Posts Tagged Regulation 655/2014
Update 8 November 2019 the Court yesterday confirmed the AG’s Opinion.
Like quite a few of the Opinions and Judgment in my recent blog posts, Szpunar AG’s recent Opinion in C-555/18 KHK v BAC (*mutters his usual rant on the idiocy of the parties’ anonimisation rule*) was issued just before many of us took a short summer break. Carlos Santaló Gorisseemingly did not and I am happy to refer in the main to his analysis.
The Advocate General refers first of all to the infamous decision in 125/79 Denilauler, excluding ex parte provisional or protective measures from enforcement under the then Brussels Convention. The European Account Preservation Order Regulation 655/2014 was intended to fix this particular chink in the European civil procedure armour. Which national decisions fit with its definition of ‘authentic instrument’ is the subject of current proceedings, and Szpunar AG as Carlos reports takes a balanced approach between facilitating free movement without assisting abuse.
Of note is that the EAPO Regulation hitherto has received very little practice. Clarification of its precise scope is crucial.
(Handbook of) EU Private International Law, 2nd ed. 2016, Chapter 2, Heading 2.2.15, Heading 188.8.131.52.1.
Thank you Pawel Sikora for flagging some time back, and subsequently analysing in detail (p.221 onwards) the decisions of the Polish Courts particularly at Reszow, on whether arbitrated claims can be secured with a European account preservation order under Regulation 655/2014: not something I recall having been discussed elsewhere before. Article 2(2)(e) of the regulation explicitly states that “it does not apply to arbitration”: Brussels I- aficionados will be familiar with the expression.
The Courts discussed C-391/95 Van Uden in particular, with the Rzeszow Appellate Court holding that an EAPO may be granted for arbitrated claims. Using Van Uden language, in the Court’s view provisional measures such as freezing orders (which must be ordered by the courts in ordinary, not the arbitral panels) are not in principle ancillary to arbitration proceedings, but rather they are ordered in parallel to such proceedings and intended as measures of support.
Some might read in the judgment further encouragement for the EU to consider drafting an EU arbitration Regulation.
(Handbook of) EU Private International Law, 2nd ed. 2016, Heading 184.108.40.206.2.