For approximately 80 years preceding independence, Cyprus was a British colony. On independence in 1960 the Constitution of the new Republic provided that the laws previously applicable should remain in force until repealed or amended by new laws of the Republic. Since independence, myriad laws have been enacted, and the legal framework has been increasingly aligned with the European acquis communautaire since Cyprus joined the European Union (EU) in 2004. Nevertheless, English Common Law remains the foundation of the legal system, particularly in relation to commercial matters.
EU law now takes precedence over earlier or later domestic law.1 Article 179.1 of the Constitution of Cyprus provides that the Constitution is the supreme law of the Republic; however, when there is a conflict between the provisions of EU law and domestic legislation, EU law will prevail. This reflects the principle of the supremacy of EU law as it was crystallised by case law of the European Court of Justice.
This chapter examines the mechanisms for the recognition and enforcement of foreign judgments in Cyprus under the provisions of EU Regulations,2 under Common Law, and under statute law. As a rule, the judgments of foreign courts have no direct effect in Cyprus but, provided that certain prerequisites are satisfied, the courts will assist in the enforcement of a foreign judgment. Generally, for a foreign judgment to achieve recognition in Cyprus, it:
- Must have been issued by a court that has jurisdiction according to the conflict of laws rules applied in Cyprus;
- May not be contrary to public policy;
- Must have been made on merit and not according to procedure;
- May not have been obtained by fraud; and
- Must have been the outcome of proceedings that were conducted in accordance with natural justice.
Most of the judgments dealt with by the Cyprus courts now originate in other member states of the EU, with judgments from Eastern European countries coming next in volume.
An important distinction must be drawn between the terms "recognition" and "enforcement". Recognition of a judgment means treating the claim which was adjudicated as having been determined once and for all. However, not every judgment entitled to recognition may be enforced, and no judgment can be enforced until it has been recognized. Once enforcement is ordered by the court, the judgment is treated (and can be executed) as if it had been given by a Cyprus court.
19:2 Enforcement under European Union Regulations 1215/ 2012 and 44/2001—In general
Regulation 1215/2012 is the "recast" successor to Regulation 44/ 2001, the original Brussels I regulation. It applies to all judgments given after 10 January 2015 in civil and commercial matters by the courts of EU member states, apart from Denmark. The objective of the Regulation, like the original Regulation 44/2001, is to achieve the free circulation of judgments within the member states by means of a legal instrument which is binding and directly applicable in all member states.
The Regulations aim to unify the rules of conflict of jurisdiction and to simplify the recognition and enforcement procedures for judgments in member states, and represent a continuation of the Brussels Convention of 19683 Article 66 of Regulation 1215/2012 sets out the arrangements for transition between it and Regulation 44/2001. Regulation 1215/2012 applies to legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded on or after 10 January 2015. Notwithstanding its repeal by Regulation 1215/2012,4 Regulation 44/ 2001 will continue to apply to judgments given in legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded before 10 January 2015 which fall within its scope.
The case of Apostolides v. Orams5 is a landmark decision for Cyprus. Following an application for a preliminary ruling made by the Court of Appeal of England and Wales, the European Court of Justice held that judgments of Cyprus courts can be executed in any of the member states of the European Union, pursuant to Regulation 44/2001, even if the subject matter of these judgments concerns property situated in the occupied areas of the Republic of Cyprus where the government cannot exercise effective control.
The plaintiff brought an action against the defendants who had constructed a holiday home on his property in the occupied northern part of Cyprus. The Cyprus court ruled that the defendants were trespassing on the plaintiff's land and ordered them to demolish the buildings erected on the property, surrender vacant possession to the plaintiff and pay damages. The plaintiff sought to have this judgment enforced in Britain.
The High Court of Justice in the United Kingdom allowed the Kingdom of the judgment of the Cyprus court on the grounds that the application of the acquis communautaire was suspended in the occupied area. The plaintiff subsequently appealed the High Court decision to the Court of Appeal, which reversed the ruling and decided on 19 January 2010 that the Cyprus court decision could be registered and enforced in the United Kingdom on the basis of EC Regulation 44/2001.6 This decision is of critical importance since it is binding on the courts of all member states.
§ 19:3 Enforcement under European Union Regulations 1215/ 2012 and 44/2001—Civil or commercial matters—Article7
A creditor seeking execution of a judgment against a debtor must first satisfy the requirement that the judgment was given in a "civil or commercial matter". It is thought that the recognizing court is entitled to decide whether the judgment was indeed given in a civil or commercial matter. And, in most cases, it will be relatively easy to determine whether or not a judgment falls within the scope of the Regulation. The finding of the adjudicating court on this point is expected to be persuasive, but in theory, the recognizing court in Cyprus is entitled to decide the matter for itself.
With respect to those matters falling outside the scope of the Regulation, the jurisdiction of the courts over the judgment debtor becomes a matter to be dealt with under the established jurisdictional rules of Cyprus law.
§ 19:4 Enforcement under European Union Regulations 1215/ 2012 and 44/2001—Scope
According to article 2 of Regulation 1215/2012 (article 32 of Regulation 44/2001), the term "judgment" means any judgment given by the court or tribunal of a member state, whatever the judgment may be called, including a decree, order, decision, or writ of execution, as well as the determination of costs or expenses by an officer of the court. Articles 1(2)(d) of both the original and recast Regulations exclude arbitration from their scope.
Many commentators explain that this is due to the need to avoid conflict with existing international conventions on arbitration and, in particular, the New York Convention of 1958. It is important to note, however, that, in the Marc Rich8 case, the European Court of Justice distinguished between "arbitration" as the subject matter of the proceedings and as a preliminary issue.9
By virtue of article 36 of Regulation 1215/2012 (article 33 of Regulation 44/2001), no special procedure is required for the recognition of a judgment given in a member state. A mere application according to the relevant procedure in Cyprus would suffice. Under Regulation 44/ 2001 recognition should be refused only in those situations listed in articles 34, 35 and 37, such as if:
- Recognition is manifestly contrary to the public policy of the member state in which it is sought;
- The judgment was given in default of appearance, and no proper notice of the proceedings was given to the defendant;
- The judgment is irreconcilable with another given in a dispute between the same parties in the member state in which recognition is sought; and
- The judgment is irreconcilable with an earlier judgment given in another member state or in a non-member state between the same parties and involving the same cause of action.
One of the major changes introduced with Regulation 1215/2012 concerns the conditions that must be satisfied when an application for recognition is brought before the court. According to article 33(2) of Regulation 44/2001, any interested party who raises the recognition of a judgment as the principal issue in a dispute may apply for a decision that the judgment be recognized. The equivalent article of Regulation 1215/2012, namely article 36(2), provides that any interested party may apply for a decision that there are no grounds for refusal of recognition. This means that the court, when examining an application for recognition under Regulation 44/2001, should check whether all the conditions are satisfied for a judgment to be satisfied and if satisfied that this is the case, would be able to grant a decision that the judgment is recognized. When examining an application for recognition under Regulation 1215/2012, the court presumes that the judgment meets all the conditions that allow it to be recognized in another member state and restricts its examination to confirming that there are no grounds for refusal of recognition. This change in approach indicates the intention of the EU to further simplify the recognition procedures.
1Costa v. ENEL 1964, Case 6/64  E.C.R. 585.
2Regulation (EU) 1215/2012 on jurisdiction and recognition and enforcement of judgments in civil and commercial matters (recast), OJ 20 December 2012, L 351/1 p1-32 and Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ 2001 L 12/1. See also Regulation 805/2004 on the enforcement of uncontested claims.
3Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, OJ 1972 L 299/32.
4Regulation 1215/2012, article 80.
5C420/07, Meletis Apostolides v David Charles Orams and Linda Elizabeth Orams (27 April 2009).
6Orams v. Apostolides, E.W.C.A. Civ 9. [Section 19:4]
7Marc Rich & Co. AG v. Societa Italiana Impianti PA, Case C-190/89  E.C.R. I-3855.
8Orams v. Apostolides, E.W.C.A. Civ 9. [Section 19:4]
9Marc Rich & Co. AG v. Societa Italiana Impianti PA, Case C-190/89  E.C.R. I-3855.
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