Beyond winning: Case management and the role of lawyers in the principles

Abstract

This paper will focus on the role of lawyers in the Principles of Transnational Civil Procedure that have been published by UNIDROIT/ALI. These principles are meant to be a stimulus for harmonisation and improvement of civil procedure. Litigation however is not only, perhaps not even primarily about rules. It is also about practice. Therefore, whoever wants to improve a system of procedural rules, or aims at designing principles that can set an example for reforms in civil litigation, should keep in mind the practitioners: the lawyers and the judges. Several problems are not resolved in the Principles, and possibly can't be resolved within principles of this kind. The problem I will address here is not an exclusive problem of the Principles. It is common to most modern systems of civil procedure, which prescribe judicial case management, because these systems also oblige the parties to cooperate in order to reach the desired efficiency in litigating. This inevitably raises the question: how does one persuade parties ┬┐nd their lawyers to cooperate in civil litigation? This question I will address in the second and main part of this paper. However, the paper opens with an introduction to those Principles that are relevant for the role of the lawyers in civil procedure, by means of a comparison of these principles with Dutch rules and norms.

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