As Judge Vanderbilt pointed out earlier in this century, “judicial reform is no sport for the short-winded[.]” The difficulties involved in such reform are intensified when combined with an attempt at global harmonization. Organizations such as UNIDROIT and UNCITRAL have attempted harmonization for decades with varying degrees of success. But even they have traditionally refrained from harmonization in the field of procedure where, as the wisdom goes, the law is strongly connected to the cultural and historical heritage of a particular jurisdiction. Thus, in setting out to draft uniform rules of civil procedure for transnational cases that seek both to combine “the best elements in various legal traditions” and to be “culturally neutral,” Professors Hazard and Taruffo have not only set high standards for themselves but have also embarked upon an enterprise that seems to face virtually insurmountable barriers.
At the same time, Professors Hazard and Taruffo appear to be in accord with a current trend. In their search for improvements, procedural reformers are increasingly studying the approaches of foreign legal systems. The jurisprudence of international tribunals, particularly that of the European Court of Justice, has shown an increasing trend toward harmonizing specific aspects of civil procedure. Indeed, a private group of experts recently submitted to the European Commission a Draft Directive that seeks to harmonize many areas of European civil procedure, both domestic and transnational.
What, then, are the chances that the Transnational Rules project will beat the odds, both real and perceived, and turn this trend toward procedural harmonization into a valuable and lasting development in transnational litigation? The answer to that question depends heavily upon one's predilections. Thus, we decided to conduct a small survey among Swiss and German proceduralists, both academics and practitioners, to collect their views on the Transnational Rules. The beginning of this survey dates back to early 1996, when Professors Hazard and Taruffo mailed out their first draft of the Transnational Rules and requested the comments of proceduralists in various countries. As one such proceduralist acting as reporter for Switzerland, Professor Walter solicited the written comments of a number of academics and practitioners in his country. In the meantime, Professors Hazard and Taruffo have revised their first draft several times, in some respects, substantially so. We wondered how this latest draft would fare and wanted to expand the base for our inquiry. Thus, we repeated the process in neighboring Germany.
The Swiss part of the survey on the first draft yielded six responses: one from a professor of transnational civil procedure, one from a senior official at the Ministry of Justice, one from a justice of the Federal Court, and three from attorneys frequently involved in transnational proceedings. Our effort in Germany yielded nine responses: four from professors of transnational civil procedure, two of whom are also part-time judges at the Oberlandesgericht (Court of Appeals) of their areas; one from a judge at the Oberlandesgericht; and four from practicing attorneys involved in transnational practice.
Many of these individuals, including the practitioners, are leading experts on transnational civil procedure in their respective countries.
Although this survey is far from scientific, it provides a better picture than would our own views of the difficulties Professors Hazard and Taruffo are likely to face in these two civil-law jurisdictions and perhaps in other continental European countries as well. The survey also provides the basis for a number of suggestions to improve the project's chances of success.
- civil procedure