Sunday, 7 October 2018

Non-recognition of a foreign State as a ground for opposition against a payment order


In the case between a Kosovar limited liability company and a Greek SA, the Greek Supreme Court was confronted with the question, whether the non-recognition of Kosovo by the Hellenic Republic may be considered as a valid ground for opposition against a payment order issued by a Greek court. The Supreme Court dismissed the final appeal, confirming the rulings issued by the instance courts [SUPREME COURT Nr. 1938/2017]



THE FACTS


A limited liability company with its seat in Ferizaj, Kosovo, filed an application for a payment order before the Thessaloniki CFI [Thessaloniki CFI 20115/2012, Armenopoulos 2014, pp. 2019 et seq.]. Following service of the order, the defendant filed an opposition, requesting that the order be declared null and void, because the application has been filed by a legal entity founded pursuant to the law of Kosovo, a region earlier belonging to the Federal Republic of Yugoslavia, which has not been recognized by the Hellenic Republic. As a consequence, this company has neither the capacity to be a party in proceedings before Greek courts, nor a standing to sue, and in the case at hand, no right to file an application for an order of payment.

The Thessaloniki CFI dismissed the opposition with the following reasoning: It is an erroneous assumption that the capacity of an entity (lawfully established according to the rules and regulations of the state of its seat) to be a party and to seek protection before Greek courts, should have been conditioned by the previous state recognition by the Hellenic Republic. The efforts of the opponents to link the above facts are running contrary to the prevalent view in the Greek and international doctrine of Private International Law: The notion of state as a connecting factor of a conflict of law norm, or the aplicable law of a state, to which the confilct rule refers, are totally disconnected with the recognition of the respective state entity from a public international law point of view. A non-recognized state is not equivalent to a non-existing state; it exists as a body of human beings living in a specific region, which has developed its own administrative structure, imposed to its subjects.

In addition, the court continues, there is evidence that the applicant has been lawfully established in its country of origin, as evidenced by a document issued by the UNMIK, which was additionally certified by the Liaison Office of the Hellenic Republic in Pristina, Kosovo’s capital. In particular, it is stated that the applicant has been founded as a limited company, registered in the Kosovo companies registry in 2003, pursuant to the rules of the administrative decree Nr. 2002/22, on the establishment of companies in Kosovo, issued on the grounds of UNMIK Regulation 2001/6, on business oprganizations.

For the reasons above, the CFI dismissed the opposition.

The appeal lodged by the Greek company was dismissed on the same grounds [Thessaloniki CoA Nr. 1883/2015, unreported]


THE RULING


The case was then brought to the Supreme Court. The appellant invoked that the instance rulings had interpreted the pertinent provisions of the Greek Code of Civil Procedure  (Art. 62 & 64) erroneously. In a rather laconic passage, and without entering into the merits of the opposition ground, the Supreme Court dismissed the ground of appeal, since it found no violation or misinterpretation in the instance rulings.

COMMENT

This has been a rather peculiar case, the first ever tackling with the matter in Greece. Notwithstanding the poor analysis of the matter, the result is welcome. For the Spanish speakers among you, the issue has been examined lately by Prof. Javier Carrascosa González, Murcia University, see: Estados no reconocidos y norma de conflicto, https://www.academia.edu/37459820/Estados_no_reconocidos_y_norma_de_conflicto = http://accursio.com/blog/?p=812.





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