1        Who Is a Party?

1.1        The Notion ‘Party’

1. In civil litigation, a party is an individual or group of individuals who seek to assert rights in a legal proceeding, or who defend against allegations of violations of rights and duties or other wrongdoing. Different legal systems apply different terms to denote parties to a lawsuit. These include the designation of a claimant, as the person or persons filing a lawsuit, or a petitioner, as the person or persons filing a petition with a tribunal requesting a judicial ruling. Judicial systems designate the defendant as the person or persons sued or charged with wrongdoing. A respondent is a party opposed to a petition, or an appeal.
2. Parties do not include attorneys or counsel in a proceeding. A person or persons who appear in a lawsuit as witnesses providing evidentiary testimony also are not parties to civil litigation.
3. Legal systems also designate parties who are made part of a lawsuit by cross-complainant filed in the same lawsuit. Thus, a cross-complainant is a defendant who sues someone in the same lawsuit, and a cross-defendant is a person sued by a cross complainant. Third parties may be joined in a civil action, in which case they may be designated in some legal systems, as a third-party claimant or a third-party defendant.
4. In Spanish civil procedural law, a party is the person or entity that institutes proceedings and the person or entity against whom those proceedings are instituted. The claimant is called demandante and the defendant is called demandado. The notion of party is purely formal or procedural: a person or entity becomes party to a proceeding because the person or entity has instituted proceedings or have had proceedings instituted against them. Spanish proceedings embrace litigation involving two or more claimants or two or more defendants. The Spanish term for joinder of parties is litisconsorcio.

1.2        Statutes or Rules Relating to Parties

5. In many jurisdictions, the statutes and rules may govern the nature and status of parties to a dispute. Such statutes or rules may set forth legal standards for standing to sue, capacity to sue, joinder of parties, necessary joinder of parties, indispensable or mandatory joinder of parties, cross claims and counterclaims against various parties, and other types of parties such as intervenors.

1.3        Capacity to Sue or Be Sued 

6. A fundamental concept relating to parties concerns the ability or capacity to sue or be sued. Capacity may be defined by statutory law or procedural rules. Capacity rules frequently are granular and refer to specific categories of individuals or entities.
7. Different rules may govern an individual or entity’s capacity to sue or be sued. For example, in the United States, the capacity of an individual is determined by the law of the person’s domicile; the capacity of a corporation is determined by the law under which it was organized; and for all other parties, by the state law where the court is located (USFRCP 17(b)).
8. Certain representatives may sue or defend minor or incompetent persons, including (a) a general guardian, (b) a committee, (c) a conservator, or (d) a like fiduciary. A minor or incompetent person who does not have an appointed representative may sue by a next friend or by guardian ad litem. The court must appoint guardian ad litem to protect a minor or incompetent person who is unrepresented in an action (USFRCP 17(c)).

1.4        Standing

9. In many legal systems, the procedural concept of party designation is different than the concept of standing to sue. Standing to sue is defined by statute in many continental systems and common law systems, or by constitutional standards in the United States. Claimants must have standing to sue; this is a threshold requirement. Generally, standing requires some nexus between the claimant’s allegations of harm and the remedy sought in the lawsuit. In the United States, for example, standing doctrine requires that the claimant allege an injury in fact, traceable to the conduct of the defendant, that is redressable at law.^[1] A party may only assert his or her own rights and cannot raise the claims of a third party who is not before the court. A claimant also may not have standing to sue if the alleged injury is widely shared in an undifferentiated way with many people.
10. In Spain, the actual connection of a party or entity with the dispute are known as issues of standing (legitimación); generally, they are deemed to be issues of substantive law that do not affect the procedural condition of party.
11. In Slovenia, standing to sue (legitimatio ad processum) is recognised if a claimant brings a claim for his benefit (thus, protecting the rights, that the claimant asserts to have). Whether the claimant is truly entitled to such rights under substantive law is the matter of so called legitimatio ad causam. Thus, the rules on legitimatio ad processum prevent claims being brought to the benefit of third persons or an actio popularis.

1.5        Actual Parties: Real Parties in Interest 

12. In the United States, a civil action must be prosecuted in the name of the ‘real party in interest’. The following persons may sue in their own names without joining the person for whose benefit the action is brought: (a) an executor, (b) an administrator, a guardian, (d) a bailee, (e) a trustee of an express trust, (f) a party with whom or in whose name a contract was made for another’s benefit, and (g) a party authorized by statute (USFRCP 17(a)(1)).
13. A court may not dismiss a lawsuit for the failure of to prosecute a lawsuit in the name of the real party in interest. The real party in interest must be provided with a reasonable time in which to correct the defect (USFRCP 17(a)(3)).

1.6        Representative Parties 

14. As indicated above (Chapter 1.3), certain individuals such as minors or incompetent persons may be represented by designated representatives on their behalf or if no person is designated the court may be under a duty to appoint and appropriate representative.
15. Another type of proceeding that embraces representative parties include class action litigation in the United States, where named ‘class representatives’ bring group litigation on behalf of large numbers of unnamed class claimants (USFRCP 23). In such situations, American law is unclear concerning whether such absent class claimants are parties to the dispute; some case law indicates that only the named class representatives are the actual parties to the dispute. Class representatives have a fiduciary duty to protect the rights and interests of absent class members.

1.7        Third Parties

16. Civil litigation may embrace so-called ‘third parties’ to the litigation who are not initially sued by the claimant or the defendant. A third party typically is an individual or an entity whom the defendant seeks to bring into the litigation because the defendant believes that the third party (who is not named in the lawsuit) is liable to the defendant. If a defendant asserts a counterclaim against the claimant, the claimant has the same opportunity to join a third-party who might be liable to the claimant on the counterclaim. The common bases for contingent or derivative liability by which third parties may be brought into a lawsuit include indemnity, subrogation, contribution, and warranty.
17. In the United States, the joinder of third parties to a litigation is accomplished through the procedural device known as impleader (USFRCP 14). The defendant impleads the third party into the lawsuit. A defendant then becomes a third-party claimant by filing a third-party complaint against an individual or entity not presently party to the lawsuit. The individual or entity that is impleaded is known as the third-party defendant.
18. In Belgium, traditional rules exist for the joinder and indivisibility of connected cases (Art 30 Judicial Code (JC); Art 701 JC). Also, cases can be grouped together by way of a mandate. In 2015, an action for consumer collective redress was introduced, which was later expanded to SMEs.
19. In Brazil, the civil procedure rules allow for intervention of assistants; third-party impleaders; amici curiae, and joinder of a co-defendant.
20. In Germany there is provision for multiple party disputes; the idea is to conduct the proceedings in an efficient way. The rules for third-party notice are intended to avoid problems which might result from the fact that the res judicata effect is limited to the parties.  
21. In Slovenia, the law allows for multiple parties but distinguishes between ‘ordinary co-litigants’ and ‘uniform co-litigants’. In principle, in joinder involving ‘ordinary co-litigants’, this does not deprive each party of individual autonomy; hence its actions and omissions only affect its case. Different judgments can be rendered. However, when an action requires only one uniform judgment regarding all co-litigants, the law provides for the ‘uniform joinder of the parties’. In such case, procedural acts during the proceedings apply uniformly for both. Third-party notice has important procedural consequences. If a subcontractor receives notice of an action in which the subcontractor should intervene and ignores it, it will nevertheless be bound by all relevant factual findings and legal standpoints, adopted in the litigation between an employer and the contractor.
22. In Spain, broadly speaking anyone who is not a party to a proceeding is a third party to that proceeding. This broad notion of third party includes all persons and entities who have absolutely no connection to the dispute and the litigation. But it also includes all persons and entities who have an interest in or a relationship with the dispute, so that the outcome of the litigation might have consequences for their personal status or their assets. Those belonging to this latter group of persons and entities are known as procedural third parties. The law takes these persons and entities into account offering different ways of protecting their interests in the ongoing litigation.
23. In Togo, in the interests of the proper administration of justice and with a view to extending res judicata to all interested parties, there are specific rules in multiparty proceedings. For example, if an interested third party intervenes in the proceedings before the close of the hearing with an incidental or related claim, the case may be adjourned to a later hearing and the measures of inquiry extended. In the event of several defendants being summoned for the same matter, if at least one of them does not appear, the judgment is deemed to be contradictory with regard to all of them when the decision is subject to appeal or when those who do not appear have been summoned in person.

1.8        Other Types of Parties (Intervenors, Interpleader, Class Members, Amicus Curiae)

1.8.1        Intervenors

24. Many legal systems provide for additional parties to a litigation who are not originally designated as parties to the dispute. The most common additional party are intervenors. These are individuals or entities that have an interest in the ongoing litigation that may be impaired or impeded by the efforts of the existing parties and for which they are not adequately represented by the existing parties. The ability of non-parties to intervene into an existing lawsuit is governed by statutes or rules, and may be an intervention of right, or permissive intervention (USFRCP 24).
25. In Belgium, specific rules on the intervention procedure exist (Art 811-814 JC). Intervention can be free or forced (Art 15, 16 JC). A forced intervention means that a party to the proceedings summons a third party to become part of the proceedings. A judge may not order ex officio the addition of a third party (Art 811 JC).
26. In Norway, there are specific rules for joinder of multiple parties such as intervenors or third-party practice. There also are rules governing the succession of interest, but these are scattered throughout the rules.
27. In Slovenia, intervention is possible if one of the parties (usually the defendant) believes that it might have a claim against a third person, should it lose in the first litigation. Examples of litigation involving intervention include situations where an employer sues a contractor and the contractor invites, via a notice, the sub-contractor to join as intervenor. The legal consequences of such notice (litis denuntiatio) are far-reaching. The third person duly notified (regardless whether he will join the proceedings) will, in principle, be bound by factual and legal findings in the judgment rendered in these proceedings.
28. In Spain, the general rule is that no public interest representatives will intervene in civil proceedings. Nevertheless, there are exceptions to the intervention of the Public Prosecution Office and Public Offices whose task is related to the dispute. The PPO may intervene as the claimant in a representative action for protection of consumer interests, or when the defendant is a minor who does not have other legal representation. The PPO shall intervene in incidental proceedings where the jurisdiction or the impartiality of the civil court have been challenged; proceedings aiming at the judicial protection of a fundamental right; proceedings where minors, mentally disabled persons or legally absent persons are involved; proceedings for the nullity of marriage; proceedings for establishing parenthood; and proceso de revisión (revision proceedings), aimed at vacating a judgment that is final and unappealable. The European Commission and the National or Regional Anti-trust Agencies may intervene in civil proceedings related to anti-trust law. The European Commission and the National or Regional Data Protection Agencies may intervene in civil proceedings related to data protection law.

1.8.2        Interpleader

29. Interpleader is another procedural device, often used to resolve insurance disputes, that creates parties to an action. In the United States, an interpleader action is initiated when the claimant holds property on behalf of another but does not know whom the property should be transferred (USFRCP 22). The party initiating this litigation is designated as the stakeholder. The money or property is designated as the res. All possible defendants having an interest in the property are called claimants. In some jurisdictions, these parties are referred to as the claimant-in-interpleader and claimants-in-interpleader. Interpleader actions proceed in two stages. The first determined whether the stakeholder is entitled to an interpleader action, to be discharged from liability for the res. The second stage is to determine which of the claimants is entitled to the res.

1.8.3        Amicus Curiae

30. Many jurisdictions allow an appearance by amici curiae, or ‘friends of the court.’ Amici curiae are technically not parties to the litigation, but with leave of the court are permitted to participate in the proceedings to provide additional advice or insight to the court.
31. In Spain, the PPO may appear as an amicus curiae (eg, providing a learned opinion on whether the court has jurisdiction or not). The European Commission and the National or Regional Anti-trust or Data Protection Agencies will always intervene as amicus curiae.

1.8.4        Class Action Members

32. In American class action jurisprudence, it is unsettled law whether absent class members are parties to the action. Some courts have concluded that only the named class representatives in the complaint are the parties to the dispute, and unnamed claimants are not actual parties. Other courts have concluded that absent class members are parties to the litigation.

1.8.5        Rules for Succession of Parties

33. All jurisdictions have rules governing the substitution and succession of parties based on certain events that trigger a need for the succession of parties. In the United States, the substitution or succession of parties is governed by rule (USFRCP 25). Substitution of parties may be effectuated upon death, incompetency, or the transfer of an interest (USFRCP 25(a)-(c)). Substitution of a government official does not occur automatically when a named government official dies in office, or is no longer, a government employee (USFRCP 25(d)).
34. In Belgium, there are a few technical rules on the succession of deceased parties or parties changing the capacity in which they were a party to the case (Art 815-816 JC).
35. In Brazil, there are specific rules for the succession of parties (Art 108-110 Civil Procedure Code).
36. German law also provides for the succession of parties, in the interest of the parties and the efficiency of court proceedings.
37. In Norway and in Slovenia, if a party who is a natural person, dies and was not represented by a lawyer, the proceedings are automatically suspended. They will continue once the heir takes it over, or the court invites him or her to do so. If a party, who is a natural person, dies and was represented by a lawyer, the proceedings are not suspended. If a party, who is a legal entity, ceases to exist, the proceedings are suspended regardless of whether it was represented by a lawyer.
38. In Togo, there are no specific procedural rules.  The rules of the Civil Code apply in this respect.

2        Procedural Duties and Responsibilities of the Parties and Their Representatives 

2.1        Representation by a Lawyer

39. In the United States, there is no legal requirement that a claimant or a defendant be represented by an attorney. Parties may appear on their own behalf pro se. However, certain types of litigants who, because of their lack of capacity (such as minors or incompetent persons) may require court appointment of an attorney to represent their interests. See above 1.3 (Capacity to Sue or Be Sued).
40. In Belgium, representation is not mandatory unless the law provides otherwise (Art 758, first para JC). This is the case for procedures for the Supreme Court (Art 1080 JC). However, a judge may deny a party the right to represent itself in court if he finds that due to passion or lack of skill, they are unable to discuss their case with the required propriety or with the necessary clarity (Art 758, second para JC).
41. In Brazil, except in small claims court in cases up to 20 minimum wages, parties must be represented by attorneys. Lawyers can represent themselves.
42. In Germany, there are two types of first instance courts: the local district courts for disputes up to EUR 5,000 and claims in certain areas of law, eg house rental cases, and the regional courts for disputes of an amount exceeding EUR 5,000. Only before the latter and before second instance courts, is the representation by a lawyer mandatory. Before the Federal Court of Justice, only a small group of specialized lawyers is admitted. The remuneration of the solicitors is regulated in a statute, which is not mandatory, but which is nevertheless respected in usual cases.  
43. In Norway, there is no mandatory requirement that persons be represented by counsel. Almost all litigants are represented. In small claims proceedings (amount in dispute is below NOK 250,000 = EUR 25,000) self-represented parties are common. In small cases, the compensations of legal costs are limited to maximum 20 % of the amount in dispute.  
44. In Slovenia, except in proceedings in the Supreme Court (and other extraordinary remedies such as the reopening of proceedings), representation by a lawyer is not mandatory. In practice however, more than 90% of the parties are represented by a lawyer.
45. In Spain, legal representation is required for most civil and commercial cases. For disputes of more than EUR 2,000, the LEC^[2]S requires that the parties hire an advocate who will study and investigate the case, write briefs and make oral pleas to the court. This advocate is deemed the party’s technical defender. In addition, the LEC requires that parties also hire the services of procurador (a procurator). The procurator is deemed to be the party’s representative before the court. The procurator (1) deals with service and notifications related to the party, (2) submits briefs previously written by the advocate to the court and (3) takes care of the correct unfolding of proceedings.
46. In Togo, a distinction must be made between natural and legal persons. For natural persons, representation is not compulsory before the court of first instance and on appeal. It is only before the Supreme Court that it becomes mandatory. Because before the Supreme Court the issues dealt with are purely legal and essentially technical.  For legal persons, representation is compulsory in all instances.

2.2        Right of Self-Representation; pro se Proceedings

47. In the United States, a person or entity may represent themselves, known as pro se representation. In England and Wales, the equivalent status is called a litigant in person. In the United States, the most frequent type of action in which parties appear pro se relate to domestic relations, such as divorce proceedings and family matters. Prisoner petitions in civil matters are overwhelmingly pursued by pro se litigants. In addition, small claims lawsuits are likely to be pursued by pro se litigants. In federal courts, the right of self-representation is protected by statute (28 USC § 1654). Longstanding rules do not permit corporations to be represented by non-attorneys, and a pro se litigant may not serve as a class representative. In addition, in many jurisdictions matters relating to estates or probate must be litigated by executors or administrators who are attorneys.
48. In Belgium, a judge may deny a party the right to represent itself in court if he finds that due to passion or lack of skill, they are unable to discuss their case with the required propriety or with the necessary clarity (Art 758, second para JC).
49. In Brazil, lawyers can represent themselves.
50. In Norway, in small claims proceedings (amount in dispute is below NOK 250,000 = EUR 25,000) self-represented parties are common, especially in the mandatory first instance proceedings in Conciliation Boards. In small cases, the compensations of legal costs are limited to maximum 20% of the amount in dispute.  
51. In Spain, for low value cases of EUR 2,000 or less, litigants are free to defend themselves without using the services of any legal professional. These litigants are called litigants in person. Litigants appearing in person may prepare a succinct statement of claim. There is no need to specify any legal grounds, but just the fundamental facts upon which the claim for relief is based (Art 437(2) LEC). It is understood that the law cannot require an ordinary citizen who lacks legal skills to make a legal study of the case and produce a statement of claim in a professional way.
52. If in a case up to EUR 2,000, one party is a litigant in person, but the other party chooses to have legal representation, the court will provide the litigant in person with the opportunity to obtain legal representation. If the litigant in person does not have sufficient means to pay, the litigant may ask the court to issue an order stating that the litigant requires legal representation for the sake of the ‘principle of equality of the parties within the proceedings.’ With this court order, the litigant will be able to address the Legal Aid Commission with a request for legal aid. The main proceedings will be stayed until the Commission issues a decision on the application for legal aid (Art 6.3(a) LAJG^[3] and Art 32 LEC).

2.3        Adversarial Proceedings and the Duty of Good Faith and Cooperation

53. In many systems, the idea of civil litigation is conceived as a battle between the parties. This is especially true in the United States, in which litigation is based on an adversarial model. However, this concept seems to be abating with a modern emphasis on the parties’ duty to participate in good faith and cooperation. In some systems parties might even be under a procedural duty of cooperation (cf the modern trend reflected by the ELI/UNIDROIT European Model Rules of Civil Procedure). In the United States some state civil procedure rules and codes of professional responsibility set forth duties of cooperation and civility in the conduct of litigation.
54. In Belgium, while parties are expected to cooperate on certain matters, for example when a judge orders the disclosure of documents, it is not yet a general principle with specific sanctions. The judge can, however, sanction parties in different ways if they do not comply with requests or orders. Although the principle of procedural loyalty appears from time to time in the Supreme Court’s case law, it remains to be seen how it will evolve. While a number of textbooks consider it as a ‘principe directeur’ of Belgian civil procedure^[4], its content is still unclear. Generally, it obliges parties to fair-play, both with the judge and adversaries. This means, for example, timely communicating, only raising exceptions when one suffers a prejudice from procedural mistakes of the other side, raising exceptions at the earliest possibility, etc. It does, however, not cover a duty to be complete or to be truthful. To which extent it differs entirely from a prohibition of abusive litigation, is unclear.^[5] It can also be doubted whether it truly exist as a duty separate from specific rules prescribing a form of procedural conduct that could be described as an embodiment of good faith.^[6]
55. Article 6 of the Brazilian Civil Procedure Code establishes a principle of cooperation, stating that ‘All who in any way participate in the proceedings shall cooperate in order to obtain, within a reasonable period of time, a fair and effective judgment on the merits’.
56. Article 5 of the Brazilian Civil Procedure Code states that ‘All who, in any way, participate in the proceedings shall act in good faith’.
57. In Germany, there is no duty to cooperate, but there is an ongoing discussion about this idea. There is a duty to act in good faith, but the limits are not clear cut.
58. In Norway, there is a duty to cooperate, but it is not enforced. Norwegian legal culture is based on the idea of cooperation, and thus formal sanctions for failure to cooperate are not needed. There also is a duty to act in good faith, but it also is not enforced. The court is empowered to draw adverse consequences of it (facts) or apply cost sanctions. In a small country such as Norway, people are aware of their reputation and all lawyers wish to maintain a good relationship with local judges. Managing good relationships is paramount in rural areas (and to some extent in urban areas).
59. In Slovenia, as explained above (Part 6, Chapter 3.5) there is no explicit rule on the duty of the parties to cooperate, but the principle is promoted by the Constitutional Court. In Spain, in the context of each party’s own investigation there is no proper duty to cooperate; there is no proper mutual duty of discovery or disclosure. There are no pre-action or post-action disclosure duties directly enforceable between parties. There are no sanctions or negative consequences for the party ignoring private requests. If a party wants to get information or evidence from an opposing party, they must go to a civil court and ask for an order (Art 328 LEC). Indeed, civil litigation in Spain is still very much seen as an adversarial battle between claimant and defendant, where each is entitled to engage into any strategy, they please for the sake of their own interests. The law does not clearly state any clear duty of good faith and cooperation in relation to the opposing party. The only limits here are the law and the duty of good faith towards the court. But no specific duty of good faith towards the opposing party is due and it is considered legitimate that each party fights her position without helping in any way the position of the opponent.
60. In Togo, there is a duty to cooperate through the obligation of simultaneous and spontaneous communication of documents. In addition, parties are obliged to cooperate with the investigative measures the judge orders. This obligation gives the judge the power to draw any consequences from an abstention of refusal (Articles 45, 49, 103 of the Code of Civil Procedure). The obligation to act in good faith is not expressly provided for in the Code of Civil Procedure; however, it can be implicitly deduced through the procedure of false civil incident in Article 94 of the Code of Civil Procedure.

3        Parties as ‘Masters’ of the Proceedings 

3.1        The Role of the Parties in the Introduction of Facts

61. In many systems of civil procedure, parties are considered to be the masters of the proceedings. A key aspect is the parties’ power to determine the matter in dispute. In the United States, claimants and defendants are considered to be masters of their pleadings and to assert any and all legal claims and defences available at law and equity. However, American rules of civil procedure permit liberal amendment of pleading throughout the course of litigation, including up to and during trial (USFRCP 15).
62. In Spain, only the parties may introduce the essential facts supporting the claims and the affirmative defences. The general rule is that all facts (be them essential or secondary) must be introduced by the parties and only by the parties. The parties exclusively define the litigation’s subject matter. The court is therefore banned from carrying any factual investigation of its own and from taking into account facts that have not been previously alleged by at least one of the parties (Art 216 LEC). However, some scholars have argued that the principle of party autonomy does not require only the parties introduce secondary facts; the court could investigate and bring secondary facts for the sake of seeking the truth.
63. In Belgium, it is expected the defendant, when contesting, does this in a constructive manner. However, if defendants fail to bring the necessary facts or raise the necessary points, judges have in principle no obligation to raise defences ex officio. That being said, since the whole case file is at the disposal of the judge, a judge may raise any issue and put it to the parties when the law does not prohibit the judge from doing so and parties have not expressly agreed to exclude the issue.
64. In Brazil, the defendant must present all factual and legal allegations, presenting documental evidence and specifying the evidence the party intends to produce.
65. In Germany, it is not sufficient to contest the opposing side’s allegations. It is necessary to substantiate the counter position. The only exception concerns situations in which the contesting party does not have sufficient information for substantiating the counter position because the allegation concerns the inner sphere of the other side.
66. In Norway, the parties decide the ambit of the dispute. The court may only rule on the claims that are made and within the scope of the claims for relief. It may only base its ruling on the factual grounds that have been invoked, Dispute Act (DA) Section 11-3. It is the duty of the parties to invoke the facts that based on the applicable substantive law are needed to produce the outcome requested. For instance, if the claimant sues for payment for goods, the claimant must invoke facts out of which the contract for the sale of goods, the amount to be paid and the lapse of the time limit for payment. This is usually done in writing in the statement of claim but can also be done later orally or in writing. Similarly, as a defence, the defendant could invoke facts based on which the sales contract is null and void, or that the duty to pay has not arisen because the goods were not delivered as agreed, or that the defendant has already paid, or similar facts.
67. In Slovenia, contesting facts needs to be specific. If the party is reasonably expected to have any knowledge of the facts asserted by the other party, it will need to give reasons for contesting facts, to provide its version). The rule is applied with a degree of flexibility and not strictly. Often an implied contesting is accepted. In addition, the extent of the burden to specify reasons for contesting facts also depends on how specific and reasoned the allegation was in the first place. The allegation that ‘all is contested unless specifically admitted’ has no effect in law.  
68. In Spain, there are qualifications to this principle of party submission whenever the lawmaker considers it important to seek the truth. For example, where the public interest is at stake (eg, family cases, consumer litigation), the State may have an interest to seek the truth. Thus, the law allows the court to introduce and consider evidence that, despite not having been explicitly alleged by the parties, may be found in the case file.
69. In Togo, the defendant is obligated to communicate in good time the factual grounds on which they base their claims, the evidence they produce, and the legal grounds they invoke, so that each party is able to organize its defence. On the merits during the pleadings, the questions the defendant raises must be relevant and related to the subject matter of the proceedings and must be asked in a moderate manner so as to observe the respect which the court deserved as well as the necessary courtesy towards the other party.

3.2        The Role of the Parties in the Introduction of Legal Grounds

70. Different legal systems may have different requirements concerning party responsibility for alleging the legal grounds for claims or defences. Generally, in the United States, parties, as masters of their pleadings, set forth their claims and defences at law and equity. Certain types of claims, such as compulsory counterclaims, must be asserted by defendants in an answer to the claimant’s case in chief (USFRCP 13(a)). The defendant’s failure to assert a compulsory counterclaim will result in a waiver of the defendant’s ability so subsequently pursue that claim. The doctrines of res judicata or estoppel also may function to bar subsequent litigation of a compulsory counter claim. Normally, the court plays no role in defining applicable claims and defences.
71. In Belgium because the whole case file is at the disposal of the judge, a judge may raise any issue and put it to the parties when the law does not prohibit the judge from doing so and parties have not expressly agreed to exclude the issue.
72. In Norway, while the principle of iura novit curia applies, the parties must specify the legal grounds for the claim, eg, damages for breach of contract, but they need not specify the legal norm that the claim arises from. The grounds bind the court: it cannot decide other claims than those that have been invoked. For instance, if a party has only invoked damages for economic losses but not for pain and suffering as well, then the court can only decide on economic damages.
73. In Spain, the parties must specify legal grounds sustaining their claims and defences (Art 399 LEC;  Art 405 LEC). The court must decide solely based on the legal grounds the parties assert (Art 218(1) LEC). The parties’ legal grounds bind the court; when deciding the merits, the court must do so within the parties’ asserted legal grounds and may not apply any legal ground that that at least one party has not asserted. The parties’ duty to provide and exhaust all available legal grounds do not apply to litigants in person. Litigants in person can limit themselves to assert the fundamental facts supporting their claims and defences and, thus, they are not required to state any legal ground, let alone to exhaust all the legal grounds available (Art 437(2) LEC).
74. In Slovenia the principle of iura novit curia applies. The parties are not obliged to state legal grounds for their claims and defences. It is of course valuable for the parties and their lawyers to engage in a serious legal research and analysis as only in this manner can they identify the material facts. Certain limits to the rule of iura novit curia are imposed by the constitutional right to be heard. If the court intends to apply the legal rule which neither of the parties invoked and could not be reasonably foreseeable for a diligent party, the court has an obligation to draw the parties’ attention to such rule and enable the parties to reflect.

3.3        The Powers of the Parties to Alter the Subject Matter of the Proceedings

75. In many legal systems, parties may alter or amend the subject matter of proceedings during the proceedings. Some legal systems, however, specify when the time at which the claims and defences in the litigation are fixed, and may not be amended or altered. In the United States, the procedural rules permit the liberal amendment of pleadings during the course of litigation, including up to and during trial (USFRCP 15(a), (b)). A special rule governs the amendment of pleadings to add new parties or claims after the statute of limitations have run on the parties’ claims or defences (USFRCP 15(c)).
76. In Spain, the law provides a time when the dispute’s subject matter is considered as determined or established, with no further possibilities of modification (mutatuo libelli). Once the litigation is determined, strict legal preclusions doctrines apply to subsequent attempts to relitigate claims and defences determined by the proceeding. This gives the parties certainty.  The defendant becomes aware of the exact claims that to contest, and the claimant is informed of the defences that must be responded to. The court can focus on the subject-matter of its judgment without needing to decide unexpected new issues (Art 412(1) LEC). However, the claimant may assert new claims as long as the defendant has not yet submitted the defence statement and the time limit to submit such a statement has not yet elapsed (Art 401 LEC). Numerous highly detailed provisions govern the introduction of new facts and legal contentions by either party, and the grounds for doing so (Art 265, 270, 286, 338, 412, 426, 433, 435 and 460 LEC).

3.4        The Role of the Parties in the Introduction of Evidence

77. In some legal systems, the parties have the responsibility to introduce evidence in support of their claims or defences. In the United States, the parties will adduce evidence in support of claims or defences through investigation conducted through the informal and formal rules of discovery (USFRCP 26 – 36). The parties’ introduction of evidentiary support of factual allegations is especially important during the summary judgment procedure, where the court will determine whether there are disputed fact questions that require resolution through a trial (USFRCP 56). Generally, courts in the United States do not conduct fact investigation.
78. In Brazil, the defendant must present all factual and legal allegations, presenting documental evidence and specifying the evidence the party intends to produce.
79. In Norway, the parties must introduce the evidence that supports the factual grounds that their claims and defences are based on. Although the court has a right to introduce new evidence, they do so only under exceptional circumstances, such as when it is very difficult for the parties to get access to the evidence or when the quality of the evidence could be diminished if the parties introduce it. An exception applies also for cases on compulsory care of minors and coercive measures in health and social services. In Norway, the parties must inform each other of important evidence if there is reason to believe that the other party is not aware of the information. The form of the information is not regulated. The rule has two purposes. One is to avoid unnecessary litigation: cases that would have been resolved outside the courts had both parties had access to all information. The other purpose is to produce a shift from a doctrine of the parties not having to provide evidence against themselves to the adoption of a common law-style duty of disclosure. The latter purpose has been rather unsuccessful in that it has not resulted in a culture change, and courts sanction failure to comply with the first purpose of the rule. Failure to comply falling under the latter justification is often not sanctioned, and when sanctioned, the court simply draws negative inferences. Simultaneously with the duty to inform the opposite party of evidence, rules on access to such evidence were enacted.^[7]
80. In Spain, the parties have the responsibility to introduce evidence. They are expected to conduct themselves with due diligence to comply with their burden of proving all the facts upon which their claims and defences are grounded (principio de aportación de parte).
81. This requires a claimant to conduct a thorough private investigation of all the available evidence during the pre-action stage. The defendant must engage in this private investigation within the time limit that she is given to file the statement of defence. The parties then submit all written and tangible evidence with their initial briefs.  At the pre-trial hearing, the parties are required to express their position on the evidence (Art 427 LEC). The submissions with the initial briefs do not suffice for the evidence to be considered formally offered by a party. The law requires that once the disputed points of fact and law have been clarified, every party makes a formal offer or proposición de prueba (proposal of evidence). If the action proceeds to trial, parties are expected to participate in taking of evidence at the trial. In their final arguments, every party is expected to elaborate on the evaluation of the evidence that has been admitted and taken before the court (Art 433(3) LEC).

3.5        The Role of the Court in Introducing New Evidence in Support of Factual Allegations

82. In some jurisdictions, courts may play an independent role in introducing evidence in support of allegations, but in other jurisdictions, this does not occur. For example, in the United States, courts rarely conduct fact investigations or introduce facts or evidence that have not been adduced by the parties. In extremely rare situations, judges have the power to appoint special masters to conduct investigations and to report to the judge (USFRCP 53). Judges also have the power to appoint their own expert witnesses, but again this power is used sparingly.
83. In Slovenia, the judge is bound by factual assertions and evidence the parties offer but has a right and a duty to stimulate the parties (with questions, hints and observations) to amend and clarify their assertions of facts. The judge also needs to warn the parties if they consider the evidence insufficient and warn them about the distribution of the burden of proof. The judge also needs to openly consult with the parties the legal viewpoints that the parties have neglected. By enabling the judge and the parties to define as soon as possible which issues are disputed ⎯ particularly which are relevant for adjudication ⎯ this permits the proceedings and trial to occur faster, more rationally, and economically for better access to justice. It enables the proceedings to quickly concentrate on the relevant points relevant which is extremely important for the rationalisation of the taking of evidence.
84. In Spain, the court may actively engage in the investigation and introduction of evidence only in exceptional circumstances (Art 216 LEC). This principle is linked to (1) the need to preserve the impartiality of the adjudicators (because allowing them to investigate the facts and the evidence of the case on their own motion will create an undue bias); (2) the expediency of saving public money (because it makes no sense to spend public money on investigating facts and evidence that the parties know better); and (3) the protection of the fundamental right to privacy. In cases where a public interest is at stake (eg, family cases, consumer litigation), the court may introduce and take into account elements of fact or evidence that, despite not having been explicitly alleged by the parties, may be found in the case file.
85. In Togo, the subject of the dispute is determined by the parties’ respective claims.  Therefore, the judge must decide on everything that is claimed and only on what is requested.  It is for each party to prove in accordance with the law the facts necessary to support their claim. But the court also has the power to order ex officio all legally admissible measures of instruction. If one party has evidence, the judge may, at the request of the other party, order it to be produced, on threat of a fine. Moreover, by virtue of the contradictory principle, the court is obliged to submit to the parties in advance any evidence or law on which it intends to base its decision so that they can make their observations.

3.6        The Law Finding Function 

86. Courts in different jurisdictions may play different roles in the law-finding function. In the United States, the judge determines the elements of claims and defences that the parties have asserted and will instruct the jury on the law. If the action is conducted solely by the judge, in a bench trial, the judge will adjudicate the dispute according to the judge’s understanding of the applicable law.

3.7        The Parties’ Powers to Early Termination of Proceedings Without Final Judgment

87. Consistent with the principle of party autonomy, parties have various means in different legal systems to voluntarily terminate or stay proceedings short of a resolution of the action and the application of res judicata principles. Examples of the ability to terminate an action include a claimant’s relinquishment of rights or a defendant’s acknowledgement of claims, settlement, withdrawal of claims, or the expiration of proceedings by the failure of the claimant to prosecute the litigation in a timely fashion.
88. In the United States, claimants may voluntarily dismiss their claims with or without a court order (USFRCP 41(a)). Parties may resolve their dispute through settlement, followed by the claimant voluntarily dismissing the claimant’s claims. A court may dismiss a lawsuit for lack of prosecution at the expiration of an applicable period (USFRCP 41(b)).
89. In Belgium, parties may terminate proceedings by agreement confirmed by the court, withdrawal of the case, or inaction an ex officio deletion of the docket.
90. In Brazil, parties may settle or voluntarily dismiss the case (waiver). The case may also terminate due to a summary judgment or a final decision on the merits.  
91. In Spain, claimants may terminate proceedings by various means. A claimant may end a proceeding by wilfully and explicitly relinquishing or waiving a substantive right for which the proceeding was initiated (renuncia) (Art 19(1) and 20(1) LEC; Art 6(2) CC). A defendant may end a proceeding by wilful, explicit acknowledgement of the claim, expressing the defendant’s will that the court renders a judgment upholding the claim. A court may deny a defendant’s acknowledgement if a statute prohibits it, it entails fraud, is contrary to general interest or public policy, or prejudices third parties’ interests (Art 19(1) and 21(1) LEC). In addition, parties may agree to an admission of facts and the court is bound to consider the admitted facts as true.  
92. In Spain, the parties also have the power to end a proceeding by a settlement; courts encourage parties to settle their disputes, especially during the pre-trial hearing (cf Art 414(1)(3), 415 and 428(2) LEC). The parties who settle may submit the settlement terms for judicial approval. The court shall approve the settlement terms unless the settlement is prohibited by statute, is contrary to general interest or to public policy, or prejudices the interests of third parties (Art 19(2) LEC).  Settlements have a res judicata effect (Art 1816 CC).
93. In Germany, the claimant can withdraw the claim unilaterally until the oral hearing, and, after that, with the defendant’s consent. The claimant also can terminate the proceedings by resigning their right which is the object of the claim. The defendant can terminate the proceedings by acknowledging the claim. The most important way of terminating the court proceedings is an amicable settlement. If such a settlement is added to the court records, it even constitutes an enforcement title.  
94. In Norway, parties may terminate proceedings by jointly withdrawing the case, and withdrawals are common. A litigation may be terminated by entering into an in-court settlement that will have the same status as a judgment. In addition, an action may be terminated by a party admitting the claim and the court ruling in the opposing party’s favour. A case may be terminated by a party’s absence, which results in a default judgment.
95. In Slovenia, the concept of party autonomy relates to the party’s powers to freely dispose of their claims and defences by voluntary withdrawal, acknowledgement of the claim, and court settlement.  The court is bound by the parties’ factual and evidentiary basis for their claims and the relief sought. Voluntary dismissal of the claim, acknowledgement (admission) of the claim and in-court settlement result in termination of litigation and produce a res iudicata effect, preventing a relitigation regarding the same claim. Apart from the voluntary dismissal of a claim there also is the possibility of the withdrawal of a claim. The withdrawal, however, does not have the effect of ne bis in idem. In order to protect the legitimate interests of the defendant, his or her consent is necessary for the latter to occur. The admission of a claim refers to the claim as a whole. This needs to be differentiated from the admission of facts. The admission of facts has binding effects; the court is obliged to consider the facts which were admitted to be established as true, thus making evidence superfluous. However, even if a defendant admits all facts, the court still has the duty to check whether the claim is founded in substantive law. A party’s (including the claimant’s) failure to appear at the main hearing does not result in any immediate sanctions terminating the proceedings. By not filing the defence plea the defendant can voluntarily achieve an early termination of the proceedings as the judgment in default shall be issued.
96. In Spain, a claimant may withdraw its claim without res judicata effect (desistimiento de la demanda). Because a defendant has an interest in having the dispute resolved and is not subject to relitigation, the court must ensure that the termination respects the defendant’s interests.  A proceeding may be terminated without res judicata due to the lack of any procedural activity during a period of two years, provided the inactivity is because of the parties’ actions or omissions (caducidad de la instancia) (Art 237, 238 and 240 LEC).
97. In Togo, the parties are free to terminate the proceedings before they are terminated by the effect of the judgment or by law (Art 34 CCP). This faculty can be used in several ways. The parties may in fact terminate the proceedings by amicable agreement or by the withdrawal of the claim or the renunciation of the claimant's rights which are the object of the proceedings. In the case of a withdrawal of the claim, the outcome of the proceedings may depend on the agreement of the defendant under certain conditions.

3.8        Stay of Proceedings 

98. Most jurisdictions have rules or practices that permit a court to stay proceedings upon request by the parties. In some cases, stays are automatic, but in other cases, a grant of a stay is subject to judicial discretion. By court order, a judge may stop or suspend a proceeding temporarily or indefinitely. Common instances where the court may grant a stay of proceedings include an interlocutory appeal of the judge’s order. In the United States, parties seeking a stay of proceedings on appeal must show that they (1) are likely to prevail on the merits of the appeal, (2) will suffer irreparable injury if the stay is denied, (3) other parties will not be substantially harmed, and (4) the public interest will be served by the court’s grant of a stay. In the United States, some types of stays are governed by federal rules (USFRCP 62).
99. In Spain, the parties may agree on a stay of proceedings. This agreement is binding on the court (Art 19(4) and 179(2) LEC). The court may refuse the stay based on a provision that requires the parties to abide by the rules of good faith. Courts may dismiss any stay requests that entail an abuse of rights or fraud (Art 247 LEC). The parties normally will use the stay to negotiate and reach an amicable settlement of the dispute. For proceedings to resume, at least one party must make such a request. If such a request is never made and proceedings are stayed for more than two years, the expiry of proceedings will occur.

3.9        The Powers of the Parties to Create Their Own Procedural Rules

100. Generally, parties have limited powers to create their own procedural rules. In most jurisdictions, the rulemaking function is vested in the judicial or legislative branches of government. In the United States, the procedural rulemaking function is a shared power between the federal judiciary and Congress. The judiciary has a statutory delegated power to create uniform rules of procedure for the federal courts (28 USC §§ 2071, 2072).
101. However, in some jurisdictions, parties have leeway to modify certain procedural requirements or rules, particularly relating to deadlines or the manner in which proceedings will be conducted. In many jurisdictions, parties may by agreement stipulate to the modification or agreement on procedural matters (USFRCP 29).
102. In Brazil, parties cannot choose the procedural rules but may request to adapt the rules to the case.  When the case may be solved by auto composition, the parties may stipulate changes in the procedure, but the judges shall control, ex officio or upon request, the validity of the agreements.
103. In Belgium, the framework provided by the Judicial Code is mandatory. However, the code leaves liberty to parties to determine the progress of the procedure, at least in the preparatory phase. Parties who are in agreement can determine to a large extent the progress of the procedure before the hearing. They can apply to extend procedural deadlines, they can decide on the number of conclusions to be exchanged and determine the day of the hearing. Only when parties disagree or do not ask for anything, will the judge decide and bind the parties, unless the parties apply together for a change of the judge’s timetable (Art 747, 748 and 750 JC). Parties can also apply jointly to have a completely written procedure (Art 755 JC). At a judge’s proposal, parties can agree to have the oral hearing replaced by an interactive debate between the judge and the parties (Art 756ter JC).
104. In Germany parties are, for example, allowed to exclude the third instance. Parties can ask the court to conduct written proceedings; the court is, however, not bound by the common request of the parties. The new international commercial courts, which have just been established, might give more room for party autonomy.  
105. In Norway, parties in theory do not have a right to choose the rules governing the proceedings, but in practice, this is not the case. Many rules are flexible and give the judge the authority to deviate from the rules after consultation with the parties. In addition, a judge is obliged to comply with parties’ joint requests unless weighty reasons suggest otherwise. Examples include deviation from the rules governing partly or fully written proceedings; mediation and settlement efforts where there is more leeway when both parties agree or request something; the joinder or severing cases; amendments by mutual agreement; remote hearings; appointment of experts; written instead of oral evidence; costs; and waiver right to appeal.  
106. In Slovenia, the concept of party autonomy does not embrace the parties’ powers to frame the course of procedure. According to the principle of legality, the court is bound by the course of procedure set in the law, unless explicitly provided that the parties may diverge from it (for example, a jurisdictional agreement). If the parties want to make their own procedure, they may wish to choose to go to arbitration.  The Supreme Court has, for example, stated that the parties’ agreement that the claimant will withdraw its claim, has no immediate procedural effect. Courts also will not honour parties’ agreements for limiting the number of witnesses or excluding witnesses.
107. In Togo, litigants do not have the right to determine their own procedural rules, because the rules of procedure are of public order.

Abbreviations and Acronyms        

Abbreviations which are not contained in this list are based on the Cardiff index of legal abbreviations. 

ACHPR	African Court on Human and Peoples’ Rights
ADR	Alternative dispute resolution
ALI	American Law Institute
Art	Article/Articles
BGH	Bundesgerichtshof (Federal Court of Justice) [Germany]
BID	Banco Interamericano de Desarrollo (Inter-American Development Bank)
CC	Código Civil (Civil Code) (Spain)
CEPEJ	Conseil de l'Europe Commission européenne pour l’efficacité de la justice (Council of Europe European Commission for the efficiency of justice)
cf	confer (compare)
ch	chapter
CIDH	Corte Interamericana de Derechos Humanos (Interamerican Court of Human Rights)
CJEU	Court of Justice of the European Union
CPA	Civil Procedure Act
DA	The Dispute Act (Norway)
EBRD	European Bank for Reconstruction and Development
edn	edition/editions
ed	editor/editors
etc	et cetera
ECtHR	European Court of Human Rights
ECLI	European Case Law Identifier
eg	exempli gratia (for example)
ELI	European Law Institute
EU	European Union
EUR	Euro
ff	following
fn	footnote (external, ie, in other chapters or in citations)
GVG	Gerichtsverfassungsgesetz
ibid	ibidem (in the same place)
ICT	Information and Communication Technologies
ie	id est (that is)
IIDP	Instituto Iberoamericano de Derecho Procesal (Iberoamerican Institute of Procedural Law)
JC	Judicial Code
JPY	Japanese Yen
LAJG	Ley de Asistencia Jurídica Gratuita (Free Legal Aid Act) (Spain)
LEC	Ley de Enjuiciamiento Civil
n	footnote (internal, ie, within the same chapter)
no	number/numbers
para	paragraph/paragraphs
PPO	Public Prosecution Office (Spain)
pt	part
Sec	Section/Sections
SCC	Supreme Court Canada
SME	small and medium-sized enterprise
supp	supplement/supplements
trans/tr	translated, translation/translator
UK	United Kingdom
UNIDROIT	Institut international pour l'unification du droit privé (International Institute for the Unification of Private Law)
UP	University Press
US / USA	United States of America
USC	United States Code (US)
USD	United States Dollar
USFRCP	Federal Rules of Civil Procedure (US)
v	versus
vol	volume/volumes
WB	World Bank
ZKM	Zeitschrift für Konfliktmanagement

Legislation

International/Supranational

African Charter on Human and Peoples’ Rights 1981

Agreement on the European Economic Area, OJ No L 1, 3.1.1994, p. 3 (EU)

American Convention on Human Rights 1969

Arab Charter on Human Rights 2004

Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ L 339, 21.12.2007, p. 3-41 (EU)

Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commerical Matters 1965 (HCCH)

Council Directive on unfair contract terms in consumer contracts, 93/13/EEC of 5 April 1993 (EU)

EU Charter of Fundamental Rights 2000

European Convention on Human Rights 1950

International Covenant on Civil and Political Rights 1966

Proposal for a Directive of the European Parliament and of the Council on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (“Strategic lawsuits against public participation”), COM(2022) 177 final (EU)

Regulation establishing a European Small Claims Procedure, 861/2007 of 11 July 2007 (EU)

Regulation on cooperation between the courts of the Member States in the taking of civil or commercial matters, 2020/1783 of 25 November 2020 (EU)

Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), 1215/2012 of 12 December 2012 (EU)

Statute of the Arab Court of Human Rights 2014

Universal Declaration of Human Rights 1948

National

Act on the Expediting of Trials 2003 (Japan)

Act on Land and Building Leases 1991 (Japan)

Belgian Judicial Code (see Gerechtelijk Wetboek)

Burgerlijk Wetboek, Dutch Civil Code (the Netherlands)

Civil Provisional Remedies Act 1989 (Japan)

Code de l’organisation judiciaire (French Courts Constitution Act) (France)

Code de procédure civile (Code of Civil Procedure) (France)

Code of Judicial Procedure (Finland)

Código Civil Español (Spanish Civil Code) (Spain)

Código de Processo Civil Brasileiro 2015 (Brazilian Code of Civil Procedure) (Brazil)

Constitución Española 1978 (The Spanish Constitution) (Spain)

Constituição da República Federativa do Brasil (The Constitution of the Federative Republic of Brazil) (Brazil)

De Belgische Grondwet, La Constitution Belge (The Belgian Constitution) (Belgium)

Decrét n° 75-1123 du 5 deciembre 1975 instituant un nouveau code de procédure civile 1975 (Decree establishing a new code of civil procedure) (France)

Decrét n° 2010-1165 du 1er octobre 2010 relatif á la conciliation et á la procedure orale en matière civile, commerciale et sociale 2010 (Decree dealing with conciliation and oral proceedings in civil, commercial and social matters) (France)

Dutch Code of Civil Procedure (Netherlands)

Federal Rules of Civil Procedure (USA)

Gerechtelijk Wetboek, Code Judiciaire (Belgian Judicial Code) (Belgium)

Gerichtsverfassungsgesetz (Courts Constitution Act) (Germany)

Grundgesetz für die Bundesrepublik Deutschland (Constitution of the Federal Republic of Germany) (Germany)

Iran’s Code of Civil Procedure (Iran)

Japanese Code of Civil Procedure 1996 (Japan)

Kongeriket Norges Grunnlov (The Constitution of the Kingdom of Norway) (Norway)

Ley de Asistencia Jurídica Gratuita 1996 (Free Legal Aid Act) (Spain)

Ley de Enjuiciamiento Civil 2000 (Spanish Code of Civil Procedure) (Spain)

Ley de Patentes 2015 (Law on Patents) (Spain)

Ley de Secretos Empresariales 2019 (Law on Trade Secrets) (Spain)

Ley de Seguridad Privada 2014 (Law on Private Security) (Spain)

Ley Orgánica del Poder Judicial (Organic Law on the Judiciary) (Spain)

Ley reguladora del uso de las tecnologias de la información y la comunicación en la Administración de Justicia 2011 (Law regulating the use of information and communication technologies in the Administration of Justice) (Spain)

Loi n° 2007-1787 du 20 décembre 2007 relative á la simplification du droit (1) 2007 (Law relating to the simplification of law) (France)

Loi n° 2020-002 du 7 janvier 2020 portant modification de la loi n° 2018-028 du 10 decembre 2018 instituant les juridictions commerciales en republique togolaise 2020 (Law on amending the law on instituting commercial restrictions) (Togo)

Lov om mekling og rettergang I sivile tvister (tvisteloven) 2005 (Act relating to the mediation and procedure in civil disputes (The Dispute Act)) (Norway)

Lov om rettsgebyr (rettsgebyrloven) 1982 (Court Fees Act) (Norway)

Northern Territory of Australia Supreme Court Rules 1987 (Australia)

Patent Act 1959 (Japan)

Personal Status Litigation Act 2003 (Japan)

Real Decreto por el que aprueba el Reglamento de Seguridad Privada 1994 (Law which approves the regulation of private security) (Spain)

Rechtsanwaltsvergütungsgesetz (Germany – RVG – Law on the lawyers’ fees)

Rules of Court 2021 (Singapore)

Slovenian Civil Procedure Act 1999 (Slovenia)

The Act on Alternative Dispute Resolution in Judicial Matters 2009 (Slovenia)

The Civil Procedure Act (Serbia)

The Civil Procedure Rules 1998 (England)

The Constitution of Afghanistan 2004 (Afghanistan)

The Constitution of Japan (Japan)

The Constitution of the Federal Republic of Nigeria 1999 (Nigeria)

The Constitution of the Islamic Republic of Iran 1979 (Iran)

The Constitution of the Kingdom of the Netherlands (Netherlands)

The Constitution of the Republic of Ghana 1992 (Ghana)

The Constitution of the Republic of Slovenia (Slovenia)

The Constitution of the Socialist Republic of Vietnam (Vietnam)

The Constitution of the United States of America (USA)

The Swedish Code of Judicial Procedure 1942 (Sweden)

Togo Code de procédure civile 2021 (Code of Civil Procedure) (Togo)

Unfair Competition Prevention Act 1993 (Japan)

United States Code (USA)

Zivilprozessordnung (Austrian Code of Civil Procedure) (Austria)

Zivilprozessordnung (German Code of Civil Procedure) (Germany)

Zivilprozessordnung (Swiss Code of Civil Procedure) (Switzerland)

Model Rules and Guides

Compendium of “best practices” on time management of judicial proceedings 2006 (CEPEJ)

CEPEJ(2018)20R EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE (CEPEJ) REVISED SATURN GUIDELINES FOR JUDICIAL TIME MANAGEMENT (3rd revision) as adopted at the 31th plenary meeting of the CEPEJ Strasbourg, 3 and 4 December 2018.

CEPEJ(2006)13 EUROPEAN COMMISSION FOR THE EFFICIENCY OF JUSTICE (CEPEJ) Compendium of ‘best practices’ on time management of judicial proceedings (https://rm.coe.int/16807473ab).

Effective Management of Arbitration – A Guide for In-House Counsel and Other Party Representatives (ICC Commission on Arbitration and ADR)

Guía para la celebración de actuaciones judiciales con medios telemáticos (Guide for conducting telematic judicial proceedings) (Spain)

Managing Arbitrations and Procedural Orders 2015 (Chartered Institute of Arbitrators)

Model European Rules of Civil Procedure 2020 (ELI/UNIDROIT)

Notes on Organizing Arbitral Proceedings 2016 (UNCITRAL)

Practice Direction 32 - Evidence (England)

Practice Direction HC97 Written Submissions and Issue Papers 2020 (Ireland)

Principles of Transnational Civil Procedure 2005 (ALI/UNIDROIT)

Report on Techniques for Controlling Time and Costs in Arbitration (ICC Arbitration Commission)

Revised Saturn Guidelines for Judicial Time Management 2018 (CEPEJ)

Cases

International/Supranational

Gothaer Allgemeine Versicherung AG and Others v Samskip GmbH, Case C-3456/12 (CJEU), Judgment 15 November 2012 [ECLI:EU:C:2012:719].

Karel de Grote – Hogeschool Katholieke Hogeschool Antwerpen VZW v Susan Romy Jozef Kuijpers, Case C-147/16 (CJEU), Judgment 17 May 2018 [ECLI:EU:C:2018:320].

National

Hadmor Productions Ltd v Hamilton (House of Lords, UK), [1983] 1 AC 191

Chambers v. NASCO, Inc (Supreme Court, United States), Judgment 6 June 1991 [501 U.S. 32 (1991)].

Lujan v. Defenders of Wildlife (Supreme Court, United States), Judgment 12 June 1992 [504 U.S. 555 (1992)].

Case n° 96-44-672 (Cour de cassation, chambre sociale, France), Judgment 17 July 1997 [Bulletin 1997 V n° 281, p. 204].

Case 2710-2001 (Constitutional Court, Spain), Judgment 182/2003 of 20 October 2003 [ECLI:ES:TC:2003:182].

Bell Atlantic Corp. v. Twombley (Supreme Court, United States), Judgment 21 May 2007 [550 U.S. 544 (2007)].

Ashcroft v. Iqbal (Supreme Court, United States), Judgment 18 May 2009 [556 U.S. 662 (2009)].

Slovenian Constitutional Court No. Up-2443/08 of 7 October 2009.

Case U-I-164/09 (Constitutional Court, Slovenia), Judgment 4 February 2010 [ECLI:SI:USRS:2010:U.I.164.09].

Case U-I-200/09 (Constitutional Court, Slovenia), Judgment 20 May 2010 [ECLI: SI:USRS:2010:U.I.200.09].

Constitutional Court of Slovenia, Judgment Up-603/13, 16 February 2016.

Cour de cassation, Belgium, Judgment 23 December 2016, published in Rechtskundig Weekblad 2016-17, 1090.

Young Crystal Ltd and Others v Hang Seng Bank Ltd (Court of First Instance, Hong Kong), Judgment 30 May 2022 [2022 HKCFI 1589].

Bibliography

Adrian L, ‘The Role of Court-Connected Mediation and Judicial Settlement Efforts in the Preparatory Stage’ in L Ervo and A Nylund (ed), Current Trends in Preparatory Proceedings: A Comparative Study of Nordic and Former Communist Countries (Springer 2016)

Adrian L / Bager S / Petersen C S, ‘Perspektiver på forligsmægling‘ (2015) 3 Juristen 98

Ainuson K, ‘Role of Public and Media in Civil Court Proceedings in Ghana’ (2018) KAS African Law Study 57

Alberstein M and Zimerman N, ‘Judicial Conflict Resolution in Italy, Israel and England and Wales: A Comparative Analysis of the Regulation of Judges' Settlement Activities’ in Moscati M F / Palmer M / Roberts M (ed), Comparative Dispute Resolution (Edward Elgar Publishing 2020)

Anders M and Gehle B, Zivilprozessordnung mit GVG und anderen Nebengesetzen (80th ed, Beck 2022)

Andrews N, ‘A New Civil Procedure Code for England: Party-Control Going, Going, Gone’ (2000) 19 Civil Justice Quarterly 19

––, ‘Case Management and Procedural Discipline in England & Wales: Fundamentals of an Essential New Technique’ in van Rhee C H and Fu Y (ed), Civil Litigation in China and Europe Essays on the Role of the Judge and the Parties (Springer 2014)

––, Andrews on Civil Processes – Court Proceedings, Arbitration & Mediation (2nd edn, Intersentia 2019)

Archerd E R, ‘Evaluating Mediation's Future’ (2020) 31 Journal of Dispute Resolution 51

Backer I L, Norsk sivilprosess (2nd edn, Universitetsforlaget Oslo 2020)

Backer I L, ‘Goals of Civil Justice in Norway: Readiness for a Pragmatic Reform’ in Uzelac A, Goals of Civil Justice and Civil Procedure in Contemporary Judicial Systems (Springer 2014) 105

Bang-Pedersen U R / Christensen L H / Petersen C S, Den civile retspleje (5th ed, Hans Reitzels Forlag 2020)

Bersier Ladavac N / Bezemek C / Schauer F, Common Law – Civil Law. The Great Divide? (Springer 2022)

Braun J, Lehrbuch des Zivilprozessrechts (Siebeck 2014)

Cadiet L, Droit judiciaire prive (3rd edn, Litec 2000)

Chainais C / Ferrand F / Maier L / Guinchard S, Procédure civile (36th edn, Dalloz 2022)

Chang Y and Klerman D, ‘Settlement Around the World: Settlement Rates in the Largest Economies’ (2022) 14(1) Journal of Legal Analysis 80

Chang-qing S, ‘From Judgment to Settlement: The Impact of ADR on Judicial Functions from a Compartive Perspective’ in Sourdin T and Zariski A, The Multi-tasking Judge. Comparative Judicial Dispute Resolution, (Thomson Reuters 2013)

Chase O G, ‘American “Exceptionalism” and Comparative Procedure’ (2002) 50(2) American Journal of Comparative Law 277

Cipriani F, ‘Nel centenario del regolamento di Klein (Il proceso civile tra libertà e autorità)’ (1995) Rivista di diritto processuale 969

Damaška M, The Faces of Justice and State Authority. A Comparative Approach to State Authority (Yale University Press 1986)

de la Oliva Santos A, Curso de Derecho Procesal Civil I. Parte General (4th ed, Editorial Universitaria Ramón Areces 2019)

––, Curso de Derecho Procesal Civil II. Parte Especial (3rd ed, Editorial Universitaria Ramón Areces 2016)

––, El papel de juez en el proceso civil (Civitas 2012)

––, Comentarios a la Ley de Enjuiciamiento Civil (Civitas 2001)

Deason E E, ‘Beyond “Managerial Judges”: Appropriate Roles in Settlement’ (2017) 78 Ohio State Law Journal 73

Diez-Picazo G, ‘Procedural Reform in Spain’ in Trocker N / Varano V (ed), The Reforms of Civil Procedure in Comparative Perspective (Giappichelli editore 2005)

Dodson S, ‘Comparative convergences in pleading standards’ (2010) 158 University of Pennsylvania Law Review 411

Eliot T S, ‘Tradition and the Individual Talent. Part I’, The Egoist, September 1919

Englebert J and Taton X (ed), Droit du procès civil, Vol. I (Anthemis 2019)

Ervo L, ‘Swedish-Finnish Preparatory Proceedings: Filtering and Process Techniques’ in L Ervo and A Nylund (ed), Current Trends in Preparatory Proceedings: A Comparative Study of Nordic and Former Communist Countries (Springer 2016)

Fairén Guillén V, ‘Notas sobre el principio de concentración’ in Estudios de Derecho Procesal (Editorial Revista de Derecho Privado 1955)

Ferrand F, ‘Procedural Reform in France’ in Trocker V and Varano V (ed), The Reforms of Civil Procedure in Comparative Perspective (Giappichelli editore 2005)

Fiss O M, ‘Against Settlement’ (1983) 93 Yale Law Journal 1073

Fredriksen H H and Strandberg M, ‘Impact of the ELI/UNIDROIT European Model Rules for Civil Procedure on national law – the case of Norway’ (2023) 3 Oslo Law Review 152

Galič A, ‘The Preparatory Stage of Civil Proceedings in Slovenia, the Czech Republic and Slovakia: Halfway There Yet?’ in L Ervo and A Nylund (ed), Current Trends in Preparatory Proceedings: A Comparative Study of Nordic and Former Communist Countries (Springer 2016)

––, Civil Procedure Slovenia (Wolters Kluwer 2020)

––, ‘(In)compatibility of procedural preclusions with the goals of civil justice: an ongoing debate in Slovenia‘ in Uzelac A, Goals of Civil Justice and Civil Procedure in Contemporary Judicial Systems (Springer 2014) 221

Gascón Inchausti F, ‘Challenges for orality in times of remote hearings: efficiency, immediacy and public proceedings’ (2022) 2(1) International Journal of Procedural Law 8

Genn H, Judging Civil Justice (Cambridge University Press 2010)

Gensler S S, ‘Judicial Case Management: Caught in the Crossfire’ (2010) Duke Law Journal 669

Geoffrey S, An Introduction to Comparative Law Theory and Method (Bloomsbury 2014)

Gilles P, Prozessrechtsvergleichung / Comparative Procedure Law (Gieseking 1996)

Glässer U and Schroeter K (ed), Gerichtliche Mediation. Grundsatzfragen, Etablierungserfahrungen und Zukunftsperspektiven (Nomos 2011)

Glunz B, Psychologische Effekte beim gerichtlichen Einsatz von Videotechnik (Siebeck 2012)

Gottwald P, ‘Comparative Civil Procedure’ (2005) 22 Ritsumeikan Law Review 23

Greger R, ‘§ 139’ in Althammer C , Zöller Zivilprozessordnung (34th ed, Otto Schmidt 2022)

Hjort M A, ‘Sources of Inspiration of Nordic Procedural Law: Choices and Objectives of the Legal Reforms’ in Ervo L / Letto-Vanamo P / Nylund A (ed), Rethinking Nordic Courts (Springer 2021)

Huber S, ‘Prozessrechtsvergleichung heute’ in Hess B (ed), Europäisches Insolvenzrecht – Grundsätzliche Fragen der Prozessrechtsvergleichung (Gieseking 2019)

––, ‘Mündlichkeit und Unmittelbarkeit’ (2022) ZZP 183

––, ‘Rule 47’ in Inchausti Gascón F / Smith V / Stadler A (ed.), ELI/UNIDROIT Model European Rules of Civil Procedure – a commentary (Edward Elgar 2023)

––, ‘Rule 49’ in Inchausti Gascón F / Smith V / Stadler A (ed.), ELI/UNIDROIT Model European Rules of Civil Procedure – a commentary (Edward Elgar 2023)

Humberto T J, Curso de Processo Civil, vol. I (64th ed, Forense 2023)

Jauernig M and Hess B, Zivilprozessrecht (30th ed, Beck 2011)

Keet M / Heavin H / Lande J, Litigation Interest and Risk Assessment: Help Your Clients Make Good Litigation Decisions (American Bar Association 2020)

Krans B / Nylund A (ed), Civil Courts Coping with Covid-19 (eleven international publishing 2021 – open access)

Laenens J / Thiriar P / Vanlerberghe B / Scheers D / Rutten S, Handboek gerechtelijk recht (5th ed, Intersentia 2020)

Lahav A, In praise of litigation (Oxford University Press 2017) 

Letto-Vanamo P, ‘Judicial Dispute Resolution and its Many Alternatives: The Nordic Experience’ in Zekoll J / Bälz M / Amelung I, Formalisation and Flexibilisation in Dispute Resolution (Brill Nijhoff 2014)

Marcus R, ‘Putting American Procedural Exceptionalism into a Globalized Context’ (2005) 53(3) American Journal of Comparative Law 709

Mendes A G de Castro and Mendes  de Castro C P, ‘O Acesso à Justiça (Digital) na Justiça Contemporânea’ (2023) 24(2) Revista Eletrônica de Direito Processual 1

Mendes A G de Castro and de Castro C P, ‘Direito Processual Comparado, Teoria Geral do Processo e Precedentes’ (2022) 23 Revista Eletrônica de Direito Processual 49

Mendes A G de Castro and Paes de Castro C, ‘Direito Processual Comparado, Teoria Geral do Processo e Precedentes’ (2022) 23 Revista Eletrônica de Direito Processual 49

Mendes A G de Castro, ‘O Direito Processual Comparado no Mundo Contemporâneo’ (2020) 21 Revista Eletrônica de Direito Processual 1

Merryman J H and Pérez-Perdomo R, The Civil Law Tradition. An Introduction to the Legal Systems of Europe and Latin America (Stanford University Press 2018)

Mougenot D, Principes de droit judiciaire (2nd ed, Larcier 2020)

Nylund A and Cabral P (ed), ‘Contractualisation of Civil Litigation’ (Intersentia 2023)

Nylund A, ‘Alternative Dispute Resolution, Justice and Accountability in Norwegian Civil Justice’ in Hoevenaars J / Kas B / Kramer X / Themeli E (ed), Frontier in Civil Justice: Privatisation, Monetisation and Digitisation (Edward Elgar Publishing 2022)

––, ‘Case Management in a Comparative Perspective: Regulation, principles and practice’ (2019) 292 Revista do processo – RePro 377

––, ‘Civil Procedure in Norway’, International Encyclopedia of Laws/Civil Procedure (2nd edn, Wolter Kluwer 2022)

––, ‘Institutional Aspects of the Nordic Justice Systems: Striving for Consolidation and Settlements’ in L Ervo, P Letto-Vanamo and A Nylund (ed), Rethinking Nordic Courts (Springer 2021)

––, ‘Oral Proceedings during the Preparatory Stage’ (2022) 12 International Journal of Procedural Law 57

––, ‘The Structure of Civil Proceedings – Convergence Through the Main Hearing Model’ Civil Procedure Review (2018) 2(9) 13

––, ‘Introduction to the Preparatory Stage of Civil Proceeding’ in Ervo L and Nylund A (ed) Current Trends in Preparatory Proceedings (Springer 2016)

––, ‘Institutional aspects of Nordic courts’ in L Ervo / Letto-Vanamo P / Nylund A (ed), Rethinking Nordic Courts (Springer 2021)

Ota S, ‘Reform of Civil Procedure in Japan‘ (2001) 49 American Journal of Comparative Law 561

Perez Ragone A, ‘An Approach and General Overview to Framing the Structure of the Court System and Case Management - General Report’ (2017) International Association of Procedural Law Meeting

Picardi N, ‘Le riforme processuali e social di Franz Klein’ (2012) 2(16) Historia e ius 8

Resnik J, ‘Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights’ (2014) 124 Yale Law Journal 2804

––, ‘Mediating Preferences: Litigant Preferences for Process and Judicial Preferences for Settlement’ (2002) Journal of Dispute Resolution 155

––, ‘Managerial Judges’ (1982) 96 Harvard Law Review 374

Roberge J-F, ‘The Future of Judicial Dispute Resolution: A Judge who Facilitates Participatory Justice’ in Sourdin T and Zariski A, The Multi-tasking Judge. Comparative Judicial Dispute Resolution, (Thomson Reuters 2013)

Roberge J-F, ‘Sense of Access to Justice as a Framework for Civil Procedure Justice Reform: An Empirical Assessment of Judicial Settlement Conferences in Quebec (Canada)’ (2016) 17(2) Cardozo Journal of Conflict Resolution 341

Rosenberg L / Schwab K / Gottwald P, Zivilprozessrecht (18th edition, Beck 2018)

Rueb A S / Gras E / Hendrikse R G / Jongbloed A W, Compendium van het Burgerlijk procesrecht (Wolters Kluwer 2021)

Salazar Á M, ‘Evolución histórica de la oralidad y la escritura en el proceso civil español y ecuatoriano’ (2017) 6 Ius Humani. Revista de Derecho 73

Skoghøy J E A, Tvisteløsning (4th ed, Universitetsforlaget 2022)

Sourdin T, ‘Facilitative Judging: Science, Sense and Sensibility’ in Sourdin T and Zariski A, The Multi-tasking Judge. Comparative Judicial Dispute Resolution, (Thomson Reuters 2013)

Steenberghe H M M, ‘Regie op schikking: de actieve rechter in een bemiddelende rol‘ (2022) 1 Tijdschrift voor de Procespraktijk 12

Strandberg M, ‘Standards of Evidence in Scandinavia’ in Tichý L Standard of Proof in Europe (Siebeck 2019)

Strandberg M and Nylund A, ‘Utsikt til innsikt: En komparativ tilnærming til reform av reglene om anke til lagmannsretten over dommer i sivile saker’ (2020) Lov og Rett 59(2) 84

Stürner R, ‘The Principles of Transnational Procedure. An Introduction to Their Basic Conceptions’ (2015) RabelsZ 224

Taniguchi Y, ‘The Development of and Adversary System in Japanese Civil Procedure’ in Foote D H (ed), Law in Japan: A Turning Point (University of Washington Press 2007) 80

––, ‘The 1996 Code of Civil Procedure in Japan: A Procedure for the Coming Century’ (1997) 45 American Journal of Comparative Law 767

Trocker V and Varano V, ‘Concluding Remarks’ in Trocker V and Varano V (ed), The Reforms of Civil Procedure in Comparative Perspective (Giappichelli editore 2005)

Vallines García E, La preclusión en el proceso civil (Civitas 2004),

van Hoecke M, ‘Deep-level Comparative Law’ in van Hoecke M (ed), Epistemology and Methodology of Comparative Law (Hart 2004)

van Rhee R, 'European traditions in civil procedure', 1999 Nederlandse Jurisprudentie 269

van Rhee R, ‘Judicial Case Management and Loyal Cooperation: Towards Harmonized Rules of European Civil Procedure’ in Aarli R and Sanders A (ed), Courts in Evolving Societies: A Sino-European Dialogue between Judges and Academics, (Brill Nijhoff 2021)

Verkerk R, 'Powers of the Judge: The Netherlands' in R van Rhee (ed), European Traditions in Civil Procedure (Intersentia 2005), 281

Walker J and Chase O, Common Law, Civil Law and the Future Categories (Lexis Nexis 2010)

Wall A, ‘Austria & Germany: A History of Successful Reform’ in van Rhee C H and Fu Y (ed), Civil Litigation in China and Europe Essays on the Role of the Judge and the Parties (Springer 2014)

Wallermann Ghavanini A, ‘Procedural Autonomy in Sweden: Is Materielle Prozessleitung the Answer?’ in Krans B and Nylund A (ed), Procedural Autonomy Across Europe (Intersentia 2020)

Wallimann M, Der Unmittelbarkeitsgrundsatz im Zivilprozess (Siebeck 2016)

Welsh N A, ‘Magistrate Judges, Settlement, and Procedural Justice’ (2016) 16 Nevada Law Journal 1020

Willmann P, Die Konzentrationsmaxime (Duncker & Humblot 2004)

Wissler R L, ‘Court-Connected Settlement Procedures: Mediation and Judicial Settlement Conferences’ (2011) 26 Ohio State Journal on Dispute Resolution 271.

Woolf H, Access to Justice. Final Report, to the Lord Chancellor on the Civil Justice System in England and Wales (Lord Chancellors Dept 1996)

Zariski A, ‘Judicial dispute resolution in Canada: Towards accessible dispute resolution’ (2018) 35 Windsor Yearbook of Access to Justice 433

Zariski A, ‘Understanding Judges’ Responses to Judicial Dispute Resolution: A Framework for Comparison’ in Sourdin T and Zariski A, The Multi-tasking Judge. Comparative Judicial Dispute Resolution, (Thomson Reuters 2013)

---