VOLUME 100 NUMBER 2 SUMMER 2016 58 JUDICATURE VOL. 100 NO. 2 A REPORT ON THE ELI CIVIL PROCEDURE PROJECT Developing CIVIL PROCEDURE RULES FOR EUROPEAN COURTS BY GEOFFREY C. HAZARD JR. is the European Law Institute. Its Secretariat is based in Vienna, Austria; its members ELIinclude judges, lawyers, law professors, ministry of justice officials, and law firms from the European Community. It is substantially modeled on the American Law Institute, but its wider range of membership, particularly government lawyers ex officio, means that ELI has some- thing of a quasi-governmental standing. ELI is currently engaged in a number of interesting law reform projects in such areas as consumer protection law, insol- vency law, and contract law. The aim is to formulate laws and codes that could be adopted in member states, thus contribut- ing to the harmonization of law among the European countries. JUDICATURE 59 Among ELI’s projects is developing a we obtained approval from ALI to propose a UNIDROIT appointed a parallel set of rules, or code, of civil procedure. The joint venture to UNIDROIT. working group that included specialists project has been underway for about three UNIDROIT engaged Prof. Rolf Sturner from England, France, Argentina, and years and has made substantial progress. At of Freiburg University in Germany to eval- Japan. Notable among the members of this stage, its conclusions are only tentative uate the proposal. Sturner’s career involved the working group were Justice Aida and its specific provisions will be reconsid- being a judge as well as a distinguished Kemelmayer de Carlucci, an appellate ered in light of the whole set. professor of law. Sturner had done import- judge in Argentina, Prof. Neil Andrews Among the important issues are — no ant work in comparative procedure, includ- of Cambridge University in the U.K., and surprise to U.S. law people — jurisdiction ing a project with Peter Murray of Harvard Prof. Frederique Ferrand of Jean Moulin over foreign parties, notice requirements, comparing German civil procedure with its University in Lyon, France. Ferrand is pleading, and joinder of claims. Most sensi- U.S. counterpart. Sturner made a positive completely versed not only in French law tive — again no surprise — is the question evaluation of the proposed project and later but also in German civil procedure. of pretrial discovery, including depositions joined the project team as a Co-Reporter. The Transnational Rules project was not and production of documents. Indeed, the Also joining the team as Associate Reporter targeted at any particular audience, thereby subject is so sensitive that in the ELI proj- was Prof. Antonio Gidi, who was trained to avoid people who thought the idea of ect the process is called “access to evidence” in Brazil’s civil-law system and teaches integrating civil and common-law systems rather than “discovery.” (The matter of comparative law in the U.S. was a pipedream. The discussions in both discovery/access is further discussed below.) The Transnational Rules project had ALI and UNIDROIT groups “proceeded an ALI advisory committee that included without the elaborate introductions often THE TRANSNATIONAL RULES judges, lawyers, and legal academics. typical in international deliberations. The ELI Civil Procedure project has The legal academics notably included On the contrary, discussion was simple, had a head start by reason of an earlier Professors Mary Kay Kane of the University direct, professional, and sympathetic.” project, the Principles of Transnational of California, Hastings, a coauthor of a ALI/UNIDROIT, supra, at p. xliv. During Procedure and accompanying rules. leading treatise on U.S. federal procedure, the drafting process, working texts were See ALI/UNIDROIT Principles of and Edward Cooper of the University disseminated to various legal scholars, some Transnational Civil Procedure of Michigan, who was Reporter for the of whom expressed the usual doubts. At the (Cambridge U. Press, 2006). The Principles Civil Rules subcommittee of the Standing conclusion of the drafting stage, in both and Rules have been taken by ELI as the Committee on Practice and Procedure of the English and French, the project conducted framework for its project. Judicial Conference of the United States. roadshows around the world. Those attend- The Transnational Rules project ing these sessions included legal scholars, was cosponsored by the American judges, and practitioners from about Law Institute (ALI) and UNIDROIT. 15 countries, including China, Russia, “UNIDROIT” is the French acronym Brazil, and Australia. for the International Institute for the AMONG THE IMPORTANT The Transnational Rules project was Unification of Private Law. UNIDROIT completed in 2004. In the intervening was established in 1923 as a part of the “ISSUES ARE JURISDICTION years the Principles and Rules attracted League of Nations apparatus and has its attention primarily in academic circles headquarters in Rome. It has a long and OVER FOREIGN PARTIES, and some in international arbitration. positive provenance although a relatively See Bibliography, in ALI/UNIDROIT, modest record in model legislation. supra, at pp. 157 et seq. No national The Transnational Rules project NOTICE REQUIREMENTS, regime adopted them. However, the began as an idea developed by Prof. transnational formulations were widely Michele Taruffo, an Italian law profes- PLEADING, and JOINDER available and had attracted no substantial sor specializing in comparative law, negative attention. and myself, then winding down my OF CLAIMS. MOST The transnational texts have proved term as ALI Director. Taruffo, whose very useful in the ELI project. Several background is in civil law, and I, with SENSITIVE IS THE QUESTION members of the transnational team are a background in common law, had now engaged in the ELI enterprise, done several studies together. This led of PRETRIAL DISCOVERY, including Professors Sturner, Andrews, us to believe that, contrary to conven- and Ferrand. tional legal opinion, the civil law and INCLUDING DEPOSITIONS common-law systems could be inte- DIFFERENCES AND SIMILARITIES grated. We spent a year working together and PRODUCTION OF It is worth reviewing the differences to develop a skeletal version of such a and similarities between, on the one system. Armed with resulting confidence, DOCUMENTS. hand, the Transnational Rules and 4 © 2016 JUDICATURE at Duke University School of Law. All rights reserved. www.law.duke.edu/judicature 60 VOL. 100 NO. 2 the emergent ELI formulations, and, on common-law systems. This distinction ally to maintain the secrecy of confidences the other hand, the counterpart rules of is becoming more formal than actual. obtained in the course of representation.” civil-law systems and the American model In England, the judges now have very Rule 27.1 provides that “evidence may epitomized in the Federal Rules of Civil substantial authority to manage civil not be elicited in violation of the legal- Procedure (FRCP). Notable differences are: cases, particularly in complex litigation. profession privilege of confidentiality under jury trial, the roles of judges and lawyers, The same is true in the U.S. federal forum law [or] confidentiality of communi- and the scope of appellate review. system, as expressed in FRCP 16 (pretrial cations in settlement negotiations.” No European civil procedural system conferences) and FRCP 26 (discovery). uses juries, although some of them have lay Many state systems have similar rules and REGARDING THE SCOPE OF APPEL- arbiters in labor court procedure. Although some also have specialized courts with LATE REVIEW, the difference remains jury trial in civil cases originated in “managerial judges” to handle commer- at least formally significant. In the civil England, English courts over a century ago cial litigation. systems an appellate court has plenary ceased using juries except in a very limited The Transnational Rules address the authority to review an inferior court’s category of cases. The Transnational Rules roles of both judges and lawyers. Rule 10.1 judgment, not only as to issues of law but proceed on the premise that they can work provides: also as to issues of fact. The underlying equally well under a jury system. Rule 23.2 theory is that the civil code determines of the Transnational Rules requires: A judge . must not participate if the substantive basis of the case and there are reasonable grounds to doubt that the higher court judges have more The judgment should be accompanied [his/her] impartiality. authoritative understanding of the code’s by a reasoned explanation of the essen- provisions. The underlying civil-law tial factual, legal, and evidentiary basis Rules 10.2 and 10.3 go on to provide theory regarding issues of fact tradi- of the decision. that “A party must have the right to make tionally has been that evidence is a legal reasonable challenge of the impartiality of science and that the strength of an item of The accompanying comment states that a judge” and that such a challenge must be evidence is governed by a set of rules. For compliance with this rule can be achieved heard by or appealable to a different judge. example, the probative value of a witness’s by reference to “the transcript of the Principles 4.1 and 4.2 provide that “a testimony depends on his or her position instructions to the jury.” party [be able] to engage a lawyer of the in society — whether a professional or party’s choice” and that “a lawyer’s profes- merely a worker. These evidentiary rules, REGARDING THE ROLE OF JUDGES sional independence should be respected.” like the substantive law of the civil code, AND LAWYERS, a distinction is The comment to these provisions states are therefore more authoritatively under- traditionally drawn between “inquisito- that “lawyers are expected to advocate stood by higher level judges. rial” civil-law systems and “adversarial” the interests of their clients and gener- In common-law systems the appellate court reviews for “error” in jury-tried cases and “abuse of discretion” in most judge- tried cases.