Judicial Cooperation in Civil and Commercial Matters

Size: px

Start display at page:

Download "Judicial Cooperation in Civil and Commercial Matters"

Grace Price
5 years ago
Views:

1 Judicial Cooperation in Civil and Commercial Matters Ministry of Justice and Public Administration Department for International Legal Assistance in Civil Matters

2 Regulation (EC) No 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 and commercial matters

3 Regulation (EC) No 1393/2007 LEGAL FRAMEWORK Act on Organisation of Courts (2008) Civil Procedure Act (2011) Rules of Court (2009) International Treaties Hague Conventions Convention on civil procedure (1954) Convention on service abroad of judicial and extrajudicial documents in civil and commercial matters (1965) 22 Bilateral agreements 14 with EU Members States

4 Regulation (EC) No 1393/2007 INSTITUTIONAL FRAMEWORK Basic courts Commercial Courts and Administrative Court in respect of requests concerning their jurisdiction (Amendments - November 2013) Ministry of Justice and Public Administration

5 Regulation (EC) No 1393/2007 Regulation (EC) No 1393/2007 transmission of documents (Article 4) transmitting and receiving agencies by postal service direct service service of documents (Article 7 par. 1) in accordance with the law of the requested MS or by particular method requested unless it is incompatible with the law of the MS refusal to accept a document (Article 8) if it is not written or translated into: a language which the addressee understands the official language of the MS addressed date of service (Article 9) Civil Procedure Act transmission of documents (Article 178) partially aligned through diplomatic channels, unless otherwise provided by the law, international agreement or general principles of international law service of documents (Article 177) - aligned in accordance with domestic law (provisions on service Articles ) or by particular method requested unless it is contrary to public policy refusal to accept the document partially aligned the request and the documents must be translated into Serbian language (Article 178) legal ground for refusal in accordance with Article 142 date of service (Article 138, 140, 141 and 144)

6 Regulation (EC) No 1393/2007 ADMINISTRATIVE CAPACITIES Court Staff Ministry of Justice and Public Administration - Department for International Legal Assistance in Civil Matters Significant number of requests for legal assistance (approximately requests per year) mostly with the countries from the region, but also with Austria, Germany, France etc. Direct transmission of requests for service of documents exists with the courts in Montenegro, Macedonia and Bosnia and Herzegovina (in certain maters). Direct communication between the courts is also provided in the Agreement on Legal Assistance with Slovenia which has not yet entered into force Serbian Judicial Atlas

7 Regulation (EC) No 1393/2007 IMPLEMENTATION MECHANISMS Amendments to the Act on Organisation of Courts (long term) Amendments to the Civil Procedure Act (long term) Amendments to the Rules of Court (medium term) Training and education of court staff and the staff of the Ministry of Justice and Public Administration (long term)

8 Council Regulation (EC) No 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters

9 Council Regulation (EC) No 1206/2001 LEGAL FRAMEWORK Act on Organisation of Courts (2008) Civil Procedure Act (2011) Rules of Court (2009) International Treaties Hague Conventions Convention on civil procedure (1954) Convention on taking of evidence abroad in civil and commercial matters (1970) 22 Bilateral Agreements 14 with EU Members States

10 Council Regulation (EC) No 1206/2001 INSTITUTIONAL FRAMEWORK Basic courts Commercial Courts and Administrative Court in respect of requests concerning their jurisdiction (Amendments - November 2013) Ministry of Justice and Public Administration

11 Council Regulation (EC) No 1206/2001 Council Regulation (EC) No 1206/2001 direct transmission between the courts (Article 2) execution of the request (Article 10 par. 2 and 3) in accordance with the law of the requested MS or by particular method requested unless it is incompatible with the law of the MS Civil Procedure Act transmission through diplomatic channels (Article 178) partially aligned unless otherwise provided by the law, international agreement or general principles of international law execution of the request (Article 177) aligned in accordance with domestic law (provisions on taking of evidence are contained in Articles ) or by particular method requested, unless it is contrary to public policy communications technology (Article 10 par. 4) coercive measures provided for by the law of the MS requested (Article 13) refusal to execute the request (Article 14) possibility to hear a witness or expert by using communications technology (Articles 245 and 277) - aligned coercive measures (Articles 257 and 267) reasons for refusal of witnesses and experts to give statements (Articles and 265) - partially aligned

12 Council Regulation (EC) No 1206/2001 ADMINISTRATIVE CAPACITIES Court Staff Ministry of Justice and Public Administration - Department for International Legal Assistance in Civil Matters Significant number of requests for legal assistance (approximately requests per year) mostly with the countries from the region, but also with Austria, Germany, France etc. Direct transmission of requests for taking of evidence already exists with the courts in Montenegro, Macedonia and Bosnia and Herzegovina (in certain maters). Direct communication is also provided in the Agreement on legal Assistance with Slovenia which has not yet entered into force Serbian Judicial Atlas

13 Council Regulation (EC) No 1206/2001 IMPLEMENTATION MECHANISMS Amendments to the Act on Organisation of Courts (long term) Amendments to the Civil Procedure Act (long term) Amendments to the Rules of Court (medium term) Training and education of court staff and the staff of the Ministry of Justice and Public Administration (long term)

14 Regulation (EC) No 593/2008 on the law applicable to contractual obligation (Rome I Regulation)

15 Rome I Regulation LEGAL FRAMEWORK Act on Resolution of Conflicts of Law with Regulations of Other Countries (1982 PIL Act) Act on Obligations and Basic Proprietary Relations in Aerial Navigation (2011 AORAN) Maritime and Internal Navigation Act (2013 MINA) International Treaties Agreements on mutual legal assistance with Poland (1960) and Hungary (1968)

16 Rome I Regulation INSTITUTIONAL FRAMEWORK Courts Ministry of Justice and Public Administration

17 Rome I Regulation Rome I Regulation Freedom of Choice (Article 3) Restrictions in par. 3 and 4 Applicable law in the absence of choice (Article 4) conflict rules (par. 1) habitual residence of the party required to effect the characteristic performance of the contract (par. 2) most closely connected law (par. 4) Consumer, Insurance Contracts and Individual Employment Contracts (Articles 6, 7 and 8) Overriding mandatory provisions (Article 9) Public policy (Article 21) Exclusion of renvoi (Article 20) 1982 PIL Act Freedom of Choice (Article 19) partially aligned restrictions with regard to public policy, fraus legis and mandatory rules Applicable law in the absence of choice (Article 20) - conflict rules for 19 types of contract - partially aligned domicile/seat of the party required to effect the characteristic performance of the contract 3 exemptions (contract on the transfer of technology, stock-exchange contract and employment contract) special escape clause most closely connected law Consumer, Insurance Contracts and Individual Employment Contracts not aligned no specific provisions general rules in Articles 19 and 20 Overriding mandatory provisions not aligned no provisions Public policy (Article 4) Exclusion of renvoi (Article 6) not explicit exclusion by law (it is excluded by the judicial practice and literature) Draft of PIL Act is aligned with Rome I

18 Rome I Regulation Maritime and Internal Navigation Act (MINA) Conflict rules for contracts concerning relations in navigation (Articles ) freedom of choice, lex loci contractus, lex nationalis of carrier, lex fori (for towage agreement) Conflict rules for insurance contract in navigation (Article 1047) freedom of choice, the law of the seat of insurance company, the law of Republic of Serbia (lex fori) provided all interested parties are citizens of Republic of Serbia and have their residence in Republic of Serbia or have their seats in Republic of Serbia and the covered risks are situated in Republic of Serbia Conflict rule for formal validity of legal act (Article 1048) lex loci actus or lex cause Act on Obligations and Basic Proprietary Relations in Aerial Navigation (AORAN) Conflict rules for contracts of carriage of passengers and goods (Article167) lex autonomiea, lex fori Conflict rules for insurance contracts in air traffic (Article168) the rule is same as the rule contained in Article 1047 MINA Conflict rule for formal validity of contracts in air traffic (Article169) lex loci actus or lex cause

19 Rome I Regulation IMPLEMENTATION MECHANISMS Adoption of the new Private International Law Act (medium term) Training and education of judges and court staff (long term)

20 Regulation (EC) No 864/2007 on the law applicable to noncontractual obligation (Rome II Regulation)

21 Rome II Regulation LEGAL FRAMEWORK Act on Resolution of Conflicts of Law with Regulations of Other Countries (1982 PIL Act) International Treaties Hague Conventions Convention on the law applicable to traffic accidents (1971) Convention on the law applicable to products liability (1973) Bilateral agreements Agreements on mutual legal assistance with Poland (1960) and Hungary (1968)

22 Rome II Regulation INSTITUTIONAL FRAMEWORK Courts Ministry of Justice and Public Administration

23 Rome II Regulation Rome II Regulation Torts/Delicts general rule (Article 4) - lex loci damni subsidiary rule - common habitual residence of the parties escape clause a manifestly closer connection with another country special rules for special torts Unjust enrichment (Article 10) general rule subsidiary rule - common habitual residence of the parties and the place where the unjust enrichment occured escape clause a manifestly closer connection with another country Negotiorum gestio (Article 11) Culpa in contrahendo (Article 12) Freedom of choice (Article 14) Overriding mandatory provisions (Article 9) Public policy (Article 21) Exclusion of renvoi (Article 20) 1982 PIL Act Torts/Delicts (Article 28) - not aligned general rule - lex loci delicti commisii ubiquity principle (in favorem victimae) lex loci delicti commisii or lex loci damni no conflict rules for special torts (unfair competition, environmental damage, industrial action etc.) Unjust enrichment (Article 27 par. 1) partially aligned application of the law governing the legal relationship which arose, was expected or was supposed, in pursuance whereof the enrichment took place no escape clause Negotiorum gestio (Article 27 par. 2) - not aligned the law of the place where the act of negotiorum gestor was performed Culpa in contrahendo no provisions Freedom of choice - no provisions Overriding mandatory provisions no provisions Public policy (Article 4) Exclusion of renvoi (Article 6) - partially excluded Draft of PIL Act is partially aligned with Rome II

24 Rome II Regulation IMPLEMENTATION MECHANISMS Adoption of the new Private International Law Act (medium term) Training and education of judges and court staff (long term)

25 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation)

26 Brussels I Regulation LEGAL FRAMEWORK Act on Resolution of Conflicts of Law with Regulations of Other Countries (1982 PIL Act) Civil Procedure Act (2011) Non-contentious Procedure Act (1982) Act on Obligations and Basic Proprietary Relations in Aerial Navigation (2011 AORAN) Maritime and Internal Navigation Act (2013 MINA) International Treaties 15 Bilateral agreements 9 with EU Members States

27 Brussels I Regulation INSTITUTIONAL FRAMEWORK Courts Ministry of Justice and Public Administration

28 Rules on jurisdiction Brussels I Regulation Brussels I Regulation General jurisdiction Domicile of respondent (Article 2) Domicile of legal persons (Article 60) Statutory seat Central administration Principal place of business Special jurisdiction In matters relating to a contract (Article 5 par. 1) Place of performance of the obligation in question In matters relating to tort, delict or quasi - delict (Articles 5 par. 3) Place where the harmful event occurred or may occur - Judgment of the ECJ Biers v. Mines des potasse d Alsace 1982 PIL Act General international jurisdiction (Article 46) partially aligned Domicile and ordinary residence of natural persons Seat of legal persons Draft of PIL Act partially aligned with Brussels I Domicile and habitual residence of respondent (natural and legal persons) Domicile of legal persons aligned with Brussels I Special jurisdiction - partially aligned In matters relating to a contract (Articles 54 and 55) Venue of assets Obligation occurred during the respondent s presence in the Republic of Serbia Seat of agency in the Republic of Serbia Draft of PIL Act aligned with Brussels I In matters relating to tort, delict or quasi-delict (Article 53 refers to Articles 46, 50 and 52) The place where the damage occurred Draft of PIL Act aligned with Brussels I

29 Brussels I Regulation Rules on jurisdiction Brussels I Regulation Prorogation of jurisdiction (Articles 23 and 24) Explicit prorogation Tacit prorogation Articles 25 and 26 of Brussels I Recast Exclusive jurisdiction (Article 22) Lis pendens (Article 27) Article 33 of Brussels I Recast Related actions (Article 28) Article 34 of Brussels I Recast 1982 PIL Act Prorogation of jurisdiction (Articles 49 and 50) Explicit prorogation - not aligned Tacit prorogation - partially aligned Civil Procedure Act (Article 198 par. 2) Draft of PIL Act aligned with Brussels I Exclusive jurisdiction - partially aligned Immovable property (Article 71) Certain provisions of AORAN (Article 1051) and MINA (Article 164 par. 2) Draft of PIL Act aligned with Article 22 of Brussels I Lis pendens (Article 80) - partially aligned Draft of PIL Act aligned with Brussels I Recast Related actions not aligned no provisions Draft of PIL Act aligned with Brussels I Recast

30 Brussels I Regulation Rules on jurisdiction Brussels I Regulation 1982 PIL Act Individual contract of employment (Articles 18-21) Consumer contracts (Articles 15-17) Matters relating to insurance (Articles 8-14) Individual contract of employment- partially aligned No particular provision; Articles 46, 53, 54 and 55 Article 60 of Civil Procedure Act Draft of PIL Act aligned with Brussels I Consumer contracts - partially aligned No particular provision; Articles 46, 53, 54 and 55 Article 47 of Civil Procedure Act Draft of PIL Act aligned with Brussels I Matters relating to insurance - not aligned Article 53 par. 2

31 Brussels I Regulation Recognition and Enforcement Brussels I Regulation Mutual recognition of judgments without any special procedure Recognition (Articles 32-37) Enforcement (Articles 38-52) Common provisions (53-56) Recognition as a preliminary issue (Article 33 par. 3) 1982 PIL Act Judgment of foreign court as well as settlement reached before the court is of legal effect in the Republic of Serbia only if it is recognized by the Serbian court (Article 86) General rules for recognition (Article 87-92) Grounds for non-recognition (Article 87-92) partially aligned Procedure for recognition not aligned Recognition as a preliminary issue - aligned Article 101 par. 5 Enforcement and Security Act (Article 21 par. 3-5) Draft of PIL Act partially aligned with Brussels I and Brussels I Recast

32 Brussels I Regulation IMPLEMENTATION MECHANISMS Adoption of the new Private International Law Act (medium term) Training and education of judges and court staff (long term)

33 Regulation (EC) No 805/2004 of the European Parliament and of the Council of 21 April 2004 creating a European Enforcement Order for uncontested claims

34 Regulation (EC) No 805/2004 LEGAL FRAMEWORK Civil Procedure Act (2011) Enforcement and Security Act (2011) Act on Organisation of Courts (2008)

35 Regulation (EC) No 805/2004 INSTITUTIONAL FRAMEWORK Courts Ministry of Justice and Public Administration

36 Regulation (EC) No 805/2004 Regulation (EC) No 805/2004 enforcement procedure (Article 20) decision certified as a EEO (Article 6) Enforcement and Security Act decision certified as a EEO is an enforcement title (Article 13) aligned decision certified as a EEO should be personally served upon the debtor in accordance with Civil Procedure Act (Article 141) right to a legal remedy (Articles 39-49)

37 Regulation (EC) No 805/2004 IMPLEMENTATION MECHANISMS Amendments to the Enforcement and Security Act (long term) Amendments to all laws that regulate jurisdiction (long term) Act on Organisation of Courts, Public Notaries Act, Administrative Procedure Act Training and education of judges, court staff and other authorities (long term)

38 Regulation (EC) No 861/2007 of the European Parliament and of the Council of 11 July 2007 establishing European Small Claims Procedure

39 - Regulation (EC) No 861/ LEGAL FRAMEWORK Civil Procedure Act (2011) Act on Organisation of Courts (2008)

40 - Regulation (EC) No 861/ INSTITUTIONAL FRAMEWORK Courts Ministry of Justice and Public Administration

41 - Regulation (EC) No 861/ Regulation (EC) No 861/2007 value of claim EUR (Article 2) dismissal of the application as clearly unfounded (Article 4 par. 4) right of a party to request oral hearing (Article 5 par. 1) enforceability of the judgment notwithstanding any possible appeal (Article 15) Civil Procedure Act value of claim EUR (Article 468) not aligned dismissal of the application only on procedural grounds (Article 101) not aligned only court decides whether to hold an oral hearing - not aligned enforceability of the judgment notwithstanding any possible appeal for claims up to 300 EUR (Article 368)

42 Regulation (EC) No 861/2007 IMPLEMENTATION MECHANISMS Amendments to the Civil Procedure Act (long term) Amendments to the Enforcement and Security Act (long term) Training and education of judges, court staff and other authorities (long term)

43 Regulation (EC) No 1896/2006 of the European Parliament and of the Council of 12 December 2006 creating a European order for payment Procedure

44 Regulation (EC) No 1896/2006 LEGAL FRAMEWORK Civil Procedure Act (2011) Act on Organisation of Courts (2008)

45 Regulation (EC) No 1896/2006 INSTITUTIONAL FRAMEWORK Courts Ministry of Justice and Public Administration

46 Regulation (EC) No 1896/2006 Regulation (EC) No 1896/2006 Civil Procedure Act European order for payment procedure Order for payment procedure (Articles )

47 Regulation (EC) No 1896/2006 IMPLEMENTATION MECHANISMS Amendments to the Civil Procedure Act (long term) Amendments to the Enforcement and Security Act (long term) Training and education of judges, court staff and other authorities (long term)

48 Thank you for your attention QUESTIONS

EUROPEAN UNION. Brussels, 22 June 2007 (OR. en) 2003/0168 (COD) C6-0142/2007 PE-CONS 3619/07 JUSTCIV 140 CODEC 528

EUROPEAN UNION. Brussels, 22 June 2007 (OR. en) 2003/0168 (COD) C6-0142/2007 PE-CONS 3619/07 JUSTCIV 140 CODEC 528 EUROPEAN UNION THE EUROPEAN PARLIAMT THE COUNCIL Brussels, 22 June 2007 (OR. en) 2003/0168 (COD) C6-0142/2007 PE-CONS 3619/07 JUSTCIV 140 CODEC 528 LEGISLATIVE ACTS AND OTHER INSTRUMTS Subject: REGULATION