EFFICIENCY OF PROCESS
The Grand Duchy of Luxembourg has two district courts ("Tribunal d'arrondissement"), one for the Diekirch district and one for the Luxembourg district. The New Code of Civil Procedure, "Nouveau Code de Procédure Civile" ("NCPC") encompasses most of the rules that apply to the proceedings before the courts. Commercial disputes are usually brought before the district court. The lower court ("Justice de Paix") can also deal with commercial matters, but only for smaller disputes estimated to be below €10,000 (article 3 NCPC).
Commercial proceedings: there are no specifi c courts for commercial matters. Special chambers of the district court, usually called the "commercial court", deal with commercial matters and apply specifi c rules of procedure. Indeed, articles 547 et seq. of the NCPC and articles 642 et seq. of the Commercial Code provide the rules for the district court dealing with commercial matters. Before the lower court or the district court dealing with commercial matters, the commercial procedure is usually orally held but the parties can choose to apply rules on civil proceedings:
- oral proceedings do not require the parties to be represented by a lawyer registered on List 1 of the Luxembourg Bar Association ("Avocat à la Cour"); they may be represented by any lawyer, or by one of the persons referred to in the NCPC holding a special proxy. The parties are also entitled to defend themselves if they choose to do so. The parties will exchange their justifi cation and supporting documents before the pleadings and a judgment will be rendered after the pleadings; or
- if the parties choose to apply rules on civil proceedings, depending on the complexity of the case, they will need to be represented by an Avocat à la Cour. A supervising judge will determine the time limits for the parties to exchange submissions and set a date for the pleadings (article 204 NCPC).
Civil proceedings are formalistic and the procedure is all written. Before the district court dealing with civil matters and the Court of Appeal, the parties must be represented by an Avocat à la Cour. At a first stage in a civil proceeding there is usually an application form stating the claims of the claimant, which must be served on the defendant (articles 153 and 154 NCPC). This document is served by a bailiff or a clerk from the court, depending on whether the document is a writ of summons or a summons.If the claimant chooses the written civil procedure, the lawyer representing the defendant shall notify his appearance in court ("constitution d'avocat") within 15 days from the date on which the writ of summons was served. This period can be extended if the defendant's residence is out of Luxembourg (article 167 NCPC). The written procedure implies a written instruction phase in the trial. During this phase, a supervising judge is appointed to conduct the proceedings.
The supervising judge determines the time limits necessary for the parties to exchange submissions and supporting evidence, based on the nature, urgency and the complexity of the Luxembourg case. Then, upon the parties' request or ex officio, the supervising judge orders the closure of the written instruction of the trial and sets a date for the pleadings. However, if a lawyer does not comply with the instructions of the supervising judge, injunctions may be delivered or the hearing may be held without further delay. It is difficult to assess the average timing of civil proceedings as it depends on the number of parties involved, the complexity of the case and whether proceedings are at the court of first instance or on appeal. Time limits would ordinarily be around 12 to 18 months for the first instance and around 12 months up to two years for the appeal proceedings. When the parties choose the oral proceedings in case of a commercial matter, the first instance is usually faster and takes between 6 and 12 months.
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This article appeared in the Third Edition of Global Legal Insights – Litigation & Dispute Resolution; published by Global Legal Group Ltd, London.
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