Xandra E. Kramer

Cross-Border Enforcement and the Brussels I-bis Regulation: Towards a New Balance between Mutual Trust and National Control over Fundamental Rights

The most important political priority of the European Commission in the recast of the Brussels I Regulation has been the abolition of exequatur. The policy to gradually abolish intermediate measures for the enforcement of judgments within the EU flows from the desire to enhance the free movement of judgments and the establishment of a genuine European area of justice. Whilst fundamental debate remained absent from the abolition of exequatur in several specific instruments, the abolition of exequatur including the grounds of refusal met with resistance during the negotiations on the recast of Brussels I. As a result of these negotiations, the new Brussels I Regulation — Brussels I-bis — will abolish the requirement to obtain a declaration of enforceability prior to enforcement, but will preserve the grounds of refusal at the enforcement stage. This article evaluates the discussions regarding the abolition of exequatur in the broad context of the EU regulatory and legislative framework, and analyses and assesses the new rules on cross-border enforcement in the Brussels I-bis Regulation. It seeks an answer to the questions (a) whether the new Regulation strikes the right balance between the premise of mutual trust and the need for national control over fundamental rights, (b) to what extent the new regime increases the rights of the judgment debtor while protecting those of the judgment creditor, and (c) whether the outcome of the Brussels I recast will or should have further repercussions for other instruments on cross-border enforcement.

Civil litigation in a globalising world

Civil litigation in a globalising world - an introduction.- Fundamental principles of civil procedure: order out of chaos.- Harmonisation of civil procedure: a historical and comparative perspective.- A Law and Economics view on harmonisation of procedural law.- Harmonisation of civil procedure - policy perspectives.- Harmonisation of civil procedure and the interaction with private international law.- Harmonisation of civil procedure and the interaction with substantive private law.- Procedural harmonisation in a European context.- Harmonised civil procedure in a world of structural divergences? Lessons learned from the CEPEJ evaluations.- United States - Harmonisation and Voluntarism: The role of elites in creating an influential national model, the Federal Rules of Civil.- Switzerland - between cosmopolitanism and parochialism in civil litigation.- Globalisation and Scottish Law.- A Dutch perspective on civil litigation and its harmonisation.- The German approach to the globalisation and harmonisation of civil procedure. Balancing national particularities and international open-mindedness.- Convergence of civil procedure systems in Europe. Comments from a Belgian perspective.- The French approach to the globalisation and harmonisation of civil procedure.- Romanian civil procedure. The reform cycles.- Closing comments: harmonisation or globalisation of civil procedure?

Austerity in Civil Procedure and the Role of Simplified Procedures

The present issue (8:4) of Erasmus Law Review results from one of the sessions of the XV World Congress of Procedural Law of the International Association of Procedural Law in 2015, dedicated to ‘Effective Judicial Relief and Remedies in an Age of Austerity’. It focuses on the role of simplified civil procedures against the background of austerity. The articles included in this issue are fully redrafted versions of a selection of the national reports prepared for the general report for this conference, authored by the present editors.This issue includes nine articles that each deal with simplified procedures and austerity issues in a particular jurisdiction. Three articles discuss European jurisdictions: Belgium (Stefaan Voet), England and Wales (John Sorabji), and Spain (Laura Carballo Pineiro and Jordi Nieva Fenoll). Two articles concern distinct Asian countries: Israel (Ehud Brosh) and Japan (Etsuko Sugiyama). One article addresses an African country: Ghana (Ernest Owusu-Dapaa and Ebenezer Adjei Bediako). Three articles focus on American jurisdictions; North America: the United States (Manuel Gomez and Juan Carlos Gomez) and Canada (Jon Silver and Trevor Farrow), and South America: Brazil (Antonio Gidi and Hermes Zaneti Jr.).This article will frame and provide an overview of simplified procedures in the nine jurisdictions, discuss the effects of austerity on civil procedure and the role of simplified procedures.

Introduction: Law and Language; Implications for Harmonisation and Cross-Border Litigation

This volume explores the framework of language and the law against the background of the harmonisation of private law in the EU, the obstacles in cross-border litigation and communication between courts and ways to tackle these, the modest introduction of English as an optional court language and the protection of language rights in multilingual states.

Civil litigation in a globalising world: an introduction

Globalisation of legal matters and the inherent necessity of having to litigate in foreign courts or to enforce judgments in other countries considerably complicate civil proceedings due to great differences in civil procedure. This may jeopardise access to justice. As a result, the debate on the need for the harmonisation of civil procedure becomes ever more prominent. In recent years, this debate has gained in importance because of new legislative and practical developments both at the European and the global level. These developments require further study, amongst other things the bringing about of the ALI/UNIDROIT Principles of Transnational Civil Procedure and some recent European Regulations introducing harmonised procedures, as well as problems encountered in the modernisation of national civil procedure and in attempts for further harmonisation. This book discusses the globalisation and harmonisation of civil procedure from various angles, including fundamental (international) principles of civil justice, legal history, Law and Economics and (European) policy. Attention is also paid to the interaction with private international law and private law (Part I: Different perspectives on globalisation and harmonisation). European and global projects that aim at the harmonisation of civil procedure or provide guidelines for the fair and efficient adjudication of justice are discussed in a subsequent part of the book (Part II: Harmonisation in a European and global context). The volume further includes contributions that focus on globalisation and harmonisation of civil procedure from the viewpoint of various national jurisdictions (Part III: National approaches to globalisation and harmonisation).

Harmonisation of Civil Procedure and the Interaction with Private International Law

Traditionally, private international law and civil procedural law are separate disciplines. Even today, many proceduralists seem not to be fully acquainted with the area of private international law, while many private international law experts lack thorough knowledge of (harmonised) civil procedure. However, modern private international law is closely interwoven with civil procedure. Firstly, harmonisation of private international law may be viewed as a preliminary stage in the harmonisation of civil procedure. Secondly, and in connection with the previous point, harmonisation of private international law rules may result in a spontaneous approximation of civil procedure. Thirdly, the harmonisation of private international law rules and civil procedure are dependent upon each other and go hand in hand. Particularly in the EU, there seems to be a gradual shift from harmonising private international law to harmonising civil procedure, by means of establishing minimum standards of civil procedure and introducing uniform European procedures. The lessons learnt from the more advanced harmonisation of private international law could benefit the process of approximation of civil procedure. As long as true common standards of civil procedure are not established, private international law rules will remain to be the primary object of harmonisation.

The Role of Private International Law in Contemporary Society: Global Governance as a Challenge

The private ordering and public regulation of private international law situations has never been an easy task, and it is one to which legislatures generally have not paid a lot of attention. However, our ‘open societies’ do no longer allow for this lack of interest. This is evident from ongoing debates on a range of private international law matters that have attracted attention beyond the originally somewhat secluded private international law scholarship and which regularly receive media attention. The usual conflicts of interests underlying these types of legal relationships and disputes arising from them gain complexity as a result of the transnational dimension and raise pressing questions as to which (domestic) authority ought to address these in a fragmented world with different applicable laws. The articles included in this issue, dedicated to the role of private international law in contemporary society, dig up the many open debates concerning the challenges of private international law as a governance tool.

The Dutch Perspective on Cross-Border Small Claims Litigation: Guarded Optimism and Pragmatism. A Normative and Empirical Approach

This paper evaluates the implementation and application of the European Small Claims Procedure in the Netherlands, from both a normative and an empirical perspective. The central question is to what extent does the Regulation meet the objective of providing an EU-wide instrument that enhances access to justice and procedural justice in cross-border small claims litigation. The empirical research shows that the procedure is not used to its full potential, though there has been a slight increase in its application due to litigation in aviation cases. Dutch courts generally take a pragmatic approach, which contributes to access to justice and procedural justice. However, relatively high court fees, defects in the postal service, and the language requirements continue to be obstacles. The paper concludes with recommendations for the European legislator. Summary: As an adversarial European procedure with low thresholds, the European Small Claims Procedure (ESCP) has the potential to significantly improve access to justice in small claims litigation while preserving procedural rights. However, four years after its enactment in 2009, it is clear that in most Member States little use is made of this procedure. This paper evaluates its implementation and application in the Netherlands, both from a normative and an empirical perspective. The central question is to what extent does the Regulation meet the objective of providing an EU-wide instrument that enhances access to justice and procedural justice in cross-border small claims litigation. The Netherlands does not have a genuine national small claims procedure, but has a simplified procedure for cases that fall within the competence of the sub-district court (cantonal division of the District Court). In 2011, the threshold for these cases was raised substantially from €5,000 to €25,000. In the Netherlands, the idea of introducing an ESCP was generally welcomed, though doubt was raised as to its actual impact, among others in view of the low monetary threshold. The ESCP is, where necessary, implemented through a separate Implementation Act. The empirical research, consisting of data collection and interviews at the ECC-NL and at eight of the nineteen competent courts in the Netherlands (the four big courts and four courts in border regions), shows that the ESCP is seldom used. The number of cases in these courts has varied from only four to approximately thirty cases between 2009 and mid-2012. With few exceptions, they concern consumer cases. In the majority of these, the consumer is the claimant, particularly in instances involving long-distance sales contracts and aviation cases. The average time to conclude the procedure is four to five months, which is largely in compliance with the time limits set by the Regulation. In line with the Regulation, only in a few cases were oral hearings requested by the parties or ordered by the court. The interviews made clear that the parties and courts generally do not encounter serious problems in the application of the rules of the Regulation, or in the use of the standard forms. However, the question on international jurisdiction in the claim form is troublesome, the language requirements sometimes pose difficulties, and the postal service is perceived by some courts to be problematic because the courts often do not receive an acknowledgment of receipt. Another problem some courts have encountered is that the ESCP does not provide for an extra round of arguments, which is needed when a serious defence is submitted. Certain courts in these cases allow for a further written joinder and rejoinder outside the scope of the forms. Since oral hearings are generally regarded as not in compliance with the Regulation, and video conferencing is not yet used in the Netherlands, there is little chance of reaching a settlement.It is submitted that the overall design of the procedure and the standard forms are an asset to procedural justice. Generally, the way the Dutch courts handle the ESCP adds to the efficiency of the procedure. The courts take a pragmatic approach, for example, in accepting forms in languages that they understand (mostly English, German, and French). A threat to procedural justice lies in the fact that in practice the forms dispatched to the defendant are often not translated into the language of the defendant or into one that he understands. This practice contradicts the Service Regulation and jeopardises the right to be heard. Another issue concerns problems encountered in the service of documents by post; these difficulties are a general impediment to both the effectiveness and fairness of the procedure. The relatively high court fees in the Netherlands (for natural persons this is €75 for claims up to €500, and €213 for claims above this amount) are an obstacle to small claims litigation. Little is known about the actual enforcement of judgments in the ESCP, but indications are that enforcement abroad is still problematic, which makes starting a small claims procedure a risk. In order to increase and improve the use of the ESCP, the EU legislator should continue to raise awareness, raise the monetary threshold, improve the consumer jurisdiction provisions, clarify language and service requirements, regulate costs and transparency, and consider measures to improve the actual enforcement at the national level.