CIVIL PROCEDURE

UNIDROIT WORK AND INSTRUMENTS IN THE AREA OF CIVIL PROCEDURE

UNIDROIT is working towards a soft harmonisation of civil procedural rules, intended to apply in transnational disputes, but also to provide guidance in domestic law reforms.

The ALI/UNIDROIT Principles of Transnational Civil Procedure, adopted in 2004 by the American Law Institute (ALI) and UNIDROIT, are the first instrument developed by UNIDROIT in this area. As provided in Principle 1, The Principles “are standards for adjudication of transnational commercial disputes.” [They] may be equally appropriate for the resolution of most other kinds of civil disputes and may be the basis for future initiatives in reforming civil procedure.”

The ALI/UNIDROIT Principles of Transnational Civil Procedure were further meant to serve as a basis for the development of regional implementation rules. A first step in this direction is represented by the ELI/UNIDROIT European Model Rules of Civil Procedure, adopted in 2020 by the European Law Institute (ELI) and UNIDROIT.

UNIDROIT is presently also undertaking other projects in this area as part of its 2020-2022 Work Programme.

These include the project on Best Practices for Effective Enforcement, based on a proposal of the World Bank discussed and approved as a continuation, and a refinement, of the scope of the “Principles of Effective Enforcement” project, which was already part of the 2017-2019 Work Programme.

The current Work Programme features, in addition, as a low priority project for the time being, the development of regional rules for Civil Procedure in Latin America.

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The ALI/UNIDROIT Principles of Transnational Civil Procedure were prepared by a joint American Law Institute / UNIDROIT Study Group and adopted in 2004 by the Governing Council of UNIDROIT.

The ‘Principles’ consist of 31 provisions accompanied by commentary, and aim to reconcile differences among various national rules of civil procedure, taking into account the peculiarities of transnational disputes as compared to purely domestic ones. They may serve not only as guidelines for code projects in countries without long procedural traditions but may also serve as a basis for reform in countries with long and high-quality procedural traditions; they may also be applied by analogy in international commercial arbitration.

Access the Full Text of the Ali/Unidroit Principles of Transnational Civil Procedure, with Commentary

The Principles are accompanied by a set of ‘Rules’ of Transnational Civil Procedure, which were not formally adopted by UNIDROIT or the ALI, but constitute “the Reporters’ model implementation of the Principles, providing greater detail and illustrating concrete fulfilment of the Principles”. The Rules may 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”.  Access the “Transnational Civil Procedure” ALI webpage

The Principles (with commentary, in both English and French) together with the Reporters’ Study containing Rules (with commentary) are published by Cambridge University Press.

The ELI-UNIDROIT Model European Rules of Civil Procedure were approved by the European Law Institute (ELI) and UNIDROIT in 2020. The Model Rules, accompanied by extensive comments and preceded by general principles, are the result of the work of around 50 international experts from different jurisdictions and cover the whole spectrum of civil procedure from its inception to appellate proceedings. They were developed to adapt the ALI/UNIDROIT Principles to the European legal environment, and take into account the diverse traditions in Europe concerning civil procedure law, aiming to find a common thread and best practice solutions. They offer detailed guidance to legislators and other interested addressees for further development of civil procedure in Europe and beyond.

The Model Rules are available online and are also published by Oxford University Press.

More information is available here.

 

The project on Best Practices for Effective Enforcement was included as high priority project in the 2020-2022 Triennial Work Programme.

It stems from the recognition of the vital importance of developing a modern legal framework enabling the effective execution of creditor’s claims for a well-functioning credit market and improved access to credit, for an increase in trade and investment and for overall economic development and sustained growth. Effective enforcement strengthens the confidence of market participants willing to invest, providing reliable mechanisms to obtain satisfaction of claims with predictable outcomes. It is also an integral element of a full access to justice.

Many jurisdictions in the world, however, face challenges in this area, including the excessive length and costs of the procedures, the limited role of party autonomy, the malfunctioning or absence of extra-judicial remedies, and lack of transparency. Moreover, additional challenges are created by the impact of new technologies, which can be powerful tools to tackle traditional obstacles in enforcement on the one hand, but also a source of new potential problems that should be addressed on the other (e.g., monitoring, accountability, respect of fundamental rights). In addition, there is the need to consider suitable enforcement mechanisms for new categories of assets such as digital assets.

The project aims to provide national legislators and other policy makers with a set of global standards and best practices, going beyond existing international instruments, designed to improve the domestic normative framework applicable to enforcement. It covers both post-adjudication enforcement (i.e., following a judicial decision in favour of a creditor) and extra-judicial enforcement mechanisms, and considers enforcement of both unsecured and secured claims.

More information on the project and the Working Group sessions are available here.