EUROPEAN CIVIL PROCEDURE AND THE PRELIMINARY REFERENCE, Appunti di Diritto dell'Unione Europea

Scarica EUROPEAN CIVIL PROCEDURE AND THE PRELIMINARY REFERENCE e più Appunti in PDF di Diritto dell'Unione Europea solo su Docsity! WEEK 4 EUROPEAN CIVIL PROCEDURE The choice of court agreement in cross border disputes (predictability and certainty) When signing a choice of court agreement, the parties choose which court of which member state will have jurisdiction. The designated court has the obligation to hear the case and is exclusive, which means that no other court can hear the case (simple court agreement). Pros: empower court and judges of the designated court. Cons: deprive other courts and judges. Article 25 – Brussel’s I recast regulation Choice of court agreements are binding if they fulfil the following requirements: 1- The court selected is located in a member state 2- The consent of the parties must be clear 3- The consent of the parties must be in writing Complex choice of court agreements: -non-exclusive choice of court agreements – power of jurisdiction conferred to one state without prejudice to other courts. Positive effect - multiple exclusive choice of court agreements – parties can choose more than 1 court -Asymmetric choice of court agreements Asymmetric choice of court agreements (one-way agreements, the parties are not on the same level) – “complex choice of court agreement” The parties agree to confer jurisdiction to a certain court of a certain member state; however only one party is actually bound by the one way choice of court agreement. The other party is free to pursue proceeding in any other court. Are asymmetric choice of courts agreements cover by the Brussel’s I recast regulation? regulation is silent on the topic If the parties agree on a court that is located outside of the Eu, the Brussel’s I recast regulation does not apply. The 2005 Hague convention on the choice of court agreement = Ensure effectiveness of exclusive choice of court agreements in international cases The convention came into force 10 years later, in 2015, ratified by: - Denmark - Mexico - Eu - Singapore - Montenegro - Uk (Only signed by: China, US, Ukraine) The scope of the convention is listed in its article 1: 1. International cases – parties are not from the same state 2. Executive choice of court agreements - 3. Civil and commercial matters 3 basic rules that put choice of court clauses into effect (asymmetric agreements are not considered by the convention): Rule 1: the court of a contracting state that is designated to hear the dispute pursuant to an exclusive choice of court clause, has jurisdiction and must hear a case put before it. Art. 5 of the convention: (1) The court or courts of a Contracting State designated in an exclusive choice of court agreement shall have jurisdiction to decide a dispute to which the agreement applies, unless the agreement is null and void under the law of that State. (2)  A court that has jurisdiction under paragraph 1 shall not decline to exercise jurisdiction on the ground that the dispute should be decided in a court of another State Rule 2: The court of a contracting state other than the designated one must decline to hear a case put before it. Art. 6 of the convention A court of a Contracting State other than that of the chosen court shall suspend or dismiss proceedings to which an exclusive choice of court agreement applies unless – a) the agreement is null and void under the law of the State of the chosen court; a party lacked the capacity to conclude the agreement under the law of the State of the court seised; b) giving effect to the agreement would lead to a manifest injustice or would be manifestly contrary to the public policy of the State of the court seised; c)  for exceptional reasons beyond the control of the parties, the agreement cannot reasonably be performed; or the chosen court has decided not to hear the case. Rule 3: A judgement issued by a designated court of a contracting state is enforceable in the court of another contracting state. (uniformity) Art. 8 of the convention A judgment given by a court of a Contracting State designated in an exclusive choice of court agreement shall be recognised and enforced in other Contracting States in accordance with this Chapter. Recognition or enforcement may be refused only on the grounds specified in this Convention.