Cross Border Enforcement of Claims in the EU: History, Present Time and Future
Published: March 2009
Publisher: Kluwer Law International
Country of Publication: Netherlands
Price: Out of print
In the legal areas of contractual claims and tax claims, various requirements exist in European Community law and in applicable conventions for the recognition and enforceability of foreign titles of execution, judgements and decisions. Besides the requirement that a foreign title of execution should fall under its particular scope of application, territorial scope, scope of claims, and scope in time, there are often additional requirements and limitations that give rise to both possibilities and restrictions, and play an important role in determining the enforceability or non-enforceability of claims. Consequently, an early analysis related to these provisions is a crucial step in assessing the possibility of success or risk of failure.
Also, this book focuses on preventive security arrangements and precautionary measures that offer creditors the widest possible assurance of obtaining an enforceable cross border title of execution and recovering claims in the event of non-payment by the debtor – all while adhering closely to such guiding principles as efficiency, legal certainty, predictability, and the establishment of a proper balance between the interests of the claimant and the defendant. The author pays close attention to relevant factors as the following:-
the debtor’s privacy interest, the creditor's efficiency interest, legal principles of non-discrimination, proportionality, territoriality, universality, and mutuality;
- the role of regulated enforcement and recovery agents;
- a foreign State’s immunity against civil execution measures;
- recognition and enforceability of titles of execution;
- interim measures;
- grounds of non-recognition or refusal and other obstacles to enforcement or recovery;
- periods of limitation;
- enforcement of a contested claim;
- costs and repayment;
- referral provisions to national laws;
- access to information for enforcement purposes in the international context;
- the possible alternative to cross border enforcement of claims, international insolvency;
- disqualification orders for non-serious or illegal business activity.
The analysis considers the provisions of applicable legal instruments, including the Brussels I Regulation, the European Enforcement Order for Uncontested Claims, the European Order for Payment Procedure, the European Small Claims Procedure, the Nordic Convention on Recognition and the Enforcement of Judgments in Civil Matters, the New York Convention on Foreign Arbitral Awards, the European Convention on Human Rights, the European State Immunity Convention, and the Vienna Conventions on Diplomatic and Consular Relations, as well as EC law on tax claims, the Recovery Directive, the OECD Convention on Mutual Administrative Assistance in Tax Matters, the Nordic Agreement on Assistance in Tax Matters, and EC law and multilateral conventions on insolvency. Case law at every level, including ECHR and ECJ case law, is drawn on liberally. Annexes reprint full texts of primary source documents.
Mikael Berglund, born in 1956, graduated at the Law School of the University of Stockholm and has become a Doctor of Laws in 2008 at the Stockholm School of Economics. He has practiced in court and as a private lawyer. Since 1993 he has been specializing in the legal areas of international enforcement of private and public claims at the Swedish Enforcement Authority.