English-Cypriot Law Day - PowerPoint Presentation

Slide1

English-Cypriot Law Day

Friday 3 June

2016

Hilton Hotel, 98 Archbishop

Makarios

III

Avenue, Nicosia, 1077, CyprusSlide2

Chantal-Aimée Doerries

QC

Chairman

of the Bar Council of England and Wales&Theodoros IoannidesPresident of Cyprus Bar Association

Welcome

09:30 – 09:45Slide3

Speakers:

Mr Myron

Nikolatos

President of the Supreme CourtMr Ionas Nicolaou Minister of Justice and Public OrderMrs Elena Zachariadou

Attorney of the Republic on behalf of the Attorney General

Conference Opening

09:45 – 10:00Slide4

Comparative analysis of the Brussels recast - issues of jurisdiction and parallel proceedings

10.00 – 11.00

Moderator:

Dr Kypros Chrysostomides – Dr. K. Chrysostomides & Co LLC Speakers:Shobana Iyer

–

Swan Chambers

Alexandros

Tsirides

–

Costas

Tsirides

& Co LLC

Konrad Rodgers

–

Boies

Schiller & Flexner (UK) LLPSlide5

Brussels Recast Key Changes:

Additional circumstances where non-member state defendants may be sued in a member state court:

Amendments to the rules relating to consumers (Recital 14 & Art17-18) and employment contracts (Recital 14 & Art 20-21) so that protective heads of jurisdiction will apply even where the counter-party is domiciled outside the EU.

A modification to the rules which allocate jurisdiction exclusively to the courts of a particular country in certain types of cases (Art 24) Amendments to the rules relating to jurisdiction agreements (Art 25). Exception to the first seed rule: Lis pendens exception under Art 31 (& Recital 22) New discretion to stay proceedings in favour of non-EU courts (Art 33-34)The abolition of exequatur for a simplified mechanism for the recognition and enforcement of judgments of member states courtsAdditional text clarifying the scope of the arbitration exclusion (Recital 12 & Art 1(2)(d))Slide6

Brussels Recast: Article 25 Art 25(1):

“If the parties,

one or more of whom is domiciled in a Member State, regardless of their domicile, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction,

unless the agreement in null an void as to its substantive validity under the law of that Member State. Such jurisdiction shall be exclusive unless the parties have agreed otherwise..”Expanding the application- no need for one party to be domiciled in a Member State, avoid investigating into the domicile of the parties,Separability: “shall be treated as an agreement independent of the other terms of the contract” (Art 25(5)). Validity of jurisdiction clause cannot be challenged solely on the basis that the substantive contract in invalid. (Fiona Trust Holdings Corp –v- Privalov [2007] UKHL 40)Law determining “substantive validity” : whether the scope of a particular dispute falls within the scope of a particular jurisdiction agreement is a question of contractual construction to be answered by the Member State court designated in the agreement. This is to include the conflict of laws rules go that Member State (Recital 20)Permission to serve out of jurisdiction is not needed for non-EU defendants where Art 25 is effective (CPR6.33(2)) Slide7

Article 25: Requirements for an effective choice of jurisdiction agreement

Two requirements for the agreement to be effective (Art 25(1)):

(1) Consensus: there must be consensus between the parties as to the court or courts of a Member State to have jurisdiction to settle the disputes between them

(2) Form: the agreement must be in ‘writing’ in a form according to the practices of the parties or as one of trade or commerce usage. -when determining these procedural requirements are met, the court must apply EU law (Antonio Gramsci -v- Stepanov [2011] EWHC 333 (Comm); Powell Duffryn -v- Wolfgang Petereit [1992] Case C-214/89)Whether unilateral, hybrid or asymmetric clauses satisfy Art 25 given decisions? La Societe Banque privEe Edmond de Rothchild Europe v X [2013] ILPr

where the French Supreme Court held that a jurisdiction clause which bound the customer to suing in Luxemburg while permitting the bank to sue her in any court in which it had jurisdiction was void.

Danne

Holding v Credit Suisse

du 25 Mars 2015 (13–27.264

MJA (acting for

EBizcuss.com

) v Apple Sales International

Arrêt

no 1053 du 7

octobre

2015 (14–16.898) (judgment available in French)

Mauritius Bank Ltd v Hestia Holdings Ltd and

Sujana Universal Industries Ltd [2013] EWHC 1328 (Comm), [2013] 2 All ER (Comm) 898 Slide8

Arbitration ExclusionExclusion of arbitration at Art 1(2)(d) retained without alteration but a new recital has been introduced - Recital 12:

Member State Courts may decide issues ancillary to an arbitration (Recital 12§1)

Rulings by member state courts concerning whether arbitration agreements are null and void, inoperative, or incapable of being performed do not have to be recognised or enforced in other member state courts (Recital 12§2)

A judgment of a member state court following a finding that an arbitration agreement is null and void, inoperative, or incapable of being performed must be recognised and enforced by other member state courts (Recital 12 §3)Brussels Recast does not apply to ancillary proceedings to arbitration (recital 12§4) (in particular establishment of tribunal, powers of arbitrators, conduct of arbitration or action or judgment concerning he annulment, review, appeal, recognition or enforcement of an award)New provision confirming 1958 New York Convention takes precedence over Brussels Recast (Art 73(2).Slide9

THE RECAST BRUSSELS REGULATIONA LOOK AT SPECIAL JURISDICTION PROVISIONSSection 3-Insurance ContractsSection 4-Consumer ContractsSection 5-Employment Contracts

Section 6-Exclusive JurisdictionSlide10

Article 24-Exclusive JurisdictionArticle 24 (old Article 22) grants exclusive jurisdiction to the Courts of a particular Member State in the following circumstancesDisputes in relation to immovable propertyDisputes in relation to the validity of the constitution, the nullity or the dissolution of companies or the validity of the decisions of their organs

Disputes in relation to validity of entries in public registries

Disputes in relation to registrable intellectual property rights

Does it apply in cases where Defendant is not domiciled in a member state?- Choudhary v Bhatter [2009] EWCA Civ 1176 and Dar Al Arkan Real Estate Development Co & another v Majid Al-Sayed Bader Hashim Al Refai & others [2014] EWCA Civ 715. Recital 14 of Recast Brussels clarifies that it doesSlide11

Articles 18 and 21Special Jurisdiction of the Courts in cases of employment contracts and consumer contractsBrussels Regulation applied only where the employer or trader was domiciled in a member state. Recast Brussels Regulation removes this obstacle. A non EU employer or trader may be sued in the EU in certain circumstancesA non-EU employer may be sued in the member state where the employee habitually carries out his work, or last did so and

A non-EU trader can be sued in the member state where the consumer is domiciled, provided that the trader directs commercial or professional activities to that member state and the contract falls within the scope of those activitiesSlide12

Articles 10-16Protection of weak party in contracts of insurance.No significant changesRecital 18 of the Recast Brussels regulation confirms, in a wording close to the one of Recital 13 of the Brussels Regulation, that the protection of the ‘weaker party’ remains the main objective in insurance mattersMost significant change found in Article 26It is now required from the court seized that, before assuming its jurisdiction, it ensures that the ‘weaker party’, when defendant, ‘is informed of his right to contest the jurisdiction of the court and of the consequences of entering or not entering an appearance’.

Article 26 applies to Employment contracts and consumer contracts as wellSlide13

Session 1 : Comparative analysis of Recast Brussels Regulation

Lis

pendens

– related actions in Member States (Articles 29-32)II. Lis pendens involving a non Member State (Articles 33-34)III. Interaction between the Recast Brussels Regulation and the Hague Convention on Choice

of Court Agreements

Konrad RodgersSlide14

I. Lis pendens – Member States (Articles 29-32)

Under

the 2001 Brussels Regulation, the

second Member State court seised of a dispute was obliged to stay proceedings until the first court seised had determined whether it had jurisdiction over the dispute, irrespective of the existence of an exclusive choice of court agreement between the parties.This permitted a party wishing to delay proceedings to initiate pre-emptive proceedings in a slow moving jurisdiction different from one the parties had selected to settle their disputes (known as the “Italian torpedo”).

The Recast Brussels Regulation addresses this problem,

in order to enhance the effectiveness of exclusive choice-of-court agreements and to avoid abusive litigation tactics per Recital 22,

by requiring other Member States to defer to the court designated in the parties’ agreement

If

one party to a choice of court agreement initiates proceedings in the chosen court, all other Member State courts must either “

stay the proceedings until such time as the court

seised

on the basis of the agreement declares that it has no jurisdiction

” (Article 31(2)) or, if the chosen court has already confirmed its jurisdiction over the dispute, then “

any court of another Member State shall decline jurisdiction in favour of that cour

t” (Article 31(3)).

Slide15

II. Lis pendens involving a non Member State (Articles 33-34)

Under the ECJ decision of

Owusu

v Jackson (Case C-281/02) [2005] EUECJ), if a Member State court had jurisdiction based on the domicile of a defendant, it was not permitted to stay proceedings in favour of a non-Member State court on the basis that such a court would be a more appropriate forum for the resolution of the dispute. Articles 33-34 of the Recast Brussels Regulation allow a new discretion for a Member State court to stay proceedings where an identical or related action is proceeding in a non-Member State court. However, certain conditions must be satisfied for this, in particular that:Proceedings in the non-Member State must have been commenced first (Article 33(1)) and Article 34(1);

It is expected that the

non-Member State court

will give a judgment capable of recognition and enforcement in the Member State (Article 33(1)(a) and Article 34(1)(b);

The

court

of the Member State is satisfied that a stay is necessary for the proper administration of justice (Article

33(1)(

b) and Article 34(1)(c); and

In respect of related actions, it is expedient to determine them together to avoid the risk of irreconcilable judgments (Article 34(1)(a

)).

Member States can nevertheless continue proceedings in certain circumstances,

eg

if it appears that the non-Member State proceedings are unlikely to be concluded within a reasonable time. Slide16

III. Interaction with the Hague Convention on Choice of Court AgreementsOn 1 October 2015, the Hague Convention on Choice of Court Agreements (the “Convention”) entered into force, following the European Union’s approval of the Convention on 11 June 2015. The Convention is now in force between all EU

Member States including Cyprus (except

Denmark

). The Convention aims to ensure that, where commercial parties have agreed to resolve their disputes exclusively in a specific court, their agreement will be honoured and a judgment subsequently rendered by the chosen court will be widely recognised and enforced. The goal is to put into place an international legal foundation for choice of court agreements similar to that established for arbitration agreements by the New York Convention.

The Convention is currently of limited effect as (i) the only country outside the EU to have ratified it is Mexico and (ii) much of its

intra-EU effect

is curtailed by the Recast Brussels Regulation. However, its importance will grow as it is ratified in more non-EU countries (and both the United States and Singapore have signed but not ratified the Convention).

Within the EU, the Convention has areas of significant overlap with the Recast Brussels Regulation and there remains some uncertainty as to how the two will interact.

However, any practical effect of this uncertainty is likely to be limited as (i) the Convention expressly gives way to the Recast Brussels Regulation in certain situations and (ii) in any event, whether the Convention or the Recast Brussels Regulation applies will generally not make a difference in how a choice of court agreement is treated.Slide17

AML and white collar crime - the rise of a compliance era and the importance of litigators to safeguard due process

11.30 – 13.00

Moderator:

Amanda Pinto QC – Chair of the International Committee, 33 Chancery Lane Speakers:George Z. Georgiou – George Z. Georgiou & Associates LLCNicos

Georgiades

–

Georgiades

&

Pelides

LLC

Andreas

Michaelides

–

Michaelides

&

Michaelides

Collingwood Thompson QC

–

7 Bedford Row

Pavlos

Panayi QC

–

Carmelite Chambers Slide18

Developments in urgent interim relief

(

Chabra)

14.30 – 15.15Moderator: Chantal-Aimée Doerries QC – Chairman of the Bar CouncilSpeakers:Rupert D’Cruz

– Littleton Chambers

Alexandros Gavrielides

–

Scordis

,

Papapetrou

& Co LLCSlide19
Slide20

2 June 2016

CHABRA (AND RELATED) JURISDICTIONS:

AN UPDATE ON RECENT CASES

Rupert D’Cruz

(Barrister, Littleton Chambers)Slide21

The Relevant Test

PJSC

Vseukrainskyi

Aktsionernyi Bank v Maksimov [2013] EWHC 422:good reason to suppose assets held by NCAD amenable to process by which they would be available to satisfy judgment against CAD.“good reason to suppose” = good arguable case

Jurisdiction will be exercised where just and convenient but with caution, because of its exceptional nature + effect on third parties

Ultimately

C must show

some process by which it is possible to enforce against property/assets held by the nominee

 Slide22

Relevant jurisdictional rules

Litigation:

CPR

PD 6B, para 3.1(3): where there is a claim made by C against D and:(a) there is between C + D a “real issue which it is reasonable for the court to try”; and (b) Co-D is a “necessary or proper party to that claim”.Arbitration:

S.44 Arbitration Act 1996:

the court has for the purposes of … arbitral proceedings

the same power of making orders about the matters listed below as it has for the purposes of and in relation to legal

proceedings.

granting

of an interim injunction

…

such orders as necessary

for the purpose of

preserving … assets

.

CPR 62.5(1)(c)

: if C seeks a

“remedy…affecting an arbitration…, an arbitration agreement or an arbitration award”

.Slide23

Does the English Court have jurisdiction over

a foreign

Chabra

Defendant?Yes…Tedcom Finance Ltd v Vetabet Holdings Ltd [2011] EWCA Civ 191 BNP Paribas SA v OJSC Russian Machines

[2012] EWCA

Civ 644

VAB Bank v

Maksimov

:

[2013] EWHC 3203 (

Comm

)

No….

Vale Do

Doce

Navegacao

SA v Shanghai

Bao

Steel Ocean Shipping Co Ltd

[2000] 2 Lloyd’s Rep

1

Parbulk

II AS v PT

Humpuss

Intermoda

Transportasi

TBK

[

2011] EWHC 3143

Linsen

International Ltd v

Humpuss

Sea Transport

Pte

Ltd

[2011] EWHC 2339Slide24

Cruz City 1 Mauritius Holding v

Unitech

Ltd & Ors [2014] EWHC 3704 (Comm)C obtained LCIA Award against D + sought freezing order in aid of

enforcement against subsidiaries in Cyprus, India and Isle of Man.

Held:

Service

out

pursuant

to CPR 62.5(1)(c

)

permissible only against a party to

an

arbitration agreement or

arbitration.

Section 44

Act did not include any power to

grant

injunction against a non-party.

Necessary

or proper party test requires

substantive

claim to be brought before the English court against anchor

D – n/a to relief in aid of enforcement

 Slide25

Cruz City 1 Mauritius Holding v

Unitech

Ltd & Ors [2014] EWHC 3704 (Comm)Articles 31/35 of Regulations 44/2001 and 1215/2012:Application may be made to the courts of a Member State for such provisional, including protective, measures as may be available under the law of that Member State, even if the courts of another Member State have jurisdiction as to the substance of the matter.

For an EU D, there must also

be a “real connecting link” between the subject matter of the measures

–

in the case of a freezing order, assets – and

England.

Van

Uden [1999] 1 All ER (

Comm

) 385, [1999] QB 1225

Cypriot Ds

,

had no

assets in

England – so no

real connecting

link and no jurisdiction

 Slide26

Lakatamia

Shipping Co Ltd v Su

[2014] EWCA

Civ 636"For the purpose of this Order the respondents' assets include any asset which theyhave power, directly or indirectly, to dispose of, or deal with as if it were their own.  The respondents are to be regarded as having such power if a third party holds or controls the assets in accordance with their direct or indirect instructions."Does this freeze assets

of non-D Cos.

of which D is100

% direct or indirect shareholder

and director

and

had the power to dispose of or deal as if his own

.?

Court

of Appeal

held –

Standard form

does

not bring within the definition

of

D's

assets

those of

a

co. he

controls.

But co.

assets ordinarily

caught because of the effect disposition on the value of D's assets (shares in co).Slide27

Lakatamia

Shipping Co Ltd v Su

[2014] EWCA

Civ 636Therefore: D not permitted to deplete co. assets and thereby diminish his own assets (shared in co) unless for the ordinary course of business.

Court

of Appeal

recommended

adding

"

to restrain dealings in assets of bodies corporate having no or no substantial trading activities and which are wholly owned and controlled by the respondent"

where

there is strong evidence that

D has (or

likely to

have)

assets

in co

he wholly owns and controls.Slide28

Contact DetailsRupert D’Cruz(Barrister)Littleton Chambers

3 King’s Bench Walk

Temple

London EC4Y 7HR

www.littletonchambers.com

Tel: +44 (0)207 797 8600

E-mail: rdc@littletonchambers.co.uk

Slide29
Slide30

Developments in urgent interim relief (Chabra)

Presentation by Alexandros Gavrielides, Advocate

Scordis, Papapetrou & Co LLC

www.scordispapapetrou.comSlide31

Interim Relief in Cyprus: A Brief Overview

Section 32(1) of the Courts of Justice Law, Law 14/60

Historical origins - s. 37(1) of the Courts of Justice Law, Cap.8

-

s. 45 of the UK Supreme Court of Judicature (Consolidation) Act 1925

Seamark Consultancy Services Limited v.

Lasala

(2007) 1 (A)

Α

.

Α

.

Δ

. 162Slide32

The “Chabra jurisdiction”

Re

Helington

Commodities Ltd and Others (2009) 1B AAΔ 926

English cases cited

:

T.S.B. Private Bank International S.A. v.

Chabra

a.

ο

.

[1992] 1 W.L.R. 231

Yukong

Line Ltd. v.

Rendsburg

Investments Corporation a.

ο

.

[2001] Lloyd's Rep. 113Slide33

The “legitimate outer reaches” of the

Chabra

jurisdiction:

What assets my be frozen?Assets held in the name of a third party which may become available to satisfy a judgment against the principal defendant Judgment dated 29/1/2015 in Application No. 2418/13 of the District Court of Nicosia (Eagle Properties No 14 Ltd v.

Soprasin

Management Limited and Others

)

English cases cited

:

HM Revenue Customs v.

Egleton

[2006] EWHC 2313 (Ch)

Yukos

Capital

Sarl

v. OJSC

Rosneft

Oil Co

[2010] EWHC 784 (

Comm

)

V.A. Bank v.

Maksimov

and others

[2013] EWHC 3203 (

Comm

)

Slide34

The “legitimate outer reaches” of the

Chabra

jurisdiction:

What assets my be frozen? A more restrictive approach (?): Assets over which the principal defendant exercises substantial control Judgment dated 30/12/2014 in Action No.2695/14 of the District Court of

Larnaca

, (Bank of Cyprus plc v. Cherry Properties Ltd and others)

English cases cited

:

Dadourian

Group International v

Azuri

Limited

[2005] EWCH 1768 (Ch)

Slide35

The “legitimate outer reaches” of the

Chabra

jurisdiction:

What assets my be frozen? Assets held in the name of companies owned and controlled by the principal defendant: Piercing the “corporate veil” Apostolou

ν

. Ι

oannou

(2012) 1 Α.Α.Δ. 604

English cases cited

:

Mubarak v. Mubarak

(2001) 2 F.L.R. 673

Hashem

v.

Shayif

& another

[2008] EWHC 2380

Slide36

The exercise of the Chabra jurisdiction in support of foreign proceedings

International Commercial Arbitrations

Section 9 of the International Commercial Arbitration Law

(Law No. 101/87)Proceedings pending before the courts of other EU Member States

Article 35 of the Recast Brussels I Regulation

(previously Article 31 of Regulation No. 44/2001)

Proceedings pending before the courts of non-EU Member States(?)Slide37

The territorial limits of the Chabra jurisdiction

Chabra

orders against parties domiciled outside Cyprus in respect of assets located outside Cyprus

Van Uden

Μ

aritime BV v Firma Deco Line and another

Case C-391/95 (CJEU)

Cruz City 1

Mauritus

Holding v.

Unitech

Limited and others

[2014] EWHC 3704 (

Comm

)Slide38

Registration and Enforcement of judgments in the UK and Cyprus

15.15 – 16.15

Moderator:

Archilles Emilianides - Archilles & Emile CSpeakers:Frederico Singarajah

- Hardwicke Chambers

Laris Vrahimis

–

Eleni

Vrahimi

& Co

David O’Mahony

–

7 Bedford Row Slide39

Recognition and Enforcement of Foreign JudgmentsPresentationSlide40

IntroductionDual purpose of recognition:Defensive: if the judgment has been given in favour of the defendant, he may rely upon it in order to defeat a subsequent action brought in Cyprus by the unsuccessful claimant

Offensive: If the judgment has been given in

favour of the claimant, wholly, or partially, he may bring proceedings for the enforcement of the judgment (e.g. to collect monetary compensation)

Enforcement implies that the judgment will be executed as if it has been issued by a local court Slide41

The Brussels Regime in Cyprus Judgments from Member States of the EU (recognition and enforcement of judgments of Cypriot courts from other Member States and of judgments of other Member States by Cypriot courts)

A Cyprus-UK recognition and enforcement judgment by the Supreme Court - Ironhold Estates v. Travelworld (2010)

The introduction of Brussels Ia 1215/2012 under the Cypriot Presidency - Differences between Brussels Ia and Brussels I Slide42

Objections to RecognitionIf recognition would be manifestly contrary to public policy. The content of national public policy is a matter for the national court to determine; however, the public policy clause is to be construed narrowly.

C-369/96, 376/96,

Arblade, [1999] ECR I-8453, Court of Justice: the notion of public order should be understood as applying to national provisions compliance with which has been deemed to be so crucial for the protection of the political, social or economic order in the Member State concerned as to require compliance therewith by all persons present on the national territory of that Member State and all legal relationships within that State. Slide43

Cont. b) Judgments in default of appearance: If the judgment was in default of appearance and either

the document instituting the proceedings was

not served in accordance with the law of the adjudicating state or it was served but not, according to the assessment of the judge in the recognizing state, in sufficient time to allow the defendant to arrange for his

defence, recognition will in principle be deniedWhether the time was sufficient is assessed in the light of the mode of service- orders obtained without notice to the respondent will be denied recognitionSlide44

Cont. Judgment would be recognised if the defendant had the opportunity of bringing proceedings to challenge the

judgment, with no appreciable disadvantage, but

did not do

soc) Irreconcilability with a national judgment: If the foreign judgment produces consequences which are irreconcilable with a national judgment in a dispute between the same parties, recognition will be refused. Normally, under the Regulation res judicata should prevent parallel proceedings; this will only apply where this was not prevented- the question whether the judgments are irreconcilable implies that their content shall be evaluatedSlide45

Cont. d) Irreconcilability with a prior foreign judgment: Where there is irreconcilability between two different and foreign

Member State judgments, the first one is recognized, and the second one

if irreconcilable with it, is not.

Accordingly, a plea that the adjudicating court did not have jurisdiction is generally inadmissible. Exceptions: where the lack of jurisdiction is derived from exclusive jurisdiction regardless of domicile (e.g. lex situs), insurance contracts or consumer contracts. Review of the merits is prohibited Slide46

Frederico SingarajahEnforcement of Civil Judgments & Arbitral Awards3rd June 2016

The Free Movement of JudgmentsSlide47

1. EU Region: (a) Brussels Regulation (recast) (b) Lugano Convention and (c) Civil Jurisdiction & Judgments Act 19822. Commonwealth: (a) Administration of Justice Act 1920 (b) Foreign Brussels (Reciprocal Enforcement) Act 1933

3. All Other Countries:

Common law4. Arbitration: (a) New

York Convention 1958 (b) Arbitration Act 1996 (c) Paragraph 12 of preamble of Brussels Regulations (recast) Legal FrameworkSlide48

- Automatic recognition- Article 45 exclusions- Registration under Part 74 of Civil Procedure Rules:Without Notice ApplicationBefore Master of QBDWitness Statement and Exhibits 74.4(6)- Registration Order:

Register of Brussels

ServiceEnforcement

EUSlide49

- 1920 Act:HM DominionsDiscretionaryOptional with Common Law1933 Act:CommonwealthNo discretion

- Registration under Part 74, same as EU but

Master or Judge

CommonwealthSlide50

- Issue and serve a claim form (fixed sum of money only)- Apply for summary judgment further to Part 24- No revision of merit for recognition or enforcement- Refusal reasons:Procedural IrregularityNo original jurisdiction

No submission to jurisdiction

FraudDenial of natural justicePublic policy

All other countriesSlide51

- Recognition automatic (signatories) - Enforced with permission of court, Part 62- Refusal reasons:Party under a disabilityInvalid agreementContrary to public policy- Procedure:

Judge or Master

Evidence of foreign award

Arbitral AwardsSlide52

Thank you for listening.frederico.singarajah@hardwicke.co.ukSlide53

The Recognition and Enforcement of Civil Judgments in CyprusLaris Vrahimis – 3

rd

June 2016

Laris Vrahimis, LLB (Hons) Lon, Barrister at Law Eleni Vrahimi & Co, Chr. Sozou 2, Suite 205/6, 1096 Nicosia, Cyprus | lv@vrahimi.com53Slide54

Legal FrameworkEU Judgments: Brussels Regulation and Brussels Regulation (recast)Third countries with bi-lateral treaties: The bi-lateral treaties and Law 121(1)/2000British Dominions: Cap.10All other countries:

Common Law

Arbitration:

Laris Vrahimis, LLB (Hons) Lon, Barrister at Law Eleni Vrahimi & Co, Chr. Sozou 2, Suite 205/6, 1096 Nicosia, Cyprus | lv@vrahimi.com54Slide55

Bilateral TreatiesCountries include:Czech

Republic

(Law 68/82)Hungary (Law 7/83

)Bulgaria (Law 18/84)Greece (Law 55/84)Syria (160/86, 13/97)Russia (Law 172/86)Ukraine (Law 172/86 and 8/2005)Belarus (Law172/86)Georgia (Law 172/86)Serbia (Law 179/86)Slovenia

(Law 179/86)Egypt (Law 32/92 and 14/96

)

China

(Law

19/95

)

Poland

(Law

10/97)

Laris Vrahimis, LLB (Hons) Lon, Barrister at Law Eleni Vrahimi & Co, Chr. Sozou 2, Suite 205/6, 1096 Nicosia, Cyprus | lv@vrahimi.com

55Slide56

Bilateral Treaties (cont)Procedure covered by Law 121/(1)/2000 (Article 5)application by summons with District Courtaccompanied by affidavit hearing with four weeksGrounds for refusal (Article 5(e)):

Lack of jurisdiction

Satisfaction of claimConditions for recognition, registration or enforcement set out in treaty not met

Laris Vrahimis, LLB (Hons) Lon, Barrister at Law Eleni Vrahimi & Co, Chr. Sozou 2, Suite 205/6, 1096 Nicosia, Cyprus | lv@vrahimi.com56Slide57

Bilateral Treaties - RussiaConditions for Recognition and Enforcement (Article 24)Application made to Russian court and transmitted to Cyprus Court unless respondent Cyprus resident (Article 27)Accompanying documents (Article 28)

Laris Vrahimis, LLB (Hons) Lon, Barrister at Law Eleni Vrahimi & Co, Chr. Sozou 2, Suite 205/6, 1096 Nicosia, Cyprus | lv@vrahimi.com

57Slide58

UK / British Dominions Cap.10Only relevant to judgments issued in UK dominionsRespondent must be resident in Cyprus or judgment must relate to property in CyprusEx parte application within 6 years of judgmentRespondent may apply by summons to set aside registrationGrounds for setting aside (Article 6)

Laris Vrahimis, LLB (Hons) Lon, Barrister at Law Eleni Vrahimi & Co, Chr. Sozou 2, Suite 205/6, 1096 Nicosia, Cyprus | lv@vrahimi.com

58Slide59

All other countries: Common LawIssue and service writApplication for summary judgmentSame provisions for refusal as in the UK

Laris Vrahimis, LLB (Hons) Lon, Barrister at Law Eleni Vrahimi & Co, Chr. Sozou 2, Suite 205/6, 1096 Nicosia, Cyprus | lv@vrahimi.com

59Slide60

Enforcement of criminal and civil asset recovery ordersDavid O’Mahony

7 Bedford Row,

London,WC1R 4BS

0207 242 3555domahony@7br.co.ukSlide61

1. Overview(a) The types of proceedings we are concerned with;(b) The types of orders that are made;(c) Regimes for recognition and enforcement;(d) Some recent cases.Slide62

(a) Types of proceedingsConfiscation orders made in criminal proceedings against a convicted defendant. They usually require the defendant to disgorge his or her proceeds of crime or an equivalent sum of money;Civil asset recovery proceedings which are non-criminal proceedings (usually a civil trial of some kind) which are based on proving that the assets are somehow connected to crime or traceable to such assets. Slide63

(b) Types of ordersThree broad types of orders:(a) an in personam order that a convicted defendant pay a sum of money;(b) an in rem order based on the fact that specific assets are the proceeds of an offence or traceable to such proceeds;

(c) an

in rem order based on the fact that specific assets were ‘instrumentalities’ of an offence or traceable to such instrumentalities. Slide64

(c) Regimes for recognition and enforcementThere is an EU mutual recognition scheme, I will not deal with that here;The principal international conventions require States parties to have domestic legislation which permits the recognition and enforcement of all these orders:Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism, 2005 (‘Warsaw Convention’);United Nations Convention Against Corruption;United Nations Convention Against Transnational Organised Crime (‘the Palermo Convention’);

FATF Recommendations (particularly 36, 38 and 40)Slide65

General scheme:Request for mutual legal assistance to the Central Authority in the country where assets are (UK Home Office / Cyprus Ministry of Justice and Public Order);Application by Central Authority to the domestic court and possibly contested proceedings;If successful, assets forfeited / confiscated to requested State;An agreement (or other regime) for the sharing of those assets between the requesting and the requested State.Slide66

(d) Some recent casesThe criminal law principles that prevent the application of criminal law to events before the law came into force do not apply to enforcement proceedings. Judgments can be recognised and enforced even if the offence preceded the enactment of enforcement legislation: Attorney General v. Rosenlund [2015] JRC 186;Putting money in a trust can defeat an in personam

(rather than an in rem) judgment: In the matter of the realisable property of Robert Tantular (No.2) 2015 (1) JLR 97;

‘Instrumentalities’ forfeiture can have wide effects against property ‘used in’ or ‘involved in’ crime: In the matter of Doraville Properties Corporation;Article 1, Protocol 1 of the European Convention on Human Rights Slide67

ConclusionDavid O’Mahony7 Bedford RowLondon WC1R 4BSdomahony@7br.co.uk Slide68

UK & EU law issues in a Cypriot context 16.30

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17.30

Moderator: Hugh Mercer QC – Essex Court ChambersSpeakers:Elena Konnari – Andreas Konnaris LLC

Michalis Kyriakides

– Harris

Kyriakides LLC

Konrad Rodgers

–

Boies

Schiller & Flexner (UK) LLP

Rupert D’Cruz

–

Littleton ChambersSlide69

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