Article on the Dichotomy of Substance and Procedure


Martin Illmer has written an article titled:

“Neutrality matters – Some Thoughts about the Rome Regulations and the So-Called Dichotomy of Substance and Procedure in European Private International Law”

The article is published in Civil Justice Quarterly 28 (2009) 237 et seq.

The abstract reads as follows:

The so-called dichotomy of substance and procedure is a classic problem of every system of private international law. In the emerging European system established by the Rome Regulations the dichotomy is addressed only in a fragmented way lacking a general concept. Aiming at an autonomous European concept, it is argued that one should abandon the common terminology which contrasts substance and procedure, since it disguises the real issue – drawing the line between the realms of the lex causae and the lex fori. To draw this line, the author suggests the criterion of neutrality, illustrated by various examples, which is based on systemic interests of European private international law, the efficiency of enforcing rights in foreign courts and the parties’ interests in predictability and reduced time and costs of cross-border litigation, whereas the criterion of inconvenience is rejected.