Private International Law

1. Service of judicial and extrajudicial documents
2. Competent court of law
3. Governing law
4. Enforcement of foreign judgments

Service of judicial and extrajudicial documents

a. Within the EU

The amended EC Service Regulation makes it possible to serve legal documents issued within one member state of the EU in another. The United Kingdom and Ireland are signatories to this regulation but Denmark is not.

This regulation provides for a transmitting and receiving agency in every member state. The transmitting agency has the power to serve legal documents for service to a receiving agency in another member state.

After receiving a document, the receiving agency arranges for it to be served on the relevant person. After it has been served, the receiving agency ensures that a certificate of service is sent to the transmitting agency, accompanied by a copy of the document served in specific cases.

In special cases it is still possible for a member state to send documents for service to the receiving agency or a central organisation in another country through consular or diplomatic channels. Furthermore, any party with an interest in the relevant legal proceedings may arrange for a judicial officer, official or some other competent person to serve a document directly, provided that the legislation of the country concerned permits this.

Please click here for the full text of the amended EC Service Regulation.

b. Outside the EU

In case any party wants to have a judicial or extrajudicial document served from or in another country than those mentioned above, the Convention of 15 November 1965 applies to its 81 member states.

According to this convention each contracting state shall designate a central authority which will undertake to receive requests for service coming from other contracting states and to proceed in conformity with the provisions of the convention.

Such central authority may and usually will require that the document to be served be written in, or translated to, the official language or one of the official languages of the state addressed.

Each contracting state is free to effect service of judicial documents upon persons abroad directly through its diplomatic or consular agents.

In addition the convention gives the possibility to use consular channels to forward documents, for the purpose of service, to those authorities of another contracting state which are designated by such state for this purpose.

The convention shall neither interfere with the freedom to send judicial documents directly to persons abroad, nor with the freedom of judicial officers, officials or other competent persons of the state of origin to effect service of judicial documents through the judicial officers, officials or other competent persons of the state of destination. The convention shall not interfere with the freedom of any person interested in a judicial proceeding to effect service of judicial documents directly through the judicial officers, officials or other competent persons of the state of destination.

Where a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and the defendant has not appeared, judgment shall not be given until it is established that the document was served by a method prescribed by the internal law of the State addressed for the service of documents in domestic actions upon persons who are within its territory, or the document was actually delivered to the defendant or to his residence by another method provided for by this Convention, and that in either of these cases the service or the delivery was effected in sufficient time to enable the defendant to defend.

Each Contracting State shall be free to declare that the judge, notwithstanding the provisions of the first paragraph of this Article, may give judgment even if no certificate of service or delivery has been received, if the document was transmitted by one of the methods provided for in this Convention, a period of time of not less than six months, considered adequate by the judge in the particular case, has elapsed since the date of the transmission of the document, and no certificate of any kind has been received, even though every reasonable effort has been made to obtain it through the competent authorities of the State addressed.

When a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and a judgment has been entered against a defendant who has not appeared, the judge shall have the power to relieve the defendant from the effects of the expiration of the time for appeal from the judgment if the defendant, without any fault on his part, did not have knowledge of the document in sufficient time to defend, or knowledge of the judgment in sufficient time to appeal, and the defendant has disclosed a prima facie defence to the action on the merits.

To see which states are contracting states to the convention, please click here.

For extrajudicial documents, the contracting states have agreed on a separate arrangement in the convention.

Please click here for the full text of the the Convention of 15 November 1965.

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Competent court of law

In civil cases of an international nature there are always two preliminary questions which need to be answered before proceeding with a substantive assessment of a case.

1. The first question concerns which court of law enjoys jurisdiction to hear a dispute between the parties involved.
2. The second question pertains to the law which needs to be applied for the purposes of assessing the relevant dispute.

It is far from always being the case that a court which enjoys jurisdiction may apply its own national law in relation to the matter before it. The applicable law is determined by a number of treaties and regulations.

On this page we are concerned with the question as to which court of law enjoys jurisdiction to administer justice in a specific case. The question as to which law applies in the relevant case is dealt with elsewhere on this website.

Brussels I Regulation (revised)

With regard to the question as to which court enjoys jurisdiction to administer justice in a dispute between parties in a case of an international nature, the revised Brussels I Regulation of the European Parliament and the Council of the European Union of 12 December 2012 is decisive within Europe. This regulation came into effect on 10 January 2015.

It sets out the powers of the courts in civil and commercial matters. The regulation stipulates that, except where it is disputed, any judgment handed down in a member state of the European Union must be recognised in any other member state without any special proceedings. A declaration to the effect that a judgment is enforceable must be issued merely after a formal check of the documents submitted. The regulation does not stipulate any grounds for non-enforceability, although the various legal bodies may not present any ex officio.

Chapter II of this regulation deals with legal jurisdiction.

Fields of law excluded

This regulation does not apply to revenue, customs or administrative matters, nor any matter pertaining to the law governing natural persons and families, matrimonial property, succession, bankruptcy, social insurance or arbitration.

Rules of jurisdiction

The main rule stipulated in Article 4 is that anyone may always be summonsed to appear before a court of law in the member state in which they are domiciled. Such jurisdiction applies irrespective of the relevant party's nationality. Domicile is determined with the aid of the legislation of the member state in which the court is seized of the relevant case. Where a party is not domiciled in the member state in which the court is seized of the case concerned, the court is required to apply the law of another member state for the purposes of determining whether that party is domiciled in that member state. Where a defendant is domiciled in a state outside the EU, the rules of national jurisdiction in the state in which they are domiciled will apply.

Depending on the nature of the claim, separate rules of jurisdiction may also apply over and above the jurisdiction referred to in Article 4, which rules entail that within the EU a court in another member state may enjoy jurisdiction in addition to one in the country in which the defendant is domiciled.

Where parties of whom no less than one is domiciled within the territory of the EU have entered into an agreement which stipulates a choice of forum, the court to which the parties have agreed will enjoy jurisdiction. The regulation sets out formalities in relation to such a choice of forum. It must have been agreed to in writing or a manner permissible based on the actions to which the parties have agreed or, in the case of international trade, in a form which corresponds to customs with which the parties are familiar.

Furthermore, a court of law in the member state in which the undertaking serving as the basis for the relevant claim needs to be implemented enjoys jurisdiction to assess such a claim pursuant to the relevant agreement. In the case of a purchase agreement it is the member state in which the goods that have been purchased must (or should have been) delivered. Where an agreement to provide services is involved, it is the member state in which the services must (or should have been) provided.

In the case of an insurance case the relevant insurer may be summonsed to appear before a court of law in the member state within which it has its registered office or the plaintiff is domiciled where the claim is filed by the policyholder, the insured or a beneficiary. Where a dispute involves liability or property insurance, the relevant insurer may be summonsed to appear before a court of law in the place where the event giving rise to the claim occurred.

The regulation also includes provisions concerning jurisdiction in relation to agreements concluded by consumers. A consumer is a person who enters into an agreement with someone practising a trade or profession for purposes other than business or professional ones. This includes all agreements between a consumer and any person who conducts business operations or professional activities within the territory of the EU with the exception of any agreement pursuant to which both transport and accommodation are offered in return for a single price. Apart from the purchase or sale in instalments of tangible, movable goods, an instalment loan or any other credit transaction for the purposes of financing the sale of such goods, the protection of a consumer will only be secured, provided that the relevant agreement has been concluded with a person who conducts business operations or professional activities in the member state in which that consumer is domiciled or directs such operations or activities towards that member state. A consumer may file a legal claim before a court of law in the member state within whose territory the defendant is domiciled or in which that consumer (the plaintiff) is domiciled. A legal claim which a contracting party to an agreement files against a consumer may only be brought before a court of law in the member state in which the consumer is domiciled.

In the case of an individual obligation pursuant to an employment contract an employee may summons their employer to appear before a court of law in the member state in which the latter is domiciled or in which that employee normally performs their work. Where an employee does not usually carry out their work in the same country, they may summons their employer to appear before a court of law in the place in which the establishment that has employed them is located. An employer which is not domiciled in a member state but has a branch, agency or some other establishment in it is deemed to be domiciled in that member state. An employer may only file a claim against any of its employees before a court of law in the place in which that employee resides.

A claim pursuant to tort may be brought before a court of law in the country in which the event giving rise to the claim has occurred or may occur. Anyone disadvantaged as a result of a criminal offence may petition a court of law capable of adjudicating the criminal aspects of the matter for compensation or the return of any goods belonging to them. This is subject to the condition that such a court may also consider the civil claim associated with the criminal matter in accordance with local legislation.

Anyone who claims to have a proprietary right in relation to a cultural object as defined in Article 1(1) of Directive 93/7/EC may file a claim for the return of that object before a court of law in the state within which that object may be found at the time when legal proceedings are instituted. This refers to an object which constitutes part of the public cultural heritage of a country or the inventory of a religious institution and which has unlawfully disappeared from the relevant territory.

A lawsuit pertaining to a branch, agency or other establishment may be filed before a court of law in the country in which it is located. Trust-related matters may be brought before a court of law in the country in which the relevant trust is domiciled.

Irrespective of domicile, the courts referred to below enjoy exclusive jurisdiction to hear claims concerning:

• real rights to let or lease immovable property for the long or short term (a court of law in the member state in which that property is located);
• the validity, nullity or dissolution of companies or legal entities, or a decisions taken by any of their bodies (a court of law where the legal entity has its registered office);
• the validity of any registration in a public register (a court of law in the member state in which such register is held);
• the filing or validity of a patent, mark, drawing, industrial design or any other similar right (a court of law in the member state within whose territory such filing or registration is sought or has occurred pursuant to a decision taken by the Union or an international convention);
• the enforcement of a decision (a court of law in the member state in which the place of enforcement is located).

Provisions have been inserted into the regulation in relation to co-defendants in the case of a petition for indemnification, an application for joinder or intervention, a counterclaim and also a contractual obligation, provided that the petition or application may be accompanied by a real action involving immovable property. The regulation also provides for a mechanism for lis pendens and related actions.

Click here for the full text of the Brussels I Regulation (revised).

1988 Lugano Judgments Convention

In accordance with the 1988 Lugano Judgments Convention, similar rules governing jurisdiction apply in relation to cases between parties in the Netherlands and others in Iceland, Norway or Switzerland.

Click here for the full text of the 1988 Lugano Judgments Convention.

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Governing law

In civil cases of an international nature there are always two preliminary questions which need to be answered before proceeding with a substantive assessment of a case.

The first question concerns which court enjoys jurisdiction to hear a dispute between the parties involved.

The second question pertains to the law which needs to be applied for the purposes of assessing the relevant dispute.

It is far from always being the case that a court which enjoys jurisdiction may apply its own national law in relation to the matter before it. The applicable law is determined by a number of treaties and regulations.

The question as to which court enjoys jurisdiction in the relevant case is dealt with elsewhere on this website.

An explanation of the law which applies in relation to any case of an international nature is provided below. Amongst other things, this is the case where the parties are subjects of various countries, where a matter involves a choice of law other than that of the nationality of the two parties involved, or where a lawsuit is concerned which is relevant to a country other than that of the parties in question to a significant extent.

Here we are not concerned with the question as to which court of law enjoys jurisdiction to hear a specific case. That question is dealt with elsewhere on this website.

Conventions (Rome 1 Regulation)

The Rome I Regulation of 17 June 2008 (593/2008, OJEU, L177/6) stipulates which national law governs obligations pursuant to an agreement of a cross-border nature. As in the case of numerous other regulations which saw the light of day during the first decade of this century, this regulation is the product of a combined programme of measures which the European Council adopted on 30 November 2000.

This programme seeks to achieve an ever increasing degree of harmonisation within the European internal market. One aspect of it is that the same conflict-of-law rules apply within the EU as far as possible with the result that, irrespective of the country in which one institutes legal proceedings, one may always assume that the same national law will apply in every case.

This convention does not apply in relation to, amongst other things, agreements on matters pertaining to the law governing natural persons and families, matrimonial property, bills of exchange, cheques, arbitration agreements, legal entities and pre-contractual obligations.

Article 2 of the convention accords it a universal character, which means that it is applicable within the territory of the signatory countries, irrespective of whether or not the agreement which is to be assessed is in any way associated with a member state. The underlying principle is that the parties are at liberty to agree on the law which is to govern their agreement. Nevertheless, any provisions of mandatory law which would apply in the absence of a choice of law will remain in effect.

Article 4(1) stipulates which law is to apply in relation to a number of agreements referred to in it in the absence of any choice of law by the parties. Where an agreement is not covered by any of those mentioned, in accordance with Article 4(2) it will be governed by the law of the country of the party that is to effect the more characteristic performance.

Where it is clear that a contract is manifestly more closely connected with another country, the law of that other country will apply – Clause (3). Should it be impossible to determine which law is applicable under Clause (1) or (2), the law of the country with which the relevant agreement is most closely associated will apply.

Separate rules stipulated in Articles 4 to 8 of the regulation apply in the case of transport, consumer, insurance and individual employment contracts.

Article 9 entails that a court of law before which legal proceedings have been instituted will apply any overriding provisions of mandatory law which are applicable within its scope of operation irrespective of which law is applicable in accordance with the Rome 1 Regulation. A court may also accord legal consequences to provisions of mandatory law in the country in which obligations need to be or have been complied with in so far as those provisions would render the execution of the relevant agreement unlawful. Overriding provisions of mandatory law are deemed to be those provisions to which a country attaches such great value for the purposes of upholding its public interests, that they need to be applied in all cases which fall within their scope of operation, irrespective of the law governing the relevant agreement.

The existence and validity of an agreement or any of its provisions are governed by the law which would have been applicable if that agreement or the relevant provision would have been valid. When it comes to the formal validity of an agreement, the regulation also contains a separate set of rules which have their own unique significance and extend further than a reference to the law which governs the relevant agreement.

Click here for the full English text of the regulation.

Non-contractual obligations (Rome II Regulation)

Regulation (EC) No. 864/2007 of 11 July 2007 (Rome II) governs non-contractual obligations. Not only does this refer to obligations pursuant to tort but also other non-contractual duties, such as those due to unlawful enrichment, undue payment, negotiorum gestio, and pre-contractual good faith on the grounds of discontinued negotiations.

It does not include any claim which arises pursuant to relations governed by family law, matrimonial law or the law of succession, a claim in relation to a financial instrument, a legal entity, a trust or a nuclear accident, or a claim pursuant to an infringement of privacy or personality rights, including slander or libel.

The regulation enjoys universal application, which means that the law which it designates is applicable, even if that law is that of the country which is not a member state.

Tort

The rule of thumb is that the law of the country in which the loss occurs is applicable, even if the event occasioning that loss or the indirect consequences of that event has or have occurred elsewhere. As far as the latter is concerned, the preamble to the convention provides an example. In the case of bodily injury or damage to property the law of the country in which such injury or damage is sustained is applicable.

However, where both the perpetrator of such harm as well as the person who sustains it are normally domiciled in the same country at the time when such harm occurs, the law of that country is applicable.

Where there is a manifestly closer relationship between the unlawful deed and another country, the law of that country is applicable. This would be the case if a legal relationship already existed between the parties involved which was closely associated with the unlawful deed, such as an agreement.

In the case of environmental harm, the disadvantaged party may also base their claim on the law of the country in which the event causing the harm occurred .

Product liability

In the case of product liability the law of the country in which the party suffering the loss was normally domiciled at the time when that loss occurred is first and foremost applicable, provided that the product in question had already been introduced into the market in that country.

Where this is not the case, the law of the country from which the product has been sourced is applicable, provided that the product had already been introduced into the market in that country.

If this is not the case either, the law of the country in which the loss has occurred is applicable, provided that the product had already been introduced into the market in that country.

The foregoing would not be the case where the party whose liability might be at issue could reasonably not have foreseen that the product concerned would be introduced into the market in any of the aforementioned countries. In that case the law of the country in which that party is normally domiciled is applicable.

Unfair, or restriction of, competition

An obligation pursuant to tort which follows from an act of unfair competition is governed by the law of the country in which the conditions of competition or collective consumer interests are prejudiced or there is a danger of this occurring.

However, where only a specific competitor's interests are at issue, the rules summarised under "Tort" are applicable.

A non-contractual obligation which follows from a restriction of competition is governed by the law of the country whose market is affected. Where a disadvantaged party summons a defendant to appear before a court of law in the country in which the latter is domiciled, the disadvantaged party may base their claim on the law that country, provided that the market in that country is also directly affected by the relevant restriction of competition. In the event that a disadvantaged party summons various defendants to appear before the same court of law, the disadvantaged party may only base their claim on the law of the country of that court, provided that the restriction constituting the basis for the claim also directly and significantly affects the market in the country of that court.

Click here for the full English text of the regulation.

Law governing natural persons and families

Matrimonial property law

Law of succession

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Enforcement of foreign judgments

The introduction of the revised Brussels I Regulation has an important consequence in that a judgment handed down by a court of law in a state governed by that regulation may be passed to a court in a state governed by the regulation for execution without its substantive assessment.

Other than in the case of the previous option of a European enforcement instrument, enforcement may also occur directly in another state where the relevant lawsuit has been adjudicated in a defended action.

This regulation came into effect in all of the countries which have adopted it on 10 January 2015. This regulation will apply separately in Denmark, the United Kingdom and Ireland. As such, this regulation applies in all of the EU member states.

Disregarding any exceptions, under the terms of Article 39 of the regulation any judgement handed down within a member state is executable immediately without a declaration of enforceability being required any longer. Consequently, there is no longer any need to institute separate exequatur proceedings in the country in which a foreign judgment is to be enforced.

Acting at the request of the interested party, the judicial tribunal in the country in which judgment is handed down issues a declaration to the effect that it is enforceable.

Under no circumstances is the veracity of the judgment examined in the country in which its enforcement is sought.

Nevertheless, the recognition and enforcement of a foreign judgment handed down in a member state may be denied on a limited number of other, mainly formal grounds. However, an application will have to be filed for this purpose by the party against whom enforcement of the relevant judgment is sought.

Click here for the full English text of the revised Brussels I Regulation.