RECOGNITION and ENFORCEMENT in CIVIL and COMMERCIAL MATTERS A.A.H. van Hoek 2003

OUTLINE • Background and content of the Brussels I Regulation • Conditions for recognition and enforcement • Effects of and problems with of recognition and enforcement

REGULATION 44/2001 IN CONTEXT

The Way to Brussels I Article 220 EEC-Treaty (293 ECT) The member states shall, so far as necessary, enter into negotiations with each other with a view to securing for the benefit of their nationals.…. The simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals and of arbitral awards.

The Brussels Convention • 1968: Belgium; France; Germany; Italy; Luxembourg; The Netherlands • 1978: Denmark, Ireland, UK • 1982: Greece • 1989: Portugal, Spain

The Lugano Convention 1988: EC Member States + EFTA Member States: Austria, Norway, Sweden, Finland, Iceland, Switzerland 1997: Austria, Sweden, Finland accede to Brussels I 2002: Poland accedes to Lugano

The Brussels I Regulation • Based on Article 65 EC-Treaty • Community instrument • Reservation of Denmark: recital 21 • Special status of overseas territories: Article 68 Reg. jo Article 299 EC-Treaty

Conflicts of Treaties 1 • Application ratione materiae: Article 1 • Territorial application: – Jurisdiction – Lis pendens alibi – Recognition and enforcement

Jurisdiction • Domicile of defendant: – Article 2, 3 and 4 – Additional jurisdiction: Articles 5, 6 • Exclusive jurisdiction: Article 22 (16) • Choice of forum: Article 23 (17)

3 INSTRUMENTS Regulation/Brussels/Lugano M-S (-DK) DK OT EEA + Poland domicile of defendant exclusive ground choice of forum

Other Inter- and Supranational Instruments • Bilateral treaties between member states of the conventions/regulation • Multilateral conventions on specific subject matters: transportation, maintenance • Bilateral conventions with third countries • Secundary community legislation: directive on the posting of workers

Conflicts of Treaties 2 • Priority of EC-law: Article 67 • Bilateral treaties between member states: Article 69/70: application ratione materiae • Specific Conventions: Article 71 • Third Countries: Article 72

Article 1 • Civil and commercial matters: C-271/00, C 266/01 • Family law issues: case 143/78, C-220/95 • Bankruptcy • Social security: C-271/00 • Arbitration: C-190/89, C-391/95

CONDITIONS of RECOGNITION and ENFORCEMENT

Elements of a Judgment • Facts: procedure to establish the facts, rules on evidence • Law: acceptance of equivalence of norm(s) applied • Conclusion: legal reasoning, fair hearing • Sanction/remedy

Conditions of Recognition and/or Enforcement • Jurisdiction • Notice • Fair trial (procedural public policy) • Substantive public policy • Conflicting judgments • (Finality of the judgment/executory force)

Procedure for Recognition and Enforcement • Automatic recognition: Article 33 • Exequatur: – Ex parte initial procedure: Article 41 – Appeal: Article 43 ff No ex officio refusal of exequatur!

Jurisdiction: Article 35 • No test of jurisdiction by recognizing court • Exceptions: – Consumers and insurance – Exclusive jurisdiction – ‘Article 4’ conventions • Jurisdiction is not part of public policy – Krombach v Bamberski

Notification: Article 34 sub 2 • Default judgment: autonomous – C-172/91, C-78/95 • In due form: court of origin/international instruments – Case 166/80, case 305/88 • Timely: recognizing court – Case 166/80, case 49/84 • ‘Local remedies’

Public Policy • Substantive – Declaratory part – remedy – Natural justice – public interest rules • Procedural: Article 6 ECHR

Public Policy (Cont.) • Manifest breach • Result in the particular case • Member state – European Court of Justice

Articles 81/82 EC-Treaty • Eco Swiss v Benetton C-126/97: Article 81/82 are part of community public policy • Renault v Maxicar C-38/98: no public policy for the application of Article 34 sub 1 – Restrictive interpretation? – Harmonized rule of law – Common system of adjudication/ interpretation

Article 6 ECHR • ECtHR: Pellegrini v Italy • ECJ: Krombach v Bamberski • Dutch Supreme Court: local remedies

Irreconcilable judgments • Relationship with lis pendens alibi and related actions (Articles 27, 28) • Relationship with res iudicata • Judgments between • Same parties • Entailing legal consequences which are mutually exclusive

EFFECTS of RECOGNITION

Effects of a Judgment • Res iudicata effect: the relationship between parties is determined by the judgment • Ne bis in idem: parties are estopped to retry the same issue • Title for enforcement

Types of Judgments • Declaratory judgments: facts, law, appreciation of facts e.g. dismissal of a claim • Constitutive judgments: change/create a legal situation e.g. annullment of a patent • Condemnatory judgments: contain a sanction/remedy e.g. damages/restraining order

Recognition Models • Assimilation / equal treatment • Home country control • Reciprocity / cumulation / public policy exception

Conflict Rules for Recognition and Enforcement • Effects of the judgment = country of origin – Hofmann v. Krieg, case 145/86 • Enforcement = recognizing country – Article 22 sub 5 – Article 40

Binding Effect • Parties: who • Cause of action: what – Law + facts – Collateral estoppel

Enforcement • Exclusive jurisdiction of court of country of enforcement Article 22 sub 5 • Payment and other intervening circumstances: case 145/86, C-267/97 • Remedies: Contempt of court, fines etc • Time limits

Exequatur • Parties • Full or partial exequatur • Legal representation • Time limits • Costs • Formalities • Review