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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the order of the provisional insolvency administration on the assets of NIKI Luftfahrt GmbH (under Austrian law), repealed the decision of the District Court of Charlottenburg (see here) as it finds that international jurisdiction lies with Austrian and not German courts.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. Read 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.
Mutual Recognition and Enforcement of Civil and Commercial Judgments among China (PRC), Japan and South Korea
Written by Dr. Wenliang Zhang, Lecturer in the Law School of Renmin U, China (PRC)
Against the lasting global efforts to address the issue of recognition and enforcement of civil and commercial judgments (“REJ”), some scholars from Mainland China, Japan and South Korea echoed from a regional level, and convened for a seminar on “Recognition and Enforcement of Judgments between China, Japan and South Korea in the New Era”. The seminar was held in School of Law of Renmin University of China on December 19, 2017 and the participants were involved in discussing in depth the status quo and the ways out in relation to the enduring REJ dilemma between the three jurisdictions, especially that between China and Japan. Read more
News
First issue of Lloyd’s Maritime and Commercial Law Quarterly for 2023
The first issue of Lloyd’s Maritime and Commercial Law Quarterly for 2023 was just published today. It contains the following articles, case notes and book review on private international law:
S Matos, “Jurisdiction, Admissibility and Escalating Dispute Resolution Agreements”
M Phua and M Chan, “The Law Governing whether an Arbitration Agreement binds a Non-party”
Lord Hodge, “The Rule of Law, the Courts and the British Economy”
Rt Hon Sir Geoffrey Vos MR, “The Economic Value of English Law in Relation to DLT and Digital Assets”
A new article on private international law was published open-access earlier this week in The Cambridge Law Journal
on: ‘JUSTIFYING CONCURRENT CLAIMS IN PRIVATE INTERNATIONAL LAW‘.
Written by Sagi Peari and Marcus Teo, the article analyses whether claimants can choose between contract and tort claims arising on the same facts with different jurisdictional and/or choice-of-law consequences. While domestic legal systems generally recognise a concurrent liability, commentators object that its extension to private international law would be unprincipled and would threaten the field’s values. This, however, contrasts with the position in common law and under EU Regulations, where concurrent claims are generally recognised with only narrow limits. This article justifies concurrent claims in private international law, arguing that the same premises supporting concurrent liability in domestic law exist in private international law and that no field-unique concerns foreclose it.
AMEDIP’s upcoming webinar: child support cases between Mexico and the United States of America – 23 February 2023 (at 14:30 Mexico City time)
The Mexican Academy of Private International and Comparative Law (AMEDIP) is holding a webinar on Thursday 23 February 2023 at 14:30 (Mexico City time – CST), 21:30 (CET time). The topic of the webinar is the Right to Child Support within the international framework – Mexico and the United States of America and will be presented by Claudia Sierra Martínez of the Mexican Ministry of Foreign Affairs (SRE) (in Spanish).
By way of context, please note that Mexico is not yet a party to the 2007 HCCH Child Support Convention but the United States is. On the other hand, Mexico is a party to the Inter-American Convention on Support Obligations and the United Nations Convention on the Recovery Abroad of Maintenance but the United States is not. Faced with this conundrum and given the great number of Child Support cases between these two countries, other solutions have been made available (think for example of US domestic law / bilateral practices).
The details of the webinar are:
Link: https://us02web.zoom.us/j/87996362538?pwd=QjNuZThqNUpTVHQ3cFZaZ1BXZ0YzQT09
Meeting ID: 879 9636 2538
Password: AMEDIP
Participation is free of charge.
This event will also be streamed live: https://www.facebook.com/AmedipMX