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8255 results in Intersentia

Page 364 of 413

  • TAKING LENIENCY DOCUMENTS AS EVIDENCE IN DAMAGES ACTIONS IN CASES OF COMPETITION LAW INFRINGEMENT

  • from FUNDAMENTAL AND OTHER PRINCIPLES OF EVIDENCE IN CIVIL LITIGATION
    • By M. Repas, Associate Professor at the Department of Business Law, Faculty of Law, University of Maribor (Slovenia)
  • Edited by C. H. van Rhee, Alan Uzelac
  • Book:
    Evidence in Contemporary Civil Procedure
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    10 August 2015, pp 105-124

  • Summary

    Introduction

    Taking evidence in competition cases is particularly delicate since companies are careful to hide any evidence that may prove wrongdoing on their part. This is due to the severe penalties that are prescribed for infringement of competition rules. This problem is especially acute in cartel cases, and consequently competition authorities use different methods to detect and prove cartel activities. One of the most effective methods that is currently used to fight cartels is the leniency programme, whereby companies that provide information about the cartel in which they participate may receive full or partial immunity from fines. In addition to fines that can amount to up to 10 per cent of the total turnover of the company in the preceding business year, companies are liable for the civil consequences of the competition law infringement (e.g. damages) as well. Claims for compensation for damages caused are made before national courts in private law actions from which there is no immunity under the leniency programme. Private law actions in competition cases have been acknowledged as highly important in recent years, and the EU Commission stimulates such private enforcement, which is still low in the EU as compared with the USA. This ‘improvement’ of private enforcement, however, requires adequate access to information, essential for preparing lawsuits by the private damages claimants, that is in the possession of the defendants and competition authorities.

    Since competition authorities, including the EU Commission, are bound by the rule of confidentiality of sensitive documents, which is part of the leniency programme as well, the question is how to adequately protect the individual interests of victims, on the one hand, and not jeopardise the effectiveness of the leniency programme, on the other hand. The Court of Justice of the European Union (CJEU) and the General Court tackled this issue in several cases that will be analysed in this article. As a result of the decisions made in these cases, case law does not favour leniency applicants entirely, while Directive 2014/104/EU takes the opposite view. Finally, this article explores how this issue is handled in Slovenia, and its compatibility with EU law. So far, there is no recorded case that refers to the disclosure of leniency documents in the Republic of Slovenia.

  • EVIDENCE IN CIVIL PROCEDURE IN THE NETHERLANDS: TRADITION AND MODERNITY

  • from EVIDENCE IN ARBITRATION AND NATIONAL CIVIL LITIGATION
    • By C.H. van Rhee, Professor of European Legal History and Comparative Civil Procedure, Faculty of Law, Maastricht University (Netherlands)
  • Edited by C. H. van Rhee, Alan Uzelac
  • Book:
    Evidence in Contemporary Civil Procedure
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    10 August 2015, pp 257-290

  • Summary

    In order to fully understand the law of evidence in any procedural system, one needs to have knowledge of the wider procedural context in which it is used. Therefore, this contribution on evidence in Dutch civil procedure will start by providing some basic details of the Dutch procedural system.2 The discussion will be limited to civil matters, since evidence law in the Netherlands is not generic for all types of litigation. A specific law of evidence for civil matters exists and since 1988 it can be found (for the largest part) in the Code of Civil Procedure. It will appear that the Dutch law of evidence in civil matters is still (to a certain extent at least) based on traditions, often derived from its French 19th century model, but that especially since 1988 important innovations have been introduced which have resulted in rules that – when considered within the wider procedural framework – have prepared Dutch civil evidence law well for some of the challenges of the 21th century.

    In this contribution I will mainly concentrate on the procedure initiated by writ of summons (contentious litigation). The other type of civil action, i.e. the procedure started by way of a petition (originally only for non-contentious matters, especially family matters) will be addressed incidentally. In the future, the differences between the two types of procedure will remain even though it is the intention of the Dutch Legislature to introduce a single document for bringing a civil court action. The single introductory document is not aimed at removing procedural differences, but is mainly introduced for reasons of simplification and digitalisation of litigation.

    Like so many other jurisdictions in Europe, the Netherlands has embraced the concept of judicial case management in civil matters (especially since the reforms of the Code of Civil Procedure in 2002). This means that the traditional Dutch principle of the ‘passivity of the judge’ (in Dutch: lijdelijkheid) in civil matters has faded away to a considerable extent. The case management powers of the modern Dutch judge concern in the first place procedural issues, but they may to a certain extent also concern the merits of the case.

  • DISCLOSURE OF DOCUMENTS IN CIVIL PROCEDURE: THE PRIVILEGE AGAINST SELFINCRIMINATION OR A QUEST FOR PROCEDURAL FAIRNESS AND SUBSTANTIVE JUSTICE

  • from FUNDAMENTAL AND OTHER PRINCIPLES OF EVIDENCE IN CIVIL LITIGATION
    • By A. Galič, Professor of Civil Procedure, Faculty of Law, University of Ljubljana (Slovenia)
  • Edited by C. H. van Rhee, Alan Uzelac
  • Book:
    Evidence in Contemporary Civil Procedure
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    10 August 2015, pp 33-56

  • Summary

    ‘Nobody is obliged to testify against himself and to offer evidence, unfavourable to him.’

    Triva, Belajec and Dika, Građansko parnično procesno pravo, 1986, p. 425

    ‘In this country litigation … is conducted ‘cards face up on the table’. Some people … regard this as incomprehensible. ‘Why’, they ask, ‘should I be expected to provide my opponent with the means of defeating me?’ The answer, of course, is that litigation is not a war or even a game. It is designed to do real justice between opposing parties and, if the court does not have all the relevant information, it cannot achieve this object.’

    Sir John Donaldson MR in Davies v. Eli Lilly & Co. [1987] 1 WLR 428.

    Introduction

    In Slovenian (and in former Yugoslav) civil procedure, party access to relevant information and documents, which are in the possession of the opponent and which could adversely affect the opponent's case, is limited. Traditionally, based on a German and Austrian heritage of civil procedure, the principle that no one is obliged to help his adversary win the case (nemo tenetur edere contra se) applied. Experience and recent developments abroad – not only in common law jurisdictions, which have for a long time embraced broad duties to disclose, but also in civil law systems which were traditionally restrictive in requiring the parties to contribute to the establishment of the true facts – show that this approach needs to be re-examined.

    The alternative to the principle that the party to a civil case cannot be obliged to ‘put weapons in the hand of its opponent’ is the common law concept of disclosure of documents. Thereby especially the English Civil Procedure Rules of 1998 (which have done away with some extremes of discovery) seem to be an important source of inspiration for Legislatures in civil law jurisdictions nowadays. The main idea of ‘disclosure’ is that the parties should as early as possible give advance notice of all relevant documents – not just those supporting their case but including those which adversely affect their case or which support the other party's case.

  • LOST IN TRANSLATION? LANGUAGE DIFFERENCES AND THEIR IMPACT ON EVIDENCETAKING IN LITIGATION

  • from FUNDAMENTAL AND OTHER PRINCIPLES OF EVIDENCE IN CIVIL LITIGATION
    • By E. Silvestri, Associate Professor of Civil Procedure and Comparative Civil Procedure; Scientific Director of the postgraduate program on Mediation and ADR, Department of Law, University of Pavia (Italy)
  • Edited by C. H. van Rhee, Alan Uzelac
  • Book:
    Evidence in Contemporary Civil Procedure
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    10 August 2015, pp 125-136

  • Summary

    Introduction

    The idea of addressing the topic of the impact of language differences on litigation was prompted by the reading of the essays collected in a special issue of Erasmus Law Review under the heading ‘Law and Language: Implication for Harmonization and Cross-Border Litigation’. These essays helped me frame some thoughts on the problems that may arise when the dramatis personae of a judicial proceeding do not share the same native language.

    Language differences can affect litigation in many ways, and most of all in transnational cases or, to use the preferred expression in the EU context, in crossborder cases. Cross-border litigation implies that at least one party to a case will have to litigate in a foreign language, since the rule is that the court language is the official language of the forum state. Whenever international rules on jurisdiction allow the plaintiff to do some forum shopping, they also allow him to engage in language shopping. Therefore, often the defendant is the one who is faced with language obstacles. It is clear that these obstacles must not harm his right to a fair trial, nor must they contribute to delaying the proceedings.

    Language differences may arise at the very beginning of a case (just think of the problems brought about by service of process), but in this contribution I would like to make some remarks on the impact of language differences at the evidencetaking level, that is, with reference to the documents that are produced as evidence, and to oral evidence, namely, witness testimony or the interrogation of the party himself, as regards the legal systems – such as the Italian system – in which the parties cannot be heard as witnesses, but are subject to a particular form of examination that in Italy is qualified as ‘formal interrogatory’.

    The Protection of Language Rights

    The problem of language differences and their impact on litigation and on the rights of the parties can be dealt with from different angles. One is to see the problem within the framework of so-called language rights. Scholars have emphasized that ‘the concept of language rights is in an embryonic stage only’, and, as a matter of fact, it is difficult to offer a clear definition of what is meant exactly by ‘language rights’, if one steps back from the perspective in which they are often analysed, namely, the protection of minority languages.

  • CURBING ADVERSARIAL EXCESSES: AN EVALUATION OF THE EXPERT EVIDENCE REGIME IN HONG KONG AFTER THE CIVIL JUSTICE REFORM (WITH A FOCUSED STUDY ON PERSONAL INJURY LITIGATION)

  • from TYPES OF EVIDENCE IN CIVIL LITIGATION
    • By P.C. Chan, Teaching Fellow, School of Law, City University of Hong Kong (Hong Kong, China); Solicitor (non-practising) England & Wales; Solicitor (non-practising) (Hong Kong), U.-U. Rehman, Visiting Fellow, School of Law, City University of Hong Kong (Hong Kong, China); Barrister-at-Law (Hong Kong)
  • Edited by C. H. van Rhee, Alan Uzelac
  • Book:
    Evidence in Contemporary Civil Procedure
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    10 August 2015, pp 193-222

  • Summary

    Introduction

    While the court is the ultimate finder of facts, a case may involve such highly technical issues that the court is unable to discharge its fact-finding function unless qualified persons assist in the process. As the learned Hong Kong district judge in Chan Shu Wing v. Link Management Ltd said: ‘Expert evidence is relevant if it will assist the court to resolve one or more relevant issues in dispute in the cause or matter and the issue is not one which the court can come to an informed decision without such expert evidence.’

    The Hong Kong expert evidence regime in the past was highly adversarial. It was not uncommon that experts were instructed as ‘hired guns’. Instead of assisting the court to find the truth, adversarial experts acted more like advocates than witnesses. Part A of this contribution seeks to expound the procedural framework for the use of expert evidence in civil lawsuits, highlighting those changes made pursuant to the Civil Justice Reform to tackle the adversarial excesses in the system. Part B of this contribution explores expert evidence within the context of personal injury litigation in Hong Kong (which is governed under a set of specialist rules). Given the nature of personal injury disputes, the use of expert evidence is essential in the fact-finding process. The way expert evidence is deployed and managed under the specialist rules in personal injury litigation provides invaluable insight for further reform in the general procedural regime.

    Part A: An overview of the expert evidence regime after the Civil Justice Reform in Hong Kong

    The Role of the Expert in Civil Litigation

    The role of the expert in civil litigation is clear under the law. An expert witness, in assisting the court, should give independent and unbiased opinions on matters within his own expertise. It is not the function of the expert witness to usurp the role of the court in the fact-finding process or to assume the role of an advocate. By definition, expert witnesses are authorities in specialist areas where no layman (including the judge) is capable of navigating by himself.

  • EVIDENCE AND THE PRINCIPLE OF PROPORTIONALITY. HOW TO GET RID OF EXPENSIVE AND TIME-CONSUMING EVIDENCE?

  • from FUNDAMENTAL AND OTHER PRINCIPLES OF EVIDENCE IN CIVIL LITIGATION
    • By A. Uzelac, Professor of Civil Procedure, Faculty of Law, University of Zagreb (Croatia)
  • Edited by C. H. van Rhee, Alan Uzelac
  • Book:
    Evidence in Contemporary Civil Procedure
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    10 August 2015, pp 17-32

  • Summary

    Introduction

    European civil procedural law deals with the taking of evidence in civil matters only marginally. Admittedly, cooperation in the taking of evidence is among the areas that may be subject to measures adopted by the European legislators. But in the context of evidence-taking, ‘cooperation’ and ‘harmonization’ are two rather different, and sometimes contradictory concepts. As initially stated in the now almost 15–year-old EU instrument regarding the taking of evidence in civil and commercial matters, the aim of the Regulation was to ‘improve, simplify and accelerate cooperation’, and to ‘make [it] easier to take evidence in another Member State’. Yet, the very core of the evidence-taking – who (and when and how) has to select, present and assess the evidence – was left untouched.

    Moreover, in line with the principles of subsidiarity and proportionality entrenched in the EU Treaty, the European legislators cannot go beyond what is absolutely necessary to achieve the imminently set objective, i.e. to improve the cooperation between the national courts of different European jurisdictions. Whether these courts have diametrically opposite approaches and rules to evidencetaking, from the EU law perspective it does not matter. As, allegedly, the desired objective of facilitating judicial cooperation has largely been achieved, no further actions that would go beyond the friendly cross-border judicial assistance between courts and promotion of mutual knowledge of different evidence-taking systems in the EU countries are either desired or permissible.

    Is this really the case? Can cooperation be successful within the ‘common area of justice’ if the practices of the taking of evidence in civil and commercial cases are exceedingly different and are rooted in different rationales and different core practices? In this text, I will argue that if a ‘common area of justice’ is to be taken seriously, some harmonization in the approach to the taking of evidence is indispensable.

    The developments regarding the taking of evidence conform to the wider trends of convergence triggered by the change in the setting of the goals of civil litigation. In all recent reforms, the key is the principle of proportionality. In the context of evidence-taking, the principle of proportionality, when properly understood and accepted, may prompt far-reaching changes – in particular where the principle of proportionality was largely unknown in the field of civil procedure.

  • TAKING OF EVIDENCE IN CROATIAN APPELLATE COURTS: WHY NO FACT-FINDING AT SECOND INSTANCE?

  • from EVIDENCE IN ARBITRATION AND NATIONAL CIVIL LITIGATION
    • By S. Aras Kramar, Assistant Professor of Civil Procedure, Faculty of Law, Zagreb University (Croatia)
  • Edited by C. H. van Rhee, Alan Uzelac
  • Book:
    Evidence in Contemporary Civil Procedure
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    10 August 2015, pp 291-310

  • Summary

    Introduction

    The regular form of appeal proceedings in countries of the European continental legal tradition involves review of facts and law. The appellate court re-examines the evidence and legal arguments advanced at first instance with a view to correct errors in adjudication and procedure. In some European legal systems, parties may introduce facts and evidence which were not addressed in the original judgment, and the appellate court may examine them at a new hearing. Often, however, litigation on appeal does not involve an actual second de novo hearing in which all evidence is introduced anew. The review may be limited to the examination of the first instance files. Based on the review of documents and protocols of the first instance court, the appellate court may (or may not) make its own independent findings of fact.

    In a number of countries of the European continental legal tradition it is quite common and normal to hold oral hearings before appellate courts with the purpose of establishing facts and reviewing the findings of the first instance court. This contribution will, however, present as a contrast one example where this regularly does not happen: in post-Yugoslav countries. As a particular example of this procedural style, we will use the law and practice in the Republic of Croatia.

    Oral Hearings in Croatian Appellate Courts: From a Theoretical Option to a Legal Impossibility (and Back)

    The story about the introduction and abolition of oral hearings in the Croatian appellate courts is one of trial and error. Initially, until the 2003 Amendments to the Civil Procedure Act, the option of holding oral hearings for the purpose of reexamination of evidence in the appellate courts existed, but it was dependant on the discretionary decision of the appellate courts. The courts almost never made use of this option, so the 2003 Amendments abolished this option entirely. However, the 2008 CPA Amendments reintroduced the facultative possibility of holding oral hearings before the appellate court. The option of appellate evidentiary hearings was strengthened further in the latest 2013 CPA Amendments. Namely, following several decisions of the European Court of Human Rights that declared the practice of successive remittals to be one of the systemic problems of Croatian civil procedure, the CPA amendments over the last five years progressively introduced a prohibition of multiple remittals of first instance judgments.

  • RESTRICTIONS ON THE ADMISSIBILITY OF EVIDENCE

  • from FUNDAMENTAL AND OTHER PRINCIPLES OF EVIDENCE IN CIVIL LITIGATION
    • By V. Rijavec, Professor at the Department of Civil, Comparative and International Private Law, Faculty of Law, University of Maribor (Slovenia), T. Keresteš, Associate Professor at the Department of Basic Legal and Other Sciences, Faculty of Law, University of Maribor (Slovenia)
  • Edited by C. H. van Rhee, Alan Uzelac
  • Book:
    Evidence in Contemporary Civil Procedure
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    10 August 2015, pp 87-104

  • Summary

    Introduction

    Restrictions on the admissibility of evidence are closely connected with the establishment of the truth in civil procedure. It is obvious that restrictions and especially the exclusion of evidence would hinder the quest for the truth in certain cases. Restrictions are also closely related to the principle of procedural justice. Procedural justice presupposes that just results should be obtained through a just procedure – fairness of procedure. To be able to talk about fairness, procedure should be oriented towards correctness. However, is it possible to have correctness in the procedure with evidence obtained illegally or in violation of human rights?

    The equality principle generally favours the admissibility of all evidence relevant to the trial. By excluding a piece of relevant evidence categorised as inadmissible, evidence law places the risk of error associated with this evidence on its proponent, whose opponent consequently acquires an immunity from that risk. This one-sided outcome is generally inferior to a system of free proof. Arguably, a free-proof system apportions the risk of error more equitably by allowing factfinders to consider all relevant evidence and determine its probative value on a case-by-case basis. This system avoids any systematic skewing of the risk of error. Fact-finding errors are thus entirely accidental in their occurrence. Free proof, however, only guarantees rudimentary equality in risk allocation and is still far from guaranteeing equality in the final apportionment of the risk of error. Application of this system in civil litigation only installs primary equality and requires corrective equality mechanisms. These mechanisms render inadmissible any evidence (or impose other restrictions on evidence) that creates inequality between the litigating parties by imposing a non-reciprocal – and, therefore, inequitable – risk of error on the opponent.

    These corrective mechanisms can include evidentiary privileges, restricting the means of evidence, restricting methods of taking evidence, prohibiting specific evidence or a general exclusion of evidence. The problem has cross-border dimensions – the question of whether a court of another country will accept evidence taken in the first country, for example in a manner that is considered to be problematic. Another problem is the feasibility of taking evidence in another country in case of evidence that is considered illegal according to the lex fori. These problems are also problematic in the enforcement stage, e.g. as regards enforceability of the judgment in another country.

  • PRECLUSION OF LATE ALLEGATIONS AND EVIDENCE AS A TOOL TO INCREASE THE EFFICIENCY OF CIVIL PROCEEDINGS IN POLAND: A SHORT STORY OF THE UGLY PAST AND THE WAY TO A BRIGHT FUTURE

  • from FUNDAMENTAL AND OTHER PRINCIPLES OF EVIDENCE IN CIVIL LITIGATION
    • By B. Karolczyk, Ph.D., LL.M., Attorney at law at Domański Zakrzewski Palinka Law Firm LP in Warsaw (Poland)
  • Edited by C. H. van Rhee, Alan Uzelac
  • Book:
    Evidence in Contemporary Civil Procedure
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    10 August 2015, pp 57-78

  • Summary

    Introduction

    In this contribution I present selected issues regarding the preclusion of untimely allegations and evidence in civil proceedings. In other words, this contribution deals with the doctrine of concentration of procedural material, as it is called in Poland. In the background there are inherent internal tensions between two key values of adjudication, namely, efficiency, on the one hand, and the reliability of the factual inquiry, on the other. I will carry out my presentation by mixing a healthy concoction of doctrine, law and practical observations. One caveat is in order, however. Given the limited space and the sheer size of the subject of inquiry, some readers may find this article a bit general. Although a side effect, this should be in fact beneficial for a foreign reader, as a meticulous discussion might have been too abstract and too detailed for comparative purposes.

    I start with a brief characterization of the Polish system of procedure, including the still powerful dogma of truth-seeking. After a short historical comment on the principle of concentration, I move to the recent ‘ugly past’ and ‘the bright future’ ahead in light of recent amendments to the Polish Code of Civil Procedure (CCP). I conclude with some thoughts on the new law.

    The Polish Model of Procedure: A View from Above

    I would like to start by making two points.

    First, although it does not perfectly match Damaška's model, I would argue that the Polish system is a type of ‘social’ or ‘policy-implementing’ model of procedure.

    Theoretically, this model has the following characteristics: (1) as a part of its function, the active state has adopted a certain idea of how a ‘good society’ should work; (2) a civil dispute is a social problem, because it disrupts the orderly workings of society; (3) so, the state needs to be actively involved in adjudication, should it be invoked; (4) accordingly, adjudication is about more than merely resolving civil disputes; it is also about that idea of social order; (5) thus, the lawmaker infuses procedural norms with substantive policies; (6) because otherwise these policies will remain on paper and the primary goal of civil proceedings is to make correct factual findings, which is a conditio sine qua non for giving a proper judgment.

  • WITNESS TESTIMONY IN DUTCH CIVIL PROCEDURE: FACTS, FIGURES AND STATISTICAL RELATIONS

  • from TYPES OF EVIDENCE IN CIVIL LITIGATION
    • By F. Hoogers, Bachelor Student of Law, Faculty of Law, University of Maastricht (Netherlands), F. Fernhout, Associate Professor of Civil Procedure, Faculty of Law, University of Maastricht (Netherlands), H. Jans, Bachelor Student of European Law, Faculty of Law, University of Maastricht (Netherlands), R. Mertens, Bachelor Student of Law, Faculty of Law, University of Maastricht (Netherlands), V. Poels, Bachelor Student of Law, Faculty of Law, University of Maastricht (Netherlands)
  • Edited by C. H. van Rhee, Alan Uzelac
  • Book:
    Evidence in Contemporary Civil Procedure
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    10 August 2015, pp 175-192

  • Summary

    Introduction

    When it comes to assessing the administration of justice it is likely that there is a consensus about one thing: the justice system needs to be efficient. A higher investment of time and money than strictly necessary is disadvantageous for citizens, the government and economic interests. Thus the complaints that adjudication takes too long.

    Efficiency is largely dependent on the way the administration of justice is organized; it depends primarily on the procedural model. Researchers often look at the time proceedings take, for a short procedure is beyond doubt an efficient one. However, this is not enough: a judge deciding a case by rolling the dice will hardly need any time for his decision, but the result is a judgment of meagre quality. The best way to assess in an objective manner whether (an aspect of) a justice system is efficient is therefore to look for factors that influence the efficiency of proceedings and assess their working. In that way, the question whether quality is suffering under the desire to have an efficient procedure can be taken into account.

    This empirical study is about witness examinations in Dutch civil procedure in commercial cases. Examining witnesses is part of giving evidence or - seen from a more inquisitorial point of view - finding the truth. It is therefore a crucial part of civil procedure. Dutch civil procedure is only partly adversarial and is strongly modelled towards efficiency by giving the court extensive powers to determine the course of the proceedings. A procedural model such as this, aiming at a quick judgment, harbours the risk of inaccuracy. This is a real risk in Dutch procedure since, especially compared with common law countries, there is not that much room left for the parties during witness examination. Observing witness examinations in Dutch courts can be useful in determining whether overzealousness plays too big a role.

    This contribution will start with a description of civil procedure in commercial cases. Next, the four indicators that were used to assess witness examinations in Dutch courts will be introduced. What follows is a brief description of the research design, the research method and the actual research, with mention of some of the difficulties that had to be overcome in order to gain access to public hearings.

  • THE 1970 HAGUE EVIDENCE CONVENTION, THE EUROPEAN UNION AND THE 2001 EU EVIDENCE REGULATION - INTERFACES

  • from EVIDENCE IN CROSS BORDER CIVIL LITIGATION
    • By J. Valdhans, Assistant Professor at the Department of International and European Law, Masaryk University (Czech Republic), D. Sehnálek, Assistant Professor at the Department of International and European Law, Masaryk University (Czech Republic)
  • Edited by C. H. van Rhee, Alan Uzelac
  • Book:
    Evidence in Contemporary Civil Procedure
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    10 August 2015, pp 337-362

  • Summary

    European Union – Relationships to Third Countries within the Hague Conference

    On 18 March 1970 the contracting parties adopted the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (hereinafter the ‘Hague Convention’). In the context of the Convention, the present contribution will focus on the relationships and roles of the European Union and its Member States related to the Convention's implementation. The Hague Convention was negotiated during the Hague Conference. A majority of Member States of the European Union are currently among its parties. The EU itself is not a party to the Convention for two reasons. At the time when the Convention was negotiated the European Economic Community lacked the power to regulate aspects of private international law. Furthermore, based on the Hague Convention itself, an international organisation such as the EEC could not be among the contracting parties and the Convention also excluded any later accession by an internal organisation.

    Since the 1970s there has been a significant shift in the division of competences between the Member States and the European Union in matters relating to aspects of private international law, as these aspects have become part of the EU's agenda. Obviously, this internal shift of competence has had an effect on the EU's relationships to third countries and international organisations. As a result, the EU was ultimately able to become a member of the Hague Conference. It took advantage of this opportunity and became actively involved in the Conference's activities.

    The parallel membership of the European Union and Member States in the Hague Conference also brought about an adverse consequence for third countries in terms of uncertainty as to the actual scope of the existing competences of the EU entrusted to it by the Member States in the area of private international law. Indeed, it is important to define the boundaries of competence in terms of both practical implementation of the treaties negotiated at the Conference and potential liability for their breach under international law. It is important for third countries to know who will implement a treaty and against whom they should exercise any claims based on such liability.

  • EVOLUTION OF THE POWERS OF THE JUDGE AND THE POWERS OF THE PARTIES REGARDING THE TAKING OF EVIDENCE IN SOUTH AFRICA

  • from EVIDENCE IN ARBITRATION AND NATIONAL CIVIL LITIGATION
    • By D. van Loggerenberg, Extraordinary Professor of Civil Procedure, Faculty of Law, University of Pretoria; Senior Counsel, Pretoria Society of Advocates (South Africa)
  • Edited by C. H. van Rhee, Alan Uzelac
  • Book:
    Evidence in Contemporary Civil Procedure
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    10 August 2015, pp 311-332

  • Summary

    Introduction

    The word ‘procedure’ inherently means ‘going forward’. Viewed as such, civil procedure not only aims at moving forward the dispute between the parties up to the point of its eventual determination by a court, but also aims at reflecting the evolution (i.e. change) of society and its needs. Since all legal systems are closely linked to the historical, cultural, socio-economic and political milieu in which they have developed and find application, the degree of the powers of the judge and the powers of the parties regarding the taking of evidence in a given system must necessarily depend upon a variety of factors, juridical and non-juridical, that determine its character. With regard to this, as far back as 1975 Jolowicz stated the following:

    The essential question, to which each country must work out its own answer, concerns the extent to which the powers of the court can be increased without thereby sacrificing other values which are held to be vital to the due administration of civil justice.

    In this contribution, the focus will be directed at the South African adversarial system of civil procedure which owes its origin to that of England. It has, however, materially steered an independent course in its development since its implementation by the English in 1828.

    In terms of Sec. 166 of the Constitution of the Republic of South Africa, 1996, the courts in South Africa consist of:

  • a. The Constitutional Court;

  • b. The Supreme Court of Appeal;

  • c. The High Court;

  • d. The Magistrates’ Courts.

    • Although courts of appeal are entitled, on the hearing of an appeal, to receive further evidence, the focus in this contribution will be placed on the taking of evidence in courts of first instance and, in particular, the High Court as court of first instance in contradistinction to its being a court of appeal also.

    Civil Procedure in the High Court: A Traditional Perspective

    In this regard the presentation is confined to the action procedure. The civil procedure in the High Court distinguishes clearly between the pretrial and trial stages. The pre-trial stage is subdivided into the pleading, discovery and preparation for trial stages. The trial, in turn, is a continuous process which is characterised by the immediate (direct) and, mainly, oral presentation of evidence.

  • EVIDENCE: LEARNING FROM ARBITRATION

  • from EVIDENCE IN ARBITRATION AND NATIONAL CIVIL LITIGATION
    • By P. Oberhammer, Professor of Civil Procedure, University of Vienna (Austria); Permanent Visiting Professor of Law, St. Gallen University (Switzerland); Rechtsanwalt, London (UK)
  • Edited by C. H. van Rhee, Alan Uzelac
  • Book:
    Evidence in Contemporary Civil Procedure
    Published by:
    Intersentia
    Published online:
    15 December 2017
    Print publication:
    10 August 2015, pp 243-256

  • Summary

    General

    As is generally known, there are major differences between the fact-finding processes of arbitration and litigation proceedings. This is not only true from a civil law, but also from a common law perspective: Today's practice with respect to the taking of evidence in arbitration proceedings results from a combination of approaches of lawyers with different backgrounds, in particular, from lawyers from civil and common law jurisdictions. In particular, this combination of approaches is reflected in the International Bar Association Rules on the Taking of Evidence in International Arbitration. Different from many other ‘principles’, ‘rules’ etc. which only play a role in the discussion of academic or practitioners’ conferences, these rules have gained significant acceptance in arbitration practice and serve as guideline for the decision of fact-finding issues in many arbitration proceedings all over the world today.

    The reason for asking about what litigation can learn from arbitration with respect to evidence-taking is obvious. Arbitration is market-made and, therefore, concepts developed in arbitration practice and accepted by parties and arbitration practitioners might be effective and user-friendly. Therefore, one might argue that arbitration could be a laboratory for best practices in civil procedure not only, but also when it comes to evidence. I do not suggest that, therefore, arbitration is superior to litigation. As is generally known, not all results of market-driven processes are in the best interests of all stakeholders. This contribution, however, is not about criticizing arbitration practice where there might be shortcomings, but simply asks which lessons can be learnt from arbitration with respect to evidencetaking.

    My approach is, of course, based on my personal experience resulting from my academic and practical work in civil procedure in the German speaking countries on the one hand and in international commercial arbitration on the other. Therefore, some of the aspects which I will address where litigation might learn lessons from arbitration are based on my ‘Germanic’ litigation experience and might, therefore, not apply to the civil procedure of other jurisdictions to the same extent. Moreover, I would like to clarify that user-friendliness and efficiency, of course, are not necessarily the only relevant factors for identifying the best approaches in the field of evidence – it is just one very important perspective, and it is the one perspective which I will focus on in the following.

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