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The general topic of this conference as such – the future harmonisation of civil procedure in the European Union – has a rather neutral underpinning. However, the organisers have endowed it with a somewhat ambiguous subtitle: “How far can we go ?“ Depending on the general attitude one has towards harmonisation, it leaves scope for positive and negative connotations alike. Some commentators might fear the impact further harmonisation will have on the national procedural systems and their traditions. Others will hail the advent of new initiatives as a more than welcome thrust of modernisation for old and somewhat rusty civil procedural laws. In that sense, the following chapter does not take a stand. However, it presents something which, in this author‘s view, sets out a possible way forward. The model rules on access to information and evidence described herein off er no less than a full set of harmonised rules, and yet they do not impose themselves like an act of secondary EU legislation would do: they can be seen as a piece of comparative academic scholarship which tries to bring together different perspectives in a coherent and intelligible manner without neglecting the cultural settings in which procedural systems are embedded. In theory, the model rules are ready to be used in any given civil proceedings without major adaptation. At the same time, they may also serve as a source of inspiration for national and supranational legislators alike.
The background is by now well-known: since 2013, the European Law Institute (ELI) and the International Institute for the Unification of Private Law (UNIDROIT) jointly host a research project entitled “From Transnational Principles to European Rules of Civil Procedure.“ It builds on the Principles of Transnational Civil Procedure adopted in 2004 by the American Law Institute (ALI) and UNIDROIT and aims at a regional development of those Principles, which were designed to reduce uncertainty for parties litigating in unfamiliar surroundings and promote fairness in judicial proceedings through the development of a model universal civil procedural code. The first three Working Groups (Service and Due Notice of Proceedings; Provisional and Protective Measures; and Access to Information and Evidence) were constituted in 2014. Close-to-final draft s have already been discussed in the official bodies of both the ELI and UNIDROIT.
The relationship between fundamental rights and private law has enjoyed a prominent place in the legal debates of both private and public lawyers for decades. At first sight, so it seems, two opposing, perhaps even contradictory, perspectives exist. On the one hand, constitutional lawyers look at the substantial outreach of fundamental rights. They see private law as a body of law inferior in the hierarchy of norms. In fact, private rights and obligations may even be derived from constitutional law. On the other hand, many private lawyers have expressed concerns that the intrusion of public law principles will disturb the coherence of the system of private law and ultimately pose a threat to libertarian ideals of private law, notably party autonomy. Partisans of such extreme positions are rare. While most discussants accept that there is some influence of constitutional law on private law, none of the views presented have settled the dispute. As the controversy continues, eminent lawyers like Lord Neuberger have advanced the plea for a ‘grand unifying theory from which a freestanding action for breach of human rights could then be identified’.
The aim of this chapter is a more modest one. It will not devise a new theory which explains the missing link between fundamental rights and private law. It acknowledges that constitutional courts of all sorts in fact decide private law cases. Rather, the chapter will provide a sketch of what could be called an inclusive approach to private law. It will only deal with the interaction between fundamental rights (as stipulated in national constitutions as well as in supranational texts, such as the Charter of Fundamental Rights of the European Union or the European Convention on Human Rights) and national private law. The Charter's influence on EU secondary law will not be dealt with, as thus far EU secondary law (EU private law) has mainly been regulated by way of EU directives that must be transposed into national law. The proposal for a Common European Sales Law could have been established as a notable exception, but as the resistance to such a horizontal instrument in some Member States was too strong, the Commission has returned to the traditional approach of harmonisation by directives.
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