International Civil Procedure

2019/2020

Учебный год

ENG

Обучение ведется на английском языке

6

Кредиты

Кто читает:

Департамент теории права и сравнительного правоведения

Статус:

Курс по выбору

Когда читается:

3-й курс, 2 модуль

Преподаватели

Костин Александр Алексеевич

Хазова Ольга Александровна

Course Syllabus

Abstract

The International Civil Procedure Law Course provides an overview of the legal principles governing interaction between the jurisdictions in the field of adjudication of civil and commercial disputes. On the basis of the said principles the course addresses the basic notions of International Civil Procedure including: 1) international jurisdiction; 2) international assistance in civil and commercial matters; 3) recognition and enforcement of foreign judgments; 4) cross-border insolvency; 5) other related matters.

Learning Objectives

• The aim of the course is to provide students with a theoretical and practical understanding of international and domestic regulatory framework in the field of adjudication of disputes involving foreign element. In particular, the course shall cover the following subjects: international jurisdiction in civil and commercial matters, including general, exclusive and contract jurisdiction; legal assistance in cross-border civil litigation; recognition and enforcement of foreign judgments; cross-border insolvency. Special consideration shall be paid to international standards of cross-border civil adjudication set out in various international instruments, including the Hague conventions and the EU Regulations. The International Civil Procedure Law Course aims to provide the students with understanding of the following issues: 1) general trends concerning development of principles of cooperation between states in the field of international adjudication; 2) foreign and domestic legislation governing the issue of adjudication of international disputes; 3) most important foreign and domestic case law regarding the said matters. Therefore, course will include elements of comparative law and national civil procedure law.

Expected Learning Outcomes

• The students should obtain the following knowledge and understanding: • the definition of International Civil Procedure and its interplay with other fields of law (private international law; public international law; international criminal law); • the basic principles of International Civil Procedure including: 1) principle of sovereignty; 2) principle of reciprocity; 3) principle of lex fori (application of its own procedural rules by the court); 4) principle of protection of human rights;
• The students should obtain the following knowledge and understanding: • the main sources of International Civil Procedure including the impact of the European Convention of Human Rights 1950 and the case law of the European Court of Human rights • the concept of international jurisdiction and the main rules for establishing jurisdiction existing in Anglo-American and European countries;
• The students should obtain the following knowledge and understanding: • the concept of international assistance in civil and commercial matters (letters of rogatory) including the nature and definition of service of process, peculiarities of obtaining evidence abroad and other court actions taken in support of foreign proceedings;
• The students should obtain the following skills and abilities: • to understand and correctly apply main definitions regarding International Civil Procedure; • to be able to conduct independent legal research and analysis of the treaties, legislation, judgments and other sources of International Civil Procedure;
• The students should obtain the following skills and abilities: • to use appropriate referencing and bibliographic methods; • to read and correctly apply case law of the major jurisdictions including Russian Federation, UK, USA, France, Switzerland and others;
• Students should gain the following competencies and abilities: • to develop methodology to conduct legal research including correct identification of the relevant legal sources and case law necessary to complete their future relevant tasks; • to be able to advise clients on the matters concerning international litigation and effect of proceedings pending before the Russian court in foreign countries;

Course Contents

• Introduction to International Civil Procedure.
  Necessity for coordination between the legal orders in the field of adjudication of civil and commercial disputes; The notion of “international civil procedure” and its scope (interplay between the terms “international” and “civil” in the said definition). Interplay between “international civil procedure” and other fields of law: interplay with the private international law (conflict of laws) with special emphasis to family matters involving foreign element; interplay with the public international law; interplay with international criminal law (interaction between the states regarding assistance on criminal matters). Origin and development of international civil procedure as an academic study; Contribution of the Russian (Soviet) academics in the field of “international civil procedure”; Current trends and new issues in the field of international civil procedure.
• General Principles and Sources of International Civil Procedure
  The role of principles as the general foundations of the relevant branch of law; The general principles of international civil procedure: Principle of sovereignty; Principle of reciprocity. Comity of nations (comitas gentium) as an alleged principle of international civil procedure; Principle of application of national procedural law (lex fori principle); Principle of protection of human rights The role and place of international treaties in the field of international civil procedure; The role and place of national legislation in the field of international civil procedure; The role and place of ECHR practice in the field of international civil procedure;
• Parties to an Action
  Definition of procedural capacity and determination of a proper party to the dispute; Interaction between procedural capacity and general capacity; Historical restrictions on procedural capacity of foreign parties (Art. 11 of the French Civil Code 1804); Historical reasons for introduction of security for costs (lat. cautio juicatum solvi); Hague convention 1954 and abolition of cautio judicatum solvi; Modern provisions of legislation relating to cautio judicatum solvi (ECHR Judgment Tolstoy Miloslavsky v United Kingdom, Application no. 18139/91).
• International Jurisdiction and Lis alibi pendens
  The role of proper determination of the venue in the context of international jurisdiction; The principle actor sequitur forum rei and its application to the international jurisdiction; The general principles underlying establishing jurisdiction in the contemporary legislation and jurisdictional agreement (including Regulation Brussels-Ibis); The concept of “umbrella jurisdiction” and the concept of forum non conveniens; The notion of antisuit injunction under the common law; The concept of lis alibi pendens in the international civil procedure.
• Service of Process abroad (Notification of Foreign Party)
  The notion and nature of service of process. Service of process as an act of sovereignty; Application of lex fori principle to service of process. (Assessment of service of process at the time of bringing lawsuit and at the time of recognition and enforcement of foreign judgment); The concept of “due and timely” service of process and interplay between the said notions; The methods of service of process under Hague Convention 1954 and Hague Convention 1965; The requirements to the service of process under Art. 34 of the Brussels-I and Brussels-Ibis (Apostolides v Orams: C-420/07 (2009); ECHR approach to service of process abroad (Case of Avotiņš v. Latvia, Application no. 462347)
• Obtaining evidence abroad (Letters of rogatory)
  The notion and nature of letter of rogatory. Letter of rogatory as an act of sovereignty; Types of letters of rogatory; Different methods for transmission of letters of rogatory; Hague convention 1954 and Hague convention 1970 on obtaining evidence abroad; Grounds for refusal of execution of letters of rogatory; Manner of execution of letters of rogatory;
• Admissibility of Evidence obtained abroad
  Application of lex fori principle with regard to examination of evidence; Difference between substantive and procedural rules with regard to parol evidence rule (prohibition of proof of existence of a document by means of oral testimony); Admissibility of certain types of documentary evidence obtained abroad (affidavits); Admissibility of documentary evidence obtained abroad (certification and apostillation of public documents); Admissibility of privileged and/or improperly obtained evidence; Admissibility of foreign expert testimonies.
• Recognition and Enforcement Judgments
  Foreign judgment as an act of sovereignty. Limited territorial operation of foreign judgment; Interplay between the notions “recognition” and “enforcement” of foreign judgment; International treaty as a precondition for enforcement of foreign judgments; Interplay between the notions “comity (comitas gentium)” and “reciprocity” with regard to recognition of foreign judgments; Conditions for recognition and recognition of foreign judgments; ECHR case law and recognition and enforcement of foreign judgments;
• Cross-border insolvency
  The nature of cross-border insolvency. Procedural and substantive effects of foreign insolvency; Exclusive jurisdiction of the foreign court hearing insolvency matter (procedural effect of foreign insolvency); Recognition of the capacity of foreign insolvency trustee (substantive effect of foreign insolvency) Effect of the foreign insolvency on the performance of the contracts governed by foreign law (substantive effect); Effect of foreign insolvency on international arbitration; Legal framework concerning cross-border insolvency within EU (Regulation (EU) 2015/848)
• Notaries and International Civil Procedure
  General functions of the notaries in the field of international civil procedure; Performance of the notarial functions with regard to foreign citizens; Probate (inheritance) matters involving foreign element; Interaction between the notaries as per the treaties on international assistance in civil and commercial matters; Consulate employees and their notarial functions; Validity of the actions taken by foreign notaries (e.g. issue of the notarized power of attorney) and its effect on the Russian proceedings

Assessment Elements

• Attendance, active participation and in-class discussion
• Essay
• Oral exam

Interim Assessment

• Interim assessment (2 module)
  0.2 * Attendance, active participation and in-class discussion + 0.3 * Essay + 0.5 * Oral exam

Bibliography

Recommended Core Bibliography

• De Saulles, D. (2019). Reforming Civil Procedure : The Hardest Path. Oxford, UK: Hart Publishing. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edsebk&AN=2095757
• Kiestra, L. (2014). The Impact of the European Convention on Human Rights on Private International Law. Den Haag: T.M.C. Asser Press. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edsebk&AN=846011
• McClean, J. D. (2012). International Co-operation in Civil and Criminal Matters (Vol. 3rd ed). Oxford, U.K.: OUP Oxford. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edsebk&AN=483579
• Richard Garnett. (2012). Substance and Procedure in Private International Law. Oxford: OUP Oxford. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edsebk&AN=2245010
• Samuel Issacharoff. (2017). Civil Procedure. [N.p.]: Foundation Press. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edsebk&AN=1583260

Recommended Additional Bibliography

• Clopton, Z. D. (2018). Making State Civil Procedure. Cornell Law Review, 104(1), 1–100. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=bsu&AN=134340258
• Elena Salogubova, & Alan Zenkov. (2018). Roman law ’s influence on russian civil law and procedure. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edsbas&AN=edsbas.9A11C0FD
• Farrow, T. C. W. (2003). Globalization, International Human Rights, and Civil Procedure. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edsbas&AN=edsbas.2A366A85
• Gnoffo, V. (1997). Notary Law and Practice for the 21st Century: Suggested Modifications for the Model Notary Act, 30 J. Marshall L. Rev. 1063 (1997). Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edsbas&AN=edsbas.BEA54167
• Hartnell, H. E. (2018). Europeanizing Civil Justice in Amsterdam (1997) and Tampere (1999): Legal Elites and the Politics of Private International Law, Civil Procedure and the Administration of Justice in the European Union. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edssch&AN=edssch.oai%3aescholarship.org%2fark%3a%2f13030%2fqt387964x8
• Katarzyna Gajda – Roszczynialska. (2019). Abuse of Procedural Rights in Polish and European Civil Procedure Law and the Notion of Private and Public Interest. Access to Justice in Eastern Europe, (2), 53. https://doi.org/10.33327/AJEE-18-2.3-a000013
• Lohănel, M. (2018). Changes Brought to the Appeal for Annulment by Means of the New Civil Procedure Code. Jus et Civitas, V (LXIX)(2), 59–74. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=asn&AN=134314516
• Nicolae, I. (2018). Several Civil Procedure Law Issues Regarding Divorce. Jus et Civitas, V (LXIX)(1), 1–8. Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=asn&AN=132617711
• The Comparison of Civil Procedure and Industrial Relations Courtprocedure. (2019). Retrieved from http://search.ebscohost.com/login.aspx?direct=true&site=eds-live&db=edsbas&AN=edsbas.2ACC4788
• ГЕТЬМАН-ПАВЛОВА, И. В. (2018). Процессуальные коллизионные нормы в международном частном праве и международном гражданском процессе. Journal of Russian Law, (3), 84–96. https://doi.org/10.12737/art_2018_3_8
• Наталія Юріївна Сакара. (2018). The fundamental principles of civil procedure and the reasonableness of the time of a trial. Проблеми Законності, (142), 77. https://doi.org/10.21564/2414-990x.142.141022