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EC Regulation 44/2001 (“Brussels I”) Judicial cooperation in civil matters

Chasing after debtors The Review of Brussels I Regulation and transparency of debtors assets Chris Pitt-Lewis December 2011. EC Regulation 44/2001 (“Brussels I”) Judicial cooperation in civil matters Decides which jurisdiction Mechanism for recognising and enforcing judgments. Review

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EC Regulation 44/2001 (“Brussels I”) Judicial cooperation in civil matters

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  1. Chasing after debtorsThe Review of Brussels I Regulation and transparency of debtors assetsChris Pitt-LewisDecember 2011

  2. EC Regulation 44/2001 (“Brussels I”) • Judicial cooperation in civil matters • Decides which jurisdiction • Mechanism for recognising and enforcing judgments Presentation to E U R - 15 September 2011

  3. Review • Recast regulation – Commission’s draft 14 Dec 2010 • COM 2010/748 • Parliament – currently in committee. Significant changes proposed Presentation to E U R - 15 September 2011

  4. Abolition of the exequatur • Extension of the jurisdiction rules of the Regulation to disputes involving third country defendants – the Parliament currently disagrees with this; • Enhancement of the effectiveness of choice of court agreements; • Improvement of the interface between the Regulation and arbitration; • Better coordination of proceedings before the courts of Member States; • Improvement of access to justice for certain specific disputes; and • Clarification of the conditions under which provisional and protective measures can circulate in the EU. Presentation to E U R - 15 September 2011

  5. Article 22- immoveable property – rights in rem and tenancies • Exclusive jurisdiction of lex rei sitae • Except private tenancies up to 6 months • New exception – agreements for tenancies for professional use – parties can agree on jurisdiction • Validity of entries in public registers – exclusive jurisdiction of MS where the register is kept Presentation to E U R - 15 September 2011

  6. Abolition of exequatur “Article 38 • Subject to the provisions of this Chapter, a judgment given in a Member State shall be recognised in the other Member States without any special procedure being required and without any possibility of opposing its recognition. • 2. A judgment given in one Member State which is enforceable in that State shall be enforceable in another Member State without the need for a declaration of enforceability.” Presentation to E U R - 15 September 2011

  7. Abolition of exequatur • Will there be a general “public policy” exception? • Certificate by issuing Court (Annex I) • Foreign judgment to be enforced under same conditions as a local one Presentation to E U R - 15 September 2011

  8. Provisional and protective measures • Enforeceable judgment includes right to take any protective measures available in law of MS of enforcement (Article 40 (new)) • Provisional and protective measures can be taken by – • Court with jurisdiction (under its law) (Article 35 (new)) • Courts of any MS (under its law) (Article 36 (revision of old art. 31) Presentation to E U R - 15 September 2011

  9. Article 65 (new) “The party seeking the recognition, enforceability or enforcement of a judgment given in another Member State shall not be required to have a postal address or an authorised representative in the Member State of enforcement.” Presentation to E U R - 15 September 2011

  10. Article 66 (new) “If a judgment contains a measure or an order which is not known in the Member State of enforcement, the competent authority in that Member State shall, to the extent possible, adapt the measure or order to one known under its own law which has equivalent effects attached to it and pursues similar aims and interests.” Presentation to E U R - 15 September 2011

  11. Authentic instruments and court settlements • Basically, enforceable in same way as judgments • Explanatory certificates in Annexes V and VII (similar to certificate for court in annex I) Presentation to E U R - 15 September 2011

  12. Transparency of debtors’ assets • How does a creditor discover what assets the debtor has, against which he can enforce judgment? • Green Paper 2008 Presentation to E U R - 15 September 2011

  13. 4 kinds of measure suggested • drawing up a manual of national enforcement laws and practices; • increasing the information available and improving access to registers; • enhancing exchange of information between enforcement authorities; • harmonising measures relating to the debtor's declaration, for example, through the introduction of a European Assets declaration. Presentation to E U R - 15 September 2011

  14. Links • Draft recast Brussels I: http://ec.europa.eu/justice/policies/civil/docs/com_2010_748_en.pdf • Report of Parliament’s rapporteur: http://www.europarl.europa.eu/sides/getDoc.do?type=COMPARL&mode=XML&language=EN&reference=PE467.046 • Green Paper on transparency • http://europa.eu/documentation/official-docs/green-papers/index_en.htm Presentation to E U R - 15 September 2011

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