Edited by Fabrizio Cafaggi and Horatia Muir Watt
Chapter 3: Harmonizing Civil Litigation in Europe?
Michele Taruffo 1. INTRODUCTION One of the most important issues that is emerging in the context of European harmonization is whether it is possible, and then whether it is useful, to try to figure out and enact a common system of procedural regulations. The reason why this issue is emerging is rather obvious: as long as things are proceeding in the sense of building up a common core of substantive private rules, it is almost intuitive to think of a possible common core of procedural rules for civil litigation. It may appear, actually, that using the same kind of procedural devices may be a relevant factor for the harmonization of a uniform European private law at the level of the enforcement. On closer scrutiny, however, things are much more complex that this, and the problem of a common procedural core deserves deeper and more accurate consideration. First of all, and at a very general level, one might think that although procedure is essential for the enforcement of substantive rules, this does not imply that ‘the same procedure’ is required in order to have a consistent application of such rules in different national jurisdictions. For instance, the same rules concerning a specific contract that is used in different national contexts may or may not be interpreted and applied in the same way independently of the kind of procedural rules that are applied by different national courts. In this sense, harmonizing the substantive rules, and even harmonizing their interpretation, is a specific...
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