Movement Of Judgments Research Articles

The Hague Judgments Convention and Mainland China-Hong Kong SAR Judgments Arrangement: Comparison and Prospects for Implementation

Abstract The year 2019 saw the arrival of the Hague Judgments Convention and Mainland China-Hong Kong SAR Judgments Arrangement, which is not a coincidence. Both instruments mark a historical culmination and constitute a milestone, at the global level and the at the level of territorial units within a country respectively. With novelties created to avoid the failures shadowing the past Hague Judgments Project, the 2019 Convention reflects the global trend and maximizes the common grounds countries could agree to, though it still falls short of some longstanding expectations. Similarly, the 2019 Arrangement advances judgment circulation between territorial units within China despite that room for further collaboration is still large. In significant respects, the 2019 Arrangement is heavily modelled on the 2019 Convention, while the Arrangement also addresses special concerns of the two regions. Undeniably, it may be another success for the Convention to be able to influence judgments recognition instruments targeting territorial units within a country and show its model effect. Recent years have witnessed Mainland China’s efforts to promote transboundary movement of judgments and its contribution to the arrival of both the 2019 Convention and Arrangement. As an important global player with increasing ambition of claiming more international presence, China will welcome both instruments and the instruments are expected to fare well as desired.

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 1971 and 2019 Hague Judgments Conventions: Compared and Whether China Would Change Its Attitude Towards The Hague

Abstract Under the auspices of the Hague Conference on Private International Law, decades of endeavours brought about the 2019 Hague Judgments Convention, being the newest achievement and a milestone. Serving the basic modern values of promoting access to justice and facilitating multilateral trade, the 2019 Convention reflects the global trend and maximizes the common grounds countries could agree to. As a historical culmination, the 2019 Convention refers to the experience of the past Hague conventions, in particular the 1971 Convention. On the one hand, the 2019 Convention duplicates the 1971 Convention in significant respects, maintaining its virtues; on the other hand, novelties are created to avoid the failures shadowing the 1971 Convention. Overall, the 2019 Convention is acceptable though it falls short of some long-lasting expectations. Recent years have seen China’s efforts to promote transboundary movement of judgments and its contribution to the arrival of the 2019 Convention. As an important global player with increasing ambition of claiming more international presence, the Convention is expected to fare well in China.

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.

Sino–Foreign Recognition and Enforcement of Judgments: A Promising “Follow-Suit” Model?

Due to the upsurge in cross-border transaction, the movement of judgments between jurisdictions has become a hot topic. Unfortunately, China’s legislation and practice in this area has long lagged behind that of other countries, though China is not the only party to blame for the lack of a favourable Sino–foreign recognition mechanism. Encouragingly, in recent years some foreign courts have taken the initiative to recognize Chinese judgments, which Chinese courts have then responded to positively, forming a “follow-suit” circle in practice. A new opportunity has thus arrived for promoting Sino–foreign judgment recognition, and both Chinese and foreign courts should seize it, as it appears to be the most efficient and practical among possible solutions, including future domestic legislation or international treaties.

Recognition and enforcement of mainland China’s civil and commercial judgments in Hong Kong – an update

ABSTRACTThe movement of judgments in civil and commercial matters between mainland China and Hong Kong has long been a problem, especially since the handover of Hong Kong from Great Britain to the People’s Republic of China on 1 July 1997. To partly resolve the problem, in 2006, mainland China and Hong Kong signed an Arrangement on mutual recognition and enforcement of judgments pursuant to exclusive choice of court agreements. However, even for this ‘narrow’ Arrangement, there have not been many successful cases publically reported in the past nine years or so. Nevertheless, two recent decisions from the Hong Kong Court of First Instance (HKCFI) probably can foreshadow the future trend of how Mainland judgments would be recognized and enforced in Hong Kong under the 2006 Judgments Arrangement and beyond. They could also pave the way for the possibly upcoming ‘broad’ Arrangement.

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.

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.

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.

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