RICERCA ITALIANA     

Research program

European Criteria for the drafting of Codes of Civil Procedure (towards a unified European Code of Civil Procedure)

University Co-ordinator

Università degli Studi ROMA TRE - DIRITTO DELL’ECONOMIA ED ANALISI ECONOMICA DELLE ISTITUZIONI - ()

Research Unit Leader

Giuseppe Ruffini

Description

The subject of the program of the Research Unit of the University of Roma Tre, as part of the bigger project “European canons for the codification of trials” is constituted by the arbitration and other instruments of controversies resolution alternative to jurisdiction.
More specifically, this Research Unit proposes an analysis of the modalities with which the different European States have disciplined arbitration and other non-jurisdictional forms of resolution or prevention of controversies, without neglecting legal know-how and experience.
With specific reference to – heterogeneous – instruments of resolution and composition of controversies other than the arbitration, which offer an alternative to statuary jurisdiction, this Research Unit proposes first of all to identify them, and then to proceed to the analysis of “if” and “how” they have been legally disciplined, in order to identify different and common elements.
The aim of the Unit is to identify, on the one hand, common elements in national legislative discipline and, on the other hand, in the context of those principles and norms which prove different, verify whether, and in what measure, there is a degree of compatibility between them which could lead to the forming of a concrete point of contact between statuary norms.
To realise this objective, the research Unit – in full collaboration with the other Units – proposes carrying out its research along the following lines:
• developing the study of the arbitration phenomenon as a result of legislative measures in force and jurisdictional application in some Member States;
• identifying the other Alternative Dispute Resolutions and developing the study of their discipline and practical application;
• articulating, after an in-depth comparative study, the elements found to be common (to some degree) to the various countries, thus working towards the eventual implementing of a discipline compatible with the various legal systems of the Member States.
In an initial phase, therefore, the aims of this Research Unit will focus on the analysis of the different national disciplines regarding arbitration and other instruments of resolution or composition of the controversies alternative to jurisdiction.
To this end, particular attention must to paid to:
• the definition of the limits of the areas of arbitration – in the various forms foreseen by individual national legislation – of conciliation and other jurisdictional equivalents;
• the relevance that every legal system attributes to the wish of the parties in choosing such methods;
• the in-depth analysis, in the context of the study of the arbitration phenomenon, of the solutions reached by the single legal systems about the most important aspects, such as, in the first place, the identification of the possible subject and the form of the arbitration agreement, the capacity to stipulate it, of its effects and profiles relative to its invalidity; in the second place, the regulating of the arbitral proceeding with particular attention to the figure of arbitrators and their relationship to the State judges, be it with reference to the coordination between arbitral judgement and judgement in front of the judges of the State (nature of exceptio compromissi, pendency, possible help from legal authorities), be it in the conceptual context of the qualification of the relationship between arbitrators and judges of the State in terms of jurisdiction, or competence in force of substantial relevance to trials; and finally the content, the nature and the effects of the dictum of the arbitrators (also in the case of differing treatment of national arbitral awards and those considered foreign), as well as remedies foreseen against it;
• the modalities through which the single orders have activated international conventions on arbitration relevant to the Member States of the Community;
• the in-depth analysis of the genesis and the scope of the arbitration regulation of permanent institutions of Arbitration operating in single legal systems;
• the in-depth study of normative and practical experience regarding the other ADR figures in national legal systems;
• the evaluation of potential contact points between various national experiences, legislative and jurisdictional, in view of harmonising them.

To this end, the Research Unit will focus first of all on the recognition and eventual translation and cataloguing of the material (normative, doctrinal, jurisdictional, internal and community sources) considered useful towards fulfilling the objectives of the Research Unit.
More specifically, the initial duty of the Unit will be to reconstruct, in the most in-depth and complete way possible, the system of instruments of resolution and composition of the controversies alternative to statuary jurisdiction in force and operating in Member States of the most important legal tradition.
The next duty of the Research Unit will be to compare the result of the different national legal experiences, highlighting points of contact and contrast, which take account also of the needs and perspectives established by the doctrine and the law in the individual countries, in order to identify the areas in which each country most needs to change / harmonise within different legal systems.
The first phase of the Research Unit’s project will conclude with the identification of common elements in the legal systems of the Member States, together with the modulation of the level of diversity or compatibility of the measures and the main divergents.
In the second phase, the Research Unit will collaborate with the other Units to identify and elaborate those “European canons” which can serve as a basis towards a true harmonisation of European trial discipline, and not the providing of a discipline articulated to be imposed on Member States and as such not easilly compatible with systems of common law.
The final objective of the research is the recognition of those principles which, common to all systems, will be able to be welcomed by all Member States without fear of refusal, as well as the identification of criteria that allow a lessening of major points of contrast, to pave the way for the realisation of a new legislative base for an eventual Community Directive.
Similar activities carried out in the field of contractual matters have met the almost unanimous consensus of the scholar community, along with considerable success in practical terms.
In this sense, an encouraging example is the experience translated into the elaboration and publication of the UNIDROIT principles in the field of international commercial contracts, and the principles of European contract law (LANDO principles).
To this end, to meet the objectives of its program, this Research Unit will collaborate with the other Units in pinpointing European canons for the codification of trials, focusing on:
• gathering and organising relevant normative texts on arbitration and ADR;
• researching national and Community legislation on instruments of resolution and composition of alternative controversies to statuary jurisdiction;
gathering and translation into Italian of trial law of the various Member States on instruments of resolution and composition of alternative controversies to statuary jurisdiction.