Case of the Week: Litigating in the Shadow of Brexit

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BrexitThis week, yet another Brexit deadline expired without additional clarity as to when and on what terms Brexit will occur. This creates uncertainties, which affect business relations with British parties, and impact, amongst many other fields, civil litigation. So in this week’s Case of the Week, we present the three cases I know of in which German courts had to decide on Brexit-related issues. The cases deal with security for costs, the validity of choice of court agreements and with freezing orders in a Brexit context.  Continue reading

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Case of the Week: Brexit Does Not Facilitate Freezing Orders

olg-frankfurt-ganz-neu2In my opinion, obtaining a freezing order (Arrest) against the debtor pending final judgment tends to be rather difficult in this jurisdiction. Often, the courts set the bar for showing that “the enforcement of the judgment would be frustrated or be significantly more difficult”, as Section 917 German Code of Civil Procedure (ZPO) puts it, frustratingly high. It is somewhat easier if the debtor is situated abroad: Section 917 para. 2 ZPO stipulates that it is sufficient grounds for a freezing order if the judgment would have to be enforced abroad and there is no reciprocity with the foreign jurisdiction (Arrestgrund der Auslandsvollstreckung). As there is reciprocity across all member states of the European Union, this does not work, however, with respect to a debtor situated in the United Kingdom – at least for now.

In a recent case in the Frankfurt Court of Appeals (Oberlandesgericht), the applicant was seeking a freezing order against a German national who had moved to the United Kingdom. The applicant argued that given the United Kingdom’s decision to leave the European Union and given that a final judgment would not be in place prior to the current Brexit deadline of 31 October 2019, the reciprocity exemption should not apply to the United Kingdom. Accordingly the freezing order should be granted pursuant to Section 917 para. 2 ZPO.

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Seizure of Bank Accounts in Europe: European Account Preservation Order Available Now

1024px-Flag_Map_of_European_UnionOn January 18, 2017, new rules governing the seizure of bank accounts in the European Union came into force: The EU Regulation No 655/2014 of May 15, 2014 established a European Account Preservation Order (EAPO) to facilitate cross-border debt recovery in civil and commercial matters. The EAPO procedure is available immediately.  Continue reading

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2nd Litigation Committee Conference on Private International Law, November 17/18 2016, Milan

Palazzo TuratiFollowing the first successful IBA Litigation Committee Conference on Private International in Milan in 2014, the Litigation Committee is presenting the second edition, again in Milan. This year’s topic is The Hague Convention on Choice of Court Agreements: New Perspectives in International Commercial Dispute Resolution (click here for the full programme). Continue reading

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