UNIDROIT 2005
Study LXXVI ­ Doc. 13
Original: English
(Limited distribution)
Joint ALI/UNIDROIT Working Group on Principles and Rules
of Transnational Civil Procedure
ALI/UNIDROIT
Principles of Transnational Civil Procedure
Appendix: Rules of Transnational Civil Procedure
(A Reporters' Study)
Rome, January 2005
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13
PREFACE
Presented herewith are the Principles of Transnational Civil Procedure. Appended to the
Principles are the Rules of Transnational Civil Procedure, which are the Reporters' model
implementation of the Principles, which may be considered for adoption in various legal systems.
There are, understandably, skeptics who think the idea premature at best that there can be
"universal" procedural rules, and others who, though sympathetic to the idea, have reservations
about the present execution of the concept. These reservations are at two levels. First, there is
doubt that it is feasible to overcome fundamental differences between common-law and civil-law
systems and, among common-law systems, to cope with the peculiarities of the United States
system. We think, however, that the reservations based on the civil-law/common-law distinction
reflect undue anxiety. The United States system is unique among common-law systems in having
both broad discovery and jury trial. Thus, a second-level reservation is that, if such a project is
feasible, it is not feasible if it corresponded in any substantial way to characteristic United States
procedure.
We conclude that a system of procedure acceptable generally throughout the world could
not require jury trial and would require much more limited discovery than is typical in the United
States. This in turn has led us to conclude that the scope of the proposed Transnational Civil Rules
and Principles is limited to commercial disputes and excludes categories of litigation such as
personal-injury and wrongful-death actions, because barring jury trial in such cases would be
unacceptable in the United States. The definition of "commercial disputes" will require some further
specification, but we believe that it is adequate to frame the project.
In this era of globalization, the world is marching in two paths. One path is of separation
and isolationism, with war and turmoil: in such a world, this project is useless and unwelcome. The
other path is increasing exchange of products and ideas among the peoples of the world; this path
underscores the need for a transnational civil procedure.
GEOFFREY C. HAZARD, JR. (Reporter, ALI/UNIDROIT)
ROLF STÜRNER (Reporter, UNIDROIT)
MICHELE TARUFFO (Reporter, ALI)
ANTONIO GIDI (Associate Reporter, ALI)
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13
TABLE OF CONTENTS
Page
Preface i
Members of the Joint ALI/UNIDROIT Working Group viii
Introduction 1
PRINCIPLES OF
TRANSNATIONAL CIVIL PROCEDURE
(with commentary)
Principle
Scope and Implementation 11
1. Independence, Impartiality, and Competence
of the Court and Its Judges 11
2. Jurisdiction Over Parties 12
3. Procedural Equality of the Parties 14
4. Right to Engage a Lawyer 14
5. Due Notice and Right to Be Heard 15
6. Languages 16
7. Prompt Rendition of Justice 17
8. Provisional and Protective Measures 17
9. Structure of the Proceedings 18
10. Party Initiative and Scope of the Proceeding 19
11. Obligations of the Parties and Lawyers 20
12. Multiple Claims and Parties; Intervention 21
13. Amicus Curiae Submission 22
14. Court Responsibility for Direction of the Proceeding 22
15. Dismissal and Default Judgment 23
16. Access to Information and Evidence 24
17. Sanctions 25
18. Evidentiary Privileges and Immunities 26
19. Oral and Written Presentations 27
20. Public Proceedings 27
21. Burden and Standard of Proof 28
22. Responsibility for Determinations of Fact and Law 28
23. Decision and Reasoned Explanation 29
24. Settlement 29
25. Costs 30
26. Immediate Enforceability of Judgments 30
27. Appeal 31
28. Lis Pendens and Res Judicata 31
29. Effective Enforcement 32
30. Recognition 32
31. International Judicial Cooperation 33
UNIDROIT 2005- Study LXXVI ­ Doc. 13vi
APPENDIX :
RULES OF
TRANSNATIONAL CIVIL PROCEDURE
(with commentary)
Rule
A. Interpretation and Scope
1. Standards of Interpretation 34
2. Disputes to Which These Rules Apply 34
B. Jurisdiction, Joinder, and Venue
3. Forum and Territorial Competence 35
4. Jurisdiction Over Parties 36
5. Multiple Claims and Parties; Intervention 37
6. Amicus Curiae Submission 38
7. Due Notice 38
8. Languages 39
C. Composition and Impartiality of the Court
9. Composition of the Court 39
10. Impartiality of the Court 40
D. Pleading Stage
11. Commencement of the Proceeding and Notice 40
12. Statement of Claim (Complaint) 41
13. Statement of Defense and Counterclaims 42
14. Amendments 43
15. Dismissal and Default Judgment 44
16. Settlement Offer 45
E. General Authority of the Court
17. Provisional and Protective Measures 47
18. Case Management 48
19. Early Court Determinations 50
20. Orders Directed to a Third Person 51
F. Evidence
21. Disclosure 52
22. Exchange of Evidence 53
23. Deposition and Testimony by Affidavit 55
24. Public Proceedings 57
25. Relevance and Admissibility of Evidence 57
26. Expert Evidence 59
27. Evidentiary Privileges 60
28. Reception and Effect of Evidence 61
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 vii
G. Final Hearing
29. Concentrated Final Hearing 62
30. Record of the Evidence 63
31. Final Discussion and Judgment 64
32. Costs 64
H. Appellate and Subsequent Proceedings
33. Appellate Review 66
34. Rescission of Judgment 67
35. Enforcement of Judgment 68
36. Recognition and Judicial Assistance 69
UNIDROIT 2005- Study LXXVI ­ Doc. 13viii
MEMBERS OF THE JOINT ALI/UNIDROIT WORKING GROUP
Mr Ronald T. NHLAPO Chairman
Minister and Deputy Chief of Mission
Embassy of South Africa, Washington, D.C.
Mr Neil ANDREWS Cambridge University (United Kingdom)
Dra Aida R. KEMELMAJER DE CARLUCCI Ministro de la Suprema Corte di Justicia de
Mendoza
Mme Frédérique FERRAND Université Jean Moulin
Institut de Droit et ďEconomie des Affaires
(I.D.E.A.)
Mr Geoffrey C. HAZARD, Jr. University of Pennsylvania Law School
Mr Masanori KAWANO Nagoya University, School of Law
Mr Pierre LALIVE Lalive & Partners Attorneys-at-law
Geneva
Mr Rolf STÜRNER Albert-Ludwigs-Universität Freiburg
Institut für Deutsches und Ausländisches Zivil
Prozessrecht
Secretary to the Working Group was Mr Antonio GIDI
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13
INTRODUCTION
I. International "Harmonization" of Procedural Law
The human community of the world lives in closer quarters today than in earlier times.
International trade is at an all-time high and is increasing steadily; international investment and
monetary flows increase apace; businesses from the developed countries establish themselves all
over the globe directly or through subsidiaries; business people travel abroad as a matter of
routine; ordinary citizens in increasing numbers live temporarily or permanently outside their
native countries. As a consequence, there are positive and productive interactions among citizens
of different nations in the form of increased commerce and wider possibilities for personal
experience and development. There are also inevitable negative interactions, however, including
increased social friction, legal controversy, and litigation.
In dealing with these negative consequences, the costs and distress resulting from legal
conflict can be mitigated by reducing differences in legal systems, so that the same or similar
"rules of the game" apply no matter where the participants may find themselves. The effort to
reduce differences among national legal systems is commonly referred to as "harmonization."
Another method for reducing differences is "approximation," meaning the process of reforming the
rules of various legal systems so that they approximate each other. Most endeavors at
harmonization and approximation have addressed substantive law, particularly the law governing
commercial and financial transactions. There is now in place a profusion of treaties and
conventions governing these subjects as well as similar arrangements addressing personal rights
such as those of employees, children, and married women.1
Harmonization of procedural law has made much less progress. Some conventions on civil
and human rights contain fundamental procedural guaranties, such as equality before courts and
the right to a fair, effective, public, and oral hearing or trial before an independent court. These
guaranties are common international standards and a universally recognized basis of procedural
harmonization.2
Further harmonization has been impeded by the assumption that national procedural
systems are too different from each other and too deeply embedded in local political history and
cultural tradition to permit reduction or reconciliation of differences among legal systems. There
are, to be sure, some international conventions dealing with procedural law, notably the Hague
Conventions on the Service Abroad and on the Taking of Evidence Abroad, the efforts of the Hague
to frame a Convention on Jurisdiction and Judgments, and European conventions on recognition of
judgments.3
Thus far, the international conventions on procedural law have addressed the bases of
1
See, e.g., Convention on the Rights of the Child, November 20, 1989, 28 I.L.M. 1448; United States Egypt
Treaty Concerning the Reciprocal Encouragement and Protection of Investments, September 29, 1982, 21
I.L.M. 927; Convention on the Elimination of All Forms of Discrimination Against Women, December 18, 1979,
19 I.L.M. 33; International Covenant on Civil and Political Rights, December 16, 1966, 999 U.N.T.S. 171;
Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, March 16,
1965, 17 U.S.T. 1270, T.I.A.S. No. 6090, 575 U.N.T.S. 159.
2
See, e.g., Article 47 of the Charter of fundamental rights of the European Union, OJ 2000 C 364/1;
Article 7 of the African Charter on Human and People's Rights, June 27, 1981, 21 I.L.M. 58; Article 8 of the
American Convention on Human Rights, November 22, 1969, 1144 U.N.T.S. 123; Article 14 of the International
Covenant on Civil and Political Rights, December 16, 1966, 999 U.N.T.S. 171; Article 6 of the Convention for the
Protection of Human Rights and Fundamental Freedoms, November 4, 1950, E.T.S. No. 5, as amended by
Protocol No. 11, E.T.S. No. 155.
3
See Hague Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil and
Commercial Matters, November 15, 1965, 20 U.S.T. 1361; 16 I.L.M. 1339; Hague Convention on the Taking of
Evidence Abroad in Civil or Commercial Matters, March 18, 1970, 23 U.S.T. 2555, 8 I.L.M. 37; Brussels
Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters, Sept. 27, 1968, 8
I.L.M. 229, reprinted as amended in 29 I.L.M. 1413, substantially replaced by the Council Regulation (EC) No
44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and
commercial matters, OJ 2011 L 12/1; Lugano Convention on Jurisdiction and Enforcement of Judgments in Civil
and Commercial Matters, Sept 16, 1988, 28 I.L.M. 620. See also, e.g., Catherine Kessedjian, Hague Conference
on Private International Law, International Jurisdiction and Foreign Judgments in Civil and Commercial Matters
(April 1997).
UNIDROIT 2005- Study LXXVI ­ Doc. 132
personal jurisdiction and the mechanics for service of process to commence a lawsuit, on one end
of the litigation process, and recognition of judgments on the other end of the process.
However, the pioneering work of Professor Marcel Storme and his distinguished
collaborators has demonstrated that harmonization is possible in such procedural matters as the
formulation of claims, the development of evidence, and the decision procedure.4
This project to
develop Principles and Rules for transnational civil procedure has drawn extensively on the work of
Professor Storme's group.
International arbitration often is a substitute for adjudication in national courts. However,
the international conventions on arbitration have the same limited scope as the conventions
dealing with international litigation in judicial forums. Thus, the international conventions on
arbitration address aspects of commencement of an arbitration proceeding and the recognition to
be accorded an arbitration award, but say little or nothing about the procedure in an international
arbitration proceeding as such.5
Instead, the typical stipulation concerning hearing procedure in
international arbitration is that the procedural ground rules shall be as determined by negotiation
or by the administering authority or the neutral arbitrator.6
This project endeavors to draft procedural principles and rules that a country could adopt
for adjudication of disputes arising from international commercial transactions.7
The project is
inspired in part by the Approximation project led by Professor Storme, mentioned above; in part by
The American Law Institute project on Transnational Insolvency; and in part by the successful
effort in the United States a half-century ago to unite many diverse jurisdictions under one system
of procedural rules with the adoption of the Federal Rules of Civil Procedure. The Federal Rules
established a single procedure to be employed in federal courts sitting in 48 different semisovereign
states, each with its own procedural law, its own procedural culture, and its own bar.
The Federal Rules thereby accomplished what many thoughtful observers thought impossible -- a
single system of procedure for four dozen different legal communities. The project to establish
Principles and Rules of Transnational Civil Procedure conjectures that a procedure for litigation
across national boundaries is also worth the attempt.
II. UNIDROIT Partnership
In 2000, after a favorable report from Professor Rolf Stürner, the International Institute for
the Unification of Private Law (UNIDROIT) joined the ALI in this project. Professor Stürner has been
a Reporter, appointed by UNIDROIT, since 2001. It was at UNIDROIŤs initiative that the
preparation of Principles of Transnational Civil Procedure was undertaken. Since then, the project
has primarily focused on the Principles.
A formulation of Principles generally appeals to the civil-law mentality. Common-law
lawyers may be less familiar with this sort of generalization. Since the Principles and Rules have
been developed simultaneously, the relation between generality and specification is illuminated
more sharply. The Principles are interpretive guides to the Rules, which are a more detailed body of
procedural law. The Principles could also be adopted as principles for interpretation of existing
national codes of procedure. Correlatively, the Rules can be considered as an exemplification or
implementation of the Principles, suitable either for adoption or for further adaptation in particular
jurisdictions. Both can be considered as models for reform in domestic legislation.
4
Marcel Storme (ed.) Approximation of Judiciary Law in the European Union, Kluwer, 1994. See also
Anteproyecto del Código Procesal Civil Modelo para Iberoamerica, REVISTA DE PROCESSO, Vols. 52 and 53, 1988
and 1989 (creating a Model Code of Civil Procedure for Iberoamerica.)
5
See New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 19,
1958, 21 U.S.T. 2517, T.I.A.S. No. 6997, 330 U.N.T.S. 38.
6
Alan S. Rau and Edward F. Sherman, Tradition and Innovation in International Arbitration Procedure,
30 TEX. INŤL L.J. 89, 90 (1995).
7
See John J. Barceló III, Introduction to Geoffrey C. Hazard, Jr., and Michele Taruffo, Transnational
Rules of Civil Procedure, 30 CORNELL INŤL L.J. 493, 493-494 (1997).
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 3
The ALI/UNIDROIT Working Group has had four week-long meetings in the UNIDROIT
Headquarters in Rome in four years. The ALI Advisers and Members Consultative Group have had
five meetings and drafts have been considered at five ALI Annual Meetings. Much additional
discussion has also taken place by means of international conferences held in different countries
and correspondence over the last seven years.
III. Fundamental Similarities in Procedural Systems
In undertaking international harmonization of procedural law, the Reporters have come to
identify both fundamental similarities and fundamental differences among procedural systems.
Obviously, it is the fundamental differences that present the difficulties. However, it is important to
keep in mind that all modern civil procedural systems have fundamental similarities. These
similarities result from the fact that a procedural system must respond to several inherent
requirements. Recognition of these requirements makes easier the task of identifying functional
similarities in diverse legal systems and, at the same time, puts into sharper perspective the ways
in which procedural systems differ from one another.
The fundamental similarities among procedural systems can be summarized as follows:
* Standards governing assertion of personal jurisdiction and subject-matter
jurisdiction,
* Specifications for a neutral adjudicator,
* Procedure for notice to defendant,
* Rules for formulation of claims,
* Explication of applicable substantive law,
* Establishment of facts through proof,
* Provision for expert testimony,
* Rules for deliberation, decision, and appellate review,
* Rules of finality of judgments.
Of these, the rules of jurisdiction, notice, and recognition of judgments are sufficiently
similar from one country to another that they have been susceptible to substantial resolution
through international practice and formal conventions. Concerning jurisdiction, the United States is
aberrant in that it has an expansive concept of "long-arm" jurisdiction, although this difference is
one of degree rather than one of kind, and in that United States law governing authority of its
constituent states perpetuates jurisdiction based on simple presence of the person ("tag"
jurisdiction). Specification of a neutral adjudicator begins with realization that all legal systems
have rules to assure that a judge or other adjudicator should be disinterested. Accordingly, in
transnational litigation reliance generally can be placed on the local rules expressing that principle.
Similarly, an adjudicative system requires a principle of finality. Therefore, the concept of "final"
judgment is also generally recognized, although some legal systems permit the reopening of a
determination more liberally than other systems do. The corollary concept of mutual recognition of
judgments is also universally accepted.
IV. Differences Among Procedural Systems
The differences in procedural systems are, along one division, differences between the
common-law systems and the civil-law systems. The common-law systems all derive from England
and include Canada, Australia, New Zealand, South Africa, India, and the United States, as well as
Israel, Singapore, and Bermuda. The civil-law systems originated on the European continent and
include those derived from Roman law (the law of the Roman Empire codified in the Justinian
Code) and canon law (the law of the Roman Catholic Church, itself substantially derived from
Roman law). The civil-law systems include those of France, Germany, Italy, Spain, and virtually all
UNIDROIT 2005- Study LXXVI ­ Doc. 134
other European countries and, in a borrowing or migration of legal systems, those of Latin America,
Africa, and Asia, including Brazil, Argentina, Mexico, Egypt, Russia, Japan, and China.
The significant differences between common-law and civil-law systems are as follows:
* The judge in civil-law systems, rather than the advocates in common-law systems,
has primary responsibility for development of the evidence and articulation of the legal concepts
that should govern decision. However, there is great variance among civil-law systems in the
manner and degree to which this responsibility is exercised, and no doubt variance among the
judges in any given system.
* Civil-law litigation in many systems proceeds through a series of short hearing
sessions -- sometimes less than an hour each -- for reception of evidence, which is then consigned
to the case file until an eventual final stage of analysis and decision. In contrast, common-law
litigation has a preliminary or pretrial stage (sometimes more than one) and then a trial at which
all the evidence is received consecutively.
* A civil-law judgment in the court of first instance is generally subject to more
searching reexamination in the court of second instance than a common-law judgment.
Reexamination in the civil-law systems extends to facts as well as law.
* The judges in civil-law systems typically serve a professional lifetime as judge,
whereas the judges in common-law systems generally are selected from the ranks of the bar.
Thus, most civil-law judges lack the experience of having been a lawyer, whatever effects that may
have.
These are important differences, but they are not irreconcilable.
The American version of the common-law system has differences from other common-law
systems that are of at least equal significance. The American system is unique in the following
respects:
* Jury trial is a broadly available right in the American federal and state courts. No
other country routinely uses juries in civil cases.
* American rules of discovery give wide latitude for exploration of potentially relevant
information and evidence, including through oral deposition.
* The American adversary system generally affords the advocates far greater latitude
in presentation of a case than is customary in other common-law systems.
* The American system operates through a cost rule under which each party ordinarily
pays that party's own lawyer and cannot recover that expense from a losing opponent. In almost
all other countries, except Japan and China, the winning party, whether plaintiff or defendant,
recovers at least a substantial portion of litigation costs.8
* American judges are selected through a variety of ways in which political affiliation
plays an important part. In most other common-law countries judges are selected on the basis of
professional standards.
Most of the major differences between the United States and other common law systems
stem from the use of juries in American litigation. American proceedings conducted by judges
without juries closely resemble their counterparts in other common-law countries.
8
See generally Hughes and Snyder, Litigation and Settlement under the English and American Rules:
Theory and Evidence, 38 J.L. & ECON. 225 (1995); A. Tomkins and T. Willging, Taxation of Attorney's Fees:
Practices in English, Alaskan and Federal Courts (1986). See also, e.g., A. Ehrenzweig, Reimbursement of
Counsel Fees and the Great Society, 54 CALIF. L. REV. 792 (1963); T. Rowe, The Legal Theory of Attorney Fee
Shifting: A Critical Overview, 1982 DUKE L.J. 651.
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 5
V. Rules for Formulation of Claims (Pleading)
The rules governing formulation of claims are substantially similar in most legal systems.
The pleading requirement in most common-law systems requires that the claimant state the claim
with reasonable particularity as to facts concerning persons, place, time, and sequence of events
involved in the relevant transaction. This pleading rule is essentially similar to the Code Pleading
requirement that governed in most American states prior to adoption of the Federal Rules of Civil
Procedure in 1938.9
This rule was abandoned in federal courts in the United States in 1938 and
replaced by the Notice Pleading, which required a much less detailed pleading. The Principles and
Rules require that pleading be in detail with particulars as to the basis of claim and that the
particulars reveal a set of facts that, if proved, would entitle the claimant to a judgment.
VI. Exchange of Evidence
The pleading rule requiring specific allegations of fact reduces the potential scope of
discovery, because it provides for tightly framed claims and defenses from the very beginning of
the proceeding. Moreover, the pleading rule contemplates that a party that has pleaded specific
facts will be required to reveal, at a second stage of the litigation, the specific proof on which it
intends to rely concerning these allegations, including documents, summary of expected testimony
of witnesses, and experts' reports. The Principles and Rules require disclosure of these sources of
proof before the plenary hearing. These requirements presuppose that a claimant properly may
commence litigation only if the claimant has a provable case and not merely the hope or
expectation of uncovering such a case through discovery from the opposing party.
The combination of strict rules of pleading and compulsory disclosure further reduces the
necessity of additional exchange of evidence. A party generally must show its own cards, so to
speak, rather than getting them from an opponent. Within that framework, the Rules attempt to
define a limited right of document discovery and a limited right of deposition. These are regarded
as improper in many civil-law systems. However, a civil-law judge has authority to compel
presentation of relevant documentary evidence and testimony of witnesses. In a modern legal
system, there is a growing practical necessity -- if one is serious about justice -- to permit
document discovery to some extent and, at least in some cases, deposition of key witnesses.
In most common-law jurisdictions, pretrial depositions are unusual and, in some countries
are employed only when the witness will be unavailable for trial. Documents are subject to
discovery only when relevant to the proceeding. Relevance for this purpose is defined by reference
to the pleadings and, as noted above, the rules of pleading require full specification of claims and
defenses.10
In contrast, wide-ranging pre-trial discovery is an integral part of contemporary
American civil litigation, particularly in cases involving substantial stakes. The American Federal
Rules of Civil Procedure were recently amended to restrict disclosure and discovery in certain
respects, but the scope is still much broader than it is in other common-law countries. The
Principles and Rules offer a compromise towards approximation in international litigation.
The rules for document production in the common-law systems all derive from the English
Judicature Acts of 1873 and 1875. In 1888 the standard for discovery was held in the leading
Peruvian Guano decision to cover
any document that relates to the matters in question in the action, which not only would
be evidence upon any issue, but also which, it is reasonable to suppose, contains
information which may -- not which must -- either directly or indirectly enable the party
. . . either to advance his own case or to damage the case of his adversary . . . [A]
document can properly be said to contain information which may enable the party
requiring the affidavit either to advance his own case or to damage the case of his
9
L. Tolman, Advisory Committee's Proposals to Amend the Federal Rules of Civil Procedure, 40 A.B.A. J.
843, 844 (1954); F. James, G. Hazard, and J. Leubsdorf, Civil Procedure §§ 3.5, 3.6 (5th ed. 2001).
10
See generally C. Platto, ed. Pre-Trial and Pre-Hearing Procedures Worldwide (1990).
UNIDROIT 2005- Study LXXVI ­ Doc. 136
adversary, if it is a document which may fairly lead him to a train of inquiry, which may
have either of these two consequences. . . .11
Under the civil law there is no discovery as such. However, a party has a right to request
the court to interrogate a witness or to require the opposing party to produce a document. This
arrangement is a corollary of the general principle in the civil-law system that the court rather than
the parties is in charge of the development of evidence. In some civil-law systems a party cannot
be compelled to produce a document that will establish its own liability -- something like a civil
equivalent of a privilege against self-incrimination. However, in many civil-law systems a party
may be compelled to produce a document when the judge concludes that the document is the only
evidence concerning the point of issue. This result can also be accomplished by holding that the
burden of proof as to the issue shall rest with the party having possession of the document. In any
event, the standard for production under the civil law appears uniformly to be "relevance" in a
fairly strict sense.
VII. Procedure at Plenary Hearing
Another difference between civil-law systems and common-law systems concerns
presentation of evidence. It is well known that in the civil-law tradition the evidence is developed
by the judge with suggestions from the advocates, while in the common-law tradition the evidence
is presented by the advocates with supervision and supplementation by the judge. Furthermore, in
many civil-law systems the evidence is usually taken in separate stages according to availability of
witnesses, while in the common-law system it is usually taken in a consecutive hearing for which
the witnesses must adjust their schedules. More fundamentally, the basic conception of the plenary
hearing in the civil-law system has been that of an inquiry by the judge that is monitored by
advocates on behalf of the parties, while the conception of a trial in the common-law systems is
that of juxtaposed presentations to the court by the parties through their advocates.
In more pragmatic terms, the effectuation of these different conceptions of the plenary
hearing requires different professional skills on the part of judge and advocates. An effective judge
in the civil-law system must be able to frame questions and pursue them in an orderly series, and
an effective advocate must give close attention to the judge's questioning and be alert to suggest
additional directions or extensions of the inquiry. In the common-law system the required skills are
more or less the opposite. The common-law advocate must be skillful at framing questions and
pursuing them in orderly sequence, while the judge must be attentive to pursuing further
development by supplemental questions. However, these differences are ones of degree, and the
degrees of differences have diminished in the modern era.
VIII. Second-Instance Review and Finality
The Principles and Rules defer to the law of the forum concerning second-instance
proceedings ("appeal"). The same is true for further review in a higher court, as is available in
many systems. The Principles and Rules define conditions of finality that discourage the reopening
of an adjudication that has been completed. An adjudication fairly conducted is the best
approximation of true justice that human enterprise can afford. On that basis, an adjudication
should be left at rest even when there may be some reason to think that a different result could be
achieved, unless there is a showing of fraud in the proceeding or of conclusive evidence that was
previously undisclosed and not reasonably discoverable at the time. The Principles and Rules adopt
an approach to finality based on that philosophy.
IX. Recognition of the Principles and Rules
The Principles express basic concepts of fairness in resolution of legal disputes prevailing in
modern legal systems. Most modern legal systems could implement the Principles by relatively
11
Compagnie Financire et Commerciale du Pacifique v. Peruvian Guano Co., 11 QBD 55, 63 (1882)
(interpreting Order XXXI., rule 12, from the 1875 Rules of Supreme Court, which required production of
documents "relating to any matters in question in the action.").
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 7
modest modifications of their own codes of civil procedure. More substantial modification would be
required in systems in which a party ordinarily has no opportunity to obtain evidence in its favor
from an opposing party. The Rules, which are a model provided by the Reporters, but not formally
adopted by Unidroit or the Institute, are a suggested implementation of the Principles, providing
greater detail and illustrating concrete fulfillment of the Principles. Both Principles and Rules seek
to combine the best elements of adversary procedure in the common-law tradition with the best
elements of judge-centered procedure in the civil-law tradition. They are expressed in terminology
and through concepts that can be assimilated in all legal traditions. The Principles and Rules could
also be used in modified form in arbitration proceedings.
The implementation of these Principles and Rules is a matter of the domestic and
international law of nation states. They 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. In a given federal
system, these Principles and Rules might be adopted by the federal power to be used in the federal
courts and by the state or provincial powers for use in the state or provincial courts. As used in the
Principles and Rules, "state" refers to a national state and not to a province or state within a
federal system.
These Principles and Rules could be adopted for use in the first-instance courts of general
jurisdiction, in a specialized court, or in a division of the court of general jurisdiction having
jurisdiction over commercial disputes. These Principles and Rules can also serve as models in the
reform of various procedural systems.
X. Purpose of the Principles and Rules
The objective of the Principles and Rules is to offer a system of fair procedure for litigants
involved in legal disputes arising from transnational commercial transactions. Appreciating that all
litigation is unpleasant from the viewpoint of the litigants, the Principles and Rules seek to reduce
the uncertainty and anxiety that particularly attend parties obliged to litigate in unfamiliar
surroundings. The reduction of difference in legal systems, commonly called "harmonization" of
law, is an aspect of achieving such fairness. However, a system of rules is only one aspect of fair
procedure. Much more important, as a practical matter, are the competence, 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 Principles and Rules seek to express, so far as such formulations can do so, the ideal
of disinterested adjudication. In this regard, they also can provide terms of reference in matters of
judicial cooperation, wherein the courts of different legal systems provide assistance to each other.
By the same token, reference to the standards 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 Principles and Rules, especially those prescribed for pleading, development and
presentation of evidence and legal argument, and the final determination by the tribunal, may be
adopted or referenced in proceedings not otherwise governed by these Rules, particularly
arbitration. Also, a court could refer to the Principles and Rules as generally recognized standards
of civil justice, when doing so is not inconsistent with its own organic or procedural law.
It is contemplated that, where adopted, the Principles and Rules would be a special form of
procedure applicable to the disputes to which they are addressed, parallel to other specialized
procedural rules that most nation states have for such matters as bankruptcy, labor disputes,
administration of decedenťs estates, and civil claims against government agencies. Where
permissible by forum law, with the consent of the court, the Rules could also be adopted through
stipulation by parties to govern, in whole or in part, litigation between them. Such an
UNIDROIT 2005- Study LXXVI ­ Doc. 138
implementation in substance would be a party stipulation to waive the otherwise governing rules of
procedure in favor of these Rules.
XI. Revisions from Prior Drafts
Prior drafts of the Principles and Rules have been published in law reviews worldwide. See
30 CORNELL INŤL L.J. 493 (1997), 33 TEX. INŤL L.J. 499 (1998), and 33 N.Y.U. J. INŤL L. & POL. 769
(2001). These drafts, together with the ALI and UNIDROIT publications12
, have elicited valuable
criticism and comments from legal scholars and lawyers from both civil- and common-law
systems.13
Comparison will demonstrate that many modifications have been adopted as a result of
12
The most relevant ALI publications were Preliminary Drafts No. 1 (1998), No. 2 (2000), No. 3 (2002),
Interim Revision (1998), Council Drafts No. 1 (2001), No. 2 (2003), Discussion Drafts No. 1 (1999), No. 2
(2001), No. 3 (2002), No. 4 (2003), and Proposed Final Draft (2004). The most relevant UNIDROIT publications
were Study LXXVI ­ Doc. 4 (2001), Doc. 5 (2002), Doc. 9 (2002), and Doc. 10 (2003), and Study LXXVI ­
Secretary's Report (2001), (2002), (2003), and (2004). These publications were widely circulated worldwide,
both in print and in electronic form.
13
See Geoffrey C. Hazard, Jr., Litigio civil sin fronteras: armonización y unificación del derecho procesal,
11 TRIBUNALES DE JUSTICIA 24 (2002) [Spain]; Antonio Gidi, Iniciativas para la formulación de normas uniformes
en el ámbito del derecho procesal civil internacional, 54 DERECHO PUC 245 (2001) [Peru], also published in 11
TRIBUNALES DE JUSTICIA 21 (2002) [Spain], and in 26 REV. DIR. PROC. CIV. (2002) [Brazil]; Hazard, Stürner,
Taruffo, Gidi, Principios fundamentales del proceso civil transnacional, 54 DERECHO PUC 253 (2001), also
published in 11 TRIBUNALES DE JUSTICIA 27 (2002) [Spain], and in 26 REV. DIR. PROC. CIV (2002) [Brazil];
Hazard, Taruffo, Stürner, Gidi, Normas del proceso civil transnacional, 54 DERECHO PUC 263 (2001), also
published in 11 TRIBUNALES DE JUSTICIA 31 (2002) [Spain], and in 26 REV. DIR. PROC. CIV (2002) [Brazil];
Lorena Bachmaier Winter, 11 TRIBUNALES DE JUSTICIA 19 (2002) [Spain]; JORGE SÁNCHEZ CORDERO & ANTONIO
GIDI, LAS REGLAS Y PROCEDIMIENTOS DEL DERECHO PROCESAL CIVIL TRANSNACIONAL. EL PROYECTO AMERICAN LAW
INSTITUTE-UNIDROIT (2003).
Special Issue: Harmonising Transnational Civil Procedure: The ALI/Unidroit Principles and Rules. Vers
Une Procedure Civile Transnationale Harmonisee: Les Principes Et Regles Ali / Unidroit: VI Uniform Law Review /
Revue de Droit Uniforme 740 (2001). Herbert Kronke, Efficiency, Fairness, Macro-Economic Functions:
Challenges for the Harmonisation of Transnational Civil Procedure, 740; Herbert Kronke, Efficacité, impartialité,
fonctions macro-économiques: les objectifs de ľharmonisation de la procédure civile transnationale, 741;
Geoffrey C. Hazard, Jr., Fundamentals of Civil Procedure, 753; Marcel Storme, Procedural Law and the Reform
of Justice: From Regional to Universal Harmonisation, 763; Philippe Fouchard, Une procédure civile
transnationale: Quelle fin et quels moyens?, 779; Stephen Goldstein, The Proposed ALI/UNIDROIT Principles
and Rules of Transnational Civil Procedure: the Utility of Such a Harmonization Project, 789; Janet Walker, The
Utility of the ALI/UNIDROIT Project on Principles and Rules of Transnational Civil Procedure, 803; Antonio Gidi,
Notes on Criticizing the Proposed ALI/UNIDROIT Principles and Rules of Transnational Civil Procedure, 819;
Haimo Schack, Transnational Service of Process: a Call for Uniform and Mandatory Rules, 827; L.J. Priestley,
QC, Transnational Civil Procedure ­ Fact Pleading v. Notice Pleading: its Significance in the Development of
Evidence, 841; Edward H. Cooper, Transnational Civil Procedure: Fact Pleading or Notice Pleading? A Viewpoint
from the USA, 857; Rolf Stürner, Transnational Civil Procedure: Discovery and Sanctions Against Noncompliance,
871; Pierre Lalive, Principe ďinquisition et principe accusatoire dans ľarbitrage commercial
international, 887; Gabriele Mecarelli, Quelques réflexions en matire de discovery, 901; Aída Kemelmajer de
Carlucci, La charge de la preuve dans les Principes et Rgles ALI/UNIDROIT relatifs  la procédure civile
transnationale, 915; Jean-Paul Béraudo, Réflexions sur les Principes ALI/UNIDROIT  propos de la preuve, 925;
Neil Andrews, Provisional and Protective Measures: Towards a Uniform Protective Order in Civil Matters, 931;
Bryan Beaumont, The Proposed ALI/UNIDROIT Principles of Transnational Civil Procedure and their Relationship
to Australian Jurisdictions, 951; Sheldon H. Elsen, An American Lawyer Looks at Litigation under the Proposed
ALI/UNIDROIT Principles and Rules of Transnational Civil Procedure, 971; Valentinas Mikelénas, The Proposed
ALI/UNIDROIT Principles and Rules of Transnational Civil Procedure and the New Code of Civil Procedure in
Lithuania, 981; Frédérique Ferrand, Les "Principes" relatifs  la procédure civile transnationale sont-ils
autosuffisants? ­ De la nécessité ou non de les assortir de "Rgles" dans le projet ALI/UNIDROIT, 995; Thomas
Pfeiffer, The ALI/UNIDROIT Project: Are Principles Sufficient, Without the Rules?, 1015.
See also VERS UN PROCES CIVIL UNIVERSEL? LES REGLES TRANSNATIONALES DE PROCEDURE CIVILE DE
ĽAMERICAN LAW INSTITUTE (Philippe Fouchard ed., 2001): Michele Taruffo, La Gense et la finalité des Rgles
Proposées par ľAmerican Law Institute; Pierre Mayer, ĽUtilité des Rgles Transnationales de Procédure Civile:
Une vue Critique; Horatia Muir Watt, Quelle Méthode?; Marie-Laure Niboyet, Quels Litiges?; Hélne GaudemetTallon,
Quel Judge?; Geoffrey Hazard, Le Déroulement du Procs; Jacques Normand, La Confrontation des
Principes Directeurs; Catherine Kessedjian, Quelques Réflexions en Matire de Preuves; Loic Cadiet, Quelles
Preuves? Discovery, Témoins, Experts, Rôle Respectif des Parties et du Juge; Antonio Gidi, Vers un Procs Civil
Transnational. Une Premire Rponse aux Critiques; Philippe Fouchard, Clôture; Garbriele Mecarelli, Les
Principes Fondametaux et les nouvelles Rgles de Procédure Civile Transnationale: Premires Observations.
See also Hazard, Taruffo, Stürner, and Gidi, Principles and Rules of Transnational Civil Procedure, 33
N.Y.U. J. INŤL L. & POL. 769 (2001); ESSAYS ON TRANSNATIONAL AND COMPARATIVE CIVIL PROCEDURE (Federico
Carpi and Michele Lupoi, eds. 2001); Gerhard Walter and Samuel P. Baumgartner, Improving the Prospects of
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 9
extensive discussions and deliberations following those previous publications. The net effect has
been a new text with each new publication.
Earlier drafts of the Principles and Rules were translated into Russian by Nikolai Eliseev;
into Arabic by Hossam Loutfi; into German by Gerhard Walter from Bern University and later by
Stefan Huber from Heidelberg University; into Japanese by Koichi Miki from Keio University; into
Greek by Flora Triantaphyllou; into French by Frédérique Ferrand from the University Jean Moulin
and Gabriele Mecarelli from Paris University; into Chinese by Chi-Wei Huang and Chen Rong; into
Italian by Francesca Cuomo and Valentina Riva from Pavia University; into Croatian by Eduard
Kunštek; into Spanish by Lorena Bachmaier Winter from Universidad Complutense de Madrid,
Evaluz Cotto from Puerto Rico University, Franciso Malaga from Pompeu Fabra University, Aníbal
Quiroga León from Catholic University of Peru, Horácio Segundo Pinto from the Catholic University
of Argentina, and Eduardo Oteiza from the National University of La Plata; and into Portuguese by
Associate Reporter Antonio Gidi and later by Cassio Scarpinella Bueno. It is hoped that there will be
translations into additional languages in the future.
The numerous revisions of the Principles and Rules emerged from discussions at several
locations with Advisers and Consultants from various countries, including meetings in Stockholm,
Sweden; Riga, Latvia; Athens, Greece; Iguassu Falls, Brazil; Buenos Aires, Argentina; Bologna and
Rome, Italy; Freiburg and Heidelberg, Germany; Barcelona, Spain; Vancouver, Canada; San
Francisco, Boston, Washington, and Philadelphia, United States; Vienna, Austria; Tokyo, Japan;
Singapore; Paris and Lyon, France; Mexico City, Mexico; Beijing, China; Moscow, Russia; and
London, England. Criticism and discussion also were conducted through correspondence.14
the Transnational Rules of Civil Procedure Project: Some Thoughts on Purpose and Means of Implementation,
18 KITSUMEIKAN L. REV. 169 (2001); Rolf Stürner, Rgles Transnationales de Procédure Civile? Quelques
Remarques ďun Européen sur un Nouveau Projet Commun de ľAmerican Law Institute et ďUNIDROIT, R.I.D.C.
845 (2000); Rolf Stürner, Some European Remarks on a New Joint Project of The American Law Institute and
UNIDROIT, 34 INŤL LAW. 1071 (2000); Antonio Gidi, Presentación del Proyecto de Normas Transnacionales del
Proceso Civil, 52 DERECHO PUC 607 (1999); Antonio Gidi, Normas Transnacionais de Processo Civil, 8 REVISTA
DOS MESTRANDOS EM DIREITO ECONÔMICO DA UFBA 54 (2000); José Lebre de Freitas, O Anteprojecto HazardTaruffo
para o Processo dos Litígios Comerciais Internacionais, 2 THEMIS. REVISTA DA FACULDADE DE DIREITO DA
UNIVERSIDADE NOVA DE LISBOA 19 (2000); Eduard Kunštek, Transnacionalna Pravila Gradanskog Postupka, 21
ZBORNIK PRAVNOG FAKULTETA SVEU˘CILI˘STA U RIJECI 351 (2000); Antonio Gidi, Apresentaço s Normas
Transnacionais de Processo Civil, 8 REVISTA DOS MESTRANDOS EM DIREITO ECONÔMICO DA UFBA 40 (2000)
[Brazil], also published in 52 DERECHO PUC 593 (1999) [Peru], in ROMA E AMERICA 335 (2000) [Italy], and in
102 REPRO 185 (2001) [Brazil]; Gerhard Walter & Samuel P. Baumgartner, Improving the Prospects of the
Transnational Rules of Civil Procedure Project: Some Thoughts on Purpose and Means of Implementation, 6
ZEITSCHRIFT FÜR ZIVILPROZEß INTERNATIONAL (2000), also published in 18 RITSUMEIKAN L. REV. 169 (2001);
Samuel P. Baumgartner, Gaining a Worldly Perspective for the World in Our Courts, unpublished manuscript (on
file with ALI); Joaquim-J. Forner Delaygua, El Proyecto del American Law Institute `Transnational Rules of Civil
Procedure': La Cooperación Judicial, 0 ANNUARIO ESPAOL DE DERECHO INTERNACIONAL PRIVADO 275 (2000);
Geoffrey C. Hazard, Jr., Litigio Civil Sin Fronteras: Armonización y Unificación del Derecho Procesal, 52 DERECHO
PUC 583 (1999); and Geoffrey C. Hazard, Jr., Civil Litigation Without Frontiers: Harmonization and Unification of
Procedural Law, 52 DERECHO PUC 575 (1999).
See also Gary Born, Critical Observations on the Draft Transnational Rules of Civil Procedure, 33 TEX.
INŤL L.J. 387 (1998); Russell J. Weintraub, Critique of the Hazard-Taruffo Transnational Rules of Civil
Procedure, 33 TEX. INŤL L.J. 413 (1998); Jacob Dolinger and Carmen Tiburcio, The Forum Law Rule in
International Litigation ­ Which Procedural Law Governs Proceedings to be Performed in Foreign Jurisdictions:
Lex Fori or lex Diligentiae?, 33 TEX. INŤL L.J. 425 (1998); Gerhard Walter and Samuel P. Baumgartner, Utility
and Feasibility of Transnational Rules of Civil Procedure: Some German and Swiss Reactions to the HazardTaruffo
Project, 33 TEX. INŤL L.J. 463 (1998); Catherine Kessedjian, First Impression of the Transnational Rules
of Civil Procedure from Paris and The Hague, 33 TEX. INŤL L.J. 477 (1998); Geoffrey C. Hazard, Jr.,
Transnational Rules of Civil Procedure: Preliminary Draft No. 1, 33 TEX. INŤL L.J. 499 (1998); Michele Taruffo,
Drafting Rules for Transnational Litigation, ZZPINŤL 449 (1997); and John Barcelo III, Transnational Rules of
Civil Procedure. Introduction. 30 CORNELL INŤL L.J. 493 (1997).
14
In the seven years that the project remained open for public debate, we received written contributions
from Lucio Cabrera Acevedo, Ricardo Almeida, Neil Andrews, Mathew Applebaum, Lorena Bachmaier Winter,
Joaquim Barbosa, Robert Barker, Samuel Baumgartner, Allen Black, Robert Bone, Bennett Boskey, Ronald
Brand, Edward Brown, Stephen Burbank, Robert Byer, Stephen Calkins, Aída Kemelmajer de Carlucci, Robert
Casad, Gerhard Casper, Michael Cohen, Edward Cooper, Thomas F. Cope, Marco de Cristofaro, Sheldon Elsen,
Enrique Falcón, Frédérique Ferrand, José Lebre de Freitas, Carl Goodman, Stephen Goldstein, Peter Gottwald,
Jaime Greif, Trevor Hartley, Lars Heuman, Henry Hoffstot, Jr., Richard Hulbert, J. A. Jolowicz, Mary Kay Kane,
UNIDROIT 2005- Study LXXVI ­ Doc. 1310
The project was the subject of extensive commentary and much candid and helpful
criticism at an October 27, 2000, meeting of French proceduralists in the Université PanthéonAssas
(Paris II), in which participants included Judges Guy Canivet, Jacques Lemontey, and Jean
Buffet, and Professors Bernard Audit, Georges Bolard, Loc Cadiet, Philippe Fouchard, Hélne
Gaudemet-Tallon, Serge Guinchard, Catherine Kessedjian, Pierre Mayer, Horatia Muir-Watt, MarieLaure
Niboyet, Jacques Normand, and Claude Reymond.15
On October 10 and 11, 2001, the project was presented in Renmin University in Beijing to a
large group of Chinese law professors, judges, arbitrators, and practicing attorneys. On October
13, 2001, the project was also presented in Tokyo for the second time to a group of Japanese
experts. On February 28, 2002, the project was presented in the Mexican Center for Uniform Law
and on March 1, 2002, in the UNAM Law School. The meetings in Mexico City were organized by
Jorge Sánchez Cordero and Carlos Sánchez-Mejorada y Velasco. On May 24, 2002, the project was
presented in London, in a conference organized by Professor Neil Andrews and the British Institute
of International and Comparative Law. On June 4, 2002, the project was presented in Moscow, at
the Moscow State Institute of International Relations (MGIMO) in a conference organized by
Professor Sergei Lebedev and Roswell Perkins.16
In the summer of 2003 the project was presented on May 16 and 17, in Bologna, Italy, in a
conference organized by Professor Federico Carpi; on May 29, in Athens, Greece, in a conference
organized by Professor Konstantinos Kerameus; on June 3, in Stockholm, Sweden, in a conference
organized by Assistant Professor Patricia Shaughnessy; on June 6, in Riga, Latvia, in a conference
organized by Professor John Burke; on June 10, in Heidelberg, Germany, in a conference organized
by Professor Thomas Pfeiffer; on June 12, in Lyon, France, in a conference organized by Professor
Frédérique Ferrand; on August 9, in Iguassu Falls, in a conference organized by Professors Luiz
Rodrigues Wambier and Teresa Arruda Alvim Wambier; and on August 14, in Buenos Aires, in a
conference organized by Professors Roberto Berizonce and Eduardo Oteiza, and Justice Aída
Kemelmajer de Carlucci.
It is hoped that this continuing dialogue has made the Principles and Rules more
understandable and therefore more acceptable from both common-law and civil-law perspectives.
Dianna Kempe, Konstantinos Kerameus, Donald King, Faidonas Kozyris, John Leubsdorf, Houston Putnam
Lowry, Luigia Maggioni, Richard Marcus, Stephen McEwen, Jr., James McKay, Gabriele Mecarelli, Tony Moussa,
Ramón Mullerat-Balmaa, Lawrence Newman, Jacques Normand, Olakunle Olatawura, Ernesto Penalva, Thomas
Pfeiffer, Lea Querzola, Hilmar Raeschke-Kessler, William Reynolds, Tom Rowe, Amos Shapira, Patricia
Shaughnessy, Michael Stamp, Hans Rudolf Steiner, Louise Teitz, Laurel Terry, Natalie Thingelstad, Julius
Towers, Spyros Vrellis, Janet Walker, Gerhard Walter, Garry Watson, Jack Weinstein, Ralph Whitten, Des
Williams, Diane Wood, Pelayia Yessiou-Faltsi, Rodrigo Zamora, Joachim Zekoll, and others.
15
See VERS UN PROCES CIVIL UNIVERSEL? LES REGLES TRANSNATIONALES DE PROCEDURE CIVILE DE
ĽAMERICAN LAW INSTITUTE (Philippe Fouchard ed., 2001).
16
15 See MOSCOW JOURNAL OF INTERNATIONAL LAW 252 (2002).
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 11
PRINCIPLES OF TRANSNATIONAL
CIVIL PROCEDURE
(with commentary)
Scope and Implementation
These Principles are standards for adjudication of transnational commercial
disputes. These Principles 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.
Comment:
P-A A national system seeking to implement these Principles could do so by a suitable
legal measure, such as a statute or set of rules, or an international treaty. Forum law may exclude
categories of matters from application of these Principles and may extend their application to other
civil matters. Courts may adapt their practice to these Principles, especially with the consent of the
parties to litigation. These Principles also establish standards for determining whether recognition
should be given to a foreign judgment. See Principle 30. The procedural law of the forum applies in
matters not addressed in these Principles.
P-B The adoptive document may include a more specific definition of "commercial" and
"transnational." That task will necessarily involve careful reflection on local legal tradition and
connotation of legal language. Transnational commercial transactions may include commercial
contracts between nationals of different states and commercial transactions in a state by a national
of another state. Commercial transactions may include sale, lease, loan, investment, acquisition,
banking, security, property (including intellectual property), and other business or financial
transactions, but do not necessarily include claims provided by typical consumer-protection
statutes.
P-C Transnational disputes, in general, do not arise wholly within a state and involve
disputing parties who are from the same state. For purposes of these Principles, an individual is
considered a national both of a state of the person's citizenship and the state of the person's
habitual residence. A jural entity (corporation, unincorporated association, partnership, or other
organizational entity) is considered to be from both the state from which it has received its charter
of organization and the state in which it has its principal place of business.
P-D In cases involving multiple parties or multiple claims, among which are ones not
within the scope of these Principles, these Principles should apply when the court determines that
the principal matters in controversy are within the scope of application of these Principles.
However, these Principles are not applicable, without modification, to group litigation, such as
class, representative, or collective actions.
P-E These Principles are equally applicable to international arbitration, except to the
extent of being incompatible with arbitration proceedings, for example, the Principles related to
jurisdiction, publicity of proceedings, and appeal.
1. Independence, Impartiality, and Qualifications of the Court and its Judges
1.1 The court and the judges should have judicial independence to decide the dispute
according to the facts and the law, including freedom from improper internal and
external influence.
1.2 Judges should have reasonable tenure in office. Nonprofessional members of the
court should be designated by a procedure assuring their independence from the parties,
the dispute, and other persons interested in the resolution.
UNIDROIT 2005- Study LXXVI ­ Doc. 1312
1.3 The court should be impartial. A judge or other person having decisional authority
must not participate if there is reasonable ground to doubt such person's impartiality.
There should be a fair and effective procedure for addressing contentions of judicial bias.
1.4 Neither the court nor the judge should accept communications about the case
from a party in the absence of other parties, except for communications concerning
proceedings without notice and for routine procedural administration. When
communication between the court and a party occurs in the absence of another party,
that party should be promptly advised of the content of the communication.
1.5 The court should have substantial legal knowledge and experience.
Comment:
P-1A Independence can be considered a more objective characteristic and impartiality a
more subjective one, but these attributes are closely connected.
P-1B External influences may emanate from members of the executive or legislative
branch, prosecutors, or persons with economic interests, etc. Internal influence could emanate
from other officials of the judicial system.
P-1C This Principle recognizes that typically judges serve for an extensive period of time,
usually their entire careers. However, in some systems most judges assume the bench only after
careers as lawyers and some judicial officials are designated for short periods. An objective of this
Principle is to avoid the creation of ad hoc courts. The term "judge" includes any judicial or quasijudicial
official under the law of the forum.
P-1D A procedure for addressing questions of judicial bias is necessary only in unusual
circumstances, but availability of the procedure is a reassurance to litigants, especially nationals of
other countries. However, the procedure should not invite abuse through insubstantial claims of
bias.
P-1E Proceedings without notice (ex parte proceedings) may be proper, for example in
initially applying for a provisional remedy. See Principles 5.8 and 8. Proceedings after default are
governed by Principle 15. Routine procedural administration includes, for example, specification of
dates for submission of proposed evidence.
P-1F Principle 1.5 requires only that judges for transnational litigation be familiar with
the law. It does not require the judge to have special knowledge of commercial or financial law, but
familiarity with such matters would be desirable.
2. Jurisdiction Over Parties
2.1 Jurisdiction over a party may be exercised:
2.1.1 By consent of the parties to submit the dispute to the tribunal;
2.1.2 When there is a substantial connection between the forum state and the
party or the transaction or occurrence in dispute. A substantial connection exists when a
significant part of the transaction or occurrence occurred in the forum state, when an
individual defendant is a habitual resident of the forum state or a jural entity has
received its charter of organization or has its principal place of business therein, or when
property to which the dispute relates is located in the forum state.
2.2 Jurisdiction may also be exercised, when no other forum is reasonably available,
on the basis of:
2.2.1 Presence or nationality of the defendant in the forum state.
2.2.2 Presence in the forum state of the defendanťs property, whether or not
the dispute relates to the property, but the courťs authority should be limited to the
property or its value.
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 13
2.3 A court may grant provisional measures with respect to a person or to property in
the territory of the forum state, even if the court does not have jurisdiction over the
controversy.
2.4 Exercise of jurisdiction must ordinarily be declined when the parties have
previously agreed that some other tribunal has exclusive jurisdiction.
2.5 Jurisdiction may be declined or the proceeding suspended when the court is
manifestly inappropriate relative to another more appropriate court that could exercise
jurisdiction.
2.6 The court should decline jurisdiction or suspend the proceeding, when the dispute
is previously pending in another court competent to exercise jurisdiction, unless it
appears that the dispute will not be fairly, effectively and expeditiously resolved in that
forum.
Comment:
P-2A Subject to restrictions on the courťs jurisdiction under the law of the forum and
subject to restrictions of international conventions, ordinarily a court may exercise jurisdiction
upon the parties' consent. A court should not exercise jurisdiction on the basis of implied consent
without giving the parties a fair opportunity to challenge jurisdiction. In the absence of the parties'
consent, and subject to the parties' agreement that some other tribunal or forum has exclusive
jurisdiction, ordinarily a court may exercise jurisdiction only if the dispute is connected to the
forum, as provided in Principle 2.1.2.
P-2B The standard of "substantial connection" has been generally accepted for
international legal disputes. Administration of this standard necessarily involves elements of
practical judgment and self-restraint. That standard excludes mere physical presence, which within
the United States is colloquially called "tag jurisdiction." Mere physical presence as a basis of
jurisdiction within the American federation has historical justification that is inapposite in modern
international disputes. The concept of "substantial connection" may be specified and elaborated in
international conventions and in national laws. The scope of this expression might not be the same
in all systems. However, the concept does not support general jurisdiction on the basis of "doing
business" not related to the transaction or occurrence in dispute.
P-2C Principle 2.2 covers the concept of "forum necessitatis" -- the forum of necessity
whereby a court may properly exercise jurisdiction when no other forum is reasonably available.
P-2D Principle 2.3 recognizes that a state may exercise jurisdiction by sequestration or
attachment of locally situated property, for example to secure a potential judgment, even though
the property is not the object or subject of the dispute. The procedure with respect to property
locally situated is called "quasi in rem jurisdiction" in some legal systems. Principle 2.3
contemplates that, in such a case, the merits of the underlying dispute might be adjudicated in
some other forum. The location of intangible property should be ascribed according to forum law.
P-2E Party agreement to exclusive jurisdiction, including an arbitration agreement,
ordinarily should be honored.
P-2F The concept recognized in Principle 2.5 is comparable to the common-law rule of
forum non conveniens. In some civil-law systems, the concept is that of preventing abuse of the
forum. This principle can be given effect by suspending the forum proceeding in deference to
another tribunal. The existence of a more convenient forum is necessary for application of this
Principle. This Principle should be interpreted in connection with the Principle of Procedural Equality
of the Parties, which prohibits any kind of discrimination on the basis of nationality or residence.
See Principle 3.2.
P-2G For the timing and scope of devices to stay other proceedings, such as lis pendens,
see Principles 10.2 and 28.1.
UNIDROIT 2005- Study LXXVI ­ Doc. 1314
3. Procedural Equality of the Parties
3.1 The court should ensure equal treatment and reasonable opportunity for litigants
to assert or defend their rights.
3.2 The right to equal treatment includes avoidance of any kind of illegitimate
discrimination, particularly on the basis of nationality or residence. The court should take
into account difficulties that might be encountered by a foreign party in participating in
litigation.
3.3 A person should not be required to provide security for costs, or security for
liability for pursuing provisional measures, solely because the person is not a national or
resident of the forum state.
3.4 Whenever possible, venue rules should not impose an unreasonable burden of
access to court on a person who is not a habitual resident of the forum.
3.5 Comment:
P-3A The term "reasonable" is used throughout the Principles and signifies
"proportional," "significant," "not excessive," or "fair," according to the context. It can also mean
the opposite of arbitrary. The concept of reasonableness also precludes hyper-technical legal
argument and leaves a range of discretion to the court to avoid severe, excessive, or unreasonable
application of procedural norms.
P-3B Illegitimate discrimination includes discrimination on the basis of nationality,
residence, gender, race, language, religion, political or other opinion, national or social origin, birth
or other status, sexual orientation, or association with a national minority. Any form of illegitimate
discrimination is prohibited, but discrimination on the basis of nationality or residence is a
particularly sensitive issue in transnational commercial litigation.
P-3C Special protection for a litigant, through a conservatorship or other protective
procedure such as a curator or guardian, should be afforded to safeguard the interests of persons
who lack full legal capacity, such as minors. Such protective measures should not be abusively
imposed on a foreign litigant.
P-3D Some jurisdictions require a person to provide security for costs, or for liability for
provisional measures, in order to guarantee full compensation of possible future damages incurred
by an opposing party. Other jurisdictions do not require such security, and some of them have
constitutional provisions regarding access to justice or equality of the parties that prohibit such
security. Principle 3.3 is a compromise between those two positions and does not modify forum law
in that respect. However, the effective responsibility of a nonnational or nonresident for costs or
liability for provisional measures should be evaluated under the same general standards.
P-3E Venue rules of a national system (territorial competence) generally reflect
considerations of convenience for litigants within the country. They should be administered in light
of the principle of convenience of the forum stated in Principle 3.4. A venue rule that would impose
substantial inconvenience within the forum state should not be given effect when there is another
more convenient venue and transfer of venue within the forum state should be afforded from an
unreasonably inconvenient location.
4. Right to Engage a Lawyer
4.1 A party has the right to engage a lawyer of the party's choice, including both
representation by a lawyer admitted to practice in the forum and active assistance
before the court of a lawyer admitted to practice elsewhere.
4.2 The lawyer's professional independence should be respected. A lawyer should be
permitted to fulfill the duty of loyalty to a client and the responsibility to maintain client
confidences.
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 15
Comment:
P-4A A forum may appropriately require that a lawyer representing a party be admitted
to practice in the forum unless the party is unable to retain such a lawyer. However, a party should
also be permitted the assistance of other lawyers, particularly its regular lawyer, who should be
permitted to attend and actively participate in all hearings in the dispute.
P-4B A lawyer admitted to practice in the party's home country is not entitled by this
Principle to be sole representative of a party in foreign courts. That matter should be governed by
forum law except that a foreign lawyer should at least be permitted to attend the hearing and
address the court informally.
P-4C The attorney-client relationship is ordinarily governed by rules of the forum,
including the choice-of-law rules.
P-4D The principles of legal ethics vary somewhat among various countries. However, all
countries should recognize that lawyers in independent practice are expected to advocate the
interests of their clients and generally to maintain the secrecy of confidences obtained in the
course of representation.
5. Due Notice and Right to Be Heard
5.1 At the commencement of a proceeding, notice, provided by means that are
reasonably likely to be effective, should be directed to parties other than the plaintiff.
The notice should be accompanied by a copy of the complaint or otherwise include the
allegations of the complaint and specification of the relief sought by plaintiff. A party
against whom relief is sought should be informed of the procedure for response and the
possibility of default judgment for failure to make timely response.
5.2 The documents referred to in Principle 5.1 must be in a language of the forum,
and also a language of the state of an individuaľs habitual residence or a jural entity's
principal place of business, or the language of the principal documents in the
transaction. Defendant and other parties should give notice of their defenses and other
contentions and requests for relief in a language of the proceeding, as provided in
Principle 6.
5.3 After commencement of the proceeding, all parties should be provided prompt
notice of motions and applications of other parties and determinations by the court.
5.4 The parties have the right to submit relevant contentions of fact and law and to
offer supporting evidence.
5.5 A party should have a fair opportunity and reasonably adequate time to respond
to contentions of fact and law and to evidence presented by another party, and to orders
and suggestions made by the court.
5.6 The court should consider all contentions of the parties and address those
concerning substantial issues.
5.7 The parties may, by agreement and with approval of the court, employ expedited
means of communications, such as telecommunication.
5.8 An order affecting a party's interests may be made and enforced without giving
previous notice to that party only upon proof of urgent necessity and preponderance of
considerations of fairness. An ex parte order should be proportionate to the interests
that the applicant seeks to protect. As soon as practicable, the affected party should be
given notice of the order and of the matters relied upon to support it, and should have
the right to apply for a prompt and full reconsideration by the court.
UNIDROIT 2005- Study LXXVI ­ Doc. 1316
Comment:
P-5A The specific procedure for giving notice varies somewhat among legal systems. For
example, in some systems the court is responsible for giving the parties notice, including copies of
the pleadings, while in other systems that responsibility is imposed on the parties. The forum's
technical requirements of notice should be administered in contemplation of the objective of
affording actual notice.
P-5B The possibility of a default judgment is especially important in international
litigation.
P-5C The right of a party to be informed of another party's contentions is consistent with
the responsibility of the court stated in Principle 22.
P-5D According to Principle 5.5, the parties should make known to each other at an early
stage the elements of fact upon which their claims or defenses are based and the rules of law that
will be invoked, so that each party has timely opportunity to organize its case.
P-5E The standard stated in Principle 5.6 does not require the court to consider
contentions determined at an earlier stage of the proceeding or that are unnecessary to the
decision. See Principle 23, requiring that the written decision be accompanied by a reasoned
explanation of its legal, evidentiary, and factual basis.
P-5F Forum law may provide for expedited means of communication without party
approval or special court order.
P-5G Principle 5.8 recognizes the propriety of "ex parte" proceedings, such as a
temporary injunction or an order for sequestration of property (provisional measures), particularly
at the initial stage of litigation. Often such orders can be effective only if enforced without prior
notice. An opposing party should be given prompt notice of such an order, opportunity to be heard
immediately, and a right to full reconsideration of the factual and legal basis of such an order. An
ex parte proceeding should be governed by Principle 8. See Principles 1.4 and 8.
6. Languages
6.1 The proceedings, including documents and oral communication, ordinarily should
be conducted in a language of the court.
6.2 The court may allow use of other languages in all or part of the proceeding if no
prejudice to a party will result.
6.3 Translation should be provided when a party or witness is not competent in the
language in which the proceeding is conducted. Translation of lengthy or voluminous
documents may be limited to portions, as agreed by the parties or ordered by the court.
Comment:
P-6A The court should conduct the proceeding in a language in which it is fluent.
Ordinarily this will be the language of the state in which the court is situated. However, if the court
and the parties have competence in a foreign language, they may agree upon or the judge may
order that language for all or part of the proceeding, for example the reception of a particular
document or the testimony of a witness in the witness's native language.
P-6B Frequently in transnational litigation witnesses and experts are not competent in
the language in which the proceeding is conducted. In such a case, translation is required for the
court and for other parties. The testimony must be taken with the aid of an interpreter, with the
party presenting the evidence paying the cost of the translation unless the court orders otherwise.
Alternatively, the witness may be examined through deposition, upon agreement of the parties or
by order of the court. The deposition can then be translated and submitted at the hearing.
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 17
7. Prompt Rendition of Justice
7.1 The court should resolve the dispute within a reasonable time.
7.2 The parties have a duty to cooperate and a right of reasonable consultation
concerning scheduling. Procedural rules and court orders may prescribe reasonable time
schedules and deadlines and impose sanctions on the parties or their lawyers for
noncompliance with such rules and orders that is not excused by good reason.
Comment:
P-7A In all legal systems the court has a responsibility to move the adjudication forward.
It is a universally recognized axiom that "justice delayed is justice denied." Some systems have
specific timetables according to which stages of a proceeding should be performed.
P-7B Prompt rendition of justice is a matter of access to justice and may also be
considered an essential human right, but it should also be balanced against a party's right of a
reasonable opportunity to organize and present its case.
8. Provisional and Protective Measures
8.1 The court may grant provisional relief when necessary to preserve the ability to
grant effective relief by final judgment or to maintain or otherwise regulate the status
quo. Provisional measures are governed by the principle of proportionality.
8.2 A court may order provisional relief without notice only upon urgent necessity
and preponderance of considerations of fairness. The applicant must fully disclose facts
and legal issues of which the court properly should be aware. A person against whom ex
parte relief is directed must have the opportunity at the earliest practicable time to
respond concerning the appropriateness of the relief.
8.3 An applicant for provisional relief should ordinarily be liable for compensation of a
person against whom the relief is issued if the court thereafter determines that the relief
should not have been granted. In appropriate circumstances, the court must require the
applicant for provisional relief to post a bond or formally to assume a duty of
compensation.
Comment:
P-8A "Provisional relief" embraces also the concept of "injunction," which is an order
requiring or prohibiting the performance of a specified act, for example, preserving property in its
present condition. Principle 8.1 authorizes the court to issue an order that is either affirmative, in
that it requires performance of an act, or negative in that it prohibits a specific act or course of
action. The term is used here in a generic sense to include attachment, sequestration, and other
directives. The concept of regulation includes measures to ameliorate the underlying controversy,
for example supervision of management of a partnership during litigation among the partners.
Availability of provisional remedies or interim measures, such as attachment or sequestration,
should be determined by forum law, including applicable principles of international law. A court
may also order disclosure of assets wherever located, or grant provisional relief to facilitate
arbitration or enforce arbitration provisional measures.
P-8B Principle 5.8 and 8.2 authorize the court to issue an order without notice to the
person against whom it is directed where doing so is justified by urgent necessity. "Urgent
necessity," required as a basis for an ex parte order, is a practical concept, as is the concept of
preponderance of considerations of fairness. The latter term corresponds to the common-law
concept of "balance of equities." Considerations of fairness include the strength of the merits of the
applicanťs claim, relevant public interest if any, the urgency of the need for a provisional remedy,
and the practical burdens that may result from granting the remedy. Such an injunction is usually
known as an ex parte order. See Principle 1.4.
UNIDROIT 2005- Study LXXVI ­ Doc. 1318
P-8C The question for the court, in considering an application for an ex parte order, is
whether the applicant has made a reasonable and specific demonstration that such an order is
required to prevent an irreparable deterioration in the situation to be addressed in the litigation,
and that it would be imprudent to postpone the order until the opposing party has opportunity to
be heard. The burden is on the party requesting an ex parte order to justify its issuance. However,
as soon as practicable, the opposing party or person to whom the order is addressed should be
given notice of the order and of the matters relied upon to support it and should have the right to
apply for a prompt and full reconsideration by the court. The party or person must have the
opportunity for a de novo reconsideration of the decision, including opportunity to present
evidence. See Principle 8.2.
P-8D Rules of procedure generally require that a party requesting an ex parte order
make full disclosure to the court of all issues of law and fact that the court should legitimately take
into account in granting the request, including those against the petitioner's interests and favorable
to the opposing party. Failure to make such disclosure is ground to vacate an order and may be a
basis of liability for damages against the requesting party. In some legal systems, assessment of
damages for an erroneously issued order does not necessarily reflect the proper resolution of the
underlying merits.
P-8E After hearing those interested, the court may issue, dissolve, renew, or modify an
order. If the court had declined to issue an order ex parte, it may nevertheless issue an order upon
a hearing. If the court previously issued an order ex parte, it may dissolve, renew, or modify its
order in light of the matters developed at the hearing. The burden is on the party seeking the order
to show that it is justified.
P-8F Principle 8.3 authorizes the court to require a bond or other indemnification, as
protection against the disturbance and injury that may result from an order. The particulars of such
indemnification should be determined by the law of the forum. An obligation to indemnify should be
express, not merely by implication, and could be formalized through a bond underwritten by a third
party.
P-8G An order under this Principle in many systems is ordinarily subject to immediate
appellate review, according to the procedure of the forum. In some systems such an order is of
very brief duration and subject to prompt reconsideration in the first-instance tribunal prior to the
possibility of appellate review. The guarantee of a review is particularly necessary when the order
has been issued ex parte. Review by a second-instance tribunal is regulated in different ways in
various systems. However, it should also be recognized that such a review might entail a loss of
time or procedural abuse.
9. Structure of the Proceedings
9.1 A proceeding ordinarily should consist of three phases: the pleading phase, the
interim phase, and the final phase.
9.2 In the pleading phase the parties must present their claims, defenses, and other
contentions in writing, and identify their principal evidence.
9.3 In the interim phase the court should if necessary:
9.3.1 Hold conferences to organize the proceeding;
9.3.2 Establish the schedule outlining the progress of the proceeding;
9.3.3 Address the matters appropriate for early attention, such as questions of
jurisdiction, provisional measures, and statute of limitations (prescription);
9.3.4 Address availability, admission, disclosure, and exchange of evidence;
9.3.5 Identify potentially dispositive issues for early determination of all or part
of the dispute; and
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 19
9.3.6 Order the taking of evidence.
9.4 In the final phase evidence not already received by the court according to
Principle 9.3.6 ordinarily should be presented in a concentrated final hearing at which
the parties should also make their concluding arguments.
Comment:
P-9A The concept of "structure" of a proceeding should be applied flexibly, according to
the nature of the particular case. For example, if convenient a judge would have discretion to hold
a conference in the pleading phase and to hold multiple conferences as the case progresses.
P-9B An orderly schedule facilitates expeditious conduct of the litigation. Discussion
between the court and lawyers for the parties facilitates practical scheduling and orderly hearings.
See Principle 14.2 and Comment P-14A.
P-9C Traditionally, courts in civil-law systems functioned through a sequence of short
hearings, while those in common-law systems organized a proceeding around a final "trial."
However, courts in modern practice in both systems provide for preliminary hearings and civil-law
systems have increasingly come to employ a concentrated final hearing for most evidence
concerning the merits.
P-9D In common-law systems, a procedure for considering potentially dispositive issues
before final hearing is the motion for summary judgment, which can address legal issues, or the
issue of whether there is genuine controversy about facts, or both such issues. Civil-law
jurisdictions provide for similar procedures in the interim phase.
P-9E In most systems the objection of lack of jurisdiction over the person must be made
by the party involved and at an early stage in the proceeding, under penalty of forfeiting the
objection. In international litigation it is particularly important that questions of jurisdiction be
addressed promptly.
10. Party Initiative and Scope of the Proceeding
10.1 The proceeding should be initiated through the claim or claims of the plaintiff, not
by the court acting on its own motion.
10.2 The time of lodging the complaint with the court determines compliance with
statutes of limitation, lis pendens, and other requirements of timeliness.
10.3 The scope of the proceeding is determined by the claims and defenses of the
parties in the pleadings, including amendments.
10.4 A party, upon showing good cause, has a right to amend its claims or defenses
upon notice to other parties, and when doing so does not unreasonably delay the
proceeding or otherwise result in injustice.
10.5 The parties should have a right to voluntary termination or modification of the
proceeding or any part of it, by withdrawal, admission, or settlement. A party should not
be permitted unilaterally to terminate or modify the action when prejudice to another
party would result.
Comment:
P-10A All modern legal systems recognize the principle of party initiative concerning the
scope and particulars of the dispute. It is within the framework of party initiative that the court
carries out its responsibility for just adjudication. See Principles 10.3 and 28.2. These Principles
require the parties to provide details of fact and law in their contentions. See Principle 11.3. This
practice contrasts with the more loosely structured system of "notice pleading" in American
procedure.
UNIDROIT 2005- Study LXXVI ­ Doc. 1320
P-10B All legal systems impose time limits for commencement of litigation, called statutes
of limitation in common-law systems and prescription in civil-law systems. Service of process must
be completed or attempted within a specified time after commencement of the proceeding,
according to forum law. Most systems allow for an objection that service of process was not
completed or attempted within a specified time after commencement of the proceeding.
P-10C The right to amend a pleading is very restricted in some legal systems. However,
particularly in transnational disputes, the parties should be accorded some flexibility, particularly
when new or unexpected evidence is confronted. Adverse effect on other parties from exercise of
the right of amendment may be avoided or moderated by an adjournment or continuance, or
adequately compensated by an award of costs.
P-10D The forum law may permit a claimant to introduce a new claim by amendment even
though it is time-barred (statute of limitations or prescription), provided it arises from substantially
the same facts as those that underlie the initial claim.
P-10E Most jurisdictions do not permit a plaintiff to discontinue an action after an initial
phase of the proceeding over the objection of the defendant.
11. Obligations of the Parties and Lawyers
11.1 The parties and their lawyers must conduct themselves in good faith in dealing
with the court and other parties.
11.2 The parties share with the court the responsibility to promote a fair, efficient, and
reasonably speedy resolution of the proceeding. The parties must refrain from
procedural abuse, such as interference with witnesses or destruction of evidence.
11.3 In the pleading phase, the parties must present in reasonable detail the relevant
facts, their contentions of law, and the relief requested, and describe with sufficient
specification the available evidence to be offered in support of their allegations. When a
party shows good cause for inability to provide reasonable details of relevant facts or
sufficient specification of evidence, the court should give due regard to the possibility
that necessary facts and evidence will develop later in the course of the proceeding.
11.4 A party's unjustified failure to make a timely response to an opposing party's
contention may be taken by the court, after warning the party, as a sufficient basis for
considering that contention to be admitted or accepted.
11.5 Lawyers for parties have a professional obligation to assist the parties in
observing their procedural obligations.
Comment:
P-11A A party should not make a claim, defense, motion, or other initiative or response
that is not reasonably arguable in law and fact. In appropriate circumstances, failure to conform to
this requirement may be declared an abuse of the courťs process and subject the party responsible
to cost sanctions and fines. The obligation of good faith, however, does not preclude a party from
making a reasonable effort to extend an existing concept based on difference of circumstances. In
appropriate circumstances, frivolous or vexatious claims or defenses may be considered an
imposition on the court and may be subjected to default or dismissal of the case, as well as cost
sanctions and fines.
P-11B Principle 11.3 requires the parties to make detailed statements of facts in their
pleadings, in contrast with "notice pleading" permitted under the Federal Rules of Civil Procedure in
the United States. The requirement of "sufficient specification" ordinarily would be met by
identification of principal documents constituting the basis of a claim or defense and by concisely
summarizing expected relevant testimony of identified witnesses. See Principle 16.
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 21
P-11C Failure to dispute a substantial contention by an opposing party ordinarily may be
treated as an admission. See also Principle 21.3.
P-11D It is a universal rule that the lawyer has professional and ethical responsibilities for
fair dealing with all parties, their lawyers, witnesses, and the court.
12. Multiple Claims and Parties; Intervention
12.1 A party may assert any claim substantially connected to the subject matter of the
proceeding against another party or against a third person who is subject to the
jurisdiction of the court.
12.2 A person having an interest substantially connected with the subject matter of the
proceeding may apply to intervene. The court itself, or on motion of a party, may require
notice to a person having such an interest, inviting intervention. Intervention may be
permitted unless it would result in unreasonable delay or confusion of the proceeding or
otherwise unfairly prejudice a party. Forum law may permit intervention in secondinstance
proceedings.
12.3 When appropriate, the court should grant permission for a person to be
substituted for, or to be admitted in succession to, a party.
12.4 The rights and obligations of participation and cooperation of a party added to the
proceeding are ordinarily the same as those of the original parties. The extent of these
rights and obligations may depend upon the basis, timing, and circumstances of the
joinder or intervention.
12.5 The court may order separation of claims, issues, or parties, or consolidation with
other proceedings, for fair or more efficient management and determination or in the
interest of justice. The authority should extend to parties or claims that are not within
the scope of these Principles.
Comment:
P-12A Principle 12.1 recognizes the right to assert claims available against another party
related to the same transaction or occurrence.
P-12B There are differences in the rules of various countries governing jurisdiction over
third parties. In some civil-law systems, a valid third-party claim is itself a basis of jurisdiction
whereas in some common-law systems the third party must be independently subject to
jurisdiction. Principle 12.1 requires an independent basis of jurisdiction.
P-12C Joinder of interpleading parties claiming the same property is permitted by this
Principle, but the Principle does not authorize or prohibit class actions.
P-12D An invitation to intervene is an opportunity for the third person to do so. The effect
of failure to intervene is governed by various rules of forum law. Before inviting a person to
intervene, the court must consult with the parties.
P-12E Forum law provides for replacement or addition of parties, as a matter of
substantive or procedural law, in various circumstances, such as death, assignment, merger of a
corporation, bankruptcy, subrogation, and other eventualities. It may also permit participation on a
limited basis, for example with authority to submit evidence without becoming a full party.
P-12F In any event, the court has authority to sever claims and issues, and to consolidate
them, according to their subject matter and the affected parties.
UNIDROIT 2005- Study LXXVI ­ Doc. 1322
13. Amicus Curiae Submission
Written submissions concerning important legal issues in the proceeding and
matters of background information may be received from third persons with the consent
of the court, upon consultation with the parties. The court may invite such a submission.
The parties must have the opportunity to submit written comment addressed to the
matters contained in such a submission before it is considered by the court.
Comment:
P-13A The "amicus curiae brief" is a useful means by which a nonparty may supply the
court with information and legal analysis that may be helpful to achieve a just and informed
disposition of the case. Such a brief might be from a disinterested source or a partisan one. Any
person may be allowed to file such a brief, notwithstanding a lack of legal interest sufficient for
intervention. Written submission may be supported by oral presentation at the discretion of the
court.
P-13B It is in the courťs discretion whether such a brief may be taken into account. The
court may require a statement of the interest of the proposed amicus. A court has authority to
refuse an amicus curiae brief when such a brief would not be of material assistance in determining
the dispute. Caution should be exercised that the mechanism of the amicus curiae submission not
interfere with the courťs independence. See Principle 1.1. The court may invite a third party to
present such a submission. An amicus curiae does not become a party to the case but is merely an
active commentator. Factual assertions in an amicus brief are not evidence in the case.
P-13C In civil-law countries there is no well-established practice of allowing third parties
without a legal interest in the merits of the dispute to participate in a proceeding, although some
civil-law countries like France have developed similar institutions in their case law. Consequently,
most civil-law countries do not have a practice of allowing the submission of amicus curiae briefs.
Nevertheless, the amicus curiae brief is a useful device, particularly in cases of public importance.
P-13D Principle 13 does not authorize third persons to present written submissions
concerning the facts in dispute. It permits only presentation of data, background information,
remarks, legal analysis, and other considerations that may be useful for a fair and just decision of
the case. For example, a trade organization might give notice of special trade customs to the court.
P-13E The parties must have opportunity to submit written comment addressed to the
matters in the submission before it is considered by the court.
14. Court Responsibility for Direction of the Proceeding
14.1 Commencing as early as practicable, the court should actively manage the
proceeding, exercising discretion to achieve disposition of the dispute fairly, efficiently,
and with reasonable speed. Consideration should be given to the transnational 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 order in which issues are to be resolved, and fix a
timetable for all stages of the proceeding, including dates and deadlines. The court may
revise such directions.
Comment:
P-14A Many court systems have standing orders governing case management. See
Principle 7.2. The courťs management of the proceeding will be fairer and more efficient when
conducted in consultation with the parties. See also Comment P-9A.
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 23
P-14B Principle 14.3 is particularly important in complex cases. As a practical matter,
timetables and the like are less necessary in simple cases, but the court should always address
details of scheduling.
15. Dismissal and Default Judgment
15.1 Dismissal of the proceeding ordinarily must be entered against a plaintiff who,
without justification, fails to prosecute the proceeding. Before entering such a dismissal,
the court must give plaintiff a reasonable warning thereof.
15.2 Default judgment ordinarily must be entered against a defendant or other party
who, without justification, fails to appear or respond within the prescribed time.
15.3 The court in entering a default judgment must determine that:
15.3.1 There is jurisdiction over the party against whom judgment is to be
entered;
15.3.2 There has been compliance with notice provisions and that the party has
had sufficient time to respond;
15.3.3 The claim is reasonably supported by available facts and evidence and is
legally sufficient, including the claim for damages and any claim for costs.
15.4 A default judgment may be no greater in monetary amount or in severity of other
remedy than was demanded in the complaint.
15.5 A dismissal or a default judgment is subject to appeal or rescission.
15.6 A party who otherwise fails to comply with obligations to participate in the
proceeding is subject to sanctions in accordance with Principle 17.
Comment:
P-15A Default judgment permits termination of a dispute if there is no contest. It is a
mechanism for compelling a party to acknowledge the courťs authority. For example, if the court
lacked authority to enter a default judgment, a defendant could avoid liability simply by ignoring
the proceeding and later disputing the validity of the judgment. A plaintiff's abandonment of
prosecution of the proceeding is, in common-law terminology, usually referred to as "failure to
prosecute" and results in "involuntary dismissal." It is the equivalent of a default. See Principles
11.4 and 17.3.
P-15B A party who appears after the time prescribed, but before judgment, may be
permitted to enter a defense upon offering reasonable excuse, but the court may order
compensation for costs resulting to the opposing party. In making its determination, the court
should consider the reason why the party did not answer or did not proceed after having answered.
For example, a party may have failed to answer because that party did not receive actual notice, or
because the party was obliged by his or her national law not to appear by reason of hostility
between the countries.
P-15C Reasonable care should be exercised before entering a default judgment because
notice may not have been given to a defendant, or the defendant may have been confused about
the need to respond. Forum procedure in many systems requires that, after a defendant has failed
to respond, an additional notice be given to the defendant of the courťs intention to enter default
judgment.
UNIDROIT 2005- Study LXXVI ­ Doc. 1324
P-15D The decision about whether the claim is reasonably supported by evidence and
legally justified under Principle 15.3.3 does not require a full inquiry on the merits of the case. The
judge must only determine whether the default judgment is consistent with the available facts or
evidence and is legally warranted. For that decision, the judge must analyze critically the evidence
supporting the statement of claims. The judge may request production of more evidence or
schedule an evidentiary hearing.
P-15E Principle 15.4 limits a default judgment to the amount and kind demanded in the
statement of claim. In civil-law systems, a restriction in a default judgment to the amount claimed
in a complaint merely repeats a general restriction applicable even in contested cases (ultra petita
or extra petita prohibition). In common-law systems, no such restriction applies in contested cases,
but the restriction on default judgments is a generally recognized rule. The restriction permits a
defendant to avoid the cost of defense without the risk of greater liability than demanded in the
complaint.
P-15F Notice of a default judgment or a dismissal must be promptly given to the parties,
according to Principle 5.3. If the requirements for a default judgment are not complied with, an
aggrieved party may appeal or seek to set aside the judgment, according to the law of the forum.
Every system has a procedure for invalidating a default judgment obtained without compliance with
the rules governing default. In some systems, including most common-law systems, the procedure
is initially pursued in the first-instance court, and in other systems, including some civil-law
systems, it is through an appeal. This Principle defers to forum law.
P-15G The party who has defaulted should be permitted, within the limit of a reasonable
time, to present evidence that the notice was materially deficient or other proper excuse.
16. Access to Information and Evidence
16.1 Generally, the court and each party should have access to relevant and
nonprivileged evidence, including testimony of parties and witnesses, expert testimony,
documents, and evidence derived from inspection of things, entry upon land, or, under
appropriate circumstances, from physical or mental examination of a person. The parties
should have the right to submit statements that are accorded evidentiary effect.
16.2 Upon timely request of a party, the court should order disclosure of relevant,
nonprivileged, and reasonably identified evidence in the possession or control of another
party or, if necessary and on just terms, of a nonparty. It is not a basis of objection to
such disclosure that the evidence may be adverse to the party or person making the
disclosure.
16.3 To facilitate access to information, a lawyer for a party may conduct a voluntary
interview with a potential nonparty witness.
16.4 Eliciting testimony of parties, witnesses, and experts should proceed as
customary in the forum. A party should have the right to conduct supplemental
questioning directly to another party, witness, or expert who has first been questioned
by the judge or by another party.
16.5 A person who produces evidence, whether or not a party, has the right to a court
order protecting against improper exposure of confidential information.
16.6 The court should make free evaluation of the evidence and attach no unjustified
significance to evidence according to its type or source.
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 25
Comment:
P-16A "Relevant" evidence is probative material that supports, contradicts, or weakens a
contention of fact at issue in the proceeding. A party should not be permitted to conduct a socalled
"fishing expedition" to develop a case for which it has no support, but an opposing party
may properly be compelled to produce evidence that is under its control. These Principles thereby
permit a measure of limited "discovery" under the supervision of the court. Non-parties are in
principle also obliged to cooperate.
P-16B In some legal systems the statements of a party are not admissible as evidence or
are accorded diminished probative weight. Principle 16.1 accords a party's testimony potentially
the same weight as that of any other witness, but the court in evaluating such evidence may take
into account the party's interest in the dispute.
P-16C Under Principle 16.2, the requesting party may be required to compensate a
nonparty's costs of producing evidence.
P-16D In some systems, it is generally a violation of ethical or procedural rules for a
lawyer to communicate with a potential witness. Violation of this rule is regarded as "tainting" the
witness. However, this approach may impede access to evidence that is permitted in other systems
and impair a good preparation of the presentation of evidence.
P-16E The physical or mental examination of a person may be appropriate when
necessary and reliable and its probative value exceeds the prejudicial effect of its admission.
P-16F According to Principle 16.4, eliciting testimony of parties, witnesses, and experts
should proceed as customary in the forum, either with the parties conducting the primary
examination or with the judge doing so. In any event, a party should have the right to conduct
supplemental questioning by directly addressing another party or witness. The right of a party to
put questions directly to an adverse party or nonparty witness is of first importance and is now
recognized in most legal systems. Similarly, a party should be permitted to address supplemental
questions to a witness, including a party, who has initially been questioned by the court.
P-16G Principle 16.6 signifies that no special legal value, positive or negative, should be
attributed to any kind of relevant evidence, for example, testimony of an interested witness.
However, this Principle does not interfere with national laws that require a specified formality in a
transaction, such as written documentation of a contract involving real property.
P-16H Sanctions may be imposed against the failure to produce evidence that reasonably
appears to be within that party's control or access, or for a party's failure to cooperate in
production of evidence as required by the rules of procedure. See Principles 17 and 21.3.
P-16I There are special problems in administering evidence in jury trials, not covered by
these Principles.
17. Sanctions
17.1 The court may impose sanctions on parties, lawyers, and third persons for failure
or refusal to comply with obligations concerning the proceeding.
17.2 Sanctions should be reasonable and proportionate to the seriousness of the
matter involved and the harm caused, and reflect the extent of participation and the
degree to which the conduct was deliberate.
17.3 Among the sanctions that may be appropriate against parties are: drawing
adverse inferences; dismissing claims, defenses, or allegations in whole or in part;
rendering default judgment; staying the proceeding; and awarding costs in addition to
those permitted under ordinary cost rules. Sanctions that may be appropriate against
parties and nonparties include pecuniary sanctions, such as fines and astreintes. Among
sanctions that may be appropriate against lawyers is an award of costs.
UNIDROIT 2005- Study LXXVI ­ Doc. 1326
17.4 The law of the forum may also provide further sanctions including criminal
liability for severe or aggravated misconduct by parties and nonparties, such as
submitting perjured evidence or violent or threatening behavior.
Comment:
P-17A The sanctions a court is authorized to impose under forum law vary from system to
system. These Principles do not confer authority for sanctions not permitted under forum law.
P-17B In all systems the court may draw adverse inferences from a party's failure to
advance the proceeding or to respond as required. See Principle 21.3. As a further sanction, the
court may dismiss or enter a default judgment. See Principles 5.1 and 15. In common-law systems
the court has authority under various circumstances to hold a party or lawyer in contempt of court.
All systems authorize direct compulsory measures against third parties.
18. Evidentiary Privileges and Immunities
18.1 Effect should be given to privileges, immunities, and similar protections of a party
or nonparty concerning disclosure of evidence or other information.
18.2 The court should consider whether these protections may justify a party's failure
to disclose evidence or other information when deciding whether to draw adverse
inferences or to impose other indirect sanctions.
18.3 The court should recognize these protections when exercising authority to impose
direct sanctions on a party or nonparty to compel disclosure of evidence or other
information.
Comment:
P-18A All legal systems recognize various privileges and immunities against being
compelled to give evidence, such as protection from self-incrimination, confidentiality of
professional communication, rights of privacy, and privileges of a spouse or family member.
Privileges protect important interests, but they can impair establishment of the facts. The
conceptual and technical bases of these protections differ from one system to another, as do the
legal consequences of giving them recognition. In applying such rules choice-of-law problems may
be presented.
P-18B The weight accorded to various privileges differs from one legal system to another
and the significance of the claim of privilege may vary according to the context in specific litigation.
These factors are relevant when the court considers drawing adverse inferences from the party's
failure to produce evidence.
P-18C Principles 18.2 and 18.3 reflect a distinction between direct and indirect sanctions.
Direct sanctions include fines, astreintes, contempt of court, or imprisonment. Indirect sanctions
include drawing adverse inferences, judgment by default, and dismissal of claims or defenses. A
court has discretionary authority to impose indirect sanctions on a party claiming a privilege, but a
court ordinarily should not impose direct sanctions on a party or nonparty who refuses to disclose
information protected by a privilege. A similar balancing approach may apply when blocking
statutes hinder full cooperation by a party or non-party.
P-18D In some systems, the court cannot recognize a privilege sua sponte, but may only
respond to the initiative of the party benefited by the privilege. The court should give effect to any
procedural requirement of the forum that an evidentiary privilege or immunity be expressly
claimed. According to such requirements, a privilege or immunity not properly claimed in a timely
manner may be considered waived.
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 27
19. Oral and Written Presentations
19.1 Pleadings, formal requests (motions), and legal argument ordinarily should be
presented initially in writing, but the parties should have the right to present oral
argument on important substantive and procedural issues.
19.2 The final hearing must be held before the judges who are to give judgment.
19.3 The court should specify the procedure for presentation of testimony. Ordinarily,
testimony of parties and witnesses should be received orally, and reports of experts in
writing; but the court may, upon consultation with the parties, require that initial
testimony of witnesses be in writing, which should be supplied to the parties in advance
of the hearing.
19.4 Oral testimony may be limited to supplemental questioning following written
presentation of a witness's principal testimony or of an experťs report.
Comment:
P-19A Traditionally, all legal systems received witness testimony in oral form. However, in
modern practice, the tendency is to replace the main testimony of a witness by a written
statement. Principle 19 allows flexibility in this regard. It contemplates that testimony can be
presented initially in writing, with orality commencing upon supplemental questioning by the court
and opposing parties. Concerning the various procedures for interrogation of witnesses, see
Principle 16.4 and Comment P-16D.
P-19B Forum procedure may permit or require electronic communication of written or oral
presentations. See Principle 5.7.
P-19C In many civil-law systems, the primary interrogation is conducted by the court with
limited intervention by the parties, whereas in most common-law systems, the roles of judge and
lawyers are the reverse. In any event, the parties should be afforded opportunity to address
questions directly to a witness. See Principle 16.4.
20. Public Proceedings
20.1 Ordinarily, oral hearings, including hearings in which evidence is presented and in
which judgment is pronounced, should be open to the public. Following consultation with
the parties, the court may order that hearings or portions thereof be kept confidential in
the interest of justice, public safety, or privacy.
20.2 Court files and records should be public or otherwise accessible to persons with a
legal interest or making a responsible inquiry, according to forum law.
20.3 In the interest of justice, public safety, or privacy, if the proceedings are public,
the judge may order part of them to be conducted in private.
20.4 Judgments, including supporting reasons, and ordinarily other orders, should be
accessible to the public.
Comment:
P-20A There are conflicting approaches concerning publicity of various components of
proceedings. In some civil-law countries, the court files and records are generally kept in
confidence although they are open to disclosure for justifiable cause, whereas in the common-law
tradition they are generally public. One approach emphasizes the public aspect of judicial
proceedings and the need for transparency, while the other emphasizes respect for the parties'
privacy. These Principles express a preference for public proceedings, with limited exceptions. In
general, court files and records should be public and accessible to the public and news media.
Countries that have a tradition of keeping court files confidential should at least make them
accessible to persons with a legal interest or making a responsible inquiry.
UNIDROIT 2005- Study LXXVI ­ Doc. 1328
P-20B In some systems the court upon request of a party may grant privacy of all
proceedings except the final judgment. Some systems have a constitutional guaranty of publicity in
judicial proceedings, but have special exceptions for such matters as trade secrets, matters of
national security, etc. Arbitration proceedings are generally conducted in privacy.
21. Burden and Standard of Proof
21.1 Ordinarily, each party has the burden to prove all the material facts that are the
basis of that party's case.
21.2 Facts are considered proven when the court is reasonably convinced of their
truth.
21.3 When it appears that a party has possession or control of relevant evidence that it
declines without justification to produce, the court may draw adverse inferences with
respect to the issue for which the evidence is probative.
Comment:
P-21A The requirement stated in Principle 21.1 is often expressed in terms of the formula
"the burden of proof goes with the burden of pleading." The allocation of the burden of pleading is
specified by law, ultimately reflecting a sense of fairness. The determination of this allocation is
often a matter of substantive law.
P-21B The standard of "reasonably convinced" is in substance that applied in most legal
systems. The standard in the United States and some other countries is "preponderance of the
evidence" but functionally that is essentially the same.
P-21C Principle 21.3 is based on the principle that both parties have the duty to contribute
in good faith to the discharge of the opposing party's burden of proof. See Principle 11. The
possibility of drawing adverse inferences ordinarily does not preclude the recalcitrant party from
introducing other evidence relevant to the issue in question. Drawing such inferences can be
considered a sanction, see Principle 17.3, or a shifting of the burden of proof, see Principle 21.1.
22. Responsibility for Determinations of Fact and Law
22.1 The court is responsible for considering all relevant facts and evidence and for
determining the correct legal basis for its decisions, including matters determined on the
basis of foreign law.
22.2 The court may, while affording the parties opportunity to respond:
22.2.1 Permit or invite a party to amend its contentions of law or fact and to offer
additional legal argument and evidence accordingly.
22.2.2 Order the taking of evidence not previously suggested by a party.
22.2.3 Rely upon a legal theory or an interpretation of the facts or of the evidence
that has not been advanced by a party.
22.3 The court ordinarily should hear all evidence directly, but when necessary may
assign to a suitable delegate the taking and preserving of evidence for consideration by
the court at the final hearing.
22.4 The court may appoint an expert to give evidence on any relevant issue for which
expert testimony is appropriate, including foreign law.
22.4.1 If the parties agree upon an expert the court ordinarily should appoint that
expert.
22.4.2 A party has a right to present expert testimony through an expert selected
by that party on any relevant issue for which expert testimony is appropriate.
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 29
22.4.3 An expert, whether appointed by the court or by a party, owes a duty to
the court to present a full and objective assessment of the issue addressed.
Comment:
P-22A It is universally recognized that the court has responsibility for determination of
issues of law and of fact necessary for the judgment, and that all parties have a right to be heard
concerning applicable law and relevant evidence. See Principle 5.
P-22B Foreign law is a particularly important subject in transnational litigation. The judge
may not be knowledgeable about foreign law and may need to appoint an expert or request
submissions from the parties on issues of foreign law. See Principle 22.4.
P-22C The scope of the proceeding, and the issues properly to be considered, are
determined by the claims and defenses of the parties in the pleadings. The judge is generally
bound by the scope of the proceeding stated by the parties. However, the court in the interest of
justice may order or permit amendment by a party, giving other parties a right to respond
accordingly. See Principle 10.3.
P-22D Use of experts is common in complex litigation. Court appointment of a neutral
expert is the practice in most civil-law systems and in some common-law systems. However,
party-appointed experts can provide valuable assistance in the analysis of difficult factual issues.
Fear that party appointment of experts will devolve into a "battle of experts" and thereby obscure
the issues is generally misplaced. In any event, this risk is offset by the value of such evidence.
Expert testimony may be received on issues of foreign law.
23. Decision and Reasoned Explanation
23.1 Upon completion of the parties' presentations, the court should promptly give
judgment set forth or recorded in writing. The judgment should specify the remedy
awarded and, in a monetary award, its amount.
23.2 The judgment should be accompanied by a reasoned explanation of the essential
factual, legal, and evidentiary basis of the decision.
Comment:
P-23A A written decision not only informs the parties of the disposition, but also provides
a record of the judgment, which may be useful in subsequent recognition proceedings. In several
systems a reasoned opinion is required by constitutional provisions or is considered as a
fundamental guarantee in the administration of justice. The reasoned explanation may be given by
reference to other documents such as pleadings in case of a default judgment or the transcript of
the instructions to the jury in case of a jury verdict. Forum law may specify a time limit within
which the court must give judgment.
P-23B When a judgment determines less than all the claims and defenses at issue, it
should specify the matters that remain open for further proceedings. For example, in a case
involving multiple claims, the court may decide one of the claims (damages, for example) and keep
the proceedings open for the decision of the other (injunction, for example).
P-23C In some systems, a judgment may be pronounced subject to subsequent
specification of the monetary award or other terms of a remedy, for example an accounting to
determine damages or a specification of the terms of an injunction.
P-23D See Principle 5.6, requiring that the court consider each significant contention of
fact, evidence, and law.
24. Settlement
24.1 The court, while respecting the parties' opportunity to pursue litigation, should
encourage settlement between the parties when reasonably possible.
UNIDROIT 2005- Study LXXVI ­ Doc. 1330
24.2 The court should facilitate parties' participation in alternative-dispute-resolution
processes at any stage of the proceeding.
24.3 The parties, both before and after commencement of litigation, should cooperate
in reasonable settlement endeavors. The court may adjust its award of costs to reflect
unreasonable failure to cooperate or bad-faith participation in settlement endeavors.
Comment:
P-24A The proviso "while respecting the parties' opportunity to pursue litigation" signifies
that the court should not compel or coerce settlement among the parties. However, the court may
conduct informal discussions of settlement with the parties at any appropriate times. A judge
participating in settlement discussions should avoid bias or. However, active participation, including
a suggestion for settlement, does not impair a judge's impartiality or create an appearance of
partiality.
P-24B Principle 24.3 departs from tradition in some countries in which the parties
generally do not have an obligation to negotiate or otherwise consider settlement proposals from
the opposing party. Forum law may appropriately provide settlement-offer procedure enforced by
special cost sanctions for refusal to accept an opposing party's offer. Prominent examples of such
procedures are the Ontario (Canada) civil-procedure rule and Part 36 of the new English procedural
rules. Those are formal procedures whereby a party may make a definite offer of settlement and
thereby oblige the opposing party to accept or refuse it on penalty of additional costs if that party
does not eventually obtain a result more advantageous than the proposed settlement offer. See
also Principle 25.2.
25. Costs
25.1 The winning party ordinarily should be awarded all or a substantial portion of its
reasonable costs. "Costs" include court filing fees, fees paid to officials such as court
stenographers, expenses such as expert-witness fees, and lawyers' fees.
25.2 Exceptionally, the court may withhold or limit costs to the winning party when
there is clear justification for doing so. The court may limit the award to a proportion
that reflects expenditures for matters in genuine dispute and award costs against a
winning party that has raised unnecessary issues or been otherwise unreasonably
disputatious. The court in making cost decisions may take account of any party's
procedural misconduct in the proceeding.
Comment:
P-25A Award of attorneys' fees is the rule prevailing in most legal systems, although, for
example, not in China, Japan, and the United States. In some systems, the amount of costs
awarded to the prevailing party is determined by an experienced officer and often is less than the
winning party is obligated to pay that party's lawyer. In some systems, the amount awarded to the
prevailing party is governed by fee regulation. A fee-shifting rule is controversial in certain types of
litigation but is generally considered appropriate in commercial litigation and is typically stipulated
in commercial contracts.
P-25B According to Principle 25.2, exceptionally the court may decline to award any costs
to a winning party, or award only part of the costs, or may calculate costs more generously or
more severely than it otherwise would. The exceptional character of Principle 25.2 requires the
judge to give reasons for the decision. See also Principle 24.3.
26. Immediate Enforceability of Judgments
26.1 The final judgment of the first-instance court ordinarily should be immediately
enforceable.
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 31
26.2 The first-instance court or the appellate court, on its own motion or motion of a
party, may in the interest of justice stay enforcement of the judgment pending appeal.
26.3 Security may be required from the appellant as a condition of granting a stay or
from the respondent as a condition of denying a stay.
Comment:
P-26A The principle of finality is essential to effective adjudication. In some jurisdictions,
immediate enforcement is available only for judgments of second-instance courts. However, the
tendency is toward the practice of common law and some civil-law countries that judgments of
first-instance courts are accorded that effect by law or court order.
P-26B The fact that a judgment should be immediately enforceable upon becoming final
does not prohibit a court from giving the losing party a period of time for compliance with the
award. The judgment should be enforced in accordance with its own terms.
P-26C Under forum law, a partial judgment (dealing only with part of the controversy)
may also be final and, therefore, immediately enforceable.
27. Appeal
27.1 Appellate review should be available on substantially the same terms as other
judgments under the law of the forum. Appellate review should be concluded
expeditiously.
27.2 The scope of appellate review should ordinarily be limited to claims and defenses
addressed in the first-instance proceeding.
27.3 The appellate court may in the interest of justice consider new facts and evidence.
Comment:
P-27A Appellate procedure varies substantially among legal systems. The procedure of the
forum therefore should be employed.
P-27B Historically, in common-law systems appellate review has been based on the
principle of a "closed record," that is, that all claims, defenses, evidence, and legal contentions
must have been presented in the first-instance court. In most modern common-law systems,
however, the appellate court has a measure of discretion to consider new legal arguments and,
under compelling circumstances, new evidence. Historically, in civil-law systems the secondinstance
court was authorized fully to reconsider the merits of the dispute, but there is variation
from this approach in many modern systems. In a diminishing number of civil-law systems a
proceeding in the court of second instance can be essentially a new trial and is routinely pursued.
In many systems the decision of the court of first instance can be reversed or amended only for
substantial miscarriage of justice. This Principle rejects both of these extremes. However, reception
of new evidence at the appellate level should be permitted only when required by the interest of
justice. If a party is permitted such an opportunity, other parties should have a correlative right to
respond. See Principle 22.2.
P-27C In some systems, the parties must preserve their objections in the first-instance
tribunal and cannot raise them for the first time on appeal.
28. Lis Pendens and Res Judicata
28.1 In applying the rules of lis pendens, the scope of the proceeding is determined by
the claims in the parties' pleadings, including amendments.
28.2 In applying the rules of claim preclusion, the scope of the claim or claims decided
is determined by reference to the claims and defenses in the parties' pleadings, including
amendments, and the courťs decision and reasoned explanation.
UNIDROIT 2005- Study LXXVI ­ Doc. 1332
28.3 The concept of issue preclusion, as to an issue of fact or application of law to
facts, should be applied only to prevent substantial injustice.
Comment:
P-28A This Principle is designed to avoid repetitive litigation, whether concurrent (lis
pendens) or successive (res judicata).
P-28B Some systems have strict rules of lis pendens whereas others apply them more
flexibly, particularly having regard to the quality of the proceeding of both forums. The Principle of
lis pendens corresponds to Principle 10.3, concerning the scope of the proceeding and Principle 2.6,
concerning parallel proceedings.
P-28C Some legal systems, particularly those of common law, employ the concept of issue
preclusion, sometimes referred to as collateral estoppel or issue estoppel. The concept is that a
determination of an issue as a necessary element of a judgment generally should not be
reexamined in a subsequent dispute in which the same issue is also presented. Under Principle
28.3, issue preclusion might be applied when, for example, a party has justifiably relied in its
conduct on a determination of an issue of law or fact in a previous proceeding. A broader scope of
issue preclusion is recognized in many common-law systems, but the more limited concept in
Principle 28.3 is derived from the principle of good faith, as it is referred to in civil-law systems, or
estoppel in pais, as the principle is referred to in common-law systems.
29. Effective Enforcement
Procedures should be available for speedy and effective enforcement of
judgments, including money awards, costs, injunctions, and provisional measures.
Comment:
P-29A Many legal systems have archaic and inefficient procedures for enforcement of
judgments. From the viewpoint of litigants, particularly the winning party, effective enforcement is
an essential element of justice. However, the topic of enforcement procedures is beyond the scope
of these Principles.
30. Recognition
A final judgment awarded in another forum in a proceeding substantially
compatible with these Principles must be recognized and enforced unless substantive
public policy requires otherwise. A provisional remedy must be recognized in the same
terms.
Comment:
P-30A Recognition of judgments of another forum, including judgments for provisional
remedies, is especially important in transnational litigation. Every legal system has firm rules of
recognition for judgments rendered within its own system. International conventions prescribe
other conditions concerning recognition of foreign judgments. Many jurisdictions limit the effect of
most kinds of provisional measures to the territory of the issuing state and cooperate by issuing
parallel injunctions. However, the technique of parallel provisional measures is less acceptable than
direct recognition and enforcement. See also Principle 31.
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 33
P-30B According to Principle 30, a judgment given in a proceeding substantially
compatible with these Principles ordinarily should have the same effect as judgments rendered
after a proceeding under the laws of the recognizing state. Principle 30 is therefore a principle of
equal treatment. The Principles establish international standards of international jurisdiction,
sufficient notice of the judgment debtor, procedural fairness, and the effects of res judicata.
Consequently most traditional grounds for non-recognition, such as lack of jurisdiction, insufficient
notice, fraud, unfair foreign proceedings, or conflict with another final judgment or decision, do not
arise if the foreign proceeding meets the requirements of these Principles. Reciprocity is no longer
a prerequisite of recognition in many countries but it will be also fulfilled if the law of the forum
accepts these Principles and especially Principle 30. Only the limited exception for non-recognition
based on substantive public policy is allowed when the foreign proceedings were conducted in
substantial accordance with these principles.
31. International Judicial Cooperation
The courts of a state that has adopted these Principles should provide assistance
to the courts of any other state that is conducting a proceeding consistent with these
Principles, including the grant of protective or provisional relief and assistance in the
identification, preservation, and production of evidence.
Comment:
P-31A International judicial cooperation and assistance supplement international
recognition and, in modern context, are equally important.
P-31B Consistent with rules concerning communication outside the presence of parties or
their representatives (ex parte communications), judges should, when necessary, establish
communication with judges in other jurisdictions. See Principle 1.4.
P-31C For the significance of the term "evidence," see Principle 16.
UNIDROIT 2005- Study LXXVI ­ Doc. 1334
RULES OF TRANSNATIONAL CIVIL PROCEDURE
(with commentary) (*)
A. Interpretation and Scope
1. Standards of Interpretation
1.1 These Rules are to be interpreted in accordance with the Principles of
Transnational Civil Procedure and applied with consideration of the transnational nature
of the dispute.
1.2 The procedural law of the forum governs matters not addressed in these Rules.
Comment:
R-1A Rule 1.2 does not authorize use of local concepts to interpret these Rules. The
Transnational Rules should develop an autonomous mode of interpretation, consistent with the
principles and concepts by which they are guided.
R-1B The Transnational Rules of Civil Procedure are not a comprehensive "code" in the
civil-law sense of the word. They are a set of rules to supersede inconsistent forum law and to be
supplemented by forum law whenever forum law is not inconsistent with the Transnational Rules.
2. Disputes to Which These Rules Apply
2.1 Subject to domestic constitutional provisions, and statutory provisions not
superseded by these Rules, these Rules apply to disputes arising from transnational
commercial transactions, if the dispute:
2.1.1 Is between parties from different states, determined by the habitual
residence of an individual and by the principal place of business of a jural entity;
2.1.2 Concerns property located in the forum state (including movable property
and intangible property), to which a party from a different state claims an interest,
whether of ownership, lien, security, or otherwise; or
2.1.3 Is governed by an arbitration agreement providing that these Rules apply.
2.2 In a proceeding involving multiple claims or multiple parties, some of which are
not within the scope of this Rule, the court must determine which are the principal
matters in dispute.
2.2.1 If the principal matters in dispute are within the scope of these Rules, the
Rules apply to all parties and all claims. Otherwise, the rules of the forum apply.
2.2.2 The court may separate the proceeding and then apply Rule 2.2.1.
2.3 The forum state may exclude categories of matters from application of these
Rules and may extend application of these Rules to other civil and commercial matters.
Comment:
R-2A Rule 2.1 defines the matters governed by these Rules. The Rules apply to contract
disputes and disputes arising from contractual relations; injuries to property, including immovable
(real property), movable (personal property), and intangible property such as copyright,
trademark, and patent rights; and injuries resulting from breach of obligations and commercial
torts in business transactions. They do not apply to claims for personal injury or wrongful death.
The term "transnational commercial transactions" includes a series of related events, such as
repeated interference with property.
(*)
The Rules of Transnational Civil Procedure reproduced hereunder are a Reporters' Study (cf. Preface)
and as such have not been submitted to the competent organs of UNIDROIT and ALI for formal approval.
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 35
R-2B The scope of application of these Rules is limited to commercial disputes as a
matter of comity and public policy, not because the Rules are inappropriate for other types of legal
disputes. In many countries, for example, disputes arising from employment relationships are
governed by special procedures in specialized courts. The same is true of domestic-relations
matters.
Commercial disputes include disputes involving a government or government agency acting
in a proprietary capacity. The court should apply the definition of "proprietary capacity" established
in forum law.
R-2C The term "dispute" as used in Rule 2.1 may have different connotations in various
legal systems. For example, under Rule 20 of the Federal Rules of Civil Procedure in the United
States, the term "dispute" would be interpreted in accordance with the broad concept of
"transaction or occurrence." In civil-law systems, the term "dispute" would be interpreted in
accordance with the narrower concept of dispute as framed by the plaintiff's claim.
R-2D Under Rule 2.1.1, these Rules apply when a plaintiff and a defendant are from
different states, determined by habitual residence or principal place of business. Thus, these Rules
would apply in a dispute between a Japanese on one side and a Japanese and a Canadian on the
other side. The habitual residence of an individual and the principal place of business of a jural
entity are determined by general principles of private international law.
R-2E Rule 2.1.2 provides that these Rules apply in a dispute concerning property located
in one state as to which a claim is made by a plaintiff or a defendant who is from another state.
Whether a legal claim concerns property and whether it is a claim of ownership or of a security or
other interest is determined by general principles of private international law.
R-2F Rule 2.1.3 provides that these Rules apply by contractual option, in case of
arbitration. Some Rules are not applicable to arbitration disputes, such as Rules 3, 4, 5, 9, 10, and
17.
R-2G Legal disputes may involve claims asserted on multiple substantive legal bases, one
of which is under these Rules but another of which is not. The court may entertain both the claim
under these Rules and the other claim or claims and apply the Rules as provided in Rule 2.2.
R-2H A case may be one not governed by Rule 2 at the outset of the litigation, but a
claim or a party may later be joined that would justify application of these Rules. For example, in a
claim based on contract by A against B, B could implead C on the basis of an indemnity obligation.
If A and C or B and C are from different states, and the claim between them did not arise wholly
within the forum state, these Rules would apply. Rule 2.2 confers authority on the court to
determine whether the principal matters in dispute are within these Rules and thereupon to direct
that the dispute be governed by these Rules or forum law, according to that determination.
R-2I For the purposes of these Rules, "Party" includes plaintiff, defendant, and a third
party; "Person" includes a jural entity (corporation or other organization such as a société
anonyme, partnership, and an unincorporated association); and "Witness" includes third persons,
expert witnesses, and may include the parties themselves.
R-2J Rule 2.3 recognizes that the forum law may adopt provisions that enlarge or
restrict the scope of application of the Rules.
B. Jurisdiction, Joinder, and Venue
3. Forum and Territorial Competence
3.1 Proceedings under these Rules should be conducted in a court of specialized
jurisdiction for commercial disputes or in the forum state's first-instance courts of
general jurisdiction.
3.2 Appellate jurisdiction of a proceeding under these Rules must be in the court
having jurisdiction over the first-instance court.
UNIDROIT 2005- Study LXXVI ­ Doc. 1336
3.3 Whenever possible, territorial competence should be established, either originally
or by transfer of the proceeding, at a place in the forum state that is reasonably
convenient to a defendant.
Comment:
R-3A Territorial competence is the equivalent of "venue" in some common-law systems.
R-3B Typically it would be convenient that a specialized court or division of court be
established in a principal commercial city, such as Milan in Italy or London in the United Kingdom.
Committing disputes under these rules to specialized courts would facilitate development of a more
uniform procedural jurisprudence.
4. Jurisdiction Over Parties
4.1 Jurisdiction is established over a plaintiff by the plaintiff's commencement of a
proceeding or over a person who intervenes by the act of intervention.
4.2 Jurisdiction may be established over another person as follows:
4.2.1 By consent of that person to the jurisdiction of the court;
4.2.2 Over an individual who is a habitual resident of the forum;
4.2.3 Over a jural entity that has received its charter of organization from the
forum state or maintains its principal place of business or administrative headquarters in
the state; or
4.2.4 Over a person that has:
4.2.4.1 Provided goods or services in the forum state, or agreed to do so,
when the proceeding concerns such goods or services; or
4.2.4.2 Committed tortious conduct in the forum state, or conduct having
direct effect in the forum state, when the proceeding concerns such conduct.
4.3 Jurisdiction may be exercised over a person who claims an interest (of ownership,
lien, security, or otherwise) in property located in the forum state with respect to that
interest.
4.4 Jurisdiction may be exercised, when no other forum is reasonably available, on
the basis of:
4.4.1 Presence or nationality of the defendant in the forum state; or
4.4.2 Presence in the forum state of the defendanťs property, whether or not
the dispute relates to the property, but the courťs authority is limited to the property or
its value.
4.5 A court may grant provisional measures with respect to a person or to property in
the territory of the forum state, even if the court does not have jurisdiction over the
controversy.
4.6 The forum should decline to exercise jurisdiction or suspend the proceeding, if:
4.6.1 Another forum was validly designated by the parties as exclusive;
4.6.2 The forum is manifestly inappropriate relative to another forum that could
exercise jurisdiction; or
4.6.3 The dispute is previously pending in another court.
4.7 The forum may nevertheless exercise its jurisdiction or reinstate the proceeding
when it appears that the dispute cannot otherwise be effectively and expeditiously
resolved or there are other compelling reasons for doing so.
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 37
Comment:
R-4A The standard of "substantial connection" has been generally accepted for
international legal disputes. That standard excludes mere physical presence, which within the
United States is colloquially called "tag jurisdiction." Mere physical presence as a basis of
jurisdiction within the American federation has historical justification but is inappropriate in
international disputes. But see Rule 4.4.1.
R-4B The concept of "jural entity" includes a corporation, société anonyme,
unincorporated association, partnership, or other organization recognized as a jural entity by forum
law.
R-4C Rule 4.4.2 recognizes that when no other forum is reasonably available a state may
exercise jurisdiction by sequestration or attachment of locally situated property, even though the
property is not the object or subject of the dispute. The procedure is called "quasi in rem
jurisdiction" in some legal systems.
R-4D The concept recognized in Rule 4.6.2 corresponds in common-law systems to the
rule of forum non conveniens.
5. Multiple Claims and Parties; Intervention
5.1 A party may assert any claim substantially connected to the subject matter of the
proceeding against another party or against a third person who is subject to the
jurisdiction of the court.
5.2 A third person made a party as provided in Rule 5.1 should be summoned as
provided in Rule 7.
5.3 A person having an interest substantially connected with the subject matter of the
proceeding may apply to intervene. The court itself or on motion of a party may require
notice to a party having such an interest, inviting intervention. Intervention may be
permitted unless it will unduly delay, introduce confusion into the proceeding, or
otherwise unfairly prejudice a party.
5.4 A party added to the proceeding ordinarily has the same rights and obligations of
participation and cooperation as the original parties. The extent of these rights and
obligations should be adjusted according to the basis, timing, and circumstances of the
joinder or intervention.
5.5 When appropriate, the court should grant permission for a person to be
substituted for or to be admitted in succession to a party.
5.6 The court may order separation of claims, issues, or parties, or consolidation with
other proceedings, for a fair or more efficient management and determination or in the
interest of justice. That authority should extend to parties or claims that are not within
the scope of these Rules.
Comment:
R-5A Rule 5 recognizes the right afforded in many legal systems to assert any claim
available against another party that is substantially connected to the subject matter of the
proceeding. The court has authority to sever claims and issues, and to consolidate them, according
to their subject matter and the affected parties.
R-5B Rule 5.3 states the concept of intervention by a third party. The precise definition
of intervention varies somewhat among legal systems. However, in general a person (whether
individual or jural entity) who has some interest that could be affected by the proceedings, and
who seeks to participate, should be allowed to do so. Some systems also allow intervention when
there exists between the intervenor and one or more of the parties to the proceeding a question of
UNIDROIT 2005- Study LXXVI ­ Doc. 1338
law or fact in common with one or more of the questions in issue in the proceeding. The scope and
terms of intervention may be limited by the court to avoid confusion, delay, or prejudice.
6. Amicus Curiae Submission
Any person or jural entity may present a written submission to the court
containing data, information, remarks, legal analysis, and other considerations that may
be useful for a fair and just decision of the case. The court may refuse such a submission.
The court may invite a nonparty to present such a submission. The parties must have an
opportunity to submit written comment addressed to the matters in the submission
before it is considered by the court.
Comment:
R-6A The "amicus curiae brief" is a useful means by which a nonparty may supply the
court with information and legal analysis that may be helpful to achieve a just and informed
disposition of the case. Therefore, any person may be allowed to file such a brief, notwithstanding
a lack of legal interest sufficient for intervention. It is in the courťs discretion whether such a brief
may be taken into account. An amicus curiae does not become a party to the case but is merely an
active commentator. Factual assertions in an amicus brief are not evidence in the case.
R-6B In civil-law countries there is no well-established practice of allowing third parties
without a legal interest in the merits of the dispute to participate in a proceeding although some
civil-law countries such as France have developed similar institutions in their decisional law.
Consequently, most civil-law countries do not have a practice of allowing the submission of amicus
curiae briefs. Nevertheless, the amicus curiae brief is an important device, particularly in cases of
public significance.
7. Due Notice
7.1 A party must be given formal notice of the proceeding commenced against that
party, provided in accordance with forum law by means reasonably likely to be effective.
7.2 The notice must:
7.2.1 Contain a copy of the statement of claim;
7.2.2 Advise that plaintiff invokes these Rules; and
7.2.3 Specify the time within which response is required and state that a default
judgment may be entered against a party who does not respond within that time.
7.2.4 Be in a language of the forum and also in a language of the state of an
individuaľs habitual residence or a jural entity's principal place of business, or the
language of the principal documents in the transaction.
7.3 All parties must have prompt notice of claims, defenses, motions, and applications
of other parties, and of determinations and suggestions by the court. Parties must have a
fair opportunity and reasonably adequate time to respond.
Comment:
R-7A Responsibility for giving notice in most civil-law systems and some common-law
systems is assigned to the court. In other common-law systems it is assigned to the parties. In
most systems the notice (called a summons in common-law terminology) must be accompanied by
a copy of the complaint, which itself contains detailed notice about the dispute. Many systems
require a recital of advice as to how to respond. The warning about default is especially important.
See Comment R-11B.
R-7B Concerning the language of the notice, the court ordinarily will assume that its own
language is appropriate. The parties therefore may have responsibility to inform the court when
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 39
that assumption is inaccurate. The requirement that notice be in a language of the state of the
person to whom it is addressed establishes an objective standard for specification of language.
R-7C In all systems, after the complaint has been transmitted and the defendant has
responded, communications among the court and the parties ordinarily are conducted through the
parties' lawyers.
8. Languages
8.1 The proceedings, including documents and oral communication, ordinarily should
be conducted in a language of the court.
8.2 The court may allow use of other languages in all or part of the proceeding if no
prejudice to a party will result.
8.3 Translation must be provided when a document is not written, or a party or
witness is not competent in a language in which the proceeding is conducted. Translation
must be made by a neutral translator selected by the parties or appointed by the court.
The cost must be paid by the party presenting the pertinent witness or document unless
the court orders otherwise. Translation of lengthy or voluminous documents may be
limited to relevant portions, as agreed by the parties or ordered by the court.
Comment:
R-8A The language in which the proceeding is conducted should be that in which the
court is fluent. Ordinarily this will be the language of the state in which the court is situated.
However, if the court and the parties have competence in a foreign language, they may agree upon
or the judge may order some other language for all or part of the proceeding, for example the
reception of a particular document or the testimony of a witness in the witness's native language.
R-8B In transnational litigation, it happens frequently that witnesses and experts are not
fluent in the language in which the proceeding is conducted, ordinarily that of the country where
the case is tried. In such a case translation is required for the court and for other parties. The
testimony must be taken with the aid of an interpreter, with the party presenting the evidence
paying the cost of the translation unless the court decides otherwise.
R-8C A second possibility is examining the witness by way of deposition, as provided in
Rule 23.1, under agreement of the parties or by order of the court. The deposition can then be
translated and submitted at the hearing. The procedure and cost of the deposition are determined
according to Rule 23.
C. Composition and Impartiality of the Court
9. Composition of the Court
The court is constituted as follows: [---].
Comment:
R-9A Rule 9 contemplates that the forum state, when implementing these Rules, may
constitute a court of special jurisdiction to adjudicate disputes governed by these Rules.
R-9B In most legal systems today, the courts of first instance consist of a single judge.
However, many civil-law systems normally use three judges in courts of general authority. In some
legal systems the composition of the court may be one or three judges, according to various
criteria.
R-9C Jury trial is a matter of constitutional right under various circumstances in some
countries, notably the United States. Where jury trial is of right, the parties may waive the right or
these Rules can apply with the use of a jury. See Rule 2.1 (subjecting these Rules to domestic
UNIDROIT 2005- Study LXXVI ­ Doc. 1340
constitutional provisions).Jury trial requires special rules of evidence, for example, concerning
hearsay and prejudicial evidence, that preserve the integrity of the decision making process.
10. Impartiality of the Court
10.1 A judge or other person having decisional authority must not participate if there
are reasonable grounds to doubt such person's impartiality.
10.2 A party must have the right to make reasonable challenge of the impartiality of a
judge, referee, or other person having decisional authority. A challenge must be made
promptly after the party has knowledge of the basis for challenge.
10.3 A challenge of a judge must be heard and determined either by a judge other than
the one so challenged or, if by the challenged judge, under procedure affording
immediate appellate review or reconsideration by another judge.
10.4 The court may not accept communications about the case from a party or from
anyone else in the absence of other parties, except for communications concerning
routine procedural administration and communications in proceedings without noticeas
provided in Rule 17.2.
Comment:
R-10A All legal systems require judges to be impartial. In many systems, however, there
is no recognized procedure by which a party to litigation can challenge a judge's impartiality. The
absence of such a procedure means the problem itself is not sufficiently acknowledged. A
procedure for challenge is essential to give reality to the concept.
R-10B Other persons having "decisional authority" include a lay member of the court, such
as jurors, and an expert appointed by the court under Rule 26.
R-10C A challenge to a judge's impartiality should be made only on substantial grounds
and must be made promptly. Otherwise, the challenge procedure can be abused as a device for
attacking unfavorable rulings.
R-10D The prohibition on ex parte communications or proceedings (i.e., without notice to
the person adversely interested) should extend not only to communications from the parties and
the lawyers but also to communications from other government officials. There have been
instances in which improper influence has been attempted by other judges in a court system.
D. Pleading Stage
11. Commencement of the Proceeding and Notice
11.1 The plaintiff shall submit to the court a statement of claim, as provided in Rule 12.
The court shall thereupon give notice of the proceeding, as provided in Rule 7.
11.2 The time of lodging of the complaint with the court determines compliance with
statutes of limitations, lis pendens, and other requirements of timeliness, subject to
compliance with requirements of timely notice to the party affected thereby.
Comment:
R-11A Rule 11 specifies the rule for commencement of suit for purposes of determining
the competence of the court, lis pendens, interruption of statutes of limitations, and other purposes
as provided by the forum law.
R-11B Rule 11 also provides for giving notice of the proceeding to the defendant, or
"service of process" as it is called in common-law procedure. The Hague Service Convention
specifies rules of notice that govern proceedings in countries signatory to that Convention. When
judicial assistance from the courts of another country is required in order to effect notice, the
procedure for obtaining such assistance should be followed. In any event, the notice must include a
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 41
copy of the statement of claim, a statement that the proceeding is conducted under these Rules,
and a warning that default judgment may be taken against a defendant that does not respond. See
Rule 7.2. Beyond these requirements, the rules of the forum govern the mechanisms and
formalities for giving notice of the proceeding. In some states it is sufficient to mail the notice;
some states require that notice, such as a summons, be delivered by an officer of the court.
12. Statement of Claim (Complaint)
12.1 The plaintiff must state the facts on which the claim is based, describe the
evidence to support those statements, and refer to the legal grounds that support the
claim, including foreign law, if applicable.
12.2 The reference to legal grounds must be sufficient to permit the court to determine
the legal validity of the claim.
12.3 The statement of facts must, so far as reasonably practicable, set forth detail as
to time, place, participants, and events.
12.4 A party who is justifiably uncertain of a fact or legal grounds may make
statements about them in the alternative. In connection with an objection that a
pleading lacks sufficient detail, the court should give due regard to the possibility that
necessary facts and evidence will develop in the course of the proceeding.
12.5 If plaintiff is required to have first resorted to arbitration or conciliation
procedure, or to have made a demand concerning the claim, or to have complied with
another condition precedent, the complaint must allege compliance therewith.
12.6 The complaint must state the remedy requested, including the monetary amount
demanded and the terms of any other remedy sought.
Comment:
R-12A Rule 12.1 requires the plaintiff to state the facts upon which the claim is based.
Rule 12.3 calls for particularity of statement, such as that required in most civil-law and most
common-law jurisdictions. In contrast, some American systems, notably those employing "notice
pleading" as under the Federal Rules of Civil Procedure, permit very general allegations. In these
Rules, the facts pleaded in the statements of claim and defense establish the standard of relevance
for exchange of evidence, which is limited to matters relevant to the facts of the case as stated in
the pleadings. See Rule 25.2.
R-12B Under Rules 12.1 and 12.2, the complaint must refer to the legal grounds on which
the plaintiff relies to support the claim. Reference to such grounds is a common requirement in
many legal systems and is especially appropriate when the transaction may involve the law of
more than one legal system and present problems of choice of law. Rules of procedure in many
national systems require a party's pleading to set forth foreign law when the party intends to rely
on that law. However, according to Principle 22.1, the court has responsibility for determining the
correct legal basis for its decisions.
R-12C According to Rule 7.2.2, the notice must advise that plaintiff invokes these Rules.
The court or a defendant or other party may challenge that application, or demand application of
these Rules if plaintiff has not done so.
R-12D Some systems require that a claim or demand be made against a prospective
defendant before commencing litigation, for example claims against public agencies or insurance
companies.
R-12E Rule 12.4 requires a statement of the amount of money demanded and, if
injunctive or declaratory relief is sought, the nature and terms of the requested remedy. If the
defendant defaults, the court may not award a judgment in an amount greater or in terms more
severe than demanded in the complaint, so that the defendant can calculate on an informed basis
UNIDROIT 2005- Study LXXVI ­ Doc. 1342
whether to dispute the claim. See Rule 15.4. It is an important requirement that a default
judgment may be entered only when the plaintiff has offered sufficient proof of the claims for
which judgment is awarded. See Rule 15.3.2.
13. Statement of Defense and Counterclaims
13.1 A defendant must, within [60] consecutive days from the date of service of notice,
answer the complaint. The time for answer may be extended for a reasonable time by
agreement of the parties or by court order.
13.2 A defendant in the answer must admit, admit with explanations, or allege an
alternative statement of facts, and deny allegations defendant wishes to controvert.
Failure explicitly to deny an allegation is considered an admission for purposes of the
proceeding and obviates proof thereof, except as provided in Rule 15 concerning default
judgment.
13.3 The defendant may state a counterclaim seeking relief from a plaintiff, or a claim
against a co-defendant or a third person. Such a claim must be answered by the party to
whom it is addressed as provided in this Rule.
13.4 The requirements of Rule 12 concerning the detail of statements of claims apply
to the answer, affirmative defenses, counterclaims, and third-party claims.
13.5 Objections referred to in Rule 19.1.1 and 19.1.2 may be presented in a motion
before the answer but such a motion does not extend the time in which to answer unless
the court so orders or the parties agree.
Comment:
R-13A Forum law should specify the time within which a defendanťs response is required.
The specification should take into account the transnational character of the dispute.
R-13B Rule 13.2 requires that the defendanťs statement of defense address the
allegations of the complaint, denying or admitting with explanation those allegations that are to be
controverted. Allegations not so controverted are admitted for purposes of the litigation. The
defendant may assert an "alternative statement of facts," which is simply a different narrative of
the circumstances that the defendant presents in order to clarify the dispute. Whether an
admission in a proceeding under these Rules has effect in other proceedings is determined by the
law governing such other proceedings. An "affirmative defense" is the allegation of additional facts
or contentions that avoids the legal effect of the facts and contentions raised by the plaintiff, rather
than contradict them directly. An example is the defense that an alleged debt has previously been
discharged in bankruptcy. A "negative defense" is the denial.
R-13C These Rules generally do not specify the number of days within which a specific
procedural act should be performed. A transnational proceeding must be expeditious, but
international transactions often involve severe problems of communications. It is generally
understood that the time should be such as to impose an obligation of prompt action, but should
not be so short as to create unfair risk of prejudice. Therefore, a period of 60 days in which to
respond generally should be sufficient. However, if the defendant is at a remote location, additional
time may be necessary and should be granted as of course. In any event, the forum state should
prescribe time limits, and the basis on which they are calculated, in its adoption of the Rules.
R-13D Rule 13.4 applies to the defendanťs answer the same rules of form and content as
Rule 12 provides with respect to the statement of claim. Thus, additional facts stated by the
defendant, by way of affirmative defense or alternative statement, must be in the same detail as
required by Rule 12.3. If a counterclaim is asserted, the defendant must make a demand for
judgment as required by Rule 12.6.
R-13E Rule 13.3 permits the defendant to assert a counterclaim, third-party claim, or
cross-claim. Such a claim may be for indemnity or contribution. In most civil-law systems, a
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 43
counterclaim is permitted only for a claim arising from the dispute addressed in the plaintiff's
complaint. See Comment R-2C for reference to the civil-law concept of "dispute." In common-law
systems a wider scope for counterclaims is generally permitted, including a "set off" based on a
different transaction or occurrence. Compare United States Federal Rules of Civil Procedure, Rule
13. These Rules adopt the broader scope but do not provide for compulsory counterclaims, so that
omission to interpose a counterclaim does not result in preclusion. See Principles 10.3 and 28.2.
Rule 13.3 requires a plaintiff, third party, or co-defendant to submit an answer to a
counterclaim, third-party claim, or cross-claim. No such response is required to an affirmative
defense or other allegations in the answer that are not counterclaims or other claims.
R-13F Rule 13.5 authorizes a defendant to make objections referred to in Rule 19.1.1 and
19.1.2 either by a motion pursuant to that Rule or by answer to the complaint.
14. Amendments
14.1 A party, upon showing good cause to the court and notice to other parties, has a
right to amend its claims or defenses when doing so does not unreasonably delay the
proceeding or otherwise result in injustice. In particular, amendments may be justified
to take account of events occurring after those alleged in earlier pleadings, newly
discovered facts or evidence that could not previously have been obtained through
reasonable diligence, or evidence obtained through exchange of evidence.
14.2 Leave to amend must be granted on such terms as are just, including, when
necessary, adjournment or continuance, or compensation by an award of costs to
another party.
14.3 The amendment must be served on the opposing party, who has [30] consecutive
days in which to respond, or such other time as the court may order.
14.4 If the complaint has been amended, default judgment may be obtained on the
basis of an amended pleading only if the amended pleading has been served on the party
against whom default judgment is to be entered and the party has not timely responded.
14.5 Any party may request that the court order another party to provide by
amendment a more specific statement of that party's pleading on the ground that the
challenged statement does not comply with the requirements of these Rules. This
request temporarily suspends the duty to answer.
Comment:
R-14A The scope of permissible amendment differs among various legal systems, the rule
in the United States, for example, being very liberal and that in many civil-law systems being less
so. In many civil-law systems amendment of the legal basis of a claim is permitted, as distinct
from the factual basis, but amendment of factual allegations is permitted only upon a showing that
there is newly discovered probative evidence and that the amendment is within the scope of the
dispute. See Comment R-2C for reference to the civil-law concept of "dispute."
R-14B The appropriateness of permitting amendment also depends on the basis of the
request. For example, an amendment to address material evidence newly discovered should be
more readily granted than an amendment to add a new party whose participation could have been
anticipated. An amendment sometimes could have some adverse effect on an opposing party. On
the other hand, compensation for costs reasonably incurred by the party, or rescheduling of the
final hearing, could eliminate some unfair prejudicial effects. Accordingly, exercise of judicial
judgment may be required in considering an amendment. The court may postpone the award of
costs until the final disposition of the case. See Rule 14.2.
R-14C In accordance with the right of contradiction stated in Principle 5, Rule 14.4
requires that if the complaint has been amended, default judgment may be obtained on the basis
UNIDROIT 2005- Study LXXVI ­ Doc. 1344
of an amended pleading only if the amended pleading has been served on the party against whom
default judgment is to be entered. See Rules 14.3 and 15.4.
R-14D Rule 14.5 permits a party to request that another party be required to state facts
with greater specificity. Failure to comply with such an order may be considered a withdrawal of
those allegations. Such a request for more specific allegations temporarily suspends the duty to
answer. However, a frivolous request may be the basis for sanctions.
15. Dismissal and Default Judgment
15.1 Dismissal of the proceeding must be entered against a plaintiff who without
justification fails to prosecute the proceeding with reasonable efficiency. Before entering
such a dismissal, the court must give plaintiff a reasonable warning thereof.
15.2 Default judgment must be entered against a defendant or other party who,
without justification, fails to appear or respond within the prescribed time.
15.3 In entering a default judgment for failure to appear or respond within the
prescribed time, the court must determine that:
15.3.1 There is jurisdiction over the party against whom judgment is to be
entered;
15.3.2 There has been compliance with notice provisions and that the party has
had sufficient time to respond;
15.3.3 The claim is reasonably supported by evidence and is legally sufficient,
including the amount of damages and any claim for costs.
15.4 A default judgment may be no greater in monetary amount or in severity of other
remedy than was demanded in the complaint.
15.5 A party who appears or responds after the time prescribed, but before judgment,
may be permitted to enter a defense upon offering reasonable excuse, but the court may
order compensation for costs resulting to the opposing party.
15.6 The court may enter default judgment as a sanction against a party who without
justification fails to offer a substantial answer or otherwise fails to continue participation
after responding.
15.7 Dismissal or default judgment is subject to appeal or request to set aside the
judgment according to the law of the forum.
Comment:
R-15A Default judgment permits termination of a dispute. It is a mechanism for
compelling a defendant to acknowledge the courťs authority. If the court lacked authority to enter
a default judgment, a defendant could avoid liability simply by ignoring the proceeding and later
dispute the validity of the judgment.
It is important to consider the reason why the party did not answer or did not proceed after
having answered. For example, a party may have failed to answer because that party was obliged
by his or her national law not to appear by reason of hostility between the countries.
Reasonable care should be exercised before entering a default judgment because notice
may not have been given to a defendant, or the defendant may have been confused about the
need to respond. Forum procedure in many systems requires that, after a defendant has failed to
respond, an additional notice be given to the defendant of intention to enter default judgment.
R-15B A plaintiff's abandonment of prosecution of the proceeding is usually referred to as
"failure to prosecute" and results in "involuntary dismissal." It is the equivalent of a default.
R-15C The absence of a substantial answer may be treated as no answer at all.
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 45
R-15D A decision that the claim is reasonably supported by evidence and legally justified
under Rule 15.3.3 does not require a full inquiry on the merits of the case. The judge need only
determine whether the default judgment is consistent with the available evidence and is legally
justified. For that decision, the judge must analyze critically the evidence supporting the statement
of claims. See Rule 21.1. The judge may request production of more evidence or schedule an
evidentiary hearing.
R-15E Rule 15.4 limits a default judgment to the amount and kind demanded in the
statement of claim. See Rule 12.6. This Rule is important in common-law systems in which
judgment is normally not limited to the original claims made by the parties on the pleadings. In
civil-law systems and some common-law systems, however, there is a traditional prohibition
against a judgment that goes beyond the pleadings (ultra petita or extra petita prohibition) even if
the claim is contested.
R-15F Rule 15.4 must be interpreted together with Rule 14.4, which requires an
amendment to be served on the party before a default judgment may be rendered.
R-15G A party who has defaulted should not be permitted to produce evidence in an
appeal, except to prove that the notice was not proper.
R-15H Every system has a procedure for invalidating a default judgment obtained without
compliance with the rules governing default. In some systems, including most common-law
systems, the procedure is pursued in the first-instance court, and in other systems, including many
civil-law systems, it is through an appeal. This Rule defers to forum law.
16. Settlement Offer
16.1 After commencement of a proceeding under these Rules, a party may deliver to
another party a written offer to settle one or more claims and the related costs and
expenses. The offer must be designated "Settlement Offer" and must refer to the
penalties imposed under this Rule. The offer must remain open for [60] days, unless
rejected or withdrawn by a writing delivered to the offeree before delivery of an
acceptance.
16.2 The offeree may counter with its own offer, which must remain open for at least
[30] days. If the counteroffer is not accepted, the offeree may accept the original offer,
if still open.
16.3 An offer neither withdrawn nor accepted before its expiration is rejected.
16.4 Except by consent of both parties, an offer must not be made public or revealed to
the court before acceptance or entry of judgment, under penalty of sanctions, including
adverse determination of the merits.
16.5 Not later than [30] days after notice of entry of judgment, a party who made an
offer may file with the court a declaration that an offer was made but rejected. If the
offeree has failed to obtain a judgment that is more advantageous than the offer, the
court may impose an appropriate sanction, considering all the relevant circumstances of
the case.
16.6 Unless the court finds that special circumstances justify a different sanction, the
sanction must be the loss of the right to be reimbursed for the costs as provided in Rule
32, plus reimbursement of a reasonable amount of the offeror's costs taking into account
the date of delivery of the offer. This sanction must be in addition to the costs
determined in accordance with Rule 32.
16.7 If an accepted offer is not complied with in the time specified in the offer, or in a
reasonable time, the offeree may either enforce it or continue with the proceeding.
UNIDROIT 2005- Study LXXVI ­ Doc. 1346
16.8 This procedure is not exclusive of the courťs authority and duty to conduct
informal discussion of settlement and does not preclude parties from conducting
settlement negotiations outside this Rule and that are not subject to sanctions.
Comment:
R-16A This Rule aims at encouraging compromises and settlements and also deters parties
from pursuing or defending a case that does not deserve a full and complete proceeding.
This Rule departs from traditions in some countries in which the parties generally do not
have an obligation to negotiate or otherwise consider settlement proposals from the opposing
party. It allocates risk of unfavorable outcome and is not based on bad faith or misconduct. It
protects a party from the expense of litigation in a dispute that the party has reasonably sought to
settle. However, it imposes severe cost consequences on a party who fails to achieve a judgment
more favorable than a formal offer that has been rejected. For this reason, the procedure may be
regarded as impairing access to justice.
R-16B Rule 16 is based on a similar provision under the Ontario (Canada) civil-procedure
rules and Part 36 of the new English Procedural Rules. The detailed protocol is designed to permit
submission and consideration of serious offers of settlement, from either a plaintiff or a defendant.
At the same time, the protocol prohibits use of such offers or responses to influence the court and
thereby to prejudice the parties. Experience indicates that a precisely defined procedure, to which
conformity is strictly required, can facilitate settlement. The law of the forum may permit or
require the deposit of the offer into court.
This procedure is a mechanism whereby a party can demand from an opposing party
serious consideration of a settlement offer at any time during the litigation. It is not exclusive of
the courťs authority and duty to conduct informal discussions and does not preclude parties from
conducting settlement negotiations by procedures that are not subject to the Rule 16.5 sanction.
See Rule 16.8.
R-16C The offer must remain open for a determinate amount of time, but it can be
withdrawn prior to acceptance. According to general principles of contract law, in general the
withdrawal of an offer can be accomplished only before the offer reaches the offeree. See, e.g.,
UNIDROIŤs Principles of International Commercial Contracts article 2.3. However, the context of
litigation requires a different protocol designed to facilitate settlement: facts or evidence may
develop, or expenses may be incurred, that justify the withdrawal, reduction, or increase of the
offer. When the offer is withdrawn, there will be no cost sanctions.
The offeree may deliver a counteroffer. According to the principle of equality of the parties,
a counteroffer is regulated by the same rules as the offer. See Principle 3. For example, it can be
withdrawn under the same conditions as an offer can be withdrawn. In addition, the counteroffer
may lead to the same sanctions as an offer.
According to general principles of private contract law, the delivery of a counteroffer means
rejection of the offer. See, e.g., UNIDROIŤs Principles of International Commercial Contracts
article 2.11. However, the rule specified here is more effective in the context of settlement offers in
litigation, in which a rejection of an offer may lead to serious consequences.
R-16D Rule 16.4 prohibits public disclosure of the offer or disclosure to the court before
acceptance or entry of judgment. Parties might be reluctant to make a settlement offer if doing so
could be interpreted as an admission of liability or of weakness of one's position.
R-16E Rule 16.5, permitting notice to the court of an offer that was not accepted, is linked
to Rule 31.3, which provides that the court must promptly give the parties notice of judgment.
When such notice has been received, the party whose offer was not accepted may inform the
court, in order to obtain the cost sanctions prescribed in this Rule.
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 47
R-16F If the offeree fails to obtain a judgment that is more advantageous than the offer of
settlement under this Rule, that party loses the right to be reimbursed for the costs and expenses
incurred after the offer, including attorneys' fees. Instead, the offeree (even if it is the winning
party) must pay the costs and expenses thereafter incurred by the offeror (even if it is the loser).
The court will award an appropriate proportion of the costs and expenses taking into account the
date of delivery of the offer.
According to Rule 16.6, the cost sanction in this Rule is independent from and in addition to
the costs awarded according to Rule 32. If the person who has to pay the cost sanction was also
the loser of the action, that person may have to pay both fee shifting and the cost sanction.
When the offer is partial, or the offeree fails only in part to obtain a more advantageous
judgment, the sanction should be proportional. The rejection of the offer may have been
reasonable under the specific circumstances of the case, and under Rule 16.6 the judge may
determine the sanction accordingly.
E. General Authority of the Court
17. Provisional and Protective Measures
17.1 The court may grant provisional relief to restrain or require conduct of a party or
other person when necessary to preserve the ability to grant effective relief by final
judgment or to maintain or otherwise regulate the status quo. The grant or extent of the
remedy is governed by the principle of proportionality. Disclosure of assets wherever
located may be ordered.
17.2 The provisional relief may be issued before the opposing party has an opportunity
to respond only upon proof of urgent necessity and preponderance of considerations of
fairness. The applicant must fully disclose facts and legal issues of which the court
properly should be aware.
17.3 A person against whom an ex parte order is directed must have an opportunity at
the earliest practicable time to respond concerning the appropriateness of the order.
17.4 The court may, after hearing those interested, issue, dissolve, renew, or modify
an order.
17.5 An applicant for a provisional relief is liable for compensation of a person against
whom an order is issued if the court thereafter determines that the relief should not
have been granted.
17.5.1 The court may require the applicant for provisional relief to post a bond or
formally to assume a duty of compensation.
17.6 The granting or denial of a provisional relief is subject to immediate appellate
review.
Comment:
R-17A Provisional relief may consist of an order requiring or prohibiting the performance
of a specified act, for example, preserving property in its present condition. Rule 17.1 authorizes
the court to issue an order that is either affirmative, in that it requires performance of an act, or
negative in that it prohibits a specific act or course of action. The term is used here in a generic
sense to include attachment, sequestration, and other directives. The concept of regulation of the
status quo may include measures to ameliorate the underlying dispute, for example supervision of
management of a partnership during litigation among the partners. Availability of provisional
remedies or interim measures, such as attachment or sequestration, should be determined by
forum law, including applicable principles of international law. A court may also order disclosure of
assets wherever located, or grant provisional relief to facilitate arbitration or to enforce arbitration
provisional measures.
UNIDROIT 2005- Study LXXVI ­ Doc. 1348
R-17B If allowed by forum law, the court may, upon reasonable notice to the person to
whom an order is directed, order persons who are not parties to the proceeding to comply with an
injunction issued in accordance with Rule 17.1 or to retain a fund or other property the right to
which is in dispute in the proceeding, and to deal with it only in accordance with an order of the
court. See Comment R-20A.
R-17C Rule 17.2 authorizes the court to issue an order without notice to the person
against whom it is directed where doing so is justified by urgent necessity. "Urgent necessity,"
required as a basis for an ex parte order, is a practical concept, as is the concept of preponderance
of considerations of fairness. The latter term corresponds to the common-law concept of "balance
of equities." Considerations of fairness include the strength of the merits of the applicanťs claim,
the urgency of the need for a provisional remedy, and the practical burdens that may result from
granting the remedy. Such an order is usually known as an ex parte order. In common-law
procedure such an order is usually referred to as a "temporary restraining order." See Rule 10.4.
The question for the court, in considering an application for an ex parte order, is whether
the applicant has made a reasonable and specific demonstration that such an order is required to
prevent an irreparable deterioration in the situation to be addressed in the litigation and that it
would be imprudent to postpone the order until the opposing party has opportunity to be heard.
The burden is on the party requesting an ex parte order to justify its issuance. However,
opportunity for the opposing party or person to whom the order is addressed to be heard should be
afforded at the earliest practicable time. The party or person must have the opportunity of a de
novo consideration of the decision, including opportunity to present new evidence. See Rule 17.3.
R-17D Rules of procedure generally require that a party requesting an ex parte order
make full disclosure to the court of all aspects of the situation, including those favorable to the
opposing party. Failure to make such disclosure is grounds to vacate an order and may be a basis
of liability for damages against the requesting party.
R-17E As indicated in Rule 17.4, if the court has declined to issue an order ex parte, it
may nevertheless issue an order upon a hearing. If the court previously issued an order ex parte, it
may revoke, renew, or modify its order in light of the matters developed at the hearing. The
burden is on the party seeking the order to show that the order is justified.
R-17F Rule 17.5.1 authorizes the court to require a bond or other indemnification as
protection against the disturbance and injury that may result from an order. The particulars should
be determined by reference to the law of the forum.
R-17G Review of an order granting or denying provisional relief is provided under Rule
33.2 and should be afforded according to the procedure of the forum.
18. Case Management
18.1 The court should assume active management of the proceeding in all stages of the
litigation. Consideration should be given to the transnational character of the dispute.
18.2 The court should order a planning conference early in the proceeding and may
schedule other conferences thereafter. A lawyer for each of the parties and an
unrepresented party must attend such conferences and other persons may be ordered to
do so.
18.3 In giving direction to the proceeding, the court, after discussion with the parties,
may:
18.3.1 Suggest amendment of the pleadings for the addition, elimination, or
revision of claims, defenses, and issues in light of the parties' contentions at that stage;
18.3.2 Order the separation for a preliminary or separate hearing and decision of
one or more issues in the case and enter an interlocutory judgment addressing such
issues and their relation to the remainder of the case;
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 49
18.3.3 Order the separation or consolidation of cases pending before itself,
whether those cases proceed under these Rules or those of the forum, when doing so
may facilitate the proceeding and decision;
18.3.4 Make decisions concerning admissibility and exclusion of evidence; the
sequence, dates, and times of hearing evidence; and other matters to simplify or
expedite the proceeding; and
18.3.5 Order any person subject to the courťs authority to produce documents or
other evidence, or to submit to deposition as provided in Rule 23.
18.4 To facilitate efficient determination of a dispute, the first-instance court may take
evidence at another location or delegate taking of evidence to another court of the forum
state or of another state or to a judicial officer specially appointed for the purpose.
18.5 The court may at any time suggest that the parties consider settlement,
mediation, or arbitration or any other form of alternative dispute resolution. If requested
by all parties, the court must stay the proceeding while the parties explore those
alternatives.
18.6 In conducting the proceeding the court may use any means of communication,
including telecommunication devices such as video or audio transmission.
18.7 Time limits for complying with procedural obligations should begin to run from
the date of notice to the party having the obligation.
Comment:
R-18A This Rule determines the role of the court in organizing the case and preparing for
the final hearing. The court has wide discretion in deciding how to conclude the interim phase, and
in determining how to provide for the following final phase of the proceedings.
R-18B The court should order a planning conference early in the proceeding and may
decide that, in order to clarify the issues and to specify the terms of the dispute at the final
hearing, one or more further conferences may be useful. The court may conduct a conference by
any means of communication available such as telephone, videoconference, or the like.
R-18C The court fixes the date or dates for such conferences. The parties' lawyers are
required to attend. Participation of lawyers for the parties is essential to facilitate orderly
progression to resolution of the dispute. Lawyers in many systems have some authority to make
agreements concerning conduct of the litigation. Parties may have additional authority in some
systems. If matters to be discussed are outside of the scope of the lawyers' authority, the court
has authority to require the parties themselves to attend in order to discuss and resolve matters
concerning progression to resolution, including discussion of settlement. The rule does not exclude
the possibility of pro se litigants.
R-18D In conferences after the initial planning conference, the court should discuss the
issues of the case; which facts, claims, or defenses are not disputed; whether new disputed facts
have emerged from disclosure or exchange of evidence; whether new claims or defenses have
been presented; and what evidence will be admitted at the final hearing. The principal aim of the
conference is to exclude issues that are no longer disputed and to identify precisely the facts,
claims, defenses, and evidence concerning those issues that will be addressed at the final hearing.
However, exceptionally, the court may decide that a conference is unnecessary, and that the final
hearing may proceed simply on the basis of the parties' pleadings and stipulations if any.
R-18E After consultation with the parties, the court may give directives for the final
hearing as provided in Rule 18.3. The court may summarize the terms of claims and defenses, rule
on issues concerning admissibility of evidence, specify the items of admissible evidence, and
determine the order of their examination. The court may also resolve disputed claims of privilege.
UNIDROIT 2005- Study LXXVI ­ Doc. 1350
The court should fix the date for final hearing and enter other orders to ensure that it will be
carried on in a fair and expedited manner.
Rule 18 authorizes various measures by the court to facilitate an efficient hearing. It is
often useful to isolate one or more issues for hearing upon one occasion, with other issues
reserved for consideration later if necessary. So also, it is often useful that a hearing be
consolidated with another case when the same or substantially similar issues are to be considered.
As recognized in Rule 18.3.4, it is often convenient for the court to rule on admissibility of evidence
before its presentation, especially evidence that is complicated, such as voluminous documents.
R-18F The court may consider the possibility that the parties may settle the dispute or
refer it to a mediator. In such a case the court, before entering the rulings described in Rule 18.3,
may fix a hearing to explore the possibility of a settlement, if necessary with the mediation of the
court itself, or a referral of the dispute to mediation or any other form of alternative dispute
resolution. This Rule authorizes the court to encourage discussion between the parties, but not to
exercise coercion.
If a settlement is reached, the proceedings ordinarily are terminated and judgment entered
or the case dismissed with prejudice. If the parties agree about a deferral to mediation or
arbitration, that agreement should be put into the record of the case and the proceeding
suspended.
R-18G A judicial officer especially appointed for the purpose of taking evidence at another
location might be a single judge, a special master, a magistrate, an auditor, a referee, or a lawtrained
person specifically appointed by the court.
19. Early Court Determinations
19.1 On its own motion or motion of a party, the court at any stage before the final
hearing may:
19.1.1 Determine that the dispute is not governed by these Rules or that the court
lacks competence to adjudicate the dispute;
19.1.2 Upon a party's motion, determine that the court lacks jurisdiction over that
party;
19.1.3 Render a complete or partial judgment by deciding only questions of law;
19.1.4 Render a complete or partial judgment on the basis of evidence
immediately available, in which case the court must have regard for the opportunity
under these Rules for offering contradictory evidence or obtaining evidence before
making such a determination.
19.2 Before rendering a decision under this Rule, the court must allow the party
against whom the determination is made reasonable opportunity to amend its statement
of claims or defense when it appears that the deficiency can be remedied by amendment
and that affording such opportunity will not unreasonably postpone the proceeding or
otherwise result in injustice.
Comment:
R-19A It is a universal procedural principle that the court may make determinations of the
sufficiency of the pleadings and other contentions, concerning either substantive law or procedure,
that materially affect the rights of a party or the ability of the court to render substantial justice. In
civil-law systems, the court has an obligation to scrutinize the procedural regularity of the
proceeding. In common-law systems, authority to make such determinations ordinarily is exercised
only upon initiative of a party made through a motion. However, the court in common-law systems
may exercise that authority on its own initiative and in civil-law systems the court may do so in
response to a suggestion or motion of a party.
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 51
According to Rule 13.5, the objections referred to in this subsection can be made by
defendant either by a motion or by answer to the complaint.
R-19B Rules 19.1.1 and 19.1.2 express a universal principle that the courťs competence
over the dispute and its jurisdiction over the parties may be questioned. A valid objection of this
kind usually requires termination of the proceeding. A similar objection may be made that the
dispute is not within the scope prescribed in Rule 2 and hence is not governed by these Rules.
Among factors that may be considered under Rule 19.1.1 is dismissal for forum non conveniens.
See Rule 4.6.2. Procedural law varies as to whether there are time limitations or other restrictions
on delay in making any of these objections, and whether participation in the proceeding without
making such an objection results in its waiver or forfeiture.
R-19C Rules 19.1.3 and 19.1.4 empower the court to adjudicate the merits of a claim or
defense at the preliminary stage. Such an adjudication may be based on matters of law or matters
of fact, or both. Judgment is appropriate when the claim or defense in question is legally
insufficient as stated. Evidence may be in the form of written testimony as provided in Rule 23.4.
Judgment is also appropriate when it is demonstrated that evidence to support or refute the claim
or defense is incontrovertible. When it is contended that the evidence is incontrovertible, the court
should consider whether exchange of evidence might disclose sufficient proof to support the claim
or defense at issue.
Rules 19.1.3 and 19.1.4 authorize the court, prior to the final hearing, to make a partial
award of some proportion of the debt or damages, when part of the dispute is not controverted or
when it can be decided with the evidence available in the record.
In civil-law systems, the foregoing powers are exercised by the court as a matter of course.
In common-law systems, the power to determine that a claim or defense is substantively
insufficient derives from the old common-law demurrer and the modern motions for dismissal for
failure to state a claim and for summary judgment and is usually exercised on the basis of a
motion by a party. Examples of claims that typically may be so adjudicated are claims based on a
written contract calling for payment of money, or to ownership of specific property, when no valid
defense or denial is offered. Examples of defenses that typically may be so adjudicated are the
defense of elapse of time (statute of limitations or prescription), release, and res judicata.
20. Orders Directed to a Third Person
20.1 The court may order persons who are not parties to the proceeding:
20.1.1 To give testimony as provided in Rules 23 and 29; and
20.1.2 To produce information, documents, electronically stored information, or
other things as evidence or for inspection by the court or a party.
20.2 The court shall require a party seeking an order directed to a third person to
provide compensation for the costs of compliance.
20.3 An order directed to a third person may be enforced by means authorized against
such person by forum law, including imposition of cost sanctions, a monetary penalty,
astreintes, contempt of court, or seizure of documents or other things. If the third party
is not subject to the courťs jurisdiction, any party may seek assistance of a court that
has such jurisdiction to enforce the order.
Comment:
R-20A In some common-law countries, the court has broad authority to order nonparties
to act or refrain from acting during pendency of the litigation, to preserve the status quo, and to
prevent irreparable injury. In various situations a person may be involved in a suit without being a
party, but should be subject to orders in the interest of justice in the proceeding. The right of
contradiction stated in Principle 5 should be respected at all times. Therefore, interested persons
should be notified and afforded a reasonable opportunity to respond. In civil-law countries, such in
UNIDROIT 2005- Study LXXVI ­ Doc. 1352
personam authority is not recognized: a courťs authority is generally limited to relief in rem
through attachment of property. The Anglo-American solution may be very effective, especially in
international litigation, but also may be subject to abuse. See Comment 17B.
R-20B When a nonparty's testimony is required, on a party's motion or on the courťs own
motion, the court may direct the witness to give testimony in the hearing or through deposition.
R-20C When a document or any other relevant thing is in possession of a nonparty, the
court may order its production at the preliminary stage or at the final hearing.
R-20D An order directed to a third party is enforced by sanctions for noncompliance
authorized by forum law. These sanctions include a monetary penalty or other legal compulsion,
including contempt of court. When it is necessary to obtain evidentiary materials or other things,
the court may order a direct seizure of such materials or things, and define the manner of doing it.
F. Evidence
21. Disclosure
21.1 In accordance with the courťs scheduling order, a party must identify to the court
and other parties the evidence on which the party intends to rely, in addition to that
provided in the pleading, including:
21.1.1 Copies of documents or other records, such as contracts and
correspondence; and
21.1.2 Summaries of expected testimony of witnesses, including parties, other
witnesses, and experts, then known to the party. Witnesses must be identified, so far as
practicable, by name, address, and telephone number.
21.1.3 In lieu of a summary of expected testimony, a party may present a written
statement of testimony.
21.2 A party must amend the specification required in Rule 21.1 to include documents
or witnesses not known when the list was originally prepared. Any change in the list of
documents or witnesses must be immediately communicated in writing to the court and
to all other parties, together with a justification for the amendment.
21.3 To facilitate compliance with this Rule, a lawyer for a party may have a voluntary
interview with a potential nonparty witness. The interview may be on reasonable notice
to other parties, who may be permitted to attend the interview.
Comment:
R-21A Rule 21.1 requires that a party disclose documents on which that party relies in
support of the party's position. A party must also list the witnesses upon whom it intends to rely
and include a summary of expected testimony. The summary of expected testimony should address
all propositions to which the witness will give testimony and should be reasonably specific in detail.
See Rule 23.4.
If a party later ascertains that there are additional documents or witnesses, it must submit
an amended list, as provided in Rule 21.2. See also Rule 22.7. In accordance with Rules 12.1 and
13.4, the parties must state with reasonable detail the facts and the legal grounds supporting their
position.
R-21B Under the concept of professional ethics in some civil-law systems, a lawyer should
not discuss the matters in dispute with prospective witnesses (other than the lawyer's own client).
That norm is designed to protect testimony from improper manipulation, but it also has the effect
of limiting the effectiveness of a lawyer in investigating and organizing evidence for consideration
by the court. In discussion with a prospective witness, the lawyer should not suggest what the
testimony should be nor offer improper inducement. Although there is some risk of abuse in
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 53
allowing lawyers to confer with prospective witnesses, that risk is less injurious to fair adjudication
than is the risk that relevant and important evidence may remain undisclosed.
R-21C Rule 21.3 permits a voluntary ex parte interview by a lawyer with a witness. Such
an interview is not a deposition, which is a formal interrogation, conducted before a court official.
See Rule 23.
R-21D Rule 21.3.1 provides the alternative that the lawyer initiating the interview may
give notice to other parties, inviting them to attend voluntarily. This procedure can foreclose or
ameliorate subsequent objection that the interview was improperly suggestive and therefore that
the witness's testimony is suspect. In some circumstances a lawyer would prefer to risk such
subsequent recrimination and therefore interview the witness in private.
22. Exchange of Evidence
22.1 A party who has complied with disclosure duties prescribed in Rule 21, on notice
to the other parties, may request the court to order production by any person of any
evidentiary matter, not protected by confidentiality or privilege, that is relevant to the
case and that may be admissible, including:
22.1.1 Documents and other records of information that are specifically identified
or identified within specifically defined categories;
22.1.2 Identifying information, such as name and address, about specified
persons having knowledge of a matter in issue; and
22.1.3 A copy of the report of any expert that another party intends to present.
22.2 The court must determine the request and order production accordingly. The
court may order production of other evidence as necessary in the interest of justice.
Such evidence must be produced within a reasonable time prior to the final hearing.
22.3 The court may direct that another judge or a specially appointed officer supervise
compliance with an order for exchange of evidence. In fulfilling that function, the special
officer has the same power and duties as the judge. Decisions made by the special officer
are subject to review by the court.
22.4 The requesting party may present the request directly to the opposing party. That
party may acquiesce in the request, in whole or in part, and provide the evidence
accordingly. If the party refuses in whole or in part, the requesting party, on notice to
the opposing party, may request the court to order production of specified evidence. The
court, after opportunity for hearing, must determine the request and may make an order
for production accordingly.
22.7 A party that did not have possession of requested evidence when the courťs
order was made, but that thereafter comes into possession of it, must thereupon comply
with the order.
22.8 The fact that the requested information is adverse to the interest of the party to
whom the demand is directed is not a valid objection to its production.
22.9 The court should recognize evidentiary privileges when exercising authority to
compel disclosure of evidence or other information. The court should consider whether a
privilege may justify a party's failure to disclose evidence or other information when
deciding whether to draw adverse inferences or to impose other indirect sanctions.
Comment:
R-22A These Rules adopt, as a model of litigation, a system consisting of preliminary
hearings followed by a concentrated form of final hearing. The essential core of the first stage is
preliminary disclosure and clarification of the evidence. The principal consideration in favor of a
UNIDROIT 2005- Study LXXVI ­ Doc. 1354
unitary final hearing is that of expeditious justice. To achieve this objective, a concentrated final
hearing should be used, so that arguments and the taking of evidence are completed in a single
hearing or in a few hearings on consecutive judicial days. A concentrated final hearing requires a
preliminary phase (called pretrial in common-law systems) in which evidence is exchanged and the
case is prepared for concentrated presentation.
R-22B Rules 21 and 22 define the roles and the rights of the parties, the duty of voluntary
disclosure, the procedure for exchange of evidence, the role of the court, and the devices to ensure
that the parties comply with demands for evidence. Proper compliance with these obligations is not
only a matter of law for the parties, but also a matter of professional honor and obligation on the
part of the lawyers involved in the litigation.
R-22C The philosophy expressed in Rules 21 and 22 is essentially that of the common-law
countries other than the United States. In those countries, the scope of discovery or disclosure is
specified and limited, as in Rules 21 and 22. However, within those specifications disclosure is
generally a matter of right.
R-22D Discovery under prevailing United States procedure, exemplified in the Federal
Rules of Civil Procedure, is much broader, including the broad right to seek information that
"appears reasonably calculated to lead to the discovery of admissible evidence." This broad
discovery is often criticized as responsible for the increasing costs of the administration of justice.
However, reasonable disclosure and exchange of evidence facilitates discovery of truth.
R-22E Disclosure and exchange of evidence under the civil-law systems are generally
more restricted, or nonexistent. In particular, a broader immunity is conferred against disclosure of
trade and business secrets. This Rule should be interpreted as striking a balance between the
restrictive civil-law systems and the broader systems in common-law jurisdictions.
R-22F Rule 22.1 requires the parties to make the disclosures required by Rule 21 prior to
demanding production of evidence from an opposing party.
R-22G Rule 22.1 provides that every party is entitled to obtain from any person the
disclosure of any unprivileged relevant evidence in possession of that person. Formal requests for
evidence should be made to the court, and the court should direct the opposing party to comply
with an order to produce evidence or information. This procedure can be unnecessarily burdensome
on the parties and on the courts, especially in straightforward requests. Ideally, full disclosure of
relevant evidence should result through dialogue among the parties, whereby the parties
voluntarily satisfy each other's demands without intervention of the court. A party therefore may
present the request directly to the opposing party, who should comply with an adequate request
within a reasonable time. If the opposing party refuses, the party may request the court to order
the production of the evidence. The court will then hear both parties and decide the issue. See Rule
22.4.
R-22H According to Rule 22.1, compulsory exchange of evidence is limited to matters
directly relevant to the issues in the case as they have been stated in the pleadings. See Rule 25.2.
A party is not entitled to disclosure of information merely that "appears reasonably calculated to
lead to the discovery of admissible evidence," which is permitted under Rule 26 of the Federal
Rules of Civil Procedure in the United States. "Relevant" evidence is that which supports or
contravenes the allegations of one of the parties. This Rule is aimed at preventing overdiscovery or
unjustified "fishing expeditions." See Principle 11.3.
R-22I Exchange of evidence may concern documents and any other things (films,
pictures, videotapes, recorded tapes, or objects of any kind), including any records of information,
such as computerized information. The demanding party must show the relevance of the
information, document, or thing to prove or disprove the facts supporting a claim or a defense, and
identify the document or thing to be disclosed, specifically identified, or defined by specific
categories. Thus, a document may be identified by date and title or by specific description such as
"correspondence concerning the transaction between A and B in the period February 1 through
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 55
March 31." A party is not obliged to comply with a demand that does not fulfill these conditions.
Disputes concerning whether the conditions of the demand have been satisfied, and whether the
demand should be complied with, are resolved by the court on motion by any party. The court may
declare the demand invalid or order production of the document or thing, and if necessary specify
the time and mode of production.
R-22J Exchange of evidence may concern the identity of a potential witness. As used in
these Rules, the term "witness" includes a person who can give statements to the court even if the
statements are not strictly speaking "evidence," as is the rule in some civil-law systems concerning
statements by parties. Under Rule 21.1.2 a summary of the expected testimony of a witness whom
a party intends to call must be provided to other parties. A party is not allowed to examine a
witness through deposition except when authorized by the court. See Rules 18.3.5, 21.3, and 23.
R-22K In general, parties bear the burden of obtaining evidence they need in preparation
for final hearing. However, disclosure obtained by the parties on their own motion may be
insufficient or could surprise the court or other parties. To deal with such inconvenience, the court
may order additional disclosure on its own initiative or on motion of a party. For example, the court
may order that a party or a prospective witness submit a written deposition concerning the facts of
the case. The court may also subpoena a hostile witness to be orally deposed. See Rule 23.
R-22L In cases involving voluminous documents or remotely situated witnesses, or in
similar circumstances of practical necessity, the court may appoint someone as a special officer to
supervise exchange of evidence. A person so appointed should be impartial and independent, and
have the same powers and duties as the judge, but decisions by such an officer are reviewable by
the appointing court. See Rule 22.3.
R-22M If a party fails to comply with a demand for exchange of evidence, the court may
impose sanctions to make disclosure effective. The determination of sanctions is within the
discretion of the court, taking into account relevant features of the parties' behavior in accordance
with Principle 17.
The sanctions are:
1) Adverse inferences against the noncomplying party including conclusive determination
of the facts.
2) A monetary penalty, fixed by the court in its discretion, or other means of legal
compulsion permitted by forum law, including contempt of court. The court should graduate the
penalty or contempt sanction according to the circumstances of the case.
3) The most severe sanction against noncompliance with disclosure demands or orders is
entry of adverse judgment with respect to one or more of the claims. The court may enter a
judgment of dismissal with prejudice against the plaintiff or a judgment by default against the
defendant or dismiss claims, defenses, or allegations to which the evidence is relevant. This
sanction is more severe than the drawing of an adverse inference. The adverse inference does not
necessarily imply that the party loses the case on that basis, but dismissal of claims or defenses
ordinarily has that result. Unless the court finds that special circumstances justify a different
sanction, the preferred sanction is to draw adverse inferences. Dismissal and entry of adverse
judgment is a sanction of last resort.
23. Deposition and Testimony by Affidavit
23.1 A deposition of a party or other person may be taken by order of the court. Unless
the court orders otherwise, a deposition may be presented as evidence in the record.
23.2 A deposition must be taken upon oath or affirmation to tell the truth and
transcribed verbatim or recorded by audio or video, as the parties may agree or as the
court orders. The cost of transcription or recording must be paid by the party that
requested the deposition, unless the court orders otherwise.
UNIDROIT 2005- Study LXXVI ­ Doc. 1356
23.3 The deposition must be taken at a specified time and place upon notice to all
parties, at least [30] days in advance. The examination must be conducted before a
judge or other official authorized under forum law and in accordance with forum law
procedure. All the parties have the right to attend and to submit supplemental questions
to be answered by the deponent.
23.4 With permission of the court, a party may present a written statement of sworn
testimony of any person, containing statements in their own words about relevant facts.
The court, in its discretion, may consider such statements as if they were made by oral
testimony before the court. Whenever appropriate, a party may move for an order of the
court requiring the personal appearance or deposition of the author of such an
statement. Examination of that witness may begin with supplemental questioning by the
court or opposing party.
Comment:
R-23A A deposition is a form of taking testimony employed in common-law and in some
civil-law systems. It consists of sworn testimony of a potential witness, including a party, taken
outside of court prior to the final hearing. A deposition may be given orally in response to
questions by lawyers for the parties or by questions from a judicial officer appointed by the court.
A deposition may be conducted by electronic communication, for example by telephone conference.
It may also be given through written responses to written questions. Ordinarily, a deposition is
given after commencement of litigation but also, in accordance with the law of the forum, may be
given de bene esse, i.e., prior to litigation to preserve testimony when the witness is expected to
be unavailable after litigation has commenced. Questioning may seek to gather information and to
test the witness's recollection and credibility. The testimony of a witness in a deposition may be
presented as evidence, either in lieu of the witness or as direct testimony, but the court may
require the presence of a witness who can attend in order to permit supplemental questioning.
Under these Rules a deposition may be used in limited circumstances for exchange of evidence
before trial.
R-23B A party is not allowed to examine a witness through deposition except when
authorized by the court. See Rule 18.3.5. Rule 23.2 provides that deposition testimony be taken on
oath or affirmation, as at a hearing before the court. It is to be transcribed verbatim or recorded on
audio or video. The parties may agree about the form of transcription or recording, but the court
may nevertheless determine what form is to be used. The party who requests the deposition must
pay the cost of transcription or recording, unless the court orders otherwise.
R-23C Rule 23.3 specifies the procedure for a deposition. In general, the procedure should
be similar to a presentation of the witness before the court. Time and place of the deposition may
be prescribed by the court.
R-23D The general principle governing presentation of evidence is that evidence will be
presented orally at the final hearing. See Principle 19 and Rule 29. However, oral examination of a
witness at the final hearing may be impossible, burdensome, or impractical. Rule 23.1 permits the
transcript of a deposition taken in accordance with this Rule to be presented to the court as a
substitute for reception of testimony of a witness who cannot conveniently be present in court, for
example by reason of illness or because the witness is in a remote location or cannot be compelled
to attend to give testimony. A deposition may also be convenient for presenting testimony in a
language other than that of the court. A deposition in any event may be used as a statement
against interest.
R-23E Rule 23.4 permits the presentation of testimony by means of written affidavits
containing statements about relevant facts of the case. Such a statement, although upon oath or
affirmation, is ex parte in that neither the court nor opposing parties has been permitted to
question the witness. According to Principle 19.3, "Ordinarily, testimony of parties and witnesses
should be received orally." Therefore, a written statement may be regarded with corresponding
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 57
skepticism by the court, especially if another party denies the truth of the statements made by
affidavit. However, facts not in serious dispute often may be conveniently proved by this
procedure. See Rule 21.1.3. Testimony by affidavit may facilitate reception of evidence for early
determination of the dispute. See Rule 19.1.3.
The practice of producing testimony through written affidavits instead of personal presence
for an oral examination is becoming common in several systems. Reasons of efficiency explain this
trend: quicker availability of testimony, less trouble and expense for the nonparty, and less time
required for the court. These factors may be especially important in transnational litigation, for
instance when a witness would be required to travel from a distant country to be examined in
court. However, the court may, in its own discretion or on motion by a party, order that the author
of an affidavit be examined orally. There are means of taking evidence abroad provided by
international law and conventions on judicial assistance, requests by diplomatic channels, letters
rogatory, etc. See, e.g., The Hague Convention on the Taking of Evidence Abroad.
24. Public Proceedings
24.1 Ordinarily, oral hearings, including hearings in which evidence is presented and in
which judgment is pronounced, should be open to the public. Following consultation with
the parties, the court may order that hearings or portions thereof be conducted in
private in the interest of justice, public safety, or privacy.
24.2 Court files and records should be public or otherwise accessible to persons with a
legal interest or making a responsible inquiry, according to forum law.
24.3 In the interest of justice, public safety, or privacy, if the proceedings are public,
the judge may order part of them to be conducted in private.
24.4 Judgments, and ordinarily other orders, are accessible to the public.
24.5 Information obtained under these Rules but not presented in an open hearing
must be maintained in confidence in accordance with forum law.
24.6 In appropriate cases, the court may enter suitable protective orders to safeguard
legitimate interests, such as trade or business or national-security secrets or information
whose disclosure might cause undue injury or embarrassment.
24.7 To facilitate administration of this Rule, the court may examine evidence in
camera.
Comment:
R-24A A hearing in camera is one closed to the public and, in various circumstances,
closed to others. As the court may direct according to the circumstances, such a hearing may be
confined to the lawyers without the parties or it may be ex parte, e.g., confined to a party and that
party's lawyer, for example when trade secrets are involved. In general, court files and records
should be public and accessible to the public and news media. Countries that have a tradition of
keeping court files confidential should at least make them accessible to persons with a legal
interest or making a responsible inquiry.
25. Relevance and Admissibility of Evidence
25.1 All relevant evidence generally is admissible. Forum law may determine that
illegally obtained evidence is inadmissible and impose exclusions.
25.2 The facts and legal claims and defenses in the pleadings determine relevance.
25.3 A party, even if not allowed by forum law to give evidence, may nevertheless
make statements that will be accorded probative weight. A party making such a
statement is subject to questioning by the court and other parties.
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25.4 A party has a right to proof through testimony or evidentiary statement, not
privileged under applicable law, of any person, including another party, whose evidence
is available, relevant, and admissible. The court may call any witness meeting these
qualifications.
25.5 The parties may offer in evidence any relevant information, document, or thing.
The court may order any party or nonparty to present any relevant information,
document, or thing in that person's possession or control.
Comment:
R-25A This Rule states principles concerning evidence, defining generally the conditions
and limits of what may be properly considered as proof. The basic principle is that any factual
information that is rationally useful in reaching judgment on the relevant facts of the case should
be admissible as evidence. The court may refuse to accept evidence that is redundant. Commonlaw
concepts of hearsay evidence as exclusionary rules are generally inappropriate in a nonjury
case but they do affect the credibility and weight of evidence.
R-25B In applying the principle of relevance, the primary consideration is the usefulness of
the evidence. In deciding upon admissibility of the evidence, the court makes a hypothetical
evaluation connecting the proposed evidence with the issues in the case. If a probative inference
may be drawn from the evidence to the facts, then the evidence is logically relevant. See Rule 12.1
and Comment R-12A.
R-25C In some legal systems there are rules limiting in various ways the use of
circumstantial evidence. However, these rules seem unjustified and are very difficult to apply in
practice. More generally, there is no valid reason to restrict the use of circumstantial evidence
when it is useful to establish a fact in issue. Therefore, generally, the court may consider any
circumstantial evidence provided it is relevant to the decision on the facts of the case.
R-25D Rule 25 defers to forum law the decision of who can properly give evidence or
present statements. In some national systems the rules limit the extent to which parties or
"interested" nonparties can be witnesses. However, even in such systems the modern trend favors
admitting all testimony. A general rule of competency also avoids the complex distinctions that
exclusionary rules require. The proper standard for the submission of evidence by a witness is the
principle of relevancy. This does not mean, however, that subjective or objective connections of the
witness with the case must be disregarded, but only that they are not a basis for excluding the
testimony. These connections, for example kinship between the witness and a party, may be
meaningful in evaluating credibility.
Any person having information about a relevant fact is competent to give evidence. This
includes the parties and any other person having mental capacity. Witnesses are obligated to tell
the truth, as required in every procedural system. In many systems such an obligation is reinforced
by an oath taken by the witness. When a problem arises because of the religious character of the
oath, the court has discretion to determine the terms of the oath or to permit the witness merely to
affirm the obligation to tell the truth.
R-25E Rules 25.4 and 25.5 govern the parties' right to proof in the form of testimony,
documentary evidence, and real or demonstrative evidence. A party may testify in person, whether
called by the party, another party, or the court. That procedure is not always permitted in civil-law
systems, where the party is regarded as too interested to be a regular witness on its own behalf.
R-25F The court may exercise an active role in the taking of testimony or documentary,
real, or demonstrative evidence. For example, when the court knows that a relevant document is in
possession of a party or of a nonparty, and it was not spontaneously produced, the court may on
its own motion order the party or the nonparty to produce it. The procedural device is substantially
an order of subpoena. The court in issuing the order may establish the sanctions to be applied in
case of noncompliance.
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 59
26. Expert Evidence
26.1 The court must appoint a neutral expert or panel of experts when required by law
and may do so when it considers that expert evidence may be helpful. If the parties
agree upon an expert the court ordinarily should appoint that expert.
26.2 The court must specify the issues to be addressed by the expert and may give
directions concerning tests, evaluations, or other procedures to be employed by the
expert, and the form in which the report is to be rendered. The court may issue orders
necessary to facilitate the inquiry and report by the expert. The parties have the right to
comment upon statements by an expert, whether appointed by the court or designated
by a party.
26.3 A party may designate an expert or panel of experts on any issue. An expert so
designated is governed by the same standards of objectivity and neutrality as a courtappointed
expert. A party pays initially for an expert it has designated.
26.4 A party, itself or through its expert, is entitled to observe tests, evaluations, or
other investigative procedures conducted by the courťs expert. The court may order
experts to confer with each other. Experts designated by the parties may submit their
own opinions to the court in the same form as the report made by the courťs expert.
Comment:
R-26A These Rules adopt the civil-law rule and provisions of the modern English procedure
according to which the court appoints a neutral expert or panel of experts. The court decides on its
own motion whether an expert is needed in order to evaluate or to establish facts that because of
their scientific, legal, or technical nature, the court is unable to evaluate or establish by itself. The
court appoints the expert or the experts (if possible using the special lists that exist in many
countries) on the basis of the experťs competence in the relevant field. If the experťs neutrality is
disputed, that issue is for the court to resolve. The court, informed by the parties'
recommendations, should specify the technical or scientific issues on which the experťs advice is
needed and formulate the questions the expert should answer. The court also should determine
which techniques and procedures the expert will apply, regulate any other aspect of the tests,
inquiries, and research the expert will make, and determine whether the expert will respond orally
or by submitting a written report. The court should consult with the experts as well as the parties
in determining the tests, evaluations, and other procedures to be used by the experts.
R-26B The courťs expert is neutral and independent from the parties and from other
influence and ordinarily is expected to be sound and credible. If the advice does not appear
reasonable, the court may reject it or appoint another expert. However, the court is not obliged to
follow the experťs advice. In such a case, the court ordinarily should explain specifically the
reasons why the experťs advice is rejected and the reasons supporting the courťs different
conclusion.
R-26C Rule 26 recognizes that the status of an expert is somewhat different from that of a
percipient witness and that experts have somewhat different status in various legal systems.
R-26D In common-law systems an expert is presented by the parties on the same basis as
other witnesses, recognizing that the role usually is one of interpretation rather than recounting
first-hand observations. In civil-law systems the parties may present experts but ordinarily do so
only to supplement or dispute testimony of a court-appointed expert.
This Rule adopts an intermediate position. The court may appoint experts but the parties
may also present experts whether or not the court has done so. In addition, if the parties agree
upon an expert, the court ordinarily should appoint that expert. Such an expert is obliged to
perform this task in good faith and according to the standards of the experťs profession. Both a
court-appointed expert and a party-appointed expert are subject to supplemental examination by
the court and by the parties.
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R-26E Under Rule 26.2 the court may examine the expert orally in court or require a
written report and afford oral examination of the expert after the report has been submitted. When
the court receives oral testimony from the courťs expert, the parties' experts should be similarly
heard. When the courťs expert submits a written report, the parties' experts should also be
allowed to do so. The court may order all the experts to confer with each other in order to clarify
the issues and to focus their opinions. The advice of the parties' experts may be taken into account
by the court and the court may adopt a party's expert advice instead of that of the courťs expert.
27. Evidentiary Privileges
27.1 Evidence may not be elicited in violation of:
27.1.1 The legal profession privilege of confidentiality under forum law, including
choice-of-law;
27.1.2 Confidentiality of communications in settlement negotiations;
27.1.3 [Other specified limitations].
27.2 A privilege may be forfeited by, for example, omitting to make a timely objection
to a question or demand for information protected by a privilege. The court in the
interest of justice may relieve a party of such forfeiture.
27.3 A claim of privilege made with respect to a document shall describe the document
in detail sufficient to enable another party to challenge the claim of privilege.
Comment:
R-27A Privileges exclude relevant evidence. They have evolved over time and reflect
various social interests. Organized professions (e.g., doctors, psychiatrists, accountants, lawyers)
are interested in protecting their clients and their members' professional activities by means of the
privilege not to disclose information acquired during such an activity. Statutory law and case law
have extended the list of professional privileges. However, the recognition of such privileges has
significant cost in the quality of proof and discovery of truth.
R-27B Rule 27.1.1 gives effect to a "legal profession" privilege. The concept of this
privilege is different in the common-law and civil-law systems but this Rule includes both concepts.
The common law recognizes an "attorney-client privilege," which enables the client to object to
inquiry into confidential communications between client and lawyer that were made in connection
with the provision of legal advice or assistance. Under United States law and some other commonlaw
systems a similar protection, called the "lawyer work product" immunity, additionally shields
materials developed by a lawyer to assist a client in litigation. The civil law confers the same
protections but under the concept of a professional right or privilege of the lawyer. See also Rule
22.9.
R-27C Rule 27.1.2 reflects the universal principle that confidentiality should be observed
with regard to communications in the course of settlement negotiations in litigation. Some systems
presume that only correspondence between lawyers is confidential, whereas many other systems
extend this privilege to party communications concerning settlement. The precise scope of
confidentiality of communications concerning settlement is determined by the law governing the
communications, but the general principle stated above should be considered in determining the
matter. See also Rule 24.
R-27D Rule 27.1.3 may be used to accord protection to other privileges under the law of
the forum, such as those involving financial advisers or other professionals. In general, the civillaw
systems accord privacy to the communications of many professionals. Many legal systems have
additional privileges, usually in qualified form. Thus, the European Court of Human Rights has
recognized various professional privileges under various circumstances, e.g., for bankers,
accountants, and journalists, and many countries also have a privilege for communications
between family members. Many state jurisdictions in the United States have an accountant
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 61
privilege and some have a "self-evaluation privilege" on the part of hospitals and some other jural
entities. However, in some civil-law systems the court may examine otherwise protected
confidences if they appear highly relevant to the matter in dispute. Such an approach is known in
the common law as a conditional privilege. However, if the court permits receipt of such evidence,
it should protect the confidential information from exposure except as required for consideration in
the dispute itself.
R-27E The court may make a determination whether to receive conditionally privileged
information through an in camera hearing, in which the participants are limited to the court itself,
the parties, and the parties' lawyers. See Rule 24.7. The same device may be used concerning
nonprivileged information when the court finds that publication could impair some important
private or public interests, such as a trade secret. The taking of evidence in a closed hearing should
be exceptional, having regard for the fundamental principle of the public nature of hearings.
R-27F A person who is entitled to a privilege may forfeit it, in which event evidence in the
privileged communication is received without limitation. The privilege may be lost by means of an
explicit statement or tacitly, for example by failing to assert a timely claim of privilege. However, in
the interest of justice, the court may decline to enforce a forfeiture.
R-27G Rule 27.3 prescribes a procedure for claims of privilege with respect to documents.
The claimant is required to identify the document in sufficient detail to permit an opposing party to
make an intelligent disputation of the claim of privilege, for example that the document had been
distributed to third persons.
R-27H Regarding the legal consequences of claiming privileges, see Principles 18.2 and
18.3 and Rule 22.9.
28. Reception and Effect of Evidence
28.1 A party has the burden to prove all the material facts that are the basis of that
party's case.
28.2 The court should make free evaluation of the evidence and attach no unjustified
significance to evidence according to its type or source. Facts are considered proven
when the court is reasonably convinced of their truth.
28.3 The court, on its own motion or motion of a party, may:
28.3.1 Order reception of any relevant evidence;
28.3.2 Exclude evidence that is irrelevant or redundant or that involves unfair
prejudice, cost, burden, confusion, or delay; or
28.3.3 Impose sanctions on a person for unjustified failure to attend to give
evidence, to answer proper questions, or to produce a document or other item of
evidence, or who otherwise obstructs the proceeding.
Comment:
R-28A Rule 28 specifies various aspects of the authority of the court with reference to
evidence. The court may exercise such powers on its own motion or on motion of a party.
Rule 28.3.2 gives the court the power to exclude evidence on various grounds, including
irrelevancy of the evidence or its redundant or cumulative character. Redundant or cumulative
evidence is theoretically relevant if considered by itself but not when considered in the context of
the other evidence adduced. The court may in the course of a final hearing admit evidence that
was preliminarily excluded because it had appeared irrelevant, redundant, or cumulative. The
standard of exclusion by reason of "unfair prejudice, cost, burden, confusion, or delay" should be
applied very cautiously. The court should use this power primarily when a party adduces evidence
with the apparent aim of delaying or confusing the proceedings.
UNIDROIT 2005- Study LXXVI ­ Doc. 1362
R-28B Rule 28.3.3 provides for various sanctions, including astreintes. The court may
draw an adverse inference from the behavior of a party such as failing to give testimony, present a
witness, or produce a document or other item of evidence that the party could present. Drawing an
adverse inference means that the court will interpret the party's conduct as circumstantial evidence
contrary to the party.
Drawing an adverse inference is a sanction appropriate only against a party. Sanctions
applied to nonparties include contempt of court and imposing a fine, subject to the limitation in
Rule 35.2.4. The conduct that may be sanctioned includes failing to attend as a witness or answer
proper questions and failing without justification to produce documents or other items of evidence.
See Principles 17, 18.2, and 18.3.
G. Final Hearing
29. Concentrated Final Hearing
29.1 So far as practicable, the final hearing should be concentrated.
29.2 The final hearing must be before the judge or judges who are to render the
judgment.
29.3 Documentary or other tangible evidence may be presented only if it has
previously been disclosed to all other parties. Testimonial evidence may be presented
only if notice has been given to all other parties of the identity of the witness and the
substance of the contemplated testimony.
29.4 A person giving testimony may be questioned first by the court or the party
seeking the testimony. All parties then must have opportunity to ask supplemental
questions. The court and the parties may challenge a witness's credibility or the
authenticity or accuracy of documentary evidence.
29.5 The court on its own motion or on motion of a party may exclude irrelevant or
redundant evidence and prevent embarrassment or harassment of a witness.
Comment:
R-29A Rule 29.1 establishes a general principle concerning the structure of the final
hearing. It is consistent with the common-law "trial" model and the modern model of a prepared
final hearing in civil-law systems, according to which the taking of evidence not previously received
should be made in a single hearing. When one day of hearing is insufficient the final hearing should
continue in consecutive days. The concentrated hearing is the better method for the presentation
of evidence, although several systems still use the older method of separated hearings. Exception
to the rule of the concentrated hearing can be made in the courťs discretion when there is good
reason, for example when a party needs an extension of time to obtain evidence. In such a case
the delay should be as limited as possible. Dilatory behavior of the parties should not be permitted.
R-29B In some civil-law systems, a party's statement is regarded as having lesser
standing than testimony of a nonparty witness; and in some systems a party cannot call itself as a
witness or can do so only under specified conditions. The common law treats parties as fully
competent witnesses and permits parties to call themselves to the stand and obliges them to
testify at the instance of an opposing party, subject to privileges such as that against selfincrimination.
These Rules adopt the common-law approach, so that a party has both an obligation
to give evidence if called by the opposing party and a right to do so on its own motion. See Rule
25.3. Failure without explanation or justification to present such evidence may justify the courťs
drawing an adverse inference concerning the facts, or, in common-law countries, if a party
disobeys an order to testify, holding the party in contempt. However, a party's failure to comply
may have some reasonable explanation or justification. Sanctions may be gradually increased until
the party decides to comply.
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 63
R-29C Rule 29.4 governs the examination of witnesses. The traditional distinction between
common-law systems, which are based upon direct and cross-examination, and civil-law systems,
which are based upon examination by the court, is well known and widely discussed in the
comparative legal literature. Equally well known are also the limits and defects of both methods.
The chief deficiency in the common-law procedure is excessive partisanship in cross-examination,
with the danger of abuses and of distorting the truth. In the civil law the chief deficiency is
passivity and lack of interest of the court while conducting an examination, with the danger of not
reaching relevant information. Both procedures require efficient technique, on the part of the judge
in civil-law systems and the lawyers in common-law systems. The problem is to devise a method
effective for a presentation of oral evidence aimed at the search for truth. The rules provided here
seek such a balanced method.
R-29D For a witness called by a party, the common-law system of direct and supplemental
examination by the parties is the most suitable for a thorough examination. The witness is first
questioned by the lawyer of the party who called the witness, and then questioned by the lawyers
for the other parties. Further questioning is permitted by the court when useful. To prevent abuses
by the lawyers, the court should exclude, on the other party's objection or on its own motion,
questions that are irrelevant or improper or which subject the witness to embarrassment or
harassment.
R-29E The civil-law method, in which the court examines the witness, has advantages in
terms of the neutral search for the truth and of eliciting facts that the court considers especially
relevant. The court therefore is afforded an active role in the examination of witnesses, an
authority that is also recognized in common-law systems. The court may also clarify testimony
during the questioning by the parties or examine the witness after the parties' examinations.
R-29F The opinion of a witness may be admitted when it will clarify the witness's
testimony. In the recollection of facts, knowledge and memory are often inextricably mixed with
judgments, evaluations, and opinions, often elaborated unconsciously. Sometimes a "fact" implies
an opinion of the witness, as for instance when the witness interprets the reasons for another
person's behavior. Therefore, a rule excluding the opinions of witnesses is properly understood as
prohibiting comments that do not aid in the reconstruction of the facts at issue.
R-29G The credibility of any witness, including experts and parties, can be disputed on any
relevant basis, including questioning, prior inconsistent statements, or any other circumstance that
may affect the credibility of the witness, such as interest, personal connections, employment or
other relationships, incapacity to perceive and recollect facts, and inherent implausibility of the
testimony. Prior inconsistent statements may have been made in earlier stages of the same
proceedings (for instance, during deposition) or made out of the judicial context, for instance
before the beginning of the litigation.
However, the right to challenge the credibility of an adverse witness may be abused by
harassment of the witness or distortion of the testimony. The court should prevent such conduct.
R-29H The authenticity or the reliability of other items of evidence, either documents or
real and demonstrative evidence, may also be disputed by any party. Special subproceedings to
determine the authenticity of public or private documents exist in many national systems. They
should be used when the authenticity of a document is doubtful or contested. Scientific and
technical evidence may also be scrutinized if its reliability is doubtful or disputed.
30. Record of the Evidence
30.1 A summary record of the hearings must be kept under the courťs direction.
30.2 Upon order of the court or motion of a party, a verbatim transcript of the hearings
or an audio or video recording must be kept. A party demanding such a record must pay
the expense thereof.
UNIDROIT 2005- Study LXXVI ­ Doc. 1364
Comment:
R-30A With regard to the record of the evidence, two principal methods can be used. One
is typical of some common-law jurisdictions and consists of the verbatim transcript of everything
said in the presentation of evidence. The other is typical of civil-law systems and consists of a
summary of the hearing that is written by the courťs clerk under the direction of the court,
including the matters that in the courťs opinion will be relevant for the final decision. In some civillaw
systems there is no procedure for making a verbatim transcript. A verbatim transcript is
complete and provides a good basis both for the final decision and for the appeal, but in many
cases it is exceedingly burdensome and expensive.
R-30B A summary record should include all relevant statements made by the parties and
the witnesses, and other events that might be useful for the final evaluation concerning the
credibility of witnesses and the weight of proofs. The parties may ask for and the court grant
inclusion of specific statements.
R-30C If a party requests a verbatim transcript or audio or video recording of the final
hearing, the court should so order. The party or parties requesting the transcript should pay the
expense. The court should be provided a copy of the transcript or recording at the expense of the
party or parties who requested it, and the other parties are entitled to have a copy upon paying
their share of the expense. The court may, on its own initiative, order a verbatim transcript of the
hearing. A verbatim transcript does not take the place of the official record that must be kept
according to Rule 30.1 unless so ordered by the court.
31. Final Discussion and Judgment
31.1 After the presentation of all evidence, each party is entitled to present a closing
statement. The court may allow the parties' lawyers to engage with each other and with
the court in an oral discussion concerning the main issues of the case.
31.2 The judgment must be rendered within [60 days] thereafter and be accompanied
by a written reasoned explanation of its legal, evidentiary, and factual basis.
31.3 Upon rendering judgment, the court must promptly give written notice thereof to
the parties.
Comment:
R-31A The final hearing ends when all the evidence has been presented. The parties have
a right to present oral or written closing statements, according to the direction of the court.
R-31B Rule 31.2 requires the court to issue a written opinion justifying its decision. The
publication is made according to the local practice, but a written notice must be sent to the parties.
See Rule 31.3. All parties should be sent a copy of the entire judgment. The date of the judgment,
determined according to forum law, is the basis for determining the time for appeal and for
enforcement.
The justificatory opinion must include the findings of fact supported by reference to the
relevant proofs, the courťs evaluations of evidence, and the principal legal propositions supporting
the decision.
R-31C If the court is composed of more than one judge, in some countries a member of
the tribunal may give a dissenting or concurring opinion, orally or in writing. Such opinions, if in
writing, are published together with the courťs opinion.
32. Costs
32.1 Each party must advance its own costs and expenses, including court fees,
attorneys' fees, fees of a translator appointed by the party, and incidental expenses.
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 65
32.2 The interim costs of the fees and expenses of an assessor, expert, other judicial
officer, or other person appointed by the court must be paid provisionally by the party
with the burden of proof or as otherwise ordered by the court.
32.3 The winning party ordinarily should be awarded all or a substantial portion of its
reasonable costs. It must present a request promptly after the judgment.
32.4 The losing party must pay promptly the amount requested except for such items
as it disputes. Disputed items shall be determined by the court or by such other
procedure as the parties may agree upon.
32.5 The court may withhold or limit costs to the winning party when there is clear
justification for doing so. The court may limit the award to a proportion that reflects
expenditures for matters in genuine dispute and award costs against a winning party
that has raised unnecessary issues or been otherwise unreasonably disputatious. The
court in making cost decisions may take account of any party's procedural misconduct in
the proceeding.
32.6 The court may delegate the determination and award of costs to a specialized
costs official.
32.7 Payment of costs may be stayed if appellate review is pursued.
32.8 This Rule also applies to costs and expenses incurred on appellate review.
32.9 A person may be required to provide security for costs, or for liability for
provisional measures, when necessary in the interest of justice to guarantee full
compensation of possible future damages. Security should not be required solely
because a party is not domiciled in the forum state.
Comment:
R-32A The rule governing allocation of costs and expenses of litigation in ordinary civil
proceedings, recognized almost universally except in the United States, China, and Japan, is that
the prevailing party is entitled to reimbursement of attorney's fees from the losing party. That
principle is adopted here. The prevailing party must submit a statement seeking reimbursement.
Under the "American" rule in the United States, each party bears its own costs and
expenses, including its attorneys' fees, except as statutes, rules, or contracts specifically provide
otherwise or in case of exceptional abuse of process. The American rule creates incentives for a
party to bring litigation or to persist in defense of litigation that would not be maintained under the
generally recognized rule.
However, the rules concerning costs in common-law systems and some civil-law systems
confer authority on the court to modify the normal allocation of costs to the losing party. Rule 32.5
adopts such a position.
R-32B The parties are permitted, in accordance with applicable law, to contract with their
lawyers concerning their fees. Costs awarded should be reasonable, not necessarily those incurred
by the party or the party's lawyer. If it was reasonably appropriate that a party retain more than
one firm of lawyers, those fees and expenses may be recovered. The party seeking recovery of
costs has the burden of proving their amount and their reasonableness. The award belongs to the
party, not the lawyer, subject to any contractual arrangement between them.
R-32C Rule 32.9 recognizes that, if it is not inconsistent with constitutional provisions, the
court may require posting of security for costs. In several legal systems a requirement of security
for costs is considered a violation of the due-process guarantee in connection with the principle of
equal treatment under the law. Security for costs could entail discrimination against parties unable
to give such a security, and, correspondingly, constitute preferential treatment for parties who can.
UNIDROIT 2005- Study LXXVI ­ Doc. 1366
On the other hand, in some countries it is considered as a normal means to ensure the recovery of
costs.
In the context of transnational commercial litigation such concerns may be less important
than in the usual domestic litigation. Moreover, there is a higher risk of being unable to recover
costs from a losing party who is not a resident of the forum state. These Rules leave the imposition
of security for costs to the discretion of the court. The court should not impose excessive or
unreasonable security.
H. Appellate and Subsequent Proceedings
33. Appellate Review
33.1 Except as stated in the following subsection, an appeal may be taken only from a
final judgment of the court of first instance. The judgment is enforceable pending appeal,
subject to Rules 35.3 and 35.4.
33.2 An order of a court of first instance granting or denying an order sought under
Rule 17 is subject to immediate review. The order remains in effect during the pendency
of the review, unless the court of first instance or the reviewing court orders otherwise.
33.3 Orders of the court other than a final judgment and an order appealable under the
previous subsection are subject to immediate review only upon permission of the
appellate court. Such permission may be granted when an immediate review may resolve
an issue of general legal importance or of special importance in the immediate
proceeding.
33.4 Appellate review is limited to claims (including counterclaims) and defenses
addressed in the first-instance proceeding, but the appellate court may consider new
facts and evidence in the interest of justice.
33.5 Further appellate review of the decision of a second-instance court may be
permitted in accordance with forum law.
Comment:
R-33A A right of appeal is a generally recognized procedural norm. It would be impractical
to provide in these Rules for the structure of the appellate courts and the procedure to be followed
in giving effect to this right. It is therefore provided that appellate review should be through the
procedures available in the court system of the forum. "Appeal" includes not only appeal formally
designated as such but also other procedures that afford the substantial equivalent, for example,
review by extraordinary order (writ) from the appellate court or certification for appeal by the court
of first instance.
R-33B Rule 33.1 provides for a right of appeal from a final judgment. The only exceptions
are those stated in Rules 33.2 and 33.3. Thus, interlocutory appellate review is not permitted from
other orders of the first-instance court, even though such review might be available under the law
of the forum. In some countries, especially those of common-law tradition, some of the decisions in
a proceeding are made by adjuncts within the first-instance tribunal, such as magistrate judges.
These decisions are usually appealable to or made under the supervision of the first-instance judge
who delegated the issue. This subsection does not apply to this practice.
R-33C The rule of finality is recognized in most legal systems. However, procedure in
many systems permits formal correction of a judgment under specified conditions. All systems
impose time limits on use of such procedures and generally require that they be invoked before the
time to appeal has expired.
R-33D Rule 33.2 permits interlocutory appellate review of orders granting or denying an
injunction. See Rule 17.7. The injunction remains in effect during the pendency of the review,
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 67
unless the reviewing court orders otherwise. That court or the court of first instance may determine
that an injunction should expire or be terminated if circumstances warrant.
R-33E Rule 33.3 permits interlocutory appeal of orders other than the final judgment at
the authorization of the appellate court. The judges of the appellate court must determine that the
order is of the importance defined in Rule 33.3. Permission for the interlocutory appeal may be
sought by motion addressed to the appellate court. The appellate court may take account of the
first-instance judge's views about the value of immediate appeal if such views are offered.
R-33F The restriction upon presenting additional facts and evidence to the secondinstance
court reflects the practice in common-law and in some civil-law systems. However, that
practice is subject to the exception that an appellate court may consider additional evidence under
extraordinary circumstances, such as the uncovering of determinative evidence after the appeal
was taken and the record had been completed in the first-instance court.
R-33G Most modern court systems are organized in a hierarchy of at least three levels. In
many systems, after appellate review in a court of second instance has been obtained, further
appellate review is available only on a discretionary basis. The discretion may be exercised by the
higher appellate court, for example, on the basis of a petition for hearing. In some systems such
discretion may be exercised by the second-instance court by certifying the case or an issue or
issues within a case to the higher appellate court for consideration.
Rule 33.5 adopts by reference the procedure in the courts of the forum concerning the
availability and procedure for further appellate review. It is impractical to specify special provisions
in these Rules for this purpose.
34. Rescission of Judgment
34.1 A final judgment may be rescinded only through a new proceeding and only upon
a showing that the applicant acted with due diligence and that:
34.1.1 The judgment was procured without notice to or jurisdiction over the party
seeking relief;
34.1.2 The judgment was procured through fraud;
34.1.3 There is evidence available that would lead to a different outcome and that
was not previously available or that could not have been known through exercise of due
diligence, or by reason of fraud in disclosure, exchange, or presentation of evidence; or
34.1.4 The judgment constitutes a manifest miscarriage of justice.
34.2 An application for rescission of judgment must be made within [90] days from the
date of discovery of the circumstances justifying rescission.
Comment:
R-34A As a general rule a final judgment should not be reexamined except in appellate
review according to the provisions included in Rule 33. Only in exceptional circumstances may it be
pursued through a new proceeding. A rescission proceeding ordinarily should be brought in the
court in which the judgment was rendered. The relief may be cancellation of the original judgment
or substitution of a different judgment.
R-34B Reexamination of a judgment may be requested in the court that rendered the
judgment. In seeking such a reexamination a party must act with due diligence. The grounds for
such an application are: (1) the court had no jurisdiction over the party asking for reexamination;
(2) the judgment was procured by fraud on the court; (3) there is evidence not previously available
through the exercise of due diligence that would lead to a different outcome; or (4) there has been
a manifest miscarriage of justice.
UNIDROIT 2005- Study LXXVI ­ Doc. 1368
R-34C The challenge under Rule 34.1.1 should be allowed only in case of default
judgments. If the party contested the case on the merits without raising this question, the defense
is waived and the party should not be allowed to attack the judgment on those grounds.
R-34D The court should consider such an application cautiously when Rule 34.1.3 is
invoked. The applicant should show that there was no opportunity to present the item of evidence
at the final hearing and that the evidence is decisive, i.e., that the final decision should be
changed.
R-34E In interpreting Rule 34.1.4, it should be recognized that the mere violation of a
procedural or substantive legal rule, or errors in assessing the weight of the evidence, are not
proper grounds for reexamining a final judgment, but are proper grounds for appeal. See Rule 33.
A manifest miscarriage of justice is an extreme situation in which the minimum standards and
prerequisites for fair process and a proper judgment have been violated.
35. Enforcement of Judgment
35.1 A final judgment, as well as a judgment for a provisional remedy, is immediately
enforceable, unless it has been stayed as provided in Rule 35.3.
35.2 If a person against whom a judgment has been entered does not comply within
the time specified, or, if no time is specified, within 30 days after the judgment becomes
final, enforcement measures may be imposed on the obligor. These measures may
include compulsory revelation of assets wherever they are located and a monetary
penalty on the obligor, payable to the judgment obligee, to the court or to whom the
court may direct.
35.2.1 Application for such a sanction must be made by a person entitled to
enforce the judgment.
35.2.2 An award for noncompliance may include the cost and expense incurred by
the party seeking enforcement of the judgment, including attorneys fees, and may also
include a penalty for defiance of the court, generally not to exceed twice the amount of
the judgment.
35.2.3 If the person against whom the judgment is rendered persists in refusal to
comply, the court may impose additional penalties.
35.2.4 A penalty may not be imposed on a person who demonstrates to the court
financial or other inability to comply with the judgment.
35.2.5 The court may order nonparties to reveal information relating to the assets
of the judgment debtor.
35.3 The court of first instance or the appellate court, on motion of the party against
whom the judgment was rendered, may grant a stay of enforcement of the judgment
pending appeal when necessary in the interest of justice.
35.4 The court may require a suitable bond or other security from the appellant as a
condition of granting a stay or from the respondents as a condition of denying a stay.
Comment:
R-35A Rule 35.1 provides that a final judgment is immediately enforceable. If the
judgment will be enforced in the country of the court in which the judgment was entered, the
enforcement will be based on the forum's law governing the enforcement of final judgments.
Otherwise, the international rules such as the "Brussels I Regulation" and the Brussels and Lugano
Conventions on Jurisdiction and Enforcement of Judgments will apply. When a monetary judgment
is to be enforced, attachment of property owned by the judgment obligor, or obligations owed to
the obligor, may be ordered. Monetary penalties may be imposed by the court for delay in
compliance, with discretion concerning the amount of the penalty.
UNIDROIT 2005 ­ Study LXXVI ­ Doc. 13 69
R-35B Rule 35.2 authorizes the court, upon request of the judgment holder, to impose
monetary penalties upon the judgment obligor that take effect if the obligor does not pay the
obligation within the time specified, or within 30 days after the judgment has become final if no
time is specified. The monetary penalties are to be imposed according to the following standards:
1) Application for the enforcement costs and penalties may be made by any party
entitled to enforce the judgment.
2) Enforcement costs include the fees required for the enforcement, including the
attorneys fees, and an additional penalty in case of defiance of the court. An additional penalty
may not exceed twice the amount of the judgment. The court may require the penalty to be paid to
the person obtaining the judgment or to the court or otherwise.
3) Additional penalties may be added against an obligor who persists in refusal to pay,
considering the amount of the judgment and the economic situation of the parties. Here, too, the
court may require the penalty to be paid to the person obtaining the judgment or to the court, or
otherwise.
4) No penalty will be imposed on a person who satisfactorily demonstrates to the court
an inability to comply with the judgment.
5) "Nonparties" includes any institution that holds an account of the debtor.
R-35C Rule 35.3 permits either the first-instance court or the appellate court to grant a
stay of enforcement when necessary in the interest of justice. Rule 35.4 authorizes the court to
require a bond or other security as a condition either to permit or to stay the immediate
enforcement.
36. Recognition and Judicial Assistance
36.1 A final judgment in a proceeding conducted in another forum in substantial
compliance with these Rules must be recognized and enforced unless substantive public
policy requires otherwise. A provisional measure must be recognized in the same terms.
36.2 Courts of states that have adopted these Rules must provide reasonable judicial
assistance in aid of proceedings conducted under these Rules in another state, including
provisional remedies, assistance in the identification or production of evidence, and
enforcement of a judgment.
Comment:
R-36A It is a general principle of private international law that judgments of one state will
be recognized and enforced in the courts of other states. The extent of such assistance and the
procedures by which it may be provided are governed in many respects by the "Brussels I
Regulation" and Brussels and Lugano Conventions.
R-36B Rule 36 provides that, as a matter of the domestic law of the forum, assistance to
the courts of another state is to be provided to such extent as may be appropriate, including
provisional measures. The general governing standard is the measure of assistance that one court
within the state would provide to another court in the same state.
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session Governing Council (2005): Main page ]