1. COMPARATIVE CIVIL PROCEDURE
Martino Zulberti 1

2. Categorizing legal systems?
(R. David, Le grands systèmes de droit contemporains, Paris, 1964)
- Roman – german systems
Socialist systems
Common law systems
Other systems (asian, muslim, african)
(U. Mattei, Verso una tripartizione non eurocentrica dei sistemi giuridici, in Studi in onore di Gorla, I, Milano, 1994, 775 ss.)
systems in which the law is based on religious provisions
systems in which the law is dominated by the power of a party with a rigid political view
systems in which the law evolves autonomously from such a power 2

3. Adversarial vs Inquistorial systems
Is it possibile to classify the systems from the point of view of the civil procedure?
Adversarial vs Inquistorial systems
Adversarial systems common law countries
- party-controlled procedure
See. Air Canada v Secretary of State for Trade
«When we speak of the due administration of justice this does not always mean asceraining the truth of what happened. It often means that, as a matter of justice, a party must prove his case without any help from the other side» (Lord Denning)
Inquisitorial systems civil law countries
- strong powers of the judge in the taking of evidence
- judicial authoritarianism
BUT
The most that can be said is that some systems are more inquisitorial or more adversarial than others 3

4. Art. 16 code of civil procedure (France)
1. In all circumstances, the judge must supervise the respect of, and he must himself respect, the adversarial principle.
2. In his decision, the judge may take into consideration grounds, explanations and documents relied upon or
produced by the parties only if the parties had an opportunity to discuss them in an adversarial manner.
3. He shall not base his decision on legal arguments that he has raised sua sponte without having first invited the
parties to comment thereon. 4

5. CPR, r. 32.1
(1) The court may control the evidence by giving directions as to –
(a) the issues on which it requires evidence;
(b) the nature of the evidence which it requires to decide those issues; and
(c) the way in which the evidence is to be placed before the court.
(2) The court may use its power under this rule to exclude evidence that would otherwise be admissible.
(3) The court may limit cross-examination 5

6. Italy
As a general rule, the judge decides according to the evidence given by the parties (art. 115)
The judge is the only who can interact with the witness (art. 230 c.p.c.)
The judge can choose to listen to a witness without the request of the parties (artt. 281 ter and 257 c.p.c.)
The judge can appoint experts even without the request or consent of the parties (art. 191 c.p.c.) 6

7. (Italy) Cass. 4 marzo 2008, n. 5785, in Mass. giur. it., 2008.
Cass. 19 agosto 2004, n , in Rep. Foro it., 2004, voce Arbitrato, n. 241.
Cass., S.U., 3 agosto 2000, n. 527, in Riv. arb., 2000, 699, con nota Fazzalari, Una svolta attesa in ordine alla «natura» dell’arbitrato.
Massimario giustizia civile; Massimario Foro italiano; Repertorio giustizia civile; Repertorio giurisprudenza italiana; Repertorio Foro italiano.
Trib. Milano, 30 novembre 2007, in Foro it., 2008, I, 935. 7

8. (US Federal courts) volume Strawbridge v Curtis 7 U.S. 267 (1806)
United States Reports starting page year of the decision
Other reports: Supreme Court Reporter (abbreviated St. C.); United States Supreme Court Reports, Lawyers‘ Edition (abbreviated L. Ed.)
Example: Griswold v Connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965)
Federal Reporter (F., F.2d, F.3d); Federal Supplement (F. Supp, F. Supp. 2d. or F. Supp. 3d)
Burns v. Anderson 502 F.2d 970 (5th Cir. 1974) 8

9. (US State Courts) Examples of citations in official state reports:
Palsgraf v. Long Island Railroad Co., 248 N.Y. 339 (1928)
Green v Chigaco Green Company, 286 Ill. App. 3d 1 (1996)
Harte v. Hand, 438 N.J. Super. 545 (Ch. Div. 2014)
Harte v. Hand, 433 N.J. Super. 457 (App. Div. 2013)
Examples of citations in West reports:
Jackson v. Commonwealth, 583 S.E.2d 780 (Va. Ct. App. 2003) – a case in the Virginia Court of Appeals (an intermediate appellate court) published in the South Eastern Reporter's 2nd series
Foxworth v. Maddox, 137 So. 161 (Fl. 1931) – a case in the Florida Supreme Court published in the Southern Reporter 9

10. South Western Reporter
United States Reports
South Western Reporter 10

11. (UK) Since 2001, ”neutral” citation: Rottman v MPC [2002] UKHL 20
UKHL – House of Lords; UKSC – Supreme Court – EWCA – Court of Appeal; EWHC – High Court
Free access on
Official Law Reports (Appeals Cases – AC, Chancery – Ch, Family – Fam, Queen's Bench…)
Weekly Law Reports (WLR)
All England Reports (All ER)
Example: Rottman v MPC [2002] UKHL 20, [2002] 2 AC 692 [58].
year court case number 11

12. «Briefing» a case Essential elements: Facts Issue Narrow holding
Broad holding
Reasoning
Other possible elements:
Dicta
Dissent
Party’s arguments 12

13. 7 U.S. 267 (1806)
Facts: Citizens of Massachussets sued citizens of Vermont and Massachussets in a “circuit” court. That Court dismissed for lack of jurisdiction; appeal to S. Ct.
Issue: Must all parties be of diverse citizenship from all adverse parties for diversity jurisdiction to exist in the federal Courts?
Narrow holding: Dismissal affirmed. No jurisdiction.
Broad holding: The diversity statute as passed by the congress required complete diversity among all adverse parties.
Reasoning: The Act of Congress conferring jurisdiction said that a diversity suit could be brought “between a citizen of a state … and a citizen of another State”. The Court interpreted this language to mean that all claimants must be qualified to sue all defendants. 13

14. Burns v. Anderson 502 F.2d 970 (5th Circ. 1974)
Mas v. Perry, 489 F.2d 1396 (5th Circ. 1974) 14

15. Court System in Italy Justice of the peace Tribunal Court of appeal
Corte di Cassazione 15

16. Court System in Germany
The German legal system is subdivided in:
ordinary courts, consisting of civil and penal courts
there are four levels: local court (Amtsgericht), regional court (Landgericht), higher regional court (Oberlandesgericht - OLG) and Federal Court of Justice (Bundesgerichtshof - BGH).
• social courts
• administration courts
• financial courts and
• labour courts
• Federal Constitutional Court (Bundesverfassungsgericht) 16

17. Court System in England and Wales17

18. UK Supreme Court
is the final court of appeal for all United Kingdom civil cases, and criminal cases from England, Wales and Northern Ireland
12 Justices appointed by the Queen
(see Constitutional Reform Act 2005, Part 3) 18

19. Royal Courts of Justice19

20. US Courts
The judicial architecture of US Courts is made up of two different court systems:
the State courts
the Federal courts 20

21. State court systems: some examples
(New York) 21

22. State court systems: some examples
(California) 22

23. US Federal Court System23

24. US Federal Court System
Article III Courts («The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish”): Supreme Court; Courts of Appeals; District Courts; Court of International Trade.
Article I Tribunals («The Congress shall have Power (…) to constitute Tribunals inferior to the supreme Court”): US Tax Courts; US Bankrupcy Courts; US Court of Federal Claims. 24

25. US Circuits 25

26. State Jurisdiction General jurisdiction Limited jurisdiction
Removal Jurisdiction (28 U.S.C. § 1441) 26

27. Federal jurisdiction Federal matter jurisdiction (28 U.S.C. § 1331)
Diversity jurisdiction (28 U.S.C. § 1332)
Cases involving the laws and treaties of U.S.
Ambassadors and public ministers
Disputes between two or more States
(see Sec. III, US Constitution) 27

28. Federal Question Jurisdiction
“The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States” 28 U.S.C. § 1331
The claim arises under federal law
A defense based on federal law is irrelevant
“Anticipation” of a federal defense by the plaintiff does not create federal jurisdiction
See: Louisville & Nashville Railroad v. Mottley 211 U.S. 149 (1908) 28

29. Diversity Jurisdiction
«(a) The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between—
(1) citizens of different States;
(2) citizens of a State and citizens or subjects of a foreign state, except that the district courts shall not have original jurisdiction under this subsection of an action between citizens of a State and citizens or subjects of a foreign state who are lawfully admitted for permanent residence in the United States and are domiciled in the same State;
(3) citizens of different States and in which citizens or subjects of a foreign state are additional parties; and
(4) a foreign state, defined in section 1603(a) of this title, as plaintiff and citizens of a State or of different States” 28 U.S.C. § 1332 (see also U.S. Cost. Art. III, § 2)
Strawbridge v Curtiss 29

30. Which Court is binding?
Higher state courts bind lower state courts of that State
Higher federal courts bind lower federal courts within the circuit on the interpretation of federal law
State courts bind federal courts on the interpretation of state law, but federal courts can decide if this interpretation is consistent with federal law
Federal courts do not bind state courts, which are bound only to US Supreme Court decisions
Read: Mead, Stare Decisis in the Inferior Courts of the United States, in Nevada Law Journal, 12 Nev. L.J. 787 (2012) [pp ] 30

31. 28 U.S.C. § 1652
See: Swift v. Tyson 41 U.S. (16 Pet.) 1 (1842) overruled by
Erie Railroad v. Tompkins 304 U.S. 64 (1938)

32. Substance – Procedure Distinction
Outcome determination (Guaranty Trust co. V York)
«Absolute» Outcome Determination (Byrd v Blue Ridge Rural Elec. Cooperative Inc.)
The Interest Balancing Approach (Walker v. Armco Steel Corp.)
Deference to a Controlling Federal Rule (Hanna v. Plumer)
The Policies-of-Erie Approach (Hanna v. Plumer) 32

33. 28 U.S.C. § 1441 (a)-(b)
(a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.
(b)Removal Based on Diversity of Citizenship.—
(1) In determining whether a civil action is removable on the basis of the jurisdiction under section 1332(a) of this title, the citizenship of defendants sued under fictitious names shall be disregarded.
(2) A civil action otherwise removable solely on the basis of the jurisdiction under section 1332(a) of this title may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought. 33