EUROPEAN UNION CIVIL PROCEDURE

Mykolas Romeris University

Dr. Laura Gumuliauskien

Topic 2. Issue of jurisdiction in International civil procedure

TOPIC 2. ISSUE OF JURISDICTION IN EUROPEAN CIVIL PROCEDURE

Concept and limits of jurisdiction. Jurisdiction of Lithuanian courts over cases with a cross-border element in contentious and non contentious proceedings. Immunity of states. Claims against foreign states. Immunity of international organisations. Diplomatic and consular immunity. Waiver of immunity. Conception of the theories forum non conveniens and forum shopping. Specifics of contractual jurisdiction in international civil procedure.
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Assignment of cases part of the competence of courts related to the examination of disputes, i.e. jurisdiction activities.
Jurisdiction the distribution of the disputes (cases) assigned to the competence of courts within the judicial system.
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THE LITHUANIAN JUDICIARY SYSTEM

The Supreme Court of Lithuania

Court of Appeals of Lithuania

Regional courts

Vilnius

Kaunas

Klaipda

iauliai

Panevys

District courts (54)

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ADMINISTRATIVE COURTS
The Supreme Administrative Court

Regional courts

Vilnius

Kaunas

Klaipda

iauliai

Panevys

LEX FORI PRINCIPLE The procedure of hearing civil cases is always defined by the laws of civil procedure of the state where the courts with remit over the case are located.

THE RULES OF JURISDICTION ARE LAID DOWN BY THE SAME SOURCES OF EU CP:
national

law (Art.780 792 of CCP RL ) International law EU law

EU REGULATIONS

Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I) Council Regulation (EC) No 2201/2003/EC of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels IIbis) Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations
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MULTILATERAL CONVENTIONS:

Convention on the Contract for the International Carriage of Goods by Road (CMR) (Geneva, 19 May 1956) Convention for the Unification of Certain Rules Relating to International Carriage by Air, Signed at Warsaw on 12 October 1929. Protocol of 3 June 1999 for the Modification of the Convention concerning International Carriage by Rail (COTIF) of 9 May 1980 (Protocol of Vilnius). Hague Convention of 25 November 1965 on the Choice of Court (not EIF). Hague Convention of 15 November 1965 on Jurisdiction, Applicable Law and Recognition of Decrees Relating to Adoptions Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction.
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GENERAL PRINCIPLE OF SUPREMACY OF INTERNATIONAL LAW

Art. 780 CCP RL: Provisions of Part VII of this Code shall apply unless an international agreement whereto the Republic of Lithuania is a party governs relevant relations otherwise.

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PRINCIPLES:

Courts ex officio verify whether the case falls within the jurisdiction of Lithuanian courts. If courts have a remit to hear civil cases, this remit shall not disappear when the same case is heard in a foreign court . Matters shall be attributed to the jurisdiction of courts of Lithuania, if: 1) at the moment of claim filing the defendant is or has fixed abode or resides in Lithuania; 2) the defendant is a holder of property in Lithuania; 3) a question at issue is a thing, legacy in Lithuania or an obligation that has occurred or should be performed in Lithuania. Jurisdiction of family legal relation proceedings. Courts of the Republic of Lithuania shall have a remit to hear proceedings involving the legal relations of adoption in cases when both parties are foreigners with fixed abode in the Republic of Lithuania. Courts of the Republic of Lithuania shall be entitled to declare a foreign person as dead or missing if: 1) a person entitled to file a relevant application to the court has fixed abode in Lithuania; 2) the foreigner was residing in Lithuania or had property located in Lithuania. Contractual jurisdiction. 12

THE EXCLUSIVE JURISDICTION OF LITHUANIAN COURTS

When both spouses are permanent residents of Lithuania (Part 2 Art. 784 CCP RL) Hearing of in rem legal relation proceedings (Art. 786 CCP RL) adoption legal relation proceedings if any of the parties is a citizen of Lithuania or a stateless person with permanent place of residence in Lithuania (Parts 1-2 Art. 785 CCP RL) proceedings concerning the declaration of a natural person as incapable or of limited active capacity, dead or missing, if such person is a citizen of Lithuania or a stateless person with permanent place of residence in 13 Lithuania (Part 1 Art. 789 CCP RL)

THE MATTERS THAT LITHUANIAN COURTS WOULD NOT DEAL WITH:

Contractual derogational jurisdiction (Art. 788 CCP RL) When claims are filed against performance of persons official functions (Part 3 Art. 790 CCP RL) Diplomat immunity (Part 1 Art. 790 CCP RL),excepted:
a) dispute arises in relation to an immovable thing situated in Lithuania and held by the persons mentioned above; b) dispute arises out of inheritance legal relations; c) dispute arises out of other economic relations where persons mentioned above are not involved as persons exercising diplomatic immunity.

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JURISDICTION ACCORDING TO INTERNATIONAL LAW

Only one general criterion to be used when determining international jurisdiction - the place of residence or domicile of the respondent.

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FORUM SHOPPING

The

behaviour when a party or parties to the proceedings base their choice of lex fori on the gain for themselves.

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DOCTRINE FORUM NON CONVENIENS ALLOWS:

The

court to refuse hearing the case if it has no connection with its country, The respondent to take precautions against the case hearing in the state that has no connection with the case.

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POINT 1 PART 2 ART. 34 CCP RL:

A court transfers a case for hearing in another court after passing a ruling if it acknowledges that this specific case will be heard in another court more promptly and economically and specifically according to location of most evidence, except for cases of extraordinary jurisdiction.

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LIS PENDENS RULE

An identical dispute (or case) is when: parties of the dispute are the same; the subject of the dispute is the same; the basis of the dispute is the same.

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Lis pendens (or lis alibi pendens) is an institute that helps ICP avoid parallel hearing of identical disputes in courts of several states and that enables the court to refuse the hearing of a case when such a case has already been commenced or heard by a court of another state.
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CONTRACTUAL JURISDICTION IN EUCP When concluding an agreement or after a dispute has emerged and without violation of rules of exclusive jurisdiction, the parties may agree the court (or arbitration) of which state the case shall be decided at. 1. Concerted prorogational jurisdiction. 2. Concerted derogational jurisdiction.

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IMMUNITY OF STATES
Effect of the law of a foreign state Jurisdiction of courts of a foreign state Provisional protective measures Coercive enforcement of judgments of foreign courts

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FOR THE NEXT TIME!!!

Relationship between jurisdiction and lex fori principle. System of the judiciary in your state. Provisions regulating international jurisdiction in your state (CCP, international treaties which in particular, conventions?). Which matters fall within the exclusive jurisdiction of the courts of your state and what are the consequences resulting from infringements of such rules?

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Thank you for your attention!

dr. Laura Gumuliauskien

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