W1 - Intro + Litigation(i) | Quizlet

(W1) dispute resolution context

Starting point: problem/dispute (private law) with an international dimension

1. Is there a claim based on tort and/or contract?

--> Contract & Tort Law (Year 1)

 

2. If so, which substantive law is applicable?

--> International Private Business Law (Year 2)

 

3. Is there a valid arbitration or mediation clause?

--> Commercial Dispute Resolution (Year 3)

 

4a. If so, how to proceed?

--> Commercial Dispute Resolution (Year 3)

 

4b. If not, the court(s) of which country has (have) jurisdiction?

--> Private International Business Law (Year 2)

How to proceed?

--> Commercial Dispute Resolution (Year 3)

(W1) dispute examples

Property law: boundary dispute

-  E.g. between neighbors

-  Can go to court, If parties agree on arbitration on mediation they can do so too

 

Contract law: international sales contract dispute

-  E.g. DE company selling machiners to company in Brazil, brazillian refuses to pay.

- Default rule international private law: domicile of defendant (Brazil)

 

Tort: personal injury after traffic incident

-   Travel by car through germany from NL

-   Swedish person caused an accident on german autobahn

-   Courts available: german and swedish (Brussels ibis)

-   Possibility also arbitration and mediation

(W1) 4 key questions

1. Which method of dispute resolution?

- default: state court litigation

- arbitration and mediation only possible if there is agreement

 

2. Where should proceedings take place?

- if you are litigating, mediating, arbitrating… where should it take place?

 

3. How are proceedings to be conducted?

- litigation relatively simple: procedure according to national law (civil procedure code)

- for arbitration: agreement between parties necessary for which set of procedural rules to apply

 

4. How is ‘result’ to be enforced?

- mediation: leads to settlement agreement, harder to enforce

- judgements and arbitral awards: regulated – easier to enforce

(W1) 3 methods of civil dispute resolution

1. Litigation --> default

2. Arbitration --> only with agreement

3. Mediation --> only with agreement

(W1) litigation

Default dispute resolution method before state court

(if parties do not agree on arbitration or mediation)

- decided by: judge or jury

- outcome: judgement

- Fundamental right of access to a court of law (e.g. Art. 6 ECHR): always have a right to take dispute to court in civil (and criminal) matters

- Right can be waived if there is agreement on arbitration or mediation

(W1) arbitration

dispute is submitted, by agreement of the parties, to one or more arbitrators who arrive at a binding decision on the dispute

(only if parties agree to)

- decided by: arbitrator

- outcome: arbitral award

(W1) mediation

dispute is submitted, by agreement of the parties, to a mediator; a neutral person helping the parties find a solution to their dispute

(only if parties agree to)

- decided by: mediator (neutral third party)

- outcome: settlement agreement

(W1) Ogura et al / Shell et al

(Nigerian Farmers & Milieudefensie vs Shell)

Facts

• Oil leaks in Nigeria, going through the land of farmers

- Ogura sought damages under civil law (and 5 other farmers) and sought compensation from Shell, supported by milieudefense

1. Which method of dispute resolution? Litigation

2. Where should proceedings take place? NL procedural law

3. How are proceedings to be conducted?

- Depends on the civil procedural law in the country of the court with jurisdiction (lex fori): Dutch civil procedural law

- Universally acknowledged principles of civil procedure (PTCP) and/or applicable fundamental rights (e.g. Art. 6 ECHR)

4. How is ‘result’ to be enforced? -

(W1) lex fori

law of the forum; procedural law of the country of the court with jurisdiction

(W1) principles of transnational civil procedure

PTCP = Principles written for litigation (but some are equally applicable to arbitration and in some cases mediation)

- Origin 1996-2004: ALI (USA) and UNIDROIT (UN)

- Bridged gap between common and civil law

- Soft law (guide lines) but treat as procedural law

- based on lessons learnt from international arbitration

- less bound to national legal traditions and culture

- excludes (US) jury trial

limited to:

- international or transnational cases

- commercial disputes

(W1) 4 key principles

P1: Independence and impartiality of the tribunal

P3: Procedural equality

P5: Right to be heard

--> first three also equally applicable to arbitration because they are fundamental / universal principles

P9: Structure of the proceedings

(W1) principle 1

independence and impartiality of the tribunal

 1.1  The court and the judges should have judicial independence .... freedom from improper internal and external influence.

 

1.2  Judges should have reasonable tenure in office....

 

1.3  The court should be impartial. A judge or other person having decisional authority must not participate if there is reasonable ground to doubt such person’s impartiality. There should be a fair and effective procedure for addressing contentions of judicial bias.

 

1.4  Neither the court nor the judge should accept communications about the case from a party in the absence of other parties (ex parte proceedings), except for communications concerning proceedings without notice and for routine procedural administration. When communication between the court and a party occurs in the absence of another party, that party should be promptly advised of the content of the communication.

1.5 The court should have substantial legal knowledge and experience.

(W1) principle 1 meaning

1. Independent vis-à-vis other state powers (legislator, executive)

2. Impartial vis-à-vis the parties --> more often challenged

•Subjective test

•Objective test

•ECHR in Micallef/Malta

(W1) independence

Considered a more objective characteristic, meaning free from:

External influences: may emanate from members of the executive or legislative branch, prosecutors, or persons with economic interests, etc

Internal influences: Internal influence could emanate from other officials of the judicial system.

(P1.1 comment)

(W1) impartiality

(W1) Micallef/Malta

--> apply to: P1 / impartiality

Facts:

- Mr F lived on the ground floor, Ms Micallef (M) lived on the floor above. F applied for an injunction to restrain M. from hanging out clothes to dry over the courtyard of his apartment, allegedly interfering with his property rights.

-  during ex parte hearing, presiding magistrate changed the date of a future hearing. M was not aware of the new date and was not present at the hearing. In her absence presiding magistrate issued the injunction in favour of Mr F.

- new proceedings before court of appeal which consisted of three judges, one was a chief judge (CJ)

- F’s lawyers: U at first instance and C at second instance: U was the father of C and brother CJ – defendant’s lawyers and judge related)

- Constitutional proceedings: the president of the court of appeal had lacked objective impartiality by reason of his family ties with the other party’s lawyer.

rule: subjective and objective test, Violation of art. 6(1) ECHR

- no personal bias (subjective test failed)

- Under Maltese law no automatic obligation on a judge to withdraw in cases where impartiality could be an issue. Nor could a party to a trial challenge a judge on grounds of a sibling relationship

- the close family ties between the opposing party’s advocate and the Chief Justice sufficed to objectively justify fears that the presiding judge lacked impartiality. It cannot be overlooked that Malta is a small country and that entire families practising law are a common phenomenon

(W1) subjective test (Micallef/Malta)

where regard must be had to the personal conviction and behaviour of a particular judge, that is, whether the judge held any personal prejudice or bias in a given case §93

- whether a judge has displayed hostility or ill will for personal reasons

- The personal conviction of a given judge in a given case (clear signs of personal bias)

- Evidence of their bias (look at the facts)

(W1) objective test (Micallef/Malta)

by ascertaining whether the tribunal itself and, among other aspects, its composition, offered sufficient guarantees to exclude any legitimate doubt in respect of its impartiality §93

--> Use in case of absence of clear signs of personal bias

--> Could a neutral observer have a reasonable doubt about the impartiality of the judge?

- Legitimate doubt on the court not being neutral

- Examination of functions exercised and internal organ. Of judiciary

- Side activities of the judge

- Judge is associated with the applicant / witnesses

- Had a role other than trial judge in proceedings

- questions of internal organisation … The existence of national procedures for ensuring impartiality, namely rules regulating the withdrawal of judges, is a relevant factor §99

e.g. the close family ties between the opposing party’s advocate and the Chief Justice

(W1) principle 3

procedural equality of the parties

3.1 The court should ensure equal treatment and reasonable opportunity for litigants to assert or defend their rights.

 

3.2 The right to equal treatment includes avoidance of any kind of illegitimate discrimination, particularly on the basis of nationality or residence. The court should take into account difficulties that might be encountered by a foreign party in participating in litigation.

--> incl. discrimination on the basis of nationality, residence, gender, race, language, religion, political or other opinion, national or social origin, birth or other status, sexual orientation, or association with a national minority.

 

3.3 A person should not be required to provide security for costs, or security for liability for pursuing provisional measures, solely because the person is not a national or resident of the forum state.

 

3.4 Whenever possible, venue rules should not impose an unreasonable burden of access to court on a person who is not a habitual resident of the forum.

(W1) principle 3 meaning

• Equal treatment and reasonable opportunity

--> The term “reasonable” signifies “proportional,” “significant,” “not excessive,” or “fair,” according to the context. It can also mean the opposite of arbitrary

• ‘Equality of arms’

• ECHR in Steel & Morris/United Kingdom

• Effective right of access to justice --> must actually be possible in practice, parties should be able to effectuate this right

(W1) Steel and Morris/UK

--> apply to: P3 / equality of arms defamation / right to a fair trial / article 6(1) ECHR  - lack of legal aid /

Facts

- Applicants associated with London Greenpeace

- Org. launched an anti-Mcdonalds campaign – a 6 page fact sheet w allegations was produced and distributed as part of the campaign

-  Mcdonalds sued claiming libel damages

-  Applicants applied for legal aid but were refused since legal aid is not available for defamation proceedings in the UK – represented themselves and received help from some barristers and solicitors pro bono

- applicants were held liable

rule: steps to determine whether legal aid was necessary for a fair hearing under art. 6(1) ECHR:

Whether the legal aid was necessary had to be determined based on the particular facts and circumstances of the case:

1.     the importance of what was at stake for the applicants in the proceedings;

2.     complexity of the relevant law and procedure and;

3.     applicant’s capacity to represent themselves effectively

(W1) Steel and Morris/UK rule

steps to determine whether legal aid was necessary for a fair hearing under art. 6(1) ECHR:

1.     the importance of what was at stake for the applicants in the proceedings;

- although defamation proceedings were not, in this context, comparable to, for instance, proceedings raising important family-law issues, the financial consequences had been potentially severe

2.     complexity of the relevant law and procedure and;

- the trial at first instance had lasted 313 court days, preceded by 28 interlocutory applications

- The factual case which the applicants had had to prove had been highly complex, involving 40,000 pages of documentary evidence and 130 oral witnesses. Nor was the case straightforward legally.

3.     applicant’s capacity to represent themselves effectively

-  applicants appeared to have been articulate and resourceful and they had succeeded in proving the truth of a number of the statements complained of.

- received some help from barristers and solicitors acting pro bono:

- For the bulk of the proceedings, however, they had acted alone. 

- The very length of the proceedings was, to a certain extent, a testament to the applicants’ lack of skill and experience

(W1) principle 5

Due Notice and Right to be Heard

5.1 At the commencement of a proceeding, notice, provided by means that are reasonably likely to be effective, should be directed to parties other than the plaintiff...

.

5.2 The documents referred to in Principle 5.1 must be in a language of the forum, and also a language of the state of an individual’s habitual residence or a jural entity’s principal place of business...

5.3 After commencement, all parties should be provided prompt notice of motions and applications of other parties and determinations by the court.

5.4 The parties have the right to submit relevant contentions of fact and law and to offer supporting evidence.

5.5 A party should have a fair opportunity and reasonably adequate time to respond to contentions of fact and law and to evidence presented by another party....

5.6 The court should consider all contentions of the parties and address those concerning substantial issues.

5.7 The parties may, by agreement and with approval of the court, employ expedited means of communications, such as telecommunication.

5.8 An order affecting a party’s interests may be made and enforced without giving previous notice to that party only upon proof of urgent necessity and preponderance of considerations of fairness. An ex parte order should be proportionate....

(W1) principle 5 meaning

Right to present one’s case AND to respond to both the other party and the court

• Audite et alteram partem (listen to the other side / let the other side be ehard)

• ECJ in Krombach/Bamberski

(W1) principle 9

structure of the proceedings

9.1 A proceeding ordinarily should consist of three phases: the pleading phase, the interim phase, and the final phase.

9.2 In the pleading phase the parties must present their claims, defenses, and other contentions in writing, and identify their principal evidence.

9.3 In the interim phase the court should if necessary:

9.3.1 Hold conferences to organize the proceeding;

9.3.2 Establish the schedule

9.3.3 Address the matters appropriate for early attention, such as questions of jurisdiction...

9.3.4 Address availability, admission, disclosure, and exchange of evidence;

9.3.5 Identify potentially dispositive issues for early determination of all or part of the dispute; and

9.3.6 Order the taking of evidence.

9.4 In the final phase evidence not already received by the court according to Principle 9.3.6 ordinarily should be presented in a concentrated final hearing at which the parties should also make their concluding arguments.

(W1) principle 9 main hearing model

I. Pleading phase (usually written)

• Claims and defenses, principal evidence

II. Interim phase (orally and/or written)

• ‘Procedural’ aspects, taking of evidence

III. Final phase (usually orally)

• Remaining taking of evidence, concluding arguments