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From Transnational Principles to European Rules of Civil Procedure

Members of the Steering Committee and project reporters, November 2014, Rome

This project is a cooperative venture of ELI and UNIDROIT. It builds upon an instrument produced jointly by the ALI (American Law Institute) and UNIDROIT (The International Institute for the Unification of Private Law), Principles of Transnational Civil Procedure, and aims at the regional development of those Principles.

Background

In 2004, the ALI and UNIDROIT adopted and jointly published Principles of Transnational Civil Procedure. The aim of the work was to reduce uncertainty for parties litigating in unfamiliar surroundings and promote fairness in judicial proceedings through the development of a model universal civil procedural code. The Principles, developed from a universal perspective, were accompanied by a set of Rules of Transnational Civil Procedure, which were not formally adopted by either UNIDROIT or the ALI, but constituted the Reporters’ model implementation of the Principles, providing greater detail and illustrating how they might be developed. The Rules were to be considered either for adoption or for further adaptation in various legal systems, and along with the Principles can be considered as a ‘model for reform in domestic legislation’.

On 18 and 19 October 2013, ELI and UNIDROIT held the 1st exploratory workshop in Vienna, which aimed at an initial analysis of a series of different topics, ranging from service of process to enforcement, with a view to identifying the most promising issues and the most appropriate methodological approach for the project. It was attended by over 75 participants from different jurisdictions, representing various legal professions: lawyers; judges; and academics. For more information about the workshop, click here.

Following that, in February 2014, the ELI Council approved the project and the cooperation was formalised by a Memorandum of Understanding. 

ELI-UNIDROIT cooperation

ELI and UNIDROIT cooperation aims at adapting the ALI-UNIDROIT Principles from a European perspective in order to develop European Rules of Civil Procedure. This work takes as its starting point the 2004 Principles and aim to develop them in the light of: i) the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union; ii) the wider acquis of binding EU law; iii) the common traditions in the European countries; iv) the Storme Commission’s work; and v) other pertinent European sources.

Out of the topics presented at the 1st exploratory workshop, three were selected as the initial focus of the project: Service and Due Notice of ProceedingsProvisional and Protective Measures; and Access to Information and Evidence. The members of the expert working groups, who examine these areas, were appointed in May – June 2014.

Two further working groups on Res judicata and lis pendens, and Obligations of parties, lawyers and judges, were established at the Steering Committee and Working Groups Joint Meeting in Rome in November 2014. At the November meeting one year later (26-27 November 2015) in Trier, the Steering Committee announced a decision to establish three additional groups on the following topics: Costs, Judgments and an overarching group on Structure. The decision on the Working Group on Structure results from a need to draw together coherently the work of the existing working groups. Finally, at the last meeting in April 2016, an agreement was also achieved as to the establishment of an additional new group on Parties.

Each working group consists of up to eight members and is led by two co-reporters. The groups of the first and second cycles have already held numerous meetings, at which they discuss the rules of civil procedure of various European jurisdictions and at which the draft rules of European rules are being developed. Some of the members of the four working groups of the third cycle have already discussed the possible work plan and the topics of focus of their respective teams.

A number of Intergovernmental Organisations (Hague Conference on Private International Law (HCCH)), European Institutions (the European Commission, the European Parliament (JURI Committee), the Court of Justice of the European Union), Professional Associations (the Association for International Arbitration (AIA), the Council of Bars and Law Societies of Europe (CCBE), the Council of the Notariats of the European Union (CNUE), the European Network of the Councils of the Judiciary (ENCJ), the International Bar Association (IBA), the Union Internationale des Avocats (UIA), the Union international des huissiers de justice (International Union of Judicial Officers) (UIHJ)), and Research Institutions (the International Association of Procedural Law and the Max-Planck Institute of Luxembourg for International, European and Regulatory Procedural Law) participate in the project in a role of Observers. The ELI-UNIDROIT joint venture has been also supported by the work of Advisers – renowned experts in the field of civil procedure.

ELI-UNIDROIT and the EU institutions

Since its start, the project has attracted the attention of numerous organisations, which joined the project in a role of Observers. It has however also attracted interest of EU institutions, such as the European Parliament and the European Commission. Some of the project-related events (see ELI Annual Conference 2015, Conference in Trier (November 2015), and the Joint Meeting in Vienna (November 2016)) were attended by the representatives of the European Commission and the European Parliament.

In 2015, the project was referred to in a Working Document prepared by the Committee on Legal Affairs of the European Parliament, in the context of discussing the scope of the European Union's legislative competence in the field of civil procedural law.

In 2016, the ELI-UNIDROIT joint venture was mentioned in the In-Depth Analysis on 'Harmonized Rules and Minimum Standards in the European Law of Civil Procedure' published by the Policy Department for Citizens’ Rights and Constitutional Affairs of the European Parliament.

In January 2017, the European Parliament's Legal Affairs Committee published an in-depth analysis titled 'The European Law Institute/UNIDROIT Civil Procedure Project as a Soft Law Tool to Resolve Conflicts of Law'.