Recognition Of Judgments Research Articles

Navigating the New Era: the emergence of China’s international commercial courts

ABSTRACT Alongside China’s increasing efforts to update its legal regime facilitating the ‘One Belt and One Road Initiative’ and strengthening foreign-related rule of law, China’s Supreme People’s Court (SPC) and some lower courts are playing a vital role in modernizing international commercial litigation. The SPC, leading lower Chinese courts, has been zealous in reforming international commercial litigation, and piece-meal measures were adopted over the years. The most salient step is the establishment of international commercial courts (CICCs), accompanied by the use of such mechanisms as anti-suit injunctions, forum non conveniens, and de jure reciprocity favouring foreign judgments recognition in China. These judicial efforts and the expected moves alike will definitely contribute a lot to internationalization of China’s international civil procedure towards the global mainstream. However, the systemic deep judicial and legislative reforms are both needed for China’s international commercial litigation to go global and moreover, the process shall be conducted with an eye towards keeping it current and enhancing its relevance to the realities of today’s dispute resolution world.

„Brexito“ įtaka tarptautiniam bylinėjimuisi

By concentrating on the few recognised instruments of private international law, the article analyses problems in international commercial dispute resolution arising from Brexit. In particular, the paper deals with the relevance of, firstly, the 2007 Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; secondly, the 2005 Hague Convention on Choice of Court Agreements; and, thirdly, the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, all in the context of Brexit. Contextual analysis of each of the said instruments pays particular attention to the challenges specific to each of them. Therefore, for example, the article discusses the EU’s arguments in relation to its refusal to allow the United Kingdom to join the aforementioned 2007 Lugano Convention as well as varying perspectives on the moment when the 2005 Hague Convention begins to apply to the United Kingdom. Finally, the paper discusses the relevance of the recent 2019 Hague Convention in the context of Brexit.

The domestic jurisdiction and the applicable law in the provision of electronic services by entrepreneurs in the Member States of the European Union and in the United Kingdom

The main purpose of this article is to answer the question of how, in accordance with currently applicable law, to correctly determine the domestic jurisdiction and the applicable law in the event of pursuing claims for non-performance or improper performance of the obligation during providing electronic services by entrepreneurs in the Member States of the European Union and the United Kingdom. This essay uses a division into contractual relations between entrepreneurs and contractual relations between entrepreneurs and consumers, which has its justification in connection with the subjective scope of the relevant regulations regulating this issue. This study focuses on discussing the regulations contained in Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), Regulation (EC) No. 864 of the European Parliament and of the Council /2007 of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) and Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil matters and trade (Brussels I). The thesis of the article is the assumption that the current regulations satisfactorily take into account the interests of consumers as the weaker party to the legal relationship. The possibility of choosing the national jurisdiction and the applicable law in the case of contracts between entrepreneurs for the provision of electronic services is positive and corresponds well with the principle of freedom of economic activity and the principle of freedom to conclude contracts was evaluated positively. This solution corresponds well with the principle of freedom of economic activity and the principle of freedom to conclude contracts. This article also refers to the jurisprudence of the European and Polish courts regarding the issue of establishing domestic jurisdiction and the choice of applicable law. The study also discusses notions relevant to its subject, such as national jurisdiction, jurisdiction of the court, directing activities, providing electronic services.

Practical application of the reciprocity principle in the recognition and enforcement of foreign judgments in civil and commercial matters in Vietnam

The reciprocity principle was first introduced in Vietnam by Decree 83/1998 to allow for the recognition of foreign non-executionary judgments, decisions on family and marriage matters in Vietnam. It was then adapted in the first Civil Procedure Code in 2004 and was later modified in the current Civil Procedure Code for the purpose of recognition and enforcement of foreign judgments from non-treaty countries. This article examines the practical application of this reciprocity principle in Vietnamese courts by analysing cases in which they have recognised or denied recognition to foreign judgments in civil and commercial matters (that is, non-family matters), as well as a recent development in the Supreme Court’s Resolution Draft on guidance on the recognition and enforcement of foreign judgments, which adopts a presumed reciprocity approach. The article concludes that the courts have not applied the reciprocity principle in a consistent manner. The resolution for this current problem is for the presumed reciprocity approach to be promulgated soon to facilitate a uniform application in the local courts.

Developing Chinese Private International Law for Transnational Civil and Commercial Litigation: The 2024 New Chinese Civil Procedure Law

On 1 September 2023, the Standing Committee of the National People’s Congress amended the Chinese Civil Procedure Law which will come into effect on 1 January 2024 (‘the 2024 CPL’). The 2024 CPL brings significant changes to the entire procedure of transnational civil and commercial litigation in China covering jurisdiction, service of process, the taking of evidence abroad, and the recognition and enforcement of foreign judgments. It is critical for foreign states, courts, and parties which conduct business in China to understand this new legal development and to prepare for the changes. Adopting comparative-law and empirical research methods, this commentary aims to explain the new provisions for transnational civil litigation in the 2024 CPL and how they may be implemented in practice.

Post-Brexit Recognition and Enforcement of Judgements: Problems and Solutions

There is a need for the UK and EU to continue mutual assistance in criminal matters. As a Member State, mutual assistance in criminal matters between the UK and EU was primarily governed by an EU convention. This convention builds on existing Council of Europe conventions on mutual criminal assistance. With the UK now outside the EU’s data protection architecture, this may pose a significant hurdle for future cooperation. This article critically analyses the need for a data adequacy decision from the EU for the UK to engage in mutual assistance in criminal matters post-Brexit. To reach a conclusion, the article is set out over three substantive areas considering: mutual assistance and data protection law as it applies to EU Member States; the law underpinning adequacy decisions; and future legal developments post-Brexit. Specific examples of data transfers and the effect of the Trade and Cooperation Agreement are compared and contrasted to adequacy decisions. While provisions of the Trade and Cooperation Agreement and EU Law Enforcement Directive provide some assurances, the article recommends that a data adequacy decision made under the Directive is pursued.

Public Policy a Hurdle Under the Indian Arbitration Law: Critical Analysis

The traditional role of public policy was to limit the scope offoreign law, recognition, and enforcement of foreign judgments or awards. Sometimes domestic courts use this doctrine to strike down the foreign arbitral awards. Though the disputing parties are free to choose applicable laws in international commercial arbitration, when it comes to the recognition and enforcement of an award they rely on the domestic laws and courts. If the court thinks that an award before them deals with a matter violates public policy, the court may refuse to recognise and enforce it. There is no uniformity in public policy notion among the states, it has been interpreted in different ways indifferent jurisdictions so it becomes very difficult to say which award will be allowed and which will violate the principle. Therefore, it becomes a big hurdle in the way of international commercial arbitration. To deal with this issue Indian judiciary took a step to define it and limit the scope doctrine of publicpolicy. Finally, in 2015 Indian Parliament amended the Arbitration and Conciliation Act, 1996, and clarified the term ‘public policy’.

THE EU PRIVATE INTERNATIONAL LAW FRAMEWORK FOR THE ACKNOWLEDGMENT AND EXECUTION OF JUDGEMENTS IN EMPLOYMENT MATTERS

This study seeks to examine the recognition and enforcement of EU employment judgements under private international law (PIL). The objectives are to examine the legal framework regulating the recognition and enforceability of employment decisions and to assess the influence of Brexit on EU-UK employment-related rulings. The methodology includes a comprehensive review of applicable EU legislation, case law, and employment-related regulations. This will reveal the conditions for recognising and enforcing employment decisions, the function of the EU Regulation on jurisdiction and judgements, and the scope of the EU Directive on judgement enforcement. The findings will elucidate the complexities and difficulties of PIL in employment matters, including the implications of Brexit. They will promote legal certainty and safeguard employee rights in the EU. Policymakers, legal practitioners, and stakeholders in cross-border employment disputes will gain valuable insights. Based on the results of future research, legal framework reforms may be proposed. Comparative studies of PIL frameworks in other jurisdictions could contribute to the expansion of employment law knowledge internationally.

Ex-post impact evaluation of PPP projects from multiple stakeholder perspectives: a toll road case

PurposeThis study aims to develop an ex-post impact evaluation method for public-private partnership projects (PPP) that addresses one of its main difficulties: the multiplicity of perspectives and stakeholders that exist in these projects.Design/methodology/approachThis study first developed a conceptual evaluation framework called ‘Project Success Evaluation Pyramid Model’ (PSEPM) that was designed using a Design Science approach. Second, an impact evaluation method was designed based on the PSEPM. This evaluation method was tested and refined using three PPP projects. This article presents the refined conceptual model PSEPM, the evaluation method and one of the three tests: the PPP toll road.FindingsThe impact evaluation method describes how to evaluate the impact of an existing mega project from the perspective of multiple stakeholders and isolate the impact of the procurement method. Its application in practice is demonstrated with a PPP toll road project in Chile, in which 11 stakeholders were identified. Issues such as city segregation, deficient business model, the relevance of infrastructure availability, and deficient service-fee strategy were identified in the project. The evaluation method provides a judgement about the use of the PPP procurement method and about the overall impact of the project, reconciling the stakeholder perspectives.Originality/valueThe use of this approach could give greater clarity and legitimacy to the discussion over the use of PPPs by evaluating existing projects beyond the use of traditional time and cost measurements. Its originality is the systematic recognition and identification of stakeholder motives, purposes, and judgements over a project.

China’s recognition and enforcement of foreign securities judgments against overseas-listed Chinese companies

Abstract Over the past decades, a growing number of Chinese companies have been listed overseas, notably in the USA and Hong Kong. They are subject to the securities regulation of listing places and can be sued thereunder against their securities misconduct. As overseas-listed Chinese companies usually have their main assets located in China, it is important that Chinese courts recognize and enforce foreign securities judgments. However, there are many difficulties in this area, which undermine the efficacy of the regulation of cross-border securities transactions. In quest of solutions, this article assesses the possibility of suing Chinese companies in the offshore financial centres where they are incorporated, finding that there would be similar issues with judgment enforcement in China. It also examines the viability of using arbitration as an alternative, arguing that arbitration may only supplement, rather than substituting, court litigation for resolving securities disputes. China should consider signing a bilateral treaty with the USA, clarifying the principle of reciprocity, and ratifying the 2005 Hague Choice of Court Convention and even the 2019 Hague Judgment Convention. Hong Kong is also advised to expand its current judgment recognition arrangement with Mainland China to cover securities judgments and join the relevant international conventions.

New Aspects in the Regulation of International Divorce: Council Regulation (EU) 2019/1111 of 25th June 2019 on Jurisdiction, Recognition, and Enforcement of Judgments in Matrimonial Matters and Parental Responsibility and on International Child Abduction

A reform that refers to two essential directions in civil matters was required along with the application of the principle of free movement in a modern and flexible manner. The amendment of Regulation (EC) no. 2201/2003 was carried out in the direction of divorce, legal separation, and annulment of marriage. The second direction considers the assignment, exercise, delegation and total or partial withdrawal of parental responsibility. The amending regulation clarifies the right of the child to be given the opportunity to express his opinion in the proceedings of which he is the object and contains provisions that complement the Hague Convention of October 25, 1980 on the civil aspects of international child abduction in relations between states EU member.

Extra-territoriality and the UK Insolvency Act 1986

AbstractThis paper considers whether UK corporate insolvency law and the UK Insolvency Act 1986 have extra-territorial effect post-Brexit, and whether – and to what extent – it is for the courts or the legislature to extend any extra-territorial effect. It does not deal with ‘inward recognition’, ie the recognition of foreign judgments and orders in the UK.Brexit has left something of a vacuum and provisions which might otherwise have applied extra-territorially, at least within the EU, may now have been deprived completely of extra-territorial effect. But all is not lost and Brexit here presents opportunities. There is room for clarifying that particular provisions which might otherwise have discriminated between EU application and application vis-à-vis the rest of the world can now be given a uniform global interpretation. Courts should, however, proceed incrementally in extending the extra-territorial scope of UK corporate insolvency law.A bolder reform would be to enact legislation that specifies the exact extent to which the UK Insolvency Act applies extra-territorially. Legislation obviously depends on parliamentary time and requires detailed drafting but also provides the opportunity for the UK to showcase that it remains at the forefront of international insolvency developments.

Recognition of foreign decrees of divorce in the German legal system

INTRODUCTION. The object of the research consists in the specific procedure of the recognition of foreign decrees of divorce which exists in the German law. The actuality of the object of the research is confirmed by keeping of this procedure during many decades, as well as nowadays, in regard of the recent reform of the law of the European Union about the mutual recognition of decisions in matrimonial matters.MATERIALS AND METHODS. The article is based on the Act of the Federal Republic of Germany of 2009 on Proceedings in Family Matters and on the Family Law Reform Act of the Federal Republic of Germany of 1961, as well as both on the case law to the application of these Acts and on the German legal doctrine which analyzes it. The first Act is and the last Act was before the legal basis of that procedure of recognition. To achieve the results were applied the general and specific scientific methods, in particular the method of comparative legal study.RESEARCH RESULTS. The research result consists in the presentation of the analyzed procedure of recognition of foreign decrees of divorce in German law. It is considered that this procedure is constructed after the model of the recognition and enforcement of foreign judgements. Until the foreign decree of divorce is not recognized in the framework of this procedure, this decree is completely ignored by the German authorities, that means the spouses divorced by the foreign court remain spouses from the point of view of German law with all the ensuing consequences in the field of property and non-property rights both between each other and in the relations with the thirds parties. This procedure is realized by the regional administration of justice whose decision may be a subject matter of scrutiny by the appellate court. Although the delegation of this power to the executive raises by some authors the doubts about its constitutionality, the case law proceeds from the legitimacy of this competence.DISCUSSION AND CONCLUSIONS. The German concept of the obligatory preliminary recognition of foreign decrees of divorce is the equal alternative to the concept of automatic recognition of foreign judgements ruled on the status and legal capacity which exists in Russian law.

A STUDY ON THE «ONE-STOP» DIVERSIFIED INTERNATIONAL COMMERCIAL DISPUTE RESOLUTION PLATFORM OF THE CICC IN THE CONTEXT OF THE BELT AND ROAD INITIATIVE

China has proposed to establish a «One-Stop» diversified international commercial dispute resolution platform (hereinafter «One-Stop» platform) in the CICC that effectively combines litigation, mediation and arbitration, which is one of the innovative measures of the CICC. However, the mechanism to effectively combine these three dispute resolution methods in the «One-Stop» platform is insufficient, the international expert committee has not been able to fully play its role, and there are difficulties in the recognition and enforcement of settlement agreements, arbitration awards, and court judgments after dispute resolution. In response to the above problems, the procedural mechanism of the «One-Stop» platform should be improved, the duties of the expert committee should be clarified, and China should consider introducing more diversified international treaties and improving domestic legislation so that the operation of the «One-Stop» dispute resolution platform can be supported by law. With such legal support, the operation of the «One-Stop» platform can provide public legal service products that are more in line with international needs.

«Фактор доверия» как основное препятствие признания и исполнения иностранных судебных решений

September 1, 2023 is the date of entry into force of the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (adopted on July 2, 2019 as part of the 22nd session of the Hague Conference on Private International Law). Russia signed the Convention on November 17, 2021. Despite the fact that in the current geopolitical situation one could hardly expect this Convention to be ratified in the short or medium term, the discussion on the preparation and conditions for ratification, the changes in legislation necessary for its use, the consequences for law enforcement practicestill appears to be relevant. The current principles of Russian law and the law of other countries in relation to the recognition and enforcement of foreign court judgments should be analysed. To this end, first of all, the legal basis for the recognition of foreign court judgments in Russia prior to the ratification of the Hague Convention in 2019 should be presented and the approaches of private international law and the law of other countries to the recognition of foreign court judgments should be analysed. If the approach to the ratification of the Сonvention persists, the issue of amending the Civil Procedure and Arbitration Procedure Codes of the Russian Federation will arise. The ratification process is undoubtedly affected by Western sanctions against Russia and Russian businesses and the loss of mutual trust. Trust is a key factor when considering the recognition and enforcement of foreign judgments.

Revisiting the Framework for Compulsory Licensing of Patents in the European Union – Reflections on the European Commission’s Initiative

Abstract Within the scope of its initiative on ‘Compulsory Licensing in the EU’,8 the European Commission launched a call for evidence on 1 April 2022 and a public consultation on 7 July 2022 with the aim of gathering views from stakeholders. The objective of this initiative is to explore the possibility of revising the framework for compulsory licensing in the EU to make it more ‘adequately prepared and coordinated to tackle future crises’.9 The authors of this position paper welcome the Commission’s attempt to reinvigorate the public discourse on this important subject. Depending on the issue to be addressed and the extent of the Commission’s willingness to reform, different regulatory approaches are conceivable. Subject to compatibility with the principles of subsidiarity and proportionality, these include: Rather than making concrete recommendations on the regulatory approach, this paper addresses selected aspects by way of a preliminary, non-exhaustive note on: the proposed reform’s scope and the grounds for a compulsory licence; the requirements of prior negotiation and licensing failure; government use; procedural matters; compulsory licences for patent applications and products; the relation with other regulations and sui generis regimes (i.e. trade secret protection, regulatory data protection and supplementary protection certificates); the concept of adequate remuneration; compulsory licences for European patents with unitary effect; and the exhaustion of products placed on the market under a compulsory licence. – soft law measures, such as guidelines and recommendations; – harmonisation of national laws (substantive and/or procedural);10 – judicial cooperation (i.e. mutual recognition of judgments and of decisions in extrajudicial cases);11 – centralisation of granting and/or judicial review competences; – creation of a supranational compulsory licence; – or any combination thereof.

2022년 민사소송법 중요 판례 평석

In 2022, the Supreme Court issued several significant precedents in Civil Procedure Law. This article highlights seven key precedents relating to the Civil Procedure Law that were issued in 2022. Some of these precedents also touch on other legal areas such as civil law, commercial law, and civil enforcement law, but they were considered within the context of civil litigation legal issues. The seven precedents that are discussed in this article include: 1) the recognition and enforcement of foreign judgments that mandate double compensation; 2) the disclaimer of a lawsuit and the suspension of prescription following the invalidation of a contract name trust; 4) the criteria for determining the eligibility of parties in a lawsuit for the return of co-owned property; and 7) others. Additionally, 14 cases were summarized and classified separately based on the other precedents of the Civil Procedure Act issued in 2022.
 While this article only provides a brief overview of these precedents, it is intended to be a useful resource for future studies on the 2022 civil procedure law cases.

Conference Summary of the Symposium on Foreign-Related Commercial and Maritime Trials of Courts Nationwide (Sup. People's Ct. China)

China's foreign judgment recognition and enforcement regime has been the least developed part of its private international law, as opposed to jurisdiction and choice of law. The regime remained almost immutable over three decades from the 1980s, even though the civil procedure law that established it went through several revisions. Under the present Civil Procedure Law (CPL), the regime consists of rules regarding qualified applicants, legal bases, and refusal grounds for recognition and enforcement. According to these rules, the creditor of an effective foreign judgment or the foreign court rendering it may seek its recognition and enforcement before a Chinese court. The Chinese court shall review the application based on international treaties China has concluded or acceded to, or the principle of reciprocity. If the effective foreign judgment has not proven to contravene the fundamental principles of Chinese laws and the sovereignty, security, and public social interests of the state, it will be recognized and enforced; otherwise, it will not receive recognition and enforcement.

The interplay of EU Regulation 2019/1111 with the 1980 Hague Convention in matters of child abduction

Even if Regulation 2019/1111 have a quite limited impact on the EU system of jurisdictional competence and of recognition and enforcement of judgments in matters of parental responsibility, it introduced several novelties with regard to the section devoted to child abduction matters. The adoption of those new provisions suggests to investigate whether this also led to a change in the approach of the Regulation as towards the 1980 Hague Convention. The paper attempts to make it clear that the reference to complementarity can better explain the interplay between the two instruments and that, even more than in the past, the Regulation is not aimed at setting aside the operation of the Convention, but rather at providing special rules for its implementation within the European judicial area.

Industrial Property Arbitration in Turkey: An Analysis in Comparison with Swiss Law

Abstract Given the difficulties in international intellectual property litigation, such as jurisdictional issues, choice of law, and recognition and enforcement of foreign judgments, arbitration and other dispute resolution mechanisms may be better tailored to resolve intellectual property disputes. Under Swiss law, these disputes are arbitrable to such an extent that arbitral tribunals seated in Switzerland and state courts are equally competent to rule on the validity of industrial property rights. This paper assesses the arbitrability of industrial property disputes under Turkish law, under which there is neither a specific statutory provision nor an official decision regarding their arbitrability. The paper concludes that disputes arising from industrial property rights should be considered arbitrable under Turkish law, provided that for disputes over the validity of industrial property rights, the arbitral tribunal decides on the industrial property rights’ enforceability and the arbitral award has an inter partes effect. Although submitting industrial property disputes, especially those on employee inventions, to arbitration may in certain cases not be accepted due to the intention to protect the weaker party, employees are obliged to resort to arbitration for the resolution of their employee invention disputes under Turkish law. This paper also examines the resolution of employee invention disputes by way of arbitration from a comparative perspective.