Free Movement Of Judgments Research Articles

The prevalence of ‘jurisdiction’ in the recognition and enforcement of foreign civil and commercial judgments in India and South Africa: a comparative analysis

ABSTRACT The determination of the ‘international jurisdiction’ of the court of origin remains the backbone of the law on the recognition and enforcement of foreign judgments in civil and commercial matters in India and South Africa. Thus, a foreign judgment is ineffective in these jurisdictions unless the court of origin was competent according to the principles of private international law. The grounds to determine the ‘international jurisdiction’ of the foreign court are narrow and primarily rest on the ‘allegiance’ of the judgment-debtor towards the State of origin. This paper demonstrates how the rules to ascertain the competency of the foreign forum in these BRICS jurisdictions impede the free movement of judgments and prevent access to justice. The paper accordingly suggests plausible new approaches to overcome these shortcomings.

The Article 7 TUE Procedure and the Free Movement of Judgments in the EU

The paper is on the impact of the initiation the Article 7 TUE procedure against the Member State on recognition and enforcement of judgments in civil matters in the EU. The recognition and enforcement of judgments in the EU is based on the principle of mutual trust, so it can be assumed that the initiation of the procedure against the one of the Member States significantly reduces the level of mutual trust, therefore disrupt the free movement of judgements within the EU. At the end of 2016 the Article 7 procedure was started against Poland (COM (2017) 835). This is the first such case in the EU history, so the consequences of initiating this procedure, including its impact on the functioning of judicial cooperation in civil and commercial matters is current and important. The paper presents the possible impact of the Article 7 procedure on the free movement of judgements in civil and commercial matters and the consequences of it for the functioning of internal market.

Between Informal Dialogue and Official Criticism

Abstract There are various forms of jurisdictional dialogue. In addition to drawing from the case law of another court or seeking direct assistance of such another court in passing the judgment, we can notice in practice situations when by issuing a verdict the courts are communicating with each other. The rulings of the Bundesverfassungsgericht, the Court of Justice of the European Union, and the European Court of Human Rights regarding the free movement of judgments in the European Union and protection of fundamental rights are the example of such activities. Each of these bodies was interpreting separately the extent to which the mechanisms of recognising and executing the judgments may interfere with the level of protection of fundamental rights. A common conclusion concerns assigning the priority to protection of fundamental rights, while individual bodies were determining differently the standards of such protection. The analysed judgments can be construed as a communication between these bodies. Although no direct discussion takes place between these courts, this is still a form of interaction which affects the development of the case law and understanding of the boundaries of mutual recognition of judgments and protection of human rights within judicial proceedings.

Close the Door on Your Way Out - A Bystander's Guide to Brexit

This working paper, accompanying a presentation to the Max Planck Institute for Foreign and International Private Law in Hamburg on 1 March 2017, considers a number of legal and practical aspects of the UK's prospective withdrawal from the European Union, including first reactions, possible approaches to the negotiations, the demands of legislation to implement withdrawal and legal challenges. The final sections of the draft paper (not included in this working paper) have been adapted for publication in the Zeitschrift fur Europaisches Privatrecht (September 2017) under the title “Free Movement of Judgments in Civil Matters – A ‘Brexit’ Case Study”.

Judicial Discretion in Light of the New European Rules on Jurisdiction in Civil and Commercial Matters: Reform or Continuity?

The free movement of judgments can be presented as a necessary corollary of the European internal market where goods, people, services and capital move freely. The first step towards the adoption of harmonized private international law provisions was made in 1968 with the conclusion of the Brussels Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters. In 1999, the entry into force of the Treaty of Amsterdam transferred the competence to legislate in the field of judicial cooperation in civil matters from the Member States to the European Union. This led to the transformation of the 1968 Brussels Convention, an instrument of inter-governmental cooperation, into a Regulation: Regulation (EC) 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, colloquially known as ‘Brussels I’. Subsequently, a Recast (reform) of the Regulation was agreed in 2012 which substantially amended Brussels I, and will replace it from 10 January 2015. This paper evaluates the extent to which the new jurisdiction rules of the Brussels I Recast impact on the exercise of judicial discretion by courts in the EU. This question is closely linked with the nature of Brussels I as a civilian instrument. Part I will consider how the activism of the European Court of Justice (now Court of Justice of the EU) had reinforced the civilian imprint of the Brussels I Regulation. Part II will assess whether the Recast is breaking away from what has been, for a period, considered the ‘systematic dismantling of the common law of conflict of laws’ by the EC (now EU). The article concludes that under the Brussels I Recast, the domain of both anti-suit injunctions and forum non conveniens has, if anything, been even further reduced. However the Recast has not only corrected some of the unwelcome consequences of an overly civilian interpretation of the Brussels I Regulation but simultaneously introduced, on the whole territory of the EU, a harmonised mechanism of jurisdictional regulation based on judicial discretion (which was hitherto available only in a few Member States). On this aspect, the Recast has the great merit of promoting (at least on paper) a better coordination between European and third States procedures, and one that may be easier to anticipate in third countries.

El nuevo sistema español de reconocimiento y ejecución de decisiones extranjeras.

ABSTRACT: This paper addresses the new system of recognition and enforcement of foreign judgments in Spain, after the entry into force of the Regulation 1215/2012 in 2015 and the Law on International Legal Cooperation that finally repeals an antiquated system that was already exceeded by the jurisprudence of the Supreme Court. The new system, studied along these lines, is far away from the complexities of the system of 1881, adapted to the existing reality -the need of a simplified system for the recognition of foreign judgments done the current mobility of natural and legal persons. This has already occurred within the European Union, where since the entry into force of the 1215 regulation we can talk about the existence of the fifth freedom, the free movement of judgments.

The Internal Market and Private International Law Regimes: A Comment on Case C-533/08 TNT Express Nederland BV v AXA Versicherung AG, Judgment of the Court (Grand Chamber) of 4 May 2010

In case C-533/08 TNT Express, the Court of Justice interpreted Article 71 of Regulation 44/2001 (the Brussels Regulation) which provides that the Regulation ‘shall not affect any conventions to which the Member States are parties and which in relation to particular matters, govern jurisdiction or the recognition or enforcement of judgments’. The Court held that the provision must be interpreted as including the implied condition that the specialised conventions referred to can only apply to the extent to which they do not undermine the ‘underlying principles’ of the Brussels Regulation, including the principles of mutual trust and free movement of judgments. The Court also found that it had no jurisdiction to interpret the specialised convention at issue in this case. The judgment is important for the development of private international law in the EU and for the EU as a locus for the development of private international law, regionally and globally. The Court has effectively decided that certain principles which underlie the policy field are constitutional in nature and non-derogable even where the legislature has chosen to limit the scope of harmonisation and thus the degree of uniformity in the Union system and to leave space to an international regime. Thus certain choices in the creation of the area of freedom, security and justice are removed from the political agenda. This paper offers a critique of the Court’s approach on a number of points, the aim being to try to tease out the implications of the ruling and to offer a different perspective.

Cross-Border Enforcement and the Brussels I-Bis Regulation: Towards A New Balance Between Mutual Trust and National Control over Fundamental Rights

The most important political priority of the European Commission in the recast of the Brussels I Regulation has been the abolition of exequatur. The policy to gradually abolish intermediate measures for the enforcement of judgments within the EU flows from the desire to enhance the free movement of judgments and the establishment of a genuine European area of justice. Whilst fundamental debate remained absent from the abolition of exequatur in several specific instruments, the abolition of exequatur including the grounds of refusal met with resistance during the negotiations on the recast of Brussels I. As a result of these negotiations, the new Brussels I Regulation — Brussels I-bis — will abolish the requirement to obtain a declaration of enforceability prior to enforcement, but will preserve the grounds of refusal at the enforcement stage. This article evaluates the discussions regarding the abolition of exequatur in the broad context of the EU regulatory and legislative framework, and analyses and assesses the new rules on cross-border enforcement in the Brussels I-bis Regulation. It seeks an answer to the questions (a) whether the new Regulation strikes the right balance between the premise of mutual trust and the need for national control over fundamental rights, (b) to what extent the new regime increases the rights of the judgment debtor while protecting those of the judgment creditor, and (c) whether the outcome of the Brussels I recast will or should have further repercussions for other instruments on cross-border enforcement.

The Brussels I Regulation: Recent case law of the Court of Justice and the Commission’s proposed recast

The European law of civil procedure is a steady process of evolution and improvement. Marked by growing cooperation between the civil courts of EU Member States, this area of law is now increasingly dominated by judicial competition and by constitutional influences: on the one hand, the judicial systems of the Member States aspire to attract litigation of high value (often by plaintiff-oriented rules), and on the other hand, the European Court of Justice elaborates its case law on the principles of access to justice, free movement of judgments and fair trial in cross-border litigation. At present, the reform of the Brussels I Regulation (Reg. 44/2001) is on the legislative agenda. The main task of the European law-makers is to update the Regulation in order to maintain the sound administration of justice within the European Judicial Area by limiting competition between national judicial systems which does not necessarily correspond to the interests of private litigants. This article describes the ECJ's case law and takes stock of the present state of affairs for the Brussels I Regulation which is the cornerstone of the European law of civil procedure.

The Right to a Fair Trial and the Free Movement of Civil Judgments

This paper analyses the role and function of the right to a fair trial in Brussels I. Particular emphasis will be placed on how the European Court of Justice balances the right to a fair trial against the free movement of judgments. This question will be answered in terms of whether the ECJ perceives the right to a fair trial to constitute an autonomous source of obligations or whether it interprets (and if so, how it does so) PIL mechanisms in the light of the requirements of a fair trial. In particular, the paper will analyse to what extent the courts in the Member State addressed may review compliance with the right to a fair hearing of the court originally seized. Finally, the proposal of the European Commission to abolish the exequatur will be examined from a fundamental rights perspective.

Comments on the European Commission' Green Paper on Improving the Efficiency of the Enforcement of Judgments in the European Union: The Attachment of Bank Accounts

In October 2006, the Commission of the European Communities published the “Green Paper on Improving the Efficiency of the Enforcement of Judgments in the European Union: The Attachment of Bank Accounts” (hereinafter: “Green Paper”). This document is an important step towards the creation of a European Area of Justice where the free movement of judgments is accompanied by swift procedures for cross-border enforcement. The purpose of the Green Paper was to launch a broad consultation among interested parties, both from legal practice and from academia. Several scholars affiliated with the Max Planck Institute for Comparative and International Private Law (Hamburg) decided to contribute to this discussion. They formed a Working Group (hereinafter: the “Working Group” or the “Group”) whose observations are presented here. The Working Group's proposals and comments are the result of intense discussions held from December 2006 to March 2007. While our observations have undergone several discussion rounds and reflect the majority opinion of the group, not all of them have been approved unanimously.

CURRENT DEVELOPMENTS: I. Brussels II bis: Matrimonial Matters, Parental Responsibility, Child Abduction and Mutual Recognition

At the Justice and Home Affairs (JHA) Council meeting in Brussels on 2 and 3 October 2003 final political agreement was reached on a new and expanded version of the Brussels II Regulation, a text which has commonly become known as Brussels II bis. The instrument, which was adopted by the JHA ministers on 27 November, has now received formal classification as Council Regulation No 2201/2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and Matters Relating to Parental Responsibility Repealing Regulation (EC) No 1347/2000.1 The net result of this precipitous reform is that Brussels JJ shall cease to have effect from 1 May 2005,2 a mere 4 years and 2 months after it entered into force. Henceforth there will be a single, integrated instrument which will cover, inter alia, the free movement of judgments in matters of parental responsibility as well as of matrimonial judgments and introduce provisions on cooperation between Member States.

The Mutual Recognition of Decisions in Civil and Commercial Matters in the European Union in the Light of the Full Faith and Credit Clause of the U.S. Constitution

In the conclusions of the European Council of Tampere and the Council Programme of Measures for Implementation of the Principle of Mutual Recognition of Decisions in Civil and Commercial Matters, the European Union approved the principle of mutual recognition of judicial decisions in order to remove barriers to the ‘free movement of judgments’. When the U.S. Constitution was drafted more than 200 years ago, the same problem had to be tackled. Article IV Section 1 of the Constitution was the solution found at the time. This article gives an overview over the state of play of the Community activities concerning the mutual recognition of decisions in civil and commercial matters, seen from the perspective of the U.S. Constitution.

Arbitration and the Free Movement of Judgments

ON 1 MARCH 2002, the Brussels I Regulation1 (‘the Regulation’) came into force as the new regime for regulating jurisdiction and the recognition and enforcement of judgments between EU Member States. It replaces the Brussels Convention2 as between all Member States except Denmark. To a large degree the Regulation reproduces the substance of the Brussels Convention; the main innovation is that the rules are now contained in a regulation rather than an international treaty. Those involved in arbitration may have taken little notice of the change because Article l(2)(d) of the Regulation incorporates the same exception for ‘arbitration’ as the Brussels Convention. However, although the Regulation represents continuity with the Brussels Convention, the European Commission is required within five years to submit proposals for adaptations if needed.3 Amendment of the Regulation can be achieved with much greater ease than the Convention. Accordingly, those involved in arbitration have a good opportunity to propose improvements in the law regulating the jurisdiction of court proceedings within the EU relating to arbitration. The purpose of this article is to examine the practical application of the exception for arbitration in the context of the Regulation. The chief problems that have arisen in applying it will be investigated, looking in particular at the litigation in this area under the Brussels Convention. It will also be necessary to identify the principles and policy objectives which must be given priority in maintaining effective systems for arbitration within EU states. The aim is to highlight areas where improvement could be achieved, with a view to proposals for revision of the Regulation. Amendment of the main international instrument relating to arbitration, the New York Convention on recognition and enforcement of foreign awards4 (‘the New York Convention’), is probably not a realistic aim in the short term …

Regulatory Competition: A Private International Law Approach

This article analyzes the “regulatory competition model” (RCM) from a private international law perspective. This perspective helps us identify and resolve two gaps in the standard explanation of the RCM. According to the standard explanation, two conditions must be fulfilled for the market of legal products to function well: (1) free movement of resources (persons, capital, and goods); (2) the absences of cross-border externalities. In relation to this second condition, the standard model argues that a uniform material rule is necessary to overcome cross-border externalities. The main thesis of this article is that a “private international law” approach can complete this model by adding two ideas. First, a smooth functioning of the market-of-legal products requires, not only the free movement of resources, but also a uniform private international law system which guarantees the autonomy of the parties (free choice of law) and the procedural implementation of this autonomy (free choice of forum and free movement of judgments). And second, a uniform material law, which wipes out the regulatory market, is not essential to deal with the externality problem; rather a uniform conflict-of-laws rule, which leads to the internalization of cross-border externalities by states, can correct at least some of the externalities problem and also maintains the regulatory market.

Marc Rich & Go. AG v. Societa Italiana Impianti P.A. (C-190/89)

(Request for a preliminary ruling by the Court of Appeal) (Delivered at the sitting of the Court of Justice (Full Court) on 19 February 1991) Mr. President , Members of the Court , 1. The interpretation of the Brussels Convention (hereinafter referred to as ‘the Convention’) raises numerous difficulties since, as well as being inherently complex, it uses concepts which the various national laws define precisely but in a manner which often differs from one Member State to another, with the result that the Court has often felt it necessary to educe from it an independent meaning. For that purpose, the objectives of the Convention, which pursue the ‘free movement of judgments’, are reliable points of reference which may be used in order to reject solutions which might lead to a multiplicity of actions before different courts and the associated risk of irreconcilable decisions.1 2. However, these constant and justified concerns which are evident in the decisions of the Court are subject to an obvious limitation: the scope of the Convention itself. The present preliminary-ruling proceedings, which are concerned with the scope of Article 1 (4) of the Convention, according to which the Convention is not to apply to arbitration, must serve as a reminder that, however constructive and specific it may be, the Court's interpretation of the Convention must not lead to a result which strays beyond the limits of its wording, its scheme and the coherence of its provisions. 3. Those preliminary remarks are prompted by some of the analyses made in the present case, which refer in a somewhat ritualistic manner to the objectives of the Convention and leave aside all other considerations, even those which stem from the logic of that instrument and the specific features of the problem before the Court: international arbitration. The …

Free Movement of Judgments within the EEC

Free Movement of Judgments within the EEC