Civil Procedure Law: The Dialogue Between the US and Europe Is Possible

A STUDY BY CESARE CAVALLINI AND MARCELLO GABOARDI ON THE INTERVENTION OF NONPARTIES IN PENDING LITIGATIONS SHOWS DEEP SIMILARITIES BETWEEN THE AMERICAN AND EUROPEAN LEGAL SYSTEMS. IT THUS HELPS TO ALLEVIATE THE DISTRUST SURROUNDING CROSSBORDER CONTRACTS

At a time of increasing international trade and cross-border contracts, finding similarities in the policies underlying the civil and procedural rules of different countries can lead to a decrease in mutual distrust, a perception of greater uniformity of judgment and, ultimately, a boost to business. Cesare Cavallini and Marcello Gaboardi, respectively Full Professor and Assistant Professor at Bocconi's Department of Legal Studies, have made it so in a study soon to be published in The Review of Litigation (University of Texas Law School), addressing the issue of the intervention of non-party in pending litigations in a common-law system (the USA) and in three civil-law systems with common roots (Italy, France, and Germany).
 
A typical example of non-party intervention is the case of the real owner. In the course of a lawsuit between two parties on the ownership of an asset, a third party who believes to be the real owner of the asset could intervene in the proceedings. American law regulates the matter on the basis of the concept of "interest" of the non-party to intervene, while Italian law, similarly to other European legislations, is much more detailed in the explanation of the criteria that make intervention lawful. To further differentiate the two systems (at least in appearance), in the United States cases of non-party intervention are much more common than in Europe.
 
«Since the search for possible face-value analogies in the rules’ wording would prove to be an unprofitable exercise, we have looked for analogies at the deeper level of the underlying policy, i.e. the choice of value made by the legislator in writing the law», says Professor Gaboardi.
 
A seemingly much more flexible legislation, such as the American one, is counterbalanced by the jurisprudential decisions that, over time, have limited the discretion of judges in deciding whether the intervention is admissible or not. And if the arrangement is more commonly used than in Europe, according to the authors, it is due to a different balance of the same principles. In both cases, in fact, the values at play are the desire for a unitary decree (which leads to a single suit, in order to exclude multiple and potentially incompatible decisions) and the effectiveness of the system (which needs a reasonable duration of judgement and is therefore wary of the complications due to the intervention of the non-party). Professors Cavallini and Gaboardi show that the two principles are at play in both systems, but the American system favors consistent and harmonious decisions, while the Italian system is more concerned about the reasonable duration of lawsuits. «The fact, though, that our proceedings are much longer confirms that the duration does not depend on procedural rules, but on something else, such as the incentives to which all actors in the system are subject», says Professor Cavallini, author of an article on the topic, recently published by another American magazine.
 
Even if the “interest” of the non-party to intervene is not better specified in American legislation, the authors show how it can be traced back to the three cases provided for by Italian legislation: a non-party with a right that is incompatible with both parties (the case of the real owner) or with one of the two (the case of an appeal against a shareholders' resolution by one shareholder, followed by an appeal by another one, who in this case would claim a right that is incompatible with the company alone), or a non-party who could suffer prejudice by a possible outcome of the dispute (the sub-conductor who would be damaged by the eviction of the tenant).
 
The identification of analogies could help the American judges to rationalize the limits to the intervention of the non-party, which jurisprudence has set in a somewhat disparate way, while the Italian judges could draw new orientations of thought from the study of American decisions, once the common root is acknowledged.

Cesare Cavallini, Marcello Gaboardi, How to Reduce the Gap? A Comparative View on the Policies Behind the Intervention Rules, 39 The Review of Litigation (Texas School of Law), 1 (2019).
 

by Fabio Todesco