topic 2 jurisdiction
TRANSCRIPT
Dr. Laura Gumuliauskienė
EUROPEAN UNION CIVIL PROCEDURE
Mykolas Romeris University
Topic 2. Issue of jurisdiction in International civil procedure 1
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
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The Supreme Court of Lithuania
Court of Appeals of Lithuania
Vilnius Kaunas Klaipėda Šiauliai Panevėžys
Regional courts
District courts (54)
ADMINISTRATIVE COURTS
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The Supreme Administrative Court
Regional courts
Vilnius Kaunas Klaipėda Šiauliai Panevėžys
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.
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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
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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. 10
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.
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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
Lithuania (Part 1 Art. 789 CCP RL) 13
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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