Best Practices for Effective Enforcement: Principle of formalisation and debtor protection

This chapter examines the concept of ‘enforcement’ as found in the current Unidroit study ‘LLXXVIB: Best Practices of Effective Enforcement’ and the degree to which debtors’ rights are maintained in that study. On a broader level, it situates this study within the overall context of Unidroit projects on Civil Procedure. In enforcement proceedings, debtors and creditors have fundamentally different interests. Debtors want their rights protected. That is, they want procedural safeguards to shield them from unsubstantiated claims. They prefer that creditors go through judicial proceedings prior to enforcement. Creditors want to enforce their claims in the speediest and most efficient conceivable manner. They prefer extrajudicial enforcement, which does not require lengthy and cumbersome judicial proceedings. Drafting a procedural system that pays attention to these diametrical interests is a delicate underpinning, and different legal orders have found different solutions. The chapter identifies that in many legal orders, cognition and enforcement proceedings are separated, and it traces the historical origins of this separation. Equally prevalent is the principle of formalisation, i.e., the principle that substantive law is not examined in enforcement proceedings. The overall context of the study and its predecessor projects on civil procedure (ALI/Unidroit Principles and ELI/ Unidroit Rules) indicates that Unidroit follows the separation and formalisation principle. Against this background, the chapter examines the procedural differences between judicial and extrajudicial enforcement in the context of the study and its predecessor projects, highlighting that the major difference is that extrajudicial enforcement brings about a change in the burden of initiative.