Publication date: 17.09.2024
The term “International Civil Procedure Law”
The term international civil procedure law dates back to the last third of the 19th century. The concept first appeared in Italian and then in German procedural literature. In the context of international civil procedure law, the adjective "international" can easily give rise to misunderstandings. International civil procedural law, like private international law, is not part of international law since its sources are not to be found in the law between states but in the internal law of each state. The adjective 'international' refers to the rules of procedural law that the civil procedural law of a given country applies to foreign-related disputes.
International civil procedural law regulates the international, foreign aspects of civil procedural law. As part of national civil procedural law, it therefore contains the rules that apply to the foreign factual elements of a civil dispute. Among the most frequent international aspects of civil procedure are cases where one or both of the parties to the dispute are foreign, the subject matter of the dispute is abroad, the evidence is admissible in another country, and the court applies foreign law, grants international legal aid, or decides on the recognition or enforceability of a foreign judgment.
Sources of International Civil Procedure Law
The sources of international civil procedural law, like those of private international law, can be divided into two main categories:
National rules
International conventions
Due to the nature of international civil procedural law, a significant part of the sources of law are found in internal law. Internal rules can be either:
● indirect rules, i.e. conflict-of-law rules that determine the applicable procedural law, or
● direct rules, such as the so-called "conflict-of-law rules" on the status of aliens.
Another group of sources of international civil procedural law is international conventions, which can contain both indirect (conflict of laws) rules and direct procedural provisions.
Bilateral and multilateral international conventions
Among the bilateral international conventions, the most important sources of international civil procedural law are the legal assistance treaties. These treaties contain rules on jurisdiction, service of documents, taking of evidence, legal aid, and sometimes recognition and enforcement of judgments in civil disputes and family law matters involving citizens or legal persons of the contracting states.
Among the bilateral international treaties, consular conventions are considered to be the source of international civil procedural law since the consul may perform notarial and registry functions, represent citizens of the sending state before the courts of the receiving state, assist in the transmission of documents, execute requests, perform authentication and registration functions, etc.
Among the multilateral international treaties, the 1954 Hague Convention is the most comprehensive, regulating service between the contracting states, the execution of requests, the waiving of security for costs, and the granting of legal aid.
Challenges of International Civil Procedure Law
International procedural law presents several challenges, which can broadly be categorized into the following areas:
● Jurisdiction: Determining which state has the authority to hear a case involves assessing connections such as domicile, location of the defendant, or subject matter relevance. Different jurisdictions may claim jurisdiction, leading to conflicts that necessitate clear rules on forum selection.
● Legal Status of the Foreign Party: This encompasses questions regarding the capacity of foreign parties to initiate legal proceedings, access to legal aid, and the recognition of legal status across jurisdictions. Variations in laws can complicate a party's ability to participate effectively in litigation.
● Applicable Procedure Rules and Substantive Law: Parties must navigate which jurisdiction's laws govern not only the procedural aspects of the case (e.g., filing requirements) but also substantive law, which impacts the merits of the case. Conflicts of law principles play a crucial role in these determinations.
● Effect on Foreign Litigation (Lis Pendens): The principle of lis pendens addresses the ongoing proceedings in different jurisdictions regarding the same legal issues, which can lead to complications such as conflicting judgments and wasted resources.
● Recognition and Enforcement of Final Decisions: After a judgment is rendered, it must be recognized and enforceable in other jurisdictions. This hinges on mutual legal assistance treaties and national laws, which may vary significantly, impacting the effectiveness of cross-border adjudication.
The catalog showcases the complexities involved in international legal disputes, emphasizing the need for harmonization and clear frameworks to facilitate cooperation among different legal systems.
Conclusion
To summarize the above, international civil procedural law is not part of international law but of national civil procedural law. The adjective "international" refers to the field of regulation. Disputes with a foreign dimension are subject to the international, foreign dimension of civil procedural law. Its sources of law (apart from international treaties) are not to be found in interstate law but in the internal law of each state. International procedural law faces several challenges, including jurisdictional issues arising from multiple legal systems, difficulties in enforcing cross-border judgments, etc. Addressing these challenges necessitates enhanced international cooperation and the development of comprehensive procedural frameworks.
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