According to a recent book, “Europe is in a period of increasing Europeanisation of civil procedure.” (The European Union and National Civil Procedure (A. Nylund & B. Krans, eds, 2016, p.1). This process is the focus of an ongoing project organized by the European Law Institute (ELI) to develop a model civil procedure code that could serve guide EU member states in adopting parallel procedure provisions.
UC Hastings is playing a significant role in this effort. The ELI was founded in 2011, and is modeled on the American Law Institute, the creator of the Restatements of Law that UC Hastings students encounter in many of their courses. In addition, from 1999 to 2007, the ALI and UNIDROIT (a European institution seeking harmonization of legal rules) developed “Transnational Principles of Civil Procedure,” under the leadership of Prof. Geoffrey Hazard, former Director of the ALI, and with the active participation of former Dean and Chancellor Mary Kay Kane, who was an adviser on that project.
In 2013, the ELI embarked on its current project with a conference in Vienna in which Prof. Hazard lead a session on the ALI Transnational Principles and Prof. Richard Marcus was an active participant.
Since that time, drafting groups from Europe have generated draft provisions to address a wide variety of issues, usually starting with the Transnational Rules as a template. These drafts have been reviewed by a international group of advisers. Prof. Marcus, who is one of a few American advisers to the project, participated in a drafting session in Vienna in November, 2016.
“It’s striking to an American lawyer to learn how different the rest of the world’s view of procedure is from what we have here in the U.S.,” Marcus reported. Among the distinctive or unique features of U.S. procedure are relaxed pleading requirements, broad discovery, jury trial, contingency fees and the American Rule that each party ordinarily bears its own litigation costs even if it wins the case. Many of those features have been anathema to other legal systems, particularly those in Europe. Indeed, some nations in Europe have adopted “blocking statutes” to forbid American discovery on their soil, and some European lawyers have been fined for cooperating in American discovery.
From this perspective, the draft ELI rules on Evidence and Access to Information — the main focus of the recent Vienna drafting session — are striking in adopting an orientation that may bring Europe closer to the U.S. model in some ways. Thus, a central feature of the drafts developed so far is that the court may enter an order for access to evidence, and that parties must disclose in advance the evidence on which they will rely. In addition, there are draft provisions calling for the court to consider a negative inference when a party does not provide evidence it should produce, and calling for the court to consider all relevant evidence. Importantly, the draft also recognizes that electronically stored information is fully subject to orders for production.
Meanwhile, U.S. procedure is evolving in ways that may move it somewhat closer to the sort of model under discussion in Europe. Controversial reforms to the U.S. discovery rules for federal courts were adopted on Dec. 1, 2015, emphasizing that discovery must be proportional to the case. The ELI draft for European procedure contains a similar proportionality plank. Prof. Marcus, who has served as Associate Reporter of the U.S. Judicial Conference Advisory Committee on Civil Rules (which drafts these rules), was able during the recent Vienna meeting to alert the ELI drafters to ongoing U.S. developments that could bear on their work.
As befits its location in a leading center of international legal developments, then, UC Hastings continues to play a leading role in this potentially important European project. It also plays a significant role in the larger world of procedure, as Prof. Marcus serves additionally as Vice President – North America of the International Association on Procedural Law, which has collaborated on the European project.
The European drafting process remains far from complete, and actual adoption of the resulting proposals will surely be a gradual thing. Throughout, however, these developments will have a significant UC Hastings component, and UC Hastings students will have the benefit of information about these significant international trends.