Commercial Dispute Resolution Week 2 | Quizlet

What questions do we need to ask in this course?

Are we going to mediate, arbitrate or litigate? And

Why? What are their characteristics?

How do you proceed in litigation

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

- However, there are universally acknowledged principles of transnational civil procedure AND applicable fundamental rights

Which principles are relevant for this week?

Principle 1*

Independence and impartiality of the tribunal

Principle 3*

Procedural equality

Principle 5*

Right to be heard

Principle 9 and

Principle 19

Structure and form (oral/written) of the proceedings

Principle 1*

Independence and impartiality of the tribunal- what does this mean?

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

- You look at how the judges are appointed, for how long, does it appear independent? safeguards against outside pressures etc.

- ECHR in Kleyn et al./The Netherlands

Impartial vis-à-vis the parties

- No bias by the judge

- Subjective test (behaviour of judge, must be proven by the plaintiff)

- Objective test (objectively justified legitimate doubt in regards to the impartiality)

- ECHR in Micallef/Malta

Principle 3*

Procedural equality

- Equal treatment and reasonable opportunity for both parties

-'Equality of arms'

ECHR in Steel & Morris/United Kingdom

You have to look at three things:

1) What is the importance of what is at stake

2) The complexity of the relevant law and procedure

3) The applicants capacity to represent himself effectively

- Effective right of access to justice

ECHR in Airey/Ireland

ECJ in DEB/German

1) No general right to legal aid

2) May be necessary for the state to do in order to ensure effective right of access to justice

Principle 5*

Right to be heard

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

- Audite et alteram partem

ECHR in Mantovanelli/France

ECJ in Krombach/Bamberski

Principle 9 and

Principle 19

Structure and form (oral/written) of the proceedings

The 'main hearing model' (Indication of how civil proceedings may look like):

1. Pleading phase (usually written)

Claims and defenses, principal evidence -> convince the court that what you are saying is true and the evidence you want to bring is relevant

2. Interim phase (orally and/or written)

'Procedural' aspects, taking of evidence

3. Final phase (usually orally)

Remaining taking of evidence, concluding argument

Why litigate / Why not litigate?

- Litigation as method of dispute resolution is 'default' (fundamental right of access to a court of law)

- Litigation is (usually) public

- Litigation may take a long time (especially when appeal(s) are possible)

- Litigation (usually) results in an enforceable judgment

- Litigation costs ...?