Innovative Legal & Business Services

CIVIL AND COMMERCIAL MATTERS INVOLVING INTERNATIONAL ELEMENTS - APPLICABLE INTERNATIONAL INSTRUMENTS AND JURISDICTION.


On 10 January 2015 came into force the European Regulation (EU) 1215/2012 which replaced the applicable till this year Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments within the EU.

When we are talking about civil and commercial disputes with an international element firstly is necessary to examine the current regulatory framework:

- Regulation (EU) 1215/2012 (replacing the Regulation (EC) 44/2001), when the subjects are persons or entities domiciled in a Member State of the EU, as so in the UK and Ireland; and if in the previous one Denmark wasn't included, it ratified the Regulation 1215/1212;
- Brussels Convention of 1968, whose norms are perceived in Regulation (EC) 44/2001 so also in Regulation (EU) 1215/2012. The Convention remains in force and is applied in parallel with the above-mentioned regulation in the cases where the subject of the contract is a person or entity domiciled ina Member State which is expressly excluded from the EU Regulation;
- Lugano Convention of 2007 applicable when the international matter involve persons or entities domiciled in Switzerland, Iceland and Norway;
- The Hague Convention of 2005, which refers exclusively to the choice of Court agreements between the parties. Till 2014 it was signed (but not ratified) by the European Union (on behalf of all its member states except Denmark), the United States, while Mexico acceded to it.

How to determine which court has jurisdiction?
First of all, the competent court in international civil and commercial matters is determined by the general rules relating to the residence or the registered office of the defendant in the dispute or according to the specific matter, except in cases of express agreement between the parties.
The Regulation (EU) 1215/2012 almost entirely perceive the norms of Regulation (EC) 44/2001, including those about the competent court, which determine the rule: this is the court of the Member State of residence or registered office of the defendant in the litigation.
In matters relating to a contract remains in force the special jurisdiction and the competent court is the court for the place of performance of the obligation (new art. 7a) . For the place of performance of the obligation the new Regulation considers, like the previous one, the place in a Member State where, under the contract, the goods were delivered or should have been delivered, and when it comes to services – the place where the services were provided or should have been provided.
The competent court in matters with an international element can be also defined by agreement on the jurisdiction between the parties. Moreover, when there is such an agreement the chosen jurisdiction shall be exclusive unless the parties have agreed otherwise. This rule is introduced in a similar way by all international instruments and in particular way it is developed in the Hague Convention of 2005 which after a request for approval by the Council of the European Union on 10 October 2014 and the subsequent legislative resolution of the European Parliament on 25 November was approved and adopted.
With the introduction of the Hague Convention of 2005 all the norms regarding the agreements between the parties on court's jurisdiction tend to become complete and harmonized at international level.

In which cases is applicable the Hague Convention of 2005?
The scope of the Convention extends to international disputes in civil and commercial matters except where the parties of the dispute are domiciled in the same country and when all the elements of the matter or the dispute are relevant only to the same country.
In comparison with Regulation (EU) 1215/1212 the material scope of the Convention is limited. It excludes matters relating to consumer, labor, family disputes and others. Moreover, the Convention authorizes the single countries to determine themselves other fields to be excluded from its scope with the only requirement that this has to be done in a clear and comprehensive way.
As mentioned, the jurisdiction based on agreement between the parties is exclusive unless the parties have agreed otherwise or until a new agreement that changes it.
The Convention allows the single states that have ratified it to limit its application also by authorizing the national courts to reject an argument where the chosen state has no connection with the parties or the dispute.

In what form must be made the agreement?
The Hague Convention of 2005 allows the conclusion of the agreement between the parties in any form which guarantees the subsequent access to it and especially in writing or by any other means of communication which allows the durable preservation of the information, including by fax and email.
Compared with the Hague Convention, the new Regulation (EU) 1215/2012, which maintains unchanged the norms of Regulation ( EC ) 44/2001 regarding the agreement form, is more extensive. It considers valid not only the writing form but also any verbal agreement, which was subsequently evidenced in writing, in a form which accords with practices which the parties have established between themselves or in international trade or commerce – in a form which accords with usage of which the parties are or ought to have been aware. According the Regulation"writing" is also any communication by electronic means which provides a durable record of the agreement.
In the current practice of the European Court of Justice still exist contradictory decisions regarding the validity of the agreements concluded electronically. The difference in this direction in the future needs to be overcome inevitably in order to ensure uniform interpretation not only within the EU but also in terms of the Hague Convention which, as seen, also recognizes the electronic agreements. The logic and the increasingly facilitate by the international instruments movement of goods and services and the established in the commerce communication by electronic means impose the view that the ECJ practice should be pointed in favor of the electronic agreements.

Changes introduced with Regulation 1215/2012 in favor of the enforcement of judgments within the EU.
One of the significant changes introduced by Regulation (EU) 1215/2012 concerns the enforcement of judgments within the EU and specifically an easier procedure which makes the recognition and the enforcement of the Member States court's decisions more accessible.
The new norm provides that

" judgment given in a Member State and enforceable in that State shall be enforced in another Member State without need to declare it enforceable there by the competent national court or authority on the application of the interested party, as it was provided according to Regulation (EC) 44/2001."

Shortly, from now on the interested party shall just bring the judgment to the notice in proper way accompanied by certificate which demonstrates in summary the enforceable obligation, accompanied as well by the relative translation. Only after notifying of the foreign decision the other party may eventually proceed to appeal the enforcement title.
This simplified procedure is similar to that provided for the European enforcement order for uncontested claims (Regulation (EC) 805/2004).

The examined changes represent a new step towards ensuring the simple and accessible way to resolve civil and commercial disputes at international level and the possibility to enforce with less obstacles judgments of foreign courts.

Sabina Popova

1Legal.Net Blog © 2015

Materials published on this blog are copyrighted. No part of them can be copied or used without the express permission of the author.