Agrégateur de flux

I attended recently a discussion among scholars about the notion of periculum in mora for the purposes of Article 7 of the Regulation 655/2014. In this context, attention was drawn to the decision of the Tribunal da Relação de Guimarães of 10 September 2020, which held (among other) that

IV. The preservation order requires proof of the requirements for the adoption of preventive measures: urgency, “fumus boni iuris” and “periculum in mora”.

V. The mere impossibility of collecting the claim, namely in an enforcement action instituted for that purpose, without being associated with any other element, is not enough to demonstrate the periculum in mora.

Looking at the text of the Regulation, the Portuguese court can hardly be criticised. According to Article 7(1),

The court shall issue the Preservation Order when the creditor has submitted sufficient evidence to satisfy the court that there is an urgent need for a protective measure in the form of a Preservation Order because there is a real risk that, without such a measure, the subsequent enforcement of the creditor’s claim against the debtor will be impeded or made substantially more difficult.

The provision shall be read together with Recital 14:

The conditions for issuing the Preservation Order should strike an appropriate balance between the interest of the creditor in obtaining an Order and the interest of the debtor in preventing abuse of the Order.

Consequently, when the creditor applies for a Preservation Order prior to obtaining a judgment, the court with which the application is lodged should have to be satisfied on the basis of the evidence submitted by the creditor that the creditor is likely to succeed on the substance of his claim against the debtor.

Furthermore, the creditor should be required in all situations, including when he has already obtained a judgment, to demonstrate to the satisfaction of the court that his claim is in urgent need of judicial protection and that, without the Order, the enforcement of the existing or a future judgment may be impeded or made substantially more difficult because there is a real risk that, by the time the creditor is able to have the existing or a future judgment enforced, the debtor may have dissipated, concealed or destroyed his assets or have disposed of them under value, to an unusual extent or through unusual action.

The court should assess the evidence submitted by the creditor to support the existence of such a risk. This could relate, for instance, to the debtor’s conduct in respect of the creditor’s claim or in a previous dispute between the parties, to the debtor’s credit history, to the nature of the debtor’s assets and to any recent action taken by the debtor with regard to his assets. In assessing the evidence, the court may consider that withdrawals from accounts and instances of expenditure by the debtor to sustain the normal course of his business or recurrent family expenses are not, in themselves, unusual. The mere non-payment or contesting of the claim or the mere fact that the debtor has more than one creditor should not, in themselves, be considered sufficient evidence to justify the issuing of an Order. Nor should the mere fact that the financial circumstances of the debtor are poor or deteriorating, in itself, constitute a sufficient ground for the issuing of an Order. However, the court may take these factors into account in the overall assessment of the existence of the risk.

It should be noted, though – and it has been highlighted in the abovementioned exchange of views – that the national court actually makes a very restrictive interpretation of the periculum in mora, even when a judgment has already been delivered favoring the creditor. It is not enough that the enforcement cannot be carried out in Portugal due to lack of assets there; nor that the debtor resides in another country (Spain, in the case at hand). The creditor has to prove that there is an intention on the part of the debtor to dissipate his assets, and the link between such intention and the risk of not recovering the moneys.

The ‘subjective’ element seems to be a feature common to other Member States’ interpretation of Article 7 (such as Lithuania or Germany – see LG Bremen, ruling of 7 January 2020 – 3 O 2166/19), but not to all (Spain being, for instance, one with a much more lenient understanding of the requirement: apparently, the mere impossibility of enforcement in Spain suffices for the judicial clerk, who is the one in charge at this stage, to grant the order). Moreover, and somehow funnily, the Portuguese court reaches its conclusion arguing on the basis of the similarities between the provision of the Regulation, and Article 391 of the national Code of Civil Procedure. The trend appears to be shared by other Member States, like, again, Germany and Lithuania.

In the light of the foregoing, a request for interpretation to the CJUE would not be a surprise. Unfortunately, it will hardly address any longer the policy issue of whether it makes sense to subject the cross-border preservation order to the periculum in mora requirement in spite of having obtained a decision  (see against B. Hess, ‘Article 7 Regulation 655/2014’, in Scholsser/Hess, Europäisches Zivilprozessrecht, 5th ed., para 2, forthcoming).

NoA: Note that urgency is not mentioned under Article 35 of the Brussels I bis regulation, and that measures which, because they are urgent, are ordered without the defendant being summoned to appear, are not to be recognised and enforced under the Regulation unless the judgment containing the measure is served on the defendant prior to enforcement.

Many thanks to Carlos Santaló (MPI Luxembourg) for the information on the topic as well as feedback.

Jonathan Fitchen who is recognised as a leading scholar on the conflict of laws aspect of authentic instruments has just published a book titled “The Private International Law of Authentic Instruments” under the Hart Studies in Private International Law.

The abstract reads as follows:

This helpful book will equip the lawyer – whether notary, barrister or solicitor – with the legal information necessary to understand what an authentic instrument is (and what it is not), what it can (and what it cannot) be used to do in the course of contentious or noncontentions legal proceedings.
The book takes a two part approach. Part one focuses on an explanation of the nature of the foreign legal concept of an authentic instrument, setting out the modes of creation, typical domestic evidentiary effects and the typical domestic options to challenge such authentic instruments. Part two then examines and analyses authentic instruments under specific European Union private international law regulations, focusing on the different cross-border legal effects allowed and procedures that apply to each such.
Rigorous, authoritative and comprehensive, this will be an invaluable tool to all practitioners in the field.

More information on the book can be found here

The Court of Justice (Grand Chamber) delivered on 24 November 2020 its judgment in case C‑59/19 (Wikingerhof GmbH & Co. KG v Booking.com BV), which is about an action seeking an injunction against commercial practices considered to be contrary to competition law:

“Point 2 of Article 7 of Regulation (EU) No 1215/2012 […] must be interpreted as applying to an action seeking an injunction against certain practices implemented in the context of the contractual relationship between the applicant and the defendant, based on an allegation of abuse of a dominant position by the latter in breach of competition law”.

Source: http://curia.europa.eu/juris/document/document.jsf;jsessionid=0B3C35184AED407DFB5B8CDCFD47AD38?text=&docid=234206&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=15723679

Join us on 15 December 2020 at 12 noon (The Hague) for the launch of the Elgar Companion to the Hague Conference on Private International Law, edited by Thomas John, Rishi Gulati and Ben Köhler.

 

 

The book will be launched by Christophe Bernasconi, Secretary General of the HCCH, and is followed by a conversation and Q&A on a key theme that emerged in the Companion: the importance of private international law to providing access to justice. The speakers are:

• Professor Xandra Kramer, Erasmus University, and Deputy Judge, District Court, Rotterdam, NL
• Justin Gleeson SC, Barrister and Arbitrator, Banco Chambers, Sydney, AUS

Register here: https://lnkd.in/d7cyVF4. 

The Companion is a unique guide to the HCCH. 35 leading international experts contributed to this work. Their contributions offer a unique critical assessment of, and reflection on, past and possible future contributions of the HCCH to the further development and unification of private international law.

For more information on the book, including endorsements by Lord Collins, Professor Basedow, Professor Silberman, Justice de Nardi, Professor Neels and Professor Reyes, click here.

HCCH a|Bridged – Edition 2020: Golden Anniversary of the HCCH 1970 Evidence Convention

Tuesday 2 December 2020, 14:15 CET

Registration | Programme | Event Website | HCCH Evidence Section
(Registration closes 17:00 CET Friday 27 November)

Building upon the success of HCCH a|Bridged – Edition 2019, this year’s edition will focus on the Evidence Convention. Edition 2020 will ensure the event remains true to its name, being short and sharp. Following a keynote speech from Professor Dr Michael Stürner entitled “50 years of the HCCH Evidence Convention – Facilitating cross-border proceedings”, the first panel will discuss the topic “Effective Taking of Evidence under Chapter I of the Convention: A Requesting State’s Perspective”, after which the second panel will consider challenges and opportunities relating to the “Taking of Evidence under Chapter II of the Convention”. The HCCH will be represented by Secretary General Dr Christophe Bernasconi, First Secretary Dr João Ribeiro-Bidaoui, and Legal Officer Ms Elizabeth Zorrilla. 

Conferencia internacional: Convención HCCH 2019 sobre Reconocimiento y Ejecución de Sentencias Extranjeras

Thursday 3 December 2020, 15:00 CET (11:00 local)

Registration | Programme | Event Website | HCCH Judgments Section

This Spanish-language international conference, co-hosted by ASADIP and the HCCH will, as its name suggests, be devoted to the HCCH 2019 Judgments Convention. The programme will cover an introduction to the Convention and the reasons why States should join, a presentation of the particular benefits of the Convention for Latin America, as well as a discussion of the implementation challenges for States in the region. The HCCH will be represented by First Secretary Dr João Ribeiro-Bidaoui and Representative for Latin America and the Caribbean Mr Ignacio Goicoechea. They will be joined by many other experts, a number of whom were involved in the negotiation of the Convention, including Explanatory Report Co-Rapporteur Professor Francisco Garcimartín.

Book Launch: Elgar Companion on the Hague Conference on Private International Law

Tuesday 15 December 2020, 12:00 CET

Registration & Programme | Elgar Companion

This comprehensive Companion, edited by Thomas John, Rishi Gulati, and Ben Koehler, is a unique guide to the HCCH, comprising contributions from international experts who have all directly or indirectly been involved with the work of the HCCH. The Companion is an assessment of, and reflection on, past and possible future contributions of the HCCH to the further development and unification of private international law. The Companion will be launched by HCCH Secretary General Dr Christophe Bernasconi, followed by a Conversation and Q&A with Professor Xandra Kramer (Erasmus University Rotterdam, Netherlands) and Mr Justin Gleeson SC (Banco Chambers, Sydney, Australia) around the theme of “the importance of private international law to providing access to justice”. The launch is being organised by Grotius Chambers.

This post is published by the Permanent Bureau of the Hague Conference of Private International Law (HCCH).

RIDOC 2020: Rijeka Doctoral Conference is particularly international this year both, with regard to the attending doctoral candidates and in relation to the composition of the panels. Thirty-four selected doctoral candidates will be testing their research hypothesis and methodologies in six sessions each presided by a three-member panel.

No less than two sessions might be of particular interest to this Blog’s readers:

The keynote lecture will be delivered by Professor Carlo Rimini, affiliated with University of Milano and University of Pavia, a recognised family law researcher and attorney. He will be speaking about validity of the prenuptial agreements from the methodology perspective.

Full programme is available here, and additional information may be obtained at ridoc@pravri.hr.

The entire conference will be online at the Cisco Webex platform. Attendance is free on the first-to-apply bases, but registration is necessary via this link.

Transports de personnes

Responsabilité pénale (sociétés)

Contrat de travail, exécution

Protection des droits de la personne