Dispute Resolution: International & Civil Procedures

• Dispute resolution involves various aspects of international and civil procedures, emphasizing both permissible actions and methods of settling conflicts between states or individuals.
• International law operates on the principle that everything is allowed unless explicitly prohibited, as highlighted by the LOTUS case, requiring consent from independent sovereign parties.

State Sovereignty and International Law

• States possess equality, sovereignty, and independence, preventing any superpower from exerting control.
• Lawmakers are subject to the international system, adhering to rules established through express consent.
• States must give power to international courts as all disputes should involve international law rules within a system of sovereign states where any conduct is allowed unless forbidden.

Global Civil Procedure (GCP)

• GCP is country-specific but considers the global dimension due to globalization.
• It utilizes global rules as best practices, employing economic analysis of law to build these practices.
• It focuses on cost efficiency to determine the cheapest mode of litigation, which may be economically good but potentially unfair.
• Different procedures in different countries are compared, which differs from economic analysis
• The adversary system in common law countries like the US contrasts with the non-adversary approach in countries like Italy.
• GCP does not address cross-border procedure issues like jurisdiction, applicable law, evidence, and enforcement but provides a list of best practices for fair and efficient systems focusing on initiating litigation and achieving fair outcomes.

Harmonization and EU Instruments

• Harmonization involves different procedural rules across countries.
• The PTCP principles are relevant, and the EU has instruments that can be directly applied, with Article 81 TFEU addressing judicial cooperation in civil matters with cross-border implications.
• The EU can modify laws for cross-border implications and harmonize domestic codes.
• The ELI aims to create uniformity and model rules, impacting both common law (including the UK) and domestic legislation, furthering the development of European law.
• If a judge engages in ex parte communication, ELI suggests this is grounds for replacement to ensure impartiality with judges expected to consult parties before the first hearing, influenced by common law.

Harmonization Pros and Cons

• Harmonization allows for the import and transformation of mediation from common law, using soft law to adapt based on different countries' cultures.
• Harmonization faces resistance due to national sovereignty and legal traditions, with the concept of justice being Western-oriented. Including different perspectives ensures broader acceptance of rules, moving beyond Western thinking.

Economic Analysis of Law

• Laws are set based on incentives that reflect the value of litigation based on what a lawyer is willing to pay.
• Common law system is considered efficient because the court creates the law and the judge is not paid to be a legislator. Judges want respect, so the risk of precedent change is low, but they focus on making "good" law, which reduces litigation costs by using information from previous cases.
• Settlement is difficult before both parties show all their cards

Procedural Law vs Justice

• Procedural law defines the rules to attain a fair outcome, emphasizing procedural fairness as a path to truth. Outcomes are considered fair only if the procedure is fair while balancing fairness and efficiency.
• The US emphasizes due process as a core element of procedural justice without specific detailing, while Article 6 of the EU Convention of Human Rights guarantees the right to a fair trial, including impartiality.
• Parties must be heard.

Common Law vs Civil Law

• Common law: Judge makes decisions based on similar precedents adaptating change the law by their decisions; remedies are inventive but based on following precedent.
• Civil law: Legislator sets decisions (which might not be coherent); Judge just interprets and starts from remedy and adapts from the constitution.

Adversarial vs. Non-Adversarial Procedures

• Democracy depends on adversarial procedures, where a judge maintains passivity, controlling the process without intervening.
• In pre-trial, lawyers present cases with "cards on the table”, disclosing evidence and witnesses with final determination occurring during trial after lawyers engage with each other.
• Civil law is rooted in rights, with decisions that are not always coherent.
• In civil law, judges interpret laws, starting from remedies and changing the interpretation of the law.
• Non-adversarial trials are conducted and controlled by judges, with the trial process, evidence presentation, and questioning controlled by the judge.

Alternative Court Procedures

• Some dispute mechanisms are alternatives to traditional court adjudication due to limited access to justice.
• Alternative court-based procedures include quick resolutions in front of a judge based on law application, as seen in Italy with summary relief.
• GER has procedures for small claims based on equity, not law.
• Interim proceedings occur before hearings.
• Judicially-led settlements help parties find agreements with the court's facilitation.
• US rules specify how a settlement should form and the scope.
• A judge's involvement during settlement can create the problem of bias.

Justice and Proportionality

• Substantive justice: grants everyone to get to court.
• Distributive Justice: grants impartial talk to happen.
• Civil law systems have more rules for impartiality.

Consensual Justice and ADR

• Consensual justice involves settlements.
• ADR includes mediation, settling negotiations.

Cross Border Civil Procedures

• Cross-border civil procedures deal with disputes that involve more than one country.
• Each state has rules and authority to regulate matters that could lead to conflict with other countries.
• Forum and law shopping allows one to use different laws and apply the one that is more effective.
• EU regulations about cross-border disputes involve cross-border competence based on Article 81.
• The ECJ interprets European law for uniform harmonization of cross-border law.
• The lex fori is the law of the state that has the jurisdiction to decide the case.
• After the dispute has commenced, the lex fori applies

Conflicts of Law and Private Funding

• Substantive parts of law may be in conflict.
• One would apply the law to determine competence.
• Private funding in EU is not accepted in EU

Scope of Brussels Regulation

• Ratione materiae: Only for civil and commercial matters.
• Ratione personae: state where the defendant is domiciled

Exclusive Jurisdictions

• Used for weak parties and where immovable property sits.

Lugano Regime

• Follows same rules as Brussels Regulation.
• Choice of court agreement: Is it valid?

Principle of Severability

• The clause is independent of the contract

Choice of Court Agreement

• Exclusive: only one court can make a decision

Cross Border Litigation

• Claims need notification
• legal awareness
• service of pleading

Domestic Cross Border Rules

• What to do when from the state which starts the sending and not the person that is notified.

Recognition and Enforcement of Foreign Judgements

• Freedom is protected by the pillars
• Equalization of effects.

Grounds of Refusal

• Recognition is contrary to public policy.
• If judgements are in contrast with a previous one from other states.

International Commercial Arbitration

• Alternative way to resolve disputes than litigation in court.
• Similar structure to court

Arbitration

• Used by private parties from different countries.
• Has an arbitration clause.

Soft Procedural Law

• Can say just to take soft law.

Standard Procedure

• Is not part of the rules for arbitration
• Take 1 year

Recognition and Enforcement

• Decide on sovereignty if a different decision from another country has to be executed in your country.

International Dispute Settlement

• No prohibitions for states to have settlement systems

States

• Can negotiate
• mediate
• inquire
• conciliate
• no way for the court to impose law

International Law

• Customary with force
• Disagreement of matter
• International dispute: Settles through rules of international law.

Pacific Settlement

• UN contains positive regulations for members to settle disputes peacefully.
• shall --- obligation in Art 33 UNC. Means states need to work to settle a problem.

International Treaties

• Need consent
• Is dispute exists?
• International law

Notion to Settle

• Dispute to no longer exist