Van Rhee C. H. 2020 - Towards Harmonised

ARTICLES
Access to Justice in Eastern Europe,

Issue 1 (6) 2020 10.33327/AJEE-18-3.1
ISSN 2663-0575 (Print)
ISSN 2663-0583 (Online)
http://ajee-journal.com
C H (Remco) van Rhee ‘Towards

Harmonised European Rules of Civil
Procedure: Obligations of the Judge, the
Parties and their Lawyers’ (2020) 1(6)
Access to Justice in Eastern Europe 6-33.
10.33327/AJEE-18-3.1-a000024
Received 01.12.2019
Revised 20.01.2019
Approved 22.01.2019
TOWARDS HARMONISED EUROPEAN RULES

OF CIVIL PROCEDURE: OBLIGATIONS OF THE
JUDGE, THE PARTIES AND THEIR LAWYERS
C.H. (Remco) van Rhee

Dr. habil. Professor of European Legal History
and Comparative Civil Procedure, Department
of Foundations and Methods of Law, Faculty of Law,
Maastricht University, Netherlands1*
doi.org/10.33327/AJEE-18-3.1-a000024
Summary: 1. Introduction – 2. General Part: Overriding Objective – 3. Management of

the Procedure – 4. Determination of Facts – 5. Findings of Law – 6. Consensual dispute
resolution – 7. Conclusion
1 * The author serves as chair of the Working group on the obligations of the judge and the parties and
their lawyers established by the European Law Institute and UNIDROIT. Professor Alan Uzelac serves
as co-chair. Members of the working group are professors Emmanuel Jeuland, Bartosz Karolczyk, Walter
Rechberger, Elisabetta Silvestri, John Sorabji and Magne Strandberg. The draft rules and commentary
below are their joint work.
6 ACCESS TO JUSTICE IN EASTERN EUROPE, ISSUE NO. 1(6)/2020

This article explains in detail the rules on the obligations of the judge, the parties and their
lawyers in civil litigation, prepared by a working group that was established within the
context of a project on European Rules of Civil Procedure of the European Law Institute and
UNIDROIT. These rules are grouped into several parts devoted to the overriding objective
of the proposed rules, management and planning of the proceedings, the determination of
facts, findings of law, and consensual dispute resolution. The suggested rules reflect best
practices in European civil procedure.
Keywords: civil litigation, obligations of the judge, obligations of the parties, obligations of
lawyers, management of the proceedings, consensual dispute resolution
1. INTRODUCTION
The first modern attempts to harmonise rules of civil procedure in Europe date back
to the 1980s. At that time, the author served as a young assistant in a project initiated
by the late Professor Marcel Storme from Ghent, where representatives of the then
12 member states of the European Community (now the European Union) made
attempts to develop rules of civil procedure that would be acceptable in all member
states.2 Such rules are necessary given the fact that Europe does not have a system of
federal courts like the United States of America. It is consequently dependent on the
national courts of the member states for the correct implementation of harmonised
European law, whenever legal disputes arise.
Unfortunately, the Storme project was flawed, amongst other things because rules
that are acceptable to all member states are all but impossible to formulate (especially
where the civil law tradition of the European continent is confronted with the common
law tradition of the British Isles). If such rules can be formulated at all, they will not
be very revolutionary. This is proven by the Storme Rules, for example in the very
important area of evidence where the Storme Group produced few rules, one of them
stating the obvious, that those who are duly summoned to court to give evidence in
civil proceedings are under a duty to give evidence.3 For the Swedish law professor P.H.
Lindblom, this rule and related rules were proof of the fact that the Storme Project was
unsatisfactory.4 And indeed, very little has come from the rules that the Storme Group
published in 1994.5
Even though the Storme Group did not produce a set of rules that would change the
civil procedural landscape in Europe, the project was important since it served to put
the topic of procedural harmonisation on the European legislative agenda from the
1990s. As such, the Group inspired later attempts at harmonisation, one of them being
the 2006 Principles of Transnational Civil Procedure of the American Law Institute
2 Marcel L Storme (ed), Approximation of Judiciary Law in the European Union (Kluwer & Martinus
Nijhoff 1994).
3 Storme (n 1) Art. 5.
4 PH Lindblom, ‘Harmony of Legal Spheres. A Swedish View on the Construction of a Unified European
Procedural Law’ (1997) 5 European Review of Private Law 11-46.
5 See Storme (n 1).
(REMCO) VAN RHEE C.H. TOWARDS HARMONISED EUROPEAN... 7

(ALI) and UNIDROIT6 which aimed at providing model rules (soft law) for the world
at large. The project of the European Law Institute (ELI) and UNIDROIT focusing
on the development of model rules for the member states of the European Union is
another example. The results of the latter project, which started in 2013, will hopefully
be published in 2020. At the time of writing, this had not yet happened.
The ELI/UNIDROIT project does not primarily aim at developing procedural rules
that will be acceptable in all European member states. On the contrary, it takes best
European practices as its guiding star. This means that those involved in drafting the
Rules concentrate on those rules that can be qualified as ‘best’ from the perspective of
predefined goals such as fairness, efficiency, speediness and proportionality. The project
takes the relatively sophisticated 2006 Principles of Transnational Civil Procedure
mentioned above as its starting point. It is felt that these Principles can serve as a source
of inspiration for European rules. European rules can, however, be more elaborate and
detailed than the Principles, given the fact that unlike the Principles they are not aimed
at international commercial litigation globally, but at civil litigation in the relatively
restricted area of the member states of the European Union.
At the time the project was initiated, it could not be expected that the United Kingdom
would decide to leave the European Union and therefore the Rules also contain elements
of the procedural heritage from especially England and Wales. Currently, this would not
have been necessary anymore from a political perspective, but taking into consideration
that English civil procedure has, in the opinion of the author, improved the quality of the
new rules. Taking into consideration the common law heritage may also be beneficial
for the acceptance of the Rules in the Republic of Ireland.
Although the common law influence is noticeable, many of the proposed rules find
their origin in civil law jurisdictions. This means that the history of various rules can
be traced back to the Romano-canonical procedure of the medieval period, i.e. the
ancestor of most modern systems of civil procedure on the European Continent.7 The
Romano-canonical procedure was a scholarly type of procedure, something that can for
example be noted when taking into consideration its sophisticated rules on evidence.
One of the aims of the Romano-canonical procedure was to avoid arbitrary judgments
and for that reason rules of procedure were developed, which enhanced the chances that
the final judgment would be just and based on the true facts and the correct legal basis.
Consequently, the distribution of tasks amongst the various participants in the legal
process (judges, parties and lawyers) was a central issue.
Traditionally, the role of the judge in the Romano-canonical procedure was more
prominent than his/her role in the common law. On the Continent, the judge not only
made sure that the procedural rules were observed, but he/she was also in charge of
establishing the correct legal basis of the case (iura novit curia) and he/she would develop
various activities in establishing the relevant facts, for example when hearing witnesses
(a task that is left to the parties and their lawyers in the common law systems). Obviously,
6 ALI/UNIDROIT, Principles of Transnational Civil Procedure (CUP 2006).

7 See e.g. KW Nörr, Romanisch-Kanonisches Prozessrecht. Erkenntnisverfahren Erster Instanz in Civilibus
(Heidelberg 2012).

the parties and their lawyers also had far-reaching responsibilities in this respect. In
the national procedures that developed since medieval times on the foundations of the
Romano-canonical procedure, the division of tasks between judge and parties is still an
important matter. It is therefore not a surprise that judicial activity and the division of
tasks between judge and parties are also central topics where it concerns the European
Rules of Civil Procedure developed within the context of the European Law Institute
and UNIDROIT.
In the present contribution we will only concentrate on the role of the judge, the parties
and their lawyers in the ELI/UNIDROIT Rules. Unfortunately, the final text of the
Rules cannot be taken into consideration, since this text is still under preparation and
has not yet been published. We will therefore focus on a text that was prepared by a
working group that was established within the context of the ELI/UNIDROIT project
and that is tasked with drafting the rules on the obligations of the judge, the parties
and their lawyers in civil litigation. This working group is chaired by the author of the
present contribution and Professor Alan Uzelac from Zagreb in Croatia. Members
of the working group are Emmanuel Jeuland (France), Bartosz Karolczyk (Poland),
Walter Rechberger (Austria), Elisabetta Silvestri (Italy), John Sorabji (United Kingdom)
and Magne Strandberg (Norway). The text below contains the rules and parts of the
explanatory notes produced by the working group.8 It is unclear to what extent the ideas
of the working group will be incorporated in the final, consolidated draft of the Rules,
in which all rules produced by the various working groups9 will be integrated, but it is
hoped that many of our ideas will survive.
The rules developed by our working group are based on a variety of sources. The starting
point are the ALI/UNIDROIT Principles of Transnational Civil Procedure, especially
(but not only) Principles 11 (Obligations of the Parties and Lawyers) and 14 (Court
Responsibility for Direction of the Proceeding). Furthermore, Council of Europe
Recommendations (especially Recommendation No. R (84) 5 on civil procedure), case
law of the Court of Justice of the European Union and the European Court of Human
Rights, the Storme Project on the Approximation of Judiciary Law in the European
Union, model codes such as the Codigo modelo Iberico-americano, the national laws of
the Member States of the European Union and other European countries and various
professional codes of conduct have been taken into consideration.
Our rules deal, as stated, with the obligations of the judge, the parties and their lawyers
in civil litigation. The proposed rules use the word ‘obligations’ in a broad sense.
8 Here it should be underlined that this text has been drafted by the members of the working group
jointly. The selection of the relevant parts of this text reproduced in the present contribution and the
way texts have been grouped together is the responsibility of the author. Some minor textual changes
in the commentary have been introduced. The text of the Rules themselves is identical to the ones
submitted to the European Law Institute and UNIDROIT. Permission to make the work of the working
group public was obtained at the annual conference of the European Law Institute in Vienna in
September 2019. It should be noted that our draft rules are subject to modification by the working
group responsible for the consolidated draft containing the rules of all working groups.
9 There are 9 working groups dealing with different procedural topics, and one structure working
group. See ELI, Projects: Civil Procedure <https://www.europeanlawinstitute.eu/projects-publications/
current-projects-feasibility-studies-and-other-activities/current-projects/civil-procedure/> accessed
January 2020.

This expression encompasses both duties in the strict sense of the term (in German:
Pflichten) and duties, which are only indirectly sanctioned (mere obligations, in
German: Lasten).10 The focus of our rules is, however, on effectiveness: there should be
both adequate means and motivations to ensure that all obligations in the proceedings
are respected effectively.
Obligations may be either positive or negative. Positive obligations require actions to be
undertaken in order to contribute to fair, efficient, speedy and proportionate resolution
of the dispute. Negative obligations are those which require parties to ensure that they
treat other participants in proceedings fairly i.e., obligations to refrain from acting in
bad faith, in particular by not undertaking steps that unduly delay the proceedings or
otherwise qualify as procedural abuse.
Our rules provide a modern approach to civil litigation in that they put the emphasis
on loyal cooperation between the judge, the parties and their lawyers. The rules are
written from the perspective that judges, parties and their lawyers have a shared
responsibility in putting an end to disputes in a fair, efficient, speedy and proportionate
manner, either by way of settlement or by way of a court decision based on the true
facts and right law. This means that the adversarial-inquisitorial divide is intentionally
avoided. The underlying idea of the proposed rules is that there is no mutually exclusive
division of labour between the various participants in a civil lawsuit; there are only
shared obligations. This means that apart from the parties, the court also has certain
obligations regarding facts and evidence, whereas parties share the responsibility for
the assessment of the pertinent legal issues with the judge. It is the duty of the lawyers
to support the parties in the execution of their obligations. Lawyers’ duties, however,
go further than that, as they also have to observe professional duties normally found in
codes of conduct, to which our rules refer, where necessary.
It should be noted that rules referring to the court (as opposed to judges) include the
powers and responsibilities of all existing court structures, which ensure the good
administration of justice in particular cases. Furthermore, the judges’ obligations are
shared by those who perform activities related to those of the court such as, for example,
an amicus curiae.
The rules proposed by our working group are grouped under five headings. Part 1
is the general part and deals with the duty of loyal cooperation. All rules have to be
interpreted within the context of this general duty and therefore this duty serves as a
kind of overriding objective. Part 1 is followed by four specific parts, each part having
a similar structure: every part contains separate rules on the obligations of the parties,
their lawyers and judges, as well as a section on sanctions for the breach of procedural
obligations. As a result, sanctions are mentioned in all parts of our rules. This is due to
the fact that no single and uniform rules on sanctions are appropriate, as various actors
and elements of the procedural obligations require various types and forms of sanctions.
Sanctions can either be negative consequences as regards the manner in which the case
is litigated, or positive consequences such as fines.
10 CH van Rhee, ‘Obligations of the Parties and their Lawyers in Civil Litigation’, in J Adolphsen et al
(eds), Festschrift für Peter Gottwald zum 70. Geburtstag (Beck 2014) 669-679.

2. GENERAL PART: OVERRIDING OBJECTIVE
Part 1 of our draft contains 4 rules:11
Rule 1. Obligations of the Parties
(1) Parties have a duty to promote the fair, efficient, speedy and proportionate resolution
of their dispute. This duty includes their conduct before starting court proceedings,
during all stages of litigation and, if necessary, in the stages after the proceedings. In
particular, the parties are obliged to:
(і) contribute to the proper management of the proceedings;
(іі) present facts and evidence and assist in the proper determination of the facts;
(ііі) assist in the determination of the applicable law;
(іv) undertake all reasonable efforts to settle disputes amicably.
(2) When dealing with the court and other parties, parties must cooperate in good faith.
They must avoid any delaying tactics and refrain from procedural abuse.
(3) These obligations also apply to other interested persons, who participate in
proceedings as well as they apply to parties.
Rule 2. Obligations of the Lawyers
(1) When representing parties, lawyers must act in accordance with the duty of loyal
cooperation and assist the parties in observing their procedural obligations.
(2) These obligations apply accordingly to other persons who assist parties.
Rule 3. Obligations of the Court
(1) The court shall promote the fair, efficient, speedy and proportionate resolution
of disputes. It is responsible for active and effective case management. Throughout
proceedings it shall monitor whether parties, lawyers and other participants referred to
in these Rules observe their obligations.
(2) The court shall undertake such steps as are necessary to establish and maintain
procedural cooperation, prevent procedural abuse and/or avoid the negative
consequences of violations of procedural obligations. Wherever appropriate, it shall
promote the consensual settlement of disputes.
(3) Judges shall implement the court’s obligations in individual proceedings. These
obligations apply accordingly to other professionals who assist the court.
Rule 4. Sanctions
(1) Breach of the obligations referred to in these Rules are subject to sanctions.
(2) Sanctions have to be effective and proportionate. They may include:
(i) the proceedings continuing without the defaulting party’s participation;
11 This part of the rules was originally drafted by Walter Rechberger and Remco van Rhee.

(ii) negative inferences as to facts;
(iii) the right to dismiss or reject incomplete or unsubstantiated statements of
a case or other procedural acts of the parties;
(iv) cost sanctions;
(v) fines;
(vi) disciplinary and other professional sanctions.
(3) Unless an order or direction specifies the contrary, sanctions imposed take effect
automatically. Orders imposing sanctions may only be subject to appeal in exceptional
circumstances.
(4) Sanctions may be imposed either by the court or by the relevant professional
organisation.
Rule 1 uses the terms ‘fair’, ‘efficient’, ‘speedy’ and ‘proportionate’. A precise definition
of this terminology is hard to provide and may, in any event, even be dangerous.
The terminology is flexible and should be interpreted in light of modern procedural
standards. It should be read in the light of the procedural model that is envisaged by
these rules. (1) ‘Fair’ includes the observance of modern procedural principles such as
the duty of the parties to cooperate with each other and the court and the avoidance
of manifestly ill-founded proceedings or the abuse of procedural rules for illegitimate
purposes, (2) ‘efficient’ refers, amongst other things, to the use of resources in the
least wasteful manner, (3) ‘speedy’ includes a time-frame which is reasonable, given
the nature, value and complexity of the case, whereas (4) ‘proportionate’ to a certain
extent covers similar grounds as the terminology ‘efficient’ and ‘speedy’ taken together.
‘Proportionate’ is added in order to emphasise that different types of cases may require
different use of resources and time. The obligations mentioned under (a)-(d) are four
important obligations, which result from the duty of the parties mentioned in this
rule. Where the rules do not address the particular obligations of the parties, the
requested procedural behaviour should be such that the fair, efficient, speedy and
proportionate resolution of the dispute is promoted.
Parties should observe their obligations not only during litigation but even before
the case is brought to court (the pre-action stage) and also after litigation e.g., in the
enforcement stage or when exercising the right to use special remedies such as a request
to reopen the proceedings. In the pre-action stage the parties should cooperate in such a
manner that the facts and the law underpinning their dispute are stated sufficiently, that
available evidence is exchanged and that sufficient settlement attempts are undertaken
before court action is initiated. Obviously, sanctions for non-observance of these
obligations are not available in the pre-action stage, but they may be imposed when the
case actually reaches the court (cf. the English pre-action protocols). In the enforcement
stage, the judgment debtor should cooperate loyally in the identification of relevant
assets and also provide further assistance in order to allow enforcement to be executed
in the required manner.
Rule 2 deals with the obligations of lawyers. Lawyers are the most important individuals
who assist the parties and undertake actions in the proceedings on their behalf. The

notion of ‘lawyer’ is not defined, but is meant in the sense of the definition provided
in Council of Europe Recommendation Rec(2000)21 on the freedom of exercise of
the profession of lawyer, where the term ‘lawyer’ is defined as a person qualified and
authorised according to national law to: plead and act on behalf of his or her clients; to
engage in the practice of law; and, to appear before the courts or advise and represent
his or her clients in legal matters.
Assisting parties in the observance of their procedural obligations means, amongst other
things, that lawyers should inform the parties of these procedural obligations as expressed
in our rules and of the consequences of non-compliance. Lawyers should not knowingly
cooperate in any non-compliance with these obligations. If necessary, they should actively
promote compliance by the parties. If a party persists in being non-compliant, this may
ultimately mean that a lawyer has to terminate his relationship with that party.
In addition to their obligation to assist the parties to comply with their procedural
obligations, lawyers have common professional obligations that arise from various
national and international codes and rules of professional ethics. These obligations may
be considered to be incorporated in our rules. Obviously, where one is dealing with
national codes and rules of professional ethics, differences may arise depending on the
jurisdiction where the lawyer practises.
The obligation of lawyers to assist the parties to carry out their duty to contribute to
the fair, efficient, speedy and proportionate resolution of disputes apply analogously as
legal and professional obligations to experts appointed by the parties (‘expert witnesses’,
where they exist), to their advisers (other than lawyers, if they exist in a particular
jurisdiction) and other professionals assisting the parties, even if no rules or codes of
professional ethics apply to them or if such rules or codes of conduct differ in certain
respects. Court-appointed experts are addressed in Rule 3 (see below) since their
obligations are analogous with the obligations of judges.
While Rule 2 principally deals with professionals who assist the parties, it should be
noted that under various national jurisdictions, parties may be represented by other
persons, such as close relatives, other persons whom they trust, or by consumer
protection organisations, labour unions etc. To the extent that such persons do not act in
a professional capacity i.e., in the course of business, they are not bound by professional
rules, but they are subject to the common procedural obligation to contribute to good
administration of justice.
Rule 3 deals with the obligations of the court. The court (here understood as an
administrative entity), just like the parties, has a duty to promote the fair, efficient,
speedy and proportionate resolution of disputes. The comments made above regarding
the definition of fair, efficient, speedy and proportionate apply, mutatis mutandis, to the
present rule.
The court can implement this obligation by organising work processes in such a way
that sufficient time and resources are available to decide individual cases. It should
also ensure that no more time and resources than are necessary or proportionate
are expended on any case, so that enough time and resources are available for other
cases i.e., the court should ensure that there is effective resource allocation across
all cases before it.

Moreover, the court must monitor whether other participants in the lawsuit observe
their obligations. Monitoring is a continual duty in so far as the court ought to ensure
that procedural obligations are observed and that voluntary compliance with the
professional obligations is secured throughout the entire course of the proceedings.
Of course, continual monitoring does not imply that the court needs to check the
progress of the case on a daily basis. It only means that throughout the proceedings
the court should establish whether procedural timetables and procedural steps and
actions, which were agreed or determined by the court, are being complied with, taking
appropriate enforcement action if necessary.
In individual cases the court’s duties have to be implemented by individual judges or panels
of judges. This is an aspect of their judicial case management function. It is suggested that,
in implementing this function, judges are monitored by the court: monitoring of adequate
performance of this function does not touch upon the independence and impartiality of
judges in decision-making. The courts themselves could be monitored by a Council for
the Judiciary or a similar body, which is independent of the Ministry of Justice.
Those other professionals who assist the court, mentioned at the end of Rule 3, may, for
example, be court appointed experts, assessors, jurors etc. (to the extent that they exist
and assist the court in any particular jurisdiction).
Rule 4 deals with sanctions. Sanctions are indispensable for promoting the observance
of the obligations by those involved in litigation. In the text, the word ‘sanction’ is used in
a broad sense, which includes not only fines or preclusions, but also any means resulting
in negative consequences for a participant in the proceedings, if their obligations are
not being fulfilled. Normally, such sanctions are not subject to appeal. Appeals shall
be allowed, however, if the sanction is especially severe or if the sanction is of special
significance to the case in general.
In this sense, Rule 4 mentions a series of pecuniary and non-pecuniary sanctions that
may be imposed by the court or a professional organisation on parties, their lawyers and
other participants to whom the duties provided in these rules apply. Sanctions for judges
who do not observe their judicial case management tasks are more difficult to envisage,
not least because providing for a means of recourse against such judges may result in
additional delay. If such sanctions are available in a legal system, they should either be
proposed or imposed by a competent court body (e.g., the president of the court) or
by a body such as a Council for the Judiciary. Professional or disciplinary sanctions
that can only be imposed by the respective professional organisation (bar association,
body for judicial discipline) may result from the initiative of other participants in the
proceeding (e.g., the court, parties or third interested parties reporting relevant conduct
to a relevant organisation). They may also be taken by the respective organisation or
body on its own initiative. Such sanctions, if imposed on judges, do not affect their
independence, since independence should be understood as independence in deciding
the substance of the dispute between the parties and not as independence in managing
the case procedurally.
As far as the individual sanctions mentioned in Rule 4 are concerned, they
are indicated there in a generic way and as a catalogue of possible responses to
violations of procedural obligations. For instance, the right to continue and issue

decisions without a non-participating party (option under (i)) includes various
reactions to passive behaviour of a party (holding hearings in the absence of a duly
summoned party; deciding individual issues or the whole case on the merits in
spite of the fact that a party, duly informed and invited to supply its arguments,
failed to do so). Negative inferences (option under (ii)) can lead to an unfavourable
decision on the merits, while summary dismissal of submissions (option under
(iii)) that are unsubstantiated or incomplete (e.g., dismissal of the statement of
claim or appeal which does not contain essential elements) can save resources and
speed up processing cases in which parties do not adhere to minimal procedural
requirements. Cost sanctions (option under (iv)), fines (option under (v)) and
disciplinary sanctions (option under (vi)) all serve to enforce procedural obligations
and protect the integrity of the proceedings.
Cost sanctions can take different forms. Their precise shape depends on features of
specific national justice systems and their approach to costs. They may include fines,
cost shifting and augmented court fees.
3. MANAGEMENT OF THE PROCEDURE

Part 2 of our Rules contains 7 individual rules:12
Rule 5. Obligation to Actively Manage Court Proceedings
(1) The court must actively manage proceedings in order to promote their fair, efficient,
speedy and proportionate resolution, whether by consensual settlement or by judgment.
In doing so, the court must take account of the nature, value and complexity of the
particular proceeding before it and of the need to give effect to its general management
duty in all proceedings.
(2) The general management duty is a continuing duty, which must be carried out by
the court at all stages of the proceedings. Individual case management decisions must
be taken at the earliest opportunity.
(3) Parties must co-operate with each other and with the court in order to facilitate
proper case management.
Rule 6. Case Management Conference
(1) In order to manage cases properly, the court may hold a case management conference
at which the court may make any order necessary to manage the case properly. If
requirements are met, the court must determine the claim on the merits at a case
management conference or immediately thereafter.
(2) Such a hearing may be held in person, or by the use of electronic means of
communication. The first case management conference shall be held as soon as possible.
Rule 7. Power to Issue Case Management Orders
12 This part of the rules was originally drafted by John Sorabji and Magne Strandberg.

(1) The court may make any case management order on its own initiative or on
application of any party. Orders may be made without a hearing or on an ex parte basis.
Where orders are made by the court on its own initiative, any party may apply to the
court to have the order reconsidered at a hearing.
(2) Where orders are made on an ex parte basis, the party to whom notice was not given
may apply to have the order reconsidered.
Rule 8. Means of Case Management
(1) In order to further its general case management duty, the court may take any necessary step:
(i) schedule case management conferences;
(ii) set a timetable or procedural calendar;
(iii) set deadlines for the parties to take procedural steps;
(iv) determine the type and form of procedure;
(v) limit the number and length of submissions;
(vi) encourage the parties to take active steps to settle all or parts of their dispute
including encouraging and where appropriate taking part in, the use of
alternative dispute resolution (ADR) processes or practices (Rules 24 and 25);
(vii) determine the order in which issues should be tried, whether certain
procedural or substantive issues should be decided jointly or separately, and
whether the proceedings should be consolidated or split;
(viii) determine changes related to the parties to the proceedings and on
participation of other interested persons in the proceedings;
(ix) consider whether a party is properly represented;
(x) require party’s appearance in person or require a party’s representative
to be present at a court hearing or meeting;
(xi) ensure appropriate use of modern technology; or
(xii) take any other necessary step.
(2) While exercising its general management duty, the court shall manage the proceedings
so that all relevant issues in the case are identified and may be decided in a complete and
appropriate manner. The court may encourage the parties to identify the real issues in
dispute, and discuss with them appropriate methods and steps for dealing with these issues.
(3) The court may vary any case management order, including abridging or extending
the time to comply with them. Such orders are ordinarily not subject to appeal.
Rule 9. Sanctions for Lack of Cooperation Regarding Case Management
Unless a specific rule applies, in any case management order the court shall specify the
sanction for non-compliance with that order or direction (Rule 4).
Rule 10. Cooperation in Issuing and Amending Case Management Orders

(1) The parties should, ordinarily, be consulted by the court prior to issuing case
management orders. The court shall encourage the parties to agree on the content of
such directions.
(2) The parties shall attempt to agree to proposed case management directions. Where
the parties agree to the directions, they shall inform the court at the earliest opportunity
in advance of any scheduled case management conference.
(3) Ordinarily, the court will decide according to the agreement reached by the parties. In
case an agreement cannot be reached within any relevant time limit, the court will issue
case management directions on its own initiative. Such case management directions are
not subject to appeal.
Rule 11. Monitoring and Compliance
(1) The court must monitor compliance with case management directions. In order
to do so, the court and the parties will use the fastest and most practicable means of
communication and appropriate means of modern technology.
(2) Parties and their legal representatives must inform the court promptly about the
steps undertaken and respond promptly to any request from the court to provide
information concerning compliance.
(3) A party may request that a competent authority transfer their proceedings to
another judge, when there is a failure on the part of a judge to carry out the general case
management duty.
(4) The parties may complain to relevant bodies for judicial conduct and discipline for
investigation of alleged judicial failure to manage the case in an appropriate manner.
The above rules deal with obligations in regard to the management and planning of
the proceedings. They specify that the court is responsible for active and effective case
management, but this is always in cooperation with the parties. The obligation is discharged
by various case management orders and activities and by continual monitoring by the court
to ascertain whether the parties, the lawyers and other participants in the proceedings
are carrying out their obligations. Active management of proceedings under the court’s
direction also includes the duty to consult the parties and, wherever possible, secure
their agreement on the form, content and timing of particular steps in the proceedings.
The court’s duty of active case management authorises judges to encourage the parties to
identify the real issues in dispute and to openly discuss with them the appropriate steps
and methods for dealing with these issues. A case management conference is meant for
consultations with the parties and their lawyers on such matters. In its case management
decisions, the court should, according to the proposed rules, always take account of the
nature, value and complexity of the particular proceedings, ensuring that procedures are
proportionate to the value and importance of the case.
The court’s duty of active case management is an important means to achieve the overall
goal of a fair and speedy proceeding. Finding a suitable form, length and organisational
structure of proceedings increases the prospect of a correct and fair result, either
by judgment or settlement, being achieved and it saves time and money. Arguably,

such a duty is in contrast with the traditional concept of the passive judge found in
some European jurisdictions. Recently, this traditional concept has been replaced by
procedural changes, which have given judges an active role in managing proceedings.
Such a development was one of the core features of the Woolf Reforms in England and
Wales. Active case management duties, under the concept of materielle Prozessleitung,
have long formed a part of German and Austrian law. A trend towards the incorporation
of active case management duties is also found in international procedural frameworks.
While the Storme Report did not contain specific rules on active case management,
such rules are explicitly dealt with in ALI-UNIDROIT Principle 14.
Case management duties may be carried out by a single judge, a number of judges
jointly, or, in some jurisdictions, by the President of the Court. The duty of active case
management is a continuing duty and as such it applies from the start of proceedings
until their conclusion.
A case management conference is the arena where the parties may exercise their
right to be heard, in particular regarding matters relevant for the organisation of the
proceedings. It is also a means to facilitate party cooperation and cooperation between
the parties and the judge. A case management conference can be a meeting with all
parties present or a distanceed meeting where the parties participate via any sort of tele-
or video technology, or through any other appropriate means of instant communication
permitted under the applicable court rules. In order to maintain the court’s neutrality
and to deal with the parties on equal footing, the court shall not allow one party to be
present if the opposite party communicates over, for instance, telephone or video. A
court may choose not to hold a case management conference, if it is not considered
necessary. For instance, to hold a case management conference may be deemed
superfluous in the light of the uncomplicated nature of the case, if the case is of low
value, if the parties have already agreed on core case management issues, or if such a
meeting lacks a clear objective.
The first case management conference should be held as soon as practically possible.
The court may at any case management conference direct orders necessary to manage
the case; a court may also be obliged to do so. If the case is sufficiently clear, the judge
may determine the case on its merits at the case management conference.
The power to actively manage cases is one that must necessarily be exercised by the
court either on its own initiative or on application of the parties; the former if the court
is to properly exercise its general case management duty on a continuing basis, the latter
if the parties are to properly exercise their duty to cooperate with the court in furthering
the general duty.
There are instances where the case management hearing will not be possible or desirable.
Exceptionally, case management decisions may need to be made in the absence of, and
without notice to, one of the parties i.e., where the provision of notice would tend to
frustrate the order sought or where it is not possible to give notice on grounds of urgency.
When the court issues a case management order without a hearing or on ex parte basis,
in order to protect the parties’ or the absent party’s right to receive due notice the court
shall schedule a hearing on notice to both parties at the first available date. In order

to ensure, however, that court and party resources are not expended contrary to the
general case management duty, the parties may inform the court if such a hearing is not
considered necessary.
Decisions on case management are not binding on the court: any such decision may be
modified or revoked. The parties may have a right to be heard before the court modifies
any prior order to a significant extent.
Different national systems have different rules on forms and names of case management
decisions. Less important case management decisions are not subject to appeal. For more
important case management decisions, it is preferable that no separate (interlocutory)
appeals are admissible, and that objections to such decisions can be made only within
the appeal against the final decision. However, some national jurisdictions allow
interlocutory appeals from the most important case management decisions (e.g., if the
court has excluded a party representative having held that the party was not properly
represented by the putative representative).
The parties will, ordinarily, comply with orders and directions voluntarily. Awareness
of possible sanctions may however increase party compliance, or at the least reduce the
prospect of non-compliance. In order to increase the effect of orders or directions, court
orders should specify the consequences of non-compliance. The court has to specify the
kind of sanction, for instance a fine, but is not obliged to specify the exact amount of
such a sanction.
Ideally, case management decisions, even if they only deal with technical matters such
as the scheduling and ordering of procedural actions, are taken in a cooperative fashion.
The court must consult the parties before an order or direction is made. Consultations
outside case management conferences shall normally be written, but should use the most
efficient technology. The court shall encourage the parties to agree case management
decisions, which means that the court has to take steps to prompt the parties to do so.
The parties should make a serious effort to reach agreement. In order to save time and
money, the parties must inform the court as soon as possible, if they agree on specific
issues of case management. Where parties do not agree case management decisions they
should, acting on their own initiative, inform the court of that fact.
As a general rule, the court should issue case management decisions in accordance
with any agreement reached by the parties. However, such an agreement is not formally
binding upon the court. The court may decide contrary to the parties’ agreement if that is
necessary to secure a fair, efficient, speedy and proportionate proceeding. In particular,
the court may decide contrary to the parties’ agreement, if it would tend to result in
disproportionate use of the court’s time and money. The court has a duty to decide
on its own motion, if the parties cannot agree on case management issues and such a
decision shall be taken in a fast and efficient manner. Pure case management decisions
(directions), in particular, if they are made on the basis of the parties’ agreement, should
not be subject to appeal.
The court must monitor party compliance with its orders or directions. For
communications related to case management, the court and the parties should avoid
time consuming methods of communication like registered post and use faster means,

such as central electronic filing systems which can partly automate monitoring and
review. If such systems are not available, the court and the parties may communicate by
informal means, such as by telephone, e-mail, etc.
A court may fail to carry out its case management duty effectively. This may occur, for
instance, where the court has failed to issue any necessary case management order or
if, due to its mismanagement of the case, the matter which is put before the court is not
resolved within a reasonable time. Indeed, in line with the principle of loyal cooperation,
the party or the parties should openly discuss the management issues with the court and
stimulate it to take action. Transfer of a case to another judge and, especially, complaints
to competent disciplinary bodies, are appropriate only if a court’s failure to adequately
manage the proceedings is of a more serious nature. It should be noted that in some
countries transferring cases may be difficult due to concepts of ‘natural jurisdiction’
and lack of competence by the court management to transfer cases (which, still, may be
inevitable if the judge is unable to continue its work e.g., due to sickness or other grounds).
4. DETERMINATION OF FACTS
Part 3 of the rules is devoted to the determination of facts.13 Five individual rules are
proposed:
Rule 12. Obligation to Present Facts and Evidence
(1) Parties are under a duty to identify the matter in dispute as early as possible, taking
into consideration the views of the other party, if these have become known to them.
(2) Parties are under the duty to present relevant facts and identify evidence in a diligent
and complete way, ordinarily in their earliest statements of the case. Later presentation
of facts and evidence has to be justified.
(3) Lawyers must advise their clients about these duties upon their appointment and
assist them in identifying the matter in dispute as early as possible.
Rule 13. Role of the Court
(1) The court shall ordinarily consider only facts and evidence introduced by the parties.
However, it may consider facts that appear from the case file or take evidence on its
own motion, if it deems that, under the circumstances, it is necessary to the proper
adjudication of the case.
(2) The court may amend or alter its orders regarding the taking of evidence.
Rule 14. Right to Disregard Belated Facts and Evidence
(1) The court may at its discretion disregard facts and evidence that are introduced later
than the earliest possible opportunity for their introduction.
(2) Where a party presents belated facts and evidence they must bear their opponent’s
costs incurred as a result thereof, regardless of the outcome of the case.
13 This part of the rules was originally drafted by Bartosz Karolczyk.

(3) New facts and evidence submitted without undue delay in response to matters raised
by the other party shall not be considered belated.
Rule 15. Consequences of a Failure to Introduce Facts and Evidence
(1) If a party fails to substantiate its claim in time, the court may, in accordance with
the applicable procedural rules, consider the claim as withdrawn or dismiss the case on
procedural grounds.
(2) If a party fails to respond to the opposing party’s factual allegations or evidence in
time, the court may, in accordance with applicable procedural rules:
(i) issue a default judgment;
(ii) consider that the facts have been admitted wholly or partially; or
(iii) continue the proceedings and decide on the merits based on the available
facts and evidence.
Rule 16. Closing the Proceedings
(1) As soon as the court is satisfied that both parties have had a reasonable opportunity
to present their case, it will close the proceedings, after which no further submissions,
arguments or evidence are allowed, unless, in exceptional circumstances such are
requested and authorised by the court.
(2) The date of closing shall be fixed as early as possible, subject to later necessary
amendments.
The presentation of facts and evidence is primarily a duty of the parties and should be
effected as early as possible and preferably before the action is commenced during the
pre-action phase. Facts and evidence presented after the early stages of proceedings are
only allowed if justified.
Apart from the parties, the court has certain responsibilities regarding facts and evidence:
the proposed rules provide that the court may consider facts that appear in the case file,
even though they have not been used by the parties to build their argument, or may take
evidence on its own motion, if this is necessary for the proper adjudication of the case. This
position follows the tradition, common to many European jurisdictions, of allowing the court
discretion to actively intervene in factual and evidentiary issues in order to eliminate injustice
or an abuse of judicial proceedings. In the understanding of the drafters, these powers will
be used only exceptionally. Thereafter, the court can only exceptionally request or permit
additional facts and evidence necessary to clarify the respective positions of the parties.
The obligation to identify the matter in dispute as early as possible is an important part
of the parties’ obligation to contribute to proper case management. What is considered
to be a part of that obligation varies in different legal traditions. For some traditions,
it may imply the need to specify legal arguments. However, this part of the Rules deals
mainly with the need to specify the facts of the dispute and evidence, which supports
relevant factual statements made by the parties.
In civil litigation, the court does not search for facts. Instead, facts are submitted by
the parties. However, their freedom in that regard cannot be unlimited because the

incentives to obstruct the proceedings are too strong. In addition, while accurate fact-
finding is an ideal we should strive to achieve, it is not itself the goal of procedure.
Indeed, procedure must also realise other values, in particular speed. Thus, parties
are expected to present facts and identify evidence in a timely, diligent and complete
fashion, so that the factual and evidentiary matters can be crystallised quickly and at an
early stage in the proceedings.
To summarise, as fact-finding and evidence evaluation are within the exclusive domain
of the court, it is only fitting that the parties must meet a certain standard of care in the
presentation of procedural material to the court. In addition, assertions of fact should
take into consideration the opposing views, if they were made known to the pleader. The
assumption is that this should further the speedy and accurate determination of the dispute.
Lawyers are expected to advise their clients about these duties, not least because failing to
comply with them (either by the lawyer or the client) may give rise to negative consequences
for the client. The participation of lawyers in preparing statements of claim is therefore vital.
Facts or evidence may be presented at a late stage, but the burden is on the pleader to
justify the late presentation. The ultimate decision whether to admit belated facts or
evidence is vested with the court.
As mentioned above, in civil litigation, the court generally does not search for facts
on its own initiative, as that constitutes the exclusive domain of the parties pursuant
to classic principles of procedure. Therefore, the court will in principle consider only
facts and evidence introduced by the parties. Within these boundaries, however, the
court can consider and rely on a material fact, if such fact appears from the material the
parties have already submitted, but which is not asserted by either party. This is self-
explanatory: within the material provided by the parties the court must be allowed to
take note of facts it considers material to decide the case. Still, the court should draw the
parties’ attention to such facts (cf. Rule 18).
In addition, the court may take evidence on its own motion if it deems that, under
the circumstances, it is necessary to the proper adjudication of the case. This rule,
based on judicial discretion, is common to many European countries and thus a part
of the European legal tradition. It operates as a reasonable check in order to eliminate,
in proper cases, judicial injustice or abuse of process by conducting fabricated
proceedings. This option is not meant to be used on a broader scale. The court may
need to take evidence on its own motion in matters that are important from a broader
perspective e.g., where the public interest is at stake. For instance, it would typically
occur if the case is about the loss of employment, loss of housing, or if it raises
important non-economic interests like environmental issues. Another example could
be if the party lacks competence or resources to propose or present the evidence. In
cases where only the parties’ interests are at stake, the right to take evidence ex officio
should only be used exceptionally. As this right is optional on the part of the court,
parties and their lawyers may not rely upon its existence to justify or excuse a failure
on their part to secure relevant evidence.
Finally, and also in line with many European legal systems, until the judgment has been
rendered, the court can amend or alter its orders regarding taking of evidence.

Several types of sanctions are possible when the suggested rules are not observed. A
powerful sanction is the court being allowed to disregard belated facts or evidence
(preclusion). Thus, falling below a defined standard of care in conducting litigation
creates the risk of losing the case. While this is a strong sanction, it is also relatively
straightforward and creates a powerful incentive for the parties (provided they know
about it) and lawyers to comply with Rule 12. The rule is based on judicial discretion
and is indeed very broad. It does not say when the court must disregard belated facts
or evidence, neither does it say when the court must admit them due to exceptional or
exculpatory circumstances. Obviously, the court’s decision should be made known to
the parties prior to issuing the judgment and should be justified. Consequently, this will
require the court to resort to some sort of balancing test. This approach is also in line
with the concept of the judge being the manager of the proceedings.
The court may at its discretion disregard facts and evidence that are introduced later
than the earliest possible opportunity for their introduction. The earliest possible
opportunity should be determined by two quintessential elements i.e., knowledge of
evidence and of the disputed nature of a material fact. If a material fact is, thus, disputed
and the party has knowledge of relevant evidence, it should identify that evidence to the
court and the other party in order to support its position towards a disputed material
fact. This is a reflection of the ‘cards on the table’ approach introduced in Rule 12.
New facts and evidence submitted without undue delay in response to the other party’s
statements and submissions are not to be considered belated. This provision reflects the
inherent dynamic that exists within civil litigation.
The final section of Rule 14 assumes that belated material has been admitted or considered
by the court, despite the lack of exculpatory or exceptional circumstances. Therefore, costs
incurred by the other party as a consequence of such belated submission, should be paid
by the party introducing the belated material, regardless of the outcome of the case.
Rule 15 authorises the court to sanction a party that has shown a considerable disregard
of its procedural duties. The first section allows the court to dismiss, on procedural
grounds, claims which are not sufficiently substantiated. This sanction is not automatic,
and depends on judicial discretion and on any applicable provisions that define time
periods. It is also up to the court to decide, if no special rules are provided, whether it
will advise the claimant about its intention to consider the claim as withdrawn and allow
to cure the deficiencies within a specific time. If the claim is considered to have been
withdrawn, it may be resubmitted later.
The second section of Rule 15 is a summary expression of rules traditionally found in
many European countries. As in many other rules, the course of action is left to the
applicable procedural rules or, lacking further regulation, to the court’s judgment.
Thus, for instance, any lack of response to the statement of claim may result in a
default judgment (i.e., the presumption that the defendant does not contest the claim
arises). Secondly, any lack of response to specific facts may result in the conclusion
being drawn that they have been admitted (of which the party will presumably learn
from the judgment). Thirdly, the court may decide to continue with the process. In
all such cases, the court will issue a decision on the merits which will finally dispose
of the case.

Rule 16 regulates closing the proceedings and, as such, it requires the court to close the
proceeding after having heard the parties on the merits. This rule incorporates a classic
European rule that is currently considered to be a universal element of procedure i.e.,
that the court should conclude the proceedings once the parties have had a reasonable
opportunity to make their respective cases (by alleging facts and presenting evidence).
As the Rules implement the idea of judicial case management, the date on which the
proceedings will be closed i.e., the trial or trial phase of the proceedings will have
finished, will have been identified early in the case management process. Thus, any
possible element of surprise in this respect will be eliminated.
5. FINDINGS OF LAW
Part 4 of our Rules contains 4 rules:14
Rule 17. Obligation to Submit Relevant Legal Arguments
(1) Parties must present their legal arguments in reasonable detail. Where a party is not
represented by a lawyer, the court shall assist the party to identify and clarify its legal
arguments.
(2) Legal arguments should ordinarily be presented in the initial phase of the proceedings.
Rule 18. Rights and Duties of the Court Regarding Legal Arguments
(1) The court is responsible for determining the correct legal basis for its decision. It
must evaluate parties’ legal contentions appropriately. It may consider points of law on
its own initiative if this is necessary for correct decision making.
(2) The court shall give each party a reasonable opportunity to submit relevant legal
arguments, and to respond to legal arguments presented by the opposing party.
(3) Generally, no legal rule or principle may be invoked in the judgment on the merits
unless all parties have had a reasonable opportunity to be heard thereon.
Rule 19. Right to Change or Amend Legal Arguments
(1) Parties may change or amend their legal arguments during the proceedings.
(2) After the proceedings are closed, legal arguments may be changed or amended only
when authorised by the court and only if such change or amendment does not raise the
need to introduce new facts or evidence.
Rule 20. Consequences of a Failure to Provide Legal Arguments
If a party is represented by a lawyer, the court may impose sanctions for failure to plead
law or respond to legal allegations of the other party. These sanctions may include the
dismissal of a statement of case that does not contain sufficiently detailed legal arguments.
The subject of Part 4 is findings of law. The rules provide that both the court and the
parties should contribute to the determination of the correct legal basis for decision-
14 This part of the rules was originally drafted by Emmanuel Jeuland.

making. Parties have an obligation to present contentions of law, something which must
be done in reasonable detail. The court may consider points of law on its own initiative
if this is necessary for correct decision-making.
In most European systems of civil procedure, the parties have both the right and the
obligation to present their legal arguments. The level to which this is necessary is
different in different jurisdictions and may also be different in different types of case
(e.g., it may be stronger in commercial than family cases). Our approach is consistent
with the trends, which in principle require the parties to present their contentions of law
(and not to treat that as an optional element of the parties’ statements and submissions).
However, this does not exclude differentiated approaches for substantially different civil
proceedings. What is ‘reasonable detail’ may depend on various circumstances e.g.,
whether the parties are represented by lawyers, or whether in particular cases the court
has increased inquisitorial or investigative powers.
In any case, our rules do not dispense with the court’s duty to know the law, nor is
it inconsistent with the right and obligation of the judge to evaluate the correctness
of the legal basis of the claim, as is presented by the parties and to consider points
of law on its own motion. However, it is generally not sufficient to limit the parties’
submissions merely to the bare presentation of facts on the expectation that the court
will simply and passively identify the right legal provisions and apply them to the
present case. Consequently, the old approach still influential in some jurisdictions,
known under Latin saying ‘da mihi factum, dabo tibi ius’, is not supported in our rules,
at least when parties are represented by qualified lawyers. However, where parties are
not represented by lawyers, the court is obliged to act in a more active manner and to
assist the parties in identifying and clarifying their legal arguments.
It seems to be universally accepted that the ultimate responsibility for the correct
application of law is that of the court. Views differ regarding the court’s right and duty
to apply the law on its own motion or to apply a different law than the one pleaded by
the parties. In Rule 18, the approach present in many European countries, known as
‘iura novit curia’ (the court needs to know the law and apply it to the case) is generally
recognised. Namely, although (in contrast with the extreme versions of ‘iura novit curia’)
the parties share with the court the responsibility for establishing the correct legal basis of
the dispute, it is ultimately for the court to evaluate their legal contentions. In principle,
the court must evaluate all of the parties’ legal arguments that go to the issues in dispute
i.e., those legal arguments that may have an impact on the court’s decision. European
legal systems differ in the form and scope of evaluation, but most systems require the
evaluation of legal arguments in the grounds of the judgment. What is ‘appropriate’
evaluation must be understood according to the standards and requirements of the
individual legal system. In any case, the court’s obligation to evaluate legal arguments
raised by the parties must not be used as a basis for groundless appeals, the aim of which
is to protract the proceedings.
If law is not pleaded sufficiently, or if an incorrect law is pleaded, the court has the right
and duty to consider some legal arguments on its own initiative and apply them to the
facts of the case, if this is necessary to arrive at a correct decision. The judicial obligation
to ascertain adequate legal arguments and apply them ex officio is not absolute. If parties

are passive and have failed to plead the law in sufficient detail, they have failed to comply
with their procedural obligations, and as such may be subject to sanctions if they were
represented by lawyers. Appropriate sanctions would be the summary rejection of
parties’ claims and submissions.
Irrespective of the source of legal arguments (whether they were presented by the
parties or introduced by the court), parties should be afforded an adequate opportunity
to respond to them. The right to be heard should also be preserved in respect to legal
arguments. No ‘surprise judgments’ (Überraschungsurteile – judgments on the merits
that rest on an entirely new legal basis than the one reasonably expected and pleaded by
the parties) may be issued.
As legal arguments presented by the parties generally do not bind the judge, there
is more flexibility regarding any amendment of legal arguments in comparison with
changes in factual pleading or presentation of new facts and evidence. Parties may
freely change or amend their contentions of law throughout the proceedings, provided
that such changes do not require the need to introduce new facts or evidence at a stage
in which this is no more permitted. However, after the proceedings have closed, the
parties’ right to introduce new legal arguments is limited, as new contentions of law
may delay the proceedings and cause additional costs. Therefore, after the proceedings
have closed, the parties may change or amend their contentions of law only in so far
as they are authorised to do so by the court, and only if that does not raise the need to
introduce new facts or evidence.
It is to be expected that parties represented by lawyers present their legal arguments
more extensively and accurately. It is the lawyers’ role to assist the parties to become
aware of their legal rights, and to present their views about those rights to the
court. Therefore, the consequences (sanctions) for the lack of legal arguments may,
particularly, be imposed on parties represented by lawyers. This rule mentions only
one of the express sanctions: the power of the court to reject a statement of claim or
other submission (e. g., an appeal) in case of a failure to plead law. If the law permits
parties to appear unrepresented (which mostly happens in socially sensitive cases
and cases of low value), summary dismissal for failure to plead the law is generally
inappropriate. This rule does not contain the obligation of the court to reject claims
and submissions automatically if represented parties fail to plead the law adequately
(see the wording ‘may impose’, ‘may include’). It is within judicial discretion to
undertake other steps prior to this ultimate sanction. For instance, the court may fix
a time limit to supplement submissions, specifying when it does so that if sufficient
legal arguments are not submitted in time they will be dismissed.
6. CONSENSUAL DISPUTE RESOLUTION

The final part of our rules i.e., Part 5, contains 6 rules:15
Rule 21. Obligation to Cooperate in Dispute Settlement Attempts
15 This part of the rules was originally drafted by Alan Uzelac and Elisabetta Silvestri.

(1) Parties must co-operate in actively seeking to resolve their dispute consensually,
both before and after proceedings are initiated.
(2) Parties must take all reasonable opportunities to settle their dispute and, where that
is not possible, to reduce the number of contested issues prior to adjudication.
Rule 22. Specific Obligations of the Parties in the Pre-Action Phase
(1) In the pre-action phase, the parties shall:
(i) exchange sufficient and concise details of their potential claim and defence;
(ii) clarify and, wherever possible, narrow the legal and factual issues in dispute;
(iii) sufficiently identify relevant evidence.
(2) The parties should also consider:
(i) exchanging settlement proposals or proposals for the use of appropriate
dispute resolution methods; and
(ii) taking any other reasonable and proportionate steps to further the general
duty of promoting consensual dispute resolution.
Rule 23. Obligations of the Lawyers Regarding the Use of ADR
(1) Lawyers must inform the parties about the availability of alternative dispute
resolution methods, ensure that they use any mandatory method and encourage the
use of other appropriate methods, and assist the parties in selecting the most suitable
method.
(2) To the extent that lawyers participate in any alternative dispute resolution proceedings,
they must act in good faith and not seek to abuse or obstruct those proceedings.
Rule 24. Duty to Facilitate Settlement Attempts and Promote Effective Use of ADR
(1) The court must facilitate settlement at any stage of the proceedings. If necessary for
effective dispute resolution, it may order the parties to appear in person.
(2) Consensual dispute resolution must be specifically considered in the preparatory
stage of proceedings and at case management conferences.
(3) Judges must inform the parties about the availability of court-annexed and out-of-
court alternative dispute resolution methods whenever these are available. They may
suggest or recommend the use of specific ADR methods.
(4) A judge may participate in settlement attempts, assist the parties in reaching a
consensual solution and contribute to the proper drafting and transformation of a
settlement agreement into a court-approved form such that it is enforceable.
Rule 25. Order to Attempt Settlement and Referral to ADR proceedings
(1) Subject to rules provided by special legislation, the court may in particular cases
order the parties to:
(i) undertake one or more steps provided in Rule 22;

(ii) attend one or more information sessions about the use of alternative
dispute resolution;
(iii) participate in one or more alternative dispute resolution schemes, either
alone or assisted by lawyers.
(2) The court may stay proceedings or reject parties’ submissions until there has been
compliance with any such order.
(3) If the law provides for a set of mandatory steps aimed at consensual dispute resolution
that have to be exhausted prior to court proceedings, the court shall refer the parties
to undertake such steps and stay or discontinue the proceedings. Proceedings may be
resumed or reinitiated after the parties have undertaken sufficient and appropriate steps
prescribed by mandatory legislation.
Rule 26. Sanctions for Breach of Obligation to Negotiate and Make Use of ADR
If one or more parties or their lawyers fail to cooperate in consensual dispute resolution,
or do not discharge these obligations in good faith, the court may impose, on the parties
and/or their lawyers:
(i) cost sanctions;
(ii) damages caused by delay and procedural abuse;
(iii) increased court fees;
(iv) fines;
(v) report the conduct to a professional organization.
Part 5 deals with the duty to promote consensual dispute resolution. The main rule is
that parties must cooperate actively with each other in seeking to resolve their dispute
consensually, both before and after proceedings have begun. The rules do not discuss
specific types of consensual dispute resolution, since this was outside the mandate of
the working group.
Rule 21 expresses the general approach of encouraging consensual dispute resolution.
This obligation is applicable at all stages of proceedings. Emphasis is, however, put on
early resolution which could make litigation unnecessary. It is expected that parties will
not bring their claims before courts until they have exhausted other available dispute
resolution options from direct negotiations to mediation and various other forms of
ADR. The underlying assumption is that solutions which are consensual, voluntary and
autonomous offer a simpler, faster and less expensive alternative to solutions imposed
in a mandatory court procedure.
Autonomous methods of dispute resolution, in particular those that result in consensually
accepted outcomes, enhance access to justice, offering another fair, efficient, speedy
and proportionate way to resolve disputes. Even if the parties do not settle their case
in its entirety, they may narrow the open issues and focus their efforts in subsequent
litigation. The fulfilment of this obligation also contributes to the more economical,
proportionate, use of state judiciary and its better functioning.

The obligation to exhaust all available means alternative to civil court litigation is not
absolute. Only those means that are reasonable, and that offer a fair chance of success
have to be considered. Rule 21 sets the statement of principle, providing the obligation
at a general level. The scope of this general obligation is further specified and explained
in the rules that follow, starting with the period before proceedings are initiated and
continuing with obligations in all stages after action is brought.
As the early resolution of disputes is to be preferred to litigation, it is essential that
parties take active steps to explore such a possibility before commencing any litigation.
The common purpose of these steps is to facilitate consensual settlement of claims,
either directly, or by agreement on the use of some form of ADR. Where a settlement
is not achieved, these steps may help in better management of the subsequent litigation
proceedings.
Rule 22 lists two groups of steps that parties should in principle take or, at least seriously
consider, in the earliest stages of their dispute and before resorting to any formal dispute
resolution process. Therefore, the notion of ‘pre-action phase’ refers to the period after
the dispute has arisen, but before the formal initiation of civil proceedings.
The three steps that have to be made are connected with the identification of the
potential claims and defences, and with the clarification of legal and factual grounds
upon which such claims are founded, as well as with the sufficient identification
of the relevant evidence. Only a reasonably detailed presentation of the parties’
eventual claims, and the identification of arguments and facts and evidence
supporting them, can enable both parties to evaluate the situation, clarify all options
and engage in settlement discussions. This pre-action obligation is also carried on,
in a more stringent form, after proceedings are issued. The court may order parties
who failed to do it before proceedings were issued to undertake one or more of the
steps specified in Rule 22.
While the obligation to identify the claims and the main legal and factual arguments
and evidence upon which the claims are based applies to all cases, optional steps include
exchange of relevant evidence (based on agreement between the parties or applicable
rules on disclosure) and exchange of proposals for settlement and/or proposals to use a
particular form of dispute resolution. Any other reasonable or proportionate steps can
also be considered with a view to reaching a settlement regarding outstanding claims
and disputes.
The consequences of a failure to discharge specific obligations arising under our rules
are subject to regulation by national legislation. In particular, a plaintiff who initiates
civil proceedings without exchanging sufficient information on a prospective claim
and its basis, with the defendant, may be subject to cost sanctions. The court may stay
such proceedings or dismiss a parties’ submissions (statement of claim or defence)
until certain mandatory steps are complied with. The fulfilment of such an obligation
may in certain cases also be a legal requirement for the admissibility of the subsequent
civil action.
As a part of their general obligation to assist the parties in observing their procedural
obligations, lawyers need to inform the parties about available ADR options (including

mediation), encourage them to use them where appropriate and help them in the choice
of the most appropriate method.
The use of ADR as a cost-effective and quick method of dispute resolution that
enhances parties’ access to justice is possible only if parties understand the respective
ADR procedure and know how to participate in it. Generally, ADR methods do not
require mandatory legal representation, and some of them are sufficiently simple so
that parties can use them without lawyers. However, more complex matters may make
the active participation of lawyers in one or more stages of the ADR proceedings
indispensable. Lawyers should not, however, take exclusive control of the ADR
proceedings. For the purpose of reaching settlements, it may be necessary that parties
appear in person in settlement proceedings. In any case, effective ADR process
requires that lawyers act in good faith. They should help parties explore and use all the
potential of ADR, avoiding abuse and obstruction of these proceedings. If the latter
occurs, lawyers may be subject to sanctions (either by fines, direct cost sanctions, or
disciplinary liability).
Rule 24 makes a distinction between the court as an institution and the court as
a tribunal i.e., as the judge(s) who deal with the case at hand. The facilitation of
settlements, both in judicial and in extrajudicial proceedings (and in any combination
of the two) may be a matter of broader projects that include institutional support
(e.g., the organisation of settlement weeks and promotional campaigns for the use
of particular ADR methods). On the other hand, the tribunal (sole judge or a panel
of judges) seized with the case has a specific obligation to promote and stimulate
settlement in the case at hand.
In our rules concerning the consensual resolution of disputes, the word ‘settlement’ is
used in its general meaning, in the light of the fact that in a few legal systems a variety
of terms are used to designate different forms of agreement by which a dispute can be
resolved amicably, in court or out of court.
As settlement is particularly beneficial in the early stages of a dispute, this obligation
particularly targets the preparatory stage of the proceedings and the case management
conferences. In order to enhance the likelihood of settlement and broaden its scope,
the parties may be ordered to appear in person, so that all vital issues can be discussed
and agreed during settlement negotiations, without the need to postpone the process in
order to obtain authorisation. The obligation, in respect of pending litigation, includes
providing information about available in- and out-of-court ADR options. However, the
tribunal seized with the case can go a step further – it may, assess all the circumstances,
suggest or recommend the use of specific method. This can either be a court-annexed
dispute resolution scheme, or some extrajudicial ADR method. However, any suggestion
or recommendation is not binding on the parties.
Settlement attempts may be undertaken with the participation and facilitation of
judges, either those that conduct the litigation or other judges that participate in court-
annexed ADR schemes. The exact scope of judicial participation and the active role of
judges in settlement attempts can vary under national rules. But, no matter whether
settlement is the product of the process in which the judge participated or not, judges

have a right to contribute to the proper drafting of the reached settlement agreement.
The main purpose of the judicial involvement is to ensure that the settlement reached be
enforceable. In many European countries, the involvement of judges in formulation of
settlements is the requirement for recognition of settlement agreements as enforceable
instruments that may be subject to direct enforcement just as final and enforceable
judicial decisions, without the need to resort to litigation in case of refusal to observe
the terms of such ‘judicial’ settlement (Prozessvergleich). The specific process in which
relevant requirements are controlled (typically, compatibility with public policy and
the rules on capacity to conclude a settlement) and the certification of the settlement
agreement as an immediately enforceable instrument, is known as ‘homologation’ of
settlement agreements.
While participating in settlement attempts, judges must always pay attention to the need
to ensure that they are and remain independent and impartial. If, at any point, a judge’s
independence or impartiality is jeopardized, a replacement judge must be appointed. In
general, if a settlement cannot be reached, the judges who have participated in specific
ADR schemes as mediators (e.g., in the court-annexed mediation schemes) cannot be
appointed to hear the same dispute in litigation.
Rule 25 goes one step further than Rule 24 and authorises the court to issue mandatory
orders instructing the parties to undertake certain defined steps, attend one or more
ADR information sessions or participate in one or more ADR schemes. Under
paragraph 2 of this Rule, if the court order is not complied with, the sanction is either
a stay of the proceedings or the rejection of a relevant submission (e.g., plaintiff ’s
statement of claim). Other sanctions (e.g., cost sanctions) are not excluded. However,
the court shall never compel or coerce settlement among the parties. The mandatory
use of ADR shall not be a definite obstacle to access to court. Court-ordered or
mandatory referral to ADR proceedings can prevent the parties from initiating or
continuing litigation only for a defined and appropriate period of time (e.g., the
case may be stayed for three months pending mandatory settlement negotiations).
An exception to this is the situation in which the fulfilment of legal requirements –
undertaking of steps, etc. – is exclusively within the control of a party, in which case a
party can be prevented from commencing or continuing litigation until it discharges
its obligation. While deciding on compulsory steps, one should pay attention to the
need to ensure that one or both parties do not lose their substantive rights due to rules
on prescription (statute of limitations) or preclusion.
Rule 25 is drafted in a narrower way than the Rule 24. While Rule 24, on the facilitation
of settlement attempts, applies directly and to virtually all types of cases, Rule 25, on
orders and mandatory referrals to ADR, only applies ‘subject to rules provided by
special legislation’ and ‘in particular cases’. Therefore, mandatory settlement attempts
and referrals to ADR are appropriate only in special situations, and subject to judicial
discretion.
The right of the member states to make the use of mediation compulsory or subject
to incentives or sanctions is asserted in the EU Mediation Directive, provided that
obligations and limitations of such mandatory process do not prevent parties from
exercising their right of access to the judicial system. The provisions of this Rule are

consistent with this requirement, and in fact they go below the potential maximum:
no blanket and automatic use of mandatory mediation or other ADR proceedings is
provided herein.
Once the parties undertake the steps required by mandatory rules of law, they are in
principle free to resume or reinitiate the proceedings. However, attention has to be paid
to prescription periods and statute of limitations.
As in the case of other procedural obligations, a separate rule is devoted to sanctions.
The rules emphasise that cooperation in attempts to settle cases voluntarily, just as
cooperation in the use of ADR methods, is a procedural obligation and not just an
option or an unenforceable right. The breach of this obligation is subject to sanctions.
While some specific consequences of the breach of preceding rules on the use of ADR
have already been defined, Rule 26 contains a catalogue of sanctions that may be
imposed at the court’s discretion. These sanctions may be imposed either on the parties,
on their lawyers or on both parties and their lawyers, depending on the reasons and
responsibility for the breach. Exceptions to this are those sanctions that the court is not
authorised to issue on its own, such as disciplinary sanctions that can only be imposed
by respective professional organisations. For such sanctions to be imposed, the court
has the right and obligation to inform the bar association or a similar organisation.
The same sanctions apply if cooperation in consensual dispute resolution and ADR
procedures is discharged in bad faith.
7. CONCLUSION
As I have indicated in the introduction, the draft rules on the obligations of the judge
and the parties and their lawyers in civil litigation, discussed in the present contribution,
were developed within the context of a project initiated by the European Law Institute
and UNIDROIT. It should, however, be remembered that these draft rules have not
been sanctioned by either one of the two institutions yet. The draft rules will, however,
be used in drafting a complete set of Rules of European Civil Procedure which will
cover many additional aspects of civil litigation and which hopefully will be published
in 2020. In the process of drafting these consolidated rules, the draft rules on obligations
may be amended where needed. Nevertheless, since the draft rules on obligations are
the result of a joint project of a group of leading experts in civil procedure from several
member states of the European Union and also reflect best European practices in civil
procedure, they may be worth the attention of an international audience. The working
group feels that the rules presented here reflect a modern approach to civil litigation,
which combines efficiency with quality, and which, if adopted in practice, would have
the potential of greatly improving existing practices in a great many member states of
the European Union. It should be noted that I have stressed the word potential in the
previous sentence since it should always be remembered that rules alone, even rules of
the highest quality, cannot change practice if unaccompanied by motivated judges and
legal practitioners who will apply the rules according to the overriding objective stated
in the first part of our rules. Without committed judges and legal practitioners who
make sure that the parties cooperate in the manner as indicated in our rules, the best
rules will be a failure. Obviously, committed judges and practitioners do not exist in

abundant numbers in court systems that are overburdened and lacking resources, and
the commitment of all can only be expected if sufficient training and time for reflection
are offered while the new rules are being implemented. Unfortunately, in many
jurisdictions problems exist concerning for example caseloads and the financing of the
court system. Obviously, these problems need to be addressed first when introducing
reforms aimed at best European practices in civil litigation. It is the conviction of the
author of the present contribution that when indeed these problems are addressed, the
suggested rules can serve as a major improvement of existing civil procedural practices
in Europe and beyond.

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ARTICLES

Access to Justice in Eastern Europe,

C H (Remco) van Rhee ‘Towards

TOWARDS HARMONISED EUROPEAN RULES

C.H. (Remco) van Rhee

Summary: 1. Introduction – 2. General Part: Overriding Objective – 3. Management of

6 ACCESS TO JUSTICE IN EASTERN EUROPE, ISSUE NO. 1(6)/2020

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6 ALI/UNIDROIT, Principles of Transnational Civil Procedure (CUP 2006).

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3. MANAGEMENT OF THE PROCEDURE

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13 This part of the rules was originally drafted by Bartosz Karolczyk.

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14 This part of the rules was originally drafted by Emmanuel Jeuland.

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6. CONSENSUAL DISPUTE RESOLUTION

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