TTIP-Frontalangriff auf das europäische Rechtssystem

TTIP-Frontalangriff auf das europäische Rechtssystem

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Das Drängen der Amerikaner auf den TTIP-Abschluss hat handfeste Gründe:
US-Banken fürchten, von europäischen Gerichten wegen der Schulden-Krise belangt zu werden. Sie haben vielen europäischen Kommunen und Unternehmen dubiose Spekulationsgeschäfte angedreht. Nun klagen viele Europäer – und die Amerikaner setzen zum Frontalangriff auf das europäische Rechtssystem an.

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In Italien hat der amerikanische Botschafter John Phillips anlässlich eines Vortrags vom 21. April an der Mailänder Bocconi Universität in (Präsident Mario Monti) die Katze aus dem Sack gelassen.
[…]
Phillips‘ Drohung, dass Investoren vom unzulänglichen Rechtssystem in Italien abgeschreckt würden, führt ins Herz des TTIP: Die Amerikaner wollen sicherstellen, dass nach ihren Regeln gespielt wird. Auch vor Gericht – und überall auf der Welt, und vor allem für Machenschaften, die in der Vergangenheit liegen. Dass das Römische Recht, auf dem viele europäische Rechtssysteme basieren, aus Italien kommt, tut nichts zur Sache.
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DWN

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korrespondierende Beiträge

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Transcript vom 21.04.2016

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Auszug:

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„Six -point plan for growing investment in Italy

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One: Reduce civil case duration/ backlog:

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The consensus across the political spectrum of Italian government for reaffirming and continuing the important work of civil justice reform is showing results. The backlog of civil cases fell in Italy by nearly a million and a half cases 2010 through 2015. In fact, the EU just last week released its Judicial Scorecard for 2016. Italy ranks first for its “clearance rate” (the ratio of closed cased to newly filed cases) for “litigious civil and commercial cases” and for administrative cases. This shows the commitment to reduce the backlog of cases and I hope this good work continues.

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In the United States, 30-40 years ago, there were many delays in our federal courts. Through best practices, better management techniques, and technology improvement, things have greatly improved.

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Here, managerial reforms for civil courts are a good first step and have proven results in courts that have taken his message seriously. This was a matter of applying good management to the courts. Justice Barbuto did so in Turin, and then PM Renzi brought him to Rome to use these techniques across the country.

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As I mentioned earlier, I’d do what it takes to reduce verbosity. Shorter papers by both judges and attorneys would have a great impact on how much work judges could get done and how quickly they could issue judgments and opinions, without compromising fairness. I know the proposed new reforms attempt to address this problem; I look forward to seeing how it is implemented.

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As I said earlier, I also hope you can continue to dedicate the resources to digitalizing your court system. I also hope that you will find the resources to hire skilled staff to support the work of judges and prosecutors to assist judges with drafting and digitizing court records. In the offices where this has been tried, the backlog has been reduced 15 percent! As you can see, it can make a tremendous difference on how efficiently the courts function.

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Two: Expand the use of Alternative Dispute Resolution:

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As a result of things like pre-suit mediation and agreed-upon divorce settlements, ten percent fewer cases were filed in 2015 than 2013. I hope this trend continues, as it will bring benefits for everyone.

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ADR in the United States works as a type of private judicial system, available to all at a reasonable cost, and as a way to save time and money compared to proceeding in court. It is quick, certain, and cheap. The parties agree on an arbitrator or mediator, typically a well-respected retired judge or attorney. The parties have more control over the issues, agree to the rules of procedure, set up their own schedule, and agree how to resolve disputes in the lead-up to the mediation or arbitration. The parties come away from the experience feeling more involved in the process and more satisfied with the outcomes.

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ADR has been effective in Italy, and there is room for improvement. The same EU Judicial Scorecard ranked Italy fifth from the bottom of the 26 EU Member States rated in the category of “promotion of and incentives for using alternative dispute resolution methods.” When the parties take it seriously, cases settle almost half the time. Last year alone, 61,135 civil cases were settled by mediation and kept out of the Italian courts. But, just over half the parties are trying mediation before filing suit, so this is one place where Italy could improve.

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This process cuts the time to get a decision by as much as 80-90 percent and saves everyone a great deal in legal fees. I once had a very complex case that had going on for four years and where the parties had spent millions of dollars in fees, and was probably half-way to being ready for trial. The presiding judge sent all the parties to talk to another judge, to see if we could settle the case. We did. The settlement judge worked with all of us, and we had an agreement within two hours.

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I’m planning to bring over an ADR professional later this year to explain to Italian lawyers and judges, and law students, how and why the system works so well. Let’s see what we can learn from each other to get more cases settled before they are filed using the existing tools Italy already has, and work on developing some new ways to encourage parties to settle even after the case has been filed, and to help add positive momentum to the changing culture about using ADR to settle cases.

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Three: Stop endless appeals

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In the United States, courts of appeals generally examine only errors of law made by the judge in court of first instance, rather than providing a de novo review of the facts. This reduces the incentive for parties to pursue frivolous appeals, enabling the parties to reach a final decision and allowing them to move on with their business. We applaud the Minister of Justice’s efforts to reform the appellate process in Italy by proposing limits to the scope of appellate review to only those matters actually in dispute (both law and fact) as part of a new package of reforms to civil justice that is making its way through the Parliament. This is a step in the right direction. I commend the government for its efforts so far and once again, here I hope the reforms are approved quickly by the Senate and swiftly implemented.

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Four: Expanded Commercial Courts / Special Investment Courts

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Italy established 22 commercial courts in 2013 to hear specialized business disputes. They disposed of 70 percent of their cases within a year, with an average case duration of 263 days, and even more quickly here in Milan, I am told. This is, of course, much faster than the average for civil cases in regular courts in Italy. Italy’s most important business paper, Il Sole 24 Ore wrote about these courts and the important role they play in attracting foreign investment. I agree. These commercial courts could be used to even greater advantage with a couple of simple changes. First, they do not hear the most common type of dispute between business partners: the ordinary contract case. As I understand, the new package of civil justice reforms includes a provision to expand their reach – this would be a very good step and one I hope to see implemented. Second, let’s make them the first stop for foreign investors to have their disputes heard. They are much faster, exactly the type of message Italy should send to foreign investors. If CEOs understand that there is a good court system to resolve commercial disputes, it will give them more confidence they are making the right choice when investing here.

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Specialized judges can be a great benefit to everybody in the court system. I encourage Italy to consider also having specialized bankruptcy judges to produce quick and consistent results, ones that are fair and transparent to creditors and debtors alike.

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Five: Tax reform measure and putting a stop to unpredictable tax prosecutions

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Italy could work with its European partners to devise a European tax scheme for international companies that is fair to companies, fair to European governments and citizens, transparent, and reasonably easy to understand. If Italy were part of such a system, and companies no longer perceived the risk of arbitrary and capricious enforcement of tax laws, it would be a great way to help attract more business, and to help business to grow.

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Italian judges should also be more pragmatic and take into effect the consequences of their rulings. It is worth recalling what Giovanni Legnini, deputy chairman of the Superior Council of Magistracy, said last summer: “Magistrates cannot abstain from considering economic consequences of their decisions. Grasping and foreseeing the impact of judicial decisions on economy and society can no longer be a taboo.”

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The point is that legal process ultimately is only a means to an end, not an end in itself. When cases go on for years and years with no definitive resolution, leaving businesses and families in limbo; or when prosecutors fail to take into account economic and real-world consequences of their actions; or when lawyers write briefs that run into the hundreds or thousands of pages, knowing no one will ever actually read them, the legal process becomes an end in itself and therefore an exercise in futility, or worse – an obstacle to growth.

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Six: Public Administration Reform:

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As was once said, “if you are going to sin, sin against God, not the bureaucracy. God will forgive you, but the bureaucracy won’t.” More seriously, ethics and bureaucracy are two sides of the same coin. To effectuate more transparency, and efficiency, Italy needs to reform and streamline its bureaucracy. This isn’t about cutting government – though that might be part of it – but inculcating a bureaucracy ready to partner with industry to grow investment – to help get to yes. Let’s aim to make the impossible possible, and not the possible impossible. To that end, I look forward to the decree laws on public administration reform. I have no doubt the government is moving in the right direction.

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Conclusion

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The Renzi government is moving Italy in the right direction, and it is time to continue to push forward. I have no doubt that Italy has the capacity to make many changes that would make it a more attractive destination for foreign investment. I hope Italy leverages its natural strengths and combines them with the new energy that the government’s past and future changes can give them. As you prepare to take your well-earned places in commerce all around the world, I hope you will carry with you this positive message and take the opportunity to make Italy an even better place to do business. Remember, creating an environment that attracts new business benefits everyone through economic growth and new jobs. And, don’t be afraid to celebrate and publicize Italy’s successes, its reforms, its strengths, and all the things it is doing to make it a truly great destination for investments! Thanks so much for having me here today.“

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BGH-Urteil vom 22. März 2011 – XI ZR 33/10

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