民事诉讼法英文论文有次序审理和英国规则.pdf

Eur J Law Econ (2012) 34:31–43 DOI 10.1007/s10657-011-9226-y Sequential trials and the English rule Jef De Mot Published online: 4 February 2011 Springer Science+Business Media, LLC 2011 Abstract The allocation of trial costs and the way a trial progresses are two important issues in civil procedure. The combination of these two elements has received relatively little attention in the law and economics literature. The prior literature has only compared unitary litigation (e.g. liability and damage issues are litigated, after which the court decides on both issues) under the American rule with sequential litigation (e.g. the parties first litigate the liability issue after which the court makes a decision, and then if still necessary the parties litigate the damages issue) under the American rule. In this article, I examine the influence of sequential litigation when the loser at trial pays all the litigation costs and compare the results with (a) the situation in which litigation is unitary and the loser pays all the litigation costs and (b) the situation in which litigation is sequential and each party bears her own costs. I focus on the incentive to sue, the incentive to settle (or to litigate) and on the settlement amount. Some interesting differences with the previous literature are discussed in detail. Keywords Fee shifting Rules of cost allocation American rule English rule Unitary trials Sequential trials Bifurcated trials Economics of civil procedure JEL Classifications K40 K41 1 Introduction The allocation of trial costs and the way a trial progresses are two important issues in civil procedure. With regard to the allocation of costs, in some countries each party pays virtually all of her litigation costs herself. In the United States, for J. De Mot () Research Foundation-Flanders (FWO), Center for Advanced Studies in Law and Economics,