Officiële Toelichting

P-27A Appellate procedure varies substantially among legal systems. The procedure of the forum therefore should be employed.

P-27B Historically, in common-law systems appellate review has been based on the principle of a ‘closed record,’ that is, that all claims, defenses, evidence, and legal contentions must have been presented in the first-instance court. In most modern common-law systems, however, the appellate court has a measure of discretion to consider new legal arguments and, under compelling circumstances, new evidence. Historically, in civil-law systems the second-instance court was authorized fully to reconsider the merits of the dispute, but there is variation from this approach in many modern systems. In a diminishing number of civil-law systems a proceeding in the court of second instance can be essentially a new trial and is routinely pursued. In many systems the decision of the court of first instance can be reversed or amended only for substantial miscarriage of justice. This Principle rejects both of these extremes. However, reception of new evidence at the appellate level should be permitted only when required by the interest of justice. If a party is permitted such an opportunity, other parties should have a correlative right to respond. See Principle 22.2.

P-27C In some systems, the parties must preserve their objections in the first-instance tribunal and cannot raise them for the first time on appeal.