International procedureInternational procedure

Overview of issues:Overview of issues:- Jurisdiction of courts (incl. issue of Jurisdiction of courts (incl. issue of lis pendenslis pendens))- Service abroadService abroad- Specific rules for cross-border disputes (incl. Specific rules for cross-border disputes (incl.

possible use of harmonised rules of procedure)possible use of harmonised rules of procedure)- Application of foreign law Application of foreign law - Taking evidence abroadTaking evidence abroad- Recognition and enforcement of foreign Recognition and enforcement of foreign

judgments or other instrumentsjudgments or other instruments- Insolvency procedures Insolvency procedures

International procedure - International procedure - sourcessources

Sources in generalSources in general National law on jurisdiction, service, National law on jurisdiction, service,

procedure incl. evidence of facts and law, procedure incl. evidence of facts and law, insolvency proceedings, recognition and insolvency proceedings, recognition and enforcementenforcement

In part replaced by EU legislation (esp. In part replaced by EU legislation (esp. Regulations)Regulations)

Multilateral and bilateral conventionsMultilateral and bilateral conventions

NB. For immunities of jurisdiction, see Ch. 1NB. For immunities of jurisdiction, see Ch. 1

Reasons for choiceReasons for choice Why does it matter ? What do you pay attention to when choosing Why does it matter ? What do you pay attention to when choosing

a forum ?a forum ? Proximity-familiarity of a party (or its lawyer) with the court > Proximity-familiarity of a party (or its lawyer) with the court >

predictability at less costspredictability at less costs Procedural reasons: Procedural reasons: - different rules of procedure, incl. rules on taking evidence different rules of procedure, incl. rules on taking evidence

(‘discovery’), on confidentiality(‘discovery’), on confidentiality- use of language, use of language, - costs and distribution of costs : ‘American rule’  (each party its costs and distribution of costs : ‘American rule’  (each party its

own costs) v. fee-shifting (eg ‘English rule’ loser pays all, own costs) v. fee-shifting (eg ‘English rule’ loser pays all, mitigated since 2013, as in most continental countries)mitigated since 2013, as in most continental countries)

- contingency fees ? Allowed in mist US states, forbidden in most contingency fees ? Allowed in mist US states, forbidden in most continental systems, in E&W to some extent allowed. But continental systems, in E&W to some extent allowed. But conditional fee agreements or success fees usually allowed.conditional fee agreements or success fees usually allowed.

- trust in the judges, trust in the judges, - proximity of evidence (incl. presence of witnesses)proximity of evidence (incl. presence of witnesses)- trust in law firmstrust in law firms

Reasons for choiceReasons for choice Why does it matter ? What do you pay attention to when choosing a Why does it matter ? What do you pay attention to when choosing a

forum ?forum ?

Substantive reasons:Substantive reasons:- applicable rules of the applicable rules of the lex forilex fori, esp. those overruling choice of law , esp. those overruling choice of law

(supermandatory rules)(supermandatory rules)- Court of the country of the applicable law will know that law better > Court of the country of the applicable law will know that law better >

more predictablemore predictable- « national » interpretation of foreign or uniform law« national » interpretation of foreign or uniform law- Possible home bias (eg interpretation of conformity of goods)Possible home bias (eg interpretation of conformity of goods)- Available interim remediesAvailable interim remedies- Remedies courts in that country (can) grant (eg specific Remedies courts in that country (can) grant (eg specific

performance; injunctions; performance; injunctions; - Practical possibility to enforce in that country: assets present there; Practical possibility to enforce in that country: assets present there;

post-decision discovery of assets (eg SCotUS 2014 inpost-decision discovery of assets (eg SCotUS 2014 in NML/Argentina NML/Argentina))

Chances of recognition and enforcement abroadChances of recognition and enforcement abroad

International jurisdictionInternational jurisdiction Domestic rules on international jurisdiction of Domestic rules on international jurisdiction of

national courts (in Belgium in Code of P.I.L.):national courts (in Belgium in Code of P.I.L.):- often rather wide jurisdiction, often rather wide jurisdiction, e.g. based also on *nationality of claimant * foreign e.g. based also on *nationality of claimant * foreign

defendant found in the country, *foreign defendant defendant found in the country, *foreign defendant doing business in the country, etc.; doing business in the country, etc.;

- sometimes limited by « FNC » (sometimes limited by « FNC » (forum non forum non conveniensconveniens))

- sometimes protected by anti-suit injunctions against sometimes protected by anti-suit injunctions against proceedings abroad (eg proceedings abroad (eg Gallo Winery t. AndinaGallo Winery t. Andina, case , case in US against exorbitant jurisdiction rule in Ecuador)in US against exorbitant jurisdiction rule in Ecuador)

- Lis alibi pendens Lis alibi pendens not always an exception or ground not always an exception or ground for suspensionfor suspension

International jurisdictionInternational jurisdiction Domestic rules on international jurisdiction limited by:Domestic rules on international jurisdiction limited by: International conventions (bilateral or multilateral) (no International conventions (bilateral or multilateral) (no

uniform interpretation authority)uniform interpretation authority)- Hague Convention on Choice of Court Agreements 2005 Hague Convention on Choice of Court Agreements 2005

(expected to enter into force Sep 2015 for EU (without (expected to enter into force Sep 2015 for EU (without Denmark) and Mexico: also signed by US and Singapore) Denmark) and Mexico: also signed by US and Singapore)

- Hague Conference preliminary negotiations (2012) for a Hague Conference preliminary negotiations (2012) for a Judgments ConventionJudgments Convention

- Jurisdiction clauses in international transport conventions: Jurisdiction clauses in international transport conventions: CMR art. 31; Hague-Visby rules, Hamburg rules.CMR art. 31; Hague-Visby rules, Hamburg rules.

- International convenions establishing international or International convenions establishing international or common courts (eg European patent Court, Benelux Court)common courts (eg European patent Court, Benelux Court)

EU-Regulations: next slide - uniform interpretation by ECJEU-Regulations: next slide - uniform interpretation by ECJ

Lugano Convention 1988, revised 2007: EU-EFTA Convention Lugano Convention 1988, revised 2007: EU-EFTA Convention (CH, N, Iceland) parallel to EU-Regulation 44/2001 (incl. an (CH, N, Iceland) parallel to EU-Regulation 44/2001 (incl. an endeavour to interpret in conformity with identical rules in EU endeavour to interpret in conformity with identical rules in EU Regulation)Regulation)

International jurisdiction - International jurisdiction - EUEU EU-Regulations:EU-Regulations:

- Civil and commercial matters in general: Reg. 1215/2012 Civil and commercial matters in general: Reg. 1215/2012 (« Brussels-I bis (‘Recast’) (next slide)(« Brussels-I bis (‘Recast’) (next slide)

- Separate Regulations on matrimonial matters and parental Separate Regulations on matrimonial matters and parental responsibility Brussels-II), maintenance obligations (alimony), on responsibility Brussels-II), maintenance obligations (alimony), on transnational successions (650/2012)transnational successions (650/2012)

- Regulation on insolvency proceedings 1346/2000 / Recast 2015 (s. Regulation on insolvency proceedings 1346/2000 / Recast 2015 (s. further)further)

Purpose of these rules:Purpose of these rules:- « Free movement of judgments », i.e. recognition and « Free movement of judgments », i.e. recognition and

enforcement of judgments from other member states (in the USA: enforcement of judgments from other member states (in the USA: full faith and credit)full faith and credit)

- To reach this, harmonisation of international jurisdiction is To reach this, harmonisation of international jurisdiction is requiredrequired

EU – Brussels I Reg -EU – Brussels I Reg - EU-Regulations - Civil and commercial matters in general: EU-Regulations - Civil and commercial matters in general:

originally Brussels Convention 1968, still relevant for overseas originally Brussels Convention 1968, still relevant for overseas territories of art. 355 TFEU: territories of art. 355 TFEU:

until Jan. 10, 2015 Old Brussels-I-Reg. 44/2001. until Jan. 10, 2015 Old Brussels-I-Reg. 44/2001. Now Reg. 1215/2012 (« Brussels-I bis (‘Recast’) Now Reg. 1215/2012 (« Brussels-I bis (‘Recast’)

Scope Scope ratione materiae ratione materiae – next slide– next slide

Relationship with other courts common to some member states Relationship with other courts common to some member states (EPC, Benelux Court) in art. 71a ff.(EPC, Benelux Court) in art. 71a ff.

EU – Brussels I Reg - ScopeEU – Brussels I Reg - Scope Scope Scope ratione materiae ratione materiae - excluded matters:- excluded matters:- family & succession (separate Regulations)family & succession (separate Regulations)

- social security,social security,

- jurisdiction over arbitrationjurisdiction over arbitrationExcluded is therefore also judging the validity of arbitration Excluded is therefore also judging the validity of arbitration

agreements: agreements: - jurisdiction rules left to national law; - jurisdiction rules left to national law; - no recognition on the basis of Brussels-I; - no recognition on the basis of Brussels-I; - thus: a judgment not recognising an arbitration clause is - thus: a judgment not recognising an arbitration clause is

not binding in other MS as to the arbitration clause) not binding in other MS as to the arbitration clause) - proceedings ancillary to arbitration also outside Brussels-- proceedings ancillary to arbitration also outside Brussels-

IbisIbis

Art. 71: priority to other treaties under some conditions (eg CMR Art. 71: priority to other treaties under some conditions (eg CMR art. 31 – see ECJ in C-533/08, art. 31 – see ECJ in C-533/08, TNT/AXATNT/AXA).).

EU – Brussels I Reg - ScopeEU – Brussels I Reg - Scope New Brussels-I-Regulation 1215/2012 (Old = 44/2001)New Brussels-I-Regulation 1215/2012 (Old = 44/2001)

Scope of application Scope of application ratione personaeratione personae Regulates only procedures where a defendant is domiciled Regulates only procedures where a defendant is domiciled

in a MS; otherwise: national procedural law applies (art. 6 in a MS; otherwise: national procedural law applies (art. 6 (old 4.2)) (s. infra Hague Convention on Choice of Court (old 4.2)) (s. infra Hague Convention on Choice of Court Agreements)Agreements)

Definition of domicile:Definition of domicile:- of natural persons: art. 62 (old 59)) > national law (not - of natural persons: art. 62 (old 59)) > national law (not

autonomous) (><in other regulations, habitual residence is autonomous) (><in other regulations, habitual residence is used, an autonomous concept)used, an autonomous concept)

- of legal persons: autonomous definition; alternative grounds - of legal persons: autonomous definition; alternative grounds (art. 63 (old 60))(art. 63 (old 60))

If residence unknown, last known residence may be used If residence unknown, last known residence may be used (C-327/10, (C-327/10, Hypotecni banka / LindnerHypotecni banka / Lindner))

EU – Brussels I Reg - ScopeEU – Brussels I Reg - Scope Brussels-I-Regulation Recast 1215/2012 (in force Jan 10, Brussels-I-Regulation Recast 1215/2012 (in force Jan 10,

2015) (before:44/2001)- Scope of application 2015) (before:44/2001)- Scope of application ratione ratione personaepersonae

Only « international » cases. See however C-478/12 Only « international » cases. See however C-478/12 MaleticMaletic: : when consumer can sue travel organisator before court of its when consumer can sue travel organisator before court of its domicile, he can also sue the travel intermediary with a seat domicile, he can also sue the travel intermediary with a seat elsewhere in his country before the first court (although the elsewhere in his country before the first court (although the latter relationship viewed in isolation is not international)latter relationship viewed in isolation is not international)

Extensions in Recast 1215/2012: also when defendant not Extensions in Recast 1215/2012: also when defendant not domiciled in a MS:domiciled in a MS:

- Jurisdiction over consumer contracts (art. 18 I)Jurisdiction over consumer contracts (art. 18 I)- Jurisdiction over individual employment contracts (art.21)Jurisdiction over individual employment contracts (art.21)- Matters of exclusive jurisdiction (art. 24)Matters of exclusive jurisdiction (art. 24)- (valid) Choice of forum of a court in a member state (art. 25)(valid) Choice of forum of a court in a member state (art. 25) Outside these cases, national procedural law determines Outside these cases, national procedural law determines

whether a non-EU defendant can be sued in eg proceedings whether a non-EU defendant can be sued in eg proceedings against an EU-defendantagainst an EU-defendant

EU – Brussels I - GeneralEU – Brussels I - General General characteristics:General characteristics:

Hard & strict rulesHard & strict rules

Restrictive interpretation of any deviation from the basic Restrictive interpretation of any deviation from the basic rule «court of the defendant» (against a rule «court of the defendant» (against a forum actorisforum actoris = = home play)home play)

No doctrine of «No doctrine of «forum non conveniensforum non conveniens» (FNC) - ECJ in C-» (FNC) - ECJ in C-281/02 281/02 OwusuOwusu (British tourist in Jamaica tort case, sues also (British tourist in Jamaica tort case, sues also travel agent in UK as ‘anchor defendant’)travel agent in UK as ‘anchor defendant’)

Court examines jurisdiction Court examines jurisdiction ex officioex officio (art. 27 ff., old 25 ff.) (art. 27 ff., old 25 ff.)

No anti-suit injunctions (next slide)No anti-suit injunctions (next slide)

EU – Brussels I - GeneralEU – Brussels I - General General characteristics (cont.)General characteristics (cont.)

No «anti-suit injunction» allowed: ECJ in C-159/02 No «anti-suit injunction» allowed: ECJ in C-159/02 TurnerTurner (not even by court seised first) and in C-185/2007 (not even by court seised first) and in C-185/2007 West West tankers tankers (not even in relation to arbitration) (disputed (not even in relation to arbitration) (disputed whether the latter remains under the new 1215/2012 whether the latter remains under the new 1215/2012 Regulation); Regulation);

ECJ in C-536/13 ECJ in C-536/13 Gazprom/LithuaniaGazprom/Lithuania: whether a court should : whether a court should recognise or not a so-called anti-suit order by arbitrators is recognise or not a so-called anti-suit order by arbitrators is outside scope of Brussels-I and governed by national outside scope of Brussels-I and governed by national procedural law.procedural law.

In the In the AlexandrosAlexandros case ( case (Starlight Shipping/Allianz MarineStarlight Shipping/Allianz Marine), ), the UKSC (6 Nov 2013) did decide that Brussels-I (art. 27 the UKSC (6 Nov 2013) did decide that Brussels-I (art. 27 old) and pending proceedings in Greece did old) and pending proceedings in Greece did notnot bar in bar in England a claim for damages for breach of the jurisdiction England a claim for damages for breach of the jurisdiction agreement and an earlier settlement.agreement and an earlier settlement.

Brussels-I Excl. jurisdictionBrussels-I Excl. jurisdiction Brussels-I-Regulation – Grounds for jurisdiction:Brussels-I-Regulation – Grounds for jurisdiction:

Some cases of exclusive jurisdiction (no choice of Some cases of exclusive jurisdiction (no choice of court possible): court possible):

- Real estate: proprietary rights in immovable Real estate: proprietary rights in immovable property + tenancy in immovable property (art. property + tenancy in immovable property (art. 24.1, old 22.1)24.1, old 22.1)

- Matters of the law of companies and other legal Matters of the law of companies and other legal persons (24.2, old 22.2) persons (24.2, old 22.2)

- Entries in public registers (24.3, old 22.3) Entries in public registers (24.3, old 22.3) - Intellectual property rights (24.4, old 22.4) Intellectual property rights (24.4, old 22.4) - Enforcement (24.5, old 22.5) Enforcement (24.5, old 22.5)

Brussels I Choice of courtBrussels I Choice of court Effect of choice of court agreements: Art. 25 (old 23). It must be Effect of choice of court agreements: Art. 25 (old 23). It must be

recognised if:recognised if: 1° Old Reg.: at least one party domiciled in a member state - no 1° Old Reg.: at least one party domiciled in a member state - no

longer required in new art. 25;longer required in new art. 25;2° consent of the parties is clear*. Also in case of conferral in a 2° consent of the parties is clear*. Also in case of conferral in a trust instrument (art. 25.3 with exceptions in 25.4). See next slide trust instrument (art. 25.3 with exceptions in 25.4). See next slide on validity;on validity;3° in writing (incl. e-communication) or in another form customary 3° in writing (incl. e-communication) or in another form customary in international trade or according to practices between the in international trade or according to practices between the parties; e.g.:? Clause in conditions of issue of bonds or other parties; e.g.:? Clause in conditions of issue of bonds or other financial instruments. Sufficient: online click-wrap (C-322/14 financial instruments. Sufficient: online click-wrap (C-322/14 El El MajdoubMajdoub))4° indicating a court or the courts of a member state.4° indicating a court or the courts of a member state.* Disputed whether third party deriving rights from a contract is * Disputed whether third party deriving rights from a contract is also bound by choice of court. Cass.(Fr) 4 Jan 2005: addressee in also bound by choice of court. Cass.(Fr) 4 Jan 2005: addressee in transport contract is not bound. ECJ: holder of bill of lading bound transport contract is not bound. ECJ: holder of bill of lading bound (C-71/83, (C-71/83, RussRuss), future shareholders (C-214/89 ), future shareholders (C-214/89 Powell DuffrynPowell Duffryn), ), not later buyer with direct action (C-543/10 not later buyer with direct action (C-543/10 RefcompRefcomp))

Brussels I Choice of courtBrussels I Choice of court Problem under old Reg: no priority for designated court. If Problem under old Reg: no priority for designated court. If

however, a court declines juridiction because of forum however, a court declines juridiction because of forum clause, courts in other MS are bound (C-456/11 clause, courts in other MS are bound (C-456/11 Gothaer Gothaer allgemeine/Samskipallgemeine/Samskip))

New Brussels Ibis: The designated judge will judge (the New Brussels Ibis: The designated judge will judge (the effectiveness of) the choice of court agreementeffectiveness of) the choice of court agreement

Validity of choice of court agreements: next slidesValidity of choice of court agreements: next slides

Brussels I Choice of courtBrussels I Choice of court Validity of choice of court agreements Validity of choice of court agreements - Formal validity: uniform rule for all member states in Formal validity: uniform rule for all member states in

Regulation itself; see supraRegulation itself; see supra- Validity of choice of court agreements to be assessed Validity of choice of court agreements to be assessed

separately from the rest of the contract (art. 25.6)separately from the rest of the contract (art. 25.6)- Validity to be judged by the law of the designated forum Validity to be judged by the law of the designated forum

(art. 25.1: (art. 25.1: lex fori prorogatilex fori prorogati), including its conflict of law ), including its conflict of law rules (Consideration 20: rules (Consideration 20: renvoirenvoi possible), thus by the law possible), thus by the law applicable by virtue of the conflict of law rules of the applicable by virtue of the conflict of law rules of the designated forumdesignated forum

- Validity of unilateral optional forum clauses ? French case Validity of unilateral optional forum clauses ? French case law clarified in Cass.(Fr.) 7 Oct 2015 : valid if the possible law clarified in Cass.(Fr.) 7 Oct 2015 : valid if the possible fora are sufficiently determined; valid in the UK.fora are sufficiently determined; valid in the UK.

- Restrictive interpretation. Eg jurisdiction clause covers Restrictive interpretation. Eg jurisdiction clause covers claims for anti-competitive practices only if expressly claims for anti-competitive practices only if expressly covered (ECJ C-352/13 covered (ECJ C-352/13 Hydrogen PeroxideHydrogen Peroxide; Cass.(Fr.) 7 Oct ; Cass.(Fr.) 7 Oct 2015)2015)

Brussels-I Choice of courtBrussels-I Choice of court Exceptions to choice of court agreements Exceptions to choice of court agreements

Excluded in cases of exclusive jurisdiction (art. 24, old 22) Excluded in cases of exclusive jurisdiction (art. 24, old 22) Limited in insurance, consumer and labour disputes (see Limited in insurance, consumer and labour disputes (see

art. 15, 19, 23) (old 13 c.q. 17 c.q. 21)art. 15, 19, 23) (old 13 c.q. 17 c.q. 21) Overrules national restrictions (eg. Rules on jurisdiction in Overrules national restrictions (eg. Rules on jurisdiction in

cases of Distributorship or Commercial Agency in Belgian cases of Distributorship or Commercial Agency in Belgian Econiomic Law Code) (but see next slide for cases outside Econiomic Law Code) (but see next slide for cases outside the Regulation)the Regulation)

Some restrictions in other treaties remain (eg CMR Some restrictions in other treaties remain (eg CMR Convention)Convention)

Voluntary appearance of defendant without protest (art. 26, Voluntary appearance of defendant without protest (art. 26, old 24) (except cases of exclusive jurisdiction under art. 24, old 24) (except cases of exclusive jurisdiction under art. 24, old 22)old 22)

National law on choice of National law on choice of courtcourt Quid if designated Court is outside EU ? Quid if designated Court is outside EU ?

Outside the scope of Brussels-I-Reg > national law (unless another Outside the scope of Brussels-I-Reg > national law (unless another Treaty applies, see next slide on Hague Convention)Treaty applies, see next slide on Hague Convention)

National restrictions thus apply, esp. in case of overriding mandatory National restrictions thus apply, esp. in case of overriding mandatory provisions of substantive law (e.g. Agency, Distributorship)provisions of substantive law (e.g. Agency, Distributorship)(See also the same question as to arbitration clauses)(See also the same question as to arbitration clauses)

- Explicit provisions in e.g. Belgian law: Belgian Courts always Explicit provisions in e.g. Belgian law: Belgian Courts always competent for cases of termination of commercial agency or competent for cases of termination of commercial agency or distributorshipdistributorship

- 2 Possible approaches: either 2 Possible approaches: either ex ante ex ante rejection of the choice of court rejection of the choice of court if the foreign court is not obliged to apply the mandatory provisions, if the foreign court is not obliged to apply the mandatory provisions, or or ex post ex post non-recognition if the foreign court has not done so (+ non-recognition if the foreign court has not done so (+ stay domestic case on the basis of recognition prognosis)stay domestic case on the basis of recognition prognosis)

- BGH 30 Jan 1961; recently BGH 5 Sep 2012, BGH 30 Jan 1961; recently BGH 5 Sep 2012, Virginia agency caseVirginia agency case: : ex ex ante ante rejection. Although American Courts would probably apply rejection. Although American Courts would probably apply German law on the basis of the German law on the basis of the comparative impairment doctrine (§ comparative impairment doctrine (§ 187(2) US restatement 2nd of Conflict of Laws)187(2) US restatement 2nd of Conflict of Laws)

- English High Court in English High Court in Accentuate Ltd v AsgiraAccentuate Ltd v Asgira: idem (arbitration : idem (arbitration clause)clause)

Choice of court – Hague CChoice of court – Hague C Choice of Court Agreements – Hague Convention 2005 (in Choice of Court Agreements – Hague Convention 2005 (in

force since October 1, 2015, for Mexico and the EU (w/o force since October 1, 2015, for Mexico and the EU (w/o Denmark); signed by US and Singapore):Denmark); signed by US and Singapore):

Art. 1: defines « international cases »Art. 1: defines « international cases » Art. 2: outside scope of application: consumer cases, labour Art. 2: outside scope of application: consumer cases, labour

cases, family law, successions, insolvency, competition, most cases, family law, successions, insolvency, competition, most tort cases, property in land, legal persons, most intellectual tort cases, property in land, legal persons, most intellectual property cases, etc.property cases, etc.

Art. 3 a) applies (only) where the agreement indicates a Court Art. 3 a) applies (only) where the agreement indicates a Court of a contracting state as exclusive forum*of a contracting state as exclusive forum*

* The choice is deemed exclusive, unless expressly declared * The choice is deemed exclusive, unless expressly declared non-exclusive by the partiesnon-exclusive by the parties

Relationship with Brussels-I: Hague has priority, applies as Relationship with Brussels-I: Hague has priority, applies as soon as one of the parties is domiciled in a Hague state, soon as one of the parties is domiciled in a Hague state, unless all parties are domiciled in the EU (see Art. 26)unless all parties are domiciled in the EU (see Art. 26)

Choice of court – Hague CChoice of court – Hague C Choice of Court Agreements – Hague Convention 2005:Choice of Court Agreements – Hague Convention 2005:

Art. 3 formal requirements: in writing or Art. 3 formal requirements: in writing or by any other by any other means of communication that renders information means of communication that renders information accessible so as to be usable for subsequent referenceaccessible so as to be usable for subsequent reference

Art. 5: substantive validity to be determined under the law Art. 5: substantive validity to be determined under the law of the chosen court (of the chosen court (lex fori prorogatilex fori prorogati))

Choice of court – Hague CChoice of court – Hague C Choice of Court Agreements Hague Convention 2005 - effectsChoice of Court Agreements Hague Convention 2005 - effects

Art. 5: Chosen court* must hear the case, unless it finds the Art. 5: Chosen court* must hear the case, unless it finds the agreement invalid; Art. 5: validity under the law of the chosen agreement invalid; Art. 5: validity under the law of the chosen courtcourt

• More precisely: chosen court system (state basis) (transfer to More precisely: chosen court system (state basis) (transfer to other court of same state system remains possible); it cannot other court of same state system remains possible); it cannot invoke ‘invoke ‘forum non conveniensforum non conveniens’’

Any not-named court must decline jurisdiction (unless named Any not-named court must decline jurisdiction (unless named court has declined) (Art. 6)court has declined) (Art. 6)

Convention does not govern interim measures (art. 7)Convention does not govern interim measures (art. 7)

Recognition and enforcement may only be refused on the Recognition and enforcement may only be refused on the grounds of art. 9 (i.a. art. 11 punitive damages, cfr. existing grounds of art. 9 (i.a. art. 11 punitive damages, cfr. existing case law in Germany, France, Italy)case law in Germany, France, Italy)

Brussels-I general rulesBrussels-I general rules Grounds for jurisdiction (cont.)Grounds for jurisdiction (cont.) Basic rule: domicile of the defendant (rule against Basic rule: domicile of the defendant (rule against forum forum

actorisactoris) (Art. 4, old 2)) (Art. 4, old 2) Art. 8.1 (old 6.1.) Plurality of defendants if closely linked Art. 8.1 (old 6.1.) Plurality of defendants if closely linked

(requirement of reasonable foreseeability in ECJ C-145/10 (requirement of reasonable foreseeability in ECJ C-145/10 Painer,Painer, (violation of privacy by media), taken over in Recast (violation of privacy by media), taken over in Recast 1215/2012)1215/2012)

(but for defendants outside EU, national law determines this)(but for defendants outside EU, national law determines this)8.1. is often used for forum shopping. Eg allows a company with 1 8.1. is often used for forum shopping. Eg allows a company with 1

British creditor to apply in England for approval of a « Scheme British creditor to apply in England for approval of a « Scheme of Arrangement » (which requires consent of 75% of the of Arrangement » (which requires consent of 75% of the concerned class of creditors)concerned class of creditors)

Exception where claimant and anchor defendant collude to Exception where claimant and anchor defendant collude to artificially create the basis for jurisdiction (C-352/13 artificially create the basis for jurisdiction (C-352/13 Cartel Cartel Damage ClaimsDamage Claims) (s. also C-103/05 ) (s. also C-103/05 Reisch MontageReisch Montage))

Art. 8.3 (old 6.3): Counterclaims: same courtArt. 8.3 (old 6.3): Counterclaims: same court Art. 8.2 (old 6.2): Third party intervention: possible in same Art. 8.2 (old 6.2): Third party intervention: possible in same

courtcourt

Brussels-I Brussels-I provisional measuresprovisional measures

Provisional measures: art. 35 (old 31)Provisional measures: art. 35 (old 31)

- may be demanded in the country where they can/must be may be demanded in the country where they can/must be performed/enforced performed/enforced

- condition is that they are provisional - restrictive condition is that they are provisional - restrictive interpretation of « provisional measure »: only interpretation of « provisional measure »: only « conservatory measures » (ECJ in C-104/2003), incl. « conservatory measures » (ECJ in C-104/2003), incl. obtaining information or preserving evidence obtaining information or preserving evidence

- Does not include Does not include eg ordering the hearing of a witness (but a eg ordering the hearing of a witness (but a court has jurisdiction for such measures if asked by the court court has jurisdiction for such measures if asked by the court having jurisdiction over substance, see further Reg. having jurisdiction over substance, see further Reg. 1206/2011 on evidence)1206/2011 on evidence)

- BUT: Territorial scope: see BUT: Territorial scope: see infrainfra recognition/enforcement recognition/enforcement (only measures by court having jurisdiction over substance, (only measures by court having jurisdiction over substance, have effect on other MS).have effect on other MS).

Alternative jurisdiction: Alternative jurisdiction: contractscontracts

Brussels-I-Regulation – grounds for jurisdiction (contracts)Brussels-I-Regulation – grounds for jurisdiction (contracts) Alternative grounds on which claimant can base jurisdiction: Alternative grounds on which claimant can base jurisdiction: art. 7.1.a. (old 5.1.a) claim based on a contractual obligation art. 7.1.a. (old 5.1.a) claim based on a contractual obligation

and other ‘matters related to a contract’:and other ‘matters related to a contract’: place of performance of the obligation (as determined by the place of performance of the obligation (as determined by the

substantive law applicable to the obligation) (secondary obligations substantive law applicable to the obligation) (secondary obligations follow the principal obligation)follow the principal obligation)

Contractual obligation includes tort claims where the conduct Contractual obligation includes tort claims where the conduct complained of may be considered breach of contract terms (C-548/12, complained of may be considered breach of contract terms (C-548/12, BrogsitterBrogsitter))

art. 7.1.b (old 5.1.b) in sales and service contracts art. 7.1.b (old 5.1.b) in sales and service contracts - > a more specific and autonomous rule: place of delivery c.q. > a more specific and autonomous rule: place of delivery c.q.

provision of service or place where should have been provision of service or place where should have been delivered/provided. delivered/provided.

- To be determined by interpreting the contract, taking into account To be determined by interpreting the contract, taking into account also « including terms and clauses which are generally recognised also « including terms and clauses which are generally recognised and applied through the usages of international trade or commerce, and applied through the usages of international trade or commerce, such as the Incoterms » (C-87/10 such as the Incoterms » (C-87/10 ElectrosteelElectrosteel). If that does not help, ). If that does not help, place of factual delivery (C-381/08 place of factual delivery (C-381/08 Car TrimCar Trim))

Alternative jurisdiction: Alternative jurisdiction: tortstorts

Brussels-I-Regulation – Alternative grounds on which claimant can Brussels-I-Regulation – Alternative grounds on which claimant can base jurisdiction – tort:base jurisdiction – tort:

Art. 7.2 (old 5.3) Claim based on a non-contractual obligation from Art. 7.2 (old 5.3) Claim based on a non-contractual obligation from tort: place where the harmful event occurred. tort: place where the harmful event occurred.

- In general, this can be the place where the event was caused (In general, this can be the place where the event was caused ( locus locus actiacti) or where the damage occurs () or where the damage occurs (locus damnilocus damni) (C-21/76 ) (C-21/76 Bier /Mines Bier /Mines de Potassede Potasse). For a defective product: where it is produced or where ). For a defective product: where it is produced or where damage is caused, not where it is merely marketed C-45/13 damage is caused, not where it is merely marketed C-45/13 KainzKainz))

- Also possible for negative declarations on liability in tort (C-133/11 Also possible for negative declarations on liability in tort (C-133/11 Folien FischerFolien Fischer) > incentive for defendant to go to court first) > incentive for defendant to go to court first

- For damage to personality rights worldwide: full jurisdiction for For damage to personality rights worldwide: full jurisdiction for country where act is committed and country of centre of main country where act is committed and country of centre of main interest of damaged person; partial jurisdiction for other countries interest of damaged person; partial jurisdiction for other countries where damage is caused (C-509/09 where damage is caused (C-509/09 eDate advertisingeDate advertising))

- Damage to personality rights by press (C-68/93, Damage to personality rights by press (C-68/93, ShevillShevill) or damage ) or damage to IP rights (including on internet) (C-523/10 to IP rights (including on internet) (C-523/10 WintersteigerWintersteiger; C-441/13 ; C-441/13 HejdukHejduk): full jurisdiction for country where act is committed; partial ): full jurisdiction for country where act is committed; partial jurisdiction for other countries where damage was caused. jurisdiction for other countries where damage was caused.

Alternative jurisdiction Alternative jurisdiction otherother Brussels-I-Regulation – grounds for jurisdiction Brussels-I-Regulation – grounds for jurisdiction

Alternative grounds on which claimant can base jurisdiction: Alternative grounds on which claimant can base jurisdiction: 7.5. (old 5.5) Disputes arising out of the operations of a 7.5. (old 5.5) Disputes arising out of the operations of a

branch, agency or other establishment: its locationbranch, agency or other establishment: its location 10-16 (old 8-14) Insurance contracts litigation10-16 (old 8-14) Insurance contracts litigation 17-19 (old 15-17) Consumer contracts litigation in 3 cases17-19 (old 15-17) Consumer contracts litigation in 3 cases- (a) a contract for the sale of goods on instalment credit terms; (a) a contract for the sale of goods on instalment credit terms; - (b) a contract for a loan repayable by instalments, or for any (b) a contract for a loan repayable by instalments, or for any

otherotherform of credit, made to finance the sale of goods; orform of credit, made to finance the sale of goods; or- (c) the contract has been concluded with a person who (c) the contract has been concluded with a person who

pursues commercial or professional activities in the MS of the pursues commercial or professional activities in the MS of the consumer's domicile or, by any means, directs such activities consumer's domicile or, by any means, directs such activities to that MS or to several States including that MS (NB. no to that MS or to several States including that MS (NB. no requirement that contract is concluded as distance contract: requirement that contract is concluded as distance contract: C-190/11 C-190/11 Mühlleitner / Autohaus YusufiMühlleitner / Autohaus Yusufi))

20-23 (old 18-21) Labour contracts litigation20-23 (old 18-21) Labour contracts litigation

Alternative jurisdiction: Alternative jurisdiction: generalgeneral

Restrictive interpretation of alternative groundsRestrictive interpretation of alternative grounds- eg succeeding party such as assignee*, eg succeeding party such as assignee*,

subrogated party** cannot use the alternative subrogated party** cannot use the alternative jurisdiction (except when it personally meets the jurisdiction (except when it personally meets the requirements)requirements)

• * C-89/91 * C-89/91 Shearson Lehman HuttonShearson Lehman Hutton• ** C-347/08 ** C-347/08 Vorarlberger GebietskrankenkasseVorarlberger Gebietskrankenkasse

Lis alibi pendens in EULis alibi pendens in EU Brussels-I-Regulation – further rules on jurisdictionBrussels-I-Regulation – further rules on jurisdiction

Lis alibi pendens Lis alibi pendens in other MS (art. 29, old 27) – Scope of in other MS (art. 29, old 27) – Scope of application:application:

- same claim (same cause of action) between same parties** same claim (same cause of action) between same parties** already* before another courtalready* before another court

- * Date of seizure autonomously defined (art. 32, old 30): * Date of seizure autonomously defined (art. 32, old 30): claim filed at court or claim received by the servicing claim filed at court or claim received by the servicing authority (see further the rules on servicing abroad)authority (see further the rules on servicing abroad)

- ** C-452/12 ** C-452/12 NipponkoaNipponkoa: where a claim for a declaration of : where a claim for a declaration of non-liability is already pending, a recourse by the insurer of non-liability is already pending, a recourse by the insurer of the defendant who has paid a third party falls within the the defendant who has paid a third party falls within the scope of lis pendens.scope of lis pendens.

Lis alibi pendens in EULis alibi pendens in EU Brussels-I-Regulation – further rules on jurisdictionBrussels-I-Regulation – further rules on jurisdiction

Lis alibi pendens Lis alibi pendens in other MS (art. 29, old 27) - Effects:in other MS (art. 29, old 27) - Effects:- Later court must suspend/stay proceedings until court first Later court must suspend/stay proceedings until court first

seised has decided (and must decline jurisdiction if first seised has decided (and must decline jurisdiction if first court decides it has jurisdiction). First court has court decides it has jurisdiction). First court has KompetenzkompetenzKompetenzkompetenz (even on the question whether there (even on the question whether there is a choice for court agreement naming another court). This is a choice for court agreement naming another court). This is not the case when:is not the case when:

- A) the court seised later has exclusive jurisdiction on the A) the court seised later has exclusive jurisdiction on the basis of Ch. II. S. 3 (insurance), 4 (consumer) or art. 24 (old basis of Ch. II. S. 3 (insurance), 4 (consumer) or art. 24 (old 22) (ECJ C-438/12 Weber/Weber)22) (ECJ C-438/12 Weber/Weber)

- B) New rule in Brussels Ibis art. 31.2: where another court is B) New rule in Brussels Ibis art. 31.2: where another court is seised on the basis of a choice of court agreement, that seised on the basis of a choice of court agreement, that court has to decide first: named court has court has to decide first: named court has Kompetenzkompetenz (Kompetenzkompetenz (differs from old rule, as found indiffers from old rule, as found in ECJ ECJ C-116/02, C-116/02, GasserGasser).).

Lis alibi pendens in Lis alibi pendens in arbitrationarbitration

Brussels-I-Regulation – further rules on Brussels-I-Regulation – further rules on jurisdictionjurisdiction

Lis alibi pendens Lis alibi pendens and arbitrationand arbitration- No suspension if there is arbitration agreement, No suspension if there is arbitration agreement,

even if arbitration proceedings already pending even if arbitration proceedings already pending - the wide exclusion of arbitration from the scope the wide exclusion of arbitration from the scope

in the Recast (s. supra) also means that the fact in the Recast (s. supra) also means that the fact that the validity of an arbitration agreement is that the validity of an arbitration agreement is already pending before one court not deprive already pending before one court not deprive other courts of jurisdiction !other courts of jurisdiction !

Lis alibi pendens extra EULis alibi pendens extra EU

Brussels-I-Regulation – further rules on jurisdictionBrussels-I-Regulation – further rules on jurisdiction

new in Recast 1215/2012 art. 33:new in Recast 1215/2012 art. 33:

Lis alibi pendens Lis alibi pendens in non-EU court : later EU court in non-EU court : later EU court may suspend proceedings. Here the may suspend proceedings. Here the forum non forum non conveniensconveniens doctrine is used. doctrine is used.

Decision of non-EU Court with Decision of non-EU Court with res iudicatares iudicata: EU : EU court will dismiss the proceedings if the non-EU court will dismiss the proceedings if the non-EU judgment is capable of recognition (new art. 33.3)judgment is capable of recognition (new art. 33.3)

Connex case pendingConnex case pending

Brussels-I-Regulation – further rules on Brussels-I-Regulation – further rules on jurisdictionjurisdiction

Connexity (connected or related cases): later Connexity (connected or related cases): later court MAY suspend or refer the case (no court MAY suspend or refer the case (no obligation) (art. 30, old 28)obligation) (art. 30, old 28)

Connexity with case in non-EU court (new in Connexity with case in non-EU court (new in Recast 1215/2012 art. 34)Recast 1215/2012 art. 34)

US jurisdictionUS jurisdiction International jurisdiction of US Courts: mostly wide rules of jurisdiction but International jurisdiction of US Courts: mostly wide rules of jurisdiction but

with many or wide exceptionswith many or wide exceptions Grounds for jurisdiction: it is sufficient that there is a contact Grounds for jurisdiction: it is sufficient that there is a contact in personamin personam

or or in remin rem with the state concerned with the state concerned-- Jurisdiction Jurisdiction in personamin personam: very broadly formulated – mere presence of the : very broadly formulated – mere presence of the

defendant (domicile, citizenship, temporary presence, doing business) or defendant (domicile, citizenship, temporary presence, doing business) or consent of the defendant (choice of court agreement). Restricted by consent of the defendant (choice of court agreement). Restricted by SCotUS in SCotUS in Daimler v BaumanDaimler v Bauman (Jan 14, 2014): general jurisdiction only in (Jan 14, 2014): general jurisdiction only in home state of defendant; otherwise only specific jurisdiction for claims home state of defendant; otherwise only specific jurisdiction for claims linked to the place; where there is no immunity of a foreign state because linked to the place; where there is no immunity of a foreign state because of commercial activities, SCotUS accepts jurisdiction only if the claim is of commercial activities, SCotUS accepts jurisdiction only if the claim is absed upon the comemrcial activity in th US a claim based upon (1 Dec absed upon the comemrcial activity in th US a claim based upon (1 Dec 2015 in OBB Personenverkehr)2015 in OBB Personenverkehr)

- Jurisdiction Jurisdiction in remin rem: dispute over property in an asset situated in that : dispute over property in an asset situated in that state.state.

Exceptions / Limitations to jurisdiction:Exceptions / Limitations to jurisdiction:- Choice of Court Agreement (widely accepted – SC 3 Dec 2013 in Choice of Court Agreement (widely accepted – SC 3 Dec 2013 in Atlantic Atlantic

Marine ConstructionMarine Construction))- Defendant fraudulently lured into the jurisdiction (invited for dinner)Defendant fraudulently lured into the jurisdiction (invited for dinner)- Forum non conveniensForum non conveniens (rarely accepted !, Gilbert case 1947) (rarely accepted !, Gilbert case 1947)- Lis alibi pendensLis alibi pendens: «first filed rule»: «first filed rule»

UK jurisdiction UK jurisdiction

International jurisdiction of English Courts outside Brussels I-bis > International jurisdiction of English Courts outside Brussels I-bis > domestic lawdomestic law

Common law tradition: mostly wide rules of jurisdiction but with Common law tradition: mostly wide rules of jurisdiction but with many or wide exceptionsmany or wide exceptions

Including wide jurisdiction Including wide jurisdiction in personamin personam Exception of Exception of forum non conveniensforum non conveniens

Servicing docs. abroadServicing docs. abroad Service abroad of judicial documentsService abroad of judicial documents Hague Convention 1965 on the service abroad of judicial Hague Convention 1965 on the service abroad of judicial

and extrajudicial documents in civil and commercial and extrajudicial documents in civil and commercial matters: cross-border service to a known address:matters: cross-border service to a known address:

- can take place via the «central authorities» of the can take place via the «central authorities» of the contracting states; contracting states;

- a direct service abroad is possible in certain cases.a direct service abroad is possible in certain cases.

EU Regulation 1393/2007 on service between member EU Regulation 1393/2007 on service between member states: next slidestates: next slide

Matters outside these Conventions/Regulations: regulated Matters outside these Conventions/Regulations: regulated by domestic law (usually via bailiff + postal service)by domestic law (usually via bailiff + postal service)

Servicing docs. abroadServicing docs. abroad EU Regulation 1393/2007 on service between member states:EU Regulation 1393/2007 on service between member states:

- transmission via central authorities (art. 4 ff.) (standard forms);transmission via central authorities (art. 4 ff.) (standard forms);- alternative forms in art. 12 ff; alternative forms in art. 12 ff; - direct service by officials in the MS addressed if this is direct service by officials in the MS addressed if this is

permitted by the law of that State (art. 15)permitted by the law of that State (art. 15)

- C-473/04 C-473/04 PlumexPlumex: no hierarchy between these alternatives: no hierarchy between these alternatives

- adressee may refuse to accept if neither in the official language adressee may refuse to accept if neither in the official language of the place of destination nor in a language easily understood of the place of destination nor in a language easily understood by defendant (art. 8); authority must deliver model form to by defendant (art. 8); authority must deliver model form to adressee (Annex II of Reg. 1393/2007).adressee (Annex II of Reg. 1393/2007).

Additional rules in specific regulations (eg Small Claims Additional rules in specific regulations (eg Small Claims Regulation)Regulation)

Cross-border proceduresCross-border procedures National law may have specific rules of procedure for cross-National law may have specific rules of procedure for cross-

border litigation (rare, except EU-Regulations mentioned infra)border litigation (rare, except EU-Regulations mentioned infra) If such rules are restrictive, they may be set aside by EU law, If such rules are restrictive, they may be set aside by EU law,

e.g. the requirement of a e.g. the requirement of a Cautio iudicatum solvi Cautio iudicatum solvi for foreign for foreign claimantsclaimants

EU: proposals of the Storme-Commission 1994EU: proposals of the Storme-Commission 1994 Some largely uniform procedures for cross-border litigation Some largely uniform procedures for cross-border litigation

introduced in the law of all EU member states:introduced in the law of all EU member states:- Small claims Regulation (Reg. 861/2007; Recast agreed in Small claims Regulation (Reg. 861/2007; Recast agreed in

2015)2015)- Payment order Regulation (Reg. 1896/2006)Payment order Regulation (Reg. 1896/2006)- New Regulation on attachment of bank accounts (New Regulation on attachment of bank accounts (“European “European

Account Preservation Order”)Account Preservation Order”)

Model law by ALI/Unidroit Model law by ALI/Unidroit Principles of transnational civil Principles of transnational civil procedure (Principles + Annex with “Rules”) procedure (Principles + Annex with “Rules”)

Applying foreign lawApplying foreign law

What is the task of the judge when according to the conflict What is the task of the judge when according to the conflict of law rule, foreign law must be applied ?of law rule, foreign law must be applied ?

- Continental rule: Continental rule: curia novit iuscuria novit ius, applies also to the foreign , applies also to the foreign law indicated by the domestic conflict rule (eg Belgian Cass. law indicated by the domestic conflict rule (eg Belgian Cass. 18 March 2013). Judge may obtain information according to 18 March 2013). Judge may obtain information according to the the European Convention on Information on Foreign Law European Convention on Information on Foreign Law (London 1968) (not frequently used). More frequent: expert (London 1968) (not frequently used). More frequent: expert opinion on foreign lawopinion on foreign law

- Anglo-American rule: foreign law is a matter of fact that Anglo-American rule: foreign law is a matter of fact that must be proven (usually by expert opinion, esp. must be proven (usually by expert opinion, esp. affidavitaffidavit by by qualified foreign lawyer)qualified foreign lawyer)

Evidence - problemsEvidence - problems Applicable law: Applicable law: - rules on means of proof accepted for certain facts, eg rules on means of proof accepted for certain facts, eg

contracts: the applicable substantive lawcontracts: the applicable substantive law- rules on obtaining evidence: domestic procedural law (rules on obtaining evidence: domestic procedural law (lex lex

forifori).).

Procedural law of evidence differs a lot, e.g. concerning Procedural law of evidence differs a lot, e.g. concerning discovery (discovery (actio ad exhibendumactio ad exhibendum):):

- continental rule: restricted to specific documents continental rule: restricted to specific documents - >< in USA: much broader («fishing expeditions»)>< in USA: much broader («fishing expeditions»)

Evidence – expert opinionsEvidence – expert opinions Means of proof especially relevant in international trade: expert Means of proof especially relevant in international trade: expert

examinations; certificates or reports of control/surveillance examinations; certificates or reports of control/surveillance organisations, etc. organisations, etc.

Parties may use the ICC Rules for Experts (deal with proposal of Parties may use the ICC Rules for Experts (deal with proposal of experts by ICC, appointment rules, administration rules) (see Ch. experts by ICC, appointment rules, administration rules) (see Ch. 12)12)

Experts may be:Experts may be:- court-appointed experts or joint experts of all partiescourt-appointed experts or joint experts of all parties- single experts of one or more parties onlysingle experts of one or more parties only

National law contains some standards for experts (independence, National law contains some standards for experts (independence, impartiality,etc….)impartiality,etc….)

Some Codes of conduct (eg Euroexpert).Some Codes of conduct (eg Euroexpert).See also in Ch. 12 Rules on the Taking of Evidence in International See also in Ch. 12 Rules on the Taking of Evidence in International

ArbitrationArbitration

EvidenceEvidence Taking evidence abroadTaking evidence abroad Unilaterally: Unilaterally: - supposes voluntary compliancesupposes voluntary compliance- in some cases compliance is even forbidden (by « blocking in some cases compliance is even forbidden (by « blocking

statutes » or by a specific court order) except where statutes » or by a specific court order) except where information is exported on the basis of international information is exported on the basis of international conventions (as the Hague Convention, next slide) conventions (as the Hague Convention, next slide) Eg French Law 80-538 of 16 July 1980 (originally reaction against Eg French Law 80-538 of 16 July 1980 (originally reaction against american action against shipping cartels): communication of economic, american action against shipping cartels): communication of economic, commercial, industrial, financial or technical information is prohibitedcommercial, industrial, financial or technical information is prohibited-- if capable of harming the sovereignty, security or essential economic - if capable of harming the sovereignty, security or essential economic interests of France or contravening public policy;interests of France or contravening public policy;-- if leading to establishment of proof in foreign legal proceedings.- if leading to establishment of proof in foreign legal proceedings.Eg Swiss Banking law (bank secrecy)Eg Swiss Banking law (bank secrecy)

- That prohibition sometimes set aside by foreign court: That prohibition sometimes set aside by foreign court: - eg E&WC.A. 22 Oct 2013: recourse to the Evidence Regulation not eg E&WC.A. 22 Oct 2013: recourse to the Evidence Regulation not necessarynecessary- SCotUS uses different tests to decide whether or no to respect the SCotUS uses different tests to decide whether or no to respect the foreign statute and use the foreign statute and use the lex fori lex fori or the Hague Convention (SC 15 June or the Hague Convention (SC 15 June 1987 in 1987 in Aérospatiale v US)Aérospatiale v US)

EvidenceEvidence Taking evidence abroadTaking evidence abroad

Rogatory Commissions sent abroad (for examination of Rogatory Commissions sent abroad (for examination of witnesses, visit of a location abroad, etc.)witnesses, visit of a location abroad, etc.)

Hague Convention on Taking Evidence Abroad 1970 (in Hague Convention on Taking Evidence Abroad 1970 (in force 1972) force 1972)

- via a central authority in the requested statevia a central authority in the requested state- or via personnel of the requesting state in the requested or via personnel of the requesting state in the requested

state in case of voluntary appearance of the requested state in case of voluntary appearance of the requested personspersons

- most states made a reservation for pre-trial discovery (based - most states made a reservation for pre-trial discovery (based on art. 23 Convention) (even the UK made the reservation)on art. 23 Convention) (even the UK made the reservation)

EU-Regulation 1206/2001 on co-operation in taking of EU-Regulation 1206/2001 on co-operation in taking of evidence: next slideevidence: next slide

Evidence – EU Reg.Evidence – EU Reg. EU-Regulation 1206/2001 on co-operation in taking of evidenceEU-Regulation 1206/2001 on co-operation in taking of evidence demand directly adressed by «requesting court»  to demand directly adressed by «requesting court»  to

«requested court» in other member state; use of standard «requested court» in other member state; use of standard forms; subsidiary role of a central body in each member state.forms; subsidiary role of a central body in each member state.

Directive only facilitates taking evidence, thus does not forbid Directive only facilitates taking evidence, thus does not forbid any measure which can be taken without the cooperation of any measure which can be taken without the cooperation of the other member state:the other member state:

- C-170/11, Lippens e.a.: Court has the option, to summon a person residing in - C-170/11, Lippens e.a.: Court has the option, to summon a person residing in another Member State before it and hear him as a witness in accordance with another Member State before it and hear him as a witness in accordance with the law of its Member State.the law of its Member State.

- C-332/11 Prorail: entrusting to an expert a task of taking of evidence to be - C-332/11 Prorail: entrusting to an expert a task of taking of evidence to be carried out in another Member State, can be done without this carried out in another Member State, can be done without this procedure, unless it affects the powers of the Member State in which it takes procedure, unless it affects the powers of the Member State in which it takes place, in particular where it is an investigation carried out in places connected place, in particular where it is an investigation carried out in places connected to the exercise of such powers or in places to which access or other action is, to the exercise of such powers or in places to which access or other action is, under the law of the Member State in which the investigation is carried out, under the law of the Member State in which the investigation is carried out, prohibited or restricted to certain persons.prohibited or restricted to certain persons.

Recognition & enforcementRecognition & enforcement Deals with so-called « Title import »Deals with so-called « Title import » Within federal states: « Full faith and credit » Within federal states: « Full faith and credit » Otherwise traditionally re-examination of the case in country Otherwise traditionally re-examination of the case in country

where recognition / enforcement is asked, unless simplified by where recognition / enforcement is asked, unless simplified by treatiestreaties

Eg in Belgium simplified since 2004 (Code of PIL art. 25 § 1 Eg in Belgium simplified since 2004 (Code of PIL art. 25 § 1 abolishes re-examination and lists grounds for refusal)abolishes re-examination and lists grounds for refusal)

Eg in the UK: common law rules + Statutes 1920 & 1933 Eg in the UK: common law rules + Statutes 1920 & 1933 mainly dealing with commonwealth countriesmainly dealing with commonwealth countries

No global convention until now (only for Choice of Court No global convention until now (only for Choice of Court Agreements (Agreements (suprasupra), including rules on recognition and ), including rules on recognition and enforcement)enforcement)

CMR art. 31CMR art. 31 In the EU: In the EU: - certain judgments from courts of other EU states enjoy full certain judgments from courts of other EU states enjoy full

faith and credit (automatically enforceable), faith and credit (automatically enforceable), - for others under Reg. 44/2001 a simplified procedure of for others under Reg. 44/2001 a simplified procedure of

« exequatur », now abolished by Brussels-I Recast 1215/2012« exequatur », now abolished by Brussels-I Recast 1215/2012

Recognition & enforcementRecognition & enforcement General framework: Brussels-I-Regulation (+ separate regulations General framework: Brussels-I-Regulation (+ separate regulations

in family, maintenance obligations, successions, insolvency, etc.)in family, maintenance obligations, successions, insolvency, etc.)

Before the Recast there was automatic enforceability without Before the Recast there was automatic enforceability without exequaturexequatur in case of: in case of:

- European Enforcement order for uncontested claims (Reg. European Enforcement order for uncontested claims (Reg. 805/2004) awarded in a procedure according to domestic law of a 805/2004) awarded in a procedure according to domestic law of a member statemember state

- European Payment Orders (supra)European Payment Orders (supra)- Decisions in European Small Claims Procedures (supra)Decisions in European Small Claims Procedures (supra)

Recognition & enforcementRecognition & enforcement General framework: Brussels-I-Regulation - General framework: Brussels-I-Regulation - New rules New rules (Recast (Recast

1215/2012): 1215/2012): automatic recognition and enforcement without obtaining an exequatur, automatic recognition and enforcement without obtaining an exequatur,

on presentation of judgment* + certificate with summary (and possibly on presentation of judgment* + certificate with summary (and possibly translations) (one could say: exequatur is granted by the country of translations) (one could say: exequatur is granted by the country of origin). Enforcement requires prior serving of certificate to that person.origin). Enforcement requires prior serving of certificate to that person.

Limited grounds for refusal in case of opposition/appeal :Limited grounds for refusal in case of opposition/appeal : - contrary to public policy (45.1a) (interpreted restrictively by ECJ, see eg - contrary to public policy (45.1a) (interpreted restrictively by ECJ, see eg

C-681/13, C-681/13, Diageo BrandsDiageo Brands))- judgment in default and defendant not served in sufficient time (45.1b)- judgment in default and defendant not served in sufficient time (45.1b)- incompatible with a judgment issued in the country of enforcement - incompatible with a judgment issued in the country of enforcement (45.1c & d)(45.1c & d)- from a court having no jurisdiction according to te Regulation (45.1e)- from a court having no jurisdiction according to te Regulation (45.1e)- see also art. 64: civil decision in criminal proceedings, defendant had - see also art. 64: civil decision in criminal proceedings, defendant had no opportunity to arrange defenceno opportunity to arrange defence

• * Q: is an English Scheme of Arrangement a judgment in the * Q: is an English Scheme of Arrangement a judgment in the sense of art. 32 ?sense of art. 32 ?

NY Convention on arbitration takes precedence over the RegulationNY Convention on arbitration takes precedence over the Regulation

Recognition & enforcementRecognition & enforcement

Automatic recognition and enforcement applies Automatic recognition and enforcement applies under the Recast 1215/2012 also to:under the Recast 1215/2012 also to:

- Authentic instruments (as notarial deeds) (58.1)Authentic instruments (as notarial deeds) (58.1)- Court settlements (58.2)Court settlements (58.2)

Enforcement measuresEnforcement measures Differences as to available enforcement Differences as to available enforcement

measures, e.g.measures, e.g.

Astreinte (Zwangsgeld)Astreinte (Zwangsgeld)

Disclosure obligations: can a debtor be obliged to Disclosure obligations: can a debtor be obliged to disclose its assets, and does this extend to disclose its assets, and does this extend to foreign assets ?foreign assets ?- UK case law: also foreign assetsUK case law: also foreign assets- SCotUS 16 June 2015 in SCotUS 16 June 2015 in Argentina / NML CapitalArgentina / NML Capital: idem: idem

Extraterritorial enforcementExtraterritorial enforcement Extraterritorial effect of provisional measures Extraterritorial effect of provisional measures

under Brussels-Ibis:under Brussels-Ibis:- by court having jurisdiction over substance: by court having jurisdiction over substance:

measure enforceable in the EU (if unilateral measure enforceable in the EU (if unilateral procedure, then only after service of decision to procedure, then only after service of decision to the defendant)the defendant)

- by court not having jurisdiction over substance: by court not having jurisdiction over substance: jurisdiction for protective measures (supra), but jurisdiction for protective measures (supra), but effect confined to territory of that MSeffect confined to territory of that MS

Belgian case law on enfocement measures: have Belgian case law on enfocement measures: have effect only in countries where the judgment is effect only in countries where the judgment is enforceable (thus for an astreinte Cass. 29 oct enforceable (thus for an astreinte Cass. 29 oct 2015)2015)

Insolvency proceedingsInsolvency proceedings

Types of insolvency proceedings usually found abroad:Types of insolvency proceedings usually found abroad:- Liquidation proceedings, such as bankruptcyLiquidation proceedings, such as bankruptcy- Reorganisation and composition proceedings, such as:Reorganisation and composition proceedings, such as:- * judiciary reorganisation (eg Ch. XI in the US Bankruptcy * judiciary reorganisation (eg Ch. XI in the US Bankruptcy

Code)Code)- * collective agreement with creditors (suspension of the * collective agreement with creditors (suspension of the

execution by creditors in order to reorganise the business) execution by creditors in order to reorganise the business)

- In all these proceedings the control over the assets of the In all these proceedings the control over the assets of the debtor is granted to an administrator and the claims of the debtor is granted to an administrator and the claims of the creditors are dealt with collectively (instead of individually)creditors are dealt with collectively (instead of individually)

- Not an « insolvency proceeding »: English ‘Scheme of Not an « insolvency proceeding »: English ‘Scheme of Arrangement’ under part 26 Companies ActArrangement’ under part 26 Companies Act

Insolvency proceedingsInsolvency proceedings

International insolvency: two conflicting solutions / International insolvency: two conflicting solutions / principles:principles:

- universalism (single bankruptcy extended to all countries universalism (single bankruptcy extended to all countries where debtor has assets) (eg Belgian law, US law) where debtor has assets) (eg Belgian law, US law)

- Moderate territorialism: insolvency proceedings in each Moderate territorialism: insolvency proceedings in each country relate only to assets in that country.country relate only to assets in that country.

- radical territorialism: insolvency proceedings in each radical territorialism: insolvency proceedings in each country relating to assets in that country that are « ring-country relating to assets in that country that are « ring-fenced »: the product is used first for debts incurred in that fenced »: the product is used first for debts incurred in that countrycountry

Universalism only works insofar as the proceedings are Universalism only works insofar as the proceedings are recognised in other countries where assets lie.recognised in other countries where assets lie.

Insolvency proceedingsInsolvency proceedings International and EU instruments:International and EU instruments:- Uncitral Model Law on cross-border insolvency (model used Uncitral Model Law on cross-border insolvency (model used

in the US bankruptcy Code ch. 15; in the UK in the Cross-in the US bankruptcy Code ch. 15; in the UK in the Cross-Border Insolvency Regulations 2006 (rules for non-EU Border Insolvency Regulations 2006 (rules for non-EU cases), etc.)cases), etc.)

- EU-Regulation 2000/1346 on insolvency proceedings, from EU-Regulation 2000/1346 on insolvency proceedings, from June 26, 2007 on: Recast EU-Regulation 2015/848.June 26, 2007 on: Recast EU-Regulation 2015/848.

- Both choose a compromise: main proceedings + non-main Both choose a compromise: main proceedings + non-main proceedingsproceedings

- There is also a March 12, 2014 Recommendation from the European There is also a March 12, 2014 Recommendation from the European Commission dealing with substantive insolvency law.Commission dealing with substantive insolvency law.

EU Insolvency regulationEU Insolvency regulationscope of applicationscope of application

EU-Regulation 1346/2000 / Recast 2015 (in force 26 June 2017)EU-Regulation 1346/2000 / Recast 2015 (in force 26 June 2017)- Scope of application: only where debtor has its « centre of main Scope of application: only where debtor has its « centre of main

interest » (COMI) in a Member State; not limited to cases where at interest » (COMI) in a Member State; not limited to cases where at least 2 member states are involved (C-328/12, least 2 member states are involved (C-328/12, Schmid / Hertel)Schmid / Hertel)

- Presumption that the seat of a legal person is its COMI (art. 3 id. Presumption that the seat of a legal person is its COMI (art. 3 id. recast, but no presumption if COMI shifted less than 3 months recast, but no presumption if COMI shifted less than 3 months ago).ago).

Definition of insolvency proceedings to which it applies (art. 1.1: Definition of insolvency proceedings to which it applies (art. 1.1: - collective proceedings,collective proceedings,- based on insolvency, based on insolvency, - which entail the partial or total divestment of a debtor, which entail the partial or total divestment of a debtor, - and the appointment of a liquidator and the appointment of a liquidator (a list is found in the Annex A to the Regulation)(a list is found in the Annex A to the Regulation)In the Recast also prcoceedings where « debtor in possession » but In the Recast also prcoceedings where « debtor in possession » but

udner control or supervision of the court (new Art. 1). (But not: UK udner control or supervision of the court (new Art. 1). (But not: UK Schemes of Arrangement)Schemes of Arrangement)

Exclusions: next slideExclusions: next slide

EU Insolvency regulationEU Insolvency regulationscope of applicationscope of application

EU-Regulation 1346/2000 / Recast 2015EU-Regulation 1346/2000 / Recast 2015

Not covered by the Insolvency Regulation, but by separate Directives: Not covered by the Insolvency Regulation, but by separate Directives: - financial institutions (WUDB, Winding up Directive for Banks 2001/24, financial institutions (WUDB, Winding up Directive for Banks 2001/24,

and Bank Recovery and Resolution Directive (BRRD) 2014/59)and Bank Recovery and Resolution Directive (BRRD) 2014/59)- insurance companies (WUDI-Directive). insurance companies (WUDI-Directive).

No uniform rules regarding investment companies yet (except in the No uniform rules regarding investment companies yet (except in the BRRD).BRRD).

NB. Sovereign default:NB. Sovereign default:- No international framework yet for state insolvencyNo international framework yet for state insolvency- for local government, some countries apply private law, eg Detroit for local government, some countries apply private law, eg Detroit

city insolvency.city insolvency.

EU Insol.Reg - jurisdictionEU Insol.Reg - jurisdiction EU-Regulation 1346/2000 - Basic solution – possible proceduresEU-Regulation 1346/2000 - Basic solution – possible procedures Art. 3.1.: main proceedings: possible (only) in country of « centre Art. 3.1.: main proceedings: possible (only) in country of « centre

of main interest » of the debtor (« COMI »). In principle universal of main interest » of the debtor (« COMI »). In principle universal jurisdiction, unless limited by a territorial procedure. Recast jurisdiction, unless limited by a territorial procedure. Recast 1°defines COMI and 2° also covers jurisdiction over avoidance 1°defines COMI and 2° also covers jurisdiction over avoidance actions (art. 3a)actions (art. 3a)

- Result: forum shopping (insolvency tourism) by moving the COMI.Result: forum shopping (insolvency tourism) by moving the COMI.

Art. 3.2.: a territorial insolvency can be opened in other MS where Art. 3.2.: a territorial insolvency can be opened in other MS where the debtor has an establishment. When there is a main the debtor has an establishment. When there is a main proceeding, the territorial one is called « secondary »:proceeding, the territorial one is called « secondary »:

- it is it is territorial with respect to assets, territorial with respect to assets, - but universal with respect to creditors (all creditors may file, not but universal with respect to creditors (all creditors may file, not

only for debts incurred in that country – no ring-fencing). only for debts incurred in that country – no ring-fencing). - Under the old Regulation it had to be a liquidation procedure, Under the old Regulation it had to be a liquidation procedure,

subject to duty to cooperate in case main proceedings are not subject to duty to cooperate in case main proceedings are not liquidating (C-116/11 Bank Handlowy); Recast broadens the scope.liquidating (C-116/11 Bank Handlowy); Recast broadens the scope.

- A territorial procedure can be requested only by local creditors, a A territorial procedure can be requested only by local creditors, a secondary by any creditor (C-327/13 secondary by any creditor (C-327/13 Burgo GroupBurgo Group))

EU Insolvency regulation - EU Insolvency regulation - jurisdictionjurisdiction

EU-Regulation 1346/2000 - Basic solution – possible proceduresEU-Regulation 1346/2000 - Basic solution – possible procedures- Recast limits possibility of such secondary procedures a bit more Recast limits possibility of such secondary procedures a bit more

(see i.a. art. 36 recast)(see i.a. art. 36 recast)- Insolvency administrator may propose local creditors instead of Insolvency administrator may propose local creditors instead of

secondary proceedings a dealing « as if «  secondary proceedings secondary proceedings a dealing « as if «  secondary proceedings had been opened (« synthetic secondary proceedings »)had been opened (« synthetic secondary proceedings »)

- Where no secondary procedure is opened: no enforcement Where no secondary procedure is opened: no enforcement proceedings possible except those permitted by the law of the proceedings possible except those permitted by the law of the state of the main proceedings (ECJ in C-444/07)state of the main proceedings (ECJ in C-444/07)

EU Insolvency regulation – EU Insolvency regulation – scope of jurisdictionscope of jurisdiction

EU-Regulation 1346/2000, art. 3 Scope of jurisdiction – v. Brussels-EU-Regulation 1346/2000, art. 3 Scope of jurisdiction – v. Brussels-II

‘‘vis attraciva concursusvis attraciva concursus’ : Jurisdiction includes actions derived ’ : Jurisdiction includes actions derived directly from the insolvency proceedings and closely connected directly from the insolvency proceedings and closely connected with them, e.g.with them, e.g.

- actions that arise only under insolvency law (eg to seek liability on actions that arise only under insolvency law (eg to seek liability on cocompany officers: ECJ C)-133:78 Gourdain/Nadler)mpany officers: ECJ C)-133:78 Gourdain/Nadler)

- actions to set a detrimental transaction aside (actions to set a detrimental transaction aside (paulianapauliana) (C-) (C-339/07, 339/07, Seagon/Deko MartySeagon/Deko Marty) where only the liquidatior can bring ) where only the liquidatior can bring the action (and even where the defendant resides outside the EU: the action (and even where the defendant resides outside the EU: C-328/12, C-328/12, Schmid / Hertel)Schmid / Hertel)

- actions challenging the exercise of a power by the liquidatoractions challenging the exercise of a power by the liquidator

- Not: dispute about ownership of assets, incl. reservation of title Not: dispute about ownership of assets, incl. reservation of title (ECJ in C-292/08, (ECJ in C-292/08, German GraphicsGerman Graphics))

EU Insolvency regulation – EU Insolvency regulation – scope of jurisdictionscope of jurisdiction

Effect of opening of insolvency proceedings upon procedures that Effect of opening of insolvency proceedings upon procedures that in themselves fall within Brussels-I and not the InsolReg:in themselves fall within Brussels-I and not the InsolReg:

Pending procedures: Pending procedures: lex fori lex fori of that procedure determines effect of of that procedure determines effect of the opening on that procedure (art. 15)the opening on that procedure (art. 15)

New procedures: law of the country where insolvency is opened New procedures: law of the country where insolvency is opened determines effect of the opening on that procedure (Art. 4(2)(f). determines effect of the opening on that procedure (Art. 4(2)(f). Interpretation: this would only preclude enforcement actions that Interpretation: this would only preclude enforcement actions that are not allowed under the lex concursus and not actions to are not allowed under the lex concursus and not actions to determine a claim (incl. a right of ownership, cfr. ECJ in determine a claim (incl. a right of ownership, cfr. ECJ in German German GraphicsGraphics).).

EU Insolvency RegulationEU Insolvency Regulation EU-Regulation 1346/2000 – Effects abroad of procedures:EU-Regulation 1346/2000 – Effects abroad of procedures:- opening of proceedings can be published in other MS (art. 21-22, opening of proceedings can be published in other MS (art. 21-22,

recast 28-29); recast 28-29); - recast organises a web-based EU-wide system of insolvency recast organises a web-based EU-wide system of insolvency

registers (art. 25 ff)registers (art. 25 ff)- main insolvency must be recognised in other MS (art. 16, recast main insolvency must be recognised in other MS (art. 16, recast

19); has in principle the same effects as if it were opened in that 19); has in principle the same effects as if it were opened in that state (art. 17, recast 20) – except where manifestly contrary to state (art. 17, recast 20) – except where manifestly contrary to public order (art. 26) (e.g. fundamental rights) or insofar as it is a public order (art. 26) (e.g. fundamental rights) or insofar as it is a matter for a secondary procedure effectively openedmatter for a secondary procedure effectively opened

- further rules on coordinationfurther rules on coordination- Recast : * duty to cooperate incl. exploring possibility of Recast : * duty to cooperate incl. exploring possibility of

restructuring (see art. 41 ff recast).restructuring (see art. 41 ff recast).- In Recast new Ch. on insolvency of members of a group of In Recast new Ch. on insolvency of members of a group of

companies (56 ff.) – possibility of appointing a group coordinator companies (56 ff.) – possibility of appointing a group coordinator whose task is to present a Group Coordination Planwhose task is to present a Group Coordination Plan

EU Insolvency Regulation – EU Insolvency Regulation – applicable lawapplicable law

The The lex concursus lex concursus (i.e. the (i.e. the lex fori lex fori of the place of opening of the of the place of opening of the insolvency) determines according to Art. 4 (7 recast) i.a.:insolvency) determines according to Art. 4 (7 recast) i.a.:

- the procedural aspects of the insolvency: which assets are in the procedural aspects of the insolvency: which assets are in principle administered; how they are administered (powers of the principle administered; how they are administered (powers of the administrator, the court, the debtor); formalities to be fulfilled by administrator, the court, the debtor); formalities to be fulfilled by creditors; how sale and distribution proceedings are organised; creditors; how sale and distribution proceedings are organised; distribution of the product in the absence of property rightsdistribution of the product in the absence of property rights

- effect on later disposition of assets, other than assets subject to effect on later disposition of assets, other than assets subject to registrationregistration

- Includes also actions that arise only under insolvency law (same Includes also actions that arise only under insolvency law (same category for applicable law as that of art. 3 for jurisdiction – see category for applicable law as that of art. 3 for jurisdiction – see ECJ in C-594/14 ECJ in C-594/14 KornhaasKornhaas))

- effect of insolvency on current contracts (art. 4.2.e)effect of insolvency on current contracts (art. 4.2.e)- Except: individual execution right of creditor with proprietary right Except: individual execution right of creditor with proprietary right

((lex rei sitaelex rei sitae) (eg in many countries creditor with mortgage) – to ) (eg in many countries creditor with mortgage) – to be decided by thebe decided by the lex rei sitae lex rei sitae

EU Insolvency Regulation – EU Insolvency Regulation – applicable lawapplicable law

As to existing property rights on assets which fall under the As to existing property rights on assets which fall under the insolvent estate:insolvent estate:

- it is in principle the it is in principle the lex rei sitaelex rei sitae (place of the asset) which (place of the asset) which determines the property rights on the asset (art. 5 (8 recast), determines the property rights on the asset (art. 5 (8 recast), for reservation of title art. 7 (10 recast), incl. Enoforcement for reservation of title art. 7 (10 recast), incl. Enoforcement rightsrights

- surplus must go in the insolvent estate (surplus must go in the insolvent estate (lex concursuslex concursus)) Recast art. 2 (9) will clarify the Recast art. 2 (9) will clarify the lex rei sitae lex rei sitae in respect to in respect to

certain assets, such ascertain assets, such as- registered shares: located in the registered office of the registered shares: located in the registered office of the

companycompany- book entry securities (‘dematerialised’): where the account is book entry securities (‘dematerialised’): where the account is

maintainedmaintained- account money (cash in accounts): member state indicated by account money (cash in accounts): member state indicated by

the IBANthe IBAN- other rights to performance (claims): COMI of the debtorother rights to performance (claims): COMI of the debtor

EU Insolvency Regulation – EU Insolvency Regulation – applicable lawapplicable law

(Cont.)(Cont.) Whether detrimental acts are voidable/defeasable*Whether detrimental acts are voidable/defeasable*: lex concursus: lex concursus, ,

unless undefeasable according to unless undefeasable according to lex causae lex causae (art. 4.2.m (recast (art. 4.2.m (recast 7.2.m) + art. 13 (recast 16)). Applies only to acts before the 7.2.m) + art. 13 (recast 16)). Applies only to acts before the opening of the proceedings, including the exercise after the opening of the proceedings, including the exercise after the opening of rights derived from such acts (ECJ C-557/13, opening of rights derived from such acts (ECJ C-557/13, LutzLutz))

* in the US « preference action » (payee was unduly preferred)* in the US « preference action » (payee was unduly preferred)• The corresponding art. 30 in the WUDB was interpreted The corresponding art. 30 in the WUDB was interpreted

extensively in E-28/13 (EFTA Court), extensively in E-28/13 (EFTA Court), LBI v Merrill LynchLBI v Merrill Lynch

Set-off: important differences between national laws on effect Set-off: important differences between national laws on effect after insolvency. Art. 6 (recast 9) Reg.: set-off is effective if either after insolvency. Art. 6 (recast 9) Reg.: set-off is effective if either effective under the lex concursus or under the effective under the lex concursus or under the lex causae lex causae of the of the passive claim (claim of the insolvent debtor used by the creditor passive claim (claim of the insolvent debtor used by the creditor to get paid).to get paid).

Effect on labour contracts: governed by Effect on labour contracts: governed by lex contractus lex contractus (art. 10, (art. 10, Recast 13)Recast 13)