PhD student: Mr S. Vacarelu

Promotor: Prof C.H. van Rhee

Duration: 1/3/2010 - 28/2/2014

Abstract:

During the past decades, globalization has generated a trend toward uniformity and convergence in the national laws. This convergence is readily apparent not only among countries sharing a common legal heritage, but also between systems of different legal traditions such as common law and civil law. However, it appears that this convergence regards primarily the substantive legal norms, while procedural laws and in particular, civil procedure remain largely unaffected by this process. The consequences are significant, as procedural laws shape the way substantive legal norms are interpreted and applied. Some writers have explained that commentators advancing strong claims of convergence take a narrower view of the law, focusing primarily on the law in the books; by contrast, divergence theorists analyze the law in context, adopting a rather expansive view of the law with regard to the socio-economic context or law as a legal culture. Broadly speaking, there is a consensus in the comparative legal literature that civil procedure is deeply entrenched in the national culture and historical traditions of each country. The close link between civil procedural law and the cultural milieu in which it developed is a well-known phenomenon among proceduralists. The instant project is aimed at studying the correlation between cultural and political values of a society, and its system of administering justice. The proposed research contemplates a comparative analysis of civil procedure of several national systems, with a view toward identifying the cultural and socio-political values that explain and justify the existing differences. Particular attention will be given to civil procedure in the United States, England, France, Italy and Romania, as representative jurisdictions of the Western legal traditions. The general approach and a detailed methodology are explained in the next sections. The purpose of the research is to test whether societal values justifying the specific aspects of civil procedure represent insurmountable obstacles toward a convergence in the national procedural laws, and whether harmonization and uniformity in the field of civil procedure is a desired objective considering the cultural and socio-political diversity.