Master Programme in European andInternational Law (LL.M.)

2nd semesterSummer term 2013

ModuleModuleModuleModule A:A:A:A: JudicialJudicialJudicialJudicial Procedure,Procedure,Procedure,Procedure, InternationalInternationalInternationalInternationalLitigationLitigationLitigationLitigation andandandand ArbitrationArbitrationArbitrationArbitration

Module Coordinator: University Autónoma of Madrid, Spain

CourseCourseCourseCourse title:title:title:title: ComparativeComparativeComparativeComparative CivilCivilCivilCivil ProcedureProcedureProcedureProcedureScholar: Remco van Rhee, Maastricht University,

The Netherlands

This document has been produced with the financial assistance of the European Union. The contents of thisdocument are the sole responsibility of Remco van Rhee and can under no circumstances be regarded as reflectingthe position of the European Union.

DescriptionDescriptionDescriptionDescription ModuleModuleModuleModule AAAA –––– JudicialJudicialJudicialJudicial Procedures,Procedures,Procedures,Procedures, InternationalInternationalInternationalInternational LitigationLitigationLitigationLitigation andandandandArbitrationArbitrationArbitrationArbitration

ModuleModuleModuleModule Coordinator:Coordinator:Coordinator:Coordinator:

Prof. Dr. José Luis Colomer, University Autónoma of Madrid.

DescriptionDescriptionDescriptionDescription andandandand Aims:Aims:Aims:Aims:

This elective module offers five different courses on international litigation, comparative civil procedure,comparative criminal procedure, international enforcement and arbitration and Alternative DisputeResolution.The first course covers major topics emerging from international civil disputes and focuses on the practicaland procedural aspects of litigating transnational private conflicts (international jurisdiction, foreignsovereign immunity, act of state doctrine, international service of process and taking of evidence,recognition and enforcement of foreign judgements, etc.).The courses on civil and criminal law, aim to provide the basis knowledge and the principles of civil andcriminal procedure, analysing how is involved in the different types of jurisdictions and the structure of acase: courts, parties, pleadings, trials and other relevant aspects of the procedure rules in Europe.The last course deals with methods of resolving disputes other than by judicial adjudication. It coverspractical issues of commercial and investment arbitration agreements and their enforcement, thearbitration process and the relation between arbitral proceedings and national court systems. It also dealswith the so-called “Alternative Dispute Resolution” (ADRs) procedures like negotiation, mediation andhybrid processes.

The aims of the module are:

• To understand the basic principles of civil and criminal procedure, as well as of internationallitigation, with special attention to the due process and to the importance of Human Rights in thiscontext.

• To discuss the hypothetical projection of the European advances in this field on the Chineseregulation.

• To qualify students to understand the differences between “ordinary proceedings” and methods ofresolving disputes others than by adjudication

• To appreciate advantages and disadvantages of these kinds of resolving disputes• To examine the design of dispute resolution interventions, systems and principles

Courses:Courses:Courses:Courses:

1. International Litigation (1 cp)2. Comparative Civil Procedure (1 cp)3. Enforcement in an International Context (1 cp)4. Comparative Criminal Procedure (1 cp)5. Arbitration and ADRS (2 cp)

ReaderReaderReaderReader

TableTableTableTable ofofofof contentscontentscontentscontents

1.1.1.1. CourseCourseCourseCourse SyllabusSyllabusSyllabusSyllabus

CompulsoryCompulsoryCompulsoryCompulsory readingreadingreadingreading

2.2.2.2. R.R.R.R. StStStStüüüürner,rner,rner,rner, TheTheTheThe PrinciplesPrinciplesPrinciplesPrinciples ofofofof TransnationalTransnationalTransnationalTransnational CivilCivilCivilCivil Procedure.Procedure.Procedure.Procedure. AnAnAnAn IntroductionIntroductionIntroductionIntroduction totototo theirtheirtheirtheirBasicBasicBasicBasic Conceptions,Conceptions,Conceptions,Conceptions, RabelszRabelszRabelszRabelsz 69696969 (2005),(2005),(2005),(2005), p.p.p.p. 201-254201-254201-254201-254

TheTheTheThe PrinciplesPrinciplesPrinciplesPrinciples ofofofof TransnationalTransnationalTransnationalTransnational CivilCivilCivilCivil ProcedureProcedureProcedureProcedure andandandand CommentsCommentsCommentsComments areareareare availableavailableavailableavailable atatatathttp://www.unidroit.org/english/principles/civilprocedure/ali-unidroitprinciples-e.pdfhttp://www.unidroit.org/english/principles/civilprocedure/ali-unidroitprinciples-e.pdfhttp://www.unidroit.org/english/principles/civilprocedure/ali-unidroitprinciples-e.pdfhttp://www.unidroit.org/english/principles/civilprocedure/ali-unidroitprinciples-e.pdf

OptionalOptionalOptionalOptional readingreadingreadingreading

3.3.3.3. C.H.C.H.C.H.C.H. vanvanvanvan Rhee,Rhee,Rhee,Rhee, ‘‘‘‘IntroductionIntroductionIntroductionIntroduction’’’’,,,, in:in:in:in: C.H.C.H.C.H.C.H. vanvanvanvan RheeRheeRheeRhee (ed.),(ed.),(ed.),(ed.), EuropeanEuropeanEuropeanEuropean TraditionsTraditionsTraditionsTraditions inininin CivilCivilCivilCivilProcedure,Procedure,Procedure,Procedure, Antwerp/Oxford:Antwerp/Oxford:Antwerp/Oxford:Antwerp/Oxford: Intersentia,Intersentia,Intersentia,Intersentia, 2005200520052005

ModuleModuleModuleModule AAAA –––– JudicialJudicialJudicialJudicial Procedures,Procedures,Procedures,Procedures, InternationalInternationalInternationalInternationalLitigationLitigationLitigationLitigation andandandand ArbitrationArbitrationArbitrationArbitration

COMPARATIVECOMPARATIVECOMPARATIVECOMPARATIVE CIVILCIVILCIVILCIVIL PROCEDUREPROCEDUREPROCEDUREPROCEDURE

http://www.unidroit.org/english/principles/civilprocedure/ali-unidroitprinciples-e.pdf

OutlineOutlineOutlineOutline

The course is divided into three parts:

1. General introductiona. Aims of comparative civil procedureb. Historical background

2. Procedural families3. ALI/Unidroit Principles of Transnational Civil Procedure

ContentContentContentContent

There are various reasons for studying civil procedure in a comparative context. Within Europe, forexample, it is still a matter of debate whether in the European Union procedural law should beharmonised to a greater extent as has been done up to now. On a world-wide scale, the Principles ofTransnational Civil Procedure have fuelled the harmonisation debate. In order to be able to take part inthis debate, students should have some knowledge of (1) the present state of affairs as regardsharmonisation, (2) the existing families of civil procedure in today’s world, (3) the origins of thesefamilies of procedure, and (4) the differences between these families of procedure and theirsimilarities.

A considerable part of this course is devoted to the characteristics of each procedural family. Indiscussing these characteristics, the civil procedures of England and Wales, Germany and France willbe studied in some detail. Special attention is given to the historical development of the systems ofcivil procedure and to the question as to how these systems deal with the requirements of Article 6 ofthe European Convention on Human Rights and with fundamental principles of procedure in general.

StructureStructureStructureStructure

Lectures will take place on Wednesday 21 December 2011, from 9:00-12:00 a.m., and on Thursday 22December 2011, from 9:00-12:00 a.m. and from 16:00-18:00 p.m.

CourseCourseCourseCourse materialsmaterialsmaterialsmaterials

Course materials are included in this reader. It is recommended to get familiar with the content of thisreader before the course starts.

ModuleModuleModuleModule AAAA –––– JudicialJudicialJudicialJudicial Procedures,Procedures,Procedures,Procedures, InternationalInternationalInternationalInternationalLitigationLitigationLitigationLitigation andandandand ArbitrationArbitrationArbitrationArbitration

COMPARATIVECOMPARATIVECOMPARATIVECOMPARATIVE CIVILCIVILCIVILCIVIL PROCEDUREPROCEDUREPROCEDUREPROCEDURE

LecturerLecturerLecturerLecturer

ProfessorProfessorProfessorProfessor DrDrDrDr C.H.C.H.C.H.C.H. (Remco)(Remco)(Remco)(Remco) vanvanvanvan RheeRheeRheeRhee

Prof. Dr C.H. (Remco) van Rhee (1968) was appointed to the Maastricht Chair of European LegalHistory in 1998. He currently also teaches Comparative Civil Procedure at Maastricht. He served forseveral years as the head of the Metajuridica Department of the Maastricht University Law School andas Academic Director of the Maastricht University European Law School.

Van Rhee studied Law at the universities of Leiden (1986-1991) and Edinburgh (1991), Psychology atthe university of Leiden (1987), and History at the university of Louvain (1992-1994). In 1997 he wasawarded his doctorate with the highest distinction at Leiden University.

He taught Roman Law at the university of Leiden (1991-1994) and Property and Civil Procedure at theuniversity of Utrecht (Molengraaff Institute for European Private Law, 1994-1998). He was a visitingprofessor at various universities in Belgium, the USA, South Africa, the Ukraine, Romania, Hungary,Indonesia, Hong Kong, China and Moldova. He also taught at the Duke-Geneva Summer School inGeneva.

His research focuses, amongst other things, on comparative civil procedure and its history in Europeand the United States.

The Principles of Transnational Civil Procedure

An Introduction to Their Basic Conceptions

By Rolf Stürner, Freiburg i.Br.*

Contents

I. Genesis and History . . . . . . . . . . . . . . . . . . . . . . . . . 2031. Harmonizing Civil Procedure – New Horizons for the ALI and

Unidroit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2032. The Beginning – A Private Initiative of Two Law Professors . . . . . 2043. The Adoption of the Project by the ALI . . . . . . . . . . . . . . 2044. Unidroit-Partnership . . . . . . . . . . . . . . . . . . . . . . . . 2055. The New Common Beginning: Developing Principles . . . . . . . . 2066. Parallel Work of the ALI and Unidroit . . . . . . . . . . . . . . . 2077. French Version . . . . . . . . . . . . . . . . . . . . . . . . . . 2088. The Result: Principles for Approval of Unidroit and ALI – Rules as a

Reporters’ Study . . . . . . . . . . . . . . . . . . . . . . . . . 209

II. Purpose and Scope . . . . . . . . . . . . . . . . . . . . . . . . . . 2091. Transnational Commercial Cases as a Starting Point . . . . . . . . . 209

* The author served as Co-Reporter of UNIDROIT for the project “Principles ofTransnational Civil Procedure”. The views expressed in this article are not necessarily thoseof other members of the UNIDROIT Working Group or of the Governing Council ofUNIDROIT. The author wishes to express his gratitude to his dear friend and colleaguePeter L. Murray, Harvard Law School, for extremely helpful hints and comments. John H.Langbein, Yale Law School, distinguished colleague and profound expert in the fields ofhistory of procedure and comparative procedure contributed to this article through manyimportant and critical comments which led to some significant modifications and changes.The author is very thankful for his generous cooperation. Remaining errors are the author’sresponsibility.

Literature cited in abbreviated form: N.Andrews, English Civil Procedure, Fundamentalsof the new civil justice system (2003); G.B. Born, International Civil Litigation in UnitedState Courts3 (1996); J.H. Friedenthal/M.K. Kane/A.R. Miller, Civil Procedure2 (1993);R.W. Millar, Civil Procedure of the Trial Court in a Historical Perspective (1952); P.L.Murray/R. Stürner, German Civil Justice (2004); L.W. Newman/D. Zaslowsky, LitigatingInternational Commercial Disputes (1996); H. Solus/R. Perrot, Droit judiciaire privé III(1991); A.A.S. Zuckerman, Civil Procedure (2004).

RabelsZ Bd.69 (2005) S.201–254© 2005 Mohr Siebeck – ISSN 0033-7250

202 RabelsZ

2. Guidelines of Future National Reforms and International Approxima-tion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210

3. The Development of International Procedural Standards . . . . . . . 2124. Principles and International and National Arbitration . . . . . . . . 2135. The Standards of the Principles and the Recognition of Foreign Deci-

sions and Arbitration Awards . . . . . . . . . . . . . . . . . . . 2146. The Relation Between Principles and “Rules” . . . . . . . . . . . 214

III. International Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . 2161. Status of the International Development . . . . . . . . . . . . . . 2162. Basic Features of the Compromises Suggested by the Principles . . . . 2173. The Advantages of the Principles Compared With Detailed Provi-

sions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219

IV. Party Disposition and Party Initiative . . . . . . . . . . . . . . . . . 221

V. The Structure of the Proceedings . . . . . . . . . . . . . . . . . . . . 2231. Necessity of a Principle . . . . . . . . . . . . . . . . . . . . . . 2232. The Status of the Worldwide Development . . . . . . . . . . . . . 2233. The Basic Structure of a Harmonized Proceeding . . . . . . . . . . 226

VI. The Distribution of Roles Between the Court and the Parties to Litiga-tion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2261. The Decision for an Active Role of the Judge . . . . . . . . . . . . 2262. The Court’s Responsibility to Move Adjudication Forward and to

Render Justice Promptly . . . . . . . . . . . . . . . . . . . . . . 2273. The Court’s Responsibility for Determination of Facts and Law . . . 2284. The Court Appointed Expert . . . . . . . . . . . . . . . . . . . 2315. No Ex Parte Communications in Writing or by Telephone . . . . . 232

VII. The Scope of Discovery and of the Taking of Evidence . . . . . . . . . 2321. The Significance of the Problem . . . . . . . . . . . . . . . . . . . 2322. The Status of Worldwide Development of Discovery and Evidence

Taking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2333. The Compromises of the Principles . . . . . . . . . . . . . . . . . 235

VIII. Legal Rules of Evidence versus Free Evaluation of Evidence . . . . . . . 2371. Origin of the Legal Rules of Evidence . . . . . . . . . . . . . . . 2372. Abandoning Evidentiary Rules . . . . . . . . . . . . . . . . . . . 2393. Complete Adoption of the Principle of Free Evaluation of Evidence . . 240

IX. Privileges and Immunities . . . . . . . . . . . . . . . . . . . . . . . 2411. The Different Development in Anglo-American and Continental Eu-

ropean Civil Procedure . . . . . . . . . . . . . . . . . . . . . . . 2412. The Balancing Approach of the Principles . . . . . . . . . . . . . . 243

X. Written, Oral, and Public Proceedings . . . . . . . . . . . . . . . . . 2441. The Differences and Their History . . . . . . . . . . . . . . . . . 2442. The Present Situation and the Different Approach of the Legal Cul-

tures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 246a) Public and Oral Hearings and Written Preparatory Stages . . . . 246

rolf stürner

20369 (2005)

b) Publicity of Court Records . . . . . . . . . . . . . . . . . . . 246c) Common and Different Basic Features of the Legal Cultures . . . 247

3. Measuring Out a Beneficial Dose of Publicity and Orality . . . . . . 248

XI. Scope of the Litigation – Lis Pendens and Res Judicata . . . . . . . . . 2491. The Different Standpoints . . . . . . . . . . . . . . . . . . . . . 2492. The Principles’ Proposal: Party Disposition and Clarity . . . . . . . 250

XII. Allocation of Costs . . . . . . . . . . . . . . . . . . . . . . . . . . 251

XIII. The Foreign Party and Equality of the Parties to Litigation . . . . . . . 252

XIV. Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254

I. Genesis and History

1. Harmonizing Civil Procedure – New Horizons for the ALIand Unidroit

In spring 2004, the Principles of Transnational Civil Procedure (herein-after: Principles) were accepted with unanimous approval by the GoverningCouncil of Unidroit and by the Members of the American Law Institute attheir annual meeting, by the Council of Unidroit in April 2004 in Rome1 andby the American Law Institute in May 2004 in Washington2. This double un-animous approval was the successful outcome of the first joint project of thesetwo highly respected institutions for the harmonization of law. The projectwas a premiere for both organizations. The American Law Institute had neveradopted a set of principles and rules for international harmonization of law.Traditionally the field of its efforts had been the harmonization of the domes-tic law of the individual American states, although in recent times the In-stitute has given more and more attention to national legislation concerningforeign relations of the U.S. as is the case with the ongoing International Ju-risdiction and Judgments Project3. For Unidroit it was the first project in thefield of civil procedure; in the past it seemed to be the prevailing opinion ofthe great majority of comparatists that attempts at a worldwide harmoniza-tion of civil procedural law could never be successful.

1 83rd Session of the Governing Council of Unidroit on April 19, 20, 21, 2004 in Rome;Unidroit 2004 Study LXXVI – Doc. 11 and 12.

2 81st Annual Meeting of the American Law Institute on May 17, 18, 19, 2004 in Wash-ington; ALI/Unidroit Principles and Rules of Transnational Civil Procedure, ProposedFinal Draft, March 9, 2004.

3 The American Law Institute, International Jurisdiction and Judgments Project, TentativeDraft No. 2, April 13, 2004

the principles of transnational civil procedure

204 RabelsZ

2. The Beginning – A Private Initiative of Two Law Professors

It was the original idea of two distinguished law professors, Geoffrey Ha-zard Jr., University of Pennsylvania Law School, and Michele Taruffo,University of Pavia, to develop a code of rules for transnational cases whichshould apply in ordinary national courts and replace domestic proceduralrules whenever the parties to litigation were nationals of different states orwhenever property in one state would be subject to claims presented by aparty from another country. The intention of the two initiators was to bridgethe gap between common law and civil law traditions and to draft a codewhich combines the most attractive attributes of the two systems and avoidsthe hardships of litigation under a foreign procedural system.

3. The Adoption of the Project by the ALI

In 1996, the two authors published their first drafts4 and in 1997 theAmerican Law Institute agreed to sponsor the project. The efforts to gain ALIadoption of what was originally a personal initiative benefited from the factthat Geoffrey Hazard Jr. had been Director of the American Law Institute formany years. Named as reporters of the ALI-project were Geoffrey Hazardand Michele Taruffo. The work on the project was also furthered by the con-tributions of Associate Reporter Antonio Gidi, now Detroit, USA. TheAmerican Law Institute established three working groups, a group of U.S.and international advisers, a consultative group of ALI members, and a groupof international consultants5. The group of U.S. advisers and the consultativegroup discussed the continuously improved drafts of the reporters in yearlymeetings, and so did all the members of the ALI and the ALI’s council in theirperiodic annual meetings. The international consultants, distinguished pro-fessors, lawyers, and judges from all over the world, made written commentswhich contributed important perspectives to the reporters’ ongoing con-siderations and had much influence on the final version of the Principles andRules6. The ALI and the ALI reporters initiated and organized in many coun-tries workshops with the local representatives of the various legal professions7.

4 See Hazard/Taruffo, Transnational Rules of Civil Procedure – Rules and Commentary:Cornell Int.L.J. 30 (1997) 493–539, with an informative introduction by John J. Barcelló.

5 A detailed list with the names of the various group members was published by the ALItogether with the Proposed Final Draft, March 9, 2004, p. V-VII; XI-XVI.

6 See the list of contributing colleagues in the Proposed Final Draft, p.21–22.7 See Proposed Final Draft, Introduction, p.21 (Sweden, Latvia, Greece, Brazil, Argen-

tina, Spain, Italy, Germany, Canada, U.S.A., Austria, Japan, Singapore, France, Mexico,China, Russia, England).

rolf stürner

20569 (2005)

Some local organizers published the papers and contributions of these work-shops8.

4. Unidroit-Partnership

In 1998 the ALI agreed to look for an international partner appropriate forthis work and ALI-reporters Hazard and Taruffo asked the Secretary Generaland the Governing Council of Unidroit, Rome, whether Unidroit wouldlike to share the project. The Governing Council of Unidroit was undecidedbecause the member states of Unidroit had no experience with harmoniza-tion of procedural law. Its first cautious step was to request a feasibility study9

which could give more reliable basis for a later decision. Upon recommenda-tion of distinguished Italian colleagues10 the President of Unidroit11 asked theauthor to prepare this study, and in spring 1999 a favourable report12 waspresented to the Governing Council. The Governing Council then reached amajority decision to join the project, though there was scepticism about thisenterprise13. The Governing Council, however, remained in doubt ofwhether a code of detailed rules would be really acceptable for countries ofdifferent cultures and determined that a joint working group of the ALI andUnidroit should first draft a set of general principles and then reconsider thefeasibility of worldwide acceptable detailed rules. Upon consultation with theALI the Secretary General of Unidroit appointed14 members of the joint

8 Especially Vers un Procès Civil Universel?, Les Règles Transnationales de ProcédureCivile de l’American Law Institute, ed. by Fouchard (2001); La Procédure Civile MondialeModélisée, ed. by Ferrand (2004); The Future of Transnational Civil Litigation, EnglishResponses to the ALI/UNIDROIT Draft Principles and Rules of Transnational CivilProcedure, ed. by Andenas/Andrews/Nazzini (2004); Sanchez Cordero/Gidi, Las Reglas yProcedimientos del Derecho Procesal Civil Transnacional, El Proyecto American Law In-stitute – Unidroit (2003); Principles of Transnational Civil Procedure, ed. by Pfeiffer et al.(2005); Lebedev/Perkins, [Tagungsbericht]: Moskovskij žurnal meždunarodnogo prava/Moscow J. Int.L. 2002, 252.

9 77th Session, February 1998.10 The author wishes to express his gratitude to Professor Nicolò Trocker, Firenze, and

Professor Joachim Bonell, Rome, for their trusting recommendation.11 The later elected President of Unidroit, Professor Berardino Libonati, Rome (1999)

and the later elected Secretary General, Professor Herbert Kronke, Rome/Heidelberg(1999) supported and promoted the project from the very beginning.

12 78th Session of the Governing Council, April 12–15, 1999.13 For the content of this report see Stürner, Some European Remarks on a New Joint

Project of the American Law Institute and Unidroit: Int. Lawyer 34 (2000) 1071–1086(cited as: Some European Remarks); id., Quelques Remarques d’un Européen sur unNouveau Project Commun de l’American Law Institute et d’Unidroit: Rev.dr.int.comp.2000, 845. The report is also available as a document of Unidroit, see Unidroit2001 Study LXXVI – Doc. 2.

14 Strictly speaking the appointment by the Secretary General of Unidroit, Professor

the principles of transnational civil procedure

206 RabelsZ

working group15, a chairman16 and a secretary17. It was decided that GeoffreyHazard and the author should be reporters for Unidroit. From its early stagesthe work of the ALI/Unidroit group has benefited remarkably from the sup-port and encouragement of the Secretary General Herbert Kronke and thepermanent consultant of Unidroit Michael Joachim Bonell.

5. The New Common Beginning: Developing Principles

The first session18 of the ALI/Unidroit working group was already well pre-pared. Reference documents for the session included not only the feasibilitystudy19 and the preliminary draft of the rules as formulated by the ALI-repor-ters Hazard and Taruffo20. A detailed preliminary draft of fifteen fully formu-lated principles21 was submitted by the author and a list of fourteen fun-damental features of English Civil Justice was presented by Neil Andrews,Cambridge22. These papers were completed by an English version of the“principes directeurs” of the French Code of Civil Procedure (Code deprocédure civile, C.proc.civ.)23. The future work of the ALI/Unidroit work-ing group was mainly based on the set of principles as proposed at the group’sfirst session and the code of Rules as prepared by Hazard/Taruffo and the ALIworking group. The results and suggestions of the discussions in Rome were

Herbert Kronke, Rome, was the outcome of his consultations with Geoffrey Hazard andthe author. It was necessary to ensure the cooperation of representatives of the most signifi-cant legal cultures and especially to keep the balance between scholars of continental Euro-pean and Anglo-American legal tradition.

15 Neil H. Andrews, Cambridge, England; Frédérique Ferrand, Lyon, France; GeoffreyC. Hazard, Philadelphia, USA; Masanori Kawano, Nagoya, Japan; Aida R. Kemelmajer deCarlucci, Mendoza, Argentina; Pierre Lalive, Geneva, Switzerland; Rolf Stürner, Freiburg,Germany; Michele Taruffo, Pavia, Italy. After the first meeting in Rome, Michele Tarufforestricted his cooperation to his activities as the reporter of the ALI.

16 Ronald T. Nhlapo, Pretoria, South Africa.17 Antonio Gidi, Detroit, USA.18 The first session took place from 22 to 26 May 2000 in Rome. The newly elected

President of Unidroit, Berardino Libonati and the New Director of the American Law In-stitute, Lance Liebman, Georgetown/Philadelphia, attended the opening ceremony for thefirst joint project of the ALI and Unidroit.

19 Unidroit 2001 Study LXXVI Doc. 2.20 Unidroit 2001 Study LXXVI Doc. 1.21 See for the full text Unidroit 2001 Study LXXVI Doc. 3, pp.96–99 (“Fundamental

Principles of Civil Procedure – A First Continental Approach); the first discussion of theseprinciples is described by Antonio Gidi, Unidroit 2001 Study LXXVI Doc. 3, pp.15–49.

22 See for this list Unidroit 2001 Study LXXVI Doc. 3, p.100. These principles referredin many respects to Andrews, Principles of Civil Procedure (1994) Ch. 2 and 3, a book ofrevolutionary significance and distinguished academic quality.

23 Arts. 1 to 24 C.proc.civ.; see for the English translation by Antonio Gidi, Unidroit 2001Study LXXVI Doc. 3, pp.101–103.

rolf stürner

20769 (2005)

incorporated in revised and enlarged versions of the principles which weresubject to reconsideration by the group members in the next meeting24. Theproject profited greatly from the experience of Geoffrey Hazard, ALI Direc-tor emeritus, who is not only a lucid scholar but also a draftsman with extra-ordinary gifts and remarkable linguistic skills. Together with the secretaryAntonio Gidi he did a lot of work to prepare the changed and improved draftswhich were then reworked by the reporters, in part through written corre-spondence and in part in special meetings25. The rules were reconsidered, re-vised and adapted to the developing principles in the same way26. Representa-tives of the Commission of the European Union and of the European Courtof Justice attended the meetings in Rome and contributed actively to the dis-cussions. A special volume of Unidroit’s Law Review was designed for articlesof distinguished colleagues from all over the world and of members of thejoint working group27.

6. Parallel Work of the ALI and Unidroit

Although the Principles and Rules were a joint project of the ALI and Uni-droit, the weight and influence of the two partners on the project’s develop-ment differed remarkably. First of all, Unidroit had installed only a jointworking group including very distinguished representatives of the Anglo-American legal culture, whereas the ALI continued to discuss the project inits well organized various groups naturally dominated by members of Anglo-American legal culture. Second, the financial support of this project by theALI was relatively generous, while Unidroit’s financial resources seemed to be

24 The ALI-Tentative Draft No. 2 (April 2001) contained for the first time a set of 24Principles which were drafted on the basis of the author’s initial suggestions. This draft wasalso the basis of the considerations on the second meeting of the joint working group(Rome, July 2–6, 2001; see Unidroit 2001 Study LXXVI Doc. 4) together with theauthor’s recommendations for further changes (Unidroit 2001 Study LXXVI Doc. 5).

25 March 2002 (Hazard, Taruffo, Stürner, Gidi in Freiburg, Germany); October 2002(Hazard, Stürner, Gidi at Harvard Law School); June 2003 (Hazard, Stürner, Gidi in Hei-delberg, Germany); November 2003 (Hazard, Stürner, Gidi at Harvard Law School, an in-stitution of generous hospitality, where the author was repeatedly invited as a visiting pro-fessor).

26 See especially the drafts Unidroit 2002 Study LXXVI Doc. 7, 9 (May/November2002); Unidroit 2003 Study LXXVI Doc. 10 (April 2003); Unidroit 2004 Study LXXVIDoc. 11 and 12 (February 2004). Detailed description of the discussions and considerationsby Antonio Gidi, Unidroit 2001/2002 Study LXXVI Doc. 3, 6, and 8.

27 See Unif. L. Rev. N.S.VI (2001) with contributions from Herbert Kronke, GeoffreyHazard, Marcel Storme, Philippe Fouchard, Stephen Goldstein, Janet Walker, AntonioGidi, Haimo Schack, L.J. Priestley, Edward H. Cooper, Rolf Stürner, Pierre Lalive, Ga-briele Mecarelli, Aida Kemelmajer de Carlucci, Jean-Paul Bérando, Neil Andrews, BoyanBeaumont, Sheldon H. Ebsen, Valentinas Mikelénas, Frédérique Ferrand, Thomas Pfeiffer.

the principles of transnational civil procedure

208 RabelsZ

small and weak. Third, the ALI practiced a perfect form of law marketingwhen disseminating the idea of a worldwide acceptable set of proceduralprinciples all over the world through international workshops, national work-ing groups and the initiation of translations of the drafts in many languages28.But it should be stressed, that Geoffrey Hazard in his double function as a re-porter for the ALI and Unidroit successfully tried to balance the scales as didthe President of the ALI, Michael Traynor, and its Director Lance Liebman.The ALI invited the author as reporter of Unidroit to all group meetings andannual meetings29 and his contributions to the discussion were always wel-comed and considered in a very open atmosphere. One could sense that thedeveloping of harmonized law through private initiative and organization isan important element of American legal culture and that the Americans arebetter organized than the rest of the world when doing this. The Europeansespecially could learn a lot from the Americans in this field of law making.Prominent American law firms, judges, and professors take actively part inthis form of private legislation whereas European lawyers, judges, and profes-sors are sometimes not very interested and underestimate the long term effectof those projects.

7. French Version

According to the statutes of Unidroit English and French are official lan-guages and therefore all drafts and documents must be in English and French.The joint working group asked its member, Professor Frédérique Ferrand,Lyon, to draft a French version of the Principles in cooperation with GabrièleMecarelli, Paris. The French version is more than an accurate translation. Be-ginning with the third session of the working group, it was developed and dis-cussed simultaneously with the English text of the Principles30. The Frenchversion had remarkable significance for the acceptance of the project byFrance, originally a very skeptical member state of Unidroit31, and French-in-

28 For a survey on the Translations see The American Law Institute, Proposed Final Draft(March 2004) Introduction, p.18f. (Russian, German, Japanese, Greek, French, Chinese,Italian, Croatian, Spanish, Portuguese).

29 The reporter of Unidroit visited the group meetings in September 2000, November2001, December 2002, and the Annual Meeting 2004. He wishes to express his gratitude tothe ALI for its fair and generous support.

30 See Unif.L.Rev. N.S.6 (2001) 1107ff.; Unidroit 2004 Study LXXVI Doc. 11(French). The last revision of this French version was carried out by Frédérique Ferrandand the reporter of Unidroit in March 2004 to ensure satisfying congruence between theEnglish and French version.

31 See especially the critical comments in: Vers un Procès Civil Universel? (supra n.8);this volume contains the contributions of a colloquium in Paris, October 27, 2000.

rolf stürner

20969 (2005)

fluenced legal cultures. The same is true for the French publications on theproject32.

8. The Result: Principles for Approval of Unidroit and ALI –Rules as a Reporters’ Study

The reporters and the members of the working groups of Unidroit and theALI had no really exact and universally accepted idea of the relationship be-tween Principles and Rules until they had nearly finished their work on bothsets of legal rules. However during the four years of intensive effort a cleartendency developed to enlarge the scope of the Principles and to transfersome important provisions from the code of Rules to the set of Principles. Inthe end it was the prevailing impression that there could be an excellentchance to have the Principles adopted by both organizations, the ALI andUnidroit whereas the full acceptance of the Code of Rules remained ratherdoubtful. The helpful compromise was to suggest the Principles for completeapproval and to offer the Rules as an additional reporters’ study for a possibleimplementation of the Principles33.

II. Purpose and Scope

1. Transnational Commercial Cases as a Starting Point

The Principles of Transnational Civil Procedure are designed to contributeto a worldwide harmonization of civil procedure. The need for harmoniza-tion of procedural law manifests itself very clearly when different legal andprocedural cultures are clashing, which occurs in transnational procedureswhere litigants of different countries are parties to litigation. First steps to-wards approximation should consider practical and theoretical implications offurther harmonization, and therefore there are various reasons which recom-mend starting with transnational commercial cases. First, U.S.-American juryproceedings are not common in commercial cases, and it is the peculiarity ofAmerican jury procedure that is the most important source of problems and

32 See Ferrand, in: Droit processuel2, ed. by S. Guinchard et al. (2003) p.321–332, No.216–219; La Procédure Civile Mondiale Modélisée (supra n.8). The presentation of theproject on the Congress for the celebration of the 75th anniversary of Unidroit (Rome,September 27–28, 2002) was also given in French language by Frédérique Ferrand,Unif.L.Rev. N.S.8 (2003) 397ff.

33 For a more detailed discussion of the relation between Principles and Rules see belowsub II 6.

the principles of transnational civil procedure

210 RabelsZ

difficulties on the way towards procedural harmonization34. It is not the mod-ern common law procedure developed in recent times especially in England35

that causes the big gap between Anglo-American and continental proceduraltradition. The main cause is American jury trial with its characteristic featuresthat influence very strongly the American procedure as a whole36. Another ar-gument for commercial cases as a model is the fact that disputes between mer-chants and business firms need not show so much consideration for nationallegal traditions and the requirements of a certain regional and social environ-ment. International commercial relations tend to be formed on a worldwidecommon understanding of values and standards which are the necessary basisof the international exchange of goods, services and capital. Last but not least,rules of international arbitration have already developed solutions in manyfields of procedural law which may often be an excellent example for a har-monized procedure in international commercial cases to be decided by inter-nal courts37.

2. Guidelines of Future National Reforms and InternationalApproximation

However, it would be misleading to limit the purpose and scope of thePrinciples strictly to transnational commercial cases. During the long timethat experts from all over the world worked on the Principles it became moreand more clear that most Principles are not only suitable and appropriate forcommercial disputes but also establish guidelines for a further desirable world-wide development of procedural law based on worldwide accepted andworldwide acceptable standards of civil procedure. For countries seeking newlegal orientation and enacting new civil procedure codes those guidelines areof general value and importance. But also countries with well established legalcultures and traditions may be motivated by the Principles when consideringimportant issues of reform within the frame of international consent and itsprobable development.

34 See The American Law Institute, Proposed Final Draft (March 9, 2004), Lance Liebman,Foreword p. XVII; Hazard/Taruffo/Stürner/Gidi, Preface p. XXI; Introduction, p.8/9.

35 See Andrews Ch. 2, p.29ff.; Zuckerman Ch. 1, p.26ff., 34ff., 43ff.36 For more details see already Stürner, Some European Remarks (supra n.13) 1076; id.,

Transnational Civil Procedure: Discovery and Sanctions Against Non-Compliance:Unif.L.Rev. N.S.6 (2001) 871ff. (880ff.); id., Règles transnationales de procédure civile:Rev. dr. comp.2000, 845ff. (849, 852).

37 For examples, see especially UNCITRAL’s Model Law on International CommercialArbitration, ICC Rules of Arbitration and ICC Rules of Conciliation, UNCITRAL-Rules of Arbitration, International Arbitration Rules of the American Arbitration Associ-ation, Rules on the Taking of Evidence in International Commercial Arbitration of the In-ternational Bar Association, etc.

rolf stürner

21169 (2005)

There is no legal culture which could not be stimulated by these Principles.Thus the most recent reforms of the law of appeals of German Civil Proce-dure38 harmonize with the recommendation of the Principles to limit thescope of appellate review ordinarily to claims and defences addressed in thefirst instance proceeding and to consider new facts and evidence only whenclearly required in the interest of justice39. On the other hand, the Principlesprovide very generous standards for access to all means of evidence, while theGerman reform of the law of evidence remains rather reluctant to grantwholesale production of documents and tangible things on the motion of par-ties40. The U.S. procedure may be encouraged by the Principles to abandonexaggerations of notice pleading and to go back to a moderate form of theformer fact pleading41 as it is already the solution in the reformed new Englishprocedure42. The structure of the traditional procedure of the Romancecountries with its sequence of numerous hearings before an “instructingjudge” is tolerated and covered by the Principles43, but the relatively clearpreference of the Principles is the procedural model with a well preparedmain hearing, which is now adopted by the new Spanish procedure in ac-cordance with the English and German example44.

It remains to be seen whether the idea of special rules of civil procedure fortransnational cases will gain acceptance. It seems at least to be possible that na-tional legislators could decide to enact a set of special rules for transnationalcivil procedures, which could be a separate part of the civil procedure code oran annex to the various chapters of domestic rules as is already the case inmany countries with regard to procedural deadlines and service of processabroad45.

38 For the recent reform of the German law of appeals see §§513, 529, 531 GermanCivil Procedure Code 2002 (Zivilprozeßordnung, ZPO).

39 See Principle 27: “Appeal”.40 See Principles 16 compared with §§142, 144, 421–431 German ZPO 2002.41 Principle 11.3. recommends clearly fact pleading; for a short history of American

pleading see Friedenthal/Kane/Miller Ch. 5, p.237ff.42 For more details on the modern English “statements of case” see Andrews p.253f.,

m.n.1060f.; Zuckerman Ch. 6, p.211ff., 214ff. (“particulars of claim”).43 See Principle 9 (“Structure of the Proceedings”).44 For this European development see Stürner, Procedural Law and Legal Cultures, Inau-

gural Speech on the World Conference on Procedural Law, Mexico 2003, in: Prozessrechtund Rechtskulturen, ed. by Gilles/Pfeiffer (2004) 9–30 (English version) (cited as: Proce-dural Law) and p.31–52 (German version); a more detailed discussion of this subject isgiven sub V.

45 See, e.g., Arts. 683ff. French Civil Procedure Code (Code de procédure civile,C.proc.civ.); Rule 4(f) U.S. Federal Rules of Civil Procedure; §183 ZPO n.F. for serviceupon individuals in foreign countries; Art. 43(5)(2) European Jurisdiction and JudgmentsRegulation 2001 regarding deadline for filing an appeal against an execution order.

the principles of transnational civil procedure

212 RabelsZ

3. The Development of International Procedural Standards

The application and construction of national procedural rules and of inter-national conventions leave often much room for judicial discretion, especiallyif the wording of the applicable statutory law is very broad as it is relativelycommon. When applying and interpreting those procedural rules nationalcourts and their judges may take into consideration international standards asdeveloped and formulated by the Principles.

The Principle on lis pendens and res judicata46 for example could be veryhelpful when determining the scope of the proceeding and its consequencesfor parallel proceedings47 and for claim or issue preclusion in foreign cases48.The Principle on fact pleading49 and the Principle on access to informationand evidence50 may offer important guidelines when national courts decideon requests for judicial aid under the Hague Convention on the Taking ofEvidence Abroad51 or even under the new European Regulation on the Tak-

46 Principle 28.47 Most civil law and common law countries recognize the defence of lis alibi pendens

based on pendency in a foreign court, at least where there is good likelihood of recognitionof the future foreign judgment (see, e.g., for Germany Murray/Stürner 547/548; for theU.S. Born Ch. 6, p.459ff. and sec. 11 of the International Jurisdiction and JudgmentsProject of the American Law Institute [2004] Reporters: Loewenfeld/Silberman), though theconsequences of this defence are very different. When determining lis alibi pendens theconstruction of the subject matter of the foreign proceeding has been a matter of seriouscontroversy and uncertainty in many countries. Is it the law of the foreign forum whichdetermines the scope of the foreign proceeding or is it the law of the recognizing state?Principle 28, with its reference to the plaintiff ’s formal claim for relief may be a usefulguideline for the interpretation of national law; see also sub XI below.

48 For the unclear situation under German and European law see Murray/Stürner Ch.12(C)(4), p.540f.; ECJ 4.2. 1988 – Case 145/86 (Hoffman v. Krieg), E.C.R. 1988, 645;Kropholler, Europäisches Zivilprozeßrecht7 (2002) Vor Art. 31 m.n.9. According to the pre-vailing opinion it is the law of the state rendering the judgment which determines the ef-fects of judgments to be recognized (“effects doctrine”). For the American discussion com-pare Alfadda v. Fenn, 966 F.Supp.1317, 1329 (S.D.N.Y. 1997) – applicability of the Ameri-can doctrine of issue preclusion on foreign judgments – and Schoenbrod v. Siegler, 20 N.Y.2d403 (1967) – conclusive effect accorded by the courts of the jurisdiction which renderedthe judgment; for further references see the International Jurisdiction and Judgments Pro-ject of the American Law Institute (2004) sec. 4, Reporters’ Notes No. 3, p.45/46 (Loewen-feld/Silberman). See also sub XI below. The proposed solution at sec. 4 of the American LawInstitute’s Jurisdiction and Judgments Project differs from Principle 28, although the Prin-ciples were already accepted by the American Law Institute.

49 Principle 11.3.50 Principle 16.51 E.g. Art. 3(2)(f) and (g) Hague Evidence Convention require a description of the facts

subject to testimony and a description of the documents to be disclosed. Many civil law andeven common law countries refuse to grant judicial assistance if the asserted facts are notdetailed enough and if a not enough specified category of documents should be disclosed(for France, England and other countries see Murray/Stürner Ch. 12[E][4][c], p.566; Born898; Newman/Zaslowsky Ch. 11.1, p.140ff., 144). Some civil law countries like Germany

rolf stürner

21369 (2005)

ing of Evidence52. International standards as formulated by transnational prin-ciples may influence decisions of the highest national and international courtsregarding fundamental procedural rights and vice versa. The exact and de-tailed form and contents of many principles has been clearly affected by land-mark decisions of the European Court of Human Rights, the U.S. SupremeCourt and the European Court of Justice53. The Principles may gain the signi-ficance of an international “Restatement of the Law of Civil Procedure”.Their final approval by Unidroit and the American Law Institute is a goodbasis for further worldwide acceptance. The Principles are the result of thefirst cooperation between these two important institutions for the harmoni-zation of law and this fact may increase the influence of this set of fundamentalrules.

4. Principles and International and National Arbitration

As already mentioned the advanced development of procedural rules in thefield of international and national arbitration strongly influenced the negotia-tions on the Principles54. But the Principles now contain many ideas and pro-posals for satisfactory resolutions of procedural problems which go signifi-cantly beyond the scope of the common sets of rules for arbitration proce-dures. There is therefore good reason to forecast that the Principles will in-fluence the further development and practice of arbitration proceedings.

(§14 of the Law Implementing the Hague Evidence Convention) have completely optedout the convention with respect to pre-trial discovery of documents (Art. 23 Hague Evi-dence Convention). The Principles demand generally for detailed facts and specified docu-ments to avoid fishing expeditions, but they concede more generous prerequisites of evi-dence taking when a party shows good cause for its inability to assert detailed facts and spe-cified means of evidence; see sub VII below. This should be also a reasonable solution forGermany; see the suggestions of Stürner, Die Gerichte und Behörden der U.S.A. und dieBeweisaufnahme in Deutschland: ZvglRWiss. 81 (1982) 159 (201); Junker, Discovery imdeutsch-amerikanischen Rechtsverkehr (1987) 296f.; P. Schlosser, Buchbesprechungen:Junker, Discovery im deutsch-amerikanischen Rechtsverkehr (1987) und Pfeil-Kammerer,Deutsch-amerikanischer Rechtshilfeverkehr in Zivilsachen (1987): ZZP 101 (1988) 327(330f.).

52 See for the prerequisite of satisfying particularization and specification Art. 4 Euro-pean Evidence Regulation 2004 and Murray/Stürner Ch. 12(E)(4)(a), p.561.

53 For more details on the influence especially of the European Court of Human Rightssee Andrews, Embracing the Noble Quest for Transnational Procedural Principles, in: TheFuture of Transnational Civil Litigation (supra n.8) 21ff.; Ferrand, La procédure civile inter-nationale et la procédure civile transnationale: l’incidence de l’intégration économique ré-gionale: Unif.L.Rev. N.S.8 (2003) 397ff. (401ff.); id., in: Droit processuel (supra n.32)p.321ff., 324ff.

54 This is especially true for the Rules on the Taking of Evidence in International Com-mercial Arbitration of the International Bar Association (IBA).

the principles of transnational civil procedure

214 RabelsZ

5. The Standards of the Principles and the Recognition of ForeignDecisions and Arbitration Awards

The development of generally accepted international standards will affectdecisively the application of the already existing rules for recognition offoreign judgments or arbitration awards. In particular, the very common re-quirement that the judgment does not infringe the public policy of the recog-nizing state is generally formulated as a blanket clause55 and needs judicialimplementation by the recognizing courts. The Principles may be valuableguidelines for the deciding judges. They describe not only the minimumprocedural requirements for a foreign procedure –, to have its result acknowl-edged in foreign countries, they also establish standards of procedural fairness,which may guarantee recognition and enforcement all over the world if thecourt has complied with these standards before rendering its judgment. It maybe in the interest of a party to litigation – generally the claimant – to insist oncorrect compliance to avoid attacks against a court’s decision raised during therecognition and enforcement procedure and grounded on a claimed infringe-ment of procedural public policy. In this way the Principles will contribute tothe development of an international procedural ordre public.

6. The Relation Between Principles and “Rules”

As already mentioned it was the initial idea of distinguished colleagues Ha-zard and Taruffo to develop a kind of procedural code with detailed rules fortransnational cases, and the American Law Institute originally adopted thisproject56. These original draft Rules of Transnational Civil Procedure tried tostrike compromises between continental and Anglo-American proceduraltraditions and in doing so they were successful in many fields of civil proce-dure. Nevertheless the form and content of this set of rules were strongly in-fluenced by U.S.-American procedural concepts with the Federal Rules ofCivil Procedure as the prime example57. When the Governing Council ofUnidroit decided to join the common project, its idea was to formulate prin-ciples of a more fundamental and abstract character. The question of whether

55 See, e.g., Art. 34(1) European Jurisdiction and Judgments Regulation; Art. 64 Legge31 maggio 1995 n.218 – Riforma del sistema italiano di diritto internazionale privato forItaly; §328(4) German ZPO; sec 4(b)(3) Uniform Foreign Money Judgments RecognitionAct for about 30 individual states of the U.S. (Newman/Zaslowsky 381 with detailed ref-erences).

56 See sub I 2 and 3 above.57 See The American Law Institute, ALI/Unidroit Principles and Rules of Transnational

Civil Procedure, Proposed Final Draft (March 2004) Introduction, p.4.

rolf stürner

21569 (2005)

in a later phase of the project, a Code of Rules may supplement the principles,has remained more or less open.

During the work on the Principles the “Rules” were also continuously de-veloped and improved. They implement the Principles in a threefold way.First, the “Rules” describe the ongoing procedure whereas the Principlesformulate fundamental categories of a more static nature, although Principlesand “Rules” overlap in this respect. Second, the “Rules” contain rather tech-nical details of organizational character which harmonize with the Principles,but could also be regulated in very different ways. Finally, the “Rules” suggestsome relatively progressive solutions for important problems of the practice oftransnational civil procedure which may not be accepted by all legal culturesand systems, e.g. the formal settlement offer according to the English and Ca-nadian example58 or the monetary penalty against the defaulting debtor. Thelatter is a kind of execution against the person itself59 putting the debtor moreunder pressure than the simple execution of a money award against hisproperty with all its difficulties in cross-boarder cases. The reporters and themembers of the working groups consider the “Rules” as a well balanced sug-gestion for further implementation of the Principles in the sense of a com-promise between various procedural cultures. But in the eyes of the reporters

58 See Rule 16: “Settlement Offer. 16.1 After commencement of a proceeding underthese Rules, a party may deliver to another party a written offer to settle one or more claimsand the related costs and expenses. The offer must be designated ‘Settlement Offer’ andmust refer to the penalties imposed under this Rule... 16.2 The offeree may counter withits own offer, which must remain open for at least [30] days. If the counteroffer is not ac-cepted, the offeree may accept the original offer, if still open... 16.4 Except by consent ofboth parties, an offer must not be made public or revealed to the court before acceptance orentry of judgment, under penalty of sanctions, including adverse determination of themerits.16.5 Not later than [30] days after notice of entry of judgment, a party who made anoffer may file with the court a declaration that an offer was made but rejected. If the offereehas failed to obtain a judgment that is more advantageous than the offer, the court may im-pose an appropriate sanction, considering all the relevant circumstances of the case. 16.6Unless the court finds that special circumstances justify a different sanction, the sanctionmust be the loss of the right to be reimbursed for the costs ... 16.7 If an accepted offer is notcomplied with in the time specified in the offer, or in a reasonable time, the offeree mayeither enforce it or continue with the proceeding ...” For a detailed description of the Eng-lish payment into court and its history see Andrews 536ff.

59 See Rule 35.2: “Enforcement of Judgment ... If a person against whom a judgmenthas been entered does not comply within the time specified, or, if no time is specified,within 30 days after the judgment becomes final, enforcement measures may be imposedon the obligor. These measures may include compulsory revelation of assets wherever theyare located and a monetary penalty on the obligor, payable to the judgment obligee, to thecourt or to whom the court may direct ... If the person against whom the judgment is ren-dered persists in refusal to comply, the court may impose additional penalties. A penaltymay not be imposed on a person who demonstrates to the court financial or other inabilityto comply with the judgment...” Similar Art. 13 of the European approximation project ledby Marcel Storme; Rapprochement du Droit Judiciaire de l’Union Européenne, ed. byStorme (1994) 212.

the principles of transnational civil procedure

216 RabelsZ

and group members the “Rules” do not embody the same level of worldwideacceptable compromises as do the Principles. Therefore the reporters and theworking groups did not ask Unidroit and the American Law Institute for theirformal approval. Other forms of implementation with different emphasis arepossible. Nevertheless the annexed “Rules” as the starting point of the wholeproject and as a proposal of the drafters of how the Principles could be im-plemented by more detailed provisions, may have the advantage of a specialauthenticity.

III. International Jurisdiction

1. Status of the International Development

The Principles try to summarize fundamental rules of international or per-sonal jurisdiction60 as they are the basis of national law, bilateral conventions,or the Brussels and Lugano Convention, and now of the European Jurisdic-tion and Judgments Regulation. The various drafts of a Hague Jurisdictionand Judgments Convention have also served as an important model61. But un-fortunately the Hague negotiations on worldwide acceptable grounds for in-ternational jurisdiction have nearly died. The Hague conference continuesnow on a more modest level to seek a convention which is limited to jurisdic-tion based on agreement and consent62.

60 Principle 2.61 For the history and present status of the Hague negotiations see von Mehren, Recogni-

tion of United States Judgments Abroad and Foreign Judgments in the United States,Would an International Convention be Useful?: RabelsZ 57 (1993) 449–459; PreliminaryDraft Convention on Jurisdiction and Foreign Judgment in Civil and Commercial Matters:DAJV-Newsletter 24 (1999) No. 4, p.120; von Mehren/Michaels, Pragmatismus und Rea-lismus für die Haager Verhandlungen zu einem weltweiten Gerichtsstands- und Vollstrek-kungsübereinkommen: DAJV-Newsletter 25 (2000) No. 4, p., 124–128 with further ref-erences; Letter of the Assistant Legal Adviser for Private International Law of the US StateDepartment Jeffrey D. Kovar, reprinted in: DAJV-Newsletter 25 (2000) No. 2, p.44.

62 See especially the Reflection Paper prepared by Andrea Schulz from August 2002,Hague Conference on Private International Law, Enforcement of Judgements Prel. Doc.19/2002. The International Jurisdiction and Judgments Project of the American Law In-stitute was originally designed to implant the proposed convention throughout the UnitedStates; but when it became apparent that it was unlikely that the delegates of the HagueConference would reach agreement on a comprehensive Convention the Institute decidedto continue the Project, with the aim of producing the draft of a federal statute that wouldmake recognition and enforcement of foreign-country judgments uniform throughout theUnited States. (Lance Liebman, Foreword to the Tentative Draft No. 2, April 2004, of theInternational Jurisdiction and Judgments Project, p. XI).

rolf stürner

21769 (2005)

2. Basic Features of the Compromises Suggested by the Principles

There exist some basic grounds of international jurisdiction which are to alarge extent accepted worldwide and therefore never really in dispute, likeconsent and agreement of the parties to litigation, occurrence of a significantpart of the transaction or event in dispute in the forum state, habitualresidence or principal place of business of the defendant within the forum, lo-cation of the property to which the dispute relates in the forum state63. This istrue especially if a sufficient substantial connection between the matter in dis-pute and the forum state is an additional general requirement. Jurisdiction forprovisional measures with respect to a person or to property in the territory ofthe forum independently from jurisdiction over the controversy itself is alsobeyond dispute. More delicate is the concept of forum necessitatis, whichpermits jurisdiction on the basis of presence64 or nationality of the defendantor presence in the forum state of the defendant’s property though in the caseof jurisdiction based on property the court’s authority is limited to theproperty’s value65. The more or less clear mandatory negative effect of a partyagreement on jurisdiction is a real concession by the American side; on theother hand the moderate applicability of the doctrine of forum non con-

63 Compare the presentation of international jurisdiction given by leading authors of dif-ferent legal cultures: for the U.S. Born Ch. 2, p.67ff., for France Gaudemet-Tallon, Com-pétence Internationale: Dalloz Encyclopédie Juridique, Répertoire de Procédure Civile,ed. by S. Guinchard/Raymond-Grèze (1998), for Germany Schack, Internationales Zivilver-fahrensrecht3 (2002) m.n.185ff., especially m.n.402ff., from a comparative basis Schröder,Internationale Zuständigkeit (1971); Pfeiffer, Internationale Zuständigkeit und prozessualeGerechtigkeit (1995). For a short overview on German and European law of internationaljurisdiction see Murray/Stürner Ch. 12(B), p.504–525.

64 This concept shows in some respects similarity with the Anglo-American transient ju-risdiction or “tag-jurisdiction”. This ground for jurisdiction is considered to be exorbitantaccording to Art. 3(2) European Jurisdiction and Judgments Regulation and the U.S. Re-statement of Foreign Relations Law, 1987, sec. 421 comment (e); nevertheless the U.S. Su-preme Court has resusciated this ground for jurisdiction as a necessary completion of theother well-established grounds for jurisdiction (Burnham v. Superior Court of California 495U.S.604 [1990]). The recognition of transitory jurisdiction as a form of forum necessitatisseems to be reasonable when considering worldwide acceptable grounds for jurisdiction.Even European Law tolerates this ground for jurisdiction as a sufficient general basis of pro-visional measures (Art. 31 European Jurisdiction and Judgments Regulation) without re-striction to orders against the person itself.

65 This is the basic conception of the Anglo-American “quasi-in-rem-jurisdiction”which has been restricted by the U.S. Supreme Court in a somewhat unclear way (Shaffer v.Heitner, 433 U.S.186 [1977]; see Newman/Zaslowsky 34ff.). The same idea has been thebasis of the considerations of the ECJ when the court restricted the jurisdiction of nationalcourts for preliminary measures determining provisional execution of contracts, e.g. byFrench “ordonnances de référé” (see ECJ 17.11. 1998 – Case C-391/95 [Van Uden],E.C.R. 1998, I-7091 = JZ 1999, 1103; 27.4. 1999 – Case C-99/96 [Mietz], E.C.R. 1999,I-2277 = JZ 1999, 1105).

the principles of transnational civil procedure

218 RabelsZ

veniens in manifest cases is a remarkable step of the continental Europeanprocedural cultures towards compromise66.

The problem of lis alibi pendens and parallel proceedings is resolved on thebasis of the continental European priority rule, but the Principles leave someroom for the more flexible, more practical and handy U.S.-American solu-tion67, which permits competing proceedings to avoid the blockade of a dis-pute’s resolution by choice of a slow and ineffective forum. The Principlesprefer the compromise of the draft Hague Jurisdiction and Judgments Con-vention68 and modify the rigid mechanism of the European Jurisdiction andJudgments Regulation69, with its disastrous disadvantages (“Italian tor-pedo”)70 that were increased through a notably unreasonable construction ofthe key statutory provisions by the European Court of Justice71. The dis-cussion of this problem gives clear evidence of the advantages of comparativelaw, which widens the horizon beyond the limits of the domestic legal cul-ture. The solution of the European Regulation is based on the doubtful ideo-logy that all national courts in the European Union have the same quality72

66 Since the landmark decision of the German Federal Supreme Court (Bundesgerichts-hof, BGH) in 1991 (BGH 2.7. 1991, BGHZ 115, 90 [93f.]) it has become evident even forcontinental European legal cultures that elements of the “doctrine of forum non con-veniens” are in the end undeniable guidelines in extreme cases. The author was for a longtime a member of the senate of the court of appeals which prepared by its decisions therather reluctant judgment of the German Federal Supreme Court.

67 See Born 459ff., 461ff. The landmark decision for domestic cases is Landis v. NorthAmerican Co., 299 U.S.248, 254 (1936). Most American courts apply this form of the lisalibi pendens doctrine in favour of parallel proceedings in foreign countries; see, e.g., Inger-soll Milling Machine Co. v. Granger, 833 F.2nd 680 (7th Cir. 1987).

68 See Art. 21 Preliminary Draft Convention October 1999 (reprinted in DAJV-News-letter 4/1999, 120) and Peter Schlosser, Jurisdiction and International Judicial and Adminis-trative Cooperation (2001) 84ff. The American Law Institute’s International Jurisdictionand Judgments Project proposes a similar solution of the lis alibi pendens problem (sec. 11Tentative Draft No. 2, April 2004).

69 See Art. 27 European Jurisdiction and Judgments Regulation and Art. 21 of the oldBrussels Convention.

70 See Court of Appeals (Oberlandesgericht, OLG) of München 2.6. 1998, RIW 1998,631; OLG Düsseldorf 30.9. 1999, GRUR/Int 49 (2000) 776; BGH 6.2. 2002, NJW 2002,2795. Defendants may seek to avoid facing the expeditious procedure of one EU-MemberState by initiating preemptive actions for declaratory judgment of non-liability in another“slower” Member State, especially Italy.

71 See ECJ 6.12. 1987 – Case C-144/86 (Gubisch v. Palumbo), E.C.R. 1987, 4861; 6.12.1994 – Case C-406/92 (The Tatry v. Maciej Rataj), E.C.R. 1994, I-5439; for detailed dis-cussion Murray/Stürner Ch. 12(E)(1), p.548f.

72 See ECJ 9.12. 2003 – Case C-116/02 (Gasser v. MISAT), RIW 2004, 289 (292)m.n.72; BGH 6.2. 2002 (supra n.70) 2796; for a more critical view of the idea of equalityof all European national courts see Mankowski, Entwicklungen im Internationalen Privat-und Prozessrecht 2003/2004, (Teil 1): RIW 2004, 481–497 (496) and (Teil 2) 587–602(588); Stadler, Das europäische Zivilprozessrecht – Wie viel Beschleunigung verträgt Eu-ropa?: IPrax 2004, 2–11.

rolf stürner

21969 (2005)

and that therefore any form of competition between the different nationalcourts makes no sense. The U.S.-American experience with the courts of theindividual American states demonstrates how wrong and unrealistic this ideais. The U.S. offers not only an additional system of Federal courts of first in-stance in cases of diversity of citizenship73, it also permits in appropriate casescompetition between state courts for effective and expeditious resolution oflegal disputes. Perhaps the Principles may stimulate more favourable and prac-ticable European legislation.

3. The Advantages of the Principles Compared With Detailed Provisions

Especially in the field of international jurisdiction an effort to draft prin-ciples has clear advantages compared with an overly ambitious attempt to de-velop detailed rules. The negotiations toward a Hague Convention havebroken down because of a marked European tendency toward perfectionismwhich has been accompanied by an extremely unfortunate inability to strikecompromises74. In addition it should be mentioned that the Europeans’ esti-mation and evaluation of their own practice regarding international jurisdic-tion is sometimes unrealistic and not always very honest. It is correct to arguethat in some fields of law American courts go as far as they can when definingthe most extreme limits of their personal jurisdiction in foreign cases. This istrue especially where the effects of an action or occurrence on the Americanmarket are a decisive issue and need to be judged and determined75. On theother hand, American courts have limited the consequences of the “effects

73 See 28 U.S.C.A. §1332; for the foundation of the diversity of citizenship jurisdictionfrom a European point of view Stürner, Europäische Justiz und Demokratie, in: FS Win-fried Brohm (2002) 153ff. (155).; id., Suing the Sovereign in Europe and Germany:Geo.Wash.L.Rev. 35 (2003) 663 (678f.).

74 For this and the following see already Stürner, Einführung in das Thema, Schlußbe-trachtung und Ausblick, in: Bitburger Gespräche, Jahrbuch 2003: Globale Wirtschaft – na-tionales Recht, Chancen, Risiken, Konflikte (2003) 11ff., 143ff.; id., Der Justizkonfliktzwischen USA und Europa, in: The Jurisdiction Conflict with the United States ofAmerica, ed. by Habscheid (1986) 3ff. (19f., 45f.).

75 A prominent recent example is the Empagran-case (Empagran S.A. et al. v. Hoffman-LaRoche Ltd., 315 F.3d 338 [D.C. Cir. 2003]) where the correct application of the ForeignTrade Antitrust Improvement Act, 15 U.S.C. §6(a) was the main issue; see Hay/Krätzsch-mar, Neue Unsicherheiten um die extraterritoriale Anwendung US-amerikanischen Anti-trust-Rechts: RIW 2003, 809ff. In the meantime the Supreme Court overruled the deci-sion of the Federal Court of Appeals which had extended the jurisdiction of Americancourts very generously (124 S.Ct. 2359 [2004]). Nevertheless the exact consequences of thenew Supreme Court decision remain unclear; see Hay/Krätzschmar, Begrenzt der US Su-preme Court die extraterritoriale Anwendung US-amerikansichen Antitrust-Rechts?:RIW 2004, 667ff.; H. Buxbaum, Jurisdictional Conflict in Global Antitrust Enforcement:Loyola Consumer L.Rev. 16 (2004) 365.

the principles of transnational civil procedure

220 RabelsZ

doctrine” through requirements of foreseeability and purposefulness76 in amore efficient way than the Europeans, who determine grounds for jurisdic-tion in the field of torts (product liability, infringement of antitrust law, etc.)also on the basis of an effects doctrine77 but sometimes without any significantrestrictions.

The idea to establish hard and fast rules of jurisdiction by an internationaltreaty with the intention to rein in American courts78 could never have beensuccessful. Only flexible principles may bring some progress through identi-fying the most important aspects and elements of necessary balancing ap-proaches. They have a much better chance to be accepted by courts all overthe world than a set of inflexible detailed rules which do not leave enoughroom for judicial discretion and common sense considerations, especially inthe eyes of American judges and lawyers. Carefully drafted principles canbridge the gap between the different legal cultures and their respective under-standings of a reasonable scope of international jurisdiction79. However, untilnow it has not been possible to smooth out all the difficulties through exactlyformulated conventions as a form of international statutory law. This is, cer-tainly, the case as long as Europeans and European influenced legal culturesare not ready to make important concessions in other fields of the jurisdic-tional conflict, e.g. the enforcement of punitive or treble damages awards80. In

76 See especially Asahi and Metal Industries v. Superior Court of California, 480 U.S.102(1987).

77 Art. 5(3) European Jurisdiction and Judgments Regulation confers international juris-diction on the various national courts both of the place where the tortfeasor acted andwhere the results of such action have occurred, especially where a legally protected interestis infringed; see ECJ 30.11. 1976 – Case 21/76 (Bier v. Mines de Potasse d’Alsace), E.C.R.1976, I-1735; 27.10. 1998 – Case C-51/97 (Réunion Européene v. Spliethoff), E.C.R. 1998,I-6511. Though economic consequences of an injury which occurred elsewhere are notenough to support jurisdiction under this theory (ECJ 19.9. 1995 – Case C-364/93 [Mari-nari v. Lloyds Bank], E.C.R 1995, I-2719) the location where the results of a tortfeasor’s ac-tion have occurred as a ground for jurisdiction shows remarkable congruence with theAmerican effects doctrine; see Christian Nick, US-Gerichtszuständigkeit in transnationalenAnlegerschutzsachen (2003).

78 This is the European intention when negotiating an international Jurisdiction andJudgments Convention; see Gottwald, Jurisdiction Based on “Business Activities” in theHague Draft Convention on Jurisdiction and Foreign Judgments in Civil and CommercialMatters: European Journal of Law Reform 4 (2002), 199ff.; Kessedjian, Vers une conven-tion à vocation mondiale en matière de compétence jurisdictionelle internationale et d’ef-fets des jugements étrangers: Rev.dr.unif. 1997, 675ff.

79 It is unrealistic to hope on quick results and changes; therefore like many Europeansfar too impatient Schütze, Zum Stand des deutsch-amerikanischen Justizkonflikts: RIW2004, 162 (167).

80 When determining recognition and enforcement of punitive damages awards thecompromise solution of Stiefel/Stürner (Die Vollstreckbarkeit US-amerikanischer Scha-densersatzurteile exzessiver Höhe: VersR 1987, 829 [830]; Stiefel/Stürner/Stadler, The En-forceability of Excessive U.S. Punitive Damage Awards in Germany: Am.J.Comp.L. 39[1991] 779) was not accepted by the German BGH (BGH 4.6. 1992, BGHZ 118, 312).

rolf stürner

22169 (2005)

this situation the formulation of Principles is a marked progress towards acommon worldwide legal culture even if they describe only well establishedstandards and limitations of jurisdiction and the essential aspects that shouldbe mindfully considered when determining issues of international jurisdic-tion.

IV. Party Disposition and Party Initiative

The Principle that the parties’ claims determine the commencement,scope and end of the proceedings81 is at present part of the uncontested basicconcept fundamental to all civil procedural systems. The parties’ claims for re-lief start the proceedings, and acknowledgement, withdrawal with or withoutprejudice or settlement end the proceedings. Modern procedural codes likethe French Nouveau Code de procédure civile82 (Nouv.C.proc.civ.) or thenew Spanish Código de Procedimiento Civil83 mention this principle as dotransnational model codes, such as the Código Procesal Civil Modelo paraIberoamérica of 199484. This common concept of procedural liberty and au-tonomy is the self-evident basis of the Romance85, Germanic86, and Anglo-American87 procedural tradition, even though the procedure codes of many

The position of the German Constitutional Court (Bundesverfassungsgericht, BVerfG) re-mains unclear (see BVerfG 7.12. 1994, BVerfGE 91, 335 = NJW 1995, 649 [650] on theone hand and BVerfG 25.7. 2003, NJW 2003, 2598 on the other). The Draft of the HagueJurisdiction and Judgments Convention 1999 contained in its Art. 33 initial, but timid stepstowards a reasonable compromise.

81 See Principle 10.1, 10.3, 10.5. For this and the following see already Stürner, Proce-dural Law (supra n.44) 9ff., 10ff.

82 Art. 1 Nouv.C.proc.civ.: “Seules les parties introduisent l’instance ... Elles ont laliberté d’y mettre fin avant que’elle ne s’éteinge par l’effet du jugement ou en vertu de laloi.”

83 Art. 19 Ley de Enjuiciamento Civil (LEC) 2000: “Los litigantes están facultados paradisponer del objeto del juicio y podrán renunciar, desistir del juicio, allanarse, someterse aarbitraje y transigir sobre lo que sea objeto del mismo, excepto cuando la ley lo prohíba oestablezca limitaciones por razones de interés general o en beneficio de tercero.”

84 Art. 1 Código Procesal Civil Modelo para Iberoamérica: see Ortells Ramos, Tradicióny cambio en el proceso civil iberoamericano, A propósito de un “Código procesal civilmodelo”: Rev. gen. der. 45 (1989) No. 541/542, p.6315ff. (6326, 6343); Barbosa Moreira,Le code-modèle de procédure civile pour l’Amérique latine de l’Institut Ibéro-Américainde Droit Processuel: Zeitschrift für Zivilprozeß International (ZZP Int.) 3 (1998) 437ff.

85 Liebman, Manuale di diritto processuale civile5 (1992) No. 71ff. and Fondamento delprincipio dispositivo: Riv. Dir. Proc. 1960, 551ff.; Solus/Perrot No. 76ff.; Vincent/Guin-chard, Procédure Civile25 (1999) No. 534, 535; Montero Aroca et al., Derecho Jurisdiccio-nal10 I (2000) 330ff. (cited: I).

86 Rosenberg/Schwab/Gottwald, Zivilprozeßrecht16 (2004) §77; Austria: Rechberger/Fucik,Kommentar zur ZPO (1994) Vor §171 n.2.

87 See Andrews, Principles (supra n.22) No. 3–001ff.; id. n.6.48; Friedenthal/Kane/Miller

the principles of transnational civil procedure

222 RabelsZ

countries do not contain special provisions that describe or define this fun-damental concept. This homogenity reflects a piece of common political cul-ture that places the personal rights of the individual citizen in the centre ofeconomic and legal activity and makes the individual a central figure of stateorder and economy.

The drafters of the Principles, however, were aware that only two decadesago this common feature of nearly all contemporary legal cultures did notexist. They therefore decided to formulate a principle on party dispositionemphasizing the basic significance of this concept. The socialist countries didnot really know civil procedures for disputes of economic significance butregulated the transfer and distribution of important goods by administrativemeasures and determined disputes through administrative bodies. Evenwhere some small leeway was left to private liberty and property and individ-ual rights88, socialist civil procedure reflected the priority of alleged public in-terests. Courts were permitted to determine issues beyond the scope of par-ties’ claims for relief, settlements were only valid by judicial affirmation, andthe same was true for acknowledgements and withdrawals89. The decline ofthese totalitarian, anti-individualistic legal cultures is the result of a very re-cent development in worldwide political culture.

Some former socialist countries of Eastern Europe could go back to oldercommon traditions90 when reforming their civil procedures. Some other legalcultures, especially those of Asia are still in search of orientation when recon-sidering their systems of substantive and procedural law. One may hope thatthe traditional models of the Romance, Germanic, and Anglo-American lawfamilies will generate sufficient influence and that the evolution of transna-tional procedural standards as initiated by the Principles may be a good aid inthis direction. The legal culture of Western civilization should not be too self-confident when looking at the former socialist systems. Their recent revo-lutionary development towards an individualistic legal culture is mostly basedon rather utilitarian and economic considerations. A conviction of the indi-vidual’s intrinsic value and of its human rights is not always completely con-solidated. Two or three decades ago socialist legal systems were still comparedwith liberal legal cultures as their equivalent antipodes91, often without realiz-

2 (where party disposition on the commencement, end and scope of the proceedings seemto be somewhat confused with questions on the gathering of facts).

88 See Baur/Stürner, Sachenrecht17 (1999) §62 (former German Democratic Republic[Deutsche Demokratische Republik, DDR]).

89 Art. 179 Russian Civil Procedure Code (Graždanskij processual’nyj kodeks, GK) of1923, Art. 195 GK RSFSR of 1964; §2(4), (4)-(7), §§30, 46 ZGB of the former DDR.

90 For Hungary, Poland and Bohemia see van Caenegem, History of European CivilProcedure, in: Int.Encl.Comp.L. XVI: Civil Procedure (1973) Ch. 2, No. 36ff., 69.

91 See, e.g., Cappelletti/Garth, Introduction – Policies, Trends and Ideas in Civil Proce-dure, in: Int.Enc.Comp.L. XVI: Civil Procedure (1987) Ch. 1, No. 11ff., 15ff., 46, 49.

rolf stürner

22369 (2005)

ing the real face of those systems. The present triumph of party autonomy andparty disposition should not be taken for granted. Party disposition as an ex-pression of a liberal legal and social constitution is a special and preciousvalue92.

V. The Structure of the Proceedings

1. Necessity of a Principle

It is true that the Principles are not designed to prescribe the detailed rulesof civil procedure. On the other hand it seems not to be worthwhile to for-mulate principles like orality, right to be heard, or prompt rendition of justice,without developing a basic conception of the desirable structure of civilprocedure. The reporters and the working groups therefore decided to pro-pose a flexible procedural model which covers and tolerates all importantexisting procedural models, but shows nonetheless some preferences regard-ing the desirable future development.

2. The Status of the Worldwide Development93

The civil procedures of the Romance legal family94, especially of France,Italy, South America, and originally Spain are unmistakably progenies of theItalian-canonical procedure. According to this origin they have developed aprocedural model with three different stages, the written introductory phasewith claim and response, the fact-finding phase with the taking of evidenceby the instructing judge (“giudice istruttore”, “juge de la mise en état”, etc.),and the final hearing without evidence taking, regularly before a judicialpanel that has no direct knowledge of the evidentiary procedure and its re-sults. The instructing judge often requires several hearings to take all the evi-dence, and therefore this model is characterized by its sequence of hearings.Most Anglo-Americans attribute this procedural model with its sequence of

92 On the fact that party disposition is guaranteed by Human Rights and FundamentalConstitutional Rights, see Schwab/Gottwald, Verfassung und Zivilprozeß, in: Effectivenessof Judicial Protection and Constitutional Order, ed. by Habscheid (1983) 7ff., 73–74; Stür-ner, Verfahrensgrundsätze des Zivilprozesses und Verfassung, in: FS Fritz Baur (1981) 647ff.(652–653).

93 For more details see Stürner, Procedural Law (supra n.44) 12–18.94 See for France Glasson, Les sources de la procédure civile française: Rev. hist. 1881,

401–431, 437–516; Solus/Perrot 139ff., for Italy Taruffo, La giustizia civile in Italia d’al 700 aoggi (1980); for Spain Montero Aroca et al., El Nuevo Proceso Civil2 (2001) 41–60.

the principles of transnational civil procedure

224 RabelsZ

hearings to all civil law systems without accurate differentiation95. This is notwithout good reason since Austria and many Eastern European countrieshave also adopted this model based on the common Italian-canonical proce-dural tradition, in modern times under French influence96. Even the modernGerman civil procedure looked to this model as an example during many de-cades of the last century97.

The contrary model is the Anglo-American trial-model as it was de-veloped in England during the 19th century through a combination of theItalian-canonical influenced procedure of the chancery courts and the jurytrial of the common law courts of Germanic origin98. The written pleadingphase is followed by a pre-trial phase designed for the collection of facts andthe means of evidence necessary for presentation of the case at trial. Its pur-pose is not the information of the court through evidence, it is the informa-tion of the parties to enable them to prepare for trial perfectly. In the totallyoral trial phase the parties to litigation present their assertions of fact and lawand their evidence to the judge or jury. A characteristic feature of this proce-dural model is the duplication of factual investigation: first, fact gatheringduring the pre-trial phase for the parties’ information and then, presentingand probing facts during the trial for the information of the deciding courtand its judges or jurors99.

The third model has been developed only a short time ago during the lastdecades in Germany100, England101, and Spain102. It could be described as“main hearing model”. After a written introductory stage (pleading stage)

95 See, e.g., The American Law Institute, ALI/Unidroit Principles and Rules of Transna-tional Civil Procedure, Discussion Draft No. 2 (April 2001), Introduction, p.6. The Pro-posed Final Draft (May 2004) presents a more differentiated analysis, see Principles 9,Comment P-9C.

96 See for Austria, von Canstein, Lehrbuch der Geschichte und Theorie des österreichi-schen Civilprozeßrechtes I (1880); Stürner, Zur Struktur des europäischen Zivilprozesses,in: FS Ekkehard Schumann (2001) 491ff. (502); Fasching, Zivilprozeßrecht2 (1990)Rz.1032; in English language van Caenegem (supra n.90) p.92.

97 Stürner (previous note) 501.98 See Millar 13ff., 204, 268; Stürner, Transnational Civil Procedure (supra n.36) 876/

877, 880ff.99 See the excellent short outline of the present American federal procedure in a civil ac-

tion given by Cound/Friedenthal/Miller/Sexton, Civil Procedure6 (1993) Ch. 1(B), p.3ff.100 See the basic work of my distinguished academic teacher Fritz Baur, Wege zu einer

Konzentration der mündlichen Verhandlung in Zivilsachen (1966) (so called “StuttgarterModell”); for an overview on the structure of the present German Civil Procedure seeJauernig, Zivilprozessrecht27 (2002) §23, p.78ff.; Murray/Stürner Ch. 1(C), p.11ff., Ch. 7,p.191ff.; Ch. 8, p.249ff.

101 For an outline of the modern English procedure see N.Andrews, A New Civil Proce-dural Code for England: ZZP Int. 4 (1999) 1ff.; id., Civil Procedure, in: English PrivateLaw, ed. by Birks II (2000) 897; excellent detailed textbooks are Andrews and Zuckerman.

102 For an outline of the new Spanish civil procedure see Ramos Mendéz, Guía para unatransición ordenada a la LEC (2000) 289ff.

rolf stürner

22569 (2005)

comes a period of preparatory clarification regarding the applicable law, thefactual basis of the case, and the available means of evidence. This preparatoryprocedural stage serves not only to inform the parties and to enable them toprepare for the main hearing, it is also designed to inform the court or thejudge and to anticipate or replace in part the taking of evidence in the latermain hearing (production of documents to the opponent and the court, writ-ten expertises for the information of the court and the parties, written state-ments of witnesses as a preparation or anticipation of oral testimony, etc.)103.Only those relevant issues that remain unclarified during this preparatorystage will be tried in the final concentrated main hearing, where evidence notalready received will be presented and taken and where the parties will maketheir concluding arguments. This “main hearing model” requires case man-agement by a professional judge from the very beginning of the proceedingand is not adapted to jury procedures. The adoption of this model by themodern English Civil Procedure has been the consequence of the completedecline of the civil jury trial in modern England104. The development of mod-ern German civil procedure during the nineteen seventies has been mostly in-fluenced by the example of German criminal procedure, where the Ger-manic idea of a trial in the sense of a concentrated main hearing has more orless survived. The modern Spanish procedure and the Iberoamerican ModelCode105 may have been affected by German and English conceptions. For thefurther success of a good idea in the field of international harmonization oflaw it makes sense to emphasize the English influence. In the field of law Ger-man origin may be no favourable recommendation especially in the Anglo-American world106. In the worst case it could be the kiss of death for a goodidea107.

103 See for England Andrews m.n.34.15, 34.21; Civil Procedure Rules 1999, 32.1, 32.5,35.5; for Germany Murray/Stürner Ch. 7(G), (I) and (L), pp.225ff., 229ff., 239ff.

104 See Andrews m.n.34.09; Supreme Court Act 1981, sec. 69.105 See Arts. 297ff., 300, 301, 303 Código Modelo Iberoamérica; Ortells Ramos 6346;

Barbosa Moreira (both supra n.84).106 See especially Langbein, The influence of German Emigrés on American Law, The

Curious Case of Civil and Criminal Procedure, in: Der Einfluß deutscher Emigranten aufdie Rechtsentwicklung in den USA und in Deutschland, ed. by Lutter et al. (1993) 320ff.(328ff.).

107 See Stürner, Anglo-American and Continental Civil Procedure, The English Reformas a Model for Further Harmonization?, in: The Future of Transnational Civil Litigation(supra n.8) 9ff., 11. According to a nice story told by Stefan Riesenfeld, Berkeley, it was thewise advice of Charles N.Llewellyn to the younger colleague and German emigrant not todisclose the German origin of a good idea because this could be “the kiss of