Term Paper on "Harmonization of International Civil Procedure"

Term Paper 18 pages (5404 words) Sources: 15

[EXCERPT] . . . .

3] [12: Garnett (2009) p.4] [13: Garnett (2009) p.5]

V. Civil Procedure

The principles of Transnational Civil Procedures are principles stated to be "equally applicable to international arbitration, except to the extent of being incompatible with arbitration proceedings. The court and judges are reported as being required to hold judicial independence to hand down a decision on the dispute in accordance to the facts and the law and to be free from improper internal and external influences.[footnoteRef:14] Judges should have "reasonable tenure in office. Nonprofessional members of the court should be designated by a procedure assuring their independence from the parties, the dispute, and other persons with an interest in the resolution. The court should be impartial and the individual holding decisional authority should not participate if there is "reasonable ground to doubt such person's impartiality. There should be a fair and effective procedure for addressing contentions of judicial bias." [footnoteRef:15]Uniform Law Review, 2004, p.760) It is related that the court and the judge are effectively barred from receiving communications concerning the case form a party in the absence of other parties except for communications relating to proceedings without notice and for procedural administration. When communication between the court and a party occurs in the absence of another party, that party should be promptly advised of the content of the communication." (Uniform Law Review, 2004, p.760) It is reported that jurisdiction over a party may be exercised as follows: [14: Uniform Law Review (2004) p.760] [15: Uniform Law Review (2004) p.761]

(1) By consent of the parties to have the case heard before the tribunal;

(2) when a significant connection exists between the state and the party of the transactions or occurrence that is being disputed. (Uniform Law Review, 2004, p.760)

VI. Jurisdiction

Jurisdiction may be exercised as well when there is no other forum available due to the presence of nationality of the defendant in the forum state or presence in the forum states of the defendant property.[footnoteRef:16] It is additionally stated that the court may "grant provisional measures with respect to a person or to property in the territory of the forum state, even if the court does not have jurisdiction over the controversy. Exercise of jurisdiction is to be declined when there is a previous agreement of the parties that some other tribunal has jurisdiction that is exclusive. In addition jurisdiction may be declined or the proceeding suspended when the "court is manifestly inappropriate relative to another more appropriate court that could exercise jurisdiction." [footnoteRef:17] If the dispute is previously pending in another court, the court should decline jurisdiction. [footnoteRef:18] Article 8 of the Hague Convention states in regards to 'recognition and enforcement' that a judgment handed down by a court of a Contracting State that is chosen as the forum of court agreement must be 'recognized and enforced' by other Contracting States and is only such that can be refused on grounds that the Hague Convention specifics. Furthermore, stated is that the case is not subject to review by the original court and that court is bound by the findings of fact of jurisdiction of the original court unless it was a default judgment. It is only possible to postpone or refuse the judgment where the case is under review in the state of origin or if the statute of limitations has not expired. It does state that a refusal does not bar an application for recognition of enforcement of the judgment following a decision on the case. These principles are applicable to a judgment handed down by a court of a Contracting State where the case has been transferred from the court chosen however, such recognition or enforcement may be refused where the party objected to the transfer in a timely manner in the State of origin.[footnoteRef:19] [16: Uniform Law Review (2004) p.761] [17: Uniform Law Review (2004) p.761] [18: Uniform Law Review (2004) p.761] [19: Uniform Law Review (2004) paraphrased]

VII. Cultural Differences and International Arbitration

Cultural difference in international arbitration is reported to be most visible in the areas stated as follows:

(1) Gathering of Evidence - In the beginning international arbitration did not accept discovery in the form used in the United States and the evidence gathering process was limited in adherence to the civil-law process. IN time this reluctance on the part of international arbitration in regards to gathering of facts has diminished and document discovery in a limited basis is the status quo.

(2) Witness Examination -- this too has been historically an area of conflict between the civil law and criminal law general processes in regards to cross-examination. Civil lawyers are not comfortable if the approaches used are English or American in the procedure of arbitration and because of this the debate over this issue has been of a significant nature. Efforts at harmonization have resulted in a compromise that is equitable and in which limited cross-examination takes place with continental lawyers learning how to somewhat effectively use the cross-examination process.

(3) The Inquisitorial Tribunal Compared to the Adversarial System -- the leading role is taken by the traditional and continental European tribunals in acquiring the facts and the law with the continental tribunal holding the responsibility for fact investigation and examination of witnesses. Still contentious in common law countries are litigation and arbitration with the truth gained by both sides presenting evidence and that evidence undergoing testing during cross-examination of witnesses. The role performed by the common-law tribunal or court is one that is characterized by the court refereeing, ruling on motions, evidence admittance, objections handling and instructing the jury while the court generally has a reliance on the lawyers for citing applicable law and fact presentation. Harmonization is gained through the tribunal being permitted to cross-exam and redirect examination before tribunal members who question the witness. In addition, tribunal members are allowed to conduct investigation on matters that neither the defendant nor the plaintiff's attorney have focused on as central to the case. The parties are able to present their case with no pressure from the panel. Even when the questions posed by the tribunal result in a need for rehabilitation of the witness re-cross examination is allowed for balancing the process for the attorney of common-law.

(4) Submissions in Written Form -- A great deal of progress has been realized in comprehensive submissions in writing in international arbitration. Common-law attorneys are no doubt much more at ease with oral arguments that are of an extensive nature but they are reported as having adapted nicely to written submitted court documentation of fact including such as statements of witnesses, reports written by experts, and written briefs that are issue-directed. Still an area of conflict is the refusal of a party to produce supporting documents that are pertinent to the case and the arbitrators are required to behoove all parties to submit documents that are critical to an effective arbitration process. When the party does not produce the needed documents this is noted by the tribunal as an "adverse inference" which obviously affects the arbitration process outcome. [footnoteRef:20] [20: Smith, Grambrel & Russell LLP (2012) p.1]

(5) Expert Testimonies -- The ongoing war between experts is not witnessed in civil law court generally and the continental European lawyers are more seasoned in the area of experts appointed by the tribunal. . The English system in this situation is more similar to civil law than the U.S. approach in which experts are generally chosen by the parties and the court has to discern between expert testimonies in the case. International arbitration procedures more resemble the European approach than that utilized in U.S. courts.

(6) Cost Assessment -- Various approaches are existing in the area of costs . Differing approaches unhappily coexist in the area of costs as well. English law requires the losing party pay the costs in combination with any judgment ordered on the merits. When there is a dispute relating to costs a detailed assessment is conducted by the court. Continental Europe adheres to all costs being paid by the losing party with the trial judge handing down an estimation of the amount of the appropriate costs. In the United States attorney's fees are requested very often and very seldom granted.

VIII. International Arbitration Harmonization

The international arbitration harmonized practice in civil law jurisdictions permits recovery of costs under the laws and rules applicable with the losing party bearing the responsibility of the costs on behalf of the prevailing party. These costs are assessed and included in the final award.[footnoteRef:21] While there is a progression towards the harmonization of the varying approaches it is reported that practitioners "often remain strongly influenced by and devoted to the procedures of their own legal systems. There remains, therefore, a serious need for mutual understanding and common ground."[footnoteRef:22]… READ MORE

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