1        Introduction and Scope of the Analysis

1. This Chapter addresses, from a comparative law standpoint, the availability of first appeals – that is, how different legal systems and traditions permit, regulate, and conceptualize the opportunity for the unsuccessful party (or parties) to have a case reconsidered by a court of the next level in the judicial pyramid, before it achieves res judicata status.^[1] 
2. In this definition, three key elements serve to delimitate the scope of the investigation.
3. (1) To begin with, the focus is on the availability of first appeals. This term is used to distinguish first from second appeals which in common law systems usually refer to appeals to the Court of Appeal against a decision that itself was rendered on appeal by a lower court (eg, in England and Wales a decision issued by the High Court on appeal from a judgment of the County Court can in theory be appealed a second time before the Court of Appeal: a limited and very exceptional possibility^[2]).
4. Indeed, in general, first appeals might be conducted either by a Court of Appeal in the strict sense – this being the paradigmatic case – or by a lower court reviewing decisions from an even inferior court. For example, in England and Wales, the High Court receives appeals from circuit judges of the County Court, and circuit judges hear appeals from district judges. In Italy, the Tribunale, generally the court of first instance, hears appeals from the Giudice di pace (Justice of the peace). This applies, mutatis mutandis, to practically all systems. Given the varying court hierarchies, we will concentrate our attention primarily on first appeals before Courts of Appeal in the strict sense.
5. Also, in the common law terminology, the general term ‘appeal’ commonly indicates proceedings before both second instance and supreme courts (final appeals). In contrast, in the civil law tradition, two distinct words – and concepts – are employed: appello and cassazione in Italy, appel and cassation in France, apelación and casación in Spain, apelação and cassação in Portugal, Berufung and Revision, in Germany.^[3] The expression ‘first appeal’ clarifies that we are discussing here just second-instance proceedings (although techniques of filtering second appeals might also be used, occasionally, in the appellate phases).
6. (2) Secondly, in the given definition, the availability is specifically referred to the opportunity ‘to have a case reconsidered’. That means that the focus is on appeals against final decisions, namely judgments that terminate the whole dispute, the entire case, establishing rights and obligations. It is acknowledged, however, that appeals may also be permitted against interlocutory (ie, non-definitive) orders as well (usually, in common law orders, in a more restricted fashion, due to the so-called ‘finality rule’).^[4]
7. (3) Thirdly, to qualify as a (first) appeal, the review must be brought before, and conducted by, a court at ‘the next level in the judicial pyramid’. The re-adjudication on the merits must be undertaken by the hierarchically superior judge (vertically). It is recognized, though, that in some legal systems, the law allows for a case to be reviewed the first time either by the same court or by a court of equivalent rank to the one that has pronounced the original decision (horizontally).^[5] 

2        Converging Trends

8. The problem of the availability of a first appeal is particularly relevant today. In our times where civil justice faces a profound crisis across the globe, appeals increasingly appear as a luxury we can no longer afford. In this era where efficiency and rapidity are emphasized as key priorities, austerity policies and shrinking public budgets place appeals in a vulnerable position. Judging a case twice can be perceived as a waste of time and money, conflicting with the imperatives of productivity and speed. This is particularly noticeable in Italy, where appellate courts are notoriously burdened by case congestion and delays. However, this issue affects in a more systemic way judicial systems worldwide.^[6]
9. It is no surprise therefore that the comparative landscape is replete with attempts to limit, weaken and disincentivize access to second-degree courts, on costs or caseload concerns, in many different ways. The more direct one is by ‘filtering out’ appeals through an ex ante selection, striking them out before they are heard in full, when the appellant cannot show a prima facie real prospect, clear chance or reasonable probability of future success. As we shall see, this is emblematically the case in England and Wales (Rule 52.3 UKCPR), but also in Germany (Sec 522 (2) Code of Civil Procedure; GCCP), and in Italy, at least before the last reform of the Codice di procedura civile (Code of Civil Procedure, ITCCP; see former Art 348 bis and ter, abrogated in 2022). While this approach is well-intentioned in its goal to conserve judicial resources by preventing full hearing for frivolous or abusive appeals, it might result, in practice, in an unduly restriction of appellants’ rights.
10. More subtle modes are also being employed to limit appeals, such as increasing access fees, elevating the thresholds for small claims under which appeals are not available, encouraging parties to mediate and put the controversy out of the court also at an advanced stage, setting more and more restrictive formal requirements for written introductory acts (making it for appellate courts easier to dismiss the case), or imposing monetary fines not only on abusive but also on simply unsuccessful appellants – a sort of ex post punishment for having appealed without merits.^[7]
11. So, if we look at the matter from the above, we will ascertain a clear ongoing trajectory – a ‘convergence’ between common and civil law^[8] – towards stricter restrictions as to the availability of first appeals, while consolidating (or trying to consolidate) the centrality of first-degree decisions.

3        Methodological Premises. A ‘Comparative Law of Differences’        

12. However, while important, this is not the whole story. Or at least it is not the only one comparative lawyers must tell. Indeed, at a closer examination, civil appeals still exhibit today significant theoretical differences comparative law scholars should be concerned with. These differences are to be found not only – or not that much – in the technical rules (which are in the main the object of a ‘micro-comparative law’ analysis), but rather in the broader institutional frameworks of the organization of courts and, perhaps more crucially, in the ways first appeals are conceived of within a given legal culture. Appeals, like any other legal practice, can be viewed as culturally-determined institutions, given that the ‘cultural attitudes’ about a greater or lesser inclination to appeal have been crucial in shaping current normative designs and praxis.^[9] As we shall see, all those differences are particularly pronounced along the division – which I think to be still absolutely meaningful and relevant in Civil Procedure – between common law and civil law.
13. These observations are grounded in a well-defined and broader methodological framework that is concerned with the dynamics and interplays between similitudes and differences in comparative research. It is worth outlining it shortly as it constitutes the skeleton of the Chapter.
14. As I have observed elsewhere, comparative lawyers must approach legal institutions as entities that are simultaneously similar and different.^[10] They must be similar in the (weak) sense that they must respond to a comparable – that is, common – social need. As we are about to see, in the case of appeals, this common need is correcting errors. But institutions must also be viewed as different, otherwise comparative endeavour would make no sense. Difference is the prerequisite for comparison. I make it clear from the outset that my methodological commitment is in favour of a ‘comparative law of differences’.^[11] To make differences explicit, even when they are obscured below a veil of similarity, should be the aim of comparative law.
15. I acknowledge that this methodological posture may be controversial, or even old-fashioned. For many, a ‘comparative law of differences’ contrasts with the evidence that the two legal families of the Western Legal Tradition – common and civil law – are now converging in many senses. That could be argued not only for substantive law but also for our field of Civil Procedure – where this approaching process, to be frank, has been slower and somehow less pronounced. However, the circulation of practices and ideas, projects of uniformizations and harmonizations of procedural systems at global, regional and European levels, and international commercial courts’ activities, all suggest a trend towards convergence also in procedural laws. There is a good deal of truth in that.^[12] However, it is equally true that this convergence is emerging from different points of departures, different theoretical foundations, different cultures. Comparativists should emphasize these diverse starting points, the reasons – of an historical, political, cultural, ideological, institutional kind, etc – of those distances and how they shaped legal entities as they are.  
16. I do not view comparative law as a simple side-by-side description of the legal norms adopted in two or more countries – that would merely be a (not so interesting) study of foreign law.^[13] Instead, I see comparative law as the intellectual labour of imagining and theorizing conceptual competing models to both categorize legal institutions and ‘make sense’ of their differences. In this Chapter, two couple of models will be explored and critically scrutinized: appeal as a right vs appeal by leave and appeal as common practice vs appeal as an exceptional remedy. But other dualities are, of course, imaginable.
17. One final note, to respond in advance to possible objections. Conducted at a macro level, comparative research necessarily entails a certain degree of generalization. Models mostly are paradigmatic idealizations that make it possible to measure distances and proximities between real-world phenomena. So, their theoretical necessity is unquestionable. However, we should bear in mind that in the actual word, model migrate, are transplanted, circulate, merge and influence each other, giving rise to hybrid forms that might resemble to a greater or lesser extent their theoretical reference. (In our topic, a good example of this dynamic exchange is the introduction, in 2001, in the German CCP, of a filter hearing for dismissing appeals that ‘clearly show no prospect of success’ – an institution associated with English common law – and the subsequent adoption, and then abandonment, of this model it in Italy).

4        Structure of the Analysis        

18. Said that, this contribution will unfold ideally into two parts. In the first part (Sec 5 ff, On Similarities) I explore the common rationale for the availability of appeals – namely, to correct past errors and ensure just decisions. This section serves as a philosophical or political account of appeals. Following this, I will present a comparative panorama on the right to appeal in civil litigation. In the second part (Sec 7 ff, On Differences), I critically analyse two key contrasts: (1) appeal as of right vs appeal by leave, and (2) appeals as common practice vs appeals as exceptional remedies. In this latter discussion, I will particularly stress the institutional position of various models of court of appeal within their respective legal order – an aspect that is often overlooked in comparative civil procedure. Finally, I will conclude by offering a cultural explanation of those differences.

5        On Similarities. The Availability of a First Appeal and the Tension Between Error Correction (‘Justice’) and Finality

19. As a matter of general fact, every adjudication system – dating back at least from Roman Law^[14] – has to accommodate for at least two different and opposing demands: justice and stability. The first exigence (justice) calls for some form of review or repetition of a previous decision. The second one (stability) requires that these reviews and reconsiderations cannot be left indefinitely open.^[15] This is true for appeals in general, both criminal and civil, although the following considerations target specifically civil appeals.
20. (1) On the one hand, there is the imperative to ensure that judicial decisions are subject to review. The very possibility of a review means that no man’s decision should be beyond challenge, but that there will always be at least another authority that, if requested, can exercise oversight over it. The message conveyed is that no decision – and therefore no decision-maker – is exempt from control (by ‘decision-maker’ I here refer to both individual judges and judicial panels as a whole, although it should be recognized that collegiality itself can serve as a safeguard against the potential arbitrariness of single-judge decisions). The notion instead that certain judgments are untouchable leads to the conclusion that there is no higher authority to which to address supervision. For example, in today’s Canon Law – a legal system that is unfortunately seldom considered in comparative law – Canon 1629 explicitly states that ‘There is no appeal: 1 - from a sentence of the Supreme Pontiff or the Apostolic Signatura’^[16]. And it is a historical fact that in early common law appeals in the modern sense did not exist as judges exercised judicial power in the name of the king (they were his personification), and the king ‘could do no wrong’.^[17]
21. Errors (the possibility of) underpins the concept of appeal (and other forms of review, as well). Since mistakes in adjudication do occur, legal systems – qua systems of justice – must therefore provide some mechanisms of correction. The famous English legal historian John Baker called the right to appeal ‘an essential requirement of natural justice’^[18] – a phrase which is even more significant given that common law jurisdictions, as we shall see, maintain culturally a ‘minimalist approach’ when it comes to the availability of appeals^[19]. Natural justice has a precise and technical meaning in the English common law. It suggests that the revision of prior decisions is an integral part of a universal and eternal conception of procedural justice that transcends positive legal orders – of the same level as the right to an independent adjudicator or the right to be heard.^[20] A similar point is made in the Canon Law doctrine, where this link between allowing for revisions and justice is presented in an even more explicit way, as it is stated that the core and substantial nucleus of appeals, in its most original sense, directly derives, and is rooted in, the Natural Law principles of the right to defence.^[21]
22. A decision could be ‘unjust’ or ‘incorrect’ either as to the quaestio facti or to the quaestio iuris.^[22] Of course, we need to take this distinction into account as much as possible (even if we know that, many times, it is not at all clear where to draw the line). (a) An error in the quaestio facti – factual error – arises when the facts upon which the initial judgment is based are inaccurately determined, ie, when the factual premise is not true – either when facts that did occur are dismissed or facts that did not occur are accepted. (b) An error in the quaestio iuris – legal error – happens instead when (b.1) the first court has interpreted erroneously a given legal provision, whether it pertains to substantive law (error in iudicando) or to procedural law (error in procedendo), including the errors committed in the evidential legal reasoning^[23], or (b.2) the legal norm, although correctly interpreted, has been applied to the wrong hypothesis. Appeals ideally serve the purpose of correcting all these mistakes, understood in the broadest sense possible – although, on this point, significant divergencies exist, as the scope of appeals, between common and civil law attitudes in action.^[24]
23. Of course, nothing guarantees that the second decision will be per se more just or correct than the first one. There is no assurance either that appellate judges are more competent, more prepared and skilled than their predecessors – they may be, probably, more experienced, though. This is an old and enduring objection that seeks to undermine appeal from its theoretical foundations.^[25] The answer to this is that all what we have is, though, an increased chance of improvement in the final outcome, as the second court can count on, and benefit from, the reasoned and motivated decision of the first judge alongside the critiques and arguments parties have presented in order to challenge it. So, the court of appeal has, in a sense, more substantive material to work with.^[26] To express this, Enrico Allorio famously wrote that appeals are primarily a matter of ‘logic of the thought’, and not just a question of procedural design.^[27] 
24. It is important to point out that justice and correctness of judicial pronouncements – and therefore appeals – serve at once both directly private interests (those of the parties at dispute) and indirectly public values as well.^[28] Society at large, too, has an interest in that the law (even if it is private law) is duly interpreted and applied to accurately ascertained facts, through a fair procedure. This is conceptually true in every ruled-by-law order, as erroneous decisions impede the law to perform its basic task, that of guiding human behaviour. If the correctness of judicial outcomes were irrelevant, individuals would not be incentivized to follow legal rules in their daily life. Appeals, therefore, signal that justice of results matters. This principle is even more crucial in the Anglo-American tradition, where courts’ decisions shape the common law: precedents clearly have to be just, as much as possible. There is also an additional, more sociological aspect to consider in rendering appeals available: seeing that errors are being corrected through appellate remedies enhances citizens’ trust in the court system. By enabling appeals, courts openly show their commitment and ability to remedy mistakes. Appeals are at once a declaration of the fallibility of human judgment and the best possible cure for that.
25. I do not mean that appeals, in the comparative landscape, perform just this ‘private-public’ role of correcting errors. In reality, they do not. In common law countries, courts of appeal also serve as an important forum to set precedents and make law, which is by definition an inherently public activity. In this sense, we can assert, with a fair amount of generalization, that most Anglo-American courts of appeal – and certainly the England and Wales Court of Appeal and the US Federal Courts of Appeals, due to their unique and central (non-territorial) position occupied within their respective jurisdiction – differ from supreme courts just in terms of degree, and not by their very nature.^[29] It could be argued that they both perform a guidance role, but supreme courts just do it with greater authority and more powerfully. In effect, this is a significant point of divergence with civil law courts of appeal, whose decisions do not normally enjoy a ‘quasi supreme court’ reach – although this is a generalization. However, what I maintain here is that the primary and direct rationale of appeals is not to make law or to provide legal guidance, but at the very least to correct, in theory, all types of errors committed by a lower court, understood in a comprehensive sense (but with the caveat made before).^[30] This is, so to say, the lowest common denominator of first appeals in comparative law. It is – as Steve Shavell put it – its ‘social justification’.^[31] In civil law systems, this scope is usually wider than in common law ones. In Italy it is said that appeals are the only avenue in which the losing party can, so to say, ‘freely critique’ the former decision. Appeals are usually labelled as mechanisms of review a critica libera, which literally means that the initial judgment can be challenged, in principle, on any grounds – even if there are no errors in the strict sense, but just mere discrepancies or disagreements in the assessment of the legal or factual issues of the case.^[32]
26. (2) The value of justice is not absolute. On the other hand, adjudicative systems must also address the necessity to achieve finality and conclusiveness in legal disputes. Controversies must come to an end, and they must do so in a reasonable timeframe. The first and most self-evident kind of restriction is therefore related to time. Deadlines are always required, either by law or by a judicial decision, to file an appeal – usually days, weeks or even months, from the day the judgment is rendered, notified or communicated. Once the period expires, the appeal normally becomes inadmissible (unless exceptions are granted, eg, for unforeseen circumstances^[33]) and the initial decision practically unattackable.
27. The need for legal certainty and the stability of results is a public value, too. This is obtained through the institution of res iudicata, which endows a judgment with the quality of incontrovertibility. Once a judgment has attained res iudicata status, the re-opening of the case is (and should be) an absolutely exceptional occurrence, precisely because of the need to consolidate, at some point, fact situations even if they may not be free of errors.
28. In truth, there is also a third factor, introduced in more recent discussions, that justifies limitations to the availability of appeals: costs. Appellate procedures are costly, both for the parties involved and for the State, and cause delay, which is ultimately also a type of cost. These economic drawbacks should be carefully considered through a cost-benefit analysis while designing adjudication processes. In Law & Economics terms: the ability for a court to hear an appeal is (or has become) a scarce resource that needs to be allocated efficiently.^[34] This is nothing but a punctual application of the principle of proportionality in civil justice – a value that is now made explicit in the English Civil Procedure Rules, but that has gained wider recognition.^[35] For example, almost everywhere first appeals are not available for small claims, that is in hypothesis where the global costs for the system outweigh the benefits (Sec 6.1).
29. In sum, all these opposing necessities (justice vs finality, jointly with a proportional use of public resources) are felt by every procedural system. In this, civil and common law cultures justify appeals in a very similar way.
30. In England, in the opinion expressed by J Beatson in R Capewell v Stoke on Trent County Court (2011), reported by Neil Andrews in his well-known manual of English Civil Procedure, we read as follow: ‘it is an imperfection of a legal system that an error may be left uncorrected because of the limits of the number of appeals. But, in devising a legal system, the State balances the need for finality and certainty with the need for justice’.^[36] 
31. In Italy, one of the most widely used handbooks of Civil Procedure, the one written by Crisanto Mandrioli, opens up its chapter devoted to the study of impugnazioni (the general attacks on decisions) by unfolding the very same tension. Revisions of previous legal decisions – it is written – are instruments to strike a balance between justice of results and their stability.^[37]
32. The discourse on this point could certainly be expanded from a philosophical standpoint. Broadening our view beyond the confines of litigation, it becomes evident that the two contrasting values we are talking about – justice and stability – are more general and inherent in any decision-making process in law, and even outside the legal domain.^[38] To remain within the law, eg, administrative decisions by public bodies, too, must be subjected to control mechanisms, which can be internal (an application for a revision to a superior within the administration) or external to it (such as judicial review). And these chances must be subject, too, to temporary limitations in order to prevent indefinite contestations of situations. This only reinforces the extensive generality of the philosophical underpinnings of the concept of appeals and the rationale for making them available.

6        The Right to a First Appeal in Civil Matters and Its Limits

6.1        Domestic Perspectives

33. Virtually all existing legal systems of the world incorporate, albeit with varying levels of restrictions, at least one opportunity for the unsuccessful party to appeal to a higher court for a review on the merits of a matter previously adjudicated. This general possibility is usually known, in the English-speaking world, as the ‘right to appeal’ – even if the word right might somehow be misleading, due to the presence, in some legal systems, of a degree of discretion in granting it (as I will discuss in Sec 7.1). In civil law countries it is better known instead as the principe du double degré de juridiction, in French; principio de la doble instancia de jurisdicción, in Spanish; princípio do duplo grau de jurisdição, in Portuguese; and principio del doppio grado di giurisdizione, in Italian, (‘principle of the double instance, or degree, of jurisdiction’, literally translated).^[39]
34. This right or principle – its theoretical foundations and limitations and practical merits and drawbacks – has been, and continues to be, subject to academic debate.
35. In Italy, between the late 1960s and early 1970s, Mauro Cappelletti famously argued for the elimination of the appeal (as intended at those times in Italy, ie, in the main as a novum iudicium), proposing the transformation of the multiple existing Italian courts of appeal into regional sections of the Supreme Court. In turn, the central Corte di Cassazione, in Rome, would have retained, through a sort of certiorari, its competence just over high-profile, public-interest cases.^[40] Cappelletti’s view was motivated by the desire to restore and potentiate the ‘common law-style’ centrality of first-instance, oral processes, which in Italy had diminished over time. Although his radical proposal – an ‘iconoclastic opinion’, as he dubbed it himself – has not been adopted in the Italian normative practice, it stimulated an intense academic dispute upon the role and functions of first appeals. Following his arguments, the XXII National Congress of the Italian Association of Civil Procedural Law Scholars, held in Venice in October 1977, was dedicated to discussing the advantages and disadvantages of appeals. While some scholars highlighted their flaws^[41], many others defended and reaffirmed their theoretical importance in the general justice system^[42]. Today, in Italian legal academia, it could be said that the importance of a second-degree, full judgment on the merits of a case is broadly acknowledged as a ‘guarantee of justice’.^[43]
36. One of the main points of that discussion related to whether a right to appeal in civil litigation was, or was not, enshrined in the Italian Constitution. The discussion, however, is truly global, and the answer is generally negative.
37. In Italy, the Constitution does not mention appeals explicitly (apart from administrative, ie, not ordinary, courts, where only two levels exist: Art 103, 113 and 125 Italian Constitution). The Italian Constitutional Court has constantly ruled therefore that appeals do not enjoy constitutional protection.^[44] The consequence is that while the legislature could limit or even entirely eliminate them, it cannot unduly restrict the right to access Corte Suprema di Cassazione (the Italian Supreme Court), which is fully and unequivocally guaranteed to all individuals against all types of sentences by Art 111 comma 7 of the Italian Constitution. In truth, this choice is far from being immune to critique. There are good reasons to argue that first appeals instead should enjoin constitutional protection – as Enrico T Liebman famously argued^[45]  – and that access to appellate reviews should generally remain unrestricted, precisely because their primary goal is to correct errors, a purpose that inherently demands broad accessibility. In contrast, the function of a Supreme Court is different, characterized as it should be by a focus on matters of greater legal significance. It may be therefore totally justifiable to restrict its access and implement measures to select for decision only those cases reflecting a public legal dimension^[46]. Comparative legal analysis supports this view, indicating that the exercise of public functions inherently demands restrictions and selection processes: a Supreme Court simply cannot fulfil its task if it is overwhelmed by an excessive number of recourses.
38. In practice, the Italian legal system does provide for certain exceptional hypotheses in which judicial decisions are not subject to appeal or where appeals are limited to specific grounds. Art 339 ITCCP generally stipulates that ‘appeals are available for all decisions rendered at first instance, unless prohibited by law or excluded by the parties’ agreement’. By law, the possibility to appeal is excluded for those decisions rendered on grounds of judicial equity, when parties have agreed upon such a determination (Art 339, comma 2 and Art 114 ITCCP). Additionally, appeals against decisions issued by justices of peace involving claims below the threshold of EUR 2,500, mandatorily decided on equity, are limited to grounds related to the violation of procedural laws, constitutional or EU provisions or of the ‘general principles of law governing the matter’ (Art 339, comma 3 and Art 113, comma 2 ITCCP). Parties can always opt out their right to appeal and, if they both want to, can directly petition the Italian Supreme Court (Art 360, comma 2 ITCCP: so-called recourse omisso medio or per saltum, also known in English as ‘leapfrog appeal’ to the Supreme Court).
39. Restrictions on the availability of first appeals for small claims exist in other jurisdictions as well. Limiting the data to Europe, in France, judgments concerning controversies below EUR 5,000 are issued in the first and last resort (jugements rendu en premier et dernier ressort).^[47] In Spain, this threshold is EUR 3,000^[48], in Germany EUR 600^[49], in the Netherlands is EUR 1,750, in Switzerland is CHF 10,000^[50], etc.^[51] Recalling the philosophy of appeals introduced at the beginning, these restrictions are justified by the idea that, given the small amount of money, once and for all considered by the law, involved and therefore the minor interests at play, is more convenient for the legal system to tolerate a potentially unjust decision than to offer the remedy to correct it.
40. In France, too, Conseil Constitutionnel (the Constitutional Court) has affirmed that the Constitution does not protect a right to a double degree of jurisdiction in civil matters.^[52] A comparable stance is found in Germany, where Bundesverfassungsgericht (the Federal Constitutional Court) has ruled that access to justice does not include the right to multiple levels of appeals (kein Anspruch auf einen Instanzenzug).^[53] Likewise, in Spain, the Tribunal Constitucional has adopted a similar position.^[54] 
41. In Latin America, constitutions do not normally mention appeals. Some of them (Colombia, Venezuela) explicitly protect criminal appeals, in accordance with supranational charters. In Brazil, the Federal Constitution (Art 5 LV) protects appeal implicitly, given that review mechanisms are, at least, mentioned.^[55] Perù represents an exception, perhaps in the world, as its Constitution includes expressively pluralida de instacias (the ‘plurality of degrees’) for every judicial process – civil litigation included – among the constitutional rights pertaining to the administration of justice (Art 139 n 6 Peruvian Constitution).^[56] Plurality means, of course, at least a minimum two. Art X of the Preliminary Title of the Peruvian CCP incorporates in the legislation this constitutional guarantee.^[57]
42. As to the common law world, the jurisprudence of the UK Supreme Court has made it clear many times that, in civil matters, there is no duty to legally establish appeal mechanisms under English law.^[58] 
43. In the United States, the Federal Supreme Court has likewise affirmed, although just in dicta, that there is not a Due Process right to appeal protected by the Fourteenth US Constitution Amendment (neither in civil nor criminal law) so that national legislatures could limit or restrict that right without incurring in violation of the Federal Constitutions or fundamental rights.^[59] However, States in practice might protect first appeals in their own constitutions or, more commonly, as statutory rights, which might, or might not, be limited (so that, in those occasions, a leave to appeal is normally not required).

6.2        The Right to Appeal at a Supranational Level

44. At a supranational level, the right of an appeal in civil matters is not protected by Art 6 of the ECHR (‘right to a fair trial’) and nor is the right to access a Supreme Court. However, the ECtHR ruled that when states chose to implement some forms of appeals in civil adjudication, as they normally do, they must do so in accordance with the guarantees of the European Convention (eg, the court must be independent and impartial, it has to ensure equality of arms, domestic law must not impose an unreasonable burden to appellants, the duration of the procedure must be reasonable, and the like).^[60]
45. In contrast, appeals are protected as human rights in criminal cases, as entitlements of the convicted person (not of the public prosecution or the victim). Regionally, for the 46 States that form part of the Council of Europe, by Art 2 of the Protocol no 7 of the ECHR (‘right to appeal in criminal matters’)^[61]; in the Central-Latin American area by Art 8 (2) h) of the American Convention on Human Rights^[62]; and in the African Region by Art 7 of the African Charter on Human and People’s Rights^[63]. Internationally, by the International Covenant on Civil and Political Rights (1966) adopted by the General Assembly of UN, whose Art 14.5 reads: ‘Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law’.^[64]
46. These provisions are evidently driven by the distinct values at stake in criminal proceedings, that may affect personal liberty or reputational integrity. This reflects a perceived hierarchy of importance. However, this conventional narrative and its theoretical underpinnings should be reconsidered. Certain non-criminal areas (such as family law, tax law, bankruptcy law, labour law, etc) are equally sensitive as criminal law and can generate similar profound consequences on individuals’ lives. For that, they should perhaps enjoy the guarantee of a full review. Conversely, there are criminal offences that, while significant, may have a comparatively lesser impact. An analytic approach to this issue would therefore be welcome, even if it may prove challenging to implement in practice.
47. Finally, within the area of application of the ECHR, the Council of Europe (Committee of Ministers) adopted in 1995 the Recommendation No R(95)5 ‘concerning the introduction and improvement of the functioning of appeal systems and procedures in civil and commercial cases’.^[65] This document is an act of soft law that covers both civil and common law jurisdictions. In it, parties have agreed that ‘appeal procedures should also be available for civil and commercial cases and not only for criminal cases’ and that ‘effective appeal procedures are in the interests of all parties to litigation and of the administration of justice’. In Art 1 (‘Right to judicial control’) it is stated that

‘[i]n principle, it should be possible for any decision of a lower court (“first court”) to be subject to the control of a higher court (“second court”)’ and that ‘[s]hould it be considered appropriate to make exceptions to this principle, any such exceptions should be founded in the law and should be consistent with general principles of justice’.

48. States could either exclude certain categories of cases from the right to appeal (eg, for small claims; much more problematic, and perhaps unreasonable, would be ruling out specific matters) or require forms of permission. Measures could, and should, be taken in order to prevent abuse of appeal (considered specifically by Art 4, such as the dismissal of ‘manifestly ill-founded, unreasonable or vexatious’ appeals through a simplified track or the establishment of fines.

7        On Differences. First Appeal as a Right vs First Appeal by Permission or Leave

7.1        Theoretical Postulates

49. Let us now see more closely the difference part. Legal disciplines of first appeals vary significantly across the world both in their availability and scope. Technical variations are infinite and involve every aspect of appellate procedures – if, how and who can initiate them, before which court, how they must be conducted, what are the effects of the appellate decision, and so on. To navigate this complex landscape, it is necessary to articulate some taxonomical distinctions. Those distinctions, as we have pointed out at the beginning of the chapter, are models.
50. For example, civil procedural scholars, particularly within the civil law tradition, typically and primarily distinguish between two historic models of appeal: appeal as a revisio prioris instantiae (revision of the previous judgment) and appeal as a novum iudicium (‘new judgment’, or de novo appeal).^[66]
51. However, while helpful on many levels – particularly as to the scope of the second judgment – this one is not the opposition I am concerned with in dealing with the topic of availability. For our purposes, a first and more appropriate distinction would be that between appeal (I) as an institution that is given as of a right of the losing party, and (II) as an institution that is subjected to a discretionary decision of a court – either by the same court that has pronounced the first judgment (court ad quem) or by the appellate court (court ad quo). This decision in England and Wales is called ‘permission to appeal’ and ‘leave to appeal’ in the other common law jurisdictions where it applies. In civil law countries, instead, where a permission of this sort is also present (in Germany since 2001, and in Italy between 2012 and 2022) it is more common to use the word filter.^[67]
52. This opposition takes the normative structure of the availability of appeal as its object. In this, it is the most immediate and – let me say – the most obvious one. However, as we shall see, from an epistemological viewpoint, it does not provide an entirely accurate representation of the comparative landscape today.
53. These two models are considered as opposed in the sense that the very concept of ‘right’, in its strictest sense, seems to be incompatible with the presence of a permission to exercise it. It could be considered theoretically problematic to assert that a right ‘exists’ when it is conferred through a substantially discretionary choice: rights correspond to duties, not to concessions. It should be acknowledged, though, that a use of language that seeks to reconcile these two sides is familiar to English common lawyers.^[68] Somehow, the permission to appeal is not perceived per se as a negation of the right to appeal, but as a specification of its legitimate boundaries. As Adrian Zuckerman wrote ‘the imposition of a requirement of permission to appeal is not a restriction on the availability of an opportunity for a reassessment of first decision because the permission hearing itself offers an opportunity for reassessment’. And he went on quoting the opinion of Sir Robert Andrew Morritt in the case Colley v Council for Licensed Conveyancers (2001) for which:

There is no substantial restriction […] on the right of appeal, since there is […] no reason in justice why a person should be entitled to occupy the time of the court, and put opposing parties to expense and trouble, in conducting appeals which have no real prospect of success and where there is no other compelling reason why the appeal should be heard.^[69] 

54. In effect, this argument raises a valid point. Its validity, however, depends on the amount and extension of discretion involved in giving the permission. The greater the discretion allowed by the law (let us imagine: ‘the court may grant the permission if it likes so’ or ‘if it deems just to do so’), the less one can argue that there exists a right to appeal. Conversely, the more the criteria for granting leave are objectively defined and predictable, the more these can be viewed as legitimate specifications of the conditions under which that right is exercised. Now, as we shall see in a while, the English Court of Appeal grants the permission to appeal (scenario no 1) if it considers that the appeal is not hopeless. This raises the question: is this an objective criterion? It seems to me that while this assessment may involve a certain degree of subjectivity – so that, theoretically, two different judges might reasonably disagree on whether a case has or has not some prospect of success – neither it is entirely subjective. Indeed, determining whether a claim is legally meritorious is an activity guided by law, which provides the framework that limits the court’s discretion. So, it would be more accurate to say that where permissions or leaves to appeal apply, there is not an absolute right to have the appeal fully heard – being that right subject to the conditions that the claim has some prospect of success on its merits – but there is always a right to have an appeal at least considered prima facie. There is always a judgment on the merits (after all, it could not be otherwise), just not the full one, which is reserved for appeals that do present some chances of victory.
55. On another note, it should be made clear that this distinction does not reflect the civil law vs common law divide. In fact, on the one hand, the vast majority of other common law countries – United States, every common law province in Canada, New Zealand, Australia, Hong Kong, etc – apart from England and Wales, now recognize statutory rights to a first appeal of final decisions. That means that at least one appellate revision, in those cases, can be generally initiated without permission. Exceptions do exist from specifically determinate cases, such as first appeals against non-definitive orders (which almost universally, in the common law world, require permission) or for particular kind of provisions.^[70] But these are, indeed, exceptions. There has been, of course, a debate over the pros and cons of this choice. In the United States, for instance, criticisms have been made to appeals as a right, and some scholars have advocated for a shift to more discretional practices.^[71] In the same line, in their important empirical study of the functioning of the Federal Courts of Appeals, William Richman and William Reynolds have shown that de facto, appellate judges, who are facing a growing workload, allocate varying levels of attention and care to different types of cases, discretionally, creating contra legem a sort of ‘quasi-certiorari’ mechanism.^[72] However, these findings derive from an empirical investigation, not from the standpoint of normative analysis.
56. On the other hand, in Europe, some procedural reforms have introduced filters that were expected to prevent unmeritorious claims to further proceed in the second stage. As already said multiple times, this is the case of Germany (since 2001, in a manner similar to the admission of second appeals, Revisionszulassung) and Italy (2012-2022). However, forms of permissions for first appeals, in the strict sense here defined, are unknown to other civil law systems and might well also be labelled as culturally unfamiliar to the civil law approach – and in particular to the French model.
57. A final specification. It is important not to confuse the leave to appeal with the presence – typical of the Hispano and Latin-American tradition – of a sort of double authorization for the appeal to proceed: the first one to be obtained from the judge of first instance and then from the appellate judge. In Perù, for example, the Peruvian CCP establishes that firstly the losing party must file an appeal before the judge of the first instance (Art 357 and 367), who grants it if all procedural requirements are satisfied (compliance with deadlines, payment of court fees, inclusion of all necessary elements in the introductory documents, existence of a losing party’s interest, etc). The trial judge then orders the case file to be transmitted to the appellate court. The latter reassesses the admissibility of the appeal independently, namely without being bound by the lower court’s decision. However, both assessments do not consider the merits of the appeal, its likelihood of success or the importance of the legal and factual issues involved.^[73] A similar ‘double-review system’ was in force in Spain, too, until recently (former Art 458, Ley de Enjuiciamiento Civil, Civil Procedure Act). However, this regime has changed (Real Decreto-ley 6/2023, 19 December 2023) and as of today, appeals must be filed directly before the competent appellate court. In general, this double system is highly objectionable as it duplicates judicial efforts, consumes additional resources and creates new problems (such as implementing a further mechanism of review for the decision of dismissal issued by the first court: so-called recurso de queja). For our purposes, these assessments do not technically qualify as forms of leave, since they are based purely on compliance with legal-procedural requirements and do not normally involve subjective determinations.

7.2        The ‘Appeal by Permission’ Model in Practice: England and Wales, Germany, and Italy

58. In England and Wales, first appeals are governed by Part 52 UKCPR and corresponding Practice Directions. According to the Access to Justice Act, 1999, Sec 54, a permission to appeal is required for appeals before whichever appellate courts, be it the County Court, the High Court or the Court of Appeal in the strict sense.^[74] The permission applies for all cases, including cross-appeals, unless the appeal is brought against contempt of court orders (but only when the sanction for contempt is prison), refusals to grant habeas corpus and secure accommodation orders (Rule 52.3 (1) (a) (i) (ii) (iii) UKCPR) – all decisions that may affect personal liberty, where therefore the exigence of control is higher.
59. The permission can be first asked to the original judge orally and immediately after the conclusive hearing, or to the upper court, for the first time or, more frequently, as a renewal following a previous refusal to grant from the lower court. It might seem odd that a court is called to allow an appeal of its own decision, based on the high chance of obtaining a reversal. Common lawyers justify this choice by pointing out that the first judge is more ‘familiar with the issues and will be in a good position to assess the chances of an appeal’s success or importance without much further argument’.^[75] This evaluation requires a highly impartial attitude, measured judgment and adherence to legal ethics.
60. By law, the upper court’s decision on the permission – whether positive or negative – is not further appealable.
61. Considering the design as a whole, the most prominent factor that impacts a civilian’s eye is the pervasiveness of the court’s discretion, both procedurally and substantially. This, however, should not be surprising, as it is coherently in line with the general way of thinking of common lawyers. The use of broad and flexible expressions, in both statutes and judicial opinions, gives a very wide range of margins for deciding according to circumstances. Nevertheless, decisions are not arbitrary but build on precedents that have developed over time and reasoned arguments within a relatively small judicial community. By and large, this remains one of the major differences between common and civil law judicial work.
62. From a technical viewpoint, the Court of Appeal will normally determine whether to grant the permission without a hearing, relying solely on written submission (‘on paper’), although it has discretion to dispose an oral hearing in cases of a particular nature. See Rule 52.5 (2) UKCPR, which contains a pretty circular directive: ‘The judge considering the application on paper may direct that the application be determined at an oral hearing […] if the judge is of the opinion that the application cannot be fairly determined on paper without an oral hearing’. If the permission to appeal is denied based on written materials, the losing party might ask for a reconsideration in an oral hearing, though the Court retains a great degree of discretion in allowing this second chance. In deciding whether to concede or not the permission, the matter is usually handled by a single Lord or Lady Justice, while the subsequent hearing, if conceded, may be presided over either by one judge or by a panel of two. The opposing party might participate at this stage, but his involvement is not automatically required.^[76] 
63. Concentrating on substantive criteria, according to Rule 52.6 (1) UKCPR permission to appeal may be given where (a) the court considers that the appeal would have a real prospect of success, or (b) there is some other compelling reason why the appeal should be heard.^[77] The two grounds are independent of one another.
64. Note that permissions in those cases may be given. Permissions are not given mandatorily, even if one of the two conditions is complied with. The Court will always maintain its discretion, as to align the practice of appeal with the larger principle of proportionality, established in general terms by the overriding objective written down in Part 1 of the Rules.
65. In scenario number one, in considering whether the chance of success of the appeal is ‘real’, the Court usually applies the same test as articulated in the leading case Swain vs Hillman (1999) used to dispose summarily (ie, without trial) the whole claims, or specific issues or defences, which likewise have ‘no real prospect of succeeding’ (Rule  24.3 UKCPR).^[78] As the Court of Appeal recently clarified, ‘real’ here means ‘realistic’, as opposed to ‘fanciful’.^[79] The prospect of success therefore does not necessarily need to be above 50% – that would be a higher standard, namely ‘probable’ or ‘more likely than not’. Instead, it is generally sufficient that the appeal is not deemed hopeless. This decision is of course nothing but a prima facie and ex ante assessment, and it is not infrequent that the Court later confirms the appealed decision, even if permission had been initially granted.^[80]
66. In the second scenario, the Court might grant permission to appeal even if the notice is hopeless, but ‘there is some other compelling reason for the appeal to be heard’. This somehow mysterious phrase – drafted in a genuinely common law style that opens the door for great judicial discretion – refers to the opportunity for the appellate court to issue a judgment that addresses a particularly significant legal issue, setting an authoritative precedent in the interest of the general public. Note that if the appeal does not have a real prospect of success, that does not automatically mean that the losing party is wrong. The lower court might have been obliged to follow an upper court’s precedent, which is however widely considered to be a bad one by scholars and judicial community. In such cases, lower courts might consider that the case merits to proceed further, up to the Court of Appeal, which could choose to overrule publicly the precedent and remedy the injustice.^[81] Under this second scenario, the Court of Appeal might also opt to hear a hopeless appeal, perhaps confirming the lower decision, because the ‘public […] expect[s] a pronouncement on the matter’, even if it outcome may be the same.^[82] 
67. Let us now turn to the German and Italian appellate systems. While this could be considered somehow less surprising for the German procedural system (which, in this regard, was directly inspired by the historic Austrian model of the Novenverbot), a filter for first appeals in Italy constituted an introduction of a culturally foreign element and resulted in a somewhat revolutionary development.
68. Germany implemented a filtering mechanism for appeal in the major procedural law reform (Zivilprozessreformgesetz, ZPO-RG) of 27 July 2001, then significantly amended in 2011.^[83] Scholars generally view that reform as the transition from an appeal model intended as a novum iudicium to a revisio prioris instantiae (see also Sec 513 and 520 GCCP on the rules governing the introductory acts and the precise indication of the grounds for appeal).
69. Sec 522 (2) Sentence 1 GCCP gives the appellate court the power (ie, a soll, ‘should’, not a muss, ‘must’) to issue immediately, without an oral hearing, Zurückweisungsbeschluss (a judicial order of rejection) of the appeal on its merits if it is einstimmig (unanimously) überzeugt (convinced) that (a) the appeal manifestly, offensichtlich (obviously) has no prospect of success, (b) the case is keine grundsätzliche Bedeutung (not of fundamental significance) and (c) the decision is not necessary for Fortbildung des Rechts (the development of the law) or to die Sicherung einer einheitlichen Rechtsprechung (ensure a uniform jurisprudence), and finally (d) oral hearing is not required. All these negative conditions must be met cumulatively.
70. Before making the decision, the Court must inform the parties of its intention to dismiss the appeal and give the appellant the opportunity to respond. Zurückweisungsbeschluss (the rejection order) must be motivated. Initially, in the reform of 2001, this order was not subject to appeal. This provision was highly criticized and led to considerable debate within the academia and legal profession. Eventually, in 2011, the new Para 3 was introduced, allowing for a review of the order – the Nichtzulassungsbeschwerde – before the Supreme Court (BGH, Sec 544 GCCP).
71. In Italy, in 2012 (Law n 134/2012) a filtering model for first appeals was also adopted (former Art 348 bis and ter ITCCP), explicitly drawing inspiration – as said – both from the German and, indirectly, from the English system.^[84] However, that model has been recently abrogated by the last reform of the Italian CCP (Legislative Decree 10 October 2022) and in its place a new simplified procedure for dismissal of unmeritorious claims has been introduced (new Art 348 bis, 350 and 350 bis ITCCP).^[85] 
72. Let us see how it worked in practice. Former Art 348 bis, comma 1 ITCCP provided that an appeal had to be declared inammissibile (inadmissible), amongst other procedural hypothesis, also if it lacked ‘a reasonable probability of success’ (l’impugnazione è dichiarata inammissibile […] quando non ha una ragionevole probabilità di essere accolta). According to former Art 384 ter ITCCP, the declaration of inadmissibility by the court of appeal, made after having heard the parties, had to be issued through  ordinanza (a judicial order) which was not itself appealable (unlike in the updated German legislation), but opened the door for ricorso per Cassazione (a review) against the original, first instance judgment, before the Italian Supreme Court.
73. The introduction of that model had been fiercely criticized by Italian scholars, and its practical benefits were also proved negligible. First of all, the legislative drafting lacked clarity. The standard for the prospect of success was not defined as ‘clear’, ‘evident’, ‘real’ or similar terms, but ‘reasonably probable’, an ambiguous expression difficult to delineate precisely. This led to a too unchecked use of judicial discretion in determining whether to admit or not appeals, and to sensible variations from court to court in its practical translation. Moreover, from a legal-dogmatic point of view, in Italy and other civil law countries ‘inadmissibility’ traditionally applies only to formal and procedural defects (eg, an appeal filed after the deadline), not to rejections on substantive grounds. On the contrary, the decision of whether a claim has some prospect of success clearly entails a judgment on the merits of the controversy. That reform, by linking inadmissibility to manifestly ill-founded claims, created therefore a hybrid concept.
74. Today, following the latest reform, if the court of appeal acknowledges that an appeal is procedurally inadmissible or manifestly ill-founded in its merits, it orders an oral hearing and a discussion in simplified forms. The decision of dismissal or rejection may then be pronounced directly and orally at the end of the hearing, and it is subjected to review by the Supreme Court. This simplified procedure, by the way, applies also to appeals that are manifestly ‘well-founded’, ie, those in which it is immediately evident that the lower court erred, and the decision must be reversed, without further analysis (new Art 350 comma 3 ITCCP).

8        Appeal as a Common Practice vs Appeal as an Exceptional Remedy

8.1        The Comparative Significance of Judicial Statistics and Courts Organization

75. As anticipated, the duality just sketched is inadequate for explaining the varying degrees of openness in procedural systems regarding first appeals. Focusing solely on the mere presence, or absence, of the formal requirement of a permission to appeal, on the one hand, isolates the English model vis a vis other common law jurisdictions (while also approaching quite incorrectly to this the German and even the Italian models). On the other hand, that perspective superficially groups together legal systems – the majority of common law ones and all the other civil law ones – that, in practice, operate in a very different fashion in many respects. A model that fails to account for these substantial practical differences is not a good, reliable explanatory framework.
76. Where should the criterion for distinction therefore be sought? To me, this parameter is not rooted in the technical-normative structure of the availability of appeals, but rather in empirical practice. Indeed, the presence or absence of permission requirement does not alter the fact that first appeals are still de facto far more common and frequent in the civil law culture than in the common law one. It could be rightly said that in civil law countries appeals occur, if not routinely, then with a frequency which is generally unknown to the Anglo-American tradition.
77. My point here is that the entire common law tradition has historically and culturally viewed – and still continues to view – appeals not as inherent or automatic entitlements, but rather as very exceptional remedies, even when statutory rights codified. Within the broader common law legal mentality, first appeals are typically perceived as recourses available only in a limited number of cases, rather than as a routine or universally accessible process (on this cultural perspective, more at length, see Part 9, Conclusions).
78. Let us very briefly look at the official judicial statistics of England and Wales. In the Civil Division of Court of Appeal, in 2011, just 1,269 appeals were filed, while the total of all civil (non-family) cases initiated in the same year throughout all courts has been 1,553,983.^[86] Out of the entire number of appeals filed, just 520 were allowed, ie, not dismissed nor struck out. The numbers have even dropped since then. In 2017, incoming appeals were 915; in 2018, 853; in 2019, 769; in 2020, 726; in 2021, 530 and finally in 2022, 608.^[87] We also apprehend that in 1991 – before that a generalized permission to appeal was introduced – civil appeals presented were 412, and just 99 of them reversed the initial decision.^[88] 
79. These small numbers, compared to civil law appellate courts, are not connected to the presence of the permission to appeal. In fact, we find a comparable minor statistical occurrence of first appeals also in the other common law jurisdictions. Rather, as we are about to see, those data have to do with the unique and central position that the English and Wales – and common law, at large – Court(s) of Appeal occupies within the judicial organization.

8.2        An Overlooked Distinction: Central vs Territorial Courts of Appeal

80. At this point of our comparative analysis, it is necessary to introduce the ‘institutional element’. By that I mean the way the judiciary is theoretically structured and the place courts of appeal, in the strict sense, fill within a certain legal order. If we integrate this, we will realize that there is a ‘common law view of appeals’ that contrasts with the civil law one and has immediate repercussion as to their availability pragmatically considered.  
81. A particularized description of the organization of the courts of the world is clearly beyond the scope of this Chapter.^[89] Suffice it to note that common law families – for historical reasons connected to the early developments of the common law in England – traditionally separate between two distinct types of courts, ie, Superior and Inferior Courts, while this division is unknown, and even uneasy to conceive, to the civil law world.
82. In fact, today, most common law countries have a single, centralized (ie, not territorial) system of courts, comprising a single first-instance High Court – invested with an original, general and unlimited jurisdiction, not confined in principle to a specific geographical area, matter or monetary value – a single Court of Appeal – that possesses an appellate (ie, not original) jurisdiction – and a Supreme Court. Below them, there is a whole separate and vast set of Inferior Courts and Tribunals that deal with matters only within the limits assigned to them by statutes. By definition, only Superior Courts have the power to ‘say what the law is’ and therefore to pronounce or overrule binding precedents. Also, Superior Courts exercise supervision powers upon lower courts, which are therefore institutionally subordinate to the firsts. The number of Superior Judges (ie, judges sitting in a Superior Court) is usually quite small. They enjoy a very high social status and prestige, which is incomparable to that of their civilian counterparts. In this dual model, the High Court and the Court of Appeal engage with an extremely small minority of all the cases – the most important, most complex, most high-value ones – while the overwhelming majority of controversies are resolved at lower levels, in one or more tiers.
83. Superior Courts are, in principle, singular entities. In the common law model, there is, normally, only one High Court, only one Court of Appeal, and obviously only one Supreme Court, for all the territory upon which they exercise their functions. However, this does not imply that those courts cannot have multiple locations. Indeed, this is often the case for first or even second-instance judges. For example, in the UK, High Court judges can travel across the different circuits to try the most important and significant cases. The English and Wales Court of Appeal might occasionally sit outside London, in other bigger cities (such as Cardiff). In New Zealand, the Court of Appeal is located in Wellington, but sits also in the cities of Auckland, Christchurch and Dunedin.^[90] This does not mean, though, that there are two or three High Courts or two or three Courts of Appeal, but rather that the very same court, which is permanently located in one (or more) city, is also at the same sitting in separate places and courthouses, while remaining institutionally the same.

8.3        A Bird’s-Eye View of Appellate Courts Structure and Data. Common Law …

84. The English common law is an exemplary instance of this general institutional model. The England and Wales Court of Appeal is a Senior Court that operates for the entire legal system (of England and Wales).^[91] It was created in 1875, deriving from courts of Equity, with the Judicature Act (1873-1875). It is centrally located within the Royal Courts of Justice in the Strand, in London, in the same building that also houses the High Court of Justice – which is one for the entire territory, too. Together with the Crown Court (for criminal matters) they form the Senior Courts of England and Wales (former Superior Court of Judicature), which have supervision over Inferior Courts. The fact that they reside in London reflects the pronounced historical centralization of the English judiciary – although, on some very rare occasions, appeal judges can sit somewhere else within the borders of its competence. The entire Court of Appeal (Civil plus Criminal divisions) is comprised of a total of just 39 sitting judges, whose appointment is approved by the King, called Lords, or Ladies, Justices of Appeal. The Head of the Civil Division is known as the Master of the Rolls. The Court of Appeal is institutionally in charge of receiving and controlling the decisions of the entire jurisdiction, mostly coming from the High Court (or from other courts, such as, in some cases, the County Courts or the Employment Appeal Tribunal).
85. Other common law systems across the globe, whether federal or not, share a roughly comparable structure, having just one, non-territorial and central Court of Appeal for the entire country. This is the case for most former British colonies in Africa (such as Ghana, Gambia, Kenya, Nigeria, Uganda, Rwanda, Zambia, Botswana, among others), or in Asia (Malaysia, The Philippines, Singapore, etc), for British overseas territory (Cayman Islands), and for the members of the so-called Commonwealth realm (such as Australia and New Zealand).
86. The United States court system has some very peculiar characteristics. Indeed, it is common to speak of a general ‘American legal exceptionalism’, even within the common law tradition, and specifically when it comes to Civil Procedure and the role of litigation.^[92] The judicial federal system stands on its own. Each of the 12 federal circuits has its single Federal Court of Appeal (firstly established under the Judiciary Act, the Evans Act, of 1891, which originally created nine of them^[93]). There are therefore 12 regional Federal Courts of Appeal across the entire United States, plus one specialized for the whole Federal Circuit. Each Federal Appellate Court covers therefore many States within its jurisdictional border.^[94] Their competence encompasses, among others, federal regulation controversies – that might also involve private law issues, such as in consumer law and commercial law – disputes that involve parties from different states (‘diversity jurisdiction’), bankruptcy, certain environmental matters, and civil rights, but the bulk of private law cases (tort law, contracts, property, family) is dealt by states’ courts.^[95] The process before them is governed by the Federal Rules of Appellate Procedure. It is important here to stress that the role they play in advancing the law, setting precedents, and guiding lower courts cannot be overstated. While institutionally their primary function is to correct past errors, their influence extends well beyond that. Their published opinions are widely read and discussed throughout the entire territory, with an impact that, in their domain of competence, is second only to the Supreme Court of the United States (although, following the ‘litigation explosion’, the Courts are increasingly resolving cases through unpublished and non-precedential opinions). Some of the most brilliant American jurists have been, or are, federal appellate judges, such as, in the past and among others, the legendary Learned Hand (second circuit, 1924-1961), and, as of our times, Guido Calabresi (second circuit) and Richard Posner (seventh circuit, 1981-2017). It would not be exaggerated to say that federal appellate courts contribute to shape the political and cultural environment of the United States.^[96] 
87. At a state level, instead, there are considerable variations as to the structure of intermediate appellate courts. The majority of states have their own single State Court of Appeals, but there are states that have none (eg, Delaware, Maine, Montana, among others), states that have more than one (eg, California, Florida, and Texas) or that have distinct types of intermediate courts, each enjoying a specific competence (such as Pennsylvania, where there are both the Superior Court and the Commonwealth Court, each reviewing at an appellate level different types of civil suits). A fair number of them have been created in relatively recent times, in the second half of the twentieth century, in order to reduce the workload of states’ Supreme Courts.
88. As to judicial statistics, given their great differences, it is impossible to focus on State courts of appeals. The workload varies a lot – although, on average, it rarely exceeds 2,000 cases each per year. In the Federal judiciary, instead, in 2020, a total of 27,500 new civil appeals (both non-prisoners and prisoners’ petitions) were filed, counting all the Federal Courts of Appeal together.^[97] Consider that, in the same year, civil cases initiated in all the US district courts (the courts of first instance for the federal judiciary) were 332,732.^[98]

8.4        … And Civil Law

89. In stark contrast, appellate court structure and statistics in civil law nations illustrate a very different picture. In general, and apart from small countries (such as Luxembourg), civil law jurisdictions all have multiple Courts of Appeal that function independently of one another. They are authentically different and autonomous courts widespread in the entire territory and each exercises its portion of jurisdiction according to the law within the borders assigned. They do not supervise lower courts, nor their judgments have, legally speaking, a different authority. The model to which they comply is roughly the same.
90. Let us consider, in the European Union, the case of France, Germany, Italy, and Spain’s intermediate courts organization and judicial caseload statistics of civil and commercial cases for 2022, for which comparative quantitative data are available on the CEPEJ-STAT official website (Report of 2024).^[99] The numbers are drastically different compared to the common law landscape. Numbers are not significant per se, but as long as they reflect a different conception and role of first appeal within legal families.
91. In France, there are 36 Courts of Appeal – seven of them located outside the European continent, in the overseas territories (juridictions d'outre-mer).^[100] In 2022, 164,891 new appeals were filed, 175,555 were resolved and 234,993  were pending. The numbers since then have risen. According to official French government statistics, 209,618 new appeals in 2021 have been filed (1,464,702 cases initiated in the first instance).^[101]
92. In Germany there are 24 Oberlandesgerichte (higher regional courts), normally one for each Land (federal state), with some of them having two or even three. They hear cases proceeding from the Municipals (Amtsgerichte) or District Courts (Landgerichte). In 2022, a total of 103,840 new appeals were filed, 97,890 resolved and 104,883 pending.
93. Italy has 26 different Courts of Appeal (plus three separate sections), one for every judicial district, the majority of them coinciding with the borders of regions.^[102] In 2022, 93,851 new appeals were filed in civil and commercial matters, 117,895 were resolved and 243,353 were still pending at the end of the year.  
94. In Spain, there are 50 Audiencias provinciales, which are appellate courts at a provincial level, each located in the capital city of each province. New appeals were 209,783, resolved ones 177,497, and pending ones 166,663.

95. As to the appeal architecture of other EU countries, consider that Romania has 15 courts of appeal, Greece has 13, Sweden and Norway have six, Belgium, Hungary, Portugal (tribunais da relação) and Finland have five, the Netherlands has four and Denmark two (called ‘High Courts’).^[103] 
96. Broadening the view, in Latin and Central America, all (but one) systems belong to the civil law tradition and have therefore adopted the overall institutional design of it.^[104] Perù, for instance, has 34 Civil Courts of Appeal (Cortes Superiores de Justicia), one for each distrito judicial (judicial district).
97. There are, of course, exceptions to this scheme, that very much depend on the varying political organizations of the country considered. Typically, in Federal States – such as Brazil, Mexico and Argentina – each State (or Province, in the case of Argentina) is responsible for its own judicial system, which usually has just one Court of Appeal (in Brazil state appellate courts are called Tribunais de Justiça and there is one for each State: eg, Tribunal de Justiça do Estado do Rio de Janeiro, Tribunal de Justiça do Estado do Rio Grande do Norte, etc). In parallel, there are the appellate courts at federal level (in Brazil there are six, one for each Região, called Tribunais Regionais Federais).
98. The same typical civil law judicial organization, with multiple territorial courts of appeal, is found also in civil law African States (Algeria, Morocco, Tunisia, Egypt, etc) and civil law Asia (China, Japan).

9        Conclusions. A Cultural Explication

99. In the conclusions – and going beyond normative or institutional designs – I would like to draw attention to the role of the general attitude, of the culture of legal communities towards appeals and how it has contributed to shaping current practices, specifically along the last distinction just made between appeals as a common practice vs appeals as an exceptional remedy.
100. More precisely, I maintain that the normative restrictions and the minor empirical significance of appeals in common law countries (the ‘minimalist approach’ they adopted) is not simply a fortuitous and contingent characteristic, but it reflects a more profound difference in legal mentality – a concept we should not overlook while doing comparative (civil procedural) law.^[105] 
101. Simplifying, I argue that there are two fundamental cultural attitudes: one that sees the first decision made by the trial court as tendentially definitive, and the other one that views the first decision simply as a stage toward the consolidation of the pronouncement. The difference therefore revolves around the centrality of the first-degree judgment. This is of course a generalization. However, it helps us to situate real-world legal systems along this line.
102. To better illustrate this point, I find it worthwhile to quote some excerpts that convey this cultural difference in a particularly incisive manner. Remo Caponi, in an article dedicated to the reforms of civil appeals in comparative law, expressed that:

In the English civil litigation, review mechanisms of previous legal judgments are considered exceptional remedies, employed solely for the purpose of correcting the errors of the first-instance decision. In that legal tradition, the idea that a legal dispute is normally a game that does not terminate in one single match, but it implies a rematch in the appellate court and very often also a last third-round before the Supreme Court, has never flourished.^[106]

103. This metaphor of the process of solving a controversy as a game – which has an illustrious origin^[107] – is illuminating for a comparative perspective. Games can take two forms. They can consist in one single confrontation, resulting in either a victory or a defeat. It is a make-or-break moment. Or, under a different model, they could be structured like a tournament, where the success or failure is declared after many encounters (as the saying goes, ‘he who laughs last, laughs best’). This somehow captures the common law/civil law divide in appeals.
104. In another essay, dealing with the same matter, Remo Caponi went on observing:

In the English legal culture, the possibility to bring an appeal is the exception, while it continue to be a normal occurrence in the Italian civil process […]. This difference between exception and rule takes on a central role, as it reflects the diversity of political and cultural basis that characterize the administration of justice in civil law and common law countries. In civil law legal orders, the administration of justice is in the main centered upon a bureaucratic and hierarchical state structure. In common law legal orders, it is more open to civil society, less bureaucratic and hierarchical.^[108] 

105. We see that Remo Caponi is referring explicitly to the English legal culture, but his observations could be well extended to the entire common law tradition, at least. In this last passage, he mentions the ‘political and cultural’ underpinnings connected to the larger bureaucratic and hierarchical vs non-bureaucratic, non-hierarchical, and more ‘open to civil society’ (see the presence of the jury) structure of authority – a division that belongs to political theory, but that has broad repercussions as to the whole design of legal decision-making procedures. The reference is, of course, to Mirjan Damaška’s masterpiece.^[109] 
106. As we see, the battleground here is political. According to Damaška, from a legal history and political theory perspective, diffuse and readily available appeals in civil law countries are crucial to maintaining the hierarchical and centralized structure of power, given that appeals ensure constant controls from the above over decisions made at lower levels:

[…] because hierarchy is multilayered, proceedings must consist of several stages. (…) Accordingly, proceedings before the initial decision maker (trials) are merely one episode in an ongoing series and are thus an inept symbol for describing the total effort. In the hierarchical setting, Kafka’s hero is not ‘tried’, he is implicated in ‘proceedings’.^[110]

107. And even more explicitly, in the sense here advanced:

The first important point to recognize is that the reviewing stage is conceived not as an extraordinary event but as a sequel to original adjudication to be expected in the normal run of events. […]. The great significance attributed to ‘quality control’ by superior in a hierarchical organization inevitably detracts from the importance of original decision making: the latter acquires an aura of provisionality. It is thus a mortal sin for a comparativists to assume that the significance of trial is identical […].^[111] (emphasis added).  

108. This (supposed) ‘authoritarian’ character of appeals, paired with an almost ‘army-like’ structure of the judiciary, has been used to attack appeals by its critics.  Conversely, when it comes to the non-hierarchical, ie, coordinate mode of authority, typical of the Anglo-American culture:

[…] legal remedies are interpreted as reflecting a continuing attachment to the ideal of one-level decision making […]. Here the legal process still ends preferably with the announcement of the decision by the primary decision maker. Far from being a regular sequel to the trial, or a normally anticipated further stage of the process, superior review is more in the nature of an extraordinary and independent proceeding. […] In a very general sense, the right of appeal is not exalted as central to due process. Thus it is not shocking that appeal be made dependent - as it is often in England - on obtaining leave either from the trial or from the superior court. But this hybrid system need not to be pursued in tedious technical detail: in what I have suggested so far, a style is clearly visible […].^[112] (emphasis added)

109. I have quoted these passages as they stress with the due force how present normative configurations and practices related to the major or minor availability of appeals are rooted in specific (and opposite) cultural attitudes which, in turn, are shaped by the historical path. Concerning legal history, there is indeed one particular and distinguishing institution, that must be situated in a broader political ideology, that has influenced the common lawyers’ attitude towards appeals: this is the jury trial.^[113] 
110. In the whole Anglo-American tradition, the first-instance process has been, and still is, the central moment, because since Medieval times it was the one where the ‘trial by jury’ took place – an institution that did not develop, at least in civil lawsuits, in later Continental Europe. The historical importance of jury trials for the evolution of common law procedure cannot be overestimated. Historically speaking, the jury verdict was not easy to contest. In the earlier times of the English common law, one way to do it was through the ancient ‘writ of attaint’, which basically was a public form of accusation towards the jury for having delivered a false decision (‘perjury’).^[114] Understandably, it was by nature an exceptional remedy, to be employed solely in extreme occasions. Other possibilities (such as the ‘writ of error’ and, later, the motion for a new trial) were similarly exceptional, formalistic, procedurally restricted and difficult to put into practice.^[115] It is no surprise that the final act following jury trial was provided with great stability and strong finality and appeals were never thought, at common law, of as a second chance to win.^[116] It is not that important the fact the juries, in civil proceedings, are, in today’s practices of common law, absent or in any case declining, even in the United States, where trials by jury for civil lawsuits are guaranteed by the VII Amendment. What really matters for our purposes is that its original presence – like that of the ‘forms of action’ in the famous F W Maitland’s phrase^[117] – shaped the mentality through which common lawyers still conceptualize the function of the first-instance decision (ie, to solve definitely the controversy) and of the second-instance stage (controlling exceptionally potential errors, and not retrying the case). This is still today the major point of distance between appeals in the common and in the civil law world, despite the waves of convergence between the two traditions.  

Abbreviations and Acronyms

ACCP	Code of Civil Procedure (Argentina)
ACHPR	African Court on Human and Peoples’ Rights
ADR	Alternative Dispute Resolution
ALI	American Law Institute
ANCCPC	Argentine National Civil and Commercial Procedural Code (Argentina)
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)
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
EBRD	European Bank for Reconstruction and Development
ECLI	European Case Law Identifier
ECtHR	European Court of Human Rights
ed	editor/editors
edn	edition/editions
eg	exempli gratia (for example)
ELI	European Law Institute
etc	et cetera
EU	European Union
EUR	Euro
ff	following
fn	footnote (external, ie, in other chapters or in citations)
GCCP	Code of Civil Procedure (Germany)
GDPR	General Data Protection Regulation (EU)
ibid	ibidem (in the same place)
ICPR	Civil Procedure Regulations (Israel)
ICT	Information and Communication Technologies
ie	id est (that is)
IIDP	Instituto Iberoamericano de Derecho Procesal (Iberoamerican Institute of Procedural Law)
ITCCP	Code of Civil Procedure (Italy)
JCCP	Code of Civil Procedure (Japan)
JPY	Japanese Yen
n	footnote (internal, ie, within the same chapter)
no	number/numbers
para	paragraph/paragraphs
PD	Practice Direction
PDPACP	Pre-Action Conduct and Protocols
pt	part
RSC Order	Rules of the Supreme Court (UK)
SCC	Supreme Court Canada
Sec	Section/Sections
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

---

Legislation

International/Supranational

African Charter on Human and People’s Rights.

American Convention of Human Rights.

European Convention of Human Rights.

International Covenant on Civil and Political Rights 1966.

Protocol n 7 of the ECHR 1988.

Recommendation No R(95)5, Council of Europe (Committee of Ministers) 1995.

National

Access to Justice Act 1999 (UK).

Civil and Commercial Procedural Law Code (El Salvador).

Civil Procedure Rules 1999 (UK).

Code of Canon Law 1983.

Code of Civil Procedure (Austria).

Code of Civil Procedure (Germany).

Code of Civil Procedure (Switzerland).

Code of Civil Procedure 1942 (Italy).

Code of Civil Procedure 1975 (France).

Code of Civil Procedure 1993 (Perù).

Code of Civil Procedure 2015 (Brazil).

Code of Judicial Organization (France).

Commercial Code (France).

Constitution 1948 (Italy).

Constitution 1993 (Perù).

Court of Appeal Act 2014 (Ireland).

Federal Constitution 1995 (Brazil).

Federal Rules of Civil Procedure (US).

General Code of Procedure (Uruguay).

Ley 1/2000 de Enjuiciamiento Civil (Civil Procedure Act) (Spain).

Superior Courts Act 2013 (South Africa).

---

Cases

International/Supranational

Platakou v Greece, Case 38460/97 (ECtHR), Judgment 11 January 2001 [ECLI:CE:ECHR:‌2001:0111JUD003846097].

Tolstoy Miloslavsky v UK, Case 18139/91 (ECtHR), Judgment 13 July 1995 [ECLI:CE:‌ECHR:1995:0713JUD001813991].

National

Assicurazioni Generali SpA v Arab Insurance Group (Court of Appeal, UK) [2002] EWCA Civ 1642.

Case 1 BvU 1/79 (BVerfG, Germany), Decision of 11 June 1980.

Case 160-1993 (Constitutional Court, Spain), Judgment 17 May 1993 [ECLI:ES:TC:1993:160].

Case 301/1986 (Constitutional Court, Italy), Judgment 31 December 1986 [ECLI:IT:COST:1986:301].

Colley v Council for Licensed Conveyancers (Court of Appeal, UK) [2001] EWCA Civ 1137, [2001] 4 All ER 998, CA.

Griffin v Illinois (Supreme Court, US) [351 US 12 (1956)].

McKane v Durston (Supreme Court, US) [153 US 684 (1894)].

Pennzoil Co. v Texaco, Inc. (Supreme Court, US) [481 US 1 (1987)].

R (A Child) (Court of Appeal, UK) [2019] EWCA Civ 895.

R Capewell v Stoke on Trent County Court (Court of Appeal, UK) [2011] EWHC 3851.

Re B (A Child) (Care Proceeding: Appeal) (Court of Appeal, UK) [2013] UKSC 33.

Swain v Hillman & Anor (Court of Appeal, UK) [1999] EWCA Civ 3053, [2001] 1 All ER 91.

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