RECOGNITION and
ENFORCEMENT
in
CIVIL and COMMERCIAL
MATTERS
A.A.H. van Hoek 2003
OUTLINE
• Background and content of the Brussels I
Regulation
• Conditions for recognition and enforcement
• Effects of and problems with of recognition
and enforcement
REGULATION 44/2001
IN CONTEXT
The Way to Brussels I
Article 220 EEC-Treaty (293 ECT)
The member states shall, so far as
necessary, enter into negotiations with each
other with a view to securing for the benefit
of their nationals.…. The simplification of
formalities governing the reciprocal
recognition and enforcement of judgments
of courts or tribunals and of arbitral awards.
The Brussels Convention
• 1968: Belgium; France; Germany; Italy;
Luxembourg; The Netherlands
• 1978: Denmark, Ireland, UK
• 1982: Greece
• 1989: Portugal, Spain
The Lugano Convention
1988: EC Member States + EFTA Member
States: Austria, Norway, Sweden, Finland,
Iceland, Switzerland
1997: Austria, Sweden, Finland accede to
Brussels I
2002: Poland accedes to Lugano
The Brussels I Regulation
•
•
•
•
Based on Article 65 EC-Treaty
Community instrument
Reservation of Denmark: recital 21
Special status of overseas territories: Article
68 Reg. jo Article 299 EC-Treaty
Conflicts of Treaties 1
• Application ratione materiae: Article 1
• Territorial application:
– Jurisdiction
– Lis pendens alibi
– Recognition and enforcement
Jurisdiction
• Domicile of defendant:
– Article 2, 3 and 4
– Additional jurisdiction: Articles 5, 6
• Exclusive jurisdiction: Article 22 (16)
• Choice of forum: Article 23 (17)
3 INSTRUMENTS
Regulation/Brussels/Lugano
M-S
(-DK)
OT
DK
EEA
+ Poland
domicile of
defendant
exclusive ground
choice of
forum
Other Inter- and Supranational
Instruments
• Bilateral treaties between member states of
the conventions/regulation
• Multilateral conventions on specific subject
matters: transportation, maintenance
• Bilateral conventions with third countries
• Secundary community legislation: directive
on the posting of workers
Conflicts of Treaties 2
• Priority of EC-law: Article 67
• Bilateral treaties between member states:
Article 69/70: application ratione materiae
• Specific Conventions: Article 71
• Third Countries: Article 72
Article 1
• Civil and commercial matters: C-271/00, C266/01
• Family law issues: case 143/78, C-220/95
• Bankruptcy
• Social security: C-271/00
• Arbitration: C-190/89, C-391/95
CONDITIONS of
RECOGNITION and
ENFORCEMENT
Elements of a Judgment
• Facts: procedure to establish the facts, rules
on evidence
• Law: acceptance of equivalence of norm(s)
applied
• Conclusion: legal reasoning, fair hearing
• Sanction/remedy
Conditions of Recognition and/or
Enforcement
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•
•
•
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•
Jurisdiction
Notice
Fair trial (procedural public policy)
Substantive public policy
Conflicting judgments
(Finality of the judgment/executory force)
Procedure for Recognition and
Enforcement
• Automatic recognition: Article 33
• Exequatur:
– Ex parte initial procedure: Article 41
– Appeal: Article 43 ff
No ex officio refusal of exequatur!
Jurisdiction: Article 35
• No test of jurisdiction by recognizing court
• Exceptions:
– Consumers and insurance
– Exclusive jurisdiction
– ‘Article 4’ conventions
• Jurisdiction is not part of public policy
– Krombach v Bamberski
Notification: Article 34 sub 2
• Default judgment: autonomous
– C-172/91, C-78/95
• In due form: court of origin/international
instruments
– Case 166/80, case 305/88
• Timely: recognizing court
– Case 166/80, case 49/84
• ‘Local remedies’
Public Policy
• Substantive
– Declaratory part – remedy
– Natural justice – public interest rules
• Procedural: Article 6 ECHR
Public Policy (Cont.)
• Manifest breach
• Result in the particular case
• Member state – European Court of Justice
Articles 81/82 EC-Treaty
• Eco Swiss v Benetton C-126/97: Article
81/82 are part of community public policy
• Renault v Maxicar C-38/98: no public
policy for the application of Article 34 sub 1
– Restrictive interpretation?
– Harmonized rule of law
– Common system of adjudication/ interpretation
Article 6 ECHR
• ECtHR: Pellegrini v Italy
• ECJ: Krombach v Bamberski
• Dutch Supreme Court: local remedies
Irreconcilable judgments
• Relationship with lis pendens alibi and
related actions (Articles 27, 28)
• Relationship with res iudicata
• Judgments between
• Same parties
• Entailing legal consequences which are
mutually exclusive
EFFECTS of RECOGNITION
Effects of a Judgment
• Res iudicata effect: the relationship between
parties is determined by the judgment
• Ne bis in idem: parties are estopped to retry
the same issue
• Title for enforcement
Types of Judgments
• Declaratory judgments: facts, law,
appreciation of facts e.g. dismissal of a
claim
• Constitutive judgments: change/create a
legal situation e.g. annullment of a patent
• Condemnatory judgments: contain a
sanction/remedy e.g. damages/restraining
order
Recognition Models
• Assimilation / equal treatment
• Home country control
• Reciprocity / cumulation / public policy
exception
Conflict Rules for Recognition
and Enforcement
• Effects of the judgment = country of origin
– Hofmann v. Krieg, case 145/86
• Enforcement = recognizing country
– Article 22 sub 5
– Article 40
Binding Effect
• Parties: who
• Cause of action: what
– Law + facts
– Collateral estoppel
Enforcement
• Exclusive jurisdiction of court of country of
enforcement Article 22 sub 5
• Payment and other intervening
circumstances: case 145/86, C-267/97
• Remedies: Contempt of court, fines etc
• Time limits
Exequatur
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Parties
Full or partial exequatur
Legal representation
Time limits
Costs
Formalities
Review