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NIKI continued
Written by Lukas Schmidt, Research Fellow at the Center for Transnational Commercial Dispute Resolution (TCDR) of the EBS Law School, Wiesbaden, Germany
The Spanish airline Vueling Airlines S.A. is still intending to acquire large parts of the NIKI business. Vueling is part of the European aviation group IAG, which also includes British Airways, Iberia, Aer Lingus and LEVEL. The provisional insolvency administrator of NIKI Luftfahrt GmbH, therefore, will continue to drive forward the sales process. Vueling has provided interim financing of up to € 16.5 million to finance the NIKI business until the closing of the purchase agreement. This funding is only sufficient for a few weeks. (more…)
NIKI, COMI, Air Berlin and Art. 5 EIR recast
Written by Lukas Schmidt, Research Fellow at the Center for Transnational Commercial Dispute Resolution (TCDR) of the EBS Law School, Wiesbaden, Germany.
The Regional Court of Berlin has, on the basis of the immediate appeal against the order of the provisional insolvency administration on the assets of NIKI Luftfahrt GmbH (under Austrian law), repealed the decision of the District Court of Charlottenburg (see here) as it finds that international jurisdiction lies with Austrian and not German courts. In its decision, the regional court has dealt with the definition of international jurisdiction, which is based on the debtor’s centre of main interests (‘COMI’). According to the provisions of the European Insolvency Regulation, that is the place where the debtor usually conducts the administration of its interests and that is ascertainable by third parties. (more…)
Implementation of the EAPO in Greece
By virtue of Article 42 Law 4509/2017, a new provision has been added to the Code of Civil Procedure, bearing the title of the EU Regulation. Article 738 A CCP features 6 paragraphs, which are (partially) fulfilling the duty of the Hellenic Republic under Article 50 EAPO. In brief the provision states the following:
- 1: The competent courts to issue a EAPO are the Justice of the Peace for those disputes falling under its subject matter jurisdiction, and the One Member 1st Instance Court for the remaining disputes. It is noteworthy that the provision does not refer to the court, but to its respective judge, which implies that no oral hearing is needed.
- 2: The application is dismissed, if
- it does not fulfil the requirements stipulated in the Regulation, or if
- the applicant does not state the information provided by Article 8 EAPO, or if
- (s)he does not proceed to the requested amendments or corrections of the application within the time limit set by the Judge.
Notice of dismissal may take place by an e-mail sent to the account of the lawyer who filed the application. E-signature and acknowledgment of receipt are pre-requisites for this form of service.
The applicant may lodge an appeal within 30 days following notification. The hearing follows the rule established under Article 11 EAPO. The competent courts are the ones established under the CCP.
- 3: The debtor enjoys the rights and remedies provided by Articles 33-38 EAPO. Without prejudice to the provisions of the EU Regulation, the special chapter on garnishment proceedings (Articles 712 & 982 et seq. CCP) is to be applied.
- 4: If the EAPO has been issued prior to the initiation of proceedings to the substance of the matter, the latter shall be initiated within 30 days following service to the third-party.
If the applicant failed to do so, the EAPO shall be revoked ipso iure, unless the applicant has served a payment order within the above term.
- 5: Upon finality of the judgment issued on the main proceedings or the payment order mentioned under § 4, the successful EAPO applicant acquires full rights to the claim.
- 6: The liability of the creditor is governed by Article 13 Paras 1 & 2 EAPO. Article 703 CCP (damages against the creditor caused by enforcement against the debtor) is applied analogously.
Some additional remarks related to the Explanatory Report would provide a better insight to the foreign reader.
- There is an explicit reference to the German and Austrian model.
- The placement of the provision (i.e. within the 5th Book of the CCP, on Interim Measures) clarifies the nature of the EAPO as an interim measure, despite its visible connotations to an order, which is regulated in the 4th chapter of the 4th Book, on Special Proceedings. Nevertheless, the explanatory report acknowledges resemblance of the EAPO to a payment order.
- There is no need to provide information on the authority competent to enforce the EAPO, given that the sole person entrusted with execution in Greece is the bailiff.
The initiative taken by the MoJ is more than welcome. However, a follow-up is imperative, given that Article 738 A CCP does not provide all necessary information listed under Article 50 EAPO.
News
The sixth EFFORTS Newsletter is here!
EFFORTS (Towards more EFfective enFORcemenT of claimS in civil and commercial matters within the EU) is an EU-funded project conducted by the University of Milan (coord.), the Max Planck Institute Luxembourg for Procedural Law, the University of Heidelberg, the Free University of Brussels, the University of Zagreb, and the University of Vilnius.
The sixth EFFORTS Newsletter was just released, giving access to up-to-date information about the Project, save-the-dates on forthcoming events, conferences and webinars, and news from the area of international and comparative civil procedural law.
The EFFORTS Reports on national case-law have also been posted: you may follow this link for the Reports on Belgian, French and Luxembourg case-law, respectively. The other reports will be posted in the forthcoming weeks.
Regular updates are also available via the Project’s website, as well as LinkedIn and Facebook pages.
Project JUST-JCOO-AG-2019-881802
With financial support from the Civil Justice Programme of the European Union
EUI Conference on Appellate Review and Rule of Law In International Trade and Investment Law
Tommorow, 20 January 2022, the Department of Law of the European University Institute organizes a Conference on Appellate Review and Rule of Law In International Trade and Investment Law. The event will take place in a hybrid format that may be attended online via zoom or offline in person at the Badia Fiesolana-Refettorio.
The organzizers characterise the purpose of the Conference as follows:
“Do regulatory competition, geopolitical rivalries, climate change, regionalism and plurilateral agreements risk undermining the UN and WTO legal orders and sustainable development objectives? How should the EU respond? This conference aims to create an interactive and targeted discussion on these intricate questions, with presentations by esteemed scholars in international economic law and policy
Why is it that the EU promotes judicialization and appellate review in trade and investment relations while the US government has unilaterally disrupted the appellate review system of the Word Trade Organization and seeks to limit judicial remedies in trade and investment agreements? Is appellate review necessary for protecting rule of law, sustainable development and prevention of trade, investment and climate conflicts? Answers to these questions are influenced by the prevailing conceptions of international economic law. Commercial law conceptions and Anglo-Saxon neo-liberalism often prioritize private autonomy and business-driven arbitration and market regulation. Authoritarian governments tend to prioritize state sovereignty and intergovernmental dispute settlements. European ordo-liberalism emphasizes the need for embedding economic markets into multilevel human and constitutional rights and judicial remedies.
This conference aims to create an interactive and targeted discussion on these intricate questions, with presentations by esteemed scholars in international economic law and policy. The International Economic Law and Policy Working Group is therefore delighted to invite you to join this discussion on Thursday, 20th January 2022 at 14.30 (CET).
Speakers:
Professor Ernst-Ulrich Petersmann, European University Institute,
Professor Fabrizio Marrella, Ca’ Foscari University of Venice,
Dr Maria Laura Marceddu, European University Institute, and
Professor Bernard Hoekman, European University Institute”
This event is open to all. Please register via thefollowing link by Wednesday, 19th January 2022, indicating whether you would like to attend the event in person or online. The Zoom link as well as the participants allowed to attend the event in person will be shared with registered participants prior to the event.”
For the programme and further information on the EUI Conference please consult the attached programme as well as the event’s website.
Save the Date: German Conference for Young Scholars in Private International Law 2023
Following successful conferences in Bonn, Würzburg and Hamburg, please save the date for the 4th German-speaking Conference for Young Scholars in Private International Law, which will take place on 23 and 24 February 2023 at Sigmund Freud University in Vienna.
The theme of the conference will be
Deference to the foreign – empty phrase or guiding principle of private international law?
The organisors explain: “As part of the legal system, rules of private international law are bound by the principles of their national jurisdiction, but they also open up the national system to foreign rules. Is the claim of deference to the foreign merely an empty phrase or, at best, a working hypothesis, or can it serve as a meaningful guiding principle of private international law? Are there tendencies within or across specific areas of private international law to move away from deference to, and towards a general suspicion against, the foreign? To what extent does (mutual) trust become the basis of deference to the foreign in the process of internationalisation and Europeanisation? What, if any, is the relationship between deference to the foreign and the methods of private international law?
We would like to explore these and many other related questions at the 4th German-speaking Conference for Young Scholars in Private International Law. We are inviting contributions from all areas of private international law, including but not limited to contract and tort law, company law, family and succession law as well as international procedural law, international arbitration and uniform law. The written contributions will be published in an edited conference volume. The conference will be held in German, but English presentations are also welcome. The call for papers will be released in spring 2022 and we expect the submission of abstracts until late summer 2022.
We cordially invite all interested scholars to save the date of the conference. Please feel free to contact us with any questions (ipr@sfu.ac.at). Further information on the conference is available at https://tinyurl.com/YoungPIL.
Andreas Engel, Florian Heindler, Katharina Kaesling, Ben Köhler,
Martina Melcher, Bettina Rentsch, Susanna Roßbach, Johannes Ungerer.”
For the German text of the note, please consult the attached pdf: Save-the-date-IPR-2023_DE
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