British institute of international and comparative lawProject Reference: JLS/2006/FPC/21 – 30-CE-00914760055

The Effect in the European Community of Judgments in Civil and Commercial Matters: Recognition, Res Judicata and Abuse of Process

Project Advisory Board: The Rt Hon Sir Francis Jacobs KCMG QC (chair); Lord Mance; Mr David Anderson QC; Dr Peter Barnett; Mr Peter Beaton; Professor Adrian Briggs; Professor Burkhard Hess; Mr Adam Johnson; Mr Alex Layton QC; Professor Paul Oberhammer; Professor Rolf Stürner; Ms Mona Vaswani; Professor Rhonda Wasserman

Project National Rapporteurs: Mr Peter Beaton (Scotland); Professor Alegría Borrás (Spain); Mr Andrew Dickinson (England and Wales); Ms Esther Rivera (Spain – Assistant Rapporteur); Mr Christian Heinze (Germany); Professor Lars Heuman (Sweden); Mr Urs Hoffmann-Nowotny (Switzerland – Assistant Rapporteur); Professor Emmanuel Jeuland (France); Professor Paul Oberhammer (Switzerland); Dr Norel Rosner (Romania); Ms Carolina Saf (Sweden – Assistant Rapporteur); Ms Justine Stefanelli (United States); Mr Jacob van de Velden (Netherlands)

Project Director: Jacob van de Velden

Project Research Fellow:Justine Stefanelli

Project Consultant:Andrew Dickinson

Project Research Assistants:Elina Konstantinidou and Daniel Vasbeck

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GUIDE TO THE QUESTIONNAIRE

The Effect in the European Community of Judgments in Civil and Commercial Matters: Recognition, Res Judicata and Abuse of Process (the "Project")

IntroductionAt the first meeting of the project Advisory Board held at the Institute on 19 September the research team at the Institute, Mr Jacob van de Velden, Ms Justine Stefanelli and Mr Andrew Dickinson, presented a first draft of the questionnaire. The meeting, which was attended by Advisory Board members Lord Mance, Mr David Anderson QC, Mr Peter Beaton, Professor Burkhard Hess, Mr Adam Johnson, Professor Paul Oberhammer, Ms Mona Vaswani, and Professor Rhonda Wasserman. In light of discussion at this meeting concerning the scope and objectives of the Project, and with a view to using the available resources in the most effective manner, members of the Advisory Board proposed that: (1) The objectives of this exploratory study be limited to an analysis of the law and legal/judicial practice concerning domestic and foreign judgments in selected legal systems. Accordingly, any findings, conclusions and recommendations of the final study will not be based on an empirical analysis or impact assessment sufficient to establish whether any legislative measures at the EC level facilitate the proper functioning of the internal market; (2) In terms of feasibility, the scope of the study should focus on the procedural effects of judgments (the final questionnaire does not address the dispositive and evidential effects of judgments); (3) The proposed distinction between judgments in personam and in rem and the strict limitation of the scope of the study to in personam judgments would be problematic from the perspective of certain legal systems and was unhelpful (the scope of the study is not limited by reference to this distinction); and (4) The first draft questionnaire be shortened and simplified, with explanatory notes (the questionnaire has been redrafted and is now restricted to a 10-page document accompanied by a separate document containing guidelines to the National Rapporteurs).

On 4 and 5 October the Institute hosted a two-day meeting with the National Rapporteurs, which was attended by Mr Peter Beaton (Scotland), Mr Javier Areste Gonzalez (Spain), Mr Andrew Dickinson (England and Wales), Professor Lars Heuman (Sweden), Mr Urs Hoffmann-Nowotny (Switzerland); Professor Emmanuel Jeuland (France), Dr Norel Rosner (Romania), Ms Carolina Saf (Sweden – Assistant Rapporteur), Ms Justine Stefanelli (United States), and Mr Jacob van de Velden (Netherlands). At this meeting a revised draft questionnaire was discussed in detail. The current final version of the questionnaire reflects this discussion and takes account of the rapporteurs' comments and suggestions.

Scope of the studyThe Project, being principally concerned with the recognition of judgments under Regulation (EC) No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the "Brussels Regulation") is limited, even in its study of rules applicable in domestic situations and in cross-border situations to judgments falling within the subject matter scope of the Brussels Regulation, as defined by Article 1. The Project is thus concerned only with judgments in "civil and commercial matters" and does not extend to other matters which are excluded from the scope of the Brussels Regulation. It is not required that the National Rapporteurs analyse closely the case law of the European Court of Justice or of their own legal systems concerning the subject matter scope of the Brussels Regulation and its predecessor conventions. This study is not directly concerned with the delineation between those matters falling within the scope of the Judgments Regulation and matters falling outside. Indeed, those co-coordinating the Project recognise that, in many cases, the dividing line between judgments falling within the scope of the Brussels Regulation, and those falling outside, is a narrow and uncertain one and the Project is not concerned with drawing or re-drawing that line. Thus, although National Rapporteurs should have regard to the scope of the study in choosing examples to support the analysis in their national reports, they should not avoid reference to matters which are arguably or indisputably beyond the scope of the Regulation in order to illustrate particular responses, particularly in part I below.

Objectives of the projectThe principle objectives of the project are (1) to promote a better understanding of the Member State rules concerning the authority and effectiveness of judgments, and their impact on the Brussels/Lugano regimes for recognition and enforcement; (2) to consider whether disparities between the Member State rules create any

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impediment to the functioning of the principle of mutual recognition; and (3) to consider whether any EC-wide solution to the identified problems is desirable and viable.

I. Judgments...........................................................................................................5

A. The concept, form, structure and terminology of judgments......................................5

B. The court's determination and findings on issues of fact and law...............................5

C. The binding character of a judgment...........................................................................6

D. Judgments that are capable of having preclusive effects.............................................7

II. Preclusive effects of Judgments.........................................................................9

A. Claim preclusion..........................................................................................................91. Existence and nature of claim preclusive effects...................................................................................92. Policies underlying claim preclusive effects..........................................................................................93. Conditions for claim preclusive effects................................................................................................104. Invoking claim preclusive effects.........................................................................................................115. Exceptions to claim preclusive effects.................................................................................................126. Claimant and Defendant.......................................................................................................................127. Other participants.................................................................................................................................138. Represented persons.............................................................................................................................149. Persons connected to the Claimant, Defendant, and other participants...............................................1510. Strangers...............................................................................................................................................16

B. Issue preclusion.........................................................................................................171. The existence and nature of issue preclusive effects............................................................................172. Policies underlying issue preclusive effects.........................................................................................173. Conditions for issue preclusive effects.................................................................................................174. Invoking issue preclusive effects..........................................................................................................185. Exceptions to issue preclusive effects..................................................................................................186. Claimant and Defendant.......................................................................................................................197. Other participants.................................................................................................................................198. Represented persons.............................................................................................................................199. Persons connected to the Claimant, Defendant, and other participants...............................................2010. Strangers...............................................................................................................................................20

C. Wider preclusive effects............................................................................................201. The existence and nature of wider preclusive effects...........................................................................202. Policies underlying wider preclusive effects........................................................................................213. Conditions for wider preclusive effects................................................................................................214. Invoking wider preclusive effects........................................................................................................215. Exceptions to wider preclusive effects.................................................................................................226. Claimant and Defendant.......................................................................................................................227. Other participants.................................................................................................................................228. Represented persons.............................................................................................................................239. Persons connected to the Claimant, Defendant, and other participants...............................................2310. Strangers...............................................................................................................................................23

III. Preclusive effects of judgments within the Brussels/Lugano Regime.............24

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A. Recognition...............................................................................................................251. Judgments recognised...........................................................................................................................252. Procedural aspects of recognition.........................................................................................................263. Exceptions to the rule (grounds for non-recognition)..........................................................................274. Effects of recognition...........................................................................................................................28

B. Claim preclusion within the Brussels/Lugano Regime.............................................281. Existence and nature of claim preclusive effects.................................................................................282. Policies underlying claim preclusive effects........................................................................................283. Law applicable to claim preclusive effects..........................................................................................294. Conditions for claim preclusive effects................................................................................................295. The identity of claims in the Brussels/Lugano Regime........................................................................306. The identity of parties in the Brussels/Lugano Regime.......................................................................307. Invoking claim preclusive effects under the Brussels/Lugano Regime...............................................308. Exceptions to claim preclusive effects under the Brussels/Lugano Regime........................................319. Persons affected by claim preclusive effects........................................................................................31

C. Issue preclusion.........................................................................................................321. Existence and nature of issue preclusive effects..................................................................................322. Policies underlying issue preclusive effects.........................................................................................323. Law applicable to issue preclusive effects...........................................................................................334. Conditions for issue preclusive effects.................................................................................................335. Invoking issue preclusive effects under the Brussels/Lugano Regime................................................336. Exceptions to issue preclusive effects..................................................................................................347. Persons affected by issue preclusive effects.........................................................................................34

D. Wider preclusion (abuse of process/claims and issues that could or should have been raised) 35

1. The existence and nature of wider preclusive effects...........................................................................352. Policies underlying wider preclusive effects........................................................................................353. The law applicable to wider preclusive effects....................................................................................354. Conditions for wider preclusive effects................................................................................................365. Invoking wider preclusive effects........................................................................................................366. Exceptions to wider preclusive effects.................................................................................................367. Persons affected by wider preclusive effects........................................................................................37

E. Authentic instruments/court (approved) settlements.................................................37

IV. Preclusive effects of third state judgments.......................................................38

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I. Judgments

A. The concept, form, structure and terminology of judgmentsPlease describe the typical concept, form, structure and terminology of judgments in your legal system.

Explanatory note:

The form and structure of judgments vary from one jurisdiction to another. This is inherent in the parallel, yet isolated, development of legal systems, including rules of civil procedure that pertain to (the validity of) judgments. For instance, common law judgments usually consist of the following elements: (1) the description of the court hearing the case; (2) the publication reference; (3) the date of judgment; (4) the description of the parties involved in the dispute; (5) the facts and procedural history of the case; (6) the court’s discussion, i.e. the recitation of the law and application of the law to the facts; and (7) the court's conclusion and determination of the matter1.

Naturally, despite differences in form and structure, it is expected that judgments from different jurisdictions will share many of these elements. By way of comparison, Dutch judgments usually contain similar elements: (1) the date of the judgment; (2) the publication reference; (3) the description of the court; (4) the description of the parties involved in the dispute; (5) the procedural history of the case ("procesverloop"); (6) the claim ("eis"); (7) the arguments of the parties ("de conclusies van partijen"); (8) the grounds for decision ("gronden van de beslissing"), including facts ("feiten") and reasons ("overwegingen")2; and (9) the decision/dictum ("beslissing")3.

NB. Please describe the concept of a "judgment" in your legal system. In this regard, please consider insofar as relevant the meaning of "court" or "tribunal". In your answer please provide a list of the term or terms which your legal system uses in referring to the judgments in civil and commercial matters, as well as any relevant legal definition.

NB2. Please consider in your answer whether the practice of drafting and the provision of reasons for judgments is governed by law in your legal system? In particular, what degree of detail and precision is required? Has the law and practice in your country been influenced by Article 6(1) EHCR?

NB3. By way of illustration, please provide a copy of one or more judgments which provide a typical example of the most important types of judgment within your legal system.

B. The court's determination and findings on issues of fact and lawHow does the court's determination of a matter in your legal system relate to the findings on issues of fact and law on which this determination is based?

Explanatory note:

In determining a particular claim or other matter, a court will often rule on various questions of fact and law, some of which may be necessary for its decision and some of which may be subsidiary or collateral. For the purpose of determining the preclusive effects of a judgment, elements of the reasoning of the court and not just the formal determination are relevant in certain legal systems, albeit in different ways and to different extents. For instance, in actions under a patent-licensing agreement, the court might have to rule on whether the patent is valid. Such finding paves the way for the court’s final determination, which, in the example, will be that the defendant is, or is not, liable to pay damages to the claimant for breach of the patent licensing agreement.4 Other such findings may concern relevant factual issues, the determination of jurisdiction to hear the case, admissibility of the claim, the law applicable to the legal relationship, etc.

NB. In your answer please consider whether your legal system draws a distinction (whether formal or substantive and whether as a matter of law or practice) between the final determination and the findings of fact and law on

1 In England and Wales, the formal order is usually set out in a separate document.2 Also described as "declaratief".3 Also described as "dispositief".4 T Hartley & M Dogauchi, Explanatory Report on the 2005 Hague Convention on Choice of Court Agreements (20th Session, Hague Conference 2007), para 195.

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which the determination is based, and if so, please describe: (1) the nature and basis of that distinction; (2) how the final determination and findings on issues of fact and law relate (e.g. are the findings of law and fact relevant for the interpretation of the final determination and to what extent can the final court review the final determination on the basis of such findings); and (3) how the terminology used in your legal system reflects that distinction.

C. The binding character of a judgmentPlease describe the prerequisites for a judgment to have binding character so as to be capable of having preclusive effects5 in your legal system.

Explanatory note:

Before a judgment can have binding effect, it may have to satisfy certain prerequisites such as validity and finality. Validity may be considered as the judgment’s ability to withstand an attack in the form of a request for relief from judgment. A judgment will generally withstand such an attack provided it satisfies conditions of subject matter jurisdiction, territorial jurisdiction, and adequate notice. A judgment must generally be final in the sense that the rendering court must have spoken its final word on the claim or issue involved. The meaning of finality may differ depending on whether claim or issue preclusion is involved. Regarding claim preclusion, a judgment generally becomes final when the court has concluded all regular proceedings on the claim.

For example, in the United States, a judgment is final after the court has entered its judgment, but before it awards costs and/or enforces the judgment. Furthermore, finality in the context of issue preclusion may occur at a much earlier stage than with claim preclusion. Consider again the United States: if the particular issue sought to be precluded in the subsequent action has been actually, fully, fairly, and finally determined in the first action, issue preclusion will likely be appropriate even if there is not yet a final judgment.

By way of contrast, in Spain, a judicial decision becomes final (i.e. has the formal status of res judicata) once the period provided by law in order to appeal a judgment has expired and none of the parties has appealed. Only then will the judgment deploy procedural effects known as material res iudicata (cosa juzgada material).

There are some potential complications regarding finality, for instance, in the case of reversals or inconsistent judgments. Generally, legal systems provide that if a judgment is attacked and set aside, it will no longer be res judicata and may not have the same preclusive effects.

The consequences of a reversed judgment that was previously binding on a subsequent judgment in which the preclusive effects of the former judgment were invoked may differ between jurisdictions. In the United States, motion must be made to set aside the second judgment that was based on the reversed first judgment. Furthermore, if a party fails to invoke a judgment, or a court fails to give it preclusive effect, inconsistent judgments may be rendered. Most jurisdictions have developed rules governing which judgment prevails in terms of preclusive effects; for instance, in the United States, this is the judgment rendered last in time.

NB. Please indicate whether judgments (may) have binding effect while an appeal is pending or during any period for the lodging of an appeal.

NB2. Please describe the effect of challenges (attacks) to the judgment on its binding effect. In addition, please consider the consequences of the setting aside of a judgment for its binding effect.

NB3. Finally, please indicate (1) the consequences of a reversed judgment that previously had binding effect on a subsequent judgment in which the preclusive effects of the former judgment were invoked, and (2) which judgment prevails if a party fails to invoke its binding effect, or a court fails to give a judgment preclusive effect, and as a result, a subsequent inconsistent judgment is rendered.

5 See explanatory note at the beginning of Part II below.

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D. Judgments that are capable of having preclusive effectsPlease identify and describe (1) the types and characteristics of judgments in your legal system that are capable of having preclusive effect and (2) any types of judgments that are not capable of having preclusive effects.

Explanatory note:

This question aims at identifying the types and characteristics of judgment in your legal system that may or may not have a preclusive effect. Judgments may be distinguished, for instance, depending on (1) whether they are condemnatory (judgments that order the Defendant to do or refrain from doing something), declaratory (judgments that confirm or deny a certain legal status) or constitutive (judgments that create, change, or end a certain legal status); (2) whether they are affirmative or deny the claim; (3) whether they are final (put an end to the case) or interlocutory (before the final order of the court); (4) whether they concern the whole or part of the claim (e.g. an early determination of a particular issue of law or fact); (5) whether they concern the subject matter of the claim or decisions concerning procedural aspects of the claim; (6) whether they are given on the merits of the case or without consideration of the merits; (7) whether they are based on contentious proceedings or result from consent between the parties or unilateral action (e.g. in withdrawing a claim); or (8) whether they are definitive or consist of provisional, including protective, measures (generally binding on the parties and may have preclusive effect, but do not generally prejudice upon a decision on the merits).6 For example, Swedish procedural law distinguishes between "performance judgments" (fullgörelsedom), which are exigible/executionable and requires the defendant to perform, or refrain from, an act, and declaratory judgments (fastställelsedom), which establish whether or not a certain legal relationship exists.7 In the United States, determinations by the court as to its own competence (called jurisdiction to determine jurisdiction) are accorded preclusive effect despite the fact that such determinations may be invalid. For instance, the court may not have had subject matter jurisdiction over the case or personal jurisdiction over the defendant (which would normally render any finding by the court invalid and therefore incapable of having preclusive effect) but its own determinations as to its competence will have preclusive effect despite such invalidity. Under Swiss civil procedure law, a distinction with regard to final judgments (i.e., judgments that put an end to the proceedings) is primarily drawn as to whether they are substantive (Sachurteil) or procedural (Prozessurteil). Sachurteile are given on the merits of the case and are further distinguished from judgments based on the parties’ consent. The latter category (Sachurteilssurrogate) consists of judgments recording a court settlement (gerichtlicher Vergleich), claimant’s withdrawal or defendant’s acceptance of the claim (Klagerückzug or Klageanerkennung). These judgments, however, are deemed to deploy the same preclusive effects as a Sachurteil.8 On the other hand, the majority of Cantonal Civil Procedure Codes draws no distinction between judgments given in default of a party’s appearance (Abwesenheitsurteil) or on the merits of the case. Under Swiss law, the consequences of a defendant’s default to appear are generally either that he is deemed to accept the factual basis of the claim, or that the court takes into account other facts than alleged by claimant only insofar as they can be drawn from the files. Thereupon, the court will always apply the law on the facts of the case as established in the aforementioned way. Hence, a default judgment under Swiss law, would be regarded as a Sachurteil and the distinction is irrelevant with regard to preclusive effects.

The relevance – for some jurisdictions - of a distinction between condemnatory or declaratory judgments on the one hand and constitutive judgments on the other may be clarified by way of an example relating to the problems caused in the field of cross-border patent litigation by the GAT v LKB 9 decision of the European Court of Justice. The Court’s judgment gives rise to so-called "super torpedo" actions. In most patent infringement proceedings the defendant makes the point that the patent is invalid. According to one of the judgments of the Court of Justice this defence is for the exclusive jurisdiction of the State to which the patent is attributed, which affects pending infringement proceedings. One reason for the judgment of the court has been that the effect of a judgment in an intellectual property infringement action on the validity of the IP right seems to differ between the laws of the Member States if the invalidity of the right is raised as a defence in the infringement action. In particular English law seems to regard infringement and validity as so closely connected that it is not possible to distinguish between the preclusive effect of the infringement action and the validity of the right as a separate cause of legal action.

6 Accelerated proceedings are, for example, "référé" (France), "kort geding" (Netherlands), "Verfahren nach billigem Ermessen" (Germany), summary proceedings (common law), "procedimenti somari" (Italy); see HJ Snijders, Access to Civil Justice Abroad p 20.7 Swedish Code of Judicial Procedure, Chapter 13, Sections 1 and 2.8 Vogel/Spühler 229.9 Case C-4/03 Gesellschaft für Antriebstechnik mbH & Co. KG v Lamellen und Kupplungsbau Beteiligungs KG [2006] ECR I-6509.

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One of the solutions to address this problem suggested by Professor Schlosser is to take a patent as valid as long as it has not been annulled by the (exclusively) competent court. This solution could be easily adopted in Germany, because a judgment invalidating a patent is a so-called "constitutive" judgment. It does not clear the preexisting legal relationship; rather, it modifies it to the result that the patent retroactively becomes invalid. On that basis, damages could be awarded or at least declaratory relief as to damages could be given, as long as a patent is not invalidated. In that case, however, repayment of the damages must be safeguarded, should invalidation proceedings subsequently be successful.

This solution may not, however, be suitable for the legal systems of all Contracting States, which may attribute a farther-reaching effect to such decision due to differences in the (preclusive) effects of the different types of judgment. The effects flowing from such a decision are in fact determined by national law. In several Contracting States, however, a decision to annul a patent has erga omnes effect. In order to avoid the risk of contradictory decisions, it may therefore be necessary to limit the jurisdiction of the courts of a State other than that in which the patent is issued to rule indirectly on the validity of a foreign patent to only those cases in which, under the applicable national law, the effects of the decision to be given are limited to the parties to the proceedings. Such a limitation would, however, lead to distortions, thereby undermining the equality and uniformity of rights and obligations arising from the Convention for the Contracting States and the persons concerned.10

NB. Please consider whether your legal system makes (similar) distinctions between judgments as described in the explanatory note, what is the nature and basic rationale for that distinction, and whether those different types of judgments may have preclusive effects. Please include in your answer in Italics the original terminology used in your legal system to describe each category of judgment. For example, under Swiss law, one of the distinctions that is drawn is between judgments granting affirmative relief (Leistungsurteile), declaratory judgments (Feststellungsurteile) and judgments establishing or altering a legal relationship (Gestaltungsurteile). Typical examples for Gestaltungsurteile would be a divorce decree or a judgment annulling a resolution of an organ of a corporation.

NB2. In general terms and without duplicating material in the following sections, please describe the principal differences between the preclusive effects of the different types of judgments you have identified for your legal system.

10 Case 288/82 Ferdinand M.J.J. Duijnstee v Lodewijk Goderbauer [1983] Page 3663, para 13.

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II.Preclusive effects of JudgmentsThis part of the questionnaire is concerned with the effects of a judgment (including, for this purpose, any statement of the reasons given for a judgment) insofar as it restricts the ability of the participants in the proceedings in which it was given, or related or non-related persons, to bring or conduct later proceedings (whether or not forming part of the same action) as they would wish. In particular, this section is concerned with so-called rules of "res judicata" or their equivalent. References to "Claimant" are to the person seeking a remedy from the court, and references to "Defendant" are to the person against whom a remedy is sought.11

The terminology used in this intended for guidance only and is not intended to exclude or restrict discussion of the legal concepts and terms which are relevant to your legal system. This section is not concerned with the evidential status of the record of judgment, nor with the value of judgments as a legal precedent for future cases (stare decisis), both of which fall outside the scope of this Project. For the purpose of drafting the questionnaire, a distinction has been drawn between "claim preclusive effects" (see Part II.A) and "issue preclusive effects" (see Part II.B). These are intended to be descriptive categories, the former (which might also be described as "same claim preclusion") embracing rules of preclusion affecting the raising of claims which a legal system considers to have been determined in earlier proceedings and the latter embracing rules of preclusion affecting attempts to re-open issues of law or fact which a legal system regards as having already been determined in earlier proceedings. A third category of "wider preclusive effects" has been used (see Part II.C) to accommodate rules of preclusion which are considered to fall into neither of these categories. Those co-ordinating the Project recognise, however, that different legal systems will approach the categorisation differently depending on how they define the concepts of “claim” and “issue”, and that terminology will vary (e.g. in England, reference is made to "cause of action estoppel", "issue estoppel" and to various other rules, including "abuse of process"). Rapporteurs are thus encouraged to be flexible and to fit their description of the law and practice of their legal system into the framework established below as they think most appropriate.

A. Claim preclusion

1. Existence and nature of claim preclusive effects

Are judgments in your legal system capable of having claim preclusive effects?

Explanatory note:

This and the following questions are concerned with claim preclusive effects (see introductory note above), focusing on rules which have as the basis the identity of the claim/cause of action raised in pending proceedings with that determined in earlier proceedings.

NB. In your answer, please identify what is the nature of each claim preclusive effect (e.g. substantive, i.e. affecting the obligation on which the Claimant relied in the proceedings leading to judgment or merely procedural). Does this categorization have any legal relevance in practice?

NB2. What is the relevant point in time the preclusive effect of a judgment is based on (e.g. in Germany: last oral hearing before the court)?

2. Policies underlying claim preclusive effects

What are the policy considerations for the claim preclusive effect of judgments in your legal system?

Explanatory note:

This question aims to establish the rationale underlying the preclusive effect of judgments in your legal system. The procedure for the rendering of civil justice is sometimes described as a process in pursuit of the truth as between the parties involved in a dispute. The "truth" which is contentious and often relative to the parties’ perspective may, however, never be satisfactorily established. For the following reasons, it appears to be widely accepted that the

11 Thus, for example, a person named as Defendant in legal proceedings who advances a counterclaim should be treated as "Defendant" for the purposes of the main claim against him (including, for example, any true defence of set-off) and "Claimant" for the purposes of the counterclaim.

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quest for the truth must eventually cease in the interests of the parties themselves and the interest of society at large. First, it is uncertain whether the continuation or repetition of litigation will ever satisfactorily establish the truth from the perspective of both parties and, second, it is extremely doubtful whether any benefit of continuous or repetitive litigation can outweigh the financial and social costs of litigation. Both the public and private interests are reflected in maxims that have historically been advanced to justify the preclusive effect of judgments:12 (1) [i]nterest reipublicae ut sit finis litium (“it is in the public interest that there should be an end of litigation"); and (2) Nemo debet bis vexari pro una et eadem causa ("no one should be proceeded against twice for the same cause").

NB. Please refer to, cite, summarise and translate, as appropriate, legislation, travaux préparatoires , case law and doctrine.

3. Conditions for claim preclusive effects

What are the conditions for the claim preclusive effects of a judgment?

Explanatory note:

In general, it may be suggested that there are two main conditions that must be satisfied before a judgment has claim preclusive effects in subsequent proceedings: the subsequent proceedings must (a) concern the same claim and (b) involve the same parties as covered by the earlier judgment. The question aims at clarifying whether, and to what extent, these and/or other conditions apply in your legal system.

NB. Please describe how your legal system defines the concept of "claim" and include the relevant terminology.

NB2. Please further describe in detail how a court determines whether subsequent proceedings concern the same claim as determined in the earlier judgment. In certain civil law systems (e.g. Belgium, France13 and Netherlands) it seems that the identity of the "thing claimed" is interpreted and applied narrowly in that claim preclusive effect will only vest in judgments provided the relief sought ("petitum") is identical. In addition, as a part of the so-called "triple identity test", it is further required that claim is based on the same legal grounds ("causa petendi"). Later proceedings may be brought and the case can be re-litigated if a party chooses to take a second shot and attempts to bring its case based on a different cause of action.14 By contrast, at common law, a claim or "cause of action" is said to comprise all the facts and circumstances necessary to give rise to a right to relief. Generally, all claims arising from a single event and relying on the same factual basis will be treated as the same cause of action. The cause of action must be identical to that in the earlier proceedings. A plea of cause of action estoppel will often necessitate a review of the reasoning of the earlier judgment, and not just of the formal order granting or denying relief.15 In US common law, a "claim" comprises all rights of the Claimant to remedies against the respondent with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose. What constitutes a "connected transaction", and what constitutes a "series", is determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties' expectations or business understanding or usage.16

NB3. If appropriate, please further describe in detail how a court determines whether subsequent proceedings concern the same parties as involved in the earlier judgment. As far as the requirement of same parties applies in your legal system, you do not have to describe this concept in detail as a part of this question because its meaning is examined in the specific questions below (questions 8 through 14).

NB4. Please indicate whether the application of preclusive effects to a judgment that is on appeal depends on the grounds for appeal.

12 See The Digest, Book 50, ch 17; and Justinian, Institutes, IV 13.5.13 See French Civil Code, Article 1351. 14 ILA, Interim Report on Res judicata and Arbitration (2004) 16, available at: http://www.ila-hq.org/pdf/Int%20Commercial%20Arbitration/Report%202004.pdf. 15 ILA, Interim Report on Res judicata and Arbitration (n 5) 7.16 ILA, Interim Report on Res judicata and Arbitration (n 5) 11.

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4. Invoking claim preclusive effects

Please describe how the claim preclusive effects of a judgment are invoked in your legal system.

Explanatory note:

This question aims at identifying the procedural aspects of how a party or the court can invoke the claim preclusive effects of a prior judgment in order to preclude adjudication upon the same claim. For instance, in the United States, the party wishing to rely on the preclusive effects of a judgment must raise the issue or else the party waives his or her ability to do so later. Furthermore, a court has the power to raise preclusion of its own motion, although this is rare and will only occur if the court feels a danger of repetitive litigation.

Timing may also play a role in the invocation of preclusive effects. For example, a Claimant may invoke a judgment’s preclusive effects to preclude the Defendant from defending on the underlying merits in an action upon the judgment first rendered. Likewise, a Defendant may wish to raise preclusion as part of his or her defence. For instance, in the United States, claim preclusion is most often raised by the Defendant as an affirmative defence and not a mere denial of the allegations set forth. Furthermore, a Defendant may be permitted to raise the defence earlier in the proceedings through a pre-answer motion to dismiss.

Invocation of claim preclusion also involves issues of proof which include matters pertaining to burden of proof and evidence. For example, in the United States, the burden of proof that preclusive effects apply lies on the party raising the allegedly preclusive judgment. However, the burden that an exception to its application applies will lie with the other party. Regarding evidence, certain documents may be required in order to demonstrate the prior judgment. In the United States, the party raising preclusion must provide a formal record of the judgment, although a court may sometimes take judicial notice of the judgment’s existence. It may be additionally necessary to provide evidence of the matters actually litigated in the first set of proceedings. Such items may include transcripts, evidence of party stipulations regarding certain issues, or testimony of jurors who tried facts in the first suit.

It is also relevant to consider how the judge will make the determination of whether to give the judgment preclusive effects. For example, in the United States, in most cases, the judge before trial will determine, after a consideration of all the evidence presented, whether preclusive effects apply to the judgment. However, if there is a genuine dispute regarding the truth of the evidence offered, the judge may submit the matter to the jury along with other issues to be determined in connection with the second set of proceedings. If that occurs, and the jury decides that preclusive affects should apply, the jury will not go on to consider the precluded part of the merits of the case.

Finally, an appellate court’s power to review a lower court’s decision as to the preclusive effects of a judgment may be limited by principles of deference, especially in situations where the court raised the issue of preclusion ex officio. However, in the United States, appellate courts are less likely to give deference to a lower court’s decision regarding preclusion in view of their interest in close supervision of preclusion and strict application of res judicata principles.

NB. Please consider in particular: (1) if and when the claim preclusive effect of a judgment must be raised by the party seeking to rely on it, or whether it is subject to the discretion of the court; if so, (2) how it is proved; and (3) whether and how it may be defeated. The issue of raising the claim preclusive effect involves questions of: (a) timing; and (b) method. The issue of proof potentially involves questions concerning: (a) the burden of proof; (b) evidence; (c) the decision; and (d) review of the decision. The issue of defeating the claim preclusive effect of a judgment may involve questions of: (a) methods for attack (e.g. interlocutory motion for relief or independent case); and (b) grounds for attack (e.g. issues of jurisdiction and notice or other grounds, such as fraud).

NB2. As regards the issue of proof, please consider in your answer what documents may be produced to establish a judgment’s claim preclusive effect. In particular, consider whether in order to establish the claim preclusive effect of a judgment an applicant is entitled to rely on the final order, the reasons, the parties’ pleadings, and on evidence submitted to the court.

NB3. Please describe in your answer the nature of the decision taken by the court when it decides that indeed a claim is barred due to the claim preclusive effects of an earlier judgment.

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5. Exceptions to claim preclusive effects

Please verify whether the claim preclusive effect of judgments in your legal system is subject to generally accepted exceptions.

Explanatory note:

It is expected that the rule on the claim preclusive effect of judgments, if any, might be subject to important recognised exceptions in your legal system. This may have as a consequence that a valid and final judgment will not preclude a later action on the original claim, so that the Claimant may bring a second action on all or part of the same claim. This question aims at identifying such exceptions.

NB. Please consider in particular whether the following exceptions apply to the rule providing for the claim preclusive effects of a judgment: (1) the judgment was not on the merits; (2) jurisdictional or procedural limitation; (3) judicial permission; (4) party agreement; (5) the preclusive effect would be contrary to public policy (consider Article 6(1) ECHR in relation to lack of reasons for judgment or lack of adequate notice); (6) additional evidence, whether or not available before judgment and whether or not known to the parties or the court, or a change in circumstances; and/or (7) due to the fact that invoking the preclusive effect of the judgment would be contrary to procedural reasonableness or would constitute an abuse of process. The exception that the judgment which is relied of for purposes of preclusion was not on the merits might occur, for instance, when the judgment involved: (a) the dismissal of the case due to lack of jurisdiction; (b) the dismissal of the case due to prematurity of action (e.g. a fact essential for recovery had not yet occurred); (c) the dismissal of the case due to the statute of frauds; (d) the dismissal of the case due to the statute of limitations; (e) summary proceedings; (f) the dismissal of the case due to voluntary withdrawal; (4) the dismissal of the case due to involuntary dismissal; or (g) the dismissal of the case due to insufficient evidence.

NB2. Please consider, where appropriate, the policies underlying the exceptions that exist to the rule on the claim preclusive effects of judgments in your legal system.

NB3. Please also indicate under what circumstances, if any, the party may lose the ability to rely on the preclusive effects of the judgment.

In the previous section, the Questionnaire addressed general aspects of claim preclusive effects of judgments. The following numbered points address particular questions that may arise in relation to the operation of the claim preclusive effects of judgments in particular circumstances which may be subject to specific rules and conditions. It is appreciated that some of the issues you have addressed in the more general answers in the previous section will be involved when you consider these specific situations. Therefore, it is important that you provide an insight in this section into the particularities, if any, of the application of claim preclusion in the circumstances as described.

6. Claimant and Defendant

May a Claimant or Defendant in your legal system be prevented by judgment on a particular claim from bringing or defending fresh proceedings against the Defendant or Claimant based on what is considered in your legal system to be the same claim?

NB. Please consider: (1) what is the nature of that preclusive effect and the conditions for its application; (2) how the preclusion is invoked; and (3) any exceptions to its application. As regards the nature of the preclusive effect, please clarify whether the preclusion is substantive (i.e. affecting the obligation on which the Claimant relied in the proceedings leading to judgment) or merely procedural?

NB2. Please indicate the legal terminology used to describe the preclusive effects and any relevant legal basis.

NB3. Insofar as relevant, please distinguish in your answer between the positions of (1) a successful Claimant; (2) an unsuccessful Claimant; and (3) an unsuccessful Defendant. Thus, for example, there are theoretical and practical differences under English law between the claim preclusive effects of a judgment vis-à-vis a successful Claimant (merger in judgment) and vis-à-vis an unsuccessful party (cause of action estoppel).

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NB4. By way of practical example, please describe how the following situation would be handled in your legal system: a Claimant brings the same claim against the same party a second time while the decision on the claim in the first set of proceedings is under appeal?

NB5. Please also indicate what would happen under the following circumstances: a judgment on a suit to recover lost wages is under appeal; pending the appeal, the same Claimant brings a new claim for recovery of wages from a later time period against the same Defendant.

7. Other participants

To what extent, if at all, do the claim preclusive effects of judgments extend to other participants in the litigation?

Explanatory note:

This question seeks to assess the position with regard to preclusive effects on other participants in the litigation, including co-claimants, co-defendants, notified or impleaded third parties, interveners, or otherwise.

To clarify the relevance of this question, we may use the example of third party proceedings. In all European legal systems not only the Claimant, but also the Defendant may add a third party to a pending litigation and extend the effects of the judgment to that party.17 The case law of the European Court of Justice and the Member States suggests that such cases arise regularly. The most common examples are actions on a warranty or guarantee or cases where relief is sought from a third party by way of indemnity or by way of contribution to the judgment in the main proceedings. Generally speaking, two different types of third party proceedings can be distinguished in the Member States, which accordingly are coordinated by two different provisions on third party proceedings in the Brussels Regulation: Articles 6(2) and 65.

The first, associated with Article 6(2) of the Regulation, applies in a large majority of the Member States and provides that a third party may be included into pending proceedings, for example, if the Defendant of these proceedings asserts a warranty or a guarantee against the third party.18 In the main proceedings, the second action is joined to the pending one and the third party is treated as a full party. The third party acts independently from the parties in the parallel litigation. Finally, the court pronounces a judgment in favour of or against the (third) party which is subject to enforcement under Articles 32 and 38 Brussels Regulation. In addition, English law allows a court to add or substitute parties and consolidate the proceedings.19 These provisions are based on considerations of procedural efficiency. Articles 6(2) and 11(2) of the Regulation directly reflect this approach.

Conversely, the second system, covered by Article 65 of the Regulation, operates in Austria, Germany, Hungary, Estonia, Latvia, Poland and Slovenia and is based on a notice of pending suit served on third parties. This system separates the main proceedings from the intervention of the third party and strongly adheres to the model of "two parties proceedings" and of a limited directly preclusive effect of a judgment in the main proceedings. It functions as follows: the Defendant in the main proceedings may serve a notice of pending suit on the third party. The third party is invited to join the pending proceedings, not as a party, but as an auxiliary intervenor and to assist the main party. If the party notified does not appear in the hearing, the main proceedings are continued regardless of this fact. If the suit is lost, the third party is bound by the findings of the judgment. Consequently, the third party will be (indirectly) precluded from questioning the factual or legal basis of the court’s decision in a second lawsuit between the Defendant in the main proceedings and the third party, although in the main proceedings, no judgment against or in favour of the third party is given and the third party is only in the position of an intervenor.20

Several safeguards protect the position of the third party in the second system. Firstly, the notice on the third party about the pending proceedings must be served properly. Secondly, the preclusive effect of the judgment of the main proceedings only occurs after the moment of the service of the notice. Thirdly, the intervenor may oppose the procedural conduct of the assisted party. In the main proceedings, the intervenor cannot "block" the procedural conduct of the assisted party. However, in this constellation, the third party is not bound by the judgment in the main proceedings. The preclusive effects of the third party notice operate in the proceedings between the Defendant of the

17 The issue of third party proceedings is discussed by Professor Hess in the Heidelberg Report on the Application of Regulation Brussels I in the Member States, para 228ff, available at: http://ec.europa.eu/civiljustice/news/docs/study_application_brussels_1_en.pdf.18 See, for example, Articles 331–333 and Articles 334–338 NCPC and Part 20 of the English Civil Procedure Rules ("CPR").19 See English CPR, Part 19.20 In Austria, Section 21 Austrian Code of Civil Procedure (Zivilprozessordnung) does not explicitly provide for a preclusive effect. However, the Austrian Oberste Gerichtshof held that Austrian law provides for a preclusive effect similar to the German solution; See the Heidelberg Report on the Application of Regulation Brussels I in the Member States, para 231, available at: http://ec.europa.eu/civiljustice/news/docs/study_application_brussels_1_en.pdf.

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main proceedings and the third party. If the Defendant loses the main proceedings he may file a lawsuit against the third party. In these proceedings, the legal and factual findings of the judgment in the main proceedings are directly binding for the court.21 Accordingly, the court of the second proceedings verifies whether the applicable procedural conditions were complied with, although it does not decide on the issue whether the third party notice was effective or not. The judgment of the main proceedings only mentions the fact that the third party was served by the Defendant and the (non-)appearance of the third party.

Article 65 of the Brussels Regulation provides that: “1. The jurisdiction specified in Article 6(2) and Article 11 in actions on a warranty of guarantee or in any other third party proceedings may not be resorted to Germany, Austria and Hungary. Any person domiciled in another Member State may be sued in the courts: (a) of Germany, pursuant to Articles 68 and 72 to 74 of the Code of Civil Procedure (Zivilprozessordnung) concerning third-party notices; (b) of Austria, pursuant to Article 21 of the Code of Civil Procedure (Zivilprozessordnung) concerning third-party notices; (c) of Hungary, pursuant to Articles 58 to 60 of the Code of Civil Procedure (Polgári perrendtartás) concerning third-party notices. (2) judgments given in other Member States by virtue of Article 6(2), or Article 11 shall be recognised and enforced in Germany, Austria and Hungary in accordance with Chapter III. Any effects which judgments given in these States may have on third parties by application of the provisions in paragraph 1 shall also be recognised in the other Member States.”

An example demonstrates the practical difficulties encountered with the application of Article 65: A German merchant ordered goods from France. The seller organised the transport from France to Germany which was undertaken by a French carrier. The carrier was insured with a French insurance company. During transport goods were stolen. Proceedings were instituted against the seller in Germany, and the carrier sent a third party notice to the French insurer. The insurer did not appear in the German proceedings. Subsequently, the carrier instituted proceedings against the insurance company in France. In these proceedings, the preclusive effect of the German judgment was disputed – it was also disputed in additional, parallel proceedings in Germany. The problem of the French carrier was to inform the judges in France about the preclusive effects of the German judgment under German law. In addition to this, the French party was obliged to litigate twice on the same issue: Firstly as a Defendant in Germany and later to claim the reimbursement of the German judgment in France. The recognition of the effects of the third party notice in other Member States is therefore difficult.22

NB. Please consider: (1) what is the legal terminology used to describe such effects and the relevant legal basis; (2) what is the nature of the claim preclusive effect (e.g. substantive, i.e. affecting the obligation on which the Claimant relied in the proceedings leading to judgment or merely procedural) and the conditions for its application; (3) how the preclusion is invoked; and (4) whether any exceptions exist to its application. In particular, please consider whether and to what extent other participants in the litigation are (1) able to rely on, (2) bound by and/or (3) otherwise affected in later proceedings by a judgment insofar as it determines the existence, or non-existence, of a particular claim.

NB2. Please consider further in relation to third party proceedings whether the preclusive effects of judgments in such proceedings follow directly from the general preclusive effect of such judgment or follow from explicit statutory provisions (e.g. in Germany, formally, the binding effect of a German master decision on parallel proceedings is not derived directly from res judicata23, but from a specific legal provision similar to the model of the third party notice24, because in Germany the scope of the binding effect of the judgment does not extend to the factual findings of the judgment. The legal grounds (Entscheidungsgründe) for a decision do not have any binding or limiting effect).

8. Represented persons

Does your legal system provide for group/representative actions (including, for example, US-style class actions)? To what extent, if at all, do the claim preclusive effects of judgments in such actions extend to the other members of the group/persons represented in the action?

Explanatory note:

21 See Sections 74 and 68 Code of Civil Procedure (Zivilprozessordnung).22 The issue of third party proceedings is discussed by Professor Hess in the Heidelberg Report on the Application of Regulation Brussels I in the Member States, para 241, available at: http://ec.europa.eu/civiljustice/news/docs/study_application_brussels_1_en.pdf. The example is derived from this report.23 See Section 322 ZPO.24 See Sections 74 and 68 ZPO.

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This question seeks to assess the position with regard to preclusive effects on members of a group/persons represented in the action. This question is not intended to provoke detailed descriptions of the legal practice concerning group/representative actions, if such actions exist at all in your country. Nonetheless, a lack of legal certainty exists as to the preclusive effect of decisions in class actions in the various jurisdictions. Two basic models are under consideration: (1) group action with identified Claimants fulfilling certain criteria to join; and (2) represented (or class) action with one or more persons nominated to represent the interests of others with identical or similar interests. In either model, a judgment may produce a result which is binding on all the group/represented persons even if they did not actively participate in the proceedings which led to that judgment. In the case of (1) above a judgment may have preclusive effects in respect of all parties because (for example) while in the context of a test case there is a leading representative, all parties agree, in advance, to be bound by the determination on the basis of party consent. In such cases, if all parties are named in the proceedings, you may wish to refer your answer in relation to question 7 above, while indicating any differences as far as relevant in relation to preclusive effect of judgments in such proceedings.

By way of example, Germany recently extended the application of Sections 68 and 74 ZPO (as well as Article 65 Brussels Regulation) to collective civil litigation, which provides for collective proceedings in capital market cases; parallel actions are stayed and the common questions are decided by the German Court of Appeal (Oberlandesgericht).25 Ultimately, the Court of Appeal renders a master decision binding for all plaintiffs of the disputes during the master proceedings. Nonetheless, formally, the binding effect of a German master decision on parallel proceedings is not derived directly from res judicata26, but from a specific legal provision similar to the model of the third party notice27, because in Germany the scope of the binding effect of the judgment does not extend to the factual findings of the judgment. The legal grounds (Entscheidungsgründe) for a decision do not have any binding or limiting effect.

NB. Please consider: (1) what is the legal terminology used to describe such effects and the relevant legal basis; (2) what is the nature of the preclusive effect (e.g. substantive, i.e. affecting the obligation on which the Claimant relied in the proceedings leading to judgment, or merely procedural) and the conditions for its application; (3) how the preclusion is invoked; and (4) whether any exceptions exist to its application.

NB2. Please indicate to what extent the preclusive effects described above in relation to successful/unsuccessful Claimants and unsuccessful Defendants are applicable in the case of members of a group. In particular, please consider whether and to what extent absent class members are (1) able to rely on, (2) bound by and/or (3) otherwise affected in later proceedings by a judgment insofar as it determines the existence, or non-existence, of a particular claim.

9. Persons connected to the Claimant, Defendant, and other participants

To what extent, if at all, do the claim preclusive effects of judgments extend to persons who have not directly participated in the proceedings giving rise to judgment but who are connected in a legally relevant way to the Claimant, Defendant or another participant in the proceedings?

Explanatory note:

This question considers the position of people who have not directly participated in the proceedings, but who are connected in a legally relevant way to the Claimant, Defendant or other participants in the proceedings or the subject matter of the action. The connection to the Claimant, Defendant and other participants may, for purposes of illustration, be categorised as substantive or procedural, although in your legal system such categorisation might differ. The former category includes those persons who have had a substantive legal relationship with a party, for example, a successor in interest to property. Such a relationship is not based on the property, but rather on the contractual relationship between the parties. The idea of "successor in interest" may be broad, as in the United States where purchasers, mortgages, donees, heirs, trustees and receivers may be bound by a judgment.

The latter category involves circumstances of representation, for example, where a beneficiary was represented in proceedings by a trustee, or representation by a public official or where a non-party conducts the litigation, as in the case of an insurance company conducting the defence on behalf of the Defendant who has liability insurance. Finally, there are instances whereby a non-party may agree, either explicitly or implicitly, to abide by the outcome

25 See the Heidelberg Report on the Application of Regulation Brussels I in the Member States, para 232, available at: http://ec.europa.eu/civiljustice/news/docs/study_application_brussels_1_en.pdf.26 See Section 322 ZPO.27 See Sections 74 and 68 ZPO.

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of a case. For example, an insurance company may agree by contract to accept the determination of common issues in an action brought by an injured person against the insured party. The non-party insurance company will then be considered bound.

NB. Please also indicate the terminology used to describe such effect(s) and the relevant legal basis.

NB2. Please consider in your answer whether and to what extent such person is (1) able to rely on, (2) bound by, and/or (3) otherwise affected in later proceedings (including proceedings against the Claimant or Defendant) by the judgment insofar as it determines the existence, or non-existence, of a particular claim. In particular, you may wish to consider the following relationships for the purpose of giving examples, although they may not be relevant for your legal system: (a) surety and principal debtor; (b) companies within the same corporate group; (c) members of a partnership; (d) assignors and assignees; (e) family members; (f) associations; and (g) co-obligors and co-obligees.

10. Strangers

To what extent, if at all, do the claim preclusive effects extend to persons who have not directly participated in the proceedings giving rise to judgment and who are not connected in a legally relevant way to the Claimant, Defendant or another participant in the proceedings or the subject matter of the action?

Explanatory note:

People who have not directly participated in the proceedings giving rise to judgment and who are neither connected in a legally relevant way to the Claimant, Defendant or another participant in the proceedings or the subject matter of the action are not generally bound by the claim preclusive effects of a judgment. For example, actions brought by or against parties under incapacity (i.e. actions by or against persons lacking juridical capacity such as infants or incompetents) normally are brought by or against them in the name of a guardian ad litem. Judgments in such actions will be binding only on the incapacitated party and not its representative. However, there may be situations in which strangers may benefit from a judgment in subsequent proceedings, although they are not bound by it. This is most likely to occur in relation to issue preclusion. Nonetheless, the possibility might exist in your legal system that a stranger is able to use a former party’s victory on a claim to preclude an assertion of the opposing party’s claim against him. For example, in proceedings between an injured person and an employee where the injured person loses by failing to adequately prosecute the case, the employer may be able to use the judgment in a later action by the injured person against him.

NB. Please indicate the terminology used to describe such effect(s) and the relevant legal basis.

NB2. Please consider in your answer whether and to what extent any such person is (1) able to rely on, (2) bound by, and/or (3) otherwise affected in later proceedings (including proceedings against the Claimant or Defendant) by the judgment insofar as it determines the existence, or non-existence, of a particular claim.

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B. Issue preclusion

1. The existence and nature of issue preclusive effects

Are judgments in your legal system capable of having issue preclusive effects?

Explanatory note:

This and the following questions are concerned with issue preclusive effects (see introductory note at the beginning of this part), focusing on rules which have as the basis the identity of an issue of fact or law raised in pending proceedings with an issue determined in earlier proceedings.

According to German procedural law, the scope of the binding effect of the judgment (res judicata) does not extend to the factual findings of the judgment. The legal grounds (Entscheidungsgründe) for a decision do not have any binding or limiting effect. In Switzerland, the effects of res judicata are in general restricted to the operative part of the judgment. As a consequence, it is assumed that an issue which has only been determined as a preliminary question in the judgment (i.e., the finding is only contained in the reasons of the judgment, but not stated upon in the operative part) does not become legally binding. The reasons of a judgment are of relevance, however, as far as they are necessary to determine whether a further litigation is based on the same cause of action. Furthermore, it is explicitly pointed out that the principle, according to which the reasons do not deploy a binding effect, is to be applied within the means of reasonableness. Hence, Swiss case law and doctrine assume and/or discuss an extension of the effects of res judicata for certain constellations in a rather casuistic manner. For instance, it is widely assumed among Swiss scholarly writers, that a buyer – after successfully suing the seller for specific performance based on a sales contract – is precluded from asserting the invalidity of the contract, if he is later sued for the purchase price by the seller. In contrast, under English law, the preclusive effect of judgments is capable of extending to issues necessarily determined in the earlier judgment ("issue estoppel"), but not collateral or incidental matters.

NB. In your answer, please identify the nature of the preclusion. Is the rule of issue preclusion considered to be part of the (1) law of evidence; (2) procedural law; or (3) substantive law. Does this categorization have any legal relevance in practice?

NB2. What is the relevant point in time upon which the issue preclusive effect of a judgment is based (e.g. in Germany: last oral hearing before the court)?

2. Policies underlying issue preclusive effects

What are the policy considerations for the issue preclusive effect of judgments in your legal system?

Explanatory note:

This question aims to establish the rationale underlying the issue preclusive effect of judgments in your legal system. It is expected that you will have satisfactorily answered this question in relation to claim preclusion. In those circumstances, please limit your answer to identifying differences or necessary additions.

3. Conditions for issue preclusive effects

What are the conditions for the issue preclusive effects of a judgment?

Explanatory note:

This question aims at identifying the conditions that must exist in order to give a specific issue preclusive effect. For instance, preclusion may depend on whether the issue in the second set of proceedings is the same as an issue decided in the first proceedings or whether the issue was necessary in order for the court to arrive at its judgment. You may have satisfactorily answered this question in relation to claim preclusion. In those circumstances, please limit your answer to identifying differences or necessary additions.

NB. Please consider in your answer how your legal system defines the issues with respect to which preclusion exists, e.g. is preclusion restricted to issues which are a necessary element of the claim, or does it extend to incidental issues?

NB2. Please also indicate whether the same conditions apply to issues of fact and law.17

4. Invoking issue preclusive effects

Please describe how the issue preclusive effects of a judgment are invoked in your legal system.

Explanatory note: please also refer to the explanatory note above regarding question 4 of Part II.A.

With regard to issue preclusion, it is much more likely that either the Claimant or Defendant may wish to establish elements of his or her claims or defences through a demonstration that such matters were decided in earlier litigation. Timing in this regard may present certain problems. For instance, in the United States, a party may assert issue preclusion through reference in a pleading, but whether that is compulsory is of some debate. Some cases mandate that issue preclusion must, like claim preclusion, be pleaded as an affirmative defence that may be lost if the party fails to plead such preclusion. On the other hand, there are those who argue that issue preclusion is used as more of an evidentiary tool regarding certain parts of a case, displacing the need to present direct evidence, consequently affecting the point at which issue preclusion may be raised by the parties.

NB. Please consider in particular: (1) if and when the issue preclusive effect of a judgment must be raised by the party seeking to rely on it; (2) how it is proved; and (3) whether and how it may be defeated. The issue of raising the claim preclusive effect involves questions of: (a) timing; and (b) method. The issue of proof potentially involves questions concerning: (a) the burden of proof; (b) evidence; (c) the decision; and (d) review of the decision. The issue of defeating the issue preclusive effect of a judgment may involve questions of: (a) methods for attack (e.g. interlocutory motion for relief or independent case); and (b) grounds for attack (e.g. issues of jurisdiction and notice or other grounds, such as fraud).

NB2. As regards the issue of proof, please consider in your answer what documents may be produced to establish a judgment’s issue preclusive effect. In particular, consider whether in order to establish the issue preclusive effect of a judgment an applicant is entitled to rely on the final order, the reasons, the parties’ pleadings, and on evidence submitted to the court.

5. Exceptions to issue preclusive effects

Please verify whether the issue preclusive effect of judgments in your legal system is subject to generally accepted exceptions.

Explanatory note:

It is expected that the rule on the issue preclusive effect of judgments, if any, might be subject to important recognised exceptions in your legal system. This question aims at identifying such exceptions.

NB. Please consider in particular whether the following exceptions apply to the rule providing for the issue preclusive effects of a judgment: (1) the judgment was not on the merits; (2) jurisdictional or procedural limitation; (3) judicial permission; (4) party agreement; (5) the preclusive effect would be contrary to public policy (consider Article 6(1) ECHR in relation to lack of reasons for judgment or lack of adequate notice); (6) additional evidence, whether or not available before judgment and whether or not known to the parties or the court, or a change in circumstances; and/or (7) due to the fact that invoking the preclusive effect of the judgment would be contrary to procedural reasonableness or would constitute an abuse of process. The exception that the judgment which is relied of for purposes of preclusion was not on the merits might occur, for instance, when the judgment involved: (a) the dismissal of the case due to lack of jurisdiction; (b) the dismissal of the case due to prematurity of action (e.g. a fact essential for recovery had not yet occurred); (c) the dismissal of the case due to the statute of frauds; (d) the dismissal of the case due to he statute of limitations; (e) summary proceedings; (f) the dismissal of the case due to voluntary withdrawal; (4) the dismissal of the case due to involuntary dismissal; or (g) the dismissal of the case due to insufficient evidence.

NB2. Please consider the policies underlying the exceptions that exist to the rule on the issue preclusive effects of judgments in your legal system.

NB3. Please also indicate under what circumstances, if any, the party may lose the ability to rely on the issue preclusive effects of the judgment.

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In the previous section, the Questionnaire addressed general aspects of issue preclusive effects of judgments. The following numbered points address particular questions that may arise in relation to the operation of the issue preclusive effects of judgments in particular circumstances which may be subject to specific rules and conditions. It is appreciated that some of the issues you have addressed in the more general answers in the previous section will be involved when you consider these specific situations. Therefore, it is important that you provide an insight in this section into the particularities, if any, of the application of issue preclusion in the circumstances as described.

6. Claimant and Defendant

May a Claimant or Defendant in your legal system be prevented by judgment on a particular claim from challenging in the same or subsequent proceedings against the same party any finding (whether adverse or otherwise) on an issue of fact or law which the court may have determined in giving judgment on a particular claim?

NB. Please consider: (1) what is the nature of that preclusive effect and the conditions for its application; (2) how the preclusion is invoked; and (3) any exceptions to its application. As regards the nature of the preclusive effect, please clarify whether the preclusion is substantive (i.e. affecting the obligation on which the Claimant relied in the proceedings leading to judgment) or merely procedural?

NB2. Please indicate the legal terminology used to describe the preclusive effects and any relevant legal basis.

NB3. Insofar as relevant, please distinguish in your answer between the positions of (1) a successful Claimant; (2) an unsuccessful Claimant; and (3) Defendant.

NB4. By way of practical example, please indicate how your legal system would handle the following situation: a Claimant brings a different claim against the same party in a second suit, a decision on which depends on an issue of law or fact which was decided in the first case which is now under appeal.

7. Other participants

To what extent, if at all, do the issue preclusive effects of judgments extend to other participants in the litigation?

Explanatory note: please refer to the explanatory note above for question 7 of Part II.A.

NB. Please indicate the legal terminology used to describe such effects and the relevant legal basis.

NB2. In particular, please consider whether and to what extent other participants in the litigation are (1) able to rely on, (2) bound by and/or (3) otherwise affected in later proceedings by a judgment insofar as it determines a particular issue of fact or law.

8. Represented persons

If your legal system provides for group/representative actions (including, for example, US-style class actions), to what extent, if at all, do the issue preclusive effects of judgments in such actions extend to the other members of the group/persons represented in the action?

Explanatory note: please refer to the explanatory note above for question 8 of Part II.A.

NB. Please indicate the legal terminology used to describe such effects and the relevant legal basis.

NB2. Please indicate to what extent the preclusive effects described above in relation to successful/unsuccessful Claimants and unsuccessful Defendants are applicable in the case of members of a group. In particular, please consider whether and to what extent absent group members/represented persons are (1) able to rely on, (2) bound by and/or (3) otherwise affected in later proceedings by a judgment insofar as it determines a particular issue of fact or law.

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9. Persons connected to the Claimant, Defendant, and other participants

To what extent, if at all, do the issue preclusive effects of judgments extend to persons who have not directly participated in the proceedings giving rise to judgment but who are connected in some way to the Claimant, Defendant or another participant in the proceedings or to the subject matter of the action?

Explanatory note: please consider the explanatory note above for question 9 of Part II.A.

NB. Please also indicate the terminology used to describe such effect(s) and the relevant legal basis.

NB2. Please consider in your answer whether and to what extent such person is (1) able to rely on, (2) bound by, and/or (3) otherwise affected in later proceedings (including proceedings against the Claimant or Defendant) by the judgment insofar as it determines a particular issue of fact or law. In particular, you may wish to consider the following relationships: (a) surety and principal debtor; (b) companies within the same corporate group; (c) members of a partnership; (d) assignors and assignees; (e) family members; (f) associations; and (g) co-obligors and co-obligees.

10. Strangers

To what extent, if at all, do the issue preclusive effects of judgments extend to persons who have not directly participated in the proceedings giving rise to judgment and who are not connected in a legally relevant way to the Claimant, Defendant or another participant in the proceedings or the subject matter of the action?

Explanatory note: please refer to the explanatory note above in question 10 of Part II.A.

Take again, as an example, proceedings between an injured person and an employee where the injured person loses this time by failing to prove the negligence of the employee. If the injured party files a later suit against the employer (on the basis of vicarious liability) the employer may be entitled to use the previous judgment to prevent its liability on the negligence issue as well. This is called mutuality of estoppel (issue preclusion) in the United States.

NB. Please also indicate the terminology used to describe such effect(s) and the relevant legal basis.

NB2. Please consider in your answer whether and to what extent any such person is (1) able to rely on, (2) bound by, and/or (3) otherwise affected in later proceedings (including proceedings against the Claimant or Defendant) by the judgment insofar as it determines a particular issue of fact or law.

C. Wider preclusive effects This section is concerned with the wider preclusive effects of judgments, that is to say any preclusive effect which does not fall into either section A (claim preclusive effects) or section B (issue preclusive effects) above. It is thus concerned with rules which preclude the raising of claims or re-litigation of issues which are not considered by your legal system to have been determined by an earlier judgment, e.g. on the basis of procedural fairness or abuse of process), but which are in some sense related to determined claims or issues.

1. The existence and nature of wider preclusive effects

Does your system attribute wider preclusive effects to judgments on the basis of, for example, a doctrine of abuse of process or procedural unfairness?

Explanatory note:

Arguably, in the case of rules of res judicata, it is the judgment itself which creates the procedural preclusion, whereas, in the case of "abuse of process" and other rules which create a wider preclusive, it is the earlier or subsequent conduct of the litigating party which (albeit against the background of the judgment) which creates that preclusion. In England, the doctrine of abuse of process, and related rules, allow a court to prevent misuse of its procedure by allowing it to preclude subsequent proceedings that involve claims or issues that could and should have been raised previously or which would amount to a collateral attack on a decision in earlier proceedings (including criminal proceedings).

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By contrast, in some jurisdictions, such as the United States, abuse of process is a tort which aims at eradicating the misuse of the legal process in order to accomplish a purpose for which it was not designed, usually to compel the victim to yield on some matter not involved in the suit. The idea that claims that could and should have been raised in the original proceedings is included in the United States Rules of Civil Procedure concerning compulsory claims.

In Spain, issues of fact or law cannot be re-opened in fresh proceedings if the Claimant or the Defendant could have filed them in former proceedings. It must be pointed out that these preventing effects (efectos preclusivos) constitute one of the most important innovations in Spanish law on civil procedure and are associated with abuse of process.28

NB. If your system does not attribute wider claim or issue preclusive effects to judgments on the basis of a doctrine of abuse of process or procedural unfairness, please indicate whether the preclusion is based a different basis.

2. Policies underlying wider preclusive effects

What are the policy considerations for the wider preclusive effect of judgments in your legal system?

Explanatory note:

Courts may extend preclusive effects to judgments not based on ideas of res judicata, but rather, to prevent misuse of its procedure. This is generally based on a desire to preserve the administration of justice which seeks to operate with fairness and impartiality.29 For example, English abuse of process doctrine "is not based on the doctrine of res judicata in a narrow sense, nor even on any strict doctrine of issue estoppel or cause of action estoppel. It is a rule of public policy based on the desirability, in the general interest, as well as that of the parties themselves, that litigation should not drag on for ever and that a defendant should not be oppressed by successive suits when one would do".30

3. Conditions for wider preclusive effects

What are the conditions for the application of wider preclusive effects of a judgment?

Explanatory note:

This question aims at identifying the conditions that must exist in order for a judgment to have wider preclusive effect. For example, some legal systems may require that there be "abusive" conduct by one of the parties or by contrast, the court may ex officio have the discretion determine whether its procedural rules are being abused by the use of repetitive litigation.

NB. Please consider whether some sort of relationship must be established between the claims or issues determined by the judgment and the wider category of claims or issues which it is sought to preclude.

NB2. Please indicate whether any additional factors, such as "abusive" conduct on the part of the Claimant must be established.

4. Invoking wider preclusive effects

How are wider preclusive effects invoked in your legal system?

Explanatory note: please also refer to the explanatory note above regarding question 4 of Part II.B.

This question aims at identifying the procedural aspects of how a party or the court can invoke the wider preclusive effects of a prior judgment in order to preclude later adjudication upon the same or other potentially related issues. As with issue preclusive effects, this question may involve issues of timing, proof, decision and review. It may further involve the filing of a separate law suit, as in the United States where abuse of process is considered a tort action that must be litigated in full.

NB. Please consider in particular: (1) if and when the wider preclusive effect of a judgment must be raised by the party seeking to rely on it or whether it must be applied by the court ex officio;(2) how it is proved; and (3) whether and how it may be defeated. The issue of raising the wider preclusive effect involves questions of: (a) timing; and (b) method. The issue of proof potentially involves questions concerning: (a) the burden of proof; (b) evidence; (c)

28 Article 400 SCPA.29 P Barnet, Res judicata, Estoppel and Foreign Judgments, (Oxford University Press, Oxford 2001) para 6.06.30 Barow v Bankside Members Agency [1996] 1 Lloyd's Rep. 278, at 279 (CA).

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the decision; and (d) review of the decision. The issue of defeating the preclusive effect of a judgment may involve questions of: (a) methods for attack (e.g. interlocutory motion for relief or independent case); and (b) grounds for attack (e.g. issues of jurisdiction and notice or other grounds, such as fraud).

NB2. As regards the issue of proof, please consider in your answer what documents may be produced to establish a judgment’s wider preclusive effect. In particular, consider whether in order to establish the wider preclusive effect of a judgment an applicant is entitled to rely on the final order, the reasons, the parties’ pleadings, and on evidence submitted to the court. If the court may raise the issue of its own motion, please indicate any relevant requirements.

5. Exceptions to wider preclusive effects

Please verify whether the wider preclusive effects of judgments in your legal system are subject to generally accepted exceptions.

Explanatory note:

It is expected that the wider preclusive effect of judgments, if any, might be subject to important recognised exceptions in your legal system. This question aims at identifying such exceptions.

NB. Please consider in particular whether the following exceptions apply to the rule providing for the issue preclusive effects of a judgment: (1) the judgment was not on the merits; (2) jurisdictional or procedural limitation; (3) judicial permission; (4) party agreement; (5) the preclusive effect would be contrary to public policy (consider Article 6(1) ECHR in relation to lack of reasons for judgment or lack of adequate notice); (6) additional evidence, whether or not available before judgment and whether or not known to the parties or the court, or a change in circumstances, and (7) lawful excuse and/or other mitigating reasons or exceptional circumstances.

NB2. Please consider the policies underlying the exceptions that exist to the rule on the wider preclusive effects of judgments in your legal system.

NB3. Please also indicate under what circumstances, if any, the party may lose the ability to rely on the wider preclusive effects of the judgment.

In the previous section, the Questionnaire addressed general aspects of wider preclusive effects of judgments. The following numbered points address particular questions that may arise in relation to the operation of the preclusive effects of judgments in particular circumstances which may be subject to specific rules and conditions. It is appreciated that some of the issues you have addressed in the more general answers in the previous section will be involved when you consider these specific situations. Therefore, it is important that you provide an insight in this section into the particularities, if any, of the application of wider preclusion in the circumstances as described.

6. Claimant and Defendant

May a Claimant or Defendant in your legal system be prevented by judgment on a particular claim from (1) advancing, in the same proceedings or later proceedings, related claims against the Defendant or Claimant; and/or (2) from seeking the determination in such proceedings of other potentially related issues of fact and/or law?

NB. Please consider also (1) what is the nature of that preclusive effect and the conditions for its application; (2) how the preclusion is invoked; and (3) any exceptions to its application. In particular, please consider (a) whether the same conditions apply to claim and issue preclusion; (b) whether additional factors (e.g. "abusive" conduct on the part of the Claimant) must be established to support the preclusion; and (c) whether the court has any discretion in applying the preclusion.

NB2. Please indicate the legal terminology used to describe the preclusive effects and any relevant legal basis.

NB3. Insofar as relevant, please distinguish in your answer between the positions of (1) a successful Claimant; (2) an unsuccessful Claimant; and (3) an unsuccessful Defendant.

7. Other participants

To what extent, if at all, do the wider preclusive effects of judgments extend to other participants in the litigation?

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Explanatory note: please refer to the explanatory note above in question 7 of Part II.A.

NB. Please indicate the legal terminology used to describe such effects and the relevant legal basis.

NB2. In particular, please consider whether and to what extent other participants in the litigation are (1) able to rely on, (2) bound by and/or (3) otherwise affected in later proceedings by a judgment insofar as claims or issues related to those determined by the judgment are concerned.

8. Represented persons

If your legal system provide for group/representative actions (including, for example, US-style class actions), to what extent, if at all, do the wider preclusive effects of judgments in such actions extend to the other members of the group/persons represented in the action?

Explanatory note: please refer to the explanatory note above in question 8 of Part II.A.

NB. Please indicate the legal terminology used to describe such effects and the relevant legal basis.

NB2. In particular, please consider whether and to what extent absent group members/represented persons are (1) able to rely on, (2) bound by and/or (3) otherwise affected in later proceedings by a judgment insofar as claims or issues related to those determined by the judgment are concerned.

NB3. Please indicate to what extent the wider preclusive effects described above in relation to successful/unsuccessful Claimants and unsuccessful Defendants are applicable in the case of members of a group.

9. Persons connected to the Claimant, Defendant, and other participants

To what extent, if at all, do the wider preclusive effects of judgments extend to persons who have not directly participated in the proceedings giving rise to judgment but who are connected in some way to the Claimant, Defendant or another participant in the proceedings or to the subject matter of the action?

Explanatory note: please refer to the explanatory note above in question 9 of Part II.A.

NB. Please also indicate the terminology used to describe such effect(s) and the relevant legal basis.

NB2. Please consider in your answer whether and to what extent such person is (1) able to rely on, (2) bound by, and/or (3) otherwise affected in later proceedings (including proceedings against the Claimant or Defendant) by the judgment insofar as claims or issues relating to those determined by the judgment are concerned. In particular, you may wish to consider the following relationships: (a) surety and principal debtor; (b) companies within the same corporate group; (c) members of a partnership; (d) assignors and assignees; (e) family members; (f) associations; and (g) co-obligors and co-obligees.

10. Strangers

To what extent, if at all, do the wider preclusive effects of judgments extend to persons who have not directly participated in the proceedings giving rise to judgment and who are not connected in a legally relevant way to the Claimant, Defendant or another participant in the proceedings or the subject matter of the action?

Explanatory note: please refer to the explanatory note above in question 10 of Part II.A.

NB. Please also indicate the terminology used to describe such effect(s) and the relevant legal basis.

NB2. Please consider in your answer whether and to what extent any such person is (1) able to rely on, (2) bound by, and/or (3) otherwise affected in later proceedings (including proceedings against the Claimant or Defendant) by the judgment insofar as claims or issues relating to those determined by the judgment are concerned.

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III. Preclusive effects of judgments within the Brussels/Lugano Regime

Since the entry into force of the Amsterdam Treaty on 1 May 1999, the matters covered by the 1968 Brussels Convention (the “Brussels Convention”) have become the subject of EC legislative competences, pursuant to Title IV (in particular, Articles 61(c) and 65(a) EC Treaty). Consequently, the 1968 Brussels Convention has been converted into an EC Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the “Brussels Regulation”). The Brussels Regulation modernised the rules of the Brussels Convention and aimed at making the system of recognition and enforcement between the Member States more efficient.

The Kingdom of Denmark does not participate in Title IV of the Treaty.31 Consequently, EC instruments adopted in the field of, among others, judicial cooperation in civil matters are not binding upon or applicable in Denmark. From 1 July 2007 the provisions of the Brussels Regulation do aplly between the EU Member States, pursuant to the Agreement between the EC and Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed at Brussels on 19 October 2005.

On 6 July 2007, the European Commission made a proposal for a Council Decision concerning the signing of a Convention between the EC and the Republic of Iceland, the Kingdom of Norway, the Swiss Confederation, and the Kingdom of Denmark32 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the “Lugano II Convention”). Negotiations for this Convention were successfully concluded in Brussels on 28 March 2007.33 The Lugano II Convention will align the EFTA-EU system of recognition and enforcement of judgments with the Brussels Regulation replacing in this respect the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters signed on 16 September 1988 (the “Lugano Convention”) by the Member States of the EEC34 and the Republic of Iceland, the Kingdom of Norway, and the Swiss Confederation35. The Lugano Convention extended the application of the rules of the 1968 Brussels Convention36 on the same subject matter, concluded between the EEC Member States, to certain States members of the European Free Trade Association.37

This Part is concerned with the practice of your legal system concerning the recognition of "judgments" (as defined) under the Judgments Regulation, the Brussels Convention (as amended) and the Lugano Convention, to the extent that the State of which your legal system falls part is a Member State or Contracting State bound by the Regulation and/or the either of the Conventions. References to "State of Origin" are to the Member or Contracting State from which the judgment emanates and references to "Recognising State" are to the Member or Contracting State in which recognition of the judgment, for whatever purpose, is sought. Detailed analysis of the provisions of the Brussels Regulation and of the Brussels and Lugano Conventions, as well as the decisions of the European Court of Justice referred to below, is not called for, except insofar as such analysis is necessary or appropriate to explain the practice of your legal system.

31 See Articles 1 and 2 of the Protocol on the position of Denmark annexed to the Treaty on the European Union and the Treaty establishing the European Community.32 In light of the its exclusion from Title IV measures, Denmark will participate as a Contracting Party in the Lugano II Convention, not as an EU Member State.33 Proposal for a Council Decision concerning the signing of the Convention between the European Community and the Republic of Iceland, the Kingdom of Norway, the Swiss Confederation, and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters COM(2007) 387 final34 Austria (1 September 1996); Belgium (1 October 1997); Denmark (1 March 1996); Finland (1 July 1993); France (1 January 1992); Germany (1 March 1995); Greece (1 September 1997); Ireland (1 December 1993); Italy (1 December 1992); Luxemburg (1 February 1992); Netherlands (1 January 1992); Portugal 1 July 1992); Spain (1 November 1994); Sweden (1 January 1993); and United Kingdom (1 May 1992)35 The Republic of Iceland (1 December 1995); the Kingdom of Norway (1 May 1993) and the Swiss Confederation (1 January 1992). Prior to its accession to the EU on 1 May 2004, Poland acceded to the Convention on 1 February 2000.36 Footnote on the Brussels Convention37 Liechtenstein, a Member State of the European Free Trade Association (1960 EFTA Convention) and the European Economic Area (EFTA-EU relations in the 1992 EEA Agreement), is not a party to the 1988 Lugano Convention.

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A. Recognition

1. Judgments recognised

Which judgments, or types of judgments, are recognised (or not recognised) in your legal system under the Brussels/Lugano Regime?

Explanatory note:

As to the concept of "judgment", Article 32 of the Brussels Regulation (Article 25 of the Brussels Convention/Lugano Conventions) defines this to mean "any judgment given by a court or tribunal of a Contracting State, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court". In Solo Kleinmotoren v Boch38, the Court of Justice emphasised that in order to be a "judgment" for the purposes of the Convention, the decision must emanate from a judicial body of a Member State deciding on its own authority on the issues between the parties. Thus, a court approved settlement was considered outside the scope of the provisions on recognition and enforcement. It may also be noted that the examples in Article 25 of labels attaching to a judgment suggest that the authors of the Convention drew a distinction between the final order contained in a judgment and the reasons given for it. Arguably, this supports the view that it is the former alone which falls to be recognised under Article 26. Nevertheless, it is submitted, that does not preclude reference to the reasons for a decision in order to determine the legal effects of that decision: recognition of a judgment may thus be tantamount to recognition of the underlying reasons.

The nature of the court or tribunal in which proceedings are brought is not relevant for the determination of the question whether a judgment is within the scope of the Brussels/Lugano Regime.39 Therefore, judgments on civil claims by criminal courts can be recognised, as well as judgments of administrative tribunals in civil and commercial matters.40 In addition, judgments imposing penalties for the benefit of private individuals are within the scope of the Regulation.41

NB. Please describe, with appropriate reference to case law and the views of commentators, in particular in case notes, the practice of your legal system with respect to the interpretation of the concept of "judgment" in Article 32 of the Brussels Regulation/ Article 25 of the Brussels and Lugano Conventions. In particular, please provide a summary of significant decisions in your legal system concerning the scope of that term, including (without limitation) decisions referring to, or concerning issues similar to, the following case law of the ECJ in this connection: (1) Denilauler v Couchet Frères42 (decisions granted without notice); (2) Owens Bank v Bracco43 (decisions enforcing non-Member State judgments); (3) Solo Kleinmotoren v Boch44 (court approved settlements)45; (4) Italian Leather v WECO Polstermöbel46 (provisional or protective measures)47; and (5) Mærsk Olie v de Boer48 (decision establishing limitation fund).

38 Case C-414/92 Solo Kleinmotoren GmbH v Emilio Boch [1994] Page I-2237, para 18; See also Italian Leather SpA v WECO Polstermöbel GmbH (Case C-80/00) [2002] ECR I-4995, para. 41 (interim measures within definition of judgment, but compare Denilauler v Couchet Frères (Case 125/79) [1980] ECR 2553, para. concerning measures granted without notice); Owens Bank v Bracco (Case C-129/92) [1994] ECR I-117 (decisions of non-Contracting State courts and decisions enforcing a non-Member State judgment fall outside scope of Convention regime).39 Article 1(1) of the Brussels Regulation (Article 1 of the Brussels/Lugano Conventions).40 Jenard Report, p9.41 Schlosser Report, para 29.42 Case 125/79) [1985] ECR 2553.43 Case C-129/92 [1994] ECR I-117.44 Case C-414/92 [1994] ECR I-2237, see in particular paras 17 and 18. 45 The European Court of Justice in Solo Kleinmotoren v Boch explained the nature of a court settlement, which, according to the Court, derives its authority from the parties’ agreement, brings judicial proceedings to an end and is approved and registered by the court. A consent judgment does not enjoy the authority of res judicata (Briggs & Rees, Civil Jurisdiction and Judgments, para 7.24). Accordingly, consent judgments are not settlements in the sense of Article 58 Brussels I Regulation, but must be qualified as judicial decisions which are recognized under Article 32 Brussels I Regulation.46 Case C-80/00 [2002] ECR I-4995.47 Professor Schlosser has argued in relation to cross-border interim refraining orders, pending torpedo claims and objections to the validity of a patent or of another intellectual property right are, in principle, not obstacles to such injunctions, since an interim injunction: “… does not purport to acquire res iudicata effect, its “cause of action” is different from that of a permanent injunction.”( See the Heidelberg Report on the Application of Regulation Brussels I in the Member States, para 836 , available at: http://ec.europa.eu/civiljustice/news/docs/study_application_brussels_1_en.pdf; Examples considered in the report: OLG Düsseldorf, InstGE 2, 237: LG Hamburg, GRUR Int 2002, 1025; and LG Düsseldorf, GRUR Int 2002, 157.48 Case 39/02 [2004] ECR I-9657.

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NB2. Professor Schlosser proposes in his explanatory report to the Brussels Convention to exclude from Article 25 of the Convention (Article 32 of the Brussels Regulation) interlocutory decisions which are not intended to govern the legal relationship of the parties but rather to arrange the further conduct of the proceedings (such as Beweisbeschlüsse, jugements d’avant dire droit).49 Otherwise, “Article 25 emphasizes in terms which could hardly be clearer that every type of judgment given by a court in a Contracting State must be recognized and enforced throughout the rest of the Community. The provision is not limited to a judgment terminating the proceedings before the court, but also applies to provisional court orders."50 Please consider whether this consideration has been of any relevance in your legal system, in particular with a view to the relevance of court orders for disclosure of evidence.

NB. Please describe, insofar as relevant for the explanation for your country of the concept of a judgment within the scope of the Brussels/Lugano Regime, the meaning of "court" or "tribunal" as referred to in Article 1(1) of the Brussels Regulation as applied in your legal system.

2. Procedural aspects of recognition

What are the procedural aspects of recognition under the Brussels/Lugano Regime in your legal system?

Explanatory note:

The Brussels Regulation requires the automatic recognition of judgments given in other Member States without any special procedure being required.51 A party seeking recognition need only produce a copy of the judgment that satisfies the conditions necessary to establish its authenticity.52 Application for recognition may be made by any interested party who raises the recognition of a judgment as the principal issue in a dispute.53 Incidental questions of recognition arising in the course of proceedings may be determined without such an application being made.54

NB. Please describe the law and practice of your legal system in relation to the procedural aspects of Article 33 of the Brussels Regulation (Article 26 of the Brussels/Lugano Conventions). In particular, (a) please explain the relationship between subparagraphs (1)55, (2)56, and (3)57 of that Article, (b) please indicate whether the court may or must itself raise objections to recognition under Articles 34 and 35 of the Brussels Regulation (Articles 27 and 28 of the Brussels/Lugano Conventions) and, if so, at what stage it may or must do so, and (c) please indicate whether the party against whom the judgment is invoked may or must raise objections to recognition under the Articles referred to in (b) above and, if so, at what stage the party may or must do so.

NB2. Please consider whether the courts in your legal system will recognise a judgment under the Brussels/Lugano Regime on the basis of the production of an authentic copy of the judgment, irrespective of the fact that this judgment is in fact no longer binding in the Member/Contracting State where it was rendered.58

NB3. In your answer, please consider in addition how the courts in your legal system apply Article 37(1) of the Brussels Regulation/Article 30 of the Brussels/Lugano Conventions, under which a court of a Member/Contracting State in which recognition is sought of a judgment given in another Member State may stay the proceedings if an ordinary appeal against the judgment has been lodged (in the state of origin). 49 Schlosser Report, para. 187.50 Ibid, para. 184.51 Regulation Article 33 (Article 26 of the Brussels/Lugano Conventions).52 Regulation Article 53(1).53 Regulation Article 33(2); see also Schlosser Report para 189.54 Regulation Article 33(3).55 “A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.”56 “Any interested party who raises the recognition of a judgment as the principal issue in a dispute may, in accordance with the procedures provided for in Sections 2 and 3 of this Chapter, apply for a decision that the judgment be recognised.”57 “If the outcome of proceedings in a court of a Member State depends on the determination of an incidental question of recognition that court shall have jurisdiction over that question.”58 In your answer, please consider, insofar as appropriate, the decision of the European Court of Justice in Eric Coursier v Fortis Bank (Case 267/97) [1999] ECR I-02543. This case concerned the interpretation of the term ‘enforceable’ referred to in Article 31 of the Brussels Convention [Article 38(1) of the Brussels I Regulation] and enforcement proceedings are as such outside the scope of this study. Nonetheless, the reasoning in the decision may be relevant in that the Court ruled that the term refers “… solely to the enforceability, in formal terms, of foreign decisions and not to the circumstances in which such decisions may be executed in the State of origin”, that (para 24) “the question whether a decision is, in formal terms, enforceable in character must be distinguished from the question whether that decision can any longer be enforced by reason of payment of the debt or some other cause”, and that (para 31) “[i]t follows that a decision … which bears a formal order for enforcement, must, in principle, be covered by the rules on enforcement … of the Brussels Convention.” In other words, a court must issue a declaration of enforceability for a judgment that is certified as enforceable, notwithstanding the fact that this judgment may no longer be enforceable in the State where it was rendered. These issues must be dealt with at a later stage, i.e. in the appeals procedure under Article 36 of the Brussels Convention (Article 43 of the Brussels I Regulation).

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NB4. If your legal system is both a Member State of the European Community and a Contracting State to the Lugano Convention, please indicate any relevant differences between the procedures for recognition under the Regulation and the Convention according to the practice of your Member State.

3. Exceptions to the rule (grounds for non-recognition)

How does your legal system approach the grounds for non-recognition under the Brussels/Lugano Regime so far as they concern the preclusive effects of the judgment?

Explanatory note:

This question aims at a description, so far as relevant, of the law and practice in your country concerning the grounds for non-recognition of judgments rendered in other Member/Contracting States which are in some way related to the preclusive effects of judgments. The relevant grounds for this purpose are that a judgment shall not be recognised (1) if such recognition is (manifestly) contrary to public policy in the Member/Contracting state where recognition is sought59 (consider, in particular, whether judgments may be refused recognition due to (a) a lack of reasoning in the judgment60, (b) a lack of notice to the person claimed to be bound by the judgment, in circumstances other than those covered by Article 34(2)61, or (c) a violation of the right to a fair legal process associated with Article 6(1) ECHR62 specifically concerning the judgment, or (d) any other reason specifically connected to the judgment itself, as opposed to the underlying subject matter or the earlier conduct of the proceedings); (2) where the judgment was given in default of appearance, that the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless (in the Brussels Regulation only) the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so63; and (3) if the judgment for which recognition is sought is irreconcilable with (a) a judgment given in a dispute between the same parties in the Member State in which recognition is sought64 or (b) an earlier judgment of another Member State or in third state involving the same cause of action and between the same parties65.

NB. Please provide, so far as specifically relevant to the question as to how your legal system approaches the relevant grounds for non-recognition, a summary of any relevant decision of a court of your legal system, including (in particular) any application, or discussion of the effect of, the decisions of the Court of Justice in: (1) Hoffmann v Krieg66; (2) Solo Kleinmotoren GmbH v Emilio Boch67; (3) Eco Swiss China Time Ltd v Benetton International NV68; (4) Dieter Krombach v André Bamberski69; (5) Régie nationale des usines Renault Sa v Maxicar SpA and Orazio Formento70; and (6) Italian Leather v WECO Polstermöbel71.

59 Article 34(1) of the Brussels Regulation; Article 27(1) of the Brussels/Lugano Conventions.60 In France, this approach has been consistently taken since Cass Clunet [1979] 280; the opposite has been held in by the Corte di Cassazione in its decision of 13 January 1995 [1997] 14, as long as the procedure in the State of origin was on the merits/not in default of appearance.61 See point (2) below.62 For instance, in Germany it is commonly accepted that that the party who could have appealed against violation of his/her right to a fair hearing, but did not do so, later loses the right to raise procedural public policy in front of the court seised with the recognitio; see U Magnus, P Mankowski and S Franq, Brussels I Regulation (Sellier, München 2007) Article 34 note 19. In Dieter Krombach v André Bamberski (Case C-7/98) [2000] ECR I-1935 paras 24-26, 38-39 and 42, the European Court of Justice confirmed the role of Article 34(1) of the Regulation in controlling the foreign procedure outside the scope of the narrow Article 34(2), which as determined in Peter Klomps v Karl Michel (Case 160/80) [1981] ECR 1593 para 7, applies only in exceptional circumstances “where the guarantees contained in the law of the State in which the judgment was given and in the Convention itself are insufficient to ensure that the defendant has an opportunity of arranging for his defence before the court in which judgment was given”. Effectively, all conditions considered by the European Court of Human Rights (ECtHR) as necessary for a fair legal process which cannot be controlled under Article 34(2) fall under Article 34(1) of the Regulation. The ECtHR decision in Pellegrini v Italy (Case 30882/96) [2001] DR 480 already encouraged the Member/Contracting States to control the foreign procedure (far) beyond the limits of Article 34(2) of the Regulation for its conformity with Article 6(1) of the European Convention. 63 Article 34(2) Brussels Regulation; Article 27(2) Brussels/Lugano Conventions.64 Article 34(3) Regulation;Article 27(5) Brussels/Lugano Conventions.65 Article 34(4) Regulation; see Article 27(5) of the Brussels/Lugano Conventions provides that a judgment will not be recognised “if the judgment is irreconcilable with an earlier judgment given in a non-contracting State involving the same cause of action and between the same parties, provided that this latter judgment fulfils the conditions necessary for its recognition in the State addressed” (emphasis added).66 Case 145/86 [1988] ECR 645, in particular 22. See also the Jenard Report, p 45 and the Schlosser Report, p 131.67 Case C-414/92 Solo Kleinmotoren GmbH v Emilio Boch [1994] Page I-2237, para 21.68 Case C-97/126 [1999] ECR I-3055, in particular paras 45-47.69 Case C-7/98 [2000] ECR I-1935, in particular paras 36 and 37.70 Case C-38/98 [2000] ECR I-2973, in particular para 30.71 Case C-80/00 [2002] ECR I-4995, in particular paras 41, 42 and 52.

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NB2. Please consider, so far as relevant, how the courts in your Member State comply with the prohibition that under no circumstances may a judgment from another Member State be reviewed as to its substance when evaluating the grounds for non-recognition (Article 36 Brussels Regulation).72 Please report, on any cases in your legal system in which courts refused (or allowed) objections made to recognition in relation to, for example: (1) the validity of the foreign judgment73, (2) a substantive or legal defect in the foreign judgment74; or (3) the existence/validity of a particular fact or legal relationship confirmed by the court that rendered the foreign judgment75.

NB3. Please consider, so far as relevant, whether the courts in your legal system apply Article 34 of the Regulation/Article 27 of the Brussels/Lugano Conventions in relation to the effects (of recognition) of the foreign judgment (e.g. the preclusive effects produced by a judgment after recognition) or the foreign judgment itself (e.g. the fact that there is a difference in legislation between the states involved, which is reflected in the judgment or the legal reasoning of the court that rendered the judgment).76

4. Effects of recognition

What are the effects of "recognition" within the Brussels/Lugano Regime?

Explanatory note

This question concerns the interpretation given by your legal system to the concept of "recognition" in Article 33 Brussels Regulation (Article 26 Brussels/Lugano Convention) and, in particular, whether it carries with it certain preclusive effects or whether it is merely a gateway to preclusive effects conferred by other rules (including rules of private international law) of your legal system. Further aspects of the relationship between the Brussels/Lugano regime and other rules of your legal system will be addressed in the following questions (see, in particular, question 3 below). This question, therefore, focuses specifically on the important concept of a judgment being "recognized".

NB. Please provide a summary of any decision of a court of your legal system concerning the meaning and effect of that term "recognition" (or "recognized") in the specific context of the Brussels Regulation and/or the Brussels/Lugano Conventions, including (in particular) any discussion of the meaning and effect of the statement in the Jenard Report and in the judgment of the Court of Justice in Hoffmann v Krieg77 that "[r]ecognition must have the result of conferring on judgments the authority and effectiveness accorded to them in the State in which they were given".

B. Claim preclusion within the Brussels/Lugano Regime

1. Existence and nature of claim preclusive effects

Do judgments recognised in accordance with the Brussels/Lugano Regime have claim preclusive effects in your legal system?

Explanatory note: please refer to the explanatory note for question 1 under Part II.A.

NB. In your answer, please identify what is the nature of the claim preclusive effect (substantive, i.e. affecting the obligation on which the Claimant relied in the proceedings leading to judgment or merely procedural). Does this categorization have any legal relevance in practice?

NB2. Please provide a summary of any relevant decision of a court of your legal system, including (in particular) any application, or discussion of the effect of, the decision of the Court of Justice in De Wolf v Cox78.

72 Case C-7/98 Dieter Krombach v André Bamberski [2000] ECR I-1935, para 36; see also the Jenard Report, p 46 and the Evrigenis/Kerameus Report, para 80.73 Jenard Report, p 46.74 Evrigenis/Kerameus Report, para 80.75 Rb Haarlem, NIPR [2002] 281; OLG Zweibrücken, NJOZ [2004] 785.76 Case C-7/98 Dieter Krombach v André Bamberski [2000] ECR I-1935, para 37; and Case C-38/98 Régie nationale des usines Renault Sa v Maxicar SpA and Orazio Formento [2000] ECR I-2973, para 30.77 Case 145/86 [1988] ECR 645, para 10.78 Case 42/76 [1976] ECR 1759.

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2. Policies underlying claim preclusive effects

What are the policy considerations for the claim preclusive effect of judgments originating in other EU Member/ Lugano Contracting State in your legal system?

Explanatory note:

This question aims to establish the rationale underlying claim preclusive effect of judgments originating in other EU Member States in your legal system. You may have satisfactorily answered this question in relation to claim preclusion of domestic judgments, although additional considerations may apply in the context of the Brussels/Lugano regime. In those circumstances, please limit your answer to identifying differences or necessary additions.

3. Law applicable to claim preclusive effects

Does your legal system consider that claim preclusive effects of a judgment recognised under the Brussels/Lugano Regime follow from (1) the conclusion that the judgment is recognised under the Brussels Regulation or the Brussels or Lugano Convention (as applicable), without further justification being required, (2) the conclusion that the judgment is recognised for these purposes applied in conjunction with the rules of the State of Origin concerning the claim preclusive effects of the judgment, (3) the conclusion that the judgment is recognised for these purposes applied in conjunction with the rules of your legal system concerning the claim preclusive effects of an equivalent local judgment, (4) the conclusion that the judgment is recognised for these purposes applied in conjunction with the rules of your legal system concerning the claim preclusive effects of an equivalent judgment of a non-Member/Contracting State; or (5) other reasoning?

NB. Please provide, so far as specifically relevant to claim preclusive effects, a summary of any decision of a court of your legal system concerning the judgment of the Court of Justice in Hoffmann v Krieg (Case 145/86) [1988] ECR 645, paragraph 10 that "[r]ecognition must have the result of conferring on judgments the authority and effectiveness accorded to them in the State in which they were given", including (in particular) any discussion of the meaning and effect of the statement in the Jenard Report.

NB2. Please explain the legal basis of such rule(s) of applicable law and, in particular, whether your legal system finds the solution within the framework of the Regulation/Conventions, or within its own rules of private international law or procedural rules, or otherwise.

4. Conditions for claim preclusive effects

What are the conditions for the claim preclusive effects of a judgment?

Explanatory note:

A separate answer to this question might be relevant insofar as you have indicated in your answer under question 3 that the "applicable law" governing the claim preclusive effects of a judgment recognised is that of the Brussels/Lugano Regime. If, on the other hand, you have concluded that the law applicable in your legal system is that of your Member State [options (3) and (4)] or the State of Origin of the judgment [option (2)], you may consider that you do not need to elaborate further than you have above in relation to domestic preclusion rules.

NB. Please consider in your answer, in particular, whether in addition to recognition, the conclusive or preclusive character of a judgment is required and whether the conclusive or preclusive character of a judgment must be verified by the court in the Recognising State in order for it to have claim preclusive effects. In this regard, please also indicate which law is applied in order to determine the conclusive or preclusive character of the recognised judgment.

For recognition of a judgment under the Brussels Regulation it is not required that a judgment have the status of res judicata, or be in any other sense conclusive or preclusive, under the law of the rendering court. Prior to the establishment of the Brussels Regime, there were striking differences in this regard between various conventions applicable amongst the Member States in that either it had to be established that the judgment was "res judicata" in the country of origin, or that it was enforceable in that state.79 In the original text of the Brussels Convention, the words "res judicata" were deliberately and expressly omitted. This reference was omitted as certain judgments that

79 Jenard Report 7

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do not always have the force of res judicata must be recognised under the Convention, for instance, interlocutory and ex parte judgments.80 It has been contended that this omission forces courts that have to automatically recognise judgments originating in other Member States to separately inquire into the "res judicata status" of such judgments when they consider their preclusive effects.81 In practical terms, however, most judgments that circulate between the Member States actually have the status of "res judicata" under the law of the rendering court, although the precise conditions and restrictions applicable differ between legal systems.

5. The identity of claims in the Brussels/Lugano Regime

How do courts in your legal system determine the identity of claims under the Brussels/Lugano Regime?

Explanatory note:

This question seeks to address whether the Brussels/Lugano Regime provides, or is capable of providing, a satisfactory framework for the claim preclusive effects of judgments insofar as it contains provisions which depend in their application on the identity of claims ("same cause of action"). Accordingly, please answer this question even if the courts of your legal system do not have regard to these provisions, or the concepts which they deploy, in determining the claim preclusive effects of judgments.

NB. Please consider, as far as relevant in your legal system in relation to the evaluation of the identity of claims for the determination of the claim preclusive effects of a judgment recognised under the Brussels/Lugano Regime, how the courts of your legal system have interpreted and applied the concept of "same cause of action" ("le même objet et le même cause") as explicitly referred to in (a) Article 27 of the Brussels Regulation/Article 21 of the Brussels/Lugano Conventions, and (b) Article 34(4) of the Brussels Regulation/Article 27(5) of the Brussels/Lugano Conventions.

NB2. Please provide, so far as specifically relevant to claim preclusive effects, a summary of any relevant decision of a court of your legal system, including (in particular) any application, or discussion of the effect of, the decisions of the Court of Justice in: (1) Gubisch v Palumbo82; (2) The Tatry83; (3) Gantner v Basch84; and (4) and Mærsk v De Haan85.

6. The identity of parties in the Brussels/Lugano Regime

How do courts in your legal system determine the identity of parties under the Brussels/Lugano Regime?

Explanatory note:

This question seeks to address whether the Brussels/Lugano Regime provides, or is capable of providing, a satisfactory framework for the claim preclusive effects of judgments insofar as it contains provisions which depend in their application on the identity of parties("same parties"). Accordingly, please answer this question even if the courts of your legal system do not have regard to these provisions, or the concepts which they deploy, in determining the claim preclusive effects of judgments.

NB. Please consider, as far as relevant in your legal system in relation to the evaluation of the identity of parties for the determination of the claim preclusive effects of a judgment recognised under the Brussels/Lugano Regime, how the courts of your legal system have interpreted and applied the concept of "same parties" in (a) Article 27 of the Brussels Regulation/Article 21 of the Brussels/Lugano Conventions, and (b) Article 34(4) of the Brussels Regulation/Article 27(5) of the Brussels/Lugano Conventions.

NB2. Please provide, so far as specifically relevant to claim preclusive effects, a summary of any decision of a court of your legal system concerning the judgments of the Court of Justice in: (1) The Tatry86; and (2) Drouot Assurances S.A. v Consolidated Metallurgical Industries87.

80 Jenard Report 4381 P Barnett, Res Judicata, Estoppel and Foreign Judgments (Oxford University Press, Oxford 2001), para 7.06.82 Case 144/86 [1987] ECR 4861, para 8.83 Case C-406/92 [1994] ECR I-5439, para 31.84 Case C-111/01 [2003] ECR I-04207.85 Case C-39/02 [2004] ECR I-09657.86 Case C-406/92 [1994] ECR I-5439.87 Case C-351/96 [1998] ECR I-3075.

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7. Invoking claim preclusive effects under the Brussels/Lugano Regime

Please describe how the claim preclusive effects of a judgment originating in another EU Member/Lugano Contracting State are invoked in your legal system.

Explanatory note: please refer to the explanatory note for question 4 under Part II.A.

NB. Please consider in particular: (1) whether the claim preclusive effects of a judgment flow automatically from its recognition under the Brussels/Lugano Regime; (2) if and when the claim preclusive effects of a judgment must be raised by the party seeking to rely on it; if so, (3) how it is proved; and (4) whether and how it may be defeated. The issue of raising the claim preclusive effect involves questions of: (a) timing; and (b) method. The issue of proof potentially involves questions concerning: (a) the burden of proof; (b) evidence; (c) the decision; and (d) review of the decision. The issue of defeating the claim preclusive effect of a judgment may involve questions of: (a) methods for attack (e.g. interlocutory motion for relief or independent case); and (b) grounds for attack (e.g. issues of jurisdiction and notice or other grounds, such as fraud). Please refer, so far as relevant, to your discussion of procedural issues in question 4 under Part II.A above and question 2 under Part III.A above.

NB. As regards the issue of proof, please consider in your answer what documents may be produced to establish a judgment’s claim preclusive effect. In particular, consider whether in order to establish the claim preclusive effect of a judgment an applicant is entitled to rely on the final order, the reasons, the parties’ pleadings, and on evidence submitted to the court.

8. Exceptions to claim preclusive effects under the Brussels/Lugano Regime

Please verify whether the claim preclusive effect of a judgment originating in another EU Member/Lugano Contracting State is subject to generally accepted exceptions in your legal system.

Explanatory note:

It is expected that the rule on the claim preclusive effect of judgments recognised under the Brussels/Lugano Regime, if any, might be subject to important exceptions in your legal. This may have as a consequence that a valid and final judgment will not preclude a later action on the original claim, so that the Claimant may bring a second action on part, or all, of the same claim. This question aims at identifying such exceptions.

NB. Please consider in particular whether the following exceptions apply to the rule providing for the claim preclusive effects of a judgment: (1) the judgment was not on the merits; (2) jurisdictional or procedural limitation; (3) judicial permission; (4) party agreement; (5) the preclusive effect would be contrary to public policy; and/or (6) additional evidence, whether or not available before judgment and whether or not known to the parties or the court, or a change in circumstances. The exception that the judgment which is relied of for purposes of preclusion was not on the merits might occur, for instance, when the judgment involved: (a) the dismissal of the case due to lack of jurisdiction; (b) the dismissal of the case due to prematurity of action (e.g. a fact essential for recovery had not yet occurred); (c) the dismissal of the case due to the statute of frauds; (d) the dismissal of the case due to he statute of limitations; (e) summary proceedings; (f) the dismissal of the case due to voluntary withdrawal; (4) the dismissal of the case due to involuntary dismissal; or (g) the dismissal of the case due to insufficient evidence.

NB2. Please consider the policies underlying the exceptions that exist to the rule on the claim preclusive effects of judgments under the Brussels/Lugano Regime in your legal system.

9. Persons affected by claim preclusive effects

To which persons or categories of persons do the claim preclusive effects of judgments recognised in accordance with the Brussels/Lugano Regime extend?

Explanatory note:

This question aims at identifying the scope of the claim preclusive effects of judgments recognised under the Brussels/Lugano Regime in your legal system, similar to the discussion in Parts I and II above in relation to the position of the (1) successful Claimant; (2) unsuccessful Claimant; (3) Defendant; (4) other participants; (5) members of a group/represented persons; (6) persons connected to the Claimant, Defendant and other participants; and (7) other persons ("strangers").

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NB. Insofar as you have indicated in your answer that the “applicable law” governing the claim preclusive effects of a judgment recognised is that of the Brussels/Lugano Regime, please explain how your courts determine the scope of a recognised judgment’s claim and issue preclusive effects, as well as any wider preclusive effects that can be associated with a judgment. If , however, you have concluded that the law applicable is that of your Member State [options (3) and (4)] or the State of Origin of the judgment [option (2)], you may consider that you need not elaborate further than you have above in relation to domestic preclusion rules.

NB2. Please provide a summary of any relevant decision of a court of your legal system, including (in particular) any application, or discussion of the effect of, the decision of the Court of Justice in Drouot v CMI88, insofar as it concerns the ability of judgments to bind persons having a sufficient degree of identity with each other.

C. Issue preclusion

1. Existence and nature of issue preclusive effects

Do judgments recognised in accordance with the Brussels/Lugano Regime have issue preclusive effects in your legal system?

Explanatory note: please refer to explanatory note under question 1 of Part II.B above.

Professor Schlosser, in discussing the problems caused in the field of cross-border patent litigation by the European Court of Justice’s decision in GAT v LKB 89, which ruling gives rise to super torpedo actions, has suggested as follows, that: “One may limit the res iudicata effect of a judgment awarding damages for infringement of a patent. Continental Europe's legal systems do not know the concept of 'issue estoppel'. Therefore, an element of the reason given by the court explaining why the patent is valid would not be covered by the res judicata effect. If the court of the infringement proceedings would award damages in cases only, where in its mind there is little prospect of the patent subsequently to be invalidated, the risk of conflicting judgments would be very small. Probably, in most cases invalidation proceedings would not even be instituted, because they would not promote the only objective for which they were invented: to delay infringement proceedings.”90 The European Max Planck Group for Conflict of Laws in International Property (CLIP)91 has also made the proposal to limit the res iudicata effect of judgments rendered in infringement cases always to the result that the court’s holding regarding the validity issue would not be binding in subsequent proceedings involving a third party.

NB. In your answer, please identify what is the nature of the preclusive effect (substantive, i.e. affecting the obligation on which the Claimant relied in the proceedings leading to judgment or merely procedural). Does this categorization have any legal relevance in practice?

NB2. Please consider, in so far as relevant in relation to this question, whether courts in your Member State refuse (or allow) objections in relation to findings of fact or law in the foreign judgment, for example the existence/validity of a particular fact or legal relationship confirmed by the court that rendered the foreign judgment92, based on the prohibition that under no circumstances a judgment from another Member State be reviewed as to its substance (Article 36 Brussels Regulation).93

2. Policies underlying issue preclusive effects

What are the policy considerations for the claim preclusive effect of judgments originating in other EU Member States in your legal system?

Explanatory note:88 Case C-351/96 [1998] ECR I-3075, in particular para 19.89 Case C-4/03 Gesellschaft für Antriebstechnik mbH & Co. KG v Lamellen und Kupplungsbau Beteiligungs KG [2006] ECR I-6509.90 See the Heidelberg Report on the Application of Regulation Brussels I in the Member States, para 819, available at: http://ec.europa.eu/civiljustice/news/docs/study_application_brussels_1_en.pdf.91 Resolution of 20 December 2006, adopted by Prof. Dr. Dr. h.c. Jürgen Basedow, Hamburg; Andrea Birkmann, Munich; Prof. Dr. Graeme Dinwoodie, Chicago; Prof. Dr. Josef Drexl, Munich; Dr. Mireille van Eechoud, Amsterdam; Prof. Dr. Jean-Christophe Gallous, Paris; Christian Heinze, Hamburg (rapporteur for Germany on the present project); Prof. Dr. Annette Kur, Munich; Dr. Axel Metzger, Hamburg; Dr. Alexander Peukert, Munich; Prof. Dr. Heiki Pisuke, Tartu; Prof. Dr.Paul Torremans, Nottinham/Gent; and Clemens Traumann, Hamburg.92 Rb Haarlem, NIPR [2002] 281; OLG Zweibrücken, NJOZ [2004] 785.93 Case C-7/98 Dieter Krombach v André Bamberski [2000] ECR I-1935, para 36; see also the Jenard Report, p 46 and the Evrigenis/Kerameus Report, para 80.

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This question aims to establish the rationale underlying issue preclusive effect of judgments originating in other EU Member States in your legal system. You may have satisfactorily answered this question in relation to claim preclusion of domestic judgments, although additional considerations may apply in the context of the Brussels/Lugano regime. In those circumstances, please limit your answer to identifying differences or necessary additions.

3. Law applicable to issue preclusive effects

Does your legal system consider that issue preclusive effects of a judgment recognised under the Brussels/Lugano Regime follow from (1) the conclusion that the judgment is recognised under the Brussels Regulation or the Brussels or Lugano Convention (as applicable), without further justification being required; (2) the conclusion that the judgment is recognised for these purposes applied in conjunction with the rules of the State of Origin concerning the issue preclusive effects of the judgment; (3) the conclusion that the Recognized judgment is recognised for these purposes applied in conjunction with the rules of your legal system concerning the issue preclusive effects of an equivalent local judgment; (4) the conclusion that the judgment is recognised for these purposes applied in conjunction with the rules of your legal system concerning the issue preclusive effects of an equivalent judgment of a non-Member/Contracting State; or (5) other reasoning?

NB. Please provide, so far as specifically relevant to issue preclusive effects, a summary of any decision of a court of your legal system concerning the meaning and effect of that term in the specific context of the Regulation and/or the Conventions, including (in particular) any discussion of the meaning and effect of the statement in the Jenard Report and in the judgment of the Court of Justice in Hoffmann v Krieg (Case 145/86) [1988] ECR 645, paragraph 10 that "[r]ecognition must have the result of conferring on judgments the authority and effectiveness accorded to them in the State in which they were given".

4. Conditions for issue preclusive effects

What are the conditions for the issue preclusive effects of a judgment?

Explanatory note: please refer to the explanatory note in question 3 of Part II.B.

NB: Insofar as you have indicated in your answer under question 3 that the “applicable law” governing the issue preclusive effects of a judgment recognised is that of the Brussels/Lugano Regime, please indicate the conditions that must be satisfied before such judgment produces issue preclusive effect. If , however, you have concluded that the law applicable is that of your Member State [options (3) and (4)] or the State of Origin of the judgment [option (2)], you may consider that you need not elaborate further than you have above in relation to domestic preclusion rules.

NB2. Please consider in your answer, in particular, whether in addition to recognition, the conclusive or preclusive character of a judgment (e.g. the status of res judicata) is required and whether the conclusive or preclusive character of a judgment must be verified by the court in the Recognising State in order for it to have claim preclusive effects. In this regard, please also indicate which law is applied in order to determine the conclusive or preclusive character of the recognised judgment.

5. Invoking issue preclusive effects under the Brussels/Lugano Regime

Please describe how the claim preclusive effects of a judgment originating in another EU Member/Lugano Contracting State are invoked in your legal system.

Explanatory note: please refer to the explanatory note in question 4 of Part II.B.

NB. Please consider in particular: (1) whether the issue preclusive effects of a judgment flow automatically from its recognition under the Brussels/Lugano Regime; (2) if and when the issue preclusive effects of a judgment must be raised by the party seeking to rely on it; if so, (3) how it is proved; and (4) whether and how it may be defeated. The issue of raising the issue preclusive effect involves questions of: (a) timing; and (b) method. The issue of proving potentially involves questions concerning: (a) the burden of proof; (b) evidence; (c) the decision; and (d) review of the decision. The issue of defeating the issue preclusive effect of a judgment may involve questions of: (a) methods for attack (e.g. interlocutory motion for relief or independent case); and (b) grounds for attack (e.g. issues of jurisdiction and notice or other grounds, such as fraud). Please refer, so far as relevant, to your discussion of procedural issues in question 4 under Part II.B above and question 2 under Part III.A above.

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NB. As regards the issue of proof, please consider in your answer what documents may be produced to establish a judgment’s issue preclusive effect. In particular, consider whether in order to establish the issue preclusive effect of a judgment an applicant is entitled to rely on the final order, the reasons, the parties’ pleadings, and on evidence submitted to the court.

6. Exceptions to issue preclusive effects

Please verify whether the issue preclusive effects of judgments in your legal system are subject to generally accepted exceptions.

Explanatory note: please refer to the explanatory note in question 5 of Part II.B.

NB. Please consider in particular whether the following exceptions apply to the rule providing for the issue preclusive effects of a judgment: (1) the judgment was not on the merits; (2) jurisdictional or procedural limitation; (3) judicial permission; (4) party agreement; (5) the preclusive effect would be contrary to public policy, and/or (6) additional evidence, whether or not available before judgment and whether or not known to the parties or the court, or a change in circumstances. The exception that the judgment which is relied of for purposes of preclusion was not on the merits might occur, for instance, when the judgment involved: (a) the dismissal of the case due to lack of jurisdiction; (b) the dismissal of the case due to prematurity of action (e.g. a fact essential for recovery had not yet occurred); (c) the dismissal of the case due to the statute of frauds; (d) the dismissal of the case due to he statute of limitations; (e) summary proceedings; (f) the dismissal of the case due to voluntary dismissal; (4) the dismissal of the case due to involuntary dismissal; or (g) the dismissal of the case due to insufficient evidence.

NB2. Please consider the policies underlying the exceptions that exist to the rule on the issue preclusive effects of judgments in your legal system.

NB3. Please also indicate under what circumstances, if any, the party may lose the ability to rely on the preclusive effects of the judgment.

7. Persons affected by issue preclusive effects

To which persons or categories of persons do the issue preclusive effects of judgments recognised in accordance with the Brussels/Lugano Regime extend?

Explanatory note:

This question aims at identifying the scope of the issue preclusive effects of judgments recognised under the Brussels/Lugano Regime in your legal system, similar to the discussion in Parts I and II above in relation to the position of the (1) successful Claimant; (2) unsuccessful Claimant; (3) Defendant; (4) other participants; (5) members of a group; (6) persons connected to the Claimant, Defendant and other participants; and (7) strangers.

NB. Insofar as you have indicated in your answer that the “applicable law” governing the issue preclusive effects of a judgment recognised is that of the Brussels/Lugano Regime, please explain how your courts determine the scope of a recognised judgment’s claim and issue preclusive effects, as well as any wider preclusive effects that can be associated with a judgment. If , however, you have concluded that the law applicable is that of your Member State [options (3) and (4)] or the State of Origin of the judgment [option (2)], you need not elaborate further than you have above in relation to domestic preclusion rules.

NB2. Please provide, if specifically relevant to this question and not already addressed in your response to question 9 under Part III.C above, a summary of any relevant decision of a court of your legal system, including (in particular) any application, or discussion of the effect of, the decision of the Court of Justice in Drouot v CMI94, insofar as it concerns the ability of judgments to bind persons having a sufficient degree of identity with each other (see esp. paragraph 19 of the judgment).

94 Case C-351/96 [1998] ECR I-3075.

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D. Wider preclusion (abuse of process/claims and issues that could or should have been raised)

1. The existence and nature of wider preclusive effects

Do judgments recognised in accordance with the Brussels/Lugano Regime have wider preclusive effects in your legal system?

Explanatory note: please refer to the explanatory note above in relation to question 1 of Part II.C.

2. Policies underlying wider preclusive effects

What are the policy considerations for the wider preclusive effect of judgments in your legal system derived from the Brussels/Lugano Regime?

Explanatory note: please refer to the explanatory note above in relation to question 2 of Part II.C.

This question aims to establish the rationale underlying issue preclusive effect of judgments originating in other EU Member States in your legal system. You may have satisfactorily answered this question in relation to claim preclusion of domestic judgments, although additional considerations may apply in the context of the Brussels/Lugano regime. In those circumstances, please limit your answer to identifying differences or necessary additions.

3. The law applicable to wider preclusive effects

Does your legal system consider that wider claim and issue preclusive effects of a judgment recognised under the Brussels/Lugano Regime follow from (1) the conclusion that the Recognized Judgment is recognised under the Brussels Regulation or the Brussels or Lugano Convention (as applicable), without further justification being required; (2) the conclusion that the Recognized Judgment is recognised for these purposes applied in conjunction with the rules of the State of Origin concerning the effects of the Judgment; (3) the conclusion that the Recognized Judgment is recognised for these purposes applied in conjunction with the rules of your legal system concerning the effects of an equivalent local judgment; (4) the conclusion that the Recognized Judgment is recognised for these purposes applied in conjunction with the rules of your legal system concerning the effect of an equivalent judgment of a non-Member/Contracting State; or (5) other reasoning.

Explanatory note

The concept of "abuse of procedure" has been recognised within the framework of the Brussels/Lugano Regime, for example by the Advocate-General in De Wolf v Cox.95 Nevertheless, that case invoked a rule of claim preclusion. So far as the wider preclusive effects of judgments are concerned, there would appear to be a strong case for applying the law of the recognising State to determine whether local dispute resolution procedures are being improperly used by new claims litigating matters which ought to have been, but were not, determined in earlier proceedings in another Member State. The Court of Justice's decision in Turner v Grovit seems consistent with the view that it is for the court seised of proceedings to assess the appropriateness of proceedings in accordance with its own rules, to the extent compatible with the rules of jurisdiction contained in the Regulation/Conventions.96 [Nevertheless, the existence of wider preclusive effects can be seen as related to the lis alibi pendens rules for related actions in Article 28 Brussels Regulation (Article 22 Brussels/Lugano Conventions), particularly insofar as these rules permit the consolidation of such actions in the court first seised. If, for example, related actions are pending in two Member States and the court second seised has stayed its proceedings in circumstances where it could have (but chose not to or was not asked to) declined jurisdiction to allow consolidation of the proceedings in the court first seised, might it constitute an abuse of Regulation/Convention procedure for a party to invoke the judgment of the court first seised in the second action not only to support arguments of claim or issue preclusion but

95 Case 42/76 [1976] ECR 1759 ("Therefore, under the guise of a fresh main action Mr de Wolf obtained by means of nothing other than an abuse of procedure a judgment in which the principal issue was the recognition of a judgment given in his favour by a Belgian court.").96 Case C-159/02 [2004] ECR I-3565, paras. 28 and 29. Thus, on this view, it was for the Spanish Court to determine the wider preclusive effects of any judgment in related English proceedings in accordance with local rules.

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also to contest the "appropriateness" of the second action on the ground that the issues raised in them could and should have been determined in the first action?]

NB. Please provide, so far as specifically relevant to wider preclusive effects, a summary of any decision of a court of your legal system concerning the meaning and effect of that term in the specific context of the Regulation and/or the Conventions, including (in particular) any discussion of the meaning and effect of the statement in the Jenard Report and in the judgment of the Court of Justice in Hoffmann v Krieg (Case 145/86) [1988] ECR 645, paragraph 10 that "[r]ecognition must have the result of conferring on judgments the authority and effectiveness accorded to them in the State in which they were given".

4. Conditions for wider preclusive effects

What are the conditions for the wider preclusive effects of a judgment?

Explanatory note: please refer to the explanatory note in question 3 of Part II.C.

NB: Insofar as you have indicated in your answer under question 3 that the “applicable law” governing the wider preclusive effects of a judgment recognised is that of the Brussels/Lugano Regime, please indicate the conditions that must be satisfied before such judgment produces wider preclusive effect. If , however, you have concluded that the law applicable is that of your Member State [options (3) and (4)] or the State of Origin of the judgment [option (2)], you may consider that you need not elaborate further than you have above in relation to domestic preclusion rules.

NB2. Please consider in your answer, in particular, whether in addition to recognition, the conclusive or preclusive character of a judgment (e.g. the status of res judicata) is required and whether the conclusive or preclusive character of a judgment must be verified by the court in the Recognising State in order for it to have claim preclusive effects. In this regard, please also indicate which law is applied in order to determine the conclusive or preclusive character of the recognised judgment.

5. Invoking wider preclusive effects

Please describe how the wider preclusive effects of a judgment originating in another EU Member/Lugano Contracting State are invoked in your legal system.

Explanatory note: please refer to the explanatory note above in question 4 of Part II.C.

NB. Please consider in particular: (1) if and when the wider preclusive effect of a judgment must be raised by the party seeking to rely on it or whether it must be applied by the court ex officio. To the extent that it must be raised by the party seeking to rely on it, please indicate (2) how it is proved; and (3) whether and how it may be defeated. The issue of raising the preclusive effect involves questions of: (a) timing; and (b) method. The issue of proof potentially involves questions concerning: (a) the burden of proof; (b) evidence; (c) the decision; and (d) review of the decision. The issue of defeating the preclusive effect of a judgment may involve questions of: (a) methods for attack (e.g. interlocutory motion for relief or independent case); and (b) grounds for attack (e.g. issues of jurisdiction and notice or other grounds, such as fraud). Please refer, so far as relevant, to your discussion of procedural issues in question 4 under Part II.C above and question 2 under Part III.A above.

NB2. As regards the issue of proof, please consider in your answer what documents may be produced to establish a judgment’s wider preclusive effect. In particular, consider whether in order to establish the wider preclusive effect of a judgment an applicant is entitled to rely on the final order, the reasons, the parties’ pleadings, and on evidence submitted to the court. If the court may raise the issue of its own motion, please indicate any relevant requirements.

6. Exceptions to wider preclusive effects

Please verify whether the wider preclusive effects of judgments recognised under the Brussels/Lugano Regime are subject to generally accepted exceptions.

NB1. Please consider the policies underlying the exceptions that exist to the rule on the wider preclusive effects of judgments in your legal system.

NB2. Please also indicate under what circumstances, if any, the party may lose the ability to rely on the preclusive effects of the judgment.

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7. Persons affected by wider preclusive effects

To which persons or categories of persons do the wider preclusive effects of judgments recognised in accordance with the Brussels/Lugano Regime extend?

Explanatory note:

This question aims at identifying the scope of the wider preclusive effects of judgments recognised under the Brussels/Lugano Regime in your legal system, similar to the discussion in Parts I and II above in relation to the position of the (1) successful Claimant; (2) unsuccessful Claimant; (3) Defendant; (4) other participants; (5) members of a group; (6) persons connected to the Claimant, Defendant and other participants; and (7) other persons.

NB. Insofar as you have indicated in your answer that the “applicable law” governing the wider preclusive effects of a judgment recognised is that of the Brussels/Lugano Regime, please explain how your courts determine the scope of a recognised judgment’s claim and issue preclusive effects, as well as any wider preclusive effects that can be associated with a judgment. If , however, you have concluded that the law applicable is that of your Member State [options (3) and (4)] or the State of Origin of the judgment [option (2)], you may consider that need not elaborate further than you have above in relation to domestic preclusion rules.

NB2. Please provide, if specifically relevant to this question and not already addressed in your response to question 9 under Part III.C above, a summary of any relevant decision of a court of your legal system, including (in particular) any application, or discussion of the effect of, the decision of the Court of Justice in Drouot v CMI97, insofar as it concerns the ability of judgments to bind persons having a sufficient degree of identity with each other (see esp. paragraph 19 of the judgment).

E. Authentic instruments/court (approved) settlementsDo the preclusive effects described in Part III.B. to Part III.D. above (or similar effects) extend to authentic instruments and court (approved) settlements within the meaning of Articles 57 to 58 of the Brussels Regulation (Articles 50 and 51 of the Brussels/Lugano Conventions)?

Explanatory note:

Chapter IV of the Brussels Regulation (Title IV of the Brussels/Lugano Conventions) addresses in terms only the enforceability of authentic instruments and court (approved) settlements and does not expressly address the issue of recognition for other purposes.

97 Case C-351/96 [1998] ECR I-3075.

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IV. Preclusive effects of third state judgmentsThis Part concerns the preclusive effects of "third state judgments", i.e. judgments from a State which is neither a EU Member State nor a Contracting State to the Lugano Convention. It has been included not only for the purposes of comparison with the domestic and Brussels/Lugano Regimes (as well as the rules in force in the United States of America, which is not a party to the Brussels or Lugano Conventions), but also so that the end product of the Project does not exclude completely this important aspect of the study of the cross-border effects of judgments. It is concerned mainly with the generally applicable rules of your legal system for the recognition of foreign judgments outside the Brussels/Lugano regimes, and not with special regimes applicable, by virtue of international treaty or otherwise, to judgments in specific subject areas or from particular foreign jurisdictions (save insofar as such regimes cast light on the general practice in your system). If third state judgments have preclusive effects in your legal system, both as a matter of general law and by virtue of international convention, please focus on the former rules, giving examples from international conventions only where necessary to highlight significant differences in treaty practice from that pertaining under the general law.

Do the preclusive effects described in Parts II and III above (or similar effects) extend in your legal system to third state judgments?

NB. If so, please describe any specific aspects of the law, practice, or attitude in your legal system in relation to the preclusive effects of third state judgments, in particular, any differences from the regime of Parts II and II above.

NB2. Please provide a brief description of the conditions under which third state judgments are recognised outside the scope of other bi or multi-lateral agreements.

NB3. Please indicate the law(s) applicable to the effects of a recognised third state judgment.

- END OF GUIDE TO THE QUESTIONNAIRE -

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