commercial dispute resolution

Question 1

Micallef/Malta

Answer 1

In appeal, the chief justice was the uncle of the lawyer of F. In the first instance the judge was the brother of the lawyer. Chief justice in appeal did not step aside and ruled against M. Ends up in Strassbourg that the judge wasnt impartial because he was family of the lawyer. ECofHR held that that was a violation of 6 ECHR and fair trial. So family cant try your case.

Question 2

Krombach/Bamberski

Answer 2

when it comes to enforcement, the German court may not assess whether the original court has assumed jurisdiction rightfully or not. So it is not relevant. Jurisdiction didn’t matter in the end. So the Germans court cant refuse on the basis of jurisdiction
But: ECJ said when a fundamental right such as the right to be heard has not been acknowledged (had not been because of the sentencing in absentia), then a court can refuse to recognise a case.

Question 3

Mostaza Claro/CMM

Answer 3

A decision that has become final and binding can still be reversed if the arbitral award is incompatible with EU law. This is then contrary to the principle of effectiveness.

Question 4

Asturcom/Nogueira

Answer 4

If the consumer does not appear, a tribunal, arbitration or court must determine ex officio whether an arbitration clause between supplier and consumer is fair or not. There is no need to wait for a complaint from one party.

Question 5

Alassini et al./telecom Italia SpA

Answer 5

It is allowed to set a rule that first you have to go out of court settlement if:
it does not result in a decision which is binding on parties

does not cause a substantial delay for the purposes of bringing legal proceedings,

suspends the period for the time-barring of claims

does not give rise to costs, or very low costs, for the parties

cannot be solely settled by electronic means

interim measures are possible in exceptional cases where the urgency requires it.