1        Introduction

1. This part investigates the structure of civil proceedings, the stages that proceedings consist of, using the functional comparative method.^[1] Using this approach, four stages can be identified: the pre-action stage, initiation stage, the ‘mid-stage’, and the closure stage. Each of these serves specific functions that are shared by some, most or all of the countries studied.
2. The functions of the pre-filing stage are inter alia to encourage the parties to resolve their case without resorting to court proceedings, and to gather the information and evidence necessary to pursue their claims and evaluate whether their claims are tenable. During the initiation stage, the claimant files the action, and the court investigates whether the statement of claim meets pleading requirements, the court has jurisdiction, and the parties have standing and so forth. The initial phase also includes the integration of the defendant into the process, so that he, she or they can present their defence, practice or carry out acts foreseen within the initial phase of the procedure. The third stage is more variegated in a comparative perspective: it contains all the steps that are taken to put the court in a position to render its ruling. The fourth, and final, stage is the closure of the proceedings and the final judgment.
3. The comparative analysis is based, in the main, on the functional comparative method, except for the middle part of proceedings, for which a multi-method approach is employed. This chapters draws primarily on the insights gathered through brief national reports on the jurisdictions represented by the authors of this Segment, ie, Belgium, Brazil, Germany, Norway, Slovenia, Spain, Togo, the US, Iran and Japan.

2        Pre-action Stage

Linda S. Mullenix and Anna Nylund 

2.1        Introduction

4. Prior to initiating a civil action or filing a lawsuit, many jurisdictions impose some requirements on potential parties to a civil litigation, by statute, rule, or customary law. These may include duties on the parties or their representatives to conduct a reasonable inquiry into the factual or legal basis for any claims or defences to an action and the evidence in support of their claims; a duty to approach opposing parties with an attempt to settle the dispute amicably prior to filing the litigation; or if settlement overtures fail, then serving a notice of claims on the opposing party setting forth the nature of the claimant’s claims, and the factual and legal basis for those claims. In some jurisdictions, the notice informs the opposing party of the basis for the lawsuit as well as the remedies that the claimant is seeking through litigation.
5. Inspired by reforms of English civil procedure in the 1990s, the pre-action stage has emerged as a distinct stage of Norwegian civil proceedings that consists of several elements.^[2] This stage stems from a conceptual turn towards regarding the relationship between the court and the parties as a triad rather than a set of dyadic relationships, which calls for active cooperation between the parties, and the parties and the court. According to this view, prior to filing for court proceedings, the parties must not only investigate the factual and legal basis for their claims and evidence supporting them, but also cooperate to clarify misunderstandings, identify common ground and core disputed factual and legal issues. The parties should also carefully consider the risks and costs associated with litigation and consider the interests at stake, such as whether the case could help to prevent future disputes, both those that could potentially arise between the parties and those between third parties. The parties actively exchanging information and discussing their claims and the evidence supporting them in the spirit of cooperation would then result in the narrowing of the ambit of the dispute to the core disputed legal and factual issues.
6. The Norwegian pre-action stage also echoes the idea of courts as a last resort, one of the pillars of the English Woolf-reforms.^[3] In the spirit of cooperation, the parties should seek an amicable solution through negotiation, mediation, or any other process they find appropriate, and only when these fail to produce full settlement, should the parties be allowed to commence litigation. Settlement is interlinked to active exchange of information and the identification of the core disputed issues: one could be the by-product of the other. While negotiation or mediation might not result in full settlement, it can result in narrowing the scope of the dispute, and thus also in the court resolving only those aspects of the dispute that the parties were unable to resolve on their own. Conversely, identification of common ground, core disputed issues and the interests at stake, including litigation costs, could result in the parties settling the dispute or parts of it.^[4]
7. The rationale for cooperation was also to expedite court proceedings and to reduce costs associated with them.^[5] If the parties have framed the dispute based on the information they have gathered and received from and discussed with the opposite party, the ambit of the dispute is likely to be deliberately limited. Hence, case management would be relatively easy, and the date of the main hearing could be determined early and set within less than six months from the commencement of the proceedings. Because the ambit of the dispute would be narrow, the proceedings could be limited to the issues selected by the parties, and consequently faster and cheaper than if the scope of the dispute is broader or even unclear.
8. The intended aims of the pre-action stage have not been met in Norway, at least not regarding narrowing of the dispute.^[6] One reason is that the aims related to narrowing the scope of the dispute are not regulated – only the prospective claimant is required to notify the prospective defendant of the claims, ground for claims and main evidence supporting those claims, while the defendant has no duty to act, and the concept of cooperation is not translated into sufficiently clear duties. Hence, only the claimant can be sanctioned, and sanctions are limited to the failure to notify the defendant. There is no mechanism producing cooperation or to produce the parties to narrow the ambit of the dispute. Moreover, cooperation appears to be founded on the belief that the parties are able to adequately clarify common ground and core disputed issues without outside assistance. If this presumption is erroneous at least for a considerable part of disputants, then the expectations to the benefits of the pre-action stage would be unrealistic.
9. The dysfunctions of the preparatory stage in Norway have repercussions for the pre-action stage. Because case management is limited foremost to procedural aspects of the case and issues related to evidence, then the parties are not sufficiently incentivised to narrow the scope of the dispute until shortly before the main hearing. Their failure to cooperate and to narrow the dispute will have no direct implications for the court proceedings, and the only consequences are indirect, in the form of lengthy main hearings and costly production of evidence. Failures in the front end are invisible due to the malfunction of the preparatory stage.
10. Parties generally fulfil their obligations regarding seeking an amicable settlement, partly because court proceedings are very costly, partly the reason seems to be a culture of finding pragmatic solutions, and possibly also because a failure to negotiate is sanctioned.
11. In other countries, the pre-action duties are more fluid. In Slovenia and in Belgium, for example, the pre-action phase of litigation is not organized. There are no specific obligations of the parties before starting an action. However, in Belgium the Civil Code prescribes that a creditor should formally give a notice of default before damages can be obtained for a failure to comply with contractual obligations. (Art 1139 j. 114 Civil Code).

2.2        Duty of Reasonable Inquiry Prior to Filing Lawsuit

2.2.1        The Standards of Reasonable Inquiry

12. Most legal systems eschew the filing of frivolous or abusive lawsuits and seek to assure truthfulness in pleading requests for legal redress. The duty of reasonable inquiry prior to filing a civil litigation may be set forth by statute, rule, or customary law. Different jurisdictions may impose a reasonable inquiry standard, or the equivalent of a reasonable inquiry standard, based either on subjective or objective standards, or some combination.
13. In Spain, all civil plaintiffs are expected to carry out by themselves a thorough private investigation of the facts and the evidence of the case they purport to bring to court. In the same manner, defendants are also expected to care about their own investigation. There are not special rules governing private investigations. Normally, these are conducted by lawyers essentially questioning their clients about the facts and the available evidence and sometimes by sending a private request to hand over information to the opposing party or to a third party. If a private detective is hired, then some special rules apply. Law 5/2014 and Royal Decree 2364/1994. Law firms rarely have their own private detectives or investigators. In Norway, under DA Sec 5-2 claimants are expected to investigate the legal and factual merits of their claim although the civil procedure act does not explicitly mandate parties to do so. The rules take for granted that civil litigation is a last resort and will only be carried out after a careful assessment of the merits of the case and the risks associated with litigation.
14. In contrast, the expectations of the pre-action duty to make inquiries are identified in detail in the United States. When an attorney or an unrepresented party presents the court with a pleading, written motion, or other paper, the attorney must certify that to the best of the person’s knowledge, information, and belief formed after an inquiry reasonable under the circumstances that the pleading meets certain requirements, USFRCP 11(b). Specifically, an attorney or unrepresented party must certify to the court that

1. a pleading is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.
2. the claims, defences, or other legal contentions are warranted by existing law or by a non-frivolous argument for extending, modifying, or reversing existing law or for establishing new law. 
3. the factual contentions asserted have evidentiary support or, if specifically, so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
4. the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information. 

2.2.2        Sanctions for Failure to Comply with Reasonable Inquiry Standard

15. In the US, if, after notice and a reasonable opportunity to respond, the court determines that any attorney, law firm, or party has violated the standards for conducting a pre-filing reasonable inquiry, the court may impose an appropriate sanction on whomever is responsible for violation of the rule governing truthfulness in pleadings. Absent exceptional circumstances, a law firm may be held jointly responsible for a violation committed by a party, associate, or employee (USFRCP 11(c)(1)).
16. Motion for sanctions; safe harbour provision. A motion for sanctions must be made separately from any other motions and must describe the specific conduct that allegedly has violated the rules governing pleadings. The motion must be served on the party who is the alleged violator of the pleading rules. The motion should not be presented to the court if the opposing party withdraws or appropriately corrects the challenged paper, claim, defence, contention, or denial within 21 days after the service of the motion challenging the filing (USFRCP 11(c)(2)). 
17. On the court’s own initiative. A court may order an attorney, law firm, or party to show cause why the conduct specifically described in the order has not violated the rule relating to proper pleading (USFRCP 11(c)(3)). 
18. Nature of the sanctions. A sanction imposed under the pleading rules must be limited to what suffices to deter repetition of the conduct or comparable conduct by other similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into the court; or an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the pleading violation.
19. In many other countries, the parties will not be formally sanctioned for failure to do proper inquiries. However, they will risk the court ordering them to pay the costs of the opposite party, as is the case in Brazil^[7] and Norway^[8].

2.3        Notice of Claims

2.3.1        Purpose of the Demand Letter

20. Prior to initiating a lawsuit or filing an official pleading in an action, in some jurisdictions an attorney may send the opposing party a ‘demand letter.’ The purpose of the demand letter is to inform the opposing party of a legal grievance and to solicit the possibility of an amicable resolution of the dispute without recourse to formal litigation. This is a conventional practice that is not governed by rules or statutes. Demand letters are the usual practice in civil litigation in the United States and are also used in some other jurisdictions for the same purposes.
21. In Norway, a party intending to bring a claim must send a notice of claim to the other party, who in turn must reply. There are no formal requirements for the notice and reply and the notice does not initiate court proceedings. This is mainly a way to put pressure on the other party in negotiations and a way to exchange information in order for the parties to identify the ambit (core) of the dispute before initiating court proceedings, which must be done by filing a statement of claim at court.^[9]

2.3.2        Content of the Demand Letter

22. In the US, a demand letter typically sets forth the main facts of the legal dispute in a concise fashion, in the order in which the events occurred. The demand letter also will set out applicable principles of law relevant to the resolution of the dispute. The letter encourages the other party to make a businesslike analysis of the dispute and to evaluate the time and expense of litigating a dispute, the risks of prevailing or losing a defence, and whether the opposing party wishes to have the dispute publicly decided. The demand letter will state exactly what the party is seeking from the opposing party and may indicate how the party has arrived at that demand or remedies. The demand letter will give the opposing party a specific date by which to respond to the demand letter, which is typically seven to ten days. The demand letter will inform the other party that the writer will promptly pursue legal remedies if the other party does not meet the requester’s demands. The demand letter may offer the other party the opportunity to amicably settle the dispute without recourse to judicial proceedings.

2.4        Duty to Attempt to Settle Amicably

23. Some jurisdictions, by statute, rule, or customary law, impose a duty on prospective parties to attempt to amicably resolve their dispute prior to initiating formal proceedings in a court of law. The United States has no formal requirement that parties seek to amicably resolve their dispute prior to filing a litigation. However, in the United States, one purpose of sending a prospective opposing party a demand letter is to suggest that the parties discuss amicable ways of resolving their dispute without resorting to formal litigation. If the potential parties decide to avoid formal litigation, they may propose and accept an array of alternative dispute resolution methods, such as mediation, conciliation, arbitration, or referral to an ombudsman.
24. In Belgium, lawyers are encouraged to inform their clients of the possibility of going to alternative dispute resolution auspices first (Art 444, 2nd para JC). There is, however, no general obligation to go to ADR first. In addition, there are instances of mandatory court-annexed mediation before an admissible action can be brought (Art 1345 JC concerning disputes regarding land lease and a few other issues in the agricultural and horticultural business), or before a case will be heard by a court (Art 734 JC concerning a number of labour disputes).  
25. In Slovenia (except in some narrowly defined specific cases, such as claims in tort against the State), there is no mandatory pre-action mediation of obligation to formally communicate with the adversary. Pre-action voluntary mediation is possible, but it has not yet started to flourish. The Slovenian Civil Procedure Act was amended in 2002 to take into account court-annexed and other mediation schemes. Courts are empowered to stay civil proceedings for up to three months if parties voluntarily agree to try an ADR procedure, with or without court-annexed mandate.
26. In Spain, a rule on costs encourages claimants to formally seek an amicable solution with the defendant before filing a statement of claim with the court (Art 395 (1) LEC). In Norway, it is mandatory that the parties attempt to reach an amicable settlement through negotiation, mediation, or other ADR means. The failure to do so is sanctioned through costs (DA Sec 5-4). Negotiation is the primary method of dispute resolution.

2.5        Duty to Cooperate

27. 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’.
28. Article 5 of the Brazilian Civil Procedure Code states that ‘All who, in any way, participate in the proceedings shall act in good faith’.  
29. In Slovenia there is no explicit rule on the duty of the parties to cooperate, but the principle is promoted by the Constitutional Court.^[10] It is the mutual responsibility of the parties and the court to ensure both the substantive quality of adjudication as well as the trial within a reasonable time. The duty to act in good faith is explicitly set out in the introductory basic principles of the Private Law Code as well as in the Lawyers’ Code of Ethics. In practice, however, adherence to professional standards is unsatisfactorily low. Not rarely attorneys engage in dilatory tactics, incomplete and misleading citation of case law, filing of motions which are known to be manifestly ill-founded, raising frivolous defences. Such unprofessional conduct is rarely sanctioned by the court or by internal proceedings within the bar.
30. 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 not 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).
31. In Norway, there is a duty to cooperate, but it is not enforced.^[11] 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 this is not enforced either. 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).
32. 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.
33. 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.
34. In Spain, during the pre-action stage and prior to the filing of a statement of a claim, a claimant may apply to the court for an order of preliminary measures (diligencias preliminaries; Art 256-263 LEC). These orders are aimed at obtaining information or evidence from the future defendant or a third party. It is required that the information is really necessary to prepare for the future proceedings, ie, clearly indispensable to identify the defendant or the essential elements of the action. Spanish civil courts generally are very restrictive when deciding on applications for preliminary measures. There are special and more flexible rules on preliminary measures that apply to commercial cases on anti-trust law, business secrets, patents, trademarks, and unfair competition (Art 17-18 Law 1.2019; 123-126 Lawe24/2015; 283 bis(e) LEC).

3        Initial Stage of Proceedings

Linda Mullenix

3.1        Introduction to Pre-trial Proceedings

35. Most legal systems attempt to encourage parties to settle their disputes amicably before invoking the time-consuming and expensive legal apparatus of litigation. To this end, legal systems, including the United States, employ various judicial management techniques to encourage parties to resolve their differences. Even the United States, based largely in an adversarial system, has moved towards a judicially managed regime of pre-trial procedures intended either to encourage settlement or, if not, to streamline the scope of a dispute. The philosophical underpinning of the US Federal Rules of Civil Procedure is to administer the rules ‘to ensure the just, speedy, and inexpensive’ resolution of any civil action (USFRCP 1). To this end, judges in many systems encourage a collaborative approach to dispute resolution. As indicated above, there is a general duty of parties to attempt to amicably settle their differences after the commencement of a proceeding.
36. Consequently, the various stages of pre-trial procedure, from the initiation of a dispute through to trial, are intended to encourage settlement or dismissal of the litigation and to avoid trial of the issues. Hence, for example, pleading requirements in many countries typically are intended to narrow the scope of litigation or to dismiss untenable claims for relief at an early stage of proceedings. This function is counterbalanced by the concern that no dispute should be dismissed for technical pleading errors and that the object of the law is to decide cases on the merits, rather than on technical procedural mistakes.
37. Another important function of pre-trial proceedings is to apprise the parties of the fact of the litigation, or if they are a defendant, that they are being sued and are required to answer in a timely fashion. In the United States, such notice and the opportunity to be heard in a proceeding is a function of due process of law. All countries similarly recognize an obligation to provide notice to parties and the judicial tribunal concurrently with the commencement of legal proceedings. The notice and service of process requirements for most countries tend to be highly detailed in the specifications for providing adequate legal notice.

3.2        Pleading Requirements

38. As indicated in § 1.1.1 the United States rules delineate, in some detail, the formal requirements for submitting a pleading, motion, or other paper to the court for the pleading to comport with the requirements of the reasonable inquiry standard. Courts may sanction parties or their representatives who fail to comply with the reasonable inquiry standards for pleading.
39. Unlike the formal pleading requirements in the US, most civil law countries have no necessity of pleading claims: the judge may infer or imply legal claims that arise from the allegations. Other countries have various pleading requirements: some have no particular form but may specify particular content requirements. Moreover, in most European countries there is no pre-stage requirement that parties or their attorneys conduct an investigation.

3.2.1        Types of Pleadings

3.2.1.1        Denomination of Pleadings

40. If parties commence a civil action in court, they may pursue their case by filing pleadings, but these pleadings may be denominated by different names – although the pleading will serve the same or similar function in different jurisdictions. For example, in the US, the claimant’s initial pleading is denominated as the ‘complaint’ and the defendant’s responsive pleading is denominated as an ‘answer’. In Brazil, the demand begins with a so-called ‘initial petition’ and the defendant's response is called a ‘contestation.’ In Spain, a proceeding begins with a written statement of a claim filed by the claimant with the competent court. The statement of the complaint is known as the ‘demand’. Similarly in Norway, the claimant’s initial pleading is denominated as a ‘statement of the case’. In both Spain and Norway, the defendant’s responsive pleading is denominated as the ‘statement of the defence’. In Togo, the pleading initiating an action is denominated as a petition. In Slovenia the claimant’s and the defendant’s initial pleadings are named ‘claim’ and ‘answer to the claim’ respectively.

3.2.1.2        Limitations on Pleadings

41. Under the old English common law system, pleading was a complex undertaking, involving the counsellor to allege the proper form of action using an appropriate writ. This system of pleading permitted litigants multiple responsive rounds of pleadings including: a claimant’s declaration; a defendant’s demurral to the claimant’s declaration; dilatory pleas; pre-emptory pleas, confession and avoidance; pleas in replication; rejoinders; surrejoinder; rebutter; and surrebutter, etc. The complicated system of common law pleading resulted in extended delay, impeding the ability of a tribunal to adjudicate the merits of a case. A mistake in pleading at any successive round of pleading could result in the dismissal of an action. In addition, the common law pleading rules forbade the joinder of multiple claims or multiple parties in a civil action. In the mid-nineteenth century – recognizing the defects of the common law pleading system – accomplished a reform of the pleading rules.

3.2.1.3        Types of Modern Party Pleadings

42. The nineteenth century pleading reform accomplished in England was replicated in the United States at the same time. Under its modern pleading regime, the US federal courts do not permit unlimited rounds of pleading and recognize only three basic types of pleadings: these are a claimant’s complaint; a defendant’s answer to a claimant’s complaint; and a claimant’s reply to any counterclaim that a defendant may assert in their answer to a complaint (USFRCP 7(a)). If the defendant does not assert a counterclaim, then the claimant has no right to issue a reply, unless the court orders on (USFRCP 7(a)(7)).

3.2.1.4        Pleadings Involving Third-Party Practice

43. Litigants involved in third-party practice have a right to issue pleadings or responsive pleadings. Thus, a party may file an answer to a counterclaim that is designated as a counterclaim; an answer to a crossclaim; a third-party complaint; and an answer to a third-party complaint (USFRCP 7(a)(3)-(6)).

3.2.1.5        Mistaken Designation

44. If a party mistakenly designates a defence as a counterclaim, or a counterclaim as a defence, the court must, if justice requires, treat the pleading as though it was properly designated, and may impose terms for doing so (USFRCP 8(c)(2)).

3.2.1.6        Merger of Law and Equity

45. Some jurisdictions have different systems for actions at law or actions in equity; in which case pleadings will follow different rules and standards for alleging and defending claims at law or in equity. Other systems, such as the US, have merged their law and equity systems into a unified system of justice (USFRCP 2; ‘There is one form of action – the civil action’). Consequently, in the US a pleader may set forth claims or defences at law or in equity in the same pleading.

3.2.2        Content of Pleadings

46. Most jurisdictions have rules or statutes that specify or provide guidance for the content and scope of pleadings. Judicial decisions have, in some jurisdictions, provided additional guidance concerning the application of pleading rules and standards.

3.2.2.1        Pleading a Claim for Relief

47. In the US, the civil rules generally prescribe a system of notice pleading, as opposed to a system of fact pleading. Thus, the purpose of a claimant’s pleading is to give notice to the defendant of the lawsuit. A claimant is not expected to have every fact relating to the claims and defences at the time of filing a lawsuit; there is an expectation that facts underlying the claims may subsequently be discovered through the US system of discovery devices. Thus, a claimant’s pleading just needs to set forth a claim for relief containing a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support; a short and plain statement of the claim showing that the pleader is entitled to relief; and a demand for the relief sought, which may include relief in the alternative or different types of relief (USFRCP 8(a); USFRCP 8(d)). Each allegation must be simple, concise, and direct. No technical form is required (USFRCP 8(d)). All pleadings must be construed so as to do justice (USFRCP 8(e)).
48. In Brazil, an action is commenced with the filing of a complaint. There is no specific form for a complaint, but the complaint shall inform the court to which it is addressed; the qualifications of the claimant and defendant; the factual and legal grounds of the claim; the claim and its specifications; the value of the legal claim; the evidence with which the claimant intends to prove the truth of the alleged facts; and the claimant’s option to have, or not, a conciliation or mediation hearing.
49. In Slovenia, an action is commenced with the filing of a claim. There are no specific forms for pleading and no mandatory structure for pleadings. The claim must contain a specific prayer for relief (for example, if it is a monetary claim, a specific sum of money must be claimed) as well as the facts and evidence upon which it is based. The system of fact pleading applies and thus the claimant is expected to provide a rather extensive reasoning of its case (although it will still be allowed to adduce further evidence and assert furth facts without restrictions before the first session of the main hearing). The rule of iura novit curia applies (the court knows the law) and so it is not mandatory to refer to legal rules in the claim.
50. In Spain, the civil courts generally follow a fact pleading system (as opposed to notice pleading). The pleading standard is not fully conceived as a requirement that must be met for the initiation of proceedings. The claimant’s statement of the claim (demand) must identify the competent court, the parties with their relevant contact details, the specific relief or remedy sought (the so-called ‘petition’), and the factual and legal grounds supporting the entitlement to such relief (both grounds forming the so-called cause of action or causa petendi) (Art 399 LEC). The failure to comply with the rules on the content of the statement of a claim or the submission of written or inanimate and tangible evidence do not necessarily make the defective statement of claim inadmissible. Only when it is impossible to identify the party or the essential elements of a cause of action, or the judicial relief sought will the claimant be required to complete the statement of the claim. If no completion occurs, the case will be dismissed on the basis of a procedural obstacle known as ‘defective statement of claim’. Art 404(2)(2), interpreted in light of Art 424. Art 403(1) LEC provides that ‘statements of a claim shall be inadmissible only in cases and for the reasons expressly provided for in the law’. Generally, the laws aim to reduce the power of the court to declare a statement of claim inadmissible; the principled approach is that it is preferable that proceedings be initiated and that both parties be heard on the evidence presented).
51. Similar to Spain and many other jurisdictions, Germany follows a fact pleading regime. A proceeding is initiated with a claim. On the basis of the claim, the judge has to decide how to proceed during the interim phase of proceedings, which may entail either an exchange of written submissions or an oral hearing. In Togo, a proceeding is initiated with a petition and on the day set by the petition, the parties appear in person or by a representative. If proof of facts requires investigative measures, these are ordered by the court, at the joint request of the parties, or even ex officio.
52. In Norway, there are no specific forms of pleadings. The law provides only for a mandatory list if contents. An action is commenced when the claimant files a statement of the claim, and the court investigates whether the statement fulfils all the requirements. The claimant is required to give a brief explanation of the factual and legal background of the case. The description of claims, prayers for relief and the factual and legal grounds must be stated in detail enough to enable the defendant to file a statement of defence (to rebut). The claimant’s argumentation shall not go further than necessary to satisfy these requirements. The court will determine the ambit of the dispute but will not describe all the details of the case. A tentative list of evidence must be provided (not the evidence itself, only a list of evidence, documents, and key witnesses). The parties must inform one another of important evidence if there is reason to believe that the other party is not aware of the evidence. In small claims disputes where the value is less than NOK 250,000 (approximately EUR 25,000) the initial stage of proceedings is exclusively written, and courts must conduct a final hearing within three months of filing of the case.
53. In Togo, the Code of Civil Procedure does not require a particular form. However, in practice the respective submissions of the parties observe certain formalism in the interests of the parties themselves and of the courts in order to facilitate a good understanding of the claims of the parties to the proceedings. A proceeding is initiated by way of a bailiff’s writ or by claim, or petition (individual or joint). In the document instituting the proceedings it is not required that the claimant present all the pleas in law that he intends to invoke. Article 67 only states that the claimant shall make a summary statement of the claim and the pleas in law relied upon. The subject matter of the dispute is determined by the respective claims of the parties. The claims are determined by the document initiating the proceedings and by the observations or submissions in defence. The legal system provides for a procedure of mise en état (pre-trial phase) during the preparatory phase of the pleading hearing in all matters. A case is in mise en état when, having been investigated, it is ready to come to a hearing to be pleaded. The pre-trial procedure consists of various hearings known as pre-trial hearings at which the parties will file their written submissions and exchange exhibits. Once the parties have filed all their written submissions and have had the opportunity to put forward their arguments and reply to the arguments of the opposing party, the court ends pre-trial proceedings.

3.2.2.2        The Plausibility Pleading Standard

54. By judicial interpretation of USFRCP 8, the US Supreme Court has determined that a claimant’s complaint is sufficient to avoid dismissal if the allegations satisfy a test of ‘plausibility’. The plausible pleading standard requires that a claim be more than possibly true but does not need to rise to the level of being probably true. The standard not only specifies that a compliant must be plausible on its face but must allege sufficient facts that nudge a claim from conceivable to plausible.^[12]

3.2.3        Form of Pleadings and Signature Requirements

55. Various technical rules may govern the structure of pleadings including captions, designation of parties, paragraphs, separate statements, adoption by reference of allegations, and exhibits (USFRCP 10). Every pleading, written motion, or other paper must be signed by at least one attorney of record in the attorney’s name – or by a party personally if the party is unrepresented. The paper must state the signer’s address, email address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney’s or the party’s attention (USFRCP 11(a)).        
56. In Slovenia claims are filed in paper form and an original signature must be provided. No e-filing is possible in ordinary civil proceedings. A court fee must be paid (upon the court’s order), otherwise the claim is deemed to be withdrawn.
57. In Spain there is no specific provision on the structure of the written statement nor any mandatory form. In practice, however, most claimants use the traditional structure that is frequently used for any written brief submitted the court. According to traditional structure, the statement will be dived into two parts. The first part will include an introductory section, a section devoted to facts, and a section dedicated to legal grounds. The second part will specify the exact mandate of the judgment that the claimant is expecting from the court. The claimant is to submit all written and inanimate tangible evidence with the written statement of the claim. This includes documents, CDS, pen-drive, reports of party-appointed experts.

3.2.4        Electronic Filing of Pleadings and Service of Process

58. In the US, the Federal Rules permit the electronic filing of pleadings, motions, and papers. A person represented by an attorney must file electronically, unless nonelectronic filing is allowed by the court for good cause or is allowed or required by a local rule (USFRCP 5 (d)(3)). An unrepresented party may file electronically only if allowed by court order or by local rule and may be required to file electronically only by court order or by a local rule that includes reasonable exceptions (USFRCP 5(d)(3)(B)(i)-(ii)). Service of process may be accomplished by sending it to a registered user by filing it with the court’s electronic filing system or by sending it by other electronic means that the person has consented to in writing. In either event, the service is complete upon filing or sending, but it is not effective if the filer or sender learns that it did not reach the person to be served (USFRCP 5(b)(2)(e)). A paper filed electronically is a written paper for all purposes under the civil procedure rules (USFRCP 5(d)(3)(D)).
59. In Spain, the statement of a claim will be filed with a competent court online via a technology program the court is using. If there is evidence that the pleader cannot submit online, the pleader is required on the day after submission of the statement online to submit to the court physical items of evidence. Three days after the submission of a statement online the pleader must supply the court with a hard copy of the statement of claim as well as a physical copy of all items of evidence that have previously been submitted online. If there are multiple defendants, the claimant is required to bring one hard copy of the entire dossier for each defendant. If the claimant is not represented by an advocate or a procurator, there is no requirement to file the statement of the claim and the relevant items of evidence online. The claimant may then appear before the court and file the dossier in its physical form.
60. In Norway, attorneys are required to use electronic filing and case management systems. Pro se litigants are allowed to use the electronic system but are not mandated to do so. In Germany electronic means for the receipt of claims and written submissions as well as for service of documents is well established. An electronic file and case management system is being set up. There is a fully automated procedure for dealing with undisputed claims; for example, a creditor gets an enforcement title without the intervention of any human being.
61. In Togo, electronic means are only allowed in commercial courts. No electronic filing is available in regular private law cases in Slovenia. Exceptions apply in bankruptcy as well as in certain types of enforcement and payment order procedures.
62. In Brazil, the electronic practice of procedural acts is not only permitted but has also been encouraged in the last decade. The result is that, in 2022, only 1.6% of the total number of new claims were physically filed. In the Federal, Electoral, and Labour Courts the rate of new cases with digital records reaches 100%. And the records of old processes also underwent digitalization. In 2022, the percentage of electronic records of all existing judicial proceedings was 98.4%. There is a series of rules regulating electronic procedural acts in the Brazilian Civil Procedure Code and specific statutes. In urban centres and in Brazilian Courts, practically all records and procedural acts are electronic, with there not even being any traces of physical records.^[13]

3.3        Service of Process

3.3.1        General Considerations        

63. In most jurisdictions a civil action is initiated or commenced with the filing of a complaint or petition with a court of appropriate jurisdiction and venue. In most jurisdictions the burden is on the claimant to file the action with the court and to give notice to the defendant that the defendant is being sued. Different jurisdictions have differing rules concerning commencement of an action and the duty to serve process on the defendant to inform the defendant of the action and the need to defend. Service of process rules and requirements in many jurisdictions are highly detailed concerning the appropriate means for providing notice to different types of persons, business associations, and governmental entities and agencies. In the United States, providing notice to the defendant of the commencement of a civil lawsuit is a due process right mandated by the US Constitution (Art V, Amend. XIV US Constitution).

3.3.2        Commencement of an Action and Summons

64. In the United States, and action is commenced by filing a complaint with the court (USFRCP 3).
65. On or after filing a complaint, the claimant may present the clerk of the court with a summons for signature and a seal so that the claimant may serve a copy of the complaint on the defendant. A summons must contain the name of the court and the parties; be directed to the defendant; state the name and address of the claimant’s attorney or if unrepresented, the name of the claimant; state the time within which the defendant must appear and defend; notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint; be signed by the court clerk; and bear the court’s seal (USFRCP 4). A summons must be served with a copy of the complaint; it must be served within the time limits set forth in the rules; and the pleader must furnish the necessary copies to the person who will be accomplishing service of process (USFRCP 4(c)(1)).
66. In Belgium, an action may be commenced in multiple ways. The claimant may serve a citation (subpoena) by a bailiff; a citation is the principle means to start an action and this service of a citation does not run through the courts. A legal action may be commenced by requête contradictoire (petition): convocation by way of a court letter where the law expressly provides for it. The applicant introduces a petition with the competent court. The registry then sends a letter to the defendant by ordinary mail requiring them to appear in court. An action may be commenced by requête unilateral (a unilateral petition): the claimant files a petition with the court, but the registry does not send a letter to the counterparty. This method is often used in seizure proceedings or other proceedings where surprise of the court’s actions is important for its effectiveness. Finally, an action may be commenced by voluntary appearance.
67. In Slovenia, a claim is filed with the court and the court will then serve it on the defendant (as a rule, by using universal postal service).
68. In Norway, a party intending to bring a claim must send a notice of claim to the other party, who in turn must reply. There are no formal requirements for the notice and reply and the notice does not initiate court proceedings. This is mainly a way to put pressure on the other party in negotiations and a way to exchange information in order for the parties to identify the ambit (core) of the dispute before initiating court proceedings, which must be done by filing a statement of claim at court.
69. In Brazil, the judicial process begins with the initial petition's filing before the judicial body. As a rule, the initial petition is filed electronically. In the knowledge process, if the initial petition meets the essential requirements and it is not the case that the request is initially dismissed, the judge will fix a conciliation or mediation hearing. That is one of the innovations of the 2015 Code of Civil Procedure. As a rule in the knowledge process, the first procedural act to be carried out, with the participation of the claimant and defendant, is the conciliation and mediation hearing. The CCP provides for only two hypotheses for not holding the conciliation and mediation hearing: a) if both parties expressly express a lack of interest in the consensual composition, b) when self-composition is not possible.

3.3.3        Methods of Service of Process

70. Different jurisdictions specify by statute or rule how service of process may be accomplished and by whom. In the US, service may be accomplished by any person who is at least 18 years old and who is not a party to the lawsuit (USFRCP 4(c)(2)). If a claimant requests, the court may order that service be made by a United States marshal or deputy marshal or a person the court appoints. Service of process by a marshal or other court officer is required for cases in which the claimant is proceeding in forma pauperis (as an indigent pauper), or a seaman (USFRCP 4(c)(3)). Service of process also may be effectuated by electronic means (USFRCP 5(d), (e)). See discussion above at 2.2.4.
71. In Spain, service may be undertaken by the court or by the procurator of the claimant, if a specific request is included in the written statement of the claim. When performing service, the procurator hired by the claimant is acting as a court official (Art 161 LEC). Failing this petition, the court that has received and admitted the claim will undertake service. When the court serves process, it must be made by parcel post with a hard copy of the court decision initiating proceedings, with a hard copy of the statement of the claim and physical copies of the evidence the claimant has submitted (Art 155.1, 155.2 and 273.4 LEC, in conjunction with Art24 LEC). Ordinary post or email are not legally acceptable. The court clerk is responsible for service of process and for instructing the civil servants of the judicial office to implement service of process. If service by post fails completely, the court will use a second method of service, such as notification by delivery of sending a court official to the defendant’s address. If this method fails, the court clerk will conduct an additional investigation as to where the defendant may be located (Art 161 (4) and Art 156 LEC). If the clerk is unable to locate the defendant, service may be made by publication (by ‘edicts’), on the noticeboard of the court (its own website), or at the claimant’s request in an official gazette or in the press.
72. In Spain, typically the person served is the defendant. The law also permits service on persons legally representing the defendant (such as a procurator) or on persons who are professionally or personally close to the defendant (known as a subsidiary recipient) (Art 161 (3) LEC; Art 161 (1) LEC). Service on the defendant’s procurator shall be made electronically, either by the claimant’s procurator or the court (Art 152 (2) and 162 LEC and Art 33 (5) of Law 18/2011).
73. The Brazilian Code of Civil Procedure provides that the summons will preferably be made electronically, within up to two business days, counting from the decision that determines it, through the electronic addresses indicated by the summoner in the Judiciary database, in accordance with the regulations of the National Council of Justice. In case of lack of confirmation, within three business days, counting from receipt of the electronic summons, the summons may be carried out by post, by a court official, by the clerk or head of the secretariat, if the person summoned appears at a notary's office or by notice, with the publication of the notice on the world wide web, on the website of the respective court and on the notice platform of the National Council of Justice.

3.3.4        Waiving Service of Process

74. In the US, an individual, corporation, or association that is the subject of service has a duty to avoid unnecessary expenses of serving process. The claimant may notify a defendant to an action that the action has been commenced and request that the defendant waive service of the summons. The notice and request must be in writing and addressed to the individual defendant, officer, managing agent, or person authorized to receive service; the court where the complaint was filed; copies of the complaint and the waiver form; the date when the waiver request was sent; provide the defendant a reasonable time to return the waiver; and be sent by first class mail or other reliable means (USFRCP 4(d)).

3.3.4.1        Consequence of Filing a Waiver of Service of Process

75. When a claimant files a waiver, proof of service is not required, and the rules apply as if a summons and complaint had been served at the time of filing the waiver (USFRCP 4(d)(4)). Waiving of a summons does not waive any objections to jurisdiction or venue (USFRCP 4(d)(5)).

3.3.4.2        Failure to Waive Service of Process

76. If a defendant located in the US fails without good cause to sign and return a waiver of process requested by a claimant, the court may impose on the defendant the expenses incurred in making the service and the reasonable expenses, including attorneys’ fees, of any motion required to collect those service expenses (USFRCP 4(d)(2)).

3.3.5        Service of Process of Individuals in a Foreign Country

3.3.5.1        By Internationally Agreed Means

77. Unless federal law provides otherwise, an individual may be served at a place not within any judicial district in the US by any internationally agreed means of service such as those authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents (USFRCP 5(f)(1)).

3.3.5.2        Without Internationally Agreed Means

78. If there is no internationally agreed means for service of process abroad, or if an international agreement allows but does not specify a means, an individual may be served by a method reasonably calculated to give notice as prescribed by the foreign country’s laws for service in that country in an action in its courts of general jurisdiction; as the foreign authority directs in response to a letter rogatory or letter of request; or, unless prohibited by the foreign country’s law, by delivering a copy of the summons and of the complaint to the individual personally; or using any form of mail that the clerk addresses and sends to the individual and that requires a signed receipt; of by any other means not prohibited by international agreement or court orders (USFRCP 4(f)).

3.3.6        Service of a Minor or Incompetent Person

79. A minor or an incompetent person in a judicial district of the United States must be served by following state law for serving a summons or like process on such a defendant in an action brought in the courts of general jurisdiction of the state where service is made (USFRCP 4(g)).

3.3.7        Service of a Corporation, Partnership, or Association

80. A domestic or foreign corporation, or a partnership or other unincorporated association that is subject to suit under a common name, must be served in a judicial district of the United States  in the manner prescribed for serving an individual; or by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and—if the agent is one authorized by statute and the statute so requires—by also mailing a copy of each to the defendant (USFRCP 4(h)).

3.3.8        Service of Governmental Agencies

81. Special rules apply to serving process on the US as a party, or to government agencies, official sued in their official capacity, and officers or employees sued in their individual capacity.

3.3.8.1        Service on the US Government

82. To serve the United States, a party must deliver a copy of the summons and of the complaint to the United States attorney for the district where the action is brought—or to an assistant United States attorney or clerical employee whom the United States attorney designates in a writing filed with the court clerk—or  send a copy of each by registered or certified mail to the civil-process clerk at the United States attorney’s office; send a copy of each by registered or certified mail to the Attorney General of the United States at Washington, D.C.; and if the action challenges an order of a non-party agency or officer of the United States, send a copy of each by registered or certified mail to the agency or officer (USFRCP 4(i)(1)).

3.3.8.2        Service on a US Agency, Corporation, or Officer or Employee Sued in an Official Capacity

83. To serve a United States agency or corporation, or a United States officer or employee sued only in an official capacity, a party must serve the United States and also send a copy of the summons and of the complaint by registered or certified mail to the agency, corporation, officer, or employee (USFRCP 4(i)(2)).

3.3.8.3        Service on an Officer or Employee Sued Individually

84. To serve a United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf (whether or not the officer or employee is also sued in an official capacity), a party must serve the United States and also serve the officer or employee under the applicable general service of process rules (USFRCP 4(i)(3)).

3.3.8.4        Service on a State, a Municipal Corporation, or Any Other State-Created Governmental Organization

85. A state, a municipal corporation, or any other state-created governmental organization that is subject to suit must be served by delivering a copy of the summons and of the complaint to its chief executive officer; or serving a copy of each in the manner prescribed by that state’s law for serving a summons or like process on such a defendant (USFRCP (j)(2)).

3.3.9        Service on a Foreign State

3.3.9.1        Service on a Foreign State

86. A foreign state or its political subdivision, agency, or instrumentality must be served in accordance with the provisions of 28 USC § 1608, setting forth extensive requirements for service on a foreign government (USFRCP (j)(1)).

3.3.10        Proving Service of Process

87. Unless service is waived, proof of service must be made to the court. Except for service by a United States marshal or deputy marshal, proof must be by the server’s affidavit. Service not within any judicial district of the United States must be proved as provided in the applicable treaty or convention; or by a receipt signed by the addressee, or by other evidence satisfying the court that the summons and complaint were delivered to the addressee. Failure to prove service does not affect the validity of service. The court may permit proof of service to be amended (USFRCP 4(l)).
88. In Spain, if service is made by the claimant’s procurator, the procurator has to certify the identity and condition of the recipient of the service with a copy that contains a reliable record of the receipt, the date and time of receipt and the contents of the communication (Art 152.1 LEC). This certification shall be transmitted to the court and will serve as proof of service.

3.3.11        Time Limits for Service of Process

89. If a defendant is not served within 90 days after the complaint is filed, the court—on motion or on its own after notice to the claimant—must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the claimant shows good cause for the failure, the court must extend the time for service for an appropriate period. This does not apply to service in a foreign country (USFRCP 4(m)).

3.4        Third Parties

90. At the initiation of proceedings, it is possible in most jurisdictions to join third parties into a litigation. The subject of the role of the parties and their representatives is addressed more fully in subsection E of this chapter. The purpose here is to indicate that third parties may be drawn into a litigation, the types of third parties, and briefly the methods for joining third parties.
91. In Spain, after the claimant’s filing of a statement of the claim and the defendant’s filing a written statement of defence, the claimant may ‘extend’ its statement of claim to assert new claims or to bring third parties as new defendants into the proceedings (Art 401 LEC). If the court finds that the outcome of the proceedings might affect third parties, the court on its own motion shall provide service of the statement of the claim on third parties who are concerned (Art 152.2 LEC). After a third party has been served, the third party will be entitled to intervene in the pending proceeding and align with the claimant or defendant as appropriate, by filing an application (Art 13 LEC). If a third party knows of the proceeding unofficially (ie, has not been served) the third party is still entitled to intervene provide the third party holds a direct and legitimate interest in the outcome of the proceeding.
92. The Brazilian Code of Civil Procedure has a title for third party intervention, subdivided into five chapters, each of them designed for each of the types foreseen: assistance, third party impleader, call of the co-debtor to the process, incident of disregard of legal personality, and amicus curiae.
93. Assistance is applicable when a legally interested third party intends to act in the process to assist one of the parties who are litigating. It is possible in any procedure and jurisdiction.
94. A third party impleader, promoted by either party, is admissible: I – to the immediate alienator, in the process relating to the thing whose ownership was transferred to the third party, so that they can exercise their rights resulting from the eviction; II – anyone who is obliged, by law or contract, to compensate, in a recourse action, the loss of the losing party in the process.
95. It is permissible to call the co-debtor to the proceedings, requested by the defendant: I – the principal debtor in the action in which the guarantor is a defendant; II – the other guarantors in the proposed claim against one or some of them; III – other joint debtors, when the creditor demands payment of the common debt from one or more of them.
96. The incident of disregarding the legal personality will be initiated at the request of the party or the Public Prosecutor's Office when it is appropriate to intervene in the process.
97. The judge or the judge-rapporteur, considering the relevance of the matter, the specificity of the subject matter of the demand or the social repercussion of the controversy, may, by non-appealable decision, ex officio or at the request of the parties or anyone wishing to speak out, request or admit the participation of a natural or legal person, body or specialized entity with adequate representation, as amicus curiae.

3.4.1        Definition of a Third Party

98. A third party typically is an individual or other entity who, by virtue of substantive law, may owe some legal obligation or duty to a party who is already named as a claimant or defendant in a lawsuit. The substantive law provides the basis for joining an individual or entity that has not been named or sued in an original lawsuit; statutes or procedural rules provide the basis for accomplishing joinder of third parties into an existing lawsuit. When a party to a lawsuit joins a third party into an existing lawsuit, in the US this procedure is known as impleader. A common form of impleader occurs, for example, when an individual or entity has a right to legally pursue a third party who has caused a loss for which the defendant might be held responsible in a lawsuit by a claimant. Subrogated claims are illustrations of the types of claims that would give rise to the impleading of a non-party to an existing lawsuit. Third parties who are joined in an action are subject to and entitled to all the same rules regarding notice and service of process in order to affect the joinder of the third party.
99. In Spain, under certain provisions of substantive law that govern specific contracts and legal relationships, particular parties may be notified of the pendency of the proceeding and called to intervene in case those contracts or legal relationships are brought to court. Spanish law provides a detailed procedural framework for regulating this call for intervention or provoked intervention (Art 14 LEC). In Germany, the rules permit joinder of third parties to conduct the proceedings in an efficient way. The rules for third party notice intend to avoid problems which might result from the fact that the res judicata effect is limited to the parties of the proceedings. A similar system of ‘intervention’ applies in Slovenia.
100. In Togo, there are specific rules for joinder of third parties in the interests of the proper administration of justice and with a view towards extending res judicata to all interested parties. 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.

3.4.2        Philosophy of Joinder of Third Parties

101. Some jurisdictions have very strict or limiting rules concerning the joinder of third parties into an existing litigation. The US, on the other hand, has rejected old common law rules restricting the joinder of parties in a unified civil action and has instead adopted a liberal or permissive approach to the joinder of parties (USFRCP 20).
102. 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. Third party notice has important procedural consequences. If a third party ignores joinder, it will be bound by all relevant factual findings and legal standpoints.

3.4.2.1        Permissive Joinder of Claimants

103. Persons may be joined as claimants in one action if they assert any right to relief jointly, severally, or if in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and any question of law or fact common to all claimants will arise in the action (USFRCP 20(a)(1)).

3.4.2.2        Permissive Joinder of Defendants

104. Persons may be joined in one action as defendants if they assert any right to relief jointly, severally, or if in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and any question of law or fact common to all claimants will arise in the action (USFRCP 20(a)(2)).

3.4.3        Types of Third Parties Who May Be Joined

3.4.3.1        Defending Party Brings in a Third Party; Third Party Defendants Defences and Claims

105. A defending party may, as a third party-claimant, serve a summons and complaint on a non-party who is or may be liable to it for all or part of the claim against it. But a third-party claimant must, by motion, obtain the court’s leave if it files the third-party complaint more than 14 days after serving its original answer (USFRCP 14(a)(1)). In the US, this procedure is called ‘impleader’.  The third-party defendant must assert any defence against the third-party claimant’s claims, any counterclaims, or any cross claims against another third-party defendant. The third-party defendant may also assert against the claimant any claim arising out of the transaction or occurrence that is the subject matter of the claimant’s claim against the third-party defendant (FRCP 14(2)(A)-(d)).

3.4.3.2        Claimant’s Claims Against a Third-Party Defendant

106. The claimant may assert against the third-party defendant any claim arising out of the transaction and occurrence that is the subject matter of the claimant’s claim against the third-party claimant. The third-party defendant must then assert any defence and any counterclaim, or cross claim against other parties (USFRCP 14(a)(3)). When a claim is asserted against a claimant, the claimant may bring in a third party if the rules would allow a defendant to do so (USFRCP 14(b)).

3.4.3.3        Third Party Defendant’s Claims Against a Non-Party

107. A third-party defendant may proceed against a non-party who is or may be liable to the third party for all or part of any claim against it (USFRCP 14(a)(5)).

4        Stages Between Initiation of Proceedings and Closure of Proceedings: The Mid-Phase

Anna Nylund and Enrique Vallines

4.1        Introduction

4.1.1        Methodological Strategy for Studying the Stages Between the Initiation and the Closure of the Proceedings

108. For this contribution, we will refer to the stages between the initiation and the closure of the proceeding as the ‘mid-phase’ of civil proceedings. During the mid-phase, the case will be delineated, discussed, and, eventually, fully ready to be disposed of. To this end, both parties are granted the possibility to present their arguments and evidence, to bring the proceedings to an end by way of an amicable solution and, as appropriate, to have the relevant evidence taken.
109. Yet, the particular stages in which this mid-phase unfolds vary considerably among the jurisdictions studied. In some jurisdictions, the mid-phase of the proceedings consists of two or more distinct stages or steps; in other jurisdictions, the contents of this phase cannot be separated into distinct entities. In addition, the balance between oral and written procedural elements varies. In some jurisdictions, the proceedings are fixed by the letter of statutory law; in others, they are flexible and vary upon the discretion of the court hearing the case.
110. This contribution interrogates the structure as an entity and its components, how these components, or blocks of procedural activity, are conceptualised and sequenced, and their function(s) and importance in their respective systems. Thus, in this contribution, tertium comparationis (the object of comparison) is the structure of court procedure as such and its components. The first level of comparison investigates the structure as such. It describes how cases are processed in the jurisdictions studied, all of which appear to aim at the same goal: putting the judge or panel of judges hearing the case in a position to dispose of the case in a satisfactory legal manner and within a reasonable time. The structural analysis allows us to draw a taxonomy of procedural systems. This taxonomy feeds into a second level of functional comparison: not only does this ‘mid-phase’ of civil proceedings, as such, serve specific functions, but the particular stages that the different modalities of this phase consist of serve specific subfunctions. Cognate blocks could have both similar and different functions and vice versa. Thus, we engage in a two-layer functional comparison. The functional analysis is a fertile ground for analytical or conceptual (deep-level) comparison^[14] of selected aspects of the proceedings, especially the various conceptualisations of hearings.
111. This part examines the ‘full’, ‘normal’ course of proceedings as they unfold from the initiation phase to the moment the court considers the case is ripe for closure, thus covering all steps of the ordinary course of proceedings. Taking the entire litigation process as the starting point of the structural analysis is, in our mind, a fruitful approach to the understanding of procedural structure. The manifold ways cases are resolved without proceeding through the ‘full’ proceedings are discussed in Chapter 3 and will not be considered here.^[15] Similarly, although a case might sometimes undergo additional steps (eg, jurisdiction is contested, or the court holds a hearing to secure evidence), we have decided not to include this kind of ‘diversions’ in our analysis.
112. Studying the complete structure facilitates a holistic perspective of civil procedure and enables us to zoom out of the details and move to a macro level. Consequently, detailed descriptions of each jurisdiction are not included in the analysis, and the conceptual comparison concentrates on a few selected elements.

4.1.2        The Apex Hearing as a Dividing Factor

113. The structural comparisons are based on reports from Belgium, Brazil, Germany, Iran, Japan, Norway, Slovenia, Spain, Togo, and the US. The taxonomy of procedural structures is based on these systems and does not aspire to provide an accurate and comprehensive categorisation representative of all jurisdictions worldwide, with all jurisdictions belonging to one or the other category. On the contrary, because it is based on a limited sample, there are likely to be additional categories, and the categorisation presented here might not adequately account for other existing structures. Moreover, the taxonomy hinges on the factors employed when systematising and the relative weight of each element. The taxonomy recognises the fluid, porous nature of legal categories. Relatively small legal changes, such as a change of legal practices or a relatively minor shift in the analytical lens applied, could result in a country migrating from one category into another.
114. The taxonomy arising from comparing the procedural structures we analysed leads to the distinction between two groups of procedural systems: apex hearing and non-apex hearing. In the first group, court proceedings culminate in a single principal (‘apex’) hearing, during which the arguments and the evidence are presented orally to the judge or panel of judges who decide the case. In this regard, the principles of orality (allegations and arguments must be presented – or at least recapped – verbally), concentration (all case materials to be presented in the same hearing), and immediacy (direct contact between decision-makers and oral presentations) form the foundation for the apex hearing systems.^[16]
115. Using the apex hearing as the dividing factor, the other group, the non-apex category, comprises the systems where the case is not meant to be presented to the adjudicators in a single hearing but rather in a series of scattered procedural acts that occur within a - often relatively long - period. Thus, this category will inevitably be heterogeneous. Generally, it might be argued that systems of the non-apex hearing category may be classified into two subcategories: written systems and hearing-based systems. First, some jurisdictions have mainly written proceedings, where hearings are often not held and are not a material element of the proceedings. These written systems form a category of structures of their own because many components and tenets found in the apex hearing group (like concentration, immediacy and orality) are deemed irrelevant. Second, while there are jurisdictions with hearings as a regular element of proceedings (which shows a preference for oral communication as a tool to achieve a better result), not all of them have an apex hearing because none of the hearings forms a true culmination of court proceedings where the whole case is presented to the adjudicators (which shows that, for these systems, concentration and immediacy are not considered of paramount importance).

4.1.3        The Difficulties of Categorising Legal Systems

116. Categorising legal systems according to this taxonomy might not be an easy task. A crucial challenge is the definition of apex hearing. Here, we have decided to consider not only the structure of the proceedings but also the rationales underpinning it. Accordingly, as pointed out above, an apex hearing is here defined as the hearing where the case is presented based on the importance given to oral communication (orality) in a concentrated manner (concentration) and with direct contact between the adjudicator who will decide the case – who cannot be replaced – and the oral presentations (immediacy). Yet, we have included in this category the systems (eg, Brazil) that, under exceptional circumstances (eg, the sudden death of the judge), allow for adjudication made by a judge different from the judge who had direct contact with the oral statements provided at the apex hearing.
117. Another challenge is whether jurisdictions should be classified according to law in action or law in books. Indeed, a categorisation based on an analysis of the legislation and its underpinning rationales and aspirations is likely to yield different results for some countries than a categorisation based on the law as it is practised. Ultimately, to the extent possible, our choice here has been to categorise systems based on how courts generally proceed in practice rather than on how the proceedings are regulated in the corresponding code of civil procedure. We have also tried to interrogate why a theoretical model is – or is not – finally implemented in a given context. As an illustration, the case of Slovenia is worth mentioning here. Looking at the law in the books, one may conclude that Slovenia belongs to the apex hearing category, as its Code of Civil Procedure has aspired to introduce an apex hearing structure resembling the structure in Germany, Norway or Spain. But the truth is that practices have not changed accordingly, and from a law-in-action perspective, the Slovenian system falls within the non-apex hearing category.

4.1.4        Terminology

118. Finding appropriate terminology for describing the different procedural ‘blocks’ of procedural activity that occur – or might occur – between the initiation and the closure – during the ‘mid-phase’ – of a civil process in a given system has been challenging. We have decided to use the words ‘phase’, ‘stage’, ‘part’, ‘step’, or ‘unit’. We strive for using ‘phase’ for distinct blocks of procedural activity that are relatively big, ‘stage’ for the smaller blocks into which a phase may be divided, and ‘step’ for the individual procedural actions that may occur within a stage. Thus, for example, in the US system, the trial would be considered a ‘phase’, the examination of witnesses as a ‘stage’ and the instructions to the jury as a ‘step’.
119. Previously, the term ‘piecemeal’, coined mainly by Damaška^[17], has been employed as a category of procedural systems. However, the work piecemeal often denotes an unsystematic, fragmentary way of handling cases, not just a system consisting of partial measures taken over some time. While some procedures consist of several steps, they can still be highly structured, with phases and stages that are coherent and well-integrated. Therefore, we have opted not to use piecemeal as a term.
120. Furthermore, to avoid legal-culturally contingent terminology such as a ‘trial’ or ‘main hearing’, we have chosen to use the expression ‘apex hearing’. The word ‘trial’ is loaded with legal-historical and legal-cultural connotations referring to a specific type of hearing deeply embedded in common law. Although only a fraction of civil cases is decided by a jury in the US, a trial by a civil jury is still likely to epitomise how the ‘day in court’ is conceptualised, at least in the minds of citizens. Thus, this legal cultural notion of ‘trial’ is likely still an impetus for upholding the trial as a critical feature of civil litigation. In contrast, civil proceedings were mainly or almost exclusively written in continental Europe and Scandinavia in the nineteenth century, and oral elements were revived later.^[18] Reforms at the turn of the century brought hearings aimed at introducing a model which could be characterised as the ‘main hearing’ model,^[19] which rests on the assumption that presentation of all the aspects of the case (ie, factual and legal arguments and the presentation of evidence) should be delivered directly to the judge or panel of judges deciding the case in a single concentrated hearing. This assumption may be seen in the German Hauptverhandlung, the Norwegian hovedforhandling, the Swedish huvudförhandling the Finnish pääkäsittely, the Spanish juicio, or the Brazilian audiência de instrução e julgamento.
121. For historical reasons, the ‘main hearing’ conception of hearings differs from that of a common law ‘trial’, the latter being connected to the jury and the right to a day in court, and the former linked to more technical reasons highlighting the importance of oral communication, concentration and immediacy with a view to a better disposition of cases. However, we believe that both models share common features in terms of culminating the proceedings in an apex hearing where the case is presented orally and in a concentrated manner to those who are meant to decide it. This conclusion appears to be supported by the ALI/UNIDROIT Principles of Transnational Civil Procedure, as they foresee a ‘final hearing’ encompassing the ultimate or sole hearing in any type of civil procedural structure, this hearing being inspired by the common-law trial and the civil-law systems that ‘employ a concentrated final hearing’.^[20] In a similar vein, the ELI/UNIDROIT Model European Rules of Civil Procedure (ERCP) also use the expression ‘final hearing’, which, although appearing to be much closer to the main hearing existing in several European countries, could also qualify as a common-law trial before a jury.^[21]
122. Finally, despite the ALI/UNIDROIT Principles and the ERCP using the expression ‘final hearing’, we prefer using ‘apex’ rather than ‘final’. In this regard, ‘final hearing’ appears to refer simply to a hearing that is to occur at the peak or end of the proceedings. In our understanding, the expression ‘apex hearing’ is more illustrative, as it suggests not only a hearing that is chronologically located at the end of the proceedings but also a hearing that is of paramount importance for the whole procedural structure.

4.2        The Apex Hearing Structure

4.2.1        The Apex Hearing Structure: a Preparatory Stage Followed by an Apex Hearing

123. As mentioned above, for this contribution, apex hearing structures are those in which the arguments and evidence of the case are to be presented in a single principal hearing through verbal communication (principle of orality), in a concentrated manner (concentration) and directly before the decision-maker(s) (immediacy).^[22] These principles appear to be founded on the belief that concentrating the presentation of disputed legal and factual issues, as well as the evidence supporting the facts, to a single hearing where there exists a direct contact between the judge (or panel of judges or jury) and the arguments and evidence forms the ideal basis for reaching the best possible solution to the case. Moreover, the apex hearing encapsulates the principle of orality, the importance of oral communication and oral hearings as the stage during which justice is enacted. The apex hearing is also the site for the ‘day in court’ in the popular imagination. It forms the primary forum where parties exercise their fair trial rights. Apex hearings maintain their central position in civil procedure thinking even if most cases would be resolved before the apex hearing.
124. Ideally, the apex hearing will happen in one day and session. However, the apex hearing may be extended into consecutive sessions if the case requires it. In Norway, for example, hearings in large cases might last three or more days. When this is the case, the court might opt to have one day without a hearing before the day the parties (their counsel) deliver their final arguments. If the case lasts longer than a week, having one day ‘off’ each week is common. Nevertheless, the hearing will be considered a single event, even if it lasts several days.
125. The apex hearing is preceded by a preparatory (‘interim’, ‘preliminary’ or ‘pre-trial’) stage, which could be oral, written, or both. During the preparatory stage, the court and the parties attempt to prepare the case to be solved, to get it ripe to be disposed of adequately. This adequate disposition is usually considered the judgment on the merits delivered after an apex hearing where the arguments and the evidence have been presented to the court. However, the preparatory stage has a dual function since it also aims to enable early disposition through settlement, dismissal, withdrawal, or so forth, when appropriate.^[23] Thus, during the preparatory stage, the court and the parties pinpoint disputed issues of fact and law (both procedural and substantive law), identify the relevant evidence, explore the possibility of an amicable solution, and, unless the parties settle their dispute, ensure that the case is ready to be presented at the apex hearing.
126. Furthermore, the apex hearing structure usually rests on the assumption that facts and law are entangled — the facts of the case influence which legal arguments and provisions are relevant and vice versa. Of course, in some cases, the issues in dispute, the relevant arguments and evidence are obvious already when the action is brought, or only facts or law are disputed. In other cases – especially in complex cases – the disputed facts and law, the relevant factual and legal arguments, and the evidence might not be firmly established at the initial phase and are crystallised during the mid-phase. Thus, in many apex hearing jurisdictions, case management is considered instrumental in making this crystallization, ie, in identifying the central disputed elements and the evidence related to them.^[24] This identification occurs typically during the preparatory stage that precedes the apex hearing. It is not unusual that, in light of the identification process results, the parties decide to settle the case and avoid an apex hearing and a judgment. In the US, for example, discovery lies at the core of the preparatory stage and serves to clarify the case; and, in most cases, the material disputes of fact are resolved, and no jury trial is finally called for.
127. Thus, the apex hearing model requires the mid-phase to be divided into two consecutive stages: the preparatory stage and the apex hearing. As the decision of the case requires focussing on disputed factual and legal aspects of the case and the evidence needed to prove those facts, the court needs to ensure that the disputed aspects and evidence are ripe for being presented at the time of the apex hearing. This requires both substantive and procedural case management during the preparatory stage: setting appropriate time limits for the exchange of written submissions, sharing information between the parties (eg, on the evidence they intend to present or requiring them to share key documents) and so forth.^[25] The preparatory stage forms an arena for case management, facilitating and negotiating an amicable solution and, ultimately, getting the case ready to be decided by the court.
128. The principle of proportionality is also entangled with the division between the apex hearing and the preparatory stage of case management. Identification of key disputed issues and what is at stake for the parties, such as the amount in dispute and the relative importance of the case (eg, whether the case is of particular significance for one or both parties, or it could provide clarification of a legal issue) influences how much resources should be devoted to the case, such as the length of the proceedings, the number of hearings and exchange of written submissions, and the cost and type of evidence.

4.2.2        Comparing the Apex Hearing Structures of Germany, Norway, Spain, Brazil and the US

129. Five variants of proceedings culminating in an apex hearing have been identified in this contribution: Brazil, Germany, Norway, Spain and the US. In the five systems, the mid-phase has a structure consisting of a combination of written and oral elements taken in preparation for the case before the apex hearing and of an apex hearing itself – the US trial, the main hearing in Brazil, Germany, Norway or Spain – during which the parties present their cases, their legal and factual arguments and their evidence directly to the judge or panel of judges who will make the final ruling.
130. The comparison of the systems indicates that the US system is particularly distinct despite sharing an apex-hearing structure with the Brazilian and the European systems. First, the jury trial, although rarely used in practice, significantly influences how proceedings are structured and differs from the main hearing found in the other four systems. The Brazilian, German, Norwegian and Spanish systems do not operate with the distinction of jury and bench trials; the evidence does not have to be prepared with the jury, and there is a sharp division between law and facts in mind. Second, the US discovery system may require significant judicial involvement, as the court may be called to decide whether the parties have the right to access evidence, the extent and format of the access, as well as disputes regarding the admissibility of evidence. In contrast, Brazilian and European judges are required to make decisions regarding evidence only to a limited degree, if at all, during the preparatory stage. The reason is that parties have a more limited duty to disclose the existence of and give access to evidence and less strict rules on the admissibility of evidence. Finally, there are differences in the requirements the statement of claim and defence must fulfil regarding the identification of the scope of the proceedings, ie, in the pleading standards.^[26] In US Federal litigation, the general rule continues to be the notice pleading standard, as Rule 8 of USFRCP still reads that the claimant must provide ‘a short and plain statement of the claim showing that the pleader is entitled to relief’. The notice pleading standard is one of the ‘prominent features’ of the so-called ‘American [procedural] exceptionalism’. Indeed, most procedural systems – like the other four apex hearing systems that we have analysed in this contribution – follow a ‘fact pleading standard’.^[27] For what matters to this contribution, it is worth noting that the choice between one type of pleading standard and the other influences the structure of civil proceedings – and particularly in the structure of the mid-phase - as it affects the degree to which the parties are required – and allowed – to specify and amend the legal and factual aspects of the dispute along the proceedings, as well as it affects the scope and the moment of disclosure.
131. Considering these differences, the apex hearing jurisdictions in our study form two subcategories: the US trial category and the main hearing category that can be found in Brazil, Germany, Norway or Spain.

4.2.3        The Preparatory Stage

132. Significant differences exist between the preparatory stages of the five apex hearing systems examined.
133. Some of those differences follow directly from different pleading standards. With a strict fact pleading standard, as in Spain, the claimant is mainly required to investigate the facts and file disclosure applications before the initiation of proceedings; thus, once the proceedings have reached the mid-phase, there is less room for disclosure or for amending allegations, claims and reliefs. However, with a lax notice pleading standard, as in the US, the preparatory stage is a suitable time for delving into the details of the case and using discovery tools. Consequently, in the apex structures that follow a notice pleading standard the preparatory stage tends to be much ‘thicker’ and more complex, with a much greater deal of procedural activity aiming at the specification or amendment of previous pleadings and the gathering of evidence.^[28]
134. Furthermore, many differences follow from the tenets and design of the preparatory stage alone. In the US, the court may assign the case to a magistrate or special master, which is impossible in the other four countries. If the case is not dismissed on preliminary motions, the defendant will ‘answer’ the complaint, asserting defences and as appropriate, any counterclaims. Parties will then engage in discovery. The US rules on pre-trial discovery have a tangible impact on how the proceedings unfold because discovery and the collection and production of evidence require the court to rule on whether and how access to evidence should be given. Judges perform gatekeeping functions regarding the assessment of the expertise of party-appointed experts. Moreover, US judges have ample discretion to conduct pre-trial and settlement hearings and to form the proceedings. Finally, it should be noted that while a jury trial is a constitutional right, jury trials are waivable, and if neither party requests a jury trial, the case will be heard in a bench trial. Most cases are resolved before the trial through settlement or other forms of early resolution.
135. In Brazil, Germany, Norway and Spain, there seems to be a standard structure of the preparatory stage, albeit with some flexibility. In these systems, civil defendants must show their arguments and indicate their evidence in a written statement of defence that mirrors the content and structure of the statement of claim. Similar to the terminology used in US Federal procedure (‘answer to the complaint’), the statement of defence is here understood as an ‘answer’ to the statement of claim (contestação, Klageerwiderung, tilsvar, contestación a la demanda). In addition, the Brazilian, German, Norwegian and Spanish preparatory stage is composed of one or more hearings (known as ‘preliminary’, ‘case management’ or ‘settlement’ hearings), with relatively clear goals regarding the organization of the procedure, the clarification of procedural issues, substantive issues and evidence (necessity of evidence, problems of access to evidence, taking of evidence before the apex hearing), and the exploration of the possibilities of an amicable solution.
136. Spanish law mandates a single mandatory audiencia previa al juicio (preparatory hearing) and a few subsequent steps, whereas the German and Norwegian structures are more flexible, giving courts discretion to shape the proceedings to the peculiarities of the case. In Germany, früher erster Termin (a preparatory hearing) is not mandatory, so the court may order the whole preparatory stage to be conducted entirely in written form (as a schriftliches Vorverfahren). Furthermore, the judge may assign the case to a Güterichter (‘settlement judge’) for Güteverhandlung (a settlement hearing). This ‘settlement judge’ – who is not allowed to make a ruling – is entitled to use a broad range of dispute-resolution techniques, including mediation. In Norway, planmøte (case management hearings) are held with few exceptions. Courts may conduct other saksforberedende rettsmøte (preparatory hearings) if they find it suitable. A considerable share of cases is diverted to rettsmekling (in-court mediation), where a judge serves as a mediator in a mediation hearing. In addition to hearings, the court oversees the exchange of written submissions, the number and content of which the court has the discretion to decide. The Brazilian Civil Procedure Code allows for two consecutive hearings within the preparatory stage, namely a conciliation hearing – the audiência de conciliação ou de mediação, where the parties are expected to attempt an amicable solution - and a hearing for the correction of procedural defects and case management – the hearing to adopt providências preliminares e do saneamento -; yet, in practice, these two hearings – conciliation and case management – are very often not held, causing the process to be conducted in writing, in large part or entirely. Eventually, the extent to which evidence is taken before the apex hearing and to which courts are involved in appointing experts or ruling on issues related to evidence, such as access to evidence, varies between these countries. Yet, it is considerably more limited than in the US.
137. Moreover, the timing and ‘strictness’ of preclusion is a crucial difference between Germany and Norway, on the one hand, and Spain and Brazil, on the other. Here, ‘preclusion’ refers to the parties being prohibited from bringing new submissions, that is, invoking new claims, allegations or evidence, after a certain stage of the proceedings or a time limit set by law or by the court. Under Spanish procedural law, the law itself – not the court – sets the right moments for the different submissions and procedural actions. Thus, in Spain, the combination of a rigorous fact-pleading standard right at the beginning of the civil process (whereby the law requires the claimant and the defendant to exhaust their fundamental facts, legal perspectives and documentary evidence in their initial briefs) with a very rigid system of legal preclusion (whereby, as a rule, any fundamental facts, legal perspectives or documentary evidence that have not been mentioned in the initial briefs cannot be introduced at a later stage), results in a smaller need for clarification of the points in dispute, as they become fixed at a relatively early stage. A similar approach (rigorous fact-pleading standard and strict preclusion) may be found in Brazil, although this approach may be altered by an agreement of the parties (cf Articles 190 and 329-II of the Brazilian Code of Civil Procedure).
138. Meanwhile, preclusion is very lenient in Norway: it only occurs at the end of the preparatory stage. It is usually contingent on one of the parties opposing new evidence, circumstances or claims. Even if the other party opposes it, the court may still allow the amendments and, in some cases, must do so. In practice, courts take a very lenient stance to amendments, and it is not uncommon that these are made even during the main hearing. In Germany, where traditionally courts were also very liberal in allowing late submissions, the reforms in the late 1970s and 2001 attempted to require the defendant to put forward all the relevant defences as early as possible; however, § 296 of German Code of Civil Procedure (GCCP) still grants courts the power to accept submissions of new arguments or new evidence after the preparatory stage if the late submission will not delay the termination of the lawsuit or if the defendant has ‘sufficient excuse’ for the late submission.^[29] Thus, there is far less leeway and need for letting the case unfold during the preparatory stage in Spain than in Germany and Norway. In Spain, the case can only become ‘leaner’ during the preparatory stage so long the contours of the dispute drawn by the initial briefs are respected, whereas, in Germany and Norway, the case can change shape in manifold ways. There is thus also likely to be more need for and room for discussions on amendments of and additions to the allegations and evidence.

4.2.4        The Apex Hearing

139. As to the apex hearing itself, in the five systems that have been analysed, the apex hearing allows the parties an opportunity to address the decision-maker(s), present their claims and defences and explain the evidence upon which those claims and defences are supported; it allows the court and the parties a last chance to engage into a dialogue and to clarify any issues of fact, evidence or law; and, eventually, it provides the necessary time and means for the evidence to be taken and examined.
140. However, there is significant variation in how apex hearings are played out in practice, such as the duration of the hearing, the extent to and how evidence is presented, particularly the examination of witnesses, and the length and structure of the arguments of the parties. Particularly, the apex hearing unfolds differently in the US than in the other four jurisdictions that were studied. The hearing format varies in the US depending on whether it is a jury or a bench trial. In contrast, there is only a single format in the other countries, regardless of whether there is any material dispute related to facts. While witness statement depositions are made before the trial in the US, there is no way of ‘fixing’ the content of witness statements before the main hearing in the other systems. Also, while parties call witnesses in all five jurisdictions, there are differences in how witness examination unfolds. In Germany and Norway, witnesses are first requested to explain their observations of the relevant circumstances and, only once the witness has been allowed to do so, does the questioning start; this first ‘free’ account delivered by the witness is believed to be the core. However, in Spain and the US, there is no such a ‘free’ account, as witnesses are directly confronted with questions by the parties; this is also the general rule in Brazil.
141. Significant variations appear when leaving the US aside and focusing on the apex hearing systems. For example, the actual content and style of the apex hearing seem to depend on the structure and scope of the previous stages and any previous hearings. For instance, if the parties have extensively discussed the case with a judge (either the one presiding their case or another judge), this could reduce the length and scope of the apex hearing. The same is likely to apply, for instance, in jurisdictions in which the author of a document does not need to be called a witness when the relevant information can be retrieved from, for example, a private document or expert opinion. Moreover, how orality is interpreted is likely to influence the unfolding of the apex hearing: in some systems, such as Spain, a general reference to a document suffices, whereas, for example, in Norway, parties are required to read all relevant parts of the document aloud. In addition, there is considerable variation among the systems regarding whether judges are mostly passive observers, like in Spain, or active participants, like in Germany or Norway; for their part, Brazilian judges could be placed somewhere in between passive observation and active participation.
142. Furthermore, how the contents of the apex hearing are organized and how the hearing unfolds in practice differs. Although going in-depth into the ‘script’ of hearings has not been possible in a study such as this, some differences can still be identified. Whereas the Brazilian and the Spanish Codes of Civil Procedure set out the order in which the apex hearing should unfold in a more or less fixed manner, the German and Norwegian systems are more flexible, and the court has more discretion to adapt the unfolding of the apex hearing to the particular circumstances of the case.^[30]

4.3        Structures Without an Apex Hearing

4.3.1        General Remarks

143. The non-apex hearing category contains systems in which the proceedings do not culminate in an apex hearing upon which the court is to rule. Instead of (fully) abiding by the principles of orality, immediacy and concentration, when deciding the case the court may consider all allegations and evidence, regardless of the moment when they were presented. Whereas in apex systems one can get a full view of the basis for the decision of the court by attending the apex hearing and reading documents (such as written evidence and relevant case law and doctrinal writings) that are referred to during the hearing, in non-apex systems this is not the case as hearings (and written elements) form a continuum.
144. As pointed out above, the non-apex hearing category includes two subcategories of systems. One category is that of hearing-based systems where one or more non-apex hearings, often combined with written elements, form the procedural structure. The other category consists of systems where oral hearings rarely occur, and procedural activity primarily consists of a succession of written briefs by the parties (to which documented evidence might be attached) and written decisions by the court. Naturally, ascribing a system to one of the subcategories depends on the preponderance and importance of written and oral elements in the system at hand. The hearing-based subcategory can be divided into two further sub-categories: one in which hearings are mainly specialised by law - with a limited, pre-determined scope set out by law - and the other in which hearings are primarily non-specialised by law, that is, they may be general in scope, or limited in scope upon the court’s discretion.

4.3.2        Non-Apex Models with Hearings  

4.3.2.1        Systems with Specialised Hearings

145. Belgium qualifies as a hearing-based non-apex system. This system has a structure comprising successive hearings, which appear to have clear pre-assigned functions. But none of the hearings could be deemed as ‘apex’ for presenting legal and factual arguments and evidence directly before the judge or panel of judges ruling on the case.
146. In the Belgian system, hearings primarily allow the parties to present and discuss the case. However, no hearing is designated as the ‘apex’ hearing, and parties will not know in advance whether a hearing will be the final because the court may reopen the case before rendering its ruling even if the proceedings have been closed.
147. In simple cases, Belgian courts may deal with the substance of the case during the first introductory hearing. If the court does not deal with the substance during the first hearing, a schedule for written exchanges, a subsequent hearing (that is, a second hearing of the proceedings) and, if appropriate, evidence-taking sessions will be set. After some written exchanges, the parties are to present their cases orally in the subsequent hearing. If the oral examination of witnesses is required, it will be conducted in a separate or a series of follow-up individual sessions.
148. It should be noted that the principle of immediacy does not apply, as illustrated by the rule allowing for the examination of a witness to be conducted before a judge different from the judge who is to decide the case. Moreover, even when the case is meant to be ripe for decision, reopening is common in Belgium, which allows the court to take more evidence or hear new arguments in new hearings.

4.3.2.2        Systems with Non-Specialised Hearings

149. Slovenia is, from a law-in-action perspective, an example of structure with non-specialised hearings. Although the Slovenian Code of Civil Procedure aspires to a procedural model with active case management and a concentrated apex hearing, in practice, court proceedings unfold in a manner in which there is no single ‘apex’ hearing.
150. In the Slovenian Code, the intended structure of civil proceedings is that the initial phase is followed by a preparatory stage consisting of a written part during which the parties exchange a maximum of two briefs. In these briefs, the parties would be required to address specific issues according to the court's instructions. Subsequently, a ‘preparatory hearing’ is to take place. The envisioned objective of this preparatory hearing is mainly to let the court and the parties cooperate and draft a plan for the proceedings, a plan including the number and dates of hearings, and the number of briefs and issues addressed in them that the parties will submit before the start of the main hearing. Also, it allows them to identify the legal and factual basis of the dispute, separate disputed issues from undisputed issues and establish the relevant pieces of evidence (including witnesses). Furthermore, the court should promote settlement during the preparatory hearing.^[31] Eventually, the main hearing is envisioned as a single, concentrated hearing, where the parties present their arguments and evidence and witnesses, experts and parties testify. In practice, however, civil proceedings unfold as a series of hearings. Although the goal is that the parties bring forth all factual allegations and evidence needed to prove them at an early stage of the proceedings, the parties often introduce new facts and evidence until the theoretical main hearing commences, which is very frequently the first of a series of main hearings that follow one another. The reason is that preclusion (the expiry of the time limit for bringing forward new facts and evidence) occurs only at the beginning of the first main hearing, and even after this moment, courts shall allow evidence if the party has a valid excuse or if the court proceedings are not delayed.^[32] Courts are very lenient in applying these rules, so the parties are seldom precluded from introducing new facts or evidence. In addition, preclusion does not apply to legal arguments: The parties may refer to new legal arguments and case law, legal scholarship and similar documents that support those arguments until the last main hearing is closed. Consequently, the central line of argument may be altered even at the very late stages of the proceedings.^[33] 
151. Similarly, the rule that limits the exchange of written briefs to a maximum of two only applies before the preparatory hearing. Nevertheless, parties may exchange as many briefs as they wish after the preparatory hearing. The preparatory and the main hearings do not work as intended, either. The preparatory and the first main hearing are often scheduled back-to-back on the same day and, consequently, cannot be used as intended to draft a schedule for efficient case management, such as creating a tentative schedule for a sole main hearing.^[34] Moreover, problems with summoning witnesses hinder the court from arranging a single, concentrated main hearing.
152. As indicated, the Slovenian main hearing is usually not a single hearing but two or more short hearings with at least two weeks passing between each hearing. Hearings are often a formality and an opportunity to exchange briefs. Still, it is considered a single event.^[35] The parties file written submissions between the hearings in which they comment on evidence and assert legal arguments. The content of these submissions is not reiterated orally in a hearing; it is only presented in written format. Thus, hearings are not primarily a forum for presenting oral arguments directly in front of the judge(s) who will rule on the merits. In practice, because of the leniency with which courts apply the rules on preclusion, the parties often adduce new facts and evidence throughout the proceedings. Therefore, ‘surprises’ in the form of new legal and factual arguments and evidence are presented late in the proceedings, either because the parties have not prepared the case sufficiently or because they deliberately apply ‘ambush’ tactics.^[36] The principle of audiatur et altera pars requires the court to provide the other party with an opportunity to respond and to offer counterarguments and evidence supporting them, which may amount to additional hearings and further delays.
153. Consequently, in Slovenia, the preparatory stage and its preparatory hearing do not function as intended and still largely conform with a non-apex hearing-based structure. Considering the actual structure of the proceedings, using the expression ‘main hearing’ to describe the Slovenian system is misleading both because it is often difficult to pinpoint which of the hearings is the ‘main’ one and because the divide between the preparatory stage and the main hearing is diluted in several ways, as explained above.
154. The gap between theory and practice cannot be attributed to the lack of reforms. After the initial reform in 1999, the Slovenian Civil Procedure Act was amended in 2002, 2008 and again in 2017. The reason seems to be that the novel ideas and tools introduced, particularly preclusion, partly contradict pre-existing beliefs and tenets of civil procedure law. Many practitioners believe strict time limits contradict civil justice's paramount goal – finding the truth.^[37] Preclusion hinders the court from discovering the truth because relevant facts and evidence are excluded, and parties risk losing their cases because their lawyers fail to act promptly and diligently.^[38] Strict rules regarding preclusion can be draconic unless the court assists the parties in clarifying inconsistencies and incomplete submissions and encourages – or even requires – them to clarify or elaborate. However, according to Aleš Galič, many lawyers fail to recognize how the combination is conductive and leads to just and expedient procedures and outcomes.^[39]
155. Like the Slovenian system, Japanese civil litigation consists of a non-apex hearing-based structure consisting of a preparatory stage and a decision stage. While purely written preparation is common, courts may also schedule preparatory hearings. There are two types of preparatory hearings, one of which is tailored to judges facilitating settlement. The settlement part of the process is held with only those with a direct interest in the case present. Courts may take written evidence during a preparatory hearing. There is no strict preclusion in Japanese civil procedure law; consequently, courts may base their decision on evidence and arguments presented during several hearings whose content lies upon the court’s discretion and is not set out strictly by law.^[40]

4.3.3        Predominantly Written Proceedings

156. While the rules of civil procedure foresee oral hearings in all systems, in Iran and Togo, courts often forego hearings. Thus, the systems can be characterised as primarily written proceedings; that is, the parties exchange written submissions, and evidence adopts a predominantly written form, even if hearings are held in some cases. The hearings often have a very limited scope, such as examining selected witnesses or experts or deliberating one or a few selected issues. The court decides the case based on the materials collected throughout the proceedings. The case, arguments, and evidence develop throughout the mid-phase. Courts may, of course, develop guidelines for the structure, such as the number of written exchanges and the timeline of such exchanges.

4.4        Comparative Insights From the ‘Mid-Phase’

4.4.1        Various Types of Hearings

157. The comparison between the mid-phases of the different systems leads to interesting reflections. First, it reveals how diverse hearings are in scope, number and sequence. The term ‘hearing’ is often, as such, too generic to encapsulate the material differences among different types of hearings and their function in civil litigation.
158. The palpable differences in the format and contents of the ‘apex’ hearing illustrate different understandings of hearings. Even in countries having a relatively similar structure and based on similar ideas of the functions of the apex hearing, such as Brazil, Germany, Norway and Spain, the way the apex hearing unfolds differs. There are differences as to the time when the parties (their counsel) present a summary of their claims, allegations, arguments and so forth, that time being either at the beginning and at the end of the apex hearing, as is done in Germany and Norway, or only at the end, as is the case in Spain and Brazil. There are also differences as to the form in which such presentation occurs, either as a more or less open dialogue with the court, as in Germany and Norway, or mainly as a monologue, as in Spain and Brazil. Furthermore, the way evidence is presented differs in many aspects: whether many witnesses and experts are common; how long each interrogation typically takes; whether the witness starts by speaking freely or she must simply respond to questions; who is to lead the examination of the witness; how common is some kind of ‘cross-examination’; and so forth. The way written evidence is dealt with in the context of an apex hearing is also different. In Spain, documents are mostly alluded to in the course of the apex hearing by mentioning their name or reference number in the case file, as the law assumes that the court may always go to the file and analyse the document in question. In Norway, the parties must, at the hearing, introduce orally – and often read aloud - at least the relevant passages of the written evidence. Additionally, the role of the judge(s) in the apex hearing varies: in Spain, the court is often a passive administrator of the process, while, in Germany, it has a much more active involvement by putting questions to the parties, witnesses and experts.
159. Hearings during the preparatory stage in apex-hearing jurisdictions are also interesting. Spain formally has only one type – a ‘general’ – preliminary hearing. In contrast, Brazil, Germany, Norway and the US have different kinds of hearings, such as general preparatory hearings, settlement conferences and case management hearings. Many issues related to the hearings during the preparatory stage have thus far received limited attention in comparative civil procedure research. Among those issues are: the variation among the different hearings regarding their intended functions and the flexibility of those functions (eg, whether various functions can be combined in the same preparatory hearing); the timing of the hearings in relation to other activities taking place between initiation and the ‘apex’ hearing and relative to the initiation and conclusion of hearings; who conducts the preparatory hearings (eg, a judge, magistrate judge, or clerk); and whether the hearing is conducted in ‘open court’ or is closed to the public, and whether it is conducted in a regular courtroom, particular courtroom or the judge's chambers.  The differences among rationale for – and implications of – having a system based on general or ‘specialised’ hearings, remains a significant research gap. So does the differences in how hearings unfold in practice among countries with relatively similar structures. Moreover, the interlinkages between the structure, hearings, and the role of the parties and the judge, has not yet been fully accounted for.
160. In general, the apex hearing group seems to share a common understanding of the goals that need to be achieved for a reasonable preparation of the case to be disposed of, those goals being clarifying disputed issues of fact and law (both procedural and substantive law), identifying the relevant evidence, exploring the possibility of an amicable solution and, as appropriate, ensuring that the case is ready to be presented at the apex hearing. However, the form in which these goals are achieved varies. The Spanish system prefers to concentrate the preparatory activity aiming at these goals in a single hearing, the potential contents of which are thus diverse and heterogeneous. The Norwegian system is more open to dealing with the different goals in separate hearings. Therefore, judges have the discretion to divide the preparatory activity into separate hearings, which will consequently have a narrower scope.
161. Turning to the non-apex hearing group countries, we found that they have a range of hearings, some of which have pre-assigned functions, and some are more general. Non-apex hearings without pre-assigned functions are found in Japanese and Slovenian law, with a somewhat fluid boundary between preparatory and ‘main’ hearings. In contrast, Belgium has hearings with pre-assigned functions focused on of the presentation of the parties’ arguments.

4.4.2        The Organization of the Mid-Phase: by the Law or by the Court?

162. From a more general perspective, an interesting observation of our analysis has to do with the different approaches to the question of who should be in charge of organizing the mid-phase of civil proceedings. Most systems, including Belgium, Germany, Japan, Norway and the US, rely primarily on their judges' discretion, experience and legal knowledge to organize the different stages and steps of the mid-phase in each case. In a way, these systems assume that, since every case is different, the procedural structure must be adaptable to the particular case. Since it is not possible to predict the potential differences, the lawmaker finally entrusts judges with the decision to adapt the procedural structure to the specific case. This is also the approach adopted by the ERCP, which also emphasize the role of the court as a case manager and the need to play this role in cooperation with the parties.^[41] The flip side of flexibility is variation among individual judges in how they organize the proceedings and, thus, reduced foreseeability.
163. In contrast, the Spanish and, to a lesser extent, the Brazilian system rely heavily on the Code of Civil Procedure to regulate in detail the particular stages and steps of the mid-phase. In this setting, the discretion of the judge(s) to organize the procedural activity is very limited; the court is expected to guard the correct application of the structure described in the statute. It is the ‘law’, that is, written statutory law, that shall drive the procedure; judges should simply apply the law to enable the development of the procedure as the Code states. It is remarkable how, in these systems, the lawmaker believes that it is indeed possible to design a procedural structure that fits almost all cases or, at least, to establish the vast majority of this structure and, thus, very much limit the scope of judicial discretion to alter it. With this approach, our interpretation is that these systems mostly try to emphasize the importance of legal certainty and equality in court proceedings. The more specific and detailed the procedural structure is, the easier it is for the litigants to foresee how the proceedings will unfold and what will happen as the proceedings unfold. Additionally, the more specific and detailed the procedural structure is, the lesser the likelihood of similar cases being structured differently and, thus, similar litigants being treated differently.
164. Relying on the judges to define procedural structure may create uncertainty and inequality, whereas depending on statutory law may create unreasonable situations regarding a lack of adaptability of the procedural structure to the particular case. We believe both approaches are appropriate and that the prevailing approach depends on the legal culture in which it is embedded. Of course, all systems that refer to their judges for the organization of the mid-phase of civil proceedings require that their judges are duly educated and trained in such responsibilities. But even assuming that all judges have the necessary legal education and training to tailor the different procedural stages, legal cultures emphasizing certainty and harbouring suspicion of discretionary powers might still be far more fertile soil for a structure of proceedings based on detailed regulation than on judicial discretion.

4.4.3        The Role of ‘Preclusion’ and the Principle of ‘Concentrated Presentation of Facts and Offers of Evidence’

165. Furthermore, it is interesting to highlight how the rules on preclusion influence the procedural structure. As pointed out above, the term ‘preclusion’, which is understood completely differently in numerous jurisdictions, refers here to the parties being prohibited from bringing new submissions, that is, invoking new claims, allegations or evidence, after a particular stage of the proceedings or a time limit set by law or by the court. As indicated above in Chapter 1 subdivision 2, the notion of preclusion is intimately connected to how strict the principle of ‘concentrated presentation of facts and offers of evidence’ is understood. Where this principle is understood strictly, several strict legal provisions on preclusion allow for the prohibition of late submissions. On the contrary, where the concentration of facts and evidence is understood more flexibly, the preclusion rules appear less in number and less strict.
166. The comparison of the mid-phase reveals that most systems employ a flexible understanding of preclusion and the principle of concentrated presentation. What matters is that the procedural structure leads to a fair and correct outcome of the case, no matter how many submissions or actions are required to achieve this goal; thus, for the sake of justice, late submissions must not be, as a rule, forbidden. A clear exception to this general trend is Spain, where preclusion and the principle of concentrated presentation are very rigid. The rigid approach may put at risk the fairness and correctness of the outcome, but, on the other hand, it provides stability to the procedural structure – as it avoids the proceedings going back and forth after each new late submission – it discourages the parties to use delaying tactics and, eventually, contributes to a faster disposition of the case.
167. These two different understandings are reflected in the way preclusion operates. In most systems, for preclusion to apply – ie, for establishing that a party is prohibited from taking a particular action – a court decision is required; in other words, preclusion only occurs ope iudicis. This enables the parties to try any submission at any time, as they know that the court will then need to assess whether the submission is admissible or not in terms of contributing to a fair and correct outcome of the case. On the other hand, a rigid system may provide for preclusion by mere operation of the law (ope legis). This is the case of Article 136 of the Spanish Code of Civil Procedure, under which, once the moment foreseen in the Code to make a submission has elapsed, ‘preclusion will occur, and the opportunity to carry out the act in question will be lost’. A similar rule may be found in Article 223 of the Brazilian Code of Civil Procedure, although the law allows the parties to agree otherwise.
168. The comparison between the two approaches and their rationales suggests that both are valid regarding efficiency and adaptation to a particular legal culture. In a system with mandatory legal representation in civil cases – which is normally the case in Spain – and where dilatory tactics are expected, it does not seem unreasonable that a lawyer's lack of timely action leads to preclusion and bars the party from late submissions. In this way, a lawyer’s neglect does not negatively impact how the procedural structure unfolds in practice because it does not force the court to go back and forth in the proceedings. Thus, it allows the proceedings to unfold relatively linearly and fluently. Simultaneously, it prevents dilatory tactics from having repercussions on the other parties’ strategy, the court’s workload and the duration of the process. In other legal cultures, where self-representation is frequent or where abuses are not generally expected to occur, showing greater compassion for the parties committing mistakes and having greater leniency with late submissions also seems to be a perfectly workable approach in terms of facilitating that the outcome of the proceeding is as fair as possible.

4.4.4        Propelling Proceedings Forward

169. Another interesting general factor influencing the mid-phase structure is how proceedings are ‘boosted’ or pushed forward. A distinct feature of the US procedure is that the process is driven by ‘motions’ filed by the parties rather than by a court machinery that runs irrespective of whether the parties are actively requesting the court to take a step. The term ‘motion’ used in US law seems to suggest that the machinery of justice needs to be ignited and put in motion by one or both parties; otherwise, the court will remain passive. However, it should be noted that the emergence of ‘managerial judges’ and settlement conferences has produced a more active participation of judges in the US. The English scholar Neil Andrews has characterised ‘pure and unmodified’ adversarial proceedings as proceedings in which the parties ‘dictate at all stages the form, content and pace of litigation’.^[42] This idea still seems to be an undercurrent of the US litigation system where, despite the emergence of ‘managerial judges’, judges appear to remain passive umpires, and the parties continue to be the ‘motor’ of the proceedings.
170. In the other apex hearing systems we have examined, the main hearing systems of Brazil, Germany, Norway, and Spain, court proceedings have a steady flow, with the court or the court and the parties serving as the engine that propels the proceedings. There is, more or less, a pre-determined, standard process. A schedule is set with hearings and time limits for exchanging written proceedings. Parties may still file unilateral or joint ‘applications’ – rather than ‘motions’ – to change the course of the proceedings or to gain access to or refuse evidence, on which the court then decides. Still, these applications and decisions are part of the grinding of the procedure, of the bureaucratic process, that leads to a ruling. At least in some instances, it seems as if terminology encapsulates rich contextual information. This includes differences such as ‘trial’ versus ‘main hearing’ or ‘motion’ versus ‘application’ or ‘request’.^[43]

4.4.5        Manifestations of Theoretical Models and Challenges of Changing the Structure of Proceedings

171. A final reflection after the comparative analysis of the mid-phase of civil proceedings relates to the difficulty of implementing a novel procedural structure. Whereas enacting a new law that establishes a new structure might be simple, changing workflows and legal thinking, including the assumptions they are built on, is difficult. Successful reform requires that all elements of the civil procedure rules and beyond adequately support the novel structure. The Slovenian civil procedure rules, as practiced, illustrate the power of habits, the existing ‘script’ for the structure of proceedings and hearings, and beliefs regarding the aims and principles of civil litigation. Novel procedural rules should thus be fine-tuned to bridge the gap between the existing and the aspired practices and beliefs when reforming civil procedure to produce the intended structures and practices. Otherwise, the reform risks becoming a paper tiger.
172. Civil procedure research still poorly understands the gap between goals and ideals propelling the reforms, on the one hand, and the post-reform realities, on the other hand. The observed gulf, found in several jurisdictions compared, could shed light on the prerequisites and mechanisms of change in legal practices and factors facilitating and hampering reforms. We still do not understand whether some reforms have been more successful, at least in terms of the level of actual implementation, and if so, why they have been more successful. Apart from the frequent reluctance of human beings to make significant changes, we still wonder whether there are any additional drivers of resistance or susceptibility to procedural reforms common to the different legal systems.
173. One could even reflect on what should be the primary means to overcome the resistance to necessary procedural reforms. In this regard, it might be interesting to take account of the Austrian, Norwegian, Spanish and Swedish experiences when these systems transitioned from a written procedure to an oral one.
174. As to the Austrian experience, it took three years until the Zivilprozessordnung (Code of Civil Procedure), elaborated by Franz Klein in 1895, entered into force. Judges and lawyers were trained to apply the new law in those three years. In addition, once the new rules entered into force, the Minister for Justice sent its ‘judicial inspectors’ to courts and tribunals around the country to ensure that practice would conform to the new procedural rules.^[44] Similarly, but much more recently, in 2000, Spanish civil procedure abandoned the written procedure that had been in place since the Middle Ages. The Spanish lawmaker gave one year of vacatio legis, during which many courses, seminars and sessions on the new law occurred. Also, many publications shed light on how the new provisions should be applied. After the entry into force, no particular judicial inspectors were hired to ensure the new oral model was respected. However, an efficient tool favouring scrutiny was implemented, namely the deployment of video cameras in every courtroom to comply with the new provision requiring all hearings to be video recorded.
175. Thus, the Austrian and the Spanish reforms appear to have succeeded by using similar instruments: (i) a reasonably long vacatio legis that permitted practitioners to study the reform thoroughly with the help of seminars and courses; (ii) and the implementation of control mechanisms.
176. A comparison of efforts to modernize Norwegian and Swedish civil proceedings in the past decades highlights the importance of adjusting reforms. It is said that old habits die hard, and this applies to judges and lawyers, too. Even a fairly long time to study the new norms and develop new protocols and working methods might not always suffice. The 2008 civil procedure reform was based on a law committee report published in 2001, and the reform was enacted in 2005. Thus, judges and legal counsel had abundant time to prepare for the changes. A study conducted in 2013 revealed that the reforms were only partially successful. For instance, it found that judges spend very little time in preparatory hearings because these focus mainly on procedural case management, which has repercussions for the duration and lack of focus of the main hearing. However, these shortcomings were not addressed shortly after the findings were published. On the contrary, until today, very few changes have been enacted, despite recommendations on specific reforms given in a 2020 government report. In contrast, Swedish civil procedure has undergone not only several larger reforms every 10-20 years but also smaller reforms in which provisions have been adjusted to bring about the intended changes in practice. For instance, summaries of the claims, reliefs, allegations, and evidence were first introduced as a tool that courts could use to crystallise the case and separate disputed factual and legal arguments from undisputed ones. Later, summaries became mandatory unless the relevant disputed issues are straightforward.^[45] 
177. Based on these examples, it seems that paraphrasing the American poet T S Eliot: who noted that traditions ‘cannot be inherited, and if you want it you must obtain it by great labor’, that procedural reforms cannot be enacted, they must be obtained by great labour.^[46] It requires giving judges adequate training and time to prepare for reforms, and when necessary, adjustment of some provisions as well as continuous efforts to improve and refine work processes and protocols.

5        Closure of the Proceedings and Final Judgment

Enrique Vallines

178. There is a moment in the proceedings where the dispute is deemed to have been sufficiently argued and the case is found to be ripe for a final judgment. When this moment arrives, legal systems usually establish that the proceedings are ‘closed’ and, accordingly, no additional pleas, allegations or evidence are to be submitted. In the procedural structure, this moment may be called the ‘closure’ of the proceedings.
179. In the apex hearing systems that have been analysed in this contribution, the moment of closure of the proceedings follows naturally from the ‘dramaturgy’ of the apex hearing, normally when the parties finish presenting and, eventually, discussing their cases for the last time. In Germany, Norway and Spain, the judge presiding the main hearing formally declare the closure of the proceedings after the parties have submitted their final arguments and the court is satisfied that the matter is ripe for decision. In US jury trials, the closure of the proceedings occurs in the same ‘natural’ way, but without any formal declaration: at the trial, when the defendant finishes her closing argument and the court moves on to jury instructions, the proceedings are deemed to be closed in a very similar manner as they are formally declared closed in Germany, Norway and Spain. The same approach may be found in Brazil, where the law deems the case to be closed after the parties have ‘offered their final reasons’, which, as explained in the previous subchapter, is something that is expected to occur normally at the end of the apex hearing. However, in complex cases, Brazilian judges are allowed to establish that final arguments shall be provided in writing after the apex hearing has finished; in this case, the closure will occur as the last brief with final arguments is submitted or, alternatively, once the time-limit to submit this brief has elapsed.
180. In non-apex systems, there are different variants of closure. Sometimes, there is a formal declaration of closure by the court. This is the case of Slovenia, where presiding judge announces the ‘conclusion of the main hearing’ and informs the parties that ‘the judgment will be rendered in written form’. Another variant is that the proceedings are deemed to be closed after a particular procedural stage has been fulfilled, unless the court decides otherwise and provides for the continuation of the proceedings with new procedural stages. This happens in Belgium: after the hearing where the parties have presented their case, the court studies the possibility of issuing the final judgment; if it finds that there is no need for further discussions and evidence-taking, it will simply proceed to final judgment; if, on the contrary, it comes to the conclusion that further procedural activity is necessary, it will provide accordingly, normally scheduling a new hearing. Indeed, it is not unusual that Belgian courts call these additional hearings, so that there are several new hearings after the court finally decides to proceed to final judgment.
181. From the descriptions above, it follows that, in many systems (eg, Germany, Norway, Spain, Slovenia or Belgium), the closure of civil proceedings happens ope iudicis, ie, by way of a formal court order or a particular conduct of the court implying that the proceedings have been closed. However, there are systems (eg, US, Brazil) where the closure of proceedings occurs ope legis, once a particular procedural step has occurred.
182. After closure, the proceedings will move forward to the final judgment. Where the court is formed by a single judge, this judge could issue the judgment immediately (even in oral form) or after a period of reflection. Where a panel of judges forms the court, or a jury has intervened, there is a more or less long period of time (some minutes, hours, days, weeks or months) between closure and final judgment. Within this period of time, a number of activities shall or may happen, including deliberation and, in jury proceedings, verdict delivery. In some jurisdictions, the period to render the judgment is limited by statute,^[47] although non-compliance with these time limitations is normally tolerated and does not invalidate the judgment.
183. An important question is whether proceedings might still be reopened in the period that runs between the closure and the final judgment. The general answer to this question is in the negative because, as indicated above, it is at the essence of the closure of the proceedings that no additional pleas, allegations or evidence are to be allowed. However, most systems foresee exceptions – ‘scape valves’ - to this strict general rule with a view to achieve a fairer and more correct judgment. Here are some examples:

1. In Belgium, civil cases may be reopened at the request of a party when discovering a new fact or issue of importance; also, the court may of its own motion determine that the case is to be reopened when it is of the conviction that the case should be decided on another legal ground or that the factual grounds should be enlarged.
2. In Germany, a reopening of the main hearing may be ordered if the court determines that there was a material procedural error such as a violation of the judicial duty to give hints and feedback or a denial of the right to be heard during the just-closed proceeding or if the court becomes aware of a circumstance that would sustain a post-judgment motion to reopen the proceedings.
3. In Norway, a reopening of the main hearing is possible when the court considers that a sound basis for the ruling is needed; this may happen if the court and the parties have overlooked important issues, in particular legal arguments that the court finds applicable but that have not been explicitly discussed during the main hearing; also, a change of circumstances could be a reason for reopening the main hearing.
4. In Slovenia, the case may be reopened ‘if this is necessary for supplementing the proceedings or for clarification of some important questions’.
5. In Spain, no reopening of the main hearing is allowed. However, even after the closure of proceedings the parties may submit

judgments of a court or decisions of an administrative authority, issued or notified at a date not prior to the time of the formulation of the final arguments, provided that the judgments or decisions could be conditioning or decisive for the judgment on the case at hand.

In addition, the parties may also request a ‘final’ taking of specific evidence, provided that the fact that the specific evidence was not taken at the main hearing does not come as a consequence of a lack of diligence of the party making the request.

6. In the US, the judge may grant a losing party’s request for a new trial, in which case the jury’s verdict is set aside and the losing party is entitled to a new trial on its claims (although the party that is subject to the new trial decision may appeal that to a higher court, in which instance the new trial will be delayed until resolution of the appeal).

184. In any event, the court will ensure that the final judgment is communicated to the parties. Some jurisdictions (eg, Germany) require that the judgment is read aloud to the parties in a public hearing. Other jurisdictions (eg, Norway, Spain, Slovenia) simply require that a written copy of the judgment is served on the parties or their legal representatives. In these latter jurisdictions, publicity of proceedings is deemed to be ensured by way of establishing the right of any person to obtain a copy of the judgment (although, sometimes, only a redacted copy will be provided, in order to comply with data protection requirements).

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)
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
ERCP	ELI/UNIDROIT Model European Rules of Civil Procedure
EU	European Union
EUR	Euro
ff	following
fn	footnote (external, ie, in other chapters or in citations)
GCCP	Code of Civil Procedure (Germany)
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
LEC	Ley de Enjuiciamiento Civil
n	footnote (internal, ie, within the same chapter)
no	number/numbers
para	paragraph/paragraphs
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
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 US 32 (1991)].

Lujan v. Defenders of Wildlife (Supreme Court, United States), Judgment 12 June 1992 [504 US 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 US 544 (2007)].

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

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