Dr. Laura Gumuliauskienė

EUROPEAN UNION CIVIL PROCEDURE

Mykolas Romeris University

Topic 2. Issue of jurisdiction in International civil procedure 1

TOPIC 2. ISSUE OF JURISDICTION IN EUROPEAN

CIVIL PROCEDURE

Concept and limits of jurisdiction. Jurisdiction of

Lithuanian courts over cases with a cross-border

element in contentious and non contentious

proceedings.

Immunity of states. Claims against foreign states.

Immunity of international organisations. Diplomatic

and consular immunity. Waiver of immunity.

Conception of the theories forum non conveniens and

forum shopping.

Specifics of contractual jurisdiction in international

civil procedure.

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Assignment of cases – part of the

competence of courts related to the

examination of disputes, i.e.

jurisdiction activities.

Jurisdiction – the distribution of the

disputes (cases) assigned to the

competence of courts within the

judicial system.

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THE LITHUANIAN JUDICIARY SYSTEM

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The Supreme Court of Lithuania

Court of Appeals of Lithuania

Vilnius Kaunas Klaipėda Šiauliai Panevėžys

Regional courts

District courts (54)

ADMINISTRATIVE COURTS

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The Supreme Administrative Court

Regional courts

Vilnius Kaunas Klaipėda Šiauliai Panevėžys

LEX FORI PRINCIPLE

The procedure of hearing civil cases is

always defined by the laws of civil

procedure of the state where the courts

with remit over the case are located.

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THE RULES OF JURISDICTION ARE LAID DOWN

BY THE SAME SOURCES OF EU CP:

national law (Art.780 – 792 of CCP RL )

International law

EU law

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EU REGULATIONS

Council Regulation (EC) No 44/2001 of 22 December

2000 on jurisdiction and the recognition and

enforcement of judgments in civil and commercial

matters (Brussels I)

Council Regulation (EC) No 2201/2003/EC of 27

November 2003 concerning jurisdiction and the

recognition and enforcement of judgments in

matrimonial matters and the matters of parental

responsibility (Brussels IIbis)

Council Regulation (EC) No 4/2009 of 18 December

2008 on jurisdiction, applicable law, recognition and

enforcement of decisions and cooperation in matters

relating to maintenance obligations

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MULTILATERAL CONVENTIONS: Convention on the Contract for the International Carriage of

Goods by Road (CMR) (Geneva, 19 May 1956)

Convention for the Unification of Certain Rules Relating to

International Carriage by Air, Signed at Warsaw on 12 October

1929.

Protocol of 3 June 1999 for the Modification of the Convention

concerning International Carriage by Rail (COTIF) of 9 May

1980 (Protocol of Vilnius).

Hague Convention of 25 November 1965 on the Choice of

Court (not EIF).

Hague Convention of 15 November 1965 on Jurisdiction,

Applicable Law and Recognition of Decrees Relating to

Adoptions

Hague Convention of 25 October 1980 on the Civil Aspects of

International Child Abduction. 10

GENERAL PRINCIPLE OF SUPREMACY OF

INTERNATIONAL LAW

Art. 780 CCP RL:

“Provisions of Part VII of this Code shall apply

unless an international agreement whereto the

Republic of Lithuania is a party governs

relevant relations otherwise.”

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PRINCIPLES: Courts ex officio verify whether the case falls within the jurisdiction of

Lithuanian courts.

If courts have a remit to hear civil cases, this remit shall not disappear when

the same case is heard in a foreign court .

Matters shall be attributed to the jurisdiction of courts of Lithuania, if: 1) at

the moment of claim filing the defendant is or has fixed abode or resides in

Lithuania; 2) the defendant is a holder of property in Lithuania; 3) a

question at issue is a thing, legacy in Lithuania or an obligation that has

occurred or should be performed in Lithuania.

Jurisdiction of family legal relation proceedings.

Courts of the Republic of Lithuania shall have a remit to hear proceedings

involving the legal relations of adoption in cases when both parties are

foreigners with fixed abode in the Republic of Lithuania.

Courts of the Republic of Lithuania shall be entitled to declare a foreign

person as dead or missing if: 1) a person entitled to file a relevant

application to the court has fixed abode in Lithuania; 2) the foreigner was

residing in Lithuania or had property located in Lithuania.

Contractual jurisdiction.

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THE EXCLUSIVE JURISDICTION OF LITHUANIAN

COURTS

When both spouses are permanent residents of

Lithuania (Part 2 Art. 784 CCP RL)

Hearing of in rem legal relation proceedings (Art. 786

CCP RL)

adoption legal relation proceedings if any of the

parties is a citizen of Lithuania or a stateless person

with permanent place of residence in Lithuania (Parts

1-2 Art. 785 CCP RL)

proceedings concerning the declaration of a natural

person as incapable or of limited active capacity, dead

or missing, if such person is a citizen of Lithuania or a

stateless person with permanent place of residence in

Lithuania (Part 1 Art. 789 CCP RL) 13

THE MATTERS THAT LITHUANIAN COURTS

WOULD NOT DEAL WITH:

Contractual derogational jurisdiction (Art. 788 CCP RL)

When claims are filed against performance of persons

official functions (Part 3 Art. 790 CCP RL)

Diplomat immunity (Part 1 Art. 790 CCP RL),excepted:

a) dispute arises in relation to an immovable thing situated in

Lithuania and held by the persons mentioned above;

b) dispute arises out of inheritance legal relations;

c) dispute arises out of other economic relations where

persons mentioned above are not involved as persons

exercising diplomatic immunity.

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JURISDICTION ACCORDING TO INTERNATIONAL

LAW

Only one general criterion to be used

when determining international

jurisdiction - the place of residence or

domicile of the respondent.

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FORUM SHOPPING

The behaviour when a party or parties to

the proceedings base their choice of lex

fori on the gain for themselves.

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DOCTRINE FORUM NON CONVENIENS ALLOWS:

The court to refuse hearing the case if it

has no connection with its country,

The respondent to take precautions

against the case hearing in the state that

has no connection with the case.

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POINT 1 PART 2 ART. 34 CCP RL:

“A court transfers a case for hearing in another

court after passing a ruling if it acknowledges

that this specific case will be heard in another

court more promptly and economically and

specifically – according to location of most

evidence, except for cases of extraordinary

jurisdiction.”

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LIS PENDENS RULE

An identical dispute (or case) is when:

parties of the dispute are the same;

the subject of the dispute is the same;

the basis of the dispute is the same.

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Lis pendens (or lis alibi pendens)– is an

institute that helps ICP avoid parallel hearing of

identical disputes in courts of several states

and that enables the court to refuse the

hearing of a case when such a case has

already been commenced or heard by a court

of another state.

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CONTRACTUAL JURISDICTION IN EUCP

When concluding an agreement or after a

dispute has emerged and without violation of

rules of exclusive jurisdiction, the parties may

agree the court (or arbitration) of which state

the case shall be decided at.

1. Concerted prorogational jurisdiction.

2. Concerted derogational jurisdiction.

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IMMUNITY OF STATES

Effect of the law of a foreign state

Jurisdiction of courts of a foreign state

Provisional protective measures

Coercive enforcement of judgments of foreign

courts

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FOR THE NEXT TIME!!! Relationship between jurisdiction and lex fori

principle.

System of the judiciary in your state.

Provisions regulating international jurisdiction

in your state (CCP, international treaties –

which in particular, conventions?).

Which matters fall within the exclusive

jurisdiction of the courts of your state and what

are the consequences resulting from

infringements of such rules?

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