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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. Read 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the order of the provisional insolvency administration on the assets of NIKI Luftfahrt GmbH (under Austrian law), repealed the decision of the District Court of Charlottenburg (see here) as it finds that international jurisdiction lies with Austrian and not German courts.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. 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.
News
No Recognition in Switzerland of the Removal of Gender Information according to German Law
This note has been kindly provided by Dr. Samuel Vuattoux-Bock, LL.M. (Kiel), University of Freiburg (Germany).
On 8 June 2023, the Swiss Federal Supreme Court (Bundesgericht) pronounced a judgment on the removal of gender markers of a person according to German Law and denied the recognition of this removal in Switzerland. Read more
Regional Developments in International Law in Africa and Latin America – Annual Meeting of the German Branch of the ILA, Frankfurt, 7 July 2023
This year’s annual meeting of the German Branch of the International Law Association will take place at the Goethe-University in Frankfurt (Main) on Friday, 7 July 2023. The subject will be “Regional Developments in International Law in Africa and Latin America”. The list of distinguished speakers includes Prof. Dr. Thoko Kaime, University of Bayreuth, Alan Diego Vogelfanger, LL.M., University of Bonn/Universidad de Buenos Aires, Kholofelo Kugler, LL.B., M.A., University of Lucerne (Switzerland), and Priv.-Doz. Dr. Jan Peter Schmidt, Max-Planck-Institute for Comparative and International Private Law. The full program can be found here. For registration, please click here. A passive attendance via Zoom will be possible.
Conference Sustaining Access to Justice, 19-20 Oct 2023 – registration open
On 19-20 October 2023 the Conference Sustaining Access to Justice in Europe: New Avenues for Costs and Funding will take place at Erasmus University Rotterdam. Speakers from academia, policy, business and consumer associations from Europe, the US and Asia will discuss developments in funding, including third-party litigation funding and crowdfunding, collective actions, public interest litigation, ADR and ODR and entrepreneurial lawyering.
Description
Access to civil justice is of paramount importance for enforcing citizens’ rights. At the heart access to civil justice lies litigation funding and cost management. Yet, over the past decades, access to justice has been increasingly put under pressure due to retrenching governments, high costs of procedure, and inefficiency of courts and justice systems. Within this context, the funding of litigation in Europe seems to be shifting from public to private sources. Private actors and innovative business models have emerged to provide new solutions to the old problem of financial barriers to access to justice.
With the participation of academics, policymakers, practitioners, academics and representatives of civil society from all over Europe and beyond, the conference seeks to delve deeper into the financial implications of access to justice and the different ways to achieve sustainable civil justice systems in Europe. The topics addressed in this international academic conference include different methods of financing dispute resolution and regulating costs, such as third-party funding, crowdfunding, blockchain technologies, public interest litigation, developments in ADR/ODR, new business models of legal professionals as well as law and economics perspectives on litigation funding.
Program, registration and call for papers
The full program is available here and further information and registration is available here.
A call for papers for early career researchers is available here; deadline is 7 July 2023.
This conference is organised by Erasmus School of Law in the context of the NWO Vici Project: ‘Affordable Access to Justice’, funded by the Dutch Research Council.