Tag Archive for: recognition

Book: Pocar – Viarengo – Villata (Eds.), Recasting Brussels I

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The Italian publishing house CEDAM has published a new volume on the review of the Brussels I regulation: “Recasting Brussels I“. The book, edited by Fausto Pocar, Ilaria Viarengo and Francesca Clara Villata (all from the Univ. of Milan) includes twenty-five papers divided into five parts, devoted to the scope of application (I), rules on jurisdiction (II), choice-of-court agreements (III), coordination of proceedings (IV) and recognition and enforcement of judgments (V).

Here’s the table of contents (.pdf file):

PART I – SCOPE OF APPLICATION

  • Rainer Hausmann, The Scope of Application of the Brussels I Regulation;
  • Ilaria Viarengo, The Removal of Maintenance Obligations from the Scope of Brussels I;
  • Claudio Consolo – Marcello Stella, Brussels I Regulation Amendment Proposals and Arbitration;
  • Peter Kindler, Torpedo Actions and the Interface between Brussels I and International Commercial Arbitration;
  • Stefano Azzali – Michela De Santis, Impact of the Commission’s Proposal to Revise Brussels I Regulation on Arbitration Proceedings Administered by the Chamber of Arbitration of Milan.

PART II – RULES ON JURISDICTION

  • Burkhard Hess, The Proposed Recast of the Brussels I Regulation: Rules on Jurisdiction;
  • Riccardo Luzzatto, On the Proposed Application of Jurisdictional Criteria of Brussels I Regulation to Non-Domiciled Defendants;
  • Fausto Pocar, A Partial Recast: Has the Lugano Convention Been Forgotten?;
  • Alexander R. Markus, Harmonisation of the EU Rules of Jurisdiction Regarding Defendants Outside the EU. What About the Lugano Countries?;
  • Ruggiero Cafari Panico, Forum necessitatis. Judicial Discretion in the Exercise of Jurisdiction;
  • Marco Ricolfi, The Recasting of Brussels I Regulation from an Intellectual Property Lawyer’s Perspective;
  • Eva Lein, Jurisdiction and Applicable Law in Cross-Border Mass Litigation;
  • Zeno Crespi Reghizzi, A New Special Forum for Disputes Concerning Rights in Rem over Movable Assets: Some Remarks on Article 5(3) of the Commission’s Proposal.

PART III – CHOICE-OF-COURT AGREEMENTS

  • Ilaria Queirolo, Prorogation of Jurisdiction in the Proposal for a Recast of the Brussels I Regulation;
  • Christian Kohler, Agreements Conferring Jurisdiction on Courts of Third States;
  • Francesca C. Villata, Choice-of-Court Agreements in Favour of Third States’ Jurisdiction in Light of the Suggestions by Members of the European Parliament.

PART IV – COORDINATION OF PROCEEDINGS

  • Luigi Fumagalli, Lis Alibi Pendens. The Rules on Parallel Proceedings in the Reform of the Brussels I Regulation;
  • Pietro Franzina, Successive Proceedings over the Same Cause of Action: A Plea for a New Rule on Dismissals for Lack of Jurisdiction;
  • Lidia Sandrini, Coordination of Substantive and Interim Proceedings;
  • Cristina M. Mariottini, The Proposed Recast of the Brussels I Regulation and Forum Non Conveniens in the European Union Judicial Area.

PART V – RECOGNITION AND ENFORCEMENT OF JUDGMENTS

  • Sergio M. Carbone, What About the Recognition of Third States’ Foreign Judgments?;
  • Thomas Pfeiffer, Recast of the Brussels I Regulation: The abolition of Exequatur;
  • Stefania Bariatti, Recognition and Enforcement in the EU of Judicial Decisions Rendered upon Class Actions: The Case of U.S. and Dutch Judgments and Settlements;
  • Manlio Frigo, Recognition and Enforcement of Judgments on Matters Relating to Personality Rights and the Recast Proposal of the Brussels I Regulation;
  • Marco De Cristofaro, The Abolition of Exequatur Proceedings: Speeding up the Free Movement of Judgments while Preserving the Rights of the Defense.

– – –

Title: Recasting Brussels I, edited by F. Pocar, I. Viarengo and F.C. Villata, CEDAM (Series: Studi e pubblicazioni della Rivista di diritto internazionale privato e processuale – Volume 76), Padova, 2012, XXIV – 382 pages.

ISBN 9788813314699. Price: EUR 32,50. Available at CEDAM.

(Many thanks to Prof. Francesca Villata for the tip-off)

Italo-German Cooperation in the Brussels I Recast: Conference in Milan (25-26 November 2011)

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The University of Milan will host a two-day conference on 25 and 26 November 2011 on the review of the Brussels I regulation, organized with the University of Padova, the University of Heidelberg and the Ludwig-Maximilians-Universität München: “Cooperazione Italo-Tedesca nella revisione del Regolamento Bruxelles I – Deutsch-Italienische Kooperation im Rahmen der Neufassung der Brüssel I-Verordnung“. The working languages will be English, Italian and German. Here’s the programme (.pdf):

I Session: Friday 25 November 2011, 10h00

Saluti introduttivi – Grußworte: Prof. Dr. Marino Regini (Università degli Studi di Milano); Prof. Dr. Angela Lupone (Università degli Studi di Milano)

Chair: Prof. Dr. Ilaria Viarengo (University of Milan)

  • Prof. Dr. Rainer Hausmann (Universität Konstanz): L’ambito di applicazione del regolamento – Der Anwendungsbereich der Verordnung;
  • Prof. Dr. Andrea Gattini (Università degli Studi di Padova): I rapporti con le convenzioni internazionali – Das Verhältnis zu internationalen Abkommen;
  • Prof. Dr. Burkhard Hess (Universität Heidelberg): La competenza in materia di liti patrimoniali- Die Gerichtsbarkeit für vermögensrechtliche Streitigkeiten;
  • Prof. Dr. Ruggiero Cafari Panico (Università degli Studi di Milano): Il forum necessitatis – Die Notzuständigkeit (forum necessitatis).

–  –  –  –

II session: Friday 25 November 2011, 14h00

Chair: Prof. Dr. Peter Kindler (Ludwig-Maximilians-Universität München)

  • Prof. Dr. Claudio Consolo (Università degli Studi di Padova): La proposta di revisione del Regolamento Bruxelles I e l’arbitrato – Der Vorschlag zur Revision der Brüssel I-Verordnung und die Schiedsgerichtsbarkeit;
  • Prof. Dr. Christian Kohler (Universität Saarbrücken) – Prof. Dr. Ilaria Queirolo (Università degli Studi di Genova): Gli accordi di proroga della giurisdizione nella proposta di revisione del regolamento Bruxelles I – Die Gerichtsstandsvereinbarung im Vorschlag zur Neufassung der Brüssel I-Verordnung;
  • Prof. Dr. Luigi Fumagalli (Università degli Studi di Milano): La litispendenza – Die Rechtshängigkeit.

–  –  –  –

III session: Saturday 26 November 2011, 9h00

Chair: Prof. Dr. Kurt Siehr (Max-Planck-Institut für ausländisches und internationales Privatrecht, Hamburg)

  • Prof. Dr. Marco De Cristofaro (Università degli Studi di Padova) – Prof. Dr. Thomas Pfeiffer (Universität Heidelberg): L’abolizione dell’exequatur – Die Abschaffung des Exequaturverfahrens;
  • Prof. Dr. Manlio Frigo (Università degli Studi di Milano): Il riconoscimento e l’esecuzione delle decisioni in materia di diffamazione – Die Anerkennung und Vollstreckung von Entscheidungen bei Verleumdungsklagen;
  • Prof. Dr. Stefania Bariatti (Università degli Studi di Milano): Il riconoscimento e l’esecuzione delle decisioni rese a seguito di class action – Die Anerkennung und Vollstreckung von Entscheidungen ergangen aufgrund einer Sammelklage (class action).

–  –  –  –

Round Table: Saturday 26 November 2011, 11h15

Tavola rotonda sull’impatto della revisione del Regolamento sull’ordinamento italiano e sull’ordinamento tedesco – Podiumsdiskussion zu den Auswirkungen der Revision der Verordnung auf das italienische und das deutsche Recht

Chair: Prof. Dr. Fausto Pocar (Università degli Studi di Milano)

  • Prof. Stefano Azzali (Camera Arbitrale di Milano)
  • Prof. Dr. Sergio M. Carbone (Università degli Studi di Genova)
  • Prof. Dr. Herbert Kronke (Universität Heidelberg)
  • Prof. Dr. Riccardo Luzzatto (Università degli Studi di Milano)
  • Prof. Dr. Alexander R. Markus (Universität Bern)
  • Prof. Dr. Marco Ricolfi (Università degli Studi di Torino – Studio Tosetto, Weigmann & Associati)

The event is organized under the patronage of the Italo-German Chamber of Commerce and Chamber of arbitration of Milan, and with the financial support of: Ateneo Italo-Tedesco; Law firm Gebhard (Milan, Stuttgart); Law firm Tosetto, Weigmann & Associati (Turin, Milan, Rome); “Associazione per gli scambi culturali tra giuristi italiani e tedeschi”.

For further information and registration, see the programme and the conference’s webpage.

(Many thanks to Prof. Francesca Villata, University of Milan, for the tip-off)

Clearer Patrimonial Regimes for International Couples: Joint Conference of the European Commission and CNUE

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On Monday 17 October 2011 the Council of the Notariats of the European Union (CNUE) is organising, jointly with the EU Commission, a conference in Brussels on the proposals for two regulations on property rights of “international” married couples and registered partnerships: “Clearer Patrimonial Regimes for International Couples”. A dedicated section of the CNUE website has been set up for the event, for further information and registration (there are still some places left to attend the conference). Here’s the programme (interpretation will be available in English, French, German, Italian, Polish, Romanian and Spanish):

9.30 – 9.40 Opening: Rudolf Kaindl, CNUE President

9.40 – 10.20 Keynote speeches:

  • Viviane Reding, Vice-President of the European Commission
  • Frank Molitor, President of the Luxembourg Chamber of Notaries

10.20 – 10.40 Proposals for Regulations on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes and regarding the property consequences of registered partnerships: Salla Saastamoinen, Head of Unit, DG Justice, European Commission

11.00 – 12.40 Panel discussion: Session 1 – The applicable law

Moderator: Prof. Katharina Boele-Woelki, University of Utrecht

Speakers:

  • Prof. Paul Lagarde, University of Paris I “Panthéon Sorbonne”
  • Prof. Brigitta Lurger, University of Graz
  • Prof. Barbara Reinhartz, University of Amsterdam
  • Franco Salerno Cardillo, Civil Law Notary in Palermo
  • Alexandra Thein, Member of the European Parliament
  • Richard Frimston, STEP, Solicitor and Notary Public in London

14.00 – 15-15 Panel discussion: Session 2 – The competent court

Moderator: Sjef van Erp, Maastricht University, Deputy-Justice, Court of Appeal, ‘s-Hertogenbosch

Speakers:

  • Ulf Bergquist, Lawyer in Stockholm
  • Prof. Patrick Wautelet, University of Liège
  • Katarzyna Lis, Judge, Polish Ministry of Justice

15.15 – 16.30 Panel discussion: Session 3 – Recognition and enforcement in cross-border cases

Moderator: Pedro Carrión García de Parada, Chair of the CNUE’s Family Law Working Group

Speakers:

  • Matthias Neumayr, Judge at the Austrian Supreme Court
  • Prof. Philippe De Page, Université Libre de Bruxelles
  • Prof. Dieter Martiny, European University Viadrina
  • Edmond Jacoby, Civil Law Notary in Forbach

16.30 – 17.00 Information session – More information and services for European citizens

  • The patrimonial property regimes website project, Harald Steinwendter, University of Graz
  • The European Directory of Notaries, Thomas Diehn, Federal Council of the German Notariat

17.00 – 17.30 Closing speech: Paraskevi Michou, Director, DG Justice, European Commission.

 

European Parliament’s Workshop on the Brussels I Proposal (rescheduled)

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The workshop organized by the EP JURI Committee on the review of the Brussels I regulation, originally scheduled on 20 September 2011 (see our previous posts here and here) is taking place in Brussels this morning (h 10.00 – 12.00).

The live video streaming is broadcasted on this page. The link to the recorded session can be found here.

Commission’s Proposals On Matrimonial Property Regimes and Property Consequences of Registered Partnerships

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As announced in the past months, on 16 March 2011 the Commission presented the proposals for two regulations on property rights of “international” married couples and registered partnerships:

  • Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, COM(2011) 126 of 16 March 2011;
  • Proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions regarding the property consequences of registered partnerships, COM(2011) 127 of 16 March 2011.

The proposals are accompanied by a Communication from the Commission “Bringing legal clarity to property rights for international couples” –  COM(2011) 125 of 16 March 2011 – which describes the difficulties faced by international couples in the current framework of EU legislation and national rules of the 27 Member States (see also the figures presented in the press release and the related FAQs).

The origin of the initiative dates back to the early days of the “communitarisation” of the conflict of laws. According to the Explanatory Memorandum to doc. COM(2011) 126:

The adoption of European legislation on matrimonial property regimes was among the priorities identified in the 1998 Vienna Action Plan. The programme on mutual recognition of decisions in civil and commercial matters adopted by the Council on 30 November 2001 provided for the drafting of an instrument on jurisdiction and the recognition and enforcement of decisions as regards ‘rights in property arising out of a matrimonial relationship and the property consequences of the separation of an unmarried couple’. The Hague programme, which was adopted by the European Council on 4 and 5 November 2004, set the implementation of the mutual recognition programme as a top priority and called on the Commission to submit a Green Paper on ‘the conflict of laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition’, and stressed the need to adopt legislation by 2011.

A thorough research on the matter was previously carried in 2003 at an academic level, on behalf of the Commission, by the TMC Asser Instituut and the Département de droit international of the Catholic University of Leuven (UCL) (the whole study  – Final Report in French and Country Reports on the legislation of Member States – can be downloaded from the Documentation Centre of the DG Justice, Freedom and Security). The Green Paper on conflict of laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition, was published on 17 July 2006, and received nearly forty replies in the public consultation launched by the Commission.

The 2009 Stockholm Programme came back to the need of European legislation in the field, stating that mutual recognition should be extended to matrimonial property regimes and the property consequences of the separation of unmarried couples. The need was further stressed in the ‘EU Citizenship Report 2010: Dismantling the obstacles to EU citizens’ rights‘ (p. 5 ff.), adopted on 27 October 2010, where the Commission announced for 2011 an official legislative initiative. The drafting of the proposals is summarised as follows in the Explanatory memorandum:

A group of experts, PRM/III, was set up by the Commission to draw up the proposal. The group was made up of experts representing the range of professions concerned and the different European legal traditions; it met five times between 2008 and 2010. The Commission also held a public hearing on 28 September 2009 involving some hundred participants; the debates confirmed the need for an EU instrument for matrimonial property regimes that covered in particular applicable law, jurisdiction and the recognition and enforcement of decisions. A meeting with national experts was held on 23 March 2010 to discuss the thrust of the proposal being drafted.
Finally, the Commission conducted a joint impact study on the proposals for Regulations on matrimonial property regimes and the property consequences of registered partnerships. [see doc. n. SEC(2011) 327 fin. and SEC(2011)328 fin. of 16 March 2011]

Pursuant to Art. 81(3) TFEU the proposed regulations, as “measures concerning family law with cross-border implications”, are subject to a special legislative procedure: the Council shall act unanimously, after consulting the European Parliament. The second subparagraph of Art. 81(3), however, provides a “passerelle-clause”, under which “the Council, on a proposal from the Commission, may adopt a decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure”. The third subparagraph of the provision grants to national Parliaments of the Member States a veto power, to be exercised within six months of the notification of the Commission’s proposal to enact the “passerelle”.

Publication: Baratta (Ed.), Dizionario di Diritto Internazionale Privato

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The Italian publishing house Giuffrè has recently published a new book in the law dictionary series Dizionari del diritto privato, directed by Prof. Natalino Irti. The volume, Diritto internazionale privato, edited by Prof. Roberto Baratta, is entirely devoted to Private International Law.

It contains more than 60 entries relating to conflict of laws and jurisdictions, authored by prominent Italian PIL scholars. A detailed TOC is available here.

Title: Diritto internazionale privato, edited by Roberto Baratta, Giuffrè (series: Dizionari del Diritto privato), Milano, 2010, VI-566 pages.

ISBN: 978-88-14-15911-4. Price: EUR 65. Available at Giuffrè.

(Many thanks to Fabrizio Marongiu Buonaiuti, Univ. of Rome “La Sapienza”, for the tip-off)

Kuwait Airways Corporation v. Iraq in the Supreme Court of Canada

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In yet another, but not the final, step in the very long-running litigation between KAC, IAC and the Republic of Iraq, the Supreme Court of Canada has held that the enforcement in Quebec of a 2008 judgment of the English Commercial Court ordering Iraq to pay CAD$84 million to KAC is not barred by soveriegn immunity (decision here).

Many on this list will be familar with the facts.  After the 1990 invasion of Kuwait, KAC sued IAC in England for conversion of several airplanes.  As part of that litigation, KAC was able to claim against Iraq for the costs of the actions that had been brought.  This claim flowed from Iraq’s having controlled and funded IAC’s defence, and it was not barred by sovereign immunity in England because it fell within the commercial activity exception.  Iraq did not defend this claim and default judgment was granted.

KAC discovered immovable property owned by Iraq in Quebec and also some undelivered airplanes Iraq was buying from Bombardier Aerospace.  It thus brought proceedings in Quebec to enforce the English judgment.  Two lower courts held the claim was barred by sovereign immunity but the Supreme Court of Canada found that it fell within the commercial activity exception.

The court applied the State Immunity Act, RSC 1985, c S-18 and held that it applied to proceedings to enforce a foreign judgment (paras. 19-20).  The English decision, which addressed the issue of sovereign immunity, was not binding in Canada and was not res judicata (since to be so it would first have to be recognized in Canada, which was the very issue before the court) (para. 22).  The application of the commercial activity exception to the facts is somewhat brief (para. 35), though there is some useful discussion of the scope of the exception in the United Kingdom, the United States and Canada (paras. 25-33).

Two other points of interest: 1. the court does not wade into the issue of whether there are any exceptions to sovereign immunity beyond those set out in the statute (para. 24), and 2. the court accepts the factual findings of the English decision as part of its analysis, prior to concluding that the decision is enforceable in Canada (para. 34).  This latter point seems somewhat hard to explain, and the court does not offer much explanation.

The Supreme Court of Canada did not determine if the English judgment is enforceable in Quebec – it only dealt with the sovereign immunity issue.  The case was therefore remanded to the court of first instance to hear the claim for enforcement.  Iraq likely has some further arguments to advance, such as that the Quebec court lacks jurisdiction over it and that the English default judgment is not entitled to recognition and enforcement (for example, due to the lack of a real and substantial connection between England and the claim advanced against Iraq).

New Articles in Canadian Publications

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Two recent publications contain several topical articles:

In the 2010 issue (volume 60) of the University of New Brunswick Law Journal are the following five articles: Catherine Walsh: “The Uses and Abuses of Party Autonomy in International Contracts”; Joshua Karton, “Party Autonomy and Choice of Law: Is International Arbitration Leading the Way or Marching to the Beat of its own Drummer?”; Stephen Pitel, “Reformulating a Real and Substantial Connection”; John McEvoy, “‘After the Storm: The Impact of the Financial Crisis on Private International Law’: Jurisdiction”; and Elizabeth Edinger, “The Problem of Parallel Actions: The Softer Alternative”.  This journal is available to subscribers, including through Westlaw.

In Jeff Berryman & Rick Bigwood, eds., The Law of Remedies: New Directions in the Common Law (Toronto: Irwin Law Inc., 2010) are four articles that relate to the conflict of laws: David Capper, “Mareva Orders in Globalized Litigation”; Scott Fairley, “Exporting Your Remedy: A Canadian Perspective on the Recognition and Enforcement of Monetary and Other Relief”; Garry Davis, “Damages in Transnational Tort Litigation: Legislative Restrictions and the Substance/Procedure Distinction in Australian Conflict of Laws”; and Russell Weaver & David Partlett, “The Globalization of Defamation”.  This collection of articles is available for purchase here.

Court of Appeal for Ontario Rejects “Fourth Defence” to Enforcement of Foreign Judgments

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The long-running litigation between the United States and a group of defendants who operated a cross-border telemarketing business selling Canadian and foreign lottery tickets to Americans has reached another mile-post with the decision of the Court of Appeal for Ontario in United States of America v. Yemec, 2010 ONCA 414 (available here).  The defendants were likely riding high before this decision, having done quite well in resisting the enforcement of the judgment of an Illinois court finding them liable for $19 million and permanently enjoining them from telemarketing any product or service to anyone in the United States.  But the tables are now turned, with the Court of Appeal for Ontario ordering enforcement of the Illinois judgment.

The most notable jurisprudential issue in the case concerns the scope of the defences at common law to an action to recognize and enforce a foreign judgment.  At common law there are three central defences: fraud, denial of natural justice, and public policy.  However, the Supreme Court of Canada indicated in Beals v. Saldanha, [2003] 3 S.C.R. 416 that this was not a closed list and in the appropriate circumstances a new defence might be created.  In Yemec the motions judge of the Superior Court of Justice hearing the case was persuaded that there was a genuine issue requiring a trial on the question of a “fourth defence”, namely “denial of a meaningful opportunity to be heard”.  The Court of Appeal has now held that there is no such defence: that concerns of this nature fall comfortably within the scope of the denial of natural justice defence.  Further, on the facts, the appellate court found that the defendants were not denied an opportunity to be heard in the courts of Illinois (paras. 26-29). 

The case is one of several in the wake of Pro Swing Inc. v. Elta Golf Inc., [2006]  2 S.C.R. 612 to enforce a foreign non-monetary order, namely the permanent injunction.  The Court of Appeal found the criteria for enforcement set out by the Supreme Court of Canada in Pro Swing were met in this case (paras. 45-53).

The case raises one other interesting issue.  The United States had, at the outset of the litigation in Illinois and Ontario, obtained a freezing order (Mareva) and a civil seizure order (Anton Piller).  These interlocutory orders were subsequently dissolved, in part for failure of the United States to make full disclosure when moving ex parte to obtain the orders.  The defendants then insisted on a damages inquiry under the undertaking in damages the United States had provided as a condition of obtaining the orders.  The plaintiff argued that such an inquiry should not proceed, given that in effect the defendants were seeking to recover lost profits from a business the Illinois court had concluded was illegal.  The Court of Appeal for Ontario held that the damages inquiry should proceed, stressing the importance of enforcing the general undertaking in damages (paras. 69-72).  It did note, though, that there was evidence that the defendants had violated both Canadian and American law (paras. 78-83) and that accordingly it would be difficult for them to establish compensable damages.  But they were entitled to try (paras 85-86).

Canadian Articles on Multijurisdictional Class Actions

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Three recent articles have been published about multijurisdictional class actions in Canada.  One of the most critical issues is whether the courts of a province will enforce a class action judgment from another province or another country approving a settlement that purports to bind plaintiffs resident in the province.  I know that similar issues are under consideration in other countries, so this literature could be of value as comparative law.

Genevieve Saumier, “Competing Class Actions Across Canada: Still at the Starting Gate after Canada Post v. Levine” (2010) 48 C.B.L.J. 462

Tanya Monestier, “Personal Jurisdiction over Non-Resident Class Members: Have We Gone Down the Wrong Road?” (2010) 45 Texas International Law Journal 537

Peter W. Hogg & S. Gordon McKee, “Are National Class Actions Constitutional?” (2010) 26 N.J.C.L. 279

These take their place alongside several other articles on this topic from the past few years.