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Egyptian Court of Cassation on the application of the Hague Service Convention

[The author wishes to thank Justice Hossam Hesham Sadek, Vice President of the Civil and Commercial Chamber of the Court of Cassation, and reporting judge in the case at hand, for granting access to the Supreme Court’s ruling].

1.  Introduction

In a recent ruling (22/05/2017), the Egyptian Court of Cassation tackled with the issue of service of process abroad. The facts of the case were the following: The claimant (and appellant) was an Egyptian Medical Equipment company, situated in Cairo. The respondents and appellees were a Chinese company, with its seat in Nanshan district, Shenzen, the Egyptian General Organization for Import and Export Control, and an Egyptian company, with its seat in Heliopolis, Cairo.

2. Facts and instance ruling

The Appellant filed a lawsuit against the Chinese Company and the Second Appellee at Cairo Court of Appeal, requesting a judgment obliging the First Appellee to pay the amount of ten million Egyptian pounds as monetary and moral compensation resulting from the contract’s termination. The Appellant asserted that it had been assigned as the sole agent of the First Appellee in Egypt, for selling ultrasonic wave devices, and that it was unexpectedly notified by the First Appellee that the contract was terminated.

The first instance court ordered that the lawsuit be dismissed for lack of proper service to the Chinese company. The Appellant claimed that service had been effected through the Public Prosecution Office, following all necessary procedures through diplomatic channels in China, pursuant to article 13 (9) of the Egyptian Civil and Commercial Code of Procedure (CCCP), and by notification of the claim to the first Appellee’s legal representative (Commercial Agent) pursuant to article 13 (5) CCCP.

Article 13 (9) CCCP states that, if no international treaty or a specific provision of law is applicable, service shall be made by delivering the documents to the public prosecutor, who then forwards them to the Minister of Foreign Affairs, to be delivered through diplomatic channels to the country of destination. Art. 13 (5) CCCP stipulates that, if service is addressed to a foreign company that has a branch or agent in Egypt, domestic service shall be effected (i.e. to the branch or agent located in Egypt).

3. The Supreme Court ruling

The Court of Cassation referred initially to Art. 13 (5) & (9) CCCP. It then mentioned Articles 3 & 14 of the Judicial Cooperation Treaty on Civil, Commercial and Criminal Matters between the Arab Republic of Egypt and The People’s Republic of China, signed on 21/4/1994, which stipulates that: “For the purposes of requesting and providing judicial assistance, parties shall communicate through their central authorities unless otherwise provided for in this Treaty. Central authorities of both parties are represented by the Ministries of Justice. Both parties shall serve judicial documents in civil and commercial matters pursuant to Hague Convention on the service Abroad of Judicial and Extrajudicial Documents in civil or Commercial Matters concluded on 15/11/1965’’.

Based on the above, the Court of Cassation decided as follows: The Hague Convention exclusively stipulates methods, means and conditions for serving judicial documents unless agreed between the Parties on other methods pursuant to Article 11 of the same Convention, and obliges the judge to stay proceedings, save when a document was served by a method prescribed by the internal law of the State addressed, or when the document was actually served to the defendant in its residence under one of the methods prescribed in the Convention in sufficient time to enable him to arrange for his defence.

Since the legislator has permitted in Article 13(5) CCCP that foreign companies may be served by delivering a copy to its branch or agent in Egypt, their existence is considered a question of fact under the exclusive competence of the court. Accordingly, the Court of Cassation confirmed the instance decision, which ruled that service made to the first Appellee through the third appellee (Trade And Importing Company in Heliopolis), ostensibly being its commercial agent and representative, was improper, since the representative of the latter denied its relation with the first Appellee.

Finally, delivering the document to the Public Prosecution in order to take necessary actions towards service by diplomatic channels is not sufficient, because notice was not delivered / served to the first Appellee.

4. Conclusion

The judgment offers a valuable insight into the practice of Egyptian courts in regards to notification of documents abroad. It is noteworthy that the Court of Cassation examined carefully all legal regimes related to the subject matter: It referred to domestic law (CCCP), the Egyptian – Chinese bilateral treaty, and the multilateral convention, to which the bilateral convention refers. The question whether service of process abroad was necessary or not was decided on a substantive level: Given that the appellant failed to demonstrate that the third appellee was the representative of the Chinese company, the court rightfully considered that service solely to the local Transmission Authority through the Prosecutor’s Office does not suffice. Hence, whenever the Hague Service Convention applies, the Court of Cassation dismisses fictitious service (remise au parquet).

The Justice Initiative Frankfurt am Main 2017

Written by Prof. Dr. Dres. h.c. Burkhard Hess, Executive Director Max Planck Institute Luxembourg for Procedural Law

Against the backdrop of Brexit, an initiative has been launched to strengthen Frankfurt as a hot spot for commercial litigation in the European Judicial Area. On March 30, 2017, the Minister of Justice of the Federal State Hessen, Ms Kühne-Hörmann, organized a conference at which the Justice Initiative was presented. More  than 120 stakeholders (lawyers, judges, businesses) attended the conference. The original paper was elaborated by Professors Burkhard Hess (Luxembourg), Thomas Pfeiffer (Heidelberg), Christian Duve (Heidelberg) and Roman Poseck (President of the Frankfurt Court of Appeal). Here, we are pleased to provide an English translation of the position paper with some additional information on German procedural law for an international audience. The proposal has, as a matter of principle, been endorsed by the Minister of Justice. Its proposals are now being discussed and shall be implemented in the next months to come. The paper reads as follows: Read more

Paris, the Jurisdiction of Choice?

On January 17th, the President of the Paris Commercial Court (Tribunal de commerce) inaugurated a new international division.

The new division, which is in fact the 3rd division of the court (3ème Chambre), is to be staffed with nine judges who speak foreign languages, and will therefore be able to assess evidence written in a foreign language. For now, the languages will be English, German and Spanish, as one juge speaking Spanish and two speaking German are currently on the court.

In an interview to the Fondation de droit continental (Civil law initiative), the President of the Court explained that the point was to make French justice more competitive and attract international cases. It also made clear that France was following Germany’s lead, where several international divisions were established in 2009 in Hamburg and Cologne.

French Commercial Courts

It should be pointed out to readers unfamiliar with the French legal system that French commercial courts are not staffed with professional judges, but with members of the business community working part-time at the court (and for free). In Paris, however, many of these judges work in the legal department of their company, and are thus fine lawyers.

Also, French commercial courts (and French civil courts generally) virtually never hear witnesses, so the issue of the language in which they may address the court does not arise.

Some issues

So, the new international division will be able to read documents in several foreign languages. However, nothing suggests that parties or lawyers will be able either to speak, or to write pleadings, in any other language than French. Lawyers arguing these cases will still need to file their pleadings in French, and thus to translate them in English beforehand for their clients. Furthermore, the interview of the Court’s President seems to suggest that using a foreign language will not be a right for the parties. Quite to the contrary, it seems that it will not be possible if one of the parties disagrees, and demands documents be translated in French.

Will that be enough to attract additional commercial cases to Paris?

I wonder whether introducing class actions in French civil procedure would have been more efficient in this respect.

For the full interview of the Court’s President, see after the jump.

Read more

News

One Private International Law Article published in the First Issue of the International and Comparative Law Quarterly for 2023

One recent article on private international law was published today in International and Comparative Law Quarterly:

A Chong, “Characterisation and Choice of Law for Knowing Receipt”

Knowing receipt requires the satisfaction of disparate elements under English domestic law. Its characterisation under domestic law is also unsettled. These in turn affect the issues of characterisation and choice of law at the private international law level, as knowing receipt sits at the intersection of the laws of equity, restitution, wrongs and property. This article argues that under the common law knowing receipt ought to be considered as sui generis for choice of law purposes and governed by the law of closest connection to the claim. Where the Rome II Regulation applies, knowing receipt fits better within the tort rather than unjust enrichment category and the escape clause in Article 4(3) of the Regulation ought to apply.

Conference on PIL Aspects of the Digital Market Act (DMA) and the Digital Services Act (DSA)

On Friday, January 20, 2023, the University of Strasbourg (France) will host a conference on the PIL aspects of the Digital Market Act (DMA) and the Digital Services Act (DSA), organized by Etienne Farnoux, Nicolas Gillet, Kansu Okyay and Delphine Porcheron.

The conference is structured in two parts. The first will be dedicated to general presentation of the new regulations. The second will address specific topics in private international law.

Full Programme:

14h00 : Propos Introductif
Delphine Porcheron, Maître de conférences à l’Université de Strasbourg – CDPF
et Etienne Farnoux, Professeur à l’Université de Strasbourg – DRES

1re session – Présentation générale des règlements et étude du conflit de lois
Présidence : Delphine Porcheron, Maître de conférences à l’Université de Strasbourg – CDPF

14h10 : Présentation du règlement DMA
Frédérique Berrod, Professeure à Sciences Po Strasbourg – CEIE

14h30 : Présentation du règlement DSA
Stéphanie Carre, Maître de conférences HDR à l’Université de Strasbourg – CEIPI

14h50 : Scope of the regulations and conflicts of laws
Tobias Lutzi, Professeur à l’Université de Augsburg

15h10 : Questions et échange avec la salle

15h30 : Pause

2e session – Les règlements et le contentieux
Présidence : Etienne Farnoux, Professeur à l’Université de Strasbourg – DRES

16h00 : Le contentieux devant les juridictions étatiques
Yves El Hage, Maître de conférences à l’Université Lyon 3 – CREDIP

16h20 : Les modes extrajudiciaires de règlement des litiges
Nurten Kansu Okyay, Maître de conférences contractuelle à l’Université de Strasbourg – CEIE

16h50 : Conclusions
Delphine Porcheron, Maître de conférences à l’Université de Strasbourg – CDPF
Etienne Farnoux, Professeur à l’Université de Strasbourg – DRES

17h00 : Clôture

The conference will be held both in site and online. The full program and details about the location and registration can be found here.

Conference on the evaluation of the European Succession Regulation, 20 January 2023

Colleagues at the University of Heidelberg are organising this conference on 20 Januari 2023 at the

Auditorium of the Neue Universität at Heidelberg University, Universitätsplatz 1, 69117 Heidelberg.

Simultaneous interpretation will be provided in German, English and French.

Background:

The European Succession Regulation (Reg. 650/12) is due for evaluation ten years after its entry into force in August 2015 (Art. 82 Reg. 650/12).

The European Commission must submit its report on the application of the European Succession Regulation by 18 August 2025.

The upcoming evaluation gives an opportunity to reflect on various questions in light of the practical experience gained so far. Although the European Succession Regulation has proven successful in practice, there are many open questions which the ever-growing body of European Court of Justice case-law has not yet answered. These questions fuel a lively debate, both internationally and within the Member States. Hence, the outcome of the evaluation process is not predictable and the German view is only one of many that will contribute to the political decision-making process. Contrasting national views must be reconciled.

The first findings of a pan-European study on the experiences and expectations of legal practice with regard to Reg. 650/12 are now available. The study (MAPE Successions) is carried out by the Council of the Notariats of the European Union (C.N.U.E.) with the cooperation of the German Federal Chamber of Notaries (Bundesnotarkammer).

This study is an opportunity to map out the future objectives of the discussion on the evaluation of Reg. 650/12 from the perspective of academia and legal practice. At the same time, the conference provides a broad circle of legal practitioners with the opportunity to feed their experiences and insights into the reform process and discuss with renowned stakeholders.

Participation is free, but registration is required by 5 January 2023: notareg@igr.uni-heidelberg.de

Programme:

1 p.m. Welcome reception with lunchtime snack

2.15 p.m. Welcoming address and introduction

Prof. Dr. Christian Baldus, Heidelberg

2.30 p.m. The European Succession Regulation in the System of European Private International and Procedural Law: More “Brussels-Rome 0” after the Revision?

Prof. Dr. Martin Gebauer, Tübingen, Judge at the Higher Regional Court of Stuttgart

3.15 p.m. Presentation of the MAPE Successions study: What do practitioners expect from the revision of the European Succession Regulation?

Notary Christian Schall, LL.M. (Edinburgh), Marktheidenfeld

4 p.m. Questions and discussion

4.15 p.m. Coffee break

4.45 p.m. The European Succession Regulation in German judicial practice

Dr. Carl-Friedrich Nordmeier, Judge at the Regional Court of Frankfurt

5.30 p.m. Panel discussion followed by questions from the audience: European experiences with the application of the European Succession Regulation

Presenter: Notary Dr. Thomas Raff, Ludwigshafen

France, Maître de conférences HDR Paul Klötgen, Nancy

Luxembourg, Notary Anja Holtz, Esch-sur-Alzette

Poland, Notary Tomasz Kot, Krakow, Vice President of the Polish Chamber of Notaries (Krajowa Rada Notarialna)

Portugal, Notary Prof. Sofia Henriques, Lisbon

Sweden, Attorney Ulf Bergquist, Stockholm

Spain, Notary Dr. Isidoro Calvo Vidal, A Coruña

7 p.m.Closing remarks

Notary Dr. Andrea Stutz, Konstanz, Vice President of the Chamber of Notaries of Baden-Württemberg

7.15 p.m. End of conference