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In the trial and evidentiary phase, one of the substantive guarantees with central significance is the appropriate preparation of the trial, which receives special attention in the representative codes of all legal families. A typically emphasised part of the pre-trial phase in leading legal systems is the evidence-preserving proceedings regulated generally — to further emphasise its importance — in a separate chapter.

Besides evidence-preserving proceedings, we can find noteworthy examples for uniform regulation in separate chapters of other rules aimed at preserving the legal status-quo.

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We can thus find examples in several foreign civil procedure codes for the regulation of provisional measures injunctive relief, protective measures, and registration of a legal action in the land register in uniform chapters independent of the phase and function of the proceedings. As such, the distinction between the statements of litigants and witnesses could be problematic [52] Switzerland , and independent regulation may be justified.

The unequivocal preliminary question of the development of the appellate system is the Concept-level response to the questions related to the organisational system of the judiciary raised in Section II above. A well-founded decision may be only made on the number of tiers the appellate system should have and the determination of whether fora with mixed first and second instance jurisdiction or exclusively appellate courts should be part of the system.

Since, similarly to the Constitution, the Fundamental Law also requires not so self-evidently at all, according to the international comparative analysis [54] a regular appellate procedure, a fundamental revision of the effective structure of the appellate chapters of the code does not seem justified: it can be still organised along the regulation of appeals and extraordinary appeals. This template is followed by most foreign civil procedure codes, in which regulation is supplemented with the implementation of a few newer institutions that can be viewed, in a broader sense, as dispute resolution institutions, and so, primarily, with channelling fundamental rights violations into the civil procedure code.

Conceptual questions arise mostly with respect to the permissibility of extraordinary appeals, and, in this respect, both the Anglo-Saxon and continental examples may be useful supplements to the brainstorming done in preparation of the development of the Concept. Since the relationship between the two can only be imagined as some sort of symbiosis and the issue is only achieving the aforementioned weight-assignment, the determination of the detailed rules of permissibility may be assigned a special role.

Within the scope of permissibility, the separation of permissibility from the disputed amount as the only entry condition also requires a fundamental decision in itself. The amount in controversy and the disputed amount do not determine the significance of the case, and the latter is essentially independent from the value considerations. As such, the introduction of a chiselled permissibility criteria system is justified also with the utilisation of foreign examples extracted through international comparative analysis, in which the condition-nature of the disputed amount is not exclusive, and — precisely because of the central position of the assessment of the fundamental significance of the case — designating the permissibility decision as the subject matter of an independent appeal is not rare.

Even a list-like presentation of the regulatory needs of certain special proceedings would exceed both the permitted length and the scope of this overview. Accordingly, here we only highlight a few special proceedings in view of the chapter division of foreign civil procedure codes subject to our review, the regulatory needs of which are clear, but its place in the sources of law — comparing the effective Code of Civil Procedure with foreign examples — raises questions that need to be answered at the level of the Concept.

Proceedings concerning the status or capacity of persons are typically included in the civil procedure codes, although the German regulations have undergone remarkable changes in recent years considering the content of the basic principles, which is being significantly modified in these actions, as well as the multi-directional system of relationships that connects these actions to non-contentious proceedings in which all of the status proceedings have been removed from the rules of special proceedings of the ZPO and were implanted in a statute that was also intended to serve as a code for non-contentious proceedings.

By providing for independent regulation of press rectification actions, the Hungarian regulatory system can be regarded as unique, because this type of action does not appear independently in any of the representative civil procedure codes we have examined. In Hungary, however, we can present several arguments for its maintenance, for example, in addition to Hungarian procedural law traditions and the voluminous judicial case law, the fact that the new Civil Code apparently regards the traditional Civil Code-Code of Civil Procedure division of labour as the starting point.

The Civil Code does not even mention press rectification, and, also, the Press Freedom Act seems to be of the same view, as it also started on the assumption that the relevant rules remain in the Code of Civil Procedure. Considering that the Press Freedom Act is a cardinal law, we can regard this system as a given, and there is no reason for changing it. Finally, beyond the special proceedings currently regulated in the Code of Civil Procedure, the comparative analysis revealed a few subject matters, to which special proceedings are connected at the level of how chapters in the civil procedure code are organised in more than one country.

These include, especially, actions related to promissory notes and other securities [60] , actions aimed at the enforcement of claims arising from legal relationships related to intellectual property, [61] property disputes, [62] actions related to leases, [63] and actions for the return of illegally exported cultural objects. The codification process in its initial phase already addresses some technical issues.

Special attention is paid to the possibilities of utilizing electronic means of communication between members of the judiciary as well as between the parties and the judiciary. There seems to be an implied agreement among professionals that a well-positioned introduction of such means into selected stages of the civil procedure could seriously contribute to the timely administration of cases. In this respect, the extensive experience piled up in recent years during the fully electronic administration of payment order proceedings may provide much-needed input.

Another, partly technical, issue is the allocation and collection of litigation costs. It has been a recurring subject of discussion and will have to be decided now, at a conceptual level, whether the allocation and collection of costs should remain with the courts or placed with the tax authority. Various reasons have already been articulated on both sides, but consensus has not been achieved yet. Modern technologies, primarily the use of electronic communications devices, cannot contribute to the speed and efficiency of a civil trial to an appreciable extent.

With visions foretelling the opposite, certain practical foreign examples, as well as international arbitration practice, can be contrasted; however, in civil procedure systems comparable to ours, where electronic filing systems have been implemented, [65] the printing of all documents filed and filing hard copies remain the norm, and, what is more surprising, it is also required by court operation rules.

This means that, to date, even in the systems usually depicted as the pioneers of modern litigation in a technological sense, we can only talk about the development of an electronic alternative to mail delivery, and that experience shows that the system is unable to process larger, scanned exhibits, and, hence, filing is often duplicated and, with that, more cumbersome than it was in the pre-technology era.

Practical experience is similar regarding the procedural practice at the major institutional fora of international arbitration: even in those institutions that are infrastructurally far better equipped than national courts, it is not the deployment of modern technology but rather the efficient development of procedural rules — also based on the consensus of the parties — and the skills of the arbitrators employed that are responsible for the better efficiency of the procedure.

These examples show that the use of modern technologies in civil litigation is fundamentally a question of infrastructure and technological development, without any significant theoretical content. Hence, even the authoritative foreign civil procedure codes actually contain authorizing rules only sporadically and, in terms of the availability of technical conditions, so far only include electronic communications as an optional method. Based on these observations, there is no need to place special emphasis on the implementation of modern technologies at the level of the Code of Civil Procedure.

The German ZPO, which can be hardly accused of theoretical vagueness, takes care of the question with altogether two authorization rules. The few questions with actual procedural law relevance should be regulated among the sub-rules of the traditional procedural institution concerned e. Regarding alternatives to ordinary state civil procedure, the revision of the regulation of arbitration, as the principal substitute for ordinary civil litigation, have already entered the discussion.

Furthermore, extensive judicial practice and respective recent legislation, as well as international and European developments, require the review and possibly an updating re-codification of this field of procedural law. In addition to arbitration, problems of mediation are also on the agenda — unsurprisingly also with a view to the evolving European legislative activity ADR Directive, ODR Regulation. Various views have already been articulated regarding the introduction of mediation in the ordinary course of civil litigation, and opinions within the committees widely differ on the necessity and usefulness of court-integrated and out-of-court mediation and their respective regulatory needs.

In this context, there is an ongoing comparative debate reflecting different regulatory approaches, such as a rather forced e. In part, under the many years of pressure from the EU directive and decree requirement, [68] which received a new push at the time of closing this manuscript, more countries have also integrated mediation rules in their civil procedure codes. In addition to this, foreign regulations typically regulate pre-trial mediation as well, mostly specifying pre-trial documented mediation and the verification thereof — with different degrees of enforceability — as the prerequisite for trial.

We can find several specific solutions in different civil procedure codes, which mostly provide, within the framework of the trial, the option of mediation and primarily the opportunity for settlement that it can offer, and reflect on their legal effects and enforceability. Both the out-of-court version of mediation and the version integrated into the trial, though to different degrees, are fundamentally alien species in the system of civil trial regulation. The two latter mentioned acts, not surprisingly promulgated with a consumer protection objective, lead to the deliberate vulgarisation of an important segment of the civil justice system, and with that in the long run, it will detach larger and larger areas from the scope of the civil trial, secured by a procedural safety net and judicial legal expertise.

Based on the observations, the commencement of the adversary proceedings to enforce claims implies the impossibility, or at least the low likelihood, of an amicable resolution of the dispute. To steer back the parties by judicial force in the direction of mediation will lead to judicial role confusion, waste of time and loss of efficiency. Finally, in the light of the regulations pursuant to the Directive, it seems unavoidable that a lex imperfecta, serving to fulfil a notification function within the system of conditions of filing a proper complaint, in other words, regulating the substantive elements of the complaint, will be maintained.

The in many respect unwarrantedly unquestioned harmonisation of the Arbitration Act with the UNCITRAL may create the impression that the Hungarian legislature has nothing to do in the area of the primary alternative to litigation, arbitration. This view, in the light of the final, effective regulations and related judicial practice, is clearly unfounded, because the current regulatory environment of arbitration displays several dysfunctions, which — based also on the lessons of foreign examples — could be rectified through the codification of the Code of Civil Procedure.

The following reasoning, which is in line with the regulations of all reference countries, can be considered as the starting point: it is the interest of both the institution of arbitration and the state that the alternative resolution of private law disputes through arbitration is practiced with the greatest possible support and coordination from and, at the same time, appropriate quality assurance by the legislature and state judicial administration of justice.

A balanced effort to provide support, coordination, and quality assurance in this sense is manifested primarily in the structure of the actual text of the legislation. Accordingly, in international practice, regulations that define the extent of arbitrability subjective and objective arbitrability , generously and, in essence, as identical to the boundaries of private-autonomous action, are typical. It can be considered typical that legal entities becoming the subjects of private law legal relationships may derogate, without any further conditions, state judicial dispute resolution and agree to conduct arbitration proceedings in legal disputes, over any matter in which they are free to make decisions in accordance with private law rules.

A further manifestation of the support and coordination in general is the manifold legal assistance provided during the proceedings. In a broad sense, this includes the dismissal of the complaint without the issue of a summons if a valid arbitration clause exists, legal assistance provided during the establishment of the arbitration tribunal in charge and state judicial legal assistance provided in the area of provisional measures, as well as legal assistance provided for the evidentiary proceedings.

Finally, on the common boundary of support, coordination, and quality assurance, we can find judicial review by state courts of positive jurisdictional decisions, the provision of the arbitral decisions with legal effect linked to the judgments of state courts and their definition as grounds for enforcement accordingly, and finally, specific appeal proceedings in the form of invalidation actions.

Ideally, an addition to these rules is the state judicial practice, which stands on the grounds of favor arbitri that, recognising the national economy interests linked to arbitration as well, creates a balance between the support and quality assurance functions intended for these courts. The above-mentioned equilibrium is extremely sensitive at the level of both the legislation and the related judicial practice.

In the latter case in other words, in the event of assigning partial appellate content to invalidation actions , the private-autonomous derogation of state judiciary proceedings, as the state dispute resolution forum, is vested with broad decision-making powers. The disruption of the equilibrium causes a series of unfavourable effects, of which we should highlight the weakening of the environment of international investment protection and the relativisation of, foreseeable options for the enforcement of claims and with this, ultimately, of legal certainty.

Several initiatives in the effective Hungarian regulations and related judicial practice primarily the tendencies of narrowing arbitrability and broadening, as far as content goes, invalidation reasons point to the fact that both the regulatory environment and the interpretation of the law have moved toward the disruption of the above described sensitive equilibrium, which poses no small danger.

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The codification of procedural law can present an opportunity to resolve these problems and, at the same time, to improve the quality of the Hungarian arbitration practice based on national economic interests. Several authoritative procedural law legal systems regulate arbitration in a separate chapter in their civil procedure code.

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This is also true, among other reasons, because a large portion of the regulatory content currently provided by the Arbitration Act primarily belongs in the civil procedure code; namely, every rule displaying state court contact points, from the dismissal of the complaint without the issue of a summons to legal assistance for the establishment of the arbitral tribunal and other instances of legal assistance, to the complete invalidation proceedings part. In Hungary, in addition to these sources of law reasons, the arbitration-related legitimacy deficit observed lately would also justify integration into the Code of Civil Procedure, which would thus contribute to the beneficial increase of the acceptability of arbitration.

As such, it can be foreseen that the Concept will have to take a stance on this question. There are several available codification techniques that can be followed. Finally, numerous issues have already been raised regarding the way of handling necessary intersection points between domestic civil procedure and international first and foremost EU law instruments regulating certain fields of civil procedure, e.

These instruments will play a continuous crucial role in the codification process. In the current preparatory phase, the discussion focuses on the level of sources of law, e. One possible way to achieve this — and thereby furthering the awareness of this dynamically evolving field of procedural law — could be the introduction of a specially prepared chapter in the new code dedicated to the respective international and European instruments and their interfaces with domestic procedural law.

In the last one and a half decades, civil justice cooperation, as one of the most dynamically developing area covered by EU legal materials, has put a very large amount of secondary [79] Community legal materials in direct interaction with the independent national procedural laws. The application of domestic civil procedure codes are increasingly permeated by decrees on jurisdiction, legal assistance, mutual recognition and enforcement, as well as new-generation, uniform proceedings.

In reaction to the powerful EU influence and to the interaction we have mentioned above, several Member State codes devote a uniform and as regards its objective too, a didactic independent chapter to EU regulations, embedding them into the structure of the national procedural law.


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The prototype of this regulatory technique is Book 11 of the German ZPO, which contains only short references of application. Elsewhere, we find detailed regulations. With respect to EU sources primarily applicable to actions to be filed and pending actions, it would be appropriate to decide, at the level of the Concept, whether the concentrated, chapter-level integration of these rules into the Code of Civil Procedure should take place, and if so, whether only through periodically updated EU sources of law references or through a more explanatory and detailed substantive regulation.

The contributions in this book address this neglect in two important ways. First, they challenge commonly-accepted approaches to prevention. Second, they explore negative cases in order to better understand how local and national actors have mitigated risk over time. Archive of the Fourth Russell Tribunal. Editor: Ben Vermeer. Contact Sales.

Rights of indigenous peoples The rights of indigenous peoples became the subject of discussion on an international level in the early s. The Fourth Russell Tribunal was one of the major conferences in this framework.

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The members of the jury met in the city of Rotterdam, The Netherlands, in November, , to consider alleged violations of the rights of the Indians in the Americas. Of the 47 cases submitted to the tribunal, 14 were accepted for presentation by witnesses, experts, and documentation. Many other documents and statements were presented as well, including some by indigenous peoples of other continents.

Die Zivilprozessordnung - ZPO - E-Book - Stand: 21. Mai 2014 (German Edition)

More than representatives of indigenous organisations participated in the sessions of the tribunal, coming from as far away as Bolivia, Canada, and New Zealand. Among them were Indian Chiefs, priests, lawyers and anthropologists. On Sunday, November 30th, the jury reached the conclusion that in most of the cases national and international law had been violated.