Two Max Planck institutes issue joint opinions for the Federal Ministry of Justice
At the request of the Federal Ministry of Justice, the Max Planck Institute for Comparative and International Private Law Hamburg and the MPI Luxembourg for International, European and Regulatory Procedural Law have issued joint opinions addressing two current legislative proposals. The draft bills contain amendments to the German Code of Civil Procedure and other statutes. The amendments are designed to facilitate international service of process and taking of evidence and to unify recognition and enforcement of foreign judgments.
Faster, simpler international document delivery and evidence taking
One of the laws the ministry proposed, a draft Gesetz zur Durchführung der EU-Verordnungen über grenzüberschreitende Zustellungen und grenzüberschreitende Beweisaufnahmen in Zivil- oder Handelssachen, zur Änderung der Zivilrechtshilfe, des Vormundschafts- und Betreuungsrechts sowie sonstiger Vorschriften (Act to implement the EU regulations on cross-border service of judicial documents and taking of evidence in civil or commercial matters and to modify judicial assistance in civil matters, guardianship, and other rules), would among other things implement the EU Service Regulation of 2022 and the EU Evidence Regulation of 2022, which enable the use of technology to simplify and speed up cross-border service of documents and evidence taking. The draft law also proposes changes to cross-border evidence taking involving countries outside the European Union. It would make requests for mutual assistance among Member States electronically transmissible and enable German courts to execute requests for pre-trial discovery of documents issued in common law countries, in particular the United Kingdom and the United States.
Greater legal certainty and predictability around recognition and enforcement of foreign judgments
The ministry also proposed a Gesetz zur Durchführung des Haager Übereinkommens vom 2. Juli 2019 über die Anerkennung und Vollstreckung ausländischer Entscheidungen in Zivil- und Handelssachen sowie zur Änderung der Zivilprozessordnung (Act to implement the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters and to amend the Code of Civil Procedure). This bill would essentially implement EU Member State obligations arising under the Hague Convention. It would bring legal certainty and predictability in cross-border legal disputes, which would help accomplish United Nations Sustainable Development Goals 10 (reduce inequalities within and among countries) and 16 (promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels).
Pooling the expertise of two institutes
Under the leadership of institute directors Burkhard Hess and Ralf Michaels, a team consisting of Hannah Deters, Niels Elsner, Philomena Hindermann, Jakob Olbing, and Christine Toman commented on particular provisions of the proposed legislation and suggested specific revisions. “When the ministry approached us, we wanted to make sure our opinions would reflect the most up-to-date thinking by academics and practitioners, not only about private international law but also about international civil procedure,” says Ralf Michaels, of the Hamburg MPI. “Since the proposed legislation was within ours as well as the Luxembourg MPI’s expertise, working together was an obvious choice for us.”
Besides effecting service through a qualified electronic registered delivery service provider, which is relatively cumbersome, the researchers suggest (and the EU Service Regulation envisions) allowing documents to be delivered via email in commercial settings as long as the addressee has expressly consented in advance. The researchers also welcome that the proposed legislation would drop Germany’s declaration under the Hague Evidence Convention that it will not under any circumstances execute letters of request issued for the purpose of obtaining pre-trial discovery of documents. At the same time, the researchers indicate that the proposed public policy/ordre public exception for such requests is unnecessary to protect privacy and trade secrets and is even counterproductive for purposes of the Hague Evidence Convention.
As for the planned amended rules on recognition and enforcement of foreign judgments, the research team notes that it would generally make more sense to create EU-wide implementation rules instead of relying on national legislation. However, since nothing has been done so far to enact such a unified system, the team welcomes the ministerial draft and suggests changes to more tightly circumscribe certain non-mandatory and discretionary areas. For example, the panel recommends that the form provided by the Hague Conference be made obligatory for use in certifying enforceable domestic judgments. The authors also suggest adopting statutory grounds for refusal or postponement of enforcement rather than leaving it up to the discretion of the courts.
PDF’s of the opinions are available for download from the Federal Ministry of Justice web site at the below URLs.