discuss the
situation in dispute and seek a settlement. In doing so, the judge as well
as the parties often found real issues emerging which encouraged the
parties to settle. Therefore, “the argument-settlement session” utilized
the same opportunity and technique to find the real issues and weed out
unnecessary issues with agreement of the parties. If a settlement was
reached, it was a welcome by-product.
A somewhat similar procedure had been practiced earlier in
Germany under the name of “Stuttgart Model.” Because of the German
origin of the Japanese procedure and a continuing affinity with German
procedural scholarship, the Stuttgart Model and its later codification in
1976 were much studied and discussed in Japan. The Supreme Court
even sent some young judges to Germany to observe the practice
firsthand. Although the “argument-settlement session” was not a direct
importation of the Stuttgart Model, it was certainly inspired by the latter.
But what led the experiment of “the argument-settlement session” to
certain success was a positive cooperation by willing lawyers with the
judges who wanted to experiment in this new procedural idea. The judge’s
initiative could not have gone through without the positive cooperation of
the lawyers involved. The main cause of previous failures of various
preparatory proceedings was general lack of cooperation by the lawyers.
This type of constructive cooperation between the judge and the
lawyer was highly unusual in Japanese legal history. The organized bar
and individual lawyers gained an unprecedented self-confidence by the
1980’s. The judiciary and individual judges now looked at members of the
bar as on a par. The ideological antagonism and mutual mistrust which
long characterized the relationship between the bar and the judiciary
started to fade, if not entirely. A change in the domestic political climate

since the end of the cold war in the international world also helped. Thus,
there were noticeable signs that a mutual respect and understanding
between the bar and the judiciary had come to existence. This is the
background against which the “argument-settlement” experiment became
possible. The organized bar no longer flatly rejected a proposal from the
judiciary. They themselves formed study groups and made constructive
proposals for better management of litigation and the judiciary was
willing to listen to them because it also knew that nothing could be
achieved in this field without willing cooperation by the lawyers.
The draft of the new Code of Civil Procedure of 1996 was considered
by the Consultative Committee of the Ministry of Justice which for the
first time included representatives of the organized bar. Their proposals
were discussed and some of them were adopted. The afore-mentioned
“inter-party inquiry” was one of them. The practice of “argument-
settlement session” was codified in a little modified form. Under the new
Code enforced from January 1998, the new preparatory procedure has
proven largely successful thanks to cooperative lawyers and
understanding judges, helped by the new possibility of gathering
information and documentary evidence as explained earlier. Particularly
noteworthy is the fact that a rather harsh rule of preclusion of late
submissions under the old Code has been replaced in the new Code by a
mild request by the other party for “explanation” of reason for the delay.
Good preparation is essential for making the evidence taking stage
that follows efficient and conclusive. Evidence taking mainly means
testimony taking in court. If this stage is conducted in a “May-rain”
fashion, the value of good preparation will be largely lost. Moreover, a
protracted evidence-taking process will inevitably be accompanied by the
judge’s memory loss which is likely to undermine the correctness of the
final judgment. Also, the judge in charge of the case may change before
the evidence is concluded—in Japanese practice judges are transferred
from one court to another every three years or so. In theory, when this
happens, the same witness can be re-examined under the new judge upon
demand by a party. But such is never practiced for the sake of time. Thus,
the new judge must rely on the record of testimony which is normally not
a verbatim transcription but a mere summary rendered by the court
clerk.
Therefore, the next problem is how to expedite the testimony taking.
The new Code requires the so-called “concentrated witness examination.”
This means that, as in the common law trial, several witnesses are
consecutively examined (and cross-examined) in one continuous hearing
session, not in a piecemeal way in the May-rain style.
The importance of witness evidence in Japanese procedure should be

underlined here. Traditionally, the Japanese, even those in the business,
do not use writing as often and as extensively as practiced in the Western
world. A contract, even if rendered into writing, tends to be short and
summary. A typical business contract traditionally has a last clause
saying, “If a dispute arises, both parties will talk sincerely to solve it
amicably.” There is a feeling that to demand a detailed written agreement
at the time of contracting is not a correct thing to do because it may be
taken by the other party as a manifestation of distrust and an
anticipation of a breach. The substantive law normally does not require a
writing for a contract to be enforceable. Procedural law also does not limit
evidence to a writing. Therefore, once litigation arises, testimonial
evidence often plays a crucial role rather than documentary evidence,
which tends to be scarce. This background leads in turn to a crucial role
of witness examination in litigation.
The common law type of concentrated witness examination is
possible only where the parties (lawyers) are well prepared. Successful
concentration requires the cooperation and willingness of the lawyers
involved. Concentration will also impose a formidable task upon the busy
courts in the scheduling of hearings. Under the May-rain type hearings,
literally hundreds of cases have been dealt with simultaneously by a
single judge in a piecemeal fashion. If one case takes a whole day, many
other cases must be delayed. It is systematically impossible for such a
judge to schedule a concentrated testimony taking for one case without
affecting the progress of all other cases.
Despite those practical difficulties, concentrated testimony taking is
increasingly conducted in varying degrees today. Even examining only
two witnesses in one session is great progress from the old practice where
only one witness was normally examined in one session sometimes
leaving the cross-examination for the next session two to five months
later. Concentration of any degree will necessarily lead to a speeding up
of the process and avoidance of possible change of the judge. It has been
reported that in the Tokyo District Court, the largest first instance court
of general jurisdiction in Japan, concentration is already practiced by
almost all judges if its definition is more than one witness being
examined in one session of hearing. There are also many cases where all
adopted witnesses are examined in one day, a real common law type of
concentration.
It is important, however, to notice that if the lawyers are not willing
to conduct witness examinations in a concentrated manner, there is no
way to enforce it. However, it is said that the lawyers have in fact become
more and more cooperative in the concentrated witness examinations
proposed by the judge, a fruit of well processed preparatory proceedings.
Combined with efficient preparatory proceedings, a successful
concentration of witness examination greatly expedites the civil process.

As a matter of fact, statistics show that the period from the filing of an
action to the termination of the first instance proceedings was markedly
shortened during the last twenty-five years. The following table shows
the average time spent between the filing of the complaint and the close
of the case in the first instance courts:
Table I: Average time (months) between the filing of a complaint
and the closing of a case in all 50 district courts in Japan,
including cases of default and termination by
settlement or withdrawal.
Year 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002
Months 12.2 10.9 10.1 9.8 10.1 10.2 10.0 9.3 9.2 8.8 8.5 8.3
Year 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014
Months 8.2 8.3 8.4 7.8 6.8 6.5 6.5 6.8 7.5 7.8 8.2 8.5
(Table I includes cases of default and termination by settlement or

withdrawal. The next table shows a more realistic picture of the average
time for contested cases with witness examination.)
Table II: Average time (months) between the filing of a complaint
and the closing of a case in all 50 district courts in Japan
in contested cases with witness examination
Year 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002
Months 22.7 21.8 21.1 20.9 21.1 21.3 20.8 20.8 20.5 19.7 19.2 18.7
Year 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014
Months 18.3 18.2 19.3 18.8 18.5 18.7 18.8 19.1 19.6 19.7 *** 20.0
Medical malpractice litigation and intellectual property litigation

normally require a longer period of time and they are most likely
contested. The following table shows the statistics for medical malpractice
cases and intellectual property cases concluded either by a final judgment
or by settlement:
Table III: Medical Malpractice Litigation
Year 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002
Months 41.6 39.8 42.3 41.7 39.3 37.5 36.8 35.6 34.8 35.6 33.0 31.1
Year 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014
Months 28.0 27.7 27.4 25.5 23.9 24.7 25.9 24.9 25.9 25.1 23.8 23.3
Table IV: Intellectual Property Litigation
Year 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002
Months 31.1 29.6 31.9 23.1 23.7 22.7 25.0 25.7 23.1 21.6 18.3 16.8
Year 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014
Months 15.6 13.8 14.1 12.1 13.8 13.1 12.8 14.8 14.2 16.8 16.1 15.0
Although the reduction of the time period can be said to be

remarkable in medical malpractice and intellectual property cases, these
two types of cases still require a much longer time than ordinary cases in
part because of the complicated nature of the dispute and expertise
required. The court usually retains an expert witness which adds
considerable time to the proceeding. It is not uncommon to see a battle of
experts in Japanese courts, another sign of adversariness of the Japanese
civil procedure.
As shown in the above tables, Japanese civil litigation under the new
Code became in general much faster than before. This was of course a
result of concentrated witness examination and a better scheduling of the
whole proceedings. But the enthusiasm accompanying a reform effort
always tends to wane as the time goes by. Subsequent amendments,
described below have been salutary. The Law for Expeditious Judicial
Proceedings was promulgated in 2003. It required the Supreme Court to
conduct a survey every two years of the time needed for concluding
various judicial proceedings and make it known to the public. Thus the
Supreme Court has so far published 6 reports starting from 2005, the
report of 2015 being the most recent. According to the reports, the
average length of civil litigation has been kept more or less constant after
2002. See Tables I and II. In medical malpractice and intellectual
property litigation, however, there has been a notable improvement in
time to disposition. See Tables III and IV.
5. Additional Amendments
One of the issues dealt with by the most recent amendment to the
Code of Civil Procedure, in force from April 2004, related to the problem
of expertise in court. The new institution called the “expert commissioner”
was established by this amendment. The commissioners are appointed in
various fields of expertise and their participation in the proceedings in
the capacity of a neutral advisor is anticipated. For example, a chemical
expert can participate in the preparatory proceedings in litigation arising
from a pharmaceutical patent to help the judge and the lawyers
understand the dispute better and find out the real issue more efficiently.
The same rule of disqualification and challenge as those for judges apply
to the expert commissioner. Various safeguards are introduced (such as
consent of the parties and disclosure of information) to protect the
interests of the parties from undue influence of an expert commissioner.
This new institution considerably decreases the necessity of appointing a
formal expert witness who requires a good deal of time and expense.
Commissioners are paid only a modest fee by the court for the service.
However, this will not make a real expert witness unnecessary in proper
cases. The amended Code has also streamlined the procedure for expert
witness examination.
It would be appropriate at this juncture to explain some other
significant points of the 2003 amendment of the Code. There are two more
important features which are both directly related to the theme of this
chapter:
1. Introduction of the obligatory “Planning of Proceedings”: Where
the court considers a case to be complicated as, for example, involving
industrial pollution damages, medical malpractice, a large construction
project, etc., it must establish a chronological agenda for the future
procedural steps on the basis of consultation with the parties. The plan
must fix the time frames for the preparatory proceedings and for witness
examination and provisionally set the anticipated time of conclusion of
the hearing and rendition of the final judgment. It is said that the idea
was taken from the commercial practice of fixing a delivery date at the
time of contract. When the court is retained, it should make a
commitment for the delivery date of its final product, i.e., the final
judgment, by fixing a time table for necessary steps to be taken before
reaching it. Here again a successful plan can be made and complied with
only where the court can avail itself of good cooperation by the lawyers
concerned. Cooperation has been obtained in a good number of important
litigations, if not in all.
2. Adoption of pre-filing evidence discovery measures: The 1996
new Code expanded the scope of document production order and
introduced a system of inter-party inquiry as described earlier. But these
devices are only available after filing of an action. It is sometimes

necessary to have sufficient information in order to formulate a
complaint. Therefore, a 2003 amendment enables the prospective plaintiff
to issue a questionnaire to the prospective defendant after having given a
notice of the general nature of the intended action. The amendment
further provides for assistance by the court for (a) collecting evidence held
by a public office or a third person (such as police record of a traffic
accident or weather report of a certain date), (b) securing an expert
opinion on a specific matter (such as authenticity of a handwriting) or (3)
verification by the sheriff of the state of a specific thing (such as present
condition of land border in a border dispute). This is in addition to the
pre-existing devices for preservation or perpetuation of evidence before
the institution of an action, but the requirement is more stringent
because the court must recognize a danger of disappearance of the
evidence sought.
Better preparation, concentrated witness examination, better
scheduling, etc., all require much work and responsibility not only of the
participating lawyers but also of the judge in charge. Frequent contact
between the court and the lawyers becomes necessary. For that purpose,
a competent administrative support system is needed so that the judges
can concentrate on their proper tasks. In this respect, the new role of the
court clerk should be particularly mentioned. The court clerks are no
longer subordinate officers but are independent role players side by side
with the judges. The court clerks posted in litigation management
constantly contact the parties (lawyers) for various purposes, such as for
scheduling or for a more substantive matter like clarification of
allegations.
3. An American type of class action has long been proposed by
consumer groups, practitioners, scholars and some political parties. But
due to strong opposition from industrial groups no legislation was
possible until 2006 when a first legislative step was taken by enabling
certified consumer groups to sue a company for injunction against the use
of certain contract terms. This was achieved in 2006 by amending the
Consumer Contract Law of 2000. Dissatisfaction with the lack of
monetary recovery mounted and a compromise solution was finally
reached in 2013 by a new statute which can be called the class action law
in Japanese style and was admittedly inspired by the Brazilian law.104
The new scheme is two-staged with the first stage an action by a certified
consumer organization for establishing the liability of the defendant.
When liability is found by the court, individual claimants are invited to
opt-in to prove their damages and an individual judgment is given to each
104 See Antonio Gidi, Class Action in Brazil: a Model for Civil Law Countries, 51 Am. J.
Comp. L. 311 (2003); for the English text of the Brazilian law, id. The Class Action Code: a Model
for Civil Law Countries, 23 Arizona J. of Int’l & Comp. L. 37 (2005).
claimant. This is the only remedy available to the individual claimants. If

the amount of damages suffered by each of individual claimant is too
small to justify the monetary and/or psychological burden of opting-in, the
defendant company will not suffer any monetary loss despite its
established liability. This is a legislative compromise. The law has been in
force since October 2016, so it is too early to think about the next step to
be taken for the system to come closer to the American model.105
4. Civil actions as incidental to criminal cases: The issue of the
protection of victims of a crime has attracted attention worldwide. The
Japanese Code of Criminal Procedure was amended in 2007 by
incorporating certain new provisions intended for protection of the
victims. One of the new measures was the revival of a private action for
damages as part of a criminal case. This is a traditional French
institution that was adopted by the pre-War Japanese Code of Criminal
Procedure, but was abolished when the new American styled Code was
adopted in 1948. Students should find it interesting that a great part of
French case law of tort has been developed by the criminal court through
this system. In Japan the civil action may be exercised at the same time
as the public prosecution and before the same court. It is admissible for
any cause of damage, whether material, bodily or moral, which ensues
from the actions prosecuted.
6. Prospects and Conclusion—The Need for Solid

Infrastructure
From a broad comparative point of view, the trend of reform of civil
procedure in Japan, both in law and practice, seems to show a direction
toward a bifurcation of pre-trial and trial stages typical of common law
procedure. It must be remembered, however, that it is not because of an
absolute necessity as in the common law system, which was originally
based, and still based largely in the United States, on the tradition of the
jury trial. Where no such systemic necessity exists, a combination of good
preparation and a concentrated witness examination could be brought
about only by hard work and cooperation among the judge and the
parties. The recent reforms seem to have attained at least a certain
degree of success. A judge of the Tokyo District Court who served before
and after the reform remarked in an article in 2002, “The present civil
procedure in my court may look to an uninformed eye like a procedure in
a foreign country. It is so fundamentally different from the situation ten
years ago.”106 Moreover, there is currently an optimistic mood and
desirable enthusiasm of cooperation among the actors concerned—the
105 Michael J. Madderra, The New Class Actions in Japan, 23 Pacific Rim L. & Policy J. 795
(2014).
106 Takahisa Fukuda, Minjisosho no Atarashii Jitumu (New Practice of Civil Litigation),
1077 Hanrei Taimuzu 26 (2002). Translation by Professor Yasuhei Taniguchi.

judges, the lawyers, and the clerks. But the mood and enthusiasm have a
limit unless supported systematically by a necessary infrastructure.
As suggested earlier, it is very difficult given the present state of
court congestion to conduct a concentrated witness examination because
it would affect the hearing schedule of hundreds of other cases. The main
cause for the congestion is the small number of judges in Japan, another
structural difference from the German system, where about 10 times as
many judges per capita are operating. Although having increased by the
yearly rate of 100 in recent years, in Japan, there are only 3000 judges of
full qualification plus about 800 summary court judges who can only
serve in the lowest level courts of limited jurisdiction below the district
courts.
The number of civil cases is smaller than in most Western countries
but too large for the small number of judges and lawyers. It must be
recalled, moreover, that most of these cases brought to the court are
difficult cases legally and factually because, for the Japanese, litigation is
the last resort, to be used only after all kinds of effort to solve a dispute
have failed. Accordingly, the settlement rate of actual cases is only about
30 per cent. Therefore, the judge’s burden to hear the cases and to write
final judgments is very heavy. They usually work at night and over the
weekend to write judgments.
There are numerous structural problems which have been
reconsidered on the basis of the 2001 report of the Justice System Reform
Council107 to the then-Prime Minister, Mr. Koizumi. It recommended
making the civil justice system more “user friendly” and proposed a
radical increase of judges and lawyers as the top priority matter. The
organized bar has long been demanding the adoption of the common law
type judiciary of lawyer-judges rather than the existing civil law type
judiciary of career judges. Currently, the recruitment of judges from the
bar is very limited, less than ten a year, mainly because of reluctance on
the part of individual lawyers. The report of the Council took a positive
posture toward a system change in this respect. If this sort of reform is
adopted to staff a substantial part of the judiciary by former practitioners,
the landscape of Japanese civil procedure will change drastically. But
such a change does not seem to be likely in the near future.108
Some smaller but significant structural reforms had already taken
place even before the report in the direction of making the court “user
friendly.” For example, the filing fee which must be paid by the plaintiff
107 An English version of the report is available at the Prime Minister’s website: http://www.
kantei.go.jp/foreign/judiciary/2001/0612report.html.
108 A small number of young judges are already sent to law firms for two years or to
administrative agencies or private enterprises. As a compromised solution, it has been proposed

that every LTRI student aspiring to be a judge should be required to practice for 5 years.
Actually, though, its adoption is unlikely.
and is pro-rated to the amount in controversy was considerably reduced

in view of a criticism that it was an onerous obstacle to litigation. It was
further reduced in 2003. The so-called round-table court room was
introduced even prior to the 1996 Code. This type of court room has no
high platform for the judge. Everybody participating in the proceedings
sits at the same large round table, creating an informal atmosphere that
facilitates exchanges of documents. Many such court rooms have since
been created in district and summary courts.
It will be only after all these large and small structural changes are
completed that real civil procedure reform will also be completed. It will
take years and hopefully the present mood and enthusiasm will continue
to persist to support a lasting effort.
The justice system reform movement has paid little attention to the
problems of pro se litigation. The prevailing view seems to be that pro se
litigation is a vestige of the past and will fade away when enough lawyers
and sufficient legal aid are provided. When pro se litigation is necessary
because of a shortage of practitioners in an area, an increase of lawyers
will be the solution. If a lawyer is not retained because of high cost, an
expanded legal aid and the system of loser-pays-winner’s-lawyer will be a
solution. If a smooth and expedited procedure demands cooperation of the
parties, nobody can expect of a lay litigant the same kind of cooperation
as of a professional lawyer. An indigenous element of Japanese civil
procedure is the existence of a sizable amount of pro se litigation—the
question is whether this element will or should simply fade away.
Japanese civil procedure departed from its German model by not
adopting the system of Anwaltszwang (compulsory representation by a
lawyer). This brought a serious discrepancy between legal principle and
practice when the element of adversary system of the common law was
implanted in the Japanese procedure in the post-War period. The 1996
Code tried to correct the problem by allowing the judge to change the
order of witness examination. Thus, the principal examination or the
cross examination by a pro se litigant can be taken over by the judge. This
unique burden of Japanese civil judges attracted the attention of four civil
judges who organized a survey of the judges who had dealt with pro se
litigation. As anticipated, many judges were found willing to extend help
to pro se litigants in a variety of situations to some degree. Interestingly,
in Japan, the number of pro se litigations has not markedly decreased
even as the number of practicing lawyers greatly increased as the result
of the legal education reform.109
109 Kyoko Ishida, Goddess of Justice without a Blindfold: How do Japanese judges treat pro
se litigants?, in John O. Haley & Toshiko Takenaka, eds., Legal Innovations in Asia 212
(Edmond Elgar Pub., 2014).
Pro se litigation set the standard for Japanese civil procedure in May-
rain type proceedings in the sense that lawyers were as dependent on the
judge’s paternalistic guidance in the conduct of litigation as a lay litigant.
However, once lawyers have transformed themselves into an independent
professional on par with judges, a real difference between the two types of
litigation must emerge and may pose a serious practical problem to the
court.
Thus, the main stream of thought is that the pro se litigation is an
anomaly at least in the district courts and above, which should be
eradicated by increasing the number of lawyers and expanding the legal
aid program. There is also a strong argument that Japan should finally
adopt the system of compulsory representation by a lawyer when a
sufficient number of lawyers have been secured. This is certainly a
possible argument. If this line of development is eventually taken, one
important indigenous element of the Japanese civil procedure will
disappear.
It is interesting, however, to see that a contrary argument has
recently emerged inspired by American studies of law and psychology.
These studies show that if a litigant has personally participated in the
dispute resolution process he or she has a greater feeling of satisfaction
whether or not the outcome is favorable.110 As a matter of common sense,
we can endorse such observation. The nature of the pro se litigation and
an empirical comparison between the two types of litigation should be
studied more seriously with an empirical method and the result must be
analyzed from a broader perspective than a simple point of view of
efficiency. If we reach a conclusion that the pro se litigation is a socially
useful device for dispute resolution, a more difficult problem would be
how to implement such a legitimate need. Must a new type of procedural
scheme be created? What kind of infrastructure is needed to support the
system? Should the need instead be satisfied by a sort of ADR
mechanism? It is interesting to see how this rather fundamental problem
of the Japanese civil procedure will be finally resolved in the years to
come.
Some pessimism about the new Code seemed appropriate when it
was adopted in 1996. In particular, there was concern that the kind of
enthusiasm which supported the experience of the “argument-settlement
session” might not be long lasting. Fortunately, pessimism seems to have
proved wrong. After two decades of enforcement of the new Code, the
enthusiasm surrounding the reforms seems to have receded but some of
the important aspects of the reforms are now firmly rooted in Japanese
practice. An efficient preparatory procedure at the outset and early
110 See, e.g., E. Allan Lind and Tom R. Tyler, The Social Psychology of Procedural Justice
(1988); Tom R. Tyler, Citizen Discontent with Legal Procedures: A Social Science Perspective on
Civil Procedure Reform, 45 Am. J. Comp. L. 871 (1997).
scheduling for the future steps followed by one or two concentrated

testimony taking sessions are well settled in the large district courts’
practice. Thus, the May-rain seems to have been largely transformed to
the August shower, which falls hard rather than frequently. For cases
involving complicated technical issues, the use of expert commissioners is
now common and has become indispensable for efficient disposal of
certain kinds of cases. Because a document production order has become
easier to obtain, voluntary submission of essential documents has become
rather common. On the other hand, some of the new procedural devices
adopted by the new code or its subsequent amendments stay only in the
law and not utilized in practice. For example, the aforementioned pre-
action evidence discovery measures adopted by the 2003 amendment to
Code of Civil Procedure are not utilized in practice.
As stated above, Japanese civil litigation under the 1996 Code
became much faster than before. See Tables I–IV, supra. This was of
course a result of concentrated witness examination and a better
scheduling of the whole proceedings. But enthusiasm accompanying a
reform effort always tends to wane as the time goes by. A continuous
effort is needed to make the achievement permanently settled. As noted,
the Law for Expeditious Judicial Proceedings was promulgated in 2003
requiring the Supreme Court to conduct a survey every two years about
the time needed for concluding various judicial proceedings and make it
known to the people. The reports show that the pace of litigation in Japan
improved markedly after 1996. See Tables I–IV, supra. On the other
hand, a complaint is often heard from the members of the bar about the
judicial rigidity to conclude the case as soon as possible even against the
parties’ intention to continue.
III. OTHER SYSTEMS: AN APOLOGIA

By no means do the jurisdictions selected for treatment in this book
provide an exhaustive account of the variety of dispute resolution systems
found in the world. While the reader will find references to the rules of
nations other than England, Italy, Japan, and the U.S. in the chapters
that follow, large gaps remain. Notable by their absence are some of the
world’s largest nations—China, India, and the Russian Federation. Nor
will the reader find anything specifically about Africa or the Islamic
world. For these omissions we apologize and offer the following
explanation. In large part these gaps reflect the limits of the authors’
collective expertise—we have followed the time-honored writers’ dictum
to “write about what you know.” Moreover, we contend that insofar as
their formal systems of dispute resolution are concerned, many of the
nations omitted have been so influenced by the systems discussed in the
text that one can infer much about the basics of their approach. This is
the case, for example, with India and its neighbor Pakistan. Each of them
SEC. III OTHER SYSTEMS: AN APOLOGIA 61
was subject to British rule and each has—with different modifications—

retained the basic structure of English civil procedure as it was at the
time of their independence in 1947. The same is true of many of those
nations in Africa that were also English colonies, and of Israel, whose
processes continue to reflect in part the British Mandate period (1922–
1948). Then there are the many nations that are part of the “civil law
world” to which we alluded earlier. These include not only South America
but also countries as diverse as Senegal, Korea, Turkey, and Egypt.
The situation in the People’s Republic of China and the Russian
Federation is more complex. Each is developing a post-socialist legal
system in the light of its own distinct traditions. With respect to China, it
is said:
While certainly there are Chinese traditions, and socialist
doctrinal requirements in the legal system, the fact of its system
being more inquisitorial than adversarial, its “trials” not being
recognizable as a single event, its judges playing a larger role in
collecting the evidence and examining witnesses, the different
role of lawyers (with little cross-examination and little pre-trial
discovery) and no juries, merely describes the traditional civil
law approach as much as the Chinese approach. However, to be
sure, the actual legal and judicial system in China has its
distinct “Chinese characteristics” that distinguish it from pure
civil law. And, as in all countries, law and how the law is applied
in practice must be separately examined and understood.111
As to Russia, one contemporary observer acknowledges that
“historically, Russia adhered to the continental model” but argues that
“[t]he Russian style of civil procedure is not simply a continental or
Anglo-Saxon system possessing classical civil and common law features,
but a unique system possessing exceptional features that do not exist in
either of these traditional approaches.”112 He notes that under the Code of
Civil Procedure adopted in 2002 Russian civil litigation shares with the
civil law model a leading role for the judge at trial, the absence of a civil
jury, the lack of class actions, and the use of court-appointed experts. Like
the common law process, however, the judge is not responsible for
gathering the evidence and the trial process includes a preliminary
session which is “manned mainly by the opposing parties.” The role of the
judge is unique to Russian process, he argues, because of the manner in
111 Ronald C. Brown, Understanding Chinese Courts: Law with Chinese Characteristics xxi
(1997). See also Carl F. Minzner, China’s Turn Against Law, 59 American J. of Comparative Law
953 (2011), which describes the de-emphasis of court adjudication in China.
112 Dmitry Maleshin, New Russian Civil Procedure in the Context of Cross-Cultural
Interaction, presented at the 2006 Kyoto Congress of the International Association of Procedural
Law, at 1.
which “the court and the disputing parties share an active role in the
litigation process.”
Readers interested in pursuing any system in depth have a growing
number of English-language sources available to them. In addition to the
many works devoted to a single nation, descriptions of litigation systems
in many of the world’s nations can be found in the Encyclopedia of
International Commercial Litigation, Anthony Colman, General Editor
(1991; Supp. 2005) and the International Encyclopedia of Laws: Civil
Procedure, Pict Taelman, General Editor (2001; supp. 2005). Some books
collecting reports presented at international conferences are also useful:
Civil Litigation in a Globalizing World (X.E. Kramer and C.H. van Rhee,
eds.); Common Law, Civil Law and the Future of Categories (Janet
Walker and Oscar G. Chase eds.) (2010); Civil Procedure in Cross-
Cultural Dialogue: Eurasia Context (Dimitri Maleshin ed.) (2012).
References to other procedural systems can be found in Oscar G. Chase
and Vincenzo Varano, Comparative Civil Justice, in The Cambridge
Companion to Comparative Law (Mauro Bussani and Ugo Mattei eds.)
(2012), a book which includes informative descriptions of several legal
traditions not treated in this work, such as the East Asian, the Jewish,
the Islamic, the Sub-Saharian, and the Latin American and Caribbean
legal Traditions. In the same perspective, much information can be found
in the Symposium: Law, Religion and Secularism, 52 A.J.C.L. (2004),
which includes articles on Islamic Law, Afghanistan, Nigeria, and India.
A scholarly and sensitive treatment of modern legal systems in the
context of traditional dispute resolution is found in Werner Menski,
Comparative Law in a Global Context: The Legal Systems of Asia and
Africa (2d ed. 2006). An extensive bibliography compiled by the staff of
the NYU School of Law Library is available at http://www.nyulawglobal.
org/Globalex/Comparative_Civil_Procedure1.html.

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NEW YORK UNIVERSITY

LAW & ECONOMICS RESEARCH PAPER SERIES

Civil Litigation in Comparative Context

Oscar G. Chase, Helen Hershkoff, Linda J. Silberman, John Sorabji, Rolf

Electronic copy available at: https://ssrn.com/abstract=3041554

Chapter 1. An Introduction and Overview................................................. 1

Electronic copy available at: https://ssrn.com/abstract=3041554

o. Closed Material Proceedings .............................................. 29

Chapter 2. The Structure of the Legal Profession ................................. 63

Electronic copy available at: https://ssrn.com/abstract=3041554

Chapter 3. Organization of the Courts .................................................... 137

Rolf Stürner, The New Role of Supreme Courts in a Political and

Pasquale Pasquino, The New Constitutional Adjudication in

Chapter 4. Initiating a Law Suit, Defining the Issues, and

Notes and Questions ........................................................................ 329

Chapter 5. Resolving the Case in the First Instance Court: The

Richard W. Hulbert, Comment on French Civil Procedure ................... 370

Chapter 6. Simplified Procedures, “Short Cuts” to Judgment, and

Chapter 7. Appeal ......................................................................................... 431

Chapter 8. Aggregation of Parties, Claims, and Actions .................... 481

II. Joinder of Parties ..................................................................................... 483

Chapter 9. Finality and Preclusion .......................................................... 563

B. England ............................................................................................. 570

Chapter 10. Enforcement of Judgments ................................................. 595

Astrid Stadler and Wolfgang Hau, The Law of Civil

Chapter 11. Transnational Litigation...................................................... 643

E.Japan ................................................................................................. 654

Comparative Observations .............................................................. 708

Chapter 12. Harmonization ........................................................................ 715

AN INTRODUCTION AND OVERVIEW

The German Advantage in Civil Procedure,2 has prompted a great deal of

2 52 U. Chi. L. Rev. 823 (1985).

B. CATEGORIZING THE WORLD’S LEGAL

because the categories are imperfect at best—differences between nations

at hand? Do any of the systems strike you as noticeably preferable to others?

II. AN OVERVIEW OF DIFFERENT

in the Austrian or German model of procedure than in the Italian or in

2. The Machinery of Justice: Courts and Judges in the Civil

15 See Chapter 3, Section V.

3. The Proceeding of First Instance

prosecution, and vice versa.

hearings, the case is “prepared,” attempts at settlement are effected,

her duty through the imposition of an astreinte.23 In turn, art. 11 of the

though with qualifications, oral proof of contracts involving more than a

27 See generally Schlesinger, supra note 8, at 777–778.

parte nel sistema dell’ oralità 22 (1962).

with England coming close under the new Rules of Procedure.

countries enshrined in the Constitution.32 The style of the decision varies

32 See, e.g., the Italian Constitution, art. 111 para. 6.

the debtor wishes to contest the order of payment issued summarily by

proceedings rather than as a totally separate review”,40 i.e., a “second

40Murray & Stürner, supra note 14, at 16.

judicial remedy under national law”—refer issues concerning the

7. Alternative Methods of Dispute Resolution

43 See art. 234 (formerly art. 177) of the European Treaty.

46 See Taruffo, supra note 26, at 177–179.

48 For an exhaustive comparative treatment, see Schlesinger, supra note 8, at 879–885,

meet an ever growing demand of justice. In a number of areas there are

8. The Performance of the Civil Law Procedural Model:

49Trocker & Pailli, supra note 39, at 181.