INTERNATIONAL LAW: CONFLICT OF LAWS: FAMILY LAW PART-3

BRUSSELS REGULATION

Scope: The Brussels Regulation applies to the recognition and enforcement all judgments in civil and commercial matters given by courts of EU member states. The identical Lugano Convention applies to the same judgments from courts in Iceland, Norway and Switzerland. (See Conflict of laws: jurisdiction for a discussion of the scope of the Regulation and Convention in general.) The Regulation is not restricted to final judgments ordering the payment of money but also covers non-money judgments and interim judgments, such as for final or interim injunctions.

Recognition: Article 33 provides that all judgments covered by the Regulation shall be recognised in all other member states without any special procedure being required. Once recognised, a foreign judgment should be afforded the same effectiveness and authority as a judgment as it has in the member state of origin: Hoffmann v Krieg (145/86) [1988] E.C.R. 645. The member state recognising it should make an order which most closely resembles the order which would be made in the original state.

The judgment shall not be recognised on the following grounds:

  • it is manifestly contrary to public policy of the member state in which recognition is sought: art.34(1);
  • it is a default judgment, the defendant was not served with the document instituting the proceedings in sufficient time so that he could defend the claim, unless the defendant failed to start proceedings to challenge the judgment when it was possible to do so: art.34(2);
  • it is irreconcilable with a judgment given between the same parties in the member state in which recognition is sought: art.34(3);
  • it is irreconcilable with an earlier judgment in another state (an EU member state or not) on the same cause of action and between the same parties, which fulfils the criteria for recognition in the relevant member state: art.34(4);
  • it conflicts with one of the exceptional grounds for jurisdiction under the Regulation, Ch II s.3 (insurance contracts), s.4 (consumer contracts), s.6 (exclusive jurisdiction): art.35(1), or art.72 which preserves pre-existing treaties with third party countries which prevent recognition of judgments based on 'exorbitant' jurisdiction.

Public policy: The public policy defence under the Regulation is intended to apply only in exceptional circumstances, as shown by the use of "manifestly". Recognition and enforcement of the judgment must infringe a fundamental rule of law in the recognising member state: Apostolides v Orams (C-420/07) [2011] Q.B. 519. Where the original court had refused to hear a defendant who was in contempt of court, the recognising court was entitled to consider this a breach of art.6 of the ECHR and refuse recognition of the judgment on the grounds of public policy: Bamberski v Krombach (C-7/98) [2001] Q.B. 709. There is no separate "fraud" defence to recognition under the Regulation. Alleged fraud by the original court could theoretically infringe public policy of the recognising state, but this will be very difficult in practice, since all member states allow a party who alleges fraud to bring proceedings to challenge the judgment. It will therefore not be manifestly contrary to public policy to recognise the judgment in another state. For this reason in Interdesco SA v Nullifire Ltd [1992] 1 Lloyd's Rep. 180, it was held that the English court would not refuse enforcement of a French judgment for alleged fraud, even with evidence newly discovered since the trial, because the debtor had a remedy in the French courts.

Right to defend: Article 34(2) applies to all judgments in default of appearance, which is judged autonomously and not defined with strict reference to the law of the original court: Hendrikman v Magenta Druck & Verlag GmbH (C-78/95) [1997] Q.B. 426. The Court considers the way in which service was effected (whether or not it complied with the law of the original state on service) and whether the defendant had sufficient time and opportunity to conduct his defence. If the defendant has found out about the proceedings, the onus is on him to apply to set aside the judgment in the original court, where such a procedure exists and could be used.

Irreconcilable with other judgments: Article 34(3) is somewhat limited in effect: not many judgments from an EU member state will be irreconcilable with a judgment in the recognising member state, because of the rules in arts.27-30 of the Regulation, which give priority to the court first seised with the dispute. But where it occurs, the recognising court can refuse recognition of the judgment, even if it was given before the irreconcilable judgment given by that court. To be irreconcilable the judgments must grant remedies which are mutually exclusive. Article 34(4) allows a member state to refuse recognition of an EU judgment which is irreconcilable with an earlier judgment from a non-EU state which also qualifies for recognition in that member state.

Jurisdiction: The recognising court may only investigate the jurisdiction of the original court if the case falls within one of the special grounds for jurisdiction listed in art.35(1). If the original court did not apply the exclusive jurisdiction provisions listed there, the judgment shall not be recognised. But the recognising court is bound by findings of fact made by the original court in its jurisdiction decision: art.35(2). Thus, the recognising court cannot refuse recognition on the ground that it believes the original court decided jurisdiction wrongly; that is a matter for the original court.