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This book investigates the concept of procedural autonomy of Member
States in the light of EU law. Does procedural autonomy still
adequately describe the powers of national lawmakers and courts to
design their civil procedural systems or is it misleading? For the
last few decades, Europe has been in a period of increasing
Europeanisation of civil procedure. Increased powers of the EU have
resulted in hard law, case law and soft law that regulate many
types of domestic and cross-border civil cases. These rules have
both direct and indirect implications for national procedural
law.Gaining insights from selected European jurisdictions (Belgium,
England and Wales, Finland, Germany, The Netherlands, Norway,
Poland, Slovenia, Spain, and Sweden), this book explores the
concept of procedural autonomy from different angles: Is procedural
autonomy an adequate term? How is procedural autonomy understood
nationally, and is there variation among the Member States? Do some
types of EU law or specific characteristics of EU civil procedural
law restrain procedural autonomy more than other? How can these
differences be explained and is it possible to identify the sources
causing such discrepancies?Procedural Autonomy across Europe is a
stimulating discussion for lawyers with an interest in civil
procedure.
A range of international and European Union legal instruments exert
influence on the national civil procedure rules of European Union
member states. Some specifically aim for the harmonisation of
national procedural law across Europe, while others primarily focus
on facilitating cross-border litigation, enforcing rights or
setting minimum standards. However, often the same time instruments
cause fragmentation, reduce coherence and challenge prevailing
concepts and doctrines of national civil procedure law.With a view
to carefully selected North Western jurisdiction (EU and EEA member
states) this book explores how EU, EEA, and international
legislation, judicial activism on EU and national level, and new
soft law instruments affect national civil procedure law and how,
in turn, national rules may impact the development of international
instruments. How are the respective countries affected by a
particular (EU) regulation? Has the regulation generated changes of
the national law? Are European rules, or national rules following
from them, applied in court practice? Are there differences in the
approach towards implementation and application of EU law, and if
so why and with what consequences? Do international influences
serve as an impetus for national reforms, or are they implemented
mechanically? Do hard law approaches produce more harmonisation or
convergence than soft law approaches?
This book is designed to introduce the varieties of litigation
systems in use in different modern states. It opens with a
treatment of the principal differences among the major civil
litigation systems. Subsequent chapters cover the organization of
courts and the legal profession, the role of the attorney and the
judge, the processes of learning and proving facts, short cuts to
judgment and provisional remedies, the appellate process,
enforcement of judgments, and the prospects for convergence and
harmonization. The book can be used as (i) an adjunct to an
introductory civil procedure course; (ii) the text for an
upper-class seminar in comparative procedure; and (iii) as a
supplement to the existing general comparative law casebooks. The
author team on the second edition includes scholars and
practitioners from Germany, England, Italy, Japan, and the United
States.
John Sorabji examines the theoretical underpinnings of the Woolf
and Jackson reforms to the English and Welsh civil justice system.
He discusses how the Woolf reforms attempted, and failed, to effect
a revolutionary change to the theory of justice that informed how
the system operated. It elucidates the nature of those reforms,
which through introducing proportionality via an explicit
overriding objective into the Civil Procedure Rules, downgraded the
court's historic commitment to achieving substantive justice or
justice on the merits. In doing so, Woolf's new theory is compared
with one developed by Bentham, while also exploring why a similarly
fundamental reform carried out in the 1870s succeeded where Woolf's
failed. It finally proposes an approach that could be taken by the
courts following implementation of the Jackson reforms to ensure
that they succeed in their aim of reducing litigation cost through
properly implementing Woolf's new theory of justice.
John Sorabji examines the theoretical underpinnings of the Woolf
and Jackson reforms to the English and Welsh civil justice system.
He discusses how the Woolf reforms attempted, and failed, to effect
a revolutionary change to the theory of justice that informed how
the system operated. It elucidates the nature of those reforms,
which through introducing proportionality via an explicit
overriding objective into the Civil Procedure Rules, downgraded the
court's historic commitment to achieving substantive justice or
justice on the merits. In doing so, Woolf's new theory is compared
with one developed by Bentham, while also exploring why a similarly
fundamental reform carried out in the 1870s succeeded where Woolf's
failed. It finally proposes an approach that could be taken by the
courts following implementation of the Jackson reforms to ensure
that they succeed in their aim of reducing litigation cost through
properly implementing Woolf's new theory of justice.
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