Content IPRax-Issue 4/2013 (July 2013)

Essays

B. Heiderhoff:
Fictitious service of process and free movement of judgments 309

When judgments or court orders are to be enforced in other member states, it is an essential prerequisite that the defendant was served with the document which instituted the proceedings in sufficient time (Article 34 Nr. 2 Brussels I Regulation).

When the service was conducted in a fictitious manner, the issue of service “in sufficient time” causes friction. It is acknowledged that the measure for timeliness – or, in such a case, more accurately for rightfulness – is not set by the state of origin, but by the recognising state. However, if the criteria are taken from the autonomous procedural rules of the recognising state, as has occasionally happened, minor differences between national laws can cause unreasonable obstacles to the recognition of titles.

In order to fulfill the aim of the Brussels I Regulation, to improve the free movement of judgments and strengthen mutual trust, the criteria must, therefore, not be taken from the national rules of the recognising state, but ought rather to resemble the standards valid for breaches of public policy. Only such a “mildly Europeanized” standard for fictitious services may avoid a trapping of the claimant who, trusting in the decision of the court of origin, is then surprised by the differing measures of the recognising state.
H. Schack:
What remains of the renvoi? 315
The renvoi is one of the main principles of classic private international law. The renvoi doctrine aims for the conformity of decisions in different jurisdictions, which may also facilitate the recognition of the decision abroad. With this goal in mind the following article gives an overview of the acceptance of renvoi in different national jurisdictions. In addition, the article evaluates and criticizes the tendency to push back the doctrine of renvoi in international treaties and in EU private international law. Especially in the former domain of renvoi, i.e. the law of personal status, family and inheritance law, the European conflict rules are dominating more and more and preventing the conformity of decisions in relation to third countries. As a means to achieve this decisional harmony the renvoi remains useful, it shows the cosmopolitan attitude of classic private international law.

Decisions review

H. Wais:
Hospital contracts and Place of Performance Jurisdiction under § 29 ZPO (German Code of Civil Procedure) 320
This article comments on a recent decision of the German Federal Supreme Court, in which the court ruled that, for payment claims from a hospital contract, § 29 ZPO conferred jurisdiction upon the courts in the locality of the hospital. The Court decided that, not only for the purposes of § 29 ZPO, the place of performance of the monetary obligation from a hospital contract is the creditor’s seat and not that of the debtor (in contrast to what is generally accepted for monetary obligations). This article will discuss the implications of this decision, and will consider the possibility of a conceptual “reversal” of § 29 ZPO.
M. Würdinger:
Der ordre public-Vorbehalt bei Verzugsaufschlägen im niederländischen Arbeitsrecht (OLG Düsseldorf, S. 349) 322
The substantive ordre public rarely plays a role when it comes to recognition and enforcement of foreign legal decisions. This article deals with such a case. It is about the declaration of enforceability of a Dutch court decision in Germany. The judgment in question decided the applicant’s claim for unpaid wages plus a statutory increase of 50% as a penalty for late payment in his favour. The Higher Regional Court of Düsseldorf (OLG) rightly interpreted Art. 34 EuGVVO (Regulation (EC) No 44/2001) narrowly and refused to consider this decision as being comparable to an award of punitive damages.
U.P. Gruber:
Die Vollstreckbarkeit ausländischer Unterhaltstitel – altes und neues Recht (OLG München, S. 351, OLG Stuttgart, S. 351 und OLG Karlsruhe, S. 354) 325
For a maintenance creditor, the swift and efficient recovery of a maintenance obligation is of paramount importance. In the Brussels I Regulation – which until recently was also applicable with regard to maintenance obligations – and in various conventions there are procedures for the declaration of enforceability of decisions. In these procedures, the courts have to ascertain whether there is a maintenance claim covered by the Regulation or the convention and whether there are reasons to refuse recognition of the foreign decision. In the new Regulation (EC) No 4/2009 on maintenance obligations however, a declaration of enforceability of decisions is no longer required, provided that the decision was given in a Member State bound by the Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations. In this case, a decision on maintenance obligations given in a Member State is automatically enforceable in another Member State. The article discusses recent court decisions on the declaration of enforceability in maintenance obligations. It then examines the changes brought about by the Regulation (EC) No 4/2009 on maintenance obligations. Weighing the interests of both the creditor and the debtor, it comes to the conclusion that the abolition of the above-mentioned procedures is fully justified.
W.-G. Ringe:
Secondary proceedings, forum shopping and the European Insolvency Regulation 330
The German Federal Supreme Court held in a recent decision that secondary proceedings according to Article 3(2) of the European Insolvency Regulation cannot be initiated where the debtor only has assets in a particular country. The requirements for an “establishment” go beyond this and require an economic activity with a “minimum of organisation and certain stability”. This decision stands in conformity with the leading academic comment and other case-law. Nevertheless, the decision is a good opportunity to stress the importance of secondary proceedings and their function to protect local creditors. This is particularly true where the secondary proceedings are initiated (as here) in the context of a cross-border transfer of the “centre of main interests” (COMI) of the debtor. The ongoing review of the European Insolvency Regulation should respond to this problem in one of the regulatory options provided.
M. Brinkmann:
Ausländische Insolvenzverfahren und deutscher Grundbuchverkehr (OLG Düsseldorf, S. 358) 333
Art. 16 EIR provides for the automatic recognition of insolvency proceedings which have been commenced in another member state. The recognition of insolvency proceedings pertains not only to the debtor’s power with respect to the estate, but also to his procedural position as well as to questions regarding company law or the law of land registries. The decision rendered by the OLG Düsseldorf (March 2, 2012) illustrates that these consequences are easily ignored in the routine of everyday legal life as long as courts and parties have difficulties in accessing reliable information as to the status of foreign proceedings. The existing deficits in terms of access to information regarding foreign insolvency proceedings may thwart the concept of automatic recognition. Hopefully, the coming reform of the EIR will address this issue (see proposed Art. 22 EIR in COM (2012) 744 final).
K. Siehr:
Equal Treatment of Children of Unmarried Parents and the Law of Nationality 336
Der Europäische Gerichtshof für Menschenrechte (EGMR) hat in der Entscheidung vom 11.10.2011 A child of unmarried parents acquires nationality of Malta only if the child is recognized by the Maltese father and legitimized by marriage or court decision. The European Court of Human Rights decided that this provision violates the European Convention of Human Rights, especially Article 8 on the right of family life and Article 14 on non-discrimination. There are doubts whether the decision is correct. A more careful phrasing of Maltese law could avoid the violation of the Convention. Or is the decision of the European Court of Human Rights its step further towards a human right for nationality?
Prof. Dr. Dr. h.c. Fritz Sturm:
Forfeiture of the choice of surname: The European Court of Human Rights compels the Swiss Federal Court to set aside its former judgment 339
The Swiss Federal Court, 24 May 2005, did not authorize foreign husbands to have their surname governed by their national law (s. 37 ss. 2 Swiss Private International Law Act) when they have previously chosen to take the wife’s surname as the family name, situation which could not have occured if the sexes had been reversed. In fact, in this case the husband’s surname would automatically become the family name and the wife could choose to have her surname governed by her national law. For the Court of Strasburg this difference in treatment is discriminatory (violation of art. 14 in conjunction with art. 8 ECHR). The Swiss Federal Court has therefore been compelled to set aside its former judgment.

Reviewed decisions

22, 23 EuGH, OLG Düsseldorf 15.3.2012, 3.2.2012 Rs. C-292/10, I-3 W 191/11 Fiktive Zustellung und Titelmobilität [B. Heiderhoff, S. 309] 341
24 BGH 8.12.2011 III ZR 114/11 Erfüllungsortszuständigkeit nach § 29 ZPO bei Krankenhausaufnahmeverträgen [H. Wais, S. 320] 347
25 OLG Düsseldorf 4.4.2011 I-3 W 292/10 Der ordre public-Vorbehalt bei Verzugsaufschlägen im niederländischen Arbeitsrecht [M. Würdinger, S. 322] 349
26, 27, 28 OLG München, OLG Stuttgart, OLG Karlsruhe 12.1.2012, 21.12.2011, 6.12.2011 12 UF 48/12, 17 UF 276/11, 8 W 34/11 Die Vollstreckbarkeit ausländischer Unterhaltstitel – altes und neues Recht [U.P. Gruber, S. 325] 351
29 BGH 8.3.2012 IX ZB 178/11 Sekundärinsolvenzverfahren nach der Europäischen Insolvenzverordnung [W.-G. Ringe, S. 330] 356
30 OLG Düsseldorf 2.3.2012 I-3 Wx 329/11 Ausländische Insolvenzverfahren und deutscher Grundbuchverkehr [M. Brinkmann, S. 333] 358
31 EGMR 11.10.2011 n° 54124/09 Gleichbehandlung von Kindern unverheirateter Eltern im Staatsangehörigkeitsrecht [K. Siehr, S. 336] 360
32 OGH 19.1.2012 2 Ob 210/11p Zuständigkeit des Gerichts am Unfallort für Direktklage des Sozialversicherungsträgers gegen den Haftpflichtversicherer des Schädigers aus übergegangenem Recht [D. Looschelders, S. 370] 364
33 OGH 16.9.2011 9 ObA 65/11s Österreichisches Arbeitsvertragsstatut und deutsches Betriebsverfassungsrecht – intertemporale Dimensionen ausländischer Eingriffsnormen [C. Thomale, S. 375] 366

View to abroad

D. Looschelders:
Jurisdiction of the Courts for the Place of Accident in case of a Recourse Direct Action by a Social Insurance Institution against the Liability Insurer of the Tortfeasor 370
In the present judgement the Austrian High Court (OGH) deals with the question whether a social insurance institution can sue the liability insurer of the tortfeasor in the courts for the place where the harmful event occurred. The OGH comes to the conclusion that such a jurisdiction is granted at least by Article 5 no 3 Brussels I Regulation. The problematic issue whether the priority provision of Article 11 (2) read together with Article 10 s. 1 Brussels I-Regulation applies, is left undecided. In the decision Vorarlberger Gebietskrankenkasse the European Court of Justice has held that the social insurance institution cannot take a recourse direct action against the liability insurer under Article 11 (2) read together with Article 9 (1) (b) Brussels I Regulation. According to the opinion of the author, jurisdiction in such cases shall generally not be determined by Chapter II Section 3 of the Brussels I Regulation. Therefore, Article 11 (2) read together with Article 10 s. 1 Brussels I Regulation is inapplicable, too. In consequence, contrary to the opinion of the OGH, the social insurance institution cannot be regarded as an injured party in terms of Article 11 (2) Brussels I-Regulation.
M. Wietzorek:
On the Recognition of German Decisions in Albania 373
There is still no established opinion as to whether the reciprocity requirement of § 328 Sec. 1 No. 5 German Civil Procedure Code is fulfilled with regard to Albania. A decision of the High Court of the Republic of Albania dated 19 February 2009 documents that the Court of Appeals of Durrёs, on 5 December 2005, recognized two default judgments by which the Regional Court of Bamberg had ordered an Albanian company to pay two amounts of money to a German transport insurance company. One single court decision may not be sufficient to substantiate that there is an established judicial practice. Yet the reported decision appears to be the only one available in the publicly accessible database of the High Court dealing with the recognition of such foreign default judgments by which one of the parties was ordered to pay an amount of money.
C. Thomale:
Conflicts of Austrian individual labour law and the German law of the works council – intertemporal dimensions of foreign overriding mandatory provisions 375
The Austrian Supreme Court (Oberster Gerichtshof) recently held that the cancellation of an individual employment contract between a German employer and an Austrian employee posted in Austria was valid despite the fact that the employer failed to hear his German works council properly beforehand. The case raises prominent issues of intertemporal conflicts of laws, characterization of the mentioned hearing requirement and the applicability of foreign overriding mandatory provisions, which are discussed in this article.
S. Corneloup:
Application of the escape clause to a contract of guarantee 381
The French Cour de cassation specifies how to apply the escape clause of Art. 4 n° 5 of the Rome Convention to a contract of guarantee. The ancillary nature of guarantees leads national courts often to the application of the law governing the main contract, on the basis of a tacit choice of law or on the basis of the escape clause. The latter is to be used very restrictively, according to the Cour de cassation. It is necessary to establish first that the ordinary connecting factor, designating the law of the habitual residence of the guarantor, is of no relevance in the examined case. Only after this step, the courts can examine the connections existing with another State. This restrictive interpretation adds a condition to the text that seems neither necessary nor appropriate.

Information

O. Heinrich/E. Pellander:
Das Berliner Weltraumprotokoll zum Kapstadt-Übereinkommen über Internationale Sicherungsrechte an beweglicher Ausrüstung 384
S. Leible:
Hannes Unberath † 391

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