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Commencement of Proceedings 诉讼程序的开始
ELI – Unidroit Model European Rules of Civil Procedure Pub Date : 2021-08-24 DOI: 10.1093/oso/9780198866589.003.0005
Eu Law
{"title":"Commencement of Proceedings","authors":"Eu Law","doi":"10.1093/oso/9780198866589.003.0005","DOIUrl":"https://doi.org/10.1093/oso/9780198866589.003.0005","url":null,"abstract":"This chapter focuses on the provisions on commencement of proceedings under the European Rules of Civil Procedure. The first section of this part of the Rules concerns the pre-commencement procedural duties. Rule 51 provides that ‘before proceedings are issued, parties shall co-operate with each other in order to avoid unnecessary disputes and costs, to facilitate the early consensual resolution of their dispute and, where such a resolution is not possible, the proportionate management of future proceedings according to Rules 2–11 and 47–50’. The second section concerns the commencement and pleadings. To commence proceedings, the claimant must submit a statement of claim to the court, as provided in Rule 53. Rule 52 sentence 1 implements the principle of party disposition from the outset of proceedings. A claimant may exercise their right of disposition at the earliest stage of proceedings by withdrawal of the claim, while a defendant may do so by admission of the claim upon notice being given. The chapter then looks at the requirements for the statement of defence and counterclaims, as well as the contents of the joint application and the termination of party-agreed-proceedings.","PeriodicalId":263063,"journal":{"name":"ELI – Unidroit Model European Rules of Civil Procedure","volume":"92 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128639286","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Service and Due Notice of Proceedings 送达和适当的诉讼通知
ELI – Unidroit Model European Rules of Civil Procedure Pub Date : 2021-08-24 DOI: 10.1093/oso/9780198866589.003.0007
Eu Law
{"title":"Service and Due Notice of Proceedings","authors":"Eu Law","doi":"10.1093/oso/9780198866589.003.0007","DOIUrl":"https://doi.org/10.1093/oso/9780198866589.003.0007","url":null,"abstract":"This chapter addresses the rules on the service of judicial documents for domestic and cross-border cases under the European Rules of Civil Procedure. Sections 1 and 2 of Part VI provide rules which are generally applicable, no matter whether the addressee is domiciled or residing in the forum State or abroad. Section 3 sets out special rules for cross-border cases and distinguishes between cases in which documents must be served on an addressee domiciled within the European Union and cases in which they reside outside the European Union. With respect to service of documents in a cross-border setting, it provides some rules that deviate from the ESR Regulation. Nevertheless, the ESR Regulation is intended to apply to the extent that this part does not provide rules of its own, particularly regarding its provisions on communication and organisational matters.","PeriodicalId":263063,"journal":{"name":"ELI – Unidroit Model European Rules of Civil Procedure","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114268246","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Case Management 病例管理
ELI – Unidroit Model European Rules of Civil Procedure Pub Date : 2021-08-24 DOI: 10.1093/oso/9780198866589.003.0004
Eu Law
{"title":"Case Management","authors":"Eu Law","doi":"10.1093/oso/9780198866589.003.0004","DOIUrl":"https://doi.org/10.1093/oso/9780198866589.003.0004","url":null,"abstract":"This chapter details the provisions on case management under the European Rules of Civil Procedure. Rule 47 provides that ‘parties must present their claims, defences, factual allegations and offers of evidence as early and completely as possible and as appropriate to the careful conduct of litigation in order to secure procedural expedition’. In general, responsibility for the efficient and speedy resolution of disputes is shared between the court and parties. Rule 48 concerns the court control of proceedings. Meanwhile, Rule 49 sets out the court's general duty of active case management, which is part of the principle of co-operation. All European jurisdictions' procedural codes employ court orders or court directions as a means of communication between the court and parties in order to facilitate effective case management as provided in Rules 48 and 49. The process of rendering court orders under Rule 50 is intended to ensure that management under these Rules is carried out effectively and with sufficient respect for the parties' right to be heard.","PeriodicalId":263063,"journal":{"name":"ELI – Unidroit Model European Rules of Civil Procedure","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115393779","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Parties 方
ELI – Unidroit Model European Rules of Civil Procedure Pub Date : 2021-08-24 DOI: 10.5040/9781784519537.chapter-003
Eu Law
{"title":"Parties","authors":"Eu Law","doi":"10.5040/9781784519537.chapter-003","DOIUrl":"https://doi.org/10.5040/9781784519537.chapter-003","url":null,"abstract":"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.","PeriodicalId":263063,"journal":{"name":"ELI – Unidroit Model European Rules of Civil Procedure","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129780953","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Preamble 序言
ELI – Unidroit Model European Rules of Civil Procedure Pub Date : 2021-08-24 DOI: 10.1093/oso/9780198866589.003.0001
Eu Law
{"title":"Preamble","authors":"Eu Law","doi":"10.1093/oso/9780198866589.003.0001","DOIUrl":"https://doi.org/10.1093/oso/9780198866589.003.0001","url":null,"abstract":"1. In 2004, the American Law Institute (ALI) and the International Institute for the Unification of Private Law (UNIDROIT) adopted the ALI/UNIDROIT Principles of Transnational Civil Procedure.1 They were intended to help reduce the impact of differences between legal systems in lawsuits involving transnational commercial transactions. Their purpose was to propose a model of universal procedure that followed the essential elements of due process of law. They were accompanied by a set of “Rules of Transnational Civil Procedure”, which were not formally adopted by either UNIDROIT or the ALI but constituted a model implementation of the Principles, providing greater detail and illustrating how the Principles could be implemented in procedural rules. The Rules were to be considered either for adoption “or for further adaptation in various legal systems”, and along with the Principles could be considered as “a model for reform in domestic legislation”....","PeriodicalId":263063,"journal":{"name":"ELI – Unidroit Model European Rules of Civil Procedure","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125328402","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Collective Proceedings 集体诉讼
ELI – Unidroit Model European Rules of Civil Procedure Pub Date : 2021-08-24 DOI: 10.1093/oso/9780198866589.003.0012
Eu Law
{"title":"Collective Proceedings","authors":"Eu Law","doi":"10.1093/oso/9780198866589.003.0012","DOIUrl":"https://doi.org/10.1093/oso/9780198866589.003.0012","url":null,"abstract":"This chapter assesses the mechanisms for collective redress under the European Rules of Civil Procedure. Part XI of the Rules adopts a broad, non-sectoral approach, which is consistent with approaches across many European jurisdictions and was the approach by the European Commission in 2013. It is, however, broadly consistent in approach with that taken by the European Union in 2013 and 2018. This Part is divided into four sections, each of which deals with different mass harm situations. The first concerns collective injunctive relief (Collective Interest Injunctions); the second concerns collective proceedings for the recovery of damages or for declaratory relief (Collective Proceedings); the third provides a mechanism to declare binding a collective settlement entered into by the parties to a pending collective proceeding; and finally, a mechanism to declare a collective settlement entered into outside of collective proceedings binding.","PeriodicalId":263063,"journal":{"name":"ELI – Unidroit Model European Rules of Civil Procedure","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129513344","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
General Provisions 一般规定
ELI – Unidroit Model European Rules of Civil Procedure Pub Date : 2021-08-24 DOI: 10.1093/oso/9780198866589.003.0002
Eu Law
{"title":"General Provisions","authors":"Eu Law","doi":"10.1093/oso/9780198866589.003.0002","DOIUrl":"https://doi.org/10.1093/oso/9780198866589.003.0002","url":null,"abstract":"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.","PeriodicalId":263063,"journal":{"name":"ELI – Unidroit Model European Rules of Civil Procedure","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131896413","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Proceedings Preparatory to a Final Hearing 最后聆讯的准备程序
ELI – Unidroit Model European Rules of Civil Procedure Pub Date : 2021-08-24 DOI: 10.1093/oso/9780198866589.003.0006
Eu Law
{"title":"Proceedings Preparatory to a Final Hearing","authors":"Eu Law","doi":"10.1093/oso/9780198866589.003.0006","DOIUrl":"https://doi.org/10.1093/oso/9780198866589.003.0006","url":null,"abstract":"This chapter assesses the provisions on the proceedings preparatory to a final hearing under the European Rules of Civil Procedure. Rule 61 provides that ‘to prepare for a final hearing, the court may hold an early case management hearing and if necessary further ones as the case progresses’. Rule 62(1) in connection with Rules 49(1) and (3) – (6) addresses the means of case management that are to be employed in or after the early management hearing. They are designed to ensure that the court takes such organisational measures as are necessary to facilitate the effective conduct of preparatory proceedings, including settlement endeavours, determination of the type and form of on-going proceedings, the procedural calendar or timetable, any limitation in terms of the number and/or length of submissions, the consolidation or separation of proceedings, or the order in which issues are to be tried. The chapter then considers the provisions on the closing of preparatory proceedings; the final hearing; early final judgments; judgments on preliminary procedural issues or on legal issues on the merits; and provisional measures and interim payment orders.","PeriodicalId":263063,"journal":{"name":"ELI – Unidroit Model European Rules of Civil Procedure","volume":"4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132667013","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Provisional and Protective Measures 临时及保护措施
ELI – Unidroit Model European Rules of Civil Procedure Pub Date : 2021-08-24 DOI: 10.1093/oso/9780198866589.003.0011
Eu Law
{"title":"Provisional and Protective Measures","authors":"Eu Law","doi":"10.1093/oso/9780198866589.003.0011","DOIUrl":"https://doi.org/10.1093/oso/9780198866589.003.0011","url":null,"abstract":"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).","PeriodicalId":263063,"journal":{"name":"ELI – Unidroit Model European Rules of Civil Procedure","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127129366","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
Access to Information and Evidence 获取信息和证据
ELI – Unidroit Model European Rules of Civil Procedure Pub Date : 2021-08-24 DOI: 10.1093/oso/9780198866589.003.0008
Eu Law
{"title":"Access to Information and Evidence","authors":"Eu Law","doi":"10.1093/oso/9780198866589.003.0008","DOIUrl":"https://doi.org/10.1093/oso/9780198866589.003.0008","url":null,"abstract":"This chapter explores the provision and testing of evidence, which is central to civil procedure. Effective access to information and evidence are basic tools that ensure access to justice is a real rather than a merely theoretical right. There is a great deal of variety across European jurisdictions in respect of the approach taken to evidence-taking, and particularly to access to relevant information. This is a consequence of a variety of factors: the distinction between the civil law/common law; legal history; and procedural culture, and particularly the distribution of roles between the court, judiciary, and parties. This divergence in approaches to evidence may be the source of difficulties in cross-border litigation. The chapter identifies the common core of the law of evidence and the best, or more convenient, rules, including those related to the management of evidence, in use in European jurisdictions. To do so, it looks at the ALI/UNIDROIT Principles, the IBA Rules of Evidence and of legal instruments addressing the issue of evidence and access to information within the European Union.","PeriodicalId":263063,"journal":{"name":"ELI – Unidroit Model European Rules of Civil Procedure","volume":"265 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-08-24","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115663386","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
引用次数: 0
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