Enforcement Of Judgments Research Articles

ОСОБЕННОСТИ ПРАВОПРИМЕНИТЕЛЬНОЙ ПРАКТИКИ РАССМОТРЕНИЯ АДМИНИСТРАТИВНЫХ ИСКОВЫХ ЗАЯВЛЕНИЙ ОБ УСТАНОВЛЕНИИ ВРЕМЕННОГО ОГРАНИЧЕНИЯ В ПОЛЬЗОВАНИИ СПЕЦИАЛЬНЫМ ПРАВОМ

In this article, the problem of compulsory enforcement of the court judgments in cases of administrative offenses in the field of road safety against debtors, both physical entities and private entrepreneurs, is discussed. In accordance with the existing law “On enforcement proceedings”, there are several ways to forcibly claim fines for traffic violations. One of them is withdrawing money from the debtor’s account, which is prompt and most effective. It assumes arranging periodic payments from the debtor’s account and other income. Nevertheless, it is often impossible to recover such receivables from persons evading the enforcement of the administrative court sentence. To prevent this negative phenomenon, a temporary restriction on the exercise of the special right can be used, i.e., suspending the special right to drive vehicles until the full compliance with the executive document is achieved or the grounds for cancellation of this restriction appear. Here, the mechanism of this procedure is discussed in detail and can be defined as the most effective tool for the execution of certain enforcement documents

The Consolidation of the System of the European Convention for Human Rights at National Level – Argument

The rule of law is the central piece of the puzzle of a state’s democracy. From the point of view of institutions, the three powers of the State are called, together, to create and strengthen the mechanisms for the functioning of democracy. In this equation, the respect for human rights is the motive of the approach, and parliaments, through their mission and strategic position in relation to governments, can be guarantors of this approach. Based on the principles underlying the European edifice and on the relevant documents of the Parliamentary Assembly of the Council of Europe on the restoration of violated rights and by supervising and monitoring the enforcement of judgments delivered by the European Court of Human Rights, we argue that national parliaments, through internal control structures, can be the foundation of state democracy.

Cross-Border Commercial Disputes: Jurisdiction, Recognition and Enforcement of Judgments After Brexit

Brexit raises a whole range of legal issues in multiple areas. The consequences on the EU framework for jurisdiction, recognition and enforcement of judgments are of particular interest for private parties involved in cross-border commercial agreements. This paper explores the legal basis for the jurisdiction of courts and the enforcement and recognition of judgments between the UK and EU-27 courts after Brexit. In addition, it broadly contrasts the main differences of the proposed solutions compared to the EU system. The paper argues that international conventions can provide answers to some of the questions as they set out rules for the jurisdiction, enforcement and recognition of judgments. However, there are factors that can have an impact on possible legal outcomes, such as the framework of the future deal between the UK and the EU-27, the moment of the commencement of proceedings by the parties in the transition period, or the fact that the parties did not opt for exclusive jurisdiction in their agreements. The Withdrawal Agreement provides for some clarity on which EU law provisions apply during the transition period. In addition, the EC Notices and the UK Brexit legislation provide for guidelines as to the rules applicable in and immediately after the transition period. Nevertheless, as the paper analyses, there is still a need for further clarification. Therefore, other methods of dispute resolution proposed in the article such as moving to arbitration instead of English court jurisdiction could provide legal certainty for private parties. Keywords: EU law, Brexit, art 50, withdrawal agreement, recognition and enforcement of judgements, EU civil justice and judicial cooperation, cross-border commercial disputes. This work is licensed under the Creative Commons Attribution − Non-Commercial − No Derivatives 4.0 International License. Suggested citation: M Kulinska, ‘Cross-Border Commercial Disputes: Jurisdiction, Recognition and Enforcement of Judgments After Brexit’ (2020) 16 CYELP 279.

Recognition and enforcement of judgments in commercial matters rendered by courts of non-eu countries in the Czech Republic

The article deals with the conditions under which Czech courts recognise and enforce judgments rendered in commercial matters by courts outside of the EU. The relevant rules on recognition and enforcement are contained in both the Czech Act on Private International Law and in a number of international treaties binding for the Czech Republic. The authors analyse in detail the Czech national rules with particular emphasis on grounds for non-recognition and on the enforcement procedure, including relevant national case-law. As the Czech Republic is bound by a significant number of bilateral treaties on legal assistance that contain relevant provisions, the authors also bring a brief overview of the rules therein.

Konsekwencje brexitu w dziedzinie prawa prywatnego międzynarodowego

Brexit is a unique phenomenon as no Member State has ever expressed the will to leave the European Union. Never before had the in-depth impact of a Member State withdrawal been analysed. The issue has started to be analysed after the referendum in which the British voted in favour of leaving the European Union. The topic of the potential consequences of Brexit in the field of private international law concerns, inter alia, national jurisdiction in civil and commercial matters, mutual recognition and enforcement of judgments, specific procedures of EU uniform law, judicial cooperation between Member States or the functioning of the e-Justice Portal and dynamic forms. Before a given Member State withdraws from the EU, interested parties should have been informed, inter alia, of how pending proceedings will be conducted starting with the withdrawal day, what about proceedings initiated at the date of withdrawal or later on, and what about the rulings of the courts of the applicant state covered by the exequatur procedure before the withdrawal. Therefore, the primary purpose of the article is to determine the framework for the future relationship between the EU and the UK in the field of private international law. An additional aim of this paper is to better prepare natural and legal persons for the new post-Brexit reality. European integration has brought Europe peace and prosperity and enabled unprecedented cooperation in all areas of common interest. Following the withdrawal decision, the state and its citizens cease to benefit from the acquis communautaire. In fact, the United Kingdom left the European Union on 31 January 2020. As far as private international law is concerned, the United Kingdom has become a third country. Subsequently, on 1 February 2020 a transition period has started and it aims to provide more time for citizens and businesses to adapt. The negotiations on the future partnership between the EU and the UK has started in March 2020, but they were postponed due to the coronavirus COVID-19 pandemic. The relationship between the United Kingdom and the European Union is sometimes compared to love that has passed away, but former lovers must continue to meet from time to time to manage certain common affaires. The analysis of the topic leads to the conclusion that, in fact, Brexit is a unique phenomenon that has no added value.

Cryptocurrency – Is It Property?

Purpose To address recent cases and the applicable legal principles relating to cryptocurrency, and to contribute to legal thought in this developing area of law. Design/methodology/approach This article considers recent cryptocurrency related cases in Singapore, Canada and the United Kingdom, and then considers the implications of the developing law in relation to proper causes of action and issues of practical asset recovery relating to the enforcement of judgments. Findings The intangible and highly movable nature of cryptocurrency places a premium on decisive asset recovery. The cases also suggest that injunctions remain a useful and effective debt recovery tool, especially when coupled with quick investigative action to trace cryptocurrency payments. However, the law remains unsettled as to the most appropriate cause of action for a claim in cryptocurrency or how a debt in cryptocurrency can be subject to execution. These issues raise the fundamental question of the nature of cryptocurrency, whether it belongs to an existing category of property, or if it is sui generis. Practical implications Cryptocurrency remains relatively novel and usage is increasing but not widespread. Users of cryptocurrency and lawyers involved in transactions or disputes involving cryptocurrency would benefit from a broader understanding of the legal issues Originality/value This article provides expert analysis from experienced litigation lawyers familiar with the concepts behind cryptocurrency.

Гаагская конвенция о судебных решениях 2019 г.: глобальное признание и исполнение судебных решений по гражданским и торговым делам (обзор Международной конференции, состоявшейся в Гонконге 9 сентября 2019 г.)

Гаагская конвенция о судебных решениях 2019 г.: глобальное признание и исполнение судебных решений по гражданским и торговым делам (обзор Международной конференции, состоявшейся в Гонконге 9 сентября 2019 г.)

Признание и приведение в исполнение иностранных судебных решений, принятых в связи с производством по делам о банкротстве, в свете Типового закона ЮНСИТРАЛ 2018 г.

Признание и приведение в исполнение иностранных судебных решений, принятых в связи с производством по делам о банкротстве, в свете Типового закона ЮНСИТРАЛ 2018 г.

Венецианская комиссия и поправки к Конституции РФ 2020 года: Заключение «О проекте поправок к Конституции (подписан Президентом Российской Федерации 14 марта 2020 г.), связанных с исполнением в Российской Федерации постановлений Европейского Суда по правам человека»

The article reviews the Opinion of the Venice Commission on the Amendments to the 2020 Constitution of the Russian Federation concerning enforcement of judgments of the European Court of Human Rights in the Russian Federation, that constitute a contradiction to the obligations of Russia under the Convention, and a worry that the corresponding power of the Constitutional Court of the Russian Federation will be fixed in the Constitution.

Time limits and default judgments in European cross-border civil litigation: minimum standards?

The article focuses on the impact of time limits on the free circulation of judgments rendered in absentia in civil and commercial matters within the EU. Starting from the Lebek judgment, I will examine the following issues: first, if an application for relief from the involuntary expiry of time limits may justify the denial of recognition and enforcement of judgments under the regime of the Brus­sels I bis Regulation; second, if the defendant applying for relief may choose between the time limit laid down in the service Regulation or that provided for in national law. Finally, I will address the question of the possible standardisation of the deadline for the first reaction on the part of the defendant.

Конвенція про визнання та виконання іноземних судових рішень у цивільних або комерційних справах: новий внесок Гаазької конференції з міжнародного приватного права в уніфікацію міжнародного цивільного процесу

An overview of certain provisions of the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters 2019 is provided. The analysis shows that this international legal document combines provisions that have proven their validity and effectiveness in other international legal instruments, and relatively new provisions that only appear in such acts. This combination aims to ensure a certain succession, and to take a step forward in improving and developing international legal instruments to regulate such extremely important issues as the recognition and enforcement of foreign judgments in civil and commercial cases.

Sustainable Civil Justice through Open Enforcement: The Ukrainian Experience

Ukraine, which is a member of the Council of Europe and is firmly on the path to European integration, develops legislation and legal doctrine with the aim of the implementing European standards. The Association Agreement signed in 2014 set out to put into effect, in particular, the approximation of legislation, the strengthening of judicial cooperation etc. The comprehensive reforms taking place cover various areas of legal regulation, specifically, legal proceedings and the enforcement of judgments. This new legislation in the field of the judicial system was approved in Ukraine in 2015-2017. The low level of trust in the judiciary, inside as well as outside of Ukraine, causes economical relations to suffer increasingly. It impacts inter alia the circulation of judicial decisions between EU Member States and Ukraine, which is not unencumbered by this and may be described as uncertain at best. Regarding all of these, the first part of this paper is about the goal of civil justice definition and defining the enforcement part throughout the process of judicial rights protection in Ukraine. In the second part we are investigating the transitional issues of the creation of an open enforcement system in Ukraine, the challenges and ways to resolve them within the most current trends of sustainable development and inclusive justice. In the conclusion, some theoretical approaches are criticized due to the lack of attention to the very ideas of sustainable justice and a peaceful and strong institutions promotion, which elude the attention of the legislators. The way of its fruition of an open and peaceful judicial enforcement creation through proper goal definition were proposed.

Актуальность и проблемы присоединения Российской Федерации к Гаагской конвенции о признании и исполнении иностранных судебных решений от 2 июля 2019 года

The article sheds some light on problems that impede the ratification by the Russian Federation of the Hague Convention on the recognition and enforcement of foreign judgements of July 2, 2019.
 As a result of analysis of the risks and prospects of ratification by the Russian Federation of the Hague Convention on the Recognition and Enforcement of Foreign judgements of July 2, 2019, the author concludes that there are no legal contradictions that could adversely affect ratification of the convention in question. In this regard it is possible to conclude that these are political contradictions and the Russian Federation’s reluctance to build a cross-border system for recognizing and enforcing decisions of foreign courts that can impede the convention's ratification

Chronology of Practice: Chinese Practice in Private International Law in 2019

Abstract This survey contains materials reflecting the practice of Chinese private international law in 2019. First, this paper describes the judiciary’s caseload: Chinese courts decided some 17,000 foreign-related civil and commercial cases, 16,000 maritime cases and 9,648 requests for judicial assistance in 2019. Regarding changes in the statutory framework of private international law, four legislative acts, one set of Regulations and six Supreme People’s Court (SPC) Judicial Interpretations were adopted or amended in 2019 on investment contracts, action preservation in intellectual property, punitive damages, etc. Second, eight typical cases on jurisdictional issues are selected, including jurisdiction clauses, parallel proceedings, and res judicata. Third, seven new representative cases on choice of law relating, in particular, to international transport, force majeure, gambling debts and public order, are examined. Fourth, five cases on the recognition and enforcement of foreign judgments and one SPC Opinion in favour of presumed reciprocity are briefly examined. Finally, this paper also covers seven key cases which reflect the latest development in Chinese private international law on other procedural issues, such as service of process abroad and authentication, and three cases on international arbitration (including the first decision rendered by the China International Commercial Court).

The fragmentation of (mutual) trust in Commonwealth Africa – a foreign judgments perspective

Mutual trust plays an important role in facilitating the recognition and enforcement of foreign judgments. The 2019 Convention on the Recognition and Enforcement of Foreign Judgments also reflects some degree of mutual trust, although not explicitly. Commonwealth African countries seem to be influenced by mutual trust but have not yet adopted any coherent approach in the conflict of laws. This incoherence has impeded the recognition and enforcement of foreign judgments especially in Africa. This article seeks to understand the principle of mutual trust in its EU context and then compare it with the subtle application of mutual trust in the recognition and enforcement of foreign judgments in Commonwealth Africa. The article illustrates this subtle and rather unarticulated application of mutual trust primarily through decided cases and relevant statutory provisions in the Commonwealth African jurisdictions considered. The article then considers how the subtle application of mutual trust has sometimes resulted in parallel efforts to promote the recognition and enforcement of foreign judgments and how a proliferation of legal regimes can undermine legal clarity, certainty and predictability. A progressive application of mutual trust will help to ensure African countries maximise the benefits of a global framework on foreign judgments.

The enforcement of foreign judgments in Kuwait

This article provides an overview of the rules in Kuwait regarding the enforcement of foreign judgments. This issue is significant due to the fact that foreign litigants still experience significant challenges in successfully enforcing foreign judgments – particularly as such parties have a limited understanding of the manner in which the Kuwaiti courts will interpret the conditions required to enforce such judgments. An analysis of case law in this area highlights that the reciprocity condition is usually the most significant hurdle for applicants when seeking the enforcement of foreign judgments. Such difficulties have catalysed the Kuwaiti Parliament to introduce an exception to the general rule regarding the reciprocity condition; reform which this article heavily criticises.

All that glisters is not gold? Deconstructing Rubin v Eurofinance SA and its impact on the recognition and enforcement of foreign insolvency judgments at common law

It was Lord Hoffmann who once spoke of a “golden thread” of modified universalism running throughout English Insolvency Law since the eighteenth century. However, after the UK Supreme Court’s decision in Rubin v Eurofinance SA, that golden thread seems to have lost its lustre. This paper critiques the main premise of the Rubin decision by questioning whether the Supreme Court was correct in holding that there can be no separate sui generis rule for recognising and enforcing foreign insolvency judgments. This article also explores the possible solutions, either through statute or the common law, that could be used to remedy the post-Rubin legal lacuna for recognising and enforcing foreign insolvency judgments.

Perspectives of Further Reform of Judicial System

The main directions of appropriate judicial system reform in Ukraine in order to make it effective and equitable are investigatedin the article. The most important direction of judicial system reform is creating an independent judicial system from the other branchesof power. To this end, the other branches of power and President of Ukraine should be entirely excluded from judiciary forming. Theauthor persists that judges should have a disciplinary liability for unjust decisions, which not match or contradict to material norms. Forthis goal, it is worth to create jury trial for judges from the level of appeal. This jury trial should consist of lawyers of the highest ca -tegory and scientists in the sphere of law and be chosen for every case separately by occasional computer programmer in quite signi -ficant amount (for example 12 persons).To the other main directions of judicial system reform, the author relates:1) Creating a reliable mechanism of judges’ prosecution for his unjust decisions and corruption offences;2) Creating a balanced interconnection between judicial and law enforcement branches of power;3) Creating more reliable lever arm for litigators’ rights guarantying;4) Judicial practice unification and creating a steady mechanism of legal gaps and collisions overcoming;5) Improvement of the system of enforcement of judgements;6) Publicity and society access to the legal proceedings.Every direction has it’s peculiarities.Amongst the main reforms in these spheres are the following. Attorney General should be assigned by the Parliament opposition,it will provide court decisions against influence from the side of Parliamentary majority because Attorney General has right to prosecuteagainst judges.It is also important in the criminal proceedings to enact independent investigative authorities from the structure of prosecutionand national police. To provide enforcement of judgements it’s worth to improve financial stimulation of the officers for their positivework and to anticipate ban for criminal outpost in any case of corruption crimes. Also in order to fight against corruption it is worth toallow using any kind of video or audio records including hidden ones when they can be proves in the crimes committed by the publicofficers.

Criminal liability for violation of the order of enforcement of judgments under the laws of foreign countries

The article deals with the study of foreign experience of criminal responsibility for separate crimes that infringe on the executionorder of conviction. The presence of alternative models of consolidation in the criminal laws of European countries and the norms ofresponsibility for failure to execute judicial decisions, primarily due to the national characteristics of the criminal law. Features of re -gulation of criminal responsibility for crimes against the order of execution of a judgment of conviction for which the person is sentencedto the punishment associated with the restriction of freedom in the EU member States. Determined that the norms about criminalliability for failure to execute court decisions may be presented as a single article (General rule), and in the form of several rules, whichprovide for liability for failure to enforce court decision of a particular kind, namely: 1) qualification of aiding escape from prison asseparate crimes; 2) the establishment of criminal liability for the qualified form of escape from the place of deprivation of liberty; 3) theconsolidation of criminal liability of the person who organized the escape from prison with the simultaneous involvement of the perpetratorsescape, is subject to disciplinary, and not criminal liability; 4) the establishment of criminal liability for illegal release fromplaces of detention and mitigation of the regime of serving sentences, as well as the application of more serious penalties against thesubjects of the offences against the penal system, what is the officials of the penitentiary institutions.It was determined that in some member States of the EU enshrines the criminal liability only for the qualified form of escapefrom the place of imprisonment and the liability of the person who organized this escape, and while the perpetrator of the escape, subjectto disciplinary, and not criminal liability. However, a significant proportion of the EU countries provides criminal responsibility forescaping from places of imprisonment without any other aggravating circumstances that can explain the substantial public danger ofthe crime.

The Conceptual Structure of Commercial Law

This article argues that commercial law is not merely a collection of rules, but a doctrinally coherent and conceptually sophisticated body of law structured through conceptions of property. The analysis focuses specifically on the aspects of commercial law that govern recovery of debt. The argument advances two related themes; that commercial law is built around conceptions of property and reciprocally defines the conceptions of property around which it is built. The article first addresses the role of property as the structural framework of commercial law. Property creates the basis for assertion of rights and provides the conceptual interface between the legal regimes of secured financing, judgment enforcement, and bankruptcy. Further, property is the basis on which commercial law rights and interests are reconciled with rights and interests that fall outside its boundaries. The article then explores the means by which commercial law resolves practical problems through the creative definition of property. The article concludes with thoughts on the importance of understanding the central role of property in the structure and function of commercial law.