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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the order of the provisional insolvency administration on the assets of NIKI Luftfahrt GmbH (under Austrian law), repealed the decision of the District Court of Charlottenburg (see here) as it finds that international jurisdiction lies with Austrian and not German courts.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
Just released: International Child Abduction by Mayela Celis (Madrid: Dykinson, 2023 – in Spanish)
I am thrilled to announce that my book on international child abduction has been published this week (María Mayela Celis Aguilar (aka Mayela Celis), Madrid: Dykinson, 2023, 604 pp. – in Spanish). More information is available here.
I am most grateful to Prof. Marina Vargas Gómez-Urrutia and Hans van Loon for having written the Foreword of this book and for their support throughout this process. This book is dedicated to the memory of Adair Dyer, former Deputy Secretary General of the Hague Conference on Private International Law (HCCH), whom some of you may have known.
As stated in the publisher’s website (translation into English): “This monograph conducts a critical study of the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction by analysing both case law and doctrine. In particular, it examines key concepts of the Convention, such as habitual residence and rights of custody, as well as other problems that arise more frequently in its application. But not before carrying out a detailed study of the phenomenon of international child abduction from a multidisciplinary and human rights approach.
Virtual Workshop (in German) on September 19: Chris Thomale on “The theory of real seat: Connecting factor or domestic link?”
On Tuesday, September 19, 2023, the Hamburg Max Planck Institute will host its 36th monthly virtual workshop Current Research in Private International Law at 17:00-18:30 (CEST). Chris Thomale (Universität Wien/Università degli Studi Roma Tre) will speak, in German, about
The theory of real seat: Connecting factor or domestic link?
The presentation will be followed by open discussion. All are welcome. More information and sign-up here.
If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.
The collection of the V Workshop Jean Monnet Network – BRIDGE “El Derecho Internacional Privado en las Relaciones entre la Unión Europea y América Latina” is now available
crosspost from https://eurolatinstudies.com
The collection of assignments presented here is the result of the V Workshop Jean Monnet Network – BRIDGE on “El Derecho Internacional Privado en las Relaciones entre la Unión Europea y América Latina” which took place on April 19th, 2023, in hybrid mode, at University of Sevilla, Spain. This initiative promoted an intense debate on the theoretical and practical aspects about international law and the relations between European Union and Latin America, with the presence of professors and researchers from several universities.
The proceedings are part of the activities developed by Jean Monnet Network project called “Building Rights and Developing Knowledge between European Union and Latin America – BRIDGE”, co-financed by the Erasmus+ Program of European Commission (620744-EPP-1-2020-1-BR-EPPJMO-NETWORK), composed of a consortium of seven Latin American and European universities.
The articles presented at the Workshop were previously evaluated through Call for Papers, launched in January 2023, and selected by the Organizing Committee composed of Professors Aline Beltrame de Moura (Federal University of Santa Catarina), Beatriz Campuzano Días and Mª Ángeles Rodríguez Vázquez (both from University of Sevilla, Spain). Part of the articles selected for presentation at the Workshop were published in Anais do V Workshop Jean Monnet Network – BRIDGE and the others were published in the V edition of the Latin American Journal of European Studies (2023-1).