Running head: CIVIL PROCEDURE - LAW EXAM 1
CIVIL PROCEDURE
(SUMMARY LAW EXAM)
Name
Institution
Course
Tutor
Date
,CIVIL PROCEDURE – EXAM LAW 2
CIVIL PROCEDURE
Introduction
- Definitions, Courts, Jurisdiction in personam, Jurisdiction in rem
- Principle of jurisdiction in personam
- Jurisdiction under EU Law
- Harmonization efforts for transnational civil procedure
- Independence, impartiality, and competence
Scope
- International and inter-territorial jurisdiction of courts in civil litigation
- Huber: De Conflictu Legum (on the conflict of laws)
- Private international law
Court
- Governmental institution with authority to resolve disputes
Jurisdiction
- “power of a court to adjudicate cases and issue order”
= territory within which a court/ government agency may properly exercise its power
- Domestic or international?
A discussion on territoriality can be relevant to both domestic (town/ state territory) and
international (Country A/ B) disputes
The principle of territoriality is a concept associated with PIL (Lotus Case)
Apostilles
Hague Convention of 5 October 1961 Abolishing the Requirement of Legislation for
Foreign Public Documents (“Apostille Convention”)
Purpose: facilitates the circulation of public documents executed in one state party to
the convention and to be produced in another state party to the convention
it does so by replacing the cumbersome and often costly formalities of a full
legislation process (chain certification) with the mere issuance of an Apostille (also
called Apostille Certificate or Certificate)
citizens (in states that do not require foreign public documents to be legalized/ do not
know concept of legalization in their domestic law) enjoy the benefits of the
convention whenever they intend to produce a domestic public document in another
state party which requires authentication of the document concerned
who may issue and Apostille and how to verify the origin of an Apostille?
,CIVIL PROCEDURE – EXAM LAW 3
~ only issued by a competent authority designated by the state from which the public document
emanates – permanent bureau (secretariat) of the Hague Conference on PIL does not issue
~ placed by competent authority on the public document itself or on an allonge – should conform the
model annexed to the convention
~ each competent authority is required to keep a register in which it records the apostilles it has issues
– registers (may be accessed by any interested person) are essential to combat fraud and verify the
origin of an apostille in case of doubt
Effect = certify the authenticity of the signature, the capacity in which the person
signing the document has acted and the identity of the seal or stamp which the
document bears ~ does not relate to the content of the underlying document itself
Monitoring of the Convention ~ Special Commission meetings convened by the
Permanent Bureau of the Hague Conference => wide use and effectiveness; absence
of any major practical obstacle; no obstacle to the usage of modern technology –
application and operation can be further improved by relying on such technology
Electronic Apostille Program – officially launched in 2006; aim: promote and assist
with the implementation of low-cost, operational and secure software technology
(i) Issuance of electronic Apostilles
(ii) Operation of electronic registers of apostilles can be accessed online by
recipients to verify the origin of (both paper and electronic) Apostilles they
have received
effective tool to enhance secure and effective operation of the Convention; increase in security and
offering powerful and effective deterrent to fraud
Jurisdiction v Judgment
- Jurisdiction: ability of a court to issue a judgment
- Judgment: actual decision of the court
Jurisdiction in personam
- Jurisdiction over a person
Leads to judgment in personam => a judgment that is binding a person
- Binding?
Judge rules for James to pay a compensation of 40,000$ to Maria – Can James avoid to pay?
Jurisdiction in rem
- Jurisdiction over an object
Judgment in rem => binding for everyone using that object
- If the ship named Maria is banned from entering the Rotterdam harbour due to its
measurements, this decision is binding for any owner of this ship
- One 1958 Plymouth Sedan v Pennsylvania, 380 US 693 (1965) – RMS Titanic v Wrecked and
Abandoned Vessel, 286 F. 3d 194 – Court of Appeals, 4th
, CIVIL PROCEDURE – EXAM LAW 4
Principles
- Jurisdiction in personam
Generally affiliating circumstances: appropriate connection between the person and the
actor (i.e. actor forum rei sequitur)
Specifically affiliating circumstances: the action subject to the case took place within the
territorial authority of the court (i.e. contract breach)
- Jurisdiction in rem
The presence of the object within the territorial authority of the court
Impartiality
- Actor forum rei sequitur: the action against the defender should take place in defender’s court
Why is it a good principle from the perspective of P-1 UNIDROIT?
Impartiality of the court – assumption that the risk of someone being biased against a
foreigner is existent
-Contract breach: Where the contract is signed? Where the breach occurred?
Could also cause the court having jurisdiction over sth
Scope and implementation
- These principles are standards for adjudication of transnational commercial disputes –
may be equally appropriate for the resolution of most other kinds of civil disputes and
may be the basis for future initiatives in reforming civil procedure
Comment: P-A
national system seeking to implement these principles could do so by a suitable legal
measure, e.g. a statute or set of rules, or an international treaty
Forum law may exclude categories of matters from application of these principles and
may extend their application to other civil matters
Courts may adapt their practice to these principles, esp. with the consent of the parties to
litigation
These principles also establish standards for determining whether recognition should be
given to a foreign judgment – see principle 30
procedural law of the forum applies in matters not addressed in these principles.
P-B
adoptive document may include a more specific definition of commercial and
transnational
That task will necessarily involve careful reflection on local legal tradition and
connotation of legal language
Transnational commercial transactions may include commercial contracts between
nationals of different states and commercial transactions in a state by a national of another
state
Commercial transactions may incl. sale, lease, loan, investment, acquisition, banking,
security, property (incl. intellectual property), and other business or financial transactions,
but do not necessarily include claims provided by typical consumer-protection statutes
P-C
CIVIL PROCEDURE
(SUMMARY LAW EXAM)
Name
Institution
Course
Tutor
Date
,CIVIL PROCEDURE – EXAM LAW 2
CIVIL PROCEDURE
Introduction
- Definitions, Courts, Jurisdiction in personam, Jurisdiction in rem
- Principle of jurisdiction in personam
- Jurisdiction under EU Law
- Harmonization efforts for transnational civil procedure
- Independence, impartiality, and competence
Scope
- International and inter-territorial jurisdiction of courts in civil litigation
- Huber: De Conflictu Legum (on the conflict of laws)
- Private international law
Court
- Governmental institution with authority to resolve disputes
Jurisdiction
- “power of a court to adjudicate cases and issue order”
= territory within which a court/ government agency may properly exercise its power
- Domestic or international?
A discussion on territoriality can be relevant to both domestic (town/ state territory) and
international (Country A/ B) disputes
The principle of territoriality is a concept associated with PIL (Lotus Case)
Apostilles
Hague Convention of 5 October 1961 Abolishing the Requirement of Legislation for
Foreign Public Documents (“Apostille Convention”)
Purpose: facilitates the circulation of public documents executed in one state party to
the convention and to be produced in another state party to the convention
it does so by replacing the cumbersome and often costly formalities of a full
legislation process (chain certification) with the mere issuance of an Apostille (also
called Apostille Certificate or Certificate)
citizens (in states that do not require foreign public documents to be legalized/ do not
know concept of legalization in their domestic law) enjoy the benefits of the
convention whenever they intend to produce a domestic public document in another
state party which requires authentication of the document concerned
who may issue and Apostille and how to verify the origin of an Apostille?
,CIVIL PROCEDURE – EXAM LAW 3
~ only issued by a competent authority designated by the state from which the public document
emanates – permanent bureau (secretariat) of the Hague Conference on PIL does not issue
~ placed by competent authority on the public document itself or on an allonge – should conform the
model annexed to the convention
~ each competent authority is required to keep a register in which it records the apostilles it has issues
– registers (may be accessed by any interested person) are essential to combat fraud and verify the
origin of an apostille in case of doubt
Effect = certify the authenticity of the signature, the capacity in which the person
signing the document has acted and the identity of the seal or stamp which the
document bears ~ does not relate to the content of the underlying document itself
Monitoring of the Convention ~ Special Commission meetings convened by the
Permanent Bureau of the Hague Conference => wide use and effectiveness; absence
of any major practical obstacle; no obstacle to the usage of modern technology –
application and operation can be further improved by relying on such technology
Electronic Apostille Program – officially launched in 2006; aim: promote and assist
with the implementation of low-cost, operational and secure software technology
(i) Issuance of electronic Apostilles
(ii) Operation of electronic registers of apostilles can be accessed online by
recipients to verify the origin of (both paper and electronic) Apostilles they
have received
effective tool to enhance secure and effective operation of the Convention; increase in security and
offering powerful and effective deterrent to fraud
Jurisdiction v Judgment
- Jurisdiction: ability of a court to issue a judgment
- Judgment: actual decision of the court
Jurisdiction in personam
- Jurisdiction over a person
Leads to judgment in personam => a judgment that is binding a person
- Binding?
Judge rules for James to pay a compensation of 40,000$ to Maria – Can James avoid to pay?
Jurisdiction in rem
- Jurisdiction over an object
Judgment in rem => binding for everyone using that object
- If the ship named Maria is banned from entering the Rotterdam harbour due to its
measurements, this decision is binding for any owner of this ship
- One 1958 Plymouth Sedan v Pennsylvania, 380 US 693 (1965) – RMS Titanic v Wrecked and
Abandoned Vessel, 286 F. 3d 194 – Court of Appeals, 4th
, CIVIL PROCEDURE – EXAM LAW 4
Principles
- Jurisdiction in personam
Generally affiliating circumstances: appropriate connection between the person and the
actor (i.e. actor forum rei sequitur)
Specifically affiliating circumstances: the action subject to the case took place within the
territorial authority of the court (i.e. contract breach)
- Jurisdiction in rem
The presence of the object within the territorial authority of the court
Impartiality
- Actor forum rei sequitur: the action against the defender should take place in defender’s court
Why is it a good principle from the perspective of P-1 UNIDROIT?
Impartiality of the court – assumption that the risk of someone being biased against a
foreigner is existent
-Contract breach: Where the contract is signed? Where the breach occurred?
Could also cause the court having jurisdiction over sth
Scope and implementation
- These principles are standards for adjudication of transnational commercial disputes –
may be equally appropriate for the resolution of most other kinds of civil disputes and
may be the basis for future initiatives in reforming civil procedure
Comment: P-A
national system seeking to implement these principles could do so by a suitable legal
measure, e.g. a statute or set of rules, or an international treaty
Forum law may exclude categories of matters from application of these principles and
may extend their application to other civil matters
Courts may adapt their practice to these principles, esp. with the consent of the parties to
litigation
These principles also establish standards for determining whether recognition should be
given to a foreign judgment – see principle 30
procedural law of the forum applies in matters not addressed in these principles.
P-B
adoptive document may include a more specific definition of commercial and
transnational
That task will necessarily involve careful reflection on local legal tradition and
connotation of legal language
Transnational commercial transactions may include commercial contracts between
nationals of different states and commercial transactions in a state by a national of another
state
Commercial transactions may incl. sale, lease, loan, investment, acquisition, banking,
security, property (incl. intellectual property), and other business or financial transactions,
but do not necessarily include claims provided by typical consumer-protection statutes
P-C
