УДК 347.91/.95
DOI
Сухова Арина Григорьевна (arina_suxova@mail.ru)
ORCID:
Студент Института государственного и международного права
Уральского государственного юридического университета
Arina G. Sukhova
Ural State Law University
Institute of State and International Law, Student
Научный руководитель:
Брановицкий Константин Леонидович
Профессор кафедры гражданского процесса
Уральского государственного юридического университета
Доктор юридических наук
Academic supervisor:
Konstantin L. Branovitsky
Professor of Civil Procedure Law department
Ural State Law University
Doctor of Juridical Sciences
Сближение и гармонизация гражданского процессуального права в рамках Евросоюза
An approximation and a harmonisation of civil procedure in the Еuropean union
Для цитирования: Сухова А. Г.,Сближение и гармонизация гражданского процессуального права в рамках Евросоюза. // Уральский журнал правовых исследований. 2021. № 1. С. DOI
For citation: А. G. Sukhova, ‘An approximation and a harmonisation of civil procedure in the Еuropean union’, Ural Journal of Legal Research, 2021, No. 1. pp DOI
Аннотация: Cтатья посвящена вопросам сближения и гармонизации гражданского процессуального права на региональном уровне в рамках Евросоюза. Особое внимание уделено истории процесса сближения, а также внутренним и внешним вызовам, возникающих в процессе интеграции. Согласно теории рационального выбора плюсы от интеграции превалируют над ее минусами. На основе анализа положений международных договоров, актов мягкого права сделан вывод о том, что в рамках супранационального регулирования в ЕС ведется активная работа по сближению гражданского процессуального права.
Ключевые слова: сближение права; гармонизация гражданского процессуального права; Европейский союз; Европейские правила гражданского процесса.
Abstract: The article is devoted to the issues of convergence and harmonization of civil procedure law at the regional level within the European Union. Special attention is paid to the history of the convergence process, as well as internal and external challenges of the integration process. It is concluded that within the framework of supranational regulation in the EU, active work is being done to bring civil procedure law closer together.
Keywords: convergence of law; harmonization of civil procedure law; lex fori; European Union; European Rules of Civil Procedure.
Globalization is a complex and contradictory phenomenon. The term “globalization” appeared in the 1980s at the Harvard business school and was associated primarily with the activities of transnational corporations [5, p. 105]. Most often, globalization is associated with qualitatively new conditions of integration, integrity, and interdependence of the world (J. E. Fyodorov) [5, p. 106]. It is no accident that this term is based on an economic basis because global changes are the result of dynamic changes in the economy. But despite this, globalization has an impact on all spheres of the society. In this connection, globalization is understood as “a complex geoeconomic, geopolitical and humanitarian phenomenon that has a powerful demonstration effect on all areas of activity of the states involved in this process” (A. G. Volodin, G. K. Shirokov) [15, p. 83].
The process of globalization also has a significant impact on the increase in the number of disputes with a foreign element. However, there is a problem of limiting the validity of court decisions to the territory of one state. Consequently, civil procedure law requires convergence and harmonization. This need is caused by the desire to avoid or overcome emerging conflicts of the jurisdiction of courts of different states.
An existing principle lex fori, as well as the lack of knowledge of lawyers of the procedural law of a particular country appear to be the obstacles to the convergence and harmonization of civil procedure law. Lex fori is an integral element of civil procedure, according to which the court considering a civil dispute must apply its national procedural law. The doctrine of civil procedure justifies the expediency of applying this principle for reasons of practicality: when the procedural law is familiar to the judge, he applies it quickly and confidently. In addition, the lex fori action also serves legal certainty and procedural economy [2, p. 34]. In the 1960s the interesting point of view was expressed in the doctrine: it was necessary to apply foreign public law norms [7, p. 344]. The most reasoned concept of applying foreign procedural law was proposed by the Hungarian scientist I. Sasi, who supposed that justice requires that actions based on foreign law should be treated differently from actions based on the law of the court's country [7, p. 346]. The main principle of modern international private law is the application of the law and order, with which the legal relationship has the closest connection. This means that in international civil proceedings, the principle of applying the rules of the procedural legislation that is most closely related to this process should also be considered as the main principle [7, p. 347]. However, the rule of limiting lex fori to “rules of civil procedure that cannot affect the final outcome of the dispute” [11, p. 19] is nevertheless intended to achieve a very specific goal, which, however, is more typical for substantive law in general and private international law (with its conflict of laws regulation) in particular [2, p. 37]. This goal is to minimize the dependence of the results of the review on the place of consideration of the dispute [11, p. 51]. What is important, moving towards this goal allows to reduce the use of forum shopping by parties, since it will deprive it of any meaning in principle. it is worth paying attention to the areas of activity of changing the understanding of the lex fori principle. It should always be about the need to analyze specific areas of convergence (institutions of civil procedure) in order to build the relationship of the latter with lex fori [1]. Thus, convergence on such an issue as judicial notification of foreign participants in the process can hardly come across lex fori. In addition, in areas such as the recognition and enforcement of foreign judgments, many states have already concluded international agreements on issues that allow for the direct application by national courts of the rules of such agreements [2, p. 37]. Finally, the goal of narrowing the lex fori principle is directly consistent with the overall goal of creating integration associations.
At present lawyers have an increasing need to go beyond the scope of “mono-legal” activities and to know the right of a particular country at the proper level, and not general principles or international norms. Not only internationalization, but also europeanization of the legal profession led to the redistribution of power players on the world stage and new that, in general, led to even greater complexity of disputes and the increasing demand for lawyers with the highest international qualifications [4, p. 188]. The concept of "European lawyer" also reflects the ability of lawyers from EU Member States to carry out their activities in the territory of another EU Member State [2, p. 39]. However, neither the actions of lex fori nor the nature of the activities of lawyers are the significant obstacles to the convergence of civil procedure law. On the contrary, they can act as a catalyst for states to coordinate and bring together “legislation to overcome emerging conflicts of jurisdiction or the enforcement of court decisions” [2, p. 35]. Also, it is the convergence, and not the competition, of procedural legal norms that can ensure the operation of the principle of formal equality of the parties. The obstacles, if they existed, might be political and psychological rather than legal. The point is that rapprochement implies trust, an institution whose deficit is now more than obvious.
Thus, the convergence of civil procedure law is due to the following factors: firstly, convergence in this area is an important stage in building a common legal space and an equal treatment of citizens of this space; secondly, the interpretation of the Article 6 of the European Convention for the protection of human rights and fundamental freedoms allows to conclude that the right to a fair trial belongs to international standards of human rights and freedoms, and convergence can be considered as their transformation; thirdly, a similar process in substantive law has been going on for quite a long time, which makes it necessary to bring civil procedure law closer together; finally, the process of convergence is inextricably linked in some cases with the reform of the civil process itself in a particular country.
As for the convergence of civil procedure law at the international level, after analyzing international treaties, it can be concluded that the awareness of the need and expediency of convergence in this area has come a long time ago. Thus, the purpose of the Hague Convention on civil procedure (01.03.1954) is “harmonization of relations between the systems of obtaining evidence in civil law countries and common law”[2]. The purpose of the Convention on the recognition and enforcement of foreign arbitral awards (New York, 1958) is to provide general legislative standards for the recognition of arbitration agreements and judicial recognition and enforcement of foreign and other non-domestic arbitral awards (an international public law scope)[3]. One of the goals of the Principles of cross-border civil procedure 2004 (ALI/ UNIDROIT) is also the harmonization of civil procedure for resolving disputes arising from cross-border transactions[4]. Examples include the Hague conventions on the service abroad of judicial and non-judicial documents in civil or commercial matters of 15.11.1965 and on the receipt abroad of evidence in civil or commercial matters of 18.03.1970, the UNCITRAL model laws on international commercial arbitration of 1985, and on cross-border insolvency of 1997. It should be noted that these acts are aimed at convergence within individual institutions and relate to the system of soft law. In 2004 the Principles of cross-border civil procedure were developed. Initially, the developers set out to create rules for cross-border civil procedure. However, UNIDROIT, in joining the work on this project, expressed the view that “legal and cultural differences do not allow to fully discuss the feasibility/ practical applicability of the Rules” [12, p. 215]. The Principles are not a complete document, but they contain several provisions that prevent convergence (narrow understanding of cross-border disputes), which requires a further work.
As for the convergence of civil procedure law within the European Union, since the adoption of the treaty establishing the European economic community (Treaty of Rome), which came into force on 01.01.1958, the civil procedure has been in the focus of the EU. The convergence is based on the provisions of the clause 4 of the Article 220 of this Treaty, which deals with the simplification of the formalities established for mutual recognition and enforcement of court and arbitration decisions[5]. Currently, the version of the Nice Treaty of 16.03.2003 is in effect. And with the signing of the Lisbon Treaty on 13.12.2007, improving the effectiveness, democratic legitimacy, and coherence of the Union's activities has begun. Some authors believe that the Lisbon Treaty represents a step back in the integration process [10, p. 58]. Of course, there are several positive changes, which include the following. The European Council has fully become an institution of the EU. Although it has been removed from the legislative process, its decisions have actually turned from political declarations into EU regulations. The role of the European Parliament has been reduced. the joint decision-making procedure will be applied in the resolution of approximately 80 issues transferred to the competence of the EU (previously – 37). It is important that the Lisbon treaty provides a clear and comprehensive list of the EU competences, bringing clarity to one of the most complex issues of the European integration. At the same time, the Lisbon Treaty was adopted in place of the long-debated EU Constitution. The main achievement of the Constitution was its symbolic meaning – it was supposed to become a symbol of the united Europe. Moreover, voting by a qualified majority in the council of ministers is limited by the introduction of a new version of the famous Ioannina Compromise [10, p. 67]. Finally, unlike the EU Constitution, the text of the Lisbon Treaty lacks the long-recognized principle of the rule of law of the EU. And most importantly, for the first time it was possible not only to transfer new competencies to the European Union, but also to return powers to the national level. The Lisbon Treaty, while formally preserving the principle of an institutional balance of influence between supranational and intergovernmental elements, shifts the balance of influence in favor of intergovernmental institutions: the European Council and the Council of Ministers [10, p. 72]. Today, more than ever, the European Union needs greater solidarity and a willingness to sacrifice national interests in favor of European ones, a more effective and flexible system of governance, an active economic policy and increased attention to equalizing the levels of economic development.
In 1987, in Utrecht, a working group of 12 professors led by Professor Marcel Storm, in the absence of an official mandate, began to develop a Code of Civil Procedure for EU member states [3, p. 40]. The model code as the chosen tool of convergence was not the most successful option (in contrast to the Ibero-American Model Code of Civil Procedure of 1988). This document is rather "fragmentary" [2, p. 52], it did not include the principles of civil procedure and issues of judicial competence and organization. However, the results of the discussion on writ proceedings were later used in the acts of a secondary EU law (Regulation EC no 1896/2006 "on the introduction of European writ proceedings"). The acts of a secondary EU law in the field of civil procedure, which is based on the Article 114 of the Treaty on the functioning of the EU, are intended to regulate certain procedural issues, both having a transnational component and in the absence of one.
For the EU, the "non-unified" principles (a right to legal aid and to the language of legal proceedings, a principle of continuity, etc.) contained in the extensive practice of the European Court of Justice and some EU Regulations are also of particular importance. One of the key elements of the development and convergence of the EU civil process, which was one of the reasons for the adoption of Regulation 1215/2012, according to the European Commission and the Council of the EU4, is the elimination of the exequatur procedure within the EU (and the so-called “Urteilsfreizügigkeit” [2, p. 120]).
In 1999-2014, the development process was governed mainly by five-year detailed programmes (Tampere Programme (1999-2004), the Hague Programme (2005-2009), and the Stockholm Programme (2010-2014)), which were adopted by the European Council [1, p. 47]. The general content of the first of the programmes can be characterized through its three main aspects: access to the law, mutual recognition of judicial decisions and large-scale convergence of civil procedure law [2, p. 114]. The Hague Programme covered most of the issues of migration, refugee status, police cooperation, and criminal justice cooperation, some of it also covered civil cooperation [2, p. 115]. Unlike the Tampere programme, the new document provided for, in addition to general aspirations, “increasing mutual trust”, “creating the single European legal space”, and contained a small but rather specific list of further steps [22]. The idea of developing and adopting minimum standards for the civil procedure was mentioned in the Stockholm programme (2010-2014). Only on 11.02.2017 a draft of the Resolution of the European Parliament was prepared with the recommendations of the European Commission regarding minimum standards of civil procedure (27 articles). The basic minimum standards, as a flexible convergence tool, are divided into four groups: 1) fair and effective results; 2) efficiency of proceedings; 3) access to courts and justice; 4) a fair trial [1, p. 49].
If earlier the trend in the field of approximation of civil procedure law was that the part of the competence was seized and given (for example, exequatur, notification, mediation). However, recent trends are different: approximation of national rules. The latest act in this area is the European Rules of Civil Procedure (ELI/ UNIDROIT project). In 2004, the American Institute of Law (ALI) and UNIDROIT adopted and jointly published the Principles of Transnational Civil Procedure. The aim of the work was to reduce uncertainty for the parties conducting the trial in an unfamiliar environment and to promote the fairness of the trial by developing a model universal Code of Civil Procedure[6]. The principles developed from a universal perspective were accompanied by a set of rules of transnational civil procedure, which were not officially adopted by either UNIDROIT or ALI but represented a model implementation of the principles by reporters, providing more detailed information and illustrating how they could be developed.
On 18-19 October 2013, the European Institute of Law and UNIDROIT held their 1st research seminar in Vienna (Austria). After that, in February 2014, the ELI Council approved the project, and the cooperation was formalized by a Memorandum of Understanding[7]. Cooperation between the ELI and UNIDROIT was mainly aimed at adapting the ALI-UNIDROIT principles from the European perspective in order to develop European rules of civil procedure. this work takes as its starting point the principles of 2004 and aims to develop them in the light of 1) the European convention on human rights and the charter of fundamental rights of the European union; 2) the wider experience of binding the EU legislation; 3) common traditions in European countries; 4) the work of the storm commission; and 5) other relevant European sources[8].
Several working groups (8) were entrusted with the development of the rules and their accompanying comments, each of which was tasked with developing regional rules for the main topics covered by the ALI/UNIDROIT principles. In addition, the steering committee decided to develop rules for appeal proceedings. Thus, eight working groups were established: in chronological order, “access to information and evidence”; “interim and protective measures”; “provision of documents and proper notification of proceedings”; “Lis pendens and res judicata”; ”obligations of parties and lawyers”; “parties and collective damages”, “judgments”, “costs” and “appeals”[9].
These working groups were invited to prepare draft regulations and supporting comments. a comprehensive “structure group” was also established with the task of consolidating the texts of the working groups, overseeing the framework and overall structure of the final rules and comments, and ensuring consistency and avoiding gaps in those aspects that may not be covered by the designated working groups. From the beginning, the project attracted the attention of numerous organizations that joined it as observers. However, it has also attracted the interest of EU institutions such as the European Parliament and the European Commission[10].
The ELI/ UNIDROIT project on transnational civil procedure-the formulation of regional rules was demonstrated at a conference held on 26-27 November in trier, with the participation of project members and external commentators. The conference, organized by the Academy of European Law (ERA), was opened by Dr. Angelica Fuchs (Head of the European Private Law Section of ERA), Diana Wallis (former President of ELI, Independent European Lawyer, Hull), Professor Anna Venetsiano (Deputy Secretary General of UNIDROIT) and Mr. Robert Bray (former Head of the Legal Affairs Committee of the European Parliament) and included three thematic discussion forums on the key issues of the project, namely: “parties, collective damages and financing”, “civil procedure, problems of modern technologies and artificial intelligence” and “structure of civil proceedings” towards an agreed model law, as well as an introductory discussion chaired by professor Anna Veneziano, which provided an overview of various aspects of the project presented by the project working groups. The annual plenary meeting of the steering Committee, working groups and Co-Rapporteurs was held in Rome on 25-26 February 2019[11].
The European Rules of Civil Procedure were presented on 25.09.2020 at the international webinar, which was held as the final event of the 99th session of the UNIDROIT Governing Council [17]. At the time of developing this act, the idea was put forward as the main goal of its creation that it should serve as a useful tool to prevent the fragmented and unsystematic growth of European civil procedure law[12]. This project is the first attempt to develop a regional project that would adopt the principles of the ELI/ UNIDROIT transnational civil procedure to the specifics of regional legal cultures. Besides, the very joint work of leading foreign experts in the field of civil procedure law is an important step towards approximation [6, p. 64].
After considering the latest trends in the convergence of states within the framework of the European Union integration association, the following questions seem logical. Can we say that in the future there will be no German code of civil procedure, but a single civil procedure code of the European Union? How far are countries ready to go?
Thus, supranational regulation in the EU is characterized by high speed and effectiveness, and it is also distinguished by independence from the interests, political moods, or fatigue of individual member states. At the supranational level one should proceed with caution, since the declared equality of member states does not guarantee equal opportunities (economic, political, etc.). Some authors conclude that there is currently a crisis of pan-European identity. This crisis is associated with an imbalance in the economic development of the member States of the European Union and a general slowdown in economic growth [8, p.116]. Is it fair to such a conclusion? We should not forget that the common history and the level of trust between the member states of an integration association are the determining factors for the effectiveness of the selected convergence tools. Only convergence in the procedural sphere to resolve cross-border disputes is the key to successful interaction of free market participants.
References
1. K. Branovitsky, A. Bessonova, Development of civil procedure in the European Union and within the post-soviet space, (2018) Herald of The Euro-Asian Law Congress 1, at 44–54.
2. K. L. Branovitskiy, Convergence (harmonization) of civil procedural law within the EU and the former Soviet Union (comparative legal aspect), Statut, 2019, at 399.
3. K. L. Branovitskii, Some aspects of model regulation as instrument of approximation of civil procedure law in the post-soviet area, (2019) Herald of the Euro-Asian Law Congress 1(3), at 37–48.
4. D. Cöster-Waltjen, Internationales Beweisrecht: das auf den Beweis anwendbare Recht in Rechtsstreitigkeiten mit Auslandsbezug, München, 1983, at 504.
5. G. A. Drobot, Globalization: concept, stages, contradictions, assessments, (2008) Social and humanitarian knowledge 2, at 105–127.
6. Geoffrey C. Hazard Jr., Civil Procedure Rules for European Courts, (2016) Judicature 100, at 57–64, https://repository.uchastings.edu/faculty_scholarship/1323/ (accessed December 10, 2020).
7. I. V. Getman-Pavlova, The Law of the country of the court in civil proceedings. Procedural conflict of laws norms, Law and Economics: interdisciplinary approaches in science and education XII international scientific and practical conference (Kutafin readings): conference proceedings, 2017, at 344–350.
8. F. Giniyatov, Theories of European integration and the current crisis of the European Union, (2015) Herald of economics, law and sociology 2, at 116–119, https://cyberleninka.ru/article/n/teorii-evropeyskoy-integratsii-i-tekuschiy-krizis-evropeyskogo-soyuza (accessed November 11, 2020).
9. P. Häberle, Die deutsche Universität darf nicht sterben, Juristen Zeitung, 2007, at 55–76.
10. N. Y. Kaveshnikov, The Lisbon Treaty and its implications for the development of the EU, (2010) Сurrent problems in Europe 2, at 54–76, https://cyberleninka.ru/article/n/lissabonskiy-dogovor-i-ego-posledstviya-dlya-razvitiya-es (accessed November 11, 2020).
11. H. Niederländer, Materielles und Verfahrensrecht im Internationalen Privatrecht, (1955) Rabels Zeitschrift für ausländisches und internationales Privatrecht 20, at 1–51.
12. H. Shak, International civil procedure law, BEK, 2001, at 560.
13. R. Stürner, The Principles of Transnational Civil Procedure. An Introduction to Their Basic Conceptions, (2005) Rabels Zeitschrift für ausländisches und internationales Pivatrecht 69, https://www.unidroit.org/english/documents/1999/study76/s-76-01-e.pdf (accessed December 09, 2020).
14. I. Szászy, The Basic Connecting Factor in International Cases in the Domain of Civil Procedure, (1966) The International and Comparative Law Quarterly (Vol. 15) 2, at 436–456.
15. A. G. Volodin, G. K. Shirokov, Globalization: origins, trends, prospects, (1999) Polis. Political research 5, at 83–93.
16. European Rules of Civil Procedure 2020, https://www.unidroit.org/civil-procedure#EuropeanRulesofCivilProcedure (accessed December 10, 2020).
17. European Commission. 20 years of migration policy, https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/docs/timeline_en/timeline_en.pdf (accessed December 10, 2020).
[1] EuGH. Rs. 145/86. Hoffmann v Krieg. Urteil des Gerichtshofes vom 4. Februar 1988. URL: https://eur-lex.europa.eu/legal-content/DE/ALL/?uri=CELEX%3A61986CJ0145 (accessed 10 December 2020).
[2] Convention on civil procedure (1 March 1954). URL: https://www.hcch.net/en/instruments/conventions/full-text/?cid=33 (accessed 09 December 2020).
[3] Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958). URL: https://www.uncitral.org/pdf/english/texts/arbitration/NY-conv/New-York-Convention-E.pdf
[4] ELI/UNIDROIT Model Rules of Civil Procedure 2020. URL: https://www.unidroit.org/89-news-and-events/2940-eli-unidroit-model-rules-of-civil-procedure-presented-at-closing-event-of-governing-council (accessed 10 December 2020).
[5] Treaty establishing the European Economic Community (Rome, 25 March 1957). URL: https://www.cvce.eu/en/obj/treaty_establishing_the_european_economic_community_rome_25_march_1957-en-cca6ba28-0bf3-4ce6-8a76-6b0b3252696e.html (accessed 09 December 2020).
[6] ELI/UNIDROIT Model Rules of Civil Procedure 2020. URL: https://www.unidroit.org/89-news-and-events/2940-eli-unidroit-model-rules-of-civil-procedure-presented-at-closing-event-of-governing-council (accessed 10 December 2020).
[7] ELI/UNIDROIT Principles of Transnational Civil Procedure 2004. URL: https://www.unidroit.org/instruments/transnational-civil-procedure (accessed 09 December 2020).
[8] ELI/UNIDROIT Model Rules of Civil Procedure 2020. URL: https://www.unidroit.org/89-news-and-events/2940-eli-unidroit-model-rules-of-civil-procedure-presented-at-closing-event-of-governing-council (accessed 10 December 2020).
[9] Ibid.
[10] ELI/UNIDROIT Model Rules of Civil Procedure 2020. URL: https://www.unidroit.org/89-news-and-events/2940-eli-unidroit-model-rules-of-civil-procedure-presented-at-closing-event-of-governing-council (accessed 10 December 2020).
[11] Ibid.
[12] Ibid.