Civil Procedure

Japanese Law ◽  
2021 ◽  
pp. 433-449
Author(s):  
Hiroshi Oda
Keyword(s):  
Civil Procedure ◽  
Cross Border

The new Code of Civil Procedure was adopted in 1996. The latest amendment to this Code involves provisions on the jurisdiction of Japanese courts in cross-border disputes. The matter had been left to the courts, but now the system has become much clearer.

scholarly journals Proving Chinese Law in the Courts of the United States

Amicus Curiae ◽  
2021 ◽  
Vol 2 (2) ◽  
pp. 188-215
Author(s):  
Richard K Wagner
Keyword(s):  
United States ◽  
English Language ◽  
The United States ◽  
Civil Procedure ◽  
Business Culture ◽  
Republic Of China ◽  
Chinese Law ◽  
Cross Border ◽  
Chinese Business ◽  
The Us

The volume of disputes heard by United States (US) courts containing a China element continues to be robust even against a backdrop of political rhetoric concerning an economic ‘de-coupling’ of the US and China. These cross-border disputes often involve Chinese parties and special issues, some of which concern Chinese business culture, but many of which involve interpreting questions of Chinese law. How is proving Chinese law accomplished in these cases and how have US courts performed in interpreting Chinese law? This article first discusses the approach to proving Chinese law in US courts. While expert testimony is often submitted and can be valuable to a US court, the applicable US rule offers no standards by which these opinions are to be judged. And, in the China context, without specific guidance, it can be challenging for a judge, unaccustomed with China or the Chinese legal system to determine which version of the law to believe. Moreover, under the applicable rule, the US court can simply ignore competing Chinese law opinions and conduct its own Chinese law legal research, presumably using English language sources. This can lead to interesting interpretations of Chinese law to say the least. The article anchors its discussion in an examination of those recent cases which have interpreted Article 277 of the Civil Procedure Law of the People’s Republic of China. This is the legal provision of Chinese law that can be implicated in certain situations involving cross-border discovery, and there are now numerous Article 277 cases among the reported US decisions. The article analyses Article 277 by placing it within the larger context of Chinese civil procedure and argues that the language used in the provision has a special meaning within Chinese evidence law that has been obscured in those US case decisions interpreting it, leading to erroneous results. The article concludes by offering judges and practitioners some suggestions for interpreting Chinese law in future US cases. Keywords: Chinese law; US courts; Article 277; deposition; cross-border discovery; Hague Evidence Convention; Chinese civil procedure.

Conflicts of jurisdiction in criminal law Lessons from European Civil Procedure

2018 ◽  
Author(s):  
Pietro Ortolani
Keyword(s):  
European Union ◽  
International Law ◽  
Criminal Law ◽  
Civil Procedure ◽  
Private International Law ◽  
The European Union ◽  
Cross Border ◽  
Procedural Law ◽  
Hard Law ◽  
Conflicts Of Jurisdiction

One of the main purposes of private international law is the resolution of conflicts of jurisdiction in civil matters. In the European Union (EU), this goal is pursued by an articulate body of regulations, forming part of what is usually labelled as ‘European procedural law’ or ‘European civil procedure’. In criminal law, by contrast, no such system exists: although Eurojust aims at resolving conflicts of jurisdiction by facilitating the identification of the jurisdiction that should prosecute cross-​border crimes, no hard-​law instrument regulates this matter in a binding fashion.

Provisional and Protective Measures

2021 ◽  
pp. 219-239
Author(s):  
European Law
Keyword(s):  
Civil Procedure ◽  
Protective Measures ◽  
Cross Border ◽  
Starting Point ◽  
General Rules ◽  
Special Part ◽  
Regulatory Measures ◽  
General Part ◽  
Asset Preservation

This chapter focuses on provisional and protective measures, which are important both in domestic and cross-border litigation to secure effective enforcement or to otherwise preserve rights and prevent (further) harm prior to the commencement of proceedings or pending final judgment. Part X of the European Rules of Civil Procedure consists of three Parts: a General Part (Section 1), which includes rules that apply to all types of measures, unless otherwise provided; a Special Part (Section 2), which includes rules on Asset Preservation, Regulatory Measures, Evidence Preservation, and Interim Payments; and a Cross-Border Part (Section 3), which primarily refers to existing legislation. Section 3 further provides a minimal number of general rules as it is not intended to provide a set of rules on the complex and multifaceted issue of cross-border provisional and protective measures. Principle 8 of the ALI/UNIDROIT Principles was the starting point for the development of Rules concerning provisional and protective measures. This Principle includes three basic rules: on function and proportionality (8.1); ex parte measures; (8.2); and compensation and security (8.3).

Parties

2021 ◽  
pp. 77-88
Author(s):  
European Law
Keyword(s):  
Civil Procedure ◽  
Foreign Nationals ◽  
Applicable Law ◽  
Cross Border ◽  
Legitimate Interest ◽  
Administration Of Justice ◽  
Substantive Law

This chapter examines the part of the European Rules of Civil Procedure which aims to ensure that the court is properly accessible to all persons who have a legitimate interest in bringing or defending proceedings, i.e., in vindicating or enforcing rights. Parties to litigation can be persons who are able to hold rights under substantive law. Lacking litigation capacity, parties must be represented according to applicable law. In appropriate cases, proceedings may be brought by several claimants or against several defendants as parties joined to the litigation. The court may order the consolidation of separate proceedings for the purpose of properly managing them. At any time after the commencement of proceedings, substitution or succession of a party by another person is possible if required by law or if it is necessary in the interest of good administration of justice. The chapter then considers cross-border issues, including the capacity of foreign nationals to be a party, as well as their litigation capacity.

Einstweiliger Rechtsschutz in grenzüberschreitenden Schiedsverfahren

2021 ◽  
Author(s):  
Julia Mink
Keyword(s):  
Civil Procedure ◽  
Conflict Of Laws ◽  
Applicable Law ◽  
Cross Border ◽  
Arbitral Proceedings ◽  
Contractual Obligations ◽  
Substantive Law ◽  
Interim Measures ◽  
Rome I ◽  
Einstweiliger Rechtsschutz

The thesis focuses on the difficulties of determining the applicable law in interim proceedings in cross-border arbitral proceedings. First, it examines whether arbitral tribunals have a lex arbitri. Subsequently, the various possibilities of interim measures are described and the question is discussed whether arbitral tribunals have to refer to the Rome I Regulation or Section 1051 of the German Code of Civil Procedure in order to determine the applicable conflict of laws for contractual obligations. Then, it is analysed how the applicable substantive law is to be determined or how to proceed in case of non-determinability of such. Finally, the consequences of the application of a substitute law for the main proceedings are discussed.

scholarly journals Interpretation of the jurisdictional prerequisites in EU civil and commercial matters in the process of practical application of the Brussels I Regulation in the light of the CJEU jurisprudence

2021 ◽  
pp. 133-158
Author(s):  
Sylwia Jastrzemska
Keyword(s):  
Civil Procedure ◽  
Eu Law ◽  
Practical Application ◽  
International Jurisdiction ◽  
Cross Border ◽  
National Jurisdiction ◽  
Domestic Jurisdiction ◽  
Legal Sense

The possession of national jurisdiction by the court is a condition sine qua non for the possibility to resolve the case. Its lack results in the invalidity of the proceedings in accordance with the disposition of Article 1099 § 2 of the Code of Civil Procedure. After the amendments in 1997 and the doctrine’s acceptance of the division of domestic jurisdiction into jurisdiction in the international legal sense and international jurisdiction, these institutions are no longer included in the concept of a court path. At present, admissibility of a court path and international jurisdiction are treated as two separate procedural institutions which, on their own, constitute prerequisites for proceedings. Do EU cases differ in this respect from cases without a cross-border element? Is the interpretation of EU law different from the traditional interpretation in domestic cases? Should a purpose-oriented interpretation prevail? The author attempts to answer these and other questions in this text.

General Provisions

2021 ◽  
pp. 27-76
Author(s):  
European Law
Keyword(s):  
Dispute Resolution ◽  
21St Century ◽  
General Principle ◽  
Civil Procedure ◽  
Fundamental Importance ◽  
Cross Border ◽  
Administration Of Justice ◽  
Principle Of Proportionality ◽  
Definition Of ◽  
The Right

This chapter discusses the general provisions concerning the operation of the European Rules of Civil Procedure. It defines the scope of these Rules, limiting their application to domestic and cross-border civil and commercial disputes. It does so by reference to the definition of such disputes that is commonly accepted throughout Europe. The chapter then looks at the overarching procedural duties that are imposed upon the court, parties, and their lawyers. The most significant of these duties are the duty of co-operation, which is understood in these Rules to be of fundamental importance to the effective and proper administration of justice, and the general principle of proportionality in dispute resolution, which has itself become an increasingly important procedural principle across Europe since the start of the 21st century. Finally, the chapter articulates and, in some cases, gives concrete effect to the fundamental procedural principles that are inherent in the right to fair trial.

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