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EPO and EAPO Regulations: A new reform of the Luxembourgish Code of Civil Procedure

Carlos Santaló Goris, Researcher at the Max Planck Institute Luxembourg for International, European and Regulatory Procedural Law and Ph.D. candidate at the University of Luxembourg, offers a summary and a compelling analysis of the Luxemburgish domestic legislation regarding the EPO and EAPO Regulations.

On 23 July 2021, a new legislative reform of the Luxembourgish Code of Civil Procedure (“NCPC”), entered into force amending, among other articles, those concerning Regulation No 1896/2006, establishing a European Payment Order (“EPO Regulation”) and Regulation No 655/2014, establishing a European Account Preservation Order (“EAPO Regulation”).

The EPO and the EAPO Regulations embody, respectively, the first and third European uniform civil procedures. While the EPO, as its name indicates, is a payment order, the EAPO is a provisional measure that allows temporary freezing of the funds in the debtor’s bank accounts. Although they are often referred to as uniform procedures, both leave numerous elements to the discretion of the Member States’ national laws.

Leave to Issue and Serve Originating Process Outside Jurisdiction Versus Substituted Service: A Distinction with a Difference

Witten by Orji A Uka (Senior Associate at ALP NG & Co) and Damilola Alabi (Associate at ALP NG & Co)

Introduction

The issuance and service of an originating process are fundamental issues that afford or rob a court of jurisdiction to adjudicate over a matter. This is because it is settled law that the proceedings and judgment of a court which lacks jurisdiction result in a nullity[1]. Yet, despite the necessity of ensuring that the issuance and service of an originating process comply with the various State High Court Civil Procedure Rules or Federal High Court Civil Procedure Rules (“the relevant court rules”) or the Sheriffs and Civil Process Act, legal practitioners and sometimes judges commonly conflate the issuance and service of court process on defendants outside jurisdiction with the concept of service of court process by substituted means on defendants within the jurisdiction[2]. This paper set outs the differences between both commonly confused principles with the aim of providing clarity to its readers and contributing to the body of knowledge on this fundamental aspect of the Nigerian adjectival law.

Territorial Jurisdiction of Courts in Nigeria

Defending the Rule in Antony Gibbs

By Neerav Srivastava

The Rule in Antony Gibbs[1] (‘the Rule’) provides that if the proper law of a contract is Australian, then a discharge of the debt by a foreign jurisdiction will not be a discharge in Australia unless the creditor submitted to the foreign jurisdiction.[2] The Rule is much maligned, especially in insolvency circles, and has been described as “Victorian”.[3] In ‘Heritage and Vitality: Whether Antony Gibbs is a Presumption’[4] I seek to defend the Rule.

Presumption

The article begins by arguing that, in the modern context, that the Rule should be recognised as a Presumption as to party intentions.

Briefly, Gibbs was decided in the 1890s. At the time, the prevailing view was that the proper law of a contract was either the law of the place of the contract or its performance.[5] This approach was based on apportioning regulatory authority between sovereign States rather than party intentions. To apply a foreign proper law in a territory was regarded as contrary to territorial sovereignty. Freedom of contract and party intentions were becoming relevant to proper law but only to a limited extent.[6]

As for Gibbs, Lord Esher’s language is consistent with the ‘Regulatory Approach’:

News

CJEU on provisional/protective measures requested against a public authority (potentially and/or allegedly enjoying some form of immunity) in the case TOTO, C-581/20

Back in September, AG Rantos presented his Opinion in the case TOTO, C-581/20. As reported previously, at the request of the Court, the Opinion confined itself solely to the second preliminary question on the interpretation of Article 35 of the Brussels I bis Regulation.

In its judgment delivered today, the Court addresses all three preliminary questions of the referring court. These questions concern the concept of “civil and commercial matters” in the sense of Article 1(1) of the Brussels I bis Regulation (first preliminary question), subsequent application for provision/protective measures lodged before a court not having jurisdiction as to the substance of the matter (second preliminary question) and EU law- or purely national law- dependent modalities for ordering such measures (third preliminary question).

(more…)

7th CPLJ webinar – 21 October 2021

 Comparative Procedural Law and Justice (CPLJ) is a global project of the Max Planck Institute Luxembourg for Procedural Law, with the support of the Luxembourg National Research Fund (019/13946847), involving more than one hundred scholars from all over the world.

CPLJ is envisioned as a comprehensive study of comparative civil procedural law and civil dispute resolution schemes in the contemporary world. It aims at understanding procedural rules in their cultural context, as well as at highlighting workable approaches to the resolution of civil disputes.

In this framework, the Max Planck Institute Luxembourg for Procedural Law will host its 7th CPLJ Webinar on 21 October 2021, 3:00 – 5:30 pm (CEST)

The programme reads as follows:

U.S. Supreme Court Agrees to Decide Procedural Issue in Case Regarding Nazi Stolen Pissarro Work

The federal courts of appeal are split over whether state or federal law governs claims brought under the Foreign Sovereign Immunities Act, which waives sovereign immunity for foreign entities in certain cases. Sometimes, this is an outcome-determinative question.

In the case of Cassirer v. Thyssen-Bornemisza Collection Foundation, the heirs of a Holocaust survivor are seeking to recover a painting by French impressionist Camille Pissarro that was stolen by the Nazis in 1939. The 1897 painting is currently on display in the Thyssen-Bornemisza Museum, a Spanish state museum in Madrid. The U.S. Court of Appeals for the Ninth Circuit ruled against the heirs, saying that federal law called for the application of Spanish law, which allows the holder of stolen property to obtain title through the doctrine of adverse possession. The heirs claim California law, which never allows the holder of stolen property to obtain good title, applies. 

Last week, the U.S. Supreme Court agreed to resolve the question. The pleadings are available on SCOTUSBlog here; more coverage of this interesting issue will follow.