1        Introduction

1. The previous chapter discussed the ‘regular’ course of proceedings recognising that many cases, in some jurisdictions – most cases, are resolved early, that is, without undergoing all the steps described and discussed. This chapter discusses the manifold methods by which cases are resolved early. Some grounds for early resolution are formal: the case is not admissible due to procedural grounds, or one of the parties fails to act in a timely manner. Other early resolution methods follow from the parties' right to dispose of the case, through withdrawal, by admitting or relinquishing claims and defences, and through settlement. This process could be facilitated by the court actively engaging in case management, thus assisting the parties in identifying points of agreement, estimating the prospects of prevailing, and the risks and costs of litigation, which could induce them to terminate the process early.
2. Case management is linked with the structure of hearings, more specifically, the apex hearing model (for this, see Chapter 2 subdivision 4.2), because both procedural and substantive case management requires the court to engage with all aspects of the case early. Active case management also requires a clear yet flexible structure which is moulded to ensure that the case at hand is processed expeditiously and adequately and a forum for the court and the parties to discuss the case. Hence, the room for case management is linked to the principles on which civil litigation is embedded in, and the structure of the proceedings, including the avenues for early resolution.
3. In recent decades, settlements have been a focal point of policymakers in many jurisdictions because it is an avenue to early, and thus faster and cheaper, dispute resolution. Settlements hinge on both the structure of the proceedings and active case management. They can create constellations which facilitate settlement both by elucidating, even crystallizing, the case and the steps and evidence needed to prevail, and paths to, and fora for, negotiations.
4. This chapter first discusses early resolution of cases, as a continuum of the previous chapter (part 2). It then proceeds to explore the role of case management (part 3). Part 4 offers views on the role of settlement as a form of early resolution and how settlement is entangled with case management.

2        Powers of the Court for Resolving the Dispute at an Early Stage

Anna Nylund, Aleš Galič with the support of Janek T Nowak

2.1        Introduction to Early Resolution

5. While the structure of court proceedings described above in Chapter 2 outlines how cases are processed in the jurisdictions studied, a significant number, or in some of the jurisdictions, even the majority of, court cases never proceed to the final stage. They are resolved during an early stage. Hence, the structures presented in Chapter 2 are not necessarily an accurate description of how court proceedings unfold in practice.
6. At least five different modalities of early resolution can be identified. First, cases can be dismissed on procedural grounds if they do not fulfil the criteria for admissibility. Second, the absence of a party or failure of a party to comply with time limits could result in a ruling against the non-compliant (absent) party on formal grounds. Third, one party could be allowed to end the proceedings unilaterally, or the parties could make a joint decision to terminate the case through withdrawal or other means. Fourth, in many jurisdictions, there are expedited proceedings for cases manifestly lacking reasonable prospects of success. Fifth, many cases end in settlement, either during regular court proceedings or after the case has been diverted to court-connected ADR.
7. In addition to or as a supplement to these five methods, some jurisdictions have enacted rules to combat frivolous litigation. This will be discussed separately.
8. Prior to discussing each of the five modalities of early resolution, some statistics on the methods of resolution will be presented to establish how common early resolution is in the jurisdictions studied and the variation across the jurisdictions.

2.2        Statistical Data on the Resolution of Civil Cases

9. This section presents statistical data on how courts in the jurisdictions studied resolve civil cases. Although the numbers are not fully comparable, they give some indication of the ratio of cases resolved on the merits after the full course of proceedings, the settlement rate and the use of various methods of early resolution. The data available varies from only scarce data in found on the US systems, which can be largely attributed to the lack of a single uniform court system, to fairly detailed data available from some countries with a uniform court system and a practice of publishing such data. Even when data is available, the numbers might not be fully comparable. One reason is that the categories used might not fully correspond with each other. As will be explained below, countries operate with different rules regarding withdrawal, which is likely to influence under which heading the case is resolved. Procedural rules, such as the pleadings standard and the extent to which the parties have access to evidence before and after having filed the action, could influence the litigation and early settlement rate. Thus, in some places, the parties could be incentivised to sue first and negotiate then; in other places, the opposite could be true. Similarly, many factors could influence whether parties are inclined to record their settlement as an in-court settlement, in which case the case would be classified as settled or to prefer to withdraw the case after settling it, in which case it would be considered as a withdrawal or similar.^[1] 
10. In Germany, in 2021, 42% of the civil cases brought before one of Landgerichte (the District Courts) were resolved through a contentious decision, 24 % by court settlement, 1,7% through a judgment based on acknowledgment or renunciation of the claim; 8% by default judgment and 10 % were withdrawn. Concerning the civil cases brought before one of the German Amtsgerichte (Local Courts), 27% were resolved through a contentious decision, 15 % by court settlement, 20% by default judgment, 6,5% through a judgment based on acknowledgment or renunciation of the claim and 12% were withdrawn.
11. In Norway, in 2018, 41 % of civil cases were resolved through a judgment of the merits, 24 % by a court settlement, 13 % after settlement in in-court mediation, 5 % were dismissed, 2 % withdrawn and 1 % through other means.^[2]
12. In Norway, cases with a judgment on the merits have been heard in a main hearing. Also, there is reason to believe that quite a few settlements are concluded during the main hearing. Therefore, estimating that approximately half of all cases proceed to the main hearing stage is appropriate. Even if this is not an exact figure, it gives some idea to assess whether ‘the vanishing trial’ is an accurate description of Norwegian civil procedure.
13. In Brazil, most legal proceedings finish with the resolution of the merits by the judicial bodies. The settlement rate is traditionally low. In 2015, the percentage was 11.1% in the general framework of the Judiciary, 13.6% in 2016, 13.5 in 2017, 12.8% in 2018, 12.4% in 2019, 11% in 2020 and 11.9% in 2021. In Labor Courts, in 2021, consensual solutions reached 20.5% of cases, in State Courts 11.5%, and in Federal Courts 9.3%. However, a great effort has been made to change this reality, especially with the provision contained in the current civil procedural statute, in force since 2016, in the sense of establishing the mandatory holding, with few exceptions, of a prior mediation and conciliation hearing, preceding the defendant's response. There are no official national data on the number and percentages of judgments on the merits or merely terminating the process, as well as an indication of the number of withdrawals, resignations or acceptance of requests. However, as a parameter, the numbers obtained in the Judiciary Section of the State of Rio de Janeiro, within the scope of Federal Justice, can be pointed out. In this, 80% of the sentences handed down in 2022 judged the merits, and 20% ended without a judgment on the merits, due to the lack of a procedural requirement or the author's withdrawal.
14. In Japan, in practice more than 30% cases are finished by settlement in the first instance of District Court.
15. Data regarding the US is not available. The main reason for this is the complexity of the court system: there are both federal and state courts with tangible variations among the systems. Thus, there is no comprehensive data available. In the twelve-month period ending 31 March 2023, only 0.7 % of the civil cases terminated by US District Courts reached trial.^[3] Data on litigation in civil cases in state courts covering 19 states^[4] in 2021, the jury trial rate was 0.06 %, and in 2020 data for 17 state court systems^[5] found the same jury trial rate. The bench trial rates were, on average, 11,1 % in 2021 in the 20 states and territories^[6] included in the statistics and 10,3 % in 2020 in the 20 states and territories^[7] included.^[8] The states in these statistics are only partially overlapping and might not be representative of all US states. Although the data is incomplete and might not fully correspond to the reality in all US states and territories, it still gives an indication of how rare jury trials are in civil cases and that the majority of cases are disposed of before reaching the (bench) trial.

2.3        Early Resolution Based on Formal Criteria

16. Courts in all jurisdictions in this study have the power to resolve cases based on formal criteria. The criteria that need to be fulfilled for a case to be allowed vary across jurisdictions. Differences in pleadings standards have been discussed above. Cases must also meet other requirements, such as being filed with a competent court, the parties must have legal and procedural capacity, and the claim(s) must not be res judicata. The nature of these requirements varies across jurisdictions. For instance, legal standing is a procedural requirement for admissibility in Norwegian law and a substantive requirement in Spanish law.^[9] Similarly, the categorisation of estoppel effects of rulings might vary across jurisdictions;^[10] nevertheless, attempts to relitigate cases result, as a rule, in early dismissal. Thus, this section uses the terms ‘formal’ rather than ‘procedural’.
17. The extent to which courts must investigate formal criteria also varies. Scandinavian civil procedure doctrine operates with two types of criteria for admissibility: absolute and relative. The court must investigate and enforce the presence of absolute criteria on its own motion. Legal standing and functional jurisdiction are among these criteria. Territorial jurisdiction is an example of a relative criterion. In Norway and, for example, Germany and Spain, the court becomes competent if the defendant tacitly accepts its jurisdiction by entering an appearance without raising the issue of territorial jurisdiction.^[11] This applies to international cases when the Brussels Ibis Regulation^[12] or the Lugano Convention^[13] is applicable. There are exceptions for cases with mandatory jurisdiction, such as cases related to immovable property. In consumer cases, the court must raise the issue of jurisdiction on its own motion in the members of the EU and the European Economic Agreement. In Belgium and Spain, several rules on territorial jurisdiction are of public order and should be raised by the courts of their own motion.^[14] 
18. Not all formal errors result in dismissal or other forms of early resolution. In Belgium, if an action is filed with the hierarchically wrong court, the court must refer the case to the 'Tribunal d'arrondissement'. The Tribunal will decide the issue and refer the case to the competent judge.^[15] In Norway, District Courts must transfer cases in which the Conciliation Boards have sole jurisdiction to the competent Conciliation Board.^[16] If the court lacks territorial jurisdiction, it may transfer the case to the competent court. In Germany, the defendant may request that the court transfers the case to the competent court.^[17] In Norway, Slovenia and Spain, the court shall transfer the case on its own motion.^[18] In the meantime, the case remains lis pendens.
19. Expedient justice requires that courts decide on admissibility at the earliest possible occasion. When the case is manifestly inadmissible, and the deficiencies cannot be rectified by amending or supplementing the pleadings, in some jurisdictions, including Norway, Slovenia and Spain, the court may dismiss it without serving it upon the defendant.^[19] This saves time and costs for both the court and the intended defendant. However, Norwegian courts are reluctant to proceed in this manner because the statement of defence could contain relevant arguments that allow the court to assess admissibility in a broader fashion.
20. When rectification is possible, Norwegian and Spanish courts must set a time limit and provide necessary guidance to parties to enable them to make the required additions and amendments.^[20] In Slovenia and Spain, the Constitutional Court has held that it is a disproportionate restriction of effective access to a court if the claim is dismissed immediately without allowing the claimant to rectify it. The type and extent of guidance depend, among other things, on whether the party is self-represented or has a lawyer and whether it is obvious or difficult to determine how the error or omission can be rectified.^[21]
21. Formal deficiencies can often be dealt with in written proceedings based on the statement of claim and defence. Sometimes additional briefs might be necessary, and if the issues are complex, a court hearing, or both, might be needed to enable the parties to elucidate their arguments.
22. Sometimes formal deficiencies are deeply entangled with the substantive aspects of the case. This constitutes a dilemma in at least those systems that rely on a concentrated final hearing. If the court hears most of the case to determine whether the formal requirements are fulfilled, it risks hearing the case twice, ie, first to determine whether the formal requirements are fulfilled. Then, unless the case is dismissed, the court hears it on its merits. German law seeks to maintain the separation between procedural and substantive issues. If there are clear aspects that might lead to the inadmissibility of the claim, the court may schedule a hearing only for the purpose of determining admissibility. However, the court may also hear any other issues that it finds suitable to be heard during that hearing. Similarly, Spanish law devotes a distinct part of the ‘pre-trial hearing’ to analysing and deciding on ‘procedural questions’ before delving into issues that relate to the merits of the case.^[22] Norwegian law prefers courts to hear the case on substantive grounds for dismissal.^[23] If it is unclear whether the criteria for admissibility are fulfilled in Norwegian law, and the unclear procedural matter has strong linkages to disputed substantive issues, the court proceeds to hear the case on the merits, as if the procedural requirements are fulfilled. Once the parties have argued their cases or at least parts relevant to the procedural issue, it rules on the procedural issue.^[24] A ruling on the merits is more favourable, as it will be res judicata and thus enforceable and an effective bar against attempts to relitigate the case.
23. In contrast, in Slovenia, formal issues should be determined first. Yet there is no cut-off deadline for invoking procedural irregularities; thus, it is not rare that the claim is dismissed on formal grounds at a rather late stage of proceedings (eg, for lack of standing or lis pendens). Belgian procedural law is very liberal, and this issue is not formally regulated in the Belgian Judicial Code.
24. The effects of rulings to dismiss the case on formal grounds vary across legal systems.^[25] Some countries have some res judicata (estoppel) effects and are enforceable to some extent; in other countries, such as Slovenia or Spain, they are not res judicata or directly enforceable. In Slovenia, rulings dismissing a case on formal grounds have no res judicata effects.^[26] In Norway, this depends on the content of the ruling. If the deficiency can be rectified, the res judicata effects do not apply. This would be the case if the court found the action was filed too early, ie, before the time limit of the obligation at stake had lapsed, the claimant is allowed to file the case once the time limit has passed and the defendant has not fulfilled the obligations. In the US, the court has the power to dismiss a claim with prejudice, which bars the claimant from resubmitting the claim.

2.4        Default Judgments and Other Rulings Based on Non-Compliance or Non-Appearance

25. Sometimes parties fail to meet time limits set by statutory law or the court, such as filing a statement of defence or written submissions or entering an appearance at a court hearing.
26. In some jurisdictions, the sanction for non-compliance or non-appearance is that the court will find against the non-compliant party unless the claims are unjustified. In Norwegian law, in addition to time limits that are always sanctioned as non-appearance (notably, paying the court fee, filing the statement of defence, and presence at hearings), courts have the discretion to use this sanction for other time limits when the procedural act is of material importance for the opposite party or conducting litigation in an expeditious manner.^[27]
27. In Germany and Slovenia, the absent party is considered to have admitted to the facts of the case;^[28] thus, the court must still examine whether these facts, if true, would disclose a legally recognisable claim against the defendant (German: die Schlüssigkeitprüfung). In other jurisdictions, including Norway, the court engages in a broader prima facie examination of whether the claim is well founded. However, while the examination includes the fact and the law, it is only a prima facie evaluation, whereas the German Schlüssigkeitsprüfung entails a full legal evaluation, with the facts claimed being considered true or proven.
28. In contrast, in Belgium, a party who fails to appear at a hearing other than the initial hearing but has submitted written submissions is not in default (Art 804 Belgian Judicial Code). This underscores the written nature of Belgian civil procedure. In the Netherlands, the principle is that 'once appeared, remains appeared'. Thus, it is not possible to obtain a default judgment against a party who initially entered an appearance but failed to appear later on. The court must check whether the claim is not contrary to public order or any other rule a court can apply ex officio.^[29] Moreover, the Supreme Court has held that awarding a manifestly unfounded claim contradicts public order.^[30] Further, a judge must check compliance with the rules implementing the EU Directive on Unfair Contract Terms.^[31] In practice, it is unclear whether such checks occur systematically since the number of cases in which the defendant defaults are very high due to the lack of a payment order procedure. The requirement to control whether the claim complies with the Unfair Contract Terms Directive applies in all EU Member States and EEA/EFTA States.
29. In Japan, if both parties fail to appear or leave the court without presenting oral arguments, and the court finds it appropriate, the court may render a final judgment. If only one party is absent, the court makes a ruling at the request of the party present at the hearing.^[32]
30. In contrast, in Spanish law, failure to file the statement of defence is not sanctioned with a default judgment which ends the court proceedings. Instead, the proceedings will continue without the presence of the defendant. The claimant will still have to prove their claim, and the defendant may join the proceedings at any time - although, as a general rule, the defendant will not be entitled to introduce defences or written evidence nor to do anything that they were meant to have done at an earlier stage. Thus, in Spain, a ‘default judgment’ is never an early judgment but a judgment given after the whole proceedings have unfolded with the only participation of the claimant.^[33]
31. Involuntary dismissal in US law is similar to default judgments. When the claimant fails to comply with the rules of civil procedure or court order, the defendant may move to dismiss the action. Involuntary dismissal operates as an adjudication on the merits.
32. German courts may issue default judgments against the claimant and the defendant.^[34] In Norwegian law, default judgments are the sanction for defendants only: the court will dismiss the claim if the claimant is absent.^[35] This is also the case in the Netherlands.^[36] 
33. Default judgments can be challenged more easily than other types of judgments in many countries. In German law, the recourse against a default judgment is reinstatement. The party against whom the default judgment was issued files an application for reinstatement without giving reasons for the absence, and the court grants reinstatement whereby the proceedings may continue.^[37] In Norway, the application for reinstatement must be filed within a month, and reinstatement is contingent upon lawful absence (eg, serious illness or other reason why attendance at the hearing or compliance with the time limit would have been unreasonably burdensome). The court may also grant reinstatement if rejecting the application for reinstatement would be unreasonable.^[38] The same applies in Slovenia.^[39] Belgium is an exception: default judgments are challenged through ordinary appeals procedure unless no ordinary appeal is available, not including cassation.^[40]

2.5        Withdrawal and Other Ways to Voluntarily End Litigation

34. According to the basic principles of civil litigation, only a party to a dispute has the power to initiate litigation, and the parties to court proceedings determine the scope of the court proceedings by selecting which claims and defences they invoke, the relief sought, and which allegations they present in support of their claims and defences.^[41] As a corollary, the parties shall be allowed to end litigation before the final ruling. Parties may wish to end litigation early when they realise that the other party is likely to prevail or that the risks, costs and delay of litigation are disproportionate.
35. Parties can end litigation in two ways. First, if the claimant relinquishes a claim or the defendant admits it, the court will normally rule accordingly. In Spain, allanamiento (admittance) by the defendant and renuncia (relinquishment) by the claimant certainly lead to a judgment on the merits that will become res judicata. Courts in Slovenia may decide the case based on the admittance by the defendant or relinquishment on the part of the claimant; the court will then rule on the merits, finding for the opposite party.^[42] 
36. In countries having default judgments, the parties may opt to remain passive, in lieu of admitting or relinquishing the claim, because non-appearance also results in a ruling that ends the litigation.
37. The second way is withdrawal. Withdrawal differs from admitting and relinquishing a claim in that it does not signify that the party admits the claim’s existence or non-existence; it only implies that the party wishes to discontinue the litigation. Withdrawal could be a result of a settlement. It does not preclude the parties from bringing an action regarding the same claim later.
38. At the early stages of the proceedings, the claimant can withdraw the action unilaterally without being precluded from bringing a new action concerning the same dispute later. At some stage of the proceedings, when defendants have vested resources in the litigation or filed a counterclaim or claimed setoff, they have gained a strong interest in the court ruling on the merits. Therefore, withdrawal is contingent upon mutual consent or the court’s discretion in many countries. In Belgium, the limit for unilateral withdrawal applies until the defendant files submissions.^[43] In Norway and Spain, the claimant can withdraw the case until the statement of claim is served on the defendant.^[44] In the US, a claimant may dismiss an action without a court order by filing a notice of dismissal before the opposing party files either an answer or motion for summary judgment or a stipulation of dismissal signed by all the parties appearing in the case.^[45] The unilateral right to withdrawal is in place in Germany until the first hearing.^[46]
39. In Belgium and Spain, withdrawal is contingent on the consent of the court: The court will decide whether the claimant is allowed to withdraw the claim even if the defendant does not consent.^[47] 
40. In Norway, the defendant is entitled to a ruling on the merits once, and thus, if the defendant does not consent to withdrawal, the claimant is considered to have abandoned the claim.^[48] In the US, the claimant may request that the court order dismissal. When the defendant has pleaded a counterclaim to the claimant’s claims before being served with the claimant’s motion to dismiss the case, the court may dismiss the action over the defendant’s objection only if the counterclaim can remain pending for independent adjudication.^[49] In Spain, desistimiento (withdrawal), whether it is unilateral or consented by the defendant, always leads to an order bringing the proceedings to an end but allowing the claimant to refile their claim.^[50]
41. An admittance, relinquishment or withdrawal can be partial. In this case, the court proceedings will be continued for the rest of the claims.

2.6        Settlement

42. As explained, basic principles of civil litigation establish that only the parties decide whether to initiate court proceedings, which claims are included in the proceedings and the scope of the proceedings. Consequently, parties should not only be allowed to withdraw the action but also to end it or any claims through settlement. As noted above, sometimes the parties settle their case but, instead of disclosing the settlement to the court, they bring the proceedings to an end by way of withdrawal, admittance or relinquishment. In this way, they keep the terms of the settlement confidential.
43. In countries such as Spain, settlements that are submitted to the court for approval must be entered into court records and thus become public. This is, for many litigants, an incentive to withdraw the case rather than to settle formally. Even when the parties can choose between a regular settlement (ie, one that is binding as a contract and not directly enforceable) and a court settlement that is recorded and enforceable, some parties prefer withdrawal because the court will not be involved in the settlement. While Norwegian litigants have the option of not recording their settlement, court statistics show that almost all litigants opt for a court settlement.
44. Settlement is discussed in more detail below.

2.7        Early Ruling on the Merits

45. In some countries, courts have the power to issue a ruling on the merits before the final stage if a claim or defence manifestly lacks a reasonable prospect of success. In some countries, they have the power to make an early ruling if the pleadings are insufficient or if the case can be resolved based on limited evidence. There is significant variation in the extent to which courts have the power to dispose of claims and actions early.
46. Early ruling on the merits is available for all cases in the US and Norway. In the US, a defendant may move to dismiss a claimant’s pleading (the complaint) for failure to state a claim upon which relief can be granted (‘dismissal for insufficient pleadings’).^[51] First, if the court grants the motion ‘with prejudice’, that ends the case, and the claimant may not replead their complaint. If the court grants the motion ‘without prejudice’, the pleader may re-plead their complaint. Sometimes if a judge grants the motion to dismiss for failure to state a claim, the judge may offer suggestions to the claimant concerning the deficiencies in the pleadings and how to cure those defects upon re-pleading the case. Second, either party may ask the court to dismiss the litigation after all the pleadings have been filed with the court (‘dismissal for judgment on the pleadings).^[52] The court will grant the motion if the pleadings taken together satisfy the elements of the claim and there would be no purpose for a trial. On the contrary, if the pleadings present a viable defence to the claimant’s claims, the court will grant the motion in the defendant’s favour. Motions for judgment on the pleadings occur before formal discovery has occurred. Third, after discovery but before trial, either party may request that the court grant summary judgment on any claim or defence.^[53] The parties moving for summary judgment will submit to the court materials obtained through the discovery process. The court will grant the summary judgment if the movant shows no genuine dispute about a material fact. The movant is entitled to a judgment as a matter of law regarding the entire case or partial summary judgment as to specific claims or defences in the litigation. If the court grants the summary judgment motion, this constitutes a final judgment, the litigation ends, and there is no trial.^[54]
47. In Norway, courts have the power to rule on the merits in a simplified process at the request of a party if a claim or an issue manifestly lacks a reasonable prospect of success. The court can either rule based on written submissions or when it is necessary to grant the right to a fair trial, or at the request of a party, after a brief hearing during the preparatory stage.^[55] The decision to rule on the merits in simplified proceedings is not subject to appeal. However, parties can challenge the procedural decision as part of the ruling on the merits.
48. In Spanish law, a lack of prospect of success is not a ground for early dismissal. However, an early judgment on the merits may still occur in two situations. First, when there are no disputed facts, the parties agree on the facts of the case and disagree on the legal consequences of those facts.^[56] Second, when no oral evidence needs to be taken, and no audio/video recordings of oral evidence need to be heard at the court hearing, ie, when all the evidence consists of written evidence only, ie, documents, written expert reports, or both.^[57] 
49. In Germany, there are no such proceedings. However, if the evidence is exclusively in writing, the claimant can select Urkundenprozess (the documentary procedure) for simplified proceedings.^[58] If the defendant contests the proceedings, the case will be held in regular proceedings. In Slovenia, no mechanism for early dismissal of clearly unmeritorious claims and defences exists, which is considered a serious shortcoming of the procedural model in force. In Belgium, no early dismissal procedure exists. However, if the parties agree to the ‘short debate’ procedure, courts may easily dispose of cases without going through the ordinary course of proceedings.^[59]

2.8        Dealing with Frivolous Litigation – Abuse of Court Proceedings

50. Some people abuse court proceedings by filing frivolous cases due to serious mental health issues, which do not amount to the person lacking legal capacity; others do so willingly to distract or pressure the opposite party.^[60] To combat abusive or frivolous litigation, courts have been given powers to reject actions, motions and petitions manifestly vexatious, abusive or fraudulent.^[61] This rule in Norway is limited to the same claimant repeatedly bringing frivolous claims.^[62] 
51. The US Federal Rules embrace several different sanctioning provisions and mechanisms. There are separate sanctioning rules for pleading violations and separate, detailed rules for abusive discovery practices. Parties also may be sanctioned under a general federal statutory provision for vexatiously and needlessly multiplying proceedings. Sanctions may include fines, fees assessed to pay the other party’s costs, and causing an allegation to be deemed admitted. In addition to rule and statutory sanctions, judges have inherent powers to discipline attorneys appearing before the court, including contempt sanctions as well as incarceration for non-compliance. Finally, attorneys may be sanctioned by their state bar licensure entity: letters of reprimand, censure, suspension, or disbarment. 
52. However, rejecting abusive, frivolous, and fraudulent claims is exceptional in many systems. In Belgium, frivolous litigation can still be penalized in the following ways: cost orders, fines, damages, and limitation of interests claimed.

2.9        Comparative Observations

53. While these six forms of early resolution can be found in most countries studied, and all countries have at least some mechanisms for early resolution, there are also clear differences. In some countries, including Belgium, Slovenia and, to some extent, Spain, once court proceedings have been put in motion, the machinery of litigation strives to produce a ruling on the merits, and litigants have limited opportunity to stop the process. It is as if the conveyor belt runs until the process is finished. In the US, the parties are the masters of the proceedings, and early dismissal is contingent mainly on litigants making motions to dismiss the case or other forms of early resolution. Countries such as Germany and Norway operate with multiple exit routes from the process during the proceedings, some of which litigants may use based on a unilateral decision to terminate litigation, while others require the consent of the litigants.

3        Case Management

Aleš Galič with the support of Anna Nylund and Janek Nowak

3.1        Case Management and the Preparatory Proceedings

54. A strong interdependence link exists between case management and a structure of civil proceedings consisting of a final hearing and a preparatory stage leading up to the final hearing(s). More precisely, there is a strong linkage between case management and the apex hearing structure, in which the ‘mid stage’ of proceedings consists of a ‘preparatory stage’ and the apex hearing (see Chapter 2, subdivision 4.2). A key element to ensure a successful preparatory stage of proceedings is active judicial case management – both procedural and substantive. The preparatory stage of proceedings requires an active judge involved in case management and clarification of the case and, by extension, in developing the case.
55. Thus, the idea of active case management fits well into civil procedure structures with an apex hearing, especially the main hearing model of civil procedure.^[63] The main hearing model namely distinguishes between preparatory proceedings (‘pre-trial’) and the main hearing (apex hearing, ‘trial’). Judicial case management (in cooperation with the parties^[64]) is the most important tool of the preparatory proceedings, whereas well-prepared preparatory proceedings are the precondition for a successful and concentrated (focused) main hearing.^[65] In this manner, the best overall achievement of the goals of civil procedure can be achieved:  rendering justice on the merits in each individual case, however, within a reasonable time and with a proportionate use of judicial resources.
56. Worldwide trends and policies in developing civil procedure law support adopting the apex hearing model.^[66] The central part of civil proceedings is the apex, or main hearing, which is based on the principles of immediacy, orality and concentration.^[67] However, a prerequisite for achieving this goal is a well-prepared preparatory stage of civil proceedings (following the initial stage), enabling case management, clarification of issues and concentration of the case on the disputed questions. The role of the preparatory proceedings is to ensure early disposal of cases, timely hearings, and a single concentrated apex hearing where the parties present their claims, arguments and evidence directly to the court deciding the case.
57. Undoubtedly, the distinction between the preparatory stage and the main hearing can clearly be maintained. This, however, is not the case for the distinction between the initial phase (the first phase of the procedure) and the preparatory stage. Unless one operates with a similar approach as in this study, namely one in which merely the initial acts of the parties (the claim and the defence plea (the reply to the claim) falls within the initial phase, the boundary between the initial stage and the ‘mid stage’, more precisely, the preparatory part of it, will be blurred. The reason is that some of the most important decisions concerning both procedural as well as substantive case management refer to a decision on how many further rounds of submissions (if any at all) after the filing of the claim and the defence plea will be admitted and what the time-limits for them will be (and whether they are limited in scope and admissible contents).
58. It is difficult to maintain the traditional divide between two types of case management – procedural case management on the one hand and substantive case management on the other, The former is supposed to comprise organizational measures and scheduling (for example, determining the time-table for submissions and hearings, deciding on bifurcation or consolidation of cases, determining formal aspects for submissions of parties’ briefs and documentary evidence, ordering payment of advances of costs, checking procedural prerequisites for admissibility of claims and defences and so forth), The latter is designed to assist the parties in the responsible pursuit of their cases, in particular with the judge’s responsibility to seek clarification of legal and factual issues,^[68] to establish a proper dialogue between the judge and the parties, and, at least in some jurisdictions, such Austria, Germany and Slovenia, to provide feedback, hints and observations.^[69] Yet, the judge can only effectively and adequately implement measures of procedural case management, such as setting the time limits for submissions and dates of hearings as well as determining the number of rounds of exchanges of parties’ briefs, if they know the file and the main characteristics of the individual case sufficiently well and if measures of substantive case management (such as seeking clarification of parties’ positions and determination of which facts are in dispute and are material for the determination of the case) have been duly implemented. Numerous case management tools, in fact, have both organizational and substantive purposes.^[70] 

3.2        Case Management, Flexibility of Procedure and Judicial Discretion

59. There exists an inherent link between promoting judicial case management on the one hand and the preference for a flexible procedural regime, which leaves much space for judicial discretion on the other. Judicial discretion is essential to the idea of case management. The goal of civil procedure (ensuring justice on the merits, however, in a reasonable time at a reasonable and proportionate cost) cannot be pursued through the same model of procedure rigidly conceived as applicable in every case. ^[71]
60. The aforementioned goal of civil procedure rather needs flexibility and different models of procedure to be adopted depending on the peculiarities of each case. The proceedings should preferably be tailored to each case to achieve a proportionate use of resources. Procedural rules must therefore be flexible, and the judge should have ample discretion to adjust the unfolding of the case to its individual characteristics.
61. Rigid (‘one-size-fits-all’) procedural rules are not preferred. Cases can differ greatly – some are easily resolved, some involve complex questions of law, some involve complicated questions of facts and a time-consuming process of taking evidence, and highly qualified attorneys participate in some (sometimes in a mutually cooperative manner, sometimes in a rather hostile atmosphere), while in others lay parties represent themselves (unless there exists mandatory representation by lawyers).
62. Therefore, a flexible system (in which it is left to the judge to decide, for example, whether to request that further information be provided in written briefs and, if so, within what time limit) is more appropriate than a rigid system of time limits imposed by law. It is also plausible that a judge can decide, in accordance with the particularities of the given case, whether a written preparatory procedure (requiring parties to file further written briefs) or a case management (preparatory) hearing during which the judge can discuss the case with the parties, is the best way to proceed.^[72]
63. The above corresponds to the idea of differential case management (the practice of assigning cases to different tracks^[73], each with its own particularised process based on the complexity of the case and other variables.

3.3        Substantive Case Management

64. Substantive case management refers to a process in which the parties and the judge, ideally in cooperation, are able to pinpoint the legal and factual issues that are ‘still matters of serious dispute’, as ELI/UNIDROIT Rule 64(3) puts it. This entails separating disputed from undisputed issues and distinguishing between core, peripheral and irrelevant legal and factual arguments and circumstances. Thus, the case should be concentrated - condensed - to the central disputed issues. Additionally, the evidence should also be concentrated and include only what is necessary to prove disputed factual circumstances.^[74]
65. While the parties should preferably have identified the matters in dispute prior to filing the case (ie, during the pre-action stage) and no later during the initiation stage (ie, in the statement of claim and defence) this is often not the case. One reason is incomplete or unclear communication or misunderstandings, such as when a party addresses the assertions of the opposite party only partially. Legal or factual complexity could also result in unclear pleadings. Strict rules on preclusion could force the parties to front-load the case, thus making completeness rather than clarity and stringency of the pleadings their primary concern.
66. Redundant or irrelevant arguments and facts could render the case more complex and weaken the stringency and alignment of legal and factual arguments and evidence. Moreover, as the parties gain access to evidence and a more profound understanding of the arguments and evidence of the opposite party during written and oral preparation of the case, they should have the opportunity to adjust, recalibrate and reiterate the framing of the case. The court should be a catalyst by raising questions, identifying ambiguities, and, in complex cases, assisting the parties in organising the information.^[75]
67. Substantive case management is important for many procedural goals. Understanding what is at stake and what the disputed issues are, facilitates proportionality and expedience. The parties can assess the costs and risks of litigation more accurately, which could create incentives for early resolution. The parties could also make more informed decisions regarding whether and on what terms to settle the dispute. Similarly, substantive case management puts the court in a better position to exercise procedural case management and assess whether and how to facilitate settlement. Moreover, substantive case management, in the context of legal issues, is an important tool for preventing undue surprise and for safeguarding effective parties’ right to be heard – for example when both Parties argue the case from a certain legal perspective, the judge however intends to rely on a different legal basis (which, insofar the rule iura novit curia / the court knows the law is also the decisive one). Hence, the judge may need to warn parties in advance about the possibility to rely on a rule of law, which parties did not invoke and in such case enable the parties to reflect on it.^[76]
68. In some jurisdictions, such as in the Nordic countries, the court or the parties synthesise the main arguments and disputed issues in advance of the main hearing. In Sweden, this is usually done both before the preparatory hearing. The document is adjusted after the hearing, and later, when necessary.^[77]
69. The methods which the judges may use in the process vary. For instance, in Germany, judges are expected to give hints and advice to the parties regarding the likely litigated outcome and how the judge views the case;^[78] in the Nordic countries, this kind of ‘intensive’ substantive case management is considered inappropriate because the judge will no longer be perceived as impartial.^[79] The extent and manner in which judges can exercise substantive case management also depends on how proceedings are structured, including the scope of initial pleadings, and the timing, scope and duration of preparatory (case management) hearings, rules regarding the identification, disclosure and submission of evidence and so forth.

3.4        Case Management and the Judge’s Power to Disregard Facts and Evidence Submitted Late (So-Called ‘Preclusions’)

70. The role of ‘preclusion’ (here in the sense of debarring/disallowing of new claims, arguments and evidence, submitted late/‘cut-off’ dates for new submissions/ arguments^[80]) is central both to effective case management as well as to any meaningful distinction between the preparatory stage and the main hearing. There cannot be a well-prepared, focused, and concentrated main hearing without a precise time limit when the parties may bring forward new facts and evidence. A clear time limit, within which the claims, and the factual basis (knowing what is both relevant and contested) for the case should be ‘fixed’ before the main hearing, is essential. The parties and the court will know which pieces of evidence will be presented and which persons will be heard during the main hearing. To allow for clarification and identification of central issues, the limit should be set at the end of the preparatory stage.^[81] 
71. To avoid excessive ‘frontloading’ and comply with the parties’ right to be heard, the rules on debarring new arguments, facts and evidence should not be too harsh. The Parties should have a reasonable opportunity to present their cases, including the opportunity to adapt their pleadings and arguments to the development of the case during the preliminary stage of proceedings.^[82] Judicial responsibility to seek clarification and, in some jurisdictions, to offer feedback (as a part of substantive case management) namely goes hand in hand with the requirement that the parties should have a right to reflect on these activities adequately and, if necessary, supplement their factual assertions and adducing of evidence. Too strict limitations without adequate exceptions could thrust the parties to frontload the case and to an excessive preparatory stage and thus inefficiency, which is the case in Finland.^[83]
72. The question of the proportionality between state resources offered for the resolution of a single dispute and the social and economic importance of this dispute (‘proportionality between the case and the procedure’) is clearly emphasised in the context of this procedural instrument.^[84]
73. The role of the judge in setting binding time limits (and applying sanctions, including debarring facts and evidence submitted late if these are not complied with) as a part of case management tools does not mean that there cannot be any regulation in this regard already in civil procedure law. The law should provide a general outline and framework of binding time limits that define the moment in the proceedings up until the parties are free to bring forward new facts and evidence. However, there should ideally be enough place for judicial discretion and the possibility for the judge to tailor the procedure, including the discussed issue, to the characteristics of each individual case. For example, if the judge believes that the parties should reflect, adapt, or supplement certain points, it should be enabled to order them to do so – including setting the binding time limits for that purpose.^[85] 
74. This being said, there is, as experience shows in some states, one major drawback if the legislature opts for a too broadly framed regime of ‘preclusions’ or if it leaves too much space for relief from sanctions. For example, if instead of a firm cut-off date for bringing forward new facts and evidence, the law adopts general clauses such as that the parties ‘must present facts and evidence in such timely manner that corresponds to a diligent preparation of the case’ or if a very lenient concept of ‘fault’ or ‘proper excuse’ is applied (whereby allowing the party always to submit new arguments which it failed to submit before ‘without considerable fault’ on her side etc, there exists a real danger that the first instance judges will be too reluctant to use sanctions of debarring new facts and evidence, fearing that their judgment will fall on appeal for a gross procedural violation of the right to be heard.^[86] This is especially so where the mentality still prevails that applying any sanction of ‘preclusion’ is not in line with the goal of doing justice on the merits and if appellate courts do not genuinely embrace the idea that the primary purpose of sanctions, as explained above, is to ensure a diligent and substantive preparation of the case. In addition, if rules relating to ‘preclusions’ are too ambiguous and broadly framed, that could give rise to a substantial amount of satellite litigation on the discussed procedural issue.^[87] For the above reasons, the question is put, whether it is not better to set already in the law a system of a relatively firm legislatively predetermined firm cut-off moment (at the end of the preparatory stage of proceedings) for the presentation of new facts and evidence.^[88]
75. The time limits for bringing forward new arguments serve a purpose of a thorough and diligent preparation of the case, which can only be beneficial from the perspective of rendering just results on the merits.^[89] They can also contribute to the clarification or partial resolution of the case. The same goes for another purpose of this procedural instrument, namely preventing ‘ambush tactics’ in the main hearing. The system of cut-off dates for bringing forward new arguments enables for a better exercise of the right to be heard and rights of defence in general, as it ensures that each party shall know the relevant arguments of its opponent at a reasonably early stage, thus enabling sufficient time to reflect and reply. Moreover, if the parties know ‘what is in the hands’ of their opponent early enough, this can serve as the most crucial incentive to settle.^[90]
76. The introduction of the system of ‘preclusions’ (the judge’s power to disregard facts and evidence submitted late) goes hand in hand with strengthened powers of case management. This relates to procedural case management (such as setting the time limits for the parties’ submissions and/or determining the round of exchanges of parties’ briefs, where new facts and evidence may be brought forward, and, furthermore, to the judge’s powers to apply sanctions (and to relieve parties thereof) as a part of the case management tools. It, however, strongly relates also to substantive case management – as there is an inherent link between the judge’s powers and obligation to seek clarification and the parties’ right to be allowed to reflect and react to such requests duly.

3.5        The Court’s Role in Case Management

77. The court is primarily responsible for active and effective case management to ensure a timely disposition of the case and proportionate use of judicial resources. Thus, the court must monitor whether parties and their lawyers comply with their responsibilities and obligations throughout proceedings.^[91]
78. The court should engage in case management early in proceedings. From the outset, judges should thoroughly familiarise themselves with their cases and identify the critical issues so that they may choose appropriate procedural measures and adapt them to the specific characteristics of each case. The court can shape the unfolding of the proceedings from the very beginning and order that the apex hearing, where the case is normally decided, be preceded by the setting of an early case management or preparatory hearing or by written preparatory procedure, which requires the parties to file and exchange written briefs for setting forth contentions, clarify issues, respond to arguments of the opposing party or hints from the court.^[92] Early case management should manifest the principle of early and ongoing judicial control of the preparatory procedure.
79. In certain cases, it may be difficult to determine the best procedure very early as the issues in dispute may not yet be ripe enough, and the parties’ positions may be insufficiently clear and elaborate. In such cases, early case management decisions could be limited in scope, and further case management hearings can be convened once the case has developed sufficiently.
80. As procedural and substantive case management often cannot be separated, it is reasonable that the main issues of case management are decided by the same judge, as will the judge who will be in charge of the preparatory (or case management) hearing and who will decide the case and write the judgment.
81. However, certain purely technical and organizational matters, as well as certain interlocutory procedural decisions, may be entrusted to judicial assistants – such as clerks or registrars (eg, ordering the payment of court fees and advances on costs as well as checking whether these have been duly paid, checking whether the relevant documents have been duly served etc).
82. In any case, to prevent overburdening of judges on the one hand but also to safeguard the right of the parties that their dispute is decided by an (impartial and independent) tribunal (which judicial assistants are not part of), it should be carefully considered what measures of case management fall within the core judicial work, which should be reserved to the judges and which can be entrusted to the lower ranking court staff alone or where the judges should count on adequate assistance of such staff (eg, in preparing drafts of interlocutory decisions, filling ‘check-lists’ and writing reports and summaries).^[93]
83. A party who knows that any measure of case management or imposed sanction violates the law and yet proceeds with the case without stating his objection to such non-compliance without undue delay or, if a time-limit is provided therefor, within such period of time, shall be deemed to have waived the right to object.^[94]

3.6        Cooperation between the Judge and the Parties

84. When managing the case (eg, determining the conduct and timetable of the court proceedings), the court should seek as much as possible to get the parties' agreement or at least seek the parties' opinion before determining procedural issues.^[95] In other words, the parties must be given the opportunity to be heard before deciding essential issues of case management. Exceptions may be made in cases of urgency and matters of minor importance. By involving the parties in forming the plans, the court can consider the views of the parties, who, after all, are the ones who know best their respective cases. In addition, it is probably inherent in any human activity that there is a greater degree of a possibility that the adopted rules shall be adhered to; they were adopted in cooperation (or, ideally, agreement) with the persons concerned.^[96] A rigid requirement that the court could only adopt measures of case management with the agreement of both parties (thus, effectively giving a ‘veto power’ to them) is not a preferred solution, as it opens too much space for delaying and derailing the procedure. The parties should be aware that their opinion matters; however, ultimately, it is in the powers of the judge to decide how the case shall unfold.
85. Tailoring the proceedings to the particular case also implies cooperation between the parties and the court.^[97] Neither the parties alone, nor the judge alone, decides on the course and timing of the proceedings. The judge makes a decision, having discussed the matter with the parties. The judge can amend the plan for the preparatory proceedings, having discussed the issue with the parties. Although the judge should have a flexible and open approach, too much leniency towards the wishes of the parties has a pernicious influence on achieving efficient proceedings. The judge has the last word on the course of proceedings, and time limits must be enforced for the proceedings to be efficient.
86. The parties can be consulted at the case management (preparatory) hearings, they can be requested to submit (joint or separate) case management proposals ahead of the hearing, or the judge may circulate its own proposals for the parties’ comments.
87. Different procedural tools can be used to ensure proper cooperation with the parties concerning case management. For example, the rules may provide that the court must adopt, after consulting the parties, a procedural plan^[98] or a ‘contract of procedure’^[99]. This is, in the first place, a procedural time-table (or ‘scheduling order’^[100]) (which, although revisable, sets the targets which establish a basic framework for the effective conduct of proceedings); it may, however, also encompass numerous other procedural (and even substantial – such as determination of issues in dispute or defining the preliminary legal basis relevant for the deciding the merits of the case) issues. Thus, before adopting the procedural timetable, the judge should discuss^[101] the factual and legal aspects of the case with the parties and determine, together with them, the procedural program to be followed. The cooperation between the parties and the judge could be effected in an oral procedure (preparatory^[102], preliminary^[103], pre-trial^[104], organizational, case management,^[105] interlocutory^[106], or directions hearing (or conference)^[107], and status reports or ‘joint plans’) either in-person or with the use of modern communication technologies^[108] or in a purely written procedure. The choice between these options should be left to the judicial discretion (after consultation with the parties).
88. A case management hearing to set a clear schedule of events can be one of the most effective tools to help settlements, avoid adjournments and ‘may-rain’ fashion of evidence taking, concentrate hearings, and (then) maintain timeframes. The decisions taken during the meeting may be formalised in a ‘contract’.^[109]
89. Parties themselves should be, to a great extent, allowed to determine, in agreement, the schedule of the procedure (‘contract of procedure’, ‘amicable calendar’^[110]) and should be allowed to submit agreements regarding the timeline of the proceedings to the judge. The judge should be bound by such parties’ agreement provided it complies with the goal of proportionate use of judicial resources, and it does not jeopardise some fundamental public interest. For example, the parties should not be allowed to agree that the system of ‘preclusions’ (cut-off dates for bringing forward new facts and evidence) shall not apply in the case and that they will be allowed to bring forward new facts and evidence without any obstacles throughout the proceedings until the termination of the main hearing. In contrast, they should be allowed to agree on additional time limits to ensure early disclosure of key evidence and legal arguments. Similarly, the parties should be allowed to add or drop hearings when this would expedite the proceedings without limiting the parties’ opportunity to present their case and other procedural rights. The rules of such time limits (see above) also serve a public purpose of expedient resolution of the case and proportionate use of judicial resources; however, this cannot be left solely to the parties’ disposition.
90. The possibility of the parties to frame the procedure as they wish should always be considered against the background that it is the purpose of the procedure to deliver substantive justice but only by using no more than proportionate resources and within a reasonable time. The principle of proportionality should be envisaged as the overriding principle concerning the case-management and the overall unfolding of proceedings.^[111]

3.7        Sanctions for Parties’ Failure to Comply with the Court’s Measures of Case Management

91. The court must be regarded as having inherent powers required to preserve the integrity of its process. The parties have an obligation to act fairly and in good faith, and the court has the inherent jurisdiction to ensure that this obligation is complied with.
92. When imposing sanctions, the court should respect the parties’ right to be heard and have due regard to the principle of proportionality. When applying the principle of proportionality, the court should consider not just the consequences for the parties to the case at hand but also a general effect on the functioning of the justice system, including the deterrent effect for future litigants.
93. Whenever reasonably possible, and with due regard to the principle of proportionality, the court should strive to allow parties to correct their procedural errors and shortcomings and provide adequate guidance for that purpose. In addition, before imposing any sanction which carries significant consequences for the party, the judge should, to the extent practicable, issue a warning that he is considering imposing a particular sanction and enable the party to comment. The judge should also provide reasons explaining why a sanction was appropriate.
94. Sanctions may include – among others - the following:

1. Disregarding facts, evidence and arguments submitted after a cut-off deadline set by the judge or imposed by the law;^[112]
2. Drawing adverse inferences (eg, if the party fails, without a valid excuse, to produce the required document, the court may deem that the content of the document is not favourable to that party);^[113]
3. Peremptory orders (orders against a party who failed to comply with an existing order without good cause, which requires the same steps to be taken as the earlier order and is intended to be a final attempt to compel the party in default to comply^[114]);
4. Striking out a claim or a defence;^[115] and
5. Cost sanctions^[116]: In making decisions about costs, the court may consider the extent to which each party has conducted the proceedings expeditiously and cost-effectively. Cost sanctions may include wasted costs orders against parties’ lawyers and orders for payment of security for costs.

95. Cases of breach of procedural conduct by lawyers may be reported to the competent Bar Association.^[117]

3.8        Non-exhaustive List of Issues of Procedural Case Management

96. Following the examples in numerous jurisdictions^[118], civil procedure rules should set a non-exhaustive list of issues of procedural case management. At least for some cases (predominantly higher-value and complex commercial disputes), valuable lessons can also be learnt from arbitration.^[119]
97. Within the framework of procedural case management, the court may, whenever reasonably possible after consultation with the parties, adopt measures, which include the following:

1. Determine the relevant procedural and substantive issues, identify which need full investigation and which can be decided summarily and decide the order in which the issues shall be resolved;^[120]
2. Set a procedural timetable, including deadlines and time limits for each procedural step to be taken by the parties;
3. Determine whether the parties’ briefs should be submitted sequentially or simultaneously and whether witness statements and expert reports (if applicable) should be submitted along with those briefs or at a later stage;
4. Determine the number of briefs (if any) that the parties may submit still submit (after the claim and the answer to the claim) and set time limits for the exchange of written submissions;
5. Limit the number, content and length of submissions (in line with the principle of proportionality and ensuring that the parties are guaranteed a reasonable right to be heard) and specify their form.
6. Choose between a written or oral preparatory procedure or an adequate combination thereof;
7. Determine procedural steps which can be done with the use of modern communication technologies;
8. Set time limits for the exchange of witness statements (if applicable);
9. Determine the dates of preparatory (organizational) hearings (if any);
10. Determine the date for the main (apex) hearing;
11. Choose the method of transcripts/protocols (verbatim, summaries, recordings, etc) of the hearings – when the law allows for a choice between different options;
12. Consolidate and split cases;
13. Suspend proceedings if the parties agree to try ADR;
14. Bifurcate proceedings, for example, by deciding that it shall first give the judgment on the issue liability and only after this judgment is final it shall proceed to determine the quantum or by deciding that it shall first determine issues where no complex questions of facts or law arise;^[121]
15. Decide on whether in case the court dismisses procedural objections as to the admissibility of the claim (ie, due to the lack of international jurisdiction or res iudicata, lis pendens effect or a lack of claimant’s standing, it shall rule on the issue immediately with a separate judgment or order (enabling the parties’ immediately to contest it on appeal) or whether it shall dismiss the objection together with a final judgment on the merits;
16. Decide which method of service should be used (if the law allows for different ways) and, in general, determine the proper arrangement for routing of written communication between the judge and the parties;
17. Determine the formal requirements concerning the submission of documentary evidence (ie, updating list of exhibits, pagination, a clear indication of each document and exhibit (eg, C-1, D-1); requiring the parties to clearly and concisely indicate as to which item relates to which factual assertion; defining a system of numbering evidence and paragraphs in parties’ submissions; and defining the form in which the evidence must be submitted (unless evidence must be submitted electronically in the case management system) eg, by requiring the parties to separate items of evidence (documents) by inserting plastic ledgers or similar) or requiring electronic (and thus relatively easily searchable) evidence, or both; requiring that submissions include a list of exhibits clearly identifying each exhibit, including date, originator and recipient and that the parties should regularly update the list;
18. Require the parties to present summaries of lengthy submissions and voluminous documents;^[122] 
19. Decide whether voluminous and complex documentary evidence is presented (additionally) through summaries, tabulations, charts, extracts or samples;
20. Require the parties to submit a chronological summary of facts;
21. Require the parties to pay advances on costs or to provide security for costs;
22. Discuss issues related to evidence: are experts needed, and if they are, then what type of expertise, one or multiple (when relevant), who should be appointed expert, and what type of evidence should be presented, ask the parties to identify appropriate and proportionate evidence;
23. Determine the order in which the parties will present their arguments and evidence in the main hearing; determine whether there will be opening and closing speeches and whether e-technology will be required for that purpose (PowerPoint presentations) trial bundles, demonstrative exhibits;
24. Determine specific issues concerning translations of documents and authenticity of the copies of documents;
25. Decide whether closing statements (post-hearing briefs) shall be allowed (including possible restrictions as to their volume and content); and
26. Take appropriate measures and sanctions to prevent abuse, deliberate causation of procedural delays and vexatious behaviour.

4        Courts and Judges Promoting Settlement

Anna Nylund, Aleš Galič and Janek T Nowak

4.1        Introduction

98. Today, courts and judges actively promote settlement (amicable outcomes) in many different ways: litigants could be mandated to attempt to settle their dispute before bringing an action, mediation can be offered as a mandatory or voluntary alternative track (as an in-house or out-of-house service) to regular court proceedings, litigants could be directed to a settlement hearing, judges can promote settlement within the ambit of regular proceedings or any combination of these. It could thus be said that the facilitation of settlement is an integral part of court proceedings.^[123]
99. However, for this study on the structure of civil proceedings, we do not go into detail regarding mediation and ADR processes that are offered as separate ‘tracks’, the nature and content of such proceedings, the criteria based on which the cases are diverted to these tracks or the institutional design of ADR process. We focus on activities within regular court proceedings, primarily those intended to lead to a ruling on the merits. This choice entails separating the facilitation of settlement, or ‘judicial dispute resolution’,^[124] from activities aiming at a resolution based on the determination of facts and the application of legal rules because they have distinct aims while also recognising that judges can forward both in the same hearing and that undertaking something to promote one of the aims, might as a by-product, advance the other aim.

4.2        Policy-Considerations for Courts Facilitating Settlement

100. Settlement can be an avenue for faster and cheaper resolution of disputes. Unlike court rulings, the parties have the power to shape the content of the settlement and, thus, to find more favourable terms for settlement than would be possible in a ruling, for instance, by selecting a specific remedy or agreeing on the terms of payment. Therefore, procedural law in many countries encourages or even mandates judges to promote settlement actively. When settlement could be inappropriate, especially due to third-party or public interests being involved, significant power imbalances being present, or the parties having previously attempted to settle, and new efforts would amount to pressure to settle, courts should refrain from promoting settlement.
101. Brazilian, German, Norwegian, Slovenian and Spanish judges and commercial court judges in Togo have the power, and to some extent a duty, to promote amicable settlement at all stages of the proceedings unless doing so would not be appropriate.^[125] In Brazil, Germany and Togo, courts are obliged to schedule a settlement hearing.^[126] In Germany, the settlement hearing and the main hearing are often scheduled for the same day. Thus, if the parties do not settle their dispute in full, the case will proceed to the main hearing shortly after the settlement hearing has been closed. Judges in Belgium have the power to encourage and promote settlement but are not required. In the US, the parties are required to meet and confer to attempt to settle the dispute.^[127] Afterwards, the parties will attend a pre-trial conference with the judge.^[128] A judge, magistrate or special master facilitates the settlement of the dispute.
102. In some countries, settlement is an explicit goal of civil proceedings. The name of the Norwegian Dispute Act reflects this. It is also a quintessential function of German and Nordic civil procedure,^[129] and the ERCP rules 9 and 10, emphasise the value of settlements.^[130] In contrast, during the socialist era, settlements were regarded as ‘bourgeoise individualism’ in many socialist countries in Central and Eastern Europe.^[131] Differences in the extent to which settlement is considered as one of the functions of civil proceedings are likely to be reflected in differences in the powers – and even duty – of judges (and other court employees) to promote settlement and the mechanisms for producing settlement.
103. Elevating settlement to a goal of civil proceedings could stem from at least three different policy considerations.^[132] The first is pragmatism: settlement allows the parties to terminate court proceedings once they have identified a ‘good enough’ outcome. In many jurisdictions, there is a long tradition of settlement. A second reason is that settlement is a form of private ordering that allows the parties to tailor the case’s outcome. The economy is the third reason: settlement - early resolution - saves time and money for the parties and the court. These policy goals are not mutually exclusive. Indeed, they are partly overlapping.
104. There are also several policy reasons for limiting the right to settlement. A settlement could harm weaker parties, such as tenants and consumers. The more powerful party could force them to settle at less advantageous terms than the likely litigated outcome. By settling, the powerful party could also avoid the potential negative publicity that a ruling on the merits could entail. Another argument against settlements is that they weaken the public functions of courts. Rulings on the merits are needed to clarify the law (and develop it) and to set examples. A ruling stating that a particular practice is unlawful or discriminatory could be important for deterring others from engaging in or continuing that practice.
105. Critics of judicial dispute resolution posit that too many settlements erode the many public roles of courts.^[133] They also contend that parties risk being coerced into unfavourable settlements in the quest for efficiency. Moreover, settlements reduce the transparency and accountability of judges^[134] Proponents argue that settlements more accurately reflect the parties’ litigation aims, needs and preferences. Additionally, settlements balance the advantages of the potential ruling on the merits and the disadvantage that the costs and risks associated with obtaining the ruling entail.^[135] Settlement efforts, when the judge is tuned in on the needs and wishes of the parties and takes time to listen to the parties, correlate with party satisfaction with the process and outcome.^[136] Conversely, the perception of procedural fairness is reduced when the judge pressures the parties to settle or directs them toward a specific outcome.^[137] 
106. Civil procedural research lacks a consensus on whether and how judicial dispute resolution should be regulated, which principles should guide it, and which mechanisms for accountability should be put in place. Notably, the procedural safeguards in place seem to be weak, considering the lack of specific regulation and attention to the topic in legal doctrine.

4.3        Incentives for Settlement

107. In many countries, incentives to settle have been implemented. Settlements concluded in court are enforceable, eg, in Brazil, Germany, Norway, Slovenia, and Spain,^[138] and court fees are lower when the parties settle.^[139] If the parties find an agreement between court hearings, they can ask the court to enter the settlement agreement into court records, which makes the settlement enforceable.^[140] Alternatively, the parties may end the proceedings without registering their settlement as a court settlement by the claimant withdrawing the claim or joint declaration that the case has been settled. This kind of private settlement ensures that the terms of the settlement remain confidential.
108. Judges can encourage the parties to attempt mediation or other ADR processes in addition to promoting settlement. Judges and other court employees offer some of these processes, such as German conciliation hearings and Norwegian court-connected mediation. In Germany, judges can also encourage the parties to attempt out-of-court mediation.^[141] In Brazil, the Civil Procedure Code expressly foresees that judges, lawyers, public defenders and prosecutors must encourage the use of conciliation, mediation and other methods of consensual dispute resolution, even during the course of proceedings^[142], and the judge shall schedule a conciliation or mediation hearing, that shall not be held if both parties expressly manifest their lack of interest in an amicable resolution of the dispute or when an amicable resolution by the parties themselves is not permitted^[143]. In Belgium, the court can order the parties to participate in mediation unless both parties oppose^[144], whereas in Slovenia, explicit consent of both parties is required. However, an unreasonable refusal to participate in mediation can result in adverse cost order in Slovenia.^[145] In the US, each court has its own mandatory or voluntary ADR program consisting of mediation, arbitration, conciliation, or any combination.^[146] 
109. The legal effects of settlements could be an important incentive to settle. In many countries, parties can enter into a court settlement. The court approves their settlement, which becomes enforceable as a ruling on the merits. This is reflected inter alia in the ELI/UNIDROIT Model European Rules of Civil Procedure Rule 141, which states that the parties can apply to the court to give effect to their settlement, ie, it becomes enforceable. Similarly, the European Union Brussels I bis Regulation on the jurisdiction, recognition and enforcement in civil and commercial cases^[147], Article 2 defines court settlements, and Article 59 states that courts in all Member States must enforce court settlements if they are enforceable in the Member State of origin. In some countries, eg, Slovenia, court settlements have full res judicata effect^[148] and in other countries, eg, Norway and Spain, strong estoppel effects, notably the parties may use the settlement as a defence to argue a lack of need to litigate the case.^[149] In Norway, a party can bring an action claiming that the settlement is invalid or must be amended pursuant to rules regarding the validity and amendment of contracts.^[150] 
110. However, sometimes settlement could be formally recorded as withdrawal or admittance of a claim or an action. A claim or an action can be recorded as settled, even if the settlement is not enforceable, only binding on a contractual basis.
111. Enforceable court settlements raise the question of to what extent courts can accept settlements that deviate from the likely litigated outcome, particularly whether the parties can add elements they could not achieve in litigation and are allowed to deviate from mandatory rules. While this discussion is highly relevant and concerns the role of the judiciary and civil proceedings, it is beyond the scope of this study.

4.4        Active Promotion of Settlement, Judicial Dispute Resolution

112. In some countries, courts have the power or duty to encourage or even mandate the parties to mediate or use other ADR processes to resolve their dispute before or after bringing an action.^[151] ADR can either be an in-court or an out-of-court service. Because this segment focuses on court proceedings, this part discusses only mediation services provided by courts. ^[152]
113. In Germany, Norway, Brazil and (with the consent of both parties) Slovenia, cases can be transferred to a mediation hearing, in which case a ‘mediation judge’ conducts mediation. This judge is not bound by the regular rules of proceedings, such as rules that preclude ex-parte communication.^[153] The mediation judge cannot rule on the merits if the case does not settle. There are some exceptions to this rule in Norwegian law.
114. In Belgium, a similar system exists for family law cases, with special Chambers for Amicable Settlement attached to the family courts. Local courts in Belgium may experiment with such chambers in other areas of law based on their general duty to conciliate parties.^[154] Further, parties may request the judge competent to hear their case at first instance to mediate their case before bringing an action.^[155]
115. As indicated above, in many countries such as Belgium^[156], Brazil, France^[157], Germany, Japan^[158], the Netherlands^[159], Norway, Slovenia^[160], Spain, and the US, courts and judges have the power, or even duty, to promote and facilitate settlement during the regular course of proceedings.^[161] This can be done in many ways, such as during dedicated settlement conferences or as part of general preparatory hearings, the main hearing, etc.
116. Judges can promote and facilitate settlement by encouraging parties to consider settlement, discussing the benefits of settlement, or actively facilitating settlement by pinpointing common ground or indicating a settlement range. In some countries, judges or special masters (magistrates) can suggest a specific settlement. In Germany and Slovenia, judges are allowed and, depending on the circumstances of the case, expected to give the parties hints and feedback,^[162] indicating strengths and weaknesses in their argumentation and their view on the likely litigated outcome. Although the outspoken rationale for giving judges these powers is not facilitating settlement, this feedback is likely to thrust parties to settle by putting the parties in a position to determine a prudent settlement range. In Spain, the court is to enter into a dialogue with the parties aiming at determining what the truly disputed elements of the case are; and, in light of the results of this dialogue, ‘the court may call upon the parties to reach an agreement to bring the dispute to an end’.^[163] In the Netherlands, a goal of an oral hearing, which can be ordered at any stage of the proceedings,^[164] is to verify whether a settlement is possible.^[165] To this end, judges may indicate how they regard the issues (the practice of provisional judgment) to instigate parties to settle during the oral hearing. Sometimes, a judge may actively facilitate a settlement by proposing to this end.^[166] In contrast, in Norway, judges are precluded from providing this type of feedback to the parties during regular hearings.^[167] In Denmark, at the end of the main hearing, the parties can request that the court present its preliminary view of the case's outcome, which often results in the parties settling their dispute rather than requesting the court to render a ruling.^[168]
117. Appellate courts may also promote settlement in many jurisdictions. The extent and manner in which appellate judges can promote settlement depend on the form of the appellate proceedings and whether judges may communicate their preliminary view on the prospects of success, key disputed issues, or both.
118. The emerging research on how judges promote settlement indicates significant differences not just among countries but also among courts and judges within countries.^[169] We still have a limited understanding of what kind of activity this kind of ‘judicial dispute resolution’ is and how its tenets are perceived. Considering that many textbooks lack a description of the basic principles guiding the activity, and the research indicating significant variation among judges, there is reason to believe that judicial dispute resolution is a black box, a process with unknown internal functions. It is unclear which tools and methods are acceptable and how much, and in which ways, the process may deviate from regular procedural principles. Thus, judicial dispute resolution constitutes a research gap.

4.5        Settlement as a Product of Regular Court Proceedings

119. Apart from judges (and court employees) promoting settlement, it can also result from the parties’ private efforts to negotiate a solution or as a by-product of regular proceedings or any combination of these.
120. Settlement may result from the parties gaining a better understanding of the case, the claims, grounds for claims and evidence, and the risks and costs associated with the litigation process. The parties might gain access to evidence through discovery or disclosure, which puts them in the position to assess the likelihood that they will prevail more accurately, the costs of producing the evidence necessary to prevail, and so forth. As the court proceedings unfold, parties better understand disputed, undisputed, central, peripheral, and irrelevant facts and arguments. They thus can make more informed and accurate estimations of the risks and costs of the case and the likely outcome. In some jurisdictions, the case managing judge, or another court official is expected to actively clarify the case, which could be associated with more settlements. Hence, settlement negotiations occur ‘in the shadow of litigation’ or ‘the steps of the courthouse’.
121. In systems with an apex hearing, the apex hearing could be less suited than earlier hearings to facilitate settlement. One reason is the evidence needed to prove the disputed factual circumstances discussed, the costs and risks related to litigation so that the entire hearing could be dedicated to settlement. Even if the hearing is not devoted to settlement, the process in which central and peripheral issues, disputed and undisputed matters are separated, the evidence that will be needed to prove disputed factual circumstances discussed, the costs and risks related to litigation, and common ground also become apparent. Thus, this is a fertile environment also for considering settlement. Moreover, the less formal and more dialogic nature of the hearing could also render it suitable for discussions involving these aspects and discussing the parties’ litigation aims. This enables the parties to decide whether they should continue pursuing their claims through litigation or whether a settlement could better serve their needs and wishes.

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
ATCCP	Code of Civil Procedure (Austria)
BGH	Bundesgerichtshof (Federal Court of Justice) [Germany]
BID	Banco Interamericano de Desarrollo (Inter-American Development Bank)
CCP	Code of Civil Procedure
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 (Slovenia)
DA	The Dispute Act (Norway)
EBRD	European Bank for Reconstruction and Development
edn	edition/editions
ed	editor/editors
etc	et cetera
ECtHR	European Court of Human Rights
ECLI	European Case Law Identifier
eg	exempli gratia (for example)
ELI	European Law Institute
EU	European Union
EUR	Euro
FCCP	Code of Civil Procedure (France)
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
JCCP	Code of Civil Procedure (Japan)
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
UKCPR	Civil Procedure Rules (UK)
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
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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