Friday, 14 March 2014

Litigating in Greece against a company from St Kitts and Nevis Islands



This is a unique case of two foreign companies litigating in Greece. Two were the issues that caught my attention and may be of interest for colleagues involved in International Civil Litigation: First, the issue of international jurisdiction of the Thessaloniki 1st Instance court; and second, the issue of service of proceedings abroad. This is an unreported case [Thessaloniki 1st Instance Court 17330/2011], which I will include in the May edition of Armenopoulos, i.e. the Thessaloniki Bar Review.  

The facts: The plaintiff is an oil company with its seat in the Cayman Islands; the respondent is a shipping company with its seat in St Kitts and Nevis Islands. The parties concluded a number of contracts for sale of shipping fuel, deliverable to Istanbul, Turkey & Yuzhnyy, Ukraine. The respondent failed to pay the amount of 125.000 € at the date agreed. The claimant initiated proceedings before the Thessaloniki courts, because a ship owned by the respondent was anchored in the port of the city at the time of filing, following a freezing order issued by the Thessaloniki court upon the plaintiff’s motion. The claim was handed over to the bailiff for the purposes of service to the respondent. The latter served the claim to the local 1st Instance Prosecution Office, which is the competent body to receive documents to be served abroad pursuant to Art. 134 Greek Code of Civil Procedure [CCivP]. There is no evidence that the writ of summons was actually served at the seat of the respondent in the Nevis Islands. The latter did not appear in the hearing.  

The ruling: The court established its jurisdiction in accordance with Art. 40 CCivP, which stipulates that an action of a pecuniary nature against a defendant who has not a domicile within the Greek territory may be brought before the courts where any property of this defendant is situated, even if the action is not related to the forum [wording translated by Yessiou-Faltsi, Civil Procedure in Hellas, p. 152 (1997), Sakkoulas/Kluwer]. Since the claimant produced evidence that the defendant’s ship was moored at the Thessaloniki port, the court held that it had international jurisdiction and territorial competence to hear the case.
On the service of process issue, the court held that the Nevis Islands were not the proper forum to serve the claim to the defendant. In particular, by reading the action the court concluded that the company had solely a registered office in the Nevis Islands, whereas its entire business was carried out in Turkey. Hence, the claim should have been served in accordance with the 1965 Hague Service Convention, since Turkey is a signatory member of this convention. In any case, the court continues, the method of service selected was not proper for defendants located in the Nevis Islands either, since no actual delivery of the claim has been proven, and at the same time the requirements of Art. 15 Hague Service Convention were not met.
In light of the above, the court dismissed the action as inadmissible. 

Comments: The court was right in regards to the issues of international jurisdiction and venue. The court’s ruling on the place where the defendant was carrying out its business cannot be disputed here. What’s important is to underline the unanimous acceptance (from courts and legal scholars) of the latter location as the place where a claim has to be served. Given the fact that the court considered Turkey as the place of the respondent’s actual business activities, service to the Nevis Islands was a wrong move from the plaintiff.
Still, there’s one point where the court committed a mistake: I checked and double-checked the Service Convention web page, and I couldn’t find anywhere that St Kitts and Nevis Islands are a signatory member of the convention. Hence, for the purposes of serving Greek documents to this country, service was adequate, since Art. 134 CCivP does not require actual delivery.

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