Transnational Litigation and Elements of Fair Trial
Remo Caponi2015, Revista Eletrônica de Direito Processual
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practice of courts is dominated by rules of jurisdiction as well as international civil procedure. III. Public policy goals to be achieved by the regulation of the judicial process are more usual in transnational litigation than in domestic disputes. The Report refers to a number of critical situations, in which overstating public policy concerns can affect the balance between plaintiffs and defendant's interests. The first situation stems from the link between the exercise of judicial jurisdiction and sovereignty. E.g., the English transient-service jurisdiction and the French citizenship jurisdiction completely disregard the consideration of fairness in relation to the defendant.
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Revista Eletrônica de Direito Processual – REDP. Volume 16. Julho a dezembro de 2015
Periódico Semestral da Pós-Graduação Stricto Sensu em Direito Processual da UERJ
Patrono: José Carlos Barbosa Moreira. ISSN 1982-7636. pp. 550-579
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TRANSNATIONAL LITIGATION AND ELEMENTS OF FAIR TRIAL1-2
Remo Caponi
Professore Ordinario nell´Università degli Studi di Firenze, Italia
[email protected]
SUMMARY:
I.
The regulation of transnational litigation is not worlds apart from civil procedural
law. Transnational litigation does not seek to achieve any special or particular form of
justice. The problem is to balance access to the courts and effective protection of
individidual rights with the right to be heard. Indeed, these are "eternal" problems of
civil procedure.
II.
The Report points out from the outset the distinction between substantive
law and procedural law. It represents a crucial point in the regulation of transnational
litigation before national courts. The distinction between substantive law and
procedural law fostered the view that procedural law is "neutral" as regards substantive
law. Therefore, any procedural law could implement any substantive law. As a result
of this idea, might have expected that the choice of law would have played a leading
role in transnational litigation. On the contrary, quite the opposite is true. The daily
1
Artigo recebido em 30/09/2015 sob dispensa de revisão.
English version of the General Report delivered at the XI World Congress of the International Association of
Procedural Law (IAPL). "Procedural Justice in a Globalised World", Heidelberg, July 25-2 2011. The
quotations from the EU Commission's proposal for a recast of the Reg. EC No. 402 (Brussels I-bis (2010) have
been afterwards updated with the new Regulation (EU) No 1215/2012 of European Parliament and of the
Council. First of all. I would like to thank the Executive Commitee of the International Association of
Procedural Law (IAK) for asking me to deliver a general report "Transnational Litigation and Elements of Fair
Trial". I would also like to thank my colleagues fur E. national reports, namely: M. Aguirrezdh.21, Universidad
de los Andes. A. Perez Ragone. Pontificia Universidad Catolica de Valparaiso. A. Romero Segue'. Universidad
de los Andes (Chile); L. Sinopoli,. University Paris Ouest Nanterre La Defense (France); A. Stadler.
Universitiit Konstanz (Germany); N. Kiamaris, University of Athens (Greece); M. Kengycl, University of Pecs
(Hungary); E. Alessandro University di Roma Tor Vergara (Italy); B. Krans. University of Groningen, R. Van
Rhee, Universitat Maastricht. R. Verkijk. University of Maastricht (Holland); R. Perlingeiro Mendes Da Silva.
Universidade Federal Fluminense, Rio de Janeiro (Latin American Report); K. Weitz, University of War
(Poland); R.-A. Pantilimon, University of Pecs (Rumania); V. V. Yarkov, Ural State Law Acadt (Russia); A.
GaliC, University of Ljubljana (Slovenia); F. Gascon Inchausti, Universidad Complute de Madrid (Spain); T.
Dornej, Universitat Zurich (Switzerland); A. Landoni Sosa. Universidad de la Republica Oriental del Uruguay
(Uruguay). The national reports as well as the Italian version of General Report can be downloaded from
www.iap1-20II-congress.com. All reporters provided an impressive account of national experiences with
transnational litigation. Without their contributions general report could not have been written. I am also
grateful to Nicolò Trucker and Stephen Burba for their rightful comments and suggestions. Stephen Courts,
PhD Researcher. European University Institute, provided the language check. The usual disclaimers apply.
2
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Periódico Semestral da Pós-Graduação Stricto Sensu em Direito Processual da UERJ
Patrono: José Carlos Barbosa Moreira. ISSN 1982-7636. pp. 550-579
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practice of courts is dominated by rules of jurisdiction as well as international civil
procedure.
III.
Public policy goals to be achieved by the regulation of the judicial process are more
usual in transnational litigation than in domestic disputes.
The Report refers to a number of critical situations, in which overstating public policy
concerns can affect the balance between plaintiffs and defendant's interests.
The first situation stems from the link between the exercise of judicial
jurisdiction and sovereignty. E.g., the English transient-service jurisdiction and the
French citizenship jurisdiction completely disregard the consideration of fairness in
relation to the defendant.
The second critical situation concerns the transnational service of process.
According to widespread opinion in the civil law systems, service of process is an act of
sovereignty. Thus, the State interest in having control over its territorial sovereignty
plays a role in the service of process upon a defendant, who is resident there. However,
this idea can be misleading. It is doubtful whether perceiving service as an act of
sovereignty can really protect defendants. On the contrary, due to the fact that it
could lead the Forum State to use an intra-State fictitious service of process, like the
remise au parquet, it could in fact prejudice their situation.
The third critical situation where public policy intervenes in the assessment of
trans-national civil proceedings can be related to the good functioning of the internal
market, which represents a crucial public policy goal of the European Union. The
interest of the European Union in enhancing the functioning of the internal market has
led to a remarkable simplification of the enforcement of judgments in favour of the
plaintiff. Questions may be raised as to whether this regulation is in itself harmful to
the notion of a fair trial by penalizing the defendant. However the answer must depend
on where the proceedings in fact take place. Conditions relating to the administration of
justice differ according to the Member State in question and the principle of "mutual
trust" amounts of little more than a rhetorical slogan.
IV.
Generally speaking, the regulation of transnational disputes must first
and foremost seek to balance the plaintiff's interests (access to the court, effective
protection of asserted rights) and the defendant's interests (right to be heard). Public
policy concerns should normally play only a subordinate role in two-party litigation,
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Periódico Semestral da Pós-Graduação Stricto Sensu em Direito Processual da UERJ
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both domestic and transnational. Public policy concerns should nor affect the balance
between the interests of plaintiffs and defendants. This is true for both the interest of
the State in exercising its jurisdiction to adjudicate and any interest the State may
have in maintaining control over its territory (territorial sovereignty), as well as For
the European Union policies referring to the "sound operation" of the internal
market. Normally, public concerns can intervene in favour of either party in the
dispute. Thus, the Forum State interest in exercising its jurisdiction to adjudicate is
normally exercised in favour of the plaintiff whereas the sovereign interests of the
State in avoiding (or limiting to certain means) cross-border discovery or service of
foreign process on its own territory favors the Pendant who is resident there.
When assessing the relationship between parties' interests and public concerns,
one should observe the following guideline. If the interest of a polity is on the side of
one parry (either the plaintiff or the defendant), such a situation should not be
detrimental to the "essence" (Wesensgehalt) of the fair trial guarantee and thereby
damaging the counterparty. In other words, the regulation of transnational litigation as
well as the regulation of domestic litigation should focus on the balance between the
parties' interests. Little room should be given to considerations of public interest or of
public policy which are not related to either the private interest of parries or to the needs
of justice.
Of course, public policy issues should play a major role in our globalized world.
However, it is primarily the political system that should be entrusted with the task of
governing globalization and the regulation of transnational litigation has a limited role
to play in this context. From the perspective of advancing the public interest, the
regulation of transnational litigation has a specific and limited yet important task. It is
the task of making the system of civil justice more competitive vis-a-vis arbitration.
In this regard legal scholarship has made an important contribution: the joint
project between the American Law institute and the Unidroit on the Principles of
Transnational Civil Procedure. It has been carried out by lawyers and scholars belonging
to different procedural law traditions and cultures. The result is of great value due to the
balanced approach of the proposed solutions. A set of principles have been identified
that should be considered as a common set of requirements for guaranteeing a fair trial
in transnational litigation. They should be not only a point of reference in the scientific
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debate on this issue but also a model for legislators. Moreover, they should serve as
interpretative guidance for judges dealing with transnational litigation. Finally, they
could be used as a kind of benchmark against which national and regional norms can
be compared.
A second major contribution towards enhancing international litigation before
national courts is the Convention on Choice of Court Agreements (2005), drawn up
under the auspices of the Hague Conference on Private International Law. The objective
of the 2005 Convention is to outline uniform rules for the enforcement of exclusive
choice of court agreements between parties to commercial transactions and to facilitate
the recognition and enforcement (in the contracting States) of decisions of courts whose
jurisdiction is based on such agreements. This topic provides an excellent example of the
current tension between the rights (and autonomy) of private parties and public
policies, nor only in the field of transnational litigation but also in the civil procedure
more generally. If we agree on the purpose of restoring the competitiveness of state civil
justice vis-à-vis arbitration, the path to take is to extend the degree of negotiability of
procedural rules, and determine what exactly we consider to be non-negotiable.
V.
In order to remove some regulatory deficiencies of civil law systems, and
particularly of the European Union civil justice system, the U.S. approach and the
central role played by the constitutional due process guarantee in shaping fundamental
aspects transnational litigation, should be considered as a good model. This view is by
no means new, but it is worth repeating and adapting it to present circumstances. The
new legal framework introduced in the European Union law by the Lisbon Treaty
makes this proposal more acceptable and more practicable than it was twenty years
ago. The European Union now recognizes the rights, freedoms and principles set out in
the Charter of Fundamental Rights of the European Union, which shall have the same
legal value as the Treaties. In other words, the Charter has become a legally binding
instrument of primary EU law. Among the rights set out in the Charter, there is the right
to an effective remedy and to a fair trial. Art. 47 Ch. largely corresponds EU Art. 6 and
Art. 13 ECHR. The Lisbon Treaty also provides for the accession of the EU to the ECHR.
The European Court of justice, through long-standing case law has affirmed the role
of the Convention in the operation of EU law. According to Art. 52(3) Ch., in so far as
the Charter contains rights which correspond to the rights guaranteed by the ECHR,
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the meaning and scope of these rights shall be the same as those laid down by the
Convention. Moreover, it is worth mentioning that Art 6(3) TEU also makes reference
to the Convention. It provides that fundamental rights, as guaranteed by the
Convention and as they result from the constitutional traditions common to the
Member States, shall constitute general principles of the EU law. The fairness-based
approach is common to both the U.S. legal system and civil law systems. In the
continental legal tradition, the pre-determined rules of jurisdiction are also determined
on the basis of considerations of proximity and fairness. Adjudicatory authority has
never been based solely on the fact that a person is to be found within the territory
of a State court. Rules conferring jurisdiction are drafted in a general, abstract manner.
The underlying view has always been that the established jurisdiction is fair to both the
parties. Nevertheless, this general-abstract approach may fail in particular
circumstances. This is a more general point and applies not only with regard to the
rules of jurisdiction. Pre-established rules enhance the certainty and predictability of
the law, but they are drafted in relation to the usual course of events. Fair results in
applying the law rely both on pre-established rules and on standard situations in which
the rules are to be applied. However in exceptional circumstances the application of
pre-fixed rules may lead to unfair, even inequitable, outcomes. In such a context there
is room for constitutional considerations, through the application of the fair trial
guarantee by the courts. In civil law systems, it is not necessary to set aside the general,
abstract approach. The fair trial guarantee may be invoked to invalidate particular
misconceived pieces of legislation or CO restrict their scope of application. It is worth
noting that civil law courts are not alone in performing such operations. Judges in every
country are more and more aware of belonging to a developing global community. The
emergence of such a community of courts may achieve a number of goals in this
respect: a cross-fertilization of legal cultures in general, but also solutions to some
specific legal problems related to transnational disputes in particular.
The Report gives some examples of inconsistencies of civil law systems that can
be eliminated by applying the Fair trial guarantee. The first example is related to the lis
alibi pendens exception. If the problem of lis alibi pendens and parallel proceedings is
resolved on the basis of the continental European priority rule, it may well happen that a
court is seised by, e.g., a inscriming procedings negative declaration (or relief), with a
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view to prevent litigation before the second seised court. In such situations, avoid
abusive litigation, the fair trial guarantee de lege lata may allow the second seis court to
retain its jurisdictional powers and to go further with its proceedings, if it pears that the
dispute will not be fairly and effectively resolved by the first seised cou The second
example is related to the forum non conveniens doctrine. in cases when is absolutely
inappropriate for the court vested with jurisdiction to handle proceedir with Foreign
parties, e.g. because the court and the lawyer are completely ignorant of t foreign language
and reliable translators are not available, the fair trial guarantee de If lata may
exceptionally allow the court to decline its jurisdiction, applying the doctri of forum
non conveniens. In the light of the U.S. due process guarantee we can look one of the
most critical aspects related to the recognition and enforcement of judgment under the
Brussels Convention and Regulation no 44/2001. Subject to few exceptio the
jurisdiction of the court of the Member State of origin may not be reviewed by the court
seised with the enforcement request in other Member States. The public policy defence
may not be applied to the rules related to jurisdiction. The European solution is an
example of the disproportionate influence of public policy considerations (in d case:
the smooth functioning of the internal market) with regard to the balance between the
plaintiff's and the defendant's interests. In other words, if the fairness of the exert of
jurisdiction over a non-resident defendant is an element of fair trial, the respect this
fairness, as is envisaged by the Convention and the EC Regulation no. 44120 norms
on jurisdiction, should also be reviewed in the State where the recognition a enforcement
is sought, through the public policy defence. It is true that the public policy exception is
an "emergency brake" to be activated only in exceptional cases, but the cases cannot be
restricted so as to prejudice the guarantee of a fair trial. National courts should be
encouraged to take the opportunity to put a preliminary question before t ECI. under
Art. 267, TFEU, on the validity of Art. 28, III, Convention (Arr. 35, I EC Regulation
no 44/2001) vis-a-vis Art. 47 of the Charter of Fundamental Rights the European
Union.
VI. The final part of the report briefly sketches some specific aspects of the fair
trial guarantee in transnational disputes, such as the principle of equality, the
determinate of the judicial jurisdiction, the interim protection of rights, the right to
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engage a lawyer, the language, the extension of time limits, the question of the abuse
of process, the abuse of jurisdiction by the plaintiff, the public policy exception.
I. General Remarks
1. Transnational Litigation as a Branch of Civil Procedure
As I started writing this General Report, I asked myself a question. It was the same
question that Stephen B. Burbank asked himself in 19913, when reviewing the book by
Gary Born and David Westin:4 "Is there an emerging field of international civil litigation?";
"Is there ... a distinct, cohesive body of law [ensuring) some underlying kind of justice?".
The Board of the International Association of Procedural Law has raised very similar issues
at the World Congress on "Procedural Justice" in Heidelberg.5 I would like to address these
questions from the very beginning of my report.
The regulation of transnational litigation is not worlds apart from civil procedural law.6
Transnational litigation does not seek to achieve any special or particular form of justice.
The problem is to balance access to the courts and effective protection of individual rights
with the right to be heard. Indeed, these are "eternal" problems of civil procedure.
2. Substantive Law and Procedural Law
When discussing transnational litigation and elements of fair trial, it is necessary
to point out from the outset the distinction between substantive law and procedural law.
It represents a crucial point in the regulation of transnational litigation before national
courts.
Traditionally, the procedural law of the Forum State regulates all the aspects
related to the judicial process (lex fori rule). On the other hand, in cases that show foreign
elements, such as the nationality or the domicile of the parties, or the place of the performance of a contract, courts may apply foreign law to the dispute, in accordance with the
conflict of laws rules of the Forum State (lex causae rule).7
The distinction between the lex fori rule and the lex causae rule has its origins in
medieval jurisprudence. The foundation of the modern State strengthened the distinction
between the lex fori rule and the lex causae rule whereby judicial jurisdiction came to
3
See B. Burbank. 1991, p. 1456.
See now G. B. Born, P. B. Rutledge, 2011.
5
See www.iap1-2011-congress.com.
6
See N. Klamaris, Greece. For some doubts, see Perlingeiro, Latin America.
7
See A. T. von Mehren. 2007. p. 29.
4
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represent the exercise of state sovereignty in this new legal context. Moreover, procedural
law is public law. Thus, it would make no sense if the exercise of judicial jurisdiction by
courts of a state were regulated by the law of a foreign state. However, the lex fori rule is
nowadays based on practical, rather than on theoretical reasons. Accordingly, in some
cases it may be acceptable that foreign procedural law has to be applied by the courts of
the Forum State, in particular when this is required in order to improve the enforcement of
the substantive law8.
3. Is Procedural Law Neutral?
The distinction between substantive law and procedural law has fostered the view
that procedural law is "neutral" as regards substantive law. Therefore any procedural
law could implement any substantive law9.
From the perspective of civil law, the idea of neutrality of procedural law is
closely linked with the assumption of the priority of substantive law (ubi ins, ibi
remedium). As a result of the combination of these two ideas one might have expected
that the choice of law would have played a leading role in transnational litigation.
On the contrary, quite the opposite is true. The daily practice of the courts is
dominated by rules of judicial jurisdiction as well as international civil procedure. This
is a result of the strong differences among national procedural systems, in particular
between the U.S. system and the rest of the world.
4. American "Exceptionalism"
The distinctiveness of the American system of civil litigation has led to the coining
of the expression: American "exceptionalism".10 In particular, the United States is a
"plaintiff's heaven",11 even though recent decisions of the U.S. Supreme Court may have
changed to some extent the landscape of the pleading system.12 The "American
advantages" for the plaintiff in civil proceedings are discussed in detail in the Italian
version of my report: contingency fees, no loser-pays rule, low court fees, pre-trial
discovery, trial by jury, punitive damages, class actions. All these aspects need to be
8
See D. Cocscer-Walrjen. 1983.
See D. Leipold, 1989, p. 28.
10
See O. Chase, 2002, p. 277.
11
Sec Lord Denning, Smith Kline & French Laboratories v. Bloch (1983) 2 Ail. E.R. 72 (C.A.).
12
Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) has moved the system towards a stricter
standard of plausibility. Most recently, Ashcroft v. Iqbai, 129 S. Cc. 1937. 1949 (2009) arguably
extends even further the factual requirements in pleadings.
9
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taken into account, since they are related to the balance between effective judicial
protection of individual rights and rights of defence (in other words, they are related to
fair trial).
Beyond these elements, the comparison between the U.S. civil procedure and
the civil justice systems of other countries (especially of the European countries) shows
differences between the overall purposes and role of civil justice. While in Europe civil
litigation is not conceived as an instrument to effect important public policy goals and
public interest litigation, in the United States the system of private civil justice is seen
as an important element in the effective regulation of social and economic actors13.
This shows that the system of civil justice is all but neutral as to the means of
protecting of private rights.
5. Public Policy Goals in Transnational Litigation
Public policy goals to be achieved by the regulation of the judicial process are
more usu in transnational litigation than in domestic disputes. Let me provide two
examples.
a) Jurisdiction of United States Courts
The first one stems from the U.S case law on judicial jurisdiction and can be found
it the reasoning developed by of the U.S. Supreme Court in the Asahi case 14: In
13
See P. L. Murray. R. Starner. 2004, p. 576.
Asahi Metal Industry Co. v. Superior Court, 480 U.S. 102 (1987): Mr. Zurcher lost control of
her motorcycle and collided with a tractor. He was seriously injured and his passenger, Mrs.
Zurcher, killed. Zurcher alleged that the accident was the result of a defective tire rube which
caused his rear wheel to lose air rapidly and explode. Zurcher sued Cheng Shin, the Taiwanese
manufacturer of the tire tube, for product liability. Cheng Shin filed a third-party complaint in
California against Asahi Met Industry Co., the Japanese tire valve assembly manufacturer. Asahi
Metal had sold tire valve assembly directly to Cheng Shin in Taiwan and Cheng Shin then
incorporated the valves into motorcycle tire Zurcher eventually settled out of court leaving Cheng
Shin's indemnity claim as the only remaining issue to be decided. Asahi Metal moved to quash
the service of summons, claiming that California could not exercise jurisdiction over it because
sales m Cheng Shin rook place in Taiwan and shipmen were sent from Japan to Taiwan. Asahi
Metal did any business in California and did not directly import any products to California. Only
1.24% attic company's income came from sales to Cheng Shin an only 20% of Cheng Shin's sales
in the United States were in California. Cheng Shin testified that Elt. Asahi Metal was told and
knew that its products were being sold in California. The Superior Court found it fair to require
Asahi to defend in California and denied Asahi Metal's motion to quash service of summons. The
Court of Appeals reversed and issued a writ of mandate to compel the Superior Court to grant the
motion to quash. On appeal the California Supreme Court reversed again, finding chi Asahi Metal's
intentional act of placing its assemblies into the stream of commerce, together with the awareness
that some of them would eventually reach California, were sufficient to support State court
jurisdiction under the Due Process Clause. Asahi Metal appealed and the United States Supreme
Court granted cerriarari. For this case summary see www.lawnix.com.
14
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deciding this case, the Supreme Court argued that: "the determination of the
reasonableness and the exercise of jurisdiction in each case will depend on an
evaluation of several factors. The court must consider the burden on the defendant,
the interests of the Forum State and the plaintiff's interest in obtaining relief. It must
also weigh in its determination the interstate judicial system's interest in obtaining the
most efficient resolution of controversies; and the shared interest of the several States
in furthering fundamental substantive social policies 15. It is a five-factor test in
determining whether "traditional notions of fair play" would permit the assertion of
personal jurisdiction over a foreign defendant. It contains a good mix of both parties'
interests (plaintiff's interest in obtaining relief burden on the defendant) and public
policy goals (interests of the Forum State, interstate efficiency and policy interests).
b) Procedural Regulations of the European Union
The second example of public concerns in the regulation of transnational
litigation is provided by European Union law. It is the underlying rationale of the
Brussels Convention on jurisdiction and Enforcement of judgments in civil and
commercial matters 16. The Brussels Convention of 1968 not only serves the interests
of the parties involved in a cross-border dispute in Europe, but it should also be
considered in the broader context of European integration.17 Thus, the "sound
operation" of the internal market represents the public policy goal that led to the
adoption of rules of judicial jurisdiction intended to be both highly predictable and to
simplify the enforcement of judgments in the Member States.18
The Maastricht Treaty placed judicial cooperation within the competence of the
Justice and Home Affairs Pillar of the European Union (the so-called third pillar). The
Amsterdam Treaty amended Art. 65 of the EC Treaty to give the Community the competence for "improving and simplifying ... the recognition and enforcement of
15
In this case the Court found that the burden on the defendant was severe based on both the
geographic distance and legal dissimilarities between Japan and the United States. Cheng Shin
was not a Californian resident diminishing California's interest in the case. Cheng Shin also did
not show that it would I inconvenienced if the case for indemnification against Asahi were heard
in Japan or Taiwan instead of California. Finally, neither interstate efficiency nor interstate
policy interests would be served by finding jurisdiction.
16
See also the Lugano Parallel Convention, extending the rules of the Brussels Convention to
Switzerland, Norway and Iceland.
17
See P. Jenard, 1979. p. 13.
18
Landmark decision on the Iink between the Brussels Convention and the European integration
is ECJ. 10 February 1994, C-398/92. Mond & Fester. See B. Hess. 2010. p. 3.
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decisions in civil and commercial cases, including decisions in extrajudicial cases".
On that basis the Brussels Convention was replaced by Council Regulation EC
44/200119 and the underlying public policy concerns have been widened towards the
objective of maintaining and developing an area of freedom, security and justice,
where the free movement of persons is ensured. Under the Lisbon Treaty, this subject
matter is governed by Arts. 67 and 81 TFEU. 20
6. Overstating Public Policy Concerns
It is worth referring to a number of critical situations, in which overstating public
policy concerns can affect the balance between plaintiff's and defendant's interests.
a) Jurisdiction and Sovereignty
The first situation stems from the link between the exercise of judicial jurisdiction
and sovereignty.
Traditional or classical thought in England would consider that "It is an
essential attribute of the sovereignty of this realm, as of all sovereign independent
states, that it should possess jurisdiction over all persons and things within its
territorial limits and in all cases, civil and criminal, arising within these limits".21
Accordingly, jurisdiction is established when the service of process is permitted:
"Whoever is served with the King's writ, and can be compelled consequently to submit
to the decree made, is a person over whom the Court has jurisdiction''.22 In this way,
the judicial jurisdiction relies on the "power theory", linked to the service of the writ
upon the defendant. It is not concerned with the assessment of a proper connection
between the parties to the dispute and the forum. Even the mere transient presence of
a person in England (unless induced by fraud) suffices to render him amenable to the
19
The overall structure of the Convention has not been modified by the Regulation, which has
amended only specific provisions.
20
See B. Hess, 2010, p. 75. Fn. 401
21
So Lord Macmillan in the Cristina case, 1938. Moreover: "the connection between jurisdiction
and sovereignty is. up to a point, obvious, inevitable. and almost platitudinous, for to the extent
of its sovereignty a State necessarily has jurisdiction" (F. Mann. 1964, p. 30). This idea seems to
be alive and well in the recent decision (June 27, 2011) of the U.S. Supreme Court]. McIntyre
Machinery. Ltd. v. Nicastro: "The principal inquiry ... is whether the defendant's activities
manifest an intention to submit to the power of a sovereign".
22
John Russel and Co Ltd. v. Cayzer. Irvine Ltd. (19161. 2 AC 298. 302.
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jurisdiction of the court. This form of transient-service jurisdiction is alive and well
today.23
The critical link between the rules of jurisdiction and sovereignty, by means of
the plaintiff's citizenship, has influenced Art. 14 of the French Civil Code. It
establishes French jurisdiction for the benefit of any plaintiff of French nationality.
The English transient-service jurisdiction and the French citizenship
jurisdiction completely disregard the consideration of fairness in relation to the
defendant. Accordingly, under the Brussels Convention and Regulation EC 44/2001
(Art. 3) such rules of exorbitant jurisdiction shall not be applicable against persons
domiciled in a Member State. In conclusion, as Geimer has suggested, rules on
jurisdiction should not be primarily seen as an exercise of sovereignty but rather as the
striking of a reasonable balance between the interests of the parties.24
b) Transnational Service of Process
The second critical situation concerns the transnational service of process.25 The
plaintiff's interest in an easy and speedy service of process has to be balanced with the
defendant's interest in having knowledge of the document instituting the proceedings
(as well as of the subsequent documents) in sufficient time to prepare his or her
defence.
According to widespread opinion in the civil law systems, service of process is
an act of sovereignty.26 Thus, the State interest in having control over its territorial
sovereignty plays a role in the service of process upon a defendant, who is resident
there. According to this view, the service of process is only possible, as a rule, by
"tolerance" (such as to direct service by consular and diplomatic channels), consent
or collaboration in the framework of international judicial assistance.27 From a common
23
N. Tracker, 2011, p. 184
R. Geimer. 1993.
25
"Service of process" is the Formal transmission of documents to a parry involved in litigation. For the
purpose of providing it with a notice of claims, defenses, decisions, or other important matters (See G.
B. Born, P. B. Rutledge. 2007. p. 815. Sec now the 5th edition, 2011). Such a definition firs also in civil
law systems.
26
For references see H. Schack 2001, p. 831.
27
The Hague Convention on ',ervice Abroad oFjudicial and Lxtrajudicial Cioeurnents in Civil and Commercial Matters (Hague Service Convention. HSC, 1965) establishes a basic Central Authority mechanism ofservice under Article 5. In addition to that, the HSC also permits other means of extraterritorial
service. Among these alternative procedures, Arr. 10 (a) permits the sending of judicial documents by
24
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law point of view, sovereignty concerns relating to the service of process might appear
strange and unfamiliar. For instance, under the U.S. Federal Rules of Civil Procedure
service is often effected by the plaintiff's attorneys or by private firms specializing in
the service of process, not by government officials.28
What role should concerns of sovereignty play in the transnational service of
process? As already mentioned, one could think that this idea might benefit the
defendant who is resident in the State, in the sense that they protect him or her from
encroachments of service from abroad.29 However, this idea can be misleading. It is
doubtful whether perceiving service as an act of sovereignty can really protect
defendants. On the contrary, due to the fact that it could lead the Forum State to use
an intra-State fictitious service of process, like the remise au parquet, it could in fact
prejudice their situation30. Under this system, service is rendered by handing over the
document to the State attorney31 or by putting up a notice on the court notice-board.32
The addressee is subsequently notified by post, but the communication doesn't affect
the validity of the service of process.
In conclusion, a well balanced regulation of service of process should take into
consideration the following points. (I) In order to fulfil its functions, service should be
simple, quick, reliable and fair.33 (2) Sovereignty concerns in transnational service of
postal service directly to the defendant, only if the receiving State has nor objected. Some countries have
declared their opposition to service by mail on their territories, raising sovereignty obstacles. Germany
is among them. See § 6 HSC-AusG. Such an objection is no longer permitted under the Reg. EC Nn.
1393/2007 of the European Parliament and of the Council of 13 November 2007 on the service in the
Member States of judicial and extrajudicial documents in civil or commercial matters (European Service
Regulation, EuSR, repealing Council Reg. EC No. 1348/2000). Pursuant to Art. 14 oldie EuSR, "each
Member State shall be Free to di-co- service of judicial documents directly by postal services on persons
residing in another Member State by registered letter with acknowledgement of receipt or equivalent".
28
G. B. Born. P. B. Rutledge, 2007, p. 817. See now the edition. 2011.
29
See R. Starner, 1992, p. 327. For a critical appraisal, see H. Schack, 2001. p. 832.
30
See Art. 683 of nouveau code de procedure civile. For the Hague Service Convention to be
applicable, a document is to be transmitted drom one State party to the Convention to another State
party for service. The law of the forum State determines whether or nor a document has to be transmitted
abroad for service in the other State. Therefore, the Convention does not exclude national means of
fictitious intra-State service. As M. Kengyel, Hungary, put it: "If service abroad is impossible (e.g. there
is no Hungarian foreign representation authority), the court shall apply fictitious domestic service in
civil cases in accordance with the relating general rules".
31
As in France, Art. 684 novrau c.p.c.
32
As in Italy, Art. 142 c.p.c
33
H. Schack, 2001, p. 832. Ali/Unidroit Principles of Transnational Civil Procedure. 5.1: "…At the
commencement of a proceeding, notice, provided by means that are reasonably likely to be effective,
should be directed to parties other than the plaintiff...".
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process are definitely misplaced.34 (3) A fine balance in protecting the plaintiff's and the
defends interests is required. Since the plaintiff has a choice of the forum, the
disadvantage; the foreign defendant should be minimized, according to the
proportionality print. Consequently, at the top of the blacklist should be fictitious
national means of set of process. As Zuckerman put it "the right to fair trial, or due
process, demands every litigant should have timely notice of any proceedings
affecting his interests a reasonable opportunity to participate in them".35 Fictitious
means of service fail regard to the notification of the act instituting the proceedings to
the defendant. Therefore, they do not comply with the fair trial guarantee.36 (4) A
multilateral convention37 creating uniform rules on service of process is needed. Such
a convention should or late not only the procedures of service abroad (as both the HSC
and the EuSR do). It should also entail mandatory rules on its scope and should not leave
the conditions c applicability to the national laws of the Contracting Stares. Other
important matters be regulated are: the translation of the document to be notified,38 the
date of the set to be taken into account with regard to the applicant, time limits for filing
a defence remedying defective service, extension of time limits if the defendant (not
entering39 appearance) has had no sufficient time for his or her defence.
c) Good Functioning of the EU Internal Market
The third critical situation where public policy intervenes in the assessment of
trasnational civil proceedings can be related to the good functioning of the internal mar
34
This point is concerned with the State in which the addressee of service is resident. With regard t
Forum State, a link between service of process and sovereignty can be assessed in the legal orders t
English law). in which the international judicial jurisdiction depends upon whether the rules Forst of
process have been complied with. In this context, jurisdiction — traditionally conceived as an ext of
sovereignty — is established when service is permitted (R. Fenriman, 2010, p. 359).
35
Sec A. Zuckerman, 2006, p. 155.
36
Moreover. in the field of the European Law, the remise are parquet does not comply with the
prohibition of discrimination on grounds of nationality (Arr. 18 TFEU).
37
Therefore, neither the HSC, nor the EuSR are able ro prevent the use of such intra-State method service
of process. since these legal instruments apply only ro service abroad. See also Arts. 15 are HSC
(postponement of judgment: extension of time limits), as well as Art. 19 EuSR (postponem judgment).
38
Ali/Unidroit Principles of Transnational Civil Procedure. 5.2: "The documents referred to in Principle
5.1 must be in a language of the forum, and also a language of the state of an individual's habitant
residence or a jural entity's principal place of business. or the language of the principal documer the
transaction. Defendant and other parties should give notice of their defenses and other conren and
requests for relief in a language of the proceeding, as provided in Principle 6".
39
Ali/Unidroir Principles of Transnational Civil Procedure. 5.1: "... A parry against whom relief is so
should be informed of the procedure for response and the possibility of judgment For failing make timely
response..."
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which represents a crucial public policy goal of the European Union. In the last decade,
it has led to the adoption of a number of legal instruments (Council Regulations). They
are intended to simplify the formalities with a view to "rapid and simple" recognizing
and enforcement of judgments of Member States.
Under the Brussels Convention and the Regulation EC 44/2001, a judgment
given in a Member State shall be recognized in the other Member States without any
special procedure being required. In the view of the institutions of the European
Union "mutual trust" in the administration of justice in the Member States justifies such
automatic recognition of judgments given in another Member Stare. With this provision,
the plaintiff's and the defendant's interests are well balanced: the judgment to be
recognized can be in favour of either the plaintiff or the defendant. By virtue of the
same principle of mutual trust, the procedure for making judgments enforceable in
other Member States must also be efficient and rapid.
As a matter of fact the enforcement of judgments has been facilitated greatly
over the last ten years. This fact can be illustrated by a number of examples. Under the
Brussels Convention, the enforcement of judgments is declared in ex parte proceedings.
The party against whom enforcement is sought is not in a position to raise any
objection to the request. However, the Court of the Contracting Stare in which
enforcement is sought must ex officio identify and review grounds for non recognition
of the judgment.40 If enforcement is declared, the parry against whom enforcement is
sought may appeal against the decision within one month of service thereof.41 Among
the grounds of non recognition, in cases in which the judgment is given in default of
appearance, there is the defective service of process, which occurs when the defendant
has had no sufficient time to arrange for his defence. 42
Under the Brussels 1 Regulation (EC n. 44/2001), the enforcement statement is
automatically issued after purely formal checks of the alleged documents, the court is
left without any opportunity to raise of its own motion any of the grounds for non40
See Art. 34 (2), in connection with Arts. 27 and 28.
See Art. 36.
42
Art. 27: "A judgment shall not be recognized: 1. if such recognition is contrary to public policy in the
State in which recognition is sought; 2. where it was given in default of appearance. if the defendant was
not duly served with the document which instituted the proceedings in sufficient time to enable him to
arrange for his defence; 3. if the judgment is irreconcilable with a judgment given in a dispute between
the same parties in the State in which recognition is sought; 4. ...".
41
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enforcement provided for by this Regulation. 43 It is up to the parry against whom
enforcement is sought to raise them through appeal against the declaration of
enforceability.44 If the judgment was given by default, it will be more difficult to
challenge it45. Furthermore, the new Regulation (EU) No 1215/2012 of the European
Parliament and of the Council ("recast" of Council Regulation EC 44/2001; it will
apply from 10 January 2015) will abolish the exequatur procedure for all judgments
covered by d Regulation's scope (Art. 39).46 According to the new Regulation the
abolition of exequatur will be accompanied by procedural safeguards which aim to
ensure that the defedant’s right to a fair trial is adequately protected (Art. 46). The
exception of substantive public policy will be abolished (Art. 52).
The interest of the European Union in enhancing the functioning of the
internal market has led to a remarkable simplification of the enforcement of judgments
in favor of the plaintiff Questions may be raised as to whether this regulation is in
itself harmful to the notion of a fair trial by penalising the defendant. However the
answer must depend on where the proceedings in fact take place. Conditions relating
to the administration of justice differ according to the Member State in question and
the principle "mutual trust" amounts to little more than a rhetorical slogan.
7. Balancing Public Policy Concerns and Parties' Interests
Generally speaking, the regulation of transnational disputes must first and
foregoer seek to balance the plaintiff's interests (access to the court, effective
protection of assembled rights) and the defendant's interests (right to be heard). Public
43
See Art. 41, Reg. EC No. 4412001: "The judgment shall be declared enforceable immediately on
completion of the formalities in Article 53 without any review under Articles 34 and 35".
44
See Art. 45 Reg. EC No. 44/2001: "the court with which an appeal is lodged under Article 43 or Article
44 shall refuse or revoke a declaration of enforceability only on one of the grounds specified in Articles
34 and 35".
45
Art. 34 Reg. EC No. 44/2001: "A judgment shall not be recognised: 1. ...: 2. where it was given in
default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for
his defence, unless the defendant failed to commence proceedings to challenge the judgment when it
was possible for him to do so...".
46
The exequatur has already been abolished in previous regulations: see Reg. EC No. 805/2004 creating
a European Enforcement Order for uncontested claims (21 April 2004); Reg. EC No. 1896/20i creating
a European order for payment procedure (12 December 2006): Reg. EC No. 861/2007 oft European
Parliament and of the Council establishing a European Small Claims Procedure (11 Jt 2007); Reg. EC
No. 4/2009 on jurisdiction, applicable law, recognition and enforcement of decision and cooperation in
matters relating to maintenance obligations (18 December 2008).
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policy concerns should normally play only a subordinate role in two-party litigation,
both domestic and transnational.47 Public policy concerns should not affect the balance
between the interests plaintiffs and defendants. This is true for both the interest of the
State in exercising in jurisdiction to adjudicate and any interest the State may have
in maintaining control over its territory (territorial sovereignty), as well as for the
European Union policies referring to the "sound operation" of the internal market.
Normally, public concerns can intervene in favour of either party in the dispute.
Thus, the Forum Scare interest in exercising its jurisdiction to adjudicate is normal
exercised in favour of the plaintiff whereas the sovereign interests of the State in
avoiding (or limiting to certain means) cross-border discovery or service of foreign
process on its own territory favours the defendant who is resident there. When
assessing the relationship between parties' interests and public concerns, one should
observe the following guideline. If the interest of a polity is on the side of one parry
(either the plaintiff or the defendant), such a situation should not be detrimental to the
"essence" (Wesensgehalt) the fair trial guarantee and thereby damaging the
counterparty. In other words, the regulation of transnational litigation as well as the
regulation of domestic litigation should focus on the balance between the parties'
interests. Little room should be given to considerations of public interest or of public
policy which are not related to either the private interest of parties or to the needs of
justice.
Of course, I do not think that public policy issues should play no role in our globalised world. Rather I am of the opinion that quite the opposite is true. 48 However,
it is primarily the political system that should be entrusted with the task of governing
globalisarion and the regulation of transnational litigation has a limited role to play in
this context.
8. State Civil Justice v. Arbitration
47
As a traditional system I refer here to the form of litigation in which a single plaintiff asserts a
substantive right against a single defendant. Of course, the situation is different with regard to multipart litigation. In this case the traditional litigation form must in modern legal systems be stretched
accommodate various interests: compensation and/or preventing unjust enrichment, judicial efficiency,
deterrence and/or regulation of social behavior (H. Buxhaum. 2008).
48
See R. Starner. 2007.
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From the perspective of advancing the public interest, the regulation of transnational
litigation has a specific and limited yet important task. It is the task of making the
system of civil justice more competitive vis-a-vis arbitration.
a) Ali/Unidroit Principles of Transnational Civil Procedure
In, this regard legal scholarship has made an important contribution: the joint project
between the American Law Institute and the Unidroit on the Principles of Transnational
Civil Procedure.49 It has been carried our by lawyers and scholars belonging to different
procedural law traditions and cultures. The result is of great value due to the balanced
approach of the proposed solutions. A set of principles have been identified that should
be considered as a common set of requirements for guaranteeing a fair trial in transnational litigation. They should be not only a point of reference in the scientific debate
on this issue but also a model for legislators. Moreover, they should serve as
interpretative guidance for judges dealing with transnational litigation. Finally, they
could be used as a kind of benchmark against which national and regional norms can
be compared 50.
b) Choice of Court Agreements: The Hague Convention
A second major contribution towards enhancing international litigation before
national courts is the Convention on Choice of Court Agreements (2005), drawn up
under the auspices of the Hague Conference on Private International Law.51 Compared
with the original project, which was conceived in the last decade of the twentieth
century, the 2005 Convention is certainly less ambitious. The original project was an
attempt to draw up a global convention aimed at establishing norms on judicial
jurisdiction to be applied in the Forum State, as well as norms that govern the
recognition and enforcement decisions in other States. It failed at the beginning of the
new millennium.52
The objective of the 2005 Convention is to outline uniform rules for the
enforcement of exclusive choice of court agreements between parties to commercial
transactions and to facilitate the recognition and enforcement (in the contracting States)
49
See R. Starner, 2005, p. 201; M. Anderms, N. Andrews, R. Nanini (cds.). 2004; N. Klamaris, Greece.
See R. Starner, 2005, p. 213 1.
51
For the text of the Convention, s. www.hccp.net. In 2009 it was signed by the European Union and the
United States of America.
52
For the reasons of this failure. see A. T. Von Mehrcn, 2007, p. 365 f.
50
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of decision of courts whose jurisdiction is based on such agreements. The Convention
has drawn inspiration from the New York Convention of 1958 on the Recognition and
Enforcement of Foreign Arbitral Awards. As far as parties to commercial transactions
are concerned53 if it represents a real alternative to the inclusion of an arbitration
agreement in their contracts.54
This topic provides an excellent example of the current tension between the
right (and autonomy) of private parties and public policies, not only in the field of
transnational litigation but also in the civil procedure more generally. If we agree on the
purpose of restoring the competitiveness of state civil justice vis-à-vis arbitration, the
path to não sei is to extend the degree of negotiability of procedural rules, and
determine what exact we consider to be non-negotiable.55
In other words, the way forward is to overcome the conception which does not
recognize a middle-ground between arbitration, on the one hand, and state justice, on
the other hand and to move towards a greater inclusion of the preferences of parties in
the structure of the proceedings. This should be done to the extent that it does not hint
the efficiency of the judicial process, in line with the objective of a fair settlement to t
dispute. 56
In this context, the regulation on choice of court agreements stands our since it
não sei make a significant contribution to the predictability of contractual relations
between the parries.57 The degree of predictability that the choice of court agreements
can achieve obviously varies depending on the legislative framework that applies to them.
In civil 1aw, countries, a (valid) clause in which the parties had agreed on an exclusive
choice of contends to be considered as binding for the courts. Conversely, in common
law system clauses regarding the choice of court are not entirely binding. Courts retain
a degree discretion in deciding whether to give them effect or not.58
In the Hague Convention of 2005, the balance between the rights of the parties
garding the choice of court and the interests of state authorities was met through a não
53
The convention does not apply either to consumer contracts or contracts of employment (Art. 2).
See N. Trocker, 2011, p. 205.
55
For more details R. Caponi, 2008.
56
See P. Schlosser. 1968.
57
See N. Trocker. 2011. p. 199.
58
See N. Tracker, 2011. p. 199.
54
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sei of trade-off. Prerogatives of the latter have been protected in a general and abstract
with through a long list of issues, which have been excluded from the scope of the
Convention.59 The prerogatives of the parries are protected, within the scope of the
Convention by reducing judicial discretion. A court designated in an exclusive choice of
court agreement "shall not decline to exercise jurisdiction on the ground that the
dispute should be decided in a court of another State”.60 There is therefore no scope
for the application of forum non conveniens. Vice versa, as a general rule, the nondesignated court "shall suspend or dismiss proceedings to which an exclusive choice of
court agreement applies". That is, it must respect the choice of the parties.61 Moreover,
except in exceptional circumstances, the decision issued by a court designated in an
exclusive choice of court agreement has to be recognized and enforced in other
contracting states 62.
c) Choice of Court Agreements: European Regulation
In European procedural law, a court designated in a choice of court agreement
shall have exclusive jurisdiction, unless the parties have agreed otherwise".63 However, if
the court designated pursuant to a choice of court agreement is the second-seised court, it
must stay its proceedings pending a decision by the court first seised in respect to the rule
of prevention,64 even if the judicial action brought in the first place is the result of a clearly
abusive strategy.65
The approach of the Court of Justice is unsatisfactory from the point of view
of guaranteeing a fair trial. The new Regulation (EU) No 1215/2012 ("recast" of Council
Regulation EC 44/2001) contains a provision intended to correct it. It provides that the
court chosen by the parties has priority in deciding on its own jurisdiction, regardless of
whether it is the first-seised or second-seised court.66
9. Fair Trial Guarantee in the Civil Law Tradition
59
Art. 2 (2).
Art. 5 (2).
61
Art. 6. See also Ali/Unidroit Principles of Transnational Civil Procedure 2.4.
62
Arts. 8 and 9. See N. Tracker, 2011, g. 205.
63
See Arts. 23 and 24 of EC Regulation No. 44/2001. Arr. 23 leaves no room for judicial discretion. In
this regards sec Eq, 16 March 1999, C-159197, Trasporti Casrelletti, referring to Art. 17 of the Brussels
Convention of 1968.
64
See Art. 27 Reg. EC No. 44/2001.
65
See Eq. 9 December 2003, C-I 16/02. Gasser.
66
See Art. 32 (2) of the proposal for a recast of the Reg. EC No. 44/2001, Brussels 1-615 (2010).
60
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At the beginning of this Report the fair trial guarantee has been identified as
balancing, on the one hand, access to the courts and the effective protection of
individual rights and on the other hand the right to be heard. At this stage one should
point out the diferences between the notion of a fair trial in the civil law tradition and
due process in the U.S. legal system.
First of all, in Europe the fair trial guarantee has come to cover the right of
access to the courts. The landmark decision was taken by the European. Court of
Human Rights in 1975, Golder v. United Kingdom67.
Enshrining the right of access to the courts in Art. 6, para 1 of the European
Convention of Human Rights (ECHR) paves the way for quite a radical change in
perception of the fair trial. Traditionally, the fair trial was conceived as a negative i.e.
as freedom from unlawful interferences by the public authority. This can be de, observed
in the first solemn declaration of the fair trial guarantee; clause 39 of the fir era Carta
Libertaturn (1215): "Wires liber homo capiatrer, vel imprisonetur, aut dissaisia ant
utlagetur, ant exuletur, ant aliquo modo destruatisr, nec super eum ibimzcs, nec sr eum
mittemus, nisi per legate judicium parium suorum vet per legem terrae".68
With the inclusion of the right of access to the courts within the notion of a trial,
this guarantee has moved from the area of negative rights into the area of position rights,
which impose positive obligations on the State. The principle of effectiveness played a
crucial role in this change.69 In Airey v. Ireland (1979), the European Court of Human
Rights applied the principle of effectiveness to the right of access to the court as the
latter cannot be effectively protected without providing for legal aid on the of the State.70
67
The applicant, a prisoner, was prevented under the Prison Rules then in force from consulting a solicitor in relation to defamation proceedings that he wanted to bring against an orison officer. The Court
concludes (para 35): "It would be inconceivable ... that Article 6 pars I should describe in detail
procedural guarantees afforded to parties in a pending lawsuit and should not first protect that with alone
makes it in Fact possible to benefit from such guarantees. That is access to a court. The fair não sei and
expeditious characteristics of judicial proceedings are of no value at all if there are no judicial
proceedings".
68
See Holdsworrh. IE. ed., 1936. p. 214. This is the second and most famous of the three surving
chapters of the Charter. It is Edward version (1297) which remains on the stature books to this See Lord
Neuberger of Abbotsbury. Master of the Rolls, Inner Temple. Magna Carta Dinner. 14 2011,
httg:1/tinyurl.com/6firtms.
69
N. Trockcr. 2010, p. 230.
70
Airey v. Ireland (1979): (pars 24) "The Convention is intended to guarantee not rights that are the. ical
or illusory but rights that are practical and effective ... This is particularly so of the right of at to the
courts in view of the prominent place held in a democratic society by the right to a fair EI (25) "In the
first place, hindrance in fact can contravene the Convention just like a legal impediment. Furthermore.
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Besides legal aid, other positive obligations have been falling within the area of
fair trial guarantee by means of the case law of the European Court of Human Rig In
particular and of crucial importance the protection provided for by Art. 6, pai ECHR
was extended through the introduction of the right to effective enforcement judicial
decisions.71
The right to effective judicial protection also requires an effective remedy,
guaranteed by Art. 13 ECHR, which extends beyond the safeguards provided for by
Art. 6.72
These developments are condensed in Art. 47 of the Charter of Fundamental
Rights of the European Union.
10. Due Process in the U.S. Legal Tradition: The Issue of Judicial
Jurisdiction
In contrast, the current implementation of the U.S. due process clause73 by the
case law of the U.S. Supreme Court still bears traces of the meaning enshrined in Art.
39 of the Magna Charta Libertatum, i.e. as a negative right, as a freedom from unlawful
interference.
fulfillment of a duty under the Convention on occasion necessitates some positive ac on the part of the
State; in such circumstances, the State cannot simply remain passive ... The obliga to secure an effective
right of access to the courts falls into this category of duty”.
71
Landmark decision: Hornsby v. Greece (1997). In this case the Greek Ministry of Education wrote
refused to allow the applicants to set up a private school. The Supreme Administrative Court qua the
Ministry's decision but the Ministry refused to act accordingly. The Court reiterates that, according to
its established case law: (para 40) "Article 6 para 1 secures to everyone the right to have any co relating
to his civil rights and obligations brought before a court or tribunal: in this way it embo the 'right to a
court', of which the right of access, that is the right to institute proceedings before co in civil matters,
constitutes one aspect... However, that right would be illusory if a Contracting St domestic legal system
allowed a final. binding judicial decision to remain inoperative to the derri of one party. It would be
inconceivable that Article 6 para 1 should describe in derail procedural garantees afforded to litigants
— proceedings that arc fair, public and expeditious — without protecting implementation of judicial
decisions; to construe Article 6 as being concerned exclusively with access to a court and the conduct of
proceedings would be likely to lead to situations incompatible with the principle of the rule of law which
the Contracting States undertook to respect when they ratified the Convention ... Execution of a judgment
given by any court must therefore be regarded as an integral part of the 'trial' For the purposes of Article
6; moreover, the Court has already accepted this principle in cases concerning the length of proceedings".
72
ECHR, Kudla v. Poland (2000): (pars 157) "Article 13 of the Convention guarantees the availability
at national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever
form they may happen to be secured in the domestic legal order. The effect of Article 13 is thus CO
require the provision of a domestic remedy to deal with the substance of an 'arguable complaint' under
the Convention and to grant appropriate relief".
73
Fifth Amendment, 1791, applicable only to actions of the Federal Government: "No person shall be ...
deprived of life, liberty, or property. without due process of law...". The Fourteenth Amendment. 1868,
contains virtually the same provision, but expressly applies to the states.
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The due process guarantee has contributed greatly to the shaping of judicial jurisdiction
over non-resident defendants, while access to the courts and effective remedies have been
granted in the U.S. by those distinctive aspects of the system of civil litigation that
characterize it as a "plaintiffs heaven".
This last consideration brings our attention to another difference between the European fair trial guarantee and the U.S. due process clause. During the nineteenth and
the twentieth century the U.S. theories and practices of adjudicative authority in international disputes were shaped and controlled by courts, thanks to the direct application
of the due process clause. Pennoyer v. Neff74 is the landmark decision. The question at
issue was whether a state court might exercise personal jurisdiction over a non-resident
who had not been personally served while within the state and whose property within
the state had not been attached before the onset of the litigation. The Supreme Court's
answer, on the basis of the due process clause, was negative. A court may enter a judgment against a non-resident only if: (1) the party is personally served with process while
within the state, or (2) the party has property within the state, and the same property is
attached before litigation begins (i.e. quasi in rem jurisdiction). Pennoyer v. Neff relies
on the rationale that "the foundation of jurisdiction is physical power".75
The "reign of power theory" 76 was ended in 1945 with the case of International
Shot Co. v. Washington. Since then the Supreme Court has replaced it with the "fairness
theory" 77. The passage from the reasoning behind the decision reveals that the
74
95 U.S. 714. 24 L. Ed. 565 (1878). Sec the brief summary of this case on www.lawnix.com.
Justice Holmes in McDonald v. Mabee. 243 US 90 (1917), 91.
76
See A. T. von IvIehren, 2007, p. 88.
77
See A. T. von Mehren, 2007. p. 97. International Shoe Co. v. Washington, 326 U.S. 310: (pars 31t
"Historically, the jurisdiction of courts to render judgment is: pe-rsonasn is grounded on their fit fir to
power over the defendant's person. Hence. his presence within the territorial jurisdiction of court was
prerequisite to its rendition of a judgment personally binding him. Pennoyer v. Neff, 95 1 S. 714. 95 U.
S. 733. But now ... due process requires only that, in order to subject a defendant to judgment in
perranam. if he is not present within the territory of the forum, he has certain minimu contacts with it
such that the maintenance of the suit does not offend 'traditional notions of Fair pl and substantial
justice'...". (319) "Whether due process is satisfied must depend, rather, upon the quali and nature of the
activity in relation to the Fair and orderly administration of the laws which it w the purpose of the due
process clause to insure". Summary of the case from www.lawnix.com: Intern tinnal Shoe Co. was a
Delaware corporation with its principle place of business in St_ Louis. Missou It had no offices in the
state of and made no contracts For _sale there. International Sh did not keep merchandise in Washington
and did not make deliveries of goads in intrastate commer originating from the state. International Shoe
employed 11-13 salesmen for three years who resided Washington_ Their commissions each year
amounted to more than £31,000 and international Sh reimbursed them for expenses. Prices, terms, and
acceptance or rejection of footwear orders were esta fished through St. Louis. Salesmen did not have
authority to make contracts or collections. The sr. of Washington brought suit against International Shoe
75
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emergency of the "fairness theory" was due more to the constraints that the power
theory had imposed rather than the excesses that arose as its consequence.78 International
Shoe Co. v Washington strengthens the trend towards ex post evaluation of the grounds
for judicial jurisdiction in the light oldie facts of a particular case.79 On the basis of this
landmark decision, all the States of the Union have enacted the so called "long-arm"
statutes, it the sense that they provide for "long-arm" jurisdiction over defendants.
11. The European Approach to the Jurisdiction Rules
By contrast, in civil law systems: "Locating the proper court in a civil action
does no imply a nuanced inquiry into the specific circumstances of the particular case,
but depends on pre-established concepts (e.g. domicile of the defendant, performance
of con tract, place of the wrongful conduct, etc.) and pre-fixed rules determined on
the basis of considerations of proximity and fairness. Jurisdiction to adjudicate is
perceived as the result of the existence of a general self-evident link, rather than a highly
individualized operation of analysis which is intended to safeguard, in relation to each
individual case the fairness, justice and appropriateness of the forum".80
Taking into account these Features, the Brussels Convention and Regulation can
be considered a genuine masterpiece. The success of the Brussels Convention relies on a
few fundamental features: (1) the rules of judicial jurisdiction laid down in the
Convention are applicable in the Forum State, regardless of any proceedings for
recognition and enforcement; the Brussels Convention is a so called "double treaty";
it has its own rules of jurisdiction, that are uniform and binding for the Member States;
(2) in relationships between Member States such an autonomous system of
international jurisdiction prevails over conflicting national rules of jurisdiction,
including those generally regarded as exorbitant; (3) the Brussels Convention adopts
a very liberal approach to the question of recognition and enforcement of judgments,
as a result of certain safeguards granted to the defendant in the Forum State and
in Washington State court to recover unpt contributions to the unemployment compensation fund. Notice
was served personally on an agent the defendant within the state and by registered mail to corporate
headquarters. The Supreme Court Washington held that the state had jurisdiction to hear the case and
International Shot appealed.
78
A. T. von Mehren, 2007. p. 97.
79
S. B. Burbank. 2004. p. 744.
80
N. Trucker. 2011. p. 182.
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mutual trust in the administration of justice between the Member States.
Specifically, the Convention reduces the number of grounds which can operate to
prevent the recognition and enforcement and it simplifies the enforcement procedure;
(4) the autonomous interpretation of the Convention by a supranational Court, the
European Court of Justice (ECJ).
12. A Time-Honoured Achievement of the U.S. Legal Culture
The U.S. approach to judicial determination of jurisdictional rules has been
criticized from a civil law point of view.81 However, such a criticism is to some extent
excessive. At any rate it cannot overshadow a time-honored achievement of the U.S.
legal culture: the recognition of the constitution as a higher law. The due process clause
is a constitutional principle and — as with other constitutional principles — its goal is
not only political. Constitutional principles are also legal norms, despite their somewhat
broad nature. As a result of their inherent prescriptive nature they can directly regulate
facts and life situations, without any legislative implementation.82
Therefore, constitutional principles are generally recognized as a legal basis for
judicial decisions in the following ways: (1) firstly, constitutional principles can fill a
gap in the legislation; (2) secondly, constitutional principles orientate the interpretation
of the legislation; (3) thirdly, if a constitution-based interpretation is nor practicable,
(because of gramaticarlexical, systematic, historic, and teleological constraints),
constitutional principles have to serve as a basis for the non-application or invalidation
of legislative provisions through constitutional review; it may be either a decentralized
or a centralized judicial review of legislation83 (for example in the European Union it
81
H. Schack. 2010, p. 163: "Lack of legal certainty".
The Charter of Fundamental Rights of the European Union sets out a difference between "rights" and
"principles": "European Union's Bodies and Member States shall respect the rights, observe the principles and promote the application thereof in accordance with their respective powers and respecting the
limits of the powers of the Union as conferred on it in the Treaties" (Art. 51 Ch.). "The provisions of
this Charter which contain principles may be implemented by legislative and executive acts taken by
institutions, bodies. offices and agencies ache Union, and by acts of Member States when they are
implementing Union law, in the exercise of their respective powers. They shall be judicially cognisable
only in the interpretation of such acts and in the ruling on their legality" (Arr. 52. 5 Ch.). Taking into
account this difference, the fair trial guarantee (Art. 47 Ch.) is a (fundamental) right, nor a "principle".
For more details on this aspects, H. Sagmeister, 2010.
83
In the first case, judicial review can be carried out by every judge and its effects arc confined to the
decision at hand. In the second one, the review is carried out by a constitutional court seised by a referral
an issue arising during a proceedings before an ordinary court or by a request of a number of parricui
bodies.
82
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is for tilt European Court of Justice to invalidate legislation of the Union when there
is a breach of constitutional principles);84 (4) fourthly, within the framework of the
European Convention of Human Rights it is for the European Court of Human Rights
to declare that a "final decision85 has been adopted by the contracting party in breach
of the rights see forth in the Convention or the Protocols thereto. 86
13. Filling Regulatory Gaps through the Fair Trial Guarantee
The current section follows from what has been just said. I believe that in order
to remove some regulatory deficiencies of civil law systems,87 and particularly of the
European Union civil justice system, the U.S. approach and the central role played by
the constitutional due process guarantee in shaping fundamental aspects of
transnational litigation, should be considered as a good model. This view is by no
means new,88 but it is worth repeating and adapting it to present circumstances. The
new legal framework introduced in the European Union law by the Lisbon Treaty
makes this proposal more acceptable and more practicable than it was twenty years
ago.
The European Union now recognizes the rights, freedoms and principles set out
in the Charter of Fundamental Rights of the European Union, which shall have the
same legal value as the Treaties.89 In other words, the Charter has become a legally
binding instrument of primary EU law. Among the rights set out in the Charter,
there is the right to an effective remedy and to a fair trial. Art. 47 Ch. largely
corresponds to Art. Não sei and Art. 13 ECHR. The Lisbon Treaty also provides for
84
Art. 6, 19 TEU; Art. 251 ff. TFEU. In the recent case law of the EC. See, for example ECJ. 1 Man
2011. Association Beige des Consommatcurs Test-Achats ASBL. C-236/09. In this judgment. the EU
declared invalid Art. 5(2) Directive 2004/I 13/EC, implementing the principle of equal treatment
between men and women in the access to and supply of goods and services. Pursuant to Art. 5(2): "liter
her States may decide before 21 December 2007 to permit proportionate differences in individual
premiums and benefits where the use of sex is a determining factor in the assessment of risk based c
relevant and accurate actuarial and statistical data". The ECJ held such a provision. because of the law
of any temporal limitation was incompatible with Art. 21 and 23 Ch. (equal treatment for men and
women). On this decision, s. the criticism of T. Pfeiffer. NJW 2011. Editorial Heft 13. p. 3.
85
Art. 35 ECHR.
86
Art. 41 ECHR.
87
I would say: Werrungsliicken in the german legal terminology. R. Zippelius, 2003.
88
P. Schlosser 1991; R. Geimer, 1993; T. Pfeiffer, 1995; D. Coester-Waltjen, 2003.
89
Art. 6 TEU.
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the accession of the Ell to the ECHR. 90 The European Court of Justice, through longstanding caselaw has a (Ernie the role of the Convention in the operation of EU law.
According to Art. 52(3) Ch., it so far as the Charter contains rights which correspond
to the rights guaranteed by the ECHR, the meaning and scope of these rights shall
be the same as those laid down by the Convention. Moreover, it is worth mentioning
that Art 6(3) TEU also makes reference to the Convention. It provides that fundamental
rights, as guaranteed by the Convention and as they result from the constitutional
traditions common to the Member States, shall constitute general principles of the
EU law.91
The Fairness-based approach is common to both the U.S. legal system and civil law
systems. In the continental legal tradition, the pre-determined rules of jurisdiction are
also determined on the basis of considerations of proximity and fairness. Adjudicatory
authority has never been based solely on the fact that a person is to be found within the
territory of a State court. Rules conferring jurisdiction are drafted in a general, abstract
manner. The underlying view has always been that the established jurisdiction is fair to
both the parties. 92
Nevertheless,
this
general-abstract
approach
may
fail
in
particular
circumstances. This is a more general point and applies not only with regard to the rules
of jurisdiction. Pre-established rules enhance the certainty and predictability of the
law, but they are drafted in relation to the usual course of events. Fair results in applying
the law rely both on pre-established rules and on standard situations in which the rules
are to be applied. However in exceptional circunstances the application of pre-fixed
rules may lead to unfair, even inequitable, outcomes. In such a context there is room
for constitutional considerations, through the application of the fair trial guarantee by
the courts.
In civil law systems, it is not necessary to set aside the general, abstract
approach. The fair trial guarantee may be invoked to invalidate particular misconceived
90
Art. 6(2) TEU: "The Union shall accede to the European Convention For the Protection of Human
Rights and Fundamental Freedoms, Such accession shall not afIcrt the Union's competences as defined
in the Treaties".
91
This provision corresponds. almost literally, to Article 6(2) TEU-Nice- For more derails on the
different roles in which the Lisbon Treaty presents the Convention. e. W. Weiss, 2011. p. 64.
92
P. Schlosser. 1991. p, 12.
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pieces of legislation or to restrict their scope of application. It is worth noting that civil
law courts are not alone in performing such operations. Judges in every country are
more and more aware of belonging to a developing global community. The emergence
of such a community of courts may achieve a number of goals in this respect: a crossFertilization of legal cultures in general, but also solutions to some specific legal
problems related to transnational disputes in particular.93
It is worth giving some examples of inconsistencies of civil law systems that can be
eliminated by applying the fair trial guarantee.
a) Lis Alibi Pendens
The first example is related to the lie alibi pendens exception. Most civil law and
common law countries admit such a defence based on pendency before a foreign
court,94 at least when there is significant likelihood that the future foreign judgment will
be recognized. This defence implements policies of judicial economy by avoiding parallel
proceedings. Nevertheless, the consequences of this exception are quite different for
civil law and for common law systems. Within many civil law countries, once an action
has become legally pending before a court, no other court may deal with the subject
matter of the pending action. The second seised court has to stay or to dismiss its
proceeding on the ground of Ifs alibi pendens. Under this rule courts are required to make
an inquiry conceived as largely "automatic". Courts are not allowed to evaluate elements
different From those listed by the relevant provisions: the subject matter, the parties and
the time of commencement of the proceedings at hand.95
93
A.-M. Slaughter, 2003, p. 219: 'The judges themselves are in many ways creating their own version
of such a system. a bottom-up version driven by their recognition of the plurality of national. regional.
and international legal systems and their own duties of fidelity to such systems. Even when they are
interacting with one another within the framework of 2 treaty or national statutes. their relations are
shaped by a deep respect. For each other's competences and the ultimate need, in a world of law, to rely
on reason rather than other force.”
94
There are a few countries where the problem of parallel proceedings is simply ignored, in particular
for countries not recognizing and enforcing foreign judgments. in the absence of a treaty.
95
An example of a rule adopting this approach is Art. 27 of the Council Regulation EC 44/2001 (former
Art. 21 of Brussels Convention): “Where proceedings involving the same cause of action and between
the same parties are brought in the courts of different Member States, any court other that the court first
seized shall of its own motion stay its proceedings until such time as the jurisdiction o the court first
seized is established. 2. Where the jurisdiction of the court first seized is established, any court other
than the court first seized shall decline jurisdiction in favor of that court".
In its decision on the case Gasser (Eq. 9 December 2003. C-116/02, Gasser) the European Court
of Justice stated that under this provision courts are required to make an inquiry conceived as largely
"automatic". In order to decide whether Logo on with its proceeding or to stay it, the court has to passes
the same cause of action, the same parties and which proceedings were first commenced. In Gasse the
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If the problem of lis alibi pendens and parallel proceedings is resolved on the basis
of the continental European priority rule, it may well happen that a court is seised first
by, e. g., instituting a proceedings for negative declaration (or relief), with a view to
prevent litigation before the second seised court. In such situations, to avoid abusive
litigation, the fair trial guarantee de lege data may allow the second seised court to retain
its jurisdictional powers and to go further with its proceedings, if it appears that the
dispute will not be fairly and effectively resolved by the first seised court.96
b) Forum Non Conveniens
The second example is related to the forum non conveniens doctrine. In cases
where it is absolutely inappropriate for the court vested with jurisdiction to handle
proceedings with foreign parties, e.g. because the court and the lawyer are completely
ignorant of the foreign language and reliable translators are not available, the fair trial
guarantee de lege lam may exceptionally allow the court to decline its jurisdiction,
applying the doctrine of forum non conueniens.97
dispute arose between an Austrian seller of children's clothes. Gasser, and an Italian buyer, Misat. The
contract between them contained an exclusive choice of court agreement in Favour of the Austrian
courts. However, Misat started proceedings first before an Italian court. That was a trick to take an
(abusive) advantage of the 'first seized" rule by instituting proceedings in a country (Italy). where
proceedings may take long time (Italian torpedo). Gasser brought proceedings in the Austrian courts
which were therefore second seized. The Austrian party argued that as the Austrian courts had exclusive
jurisdiction under the agreements those courts should proceed and heat the case even though the Ital ian
proceeding had been commenced earlier. The ECJ decided that the priority rule set out in Arr. 2 niche
Brussels Convention had to prevail over the exclusive choice of court agreement. Therefore the second
seized court has to stay its proceedings. while the court first seized determines whether it has jurisdiction.
In a following case, 27 April 2014, C-159102, Turner. the ECJ decided that it would be inconsistence
with the Brussels Convention, if the courts of a Member State could grant anti-suit injunctions to restrain
a party from pursuing proceedings in another EU Member State. With the decision. 10 February 2009,
C-185/07, West Tankers Inc., the ECJ rendered it impossible to grant anti-suit injunction against the
breach of an Arbitration agreement.
With regard to matters of parental responsibility, the priority rule, as stated in Art. 19 (2). Reg.
EU No. 2201/2003, has been mitigated in a particular case: S. 9 November 2010, C-296110. Purrucke
C-1311. The rule reads as follows: where, notwithstanding efforts made by the court second seised to
obtain information by enquiry of the parry claiming lis pendens, the court first seised and the central
authority, the court second seised lacks any evidence which enables it to determine the cause of action
proceedings brought before another court and which serves, in particular, to demonstrate the jurisdiction
of that court in accordance with Regulation No. 2201/2003, and where, because of specific
circumstances, the interest of the child requires the handing down of a judgment which may be
recognized in Member States other than that of the court second seised, it is the duty of that court,
after the expiry of a reasonable period in which answers to the enquiries made are awaited, to
proceed with consideration of the action brought before it. The duration of that reasonable period
must take into account the best interests of the child in the specific circumstances of the proceedings
concerned.
96
Ali/Unidroit Principles of Transnational Civil Procedure. 2.6.
97
R. Starner, 2011. p. 258. A good example is the decision of the Oberlandesgerichr Stuttgart, affirmed
by the Bundesgerichrsbof 2 July 1991, in BGHZ, 115, 90. The application of the forum non conveniens
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I do believe that the forum non conveniens doctrine should (exceptionally) be
applied both to prevent abuse of process, and to keep transnational disputes out of
absolutely inappropriate forums. The solution I have just suggested should be
implemented by suspending the forum proceedings in deference to another court. The
existence of a (more) convenient forum is a necessary condition. In this way the risk
of a denial of justice can be avoided.98
In conclusion, the aim here is not to implement the forum non conveniens doctrine
in continental European law systems. Courts vested with jurisdiction should not have
the discretion to decline it simply on the grounds that another forum is more
appropriate to resolve that transnational dispute.99 The aim is rather to avoid an abuse
of process, i.e. vexation and oppression of the defendant, and at the same time to prevent
entirely inappropriate courts from handling transnational disputes. 100
c) Reviewing Jurisdiction in the State of Recognition
In the light of the U.S. due process guarantee we can look at one of the most
critical aspects related to the recognition and enforcement of judgments under the
Brussels Convention and Regulation no 44/2001. Subject to few exceptions, the
jurisdiction of the court of the Member State of origin may not be reviewed by the
doctrine within the Brussels Convention was refused by EC), 1 March 2005, C-281/02, Owusu:
"Application of the Forum non conveniens doctrine, which allows the court seised a wide discretion as
regards the question whether a foreign court would be a more appropriate forum For the trial of an action,
is liable to undermine the predictability of the rules of jurisdiction laid down by the Brussels Convention,
in particular that of Article 2, and consequently to undermine the principle oflegal certainty, which is
the basis of the Convention" (n. 41).
98
Reg. EC No. 2201/2003, concerning jurisdiction and the recognition and enforcement of judgments in
matrimonial matters and the matters of parental responsibility goes one step further, namely towards the
"court better plated to hear the case" (Art. 15): "I. By way of exception, the courts of a Member State
having jurisdiction as to the substance of the matter may, if they consider that a court or another Member
State, with which the child has a particular connection, would be better placed to hear the case, or a
specific part thereof, and where this is in the best interests of the child: (a) stay the case or the part
thereof in question and invite the parties to introduce a request before the court of that other Member
State in accordance with paragraph 4: or (b) request a court of another Member State to assome
jurisdiction in accordance with paragraph 5.1".
99
See e.g. Code civile of Quebec. 3135 "Even though the Quebec authority has jurisdiction to hear a
dispute, it may exceptionally and on an application by a party, decline jurisdiction if it considers that
the authority of another country are in a better position to decide". On this point, see N. Crocker, 2011,
p. 197, n. 53.
100
See Ali/Unidroit Principles of Transnational Civil Procedure, n. 2.5: "Jurisdiction may be declined r
the proceeding suspended when the court is manifestly inappropriate relative to another more appre
priate court that could exercise jurisdiction".
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court seised with the enforcement request in other Member States. The public policy
defence may not be applied to the rules related to jurisdiction.101
An example of such a situation is the Krombach case.102 In this case, a civil action
for damages was brought during a criminal process and the French court had assumed
jurisdiction on the basis of the French nationality of the victim. This is a jurisdiction
based on similar grounds to that under Art. 14 of the French Civil Code, which is
considerec as exorbitant by the system established by the Brussels Convention.103 The
Bundesgerichtshof referred to the Court of Justice for a preliminary ruling. The ECJ
found that the public policy clause applies only in exceptional cases and confirmed
that, in the system of the Brussels Convention, the court of the State in which
recognition and enforcement is sought cannot control the compliance with the rules
on jurisdiction by the courts of the State of origin. So the court of the State in which
enforcement is sought cannot take into account, in relation to a defendant domiciled
in its territory, the mere fact that the court of the state of origin had based its
jurisdiction on the nationality of the victim of a crime.
The contrast between the United States system and the system of the Brussels Convention is striking. Since Pennoyer v. Neff onwards, the US notion of due process has
been applied in interstate (and international) disputes as a limit to the exercise of a
court's jurisdiction against the non-resident defendant. It is undisputed that respect For
this limit can also be ensured by the courts of the State where the execution of the
101
See Art. 28.111. Brussels Cony.. as well as Art. 35, III Reg. CE No. 44/2001. See Art. 24 Reg. CE Ni
2201/2003 as well. As Jenard put it in his report on the 1968 Brussels Convention to justify this
provision: "the very strict rules of jurisdiction laid down in Title Il and the safeguards granted in Article
20 to defendants who do not enter an appearance, make it possible to dispense with any review, but the
court in which recognition or enforcement is sought, of the jurisdiction of the court in which the original
judgment was given".
102
ECJ. 28 March 2000. C-7198. Krombach c. Bamberski.
103
In his opinion. delivered on 23 September 1999, Advocate General Saggio held that: "in the present
case the French criminal court derived its jurisdiction to hear the claim for damages from its jurisdiction
with regard to the criminal proceedings. Therefore it correctly applied Article 5. point 4, of the
Convention (Art. 5, point 4 reads as follows: "(a person domiciled in a Contracting State may, in another
Contracting State, be sued) as regards a civil claim for damages or restitution which is based on act
giving rise to criminal proceedings. in the court seised of those proceedings, to the extent that tf court
has jurisdiction under its own law to entertain civil proceedings]. Consequently, apart from the foregoing
discussion of whether the German court may consider that there is a conflict with its public policy. the
French court did not contravene the provisions of the Convention concerning jurisdiction in this respect
either". This argument has not been taken up by the ECJ.
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judgment is sought.104 In the system of the Brussels Convention and Regulation, the
court that ought to execute the decision cannot examine the jurisdiction of the court
of the state of origin, not even when the latter is based on a norm that provides for an
exorbitant jurisdiction in light of Art. 3 (2) Brussels Convention and Regulation.
The US solution is in line with the constitutional guarantee of fair trial, while
the solution envisaged by the Brussels Convention and EC Regulation is not.
The European solution is an example of the disproportionate influence of public
policy considerations (in this case: the smooth functioning of the internal market) with
regard to the balance between the plaintiff's and the defendant's interests. In other
words, if the fairness of the exercise of jurisdiction over a non-resident defendant is
an element of fair trial, the respect for this fairness, as is envisaged by the Convention
and the EC Regulation no. 44/2001 norms on jurisdiction, should also be reviewed in
the State where the recognition and enforcement is sought, through the public policy
defence.105 It is true that the public policy exception is an "emergency brake" to be
activated only in exceptional cases, but these cases cannot be restricted so as to
prejudice the guarantee of a fair trial.106 National courts should be encouraged to take
the opportunity to put a preliminary question before the EC], under Art. 267, TFEU,
on the validity of Art. 28, III, Convention (Art. 35, III, EC Regulation no 44/2001)
vis-a-vis Art. 47 of the Charter of Fundamental Rights of the European Union.
IL Specific Aspects
This final part of the report briefly sketches some specific aspects of the fair
trial guarantee in transnational disputes.
1. Principle of Equality: General Remarks
One of the elements of the Fair trial guarantee with regard to the regulation of
transnational litigation which deserves attention is the principle of equality and its
implications. Issues of fair trial in transnational litigation arise frequently due to the
104
Cfr. Somportcx Ltd. v. Philadephia Chewing Guns Corporation, 453 F.2d 435 (3rd Cir. 1971); A. F.
Lowenfeld. 2006, p. 552.
105
See ECHR, 29 April 2008. no 1864/04. Mc Donald c. Francis: "h Cour considere quo l'article G
implique un controle des regles do competence en vigucur dans les Esau contracrants aux fins de
s'assurer quo cellcs-ci ne portent pas atreinte a un droit protege par is Convention". See A. Nuyts, 2005,
p. 185: "there seems to be no good reason why the rules of jurisdiction of the Brussels
Convention/Regulation should be immunized from scrutiny as to their compatibility with the fair trial
doctrine of article 6 ECHR".
106
See A. Nuvts, 2005. Es. 197.
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material inequality between the party that acts in a foreign environment and the party
acting in its own habitual environment. Peter Schlosser states this in a rather emphatic
way: “foreign language to be used in court (including the particularly irritating judicial
vocabulary) foreign rules of procedure, very often also foreign law with respect to the
substance or the matter, the necessity of having counsel both at home and abroad, the
concern that judges abroad may be biased in favour of their compatriot, particularly
if the latter in posing as the victim of his opponent's fraudulent conduct, and
uncertainty regarding the financial expenditures of the proceedings”.107' We can agree
with these observations. Material inequality between the parties in transnational
litigation is usually greater than in domestic disputes. Such an inequality is likely to
affect the substance of justice in the resolution of the dispute.
However, material inequality between the parties is one of the "eternal" problems
on civil procedure. This is not a feature that is peculiar to transnational disputes. It
is now an aspect calling for a radically different approach from the one provided for
domestic disputes.108 If the focus is on those disputes with the greatest economic
value, that is, on the business litigation of multinational companies, and we neglect
small claims, it is easy to see that these problems are principally addressed through
international networks on law firms. This is likely to reflect the national diversity of
the multinational company activities. The multinational approaches a law firm in its
home country and it is the assisted, in the Forum State, by another law firm, which is
part of the same international network of law firms. This increases the expense, e.g.,
due to the costs incurred to cover the translation of documents and records. But the
company solves the problem by allow caring more financial resources to the resolution
of transnational litigation, compared to those assigned to the resolution of domestic
disputes.
2. Principle of Equaliy: Specific Aspects
The equality of both parties in the process should however be examined
specifically with regard to transnational litigation. Equal treatment means the
107
108
P. Schlosser. 1991, p. 11.
See on this point, M. Kengyel. Hungary.
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prohibition of any type of unlawful discrimination against the parties, in particular on
the basis of nationality or residence. 109
In general international law, equality between citizens and foreigners in the
procedure is traditionally linked to equality between sovereign States, through the
principle of reciprocity. The application of this principle in relationships between
states promoting the equality of treatment between citizens and foreigners. However,
the principle of reciprocity has some apparent limitations: if a State is not willing to
recognize equal treatment of Foreigners before its own courts, this in turn affects the
ability ache citizens of this state to act as parries in proceedings abroad.
According to European law, Art. 18 of the Treaty on the Functioning of the
European Union prohibits any discrimination on grounds of nationality. Since this
prohibition operates within the scope of the European Union law, a person can enjoy the
protection offered by the prohibition of discrimination if he or she enjoys any of the
fundamental freedoms recognized by the EU law. A party to the proceedings can benefit
from this protection if the procedural regulation is for the implementation of these
freedoms. Some discriminatory procedural norms have been considered as obstacles
to fundamental freedoms, primarily through landmark decisions of the Court of
Justice.110 These decisions have paved the way towards the objective of maintaining
and developing the Union as an "area of freedom, security and justice, in which the free
movement of persons is assured". This objective was introduced by the Treaty of
Amsterdam and is now contained in Art. 3 (2) TEU.
The Ali/Unidroit Principles of Transnational Civil Procedure provide that the
"court should ensure equal treatment and reasonable opportunity for litigants to assert
or defend their rights" (3.1) and that "[title right to equal treatment includes avoidance
of any kind of illegitimate discrimination, particularly on the basis of nationality or
residence" (3.2). It is worth mentioning some key aspects, which are subject to this
prohibition. First and foremost, the State should guarantee access to its courts to
Foreigners on an equal footing with nationals. 111 The guarantee of equal access
109
On this topic. sec N. Klamaris, Greece.
Leading case: Eq. C-20192, Hubbard. 1993.
111
P. Gottwald. 1991. p. 7:T. Pfeiffer. 1995, p. 21.
110
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protects the foreigner, both as a plaintiff,112 and as a defendant. Foreign nationality or
residence abroad cannot justify unequal treatment compared to that offered to nationals
or residents in the Forum Stare: (I) in order to exclude access to legal aid;113 (2) in
order to impose a security for costs, Or a security for liability for pursuing provisional
measures;114 (3) in order to use fictitious means of service of process, like the remise au
parquet.
If the foreign plaintiff is resident in the state, his or her access to the courts
traditionally derives from a principle of customary international law concerning
treatment of Foreigners, i.e. the duty to protect, the breach of which gives rise to the
denial of justice. IF the foreigner is the defendant, the balance between the reasonable
opportunity for the plaintiff to assert his or her rights before a court and the reasonable
opportunity for the defendant to defend himself or herself is more difficult to achieve.
It depends on balanced and proportionate legislative provisions on the international
jurisdiction to adjudicate. As has already been mentioned, this balancing must leave
space for a "judicial correction" based on fairness and reasonableness derived from the
guarantee of fair trial — of unfair results that can be determined in the particular case
by the application of general rules on jurisdiction to adjudicate.
3. Jurisdiction
The determination of the judicial jurisdiction of courts is the "cornerstone" of
any international litigation. It represents a central aspect of the guarantee of fair trial in
transnational litigation. As has already been mentioned, the exercise of judicial
jurisdiction is traditionally considered to be an aspect of sovereignty. Within its own
sphere of sovereignty, the stare would be free to determine the conditions and
limitations of the adjudicatory authority of its courts, with the exception of obligations
created through international treaties. This freedom would not be limited by rules of
general international law or by Art. 6 ECHR for the Contracting States.115
However, I think that this argument can be overcome by the progressive erosion
of the reserved domain (domestic jurisdiction), as has already occurred in relation to the
112
The action the plaintiff has brought before the court should have a "substantial connection" with the State.
See Ali/Unidroit Principles, 2.1.2.
113
See, example, the Hague Convention of 25 October 1980 on International Access to Justice.
114
Ali/Unidroit. Principles, 3.3.
115
H. Schack. 2010, p. 80.
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protection of human rights. Fair trial is a guarantee that tends to be implemented
universally: not only in domestic disputes, but also in transnational litigation; not only
in asserting the right of parties to be heard, but also in determining the jurisdiction c the
courts.
Let me provide an example. In my opinion, the "right not to be sued abroad" arise
from the fair trial guarantee, at least if the foreign state cannot rely on any link
supporting the exercise of its adjudicatory authority. This matter has some practical
relevance. Once the existence of the right not to be sued abroad is recognized, it may
open the way to the next step, that is the limitation of the rules of exorbitant jurisdiction.
This is however, subject to some exceptions. I refer to cases where this limitation
effectively prevents the plaintiff from asserting his right before a court or makes it
extremely difficult.
Despite the differences between legal systems, there are some elements that are
widely accepted at a global level that reflect a common core of the fair trial guarantee.
The first one is the parties' power to establish the international jurisdiction of a court b
agreement. Furthermore, there are a number of grounds for jurisdiction that are base on
a substantial connection of the parties or of the object of the dispute with the Forum
State.116 A substantial connection exists when a significant part of the transaction or
event has taken place in the Forum Stare, for instance when an individual defendant a
habitual resident of the Forum State or a legal entity has received its charter of
organization or has its principal place of business therein, or when the property to which
the dispute relates is located in the Forum State (forum rei sitae).117
4. Interim Protection of Rights
The interim protection of rights is an indispensable tool for ensuring the
effectiveness of judicial remedies and is therefore one of the fundamental Features of
a fair trial. 118 The structure of the proceedings, the types of provisional remedies and
their executions vary among different legal orders. With regard to the type of measures,
the provision of Art. 8.1 Ali/Unidroit Principles is very broad: "The court may grant
provisional relief when necessary to preserve the ability to grant effective relief by
116
However, this ground of jurisdiction is likely to produce exorbitant results in particular situations, a,
P. Schlosser. 1991. p. 6, on Worldwide Volkswagen v. Woodson, 444 U.S. 286 (1980).
117
See Ali/Unidroic Principles. 2.1.2. R. Stümer. 2005. p. 217.
118
See N. Tracker, 2009, p. 48.
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final judgment or to maintain or otherwise regulate the status quo". In this provision,
three Fundamental types of measures can be envisaged, which are well known in the
European experience. These are conservative, regulatory and anticipatory measures.119
It is widely recognized that courts may grant interim relief with regard either to
a person or to a good which is in the Forum State, even if they do not have jurisdiction
over the merits.120 In civil law systems, this solution is seen as supporting the parties
in the dispute, and not just to support the court which has jurisdiction over the merits.121
In this regard, both Art. 24 Brussels Conv. and now Art. 31 EC Regulation no 44/2001
are good examples: "Application may be made to the courts of a Member Stare for such
provisional, including protective, measures as may be available under the law of that
State, even if, under this Regulation, the courts of another Member State have
jurisdiction as to the substance of the matter". The conditions, the proceedings and the
types of interim measures are determined by the lex fori. But the case law of the Court
of Justice has indicated some limits to the provisional measures that fall within the
scope of Art. 31 Reg. EC No. 44/2001.122
5. Right to Engage a Lawyer
The right to engage a lawyer should include both representation by a lawyer
admitted to practice in the Forum and active assistance before the court of a lawyer
admitted to practice elsewhere, e.g. in the party's home country.123 In the United States
it is worth mentioning the Pro Hac Vice Admission.124 In the European Union it is
worth mentioning both the Directive to facilitate the effective exercise by lawyers of
119
See M. Storme (ed.), 1994, p. 106; R. Starner, 2003, p. 143-186; C,. Tarzia, 1985.
See Ali/Unidroit Principles, art. 2.3.: "A court may grant provisional measures with respect to a person
or to property in the territory of the forum State, even if the court does not have jurisdiction over the
controversy".
121
Sec N. Tracker. 2011, p. 49.
122
See, among the others, ECJ. 17 November 1998. C-391/95, Van Uden: "the granting of provisional or
protective measures on the basis of Article 24 of the Convention of 27 September 1968 is conditional on,
inter alia, the existence of a real connecting link between the subject-matter of the measures sought and
the territorial jurisdiction of the Contracting State of the court before which those measures are sought.
Interim payment of a contractual consideration does not constitute a provisional measure within the
meaning of Article 24 of the Convention of 27 September 1968 unless, first, repayment to the defendant
of the sum awarded is guaranteed if the plaintiff is unsuccessful as regards the substance of his claim and,
second, the measure sought relates only to specific assets of the defendant located or to be located within
the confines of the territorial jurisdiction of the court to which application is made".
123
See Ali/Unidroit Principles, 4.1. R. Stürner. 2005, p. 253; Id., 2011, p. 253. p. 256.
124
See The Model Rule on Pro Hac Vice Admission ache ABA, Report of the Commission on
Multijurisdictional Practice (2002). Recommendation 6.
120
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freedom to provide services,125 and the Directive to facilitate practice of the profession
of lawyer on a permanent basis in a Member State other than that in which the
qualification was obtained.126
6. Language
A common difficulty faced by the Foreign party participating in the
proceedings is the need to act and defend himself or herself before a court in a
language other than his or her mother-tongue. This problem should be neither
underestimated, nor can it be considered as being resolved merely by guaranteeing
representation by a lawyer from the Forum State.
If the Foreign party is sued, the service of process deserves a special treatment.
Therefore the provision of the Ali/Unidroit Principles, relating to this issue, is welcome.
According to this norm, the document instituting the proceedings has to be translated
into the language of the habitual residence of the defendant, of the principal place of
business of the latter, or of the principal documents in the transaction.127 Within the
European Union, Art. 8 of EC Regulation no. 1393 (2007) on the service in the Member
States of judicial and extrajudicial documents in civil or commercial matters requires
the translation of the documents to be served into the language of the place where the
service is to be effected or into a language that can be understood by the addressee.128
The language problem cannot be resolved by the appointment of a lawyer from
the Forum State. This problem is rather displaced towards the relationship between the
lawyer from the country of the party and the lawyer from the Forum State. This
problem is clearly related to the problems arising from the legal translation, which are
not only related to costs. Rather, it is also about the risks of misunderstanding, which
are always present, but are exacerbated when the language of the lex caustica is
different from the language of the lex fori.
125
See the Council Directive 77/249/EEC (1977). Art. 4: "Activities relating to the re-presentation of a
client in legal proceedings or before public authorities shall be pursued in each host Member State under
the conditions laid down for lawyers established in that State, with the exception of any conditions,
requiring residence or registration with a professional organization in that State".
126
See the Directive 9815/EC of the European Parliament and of the Council of 16 February 1998 to
facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in
which the qualification was obtained. Art. 5(3). Moreover, see the Council Directive 89/48/EEC (1988)
on a general system for the recognition of higher-education diplomas awarded on completion of
professional education and training of at least three years.
127
Ali/Unidroit, Principles, 5.2.
128
See EQ. 8 May 2008, C-14107, Weiss c Partner: ECJ, 8 November 2005, C-443103. Leffler.
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The close relationship between law and language calls for special care in the work
of translation and interpretation of legal texts especially when they serve a judicial
function. Problems can be solved only if the link between the lex fori and the
language of the Forum is made more flexible, as happens in the practice of international
arbitration. International arbitration allows for the use of multiple languages during
the process, if it does not affect the parties or third parties, and other experimental
solutions that have already been adopted before national courts.
Strict rules on the use of the language of the forum are very often exploited,
requiring the translation of documents and interpreters for witnesses even in cases
where the parties and their advocates can understand the language of the documents
and of the witness statements. Faced with such an abuse of process and while waiting
for the legislation to be made more flexible, a provisional solution may be to refuse to
declare null and void an act written in a foreign language in the case where it has served
its purpose,129 and has been understood by the parties concerned.
The solution of the Ali/Unidroit Principles is very balanced. It reaffirms the
general rule according to which the process should be conducted in the language of
the court, but the court may permit the use of other languages if this does not prejudice
the position of the parties. It also provides for the use of interpreters when the parry or
the witness has not mastered the language in which the proceedings take place. The
translation of-voluminous documents may be limited to relevant pieces by agreement
of the parties or by order of the court.130
It cannot be denied that in some cases when translations are bad, they are "a
cure worse than the disease". If it is a translation of a legal text the clash between
different cultures (always present in translation work) is manifested as a clash
between the two legal systems that constitute the start and end points of the translation
work (if the language of the lex causae is different from the language of the lex fori).
Hence it is about firstly grasping the meaning of the terms, not only by reference to
the legal nature of the language but also in the specific context of the legal order of
origin and secondly identifying the terms that express the equivalent meaning in the
terminology and the legal order of arrival. One faces the double and parallel work of
129
130
See Art. 156 (3) IT c.p.c.: "the nullity shall not be declared if the act served its purpose”.
Ali/Unidroit Principles. 6.
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interpretation. Since no two legal systems are identical, the search for the legally
equivalent meaning is always doomed to achieve only a rough result and sometimes it
is doomed to failure.131
7. Extension of Time Limits
Foreign parties need more time than domestic parties to collect the necessary materials,
to understand the judicial proceedings and to respond. Therefore, ad hoc extensions of
time limits should be provided for Foreign parties by law or, where possible, by courts.132
The judge must fix the timetable of the proceedings, taking into account the needs of
the foreign party in particular.133
8. Prohibition of Abuse of Process
The question of the abuse of process and its prohibition plays an important role
in transnational litigation as an element of the fair trial guarantee. Beyond specific
provisions the prohibition of abuse of process also acts as a general principle to
prohibit conducts that is motivated solely by a desire to cause harm to others, despite
the fact that such conduct is formally carried out in a legally correct manner. In the
field of transnational litigation the problem of the abuse of process arises in several
situations, and it is usually) dealt with on a case-by-case basis taking into account the
individual circumstances of the proceedings in question. One could pose the question
of the legal basis of such a prohibition on the abuse of process. Generally, the prohibition
of abuse of process in transnational litigation can be considered as an aspect of the
prohibition of abuse of right: as a general principle stemming from international
customary law, 134 or, in Europe, as a general principle of European Union law.135
Otherwise, we have to rely on particular remedies under international conventions or
under the lex fori.
An analysis of the fair trial guarantee provides the opportunity to address the
prohibition of abuse of process in transnational litigation and to identify the need to
develop a specific normative framework for the regulation of this phenomenon. In
131
For more details, see R. Caponi. 2006.
Ali/Unidroit Principles. 3.2,7.2. 14.1; see R. Starner. 2011. p. 256.
133
See P. Sürtner, 2011, p. 356.
134
See Y. Shany, 2007, p. 292.
135
See Art. 54 Charter of Fundamental Rights of European Union.
132
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this context we shall identify only some elements of this proposal, with no claim of
comprehensiveness.
9. Abuse of Jurisdiction by the Plaintiff
I refer to the term "jurisdiction snatched by deception" when the plaintiff
intentionally causes the occurrence of the event on which jurisdiction can be grounded,
only to enjoy the benefits of either the procedural or substantive law offered by the
Forum State.136
A relevant case decided by the German Reichsgericht concerns a husband who,
after filling for divorce in vain several times before the German courts, moved to
Latvia and there submitted divorce papers. His wife, who was acting before the
German courts had demanded that her husband withdraw his application for divorce
abroad and compensate her for the legal expenses incurred. The Reichsgericht granted
the application or the basis of § 826 BGB, which establishes that those who
intentionally cause damage to others are obliged to compensate such damage.137 In
other words, instituting proceedings before a foreign court (although vested with
jurisdiction) in order to avoid the application of (German) substantive law was
qualified as an unlawful act.138
In particular, exorbitant for are those most likely to be used for this kind of
operations.
What remedies are available? A correct interpretation of the rules on
jurisdiction sometimes helps to solve the problem. So the plaintiff cannot claim the
jurisdiction of the German courts on the basis of the defendant's (personal) property
that the plaintiff had brought to Germany against the will of the latter.139 In other cases,
specific rules are needed. For example, under the Reg. EC No. 44/2001 a person
domiciled in a Member State may not be sued, as a third party in an action on a
warranty or guarantee (or in any other third party proceedings), before the court seised
of the original proceedings, if these were instituted solely with the object of removing
him from the jurisdiction of the court which would be competent in his case. 140
136
See H. Schack. 2011. p. 192.
See RGZ 157, 136, which refers also to § 249 I BGB.
138
See H. Schack, 2011. p. 193.
139
See § 23 ZPO. See H. Schack, 2011, p. 193
140
See Art. 6(2) Reg. EC No. 44/2001.
137
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Otherwise, there is a remedy in civil law systems that provides for a modern
version of the exceptio doli generalis (such as under German law, the § 826 BGB), or in
common law systems which provide for antisuit injunctions.
10. Public Policy Exception
At this point it is appropriate to consider the public policy defence as an
impediment to the recognition and enforcement of foreign judgments.
The starting point is chat judicial decisions are acts of state authority and
produce effects only within the territorial boundaries of the state. Stare sovereignty still
plays a central role. Jurisdiction is an aspect of state sovereignty.141 Since sovereignty is
exercised over a particular territory, the effects of judicial decisions are limited to the
boundaries of the state.142 They produce effects in the legal system of another state with
the consent of the latter, i.e. recognition.143 Presuppositions and conditions for
recognition are the result of approval by the receiving state which, in principle, does
not face any limits in general international law.
However, there are many international — bilateral and multilateral — treaties
which provide for the mutual recognition of judicial decisions between contracting
states. In this respect, the experience of the European Union is very advanced. It involves
the development of a new concept of sovereignty which entails the inclusion of the state
within the larger international and supranational communities. Elsewhere, there is still a
great emphasis on the notion of sovereignty conceived in traditional terms. There is a lack
of confidence in the courts of other states, especially in the case where the prevailing
party is a citizen of the stare where the decision has been taken, and the losing party is
a citizen of the state where such decision is supposed to be recognized and enforced.144
The considerable variation between procedural systems of different countries,
within the western world, and the different values that emerge from the substantive
law at the global level, have weighed in favour of the preservation of the public
defence (ordre public) in order to prevent the recognition and enforcement of judgments.
141
F. Mann, 1964.
"No legal judgment has any effect, of its own Force, beyond the limits of the sovereignty from which
its authority is derived", so Yahoo! Inc. v. La Ligne Contre Le Racisme et l'Antisetnitisme, 169 F.
Stipp. 2d 1181, 1187 (N.D. Cal. 2001), quoted by N. Trocker. 2010. p. 26.
143
For a brief outline, see A. F. Lowenfeld, 2006, p. 471.
144
See N. Tracker, 2010. p. 26.
142
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This general clause has two components: a substantive and a procedural one. It
concerns the respect of fundamental substantive or procedural values. On leave aside
the substantive law aspect, the link between the public policy defence the fair trial
guarantee becomes apparent.145 If the proceedings in the Forum State sufficiently
respectful of the guarantees of fair trial, there is no scope for the application of the
public policy defence in its procedural aspect.
Alongside the substantive aspect of the public policy defence, its procedural de
should be maintained as a sort of "emergency brake"146 to be activated in except
circumstances. This restrictive interpretative approach is found, in particular, in the law
of the European Court of Justice. It is one of the expressions of solidarity bet the
interest of the European Union for the proper Functioning of the internal m and the
individual interest of the creditor. The leading case is Krombach.147
The solution is well balanced: the public policy provision is a clause set to
protect fundamental boundaries148 of the national identities of the Member States
inheriting their fundamental political and constitutional structures.149 It is therefore
advisable initially leave it to Member States to determine, in accordance with their
own national concepts, aspects of their public policy. 150 However, to fully entrust the
identification of the key elements of national identity of a "reserved domain" of
Member State petence would "plant the seed" of the dissolution of the European
Union. And it this does not happen: respect for the national identities of the Member
States is part of the competences of the European Union.151 The European Court of
145
The link is evident in the definition oldie reason for denial contained in § 328 (1). n. 4 of the German
Code of Civil Procedure (ZPO): "if the recognition would lead to a result that is obviously incompatible
with basic principles of German law, especially when it is inconsistent with basic constitutional rights,
including the right to be heard in court. Art. 103 (1) Grundgesz.
146
See Ali/Unidroit Principles of Transnational Civil Procedure, 30: "A final judgment awarded in any
Forum in a proceeding substantially compatible with these Principles must be recognized and enforced
unless substantive public policy requires otherwise. A provisional remedy must be recognized in the
same terms".
147
Eq. 28 Mardi 2000, C-7/98, Krombach c. Bamberski
148
See Weiler. 1999. p. 102.
149
Art. 4 (2) TEU: "The Union shall respect the equality of Member States before the Treaties as their
national identities, inherent in their fundamental structures, political and constitutional.
150
EC.1. 28 March 2000. C-7/98, Krornbach c. Ramberski. para 22.
151
Art. 4, II TEU.
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Justice is them entrusted with the task of ensuring the respect for the law in the
interpretation an application of the treaties.152
The determination of the content and limits of the concept of public policy is
placed in a framework of a process of mutual learning between the Court of Justice
and courts of the Member States. This is implemented through a dialogue seeking the
solution, tailored to the specific case at hand, and achieved through the preliminary
ruling system. 153
Respect for the essential content of the debtor's right of defence is at stake in this
judicial dialogue.154 Who has the final word on whether the decision violates a Fundamental principle of the Member State or not? Is it the national court that is called upon
to identify the content of the notion of public policy? Or is it the Court of Justice that
is called upon to identify the limits of the same notion? In a flexible manner and on a
case-by-case basis, the Court of Justice has been inclined to define the limits of the notion
of public policy itself or, after referring to "the general criteria with regard to which the
national court must carry out its assessment,155 to entrust the national courts with this task.
152
Art. 19 TEU.
E. 28 March 2000. C-7198, Krombach c. Bamberski, no. 23: "Consequently, while it is nor for the
Court to define the content of the public policy of a Contracting State, it is none the less required to
review the limits within which the courts of a Contracting State may have recourse to that concept for
the purpose of refusing recognition to a judgment emanating from a court in another Contracting State".
154
Eq. 28 March 2000. C-7198, Krombach c. Bamberski. no. 37: "Recourse to the public-policy clause
in Article 27, point 1, of the Convention can be envisaged only where recognition or enforcement of the
judgment delivered in another Contracting State would be at variance to an unacceptable degree with
the legal order of the State in which enforcement is sought inasmuch as it infringes a fundamental
principle. In order for the prohibition of any review of the foreign judgment as to its substance to be
observed, the infringement would have to constitute a manifest breach of a rule of law regarded as
essential in the legal order of the State in which enforcement is sought or of a right recognized as being
Fundamental within that legal order". See also Eq. 2 May 2006, C-341104, Eurofood.
155
Cosi, ECJ, 2 April 2009. C-394/07, Gambazzi, no. 39.
153
549
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