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.

Monday, 10 March 2014

Recognition of a divorce decree from the Autonomous Republic of Crimea

The Thessaloniki 1st Instance court issued in 2012 a decision on an application for recognition of a divorce decree from a court in the city of Bilohirsk/Belogorsk (in Ukrainian Білогірськ; in Russian Белогорск). This is an unreported case, which becomes interesting in light of the recent situation in the region.

The facts: The applicant requested the recognition of a divorce decree rendered by the Regional court of Bilohirsk/Belogorsk of the Autonomous Republic of Crimea. He submitted the following documents: A copy of the marriage certificate from the Municipality of Krimskaya Roza, issued both in Russian and Ukrainian; a copy of the 2011 divorce decree, rendered in Russian, which contained a note certifying that the decree was final; a copy of the divorce certificate from the registrar’s office of Krimskaya Roza, issued in Ukrainian, certifying the finality of the decree. All documents were true copies of the originals, translated into Greek. 

The ruling: The court applied domestic provisions, i.e. Articles 323 and 905 Greek Code of Civil Procedure, and examined the issues stipulated in the above provisions, i.e. the international jurisdiction of the foreign court, the rights of audience of the defendant, and the possible irreconcilability of the foreign decree with a domestic decision. Regarding the first requirement, the Thessaloniki court accepted the foreign court’s international jurisdiction on the basis of the parties’ last common residence. On the second issue, the court noticed that – although the respondent was in default of appearance - fair hearing was not violated, because from the text of the foreign decree it is evidenced that the latter had submitted a declaration to the foreign court, requesting that the hearing takes place in spite of her default of appearance. The Greek court concluded that the above is equivalent to a consent declaration from her side, which proves that she was not deprived of her right to a fair hearing. Finally, regarding the third issue, the applicant failed to demonstrate that the foreign decree is not irreconcilable to a domestic ruling. For this reason the court ordered the repetition of proceedings, in order for the applicant to produce a certificate proving the above.

Comments: By reading the Greek decision, it seems that the Greek court was somehow puzzled with regard to the nationality of the foreign decree. It received true copies of a number of documents from the Autonomous Republic of Crimea, translated either from Russian, or Ukrainian, or both languages. As it is evidenced by the text of the Greek decision, the decree was drafted and published in Russian. To sum up, there is not a single word in the Greek decision giving at least a hint that the foreign divorce decree was rendered by a court of law belonging to the state of Ukraine. However, as mentioned before, this is a 2012 decision. Nowadays everyone is aware of Crimea and the country to which it forms part today.
Hence, from the legal point of view, the court should have applied the bilateral Agreement between the Hellenic Republic and Ukraine on Judicial Assistance in Civil Matters, which was signed in Kiev on July 2, 2002, ratified in Greece by virtue of Law 3281/2004, and entered into force in Greece on January 27, 2007. In particular, the court should have applied Articles 20 et seq. of the Agreement. There are a couple of differences in the approach compared to domestic provisions. I will focus on those which are relevant to the case at hand, using the terminology of the Agreement’s version in English.
First, unlike Art. 323 b Greek CCivP, Art. 22 d of the bilateral agreement states that the court of destination has to examine whether its state would have had international jurisdiction to hear the case.
Second, unlike Art. 323 d Greek CCivP, Art. 22 b of the bilateral agreement states that even a definitive, i.e. non-final decision rendered in the court of destination, is sufficient for refusing recognition of the foreign decree.
Third, unlike Art. 323 c Greek CCivP, Art. 21 Para 4b of the bilateral agreement states that the applicant is obliged to produce a certificate to the effect that the litigant who lost the case and failed to appear in court had been duly summoned in accordance with the law of the Contracting Party in the territory of which the decision was issued.
In conclusion, in substance, the Greek court was not wrong in its decision: The Thessaloniki courts had no jurisdiction to hear the case; there was no evidence on the existence of a Greek definitive decision issued previously; a certificate proving that the defendant was duly summoned was not needed in the present case, in light of her explicit consent to accept the ruling of the foreign court in absentia.
 However, one is left with a bitter taste: The court followed a different point of departure, i.e. the domestic provisions, failing to make any reference to the bilateral agreement, which should have been applied in the case. This time things went well. Still, there’s no guarantee that this will be the case in the future.