LITIGATION I PROFESSOR:
MARCO DE BENITO
ACADEMIC YEAR: 2014-2015 nd DEGREE COURSE YEAR: 2 LLB nd 2 SEMESTER CATEGORY: COMPULSORY NO. OF CREDITS (ECTS): 6 LANGUAGE: English
1. SUBJECT DESCRIPTION Litigation I deals with the general aspects of civil procedure, one of the core subjects of any law degree. The course takes a decidedly transnational approach. There are different procedural traditions and ultimately each country has its own set of procedural rules; however, in most countries the scholars − and, to a certain extent, the practitioners − speak a similar “language” and use comparable categories. The course uses the notions and terms coined in the different procedural traditions − Romanocanonical, French, Austro-German, Anglo-American, with a particular focus on the AustroGerman tradition, still today the most influential in Europe. Comparative references to specific jurisdictions (in particular, Germany, Spain, and the USA) will supplement this transnational approach.
2. OBJECTIVES AND SKILLS This course aims at helping the students develop the skills required to understand effectively use the main notions and categories which make up the “general part” of procedure: how are civil courts organized; what are the general principles underlying all process; what types of relief can be sought; what the typical structure is of an ordinary procedure.
and civil civil civil
Likewise, the students will acquire the skills necessary to critically analyze, synthesize, present, and reason on contents related to civil procedure.
Edited by IE Publishing Department. Last revised, August 2011. 1⏐
3. CONTENT PART I – JURISDICTION 1. 2. 3. 4. 5. 6. 7. 8.
Judicial organization and structure. Judicial organization and structure. Judicial organization and structure: presentations. Judicial organization and structure: presentations. Jurisdiction: international and domestic. Jurisdiction: international and domestic. Case study. Case study. PART II – PROCEDURE
9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24.
Ordinary proceedings in first instance. The constitutionalization and internationalization of civil procedure. Types of relief available. Fundamental principles of civil procedure. Historical perspective of written and oral procedures. Increased judicial control. Plenary and evidentiary proceedings. The decline of formalism in the rules of evidence. The impact of political ideology: debate. Interim relief. Judgment and other case dispositions. Enforcement. Appellate justice: ordinary and extraordinary appeals. Appellate justice: comparative last resort appeals: presentations. Mock hearing. Mock hearing. Doubts. Exam. PART III – COMPARISON
25. 26. 27. 28. 29. 30.
Videoconference: US civil litigation. Online forum. Online forum. Videoconference: US civil litigation. Online forum. Online forum.
4. METHODOLOGY Litigation I is designed to provide a strong intellectual framework to help the students understand the basics of continental civil procedure, together with comparative references. Learning is based on three main methods: 1. 2. 3. 4.
Lectures, in which the students are provided with the overall view of a specific aspect of civil procedure. The students need to prepare each session with assigned readings, to be defined in due time. Independent work, mainly with a comparative approach. Students interested in a particular aspect have the opportunity to carry on their research with the professor’s guidance. Case studies, in which cases will be individually presented and discussed. Mock hearings, in which the students play the role of lawyers, witnesses, and judges.
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5. ECTS WEIGHTING 6 ECTS = approximately 150 hours of dedication for an average student Type of work
Hours devoted
ECTS
Lectures and videoconferences (preparation and attendance)
16 sessions of 1.5 hours each, plus preparation = 50 hours
2
Case study, presentations, hearings (preparation and attendance)
9 sessions of 1.5 hours each, plus preparation = 50 hours
2
Exam (preparation and attendance)
1 session of 1.5 hours, plus preparation = 25 hours
1
Online fora 2 weekly fora, plus preparation = 25 hours (participation and attendance)
1
Total
6
150 hours
6. EVALUATION SYSTEM a) General remarks Each student has four attempts over two consecutive academic years to pass this course. Class attendance is compulsory. Absence from more than 30% of the classes results in a grade of 0.0. In addition, students not fulfilling the attendance requirement automatically lose the first retake attempt to pass the course, and have only two attempts left to pass the course during the following academic year. b) Evaluation and weighting criteria The grade is generally determined based on the following criteria: 1. Participation, presentations, hearings, debates, online fora: 40% 2. Written case study: 20% 3. Exam: 40% A grade of less than 4.0 in the exam suffices to fail the whole course. c) Retake policy If a student’s course grade is below 5.0, the student must retake the exam to pass the course. The retake exam includes everything that students have learned in class, including lectures, case discussions, and group exercises. If the student has participated in the process of continuous evaluation, the grade achieved during the period of continuous evaluation is taken into account. The maximum final score is 8.0.
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Students in their 3 or 4 call must contact the professor during the first month of the course. 7. USE OF ELECTRONIC DEVICES IN CLASS This subject does not require the use of a laptop in class, but students are allowed to use it for matters related to the course.
8. BIBLIOGRAPHY a) Compulsory ⎯ CAPPELLETTI, M., GARTH, B.G., Introduction – Policies, Trends and Ideas in Civil Procedure, 1988, in CAPPELLETTI, M. (ed.), Vol. XVI: Civil Procedure, in ZWEIGERT, K., DROBNIG, K. (eds.), International Encyclopedia of Comparative Law, Mohr Siebeck / Martinus Nijhoff. (To be provided by the professor.) ⎯ MURRAY, P., STÜRNER, R., German Civil Justice, Carolina Academic Press, 2004. (To be acquired by the student.) b) Recommended ⎯ BLOMEYER, A., Types of Relief Available (Judicial Remedies), 1983, in CAPPELLETTI, M. (ed.), Vol. XVI: Civil Procedure, in ZWEIGERT, K., DROBNIG, K. (eds.), International Encyclopedia of Comparative Law, Mohr Siebeck / Martinus Nijhoff. ⎯ CAPPELLETTI, M. (ed.), The Judicial Process in Comparative Perspective, Oxford University Press, 1989. ⎯ CHASE, O. G., HERSHKOFF, H. (eds.), Civil Litigation in Comparative Context, Thomson / West, 2007. ⎯ CLARK, D.S., The Organization of Lawyers and Judges, 2002, in CAPPELLETTI, M. (ed.), Vol. XVI: Civil Procedure, in ZWEIGERT, K., DROBNIG, K. (eds.), International Encyclopedia of Comparative Law, Mohr Siebeck / Martinus Nijhoff. ⎯ KAPLAN, B., et al., Ordinary Proceedings in First Instance, 1984, in CAPPELLETTI, M. (ed.), Vol. XVI: Civil Procedure, in ZWEIGERT, K., DROBNIG, K. (eds.), International Encyclopedia of Comparative Law, Mohr Siebeck / Martinus Nijhoff. ⎯ DAMASKA, M. R., The Faces of Justice and State Authority: a Comparative Approach to the Legal Process, Yale University Press, 1986. ⎯ DE LA OLIVA, A. (dir.), European Civil Procedure, Aranzadi / Sweet & Maxwell, 2011. ⎯ JOLOWICZ, J. A., On Civil Procedure, Cambridge University Press, 2000. ⎯ VAN RHEE, C. H., KRAMER, X. E., Civil Litigation in a Globalising World, T. M. C. Asser Press, 2012. ⎯ VAN RHEE, C.H. (ed.), European Traditions in Civil Procedure, Intersentia, 2005.
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9. PROFESSOR’S BIO MARCO DE BENITO Dr. Marco de Benito Llopis-Llombart is a full professor at IE University. His areas of interest include legal history, comparative civil procedure, and international arbitration. Prof. de Benito holds a doctorate in law from Comillas Pontifical University in Madrid. He has taught or done research at Yale Law School, the Max Planck Institute for Comparative and International Private Law in Hamburg, the University of Bonn Institute of German and International Civil Procedure Law and Conflict Management, the Royal College of Spain at Bologna, the Scuola Superiore Sant’Anna in Pisa, Panamerican University in Mexico, Francisco Marroquín University in Guatemala, and Peking University. Prof. de Benito heads the IE University European Module “Towards a Common Private Law of Europe” within the Jean Monnet Program of the European Commission. He practiced as an attorney at Uría Menéndez from 2002 to 2011. Today he is Of Counsel at Moscardó & Asociados. He has acted in arbitration proceedings in the energy, infrastructure, and financial sectors, seated in Madrid, Barcelona, Paris, Geneva, London, Miami, and Washington DC. He has co-authored a handbook on European Legal History (2013), coordinated a collective book on international arbitration in Europe (2013) and authored a book on the binding efficacy of arbitration agreements (2010). He publishes and speaks regularly on his fields of interest. You can visit some of his publications at ie.academia.edu/MarcodeBenito. Prof. de Benito can be reached at
[email protected].
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