Comparative Procedural Law and Justice

This chapter analyses the multifaceted notion of what constitutes a court within the context of civil justice systems. It emphasizes the importance of understanding common concepts for comparative legal research. The term 'court' is dissected through seven layers of meaning: as a place (forum), a community (cohors), a state power (imperium), an adjudicator (iudex or tribunal), an independent legal authority (auctoritas), a public service (officium), and as equilibrium (iustitia or aequitas). The spatial aspect ('forum') reflects the traditional association of courts with specific locations. The community aspect ('cohors') underscores the court as a gathering place for community interaction and justice delivery. As state power ('imperium'), courts represent the judicial arm of the government, enforcing laws and maintaining order. The adjudicative role ('iudex' or 'tribunal') highlights the core function of courts in resolving disputes by applying legal rules to factual circumstances. Courts as independent legal authorities ('auctoritas') stress their role in interpreting and applying the law without external influence. The notion of courts as public services ('officium') emphasizes their duty to serve society by providing accessible and efficient justice. Finally, the concept of courts as equilibrium ('iustitia' or 'aequitas') ties them to the ideal of delivering fair and just outcomes, balancing the interests of all parties involved. Throughout this chapter, historical and cultural evolution of the ‘court’ concept is explored, illustrating how this is being manifested in contemporary legal systems and addressing the challenges and transformations courts face in maintaining these multifaceted roles.

This chapter explores the critical issue of cost efficiency in civil justice systems, focusing on how litigation costs influence access to justice. It begins by mapping the various costs involved in civil litigation, including court fees, evidence-taking expenses, and lawyer fees, revealing how difficult it is to quantify and compare these costs across different jurisdictions. However civil justice reforms all around the world have been aimed almost exclusively at enhancing the cost efficiency of justice systems. Cost-efficient reforms, such as simplified procedures and alternative dispute resolution mechanisms, are examined as methods to make justice more accessible and affordable. A key theme is the concept of proportionality, which is increasingly adopted as a guiding principle for civil justice systems. Proportionality ensures that litigation costs are commensurate with the value and complexity of the case, thus fostering a more equitable system.

This chapter analyzes how and why countries constitutionalize allocations of judicial authority. Focusing on key illustrative countries while providing supplemental commentary on others, it examines vertical allocations establishing court hierarchies and horizontal allocations based on geography, federalism, subject matter, party status, and relief sought.

The chapter makes a descriptive contribution by documenting the different choices countries have made in constitutionalizing aspects of judicial allocation. It also makes an analytical contribution by positing that the choice to constitutionalize judicial allocation is influenced by the country’s commitment to separation of powers and regional autonomy; the country's size, legal variability, and demographics; and the country’s history, tradition, and values.

A primary conclusion is that while countries differ widely in the details of their constitutional judicial allocations, they exhibit broad similarities at higher levels of generality. The analysis reveals insights about judicial systems globally and provides a framework for understanding similarities and differences in constitutional approaches to allocating judicial authority.

The Covid-19 pandemic has triggered a broadening of remote or virtual hearings worldwide that has been completely disruptive, as it has served to prove how it is possible that the core of proceedings can be fully developed remotely, without the need for the parties and the court to meet face to face and in the same place. Their generalisation in a post-pandemic setting has prompted discussion and concern regarding the quality of judicial immediacy, of evidence taking and, thus, of the reconstruction of the facts. More importantly, remote hearings are breaking the taboo of the face-to-face oral trial as a key element of a good administration of justice and are paving the way towards a total dematerialisation of proceedings through their complete digitalisation. This is the challenge facing judicial systems for the future. Talking about online courts does not only mean a change in the way court proceedings are handled; moreover, it has the potential to bring about major changes in the way justice and the role of the courts are conceived. The very recent emergence of (generative) artificial intelligence, with increasingly developed applications in the legal field, is contributing to this, forcing a reconsideration of the role of lawyers, but also of the way in which judicial decisions are to be reached.

This chapter examines the impact of new technologies, particularly generative artificial intelligence, on the legal professions. The potential risk of the "Uberization" of the legal profession is analyzed, exploring how AI may simplify the law and threaten the independence of lawyers, raising concerns about the unauthorized practice of law.The chapter continues with a critical examination of whether AI could replace lawyers, focusing on the effects of technological evolution on legal ethics. The chapter also addresses whether emerging technologies could lead to "predictive" justice. raising concerns about data quality and privacy implications. Finally, the challenges that new technologies pose to traditional procedural models are also analyzed, concluding with reflections on the effectiveness and efficiency of judicial proceedings in the context of AI.

Collective litigation is a broad concept that encompasses two categories: class actions, in the American representative model, and tools of aggregative litigation. These procedural tools arose as a result of the needs felt in the last century, the first of which being the creation of the so-called fundamental rights, of second and third generation. These rights comprise, for instance, the right to health services, to housing, to the preservation of historical and cultural heritage, to a healthy environment, etc. These rights are not efficiently protected by the classic individual suit. Another important change in society that gave rise to the need for a more efficient tool to protect the individual's rights was the emergence of mass societies and, consequently, situations in which the same right could belong to a large number of people as a result of industrial mass production. On the one hand, to conceive a brand-new procedural tool that would adequately solve disputes involving these fundamental rights, or rights typical of mass societies, implied abandoning some classic civil procedural concepts that were designed to meet the needs of individual rights, protected by individual suits. This is probably one of the reasons why it was, and still is, not easy for some jurisdictions to adopt class actions in the American style. In Europe, there is a great deal of resistance to adopting class actions in the American representative model. On the other hand, aggregate litigation tools do not necessarily lead to the abandonment of the classic concepts which were conceived when Civil Procedure was an essentially private phenomenon. Class actions imply a different approach to standing and to res judicata, and raise concerns about constitutional guarantees, for example, the right to be heard. This does not happen when it comes to aggregate litigation tools, the control of which is not in the hands of a representative, but in those of the parties and their lawyers. Those who are affected by the decision have the opportunity to participate in person, and although there are several models of aggregate litigation tools, there are usually several or even innumerable claimants that have filed their own lawsuits which, at a certain point, are joined around a common point of law or of fact. It should be noted that some jurisdictions adopt both kinds of tools.

The future of collective litigation, taking into consideration, mainly but not only, the Brazilian and Latin American situation, lies in its capacity to change the world. It is one of the characteristics that, in my opinion, will be developed in a more visible way in the near future. It has increasingly been seen as a powerful tool of strategic litigation. Litigation is used in a strategic way when the claimant aims to achieve more than just a favourable award by filing the suit. Even if, in fact, an individual lawsuit could also play this role, there is a greater probability that this role will more efficiently be played by tools of collective litigation, mainly class actions. Strategic litigation involves climate change, fundamental rights, consumer rights, in sum, those rights which are, not exclusively but more efficiently, protected by class actions. Strategic litigation can be either structural or regulatory. In both cases, the outcome of the suit goes far beyond a favourable award, having as a result the creation of a new structure to solve a serious social problem, eg, the overcrowding of prisons, or lack of efficiency in health care. In these two examples, class actions may have structural and regulatory effects, respectively. Very frequently, activists and NGOs use class actions in a strategic way but, in some countries, unions, and political parties also do so. The results that have been achieved all around the world, for example, in Argentina, India and Brazil, indicate that this is the short- and medium-term future of collective litigation.

Legal systems around the world have supplemented the ordinary judicial procedures by introducing special forms of procedure, including summary procedures that are abbreviated, simplified, and condensed, yet lead to final judgments on the merits. This chapter surveys three categories of summary procedures, namely (1) small claims procedures, (2) early final judgment procedures, and (3) other expedited trial procedures outside the small claims setting, on the basis of comparative legal study focusing on Brazilian, Canadian, Dutch, French, Spanish, Taiwanese, UK, US laws, and ESCP Regulation as well as ELI/UNIDROIT Model Rules. It points out the features that distinguish summary procedures from ordinary procedures, followed by noting the normative objectives and underlying policies of summary procedures, without losing sight of their practical relevance and potential sociological or economic impact in each legal system. Last but not least, this chapter examines potential procedural fairness concerns raised by the abbreviated, simplified, and compressed characteristics of summary procedures, especially small claims procedures.

This chapter describes and analyses, from a comparative perspective, the status of consumer protection proceedings as a specific subject within procedural law, driven by the need to address the power imbalance between consumers and businesses and the objective of ensuring effective enforcement of consumer rights. It covers both individual and collective litigation, the role of private and public enforcement and the development of consumer ADR. Across legal systems worldwide, there are unique procedural rules designed to protect consumers. These include territorial jurisdiction favoring the consumer’s domicile, shifts in the burden of proof, and exemptions from court costs for consumers. Additionally, courts exercise their discretionary powers to achieve the same goal, as seen in the ex officio application of consumer rights. Furthermore, It is shown that the procedural regime of consumer law differs from that of other areas of law regarding collective redress, enforcement by public authorities and ADR.

This chapter examines the evolution and key characteristics of consensual dispute resolution methods and their integration into modern judicial systems across different jurisdictions, with a focus on negotiation, mediation, conciliation, including court-annexed alternative dispute resolution (ADR) services and emerging hybrid forms such as collaborative law and dispute boards. The study examines key issues such as confidentiality, enforceability of agreements, and the role of legal professionals in various ADR processes, and the trend toward ‘adequate’ rather than merely ‘alternative’ methods. This chapter also presents a comprehensive examination of online dispute resolution (ODR), analyzing its historical development, current landscape, and future trajectory within the broader context of civil justice systems. The study evaluates the benefits and challenges associated with ODR implementation, and further explores the emergence of online dispute prevention (ODP) as a paradigm shift in conflict management, utilizing big data and artificial intelligence to preemptively address sources of disputes. The chapter projects the continued growth of hybrid models combining online and offline elements, increased integration of ODR within court systems, and further development of AI-driven dispute prevention and resolution mechanisms. The text emphasizes the need for robust legal and ethical safeguards to ensure that technological advancements in dispute resolution align with fundamental principles of fair justice and due process.