Regulation 44/2001 of European Countries - Research Proposal Example

Regulation 44/2001 of European Countries Table of Contents Introduction 2 European Union 3 Regulation 44/2001 of European Countries 4 Absolute Comparison 6 The Reality 7 Conclusion 9 References 9 Introduction It has been rightly noted by many of the experts of the legal industry that the word ‘change’ is the only constant thing in the present world. With massive developments in the fields of information technology and communication process, the tricks of the trade are noted to be changing real fast. As the laws are actually required to bind the behaviour of the individuals and the society towards the common good of the mass, therefore with changes in the terms of trade and life style, the laws also experience paradigm shift in almost all parts of the world. The effect of globalization has further enhanced the requirement of the changing laws. There is no point in having such laws in the country or in the society that do not serve the purpose of the common good. And as globalization has been dictating the terms today, with writing off the international geographical boundaries and increasing the reach of the citizens to great extent, there is little doubt that the legal frame work requires massive changes in the present time from that of the traditional time. Earlier, it would be enough for the governments of the country specific to have the laws in place that would bide the citizens of that particular nation. But, with the advent of globalization at its all time high, in the present day, the laws of one country are also accepted in the other nations. This has been more true as many of the nations often come together and forms community of nation that essentially have similar sets of currency or law. European Union European Union has been the association of many of the European countries (at least 27 states) that shares political as well as economical relationship among each other. The European Union has been a great step forward for the developments of the nations with one current and similar legal frame work among all of the member states. Putting emphasis towards the legal frame, it is the fact that the European Union is basically based upon various treaties among the member states. The treaties at the outset helped to form the European Community and the European Union and later it made the necessary changes in the treaties in the forms of amendments (EU, n.d.). Considering the case of European Union, it can be stated that the major legal acts of the European Union could basically be divided in to three forms namely regulations, directives and decisions. This proposal predominantly comprises of the comparison that prevailed in the situation prior to the formation of the European Union and that prevails at the present time i.e. with the European Union in practice, in the arenas of legal frame work. The major change that the formation of European Union had brought in to the legal fraternity of the European nations, that are the members of the European Union, to the extent that the regulations are turned to laws in the members states from the time as it comes to force and most importantly, it does not require any sorts of additive implementing measures (Eur-Lex, n.d.). Regulation 44/2001 of European Countries The relevant act states, “Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters”. It has been observed by the experts from the international legal arena, both from European nations as well as from the nations that are not the members of the European Union, that the above specified act, popularly known as the Council Regulation No 44/2001, has been a paradigm shift with the legal periphery of European Union. The act takes in to account the regulation within the jurisdiction of civil and the commercial matters. The act clearly specifies that the any judgment that is awarded with in any of the member states is to be recognized in the true and fair sense in all of the other member states. The act has been very clear in putting the fact straight that there would not be any special proceedings in other member states regarding the judgment until and unless the regulation has been contested. Also, it has been made extremely clear that the declaration about the enforceability of the foreign judgment could be issued only after the formal checks of the documents that would be provided. However, the act also has a wide list of issues in to which it could not be enforced upon. The list of exclusion includes cases related to customs, administrative matters or revenue. This sensational act also does not include that of the legal capacity of a natural person, matters related to matrimony, succession issues like wills along with other major heads like that of bankruptcy, arbitration and social security. Even if the regulation excludes the above written areas, yet the tremendous effect that the law puts on shaping the conduct in the member countries cannot be ignored (Europa, n.d.). Regulation 44/2001 has clear mandate that the jurisdiction can only be exercised within the member state of the European Union, where the defendant is domiciled and not on the basis of the nationality of the defendant. The important aspect of the domicile is primarily determined in par with the domestic law of the member state of the European where it has been filed before the court of law. But in case of trusts, it is the courts that is considering the case, have the discretionary power to apply in terms of Private International Law. Other than the basic principle of jurisdiction, in many circumstances, a defendant might get sued at the court of law that belongs to some other country (obviously within the member states). The regulation of this sensational law lists many arenas of jurisdiction where this is observed as special jurisdiction and also certain jurisdiction on various matters that comprises of individual contracts related to employment along with that of insurance and consumer contracts. The special jurisdiction that is one of the most important aspects of this regulation and that was not present in any of the forms what so ever in the traditional law of the European countries, includes only the under mentioned matters. Contract related matters – The regulation states very clearly that such matters will be dealt only by the courts at the place of happening of the compulsion that has been in question. Maintenance concerned issues - The rule states that it has to be brought in to the purview of the court where the creditor of the maintenance is resident. Subject that is concerned with the liability for wrongful acts – This factor of the special jurisdiction essentially includes that of the cases concerned with tort, delict or quasi-delict. According to the set regulations, such cases would be decided by the courts of those places where the event took place (Europa, n.d.). Absolute Comparison The comparison of the ‘traditional rules’ along with that of Regulation 44/2001 basically highlights the fact that the jurisdiction of the traditional rules of the English courts were only within the England. But the jurisdiction of the present regulation clearly states that it should be applied to all the member states unless otherwise contested. Such an observation is definitely a broad concept for the dissertation. It is hereby proposed that with various court cases that are intended to be studied for the two sides, the dissertation can really come up with major observations in the legal fraternity of Europe. The interesting aspect of the proposal in this subject states that there has been the cases of frequent conflicts among the rules that already existed in the member states regarding various aspects and now with the regulation that member states have to abide by the regulation, the previous laws became dysfunctional if it had been in the same issues and the new regulations had to be followed. The comparison of the topic i.e. the traditional laws in the English courts and that of the Regulation 44/2001 has been very prudent in the in the fields of conflict of laws and the private international law. The various areas by which the initiation is guided include that of: The circumstances in which the court might presume jurisdiction over and above the cases that involves a foreign party. The procedure of municipal law to be applied. The foreign judgments that is capable of acknowledgment and enforcement within the national system of the concerned country (Nott, 2004). The Reality The proposal of the dissertation also provides due emphasis upon the review of the Regulations 44/2001 as it is expected that such review will hold optimum significance in the minds of the affected parties. Also, such review includes the major court cases that have been influenced by the regulation. Therefore, it is certain that such a segment would have much of the dedicated fragments in the final dissertation. The Vice President of the European Commission and the Commissioner notified in the month of February, 2009 regarding the Regulations of 44/2001 that, “It is in our interest of obtaining a level – playing field for our businesses to remind each and everybody that human rights are universal and should be globally respected” (Corporate Responsibility, n.d.). The dissertation will throw light to the various major and much debated court cases that fell within the purview of the Regulations 44/2001. Such analysis of the court cases will be certainly beneficial for the comparison of the traditional laws of England and similar aspects of the regulations that binds all countries to follow the same law. Some of the major court cases include: Owusu Vs Jackson held in the European Court of Justice Athanasios Kalfelis v Bankhaus Schröder, Münchmeyer, Hengst and Co. and others Roche Nederland BV v Dr FJ Primus and Dr MD Goldenberg (Eur – Lex, n.d.) The other aspects like that of marine industry have also been highly benefitted by the acceptance of the regulation. As in the previous era of the country specific laws, there often arose disputes among the participating countries and with inclusion of the Regulations 44/2001, it declined by significant extent among the member states of the European Union. Noted scholar of the field, H. Ringbom, observes that “the adoption of Regulation 44/2001 the Community has shown a considerable level of activity in ensuring that maritime liability conventions are negotiated and concluded in accordance with Community rules and procedures”. So, it can be said that this comparison also yielded positive result in favour of the regulation (Ringbom, 2004). Conclusion The proposal of the dissertation only touches the areas that are to be discussed in broad spectrum in the final paper. The proposal encapsulates the succinct view of the differences that the traditional English laws have with the much debated Regulations 44/2001 of the European Union. References Corporate Responsibility, No Date. OWUSU. Review of Brussels I Regulation. [Online] Available at: http://74.125.153.132/search?q=cache:WNGh8lOicwYJ:corporate-responsibility.org/wp/wp-content/uploads/2010/01/owusu_submission2.pdf+review+of+brussels+I+regulation&cd=7&hl=en&ct=clnk&gl=in&client=firefox-a [Accessed 10 February 2010]. Europa, No Date. Jurisdiction, recognition and enforcement of judgments in civil and commercial matters (“Brussels I”). Summaries of EU Legislation. [Online] Available at: http://europa.eu/legislation_summaries/justice_freedom_security/judicial_cooperation_in_civil_matters/l33054_en.htm [Accessed 10 February 2010]. European Union, No Date. Sources of EU law. EU in Ireland. [Online] Available at: http://web.archive.org/web/20080228193407/http://ec.europa.eu/ireland/general_information/legal_information_and_eu_law/sources_eu_law/index_en.htm [Accessed 10 February 2010]. Eur-Lex, No Date. Fratelli Variola S.p.A. v Amministrazione italiana delle Finanze. Access to European Union law. [Online] Available at: http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&numdoc=61973J0034&lg=en [Accessed 10 February 2010]. Eur – Lex, No Date. Thanasios Kalfelis v Bankhaus Schröder, Münchmeyer, Hengst and Co. and others. European Union law. [Online] Available at: http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&numdoc=61987J0189 [Accessed 10 February 2010]. Nott, S. N., 2004. For Better or Worse? The Europeanisation of the Conflict of Laws. Liverpool Law School. [Online] Available at: http://www.springerlink.com/content/u33p550k1n0tku60/ [Accessed 10 February 2010]. Ringbom, H. 2004. EU Regulation 44/2001 and its Implications for the International Maritime Liability Conventions. Journal of Maritime Law & Commerce. [Online] Available at: http://www.jmlc.org/RingbomFinal.pdf [Accessed 10 February 2010]. Bibliography EPC, 2003. The proposal for a regulation of the European Parliament and the Council on the law applicable to non-contractual obligations ("Rome II"). Summary of observations. http://www.epceurope.org/issues/RomeII_LegalOpinionUKMedia.shtml Europa, No Date. COMMENTS ON EUROPEAN COMMISSION GREEN PAPER ON THE REVIEW OF THE BRUSSELS REGULATION (EC No. 44/2001) ON JURISDICTION AND THE RECOGNITION AND ENFORCEMENT OF JUDGEMENTS CIVIL AND COMMERCIAL MATTERS. INTELLECTUAL PROPERTY LAWYER’S ASSOCIATION. http://ec.europa.eu/justice_home/news/consulting_public/0002/contributions/civil_society_ngo_academics_others/intellectual_property_lawyers_association_en.pdf Fawcett, J. J., Torremans, P. Intellectual property and private international law. Oxford University Press, 1998. Liberty Security, 2009. Proposal for a Regulation of the European Parliament and of the Council establishing a procedure for the negotiation and conclusion of bilateral agreements between Member States and third countries concerning sectoral matters and covering applicable law in contractual and non-contractual obligations. Council of the European Union. http://www.libertysecurity.org/article2455.html Morano-Foadi, S., No Date. Jurisdiction of the English Courts under the 'Traditional rules' comparison with Regulation 44 2001 of Europen Countries. Oxford Journals. http://lawfam.oxfordjournals.org/cgi/content/abstract/ebl019v1 North, P. M. Essays in private international law. Oxford University Press, 1993. North, P. M. Essays in private international law. Butterworths, 1992. Rattigan, W. H. Private international law. Stevens, 1895. Wollf, M. Private international law. Clarendon Press, 1962 Read More