DOCSLIB.ORG

British Institute of International and Comparative Law

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
British Institute of International and Comparative Law BRITISH INSTITUTE OF INTERNATIONAL AND COMPARATIVE LAW PROJECT REFERENCE: JLS/2006/FPC/21 – 30-CE-00914760055 THE EFFECT IN THE EUROPEAN COMMUNITY OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS: RECOGNITION, RES JUDICATA AND ABUSE OF PROCESS Project Advisory Board: The Rt Hon Sir Francis Jacobs KCMG QC (chair); Lord Mance; Mr David Anderson QC; Dr Peter Barnett; Mr Peter Beaton; Professor Adrian Briggs; Professor Burkhard Hess; Mr Adam Johnson; Mr Alex Layton QC; Professor Paul Oberhammer; Professor Rolf Stürner; Ms Mona Vaswani; Professor Rhonda Wasserman Project National Rapporteurs: Mr Peter Beaton (Scotland); Professor Alegría Borrás (Spain); Mr Andrew Dickinson (England and Wales); Mr Javier Areste Gonzalez (Spain – Assistant Rapporteur); Mr Christian Heinze (Germany); Professor Lars Heuman (Sweden); Mr Urs Hoffmann-Nowotny (Switzerland – Assistant Rapporteur); Professor Emmanuel Jeuland (France); Professor Paul Oberhammer (Switzerland); Mr Jonas Olsson (Sweden – Assistant Rapporteur); Mr Mikael Pauli (Sweden – Assistant Rapporteur); Dr Norel Rosner (Romania); Ms Justine Stefanelli (United States); Mr Jacob van de Velden (Netherlands) Project Director: Jacob van de Velden Project Research Fellow: Justine Stefanelli Project Consultant: Andrew Dickinson Project Research Assistants: Elina Konstantinidou and Daniel Vasbeck 1 QUESTIONNAIRE The Effect in the European Community of Judgments in Civil and Commercial Matters: Recognition, Res Judicata and Abuse of Process Instructions to National Rapporteurs Please use the following questions to describe the current position in the country for which you have been appointed as National Rapporteur. Please respond to the following questions as fully as possible, with appropriate reference to, and quotation of, supporting authority (e.g. case law and, where appropriate, the views of legal writers). Please give full citations to supporting authority using the Oxford Standard for Citation of Legal Authorities (OSCOLA) guidelines, a copy of which will be provided by the Institute. Please begin your typed responses directly below each question. Please indicate the name of your country and your official title(s) at the top of the answer sheet under “Questionnaire”. It is recommended that you read through the entire questionnaire and its accompanying guidelines before you begin to draft your responses. This applies equally when you start answering a question that is part of a specific section. Please quote and translate into English the rules of the civil procedure code (and a summary of any travaux préparatoires) that deal with judgments and which you refer to for the purpose of your answer, as well as indicate and translate the legal terminology used to describe the elements of judgments. Timetable The National Rapporteurs have a period of two months to produce a first full draft of their respective national reports (a consultancy and copy right licensing agreement will be sent to the rapporteurs separately). At the meeting of 4 and 5 October it was agreed that the National Rapporteurs will submit their national reports in due time before the second meeting of the rapporteurs that will take place in London on 17 and 18 January (dates to be confirmed). All rapporteurs further agreed to submit draft answers on the first part of the questionnaire one month after the questionnaire has been sent out to allow for discussion and feedback through the project extranet and email. 2 I. Judgments............................................................................................................5 A. The concept, form, structure and terminology of judgments.............................................. 8 B. The final determination and findings on issues of fact and law ....................................... 10 C. The binding character of a judgment ................................................................................ 12 D. Judgments that are capable of having preclusive effects.................................................. 15 II. Preclusive effects...........................................................................................16 A. Claim preclusion............................................................................................................... 16 1. Existence and nature of claim preclusive effects......................................................................................29 2. Policies underlying claim preclusive effects ............................................................................................29 3. Conditions for claim preclusive effects ....................................................................................................29 4. Invoking claim preclusive effects.............................................................................................................29 5. Exceptions to claim preclusive effects......................................................................................................29 6. Claimant and Defendant ...........................................................................................................................30 7. Other participants .....................................................................................................................................30 8. Represented persons .................................................................................................................................30 9. Persons connected to the Claimant, Defendant, and other participants ....................................................30 10. Strangers ..............................................................................................................................................30 B. Issue preclusion................................................................................................................. 30 1. The existence and nature of issue preclusive effects ................................................................................30 2. Policies underlying issue preclusive effects .............................................................................................30 3. Conditions for issue preclusive effects .....................................................................................................30 4. Invoking issue preclusive effects..............................................................................................................30 5. Exceptions to issue preclusive effects ......................................................................................................30 6. Claimant and Defendant ...........................................................................................................................31 7. Other participants .....................................................................................................................................31 8. Represented persons .................................................................................................................................31 9. Persons connected to the Claimant, Defendant, and other participants ....................................................31 10. Strangers ..............................................................................................................................................31 C. Wider preclusive effects ................................................................................................... 31 1. The existence and nature of wider preclusive effects ...............................................................................31 2. Policies underlying wider preclusive effects ............................................................................................31 3. Conditions for wider preclusive effects....................................................................................................31 4. Invoking wider preclusive effects.............................................................................................................32 5. Exceptions to wider preclusive effects .....................................................................................................32 6. Claimant and Defendant ...........................................................................................................................32 7. Other participants .....................................................................................................................................32 8. Represented persons .................................................................................................................................32 9. Persons connected to the Claimant, Defendant, and other participants ....................................................32 10. Strangers ..............................................................................................................................................32 III. Preclusive effects of judgments within the Brussels/Lugano Regime ..........33 A. Recognition....................................................................................................................... 33 1. Judgments recognised...............................................................................................................................33 2. Procedural aspects of recognition.............................................................................................................33 3. Exceptions to the rule (grounds for non-recognition)...............................................................................33
Load more

Recommended publications
  • 1 Legal Terms Used in Scottish Court Procedure, Neil Kelly Partner
    Legal Terms Used in Scottish Court Procedure, Neil Kelly Partner, MacRoberts Many recent reported adjudication decisions have come from the Scottish Courts. Therefore, as part of the case notes update, we have included a brief explanation of some of the Scottish Court procedures. There are noted below certain legal terms used in Scottish Court Procedure with a brief explanation of them. This is done in an attempt to give some readers a better understanding of some of the terms used in the Scottish cases highlighted on this web-site. 1. Action: Legal proceedings before a Court in Scotland initiated by Initial Writ or Summons. 2. Adjustment (of Pleadings): The process by which a party changes its written pleadings during the period allowed by the Court for adjustment. 3. Amendment (of Pleadings): The process by which a party changes its written pleadings after the period for adjustment has expired. Amendment requires leave of the Court. 4. Appeal to Sheriff Principal: In certain circumstances an appeal may be taken from a decision of a Sheriff to the Sheriff Principal. In some cases leave of the Sheriff is required. 5. Appeal to Court of Session: In certain circumstances an appeal may be taken from a decision of a Sheriff directly to the Court of Session or from a decision of the Sheriff Principal to the Court of Session. Such an appeal may require leave of the Sheriff or Sheriff Principal who pronounced the decision. Such an appeal will be heard by the Inner House of the Court of Session. 6. Arrestment: The process of diligence under which a Pursuer (or Defender in a counterclaim) can obtain security for a claim by freezing moveable (personal) property of the debtor in the hands of third parties e.g.
    [Show full text]
  • 2 Legal System of Scotland
    Legal System of 2 Scotland Yvonne McLaren and Josephine Bisacre This chapter discusses the formal sources of Scots law – answering the question of where the law gets its binding authority from. The chapter considers the role played by human rights in the Scottish legal system and their importance both for individuals and for businesses. While most com- mercial contracts are fulfilled and do not end up in court, some do, and sometimes businesses are sued for negligence, and they may also fall foul of the criminal law. Therefore the latter part of the chapter discusses the civil and criminal courts of Scotland and the personnel that work in the justice system. The Scottish legal system is also set in its UK and European context, and the chapter links closely with Chapters 3 and 4, where two rather dif- ferent legal systems – those in Dubai and Malaysia – are explored, in order to provide some international comparisons. The formal sources of Scots Law: from where does the law derive its authority? What is the law and why should we obey it? These are important ques- tions. Rules come in many different guises. There are legal rules and other rules that may appear similar in that they invoke a sense of obligation, such as religious rules, ethical or moral rules, and social rules. People live by religious or moral codes and consider themselves bound by them. People honour social engagements because personal relationships depend on this. However, legal rules are different in that the authority of the state is behind them and if they are not honoured, ultimately the state will step in 20 Commercial Law in a Global Context and enforce them, in the form of civil remedies such as damages, or state- sanctioned punishment for breach of the criminal law.
    [Show full text]
  • Remember Those from Whom You Came Newsletter of the Clan Macalpine Society
    Remember Those From Whom You Came Newsletter Of The Clan MacAlpine Society The Worldwide Organization For MacAlpines 1st Quarter 2020 ~ Volume 47 Commander’s News The Central Florida Games were well attended and well run as we have seen in the past. It is gratifying to see the amount of young people that are engaged and are learning about their heritage. Society President Dale McAlpine and I had the opportunity to attend the Burns Dinner in Woodville, Ontario, Canada. It was a lovely time, and very good to spend time with this group of very active Canadian Clan MacAlpine Society members. The Kilmartin Church is still being evaluated by the Dunadd Community, we will stay in touch and follow their progress. We have started a dialogue with the Lang Syne Publishing Group in Scotland that publishes the series of Clan Histories that are sold on Princess Street and at many Scottish venues. It is an exciting project that will, in time, put our booklets in the outlets. Yours Aye Michael T McAlpin Commander, Name of MacAlpin Commander: Michael T. McAlpin Society Officers: President: Earl Dale McAlpine Vice President: Mark McAlpin Treasurer: Janet McAlpine Secretary: Robin McAlpine Member at Large: Finn Stavsnbo Alpin Newsletter Editor: Janet McAlpine President’s News Dear Family, We started the new year out by hosting the Clan MacAlpin/e Society tent at Central Florida Highland Games, January 18th – 19th. During the Parade of Clans we received a warm welcome for our Clan and attending Commander Michael T. McAlpin. The next Annual General Meeting (AGM) will be held July 11th at the 65th Annual Grandfather Mountain Highland Games July 9-12, 2020 at MacRae Meadows near Linville, North Carolina—https://www.gmhg.org or see our Clan MacAlpin/e Society’s website.
    [Show full text]
  • Second Division, Inner House, Court of Session [2021] Csih
    SECOND DIVISION, INNER HOUSE, COURT OF SESSION [2021] CSIH 24 CA44/19 Lord Justice Clerk Lord Menzies Lord Pentland OPINION OF THE COURT delivered by LADY DORRIAN, the LORD JUSTICE CLERK in the Reclaiming Motion by LEAFREALM LAND LIMITED Reclaimer against (1) THE CITY OF EDINBURGH COUNCIL; (2) THE RAEBURN PLACE FOUNDATION; and (3) RAEBURN PLACE DEVELOPMENT LIMITED Respondents Reclaimer: Lake QC, R Anderson; Gilson Gray LLP First Respondent: Barne, QC; Morton Fraser LLP Second & Third Respondents: Mure QC; CMS Cameron McKenna Nabarro Olswang LLP 30 April 2021 Introduction [1] The reclaimer seeks review of the Lord Ordinary’s interlocutor of 18 March 2020 in which, following proof, she assoilzied the defenders in the reclaimer’s action seeking declarator and interdict. The action, which was brought in the commercial court, concerns green space to the north alongside Comely Bank Road, Edinburgh which has been used for 2 sporting activity for more than a century, and a development adjacent thereto by the second and third respondents. [2] The green space in question is in the ownership of the Edinburgh Academical Club, to which it was disponed in 1979 by the Grange and Academical Trustees, the southernmost boundary thereof being marked by the north face of a wall along Comely Bank Road. This wall had been built in 1912 in terms of a Minute of Agreement entered into between the first respondent’s statutory predecessor, the Lord Provost, Magistrates and Council of the City of Edinburgh, the Grange and Academical Trustees, and the Edinburgh Academical Club. In terms of the Minute of Agreement, the latter entities agreed to “give up” a six foot strip of land for the purposes of road widening, and the former undertook to remove the existing boundary wall, referred to as the old estate wall, and erect a new one.
    [Show full text]
  • Outer House, Court of Session
    OUTER HOUSE, COURT OF SESSION [2018] CSOH 61 P1293/17 OPINION OF LORD BOYD OF DUNCANSBY in the Petition of ANDREW WIGHTMAN MSP AND OTHERS Petitioners TOM BRAKE MP AND CHRIS LESLIE MP, Additional Parties for Judicial Review against SECRETARY OF STATE FOR EXITING THE EUROPEAN UNION Respondents Petitioners: O’Neill QC, Welsh; Balfour + Manson LLP Additional Parties: M Ross QC; Harper Macleod LLP Respondents: Johnston QC, Webster; Office of the Advocate General 8 June 2018 Introduction [1] On 23 June 2016 the people of the United Kingdom voted to leave the European Union. Following the Supreme Court case of Miller (R (Miller and another) v Secretary of State for Exiting the European Union [2018] AC 61) the United Kingdom Parliament enacted the European Union (Notification of Withdrawal) Act 2017 authorising the Prime Minister to notify under article 50(2) of the Treaty on European Union (TEU) the UK’s intention to 2 withdraw from the European Union. On 29 March 2017 the Prime Minister, in a letter addressed to the European Council (EC), gave notice under article 50(2) of the TEU (the “article 50 notification”) of the UK’s intention to withdraw. [2] Can that notice be unilaterally revoked by the UK acting in good faith such that the United Kingdom could continue to be a member of the European Union after 29 March 2019 on the same terms and conditions as it presently enjoys? That is the question which the petitioners and the additional parties wish answered. [3] All but one of the petitioners is an elected representative.
    [Show full text]
  • Foi-17-02802
    Annex B Deputy First Minister’s briefing for James Wolffe meeting on 3 March 2016: Meeting with James Wolffe QC, Dean of Faculty of Advocates 14:30, 3 March 2016 Key message Support efforts to improve the societal contribution made by the courts. In particular the contribution to growing the economy Who James Wolffe QC, Dean of Faculty of Advocates What Informal meeting, principally to listen to the Dean’s views and suggestions Where Parliament When Date Thursday 3 March 2016 Time 14:30 pm Supporting Private Office indicated no officials required officials Briefing and No formal agenda agenda Annex A: Background on Faculty and biography of Mr Wolffe Annex B: Key lines Annex C: Background issues Copy to: Cabinet Secretary for Justice Minister for Community Safety and Legal Affairs DG Learning and Justice DG Enterprise, Environment and Innovation Neil Rennick, Director Justice Jan Marshall [REDACTED] Nicola Wisdahl Cameron Stewart [REDACTED] John McFarlane, Special Adviser Communications Safer & Stronger St Andrew’s House, Regent Road, Edinburgh EH1 3DG www.scotland.gov.uk MEETING WITH JAMES WOLFFE QC ANNEX A Background The Faculty of Advocates is an independent body of lawyers who have been admitted to practise as Advocates before the Courts of Scotland. The Faculty has been in existence since 1532 when the College of Justice was set up by Act of the Scots Parliament, but its origins are believed to predate that event. It is self- regulating, and the Court delegates to the Faculty the task of preparing Intrants for admission as Advocates. This task involves a process of examination and practical instruction known as devilling, during which Intrants benefit from intensive structured training in the special skills of advocacy.
    [Show full text]
  • Scotland and the UK Constitution
    Scotland and the UK Constitution The 1998 devolution acts brought about the most significant change in the constitution of the United Kingdom since at least the passage of the 1972 European Communities Act. Under those statutes devolved legislatures and administrations were created in Wales, Northern Ireland, and Scotland. The documents below have been selected to give an overview of the constitutional settlement established by the devolution acts and by the Courts. Scotland has been chosen as a case study for this examination, both because the Scottish Parliament has been granted the most extensive range of powers and legislative competences of the three devolved areas, but also because the ongoing debate on Scottish independence means that the powers and competencies of the Scottish Parliament are very much live questions. The devolution of certain legislative and political powers to Scotland was effected by the Scotland Act 1998. That statute, enacted by the Westminster Parliament, creates the Scottish Parliament and the Scottish Executive (now the “Scottish Government”), and establishes the limits on the Parliament’s legislative competence. Schedule 5 of the Act, interpolated by Section 30(1), lists those powers which are reserved to the Westminster Parliament, and delegates all other matters to the devolved organs. Thus, while constitutional matters, foreign affairs, and national defence are explicitly reserved to Westminster, all matters not listed— including the education system, the health service, the legal system, environmental
    [Show full text]
  • 1 Brussels, 26 July 2000 10181/00
    Brussels, 26 July 2000 10181/00 (Presse 258) APPOINTMENTS TO T E COURT OF JUSTICE On 26 July 2000 the Representatives of the Governments of the Member States appointed the following Judges to the Court of Justice of the Eur pean Communities for the period from 7 Oct ber 2000 to 6 Oct ber 2006: Mrs Ninon COLNERIC 1 Mr Jos( Narciso DA CUN A RODRIGUES 2 Mr David A.O. EDWARD 1 Mr Peter JANN 1 Mr Antonio Mario LA PERGOLA 1 Mr Jean-Pierre PUISSOC ET 1 Mr Christiaan W. A. TIMMERMANS 2 Mr Stig VON BA R 2 and the following .dvocates/eneral to the Court of Justice of the Eur pean Communities for the period from 7 Oct ber 2000 to 6 Oct ber 2006: Mr L.A. GEEL OED 2 Mr Philippe LEGER 1 Mrs Christine STI2- AC3L 2 Mr Antonio TI44ANO 2 * See anne1ed curricula vitae. 1 Renewal 2 3irst app intment _______________________ Internet: http://ue.eu.int/Newsroom E-mail: [email protected] 10181/00 (Presse 258 - G) 1 EN C5RRIC575M VIT.E Prof. Ninon COLNERIC Date and place of birth- 29.8.1948, Oer-Erkenschwick, Kreis Recklinghausen Nationality- German since 1954 Education 1967 Abitur , St@dtisches neusprachliches M@dchengymnasium Datteln 1967/1968 General studies at the LeibniA-Kolleg TBbingen; German and Philos phy at TBbingen University 1968-1972 7aw studies at TBbingen, Geneva (specialising in international and comparative law) and Munich Universities 14.12.1972 3irst State law examination (result- good), Munich 1973 and 1974 Research for dissertation in Great Britain, guest student at the London School of Economics from 1.3.1974 7egal traineeship
    [Show full text]
  • Sir David Alexander Ogilvy Edward KCMG PC QC FRSE (Born in Perth 14 November 1934) Is a Scottish Lawyer and Academic, and Forme
    Sir David Alexander Ogilvy Edward KCMG PC QC FRSE (born in Perth 14 November 1934) is a Scottish lawyer and academic, and former Judge of the Court of Justice of the European Communities. In 1990 he became a Fellow of The Royal Society of Edinburgh. Education Edward was educated at Clifton Hall School and Sedbergh School. He studied Classics at University College, Oxford, taking a break midway for National Service in the Navy (HMS Hornet, 1956–57), and Law at the University of Edinburgh. David Edward married Elizabeth McSherry in 1962, they have 2 daughters and 2 sons. Advocate in Scotland – the Bar Edward was called to the Bar in 1962 and appointed Queen's Counsel in 1974. He subsequently served as Clerk and then Treasurer of the Faculty, and represented the Faculty at the Consultative Committee of the Bars and Law Societies of the European Community,[6] of which he served as President between 1978–80. Edward was a Director of The Harris Tweed Authority from 1984–89. He is Honorary Bencher of Gray's Inn. Academic Career He was Salvesen Professor of European Institutions and Director of the Europa Institute at the School of Law of the University of Edinburgh from 1985 to 1989, during which time he served on three occasions as Specialist Adviser to the House of Lords Select Committee on the European Communities. He is an Honorary Fellow of University College, Oxford. David Edward is Professor Emeritus of the School of Law of the University of Edinburgh, and Chairman of its Europa Institute. He is a fellow of the Royal Society of Edinburgh, and in 2005 received the Society's Royal Gold Medal.
    [Show full text]
  • SOME OLD-TIME SCOTCH JUDGES. the Law Courts of Scotland Have
    SOME OLD-TIME SCOTCH JUDGES. The Law Courts of Scotland have been as famous for the person- alities of their Judges as for the quality of the law propounded and decreed therein, and few public institutions of ancient lineage have numbered among their members so many persons of marked character and individuality as the Court of Session in Edinburgh. In Scotland individual eccentricity has never been a barrier to merit and ability in the race for fame ; on the contrary, it has often been a powerful asset, and the records of her politics and public life teem with the personal eccentricities and outstanding peculiarities of her most distinguished citizens . The Court of Session, by which term the Law Courts of Scotland are described, has held since the date of the Union of the Crowns in 17'07 and still holds, a position of peculiar dignity. Mem- bers of Parliament and the higher Civil ;Servants have had by force of circumstances their residence in London,. and accordingly for two centuries the Law Courts have been left seised of the highest social position available in the world of Edinburgh, "mine own romantic town," as Sir Walter Scott loved to call it. As a result a Lord of Session has had a special prominence in . Scotland which none save a Peer of the Realm could dispute. They not only moulded the legal traditions of the country and by their de- cision affected the tone of its administration, but their influence upon its social life has been remarkable . In their roll are to be found some unworthy and commonplace names, but many of them are well worthy of resurrection from the vaults of local history to the day- light of the present generation.
    [Show full text]
  • Exchanging Ideas on Europe
    EXCHANGING IDEAS ON EUROPE Rethinking the European Union EDINBURGH A conference hosted by the Edinburgh Europa Institute 2 0 0 8 1 - 3 September 2008 w w w. U A C E S . o rg Contents Sponsors and supporters ..................................................... 2 Publishers’ Exhibition .......................................................... 3-4 Maps ................................................................................. 5-6 Programme for Monday 1 September ..................................... 7 Programme for Tuesday 2 September ...................................... 8 Programme for Wednesday 3 September .................................. 9 Programme for Research Sessions ........................................ 11-28 Research Session 1 ..................................................... 11-12 Research Session 2 ..................................................... 13-14 Research Session 3 ..................................................... 15-16 Research Session 4 ..................................................... 17-18 Research Session 5 ..................................................... 19-20 Research Session 6 ..................................................... 21-22 Research Session 7 ..................................................... 23-24 Research Session 8 ..................................................... 25-26 Research Session 9 ..................................................... 27-28 Biographies ....................................................................... 29-30 UACES Awards and Prizes
    [Show full text]
  • ASSIST Final Evaluation Report V4
    Advice, Support, Safety & Information Services Together (ASSIST): The Benefits of Providing Assistance to Victims of Domestic Abuse in Glasgow Final Evaluation Report October, 2006 Dr Amanda L Robinson Senior Lecturer in Criminology and Criminal Justice School of Social Sciences Cardiff University Glamorgan Building King Edward VII Avenue Cardiff CF10 3WT (02920) 875401 [email protected] Table of Contents Acknowledgments.............................................................................................6 Executive Summary ..........................................................................................7 Key Findings ...............................................................................................................................7 Recommendations.......................................................................................................................8 1. Introduction..................................................................................................9 The Scottish Criminal Justice Policy Context ......................................................................................9 The Response to Domestic Abuse in Glasgow .................................................................................10 Criminal Justice and Statutory Agencies......................................................................................11 Domestic Abuse Court ...........................................................................................................11 Strathclyde Police..................................................................................................................13
    [Show full text]