Credit Manager Magazine 9/2021

52 CREDIT MANAGER MAGAZINE WRZESIEŃ / SEPTEMBER 2021 • European Order for Payment Procedure and European Small Claims Procedure The European Order for Payment Proce- dure is applicable to uncontested monetary cross-border claims, the European Small Claims Procedure is applicable to cross-bor- der claims amounting up to EUR 5.000. Both Regulations have in common that they pro- vide for a procedure in order to obtain an ex- ecution title that can be easily enforced in an- other Member State (without declaration of enforceability). If the claim is not contested or problems with the service of the payment order arise, the enforceable payment order is usually issued within 6-12 weeks after filing. • Regulation (EU) No 655/2014 of 15 May 2014 This regulation establishing an European Account Preservation Order procedure to facilitate cross-border debt recovery in civil and commercial matters is in force since 18 January 2017. The Account Preservation Or- der is a means of securing monetary claims against the real risk of enforcement being im- peded or made substantially more difficult. The competent court will obtain the required information on bank accounts. In practice, however, the procedure varies from member state to member state. • Lugano Convention The Convention on jurisdiction and the rec- ognition and enforcement of judgements in civil and commercial matters of 30 October 2007 (Lugano Convention II, in force since 2010) is a multilateral treaty between the European Community, Iceland, Norway and Switzerland that is similar constituted as the Brussels I Regulation. • Arbitral Awards The New York Convention on the Recogni- tion and Enforcement of Foreign Arbitral Awards of 1958 (NYC) and the European Convention on International Commercial Arbitration 1961 (Geneva Convention 1961) apply nearly to all member states of the Eu- ropean Union. The uncertainty surrounding jurisdiction and the recognition and enforcement of judge- ments in UK, coupled with the impact of the EuroCollectNet (“ECN”) is an asso- ciation of European law firms offer- ing a comprehensive cost-effective service for the collection of debt throughout Europe and worldwide through the Friends of EuroCollect- Net. Accessible either directly or via your local ECN-Lawyer. Covid-19 pandemic on court backlogs, may lead to increased interest in arbitration as an alternative means of dispute resolution. • Convention of 30 June 2005 on Choice of Court Agreements As a general rule, an enforceable judgement given by a court of a Contracting State desig- nated in an exclusive choice of court agree- ment is to be recognized and enforced in another state. Since consumers are excluded from the scope of application, the convention (jurisdiction clauses) is mainly an alternative for medium-sized enterprises to the New York Convention 1958 (arbitral awards). • Bilateral Treaties Bilateral treaties with Member States of the European Union are largely inapplicable due to Regulations of the EU in their scope. In contrast, there are some conventions be- tween individual member states and non- EU Member States like Liechtenstein, Israel, Switzerland, Tunisia and Turkey which are pertinent. There might be cases in which it may be worth consulting with specialized debt collection lawyers whether one of these not widely known treaties could be put to use. III. Brexit All of the above EU legislation ceased to ap- ply in UKwith the end of the Brexit transition period (31 December 2020). Brussels I will continue toapply to the enforcement of judge- ments given in proceedings which com- menced before 1 January 2021 (even if the judgement itself was not given until after that date). However, the European Enforcement Order regime will not be available unless the application for an enforcement certificate had already been made by 31 December 2020. It is highly unlikely that UK’s application to accede to the Lugano Convention will suc- ceed because the European Commission recently declared that it is opposed to UK’s participation in Lugano’s Convention. Absent accession to the Lugano Convention, a few bilateral treaties existed between the UK and some member states prior to the Brussels Convention, some of which might now be revived. However, excluding the Lu- gano Convention, it is impossible for the UK to negotiate new bilateral treaties with other “As a general rule, a judgement, an authentic instrument or a court settlement that was issued and is enforceable in one Member Country is enforceable in all Member Countries.” BUSINESS member states because each member state has ceded exclusive competence in such mat- ters to the EU. Assuming that no bilateral or multilateral treaty applies, the matter becomes one of the local laws of the state in which recognition or enforcement is sought. These exequatur pro- ceedings are costly and recognition will vary in the various jurisdictions. IV. Summary The main advantage for a company to obtain a judgement in a member state of the Euro- pean Union is that the judgement is directly enforceable in all other member states and also other European states due to various international treaties. For UK the EU rules unfortunately ceased to apply as of January 1, 2021 and European judgements are no longer directly enforceable in UK. It is to be expect- ed that in UK related cases arbitration and mediation cases will increase.