Approaches to Procedural Law: The Pluralism of Methods

Prof. Dr. Loïc Cadiet; Prof. Dr. Dr. h.c. Burkhard Hess; Prof. Dr. Marta Requejo Isidro

doi:10.5771/9783845285122

Summary

Procedural law is no longer a purely domestic topic. The recent tendencies characterizing the field, such as Europeanization and harmonization, mark the evolution towards a new, cross-border dimension of this area of law. In addition, the growing importance of transnational legal relations in all spheres of civil and commercial dealings make it unavoidable to face the new challenges of procedural law across national borders. The traditional methods of national dogmatics, which have for a long time guided the reflections of scholars operating in the field of civil procedure, are not necessarily able to capture the increased complexity of the present. In light of this, it is particularly important to reflect on the methods (comparison, inter-disciplinary approaches and quantitative and qualitative empirical analysis, among other) which should be adopted in order to guarantee that research in the field of procedural law maintains its comprehensive ex-planatory power. The present book is the outcome of the second edition of the IAPL-MPI Summer-School, which took place in Luxembourg in July 2016 bringing together outstanding young post-doc researchers dealing with European and comparative procedural law, as well as with other relevant dispute mechanisms for civil controversies.

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Bibliographic data

Edition: 1/2017
Copyright year: 2017
ISBN-Print: 978-3-8487-4309-4
ISBN-Online: 978-3-8452-8512-2
Publisher: Nomos, Baden-Baden
Series: Studies of the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law
Volume: 9
Language: English
Pages: 552
Product type: Edited Book

Titelei/Inhaltsverzeichnis No access Pages 1 - 12
1. Authors:
  1. (I) Introduction No access
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  2. Authors:
    1. (a) Comparing the Regulation of Civil Proceedings No access
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    2. (b) Comparing Court Proceedings and ADR Mechanisms No access
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    3. (c) Comparing Civil Procedure and Criminal Procedure No access
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  3. Authors:
    1. (a) Comparing to Improve National Legislation No access
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    2. (b) Comparing to Harmonize Legislation No access
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    3. (c) Comparing to Act in a Globalized World No access
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  4. Authors:
    1. (a) Choosing the Terms of Comparison No access
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    2. (b) The Information Needed and the Way to Gather It No access
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    3. (c) The Language Issues No access
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2. Authors:
  1. (I) Introduction No access
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  2. (II) What is Comparative Law? No access
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  3. (III) What Are the Methods of Comparative Law? No access
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  4. (IV) The Critique of Comparative Law No access
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  5. (V) The Next Iteration of Comparative Law? No access
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  6. (VI) Development of Comparative Procedural Law No access
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  1. Authors:
    1. (a) Introduction. On The “Constitutive Tension” Between Similarities and Differences in Comparative Legal Studies. Comparative Law in Theory – on Comparative Methodology No access
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    2. (b) Mauro Cappelletti’s Comparative Law No access
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    3. (c) A Closer Look: The Stages of the Comparative Law Research No access
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    4. (d) An Epistemic Critique No access
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  2. Authors:
    1. (a) Introduction No access
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    2. (b) In Search of the Common Need No access
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    3. (c) Explaining the Differences: a Cultural Approach No access
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  3. (III) Conclusion – Is Jacques Derrida right? No access
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2. Authors:
  1. (I) Introduction No access
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  2. Authors:
    1. Authors:
      1. (i) The Definition of the Exceptio Rei Judicatae No access
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      2. (ii) The Locus Standi of Third Parties to Appeal No access
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    2. Authors:
      1. (i) A Uniform Definition of Res Judicata No access
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      2. Authors:
        1. Countries Where Third Party Remedy Against the Judgment Exists No access
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        2. Countries Without a Third Party Remedy Against the Judgment No access
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  3. Authors:
    1. Authors:
      1. (i) The Basic Concepts No access
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      2. (ii) Parties Bound by the Judgment No access
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    2. Authors:
      1. (i) American Law: Admission of Non-Mutual Collateral Estoppel No access
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    3. (b) English Law: The Rise of “Abuse of Process” No access
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  4. Authors:
    1. (a) A first Conclusion: the Necessity of Going beyond the Legal Families No access
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    2. Authors:
      1. (i) Judgment about the Validity of a Patent No access
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      2. (ii) Judgment on the Liability of a Tortfeasor Who Inflicted Harm to Many Victims No access
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  5. (V) Conclusion No access
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3. Authors:
  1. (I) Introduction No access
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  2. (II) Terminology No access
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  3. Authors:
    1. (a) Empirical Research on Legal Systems in General No access
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    2. (b) Particularities of the “Numerical Comparative Law” Studies No access
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    3. (c) The Siems Guidelines No access
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  4. (IV) The Importance of Transparency and Caution No access
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  5. Authors:
    1. (a) The Special Case of Procedural Law No access
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    2. (b) The Intricacies of Measuring the Quality of Civil Justice No access
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    3. Authors:
      1. 1. The Lex Mundi Study No access
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      2. 2. The Follow-Up Paper No access
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    4. Authors:
      1. 1. The Lex Mundi Study No access
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      2. 2. The Follow-Up Paper No access
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  6. Authors:
    1. (a) Comparative Law Literature and Quantitative Studies No access
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    2. (b) Illustration: The Lex Mundi Study “Courts” No access
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  7. (VII) Conclusion No access
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1. Authors:
  1. (I) Introduction: Privatizing Adjudication and Privatizing Procedure No access
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  2. (II) Procedural Contracts No access
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  3. Authors:
    1. (a) Comparative Law Methodology No access
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    2. Authors:
      1. (i) Germany No access
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      2. (ii) France No access
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      3. (iii) Italy No access
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      4. (iv) Brazil No access
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      5. (v) United States No access
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  4. Authors:
    1. (a) Why Have Procedural Agreements at All? No access
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    2. (b) Managerial Judging and Procedural Agreements No access
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    3. (c) Historical Background and the Uniqueness of Procedural Agreements No access
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  5. Authors:
    1. (a) The Importance of Empirical Analysis of the Privatization of Adjudication No access
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    2. (b) Future Research Proposal No access
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1. Authors:
  1. (I) Methodology and Introduction to the Theme No access
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  2. (II) Family Law in the Italian System No access
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  3. (III) Law 10th November 2014 N. 162: A General Overview No access
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  4. (IV) The Assisted Negotiations for Legal Separation and Divorce No access
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  5. (V) The Procedure of Assisted Negotiation for Legal Separation and Divorce: An Analytical Illustration. No access
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  6. (VI) Personal remarks No access
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  7. (VII) Conclusion No access
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2. Authors:
  1. (I) Introduction No access
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  2. Authors:
    1. (a) Greece in the Storm of the EU Financial Crisis No access
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    2. (b) The Way to the Establishment of the New Greek Civil Procedure Code No access
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  3. Authors:
    1. (a) The Need for the Acceleration of Civil Trial Proceedings No access
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    2. Authors:
      1. (i) The Issuance of Sound, Fair and Quick Civil Judgments No access
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      2. (ii) The Adoption of Judicial Economy in Civil Trial No access
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      3. (iii) The Fulfillment of the Right to Judicial Protection No access
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  4. Authors:
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      1. (i) The New Ordinary Proceedings before the Courts of First Instance No access
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      2. (ii) The Reformation of the Special Proceedings and the Changes in the Payment Order No access
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      3. (iii) The Modifications in the Interim Proceedings Regarding Precautionary Measures No access
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      4. (iv) The Amendments in the Compulsory Civil Enforcement Procedure No access
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    2. Authors:
      1. (i) The Establishment of Judicial Economy as a Fundamental Principle of the Civil Trial No access
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      2. (ii) The Promotion of ADR Methods No access
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      3. (iii) The Establishment of a New System for the Concentration of the Litigants’ Claims No access
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      4. (iv) The Deployment of Technological Innovation No access
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  5. (V) Conclusion: Towards the Europeanization of the Greek Civil Procedural Law? Problems, Challenges and Prospects No access
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3. Authors:
  1. (I) Presentation No access
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  2. (II) Overview of Argentina’s Supreme Court and Federal Judiciary System. The Fusion of Two “Legal Traditions” No access
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  3. Authors:
    1. (a) “Quantitative” Dimension No access
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    2. (b) “Qualitative” Dimension No access
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  4. Authors:
    1. (a) “Overproduction” Mechanisms No access
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    2. (b) Case Selection Mechanisms No access
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  5. Authors:
    1. (a) Partial Discretion No access
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    2. (b) No Motivation No access
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    3. (c) Parameters to select by “transcendence”. Relevance, institutional roles and the Argentinian approach to the “ius litigatoris dilemma”. No access
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1. Authors:
  1. (I) Introduction No access
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  2. Authors:
    1. (a) Nomination of Judges and Terms of Tenure No access
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    2. (b) Removal from the Office No access
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    3. (c) Immunities No access
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    4. (d) Composition of Panels and Presidency No access
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  3. Authors:
    1. Authors:
      1. (i) On the Claim (request) of a Member State No access
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      2. (ii) On the Claim (request) of an Economic Entity No access
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    2. (b) Interpretation on the Union Law, Civil Service Issues No access
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    3. (c) Waived Competence of Preliminary Rulings No access
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  4. (IV) Conclusion No access
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2. Authors:
  1. (I) Introduction No access
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  2. Authors:
    1. (a) The Rationalization as a Goal No access
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    2. (b) The EU’s Institutional Support No access
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  3. Authors:
    1. (a) The Question of Multiple Jurisdictions of the ACtJHR. No access
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    2. Authors:
      1. (i) Advisory Jurisdiction No access
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      2. (ii) Jurisdiction in Constitutional Issues Arising from the Institutional Structure of the Organization No access
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      3. (iii) Jurisdiction to Deal with Any Issues of International Law No access
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      4. (iv) Staff Appeals No access
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      5. (v) Other Competences? No access
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  4. Authors:
    1. (a) The Number, Eligibility and Required Expertise of Judges No access
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    2. (b) Enforcement Mechanism No access
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  5. (V) Conclusion No access
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3. Authors:
  1. (I) Introduction No access
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  2. (II) The Approach of the CJEU to the “Automatic Return” Principle No access
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  3. (III) The Position of the ECtHR No access
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  4. (IV) A “Non Mechanical” Return? The Neulinger Case No access
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  5. (V) A Procedural “Compromise”: the Povse v. Austria Case and its Progeny No access
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  6. (VI) Concluding Remarks No access
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1. Authors:
  1. (I) The Matter No access
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  2. (II) Participation and Due Process of Law No access
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  3. Authors:
    1. (a) Would the Process Survive without Participation? Critique to the Notion of Essential Participation. No access
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    2. (b) Would the Process Survive Without Participation? Critique to the Notion of Instrumental Participation No access
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  4. (IV) A New Concept of Procedural Participation No access
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  5. (V) Who is Entitled to Collective Rights? No access
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  6. (VI) The Concept of Society No access
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  7. Authors:
    1. (a) Global collective disputes No access
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    2. (b) Local Collective Disputes No access
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    3. (c) Irradiated Collective Disputes No access
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  8. Authors:
    1. (a) The Process in Global Disputes No access
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    2. (b) The Process in Local Disputes No access
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    3. (c) The Process in Irradiated Disputes No access
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  9. (IX) Conclusion No access
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2. Authors:
  1. (I) Research Project No access
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  2. (II) Introduction No access
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  3. Authors:
    1. (a) General Constitutional and Statutory Overview No access
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    2. (b) Case Law General Overview: The Halabi Case and its Progeny No access
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    3. (c) SCJA Administrative Regulations No access
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  4. Authors:
    1. (a) Economic Barriers No access
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    2. (b) Cultural Barriers and the Complexity of Modern Law No access
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    3. (c) A Dangerous Combination No access
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  5. Authors:
    1. (a) Access to Justice as One of the Main Goals of Class Actions No access
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    2. (b) Access to Justice and Disadvantaged Groups of People No access
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  6. (VI) The Scope of “Case or Controversy” Doctrine and its Influence on Judicial Review of Public Policies through Class Actions No access
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  7. (VII) Provisional Conclusions No access
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3. Authors:
  1. (I) Introduction No access
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  2. (II) Financial ADR Mechanisms No access
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  3. Authors:
    1. (a) Differences between the English System and the Spanish System No access
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    2. (b) Internal Dispute Resolution Scheme No access
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    3. Authors:
      1. (i) Defensor del Cliente (Customer Ombudsman) No access
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      2. (ii) Market Conduct and Claims Department (Financial Ombudsman) No access
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      3. (iii) Funding Scheme No access
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  4. Authors:
    1. (a) Development of ADR on Cross-Border Disputes Resolution No access
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    2. (b) Fin-Net No access
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  5. Authors:
    1. (a) Nominal Fee for Consumers No access
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    2. (b) Pre-specified Monetary Thresholds No access
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  6. Authors:
    1. (a) The Removal of the Spanish Institution Defensor del Cliente No access
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    2. (b) Single Financial ADR Body No access
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    3. (c) Final Decisions with (Half)-Binding Effects No access
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  7. Authors:
    1. (a) Financial Consumer Protection is essential to guarantee the Market Stability No access
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    2. (b) The Customer Care Departments or IDR Schemes are not Out-of-Court Settlement of Consumer Disputes Procedures in the proper Sense No access
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    3. (c) The Financial Ombudsman is an ADR Category of its Own No access
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4. IV. Eduardo J. Couture. Footmarks that Help in Understanding the Present No access Pages 441 - 450
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1. Authors:
  1. (I) Introduction No access
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  2. (II) The Special Nature of CISG Arbitration Case Law No access
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  3. (III) Criteria for CISG Arbitral Precedents No access
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  4. (IV) Uniform Application of CISG No access
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  5. (V) Conclusion No access
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2. Authors:
  1. (I) Introduction No access
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  2. (II) The Idea of the Forward-Looking Aspect No access
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  3. (III) Professor Schauer’s Thesis No access
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  4. (IV) Professor Schauer’s Erroneous Premise No access
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  5. (V) When Forward-Looking Aspect of Precedent Justifies Formally Binding Immediate Decisions: The Brazilian Example No access
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  6. (VI) Conclusion No access
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3. Authors:
  1. (I) Introduction: a Brief Panorama of Collective Procedural Law No access
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  2. (II) The Kind of Collective Protection No access
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  3. (III) The Role of the Collective Procedure No access
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  4. (IV) The Collective Protection as a Fundamental or Constitutional Right No access
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  5. (V) Requirements, Protection of the Absent Members and Different Methods and Representation No access
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  6. (VI) The Frame of the Collective Procedural Law and its Paths. A multi-door perspective No access
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  7. (VII) The New Brazilian Civil Procedure Code No access
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  8. (VIII) Final Questions No access
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1. Authors:
  1. (I) Presentation and Legal Framework No access
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  2. (II) The Principles at Play: Equivalence, Effectiveness, and Effective Judicial Protection No access
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  3. Authors:
    1. (a) Introduction No access
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    2. (b) Standing of Private Parties – Rights Protection or Effectiveness? No access
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    3. (c) The Existence of a Right Deriving From Union Law No access
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    4. (d) Adverse Effects on the Applicant No access
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    5. (e) Vested and Present Interest No access
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  4. (IV) Discussion and Final Remarks No access
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2. Authors:
  1. (I) “Sentry” No access
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  2. (II) With the Eyes of a Stranger No access
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  3. (III) A View from Procedural Law No access
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  4. (IV) Procedural Law and Global Governance: Towards a Workable Research Agenda No access
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  5. (V) The Silence of Procedural Law Literature No access
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  6. (VI) Misleading Perceptions No access
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  7. (VII) Janus-Faced Civil Procedure No access
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  8. (VIII) The Case for Procedural Law No access
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  9. Authors:
    1. (a) Domestic and international courts and transnational governance. The working hypothesis aims to establish whether there are symptoms of an ‘over-judicialization’. No access
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    2. (b) Use of indicators (and big data) as a tool to evaluate and compare judicial systems. No access
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  10. (X) Aim of the Research Project No access
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3. Index No access Pages 547 - 552