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Issue 2011.4 Nederlands Internationaal Privaatrecht

The fourth issue of 2011 of the Dutch journal on Private International Law, Nederlands Internationaal Privaatrecht includes the following articles on Brussels I and abolition of exequatur, the proposal European Arrest Preservation Order, Service of Documents and Intercountry surrogacy:

Xandra Kramer, Abolition of exequatur under the Brussels I Regulation: effecting and protecting rights in the European judicial area, p. 633-641. The abstract reads:

As a consequence of the policy to gradually abolish the exequatur in the EU, the Commission proposal on the Recast of Brussels I envisages the abolition of intermediate proceedings. In line with previous instruments that abolish the exequatur for specific matters or in relation to specific proceedings, the proposal at the same time intends to abolish most grounds to challenge the enforcement. It is submitted that recent instruments and proposals in the area of European civil procedure, including the Brussels I proposal, primarily focus on obtaining and effecting rights by the claimant, sometimes at the expense of the protection of the right to effectively defend oneself. As a way forward, it is viable to abolish the formality of the ex ante declaration of enforceability, while retaining the grounds to challenge the enforcement in the Member State of enforcement.

Bart-Jan van het Kaar, Het Europees bankbeslag en het Nederlands conservatoire derdenbeslag in Europees verband, p. 642-651. The English abstract reads:

This article deals with the international scope of a Dutch third party garnishment order. The scope of a third party garnishment order is in the current situation limited to the territory of the court granting this order (territorial effect). It is not possible to recognise and enforce such an order in accordance with the rules of the Brussels I Regulation. The judgment of the European Court of Justice in the Denilauler case (ECJ 21 May 1980, C-125/79) is a barrier against enforcement. It prevents granting any cross-border effect to a judgment delivered in ex parte proceedings, without the defendant being summoned to appear and the opportunity to be heard on the merits of the case. In most cases garnishment orders are given on a purely ex parte basis, and therefore are barred from enforcement in another member state. There are two recent developments that might change this current situation. Firstly, the European Commission published a Proposal for a European Account Preservation Order (‘EAPO’) to facilitate cross-border debt recovery in civil and commercial matters (COM (2011) 445 final). This proposal introduces harmonised European   proceedings through which a claimant can request the issuance of an EAPO with the aim of preserving and attaching bank accounts held in other member states. Secondly, there is the proposal by the European Commission to change or revise the Brussels I Regulation. In this proposal the Denilauler restriction is removed for ex parte decisions. This is the case for decisions granted by a court having jurisdiction on the substance of the matter (Arts. 2 and 5-23). Both developments put the international scope of a Dutch third party garnishment order into a different light. This paper discusses both proposals in depth and investigates if and to which extent this new set of rules will result in the future possibility for a Dutch court to grant cross-border effect to a garnishment order.

Chr.F. Kroes, Deformalisering van de internationale betekening in een drieslag. The English abstract reads:

In less than two years, the Dutch Supreme Court has handed down four decisions on the service of documents abroad in civil and commercial matters. The first decision concerns the Service Regulation. The Supreme Court finds that the Service Regulation does not apply if, under local rules, service may take place at the offices of the lawyer who was most recently instructed by the defendant. Such service is allowed in the case of opposition and an appeal, both to the Court of Appeal and the Supreme Court. In its second and third judgment, the Supreme Court extended this rule to the Hague Convention on Service. In its fourth judgment, the Supreme Court found that, in the case of service on a foreign defendant at the offices of his (former) lawyer, only the short-term service needs to be observed that applies to domestic service and which is a week, instead of the four weeks that must be observed in case of the application of the Service Regulation or the Hague Convention. These decisions of the Supreme Court certainly make the practitioner’s life somewhat easier, but they are not entirely free of any risks. It remains to be seen whether the judgments of the Supreme Court will stand up to the scrutiny of the European Court of Justice if recognition and enforcement pursuant to the Brussels Regulation would be challenged in a judgment by default against a foreign defendant where service has only taken place in accordance with local rules.

Jinske Verhellen, Intercountry surrogacy: a comment on recent Belgian cases. The abstract reads:

This article has the modest goal of examining five recent Belgian judgments on cross-border surrogacy. In four cases Belgian commissioning parents approached a surrogate mother abroad (California, India and Ukraine) and subsequently asked for recognition of the foreign birth certificates in Belgium. The other case concerned a child that was born in Belgium and thereafter transferred to the Netherlands. On the basis of these cases the article elaborates on the Belgian rules of private international law and the current case-by-case approach of the Belgian judges. It becomes clear that cross-border surrogacy raises complex issues of private international law and child protection. Therefore, there is a pressing need for a more global approach.

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