Italian Supreme Court rules on recognition and enforcement of a foreign judgment even if preceded by a worldwide freezing injunction

Written by Marco Farina, Italian lawyer, PhD in Civil Procedural Law at the University La Sapienza of Rome – Adjunct Professor of Civil Procedural Law at the University LUISS of Rome

In a judgment rendered on 16 September 2021, the Italian Supreme Court (Corte di Cassazione) reversed a decision from the Court of Appeal of Rome, which had denied recognition and enforcement of a monetary judgment issued by the Royal Court of Guernsey, due to a breach of the fundamental rights of defence allegedly occurred in the proceedings.

The Court of Appeal of Rome reasoned under Article 64 (b), of the Italian Act on Private International Law (Law 31 May 1995 no. 218), which provides, inter alia, that a foreign judgment may be not recognized and enforced if fundamental rights of defence have been breached in the foreign proceedings.

Brazilian Superior Court: foreign judgement on child support has to be enforced despite the excessive amount resulting from the economic pattern of the country of origin

By Julian Henrique Dias Rodrigues

 

The Brazilian Superior Court of Justice reinforced the understanding that a foreign judgment that sets the amount of child support must be enforced even if the high economic-financial standard of the country of origin gives rise to an excessive amount, when compared to the national standards.

 

The case concerns the enforcement in Brazil of a decision from the District Court of Bludenz, in the Republic of Austria, against a debtor residing in Brazil.

The Austrian court set the monthly amount of maintenance at EUR 290.00 and determined that the amounts in arrears totaled EUR 35,090.00.

Book Release: EUFams II Final Study

Thomas Pfeiffer/Quincy C. Lobach/Tobias Rapp (Eds.), “Facilitating Cross-Border Family Life – Towards a Common European Understanding”, Heidelberg University Publishing 2021 (link)

The EUFams II consortium has just released the project’s Final Study. The volume contains the papers presented at the project’s Final Conference. The contributors were invited to present historical developments, discuss the status quo, and draw the lines along which European family and succession law may develop. The authors hope to inspire the readership and the scientific community at large to engage in further research along and across these lines.

The book is available both online (open access) as well as in print (link). Its contributors are (in alphabetical order): Marlene Brosch, Laura Carballo Pineiro, Diletta Danieli, Rosario Espinosa Calabuig, Ivana Kunda, Quincy C. Lobach, Cristina M. Mariottini, Ulf Maunsbach, Nicolo Nisi, Cinzia Peraro, Thomas Pfeiffer, Paula Poretti, Tobias Rapp, Lenka Valkova, Ilaria Viarengo, Francesca Villata, Marcel Zühlsdorff, and Mirela Zupan.

The European Union is preparing an initiative to enact the implementing acts establishing the decentralised IT system to be used for cross-border service of documents and cross-border taking of evidence

This week the European Union has given notice to all stakeholders that it is preparing an initiative relating to justice and fundamental rights, the purpose of which is to enact the implementing acts establishing the decentralised IT system to be used for cross-border service of documents and cross-border taking of evidence. Click here and here.

This is in accordance with the Regulation (EU) 2020/1784 of the European Parliament and of the Council of 25 November 2020 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents) (recast) and the Regulation (EU) 2020/1783 of the European Parliament and of the Council of 25 November 2020 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters (taking of evidence) (recast).

As stated in the notifications, the implementing acts will set out the technical specifications of the methods of communication and communication protocols, security objectives and relevant technical measures, minimum availability objectives and the establishment of a steering committee.

It is planned for the first quarter of 2022.

Karnataka High Court (India) Frames Comprehensive Guidelines to Ascertain ‘Passing Off’ in Intellectual Property Disputes Involving the Application of Indian Law

Vacating the interim injunction that was granted earlier this year to prevent CG Corp. Global – a Nepal-based company, registered in India from manufacturing and selling its instant noodles under the name of Wai Wai X-Press Noodles Majedar Masala in a passing-off action by ITC Ltd, the Karnataka High Court formulated detailed guidelines to ascertain the circumstances in which there will be a passing-off of a trademark and an infringement of copyright under Indian law.[1] The Karnataka High Court was exercising its appellate jurisdiction under Section 13(1A) of the Commercial Courts, Commercial Division and Commercial Appellate Division of High Courts Act 2015 (CCA) that authorizes the creation of commercial courts in India. These courts are equally competent to adjudicate domestic and international disputes on matters that fall within the purview of the Act. The scope of the legislation is vast and includes, inter alia, disputes concerning intellectual property rights such as trademarks, copyright, patents, designs or geographical indications – which will be considered of a commercial nature if the value of the subject matter is more than INR 3,00,000. The Act confers jurisdiction over the Commercial Division of the High Courts – as a court of the first instance – whenever the dispute arises within the local limits of Delhi, Bombay, Calcutta, Madras or Himachal Pradesh. In all other States of India, the commercial courts created at the district level will be competent to adjudicate such matters. The legislation has been promulgated to promote trade and commerce in India by fast-tracking the settlement of such disputes. In matters of intellectual property such as these, the Act confers the Commercial Court or the Commercial Division of the High Court in some states with the exclusive jurisdiction to adjudicate such matters, which were initially within the domain of the District Courts.

The Commercial Appellate Division of the Karnataka High Court was faced with the predicament of whether the defendant, CG Corp, had damaged ITC’s goodwill and reputation by incorporating a similar colour scheme of red and orange in packaging its Wai Wai X-Press Noodles Majedar Masala. As a result, ITC claimed that the defendant’s product was deceptively similar to its Sunfeast Yipee! Magic Masala Noodles and, thus, CG Corp’s act constituted passing-off and an infringement of ITC’s copyright under Indian law.

Rejecting ITC’s contentions, the court formulated a two-pronged formula to ascertain the circumstances in which a defendant could be considered to have passed off a product as that of the claimant – to have violated the latter’s registered trademark. In doing so, the court placed emphasis on the position under English law as emphasized in Payton v Snelling,[2] Lampard; Reckitt & Colman v Borden;[3] and Pasquali Cigarette Co Ltd v Diaconicolas & Capsopolus.[4]

Out Now! Comprehensive commentary on Indian Private International Law by Stellina Jolly and Saloni Khanderia

Published by Hart/Bloomsbury as a part of their Asia-Private International Law Series, this provides an authoritative account of the evolution and application of private international law principles in India in civil, commercial and family matters. Through a structured evaluation of the legislative and judicial decisions, the authors examine the private international law in the Republic and whether it conforms to international standards and best practices as adopted in major jurisdictions such as the European Union, the United Kingdom, the United States, India’s BRICS partners – Brazil, Russia, China and South Africa and other common law systems such as Australia, Canada, New Zealand, and Nepal.

CJEU on provisional/protective measures requested against a public authority (potentially and/or allegedly enjoying some form of immunity) in the case TOTO, C-581/20

Back in September, AG Rantos presented his Opinion in the case TOTO, C-581/20. As reported previously, at the request of the Court, the Opinion confined itself solely to the second preliminary question on the interpretation of Article 35 of the Brussels I bis Regulation.

In its judgment delivered today, the Court addresses all three preliminary questions of the referring court. These questions concern the concept of “civil and commercial matters” in the sense of Article 1(1) of the Brussels I bis Regulation (first preliminary question), subsequent application for provision/protective measures lodged before a court not having jurisdiction as to the substance of the matter (second preliminary question) and EU law- or purely national law- dependent modalities for ordering such measures (third preliminary question).

Read more

7th CPLJ webinar – 21 October 2021

 Comparative Procedural Law and Justice (CPLJ) is a global project of the Max Planck Institute Luxembourg for Procedural Law, with the support of the Luxembourg National Research Fund (019/13946847), involving more than one hundred scholars from all over the world.

CPLJ is envisioned as a comprehensive study of comparative civil procedural law and civil dispute resolution schemes in the contemporary world. It aims at understanding procedural rules in their cultural context, as well as at highlighting workable approaches to the resolution of civil disputes.

In this framework, the Max Planck Institute Luxembourg for Procedural Law will host its 7th CPLJ Webinar on 21 October 2021, 3:00 – 5:30 pm (CEST)

The programme reads as follows:

U.S. Supreme Court Agrees to Decide Procedural Issue in Case Regarding Nazi Stolen Pissarro Work

The federal courts of appeal are split over whether state or federal law governs claims brought under the Foreign Sovereign Immunities Act, which waives sovereign immunity for foreign entities in certain cases. Sometimes, this is an outcome-determinative question.

In the case of Cassirer v. Thyssen-Bornemisza Collection Foundation, the heirs of a Holocaust survivor are seeking to recover a painting by French impressionist Camille Pissarro that was stolen by the Nazis in 1939. The 1897 painting is currently on display in the Thyssen-Bornemisza Museum, a Spanish state museum in Madrid. The U.S. Court of Appeals for the Ninth Circuit ruled against the heirs, saying that federal law called for the application of Spanish law, which allows the holder of stolen property to obtain title through the doctrine of adverse possession. The heirs claim California law, which never allows the holder of stolen property to obtain good title, applies. 

Last week, the U.S. Supreme Court agreed to resolve the question. The pleadings are available on SCOTUSBlog here; more coverage of this interesting issue will follow.

Virtual Workshop (in German) on Oct 5: Jürgen Basedow on tasks and methodological plurality of private international law

On Tuesday, Oct 5, 2021, the Hamburg Max Planck Institute will host its 14th  monthly virtual workshop Current Research in Private International Law at 11:00-12:30. Jürgen Basedow (Max Planck Institute for Comparative and International Private Law) will speak, in German, about the topic
Aufgabe und Methodenvielfalt des Internationalen Privatrechts im Wandel der Gesellschaft

 

The presentation will be followed by open discussion. All are welcome. More information and sign-up here.
If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.