An Analysis of Offers to Settle in Common Law Courts: Are They Relevant in the Civil Law Context?

Pablo CortÚs

The adjudication of disputes is often expensive and time consuming because the majority of courts are overloaded with cases. In order to speed up the resolution of civil disputes many countries are promoting the use of consensual procedures during the judicial process with the objective of encouraging litigants to settle their disputes faster and amicably. This paper will focus on confidential offers to settle made in common law courts and whether this procedure can be implemented in civil law courts. In England and Wales Part 36 of the Civil Procedure Rules provides that one party may make an offer to settle with cost consequences, thus if the offer of settlement is refused, and if the judgement is not better than the offer to settle, then the judge will be informed about the offer and automatically impose all the legal costs to the party who had refused such settlement. Ireland applies a similar rule through lodgements in court under Order 22 of the Superior Court Rules. Also, in the US this practice is carried out through a procedure called offer of judgment which is regulated under Rule 68 of the Federal Rules of Civil Procedure. Comparable rules have been adopted by most States in the US. These rules however are unknown in continental Europe where Member States seem less keen in encouraging settlement amongst litigants. This paper looks at the reasons behind this state of affairs and explores the possibility of introducing these practices in civil law countries, in particular within the Spanish Civil Procedure. Finally it considers whether an EC initiative on this matter would be appropriate.

Cite as: Pablo CortÚs, An Analysis of Offers to Settle in Common Law Courts: Are They Relevant in the Civil Law Context?, vol 13.3 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (September 2009), <>.

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