SERGIO CHIARLONI

A Comparative Perspective on the Crisis of Civil Justice and on its Possible Remedies

 

1. - The general crisis situation and the few exceptions. 2. - The difficulty of analytical comparisons due to the heterogeneity of data. 3.- The difficulty of data evaluation due to different approaches by the national lecturers. 4.- The causes of excessive duration of civil proceedings. The so-called litigation explosion. 5.- Problems of justice, proceedings’ structures and proceedings’ parties. 6.- The remedies to recover efficiency. 6.1.- Rationalisation of procedural costs and legal aid. 6.2.-The attempts to "deflate" the demand for justice. Increasing the price of state justice and Alternative Dispute Resolution systems. 6.3. Interventions to simplify and rationalise procedural disciplines. 6.4. Interventions into the judicial organisation.

 

 

1. - The general crisis situation and the few exceptions.

1 The many national reports concerning proceedings’ costs and duration reveal, with very few exceptions, a very poor situation.

2 Obviously, the tones are manifold, sometimes reflecting the different economical and social situations of the examined jurisdictions.

3 Therefore, the reporter from a developing giant like Brazil deplores the basic organisational defects which cause, especially in Northern and North-western states, a substantial negation of justice, as cases lie for years on judges’ books (1).

4 But even in the so-called developed countries, civil justice suffers severe problems of inefficiency, regarding both costs and the duration of proceedings. The two extreme situations are England for costs and Italy for delays.

5 In England, the costs of litigation are truly unbearable for the middle classes, which cannot afford the cost nor have access to legal aid. Except in small claims, the losing party has to pay both its own and the other party’s costs. It may happen that the loser has to pay five times the value of the claim. That is due to two main factors. In first place, the traditional division of roles between solicitors and barristers obliges the parties to pay two different professionals in front of the High Court. Secondly, lawyers calculate their fees on an hourly basis (in the City, £300 or more per hour). Very conveniently, the English reporter highlights the correlation between the use of hourly fees and the inevitable disposition of lawyers to complicate proceedings, above all in the pre-trial stage, with pernicious effects on duration and costs (2).

6 In Italy, the duration of ordinary proceedings is unacceptable. The average duration of first instance proceedings has gone over 1,200 days, with an increasing progression in the last twenty years. If a case goes to appeal, the parties may wait for ten years in order to obtain a final decision. That has caused the birth of a new professional role. Some lawyers have specialised in appeals to the European Court of Human Rights, in order to obtain a condemnation of the Italian Government for failing to ensure a reasonable duration of proceedings according to Art. 6 of the Convention. Already several thousand Italian citizens have applied to the Court. Consequently, there is the possibility of a paradoxical result: the congestion of the European Court, which will be no more able to end its own proceedings in reasonable time(3).

7 Though not universal, the cries concerning the present state of civil justice constitute the fil rouge that runs through almost every national report. It is significant that the quality of the jurisdictional product itself is never criticised. Nobody has expressed any doubt about the skill of judges to apply correctly the law. In relation to the civil justice crisis, criticism is directed exclusively towards the above-mentioned correlated factors in their extreme manifestations: excessive costs and duration. We have to remember, though, that the long delays can rob judgments of their usefulness and amount to a denial of justice. Only Germany, Japan and the Netherlands escape from the cahier de doléances. We should note that Germany allocates over 7% of its national budget to justice, that is more than four times than the average of other countries; that the Netherlands, a small, wealthy and well-organised country, has a low litigation rate and a good alternative dispute resolution system; that Japan has an extremely low litigation rate (less than one-third of the European average) due to a traditional rejection of courts.

 

2. - The difficulty of analytical comparisons due to the heterogeneity of data.

8 At this point, the attempt to undertake a comparison between quantitative data contained in the national reports faces one first obstacle. I do not need to underline the fact that data are seldom the result of field-based researches. Data usually derive from central statistical institutes. Their reliability as a basis for a scientific inference is often weak due to several reasons. Firstly, data are collected by judicial offices’ employees who are directly interested in the ensuing evaluations; furthermore, they are sometimes subject to the pressure of office chiefs, who tend to inflate backlog numbers. Data are then processed by statistical sociology experts, who ignore civil procedure. Furthermore, comparison is bound to be distorted by differences between the methodologies adopted to collect data in different countries and from the differences between the various procedures. Often, different data are collected under the same label.

9 Let us examine the problem of proceedings’ duration. It is true that in Italy the duration of proceedings is so long that the subject is frequently the object of public inquiry. However, the gap between different countries is so huge as to raise suggest that there are some errors in the comparison. The Spanish report, for example, informs us that the average duration of first instance proceedings is slightly less than one year(4). We could infer that the duration of ordinary proceedings in Spain is about one-third of the Italian average duration. This conclusion is both true and false. It is formally true if we just consider the terminological appearance. It is false if we realise that the comparison being drawn is between non-comparable entities, due to a basic difference between the two procedural disciplines. In Spain there is no summary judgment for the protection of money credits, which is therefore addressed through ordinary proceedings. As experience tells us, in most cases the debtor does not raise an opposition, so that the judge’s work is greatly simplified. Unopposed credit cases are of great statistical relevance in that they reduce the average duration of ordinary proceedings. In Italy, instead, such cases are covered by a special procedure (which lasts a few days in case of default of opposition) and therefore treated separately. The correctness of this conclusion is indirectly supported by the huge number of decisions by default, as described by the Spanish report.

10 Another distortion stems from the fact that in some countries, like Italy, the proceedings’ average duration is calculated only for those cases ending with a judgment, while in others, like France, the Netherlands and Germany, the average duration is calculated considering all initiated cases. Evidently, it is difficult to compare the duration of proceedings if the terms of comparison are not homogeneous. In fact, the average duration of abandoned or settled cases is much shorter than in cases which end with a decision. Consequently, if the average duration is calculated for all cases, independently from their conclusions, the result is lower (but it is not possible to know how much lower) than if calculated only for cases ending with a judgment. The correctness of this conclusion is backed by the data contained in Prof. Blankenburg’s report, referring to field research performed in the Netherlands. Such data, regarding several Rechtbank (district Courts), tell us that the average duration of settled proceedings is about one-half of the duration of proceeding ending with a judgement(5).

 

3.- The difficulty of data evaluation due to different approaches by the national reporters.

11 The national reports regarding France and Germany, without a comparative analysis of the data, give the impression of opposite civil justice situations. The French reporter tells about a crisis of justice, pointing out three different aspects: citizens’ trust crisis; growth crisis; system crisis. According to the data given by research conducted in 1991, 97% of interviewed people complained about the excessive slowness of proceedings; 85% difficulties and complications; 84% costs; 83% the inability to grant equality of treatment(6). The general mood of the report is very pessimistic. The German reporter, instead, and correctly, in my opinion, seems to be very optimistic, though expressing worries about the increasing trend in the litigation rate, which could, in the future, endanger the whole system(7).

12 However, when we examine the data, the actual situation of these two great European countries does not justify such extreme positions in the respective evaluations. It is true that the duration of proceedings (which is here comparable because it refers to the same kinds of proceedings) is rather longer in France. In 1996, the average duration of proceedings in front of the tribunaux de grande instance was 8.9 months, while that of the corresponding German Landgerichte was 6.5 months. But the gap becomes irrelevant if we consider local courts: 5.0 months for the tribunaux d’instance and 4.6 months for the Amtsgerichte. It is plain, however, that a difference of barely 2.5 months regarding a generally acceptable average duration in both countries cannot justify two opposite evaluations. Moreover, we must consider the wide diffusion (almost 20% of inter partes proceedings), in France, of the proceeding of référé, which is a summary procedure whose average duration varies from 1.1 months in front of the tribunaux de grande instance to 1.7 months in front of the tribunaux d’instance(8). The motivation for such sharp differences between the French and German reports may be found within the diversity of cultural approach of the two reporters, one influenced by apocalyptic perspectives, the other by integrated points of view(9).

 

4.- The causes of excessive duration of civil proceedings. The so-called litigation explosion.

13 "Justice delayed is justice denied" warned J. Bentham more than one century ago. But what are the causes, who is responsible for such a creeping negation of justice that nowadays affects the activity of so many tribunals?

14 Certainly, the most significant cause of the present difficulties of civil justice is the enormous increase in the litigation rate, which has affected many jurisdictions in the last twenty years and has been metaphorically defined by some North-American jurists as a ‘litigation explosion’.

15 However, we cannot avoid noticing a paradox: the most impressive litigation increases have involved the countries that have better faced them without any particular structural intervention. Concerning the civil law jurisdictions, for example, the litigation increase has been much sharper in Germany and France than in Italy. On the contrary, proceedings’ duration has grown much more in Italy than in those countries: in France, between 1992 and 1996, the average duration of the proceedings in front of the Tribuneaux de grande instance decreased from 9.5 to 8.9 months, while the number of new proceedings increased from 523,026 to 676,282. In Italy, between 1973 and 1994, the controversies in front of Tribunals increased from 257,454 to 388,539 (less than a 5% increase every year), but the average duration more than doubled, passing from 708 to 1341 days.

16 In my opinion, the explanation for this enigma is rather simple: Italian judges possess a lesser skill to resolve disputes than their French and German colleagues. Statistics tell us that, from the 1950s, apart from a few exceptions due to value jurisdiction reforms, the number of concluded proceedings has become constantly smaller, even if only slightly, than the number of new actions commenced. Such a phenomenon is tightly correlated to the progressive increasing of the judges’ backlog, which is the primary cause of the present disastrous situation of Italian civil justice. If we suppose a judicial office, with a ‘virgin’ role, that enters 1,000 proceedings a year and resolves 90% of them. After ten years, the office backlog will be equal to the total of new proceedings. After thirty years, the backlog will be three times bigger. This state of affairs can be empirically demonstrated thanks to my own research about appeals in labour proceedings at the Tribunal of Turin. I have found that, in only six years, between 1974 to 1980, proceedings’ duration rose from 75 to 304 days. Meanwhile, the backlog had increased from zero to 167 cases(10). Today, after more than twenty years, the backlog is 2,000 cases and the average duration has reached three years.

17 The correct description of the Italian situation, compared to other countries that have managed to face the growing demand of justice, should be "backlog explosion" rather than "litigation explosion".

18 It is important to underline that, probably, it is the very increase in duration that discourages the demand for justice. As a matter of fact, in Italy there are only 1640 ordinary proceedings for every 100,000 citizens, while in Austria there are 5,020, in Belgium 4,008, in West Germany 3,561 and in France1,950(11).

19 Not all national reports have furnished historical accounts of litigation trends in their respective countries. However, we can imagine that in those countries in which an excessive duration is complained of, without complaining of a corresponding increase in litigation (England, Brazil, Spain), the main problem is the incapacity of the system to absorb the demand for justice without aggravating the courts’ backlog.

 

5.- Problems of justice, proceedings’ structures and proceedings’ parties.

20 The quantity of litigation and its increasing trend over the years certainly represent an important factor in assessing the situation of ordinary proceedings. But it’s not the only one. Other equally important factors are procedural disciplines, organisation structures, behaviours and interests of judges and lawyers. These factors are tightly connected. We will see, for example, that within the so-called ‘co-ordinated jurisdictional systems’, that is, common law jurisdictions, where the pre-trial stage is left in the parties’ (or more correctly to their lawyers) domain, there is a tendency to submit this stage to the management of the judge. The basic idea is that excessive costs (such as those concerning discovery), delays and complications are due to the interest of lawyers in increasing their earnings, as their fees are proportional to the expense of time rather than to the value of the case. We will see, instead, that in the so-called ‘subordinated jurisdictional systems’, that is, civil law jurisdictions, in which the judges ideally manage the whole proceedings and the lawyers’ fees, usually regulated by law, are not calculated on an hourly basis, the criticisms focus (though not completely sparing lawyers) on the complexity of the judicial apparatus and on the excessive complications of ordinary proceedings.

 

6.- The remedies to recover efficiency

21 As it is obvious, the remedies described in the various national reports differ according to the perceived crisis factor.

22 As far as costs are concerned, there are two kinds of proposals. On one hand, there are proposals to abate costs, which are deemed to be excessive, through changes in the organisation of the legal profession and in the system used for paying lawyer’s fees. On the other hand, there are proposals to change legal aid to the poor, if it turns out to be insufficient or not cost-effective.

23 As far as duration is concerned, the efforts at improvement are made in different directions. There are proposals to introduce mechanisms which would reduce the volume of litigation; to simplify procedures, adapting them better to the different kinds of disputes; to rationalise the administration of justice by improving its structures in order to increase judges’ productivity.

24 But let us proceed with each proposal in turn.

6.1.- Rationalisation of procedural costs and legal aid.

25 As far as rationalisation of procedural costs is concerned, which is aimed at making them more affordable and to counteract lawyers’ interest in procedural complications, the most interesting initiatives come from England and Germany.

26 In England, as we have already said, costs are unbearable and distort the whole system of justice, particularly in low value claims. Many proposals, advanced by the "Woolf Report on Access to Justice", are directed to these kinds of disputes. They recommend a standardisation of the process and of the costs recoverable by the winner from the loser in litigation. The costs payable by the client to his own lawyer will also be similarly calculated, unless the client expressly agrees to pay more. In order to help poor litigants, conditional fees are being introduced. Under a conditional fee agreement the lawyers gets nothing if the plaintiff wins. But if he wins, the lawyer will get the normal hourly fee, plus a premium of up to 100% of this fee.

27 In Germany, the cost of litigation is not so high as in England, because, as generally happens in civil law systems, the lawyers’ fees are fixed by law as a percentage of the value of the claim. Such percentage decreases as the value increases. Nevertheless the German legislature, in an attempt to avoid Courts’ congestion, found it necessary to provide lawyers with an incentive to settle, by providing that when a case is settled before judgement the lawyers are entitled to receive an extra fee unit.

28 Regarding State interventions to sustain citizens who cannot afford to pay legal costs, again Italy and England represent two extreme cases.

29 In England, legal aid costs, which are the highest in the world, have greatly increased in the last few years and could have gone out of control. The English reporter informs us that the total expenditure (both for civil cases and for criminal cases) has been equal to £ 682 million in 1992 and £ 1,478 millions in 1996-97, while is expected to reach 1602 millions in 1998-99. The reason for such a state of things is not the particularly large number of citizens that get legal aid. The reason is, instead, the excessiveness of lawyers’ fees, paid on hourly basis. The suggested remedies, which are beginning to be applied, overhaul the system under which legal aid is provided. The Access to Justice Bill 1998 creates a new Legal Services Commission. The Commission will ensure that legal aid services are provided on an economical basis by franchising legal firms on a competitive basis and paying a fixed cost for legal services. Further, legal aid will be withdrawn from money claims, leaving plaintiff with such claims to find lawyers willing to represent them on a conditional fee basis.

30 In Italy, legal aid is simply a disaster. Article 24 of the Italian Constitution (Costituzione) requires the state to provide legal aid to those who cannot otherwise afford legal proceedings. Yet, the reality is quite different from these declamations. Formerly, in Piedmont, a so-called "poor persons’ lawyer" existed, structured as a civil servant like the public prosecutor. This office was introduced in the unified territories, but suppressed shortly after Italian unification during the 1860s, due to claimed budgetary constraints. From unification until 1973, poor people wishing to litigate had to rely solely on the good will of lawyers, all of whom had a duty to represent them for free. Needless to say, the quality of the representation they received was typically very poor. In 1973 and 1990, laws were enacted providing for legal aid in the form of state payment of lawyers’ fees. But the criteria for eligibility to receive legal aid are so stringent that very few indeed have been able to benefit. Legal aid today is available only to those who earn less than £ 3,500 a year and typically only for criminal cases. It is accordingly not surprising that the public expenditure on legal aid in Italy is less than one hundredth of that in England. Up until now, possible remedies have been discussed theoretically, but current budgetary difficulties restrain an effective legal aid system for the poor.

31 Legal aid in the other countries finds it place between these just considered extreme cases. The situation in the US is similar to the Italian one. The available funding for impoverished litigants is very limited(12). The only hope for poor plaintiffs with money claims is to find a lawyer willing to take on their cases on a contingency fee basis. Spain has a system of free legal assistance, but lawyers are poorly paid. As a result, the standard of services provided under the legal aid scheme is very poor, as the Spanish lecturer complains. The same happens in Portugal, mainly due to the fact that the appointed lawyers are either trainees or lawyers embarking on their careers(13). In Brazil, there is a system of public defenders, still very inefficient. In many states it does not operate at all, or it exists only by way of token public legal assistance to persons most in need. In Greece, the legal aid system is not really effective, due to the unwillingness of counsel to accept pro bono work. In Germany, there is an effective system of legal aid, mainly as far as family disputes are concerned. Such legal aid system costs a lot (DM 500 millions per year), even if much less than the English system. The French legal aid system, after a recent reform, turns out to be good. In 1997, the expenditure has been about Fr. 1072 millions.

6.2.-The attempts to "deflate" the demand for justice. Increasing of the price of state justice and Alternative Dispute Resolution systems.

32 The litigation explosion, particularly relevant in North American and German systems, has triggered, among the necessary remedies, devices meant to abate or even to invert such trend.

33 It is important to make distinctions. A decrease in the workload of courts may happen in two ways. Access can be discouraged by increasing judicial taxes, in order to make clients pay, in a free market perspective, for the cost of the service they receive. Along this direction we may place the introduction (or the increasing) of minimum value limits for appeals(14). Through this method, we might open new ways to disputes’ solution.

34 Making access to justice more expensive or binding the possibility of appeals to the value of the claim may give rise to difficulty. In Italy for instance such proposal would run into constitutional problems. The Greek lecturer reports that in 1995 over 85% of cases brought before first instance courts resulted in decisions in favour of the plaintiff. The reporter infers that, in that country, litigation depends on a true need for protection and therefore that "one should look elsewhere for the ‘root of evil’"(15). I am certain that this remark expresses in important idea: that efforts aimed to discourage citizens from asking the state for justice without offering an alternative are politically unacceptable.

35 It is instead better to attempt to lighten the judges’ work by encouraging citizens to use alternative dispute resolution methods. The complex modern society cannot be satisfied by traditional justice, either with civil law or case law systems(16), by traditional judges in a highly formalised procedure, which requires expensive legal representation . It is necessary to explore new ways, faster, cheaper, simpler and nearer to the needs and, why not, to the moods of those categories of citizens who are involved in a controversy.

36 All systems are now seeking, with more or less determination, a new "co-existence" justice system, more inclined to parties’ conciliation.

37 Alternative dispute resolution systems are more diffused in common law countries, particularly in the US, where the relative cultural background dates back to the 1980s, than in civil law systems.

38 In Europe(17), apart from arbitration(18), the development of ‘informal justice’ systems is rather slow.

39 There are many restraining factors. First, there is the weight of a long tradition of ritual justice. Secondly, there is a long-standing myth of jurisdictional unity, which generates great suspicion of any attempt to lessen the judges’ dominance. Lastly, in civil law countries, ordinary proceedings do not generate the enormous costs and difficulties that they do under the common law adversarial system(19).

40 The protection of workers and consumers appears to be the fastest growing sector of ADR in Europe. In Italy, experimental conciliation and arbitration services are provided by Telecom Italia, the banking ombudsmen, conciliation and arbitration chambers established by the chambers of commerce, and conciliation offered by labour and employment offices(20).

6.3. Interventions to simplify and rationalise procedural disciplines

41 As far as proceedings discipline is concerned, we can see a great difference of approach between common and civil law countries.

42 In common law countries, we see a short slogan on the flag of procedural reforms: case management. Briefly, it is about placing even the pre-trial stage under the control of the judge, especially regarding discovery, which now is left, in adversarial systems, to the complete control of the parties’ lawyers.

43 Case management has been discussed in the US for a long time. Many legislative interventions have concerned particularly the so-called complex litigation; that is that kind of controversy (like environmental and consumers protection cases, civil rights cases, antitrust cases, mass tort cases) for which traditional adversarialness is no longer sufficient.

44 Even in England, as we are told , the newly introduced (26th April 1999) procedural rules are united under a new "philosophy of procedure" which represents a U-turn from the traditional rules of the adversary system. The excess of adversarialness involves an excess of litigious activity. To reduce this activity the new rules place the control of litigation in the hands of the courts.

45 Obviously, in civil law countries, where proceedings are already under the strict control of the courts, such theory does not find much consideration.

46 The attention is focused rather on the problem of reducing the complexity and formalism of ordinary procedure and on the introduction of simplified summary procedures or the rationalisation of the existing ones.

47 An important simplification is going on in the discipline of evidence examination. Slowly, there is a growing awareness that the judge can make a decision without oral hearings and cross-examinations, but by simply reading the written affidavits of parties and tests. No doubt, there is a great saving of money and time, without great losses in fact-reconstruction reliability. This is certainly an important exception to the principle of oral discussion, but it should not worry us, as the judge retains the power to order an oral hearing of the tests.

48 In Spain, the draft new code of civil procedure, which is now being discussed in the Parliament, apart from providing some procedural simplifications to the ordinary proceedings, introduce the "monitoring procedure", aligning the judicial protection of money credits to the German, French and Italian systems. Regarding existing summary procedures, a new draft law developed by the Italian Government provides for a rationalisation of interlocutory procedures, transferring the burden of starting the judgement on the merit from the plaintiff to the defendant. Such suggestion is particularly important for urgent procedures, which would be made more similar to the French référé procedure. The result would be a great relief for ordinary proceedings, as has happened in France.

6.4. Interventions into judicial organisation.

49 The existence of several types of first instance ordinary judges can be justified in many ways, above all by historical analysis. Certainly, it is a source of problems. For example, judicial statistics show that changing competence rules may cause sudden irrational leaps in work loads(21).

50 For that reason, in continental Europe, the leitmotif of the past few years has been the idea of only one type of judge for all first instance proceedings. In Germany, this hypothesis has been widely discussed. In 1996, though, a ministerial working group came to the conclusion that the proposal to merge the local court and regional court together to form a unified court of first instance was not feasible in the near future(22). In France, too, the idea of a merger between juge d’instance and juge de grande instance has been considered, but a redistribution of competence was preferred, by increasing the value competence of the juge d’instance. In Italy, instead, this idea has been brought to complete realisation. In 1989, the districts of pretore and tribunale has been unified, leaving just a part of the old preture mandamentali as detached sections of the central offices of the preture. The law which establishes the single judge of first instance will become effective in June 1999. The process had some obstacles to overcome, including the abolition of the managerial positions of some hundred ‘directors’ (judges and public prosecutors who hold directive functions) who presently work in the preture. Hopefully, now that the process is complete, some characteristics of the preture, such as pragmatism, swiftness and informality, will not be lost.

51 A common organisational feature in many civil law systems is the growing diffusion of the single judge in first instance proceedings. The abandonment of collegiality is urged for obvious reasons of economy and efficiency. In France and Germany, even if two different types of first instance judges are maintained, the single judge institution has been extended to ‘superior’ judges, who were traditionally collegial. The collegial decision is exceptionally kept for some sorts of controversies, as in Italy for the Tribunale unificato.

52 Together with harmonising trends, some relevant organisational differences still survive within the judicial systems of the different countries.

53 Specialist courts for distinct types of private litigation constitute a fundamental feature of many European systems, including France and England(23).

54 However, there are no specialist courts in Germany and Italy. In Italy, there is a constitutional disposition that forbids the creation of such courts.

55 Obviously, I support the idea of new special judges who would not be, as in the past, instruments of privilege for certain social classes or for public administration. They should be a true expression of the strong energies that society reveals in solidarity and voluntary activities. Special judges coming from the so called third sector could make valuable contributions, for many reasons, towards accomplishing the tasks of the state, particularly in the justice system.

56 In conclusion, these special judges could lighten the workload of ordinary judges and allow the judicial protection of needs that are now submerged because of the excessive costs, formalism and distance of ordinary justice.

57 The idea, which has been already supported by Italian jurists(24) (but which needs the amendment of the Constitution, implies the introduction of a wide range of special jurisdictions, covering those fields of the community life where jurisdictional protection may be needed. Such jurisdictions, in most cases, could be made up of representatives of the opposing interests, like the French Conseil de prud’hommes, which has jurisdiction over labour disputes and has progressively adapted to the spreading of the equality principle in the industrial relationships.

58 The special jurisdictions, however, should not be limited to labour disputes only, but should be spread to the fields of housing, health, essential services, consumer protection and civil liability. An easily accessible and low cost jurisdiction, together with the right to self-representation, could speed up the resolution of controversies and bring to light repressed conflicts which do not receive otherwise protection.

 


Footnotes

(1) See BERMUDES S., Administration of Civil Justice in Brasil, p. 17.

(2) See MICHALIK P., Justice in Crisis, a Comparative Perspective on Civil Justice. England and Wales, p. 27 ff.

(3) As I did not yet get the Italian report, I will refer to CHIARLONI S. La giustizia civile e i suoi paradossi, in Annali della Storia d’Italia Einaudi, Torino, 1998, s. 407 ff.

(4) See DIEZ-PICAZO GIMENEZ I., Civil Justice in Spain: Present and Future- Access, Cost & Duration, p. 19

(5) See BLANKENBURG E. Civil Justice. Access, Cost and Expedition – a Multinational Perspective: the Netherlands, p. 17 ff.

(6) See CADIET L. Civil Justice Reform: Access, Cost and Delay. The French Perspective, p. 24 ff.

(7) GOTTWALD P. Civil Justice Reform- Access, Cost and Expedition, the German Perspective, p. 8 ss. To be precise I am not quoting a German national report which has not arrived, but the essay given by prof. Gottwald to the book which will be edited by AAS Zuckerman, Justice in Crisis, Comparative Aspects of Civil procedure, Oxford, 1999

(8) Ministère de la Justice, Annuaire statistique de la justice, Edition 1998.

(9) See ECO U., Apocalittici e integrati, Milano, 1979.

(10) See L’appello nel processo del lavoro, Profili dall'esperienza, Milano, 1988.

(11) See BLANKENBURG E. , Cultures juridiques comparées.

(12) See MARCUS R.L. Malaise of the Litigation Superpower, p. 43 ff.

(13) MARQUES M.M. The Portuguese System of Civil procedure, p. 35 ff.

(14) There is currently a discussion about this in Germany. See GOTTWALD, p. 29.

(15) KERAMEUS K.D. and KOUSSOULIS S., Civil Justice Reform: Access, Costs and Delay. A Greek perspective p. 13 ff.

(16) Even in Common Law countries, the debate between these opposite conceptions is still alive. See FALLON R.H. and MELTZER D.J., New Law, Non-Retroactivity and Constitutional Remedies, in Harvard Law Review, 1991 (104), p. 1733 ff., especially at p. 1758 ff.

(17) See COULSON R., Will the Growth of Alternative Dispute Resolution (Adr) in America Be Replicated in Europe?, in Journal of International Arbitration, 1992 (9), pp. 211 ff.

(18) The Centre for Dispute Resolution, London, separates arbitration from Adr institutions. See ADR Route Map, London 1992, p. 3.

(19) See BLANKENBURG E., TANIGUCHI Y., Informal Alternatives to and within Formal Procedures, in Justice and Efficiency, Proceedings of the VIII World Congress of Procedural Law, Anversa 1989, pp. 335 ff.

(20) See F. CARPI, Settlement of Disputes Out of Court in Italy, relation at the International Symposium on Civil Procedure in the Globalisation Era, Waseda University, Tokyo, 25-27 August 1992.

(21) For example, with reference to Switzerland, MEIER I, Swiss Procedural Law p. 12 of the typed report, notes "the big increase of cases of the single judges and the decline of cases in district courts in 1996 result of a shift competence"

(22) See GOTTWALD P., p. 20 of the typed report.

(23) See CRANSTON R., Legal Foundations of the Welfare State, London 1985, pp. 189 ff.

(24) See for example DENTI V., Tre interventi sul disegno di legge governativo di provvedimenti urgenti per l’accelerazione dei tempi della giustizia civile: una difesa d’ufficio", in Foro Italiano, 1987, V, c. 172, and if you like, CHIARLONI S., Nuovi modelli processuali, in Rivista di diritto civile, 1993, and now in Formalismi e garanzie, Turin, 1995, p. 12 ff.