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  1. Introduction
  2. Belgian court
  3. Belgian judgment
  4. Convention
  5. Member State
  6. Conclusion

As clarified in the Tatry case, ?It should be noted at the outset that the English version [?] does not expressly distinguish between the concepts of ?object' and ?cause' of action. That language version must however be construed in the same manner as the majority of the other language versions in which that distinction is made??that is to say, both proceedings must have the same object as well as the same cause of action. The same cause of action comprises the facts and the rule of law relied on as the basis of the action. Needless to say, both proceedings rely on the same set of facts. However, since the legal basis of A's lawsuit is contractual damages, while the legal basis of B's is wrongful and tortious conduct, the rule of law relied on for both proceedings are different. Therefore, the first criterion of identical cause of action is not met, and as a result, the proceedings cannot be considered parallel. Accordingly, because the object in each proceeding essentially depends on the respective legal basis, the objects of both proceedings cannot be considered the same either.

[...] It was noted, however, that in some common law jurisdictions that term might be interpreted as not covering notions of procedural justice while in legal systems of civil law tradition, inspired by the French concept of ?ordre public?, principles of procedural justice were regarded as being included [ ]' A related problem arises with regards to how broadly a court interprets public policy: if construed too broadly, it becomes indistinguishable from the laws of the arbitral seat; yet if understood too narrowly, then it becomes international public policy, which includes only the most basic notions of justice and morality. However, there are certain factors that play against Delta's annulment of award. Firstly, Paris being the seat of the arbitration, it would be highly unlikely for the Parisian courts to annul the award, unless the grounds for it are manifest, in view of Paris' pro-arbitration policy. In particular, an error of law is not normally accepted as a ground for annulment, as in the present case. [...]

[...] If they are, then recognition of the French judgment is not possible. Question 3 Although the reasoning relied upon by the court is not altogether nonsensical, I do not agree with the court's findings. The court essentially uses two arguments: firstly, that the preamble, as well as Chapters I and II of the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters Convention?) use permissive rather than mandatory language; secondly, that the opt-out provisions in Article 23 of the Convention would not make sense if the Convention was meant to be mandatory. [...]

[...] Global Litigation and Conflict of Laws 2 Exam Numéro de carton de place: 15 Next, we refer to Article 34 of Brussels which indicates when a judgment shall not be recognized. Relevant to our purposes are the first three situations therein under which there will not be recognition: firstly, the Belgian judgment is manifestly contrary to French public policy; secondly, there must be due process (more precisely: ?where it was given in default of appearance, if 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 the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do thirdly, if it is irreconcilable with the French judgment. [...]

[...] We ought to take into consideration as well that there are usually time limitations as to the application to annul an award. Furthermore, with regards to the annulment of awards, the 1985 UNCITRAL Model Law on International Commercial Arbitration (and, by implication, the 1958 New York Convention) is the most common and central reference for its grounds. This is due to its role in harmonising the disparate national legal regimes for international arbitration. In particular, Article 34 of the Model Law lays out the possible reasons why an award may be annulled: problems as to the validity and scope of the arbitration agreement and improper notification or lack of due process improper constitution of the tribunal conflict with the arbitral seat's arbitration law and public policy concerns of the arbitral seat As is noted in the Explanatory Note to the Model Law, the ?list [of grounds] essentially mirrors that contained in article 36 [of the Model Law], which is taken from article V of the New York Convention?. [...]

[...] This essentially means that the Convention is effectual, only insofar as the requested State lets it be so. The Article has been the ground by which the French blocking statute has operated to give leave to French parties to refuse to give evidence. Nonetheless, as reality goes, this has not prevented American courts from asserting jurisdiction when they feel the need to, especially since the blocking statute was hardly enforced for a long time. As a result, this has pushed French courts to enforce the statute in a 2007 case where the French Supreme Court upheld the conviction and ?10,000 fine against an attorney found to have violated it. [...]

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