Views
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the order of the provisional insolvency administration on the assets of NIKI Luftfahrt GmbH (under Austrian law), repealed the decision of the District Court of Charlottenburg (see here) as it finds that international jurisdiction lies with Austrian and not German courts.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
HCCH Monthly Update: May 2023
Conventions & Instruments
On 12 May 2023, Canada deposited its instrument of accession to the 1961 Apostille Convention. This accession marked a historical milestone: the 1000th treaty action relating to an HCCH Convention or Protocol. The 1961 Apostille Convention, which now has 125 Contracting Parties, will enter into force for Canada on 11 January 2024. More information is available here.
On 16 May 2023, North Macedonia signed the 2019 Judgments Convention. The Convention, which currently has 28 Contracting Parties, will enter into force in September 2023, and for North Macedonia only after the deposit of an instrument of ratification (pursuant to Art. 28(2) of the Convention). More information is available here.
On 16 May 2023, Singapore deposited its instrument of accession to the 1965 Service Convention. The Convention, which now has 81 Contracting Parties, will enter into force for Singapore on 1 December 2023 subject to the Article 28 procedure. More information is available here.
Last minute registration welcome: “The HCCH 2019 Judgments Convention: Cornerstones – Prospects – Outlook”, 9 and 10 June 2023, University of Bonn
Just a quick note to assure you that last minute registration is welcome. All information is available here.
Friendly reminder: Lecture on Private International Law and Voices of Children, organized in cooperation with ConflictofLaws.net
This is a friendly reminder to our co-organised event on next Thursday, free admissions can be registered here.
Online event
When making decisions, adults should think about how their decisions will affect children. Recent years have witnessed, in private international law cases and legislation, the protection of children is increasingly mingled with gender, indigenous issues, refugees, violence, war, surrogacy technology, etc. This is evidenced by the US Supreme Court 2022 judgment Golan v. Saada, the Australian case Secretary, Department of Communities & Justice v Bamfield, the 2023 German Constitutional Court decision, the Chinese Civil Code, the Australia Family Law (Child Abduction Convention) Amendment (Family Violence) Regulations 2022, and developments at the Hague Conference on Private International Law (HCCH Children Conventions) and the United Nations (Convention on the Rights of the Child and its additional Protocols).
On this International Children’s Day, let us join this CAPLUS webinar in cooperation with conflictoflaws.net and American Society of International Law Private International Law Interest Group to hear voices of children in private international law.