Tilburg University
Critical Report on The Reform of the Macedonian Civil Procedure Code
Vranken, J.B.M.
Publication date:
2004
Document Version
Peer reviewed version
Link to publication in Tilburg University Research Portal
Citation for published version (APA):
Vranken, J. B. M. (2004). Critical Report on The Reform of the Macedonian Civil Procedure Code. [n.n.].
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Review of the proposals of the Working Group by Prof. Dr. Jan B.M. Vranken
Tilburg University, The Netherlands
The proposals I have reviewed, are:
• Proposal for change and amendments to the law on civil procedure, December 2003 (received February 20, 2004).
• Proposal for changes and amendments to the law on civil procedure, February 27, 2004 (received March 2, 2004)
The first part of my review (A) will comment the proposals. The second part (B) will deal with issues, which are not in the proposals, but might be taken into consideration because they support the goals of the proposals and contribute to reach them. In the third part (C) I will answer the questions of the WG that were conveyed to me by an email of Nena Ivanovska, February 27, 2004.
A.
Material truth and reconsidering the relation between judge and parties
This is the key-issue, besides legal representation and the service of process. The proposals try to find a new balance between the responsibilities of the judge and the parties. The balance only concerns the facts and the evidence, because determining the legal grounds of the claim and the defense is, and will remain in the proposals, the judge’s responsibility. This is in accordance with all procedural systems in other countries I know.
Finding a new balance between the judge and the parties concerning the facts and the evidence has two sides:
1. The first is the formal side: who is responsible for moving on the process to have the case determined within a reasonable time (as art. 6 European Treaty on Human Rights requires)? In plain language: how to avoid unnecessary or even deliberately provoked delays and obstacles? In some legal systems the legislator has imposed a duty to cooperate on both the judge and the parties to resolve the dispute as soon as possible. But it is obvious that this provision as such is powerless and needs to be
Delays may be caused by the judge and by the parties. Delays caused by the judge are e.g. when he/she waits too long before scheduling a
preparatory hearing or before giving his/her judgment. In most countries these delays are not sanctioned. Most legislators confine themselves to an appeal to the judges to do their work in due time. The Macedonian proposals don’t differ from this approach.
Delays caused by the parties or their attorneys are numerous. Leaving aside the delays caused by the serving of process, they vary from not paying the court fees and withholding relevant facts and evidence, till e.g. not
responding to the claim, not attending the (preparatory) hearing or not duly preparing the (prep.) hearing, with the sole purpose to get a postponement. The art. 10, par. 2-7 CPC new entitles the judge to fine the party, which causes delay. I would like to underpin this approach and to stress that it is very important that the judge will effectively use this (and other) means. In a lot of countries the judge has the power and the means to “punish” parties, but he/she doesn’t use them. Therefore, right from the beginning it should be made very clear to the parties and the attorneys that the judge will not
hesitate to effectively impose sanctions on parties, which cause unnecessary delays.
I regret that the only sanction mentioned in art. 10 new is a fine. I would recommend to give the judge the power to impose other
sanctions as well, such as striking out facts and documents which are submitted too late (or which don’t comply with a court order); not admitting evidence by witnesses if it is proposed too late; condemning the party that does not appear to pay the wasted costs, and so on. A second remark on art. 10 is that a decision of the judge to fine a party, is considered to be a criminal decision according to art. 6 ETHR and should give the fined party the same rights as a defender to a
criminal charge.
Two sanctions more:
I would like to add two sanctions more to art. 10 new. They concern
closed cases. I think that this approach is a consequence of the shift in responsibilities between judge and parties the proposals are aiming at: it stresses the own responsibility of parties. And, of course, I try to be aware of the difficult financial situation of parties, but it is not the judge’s task to resolve that problem. It is even far beyond his power to do that. The problem is politically and if the approach I suggest will force politicians to openly face the problem, nobody will regret, I suppose.
The second situation I have in mind is when the defendant does not answer the claim. The first WG has considered making the answer obligatory, but in the second WG the question still is open for discussion. I would strongly recommend not making the answer obligatory. I don’t know any legal system in which an answer is obligatory. Defendants are free and
autonomous to decide whether they want to defend themselves or not. My suggestion is that when the defendant is properly served, but does not respond to the claim within the time limit, the judge doesn’t order a
preparatory hearing, but immediately renders a judgment in which he, after examining (a) if the claim follows from the facts and the evidence presented in the statement of claim, and (b) if the claim is not unreasonable, grants the claim: a default judgment. The default judgment should be served to the defendant. The defendant has the right to oppose during a certain time (e.g. four weeks after the default judgment has been served to him in person). If he decides to oppose the judgment, he files in a statement of opposition, which has the same status as a statement of response (defense), and the trial can be continued as usual: scheduling a (prep.) hearing, and so on.
This means that art 318 of the current Code should be changed and that the legal remedy of opposition should be added to it (serving the default judgment, time limits and the content of the statement of opposition).
I stress that in this system of default judgment, the defendant has two opportunities to consider whether to defend himself or not: first after the statement of claim has been served upon him, secondly after the default judgment has been served upon him. That should be enough to protect his rights.
The system I propose is in accordance with most legal systems in Western Europe and with the proposal of the American Law
In my experience, in most cases there is no opposition against default
judgments. Especially when small claims are at stake, parties know that they have to pay, but for some reason they want a delay. One may understand the difficulties of parties to pay their bills and debts, but once again it is not the judge’s task to solve that problem. The government pays the judiciary and it is an abuse of governmental money when parties use the judiciary as a means to postpone the moment they have to keep their obigations. Besides that, such behavior does not show much respect towards the judges.
In short: default judgments, in combination with a renewal of the small claims procedure (see under B), and with preliminary execution of judgments (see under B), will remarkably decrease the caseload of the courts. It is a waste of time and energy to organise and prepare a hearing in cases the defendant doesn’t answer after being duly notified.
2. A new balance as to the content: as I understood from everyone I spoke, you want to get rid of a judge who is made responsible for establishing the material truth. You prefer a system in which the judge can stick to what the parties present him about the facts and the evidence.
As a principle I am convinced that this is the correct and most desirable approach. Nevertheless, this does not mean that the judge can operate as a sheer arbitrator (or as a sheer umpire). Of course he has to decide procedural matters - see art. 263 and the new proposal regarding the (preparatory) hearing -, but inevitably he has to do more. To give some examples: written statements may not be fully clear; they possibly or definitely lead to misunderstandings; they may not be complete; or parties may make mistakes (as everyone does). It may happen that facts or evidence are disputed or perhaps unacceptable for the other party. It also may happen that one of the parties accuses the other party of withholding evidence or whatever. It may happen that the judge has in mind a legal ground, which possibly or definitely makes other facts or other evidence relevant. Parties didn’t bring those facts and that evidence, because they didn’t think of the legal ground the judge has in mind. And so on and so forth.
There is need for someone to guide the parties’ process of establishing the facts and the evidence. I stress the word “process”, because the judge shouldn’t investigate or try to determine the missing facts and evidence himself, but he has to ask (one of) the parties to do it and to complete the file in order to make it possible for him to decide the case properly. This is quite different from what is required in the system of material truth. In the system I have in mind - and which is in accordance with the legal systems in the countries I know, even in common law -, there still can be, and often is, a difference between the material truth and the procedural truth (the facts and evidence the judge has to base his decide upon). We may regret this, but there is no real, effective alternative (as the Macedonian experiences show). Therefore, to this extent the judge has to play a more active role than just sitting there as an arbitrator or an umpire, and wait for what parties present him/her, because that won’t work.
Even in the pre-trial stage in common law (the fact finding), which stage belongs to the parties as an almost constitutional right, it has been recognized that the parties cannot do it alone. They need the guidance and the assistance of the judge, e.g. in pre-trial meetings to establish which facts and evidence are (ir)relevant.
The way to implement this nuance of the principle that primarily the parties are responsible for the relevant facts and evidence differs in each country. Some countries already start with a check of the statements of claim and defense. If the statements are not complete or have other lacks, the judge has to return the statement and to order to supplement the statement within a relatively short time. Some countries in which there is only one hearing, add to this check a better preparation of the hearing, e.g. ordering the parties to bring to the hearing some information or/and documents which the judge shall specifically describe in the order.
Some countries, such as Germany and Austria, impose a duty on the judge to discuss during the (prep.) hearing all relevant issues with the parties and even to draw their attention to certain legal issues which they might have forgotten in their claim or defense. In other countries, such as France and the Netherlands, the duties of the judge don’t go that far, but the judge is entitled to order evidence by (expert-) witnesses in case he thinks he needs it. For the rest, he identifies and discusses the relevant issues with the parties during the hearing, asks for clarification and sometimes for more
From the discussions in the WG I learned that this nuance is difficult to explain, because everyone fears that the current situation will be continued. I hope I have been able to take away this fear - for that reason this part of my review is less concise than the rest of it -,
because the nuance makes the system really different from the current situation. Perhaps that because of the strong desire to overcome the current difficulties with the principle of the material truth, the opposite position has been pushed (a little bit too) hard. Each reference to an active role of the judge, even a very tiny or modest one, seems to be looked upon with suspicion. This suspicion is not justified.
Preclusion of new facts and evidence after the preparatory hearing (as a rule)
The proposal is
1. to make the preparatory hearing obligatory (except in small claim cases, I assume, and in situations as referred to in art. 267, art. 269a, and 270, par. 3 new), and
2. to consider the preparatory hearing the last opportunity to present new facts and evidence.
I strongly recommend this proposal, provided that the preparation of the preparatory hearing is satisfying, i.e. that parties know
a. that they are obliged to appear and that, in case they don’t appear, the judge will impose them sanctions (as mentioned in e.g. art. 10)
b. that if the plaintiff doesn’t appear, the case will be dismissed and the plaintiff will be condemned to pay the costs (and perhaps a fine)
c. that parties have to seriously prepare the preparatory hearing and have to present all facts and evidence, because after closing the preparatory hearing they will not have the opportunity anymore to present them (with the
exception as provided for in art. 284 new)
d. that only one preparatory hearing will be held.
or may require criteria for exceptions to the rule, which are not easy to define. I also realize that the system may be very hard, taking into account that parties don’t need to be represented by a lawyer (neither in first
instance, nor in appeal and revision). However, I think there is no other option.
Two consequences:
a. the rule to preclude interim appeals from procedural decisions
The swift handling of the case in first instance,
enhanced by erasing the current principle of the material truth, and the duty to present facts and evidence in an early stage of the proceedings, mentioned above,
will be endangered if parties are entitled to an interim appeal from procedural decisions. Generally, there is no need for that. Therefore, to protect the advantages of the proposed changes on the material truth and presenting the facts and evidence – mentioned above -, the rule should be to preclude interim appeal from procedural decisions. Appeal should only be open after the judge has rendered its final judgment. In exceptional cases the judge has the discretion, upon its own motion or upon request of the party (parties), to decide that parties, if they want to, are entitled to an interim appeal.
b. the rule that appeal from a final judgment means that the case is transferred to the appellate court, and that the appellate court has to decide the case, and not to return it
I was told that the appellate court, after having reviewed the case, returns more than 90% of the cases to the basic court. In a concrete case it might even happen more than once.
To the best of my knowledge, and as far as I have read about it, this situation doesn’t exist in other procedural systems, neither in civil nor in common law. I refer to Charles Platto (ED.), Civil Appeal Procedures Worldwide, 1992
Ecuador, Uruguay, Venezuela, Canada, Puerto Rico, and the United States,
and to J.A. Jolowicz and C.H. van Rhee (Eds.), Recourse against Judgments in the European Union, 1999
with contributions on the legal systems of Austria, Belgium,
Denmark, England and Wales, Finland, France, Germany, Greece, Ireland, Italy, The Netherlands, Portugal, Spain and Sweden,
and to the new civil procedure rules in England and Wales (1999), Germany and Austria (2002), and to the draft proposals in the Netherlands (2003). The general idea is the so-called transfer-rule: the case is transferred from the basic court to the appellate court, and the appellate court has to decide the case in a final judgment (and not to return the case). The new German art. 538 (entered into force in January 2002) holds this rule explicitly (par. 1), and makes only few exceptions (par. 2). The exceptions especially
concern cases in which the parties didn’t have sufficient opportunity to deal with the conflict on the merit, and cases in which as a consequence of
procedural mistakes the judge didn’t order evidence and, most probably, the evidence will be very extensive. In such cases it isn’t considered justified to rob the parties of the right to present their case in two instances. Another exception may be the situation that mistakes substantially have affected justice. But as a rule, it is the appellate court that has to decide the case even if the parties - within the limits of the preclusion-rule – present new facts and new evidence, or if the appellate court itself orders evidence, or if the mistakes are not substantially affecting justice.
This system doesn’t violate the right to appeal, because that right doesn’t necessarily imply a full re-hearing of all facts and evidence in all cases in which the first instance’s judgment will have to be
reversed, varied or affirmed with a different reasoning. Art. 6 ETHR allows limitations, and especially doesn’t force to returning the case to the first instance for further hearing, each time the appellate court disagrees with the basic court’s judgment, on whatever ground (application of substantive law, procedural matters, or the determination and the assessment of facts and evidence).
further hearing. Anyhow, art. 6 ETHR by no means requires this. The reason is obvious and is illustrated in Macedonia: it is not efficient, because it causes a lot of delays, and because it strongly contributes to the heavy caseload of the basic court. Moreover and even more
important: it interferes with all attempts to improve and speed up litigation (or better: it makes such attempts useless from the very beginning).
To conclude: as a consequence of the changes the WG has in mind
concerning erasing the current principle of the material truth, and imposing upon the parties the duty to present facts and evidence in an early stage of the proceedings (see above), the introduction of the transfer-rule is
inevitable. I strongly recommend strict criteria according to which the appellate court can deviate from this rule (and return the case to the basic court). For obvious reasons, the preclusion of new facts and evidence in appeal, will it make easier to implement the transfer-rule.
Legal representation
Currently, in about 80% of all cases there is no legal representative. The proposal doesn’t contain drastic changes. I can understand this, because especially the change into a mandatory legal representation will have severe consequences, which are not easy to deal with:
First, in order to secure access to justice (as provided for in art. 6 ETHR), the government will have to establish a system in which persons, who cannot financially afford legal representation, nevertheless shall have the right to be legally represented, and the government will have to pay the legal representatives;
Secondly, I have been told that it might be unconstitutional to establish a mandatory legal representation, even only in appeal and in revision.
I’ll stay out of this discussion, because the issue of legal represnetation is deeply connected to the actual legal and factual situation of a country and I am not sufficiently aware of all aspects thereof in Macedonia. I only state that the changes that are proposed sound reasonable and, more important, are in accordance with art. 6 ETHR.
an attorney at law appears and wants to change the legal grounds or the defence, which the party itself had chosen in the first instance. I think such change is principally allowed, because the preclusion-rule only concerns the facts and the evidence. Let us assume the new legal grounds and defences are better (more to the heart of the dispute), but they require other (new) facts and evidence to prove them. Has the attorney at law the right to present those other (new) facts and evidence, or has it been the party’s own choice and risk not to have been legally represented in the first instance?
Service of process
The service of process is a hot and difficult issue. It is on the one hand rather technical by nature, but on the other hand it is strongly linked with the most essential right of parties in litigation as well: the access to justice (the right to be heard in court) as guaranteed in art. 6 ETHR. I don’t have to stress this link with art. 6 ETHR. You are fully aware thereof.
As far as the technical aspects are concerned, it is difficult for me to review the proposals or to recommend (other) solutions, because they depend on knowledge about the situation in Macedonia I don’t have, e.g.:
* whether there exists a reliable Registry of Births, Deaths, and Marriages with the names and addresses of the citizens, and a reliable Trade Registry for legal entities;
* how reliable the different means of communication are at the moment (postal service, fax, court officers, authorized private companies etc.); * as far as court officers or authorized private companies are concerned, which education they have or is necessary;
* and also whether they are well organized and have their own disciplinary code of conduct and tribunals to punish violations of this code, which may enjoy the government’s trust.
the penalty that if they have such obligation, the judgment can be served on the same address as the serving of the statement of claim, unless the court was duly informed about their change of address, (5) to deceide whether there will be only one notification during the trial, and that therefor it is the judge’s duty to announce the date and hour of each new hearing when he decides to schedule such a new hearing, or to announce the date and the hour on which he will render judgment, and (6) to decide whether service by fax, email or other electronic means of service is permitted. Or is this question not relevant (at the moment)?, and (7) what to do in case the service failed. Special attention should be given to serving problems in the field of
Adjournment
As a consequence of the preclusion-rule according to which in the normal track presenting new facts and evidence is not allowed anymore after the preparatory hearing, the issue of adjournement will be less important, because the judge will take care the trial is moving on in due time. He will try to prevent unnecessary delays. With a view to that goal, I would like to suggest the following:
• if the defendant doesn’t answer, the judge will render a default judgment (see above)
• if the plaintiff doesn’t appear at the first preparatory hearing, the claim will be dismissed;
• if the defendant doesn’t appear at the first preparatory hearing, the judge will decide the case (which is a final and not a default
judgment);
• if the plaintiff and/or the defendant will not appear on one of the following hearings, the judge will (after having heard the party which appears) decide the case;
• parties are entitled to withdraw the claim or defense (or a part thereof), provided paying the wasted costs;
• parties are entitled to ask for an adjournement in order to try to reach a settlement outside the court.The judge will grant them a certain time limit, after which they have to inform him whether they have reached a settlement, or whether and why they need more time;
• parties are entitled to abandon the claim or defense (or a part thereof) at any time, provided paying the wasted costst. After the
abandonnement of a claim, new proceedings about the same claim shall be precluded;
B. Issues not dealt with in the proposal, but supporting the goals of the reform
Small claim track
A main feature of many procedural systems is that all claims, whether they are simple, complex, small or large, are treated in the same way. There is only one procudural track, unless there are specialized courts, such as the French tribunal de commerce, the English Employment Tribunals or the German Arbeitsgerichte. In Macedonia, as in the Netherlands and in many other countries, there are no (or hardly any) specialized courts. However, many countries recognize specialized divisions in the basic courts, such as the cantonal judges in the Netherlands, in Germany and in France, that hear small claims (as well as labour and lease cases) and so have built up a specialism in these.
I think that in view of the differences between the European countries in this field, there is no reason to pursue in Macedonia a centrifugal
development and to differentiate by setting up specialized courts (assuming that it would be lawful, because I was told that Macedonian Constitution forbids it).
But a specialized division in the basic courts for small claims would strongly support the goal of the reform to speed up litagition and to remain in accordance with European developments and standards. The general idea is that doing justice is not incompatible with courts seeking to deal with cases swiftly and in ways, which are appropriate to the expense of money involved. The current Macedonian CPC already contains provisions on small claims, but they don’t sufficiently differ from the normal track.
Therefore, I would recommend reforming the small claim track into an efficient instrument, which enables the judiaciary to do justice in such cases within the shortest time possible. It is very important that people, individuals as well as institutional creditors, such as small businesses etc., know that in small cases they don’t have to wait for a judgment longer than e.g. three months.
In considering which adaptations of the current provisions would be required, the WG may think of the following:
• only one hearing within two months after filing the claim;
• no evidence by (expert-)witnesses, or excluding the provisions on evidence and allowing the judge to use any method or approach which fits best;
• limited and fixed costs (very important);
• allowing the judge to immediately strike out hopeless claims or defenses;
• keeping in mind that in other countries the main users of small claims are small businesses, and professional middle class individuals
pursuing or defending cases concerning consumer goods and servics, debts, personal injury claims to a certain amount, and contracts. Many of them are repeat players, which give them the benefit of experience, compared to their counterparties: individuals who commonly are one shooters;
• much emphasis and pressure on trying to reach a settlement;
• appeal on limited grounds (e.g. wrong application of substantive law and severe procedural violations, which substantially affect justice), or after a leave to appeal;
• ….
Small claims tracks generally are considered a great success. In England for instance the small claims have outstripped the normal track by far (more than 80% v. 20%). Combined with a default judgment (see under A),
because most defendants don’t have any defense at all, and with preliminary execution (hereinafter), the introduction of a small claim track will
drastically decrease the number of pending cases, without violating the fundamental right of parties to have their claim or defense dealt with justly.
Payment order
In many countries exists an even easier procedure for the collection of indefensable or indisputed money claims, which often but not always are small claims: the payment order-procedure (or the collection of money debts-procedure). In Germany and Austria it is called Mahnverfahren, in France injonction de payer, in Belgium and in the Netherlands until 1992 the summary proceedings for small claims, and in England and Wales since December 2001 the money claim on line.
his opposition before the court. In Austria the opposition quote is only about 7%, in Germany about 10%, in France less than 4%.
It is important to notice that a payment order, which is obtained without hearing the party, cannot be declared preliminary executable (see hereinafter), because that would be contrary to art. 6 ETHR Sometimes, as in Germany, the debtor will have the opportunity to bring forward his defence before the court judgment is rendered. The same applies to the EU-Directive 2000/35/EU on facilitating the collection of money claims in commercial matters. The Directive still has to be implemented in most countries.
See also the EU Green Paper on a European order for payment
procedure and on measures to simplify and speed up small claims (the European order for payment and small claims), December 2002
(COM 2002, 746), which is meant as a consultation paper to answer 46 questions preparing a Directive or a Reglation on this topic. The consultation is still running.
Sometimes the procedure is limited to money claims below a certain amount (in Austria since 2002 below Euro 50.000), sometimes as in Germany and France, there is no limit. The Austrian Mahnverfahren is obligatory in this sense that for money claims below the fixed amount the creditor can only use this procedure. In other countries there is a choice between the normal track, the small claim track and the payment order-procedure.
I think that if a country decides to chose for a payment
order-procedure, in which the debtor will have the opportunity to be heard before the court renders its judgement, it doesn’t make sense to establish both a small claim track and payment order-procedure.
Nevertheless, interesting is that the payment orders-procedure can easily be autometed. In Austria and Germany this already is the case.
England and The Netherlands are preparing such a system (see for England <http://www.lcd.gov.uk>, with further links, containing an Internet-based collection facility for claims of up to £100,000; in The Netherlands the results of a pilot project will be published soon).
In Macedonia the payment order-procedure would help the courts to effectively cope with the problem of the many, many claims on unpaid bills, which are filed by suppliers of services, such als electricity, water or
Of course the payment order-procedure must contain a reasonable protection of debtors against surprise or intimidation tactics and against their own ignorance. To a large extent this is a matter of easily understandable
information in the document by which the debtor will be given notice of the judgment (or of the initiating request as in Germany). It also is a matter of facilitating access to justice in cases the debtor wants to object.
To conclude: payment orders, like small claim tracks, have proven to be an effective instrument to prevent or fight court congestion. For that reason it should be taken into consideration by the WG, preparing the change of the Macedonian CPC. The instrument stresses the parties’ own responsibility, and in combination with automation, it provides a most efficient allocation of manpower and monetary resources.
Preliminary execution (immediate enforcement)
Another important instrument to prevent delay, to avoid abuse of procedural rights and to reduce the number of appeals, is to grant the basic court judge the discretionay power to declare his judgment subject to immediate
execution, even after the other party has lodged an appeal. Instead of
granting the judge a discretionary power, the legislator can put preliminary execution in the Code as a rule (as a “clause de style”). In The Netherlands such rule exists since 1992, in Germany since 2002.
The general idea is that no serious reason supports the belief that already the simple fact of lodging an appeal makes the final result uncertain to such extent that enforcement should be excluded until the judgment is not open anymore to recourse. Anyhow, this uncertainty shouldn’t prevail as a rule the benefits of a preliminary execution.
Length of judgments
I was told that Macedonian judgements are very lenghty, mainly because of the use of many reiterations. There is no “European” solution to this suffer. The style of judical decisions strongly varies: compare the concise French style, the learned German style, and the abundant and personal English style. I cannot recommend what is best. Just try to determine what really matters (the legal reasoning for instance), and be convinced that reiterations can – and to my mind: should - be avoided almost always. A judicial decision is no novel or poem.
Request for the protection of legality
Art. 387-394 of the current CPC give possibilities of State interference in civil law procedures between citizens, which in Western eyes look very unfamiliar. According to these provisions, the public prosecutor has the task to watch over the proper application of the law. I assume that this task is based on the interest of the state. I can understand this concern, but not that this interest prevails the civil rights of the citizens. Since the public
prosecutor acts without the consent and cooperation of the parties, ànd the decision upon his request affects their civil rights without them having
access to justice to object the decision, I even think that the art. 387-394 may give rise to doubts about its compatibility with art. 6 ETHR. I would
recommend erasing them. I assume that also from a point of view of workload of the court, the efficiency of this extraordinary proceeding may seriously be doubted (I heard figures of several hundreds cases a year).
Acceptable exceptions may be cases in which the immediate protection of the state’s interest itself is at stake, or in which the public order or the public morality is predominant. However, the current provisions are not restricted to those situations.
relevant for future cases. Therefore, cassation (revision) in the interest of the law is a means to help the SC carrying out its tasks developing the law and watching over its unity.
Case management
The proposal doesn’t explicitly deal with this issue. Nevertheless, there are a lot of obvious possibilities to use or create case management techniques in the proposal, such as
• checking the statements of claim and response with the help of a checklist. This will make clear to the parties what the court expects them to do (in the different tracks)
• establishing a uniform postponement policy (practice directions)
• making a checklist in order to help unifying the way of preparing and carrying out the preparatory hearing and the main hearing
• design a general policy as to the sanctions which courts may impose
• build teams of judges to work together and to be responsible for deciding a certain number of cases. Young judges will benefit from teamwork, because they learn from experienced colleagues in the team
• trying to further attempts of the judges to settle the case. Settlement deserves more attention. The same applies (but perhaps not already at this moment) for the use of mediation to resolve the dispute
• establishing guide lines when facts or evidence are new and not admissible
• trying to unify/harmonise imposing sanctions (which, when and to whom)
• trying to find out what can be done in the pre-trial stage. I can undersytand this is not the main concern at the moment, but it is important to keep this in mind and to start thinking about it as soon as possible.
• ….
C. Answers questions Working Group of February 27, 2004.
Nena, could you implement the questions. I have some troubles in doing that. Thank you in advance.
1. See under A.
2. See under A and B. Access to justice is not incompatible with e.g. a differentiation of tracks, with a preclusion-rule of returning cases from appeal to the basic court, with only one notification, with default judgments, with payment orders, with sanctions on parties which cause unnecessary delays or other obstacles, with preliminary execution, and with case management.
But: access to justice might be violated by requests for the protection of legality.
3. See under B. 4. See under A.
5. See the EU Green Paper on alternative dispute resolution in civil and commercial law, April 2002. I told something about it in my presentation in December 2003. I’ll insert it here:
Mediation and other ADR-techniques
There are many ADR-techniques, such as mediation, conciliation,
negotiation, mini-trial, early neutral fact-finding or expert determination, but it is beyond the scope of this presentation to discuss them here.
Mediation seems to have started an almost sensational victory march
through many civil justice reforms. The courts must try more often to reach friendly settlements or to encourage the parties to use an ADR procedure if they consider it appropriate (e.g. at hearings and conferences). As part of the civil justice reforms in many countries the establishment of ADR institutions is being facilitated.
The European Commission published in April 2002 a very interesting Green Paper on alternative dispute resolution, esp. mediation, in civil and
commercial law. Its purpose is to initiate a broad-based consultation of those who are involved in civil procedure and ADR. It contains a lot of
information on the topic and on the current state of affairs in the EU-countries. It does not make sense to try to summarize this flood of information.
The Green Paper deals with 21 questions. I think these questions cover all relevant issues. How to select the cases? Which indications promise good and succesful results? At what time the selection should be made: in the pre-action stage, after filing the claim, or in appeal as well? Should mediation be made mandatory in certain fields of the law, such as family law or consumer law? From empirical research we know that mandatory mediaton not always is as succesful as mediation on a voluntary basis, but I admit that the
evidence is not conclusive.
The Green Paper shows that the governmental involvement in the
establishment of an adequate ADR infrastructure strongly differs. In court-annexed mediation some argue that the government should involve, esp. as far as the education of mediators is concerned, the supervision on the quality of their work, and the procedural guarantees and principles of mediation. Others argue that mediation is an informal technique of solving problems, which resists too much regulation by government, because regulation implies formalities (and the aversion to the formalities of the official judiciary is one of the main reasons for the increasing importance of mediation).
list of qualified mediators; the education of mediators; the
confidentiality and the mediator-client privilege; insurance against liability; the execution of mediation results.
In Germany the situation is not so clear, because each State (alle Länder) has to make its own regulations on mediation.
Advocates of mediation often are very enthousiastic and sometimes a kind of believers. Sober-mindedness is needed as a countervailing power. I
recommend the articles and books of Hazel Genn, who for instance openly and based on statistics admits that there are only few court-annexed
mediations – the same applies in the Netherlands; no more than 1000 court-annexed mediations in two years, out of about 220.000 claims, filed in the Regional courts; that is less then 0,5 % -, and who argues that as soon as litigation is improved, e.g. by establishing small claim tracks and/or payment orders-procedures, the eagerness to mediation substantially decreases. An important observation, I would think.
Nevertheless, I consider mediation a most valuable instrument in some cases, perhaps even more in the pre-action stage than after commencement of the proceedings, but that (and other issues as well) needs further thinking and deciding.
6. See under A. In France, The Netherlands, Belgium and Germany not all attorneys are admitted to act before the Supreme Court. They need a lincense and only the best attorneys will be granted such license.
7. Selection and assigment of expert-witnesses is one of the major problems in all countries. It causes at least 6-12 month delay of the trial. In the
Netherlands we are trying to improve this situation:
a. by making a list of experts who are willing to accept an assigment of the court and know that it should be carried out within a certain time; b. by organising courses in which judges and experts (most medical
approach and discipline. The judge should know what he could ask and how to do is; the experts should know what is meant by a certain question.
