Appunti Introduction to European and International Law

CHAPTER III - RECOGNITION AND ENFORCEMENT

SECTION 1 - Recognition

Article 361. A judgment given in a Member State shall be recognized in the other Member States without any special procedure being required - latest achievement, unpredictable until 20 years ago. Ex. an Italian sentence is automatically recognized in any other EU member state.

SECTION 2 - Enforcement

Article 39. A judgment given in a Member State which is enforceable in that Member State shall be enforceable in the other Member States without any declaration of enforceability being required - enforcement means giving legal consequence to a sentence, so a sentence is not only recognized in another country but also has legal consequences there.

SECTION 3 - Refusal of recognition and enforcement (forse non da fare)

Article 45. On the application of any interested party, the recognition of a judgment shall be refused:

1. if such recognition is manifestly contrary to public policy (ordre public) in the Member State addressed;
2. ...

where the judgment was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;

if the judgment is irreconcilable with a judgment given between the same parties in the Member State addressed;

if the judgment is irreconcilable with an earlier judgment given in another Member State or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State addressed;

Article 46 (forse non da fare)

On the application of the person against whom enforcement is sought, the enforcement of a judgment shall be refused where one of the grounds referred to in Article 45 is found to exist

*case 61Seller

If seller starts actions then Munich (delivery) or Bangkok (buyer domiciled). If Buyer starts actions it is Bangkok (where agreement was formed)

627: Arbitration- Decision of (State) Judges / (State) Courts / (State) Tribunals = Sentence (decisions abiding the parties)- Decision of Arbitrators / Arbiters / Arbitral Courts / Arbitral Tribunals = (Arbitral) Award (decisions issued by courts not under the control of the sovereign states)

Arbitration is a form of alternative dispute resolution (ADR) for settling disputes outside the courts - It's an alternative mean for setting divergences and issues on contractual relationships. Decisions that settle divergences and these decisions are taken outside official state courts. - alternative to State Courts.

Arbitration

Arbitration is a legal technique for the resolution of disputes outside the courts, wherein the parties of a dispute refer it to one or more persons (the "Arbitrators", "Arbiters" or "Arbitral Tribunal"),

by whose decision (the "Award") they agree to be bound. Arbitration is not compulsory - only if the parties agree that something decides the dispute among them; if they don't agree to refer their case to arbitrators, Award can't be taken. (vs. Sentences: if you don't appear in front of the Court you may be sentenced by default without having to go there, but even in that case the judge has the authority to decide the sentence and this sentence will harm you. If you don't accept the litigation, the decision can still harm you. If you want or don't want it to be settled, the judge still has power over you.)

An Award is legally binding on the parties and is enforceable in the courts after its recognition. Upon recognition the Award is considered to have the same value of a Sentence. - if the Award is converted into a sentence, it can be enforced. Ex: I ask 10k euros because I delivered a car but the buyer hasn't paid me, with a sentence from

A judge the buyer HAS to give me the money. If there is an Award I first transform it into a sentence.

As Arbitrators and their procedure are not under the direct control of any state, Arbitration is within the alternative dispute resolution (ADR) instruments.

Arbitrators are not necessarily judges, but anyone with the trust of the parties can be an arbitrator because it is not under the control of the Courts. It is a private decision that can be tailor-made by the parties.

Arbitration was invented by the Romans but it boosted during the Renaissance when merchants were acting through several Jurisdiction because they were importing goods from a country and these went through different countries before reaching their destination, so they needed a fast mean for settling the disputes. So they started to refer to other merchants to settle disputes, so beyond the power of the states. At the time there was no turning the Award into a sentence but if you didn't follow the decision of the Arbitrator

63Awards can be domestic or international. You can have your reasons to decide upon Arbitration rather than Jurisdiction, yet the structure is the same. Both domestic and international have ideally the same features and procedures and advantages and disadvantages.

Advantages and Disadvantages

General Advantages:

• expertise: arbitration allows the parties to choose their own judges and this is useful when the subject matter of the dispute is highly technical – parties may choose the best arbiter for their decision or the one with the best knowledge
• speed: arbitration is generally faster than litigation in courts - usually it shall be concluded within 6 months.
• confidentiality: arbitral proceedings and the award are non-publicly available – ex. the award is about a new product not yet on the market so if

You petition the Court, everyone may find your secrets while Arbitration is confidential so secret.

Language: In arbitral proceedings, the language of arbitration may be chosen by the parties, whereas in courts the official language of the country shall be used – the parties have full power in determining this and in an international perspective this is an important feature.

General Disadvantages:

• Costs: Arbitration has higher costs when compared to litigation in courts - only who starts the Arbitration process has to pay, NOT both parties.
• Arbitrability: Limited subject matters are capable of settlement under arbitration - for example, topics such as children and family cannot be resolved through arbitration.
• Appeal: An arbitral award has limited possibilities of revision – in front of State Courts, you have three phases of decision while in Arbitration you can't revise.

Fundamental Advantage:

In international commerce, international arbitration could be the sole option.

For settling a dispute between parties domiciled in non-cooperative countries. For example, a commerce between North Korea and the USA, the parties wouldn't recognize the jurisdiction of the other, so you have to use Arbitration.

Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) (the "New York Convention") 1958 - Cold war - western and eastern block so many non-cooperative countries and arbitration was the only option. Ever since this Convention has been regulating Arbitration.

The Convention seeks to provide common legislative standards for the recognition of arbitration agreements and court recognition and enforcement of foreign and non-domestic arbitral awards - the goal is to provide that international Awards are recognized and enforced in every state as domestic Awards so that decisions may not be dismissed.

The Convention's principal aim is that foreign and non-domestic arbitral awards will not be discriminated.

The main aim of the Convention is to ensure that arbitration awards are recognized and enforceable in the same way as domestic awards in all countries. This helps to establish common legislative standards and minimize cultural and procedural differences. Once an award is obtained, there should be no significant barriers to enforcement.

Another aim of the Convention is to require courts to respect arbitration agreements and refrain from intervening in matters that have been voluntarily referred to arbitration. This helps to uphold the parties' agreement to resolve their dispute through arbitration.

It is important to note that Conventions are compromises between delegations of different countries, and as such, they may have slight differences in their bilingual texts. However, both versions are valid.

very concise and condensed, each word relates to wide legal concepts.

This Convention is made of just 7 Articles.

Article I

1. This Convention shall apply to the recognition and enforcement of arbitral awards made in the territory of a State other than the State where the recognition and enforcement of such awards are sought, and arising out of differences between persons, whether physical or legal. It shall also apply to arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought.

it applies to international Arbitration so that it allows to recognize as domestic awards, foreign Awards (taken in another country). Ex. an Award in Scotland is considered foreign in England (same state but different territory)

2. The term "arbitral awards"