Summary of all cases and lectures with table of contents that makes each section easily accessible for writing the exam paper. I was able to attain a grade 9 in the exam using these notes to study from!
1. General Principles of Civil Litigation
1.1 Independence & Impartiality of the Judiciary
Kleyn and others v Netherlands [independence]
Micallef v Malta [impartiality]
1.2 The Right to be Heard
Montovanelli
1.3 Prompt Rendition of Justice
Frydlender v France
1.4 Legal Aid
Airey v Ireland [no legal aid]
Steel and Morris v UK [no legal aid]
2. Jurisdiction
2.1 Determining Jurisdiction when defendant is domiciled outside EU
2.2 Determining jurisdiction when defendant is domiciled inside EU [Brussels I recast]
[a] History of Brussels I recast
[b] Structure of Brussels I recast
[c] Applicability of Brussels I recast
[d] Structure of chapter 2 on jurisdiction
CHAPTER 2
I. SECTION 1: General Provisions
-Article 4: Main rule
-Article 5 [1]: The Exceptions [found in sections 2-7]
II. SECTION 2: Special Jurisdiction
-Article 7[1]: Matters relating to contract
-Article 7[2] Tort, delict or quasi delict
=Tort of libel cases
-Shevill v Presse Alliance: Defamatory newspaper article
-eDate Advertising: Defamatory online publication [claimant is natural person]
-Bolagsupplyningen v Svensk Handel: Defamatory online publication [claimant is legal
person]
-Article 8 [1]: More than one defendant
-CDC v Akzo Nobel: Settlement is reached by the defendant whose MS of domicile was
chosen
-Article 8 [3]: Counter claim by claimant
III. SECTION 4: Jurisdiction over consumer contracts
-Article 17, 18 and 19
IV. SECTION 6: Exclusive Jurisdiction
-Article 24 [1] Matters relating to immoveable property
-Article 24[5]: Matters relating to enforcement of judgements
V. SECTION 7: Prorogation of jurisdiction
VI. SECTION 8: Examination of jurisdiction
-Article 26: Consumer [defendant] informed of right to contest jurisdiction
-Article 27: Check by the court of its own motion [if other court has excl. jurisdiction]
VII. SECTION 9: Lis pendens
-Article 29: Proceedings on same case and same parties started in different MS courts
CHAPTER 3
I. SECTION 3: Refusal of recognition and enforcement
-Article 45/46: If recognition and enforcement is manifestly contrary to public policy
Krombach v Bamberski: Public policy and breach of rules of jurisdiction
Krombach v Bamberski: Public policy and breach of Art 6 ECHR
3. Arbitration
3.1 Introduction to ADR
3.2 Different types of ADR
-Mediation/conciliation
Alassini et al v Telecom Italia SpA Mandatory out of court settlement procedure & Art.6 ECHR
-Expert determination
-Arbitration
, 3.3 Why arbitrate?
3.4. Arbitral proceedings
I. Cornerstone: agreement to arbitrate
-Arbitration clauses
Mostaza Claro v CMM: Arbitration clause in consumer contract
II. Applicable legal regime for arbitration
III. Ad hoc versus institutional arbitration
IV. Composition of arbitral tribunal
V. The course of arbitral procedure
VI. The award
VII. Remedies
VIII. Setting aside proceedings
4. Litigation in the Netherlands [Netherlands Commercial Court]
4.1 Dutch Civil Court Procedure
4.2 Language of proceedings in Netherlands
4.3 Netherlands Commercial Court [NCC]
Article 1.3.1 NCCP
5. Recognition & Enforcement
5.1 Introduction to enforcement in Netherlands
5.2 Court Judgements
5.2.1 Dutch Court Judgements
5.2.2 Foreign Court Judgements
A. EU Court Judgement
-Brussels I recast
B. Non-EU Court Judgement
[1] Enforcement Treaty
[2] No Enforcement Treaty
Dutch Supreme Court: Gazprombank
5.3 Arbitral Award
5.3.1 Dutch Arbitral Award
5.3.2 Foreign Arbitral Award
Steps of Private Law Court Litigation
1. Step 1: Which court [jurisdiction]
2. Step 2: What procedural rules [lex loci fori] and which substantive law is applicable?
-We do not go into detail about this step in this: differ from country to country
3. Step 3: How to enforce a foreign judgement [recognition and enforcement]
,1. Introduction to General Principles of Civil Litigation
Introduction to commercial dispute resolution
Disputes arising from private law
-Private law: property law, contract & tort law
Outside scope: inheritance law, family law, administrative law, criminal law
Some case-law arises from these fields of law
-Airey v Ireland: Dispute arises in family law
-Kleyn v Netherlands: Dispute arises in administrative law
-Kromach v Bamberski: Dispute arises in criminal law
However, the case law demonstrates the general principles of litigation
Steps of Private Law Court Litigation
Step 1: Which court [jurisdiction]
Step 2: What procedural rules [lex loci fori] and which substantive law is applicable?
Step 3: How to enforce a foreign judgement [recognition and enforcement]
UNIDRIOT Principles of Transnational Civil Procedure
The procedural rules for private law litigation
-National approach to litigation: precise procedure of litigation are different for every country
-Very different between civil law and common law countries
UNIDROIT: bridge gap between common and civil law systems
- Soft law so not invoked in national court
-Used by govts to develop the national systems of civil procedure
-Most of these principles are maintained in the EU
-Principles are on a very ‘high level’ so not very detailed in order to bridge the gap
Principle 9: Structure of Civil Proceedings
Main hearing model: Applied generally to civil procedure throughout the world
[1] Pleading phase
-Presenting claims of claim, defence of defendant and principal evidence
-Usually all given in writing & filed with court
[2] Interim phase
-Mainly oral hearings about agenda setting [addressing procedural issues and taking evidence
-Do we need more witnesses, experts etc
[3] Final phase
-Hearing: taking more evidence [if needed] and concluding arguments
...Parties to the dispute are done and now it is up to judge [or jury] to render the verdict…
Hard Law versions of the UNIDROIT principles
-Can be invoked in national court
Article 6 ECHR: Right to a Fair Trial
1. Independence & impartiality of the judiciary
2. The right to be heard
3. Prompt rendition of justice
Article 6 ECHR: Right to a Fair Trial
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is
entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal
established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or
part of the trial in the interests of morals, public order or national security in a democratic society, where the
interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly
necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of
justice.
,1.1 Independence & Impartiality of the Judiciary
Principle 1 UNIDROIT
Independence: Regarding other state powers [legislator, executive etc]
Kleyn et al v Netherlands [2003]
Facts:
Administrative law procedure
New railroads to be built & proposal for a law
According to Dutch constitutional law when the government [executive] wants to propose a bill of
law it has to first seek advice of Council of State
All councillors are appointed by Royal Decree & appointments are for life
Same council of state is also the highest court in administrative affairs
There are two benches within the council [advisory bench] and judiciary bench
The advisory bench gave the advice for the railroad bill
Dutch citizens objected to the railroads that went through their back gardens
They took their claim to the council of state in its judiciary capacity
Claims were rejected
Alleged Violation:
Article 6[1]: Denied a fair trial because council of state was not independent because the same council
of state had advised on bill proposed to parliament and taken the decision to build the new railroads
Judgement:
Test to determine if a judiciary is independent:
1. Who appoints the judges?
2. How long are judges appointed for?
-If a judge could be fired easily by govt or parliament then they are not independent from
govt/parliament [fear of being fired]
Do the two functions of the CoS cause issues for independence of judiciary:
Decision about the exact routing of the railroads was not part of the advice that the
council of state gave
Therefore, in its judicial and advisory function it was not looking at the same decision
In the Neths that highest judiciary in admin affairs is the same institution as the advisory
board to the govt
Result: No violation of Article 6[1]
Impartiality: Regarding the parties to a trial
Micallef v Malta [2009]
Facts
Two neighbours in an apartment block
Upper neighbour used to hang out washing to dry over balcony
Lower neighbour said this was infringing his property rights
Reached CoA in Malta but president was a brother of the lawyer that the claimant [lower neighbour] had
represented [direct family link between lawyer of one party and most important judge on bench]
Alleged Violation:
Article 6[1]: Denied a fair trial because of the impartiality of the judge
Judgement
The court uses two tests:
Subjective test: Judge expressed himself or behaved in an impartial way [not often the case]
Objective test: Facts that give rise to doubts that are objectively justified as to impartiality of the
judge [more important]
Application to case:
-Objective test: Close family ties between the opposing party’s advocate and the Chief Justice sufficed to
objectively justify fears that the presiding judge lacked impartiality
, Result: Violation of Article 6[1]
1.2 The Right to be heard
Principle 5 UNIDROIT: Most fundamental principle of civil procedure [also relevant for arbitration]
If judge/jury is to make a decision in private law case he needs to listen to all parties
If one party says something orally in court the other party must be able to react orally
Montovanelli [1997]
[Para 33]
‘Each party must in principle have the opportunity not only to make known any evidence needed for his claims to
succeed, but also to have knowledge of and comment on all evidence adduced or observations filed with a view to
influence the court’s decision (…)’
1.3 Prompt Rendition of Justice
Principle 7 UNIDROIT
Within ‘a reasonable time’ judge should render a verdict
What is ‘reasonable?’ No general answer; many aspects taken into account according to ECHR
[1] Complexity of the case
[2] Conduct of the party/partiesdelaying? Increases time allowed by judge
[3] Conduct of the relevant authoritiesdelaying? Increases time allowed by judge
[4] Interest of the party/parties [whats at stake?]More at stake longer reasonable time may be
Frydlender v France [2000]
Facts:
Administrative proceedings
11 years for French court to determine claim of Frydlander against govt
Civil servant whose contract was not renewed
In this case 11 years was too long but there are cases that can easily stretch out over 11 years or
more
Alleged Violation
Article 6[1]: Denied a fair trial because the length of proceedings from 1986-1995
Judgement:
Reasonableness test
1. Complexity of the case
2. Conduct of the applicant [to delay proceedings]
3. Conduct of the relevant authorities [to delay proceedings]
4. What was at stake for the applicant in the dispute [more at stake the longer the time allowed]
Application of reasonableness test
1. Case is not complex
2. Conduct of applicant did not increase length of proceedings
3. Job dismissal so in view of what is at stake [livelihood] he needs a prompt decision
Result: Violation of Article 6[1]
1.4 Legal Aid
Airey v Ireland [1979]
Facts:
Family law procedure
Mrs Airey wants a decree of judicial separation on grounds of Mr Aireys physical & mental cruelty to
her and their children
In Ireland divorce does not exist
However, spouses may be relieved from the duty of cohabiting by a court decree of judicial
separation
For a court decree of judicial separation petitioner must produce evidence of one of three
matrimonial offenses
[1] Adultery
[2] Cruelty
[3] Unnatural practises
, Decrees of judicial separation are only obtainable in Court
The parties may conduct their case in person or be represented by a lawyer
Legal aid is not available in Ireland for decree of judicial separation or any civil matters
Weak personal financial circumstances mean she is not able to afford a lawyer
Alleged Violation:
Article 6 [1] ECHR: Denied a fair trial because she is not given legal aid
Judgement:
-Technically she can still access the court because she can present case without a lawyer
‘Effective’ right of access to court test
-Can she effectively present case without a lawyer?
-Marital disputed entail emotional involvement unlike the objectivity of a lawyer
-Cannot effectively present case without lawyer, so no ‘effective’ right of access to court
Result: Violation of Article 6 [1] ECHR
Steel and Morris v UK [2005]
Facts:
Mrs Steel worked at a bar and Mr Morris was unemployed
They were both part of a group called London Greenpeace
London Greenpeace made and distributed an anti-McDonalds leaflet
McDonalds bought defamation [tort] proceedings against them
This was the longest trial in both UK civil or criminal legal history
No legal aid for defamation proceedings in the UK
Weak financial circumstances means Mrs Steel and Mr Morris are not able to afford a lawyer
Alleged violation
Article 6[1]: Denied a fair trial because they are not given legal aid
Judgement:
‘Effective’ right of access to court test
-Can they effectively present case without a lawyer?
Criteria to look at:
1. What is at stake for the applicant in the proceedings
2. Complexity of the law and procedure
3. Applicant’s capacity to represent himself effectively
Application to the case:
1. What was at stake for the applicants?
-Proceedings are not about a family relationship as with Airey
-However, the applicants were acting to protect their right to freedom of expression
2. Complexity of the proceedings
-The case was factually and legally highly complex
3. Capacity to represent himself effectively
-Neither sporadic help by volunteer lawyers or assistance given by judge could substitute for
actual representation by a lawyer familiar in libel
Result: Violation of Article 6[1]
,2. Jurisdiction
Step 1: Which Court [jurisdiction]
Step 2: What procedural rules [lex loci fori] and which substantive law is applicable?
Step 3: How to enforce a foreign judgement [recognition and enforcement]
Linking last week to this week
Most important principles of litigation
1. Independence and impartiality
2. Right to be heard
3. Right to a prompt rendition of justice
Derived from Article 6 ECHR
-Art. 6 ECHR is a fundamental right: Right of access to court litigation
Waiving Art 6. Right [arbitration]
1. Must be voluntary
2. Must be consensualMake arbitration agreement
3. No jurisdiction issuesIn arbitration agreement you choose place to arbitrate
No ‘voluntary consensus’ to arbitrate
-One party wants to arbitrate and other doesn’t
-Dispute must be resolved by court litigation
Which court has jurisdiction?
Which Court has jurisdiction
Where are the parties domiciled?
Domiciled ≠ Nationality
Category 1: Parties domiciled in same country: no question of international jurisdiction
-Claimant: domiciled in France
-Defendant: domiciled in France
Result: French courts have jurisdiction by way of their national law
Category 2: Parties domiciled in different countries: Defendant is domiciled inside EU [claimant can be too]
Result: Apply Brussels I Recast to determine jurisdiction
Category 3: Parties domiciled in different countries: Defendant is domiciled outside EU [claimant can be too]
Result: Need to take a two-step approach
Step 1: International treaty governing jurisdiction between those two countries?
-Apply the treaty to determine jurisdiction [Could be a treaty similar to Brussels I Recast]
Step 2: No treaty governing jurisdiction between those two countries
-Claimant chooses a court
-The court applies national law to determine if it has jurisdiction
UK & Brexit
Claim filed against defendant domiciled in UK
Before 31st December 2020
-Category 2Apply Brussels I Recast to determine jurisdiction
After 31st December 2020
-Category 3 Take the two-step approach
2.1 Determining Jurisdiction when defendant is domiciled outside EU
Category 3: Not as important in this course because we focus on EU law
Example I: Hypothetical case between USA/Netherlands
,Facts:
Defendant: USA manufacturer of car parts
Claimant: Dutch distributer selling parts manufactured in the USA in the Netherlands
Parts that were delivered by the USA manufacture was defective
Distributor has a claim under the contract with the USA manufacturer
Question of Dispute:
Which court should the Dutch distributor file its claim at?
Solving the case
Step 1: Are the parties domiciled in the same country?
-No, so there is a question of international jurisdiction: apply either category 2/3
Step 2: Where is the defendant domiciled?
-The defendant is domiciled in the USA: apply category 3
Step 3: International treaty governing jurisdiction between the USA and Netherlands?
-No treaty
Step 4: The claimant addresses the Dutch Court
-Dutch Court has to determine if it has jurisdiction by applying Dutch Law
-Could either conclude that it has jurisdiction or that the claimant should file claim with the USA court
Example II: Real case between Netherlands/Nigeria
The Hague Court of Appeal [2 weeks ago]
Facts:
Claimant: A couple of Nigerian farmers
Defendant [s]: Shell Oil Company
-Defendant 1: Mother company: The Royal Dutch Shell Company RDS [domiciled in UK] [case filed when they are still a
member of the EU]
-Defendant 2: Daughter company of RDS which is SPDC [domiciled in Nigeria]
There was oil leaking from a pipeline in Nigeria which damaged the land of the Nigerian farmers who wanted
compensation & an obligation for shell to take measures to prevent oil leaking in the future
Nigerian farmers file claim with Dutch Court for liability of RDS and SPDC
Question of dispute
Does the Dutch Court have jurisdiction?
Solving the Case [plurality of defendants]
Step 1: Are the parties domiciled in the same country?
-No, so there is a question of international jurisdiction
Step 2: Where is the defendant domiciled?
-Defendant 1: RDS Domiciled in UK but had headquarters in Rotterdam [EU]
Result: Applies Brussels I Recast & determines that it has jurisdiction to decide liability of RDS
-Defendant 2: SPDC domiciled in Nigeria [Not EU]
Result: Move onto step 3
Step 3: International treaty governing jurisdiction between Netherlands and Nigeria?
-No treaty
Step 4: The claimant addresses the Dutch Court
-Dutch court has to determine if it has jurisdiction by applying Dutch Law
Article 7 Dutch Code of Civil Procedure
-Where there are a plurality of defendants & the court had jurisdiction regarding one of them [RDS] the
court will have jurisdiction regarding the other defendant if there is sufficient coherence between the
cases & it is effective to decide both cases [defendants] in the same procedure
Applied to the case….
-Coherence: The facts are the same for both cases: oil leakage in Nigeria
-Effective: It is effective to decide both cases together rather than have a case in Netherlands
concerning liability of RDS and case in Nigeria concerning liability of SPDC
Result: Based on Dutch National law Dutch court over SPDC to determine their
liability as well
,2.2 Defendant is domiciled inside EU
Category 2: EU Regulation 1215/2012 [Brussels I recast]
[a] History of Brussels I recast
1968: Brussels Convention
-Not EU law but an ordinary treaty
-The treaty was between all the members of the EU
-Since all EU MSs were a party the ECJ held that it had jurisdiction to apply The Brussels
Convention
-This means there is ECJ case-law based on the Convention not the EU Regulation
1988: Lugano Convention [EU + Norway + Iceland and Switzerland]
-This Convention was parallel to the Brussels Convention
-It is the same as the Convention but it has more parties that are to part of the EU
2001: EU Regulation Brussels I
-Brussels Convention was replaced by the Regulation so it is not EU law
2009: Lugano Convention renewed
2012: EU Regulation Brussels I recast adopted
Consequence of this history
-Some of the older judgements of the ECJ refer to other provisions
-Materially nothing has changed between the Regulation & Convention
Article 4 Regulation= Article 2 Brussels Convention
Article 7 Regulation=Article 5 Brussels Convention
[b] Structure of Brussels I recast
Chapter I: Scope and definitions
Chapter II: Jurisdiction
Chapter III: Recognition and enforcement [in other MSs]
Chapter IV: Authentic instruments and court settlements
Chapter V: General Provisions
Chapter VI-VIII: Specific provisions for different MSs
[c] Applicability of Brussels I recast
1. Substantive applicability:
Article 1 [1]: Civil and commercial matters
Article 1[2]: NOT family law, bankruptcy, social security, arbitration, inheritance law
2. Formal applicability [what it deals with]:
Chapter 2: Jurisdiction
Chapter 3: Recognition and enforcement [in other MSs]
3. Temporal applicability:
Article 66: claims from 10 January 2015
-Prior to this the EU Brussels Regulation I applies
4. Territorial applicability:
27 EU MSs
Exception: Not applicable in Denmark
-However, Denmark has agreements with the EU which makes most of the Regulation applicable in
Denmark aswell
-They are only excluded from a couple of specific provisions in the Regulation which we don’t study
[d] Structure of Chapter 2 on jurisdiction
1. General Provisions
2. Special jurisdiction
3. Jurisdiction in matters of insurance
, 4. Jurisdiction over consumer contracts
5. Jurisdiction over employment contracts
6. Exclusive jurisdiction
7. Prorogation of jurisdiction
8. Examination of jurisdiction
9. Lis pendens
10. Provisional, including protective, measures
CHAPTER 2
I. SECTION 1: General Provisions
Article 4: Main Rule
-The courts of the MS where the defendant is domiciled have jurisdiction
Article 5 [1]: The Exceptions [found in sections 2-7]
-Defendant may be sued in a MS other than where he is domiciled
Two scenarios
[1] Main rule still applies: Alternative jurisdiction
-More MSs that can have jurisdiction because of special provision
-Claimant can choose which to sue in
[2] Main rule is set aside: Exclusive jurisdiction
-MS other than that in which the defendant is domiciled has exclusive jurisdiction
because of special provision
II. SECTION 2: Special Jurisdiction
=Always start with the main rule under Art 4 because this is not set aside by these provisions
-The claimant chooses which court to go to & then it determines if it has jurisdiction
Article 7
These are provisions on alternative jurisdiction
‘A person domiciled in a MS may be sued in anther MS’…....
Art 4 main rule will always still apply
Claimant chooses which court to sue in
[2]: Tort, delict or quasi-delict
‘In the courts for the place where the harmful event occurred or may occur’
Result: The claimant can file before the courts of the MS where the defendant is
domiciled [Art 4 main rule] or ‘in the courts for the place where the harmful event
occurred may occur’
Scenario 1: Jurisdiction for tort
Handelskwekerij G. J. Bier BV v Mines de potasse d’Alsace SA [1976]
Brussels Convention is in place in this case: BUT materially the same
Facts:
Claimant: Bier, a Dutch company domiciled in Netherlands growing vegetables
and using water from the Rhine river
Defendant: Mines de Potasse, French mining company domiciled in France
Bier grows vegetables which are being damaged because the French mining
company is using the Rhine to ditch tons of chlorides causing the salinity [salt]
of the water to increase
Bier [claimant] files claim based on tort in Dutch court against French defendant
for damages
Question of jurisdiction:
Does the Dutch court have jurisdiction? [ECJ has to decide]
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