International Advocacy - Mevr. mr. drª Marian Aletta Does

LEGISLATION CHANGES THAT MAY CAUSE SOME HICKUPS
(continuation)


Under the stipulations of articles 24 to 26 of the EU Regulation
2015/2012, see hereunder, certain Courts will have 'exclusive
jurisdiction', which means that, related to specific matters those
indicated courts, in certain countries will have the exclusive right to
declare their competence to decide the case.

So lets see where the following inmaginary case would lead to.

Let's take a simple civil procedure with regard to an incomplete property
transfere deal, based on a non-fulfilled promissory contract, due to registry
problems. This contract is drawn up in English; doesn't indicate a specific
court; nor applicable legislation; signed in Brussels; with down payments
made from a mortgage loan agreement with a Dutch bank to the property
owner, who lives in Berlin.

Inmagine the buyer being an English citizen purchasing an apartment in
a Spanish urbanization, financed by a belgian property promotor linked
to the same dutch financial institution in financial problems.
(Or for that matter a german buyer; pportuguese urbanization; dutch
property promotor linked to an Iceland bank, on the verge of bankruptcy,
and it's assets confiscated by the Iceland State.)

In accordance to art. 24.2 the competent courts would be in Spain and
Portugal, due to the respetive property and urbanization locations, as
art.1 of this EURegulation excludes bankruptcy proceedings, it would
be, under application of Dutch and Iceland bankruptcy law, before the
Court in these respective EU-Member State Countries,

This means that both the English and German buyers citizens will have
to address the respective judicial authorities in either countries
constituting an advocate, an 'Abogado' in Spain and in Portugal an
'Advogado', under application of the respective national procedural laws,
in spanish and portuguese.

Alright so far so good apart from the additional costs for travelling, double

advocates, translations and court taxes, as not in all EU Member States the

litigation procedures have a swifty procedure to provide financial aid by the

State, in those cases where the litigation parties lack 'sufficient' financial

means, apart from the interpretation of the criterum 'sufficient financial

means' which varies in the different countries.

Not withstanding that in Portugal, where the centralized judicial computer

system broke down in 2014 which they hope will be repaired in 2016 (1) -

all procedural acts and documents necessarily have to take place digitally.

And that in Spain, - where the Supreme Court recently pronounced that
not being actively inscribed in the local advocate society is not considered
an act of intrusion (2) - the repective propery buyers will also have to hire the

services of a 'Procurador' to legally represent them before the Court as the

'Abogado' only serves to render the legal advice in the court proceedings.

Taking into account that only since half 2014, spanish abogados are
obliged to have completed a 2.5 years master degree in advocacy, and
that there is no difference between 'Court' and 'Not-Court' advocates
and that some Provincial Law Societies only allow a number of
handpicked abogados to handle certain cases, for instance related to
specific urbanization problems, one may wonder what will be ahead.

Taking then also into account that the Spanish Courts are amongst
those who less applicate EU-Court decisions, (3) according to the article
published by the national spanish advocacy board, - thus failing
somewhat in what one may expect.

In my opinion mediation is not an adequate solution.

http://noticias.juridicas.com/actual/4407-ejercer-de-abogado

-sin-estar-dado-de-alta-en-el-colegio-de-abogados-no-supone-un-delito-de-

intrusismo.html

http://www.abogacia.es/2015/01/20/araceli-mangas-espana-es-el-pais-que-acumula-mas-sentencias-del-tribunal-de-justicia-de-la-ue-sin-ejecutar/

http://noticias.juridicas.com/actual/4385-la-reforma-de-la-lopj-cambiara-el-nombre-de-los-secretarios-judiciales-y-les-consolidara-como-directores-de-la-oficina-judicial.html

http://noticias.juridicas.com/actual/4454-las-resoluciones-civiles-y-mercantiles-de-un-estado-miembro-ya-tienen-fuerza-ejecutiva-en-todo-el-territorio-de-la-union.html

http://noticias.juridicas.com/actual/4464-reglamento-ue-12152012-reconocimiento-y-ejecucion-de-resoluciones-judiciales-en-materia-civil-y-mercantil-en-la-ue-.html

Article 24
The following courts of a Member State shall have exclusive jurisdiction, regardless of the domicile of the parties:

(1)	in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the Member State in which the property is situated. However, in proceedings which have as their object tenancies of immovable property concluded for temporary private use for a maximum period of six consecutive months, the courts of the Member State in which the defendant is domiciled shall also have jurisdiction, provided that the tenant is a natural person and that the landlord and the tenant are domiciled in the same Member State;

(2)	in proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or the validity of the decisions of their organs, the courts of the Member State in which the company, legal person or association has its seat. In order to determine that seat, the court shall apply its rules of private international law;

(3)	in proceedings which have as their object the validity of entries in public registers, the courts of the Member State in which the register is kept;

(4)	in proceedings concerned with the registration or validity of patents, trade marks, designs, or other similar rights required to be deposited or registered, irrespective of whether the issue is raised by way of an action or as a defence, the courts of the Member State in which the deposit or registration has been applied for, has taken place or is under the terms of an instrument of the Union or an international convention deemed to have taken place. Without prejudice to the jurisdiction of the European Patent Office under the Convention on the Grant of European Patents, signed at Munich on 5 October 1973, the courts of each Member State shall have exclusive jurisdiction in proceedings concerned with the registration or validity of any European patent granted for that Member State;

(5)	in proceedings concerned with the enforcement of judgments, the courts of the Member State in which the judgment has been or is to be enforced.

SECTION 7
Prorogation of jurisdiction
Article 25
1. If the parties, regardless of their domicile, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. The agreement conferring jurisdiction shall be either:

(a)	in writing or evidenced in writing;

(b)	in a form which accords with practices which the parties have established between themselves; or

(c)	in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.

2. Any communication by electronic means which provides a durable record of the agreement shall be equivalent to ‘writing’.
3. The court or courts of a Member State on which a trust instrument has conferred jurisdiction shall have exclusive jurisdiction in any proceedings brought against a settlor, trustee or beneficiary, if relations between those persons or their rights or obligations under the trust are involved.
4. Agreements or provisions of a trust instrument conferring jurisdiction shall have no legal force if they are contrary to Articles 15, 19 or 23, or if the courts whose jurisdiction they purport to exclude have exclusive jurisdiction by virtue of Article 24.
5. An agreement conferring jurisdiction which forms part of a contract shall be treated as an agreement independent of the other terms of the contract.
The validity of the agreement conferring jurisdiction cannot be contested solely on the ground that the contract is not valid.
Article 26
1. Apart from jurisdiction derived from other provisions of this Regulation, a court of a Member State before which a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered to contest the jurisdiction, or where another court has exclusive jurisdiction by virtue of Article 24.
2. In matters referred to in Sections 3, 4 or 5 where the policyholder, the insured, a beneficiary of the insurance contract, the injured party, the consumer or the employee is the defendant, the court shall, before assuming jurisdiction under paragraph 1, ensure that the defendant is informed of his right to contest the jurisdiction of the court and of the consequences of entering or not entering an appearance