[Hague-jur-commercial-law] Re: Hague-jur-commercial-law digest, Vol 1 #466 - 1 msg
mariano municoy
municoy30@yahoo.com
Tue, 27 Dec 2005 11:19:02 -0800 (PST)
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Dear members,
So far Argentinean authorities and practitioners have not shown much interest in adopting the Hague proposal.
I have addressed some of the issues that developing countries are facing in this regard in a paper available at http://jip.kentlaw.edu/art/volume%204/4%20Chi-Kent%20J%20Intell%20Prop%20342.doc
Any comment in this regard is very welcome.
Best regards,
Mariano
Mariano Municoy
Moeller & Co.
Av.L.N.Alem 1134 10º
C1001AAT - Buenos Aires
Argentina
tel +54 11 4894 1551
fax +54 11 4894 1561
mm@e-moeller.com
www.e-moeller.com
hague-jur-commercial-law-request@lists.essential.org wrote:
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Today's Topics:
1. Recog & Enforcement of judgments in IP matters within EU (Manon Ress)
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Message: 1
To: hague-jur-commercial-law@lists.essential.org
From: Manon Ress
Date: Fri, 23 Dec 2005 17:31:26 -0500
Subject: [Hague-jur-commercial-law] Recog & Enforcement of judgments in IP matters within EU
Would they extend this to non EU countries like Argentina, Egypt,
Mexico, Suriname etc? Anyway, the timing of the posting on IPR desk
is interesting. I just got the Hague "Final Act" on the choice of
court convention.
Have a good winter break if any.
Manon
Recognition and enforcement of judgments in intellectual property
matters within the European Union
http://www.ipr-helpdesk.org/documentos/docsPublicacion/html_xml/
8_Recognitionandenforcement[0000006299_00].html
1. Introduction
2. Judicial decisions that can be recognised and enforced
3. Two ways to recognise foreign decisions
4. Grounds for refusal of recognition
5. Competent courts and procedural matters
1. Introduction
The adoption of a judgment in a dispute regarding intellectual
property matters is the last step in the judicial proceedings.
However, judicial decisions are only viable in the Member State where
the court adopting the decision is located. For a judgment to have
effects or to be enforceable in another Member State it has to be
recognised by that Member State. Take these two examples:
A court in a Member State has adopted a decision condemning company X
to pay compensation for damages because of an infringement of company
Y's intellectual property rights. However, company X does not have
any money or any asset in that Member State. Therefore, Company Y
cannot be compensated for damages. Company Y needs to ask for
recognition of the judgment in any other Member States where company
X has assets so that the decision can be enforced.
A court in a Member State declared that company X has not committed
any infringement on company Y's intellectual property rights.
Nevertheless, company X is suing Company Y once more in a different
Member State for the same infringement. Company Y can ask for the
recognition of the judgment in that Member State to block the second
complaint: the court of a Member State cannot know of an action which
has been decided by a court of another Member State - this is the so-
called res judicata effect.
In the European Union, recognition and enforcement in a Member State
of a judicial decision on intellectual property matters adopted by
the court of other Member States is governed by articles 32 to 58 of
the Council Regulation 44/2001 (the so-called Brussels I Regulation).
These provisions establish a simplified system of recognition and
enforcement of judgments in civil and commercial matters.
2. Judicial decisions that can be recognised and enforced
The system of recognition and enforcement of the Brussels Regulation
applies not only to final judgments but also to any other judicial
decisions. Subject to the conditions stated in art. 37, recognition
may also be granted to judgments that may still be subject to appeal
in their country of origin.
Provisional measures granted by the court in a Member State may also
be recognised under this system for the purpose of being enforced in
another State. However, according to the European Court of Justice, a
provisional measure that has been granted inaudita parte debitoris -
meaning 'without the possibility for the defendant to be heard before
the measure is adopted' - cannot be recognised in so far as the
defendant did not have the opportunity to defend himself.
3. Two ways to recognise foreign decisions
Depending on the effects of the foreign judgment that the plaintiff
wants to invoke, two kinds of recognition procedures are distinguished.
If the recognition of the judgment is only needed in order to make
use of the res judicata effects - so that new proceedings on the same
cause of action cannot be initiated -, the request for recognition
has to be submitted to the court before which the new action has been
filed. This court must automatically recognise the foreign judgment
without the need for any procedure(s). In fact, there is only one
formal requirement: the provision of an authentic copy of the
judgment. In this case, the effects of the recognition will be
limited to the particular dispute at hand only.
If a person looks for the recognition of the judgment with effects
towards any third party in that Member State (erga omnes) or if it
looks for the enforcement or the execution of the judgment, further
requirements are needed. First of all, in addition to the authentic
copy of the decision, a certificate using the standard form of Annex
V of the Regulation has to be provided. Secondly, the court of
reception must verify that the decision does not fall in any of the
grounds of refusal of arts. 34 and 35.
4. Grounds for refusal of recognition
The exclusive grounds on which defendants may allege for the refusal
of recognition of a foreign decision on an IP matter are the following:
if the decision is manifestly contrary to public policy in the States
where recognition is requested;
if the decision was given in default of appearance of the defendant
and he was not notified of the complaint in sufficient time and in
such a way as to enable him to arrange for his defence, unless the
defendant failed to commence proceedings to challenge the judgment
when it was possible for him to do so;
if the decision is irreconcilable with a judgment given in a dispute
between the same parties in the Member State in which recognition is
sought;
if the decision is irreconcilable with an earlier judgment given in
another Member State or in a third State involving the same course of
action and between the same parties, provided that the earlier
judgment fulfils the conditions necessary for its recognition in the
Member State addressed.
Finally, if the court of origin declared jurisdiction in
contradiction with the rules of Sections 3, 4 or 6, Chapter II of the
Regulation (art. 35 (1)).
Defendants must not invoke a bad application of law by the court of
origin in so far as the requested court is not allowed to review the
foreign judgment on its merits. Furthermore, except for those cases
of art. 35 (1), the jurisdiction of the court of origin of the
decision cannot be reviewed either.
5. Competent courts and procedural matters
Recognition of a foreign judgment must be requested before the court
situated in the place where the defendant is domiciled or before the
court of the place where the judgment has to be enforced, i.e. the
place where the defendant has assets that can be seized. A decision
granting or denying recognition can be appealed in first and second
instance. A listing of the courts in the different Member States
where these appeals can be filed is included in Annexes II and III of
the Regulation.
The procedure is governed by the relevant provisions of the
Regulation and by the national law of the requested court.
Once a judgment has been recognised in a Member State, the
enforcement is carried out in accordance with the procedural laws of
that Member State.
************************************************
Manon Anne Ress
manon.ress@cptech.org,
www.cptech.org
Consumer Project on Technology
1621 Connecticut Ave, NW, Washington, DC 20009 USA
Tel.: +1.202.332.2670, Ext 16 Fax: +1.202.332.2673
Consumer Project on Technology
1 Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland
Tel: +41 22 791 6727
Consumer Project on Technology
24 Highbury Crescent, London, N5 1RX, UK
Tel: +44(0)207 226 6663 ex 252 Fax: +44(0)207 354 0607
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<DIV> <div>Dear members,</div> <div> </div> <div>So far Argentinean authorities and practitioners have not shown much interest in adopting the Hague proposal. </div> <div> </div> <div>I have addressed some of the issues that developing countries are facing in this regard in a paper available at <U><FONT color=#0000ff><A href="http://jip.kentlaw.edu/art/volume%204/4%20Chi-Kent%20J%20Intell%20Prop%20342.doc">http://jip.kentlaw.edu/art/volume%204/4%20Chi-Kent%20J%20Intell%20Prop%20342.doc</A></U></FONT> </div> <div> </div> <div>Any comment in this regard is very welcome. </div> <div> </div> <div>Best regards, </div> <div> </div> <div>Mariano</div><FONT face=Arial size=2> <div> </div><U> <div>Mariano Municoy </div></U> <div>Moeller & Co. </div> <div>Av.L.N.Alem 1134 10º </div> <div>C1001AAT - Buenos Aires </div> <div>Argentina </div> <div>tel +54 11 4894 1551 </div> <div>fax +54 11 4894 1561 </div> <div>mm@e-moeller.com </div>
<div>www.e-moeller.com</div></FONT><BR><BR><B><I>hague-jur-commercial-law-request@lists.essential.org</I></B> wrote:</DIV> <BLOCKQUOTE class=replbq style="PADDING-LEFT: 5px; MARGIN-LEFT: 5px; BORDER-LEFT: #1010ff 2px solid">Send Hague-jur-commercial-law mailing list submissions to<BR>hague-jur-commercial-law@lists.essential.org<BR><BR>To subscribe or unsubscribe via the World Wide Web, visit<BR>http://lists.essential.org/mailman/listinfo/hague-jur-commercial-law<BR>or, via email, send a message with subject or body 'help' to<BR>hague-jur-commercial-law-request@lists.essential.org<BR><BR>You can reach the person managing the list at<BR>hague-jur-commercial-law-admin@lists.essential.org<BR><BR>When replying, please edit your Subject line so it is more specific<BR>than "Re: Contents of Hague-jur-commercial-law digest..."<BR><BR><BR>Today's Topics:<BR><BR>1. Recog & Enforcement of judgments in IP matters within EU (Manon Ress)<BR><BR>--__--__--<BR><BR>Message: 1<BR>To:
hague-jur-commercial-law@lists.essential.org<BR>From: Manon Ress <MANON.RESS@CPTECH.ORG><BR>Date: Fri, 23 Dec 2005 17:31:26 -0500<BR>Subject: [Hague-jur-commercial-law] Recog & Enforcement of judgments in IP matters within EU<BR><BR>Would they extend this to non EU countries like Argentina, Egypt, <BR>Mexico, Suriname etc? Anyway, the timing of the posting on IPR desk <BR>is interesting. I just got the Hague "Final Act" on the choice of <BR>court convention.<BR>Have a good winter break if any.<BR>Manon<BR><BR><BR>Recognition and enforcement of judgments in intellectual property <BR>matters within the European Union<BR><BR>http://www.ipr-helpdesk.org/documentos/docsPublicacion/html_xml/ <BR>8_Recognitionandenforcement[0000006299_00].html<BR><BR><BR><BR>1. Introduction<BR>2. Judicial decisions that can be recognised and enforced<BR>3. Two ways to recognise foreign decisions<BR>4. Grounds for refusal of recognition<BR>5. Competent courts and procedural matters<BR><BR><BR><BR><BR>1.
Introduction<BR><BR>The adoption of a judgment in a dispute regarding intellectual <BR>property matters is the last step in the judicial proceedings. <BR>However, judicial decisions are only viable in the Member State where <BR>the court adopting the decision is located. For a judgment to have <BR>effects or to be enforceable in another Member State it has to be <BR>recognised by that Member State. Take these two examples:<BR><BR>A court in a Member State has adopted a decision condemning company X <BR>to pay compensation for damages because of an infringement of company <BR>Y's intellectual property rights. However, company X does not have <BR>any money or any asset in that Member State. Therefore, Company Y <BR>cannot be compensated for damages. Company Y needs to ask for <BR>recognition of the judgment in any other Member States where company <BR>X has assets so that the decision can be enforced.<BR><BR>A court in a Member State declared that company X has not committed <BR>any
infringement on company Y's intellectual property rights. <BR>Nevertheless, company X is suing Company Y once more in a different <BR>Member State for the same infringement. Company Y can ask for the <BR>recognition of the judgment in that Member State to block the second <BR>complaint: the court of a Member State cannot know of an action which <BR>has been decided by a court of another Member State - this is the so- <BR>called res judicata effect.<BR><BR>In the European Union, recognition and enforcement in a Member State <BR>of a judicial decision on intellectual property matters adopted by <BR>the court of other Member States is governed by articles 32 to 58 of <BR>the Council Regulation 44/2001 (the so-called Brussels I Regulation). <BR>These provisions establish a simplified system of recognition and <BR>enforcement of judgments in civil and commercial matters.<BR><BR><BR>2. Judicial decisions that can be recognised and enforced<BR><BR>The system of recognition and enforcement
of the Brussels Regulation <BR>applies not only to final judgments but also to any other judicial <BR>decisions. Subject to the conditions stated in art. 37, recognition <BR>may also be granted to judgments that may still be subject to appeal <BR>in their country of origin.<BR><BR>Provisional measures granted by the court in a Member State may also <BR>be recognised under this system for the purpose of being enforced in <BR>another State. However, according to the European Court of Justice, a <BR>provisional measure that has been granted inaudita parte debitoris - <BR>meaning 'without the possibility for the defendant to be heard before <BR>the measure is adopted' - cannot be recognised in so far as the <BR>defendant did not have the opportunity to defend himself.<BR><BR><BR>3. Two ways to recognise foreign decisions<BR><BR>Depending on the effects of the foreign judgment that the plaintiff <BR>wants to invoke, two kinds of recognition procedures are distinguished.<BR><BR>If the
recognition of the judgment is only needed in order to make <BR>use of the res judicata effects - so that new proceedings on the same <BR>cause of action cannot be initiated -, the request for recognition <BR>has to be submitted to the court before which the new action has been <BR>filed. This court must automatically recognise the foreign judgment <BR>without the need for any procedure(s). In fact, there is only one <BR>formal requirement: the provision of an authentic copy of the <BR>judgment. In this case, the effects of the recognition will be <BR>limited to the particular dispute at hand only.<BR><BR>If a person looks for the recognition of the judgment with effects <BR>towards any third party in that Member State (erga omnes) or if it <BR>looks for the enforcement or the execution of the judgment, further <BR>requirements are needed. First of all, in addition to the authentic <BR>copy of the decision, a certificate using the standard form of Annex <BR>V of the Regulation has
to be provided. Secondly, the court of <BR>reception must verify that the decision does not fall in any of the <BR>grounds of refusal of arts. 34 and 35.<BR><BR><BR>4. Grounds for refusal of recognition<BR><BR>The exclusive grounds on which defendants may allege for the refusal <BR>of recognition of a foreign decision on an IP matter are the following:<BR><BR>if the decision is manifestly contrary to public policy in the States <BR>where recognition is requested;<BR><BR>if the decision was given in default of appearance of the defendant <BR>and he was not notified of the complaint in sufficient time and in <BR>such a way as to enable him to arrange for his defence, unless the <BR>defendant failed to commence proceedings to challenge the judgment <BR>when it was possible for him to do so;<BR><BR>if the decision is irreconcilable with a judgment given in a dispute <BR>between the same parties in the Member State in which recognition is <BR>sought;<BR><BR>if the decision is
irreconcilable with an earlier judgment given in <BR>another Member State or in a third State involving the same course of <BR>action and between the same parties, provided that the earlier <BR>judgment fulfils the conditions necessary for its recognition in the <BR>Member State addressed.<BR><BR>Finally, if the court of origin declared jurisdiction in <BR>contradiction with the rules of Sections 3, 4 or 6, Chapter II of the <BR>Regulation (art. 35 (1)).<BR><BR>Defendants must not invoke a bad application of law by the court of <BR>origin in so far as the requested court is not allowed to review the <BR>foreign judgment on its merits. Furthermore, except for those cases <BR>of art. 35 (1), the jurisdiction of the court of origin of the <BR>decision cannot be reviewed either.<BR><BR><BR>5. Competent courts and procedural matters<BR><BR>Recognition of a foreign judgment must be requested before the court <BR>situated in the place where the defendant is domiciled or before the
<BR>court of the place where the judgment has to be enforced, i.e. the <BR>place where the defendant has assets that can be seized. A decision <BR>granting or denying recognition can be appealed in first and second <BR>instance. A listing of the courts in the different Member States <BR>where these appeals can be filed is included in Annexes II and III of <BR>the Regulation.<BR><BR>The procedure is governed by the relevant provisions of the <BR>Regulation and by the national law of the requested court.<BR><BR>Once a judgment has been recognised in a Member State, the <BR>enforcement is carried out in accordance with the procedural laws of <BR>that Member State.<BR><BR><BR><BR><BR><BR>************************************************<BR>Manon Anne Ress<BR>manon.ress@cptech.org,<BR>www.cptech.org<BR><BR>Consumer Project on Technology<BR>1621 Connecticut Ave, NW, Washington, DC 20009 USA<BR>Tel.: +1.202.332.2670, Ext 16 Fax: +1.202.332.2673<BR><BR>Consumer Project on Technology<BR>1
Route des Morillons, CP 2100, 1211 Geneva 2, Switzerland<BR>Tel: +41 22 791 6727<BR><BR>Consumer Project on Technology<BR>24 Highbury Crescent, London, N5 1RX, UK<BR>Tel: +44(0)207 226 6663 ex 252 Fax: +44(0)207 354 0607<BR><BR><BR><BR><BR><BR><BR>--__--__--<BR><BR>_______________________________________________<BR>Hague-jur-commercial-law mailing list<BR>Hague-jur-commercial-law@lists.essential.org<BR>http://lists.essential.org/mailman/listinfo/hague-jur-commercial-law<BR><BR><BR>End of Hague-jur-commercial-law Digest<BR></BLOCKQUOTE> <DIV><BR></DIV><p>
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