Book contents
- Frontmatter
- Contents
- List of Authors
- Acknowledgements
- INTRODUCTION
- FUNDAMENTAL AND OTHER PRINCIPLES OF EVIDENCE IN CIVIL LITIGATION
- EVIDENCE AND THE PRINCIPLE OF PROPORTIONALITY. HOW TO GET RID OF EXPENSIVE AND TIME-CONSUMING EVIDENCE?
- DISCLOSURE OF DOCUMENTS IN CIVIL PROCEDURE: THE PRIVILEGE AGAINST SELFINCRIMINATION OR A QUEST FOR PROCEDURAL FAIRNESS AND SUBSTANTIVE JUSTICE
- PRECLUSION OF LATE ALLEGATIONS AND EVIDENCE AS A TOOL TO INCREASE THE EFFICIENCY OF CIVIL PROCEEDINGS IN POLAND: A SHORT STORY OF THE UGLY PAST AND THE WAY TO A BRIGHT FUTURE
- THE ‘RIGHT TO PROOF’ AND THE ‘LOYALTY PRINCIPLE’: A FRENCH PERSPECTIVE
- RESTRICTIONS ON THE ADMISSIBILITY OF EVIDENCE
- TAKING LENIENCY DOCUMENTS AS EVIDENCE IN DAMAGES ACTIONS IN CASES OF COMPETITION LAW INFRINGEMENT
- LOST IN TRANSLATION? LANGUAGE DIFFERENCES AND THEIR IMPACT ON EVIDENCETAKING IN LITIGATION
- EVIDENCE, INFORMATION TECHNOLOGY AND PRINCIPLES OF CIVIL PROCEDURE – THE HUNGARIAN PERSPECTIVE
- THE POTENTIAL IMPACT OF ELECTRONIC PROCEEDINGS ON TRADITIONAL PRINCIPLES OF CIVIL PROCEDURE – THE SLOVENIAN EXPERIENCE
- TYPES OF EVIDENCE IN CIVIL LITIGATION
- EVIDENCE IN ARBITRATION AND NATIONAL CIVIL LITIGATION
- REGISTRAR
- EVIDENCE IN CROSS BORDER CIVIL LITIGATION
- IUS COMMUNE EUROPAEUM
EVIDENCE AND THE PRINCIPLE OF PROPORTIONALITY. HOW TO GET RID OF EXPENSIVE AND TIME-CONSUMING EVIDENCE?
from FUNDAMENTAL AND OTHER PRINCIPLES OF EVIDENCE IN CIVIL LITIGATION
Published online by Cambridge University Press: 15 December 2017
- Frontmatter
- Contents
- List of Authors
- Acknowledgements
- INTRODUCTION
- FUNDAMENTAL AND OTHER PRINCIPLES OF EVIDENCE IN CIVIL LITIGATION
- EVIDENCE AND THE PRINCIPLE OF PROPORTIONALITY. HOW TO GET RID OF EXPENSIVE AND TIME-CONSUMING EVIDENCE?
- DISCLOSURE OF DOCUMENTS IN CIVIL PROCEDURE: THE PRIVILEGE AGAINST SELFINCRIMINATION OR A QUEST FOR PROCEDURAL FAIRNESS AND SUBSTANTIVE JUSTICE
- PRECLUSION OF LATE ALLEGATIONS AND EVIDENCE AS A TOOL TO INCREASE THE EFFICIENCY OF CIVIL PROCEEDINGS IN POLAND: A SHORT STORY OF THE UGLY PAST AND THE WAY TO A BRIGHT FUTURE
- THE ‘RIGHT TO PROOF’ AND THE ‘LOYALTY PRINCIPLE’: A FRENCH PERSPECTIVE
- RESTRICTIONS ON THE ADMISSIBILITY OF EVIDENCE
- TAKING LENIENCY DOCUMENTS AS EVIDENCE IN DAMAGES ACTIONS IN CASES OF COMPETITION LAW INFRINGEMENT
- LOST IN TRANSLATION? LANGUAGE DIFFERENCES AND THEIR IMPACT ON EVIDENCETAKING IN LITIGATION
- EVIDENCE, INFORMATION TECHNOLOGY AND PRINCIPLES OF CIVIL PROCEDURE – THE HUNGARIAN PERSPECTIVE
- THE POTENTIAL IMPACT OF ELECTRONIC PROCEEDINGS ON TRADITIONAL PRINCIPLES OF CIVIL PROCEDURE – THE SLOVENIAN EXPERIENCE
- TYPES OF EVIDENCE IN CIVIL LITIGATION
- EVIDENCE IN ARBITRATION AND NATIONAL CIVIL LITIGATION
- REGISTRAR
- EVIDENCE IN CROSS BORDER CIVIL LITIGATION
- IUS COMMUNE EUROPAEUM
Summary
Introduction
European civil procedural law deals with the taking of evidence in civil matters only marginally. Admittedly, cooperation in the taking of evidence is among the areas that may be subject to measures adopted by the European legislators. But in the context of evidence-taking, ‘cooperation’ and ‘harmonization’ are two rather different, and sometimes contradictory concepts. As initially stated in the now almost 15–year-old EU instrument regarding the taking of evidence in civil and commercial matters, the aim of the Regulation was to ‘improve, simplify and accelerate cooperation’, and to ‘make [it] easier to take evidence in another Member State’. Yet, the very core of the evidence-taking – who (and when and how) has to select, present and assess the evidence – was left untouched.
Moreover, in line with the principles of subsidiarity and proportionality entrenched in the EU Treaty, the European legislators cannot go beyond what is absolutely necessary to achieve the imminently set objective, i.e. to improve the cooperation between the national courts of different European jurisdictions. Whether these courts have diametrically opposite approaches and rules to evidencetaking, from the EU law perspective it does not matter. As, allegedly, the desired objective of facilitating judicial cooperation has largely been achieved, no further actions that would go beyond the friendly cross-border judicial assistance between courts and promotion of mutual knowledge of different evidence-taking systems in the EU countries are either desired or permissible.
Is this really the case? Can cooperation be successful within the ‘common area of justice’ if the practices of the taking of evidence in civil and commercial cases are exceedingly different and are rooted in different rationales and different core practices? In this text, I will argue that if a ‘common area of justice’ is to be taken seriously, some harmonization in the approach to the taking of evidence is indispensable.
The developments regarding the taking of evidence conform to the wider trends of convergence triggered by the change in the setting of the goals of civil litigation. In all recent reforms, the key is the principle of proportionality. In the context of evidence-taking, the principle of proportionality, when properly understood and accepted, may prompt far-reaching changes – in particular where the principle of proportionality was largely unknown in the field of civil procedure.
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- Evidence in Contemporary Civil ProcedureFundamental Issues in a Comparative Perspective, pp. 17 - 32Publisher: IntersentiaPrint publication year: 2015