Supreme Courts' jurisprudence as a dispute avoidance mechanism? (original) (raw)
2018, Civil Procedure Review
Starting from a comparative and economic perspective, this article aims to assess the efficiency of recent reforms of civil procedure, especially focusing on Italian and French experiences. On the one hand, it underlines that convergences in European Countries regulatory actions in the field should not be overestimated: even equal reforms may end up with different outcomes, because of differences in the starting backgrounds (whether economical or cultural). On the other hand, it casts doubts about the effectiveness of regulations imposing ADR mechanisms as a pre-condition to legal proceedings or providing for appeals selection: as Positive Law and Economics shows, mandatory mediation or conciliation is unlikely to overcome parties cognitive bias, while side effects brought by skimming mechanisms may undermine their benefits. Valentina Capasso, Supreme Courts' jurisprudence as a dispute avoidance mechanism?, In Civil Procedure Review, 2018, 3, 33 ff.
Sign up for access to the world's latest research.
checkGet notified about relevant papers
checkSave papers to use in your research
checkJoin the discussion with peers
checkTrack your impact
Related papers
Fitting the Forum to the Fuss While Seeking the Truth: Lessons From Judicial Reforms in Italy
Ohio State Journal on Dispute Resolution, 2020
While settlement has long taken center stage in common law cultures, giving rise to the "settlement judge", it is also gaining ground in continental civil law cultures, creating unique judicial roles that broaden the repertoire of judicial function. The study uncovers an informative new judicial role arising from reforms in Italy, one that combines mediation awareness, adversarial settlement-seeking and inquisitorial truth-seeking, and which we named: "fitting the forum to the fuss while seeking the truth." We focus on the Florence first-instance court in Italy, whose model for implementing recent reforms encouraging settlement, mediation and judicial conciliation, is being replicated by other courts in the country. We examine the actual involvement of Italian judges in reaching consensual dispositions of civil cases and include a docket analysis of civil cases, findings from interviews with judges and an analysis of court observations. Despite the strong preference for adjudication in Italy, judges are using unique tools to encourage settlement. Their intervention correlates with an increase in settlement prospects. This finding, combined with the finding that less than half of the cases (42%) are disposed through adjudication, raises the possibility that the vanishing trial phenomenon, well documented in common law systems, may slowly and uniquely make inroads in this continental state. In addition, judges view their settlement role as another form of adjudication while viewing mediation as a broad, transformative alternative. The sharp separation between in-court justice and out-of-court justice may offer a new model of justice that avoids institutional cooptation of mediation, a problem in common law systems.
The length of legal disputes and the decision to appeal in Italian courts
Rivista italiana degli economisti, 2013
Gravelle shows that delay in legal process causes the costs of justice increase and reduces the demand for justice. In this work we test Gravelle's argument for Italy by analysing the relationship between the number of new appeals and the average delay in the corresponding disputes at first instance. The results do not contradict Gravelle's argument with respect to labour disputes and ordinary disputes that fall within the jurisdiction of the Courts of Appeal. Conversely, we found no significant correlation with respect to appeals in ordinary disputes falling within the jurisdiction of the Courts of Law (against the decision of a Peace Officer) and a not clear effect for social welfare disputes.
Matteucci 2014.10.18 ADR and judiciary in Italy
In Italy every year there are more than 4 million new civil proceedings, more than 5 million pending civil proceedings, and almost 200,000 new civil mediations―but less than 25,000 agreements. Only 2% of the new mediation proceedings are delegated by a judge. The presence of the judiciary in the current Italian ADR scene is extremely weak. This in spite of the remarkable results achieved by a single judge keen on mediation: no less than a 10% reduction in pending proceedings in one year and a half, and more than 50% agreements reached in non-binding arbitrations and/or delegated mediations. The tool works, it is very efficient and yet underutilised. Why?
Civil Procedure Harmonization in the EU: Unravelling the Policy Considerations
2013
This article examines the role and significance of the fundamental right of access to justice in the EU (Article 47 CFREU) in the context of the fragmentation of EU law, as evidenced in the area of civil procedure law. As member states' procedural regimes are considerably divergent, EU institutions intervene, more and more often, to ensure EU law is effectively enforced in an equivalent manner across the EU. This work thus addresses a preliminary question: when should EU institutions provide civil procedure rules that promote effective dispute resolution and enforcement of EU law? In other words, which are the policy parameters that render such a proactive stance on the part of the EU institutions both desirable and feasible? EU institutions will have to answer this question for every legislative proposal in the area of civil justice. Therefore, this article only offers the broad lines along which such in concreto justification for legislative action in civil justice will have to take place. It is argued that EU institutions should take into account the various cultural, economic, social, and historical implications of civil procedure law in order to achieve a coherent approach. Against this background, the fundamental right to effective remedy and fair trial should tie all policy parameters together.
Loading Preview
Sorry, preview is currently unavailable. You can download the paper by clicking the button above.