Legal Studies Research Paper Series No. 2013-119
Civil Procedure in Cross-Cultural Dialogue: Eurasia Context
Marcel Storme
Independent
Michael Treushnikov
Independent
Peter Gilles
Goethe University Frankfurt
Oscar G. Chase
New York University School of Law
Vincenzo Varano
University of Florence
Alessandro Simoni Sr.
University of Florence
Neil H. Andrews
University of Cambridge - Faculty of Law
Jerome Cohen
Nataliya Bocharova
Moscow Lomonosov State University
Tsisana Shamlikashvili
Independent
Carrie Menkel-Meadow
Georgetown University Law Center; University of California Irvine, School of Law
Alan Uzelac
University of Zagreb, Faculty of Law
Christian Koller
University of Vienna
Teresa Arruda Alvim Wambier
Pontifical Catholic University of Sao Paolo
Yulin Fu
Peking University
David Chan
City University of Hong Kong (CityUHK)
Peter CH Chan
City University of Hong Kong (CityUHK) - School of Law
Miklós Kengyel
Andrássy University Budapest
Elisabetta Silvestri
C. H. (Remco) Van Rhee
Maastricht University
Inge Lorange Backer
University of Oslo
Dmitry Heroldovich Nokhrin
Constitutional Court of the Russian Federation
Richard Marcus
University of California Hastings College of the Law
Dmitry Maleshin
Moscow State University - Faculty of Law
David Bamford
Flinders University - School of Law
Margaret Woo
Northeastern University - School of Law
Chiara Besso
University of Turin
Viktória Harsági
Peter Pazmany Catholic University
Serban Vacarelu
Maastricht University
Danie Van Loggerenberg
Andre Boraine
University of Pretoria
Murat Ozsunay
Independent
Jeffrey E. Thomas
University of Missouri-Kansas City School of Law
Vladimir Yarkov
Urals State University
Azamat Saliev
Independent
Viktor Blazheev
Moscow State Law Academy
Ales Galic
University of Ljubljana
Komarov Vaycheslav
Independent
Janet Walker
York University - Osgoode Hall Law School
Vicki C. Waye
School of Law UniSA
Vince Morabito
Ada Pellegrini Grinover
University of Sao Paulo (USP)
Stefaan Voet
Ghent University - Faculty of Law
Jasminka Kalajdzic
University of Windsor - Faculty of Law
Rachael Mulheron
Queen Mary University of London, School of Law
Helene Van Lith
Erasmus University Rotterdam (EUR) - Erasmus University
Dmitry Tumanov
Moscow State Law Academy
Per Henrik Lindblom
Uppsala University
Eugeny Sukhanov
Moscow Lomonosov State University
Valery Musin
Saint Petersburg State University
Federico Carpi
Moscow Lomonosov State University
WORLD CONFERENCE
ON CIVIL PROCEDURE
CIVIL PROCEDURE
IN CROSS-CULTURAL DIALOGUE:
EURASIA CONTEXT
OCEDURE IN CR
OSS
-CUL
TUR
AL DIAL
OGUE:
ASIA C
ONTEX
T
The idea is to discuss the evo-lution of civil procedure in differ-ent societies, not only in the well-known civil or common law systems, but also in dif-ferent countries of Eurasia, Asia, etc. Civil pro-cedure in Europe and North America is a subject of enormous scientific and practical importance. We know a lot about these systems. But we do not know enough about civil procedure in the rest of the world. How does it work and what are the main prin-ciples? Culture is one of the main factors that makes
civil procedure of these countries different. Therefore it is necessary to discuss the main links between
dif-ferent systems of civil procedure.
The discussion was held on the basis of national report from 24 countries, at the all there were
OF THE CONFERENCE
Prof. Chase, New York University
(N. America)
Prof. Deguchi, Ritsumeikan University
(Asia)
Prof. Pellegrini Grinover, University of São Paulo
(S. America)
Prof. Maleshin,
Moscow State Lomonosov University (Eurasia)
Prof. Cadiet,
University of Paris 1 Pantheon-Sorbonne (Europe)
Prof. Bamford, Flinders University
ª Bartolius Advocate Bureau
ЮРИДИЧЕСКИЙ ЖУРНАЛ ДЛЯ ПРОФЕССИОНАЛОВ
Legal Journal «Civil Procedure Herald»
CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION SUPREME COURT OF THE RUSSIAN FEDERATION SUPREME ARBITRAZH COURT OF THE RUSSIAN FEDERATION
ASSOCIATION OF LAWYERS OF RUSSIA MOSCOW STATE LOMONOSOV UNIVERSITY
CIVIL PROCEDURE
IN CROSS-CULTURAL DIALOGUE:
EURASIA CONTEXT
IAPL World Conference on Civil Procedure
18–21 September, 2012,
Moscow, Russia
CONFERENCE BOOK
ББК 67.410
C 58
С 58 Civil Procedure in Cross-cultural Dialogue: Eurasia Context: IAPL World
Con-ference on Civil Procedure, September 18–21, 2012, Moscow, Russia: Conference Book / Ed. by Dmitry Maleshin; International Association of Procedural Law. – Moscow: Statut, 2012. – 608 p. – На английском языке.
ISBN 978-5-8354-0874-0 (hardcov.)
The idea is to discuss the evolution of civil procedure in different societies, not only in the well-known civil or common law systems, but also in different countries of Eurasia, Asia, etc. Civil procedure in Europe and North America is a subject of enormous scientific and practi-cal importance. We know a lot about these systems. But we do not know enough about civil procedure in the rest of the world. How does it work and what are the main principles? Cul-ture is one of the main factors that makes civil procedure of these countries different. There-fore it is necessary to discuss the main links between different systems of civil procedure.
The discussion was held on the basis of national report from 24 countries, at the all there were participated from more than 40 countries.
УДК 347.9 ББК 67.410 ISBN 978-5-8354-0874-0
Printed in the Russian Federation
© Authors, 2012 © Translators, English translation, 2012 © Statut Publishing House, editing, proofreading, layout, 2012
OF THE CONFERENCE
Dmitry Maleshin, coordinator (Moscow State Lomonosov University);
Nataliya Bocharova, website, general support (Moscow State Lomonosov University);
Tatiana Moiseeva, executive secretary (Moscow State Lomonosov University);
Lubov Skulskaya, visa assistance (Moscow State Lomonosov University);
We would like to express our gratitude to Marcel Storme, Oscar Chase, Loic Cadiet and other IAPL Presidium members for accepting our invitation to organize an IAPL conference in Moscow.
We extend our special thanks to the representatives of our local co-organisers and sup-porters for sharing our idea of brining IAPL in Russia:
• Valery Zorkin, Chairman of the Constitutional Court of the Russian Federation
• Vyacheslav Lebedev, Chairman of the Supreme Court of the Russian Federation
• Anton Ivanov, Chairman of the Supreme Arbitrazh Court of the Russian Federation
• Pavel Krasheninnikov, Chairman of the Association of Lawyers of Russia
• Alexander Golichenkov, Dean of the Moscow State Lomonosov University Law Faculty
For their able and dedicated support, we extend our sincere appreciation to:
Elena Kravchenko (Constitutional Court); Tatiana Andreyeva, Vladislav Starzhenetskiy (Supreme Arbitrazh Court); Irina Reshetnikova (Arbitrazh Court of Ural region); Sergei Chucha, Konstantin Rebets (Moscow Arbitrazh Court); Elena Borisenko (Ministry of Justice); Igor Manilov, Igor Redkin, Zhunus Djakupov, Denis Panshin, Kirill Yakimenko, Polina Tsybko (Association of lawyers of Russia); Maria Sazonova, Vladimir Yarkov (Fed-eral Notary Public Chamber); Konstantin Korsik (Moscow Notary Public Chamber); Olga Duzheva, Alexander Kosovets, Yanis Vafin, Alexander Shevchenko (Moscow State Lomonosov University); Viktor Blazheev, Dmitry Kutafin, Olga Maslova, Sergei Rossin-sky, Alexey Svistunov (Moscow State Law Academy); Sergei Nikitin, Yuly Tay (Russian Academy of Justice); Sergei Gerasimov, Vladimir Gureev (Russian Law Academy); Damir Valeev (Kazan (Volga-Region) Federal University); Galina Uletova (Academic Law Insti-tute); Viacheslav Komarov (National Law Academy of Ukraine); Hasan Mirzoev (Russian Academy of advocacy and public notary); Svetlana Kocherga, Pavel Fedorov (Moscow State University of economics, statistics and informatics), Eugeny Sherbak (Moscow State Public University); Dmitry Sumskoy (Russian State Social University); Alexei Zabelin, Lilya Pod-dubnaya (Moscow Finance and Law University); Vladimir Zernov, Alexei Tartishniy (Rus-sian New University); Nikolai Manyak (Krasnodar region court); Yan Piskunov (Gazprom Media); Dmitry Magonya (Art de Lex Law firm); Ivan Marisin (Quinn Emmanuel Trial Lawyers), Kirill Samoilov (Statut Publishing), Anton Treushnikov (Gorodets Publishing), Ivan Sleptsov (Pravo.ru), Elena Povorova (Journal «Judge»).
We would never have been able to publish the Russian Volume of this Conference book without assistance in translation reports of our speakers from English into Russian of the following students and post-graduated students: I. Dibirov, A. Ivlieva, M. Lomko, I. Maslov, M. Panferov, S. Pischikova, G. Sotnikov (Moscow State Lomonosov University); P. Astafiev, L. Fatkhullina, A. Halimova, L. Mirasov, G. Muradynova, D. Muflihanov, V. Polyakov, M. Rakhimov, G. Yagudina (Kazan (Volga-Region) Federal University); L. Badykov, K. Ryahovsky (Russian Law Academy) and from Russian into English – N. Baradanchenkova, A. Mamayev, A. Neznamov, N. Roshupkin, E. Salikova, A. Shir-shova, K. Sergeeva (Ural State Law Academy).
FOREWORD ... 8
GREETINGS ...10
Loïc Cadiet, President of the International Association of Procedural Law ...10
Valery Zorkin, Chairman of the Constitutional Court of the Russian Federation ...11
Vyacheslav Lebedev, Chairman of the Supreme Court of the Russian Federation ...13
Anton Ivanov, Chairman of the Supreme Arbitrazh Court of the Russian Federation ...15
Pavel Krasheninnikov, Chairman of the Association of Lawyers of Russia ...16
KEY SPEECHES Marcel Storme, Honorary IAPL President, Best science, worst practice? ...17
Michael Treushnikov, Head of Civil Procedural Department Moscow State Lomonosov University Law School ... 26
Peter Gilles, Johann-Wolfgang-Goethe-University Professor ...31
SESSION 1. Dispute Resolution in Different Societies: formal and informal procedures General Report Oscar Chase, New York University School of Law ...37
National Reports Italian Report: Vincenzo Varano, Alessandro Simoni, University of Florence Law School ... 42
English Report: Neil Andrews, Cambridge University ... 56
Chinese Report: Jerome Cohen, New York University School of Law ... 68
Russian Report: Nataliya Bocharova, Moscow State Lomonosov University Law Faculty ... 82
C.I.S. Report: Tsisana Shamlikashvili, Center for Mediation and Law ... 87
American Report: Carrie Menkel-Meadow, Georgetown University Law Center ... 90
SESSION 2. Goals of Civil Justice General Report Alan Uzelac, Zagreb University Law Faculty ... 111
National Reports Austrian Report: Christian Koller, University of Vienna ...136
Brazilian Report: Teresa Arruda Alvim Wambier, Pontifical Catholic University of São Paulo ...157
Chinese Report: Fu Yulin, Peking University ...164
Chinese (Hong Kong) Report: David Chan, Peter C.H. Chan, City University of Hong Kong ...172
Hungarian Report: Miklós Kengyel, Andrássy University ...181
Italian Report: Elisabetta Silvestri, University of Pavia ...187
Dutch Report: C.H. (Remco) van Rhee, Maastricht University ...196
Norwegian Report: Inge Lorange Backer, University of Oslo ... 209
Russian Report: Dmitry Nokhrin, Constitutional Court of the Russian Federation ...217
American Report: Richard Marcus, University of California ...227
SESSION 3. Civil Procedural Systems: Pro and contra General Report Dmitry Maleshin, Moscow State Lomonosov University Law Faculty ...235
National Reports Australian Report: David Bamford, Flinders University ...245
Brazilian Report: Teresa Arruda Alvim Wambier, Catholic University of São Paulo ...253
Chinese Report: Margaret Woo, Northeastern University School of Law ...265
Italian Report: Chiara Besso, University of Turin ...269
Hungarian Report: Viktória Harsági, Pázmány Péter Catholic University ...277
Romanian Report: Serban Vacarelu, Maastricht University ... 290
South African Report: Daniël van Loggerenberg, André Boraine, University of Pretoria ...310
Turkish Report: Murat Ozsunay, Ozsunay law office ...316
American Report: Jeffrey Thomas, University of Missouri – Kansas City School of Law ...328
SESSION 4. Harmonisation of civil procedural law in Eurasia General Report Vladimir Yarkov, Ural State Law Academy ...335
National Reports Kyrgyzstan Report: Azamat Saliev, Kyrgyz-Russian Slavic University ...365
Russian Report: Viktor Blazheev, Moscow State Law Academy ...377
Slovenian Report: Aleš Galič, University Ljubljana ...386
Ukrainian Report: Vyacheslav Komarov, Yaroslav the Wise Law Academy of Ukraine ...401
SESSION 5. Cultural Dimensions of Group Litigation General Report Janet Walker, York University, Osgoode Hall Law School ... 413
National Reports Australian Report: Vicki Waye, University of South Australia, and Vincenzo Morabito, Monash University ...458
Brazilian Report: Ada Pellegrini Grinover, University of São Paulo ...474
Belgium Report: Stefaan Voet, Ghent University ...477
Canadian Report: Jasminka Kalajdzic, University of Windsor ...487
Italian Report: Elisabetta Silvestri, University of Pavia ... 506
Dutch Report: Hélène van Lith, Erasmus University ...512
Russian Report: Dmitry Tumanov, Moscow State Law Academy ...521
Swedish Report: Per Henrik Lindblom, Uppsala University ...529
Discussion Panel Spain: Javier Sánchez, University of Zaragosa ...538
Russia: Dmitry Magonya, Art de Lex Law firm ... 543
SESSION 6. Commercial Arbitration in Eurasia National Reports Russian Report: Eugeny Sukhanov, Moscow State Lomonosov University ... 549
C.I.S. Report: Valery Musin, Saint Petersburg State University ... 556
APPENDICES Federico Carpi, University of Bologna, History of International Association of Procedural Law ... 562
By-Law of the International Association of Procedural Law ... 568
List of Presidium, Council and members of the International Association of Procedural Law ...572 List of General and National Speakers on the IAPL Moscow Conference,
September 18–21, 2012 ... color section Supporters and partners of the IAPL Moscow Conference,
The word «Eurasia» has different meanings. It could be considered as a form of global-ization, suggesting that Europe and Asia are integrated. Another conception ascertains that there is a huge territory on the frontiers of Europe and Asia which shares similar cultural characteristics. Moreover, there are sometimes close political, economic and historical backgrounds in Eurasian nations. Their law also has similarities. Civil procedure in this part of the world (and also in others) is under great pressure because of cultural diversity. This process became very impressive during the last decades. While legislation became very similar in Europe and Asia, there is a big gap in the real practice of civil justice between these regions and other parts of the world.
Globalization is not a good word to use with respect to law and civil procedure, although in the contemporary highly interacted and cooperative world national frontiers in law and civil procedure become very transparent. On the other hand national character has become much more glaring. As a result, civil procedure nowdays has two opposite trends: legisla-tion becomes closer and similar, but there are many differences in real civil justice in the realization of this similar legislation. Justice in Europe, Asia and America differs from each other no less than centuries ago even as legislation has become similar. The reason is the cultural difference. It couldn’t be erased even in the globalization era. Therefore nowadays we have a unique situation: legislation is similar, but practice is different.
In this new procedural environment, comparative civil procedure has a crucial role. We need to organize international scholarly meetings and discuss the problems that occur in the realization of similar legal constructions in different societies. The International As-sociation of Procedural Law is the best platform for this dialogue. It was founded in 1950 in Europe and during half a century became truly international organization which joins proceduralists from all the continents and 64 countries.
In Russia and other former USSR nations we pay close attention to all IAPL activities. However, just a few Soviet scholars participated in IAPL conferences during the last century (V.Puchinsky, M.Gurvich). During the last ten years Russian participation became much more active and as a result we have invited IAPL to meet in Moscow.
The topic of Moscow conference is «Civil procedure in Cross-cultural Dialogue: Eurasia Context». Its main idea is to discuss the evolution of civil procedure in different societies, not only in the well-known civil or common law systems, but also in different countries of Eurasia, Asia, etc. Civil procedure in Europe and North America is a subject of enormous scientific and practical importance. We know a lot about these systems. But we do not know enough about civil procedure in the rest of the world. How does it work and what are the main principles? Culture is one of the main factors that make civil procedure of these countries different. Therefore it is necessary to discuss the main links between differ-ent systems of civil procedure. We have six sessions devoted to the typical civil procedural problems in which cultural specificity plays an important role: 1) Dispute Resolution in Different formal and informal procedures; 2) Goals of civil justice; 3) Civil procedural
systems: pro and contra; 4) Cultural Dimension of Group litigation; 5) Harmonization of civil procedure in Eurasia; 6) Commercial Arbitration in Eurasia.
We want to show that culture in the contemporary world has a much more important role than centuries ago regarding procedural justice. Here in Russia we always had a mix of two different cultural models (collectivism and individualism) and in the entire civil procedural system our legislator tried to establish the best rules for this mix and tried to draft legislation effective for both sides. That’s why we have «Eurasia context» in our conference topic. We want to discuss and explore how does the legislator in Russia and other Eurasian countries with mixed cultures draft effective civil procedural legislation at the cultural cross-road of West and East, of Europe and Asia. We want share this unique experience with our colleagues from other countries and think that it could be very useful in the contemporary era of globalization and cultural interaction.
This is the first time that Russia hosts a world conference of the International Associa-tion of Procedural Law and it’s a great pleasure and honour for us to welcome proceduralists from all over the world and from more than 40 countries!
Loïc Cadiet
President of the International Association of Procedural Law
At the initiative of the Moscow State University, with the support of the Constitutional Court of Russian Federation, the High Commercial Court of Russian Federation, the Supreme Court of Russian Federation and Association of Lawyers of Russian Federation, the International Association of Procedural Law is happy to welcome you in Moscow on 18–21 September 2012.
I sincerely hope that you can join the community of leading procedural lawyers from all around the world in order to hear and discuss their opinions on «Civil procedure in cross-cultural dialogue». The speakers will deal with a large set of issues combining legal and cultural aspects: Dispute Resolution in Different Societies: formal and informal procedures; Goals of Civil Justice; Civil Procedural Systems: pro and contra; Cultural Dimension of Group Litigation; and Harmonisation of Civil Procedure in Eurasia.
Today the International Association of Procedural Law has nearly four hundred mem-bers worldwide, representing more than 50 countries. For the first time an IAPL conference will be held in Russia and for the first time an IAPL conference will focus on procedural relationship in Eurasia. The history of the International Association of Procedural Law, founded in Florence in 1950, is the history of a collective challenge. Generation after generation for over sixty years, we are writing together this history like a novel chain. On behalf the International Association of Procedural Law, I warmly invite you to attend the Moscow conference and write a new chapter of this common novel after our XIV World congress in Heidelberg (July 2011).
Dear Colleagues!
Dialogue of cultures in legal (including procedural) sphere represents the indispensable condition of construction and development in today’s rapidly globalizing society’s originally effective system of the law and order. It is therefore quite explainable that the corresponding themes are taken out as main subject of discussion at the World Conference of the Interna-tional Association of Procedural Law. Only based on dialogue of experts from the different countries mutual enrichment of a legal reality (by studying and learning of the best legal approaches) is capable to lead to a true global convergence in the field of a procedural law.
It is understandable that the main discussion at the Conference is supposed to lead on issues of civil justice. Clearly, the state of the relevant procedural areas of science and practice, in fact, depends crucially on the effectiveness and viability of the entire system of private law. Civil law in its broadest sense, by fixing substantive law, finally cannot be prop-erly put into practice without adequate looking to the needs of civil procedural law. But neither the first nor the other cannot be considered corresponding to modern standards if have not embraced and did not specify the constitutional principles.
Under the conditions occurring before our eyes globalization of the legal space of such problems it is impossible to solve without creative thinking and perception of the legal experience which has been saved up in the various countries and regions of the world. In this regard, it is impossible to overestimate a role and value of the International Association of Procedural Law which is for today of one of the largest international organizations to coordinate scientific work on carrying out of comparative researches on the topical issues arising in the sphere of procedural law.
These include, in particular, the transformation of the role of judicial decisions. Already today, it appears, it is possible to say with confidence that litigation (including the proceed-ings in civil cases) generally acquires the features not only for judicial enforcement, but also the procedures of compulsory interpretation of legal norms, and often – law-making. Even within the continental law system, where since codifications of the beginning of a XIX cen-tury was considered that «the judge - only the lips uttering words of the law», the traditional understanding of the litigation exclusively as a procedure of interpretation and application of the rules currently undergoing into the significant change. I am sure that today is es-sential to deep the doctrinal interpretation of this phenomenon, carrying out that is called, on a joint of constitutional and procedural legal concepts and categories.
In connection with noted strengthening of regulatory role of judicial acts also the value of legislative guarantees of independent implementation of justice increases more and more. Moreover, independence of court and judges simultaneously is the important guarantee of the right of citizens on judicial protection and a guarantee of impartiality of court as a prerequisite for making a fair decision. It should be noted that the independence,
impartiality and fairness, of course, require real protection from the court, also attempts to pressure not only from other entities and officials of public authorities, but from the other subjects of political, economic and social life. An effective decision of this problem in to-day’s environment requires not only combination of the efforts of procedural lawyers around the world, but also a kind of synergetic fusion of new ideas and approaches generated in the framework of procedural science, and as part of the modern doctrine of constitutionalism.
The rapid development of information and communication technologies opens es-sentially new spectrum of problems, calls and possibilities before justice. To a formed electronic society and the electronic government with inevitability should correspond-ed electronic law-making, electronic enforcement. Of course, this does not mean the transformation of justice in the «electronic», but would mean (and already mean) the formation of a fundamentally new environment to realization the constitutional rights and freedoms (including its due procedural rights) and involves the implementation of justice in the making of some new elements. What will be this environment substantially depends on how the content of legal science and practice will fill the space offered by the global electronic forms of technological activity.
On behalf of the Constitutional Court of the Russian Federation, I wish the partici-pants of the World Conference of the International Association of Procedural Law inter-esting and fruitful studying both listed above, and many other actual problems lying in a plane of procedural activity. I am convinced that the results of your work in this area in the very near future will be embodied not only in the new proceedings, but also in practi-cal improvement of judicial procedures.
Dear Colleagues!
The subject of discussion of the World Conference in Moscow was on the problems of development of a civil procedural law - system of the rules regulating the proceedings and relationship between court and other legal parties for the implementation of justice on civil cases. This gives to forum a special significance and relevance.
The Russian Federation – a democratic law-governed State. In the Constitution of the Russian Federation it is declared that the man, his rights and freedoms owns the supreme value, and the recognition, observance and protection of the rights and freedoms of man and citizen are duties of the State. The judicial authority solves the problem of protection of these rights and freedoms through the proceedings, and its efficiency is in many respects defined by the quantity of perfect procedure of its implementation..
Procedural law – one of the fundamental branches of law, which has its separate subject and method of research, its history and theory.
Civil process, as a joint activity of court and the parties, directed on a resolution of disputes, classically it is developed and presented back in the Roman law. From those far times, this branch of law is constantly developed and improved. However, despite high enough degree of a readiness of the modern civil procedural law, in no way it is impossible to assert that a science and practice in this direction have stopped in the development.
With occurrence and development of new progressive relations, demanding the legal regulation, the system of procedural law is constantly supplemented with new rules, insti-tutes, branches and becoming more sophisticated and effective.
The special importance and necessity of continuous improvement of a civil procedural law is caused by that circumstance that it directly co-operates with many branches of the law, including civil and, moreover, constitutional, family, real estate, labor, land, criminal etc. norms proclaimed and fixed by the specific rights and freedoms of the man and the citizen.
Procedural law sources are rather various. Among them the Constitution of the Rus-sian Federation, the Civil Procedural Code of the RusRus-sian Federation, the rules of other branches of the Russian law, the Hague Convention on Civil Procedure, to which our country jointed in 1967, as well as many international legal agreements and treaties of the Russian Federation with other countries.
It should be mentioned that the conventional principles and norms oof international law and international treaties according to Part 4 of Articles 15 of the Constitution of the Russian Federation are a part of Russian legal system also are widely applied in to practice of the resolution of civil cases by the Russian courts.
Operation of civil procedure gives to legislative norms vitality, determine their legal value. Proclaimed in the Constitution of the Russian Federation and law right and
freedoms are real because their judicial is possible protection and promotion of civil procedural means.
The development of modern procedural law visible trend to the complexity of its pro-cedures, that is understandable, bearing in mind that one of the main tasks States is the maintenance and protection of human rights of citizen, as the legal status of the individual.
Other reason of complication of procedural forms is the constant scientific and tech-nical progress involving more and more wide use difficult expertise, attraction of highly skilled experts, application of technical means for fixing and reproduction evidence etc in the evidentiary purposes.
Finally, the complication of procedural forms caused all increasing array of legislation and other regulatory legal material necessity for the correct and reasonable resolution of civil-law disputes that, in turn, requires specialization and constant improvement qualifica-tions of judges, lawyers, and high legal culture of others subjects of civil relaqualifica-tions.
All it confirms the relevance of discussion of scientific and practical problems of develop-ment of a procedural law, necessity and timeliness of carrying out of this World Conference on civil procedure.
These and many other important procedural issues expected their resolution. Therefore positive experience of other states represents doubtless scientific and practical interest. Rather interesting and useful to determine how this or that issue has been resolved in the other states.
Welcoming the participants of the World Conference on civil procedure, I wish you, dear colleagues, successful and fruitful work. I am confident that discussion of modern problems of development of a procedural law would allow as to develop scientific approaches to their decision, which will contribute the improving the practice of civil justice.
of the Russian Federation
Esteemed participants of the Conference!
The International Association of Procedural Law is a well-known and distinguished association of representatives of the judicial community, science and legal business. The Association has been holding conferences on the essential issues of civil procedural law in various parts of the world for several decades.
In September 2012 the Association will host the Conference on the territory of Russia for the first time. The topic of the Conference will be «Civil Procedure in Cross-Cultural Dialogue: Eurasia Context’. It is being organized with the active support of the Supreme Commercial Court of the Russian Federation.
The topic of the upcoming conference is up-to-date for the entire system of the Russian commercial courts, since the amount of disputes with the participation of foreign parties increases year by year.
The mentioned topic is also interesting from the historic point of view, because the modern legal systems of the European and Asian countries now share traditions of civil law as well as of common law. These two origins continue to interact and influence each other.
I consider that the Conference of the International Association of Procedural Law can become an excellent forum for establishing contacts, developing procedural law and sharing experience with regard to the best achievements of the legal doctrine, since distinguished representatives from many countries will take part in its work.
Dear colleagues!
This year the International congress submits a subject of development and topical issues of a civil procedural law for discussion.
The civil procedural law is a part of the general system of law, submits to its regularities and the general principles of a structure of the law.
Civil legal proceedings and defining civil procedural law should promote legality and order strengthening, the prevention of offenses, formation the respect for the law and court.
Terms of civil procedural law contain in a large number of sources. Obviously, quanti-tative growth of legal acts in itself isn’t an indicator of development of legal regulation of the procedural relations.
In this regard, the increasing urgency gets a question of Improvement of law-enforce-ment activity, increasing of its efficiency depends on streamlining and providing appropriate quality of the legislation. Similar character activity is called as legislation ordering.
The purposes of ordering are: creation of well-ordered system of the laws possessing qualities of completeness, availability and convenience of using regulations, elimination of out-of-date and inefficient terms, permission of legal collision, elimination of gaps and legislation updating.
The legislator and all citizens need ordering of legal acts.
These and many other questions and problems need discussion and the decision there-fore the setting of the international congress represents considerable scientific interest. Improvement of terms of a procedural law, exchange of experience of the solution of dif-ferent problems takes the integral place in improvement and development of practice of civil legal proceedings.
To all participants of the congress we wish comprehensive studying of actual problems and new ideas on improvement of a civil procedural law.
Marcel Storme1
B
estscience,
worstpractice?
It must have been nearly 10 years ago, in 2003, when, during a lunch break, Dmitry Maleshin and I were sitting beside the swimming pool in our Mexico City conference hotel, and I was saying to my worthy colleague that it would surely be a good thing if our International Association for Procedural Law were to hold its conference in Russia in the near future.
It was the first occasion on which, as the then Chairman of this Association, I had put forward this proposal. Although the Iron Curtain had fallen in 1989, there had only been one occasion on which we had moved our meetings to Central and Eastern Europe, more particularly to Lublin in 1991. It is true that, at a much later date, we also met in Vienna/ Budapest (2005) and in Pécs (2010).
The reason for this was probably that, apart from our Polish and Hungarian «troops», there had been no significant participation in our activities by colleagues from this part of Europe.
All this changed with the involvement of Dmitry Maleshin, who became an active participant in our activities and succeeded in enticing a number of his eminent Russian colleagues into our Association.
I was particularly keen to place this on the record at the start of this Conference, before embarking on my keynote address.
* * *
The starting point for my keynote speech is the statement made by our Honorary Chairman, Federico Carpi, in the first issue of the Revue internationale de droit processuel («Problemi prospettive della giustizia civile in Italia» in [2000] IJPL – RIDP, 6 et seq.) which reads as follows: «La divaricazione fra il livello scientifico della dottrina processualcivilistica
e la vita pratica di tutti i giorni dei Tribunali»2. This notion of a divergence between theory and practice had already been highlighted by Mauro Cappelletti with his reference to the «noble dream» of legal literature and «the nightmare» of legal practice3.
From an international survey carried out by myself, it emerged that this fault line was experienced virtually everywhere on this planet. It therefore becomes legitimate to ask the following question on a worldwide level: «Why, in spite of the excellent standard reached by
1 IAPL Honorary President (Belgium).
2 «The gap between the scientific level of scholarly writing in the field of procedural law and everyday
prac-tice before the courts».
the legal literature in the field of procedural law, does the latter all too frequently fall short of this standard in practice?»
Reasons for this gap
The actors
When seeking to identify these reasons behind this gap we should pay particular atten-tion to the manner in which the actors comport themselves during their involvement in this complex process. As will be repeatedly emphasised later, the human element plays a major part in this. «The system of civil justice also has a largely human element» (N. Andrews,
Nurturing civil justice, p. 2).
What this means is that we should not set our sights on the relevant legislation, legal literature, legal practice or court decisions. Instead, we should focus our analysis on the way in which legislatures, leading authors, lawyers and judges go about their business.
(1) The legislatures
a) There are legislatures which seek to regulate every aspect of society. Given that present-day society has lost its way everywhere on this planet, our lawmakers are seized of the notion that the appropriate way to remedy all this is to issue all manner of laws and regulations.
Many legislatures try to meet the demands of widely diverging interests; at the same time they issue panic-induced legislation as a reaction to sudden random incidents – «hard cases make bad law».
All these developments have a damaging effect on the quality of the legislation issued, which in turn has an adverse effect on the judicial process. Complex laws render it difficult for the parties involved, as well as for the judges, to interpret and apply them. Too much legislation is damaging to the law.
b) There are also legislatures who seek solutions in judicial procedures. It all started with the Code de procédure civile of 1806. Even as this Code was being issued, one of its authors, Jean-Baptiste Treilhard, stated that «Le succès du Code dépendra beaucoup et de l’autorité
à qui son exécution est confiée et de la conduite des officiers ministériels qui le pratiqueront chaque jour»1(Locré, T. XXI, p. 5490550).
In the same vein, the author of one of the best Codes of civil procedure (öZP), Franz Klein, averred that the reform of civil procedure can only be achieved «wenn alle
Prozessbe-teiligten guten Willens sind und wenn unaufhörlich auf diesen guten Willen hingewirkt wird»2. The Belgian Code of Judicial Procedure (1967) was prepared by a formidable twosome consisting of a lawyer and a judge. This was in order to avoid the Code being inundated with theoretical and dogmatic material.
A similar two-man team ensured that the so-called Stuttgarter Modell resulted in a successful amendment of the German Code of Civil Procedure (ZPO). This model was
1 «The success of the Code will to a large extent depend on both the authorities entrusted with their
imple-mentation and the actions of the ministerial officials who will operate it on a daily basis».
2 «…where all those involved in court proceedings show good will and everyone unremittingly works
achieved thanks to the collaboration between Fritz Baur, Professor of procedural law at Tübingen University, and Rolf Bender, Chairman of the Stuttgart Court. The product of this collaboration can best be compared with the Dutch «case management conference» model (comparitie na antwoord – C&A). Following the initial stages of the dispute between the parties – writ of summons and defense pleadings – the parties will appear before the judge and a settlement will very frequently be reached.
Finally, procedural law has experienced a remarkable process of internationalisation and harmonisation, whereas previously, judicial proceedings had been firmly embedded in national laws and regulations.
The first indication of this was a highly interesting project which was entirely in the hands of procedural law experts from Latin America in collaboration with the Iberian Peninsula – namely the Codigo tipo-iberoamericano. This Code was incorporated in its entirety into Uruguayan law, whereas some parts have been adopted by a number of South American countries.
I myself subsequently led a working party which formulated, for the benefit of the Euro-pean Commission, a number of rules aimed at harmonising the rules of judicial procedure within the European Union. The most important outcome of our report was undoubtedly the general acceptance that Europe also had jurisdiction to act in the field of procedural law. Accordingly, a number of EU regulations have been issued in recent years on the subject of small claims, uncontested claims, etc.
Nevertheless, I am seized of the fear that EU policy makers lack the necessary vision to introduce a coherent set of procedural rules (cf. M. Storme, «Harmonisation or globalisa-tion of civil procedure?» in X.E. Kramer and van C.H. Rhee, Civil Litigaglobalisa-tion in a Globalising
World (2012) The Hague, p. 379 et seq.; see also X. Kramer, Procedural Matters, Construction
and Deconstructivism in European Civil Procedure (2012) Rotterdam).
Finally, the «General Principles» were formulated by a working party led by Geoffrey Hazard Jr. The idea was that these principles should be observed in the event of transna-tional judicial proceedings.
(2) The leading authors
In my valedictory address as professor of Procedural Law, I expressed fulsome praise for legal literature, by stating that «legal literature is an academic paradise, where one enjoys
the greatest possible freedom to post new and original constructions. Our lawmakers, on the other hand, are subject to political agreements, compromises and pressure groups, whereas courts must reach their decisions within the boundaries of the facts and the law, and are pre-vented from delivering themselves of rulings purporting to be generally applicable» («Ik die bij de sterren sliep en «t haar der ruimten droeg» Metabletica van her procesrecht» (1995) Ghent, p. 38. I should, however, point out that, under Russia’s rules of civil procedure, «general applicability» (Allgemeingültigkeit) constitutes a fundamental rule of procedural law – ZEuP (2012), p. 7 et seq.).
All this explains my ambivalent attitude towards legal literature. Like Janus, the latter can be said to have two faces – one fixing its gaze on scholarship, the other on legal practice.
Scholars who only have regard for legal practice will produce work which has no schol-arly merit. If, on the other hand, they confine themselves to theorizing about the law they become divorced from reality.
Once the law amounts to no more than norm-positive dogmatic, and is no longer regarded as a science which concerns itself with the reality of everyday life, it become a luxury item, and legal practice is left to go faster downhill. Mauro Cappelletti had already described this process in masterly fashion in his foreword to Access to Justice:
«We conclude, therefore, by recognising that there are indeed dangers in enacting or even proposing imaginative access-to-justice reforms. Our judicial system has been aptly described as follows: This «beautiful» system is frequently a luxury; it tends to give a high quality of justice only when, for one reason or another, parties can surmount the substantial barriers which it erects to most people and to many types of claims. The access-to-justice approach tries to attack barriers comprehensively, questioning the full array of institutions, procedures and persons that charac-terize our judicial systems. The risk, however, is that the use of rapid procedures and inexpensive personnel will produce a cheap and unrefined product. This risk must continually be kept in mind.
The enactment of thoughtful reforms, mindful of the risks involved and with a full awareness of the limits and potentialities of the regular procedures, and regular attorneys, is what is really meant here by the access-to-justice approach. The goal is not to make justice «poorer», but to make it accessible to all, including the poor. And, if it is true that effective, not merely formal, equality before the law is the basic ideal of our epoch, the access-to-justice approach can only lead to a judicial product of far greater «beauty» – or better quality – than that we now have».
We are therefore facing the specter of a dichotomy between theory and practice (see also J.P. Van Droogenbroeck, «Le Conseil supérieur de la Justice et la formation des magistrats» in M. Storme (ed.), Le Conseil supérieur de la Justice, une évaluation après quatre ans (2005) Brugge, p. 79 at 97). For here, we have identified an important cause of the phenomenon under analysis, i.e. that in the law of procedure there is an inherent link between theory and practice.
(3) The judicial actors
It is my firm view that it is the actors involved in the trial, i.e. the lawyers and the judges, who are the root cause of the gap between theory and practice. The solution must therefore also be found with them.
(a) The lawyers
We need an efficient and stimulating system of legal training. The accent should be on training lawyers rather than on teaching law.
When teaching my course on procedural law at Ghent University, I was forever empha-sizing the fundamental distinction between those known as the «procedural manipulators» (les procéduriers) who use judicial procedures in order to delay proceedings and even make them collapse, and the «procedural engineers» (les processualistes), i.e. those who use ju-dicial procedures in order to expedite the course of the trial.
The Italian judge Oberto, Deputy General Secretary of the International Association of Judges, had some sharp words for the former category where he wrote «Vous ne pouvez
même pas vous imaginer quelles ruses cette veritable armée (les avocats) élaborent afin d’arriver à joindre les deux bouts. Les milliers de procedures manifestement mal fondées … sans que contre ces véritables abus des procedures les juges n’ont n’aient le moindre remède»1 (Le nouveau
pouvoir judiciaire, No. 387, December 2009, 39).
1 «You cannot begin to imagine the cunning stratagems contrived by this veritable army (of lawyers) in
whatso-Could it be that there are too many lawyers – given that there is a direct link between the number of lawyers and the number of court proceedings? It appears that there is a great deal more «trial hunger» in areas where the legal profession is oversubscribed. If we look at the most recent figures available for Europe (CEPEJ, Report 2010, data 2008, ch. 12, p. 236 et seq.) it is clear that the peak performers in this respect are to be found in Southern Europe. In Greece, there are 350 lawyers for every 100,000 inhabitants, 332 in Italy, 266 in Spain and 260 in Portugal, whereas the average figure is 120!
(b) The judges
Although the judges’ first and foremost duty is to ensure that their decisions are an expression of justice, there are certain members of the judiciary who prefer to write their decisions in the form of a scholarly paper.
Others are of the opinion that they have to play their part in shaping society. «Le
phé-nomène Magnaud» – after the French judge who gave his legal creativity full freedom to favor the weaker party – can still be encountered among the ranks of the present-day judiciary.
Others abuse the formalism of judicial procedures in order to prolong legal proceed-ings by such contrivances as obtaining a new trial. However, there are other factors which explain why some legal proceedings drag on for abnormally long periods. The manner in which the facts which gave rise to the dispute are presented to the court by the parties and their counsels can sometimes be incomplete and inadequate.
There are also courts where there is no case management at all and their organization becomes crippled, which is not conducive to the timely completion of proceedings.
(c) Relations between lawyers and judges
There are many countries where these two groups of actors, even though they are depen-dent on each other, have become totally alienated from each other. This appears to be the case especially in Italy, although there are other countries, such as France and Germany, where the Bar and the Bench form two separate worlds.
Nevertheless, they are involved in the same joint project – to resolve disputes between humans as expeditiously and justly as possible.
There should be no divergence between the duty to defend and the duty to judge. (d) The parties
Seldom, if ever, is any attention given to the parties themselves, who are, after all, the principal actors in court proceedings1.
It is they who decide to go to law; who adduce (or fail to adduce) the facts of the case and submit the necessary documents; who are capable of terminating court proceedings; who institute remedies (appeals), etc…
From my own experience, but also by analyzing actual case files, I know that many a delay in court proceedings can be caused by the parties themselves. The object should be to create «homines novi processuales» (see below).
ever that the courts can do about these abusive procedures, for that is what they are».
1 The «Dispositionsmaxime» was also introduced into the procedural law of the Russian Federation
dur-ing the 1990s (E. Kurzynsky-Sdur-inger and N. Pankevich, Freiheitliche Dispositionsmaxime und sowjetischer Pater-nalismus im russischen Zivilprozessrecht: Wechselwirkung verschiedener bestandteile einer Transformationsordnung (2012) ZEuP, 7 et seq.).
Finding an appropriate strategy
«In the same way that some plants only bear fruit where they do not shoot too high, so in the practical arts the theoretical leaves and
flow-ers must not be made to sprout too far, but kept near to experience, which is their proper soil».
Von Clausewitz, C., On War, Princeton University Press, 1976, p. 61. Having examined the causes of the difference in quality between legal literature and legal practice, it is appropriate to search for ways of closing this gap.
My first idea was to seek out a strategy which could be used by the judicial actors in order to improve the quality of legal practice. In so doing, I was mindful of two authors – one a Prussian general, Carl von Clausewitz, the other a French lawyer, Jacques Vergès.
A. Carl von Clausewitz
During my lectures on civil procedure, I regularly put it to my students that they might derive greater advantage from perusing the book «Vom Kriege» (1832–1834) by the Prussian general and military theorist Carl von Clausewitz than from reading the Judicial Code1.
Indeed, some passages of this work read like a manual on court procedure, as witness the following passages from the work in question:
«Where there is considerable scope for freedom of action, but the available resources are too weak in order to force a military outcome, one could apply the long-term conflict strategy in order to achieve the opponent’s moral exhaustion or attrition»
«Where one has powerful resources at one’s disposal, and the objective is on the modest side, merely threatening to deploy these resources can persuade an opponent to accept the conditions which one seeks to impose on him and at times cause him more easily to renounce claims of changing the status quo»
On the other hand, there is also a passage which indicates that winning a court action is not invariably the desired solution: «The ultimate objective of war is peace, and not
vic-tory, since peace is the leading idea in politics, and victory is, in fact, merely a means towards achieving this».
The above passages should not come as a surprise when one reads that Clausewitz uses the law as a metaphor for war. The law as applied by lawyers in court proceedings is not only the product of mutual activity between two parties, as is the case in war, but also a set of general rules which, in practice, are constantly subject to change.
In Vom Kriege the author attempts to construct a bridge between theory and practice. Ultimately, however, he did express his objections to military theorists who elevate rules to the status of dogma: «They aspire to achieve stable values, but in war everything is
uncertain, and it is necessary to make calculations using variable factors» (H. Strachan, Vom
Kriege van Clausewitz, een biografie (2009) Amsterdam, p. 78).
1 See also R. Aron, Penser la guerre, Clausewitz, Paris, 1976; H. Strachan, Carl von Clausewitz, On war, a
B. Jacques Vergès
The famous French criminal barrister once drew a distinction between «la stratégie de la
connivence» (co-operation strategy) and «la stratégie de la rupture» (confrontation strategy). The first of these strategies involves lawyers and judges treating each other with consid-erable courtesy and with a sense of professional fellowship amongst lawyers; they are also as obliging towards each other as possible, and they easily request, and accept, adjourn-ments etc.
Towards the judges they act most respectfully. They refrain from complaining on being informed of an adjournment – sometimes by several months – and show equanimity where the court is slow to reach its judgment.
The confrontation strategy, on the other hand, consists in the strict enforcement of time limits and judicial formalities, in objecting to every adjournment, failing to tolerate any departure from set procedures, demanding the intervention of the Court Principals at every possible opportunity, etc.
This strategy also involves acting in a surly manner towards the judge, criticising the latter’s every action, requesting the court registrar to record every departure from set pro-cedures, to complain to the Court Principals for anything which went wrong, etc…
I personally believe there is a third way, called «la strategie du respect» (the respect strategy). This involves respecting one’s opponent, whilst expecting the same from him; respecting the judges, whilst expecting the same from them, respecting the rules of civil procedure, which means observing the formalities, whilst at the same time respecting the rationale behind the rules which, in turn, means refraining from abusing the formalities, etc…
It is possible to distil a number of approaches from Jacques Vergès’s strategies. However, in order to bridge the gap between theory and practice it would appear more appropriate to draw up a list of precise remedies.
* * *
Ten remedies for bridging the gap
1. With a number of exceptions (namely the BRIC countries) the entire world is faced with financial austerity and other restrictions (R. Marcus, Procedure time of austerity Report, Heidelberg, 2001).
This naturally also affects the justice budgets. It is for the authorities to ensure a con-sistent budget, since adequate court decisions are a guarantor of the democratic model of society. Where the state fails to provide sufficient guarantees for the realization of this mis-sion, this means that the citizen seeking justice will have to make a financial contribution himself, which immediately makes access to justice extremely difficult to achieve.
However, that is not all. If the constitutional state is undermined because the rule of law is no longer respected, society becomes increasingly conflictual and the courts become overloaded. The conclusion is clear: strict observance of the basic rule of the constitutional state is of enormous benefit to the Justice departments’ budgets.
2. The second remedy is closely related to the first – citizens must be better trained in resolving their problems, whether legal or not, themselves. There are so many cases where this should be possible to achieve – disputes between neighbours, employment relations, family disputes…
3. Legal training must focus not so much on teaching law than on training lawyers, who must become «agents of peaceful change» (P. Gilles, Theorie und Praxis im Zivilprozessrecht, München).
The law is the best possible instrument for reforming society in a peaceful manner. Lawyers therefore have a duty to make optimal use of this instrument.
This involves drawing up clear and unambiguous contracts, effecting reconciliation between the parties involved in the dispute, making the jargon of the law accessible, etc.
Special attention should also be given to the training of judges. A powerful, in-ventive and independent judiciary is the best possible guarantor of adequate judicial proceedings.
4. There must be a great deal of synergy between all those who are involved in legal proceedings – mainly lawyers and judges. To these actors, the prophetic words of Leo Rosenberg, writing in 1956, remain applicable: «So liegt das Wesen des modernen
Zivilproz-esses in einer Arbeitsgemeinschaft von Richtern und Parteien, die dafür zu sorgen haben, dass dem Richter die sichere Finding der Wahrheit ermöglicht und in einem lebendigen Verfahren der Rechtsfriede unter den streitenden Parteien wieder hergestellt und damit der Frieden der Allgemeinheit gesichert werde»1(Lehrbuch des deutschen Zivilprozessrechts München–Berlin, 1956, I, p. 6). In this vein, it should be recalled that, with the Lord Woolfe reforms, the English law of civil procedure has become «less adversarial and more co-operative».
5. All this must be conducted in accordance with the rules, and this must be monitored on a continuous basis.
The role played by the monitors, who have been unemployed for a long time, is there-fore of prime importance. The Chairs of the various Bar Associations, as well as the Court Principals of each court, must, in their «watchdog» capacity, ensure that «their» lawyers and «their» judges comport themselves correctly.
This is all the more pressing because judges, thanks to their independent status, cannot work in a hierarchical manner and must therefore motivate themselves.
6. The fundamental principles of court procedure should also be revised.
I have in the past repeatedly advocated a reversal of the burden of proof – naturally in civil proceedings only. Thus the onus should fall on the party who disrupted the legal order, who failed to perform his/her contractual obligations, or who has caused loss. For more than 20 centuries we have acted in accordance with the «actori incumbit probatio» principle, and the complaints about the slowness of court proceedings continue unabated (Storme, M., «Fundamentele beginselen van procesrecht en hun nut voor de harmoniser-ing in Europa» in R. Van Rhee, F. Stevens and E. Persoons, Voortschrijdend procesrecht, Leuven, 2001, p. 207 et seq.).
In the same vein, one could advocate the reversal of the procedural burden or, as was advanced by Georges de Leval, «l’inversion du contentieux» («Au sujet de l’inversion du contentieux», Liber amicorum Droit et vie des affaires, Brussels, 1998, p. 211 et seq.), as happened in Germany with the introduction of the Mahnverfahren, in which it is the debtor who must challenge the order made against him.
1 «Thus the essence of present-day court proceedings is a working partnership between the judges and the
parties, whose task it is to ensure that the court can securely establish the truth and that, by means of lively pro-ceedings, the parties involved in the dispute can restore normal relations between themselves, thus achieving a peaceful outcome for society».
7. For Von Clausewitz, war was «a mere chameleon, because it changes its nature to
some extent in each concrete case». Hence the notion that, in the same way that each war is different, every court action is different and therefore needs to be handled on an ad hoc basis. Some disputes require more space; others are given too many oppor-tunities by the procedural rules to drag out the proceedings. Could we not customize each court action?
Arbitration proceedings could serve as an inspiration for this – here, the parties and the arbitrators together determine the arbitration proceedings from the outset.
One fundamentally new approach could consist in demarcating the scope of the civil dispute before it is allowed to reach the court (pre-trial diligence, comparable to pre-con-tractual diligence). It would then be for the court to bring the dispute itself to a successful conclusion in a manner which is specific to the nature and scale of the dispute – whilst observing the «fair trial» principle throughout. For an interesting application of this ap-proach I would refer to a recent paper by Richard Marcus: «Reviving judicial gatekeeping of aggregation scrutinising the merits of class certification» in The George Washington Law
Review ((2011) Vol. 79, no. 2, p. 324 et seq.).
8. A few years ago, the European Court of Human Rights correctly ruled that the right to appeal is not a general principle of law.
What reasonable explanation can there be for the same dispute, between the same par-ties, based on the same facts and presenting the same arguments – in most cases involving the same counsels – emerging as white at first instance and as black on appeal?!!
All over the world, technical procedures are being examined in order to rectify this bane. We should proceed further along this road and drastically reduce the use of appeal procedures.
9. In many countries, the view is abroad that the negative image suffered by the judi-cial process can in part be ascribed to the media. Obviously, there can be no question of restricting the media’s reporting of court proceedings in any way.
However, it is worth paying some attention to the Anglo-Saxon «sub judice» principle:
«Everyone should refrain from airing in public their judgment on cases which are pending before the courts and on which the latter have yet to render their ultimate decision» (M. Storme, Over
de noodzakelijke terughoudendheid der media in gerechtszaken. Sub judice principle revisited
in Liber Amicorum Jozef van den Heuvel).
This principle prevents people from virtually acting as joint judges, mainly in cases which involve trial by jury. This guarantees impartiality of adjudication, and therefore also ensures the quality of judicial decision-making. This impartiality is jeopardised by the media who have invaded the courtrooms like barbarians – the expression used by Alessandro Baricco (I barbari Saggio sulla mutazione (2006)).
10. Last but not least, there is a role to be played by our International Association in this respect.
During the 1980s the English biologist Rupert Sheldrake developed the doctrine of morphic resonance (Morphic fields and morphic resonance, An introduction (2005)). Morphic resonance is the phenomenon whereby, if something happens somewhere in the cosmos, the chances are great that the same phenomenon will repeat itself somewhere else.
The most straightforward example is that of the crossword puzzle. Because most people solve a crossword puzzle in the evenings, the chances are great that they will achieve better results than in the mornings, when only a few people engage in this activity.
Applying the morphic resonance doctrine to the law of civil procedure produces results which, in my view, are quite impressive. In 1973, the Florence access-to-justice project, led by Mauro Cappelletti, commenced operations. In his foreword, the latter justified the project in the following manner: «At the point, almost no comparative research had been
done in this area. From the beginning, the Project was concerned not merely with examining the problems of «access to justice» theoretically; its method was to seek out «promising solutions» which would give a concrete basis to the emerging discussion and contribute to further reform efforts. Without underestimating the working assumption has been that the comparative study of various «solutions» can reveal basic qualities that characterize effective reforms»
(Access-to-justice (6 parts), Milano, 1978, Part I, p. IX).
The year 1978 saw the publication of the entire range of comparative studies on access to justice in the broadest sense of the term. In 1980, the entire exercise concluded with a symposium, held in Florence, which was intended as an evaluation and summarising of the research performed.
For the first time, world-wide research was conducted in order to find ways of improving national procedural laws through comparative analysis. Thus was born the phenomenon known as «applied comparative procedural law».
This was also the period in which procedural law started to become a topic of interest worldwide (R.C. Van Caenegem, History of the European Civil Procedure, International
Encyclopedia of Comparative Law, New York, 1973).
In 1977, the first World Congress of the International Association for Procedural law took place in Ghent. New Codes were drafted, and the search was on for «best practices», and the campaign waged by Alessandro Pessoa Vaz for more oral, rather than written, procedures inspired our «more voices, less paper» symposium in Valencia. In addition, the trend towards a more proactive role for the judge in court proceedings has acquired an unstoppable momentum ever since our Coimbra conference.
My conclusions are clear. Thanks to morphic resonance, the activities of our Associa-tion have, throughout the world, helped to ensure that procedural practice also aspires to achieve the level of excellence reached by procedural literature.
Michael Treushnikov1
e
volutionofther
ussiancivilprocedureattheBeginningofthe
XXi
century2Dear Conference, legal scientist and practicing lawyers in the field of civil procedure of the various countries and continents!
I warmly welcome you in capital of Russia the city of Moscow, in its centre near to the Kremlin – the most beautiful architectural construction of the world and the political foundation of the Russian state in the context of government of a state.
1 Head of Civil Procedural Law Department, Lomonosov Moscow State University Law Faculty (Russia)
