Model European Rules of Civil Procedure 2020
International Workshop “International Comparative
Civil Procedure Law andProcedural Fundamental Rights”
Ritsumeikan University 13-14 October 2023
Prof. Dr. Astrid Stadler
University of Konstanz

Outline

I.

Introduction

II.

Scope of Application and objectives of ERCPIII.

The model of civil procedure proposed by the
ERCP

IV. Methodology of the project

V.

Differences between ALI/UNIDROIT
Prinicples and ERCP

VI. Case study on access to information andevidenceVII. Conclusions

I. Introduction
1. Starting point: American Law Institute (ALI) and UNIDROIT„Principles of Transnational Civil Procedure“ (2003/04)– Scope of application: lawsuits involving transnationalcommercial transactions– How to bridge the gap between US civil procedure and (European)Continental traditions?

2. European background of the project
2011: Foundation of European Law Institute - ELI - (Vienna)– following the lead of the American Law Institute– function: improvement of quality of European law and guidance andresearch in the field of European legal development− failure of the Draft Common Frame of Reference (lack of legitimation)
triggered the establishment of ELI

I. Introduction
2013: Exploratory Workshop ELI/UNIDROIT– harmonization of European civil procedure?
– no legislative competence of EU!
– starting point: AL/UNIDROIT Principles on Transnational Civil Procedure,
but more detailled model rules necessary– only Model Rules for national legislatures, legislative processes at EU level

3. Organisation of the project•••

2014-2019: Working Groups & plenary meetings
2019/2020: final drafting team & structure group harmonize drafts
2020 adoption of ERCP by ELI and UNIDROIT

Organisation of ELI/UNIDROIT Project
Steering Committee(Diana Wallis, Anna Veneziano, John Sorabji, RolfStürner, Remo Caponi)

Structure Group
responsible for harmonization WG drafts, general rules andprinciples, structure of model rules(Rolf Stürner, John Sorbji, Loic Cadiet, Xandra Kramer)

WG onService ofDocuments& due
notice ofproceedings

WG on
Provisional &Protective
Measures

Final Drafting Team + French Task Force

WG on
Costs

Working Groups (WG) with 2 Co-reporters and 4-6
members from academia and practice from all overEurope

WG on
Appeals

WG on
Access toInformation& Evidence

WG on
Obligationsof Parties,Lawyers andJudges

WG on Res
judicata & lisPendens

WG onParties &CollectiveRedress

WG onJudgments

II. Scope of Application and Objectives of ERCP
•••
••
•

all civil proceedings (commercial and noncommercial)
not: family proceedings, insolvency proceedings,arbitration
not: enforcement proceedings
included: collective redress (not part of theALI/UNIDROIT Principles)
domestic & cross-border proceedings
no rules on jurisdiction and enforcement (EU regimeapplies)➢ ERCP are not a complete Civil
Procedure Code➢ not a blueprint for EU legislation➢ major challenges: diversity ofprocedural systems in Europe(English/Continental/East-European);language problems➢ ERCP (245 rules) much more detailed
than ALI/UNIDROIT Principles (35)

ELI/UNIDROIT MODEL RULES 2020
PreamblePart I General Provisions
Part II Parties
Part III Case Management
Part IV Commencement of Proceedings
Part V Proceedings preparatory to thefinal hearing
Part VI Service and due notice ofproceedings
Part VII Access to information andevidencePart VIII Judgments, res judicata, lispendens
Part IX Means of Review
Part X Provisional and protective
measures
Part XI Collective Redress
Part XII Costs

III. The model of civil procedure proposed by the ERCP
1) Overarching principles governingthe proceedings✓ Co-operation of parties, lawyers andcourt (Rules 2, 3)✓ Proportionality (Rules 5-8)
− Nature, importance, complexity of thecase− Sanctions for breach of rules must be
proportionate− Costs✓ Settlement
Rule 9 (1): Parties must co-operate inseeking to resolve their dispute consensually, both before and after
proceedings begin.

✓ General case management duty of thecourt (Rule 4)2) Structure of the proceedings
Based on modern English, German,
Spanish concepts„Main hearing model“
Written introductory phase(pleadings)

Preparatory stage(clarifying applicable law, factual
basis, availability of evidence)

Main hearing:presentation of evidence,concluding arguments

IV. Methodology of project•••••

more than 40 academics & practioners from 25 countries
great diversity of represented legal traditions => no uniform methodology
ALI/UNIDROIT Principles as a starting point
assessment of existing European rules /common European fundamental procedural rights
importance of comparative approaches in Working Groups

fields with clear tendency of convergence✓ Structure of proceedings (mainhearing model)✓ Human & constitutional rights (e.g.
right to be heard; equality of parties)✓ Means of evidence✓ Parties‘ duty to cooperateareas with still very heterogeneousconcepts in national civil procedure• Prioritizing of amicable settlements• Co-operatin between parties and court• Proportionality of the use of personaland material resources• Sanctions against non-complying parties=> necessity of new concepts, innovative steps (e.g. collective proceedings, electroniccommunication)

V. Differences between the ALI/UNIDROIT Project and the ERCP
Example 1: Appeals

ALI Principles
APPEAL27.1. Appellate review should beavailable on substantially thesame terms as other judgments
under the law of the forum.
Appellate review should beconcluded expeditiously
27.2. The scope of appellate
review should ordinarily belimited to claims and defenses
addressed in the first-instanceproceeding.
27.3. The appellate court may inthe interest of justice consider
new facts and evidence.

ELI/UNIDROIT Model Rules
Part IX Means of review
Rule 153 Right of appeal or to seek recourse
Rule 154 Waiver of right to appeal or to seek
recourse
Rule 155 Notice of appeal - general
Rule 156 Time limits for appeals
Rule 157 Contents of notice of and reasons forappeal – first appeal
Rule 158 Contents of the notcie and reasons forappeal – second appeal
Rule 159 Response to the notice of appeal – general
Rule 160 Contents of respondent‘s reply
Rule 161 Derivate appeals
Rule 162 Provisional enforcement
Rule 163 Withdrawal
Rule 164 Representation in an Appeal Court
Section 3 Rules 166-171 First Appeals
Section 4 Rules 172-177 Second Appeals
Section 5 Rules 178-180 Review of procedural error
Section 6 Rules 181-183 Extraordinary Recourse

V. Differences between the ALI/UNIDROIT Project and the ERCP
Example 2: Case management
ELI/UNIDROIT Model Rules
ALI Principles
Court responsibility for Direction of theProceeding
14.1. Commencing als early as practicable,
the court should actively manage theproceedings, exercising discretion toachieve disposition of the dispute fairly,efficiently, and with reasonable spee.
Consideration should be given to thetransnational character of the dispute.
14.2. To the extent reasonably practicable,
the court should manage the proceeding in
consultation with the parties.
14.3. The court should determine the orderin which issues are to be resolved and fix atimetable for all stages of the proceeding….

Case management powers of the court arementioned in several parts of the ERCP
Part III Case Management
Rule 47: Careful conduct of litigation by the Parties
Rule 48: Court control of the proceedings
Rule 49: Means of case management
Rule 50: Case management orders…
Part VII Access to Information and EvidendeRule 92: Management and presentation of evidence
Rules 100-110 Access to evidence orders

Part XI Collective Proceedings
Rule 218: Case management powers
Rule 219: Advertisements
Rule 220: Communication –Secure ElectronicPlatformVI. Case Study
Facts:
Owner (O) of a small enterprise buys
manufacturing unit produced by P from seller
S. The engine catches fire during use, O is
seriously injured and the manufacturing halldamaged.
O has heard that several other users had thesame problem with the same type of engine
produced by P. He considers to sue P fordamages based on product liability principles
due to an alleged constructional defect of themachine.

Assumptions:•••

Claim based on tort law
Although strict liability regime may apply:
Claimant has burden of proof that engine
was defective when put on the market by
the producer

Questions:➢ Details on defect to be provided instatement on claim?
➢ Pre-action access to information on theproduction of engine?
➢ Access to information & evidence during
the proceedings?

Case Study: Solutions available in US & European procedural law
A. US law•

Claim forms must not give details, but
only roughly describe the case (‚noticepleading‘)
Rule 8 (2) FRCP: ‚a short and plain statement of
the claim showing that the pleader is entitled torelief‘=> no pre-action search for informationnecessary•

all relevant evidence will be available forthe claimant during pretrial-discovery (toprepare the trial), most cases settle beforetrial,=> Federal Rules of Civil Procedure Title V
Disclosure and Discovery, Rules 26-37

B. England–––Pre-action protocols (annex to CPR) requireparties to correpond before commencing
litigation
Claimant must provide concise details ofclaim (‚letter of claim‘), parties are expected
to disclose key documents, expert evidence
available
Once litigation has started:

Rule 31.6 CPR Standard disclosure requires a party
to disclose only–(a) the documents on which he relies; and(b) the documents which –(i) adversely affect his own case;(ii) adversely affect another party’s case; or(iii) support another party’s case; and(c) the documents which he is required to disclose
by a relevant practice direction.

Case Study: Solutions available in US & European procedural law
D. France•

Substantial facts must be pleaded by bothparties

C. Germany•

Art. 6 CPC: A l'appui de leurs prétentions,les parties ont la charge d'alléguer les faits
propres à les fonder.

••

No pre-action exchange of information
Court may order production of any kind ofdocuments (Art. 10 CPC, mésured‘instructions)=> parties must co-operate, sanctions
available ‚astreinte‘)••

Strictly substantiated factual pleadings+ specification of means of evidence=> standard reduced if facts are within theopponent‘s sphere, but allegations must
be plausible (‚secondary burden ofpresentation‘)
no pre-action exchange of information
during proceedings: very limited access todocuments in the possession of the otherparty or a third party–––Documents must be described in detail
Defendant must have relied on the documents
Claimant must have right to disclosure undersubstantive law (normally not existent in tortcase)

BGH: „a party to litigation is not required to deliver weapons into the hands of its
opponent (nemo contra se edere tenetur) nor to contribute to an opponent’s victory“Case Study: Solutions available in US & European procedural law
Comparative summary•no uniform rules on access to information=> strong tendency to grant access once claimant has asserted
facts in reasonable detail=> no fishing expeditions=> access to information requires statement of facts to some degree(by contrast to US litigation)•

no general obligation of parties to co-operate in all Member States=> strong tendency to establish such an obligation (including
settlement negotiations)Solution provided by ELI/UNIDROIT Model Rules(1) Party co-operation
several Rules emphasize the general obligation of parties and their lawyers to co-operate (Rules
2, 3, 9)(2) No pretrial-discovery US-style➢ Presentation of facts in pleadings must be in reasonable detail➢ Access to information and evidence (Rules 25, 100; 27, 99, 110 [sanctions for non-compliancewith court orders];
Rule 53 (2) (3)
Rule25 (2)(2) Each party has, in principle, aright to access all forms ofrelevant, non- privileged andreasonably identified evidence. In
so far as appropriate, parties andnon- parties must contribute todisclosure and production ofevidence. It is not a basis ofobjection to such disclosure by aparty that disclosure may favour
the opponent or other parties.

(2) The statement of claim should:(a) state the relevant facts on which the claim is based in reasonabledetail as to time, place, participants and events;(b) describe with sufficient specification the available means ofevidence to be offered in support of factual allegations(3) If a claimant does not fully comply with the requirements of Rule53(2), the court must invite the claimant to amend the statement ofclaim. If a claimant shows good cause why it is not possible toprovide details of relevant facts or specify the means of evidence intheir statement of claim but the statement of claim neverthelessdemonstrates that there is plausible dispute on the merits, the court
should give due regard to the possibility that relevant detailed facts
will develop later in the course of the taking of evidenceSolution provided by ELI/UNIDROIT Model Rules(3) Criteria for access to evidence
Rule 102. Relevant Criteria where an application for access to evidence is made(1) A party or prospective party applying for an order for access to evidence must(a) identify, as accurately as possible in the light of the circumstances of the case,the specific sources of evidence to which access is sought, or alternatively(b) identify closely defined categories of evidence by reference to their nature,content, or date.
(2) An application must satisfy the court of the plausibility of the merits of theapplicant’s claim or defence by demonstrating that(a) the requested evidence is necessary for the proof or proposed proof of issues
in dispute in proceedings or in contemplated proceedings;(b) the applicant cannot otherwise gain access to this evidence without thecourt’s assistance; and(c) the nature and amount of evidence subject to the application is reasonable
and proportionate. For this purpose the court will take into account thelegitimate interests of all parties and all interested non-parties.

Solution provided by ELI/UNIDROIT Model Rules(4) Pre-action access to information
Rule 101 Application for Access toEvidence(1) Subject to the considerations andprocedure contained in these Rules,
any claimant or defendant, or any
prospective claimant who intends tocommence proceedings, can apply tothe court for an order securing accessto relevant and non- privileged
evidence held or controlled by otherparties or non- parties.
(2) An application for an order securing
access to evidence may include anapplication for the imposition ofmeasures to protect or preserve
evidence, including an application forprovisional or protective measures
under Part X.

Rule 106. Time of Applications(1)Applications for access to evidence may bemade prior to the initiation of proceedings,
in a statement of claim, or in pending
proceedings.
(2)If an order has been made prior to theinitiation of proceedings, whereappropriate, the successful applicant may
be required to initiate proceedings within aspecified, reasonable, period of time. If theapplicant fails to comply with thisrequirement the court may set aside theorder, direct the return of any evidence
supplied to the applicant further to theorder, impose an appropriate sanction on
the party in default, or make any otherappropriate orderSolutions provided by ELI/UNIDROIT Model Rules(3) Protection confidential information

Rule 103 Confidential information(1) The court shall consider whether an application under Rule 101 for access to evidence concerns orincludes confidential information, especially in relation to non- parties. In so doing, the court must haveregard to all relevant rules concerning the protection of confidential information.
(2) Where necessary, in the light of the circumstances of the case, the court, amongst other things, may
make an order for access to evidence containing confidential information adjusted in one or more of thefollowing ways in order to protect the relevant interest in maintaining confidentiality(a) redacting relevant sensitive passages in documents;(b) conducting hearings in camerac) restricting the persons allowed to gain access to or inspect the proposed evidence;(d) instructing experts to produce a summary of the information in an aggregated or otherwise nonconfidential form;(e) writing a non- confidential version of a judicial decision in which passages containing confidential
data are deleted;(f ) limiting access to certain sources of evidence to the representatives and lawyers of the parties
and to experts who are subject to a duty of confidentiality.

Solutions provided by ELI/UNIDROIT Model Rules1) Plaintiff must not allege in detail deficiencies of
the construction of the machine (Rule 53 [2])• good cause why it is not possible to providedetails• plausible case on the merits (by reference
to similiar cases!)
1) He can apply for an access to evidence court
order before the beginning of the proceedings:✓ expert witness✓ inspection of P‘s premises✓ disclosure of all documents relevant for theconstruction
 if evidence supports his case, he must fileaction against P within period set by thecourt
3) P can apply for a confidentiality order (Rule 101,106)
e.g. restricting access to documents andpremises to an expert and F‘s lawyer, impose
duty of confidentiality (for sanctions, Rule 104 )Thank your very much foryour attention!