Documents
Resources
Learning Center
Upload
Plans & pricing Sign in
Sign Out

2011 Ravenna - session 2

VIEWS: 0 PAGES: 45

									                 Ronald A. Brand
    Chancellor Mark A. Nordenberg Professor
Director, Center for International Legal Education
      University of Pittsburgh School of Law
                 rbrand@pitt.edu

           Ravenna, Italy - June 2011
                  Session 2
Basic Themes:
 -the role of the transactions lawyer: practicing
 pre-emptive law/planning for risk
 -understanding legal system differences (being
 juridically multi-lingual)
 -the private party side of private international law
 -the public side of private international law
 -drafting the choice of forum (and choice of law)
 clause
Sources of law:
 Europe: The Brussels I Regulation
 U.S.:    The UFMJRA
 Global: The New York Arbitration
          Convention
 Global: The 2005 Hague Convention on
           Choice of Court Agreements



                                        3
                  Article 33
1. A judgment given in a Member State shall
 be recognised in the other Member States
 without any special procedure being required.




                                                 4
                       Article 34
 Limits on recognition
1. “recognition is manifestly contrary to public
    policy in the Member State in which
    recognition is sought.”
2. Default judgment and “defendant was not
    served . . . in sufficient time . . . to enable
    him to arrange for his defense.”
3&4. irreconcilable judgments


                                                      5
SECTION 3.
(a) Except as otherwise provided in
  subsection (b), this [act] applies to a foreign
  country judgment to the extent that the
  foreign-country judgment
  (1) grants or denies recovery of a sum of
  money; and
  (2) under the law of the foreign country
  where rendered, is final, conclusive, and
  enforceable.

                                                    6
SECTION 4. STANDARDS FOR RECOGNITION OF FOREIGN-COUNTRY
  JUDGMENT.


(a) Except as otherwise provided in
    subsections (b) and (c), a court of this state
    shall recognize a foreign-country
    judgment to which this [act] applies.




                                                          7
SECTION 4. STANDARDS FOR RECOGNITION OF
  FOREIGN-COUNTRY JUDGMENT.
(b) A court of this state may not recognize a foreign-
  country judgment if:
  (1) the foreign-country judgment was rendered
  under a judicial system that does not provide
  impartial tribunals or procedures compatible with
  the requirements of due process of law;
  (2) the foreign court did not have personal
  jurisdiction over the defendant; or
  (3) the foreign court did not have jurisdiction over
  the subject matter.


                                                         8
SECTION 4. STANDARDS FOR RECOGNITION OF FOREIGN-
   COUNTRY JUDGMENT.
(c) A court of this state need not recognize a foreign-country
   judgment if:
   (1) the defendant in the proceeding in the foreign court did
   not receive notice of the proceeding in sufficient time to
   enable the defendant to defend;
   (2) the foreign-country judgment was obtained by fraud that
   deprived the losing party of an adequate opportunity to
   present its case;
   (3) the foreign-country judgment or the [cause of action]
   [claim for relief] on which the foreign-country judgment is
   based is repugnant to the public policy of this state or of the
   United States;



                                                                     9
SECTION 4. STANDARDS FOR RECOGNITION OF FOREIGN-
  COUNTRY JUDGMENT.
(c) A court of this state need not recognize a foreign-
  country judgment if:
  (4) the foreign-country judgment conflicts with another
  final and conclusive judgment;
  (5) the proceeding in the foreign court was contrary to
  an agreement between the parties under which the
  dispute in question was to be determined otherwise
  than by proceedings in that foreign court;
  6) in the case of jurisdiction based only on personal
  service, the foreign court was a seriously inconvenient
  forum for the trial of the action;



                                                            10
SECTION 4. STANDARDS FOR RECOGNITION OF
  FOREIGN-COUNTRY JUDGMENT.
(c) A court of this state need not recognize a
  foreign-country judgment if:
  (7) the foreign-country judgment was rendered in
  circumstances that raise substantial doubt about
  the integrity of the rendering court with respect to
  the foreign-country judgment; or
  (8) the specific proceeding in the foreign court
  leading to the foreign country judgment was not
  compatible with the requirements of due process
  of law.


                                                         11
Arbitration or Litigation?




                             12
                           Article II
1. Each Contracting State shall recognize an
  agreement in writing under which the parties
  undertake to submit to arbitration all or any
  differences which have arisen or which may arise
  between them . . . .
3. The court of a Contracting State, when seized of an
  action in a matter in respect of which the parties have
  made an agreement within the meaning of this
  article, shall, at the request of one of the parties,
  refer the parties to arbitration, unless it finds that the
  said agreement is null and void, inoperative or
  incapable of being performed.


                                                               13
                     Article III
“Each Contracting State shall recognize arbitral
  awards as binding and enforce them in
  accordance with the rules of procedure of the
  territory where the award is relied upon,
  under the conditions laid down in the
  following articles.”




                                                   14
                          Article V
1. Recognition and enforcement of an award may be
    refused only if
   a) lack of capacity
   b) lack of proper notice
   c) outside the scope of the agreement to arbitrate
   d) arbitration procedure not in accordance with
       agreement
   e) award is not yet binding, or has been set aside
2. Recognition and enforcement . . may also be refused
    if
   a) subject matter . . . not capable of settlement by
       arbitration
   b) recognition would be “contrary to public policy”


                                                          15
Rule Number One:

Article 5 Jurisdiction of the chosen court
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.




                                                 16
Rule Number Two:

Article 6 Obligations of a court not chosen
 A court in a Contracting State other than that
 of the chosen court shall suspend or dismiss
 the proceedings unless –




                                                  17
Rule Number Three:

Article 8 Recognition and enforcement
1. 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.




                                                18
Article 22 Reciprocal declarations on non-
 exclusive choice of court agreements
1. A Contracting State may declare that its
 courts will recognise and enforce judgments
 given by courts of other Contracting States
 designated in . . . (a non-exclusive choice of
 court agreement).




                                                  19
General Limitations of Scope:

Article 1(1) Scope
1. This Convention shall apply in
 international cases to exclusive choice of
 court agreements concluded in civil or
 commercial matters.




                                              20
Art. 1(2):
   For the purposes of Chapter II, a case is
   international unless the parties are resident
   in the same Contracting State and the
   relationship of the parties and all other
   elements relevant to the dispute, regardless
   of the location of the chosen court, are
   connected only with that State.




                                                   21
Article 1(3):
 For the purposes of Chapter III, a case is
 international where recognition or
 enforcement of a foreign judgment is sought.




                                                22
Article 19 Declarations limiting jurisdiction
 A State may declare that its courts may refuse
 to determine disputes to which an exclusive
 choice of court agreement applies if, except
 for the location of the chosen court, there is
 no connection between that State and the
 parties or the dispute.




                                                  23
Article 20 Declarations limiting recognition
 and enforcement
 A State may declare that its courts may
 refuse to recognise or enforce a judgment
 given by a court in another Contracting
 State if the parties were resident in the
 requested State, and the relationship of the
 parties and all other elements relevant to
 the dispute, other than the location of the
 chosen court, were connected only with the
 requested State.

                                                24
Article 3

 a) the substantive requirement:

 - “designates . . . the courts of one
 Contracting State or one or more specific
 courts in one Contracting State to the
 exclusion of the jurisdiction of any other
 courts”




                                              25
Article 3

 b) “deemed” exclusivity:

 “a choice of court agreement which
 designates the courts of one Contracting
 State or one or more specific courts in one
 Contracting State shall be deemed to be
 exclusive unless the parties have expressly
 provided otherwise”


                                               26
Article 3

 c-d) the form requirements:

 - in writing; or “accessible so as to be usable
 for subsequent reference”
 - separate agreement rule




                                                   27
Article 2(1) – exclusion of types of agreements

 - consumer contracts (a B2B convention)
 - employment agreements




                                                  28
Article 2(2) – subject matter exclusion
  (a)-(d) family law; wills and succession
  (e) insolvency
  (f) carriage of passengers and goods
  (g) marine pollution; limitation of maritime liability; general
  average and emergency towage
  (h) antitrust
  (i) nuclear liability
  (j) personal injury of natural persons
  (k) non-contractual tort
  (l) rights in rem in immovable property
  (m) decisions regarding legal persons
  (n)-(o) special concerns of intellectual property rights
  (p) validity of entries in public registers



                                                                    29
Article 21 Declarations with respect to specific
    matters

   --exclusions from scope through
   declarations that are specific, clear, and
   precise
   --reciprocal effect




                                                   30
Article 2   Exclusions from scope

2. This Convention shall not apply to the
   following matters –
   n) validity of intellectual property rights
   other than copyright and related rights;




                                                 31
Article 2   Exclusions from scope

2. This Convention shall not apply to the
   following matters –
   o) infringement of intellectual property
   rights other than copyright and related
   rights, except where infringement
   proceedings are brought for breach of a
   contract between the parties relating to
   such rights . . . .

                                              32
Article 2   Exclusions from scope

3. Notwithstanding paragraph 2, proceedings
   are not excluded from . . . scope . . . where
   a matter excluded . . . arises merely as a
   preliminary question and not as an object of
   the proceedings.




                                                   33
Article 10 Preliminary questions

1. Where a matter excluded under Article 2,
 paragraph 2, or under Article 21, arose as a
 preliminary question, the ruling on that
 question shall not be recognised or enforced
 under this Convention.




                                                34
              Party autonomy

Courts will honor private party choice of the
      forum in which to settle disputes




                                                35
The validity issue

 - Article 5(1): “unless the agreement is null
 and void under the law of that State”
 - Article 6(a): “unless . . . the agreement is
 null and void under the law of the State of
 the chosen court”
 - Article 9(a): “if . . . the agreement was null
 and void under the law of the State of the
 chosen court . . .”


                                                    36
Article 23
1. If the parties have agreed that a court or the
 courts of a Member State are to have
 jurisdiction to settle any disputes which have
 arisen or which may arise in connection with a
 particular legal relationship, that court or those
 courts shall have jurisdiction, unless the
 agreement is null and void as to its substance
 under the law of that Member State. Such
 jurisdiction shall be exclusive unless the
 parties have agreed otherwise. . . . .

                                                      37
Exceptions for the derogated court:
   Article 6
   - lack of party capacity
   - “manifest injustice” or “manifestly
   contrary to the public policy of the State of
   the court seised”
   - “the agreement cannot reasonably be
   performed”
   - “the chosen court has decided not to
   hear the case”


                                                   38
Recognition and enforcement exceptions

 Article 9
 - lack of party capacity
 - improper notice
 - “fraud in connection with a matter of
 procedure”
 - “manifestly incompatible with the public
 policy of the requested State”
 - inconsistent with other judgments entitled
 to recognition and enforcement


                                                39
Article 11 Damages

1. Recognition or enforcement of a judgment
 may be refused if, and to the extent that, the
 judgment awards damages, including
 exemplary or punitive damages, that do not
 compensate a party for actual loss or harm
 suffered.



                                                  40
New York Convention               Hague Convention
Rule:                             Rule:
Agreements to arbitrate will be   Choice of court agreements will
  honored                           be honored

Exceptions (Article II(3)):       Exceptions (Article 6):
 agreement was “null and void”    agreement was “null and void”
 agreement is “incapable of       “a party lacked the capacity”
  being performed”                 “manifest injustice” or
                                    “manifestly contrary to public
                                    policy”
                                   “cannot reasonably be
                                    performed”
                                   chosen court has declined




                                                                     41
New York Convention                   Hague Convention

Rule (Article III):                   Rule (Article 8):
Arbitral awards will be recognized    Judgments will be recognized and
  and enforced                           enforced

Exceptions (Article V):               Exceptions (Article 9):
 lack of party capacity               agreement was “null and void”
 lack of proper notice                lack of party capacity
 outside the scope of the             lack of proper notice
  agreement to arbitrate               judgment “obtained by fraud”
 improper arbitration procedure       manifestly incompatible with
 award is not yet binding, or has      public policy
  been set aside                       inconsistent with local judgment
 subject matter “is not capable of    inconsistent with earlier judgment
  settlement by arbitration”
 “contrary to . . . public policy”




                                                                             42
New York Convention         Hague Convention
 Declarations:               Declarations:

Article I(3): “any State    Article 19: refusal to
 may on the basis of         determine disputes
 reciprocity declare that    unrelated to the forum
 it will apply the          Article 20: refusal to
 Convention to the           recognize or enforce
 recognition and             judgments on
 enforcement of awards       domestic matters
 made only in the           Article 21: declaration of
 territory of another        reciprocal exclusion
 Contracting State”          from scope



                                                         43
The private party test:
    -arbitration versus litigation

The Contracting State test:
    -national authority (sovereignty?) versus
 party autonomy
    -what is the appropriate balance?

Which test matters most?



                                                44
                 Ronald A. Brand
    Chancellor Mark A. Nordenberg Professor
Director, Center for International Legal Education
      University of Pittsburgh School of Law
                 rbrand@pitt.edu

           Ravenna, Italy - June 2011
                  Session 2

								
To top