Due to the accession of the Republic of Cyprus in the European Community (“EU”), Cyprus is bound by the provisions of inter alia the EU Regulation 44/2001, on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (“the Regulation”). The Regulation supersedes the Brussels Convention of 1968, which was applicable between the EU countries, before the Regulation entered into force.
The Brussels Convention, continues to apply with respect to questions of jurisdiction, between Denmark and the other members States of EU.
The Regulation does not cover revenue, customs or administrative matters neither does it apply to:
• The status or legal capacity of natural persons, matrimonial matters, wills and succession;
• Bankruptcy;
• Social security; and
• Arbitration
Rules of jurisdiction
The basic principle, is that jurisdiction is to be exercised by the EU Country, in which the defendant is domiciled, regardless of his/her nationality. Domicile is determined in accordance with the domestic law of the EU Country, where the matter is brought before the Court.
In case of legal persons, or firms, domicile is determined by the country, where they have their statutory seat, central management or administration or principal place of business.
In case of physical persons, if a party is not domiciled in the EU Country of the Court considering the matter, the Court is to apply the law of the Member State of another Member State, where the party is domiciled in that state.
In case of trusts, domicile is decided by the Court that, is considering the case by applying its own rules of private international law.
SPECIAL JURISDICTION
Apart, from the basic principle on jurisdiction stated above, in certain circumstances, a defendant may be sued in the Courts of another Member State. The Regulation lists areas of special jurisdiction on inter alia the following matters:
- Matters relating to contracts: As a general rule these are to be brought before the Courts for the place of performance of the obligation in question.
- Matters relating to liability for wrongful acts (tort, or delict or quasi delict):
These will be decided by the Courts where the wrongful acts took place or by the Courts of the place, where the results or the losses from the wrongful acts, occur or may occur.
EXCLUSIVE JURISDICTION
Regardless of domicile, the following Courts have exclusive jurisdiction in proceedings concerning:
• Rights in rem, in immovable property or tenancies of immovable properties – the Courts of the Member State in which the property is situated.
• The validity of the constitution, the nullity or the dissolution of Companies or other legal persons or the validity of the decisions of their organs – the Courts of the Member State in which the legal person has its statutory seat.
• The validity of entries in public registers (i.e. registered shares, registered patents, trademarks, designs or other similar rights) – the Courts of the Member State in which the deposit or registration has taken place or has been applied for.
• The enforcement of judgments – the Courts of the EU country, in which the judgment has been or it to be enforced.
Jurisdiction Clauses
If the parties, one or more of whom is domiciled in an EU Member State, have concluded a choice of jurisdiction clause, the agreed Courts will have jurisdiction.
RECOGNITION AND ENFORCEMENT OF CIVIL JUDGMENT
A judgment issued in an EU Member State, is to be recognized in the other EU Countries, without any special procedure being required. Under no circumstances, may a foreign judgment be reviewed as to its substance.
A foreign judgment issued in any Member State, will not be recognized if:
• The recognition is manifestly contrary to public policy, of the Member State, in which recognition is sought;
• The Defendant has not been served with the Court documents at all, or in such a way as to enable him/her to arrange his/her defence.
• It is contrary to a judgment issued by the Courts of the Member States, where the recognition is sought.
• It is contrary to an earlier judgment issued by the Courts of another Member State, or a non EU Country, involving the same parties and the same cause of action.
The procedure of enforcement of a judgment issued by a Courts of an EU Member State, can be recognized and enforced in Cyprus, by an ex parte application, attaching true copy of the judgment, a Greek translation of same, as well as the relevant Certificate of the Court of the Members State which issued the said judgment with Greek translation of same.
The Respondent, may appeal against the decision of the Cyprus Courts declaring the recognition and enforcement of the foreign judgment.
Interim relief by Cypriot Courts in aid and/or in support of legal actions pending before Courts of Member States except Denmark.
Pursuant to Article 31 of the Regulation, Cyprus Courts have jurisdiction to issue interim injunctions in aid and/or in support of a Court action pending before Courts of Member States, except Denmark.
The interim relief is granted, without the filing of any action in Cyprus on the merits but on the basis of an application.
The applicant shall produce evidence by affidavit, in support of his application, identifying the pending legal action before the Courts of Member States, as well as satisfying the requirements under Cyprus law, for the issue of the requested interim orders (i.e. freezing orders, discovery orders, Anton Piller order, appointment of interim receiver / manager etc.).
Such jurisdiction, exists in cases where the respondents reside in Cyprus, or where the assets to be blocked, are within the jurisdiction of the Cyprus Courts.
The application can be made ex parte (i.e. without the presence of the Respondents) provided that the applicant, proves that there is urgency, or by summons, if such urgency cannot be proved.
Under Cyprus law ,there is a requirement for the applicant to deposit a counter-security in the event of issue of an injunction in order to secure any losses which the Respondents might suffer due to the issue of the injunction provided that the Court decides at a later stage that the injunction were issued without reasonable cause or mala fides.
Interim relief granted by Cyprus Courts pursuant to Article 31 of the Regulation in aid and/or in support of international commercial arbitration cases pending in EU Member States (except Denmark).
Pursuant to Article 31 of the Regulation, Cyprus Courts have jurisdiction to grant interim relief in aid and/or in support of arbitration proceedings pending in EU Member States. Anything stated above for interim relief in aid and/in support of Court actions pending before Courts of Member States apply also here.
Recognition in Cyprus of interim orders issued by Courts of Member States (except Denmark)
Pursuant to Articles 32-56 of the Regulation Cyprus Courts have jurisdiction to inter alia recognize and enforce any interim order (i.e. freezing orders, discovery orders etc.), issued by Courts of Member States in the context of actions filed before these Courts, provided that the said interim orders sought to be recognized and enforced are issued by summons and not ex parte.
For further information on this topic please contact
Mr. Soteris Pittas( spittas@pittaslegal.com ) at SOTERIS PITTAS & CO LLC,
by telephone (+357 25 028460) or by fax (+357 25 028461)
The content of this article is intended to provide a general guide to the subject matter. Specialist advise should be sought about your specific circumstances.
