ELI-UNIDROIT Model European Rules of Civil Procedure

Summary

This project was a cooperative venture of ELI and UNIDROIT. It builded upon an instrument produced jointly by the ALI and UNIDROIT, Principles of Transnational Civil Procedure, and aimed at the regional development of those Principles.

Background

This Project was a cooperative venture of ELI and UNIDROIT. It built upon an instrument produced jointly by the ALI (American Law Institute) and UNIDROIT, Principles of Transnational Civil Procedure, and aimed at the regional development of those Principles.

In 2004, the ALI and UNIDROIT adopted and jointly published the Principles of Transnational Civil Procedure. The aim of the work was to reduce uncertainty for parties litigating in unfamiliar surroundings and promote fairness in judicial proceedings through the development of a model universal civil procedural code. The Principles, developed from a universal perspective, were accompanied by a set of Rules of Transnational Civil Procedure, which were not formally adopted by either UNIDROIT or the ALI, but constituted the Reporters’ model implementation of the Principles, providing greater detail and illustrating how they might be developed. The Rules were to be considered either for adoption or for further adaptation in various legal systems and along with the Principles can be considered as a ‘model for reform in domestic legislation’.

On 18–19 October 2013, the ELI and UNIDROIT held their 1st exploratory workshop in Vienna (Austria), which aimed at an initial analysis of a series of different topics, ranging from service of process to enforcement, with a view to identifying the most promising issues and the most appropriate methodological approach for the project. It was attended by over 75 participants from different jurisdictions, representing various legal professions: lawyers; judges; and academics. For more information about the workshop, click here.

Following that, in February 2014, the ELI Council approved the project and the cooperation was formalised by a Memorandum of Understanding.

ELI-UNIDROIT Cooperation

ELI and UNIDROIT cooperation aimed at adapting the ALI-UNIDROIT Principles from a European perspective in order to develop European Rules of Civil Procedure. This work takes as its starting point the 2004 Principles and aim to develop them in the light of: (a) the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union; (b) the wider acquis of binding EU law; (c) common traditions in the European countries; (d) the Storme Commission’s work; and (e) other pertinent European sources.

Drafting the Rules and their accompanying Commentary was entrusted to several Working Groups (WGs), each of which was asked to develop regional rules for the main topics covered by the ALI/UNIDROIT Principles. Additionally, the Steering Committee decided to develop rules on appellate proceedings. Eight Working Groups were thus established: in chronological order, ‘Access to information and evidence’; ‘Provisional and protective measures’; ‘Service of documents and due notice of proceedings’; ‘Lis pendens and res judicata’; ‘Obligations of the parties and lawyers’; ‘Parties and collective Redress’; ‘Judgments’; ‘Costs’; and ‘Appeals’.  In order to ensure that the project functioned efficiently and to enable members of those Working Groups that started working in the initial waves of the project to join further Groups and lend their experience to them, from 2014 to 2019, the Working Groups worked in successive waves. Each Group was representative of a wide variety of different European legal traditions.

The Working Groups were asked to prepare draft Rules and supporting comments. Drafts were considered at Annual Plenary Meetings of the Steering Committee and the Working Groups’ Reporters and Members, which were hosted by the two sponsoring organisations.

Finally, an overarching ‘Structure Group’ was established with the task to consolidate the Working Groups’ texts, to oversee the framework and overall structure of the ultimate Rules and Commentary, and to ensure coherence and avoid gaps where aspects might not be covered by the designated Working Groups. It was also asked to produce a French translation of the Rules, in order to ensure that parallel texts were available.

A number of Intergovernmental Organisations (Hague Conference on Private International Law (HCCH)), European Institutions (the European Commission, the European Parliament (JURI Committee), the Court of Justice of the European Union (CJEU)), Professional Associations (the Association for International Arbitration (AIA), the Council of Bars and Law Societies of Europe (CCBE), the Council of the Notariats of the European Union (CNUE), the European Network of the Councils of the Judiciary (ENCJ), the International Bar Association (IBA), the Union Internationale des Avocats (UIA), the Union international des huissiers de justice (International Union of Judicial Officers) (UIHJ)) and the Research Institutions (the International Association of Procedural Law and the Max-Planck Institute of Luxembourg for International, European and Regulatory Procedural Law) participate in the project in a role of Observers. The ELI-UNIDROIT joint venture has been also supported by the work of Advisers, renowned experts in the field of civil procedure.

ELI-UNIDROIT and EU Institutions

Since its start, the project has attracted the attention of numerous organisations, which joined it as Observers. It has, however, also attracted interest of EU institutions, such as the European Parliament and the European Commission. Some of the project-related events (see ELI Annual Conference 2015, Conference in Trier (November 2015 and 2018), and the Joint Meeting in Vienna (November 2016)) were attended by the representatives of the European Commission and the European Parliament.

In 2015, the project was referred to in a Working Document (PE-572.853) prepared by the Committee on Legal Affairs of the European Parliament, in the context of discussing the scope of the European Union's legislative competence in the field of civil procedural law. This was later reflected also in the Motion  for a Resolution in 2017.

In 2016, the ELI-UNIDROIT joint venture was mentioned in the in-depth analysis on 'Harmonized Rules and Minimum Standards in the European Law of Civil Procedure' published by the Policy Department for Citizens’ Rights and Constitutional Affairs of the European Parliament.

In January 2017, the European Parliament's Legal Affairs Committee published an in-depth analysis titled 'The European Law Institute/UNIDROIT Civil Procedure project as a Soft Law Tool to Resolve Conflicts of Law'.

In June 2017, the project was referred to in the Report of the European Parliament’s Committee on Legal Affairs, which was submitted to the Commission on common minimum standards of civil procedure in the EU. In the motion for a European Parliament Resolution, the importance of the adoption of common minimum standards of civil procedure are emphasised.

Outcome

The two organisations worked together in a bid to elaborate the Rules that could constitute a frame of reference for policy makers both at European and national levels. Most importantly, the Team succeeded in striking a balance between the generality and specificity of the Rules, ensuring that they are general enough to be acceptable for all Member States, but at the same time specific enough to promote common standards that allow for an increase of mutual trust. 

The Rules have a potential to influence European civil procedure law and have long been eagerly awaited by key decision-making organisations, such as the European Parliament. With these Model Rules, the ELI and UNIDROIT present a model law ready to be further discussed at the EU level and adapted by national legislators, with a view to facilitating and enhancing the judicial cooperation and access to justice in Europe.