Recognition Of Judgments Research Articles

ANTI-SUIT INJUNCTIONS IN ARBITRAL AWARDS: ENFORCEMENT IN EUROPE

THE status of anti-suit injunctions in Europe has long given rise to controversy. The decision of the Court of Justice of the European Union in Case C-536/13, Gazprom OAO [2015] All E.R. (EC) 711 sheds a new light on the relationship between anti-suit injunctions and the European jurisdiction regime embodied in the Brussels Regulation (Regulation No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters). In this much anticipated judgment, the Court of Justice confirmed that, by virtue of the arbitration exclusion in Article 1(2)(d) of the Brussels Regulation, Member State courts are not precluded from enforcing anti-suit injunctions issued by arbitration tribunals and aimed at restraining the proceedings before Member State courts. Although the decision was given before the Recast Brussels Regulation came into force (Regulation No. 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, effective from 10 January 2015), it can be assumed that the same conclusion would have been reached under the new law.

The Continuing Evolution of U.S. Judgments Recognition Law

The substantive law of judgments recognition in the United States has evolved from federal common law, found in a seminal Supreme Court opinion, to primary reliance on state law in both state and federal courts. While state law often is found in a local version of a uniform act, this has not brought about true uniformity, and significant discrepancies exist among the states. These discrepancies in judgments recognition law, combined with a common policy on the circulation of internal judgments under the United States Constitution’s Full Faith and Credit Clause, have created opportunities for forum shopping and litigation strategies that result in both inequity of result and inefficiency of judicial process. These inefficiencies are fueled by differences regarding (1) substantive rules regarding the recognition of judgments, (2) requirements for personal and quasi in rem jurisdiction when a judgments recognition action is brought (recognition jurisdiction), and (3) the application of the doctrine of forum non conveniens in judgments (and arbitral award) recognition cases. Recent cases demonstrate the need for a return to a single, federal legal framework for the recognition and enforcement of foreign judgments. This article reviews the history of U.S. judgments recognition law, summarizes current substantive law on the recognition and enforcement of foreign judgments, reviews recent decisions that demonstrate the three specific problem areas, and proposes a coordinated approach using federal substantive law on judgments recognition and state law on related matters in order to eliminate the current problems of non-uniformity and inefficient use of the courts.

Law Reform on Cross-Border Civil Procedure in Europe: ‘Companies and Firms’ and EU Regulation 1215/2012 (Brussels I Recast)

This contribution highlights the position of companies and firms, being addressees under article 49 and 54 TFEU, under the reign of ‘brand new’ EU cross-border civil procedural law: on January 10, 2015, EU Regulation 44/2001 on jurisdiction and recognition of judgments in civil and commercial matters was substituted by EU Regulation 2015/2012 carrying the same title and covering the same object. In some respects this Recast does not adequately respond to primary EU law developments in respect of cross-border company mobility.

Notes on the EUCJ’s ruling inGazprom:West Tankersis unaffected and anti-suit injunctions issued by arbitral tribunals are not governed by EU Regulation 44/2001

On 13 May 2015 the Grand Chamber 1 of the Court of Justice of the European Union (hereafter the ‘Court’ or ‘EUCJ’) provided a preliminary interpretative ruling (Case C-536/13) 2 on the Council Regulation (EC) 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and with regard to an anti-suit injunction issued by an arbitral tribunal, in connection with the Gazprom OAO proceedings before Lithuanian courts. Those who are not satisfied with the Court’s ruling in the West Tankers case in 2009 hoped perhaps that this new ruling would change, and improve, the status of anti-suit injunctions in the EU. However, such hope was doomed to fail in view of the different context and questions that the Court had to deal with in relation to the Gazprom case. Prompt reporting of events or breaking news is common place nowadays. Such practice reduces significantly the time needed for reflection and proper coverage of the event. The ruling in Gazprom also prompted some immediate reports on line. One of these reads: ECJ allows anti-suit injunctions by arbitrators. In an eagerly awaited ruling, the European Court of Justice has held that anti-suit injunctions issued by arbitral tribunals are not prohibited by the Brussels I Regulation – but practitioners hoping that the court would reconsider its controversial decision in West Tankers will have to wait. 3

Codifying European Union private international law: The Swiss Private International Law Act – a model for a comprehensive EU private international law regulation?

The following contribution builds on the Swiss experience in order to reflect on the idea of codifying private international law in the EU. The Swiss Federal Act on Private International Law with its 225 articles is possibly the most complete codification of private international law (PIL) worldwide. It covers jurisdiction, international civil procedure, applicable law, and the recognition and enforcement of foreign judgments. It represents therefore a comprehensive codification of PIL. This contribution argues that having a comprehensive PIL codification has numerous advantages when compared with having PIL rules distributed over a large number of separate acts or regulations. A comprehensive codification makes all PIL rules readily accessible in one place, helps to avoid friction between the rules on jurisdiction on the one hand and applicable law on the other, promotes a uniform view of the whole matter, favours clarity and coherence between the different sets of rules, reduces complexity, increases legal certainty, and considerably adds to the user-friendliness of the rules on PIL. Based on these findings, the author recommends the commencement of preparatory work for the enactment of a comprehensive PIL regulation in the EU.

Problems of Judicial Recognition and Enforcement in Cross-Border Insolvency Matters Between Hong Kong and Mainland China

This Article first explores whether it is legally possible to extend the Arrangement on Reciprocal Recognition and Enforcement of Judgments in Civil and Commercial Matters by the Courts of the Mainland and of the Hong Kong Special Administrative Region Pursuant to Choice of Court Agreements between Parties Concerned to cover cross-border insolvency matters between Hong Kong and mainland China and, if so, the advantages and disadvantages of so doing. It then examines other alternatives for facilitating judicial recognition and enforcement of judgments between the courts in Hong Kong and mainland China that focus specifically on cross-border insolvency judgments (including court orders) that concern both Hong Kong and mainland China, such as signing a new arrangement, a special treaty, or a Memorandum of Understanding. It seeks to highlight the deficiencies of the Arrangement as well as discuss the options to remedy those deficiencies. The situation for Hong Kong-China cross-border insolvency cases is opaque due to the lack of local cross-border insolvency legislation in Hong Kong. In China, there is only one article (article 5) of the 2006 Enterprise Bankruptcy Law that concerns crossborder insolvency, but that article is inapplicable to Hong Kong-China cross-border insolvency cases. That article is inapplicable because it applies only to cross-border insolvency cases involving a foreign state. Since Hong Kong is not a foreign state, it is precluded from the article’s application. Also, Hong Kong and China have not adopted the UNCITRAL Model Law on Cross-Border Insolvency. Although internationally accepted soft law standards such as the Model Law can provide institutional guidance to cross-border insolvency matters, it is compatible with Hong Kong-China cross-border insolvency cases only when a third jurisdiction is involved. The lack of a formal judicial recognition mechanism for Hong Kong-China crossborder insolvency judgments creates problems such as legal uncertainty and forum shopping. This Article aims to raise awareness of the difficulties facing practitioners involved in Hong Kong-China crossborder insolvency cases and to share academic perspectives on the issue.

La responsabilidad transfronteriza por productos defectuosos en la Unión Europea

La responsabilidad por productos defectuosos cuenta en la Unión Europea con un moderno marco legal aplicable a los casos que cuenten con una naturaleza internacional. Sin embargo, los nuevos desarrollos normativos no han suprimido los problemas de coordinación existentes y ofrecen una injustificada complejidad, por lo que existe un cierto riesgo de que se malogren los objetivos perseguidos por el legislador europeo en este estratégico sector para el mercado interior de la Unión Europea. El objetivo de este estudio es analizar las respuestas contenidas en el Reglamento (CE) 44/2001, relativo a la competencia judicial, el reconocimiento y la ejecución de resoluciones judiciales en materia civil y mercantil y el Reglamento (CE) 864/2007, relativo a la ley aplicable a las obligaciones extracontractuales («Roma II») asícomo su interrelación con otros instrumentos convencionales.

Comparison Of The Transfer Of Criminal Proceeding With Other Forms Of International Legal Cooperation In Criminal Matters

Abstract The article examines the current regulations of the transfer of criminal proceeding in the European legislation, indicating the differences from other forms of International legal cooperation in criminal matters, such as: transfer of sentenced persons and mutual recognition of judgments. The study highlights the importance of the transfer of criminal proceeding for the International legal cooperation in criminal matters between the European countries. Its main objective is by preventing the conflicts of jurisdiction between the States concerned to ensure a more efficient, procedural economical and lawful prosecution of crimes.

Legal Pluralism, Institutionalism, and Judicial Recognition of Hong Kong-China Cross-Border Insolvency Judgments

Legal pluralism and institutionalism are important theoretical underpinnings for the discourses of judicial recognition under dual legal systems that coexist within one sovereign nation such as the case of China and Hong Kong. Institutionalism provides that only formal institutions (eg, constitutions, laws and treaties), unlike informal ones (eg, private contracts, traditions and customs), can facilitate judicial recognition and enforcements for insolvency creditor rights protection. Legal pluralism, however, provides for an alternative to circumventing political sovereignty issues typically associated with the making of treaties for mutual judicial recognition purposes. Under the Chinese politico-legal system, Hong Kong is a Special Administrative Region which is akin to a province; as such, Hong Kong is not qualified to sign a bilateral treaty with China. This article expounds and analyses why instituting and implementing a special arrangement (an alternative to a treaty) can help optimise the mutual enforcement of Hong Kong-China cross-border insolvency judgments and orders.

From West Tankers to Gazprom: anti-suit injunctions, arbitral anti-suit orders and the Brussels I Recast

The coming into force of the Brussels I Recast on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and the recent development in the Gazprom case appears to have ignited the debate on the position of anti-suit injunctions in the European judicial area. Although anti-suit injunctions have been prohibited by the CJEU in the Turner and West Tankers cases, it has been argued that anti-suit injunctions may be permissible in the context of arbitration under the new Brussels I Recast, the current EU instrument regulating the jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. It is therefore necessary to examine the position of anti-suit injunctions under the new legislative framework. This article will also examine the relationship between arbitral anti-suit orders and the Brussels I Regulation and its Recast.

PRESENCE AS A BASIS FOR THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENT SOUNDING IN MONEY: THE “REAL AND SUBSTANTIAL CONNECTION” TEST CONSIDERED

A somewhat contested basis of international competence in the recognition and enforcement of foreign judgments in South Africa is mere presence. Over the years, an academic debate has raged in South Africa over mere presence as a basis of jurisdiction for the enforcement of foreign judgments sounding in money. A recent decision by the Constitutional Court makes the topic worth revisiting.Practical circumstances, social and political considerations as well as natural justice inevitably call for the recognition and enforcement of foreign judgments. As Forsyth aptly puts it “[a] plaintiff may sue in one country and hear with pleasure judgment given in his favour, then discover, to his dismay, that the defendant, with his assets, has absconded to another country”. In such a situation, the judgment has become brutum fulmen in the court which pronounced it and the plaintiff is placed in a grossly prejudicial position. However, because of widely accepted values and principles, legal systems of the world recognize and appreciate that a judgment rendered by the courts of one country may be enforced elsewhere, provided certain conditions are satisfied.Under South African common law one of the conditions for the enforcement of foreign judgments is that the court which pronounced the judgment must have had jurisdiction to entertain the case according to the principles of our law with reference to the jurisdiction of foreign courts. (In Reiss Engineering Co Ltd v Insamcor (Pty) Ltd 1983 (1) SA 1033 (W) 1037B the court stated that the mere fact that the foreign court may have had jurisdiction under its own laws, is not conclusive. Instead, the question of jurisdiction has to be determined in the light of the principles of our law on the jurisdiction of foreign courts. Other requirements for recognition and enforcement are that (i) the foreign judgment must be final and conclusive in its effect and not have become superannuated; (ii) the recognition and enforcement of the judgment by South African courts should not be contrary to public policy; (iii) the foreign judgment should not have been obtained by fraudulent means; (iv) the judgment must not involve the enforcement of a penal or revenue law of the foreign state; and (v) the enforcement of the foreign judgment must not be precluded by the provisions of the Protection of Business Act 99 of 1978, as amended. See Jones v Krok 1995 (1) SA 667 (AD) 685B−D.) This note is concerned only with the requirement that the foreign court that pronounced the judgment must have had jurisdiction to entertain the case according to the principles of our law with reference to the jurisdiction of foreign courts. The other four requirements are outside the scope of this paper and will not be discussed. It appears that the requirement that the foreign court must have had jurisdiction is a tenet central to the common law world. This requirement is a concept sui generis which is not affected by the internal jurisdiction rules of the foreign court, nor by the internal jurisdiction rules of the South African courts. Under South African common law there are, at least, two grounds which have been established with absolute clarity, that clothe a foreign court with international competence.

Recognition of Russian personal status judgments in Greece: a case Law survey

Russia and Greece have strong historical, cultural, social and financial bonds for centuries. In the aftermath of the 2nd World War, many people of Greek origin were forced to leave Greece for political reasons; they moved to the USSR, where they started a new life. Soon after the dissolution of the Soviet Union, and following supporting Greek legislation for their return to the homeland, a significant number of people decided to resettle in Greece. In order to cope with Greek bureaucracy regarding personal status matters, certain documents and court decisions of USSR (meanwhile Russian) origin had to be recognized in Greece. The present article provides a first glance at the bilateral Convention on judicial assistance in civil and criminal matters signed in 1981 between the Hellenic Republic and the ex-USSR. This сonvention applies since December 1995 in Greek – Russian civil and criminal matters. The article will focus on Ch. V of the Convention, dealing exclusively with the issue of recognition and enforcement of judgments and authentic instruments in civil matters. At the same time it serves as a survey of reported and unreported Greek case law on the matter.

The Enforcement of Foreign Judgments in Nigeria: Scope and Conflict of Laws Questions

It is a generally acceptable principle of Conflict of Laws that the powers of the courts are limited by their territorial boundaries (i.e. territorial jurisdiction). Thus a judgment (inclusive of a commercial arbitral award), pronounced by the court of one jurisdiction, may have no force or effect beyond its own territory save for situations where other jurisdictions or states have agreed to allow reciprocal enforceability within their own territories of judgments of Nigerian courts. There is no specific bilateral agreement of reciprocity signed by Nigeria with any foreign country at present. The Reciprocal Enforcement of Foreign Judgments Ordinance,1958 (‘the 1958 Ordinance’) only extends the reciprocity treatment to the judgments from the courts in Britain and other Her Majesty’s territories within the British Commonwealth. While the Foreign Judgment (Reciprocal Enforcement) Act, 2004 (‘the 2004 Act’) specifically empowers the Nigerian Minister of Justice to extend the reciprocal treatment to any foreign country with substantial reciprocity of treatment with respect to the enforcement of foreign judgments. To date, the Minister of Justice is yet to act as provided under the 2004 Act. The foregoing statutes are the enabling laws and they form the bedrock of the recognition and enforcement of foreign judgments in Nigeria with grave internal conflicts of the application of both laws in the Nigerian courts. However, Nigerian courts seem to enforce foreign judgments, especially foreign arbitral awards, of states that are made in any contracting state to both the Convention on the Recognition and Enforcement of Foreign Arbitral Awards ∗ Yomi Olukolu, LLM, MPhil, lecturer, Department of Jurisprudence & International Law, Faculty of Law, University of Lagos, Akoka, Nigeria. kolyom@yahoo.com 1 I. O. Agbede, Themes on Conflicts of Law, Shaneson (1989). 2 CAP 175, Laws of the Federation of Nigeria and Lagos, 1958 (a colonial statute in Nigeria which was originally enacted as LN 8, of 1922 and is still in force as an enabling statute). 3 See section 1, 1958 Ordinance. 4 CAP F35, Laws of the Federation of Nigeria, 2004 (originally enacted as LN 56 in 1961). 5 See section 3, 2004 Act. 6 New York, 10 June 158.

International Comity in American Law

International comity is one of the principal foundations of U.S. foreign relations law. The doctrines of American law that mediate the relationship between the U.S. legal system and those of other nations are nearly all manifestations of international comity — from the conflict of laws to the presumption against extraterritoriality; from the recognition of foreign judgments to doctrines limiting adjudicative jurisdiction in international cases; and from a foreign government’s privilege of bringing suit in the U.S. courts to the doctrines of foreign sovereign immunity. Yet international comity remains poorly understood. This article provides the first comprehensive account of international comity in American law. It has three goals: (1) to offer a better definition of international comity and an analytic framework for thinking about its manifestations in American law; (2) to explain the relationship between international comity and international law; and (3) to challenge two widespread myths — that international comity doctrines must take the form of standards rather than rules and that international comity determinations should be left to the executive branch.

Recognition and enforcement of judgments in civil and commercial matters in the Brussels I Recast and some lessons from it and the recent Hague Conventions for the Hague Judgments Project

This article looks at the rules on the recognition and enforcement of civil and commercial judgments in the EU and internationally. It provides a detailed description of the procedure for recognition (if requested) and enforcement introduced by the new Brussels I in January 2015 and compares this with the previous procedure. The article then seeks to provide suitable recommendations for the procedure on recognition and enforcement in a future Hague Judgments Convention. In order to inform these recommendations, the article analyses the current procedures in Brussels I, the Hague Choice of Court Convention and the Hague Maintenance Convention 2007. The authors argue that the substantive grounds for non-recognition/enforcement (ie those unrelated to the jurisdictional basis of the original judgment) could be reduced to manifestly contrary to public policy and irreconcilable judgments. It would also be helpful if there were minimum harmonisation of the enforcement procedure so that national and international grounds for non-enforcement could be considered in the same set of proceedings.

内地与香港特区民商事判决承认与执行问题分析

内地与香港特别行政区进行的民商事判决承认与执行活动，属于一国之下的区际司法协助问题，不宜参照“国际”做法，也不应墨守成规。随着社会的发展，两地经贸关系的密切交往，各法域的法律制度和传统也会发生改革和变化。要使得判决在两地自由流动，就要求对所承认和执行法院判决的范围更广，对所承认和执行法院判决的条件更为宽松。 The recognition and enforcement of civil and commercial case judgments between Hong Kong and the Mainland is the national interregion judicial assistance. It should not be taken into account in the way of international recognition and enforcement of judgments and stick to convention. With the development of society and trade communication between Hong Kong and the Mainland, the legal system and tradition in the two legal districts have been greatly changed. For the free move-ment in civil judgments, the applicable scope and condition in the recognition and enforcement of judgments between Hong Kong and the Mainland should be larger and not rigorous.

Huang, Jie: Interregional Recognition and Enforcement of Civil and Commercial Judgments. Lessons for China from US and EU Law. Oxford u.a. 2014

Huang, Jie: Interregional Recognition and Enforcement of Civil and Commercial Judgments. Lessons for China from US and EU Law. Oxford u.a. 2014

Employees' Intellectual Property Rights in Switzerland

In today’s knowledge-based global economy, most inventions are made by employed persons through their employers’ research and development activities. However, methods of establishing rights over an employee’s intellectual property assets are relatively uncertain in the absence of international solutions. Given that increasingly more businesses establish entities in different countries and more employees co-operate across borders, it becomes essential for companies to be able to establish the conditions under which ownership subsists in intellectual property created in employment relationships in various countries. This comparative law publication describes and analyses employers’ acquisition of employees’ intellectual property rights, first in general and then in depth as manifested in 33 jurisdictions worldwide. The book was developed within the framework of the International Association for the Protection of Intellectual Property (AIPPI), a non-affiliated, non-profit organization dedicated to improving and promoting the protection of intellectual property at both national and international levels. Among the issues and topics covered by the 49 distinguished contributors are the following: ; different approaches in different law systems; choice of law for contracts; harmonizing international jurisdiction rules; conditions for recognition and enforcement of foreign judgments; employees’ rights in copyright, semiconductor chips, inventions, designs, plant varieties, and utility models on a country-by-country basis; employee remuneration right; parties’ duty to inform; and instances for disputes. With its wealth of information on an increasingly important subject for practitioners in every jurisdiction, this book is sure to be put to constant use by corporate lawyers and in-house counsel everywhere. It is also exceptionally valuable as a thorough resource for academics and researchers interested in the international harmonization of intellectual property law.

Private International Law Bibliography 2014: U.S. and Foreign Sources in English

This bibliography covers private international law or conflict of laws in a broad sense. In particular, it covers judicial or adjudicatory jurisdiction, prescriptive jurisdiction, choice of forum, choice of law, federal-state conflicts, recognition and enforcement of sister-state and foreign-country judgments, extraterritoriality, arbitration and related topics. It includes books and law journal articles published in English during 2014, or earlier but not included in the 2013 bibliography. It does not include articles or essays published in books (as opposed to journals), or writings appearing only in electronic form.

La unificación del Derecho de familia europeo: ¿quimera o realidad?

Este estudio pretende analizar la evolución de la unificación o armonización del Derecho de familia europeo a lo largo de estos años, para tratar de concluir si realmente es posible o no conseguirla, y en su caso qué pasos y avances es necesario alcanzar.Partiendo de las iniciales dificultades que la propia materia conlleva para su homogeneización, se examina cómo se está llevando a cabo, tanto en el aspecto formal o procedimental de competencia, reconocimiento y ejecución de resoluciones, como en el aspecto material o sustantivo en materia de familia. Para ello, se estudian tanto los Reglamentos comunitarios, como los principios comunes europeos en Derecho de familia, y las opiniones doctrinales más relevantes en torno a este difícil camino de la aproximación de las legislaciones.