Activities of Tadeusz ZWIEFKA related to 2009/2140(INI)
Plenary speeches (1)
Jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (short presentation)
Reports (1)
REPORT Report on the implementation and review of Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters PDF (194 KB) DOC (104 KB)
Amendments (19)
Amendment 2 #
Motion for a resolution
Recital F
Recital F
F. whereas abolition of exequatur will necessitate the introduction of a special review procedure so as to guarantee judgment debtorsshould be effected by providing that a judicial decision qualifying for recognition and enforcement under the Regulation which is enforceable in the Member State in which it was given is enforceable throughout the EU, this should be coupled with a special review procedure available to the party against whom enforcement is sought so as to guarantee an adequate right of recourse to the courts of the State of enforcement in the event that theat party wishes to contest enforcement; on the grounds set out in the Regulation, whereas it will be necessary to ensure that steps taken for enforcement before the expiry of the time- limit for applying for review are not irreversible,
Amendment 3 #
Motion for a resolution
Recital I a (new)
Recital I a (new)
Ia. whereas the rules of the New York Convention are minimum rules and the law of the Contracting States may be more favourable to arbitral competence and arbitration awards,
Amendment 4 #
Motion for a resolution
Recital I b (new)
Recital I b (new)
Ib. whereas, moreover, a rule providing that the courts of the Member State of the seat of the arbitration should have exclusive jurisdiction could give rise to considerable perturbations,
Amendment 5 #
Motion for a resolution
Recital I c (new)
Recital I c (new)
Ic. whereas it appears from the intense debate raised by the proposal to create an exclusive head of jurisdiction for court proceedings supporting arbitration in the civil courts of the Member States that the Member States have not reached a common position thereon and that it would be counterproductive, having regard to world competition in this area, to try to force their hand,
Amendment 6 #
Motion for a resolution
Recital I d (new)
Recital I d (new)
Id. whereas the various national procedural devices developed to protect arbitral jurisdiction (anti-suit injunctions so long as they are in conformity with free movement of persons and fundamental rights, declaration of validity of an arbitration clause, grant of damages for breach of an arbitration clause, the negative effect of the 'Kompetenz- Kompetenz principle', etc. must continue to be available and the effect of such procedures and the ensuing court decisions in the other Member States must be left to the law of those Member States as was the position prior to the judgment in West Tankers,
Amendment 7 #
Motion for a resolution
Recital J a (new)
Recital J a (new)
Ja. whereas third parties may be bound by a choice-of-court agreement (for instance in a bill of lading) to which they have not specifically assented and that this may adversely affect their access to justice and be manifestly unfair and whereas, therefore, the effect of choice-of-court agreements in respect of third parties needs to be dealt with in a specific provision of the Regulation,
Amendment 9 #
Motion for a resolution
Recital L a (new)
Recital L a (new)
La. whereas, as regards provisional measures, the Denilauer case-law should be clarified by making it clear that ex parte measures can be recognised and enforced on the basis of the Regulation provided that the defendant has had the opportunity to contest them,
Amendment 10 #
Motion for a resolution
Recital L b (new)
Recital L b (new)
Lb. whereas it is unclear to what extent protective orders aimed at obtaining information and evidence are excluded from the scope of Article 31 of the Regulation,
Amendment 12 #
Motion for a resolution
Paragraph 1
Paragraph 1
1. Calls for the requirement for exequatur to be abolished, but considers that this must be balanced by stringent safeguards designed to protect the rights of the judgment debtor; takes the view that provision will have to be made for a special review procedure conducted a posteriori on the judgment debtor’s applicparty against whom enforcement is sought; takes the view that provision must be made for a review procedure available on the application of the party against whom enforcement is sought to the court indicated in the list in Annex III to the Regulation; considers that that review should be based on the criteria set out in Articles 34 and 35 of the Regulation; further considers that an application should be able to be made to a judge even before any steps are taken by way of enforcement and that if that judge rules that the application is based on serious grounds, he or she should refer the matter to the court indicated in the list in Annex III for review on the basis of the criteria set out in Articles 34 and 35 of the Regulation;
Amendment 28 #
Motion for a resolution
Paragraph 9
Paragraph 9
9. Takes the view that the questions posed by the relationship between arbitral and judicial proceedings must be thoroughly reflected upon in a separate review and that, until such time as review has been conducted, the idea of an exclusive head of jurisdicConsiders that Article 1(2)(d) of the Regulation should make it clear that not only arbitration proceedings, but also judicial procedures ruling on the validity or extent of arbitral competence as a principal issue or as an incidental or preliminary question are excluded from the scope of the Regulation; for court proceedings supporting arbitration in the civilurther considers that a paragraph should be added to Article 31 providing that a judgment shall not be recognised if, in giving its decision, the courts of in the Member States and a corresponding obligation on the courts of origin has, in deciding a question relating to the validity or extent of an arbitration clause, disregarded a rule of the law of arbitration in other Member States to transfer parallel litigation to the courts in which enforcement is sought, unless the judgment of theat Member State where the arbitration takes place should not be contemplatproduces the same result as if the law of arbitration of the Member State in which enforcement is sought had been applied;
Amendment 29 #
Motion for a resolution
Paragraph 10
Paragraph 10
10. Considers that, in order to deal with the West Tankers question, the arbitration exception should be clarified in a recit this should al so as to make it clear that proceedings brought in breach of arbitration clauses and judgments not given by the competent court holding that arbitration clauses are invalid fall outside of the scope of the Regulation and are therefore not enforceable in other Member States; further takes the view that it would be helpful for the 'Kompetenz-Kompetenz principle' to be endorsbe clarified in a recital;
Amendment 31 #
Motion for a resolution
Paragraph 11 a (new)
Paragraph 11 a (new)
11a. Considers that the Regulation should contain a new provision dealing with the opposability of choice-of-court agreements against third parties; takes the view that such provision could provide that a person who is not a party to the contract will be bound by an exclusive choice-of-court agreement concluded in accordance with the Regulation only if: (a) that agreement is contained in a written document or electronic record; (b) that person is given timely and adequate notice of the court where the action shall be brought; (c) in contracts for carriage of goods, the chosen court is (i) the domicile of the carrier; (ii) the place of receipt agreed in the contract of carriage; (iii) the place of delivery agreed in the contract of carriage, or (iv) the port where the goods are initially loaded on a ship or the port where the goods are finally discharged from a ship. It should further be provided that, in all other cases, the third party may bring an action before the court otherwise competent under the Regulation if it appears that holding that party to the chosen forum would be blatantly unfair;
Amendment 46 #
Motion for a resolution
Paragraph 20
Paragraph 20
20. EndorsesBelieves that the rule in Shevill needs to be qualified; considers, howevertherefore, that, in order to mitigate the alleged tendency of courts in certain jurisdictions to accept territorial jurisdiction where there is only a weak connection with the country in which the action is brought, a recital should be added to clarify that, in principle, the courts of that country should accept jurisdiction only where there is a sufficient, substantial or significant link with that country; considers that this would be sufficiently protective of freedom of expression, the right to a private life and the right to one’s good reputationhelpful in striking a better balance between the interests at stake;
Amendment 49 #
Motion for a resolution
Paragraph 20 a (new)
Paragraph 20 a (new)
Amendment 50 #
Motion for a resolution
Paragraph 20 b (new)
Paragraph 20 b (new)
20b. Believes that the Regulation should establish jurisdiction for such measures at the courts of the Member State where the information or evidence sought is located, in addition to the jurisdiction of the courts having jurisdiction with respect to the substance;
Amendment 51 #
Motion for a resolution
Paragraph 20 c (new)
Paragraph 20 c (new)
20c. Finds that "provisional, including protective measures" should be defined in a recital in the terms used in the St Paul Dairy case;
Amendment 52 #
Motion for a resolution
Paragraph 20 d (new)
Paragraph 20 d (new)
20d. Considers that the distinction drawn in Van Uden between cases in which the court granting the measure has jurisdiction over the substance of the case and cases in which it does not, should be replaced by a test based on the question of whether measures are sought in support of proceedings issued or to be issued in that Member State or a non-Member State (in which case the restrictions set out in Article 31 should not apply) or in support of proceedings in another Member State (in which case the Article 31 restrictions should apply);
Amendment 53 #
Motion for a resolution
Paragraph 20 e (new)
Paragraph 20 e (new)
20e. Urges, that a recital be introduced, in order to overcome the difficulties posed by the requirement recognised in Van Uden for a “real connecting link” to the territorial jurisdiction of the Member State court granting such a measure, to make it clear that in deciding whether to grant, renew, modify or discharge a provisional measure granted in support of proceedings in another Member State, Member State courts should take into account all of the circumstances, including (i) any statement by the Member State court seised of the main dispute with respect to the measure in question or measures of the same kind, (ii) whether there is a real connecting link between the measure sought and the territory of the Member State in which it is sought, and (iii) the likely impact of the measure on proceedings pending or to be issued in another Member State;
Amendment 54 #
Motion for a resolution
Paragraph 20 f (new)
Paragraph 20 f (new)
20f. Rejects the Commission's idea that the court seised of the main proceedings should be able to discharge, modify or adapt provisional measures granted by a court from another Member State since this would not be in the spirit of the principle of mutual trust established by the Regulation; considers, moreover, that it is unclear on what basis a court could review a decision made by a court in a different jurisdiction and which law would apply in these circumstances, and that this could give rise to real practical problems, for example with regard to costs;