Originally posted by SithLord@Feb 14 2006, 12:29 AM
Interesting how you quote the Hague, Exoray, but entirely neglect what I've quoted from the Hague previous to you even bringing up the Hague.
Permit me to reiterate....
Sure lets look at what you posted...
First and foremost note the section you posted below is ONLY in regards to the service of documents and how it is done, not collection of member states judgments...
CONVENTION ON THE SERVICE ABROAD
OF JUDICIAL AND EXTRAJUDICIAL DOCUMENTS
IN CIVIL OR COMMERCIAL MATTERS
(Concluded 15 November 1965)Â Â Â
(Entered into force 10 February 1969)Â Â Â
Article 8
Each Contracting State shall be free to effect service of judicial documents upon persons abroad, without application of any compulsion, directly through its diplomatic or consular agents.
Any State may declare that it is opposed to such service within its territory, unless the document is to be served upon a national of the State in which the documents originate.
THEREFORE IT IS UP TO THE UK IF IT IS OPPOSED TO SUCH SERVICE BECAUSE AA IS NOT A NATIONAL OF THE STATE OF ORIGIN.
Interesting but he was servered his judicial documents already under this act, and there was no refusal, re-read the paperwork I have posted in regards to the case... LFL makes it clear he was served under the rules of the Hague Convention... This act is only in regards to service of paperwork... The UK to my knowledge has not refused to allow AA to be served papers...
Article 16
When a writ of summons or an equivalent document had to be transmitted abroad for the purpose of service, under the provisions of the present Convention, and a judgment has been entered against a defendant who has not appeared, the judge shall have the power to relieve the defendant from the effects of the expiration of the time for appeal from the judgment if the following conditions are fulfilled ?
a) the defendant, without any fault on his part, did not have knowledge of the document in sufficient time to defend, or knowledge of the judgment in sufficient time to appeal, and
b ) the defendant has disclosed a prima facie defence to the action on the merits.
IN OTHER WORDS, IF THE DEFENDANT HAS DEFENDED HIMSELF IN REGARD TO THE ACTION, THEÂ JUDGE CAN RELIEVE HIM OF THE DEFAULT CONDITION. AA AND HIS LAWYERS HAVE RESPONDED TO THE COMPLAINT. THIS IS WHAT THE HAGUE AND THE UK WILL RECOGNIZE, BUT THE USA DOES NOT.
Actually is reads pretty clearly that "if the following
conditions are fulfilled" he 'might' be relieved, they were all not met (condition 'a' is pretty simple) so it's void... If AA wasn't given time to answer AND he disclosed a prima facie defence then he 'might' be relieved of judgment, he was given plenty of time and he never entered a prima facie defense... Sorry arguing about jurisidiction is not a prima facie defense on the
merits you need to provide sufficient evidence to back your claims in a prima facie defense of the merits, what did AA provide, certainly nothing to contest LFL claims? And you feel that he wasn't given time to respond or had no knowledge of this case???
Re-read the documents I posted, there was a new complaint with new claims filed that AA failed to answer, and AA nor his lawyers responded, contrary to what you state... He was served on 12/21/2005 with these new claims, with his answer due 1/10/2006, LFL gave him till 2/07/2006 almost another 30 days to answer and he still failed before asking for default...
In short the required conditions a&b were never met voiding this whole clause...
CONVENTION ON THE CHOICE OF COURT
(Concluded November 25, 1965)
Article 4
For the purpose of this Convention the agreement on the choice of court shall have been validly made if it is the result of the acceptance by one party of a written proposal by the other party expressly designating the chosen court or courts.
THEREFORE A COURT OF JURISDICTION CAN ONLY BE DECIDED BY MUTUAL AGREEMENT OF BOTH DEFENDANT AND PLAINTIFF.
First this is NOT the 'only' way it can be decide, this is 'one' acceptable way a valid court can be decided...
He answered the US courts and acknowledged them, if this was such a big loophole like you claim the WHOLE convention is useless just never pick a court and you are free according to you, BUT... **** Read the bottom in RED
CONVENTION ON THE RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS
(Concluded February 1st, 1971)
Article 7
Recognition or enforcement may not be refused for the sole reason that the court of the State of origin has applied a law other than that which would have been applicable according to the rules of private international law of the State addressed.
Nevertheless, recognition or enforcement may be refused if, to reach its decision, the court of the State of origin had to decide a question relating either to the status or the capacity of a party or to his rights in other matters excluded from this Convention by sub-paragraphs (1)-(4) of the second paragraph of Article 1, and has reached a result different from that which would have followed from the application to that question of the rules of private international law of the State addressed.
IN OTHER WORDS, UK LAW WILL TAKE PRECEDENT SINCE THE MATTER PERTAINS TO OPERATIONS OF LFL IN THE UK IN 1976.
No actually the matters pertain to current sales, nothing to do with 1976...
Re-read that would you, it states nothing like you concluded, it states that enforcement "may not be refused for the sole reason that the court of the State of origin has applied a law other than that which would have been applicable according to the rules of private international law of the State addressed."
"May not be refused" unless the conditions are met, that being "to reach its decision, the court of the State of origin had to decide a question relating either to the status or the capacity of a party or to his rights in other matters excluded from this Convention by sub-paragraphs" "and has reached a result different from that which would have followed from the application to that question of the rules of private international law of the State addressed." Sorry that doesn't apply, where are these decisions that the court made that fall into this area as you claim?
Article 10
The court of the State of origin shall be considered to have jurisdiction for the purposes of this Convention ?
(1) if the defendant had, at the time when the proceedings were instituted, his habitual residence in the State of origin, or, if the defendant is not a natural person, its seat, its place of incorporation or its principal place of business in that State;
AA IS NEITHER A RESIDENT OF THE STATE OF ORIGIN NOR HAD A PLACE OF INCORPORATION IN THAT STATE.
(2) if the defendant had, in the State of origin, at the time when the proceedings were instituted, a commercial, industrial or other business establishment, or a branch office, and was cited there in proceedings arising from business transacted by such establishment or branch office;
DUH.....NOPE....NO BUSINESS IN THE USA.
Again this is 'another' way jurisdiction can be decided, not the only...
**** Read the bottom in RED
CHAPTER V ? SUPPLEMENTARY AGREEMENTS
Article 21
Decisions rendered in a Contracting State shall not be recognized or enforced in another Contracting State in accordance with the provisions of the preceding Articles unless the two States, being Parties to this Convention, have concluded a Supplementary Agreement to this effect.
ONCE AGAIN, AN AGREEMENT MUST BE MADE BETWEEN THE UK AND USA COURTS BEFORE ANY ACTION WILL BE ENFORCED.
Well duh, that is why I have stated all along that LFL needs to petition the UK courts, but the petion does not include a look at the merits of the judgment, only the validity of it...
The article you skipped over, wonder why...
Article 9
In questions relating to the jurisdiction of the court of the State of origin, the authority addressed shall be bound by the findings of fact on which that court based its jurisdiction, unless the decision was rendered by default.
And now we have yet another way jurisdiction can be decided...
Looks pretty clean and simple, AA argued jurisdiction, and because of this he and the UK courts are "bound by the findings of fact on which that court based its jurisdiction, unless the decision was rendered by default." well since AA argued and presented his case for jurisdiction and he (and the UK courts) are bound by thier decision, now if he defaulted day one he might have a case... The US courts findings for jurisdiction were pretty clear cut, if nothing else the claims were based on US laws, kinda hard to claim US based claims should be tried in the UK...
