Supreme Courts’ jurisprudence as a dispute avoidance mechanism?

Autores

  • Valentina Capasso Università degli Studi di Napoli Federico II. Université Jean Moulin Lyon 3

Palavras-chave:

Alternative Dispute Resolution mechanisms, Economic analysis of process, Nomofilachia, Stare decisis, Supreme Courts

Resumo

Starting from a comparative and economic perspective, this article aims to assess the efficiency of recent reforms of civil procedure, especially focusing on Italian and French experiences.  On the one hand, it underlines that convergences in European Countries regulatory actions in the field should not be overestimated: even equal reforms may end up with different outcomes, because of differences in the starting backgrounds (whether economical or cultural).  On the other hand, it casts doubts about the effectiveness of regulations imposing ADR mechanisms as a pre-condition to legal proceedings or providing for appeals selection: as Positive Law and Economics shows, mandatory mediation or conciliation is unlikely to overcome parties cognitive bias, while side effects brought by skimming mechanisms may undermine their benefits.  Rather, starting from the assumption that parties estimates of the process outcome strongly affect their choice between settlement and litigation, it is suggested that Supreme Courts jurisprudence plays a fundamental role in determining incoming flows, and that its inconsistency increases demand inflation.

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Biografia do Autor

Valentina Capasso, Università degli Studi di Napoli Federico II. Université Jean Moulin Lyon 3

Currently enrolled in a Joint PhD in Civil Procedure at Università degli Studi di Napoli Federico II and Université Jean Moulin Lyon 3, she graduated summa cum laude at Università degli Studi di Napoli Federico II, by discussing a thesis in Civil Procedure about La saisine pour avis de la Cour de cassation, in a comparative perspective between Italy and France. Her research focuses on Supreme Courts, precedents, economic analysis of process, arbitration and construction disputes.

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Publicado

2018-12-15

Como Citar

CAPASSO, V. Supreme Courts’ jurisprudence as a dispute avoidance mechanism?. Civil Procedure Review, [S. l.], v. 9, n. 3, p. 33–58, 2018. Disponível em: https://civilprocedurereview.com/revista/article/view/178. Acesso em: 27 set. 2022.

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