Transnational Rules of Civil Procedure, Preliminary Draft No. 1: Commentary

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Transnational Rules of Civil Procedure Preliminary Draft No. 1: Commentary(c)

GENERAL INTRODUCTION

0.1 Adoption of these Rules

The procedure and legal authority for adoption of these Rules is a matter of the internal and international law of nation states. Hence, these rules may be adopted by international convention or by legal authority of a national state for application in the courts of that state. In countries with a unitary legal system that legal authority is vested in the national government. In federal systems the allocation of that authority depends upon the terms of the particular federation. It might be, for example, that these Rules could be adopted for the federal courts in a federal system but in the state or provincial courts only as prescribed by the state or province. As used in the Rules, "state" refers to a national state and not to a province or state within a federal system.

Under generally recognized principles of law the parties to a legal dispute may stipulate to the procedure by which their dispute is governed, subject to the authority of a court hearing the dispute to order otherwise.

0.2 Purpose of these Rules

The objective of these Rules is a system of fair procedure for litigants involved in legal disputes arising from transnational transactions. The Rules seek thereby to reduce the uncertainty and anxiety that particularly attend parties obliged to litigate in unfamiliar surroundings, appreciating that all litigation is unpleasant from the viewpoint of the litigants. The reduction of difference in legal systems, commonly called "harmonization" of law, is an aspect of achieving such fairness. It is also recognized, however, that a system of rules is only one aspect of fair procedure. Much more important, as a practical matter, is the independence and neutrality of judges and the competence and integrity of legal counsel. Nevertheless, rules of procedure are influential in the conduct of litigation. These Rules seek to express, so far as rules can do so, the ideal of disinterested adjudication. As such they also can be terms of reference in matters of judicial cooperation, wherein the courts of different legal systems seek or provide assistance to each other. By the same token, reference to the principles expressed herein can moderate the unavoidable tendency of practitioners in a legal system, both judges and lawyers, to consider their system from a parochial viewpoint.

The Rules herein governing presentation of claims, development and presentation of evidence and legal argument, and the final determination by the tribunal, particularly Rules 7 through 25, may be adopted or referenced in proceedings not otherwise governed by these Rules, particularly arbitration.

It is contemplated that these Rules be expressed in English and French. Both languages are to be "official texts," recognizing that there can be differences in nuance between the languages. These Rules are proposed for adoption by nation states to govern litigation arising from transnational transactions, as defined in Rule 1. The method of adoption could be treaty, convention or other international agreement, or statute or rule of court of a nation state or political subdivisions thereof. A court could, when doing so is not inconsistent with its own organic or procedural law, refer to these Rules as generally recognized standards of civil justice. It is contemplated that, when so adopted, these Rules would be a special form of procedure applicable to these transactions, similar to special procedural rules that most nation states have for bankruptcy, administration of decedent's estates, and civil claims against government agencies.

These Rules also could be adopted through contractual stipulation by parties to govern, with the consent of the forum, litigation arising from the contractual relationship. The latter form of implementation in substance is a party stipulation to waive the otherwise governing rules of procedure in favor of these rules. …