Welcome to the new Books Network. I'm Caleb Zachron, CEO and publisher of the new Books Network. Today I'm speaking with Marco Dibenito, editor of the Brill-Nihof publication, Coliquis on European Civil Procedure. Marco is the Jean Monet Chair of European Civil Procedure at IE University in Madrid.
Legal scholars have sought to harmonize civil procedure in Europe, negotiating the different practices of the various European nations. This book presents conversations and discussions between leading scholars on the ELI Unidroit Model European Rules of Civil Procedure. What makes the dialogues unique is that much like Plato'socratic dialogues, the conversations presented in this book are not transcripts, but rather deliberate constructions between speakers. While this approach has ancient roots, it's a truly novel way to address a modern, highly complex topic, a European civil procedure.
To share with us how he constructed the book, and his perspectives on civil procedure harmonization, I'm happy to welcome Marco Dibenito to the Brill-Nihof podcast. Marco, thanks for joining me today. Thank you for reaching out. This is such a fascinating project, in part because of the construction of it.
It's a very unique approach, and I think in many ways it works because you're trying to take the perspectives of many different legal scholars who come from different countries, who have different backgrounds, who are negotiating different laws, even in a single country, depending on what jurisdiction you're in or what's sitting on, you're going to be dealing with different procedures, and you put them in conversation, taking their various ideas, and showing how they might be responding to each other in given issues or given cases. But before jumping into the book and how you produced it, what if you just introduced yourself a little bit, and how you became a legal scholar? Well, that's a good question to start with. How does one become a legal scholar?
Well, I guess that you need mainly this term that is a little bit too much use but it has certainly truth to it, which is the occasion. The calling that you truly enjoy being in the world of ideas and want to make a contribution in that field. People contribute from many different perspectives and context to social life, from all different ways depending on all types of characters and traits and personality structures. And I guess it's one's task to know oneself, not to get the ipsum as the old saying would go, which is a task of a lifetime, by the way.
But when you're 20, 25, or 30, you have an idea of what you can offer to your fellow citizens. And to me, it was always clear. I was raised among books, my parents were professors, both of them. And to me, it was just natural to be in the conversation on the dining table, always.
So it's kind of natural to me. I think it makes sense then that you would construct this book around dialogue. If you were used to having philosophical conversations from a young age, I think it makes sense the approach that you've taken. And this collection differs quite a bit from your typical collection of legal essays.
It presents these conversations. And as I said in my introduction, they aren't conversations that actually happened as conversations. They are our construction. So could you introduce how you went about producing the book and the format?
How you stumbled upon it? Yeah, well, so this came from actually this Jamboni chair that I was granted by the European Commission, which is to study in depth and to dynamize, so to say, a certain field of study. And then you're given a certain budget that you have to put in motion, to investigate further on what's by then was really. And I think so far it's the only Jamboni chair granted to study the European so procedure.
The European so procedure would have, we can say that it has two sites to it. We can talk about European civil procedure to talk about all the procedurally relevant instruments issued by the European institutions, European Union institutions, for instance, which there are a lot. There is a lot of a key community in terms of civil procedure. But it doesn't go to the core of what the discipline is for us, procedural lawyers.
The core is what we address in this book, which is evidence, which is parties and provisional measures and the judgment and resubicata and appeals, and all these kinds of things had never really been harmonized to such an extent, to such a detailed extent among the main, you know, legal families or traditions, what everyone would say. So this was really when this effort came to fruition in 2020, well, actually my chair was given in 2019 because I already knew that this was about to be finished. And therefore, well, I guess this was going to be an innovative and topical issue. And I was given this, an native, you wish to dynamize reflection on this new, inner perspective of European civil procedure.
So I started to invite relevant scholars, you know, the leaders in the different fields to have conversations, some in person, some online because then COVID times came. And this produced a series of quite heterogeneous material, completely impossible to publish in a waveform. Okay. But then I realized, wow, this is really the first time that, you know, so important legal scholars get together to talk about this very cutting edge thing because it's just approved, you know, we don't have any previous scholarship on the European civil procedure rules.
We don't. The previous exercise was the ALI Unidra rules, a transnational rules or social principle to be more precise, which was an attempt at finding common ground between the American, the American civil procedure and the non-American, you know, because the American civil procedure is the exceptional, well, the most exceptional one in the world, I would say, probably because of the existence of the jury and other cultural and social independence. So this was in 2004 and it was just a 20 something very general principles. You know, it's not so, it was, it was certainly a breakthrough.
They are of immense quality. They are a pleasure to read and they have, and those ALI, American law, Institute plus Unidra have inspired the ELI, European law Institute plus Unidra rules. However, the ELI Unidra rules are 245 articles, 245 articles. It's almost a complete code.
Okay. It touches on everything. It touches on the general principle on the statement of claim and defense, on capacity to sue and be sued litigation capacity, legal standing, evidence, provisional measures, appeals, you know, if you leave a site enforcement, which was outside of the scope of the, of the harmonization effort, you almost have a harmonized a common civil procedure code, which is something that is, you know, probably before that, it was thought to be impossible because, because civil procedure goes to the heart of the legal, of the sovereign legal system, you know, it's the courts, it's the German courts, the English courts, the Italian, the Spanish, the Norwegian courts, it goes to the, to something very, very difficult to change or harmonize. However, it was done and I found myself with all these materials, which were innovative per se, because, because, as I say, we didn't have the harmonization effort in the first place.
So I said, what can we do? And this idea of colloquies somehow clicked in my mind, precisely for what you say, you know, probably it triggered something very old in me, some, you know, readings when I was younger, starting with Plato. And I always have this idea that this is an amazing thing, you know, Plato didn't record Socrates. Plato completely reconstructed whatever it is.
We don't know that Socrates said in reality, you know, so it has, it has so much capacity for innovation because we can do basically, you know what we can do, we can do whatever we want. We can do and say whatever we want. And this is what we did. We all did the 30 something authors by going back and forth with the different drafts of which particular chapter, some of them underwent 12 rounds, because people then included things that they had published or said or that they just improvised and added that and then, or something that I read, you know, I was a very active editor in this, in this particular book.
So I read something that Professor Caponi from Italy had said about certain topic as well. This is something that goes along the lines of what I have been thinking and saying in the last few years, why don't we just, instead of just putting together two articles, which is a common form of writing, which is great. And I'm, as I say in the preface, we are all guilty of more traditional ways of scholarship. And, and of course, it is, you know, it's the basic way to sit down and to structure your own thought that continues to be the basic message that you send to the public discussion in any given field, you know, it doesn't matter if it's nuclear physics or it is, you know, local administrative law, you, every time that you sit down and write, you write for a debate, you write for a conversation, you write in a way for a collective colloquy, you know, even though even the authors that in history have, have been completely ignored in their lifetimes.
So they have been writing on their own, probably for their own as the sole readers, then they have made an impact. Why? Because you just throw a contribution to the overall debate. I'm thinking of, you know, Nietzsche or, or, or biased or poets that have been rediscovered later, you always give something to a collective way because we as human beings, we cannot do otherwise, you know, say in the preface, dialogue represent the primary communicative vehicle for thought.
We are social animals and therefore reflection on any topic inherently entails dialogue with others. We talk with humans, talk with each other about things. An ego, alter object triad is arguably our most profound epistemological structure, you know, even when we write alone with one soul voice, it's a voice that joins the others voice in a collective dialogue. So, you know, probably was a long and fragmentary explanation of how I came, how this idea came to me instead of me going to search for this idea.
And then I said, let's try. And, you know, it kind of worked with the first draft. And this made me think, okay, let's use this also for another conversation. And this led me to say, okay, we didn't, we never spoke about this, but why don't I just reach out to this particular author who wrote interesting things about this thing, about this particular topic?
And why don't we just create this collage of publications, conversations? And we put it in writing and we start, I send you this draft, you give it back to me with, you know, and reach with your own thoughts. And then let me finally as the, you know, that lead to that responsible for the whole thing to try to dynamize by including exclamations, including questions, deliberate questions included exposed to introduce a reflection that the author had introduced themselves. So, you know, to make it something that would be not completely boring, meaning I want to keep the reader engaged.
And that required me going from phrase number one of the chapter until the very end, possibly with some kind of development that would end up in a general reflection about, you know, something that would, that the reader, that, that feeling that any reader gets when they have finished a good chapter of a novel or an essay or a, you know, book. So when looking at the 27 member states, you know, each has their own approach to law, obviously, there are lots of similarities. And you talk about the goal being not uniformity, but harmonization. You talk about what harmonization means.
Yeah, well, harmonization has been one of the most characteristic aspects of legal action in the 20th century and in the 21st century, the whole idea of soft law, for instance, that have been providing solutions which are not binding, but which are very well thought to particular problems. Let's think of international arbitration, you know, how can we bridge traditions so, so diverging to evidence such as what an American lawyer would expect they can do in terms of interrogating the other parties employees or accessing the other parties evidence in a very wide ranging way. And what the reaction to that would be from a traditional civil lawyer in terms of what we cannot do that, you have to play with the cards that you have. And, you know, that's a rule, you cannot access evidence in the possession of the other party or the other parties.
How can we bridge this if our governments are not particularly inclined to say, okay, the US is going to send this plenty of pot and sherry minister to a certain board of discussion and the French will send one and the general, this doesn't happen, it's just impossible. You know, governments have other things to do. And therefore, what do we do? Well, the legal scholars, the certain institutions like Unidra, like on Citrol, like the Haye Conference, well, they have been created precisely because of that, to get together lawyers from different countries to say, okay, how do we offer, not impose, how do we offer the world a regulation about, you know, sales contracts, which happen every day in different traditions, we need a harmonized approach to that.
Or how do we harmonize the taking of evidence in international proceedings? Or so they are mostly academic texts or texts which have a more or less intense professional or practical or governmental input, but which, well, they are probably the vehicle for cutting edge comparative efforts today, you know, law would be very different today if we didn't have these harmonizing attempts. Many of the different voices presented, the scholars who represent different ideas or suggest different ways to approach particular issues, many of them will call on their own traditions. And I'm wondering for you what you felt like you learned, you know, taking your own, you know, taking a Spanish approach and then looking at other approaches that might be made, obviously, you know, you have now a pretty deep familiarity with how every single country in the EU is probably approaching civil procedure on some level.
What did you feel like was the most interesting, some of the most interesting things that you learned about different approaches? And how did that help you think about, you know, Spanish civil procedure differently? That's a very interesting question. And I would divide the answer in two.
One is the harmonization effort in a such, which is the drafting process of the alienate-run rules, model rules, and then it's the book, you know, the book has taken me quite four or five years of intense work, meet together with the three co-authors, of course. And before that, I think the process took probably more than seven years to get all these contributions together, you know. I participated in the very later stage in the harmonization effort when the rules had already been put together and they asked for comments. So I dropped a report and sent it to ELI and Unidra, and some of the comments were actually incorporated in the rules, but this was at a very later stage.
I wasn't part of the working groups and the different reporters and the discussion. The discussion in the groups, however, and now I know very well because after the book, I have been able to talk basically. I mean, there's always an offer in the book that has been a member of the working groups in the previous harmonization process. So this is kind of, this is also interesting about the book is they share, particularly, if they were all members of the working group of a certain topic, I reached out to someone that wasn't.
And if the chapter in principle, I started to talk and there was the missing co-trafter, then I would reach out to that co-trafter. So I want to have the insight and the outside reaction to a certain topic. So in the book, when we talk about service of process or party autonomy or case management, we have someone that says, oh, we wanted to say this, but then we have an outside voice. That's it.
Well, that's not what I would read from what the outcome was. And that made the other one reflect on whether that was expressed this way or that way. So it was interesting from this perspective. It's not a completely insider work first because I don't consider myself to be a full full-fledged insider in the drafting process of the rules because I arrived very late.
But because I tried to combine the insider perspective with the outsider perspective. OK, but I think your question was different. Let me refresh my memory. It was about.
Yeah, I mean, that was, I think, very useful actually for the question just about, you know, you obviously, as you point out, you know, you, you came to it later in the process, but you know, you had your own education. Obviously lawyers go through this process where they become very familiar with, you know, their own tradition. But then you're going interacting with scholars that are trained in other countries with different procedures. And I'm wondering if there's anything very interesting, interesting differences or challenges that you discovered in the process of producing this book, things, you know, different perspectives that people brought to the table that you know, you found particularly a novel.
Well, I'm answering also by reference to the book because we covered this, this topic as well. It's a very interesting topic. It goes to the heart of what is the spirit or the goal or the whole project. I mean, the Alienator Project, not the colloquies project, which is OK, we can have a German, a French and English and yeah, but there's 20 something traditions.
By the way, this is not an EU thing. It's an European thing. So you can have England and you can have Switzerland and you can have non EU because the idea is to come to a harmonised widely European, not European Union instrument. OK, so if the discussion would have been the German defending the German approach and the French defending the French approach, harmonisation would have been impossible, you know, impossible because we are all path dependent on our own education and in other ways, we have learned all the conceptual framework and the system and then how we have seen that work in practice, you know, so all the participants in the project were very aware that they should not try to defend their own legal perspective.
They could do is to share with the group what they thought it was a good solution, but being very open to also hear the other solution and the common understanding was let's all try to find with an open mind a best practice. Let's not try to identify common ground because sometimes there isn't. Let's and what is the purpose of that? Let's not try to go for a quantitative approach.
Let's say, oh, yeah, 17 systems use this way of, you know, sanctioning but faith in proceedings this way and therefore the majority and therefore this one should be no, it's not a majority approach. It's not a restatement of what they do. It's not a common ground thing and it's definitely not. Yeah, neither of those things.
What is is searching for best practices, searching for best practices, all the scholars of, you know, the 21st century in this in this field, we have received our training, but we have also seen the world from that perspective, you know, so it's the typical that European scholar goes to the US to, you know, for postgraduate studies. I remember how much I enjoyed and how much it opened my mind by year. In Haven in the law school and that was not my only experience abroad. And by the way, I also have been practicing international arbitration for or 25 years now.
And that kind of has put me in touch me and other of the, you know, others, but different speaking from my experience has put me in touch with other ways of doing things, other ways of pleading, other ways of taking evidence. And therefore it's, you know, I think this kind of parochial way of thinking I'm going to a harmonizing group to try to convince them that my approach is the best one. You don't really, you know, that doesn't happen today. We, we, we approach these, these efforts with, I guess, with the excitement that we are going to be able to contribute to a common thing that's useful for everyone.
And that will become a reference point of best practices. How about that? I mean, how amazing could that be that we have now 245 articles that make sense with each other, meaning they have a general part, they have principles. So, you know, whatever article 243 says it reflects a principle that was stated in articles 11 and 12, you know, it makes sense, a systematic work of best practices so that we can now open the Spanish civil procedure code and say, wow, this, the parts from the best practice or we have been having the best practice for a long time.
And therefore we can adapt any new, legislative reform we can have now the harmonized text on the table to see, hey, this is, this has been said to be the collection of best practices in the world of civil procedure. I find that an amazing thing, very valuable thing. How do you see students or scholars or maybe more importantly, politicians using this particular collection, these dialogues to support their learning or their work moving forward? But I don't know if I would talk about politicians as a, as a, you know, a separate species, although sometimes it seems that they are kind of a separate species.
I'd say that any reform in the field of something so technical as civil procedure has, has procedural lawyers, especially people coming from either the you know, the judicial world, so judges from the professional world, lawyers, and from academia as well, you know, professors. So there will always be a mixture and they work in the, you know, in the commissions, in the drafting commissions, be it in the government or in the parliament or in, you know, for each of the political actors, they would have jurists by their side, you know. So what they can do is to say, you know, let's go with this particular conception. And, you know, if planets align, you can have extraordinary reforms.
We in Spain, we saw one of those conjunction of planets in the late 20th century, you know, in the last years of the 20th century, a whole new civil procedure code was launched, and it was, the reform was launched and it was finished in just one mandate, one administration. Why? Because the president, the minister, and the leader of the drafting group happened to be perfectly aligned, you know, and, and, but this was one of those serendipities, I think you guys say in English that happened. Sometimes the process needs more negotiating and more collaboration, but there always be jurists behind the decisions made by politicians.
Now, this brings to mind, uh, Roman law, for instance, I was very fond of history and legal history and Roman law, for that matter, jurists were everywhere in Rome, but you had politicians making legal decisions, for instance, the preter and these people would be there for one year in office. So there would be people thinking, Oh, I want to be a console when I'm older. I want to go to some province to be to become rich and then come back and offer this political mind. But now I have this year and I have to be the preter and I have to be editing or giving actions to see private citizens.
How they do that? How would they do that? Well, they would do that because they would have a group of jurists saying, Hey, we've been doing this. This is an innovation that happened a couple of years ago.
Don't don't, uh, you know, don't screw up because all the previous ones have been doing well, you know, you are here only for a year. You're kind of the, you're the traveler. Uh, we are here and the parties will always bring, it will also bring their jurists, their jurists teams. So you have the claimant with the jurist and you have the defendant with the jurist as well, maybe quoting some response from another jurist who was there in the forum to, to, you know, to answer the initial question.
And, um, so that's how you can combine these, as we call it, potestas and octoritas power and authority, power coming from whatever democratic or Republican or, uh, you know, whatever political legitimacy and the know how the expertise, the knowledge that only a lifetime of stuff of study can bring, you know, a good society, a balanced society is one in which there are politicians making decisions con, after having consulted the saviors and the, if you want to call them so, and the jurists are not taking the place of politicians to impose their own, you know, academic views or whatever. Yeah. I think this, this, um, book is very interesting and we're looking at not just for people studying civil procedure, but for really any scholar who wants to see an interesting approach to dealing with a topic that is going to have lots of different views and perspectives coming into conflict, but also, you know, hopefully coming into harmony. So I really think that this model is very interesting and could be applied for, for really anything.
So, um, you know, Marco is really so wonderful to have you on the Real Night Hop vlogast and to, um, to hear about this project. Um, I'm wondering if you could talk a little, you know, just to close things off if there's anything that you're working on right now or that you're, that you're hoping for with this project, uh, moving forward that you, uh, that you are anticipating. Well, let me first say that the pleasure has been minding as you can, as you can see, I could go on talking about this, uh, little baby of mind that I really, really have enjoyed so much and that has opened my mind and showed me new horizons, you know, I think this would be probably the first example of a yet a new gender, uh, in terms of law, as you very well said, not just civil procedure, but a more general approach to law, which is not here to replace, but to supplement, uh, other more traditional ways, you know, we have a lot of literary forms in law. We have had, you know, those responses, but then we had glossists and commentaries and questions and answers and monographs, treatises, uh, now blogs, uh, but now we also know that we can use dialogue as a, as a very valid classical and yet innovative way of approaching any legal topic.
Of course, the beauty of this, I think is not to be overly specialistic, not, you know, you cannot use dialogue to just talk about whether this new article says this or that and whether, you know, so to be, to go to the, to need a greedy of legal things because that would bore anyone, you know, you have to use it to talk about other things, you know, just opening here the page, uh, 52, we talk, you know, let me just read what Professor Capone is saying in conversation with me. This is one of those chapters in which we two have a conversation. He says, the individual is the cornerstone of modernity. In the Western legal tradition, the liberty of the individual is regarded as unlimited in principle, whereas the powers of the polity are viewed as limited in principle.
Then I answer that I have raised this question to Catherine. Has anything changed since the corona crisis or even since 9 11? It seems like governments are getting more and more inclined to sacrifice fundamental rights for some kind of common good or collective threat. A negative perception of individual rights might be driving a shift away from the humanistic paradigm that has defined modernity and he answers.
It's interesting to see that the liberal individualistic paradigm declines where a public private collaborative model is taking over. This make room for consensual forms along with the traditional legal mandates. In today's legal landscape, characterized by heightened polycentricity and permeability, private parties are assuming a more active role as co-producers and intermediaries of meaning for procedural norms. To which I answer, any legal system is inextricably linked to the social fabric of a given society.
And social life is by nature, irreducible to a collective uniform, ultimately coactive implementation of an idea. The trend you mentioned may indicate an acknowledgement of the failure of the 20th century state's grand promises. And we end up proposing both him and I in a almost jogging way that we should call this Ronan God Janus, a protector of procedural law because of this and because of that. We talk about the Herma for the idea of law that civil procedure is in a way.
So I cannot read the whole thing, but this is just to show that what is nice about the dialogue is that probably neither professor Capone nor myself nor anyone would do an article, send an article to a journal about these things. Who am I to talk about? It's just in passing. I talk about 9-11 and connected to individualism and modernity.
It's difficult to write an article about that. But you can do it in a dialogue as you talk about party autonomy. You can do that and that enriches the overall perspective. And approach to the thing.
I think this is one of the beauties of the book and one that has absolutely opened my mind when working with all these amazing scholars and has to answer your question, finally, sorry, about it. Takes so long to answer your specific questions. It definitely provides ground, solid ground, better ground for my future, which are current research projects, projects about legal standing, projects about party autonomy as well. And others that I have in my pipeline, so to say, and that I intend to.
They all come from this not comparative, not strictly comparative, but comparative based on the harmonization project so that I can contribute not to the legal debate in Spain or elsewhere, but to already jump up, if I may say, to talk about legal standing in climate litigation, generally speaking in the world. So how do we use the idea of legal standing to allow this kind of climate litigation to take place? And that is possible because of previous works like this. So yeah, I think it has confirmed and consolidated a certain approach to my legal scholarship for good.
Yeah, you can be much more freewheeling in this context. You can also really see that the views, different views coming into conversation with each other instead of having to read one essay and another essay and make the connections on your own, though that can be useful. This really in a way it allows you to directly confront the agreements and disagreements and perspectives of scholars on issues. So it makes it a much more lively experience.
And I think that was important to that it shows that you don't have to sacrifice scholarship in order to make something that is engaging as well. So yeah, Marco, thank you so much for being guest on the new books Network and on the Brill Now vlogast. It was really fantastic to get the chance to speak with you. Absolutely.
Now you're learning my pleasure.