![]() This is confirmed by the English text of Article 27 (2) which, by using the expression “judgment. In my view such a construction would be too narrow and would fail to recognize the independent nature of the Convention, which is an instrument of international law, in relation to the multiplicity of proceedings under the national legal systems of the Contracting States. I do not think it right to construe Article 27 (2) as referring only to specific proceedings known to certain national legal systems. It is however far from certain that the terms used in Articles 27 (2) and 46 (2) of the Convention can apply only to default proceedings as understood stricto sensu in certain national legal systems. It is true- that default proceedings are adversary proceedings for, in such a case, although he has not responded to them, the defendant has been notified of the action in which he is involved. As the court which made the reference points out, default proceedings are, in the technical meaning of the term, proceedings “which are not, in their legal nature, ex parte, but which envisage the participation of the defendant”.įrom an analysis of Article 46 (2) the Commission comes to the same conclusion. Whether Articles 27 (2) and 46 (2) apply to provisional or protective measures may on the other hand still be in some doubt inasmuch as the French text of the provisions contains the phrases “défendeur défaillant” and “décision par défaut” respectively. Unless the word “judgment” is used in Article 47 (1) with a different meaning from that in Article 25, subparagraph (1) does apply to the judgments I have mentioned. As may be seen from Article 25, this word was selected to cover all the possible forms of judicial decisions including those authorizing provisional or protective measures at the conclusion of ex parte proceedings. I think that it is necessary here to distinguish between Article 47 (1) on the one hand and Articles 46 (2) and 27 (2) on the other.Īrticle 47 (1) uses the word “judgment” without any restriction. In dealing with this question I shall concentrate first on the words actually used in the provisions requiring construction. Is this the case here, especially when we are confronted with a decision such as an order of the President of a French court authorizing a creditor to freeze the account of his debtor in Germany without the debtor's having been notified of the application and the decision which resulted therefrom, under Article 48 of the old Code de Procédure Civile ? The court making the reference asks whether these provisions apply where the judgment in the State of origin authorizes a provisional or protective measure pursuant to proceedings which, in accordance with the law of that State, have been conducted ex parte. ![]() ![]() It makes it compulsory for the party applying for enforcement to produce “documents which establish that, according to the law of the State in which it has been given, a judgment is enforceable and has been served”. This provision is made applicable to enforcement as a result of the second paragraph of Article 34 by which the application for such enforcement must be refused if it could not be recognized under Articles 27 and 28.Īrticle 46 (2) pursues the matter as regards evidence by requiring that a party seeking recognition or applying for enforcement of a judgment shall produce, in the case of a judgment given in default, the original or a certified true copy of the document which establishes that the party in default was served with the document instituting the proceedings.Īrticle 47 (1) deals with the actual judgment to be enforced. where it was given in default of appearance, if the defendant was not duly served with the document which instituted the proceedings in sufficient time to enable him to arrange for his defence”. The first two questions submitted by that court concern the interpretation of Articles 27 (2), 46 (2) and 47 (1) of the Convention.Īrticle 27 (2) provides that “a judgment shall not be recognized. So I take leave to come straight to the important problems raised by the Frankfurt Regional Court. Since the report for the bearing by the Judge-Rapporteur has fully described the facts surrounding the dispute and the different procedural stages it has gone through, there is no need to waste the Court's time by recapitulating them here. ![]() The questions put by the court making this reference concern the interpretation of the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. Couchet Frères, a French transport undertaking, and a German customer, Mr Denilauler. This reference for a preliminary ruling is made by the Oberlandesgericht Frankfurt am Main in the Federal Republic of Germany concerning a dispute between S.n.c.
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