Izvorni znanstveni članak
Recognition of Judgments under The Regulation (EC) No. 44/2001 of 22 December 2000 on Jurisdiction and Recognition and Enforcement of Judgments in Civil and Commercial Matters
Hrvoje Sikirić
; Pravni fakultet Sveučilišta u Zagrebu, Zagreb, Hrvatska
Sažetak
The subject-matter of the paper is the concept of “recognition“ of foreign judgments and the procedure for the recognition of foreign judgments under Regulation (EC) No. 44/2001of 22 December 2000 on jurisdiction and recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation), the most important legal source of procedural private international law of the European Union.
After the introductory part, the second part of the paper comments on the concept of “recognition“ under the Brussels I Regulation, firstly on general issues with regard to recognition: legal theories on recognition, irrelevance of recognition in a third country, the requirement that legal effects of a judgment must have arisen in the state of origin, the scope of recognition, the text (wording) in which the judgment is recognized, the moment in time when recognition is decided upon and the period of the time of the recognition. Thereafter, the limits of authority enjoyed by a judgment in the State of recognition pursuant to a principle of extension of a judgment’s effects from a State of origin into a State of recognition are analysed: effect of finality of a judgment as to its substance (materiellrechtliche Rechtskräftigkeit), estoppel effect (Präklusionswirkung), constitutive effect (Gestalltungswirkung), procedural effect towards third persons, foreign judgment as a legally relevant fact, burden of proof and enforceability.
In the third part of the paper, which represents the most essential part, three forms of recognition foreseen by the Brussels I Regulation, are analysed: automatic recognition, recognition in a declaratory proceedings, and recognition as an incidental issue within the framework of other proceedings. The principle of automatic recognition, as accepted by the Regulation, provides that judgments issued in one Member State are automatically recognized in other Member States without any prior proceedings or formal steps. It represents one of the pillars on which the European judicial area is based and directly contributes to “rapid and simple recognition and enforcement“ accepted as a main goal of the Regulation pursuant to Recital 2 of its Preamble. With regard to the recognition procedure in which the main issue is the determination as to whether a foreign decision is capable of being recognised, the notions “interested party” and “dispute” are considered as well as the possibility of only initiating the procedure for a positive and not a negative declaration and. It is emphasised that the special procedure for recognition can be initiated independently as well as together with a request for the declaration of enforceability of the foreign judgment. Further, the effect of annulment or amendment of the decision in the State of origin on the recognition procedure and the legal nature of the decision on the declaration of recognition is discussed. Regarding recognition as an incidental issue, the difference in terminology of several languages of the Regulation is emphasised, the scope of application of the respective provision is analysed, the court’s authority for refusal of recognition is considered and the mutatis mutandis application of rules of Sections 2 and 3 of the Chapter III of the Regulation. Within this part of the paper, the partial recognition of a foreign judgment is also explained.
The fourth part of the paper considers stay of proceedings, especially the reasons for a stay and it is determined that a stay only relates to the prejudicial recognition procedure. In addition, the notion of the “regular legal remedy“ is explained, the discretionary power of the court to stay the proceedings is analysed and a special rule for Ireland and the United Kingdom is explained.
Ključne riječi
Council Regulation (EC) No 44/2001 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters; Brussels I Regulation; foreign judgment; recognition of foreign judgments; automatic recognition; recognition as a main issue; recognition as an prejudicial issue
Hrčak ID:
93101
URI
Datum izdavanja:
3.5.2012.
Posjeta: 6.605 *