Case of the Week: Brexit Does Not Facilitate Freezing Orders

Featured

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, the freezing order should be granted pursuant to Section 917 para. 2 ZPO.

Continue reading

Share and Enjoy

The Month in Retrospect: What Else Happened in July

Robert BoyleEvaluation of the Mediation Act

Five years ago, the Mediation Act (Mediationsgesetz) came into force. We did cover the legislative process on the blog in quite some detail. The Act provided for an evaluation to take place at the fifth anniversary. This report has now been published by the Federal Ministry of Justice. Here is a link to the full report, and here is a link to a summary produced by Professor Reinhard Greger, who served as a judge at the Federal Supreme Court before becoming a full-time academic. His summary is critical of the success of the Act: In essence, the total number of mediations remains low, and has not increased significantly since the Act came into force. Only very few mediators can actually earn a meaningful income by providing mediation services. Continue reading

Share and Enjoy

Case of the Week: No English Translation Required for Service of German Proceedings on Facebook in Ireland

Le_palais_de_justice_de_Littenstrasse_(Berlin)_(6303550695)This case of the week deals with the question if and when a translation is required if service of proceedings is effected abroad. It arose in an action brought by a German Facebook user against Facebook Ireland, the Facebook entity through which Facebook apparently conducts its business in mainland Europe. As always in matters of service, we are not really concerned with the underlying facts, but it appears that Facebook blocked the user’s account, and the user wanted to have this measure removed. Initial correspondence by email led to nothing. Facebook Ireland refused to de-block the account with an email; an email, it must be noted, written in German. The user then issued proceedings in the Local Court (Amtsgericht) Berlin-Mitte, filing a statement of claim in German. No translation was ordered, and all the papers were served on Facebook in Ireland in German only. Facebook challenged the validity of Service. Continue reading

Share and Enjoy

ABA Journal’s Top 100 Blawgs: Call for Nominations

1213_Blawg100250There are (still) quite a few things in the United States I envy. Certainly, one of these is the thriving legal blogosphere – they have so many legal blogs over there, they even created a neologism for them: blawgs. Every year since 2007, the American Bar Association’s ABA Journal has assembled a list of their 100 favorite blawgs for the December issue.

Continue reading

Share and Enjoy