What is the common law of confidentiality

Schlosser, F. Peter

Common Law Undertakings from a German perspective

RIW 2001, 81 (Issue 2)

I. Introduction One of the peculiarities of the procedural law system of the common law countries are undertakings: declarations of commitment that a person submits to the court with which he is dealing. The most distinctive form of such an undertaking is the so-called cross undertaking in damage. In the common law legal systems there is no norm that would correspond to our § 945 ZPO. The need for justice for no-fault obligation to pay damages when a lawsuit is dismissed after an interim legal protection measure has been imposed on the defendant is felt universally. Therefore, the courts of the common law states make the issuance of measures of interim legal protection dependent on the applicant's undertaking beforehand in an undertaking to pay damages to the defendant in the event of failure in the main action. It is certainly worth the effort to obtain clarity about the importance of such undertakings when they come into contact with the German legal system, above all of course with regard to the Brussels Convention. Undertakings, however, have a much broader scope than just providing a basis for compensation payments if it subsequently turns out that measures of interim legal protection were unjustifiably enacted. Therefore, an overview of the field of application of undertakings should first be given (II.), Before a closer examination of how they are to be assessed according to the criteria of the Brussels Convention and in other legal contexts (III.). Finally, this article will conclude with a few thoughts on whether the legal instrument of undertakings can also be made fruitful for judicial practice in this country in a manner adapted to the structure of German law (IV.). II. Manifestations of Undertakings and their Treatment in the Country of Origin Undertakings are an invention of practice. Until the new Civil Procedure Rules came into force on April 26, 19991 Officially published in Statutory Instruments 1998, 3132. The rules originate from a so-called delegated legislation customary in common law states. A committee close to the judiciary has issued it on the basis of a special legal authorization which provides that either of the two houses of parliament can repeal it, see Civil Procedure Act 1997 Sect. 3 (2). Parts of the earlier "Rules of the Supreme Court" and the "County Court Rules" were retained. there was no legal basis for them, rather they were anchored exclusively in the judicial case law of common law and even more in the everyday practice of the courts, which were taken for granted and never entered decision-making practice in the form of statements on legal issues. The new Civil Procedure Rules (CPR) have a quasi-legal legal basis in Part 3 (3), inter alia. also brought for undertakings. In general, it says for all types of orders (in contrast to the judgment): "When the court makes an order it maya) make it subject to conditions ... b) to specify the consequences of failure to comply ..." Die The new CPR have also established a further element of the common law civil process, so to speak, namely the so-called Practice Directions. Section 5 (1) Civil Procedure Act 1997 provides them in the following wording: "Practice Directions may provide for any matter which, by virtue of ... may be provided for by Civil Procedure Rules." that the Lord Chancellor issues the Practice Directions. The authority of the single High Court for England and Wales was not dared to be challenged. The Heads of Division issue the Practice Directions for this jurisdiction in exercising their inherent power, which has always existed as a matter of course and is not even worthy of a legal mention. After internal agreement, they are jointly signed by the Lord Chief Justice for the Queen's Bench, the Lord Chancellor for the Court of Appeal, the Vice Chancellor for the Chancery Division and the President of the Family Division. They occasionally mention the need for undertakings or the power of the judge to make his decision dependent on a party having previously undertaken an undertaking. For example, in Practice Direction on Part 25 5. 1. of the CPR (on interim legal protection): »Any order for an injunction, unless the court orders otherwise, must contain (1) an undertaking by the applicant to the court to pay any damages which the respondent (s) (or any other party served with or notified of the order) sustain which the court considers the applicant should pay. A General Form of Undertaking has even been published for the County Courts, 2 Form No. N 117, reprinted in Atkins, Encyclopaedia of Court Forms in Civil Proceedings, 2nd ed. 1992 ff., Vol. 0, p. 501, and repeated in various others Volumes .. The way in which an undertaking is mentioned in these legal provisions shows, moreover, that it is assumed as a recognized instrument of shaping the applicable law. In a generalized way it is of course nowhere addressed in the laws or the CPR. In this respect, too, there is clearly a lack of a monographic treatment in an independent work or a contribution in a specialist publication organ in England or the USA. Based on our own research, especially with regard to England3A source that extends across all areas of law is the 24-volume work by Atkins (Fn. 2)., The following areas of application (1.) and elements of legal treatment (2.) can be arrested: 1. Scope of application in praxisa) Interim legal protection in the continental legal sense The main application for undertakings in England is probably still what was previously called Mareva Injunction4D zu Domann, in: Schlosser (ed.), Material law and procedural law ..., 1992, p 157 ff. And what the new CPR call a somewhat ambiguous freezing order, although it is still not a real seizure, but an order directed at the person of the defendant, about assets, especially bank accounts, not or at least not not to dispose without the approval of the court5CPR Part 25.1 (1) (f) - »an order (i) restraining a party from removing from the jurisdiction assets located there; or (ii) restraining a party from dealing with assets whether located within the jurisdiction or not «.. The general provision for all measures of interim legal protection applies that the applicant must make an undertaking to pay all damages which the court believes the applicant should pay ("... which the court considers the applicant should pay"). In the sample attached to the corresponding Practice Direction especially for freezing orders, an appendix (Schedule B) is attached, which informs about eight, in the case of a World Wide Freezing Order even about ten undertakings that he has to submit. Interestingly, the fact that the applicant submits these undertakings when submitting his application is not mentioned at all in the legal texts and in the texts of the Practice Direction, but assumed as a matter of course. The most important of these undertakings must, as already mentioned, declare to pay the defendant compensation if the applicant does not prevail in the main, for whatever reason. Further undertakings relate to the submission of a bank guarantee for the claim for damages in a numerically determined amount by a certain date, "as soon as practicable" action on the main matter - a measure that corresponds to our legal rule of § 926 ZPO; the obligation to reimburse third parties for the costs incurred in connection with the freezing order; the obligation to compensate third parties for losses in the event that "... the court later finds that this Order has caused such person loss and decides that that person should be compensated for that loss ..."; To inform all persons to whom the decision was officially made known or who can be assumed to have adhered to this decision of its cancellation or other obsolete. The background for the latter two undertakings is the fact that a freezing order is not only acts against the defendant, but also against all third parties to whom it is brought to their knowledge. If they act contrary to the decision, they can be prosecuted for Contempt of Court just like the respondent, in particular banking institutions which carried out account disposals by the respondent6Z Ltd. v. A-Z and AA-LL [1982] QB 558, 572 (Court of Appeal). In the official guidance notes on the decision that are printed on the form to be sent, it says: “It is a contempt of court for any person notified of this order knowingly to assist in or permit a breach of this order. Any person doing so may be sent to prison, fined or have its assets seized «.. For other interim injunctions - we would say: with regard to the subject of the dispute - the same applies. The Practice Direction for Part 25 CPR, as shown in 5.1, generally provides for a prior undertaking by the applicant to pay damages to the defendant in the event of a definitive failure. B) Temporary legal protection with regard to finding and securing information material What is happening in Germany through the Product Piracy Act from 19907 Federal Law Gazette. I, 422. was introduced only very cautiously, is laid down in England in a draconian legal remedy. Until recently it was called Anton Piller Order and is now called Search Order, Part 25 Rule 7. It may be ordered that persons commissioned by the applicant, accompanied by - usually - several solicitors, search rooms under the control of the defendant for evidence can. The order takes the form of an order addressed to the respondent, the failure of which in turn results in the contempt of court being sanctioned. The instrument is used particularly in cases of suspected infringement of industrial property rights, but not only in this context. The issuance of the ruling requires that the applicant has submitted eight undertakings, including: to the effect that in the event of final failure, but also if the restrictive condition imposed by the court for the measure is not observed, compensation must be paid. In addition, there is an undertaking to maintain a bank account for a certain amount under the control of the solicitor and to insure the objects removed from the defendant's premises as evidence. Another undertaking provided there deserves special attention: c) Obligation to confidentiality It reads: “Not without the leave of the court, to use any information or document obtained as a result of carrying out this order, not to inform anyone else of these proceedings ... «This undertaking is of course only an excerpt from the wide range of undertakings that are intended to ensure the confidentiality of information. In Part 18.2 of the CPR it says today: "The court may direct that information provided ... may not be used for any purpose except ..." The court often only issues an order after the interested party has made a corresponding undertaking. The latter aspect plays a major role in so-called discovery orders, which today are of course called disclosure orders8See Part 25 Rule 1 (1) (h) »... an order (referred to as 'search order' under) section 7 of the Civil Procedure Act 1997 (order requiring a party to admit another party to premises for the purpose of preserving evidence) ". (1) (i)" ... (order for disclosure of documents before a claim has been made) ... " (1) (j) "... (order in certain proceedings for disclosure of documents ... against a non-party)" .. In a decision from 19539, Chantry Martin (a firm) v. Martin [1953] 2 AllE.R. 691 (CA) = [1953] 2 QB 286. the court allowed the plaintiff to inspect documents in the defendant's possession "on an undertaking by the party inspecting the documents and his solicitors not to devolve their contents to any person otherwise than for the purpose of the instant litigation ... «10 Regarding implied undertakings, see 2. a) .d) Undertakings in Lieu of an InjunctionOften an English court does not issue an injunction if the applicant is in the main thing is to commit oneself to the coveted omission by undertaking. Since, as will be shown (2nd before d)), the legal effects of an undertaking are equivalent to those of a court decision, one involuntarily wonders what can induce a defendant to such a total surrender. In any case, it achieves cost advantages. Be that as it may, such types of undertakings play a major role in practice. In this way, future violations of industrial property rights are very often prevented. For German observers it is noticeable that terms that need to be filled in, such as “not to infringe” are the order of the day. Based on the patent of an English company on the sleeping pill Valium11 Hoffmann-La Roche & Co. v. Sieczko, C. A. - [1968] Reports of Patent, Design and Trade Mark Cases 460, 466; Biba Ltd. v. Stratford Investment Ltd. [1973] Ch 281, 287 = [1972] 3 AllE.R. 1041, 1045. the undertaking read: "... not to infringe the plaintiff company's trademark and not to advertise, offer for sale or sell clothing under or by reference to the plaintiff company's trademark". Further examples are: Failure to use a characteristic part of a foreign company name12Ronson Products, Ltd. v. Ronson Furniture Ltd. 2 AllE.R. [1966] 381 .; Obligation to refrain from any construction work to the local authority that involves noise at night and on weekends13 Camden London Borough Council v. Alpenoak Ltd. a. o. 135 New Law Journal [1985] 1209. The undertaking was given "to the plaintiff" after the reasons for the decision. Obviously, however, it was assessed as being given to the court. The case also shows that many things that are regulated by public law in this country through administrative acts must be dealt with in the civil courts in England. The undertaking "was contained in a recital to a consent order" .. In the latter case, the previously issued temporary injunction with the same content was expressly repealed with regard to the undertaking that was later submitted. In another case, the landlord of a leased property committed himself to that of the tenant Only needed a few months of the year to remove fences during this time and to keep other areas free of disturbing objects described in more detail14Midland Marts v. Hobday [1989] 3 All E.R. 246 .. Already at the beginning of the last century, environmental processes played a role. A mining company undertook to treat the water that it wanted to pump from an abandoned mine that was to be put back into operation in such a way that it was "free from polution" before it was discharged into a river. Newton Colliery Ltd. [1908] 52 Solicitors' Journal 307 .. How much the psychological aspect of preventing a formal injunction by the court can play a role is shown by an antitrust decision, which in our case is of a purely public law nature, admittedly with legal recourse to the ordinary courts , would be 16Re Agreement of the Mileage Conference Groups of the Tire Manufacturers' Conference Ltd. Restrictive Practices Court [1966] 2 All E.R. 849 .. After a special cartel court had ruled that the behavior of tire manufacturers towards car rental companies violated »the public interest«, the defendant organization undertook through undertaking, »... not to give effect to the agreement in respect of specific restrictions nor to enter into nor make any agreement or arrangements of the like effect to which Part I of the Restrictive Practices Act, 1956 applied «. Consumer protection against inappropriate general terms and conditions is also organized purely under private law in Germany. In order to avoid a corresponding conviction in England, a bank undertook through undertaking to change its general terms and conditions accordingly if the court should find their inappropriateness. In fact, the court then limited itself to a corresponding finding17Director General of Fair Trading v. First National Bank Plc C.A. [2000] WLR 1353..e) Family Law Matters Although the expression "in lieu of an injunction" is not used, undertakings to avoid a court order also play a major role in family law matters. In one case of hostile disputes between spouses, it happens again and again that the husband, in order to avoid a court order, makes an undertaking to the court in the disarmingly simple formulation, "not to molest his wife." Hussain v. Hussain [1986] 1 AllE.R. 1961 C. A ..Occasionally the husbands' declarations of commitment contain specifications such as "... and not to return" 19William v. Fawcett [1985] 1 All E.R. 787., "... not to resort to the matrimonial home" 20Marchant v. Marchant [1967] Court of Appeal Transcripts, quoted from Foskett, the Law and Practice of Compromise [1996] 17.17. The current formulation today seems to be: "Not assault, molest or otherwise interfere with his wife" 21 Dean v. Dean [1987] Family Cases Report 96 = [1987] 1 FLR 517 C. A .. Undertakings are also not uncommon in matters relating to children. One at Atkins22S. Fn. 2, which is even binding for County Courts, provides for an undertaking by a custodian to bring the child back to the jurisdiction of this Honorable Court or to check the state of health of the child who has been allowed to travel abroad to report minors removed from the country23 nos. 276-278, printed under Infants .. In connection with the permission of persons, mostly family members, to enter the country, an undertaking of the "main income earner of the family" is planned to cover the costs of the person entering the country24S. Fn. 2 No. 61 printed under Immigration .. The corresponding problem is covered with us with maintenance obligations that the hosts submit to an authority, declarations of commitment, the legal nature of which is of course unclear. For German observers, the fact that the legal representation of Incapacitated persons in court in England are regulated in a much more flexible way than in Germany and neighboring legal systems. The “next friend” - now called the “litigation friend” -, usually one parent, of course, can file a lawsuit on behalf of the incapacitated person and then usually submit an undertaking to personally pay the other side's costs in the event of failure. Hill, Civil Litigation, 9th ed. [2000] 7,003; For the relevant forms, see Atkins (fn. 2) Cost Form No. 178, Actions, General Form No. 154..f) Forum Non Conveniens - stay of proceedingsThe court in a common law state has traditionally - and still does today outside the scope of the Brussels Convention 26 Basic decision: Airbus Industries GIE v. Patel a. o. [1998] 2 AllE.R. 257 (H.L.) - discussed in: Schlosser, IPRax 1999, 115; on the whole: the same, Recueil des Cours de l'Académie du Droit International de La Haye, in press. - Discretion not to exercise its jurisdiction if it is of the opinion that a court of another state is much better placed to rule the case. Famous is the Bhopal decision of the Federal Court of Appeals in New York27In re Union Carbide Corp. Gas Plant Disaster at Bhopal, India 809 F. 2d 195 (2nd Cir.) .: The execution of the damages litigation at the New York headquarters of the company defendant according to the principles of liability enforcement against a parent company was refused on the grounds that the Indian courts were for The courts make their willingness to stay the proceedings before them - interestingly, mostly not: to dismiss the action as inadmissible - very often dependent on the defendant submitting a series of undertakings. They consist mainly in the fact that he accepts the international jurisdiction of the court which, in agreement with him, considers the court initially brought before the more appropriate, and that he does not raise the statute of limitations if the claim before the court designated as "suitable" is not statute-barred could be considered if the lawsuit had been filed there at the same time as before the Forum Non Conveniens28Examples from the USA; The latest example from England limited to the statute of limitations before the Pakistani courts: Baghlaf v. DNSC 1 Lloyd's Reports [2000] 1 ff .. In one case, the arrest of a ship was lifted after the owners of the ship had undertaken to the owners of the damaged cargo, upon their request, that an unnamed solicitor would be given power of attorney to accept service (which under English law is equivalent to recognizing the jurisdiction of the English High Court) 29Galax Energy Int'l Ltd. a. o. v. Assurance Foreningen Skuld [1999] 1 Lloyd's Reports 249 .. Undertakings demanded by the courts are particularly common in the USA in the case of claims for damages by foreigners, in particular for their product liability claims. In one case, the US court wanted to facilitate the work of the Düsseldorf Regional Court, which was held to be responsible, as much as possible and, before citing the ideas of Forum Non Conveniens, requested the defendant to make the following declaration30 Baumgart v. Fairchild Aircraft Corp. F. 2d 824 [5th Cir 1993]; the case is also reported by Habscheid, Grenzüberquerendes (Internationales) Insolvenzrecht der United States of America and the Federal Republic of Germany (1998), 72.: »... (3) defendant shall formerly waive in the German proceedings any statute of limitations defense that has matured since commencement of these actions in Texas state court; (4) if the German statute of limitations on the courses brought before this Court is shorter than that of the state of Texas such that the action would be bared by German law but not by Texas law, defendant shall formerly waive any such defense in the German proceedings; (5) defendant shall make available in Germany all relevant witnesses and documents as ordered by German courts; (6) defendant shall formerly agree to satisfy any final judgments rendered by the German courts to the extent allowed by the bankruptcy reorganization plan ... «The conceptual bridge of an undertaking will already fall tacitly in this decision calmly. However, the defendant is of course exposed to the risk of being prosecuted for contempt of court if the conditions imposed on him are not complied with. G) Personal undertakings of a solicitor undertaking can also be submitted by third parties who are not parties to the litigation31 Lexmar Corp. a. a. v. Nordist Skibsrederforening a. a. [1997] 1 Lloyd's Reports 289..The latter happens particularly often when the solicitor of one of the parties to the proceedings personally, but in this capacity, submits an undertaking32Example Udall v. Capri Lighting Ltd. [1988] QB 1907 C. A .; Bray v. Stuart West & Co. [1989] New Law Journal Reports] 1953 .. Similar to Germany only the defense counsel, but not the accused himself, has the right to inspect files (see § 147 StPO), in England a solicitor sometimes pledges his professional prestige and his risk in the event of misconduct to induce the court to take action in favor of its client; hence the frequently used phrase, a party to the proceedings "undertakes by his solicitor". In one - apparently politically very sensitive - case, a solicitor who represented a prison inmate and wanted to denounce allegedly untenable conditions in the prison was given access to no fewer than 6,800 pages of documents, 800 of which were read out in the public trial. Due to a personal undertaking, the solicitor was granted access to the fact that the documents made available "[would] not be used for any other purpose except for the case at hand." The permission that the solicitor had given a journalist to inspect the 800 documents read out at the main hearing and to write an article on this basis was his undoing in all instances. He was in the Contempt of Court, even though the courts certified that he had acted in good faith and therefore refrained from sanctioning a sanction.33 In addition, he was able to see two judges of the House of Lords on his side: Home Office v. Harman [1982] 1 all E.R. 532 .. Also in guardianship matters, the courts like to see the professional reliability of a solicitor pledged by an undertaking made personally by him. Whenever objects belonging to a person incapable of acting are to be kept in custody or otherwise under the control of a solicitor, the latter undertakes to deal with the property in a certain way through undertaking vis-à-vis the court34S. Atkins (fn. 2), under Mental Health Review Tribunals Nos. 33, 35, 89 .. In connection with a search order (see II.1.b)) items that have been taken away must only be reported to the solicitor of the respondent (and alleged infringer ) and only after undertaking "to retain the article in safe keeping." The courts apply very strict standards in an effort to make undertakings personally submitted by solicitors reliable. A decision that affected three different solicitors who were not linked to one another is particularly startling35P for German observers. S. Refson & Co. Ltd. v. Saggers a. a. [1984] 1 WLR 1025 .. In three completely different »ex parte« 36 Corresponds to our procedure without prior hearing of the respondent. In the rigorous proceedings for interim relief, undertakings had been submitted to immediately take the first step to bring the action into the main matter, which did not yet mean service of the action, but only the issue of an official request from the court to the defendant to take note of the action and to answer it37 "To issue a writ forthwith" - today it would read: "to issue a claim form" .. Over the Christmas and New Year days in the offices of the solicitor the fulfillment of this promise was delayed by two to three weeks. The court that accepted the solicitors' personal undertakings considered this a contempt of court, found any High Court judge empowered to accept a supervisory authority over the solicitor, but graciously waived punishment and limited itself to a stern warning to the Profession, not without receiving an "assurance" from the solicitor that they wanted to forego invoicing their clients as far as work was concerned that had been caused by failure to perform the undertaking. Legal treatment of undertakings in the country of origin The most important statement about the legal nature of an undertaking is this: It is considered to be equivalent to a court order with the same content. In the County Court Rules, which have been partially and precisely maintained as Schedule 2 to the CPR (Order 29 Rule 1A), it is even expressly stated that the regulations on orders also refer to undertakings, but with the addition "with the necessary modifications «. But this is only the rule that also otherwise applies 38 It goes back to London & Birmingham Railway v. Grand Junction Canal 6 [1835] 1 Ry. 224, quoted from Alridge, Edy & Smitz On Contempt [1999] 12-170 footnote 42; confirmed today in Midland Marts v. Hobday [1989] 3 all E.R. 246; Camdon London Borough Council v. Alpenoak (footnote 13); Hussain v. Hussain (footnote 18) C. A .; L Capistrano S. A. v. ATO Marketing Ltd. [1989] 2 AllE.R. 572. Earlier case law in Bratza, in: Halsbury's Laws of England, 4th edition, Ed. Reissue 1998 Vol. 9 (1) Contempt of Court Par. 482 .. For this purpose it is often, but apparently not always, somehow integrated into the formal decision of the court39Hussain v. Hussain (fn. 18) - "recited in the formal order"; Biba Ltd. v. Stratford Investment Ltd. (Fn. 11) - "The undertaking was embodied in the written order of the court which otherwise did not make any order on the plainti ff. Companies' motion" .. The already mentioned decision of the Higher Regional Court Karlsruhe of December 9, 199440ZZP Int. 1996, 91. was based on a decision of the High Court, which is embedded in the phrase "and upon the Defendant by its Counsel undertaking". As a result: The breach of an undertaking is a contempt of court. It can therefore be punished, too Of course, this core statement needs to be described in more detail in various respects: a) Necessity of an obligation to the court It is necessary that the obligation is that the person making the obligation to the court The undertaking is instructed about this fact and that a breach of an undertaking is equivalent to a contempt of court and can be punished accordingly. Marchant41Fn. 20. Despite very similar wording, but decided differently in the other cases mentioned under II. 1.e). the undertaking pronounced by the husband "not to resort to the matrimonial home ... or to molest W ...", which was contained in a settlement in a legal dispute between married couples, was not considered to be an obligation to the court. As a result, the husband could not be punished for breaching the undertaking. Nevertheless, an undertaking made before the court can also be part of a court settlement42 Foskett, The Law and Practice of Compromise, 1996, p. 17 must be submitted to the court, does not exclude that it is also implied in another declaration addressed to the court, especially in an application. So far, this has only become practical in connection with the request that the opponent or third parties should not disclose information material. For the first time, this was found in a decision from 194843Alterskye v. Scott [1948] 1 AllE.R. 469 .. The defendant was accused of not having named all the documents essential to the litigation. He admitted this, but argued that there was a risk that the plaintiff would improperly use the documents for purposes outside of the proceedings. Therefore, an "undertaking by the plaintiff not to use any of the documents in the action or any of the documents disclosed in the further affidavit for any interior or collateral purpose" was desired. The judge thought that such an undertaking was self-evident because it was implicit in the application for disclosure; however, if it concerns individual, particularly sensitive documents that have to be specifically identified, the defendant can apply for the submission order to be made dependent on the desired undertaking. This type of implied undertaking of using disclosed information material only for the purposes of a specific process , later became an obiter regarding the personal undertaking of a Solicitor44S. see II.1.g). confirmed by the House of Lords45 Home Office v. Harman [1982] 1 All E.R. 532. For the facts and the background, see footnote 33 .. The last-mentioned decision, which was given with a 3-2 judge's vote, caused quite a stir. The British political public would not allow documents read out in public trial not to be available to the press. The relevant rule of the Rules of the Supreme Court was then changed46 Order 24 rule 14 A..b) Enforcement of the obligation arising from an undertaking The most important question is, of course, what sanctions the common law legal systems provide in the event that someone does not comply with the undertaking that he handed in. The basic message is: The court can impose fines or imprisonment for Contempt of Court. For a long time there was apparently a distinction between whether the undertaking was submitted to a county court or the high court. Rule 29 (1) upheld in the County Court Rules47, see footnote 1, only mentions detention as a sanction, while the RSC48E also upheld see footnote 1. 45 r 5 (1) (a) (i ) there is also talk of confiscation and sequestration49S. Ronson Products Ltd. v. Ronson Furniture Ltd. [1966] 2 AllE.R. 381: "... including fines, sequestration of goods, chattels and personal estate and the rents, issues and profits of the real estate of the defendants" .. In sect. 16 of the Contempt of Court Act is assumed as a matter of course that the High Court (Superior Court) can also impose fines. Two things are of interest to a German observer: On the one hand, it is at the discretion of the court whether and how someone is punished for Contempt of Court On the other hand, the English courts have little scruple about holding directors of corporations personally liable, even with imprisonment, if the undertaking of the company has not been complied with; but only if they are really personally responsible50 Hamann v. Secretary of State [1983] 1 AC 280 = AllE.R. 532 (H.L.) .. Details of how English courts generally punish the contempt of court and, in particular, how they respond when the contempt of court insists on disregarding an undertaking are of lesser interest for the purposes of this consideration. It is not possible to impose and enforce fines across borders. In recent times there have been promising attempts to abandon the principle of mutual isolation in the execution of sentences51For more details Schlosser as footnote 26 .. Certainly, however, penalties for contempt of court are not affected. As a basis for the general question, which cross-border ones Undertakings can have legal effects, but it is important to be accountable about how undertakings are sanctioned if they clearly favor other parties and those involved in the litigation or third parties.Can the beneficiary then derive rights from them? Aa) Undertakings of the parties involved in the process Disregarding the special case that a solicitor personally made an undertaking in favor of another person, usually his client's opponent, (see below bb)), see above one is confronted with the unsystematic and pragmatic way in which English courts approach the problem. Really catchy statements about what principle is and what are exceptions are missing, but the principle seems to be that the beneficiary party is not limited to enforcing the imposition of penalties in court until the will of the unwilling party is bent is or is sufficiently "punished" for violating an imperative to cease and desist; it can also enforce undertaking in court. A sanction on the Contempt of Court can therefore also be a court order to keep the undertaking contained in the undertaking in favor of a person or to pay compensation for non-compliance. However, a double initiative at the court is necessary for this. To this end, the beneficiary must first apply to the court whose decision the undertaking is considered to be specific.52 Fletcher Sutcliff Wild Ltd. v. Burch [1982] Fleet Street Reports 64; Digital Equipment Corp. v. Darkcrest Ltd. [1984] Ch 512 .. The latter is primarily considered necessary because this court has the discretionary decision as to whether and, if so, how a violation of an undertaking is sanctioned. This also and especially applies if the undertaking aims to pay compensation in a certain case, which is of course usually restricted by the addition, provided and in the amount as the court will recognize compensation. After a measure of interim legal protection in the main proceedings brought by the applicant, a counterclaim-like application similar to our Section 717 (2) sentence 2 ZPO is not admissible until the court has made an award of damages to the persuant to the undertaking in that person's favor «53 Fletcher Sutcliff Wild Ltd. (Fn. 52) - as already mentioned, without it being evident whether this previous decision must also specify the amount of damage. Based on this specification, a claim must then be made for payment of damages. It is not quite clear whether the specification by the »infringed Court «has to happen numerically. It would make little sense, even if this were the case, to request an additional action for compensation, even if it would then usually lead to a summary judgment, i.e. the defendant no longer comes up with a substantive one due to the total hopelessness of his counter-arguments Defense of the case in a trial. It is important, however, that the beneficiary party does not have a strict right to comply with the undertaking, only that the court exercise its discretion in a responsible manner54 Re Hudson [1966] Ch 209 = [1966] 1 All HE 110; Fletcher Sutcliff Wild Ltd. (Fn. 52); Sheltenham & Gloucester Building Society v. Ricketts [1993] 4 All R.R. 276, 281 C. A .. The obligation given with the undertaking is only ever viewed as given to the court and not also as given to the opponent. In theory, all sanctions imposed by the court should also be of a repressive character and should not constitute compensation for the beneficiary 55 Alredge, Eady & Smith, On Contempt [1999] 2-173 - with reference to, inter alia. on re Hudson (fn. 54) .. In those cases in which the sanctions consist in the fact that payment is ordered to the beneficiary party, the compensatory nature of the decision cannot be denied, even if the beneficiary party does not have a strict right on the compensation has. In three cases, the English courts have declared the practical inconvenience of two proceedings to be unnecessary if they were no longer able to derive any meaning from the second one Marts Ltd. v. Hobday a. o. [1989] 3 All E.R. 246 Ch. Or any other cause of action 57 In Udall v. Capri Lighting Ltd. [1987] 3 All E.R. 262, 268 C. A. states that one of the possibilities of enforcing this as a beneficiary of an undertaking by a solicitor is "an action at law, if there is a cause of action". corresponds to the one who agrees anyway. This applies above all if a licensee of an owner of an industrial property right promises to refrain from certain types of use not covered by the license agreement. Then, as it is said, the person injured by disregarding an undertaking is "allowed" to assert the amount of his damage already in the application to impose sanctions because of the contempt of court. (2) Undertakings to pay a certain sum of money Undertaking on a certain amount of money to be paid and not on one that the court will order to be paid, it is of course treated as a conviction for a payment of money. In one case in which the husband had undertaken to pay the school fees for his son, an attachment of his bank account was therefore ordered immediately on the basis of the obligation. Gondolfo [1980] 1 AllE.R. 833 .. (3) Undertaking to pay damages when measures of interim legal protection are repealed The third exception exists in cases in which the undertaking is aimed at damages in the event that the adoption of measures of interim legal protection turns out to be unjustified. If there is no doubt about the need to order compensation and the amount of the damage, there is a simplified procedure. If there is only clarity about the need to order compensation, a simplified procedure can be used to determine the amount of the damage. The applicable principles have been summarized by the Court of Appeal in a recent ruling59 Sheltenham & Glouchester Building Society v. Ricketts (fn. 54) .: Whether and to what extent the payment of damages is ordered depends on the discretion of the court; the respondent has only undertaken to reimburse the amount of damage that the court will order. However, if the measure of interim legal protection, which the undertaking in damages serves to safeguard, is lifted before the start of the trial, the court that issued this order can, in clear cases, immediately ask the applicant to pay damages condemn. If the amount of damage is not liquid, the principle of the obligation to pay compensation can be established within the framework of this procedure and an inquiry as to damages can be ordered, which is then followed by a sentence to pay compensation in the event of evidence of damage. The court can, however, also leave the question of the obligation to pay compensation open and leave the decision to the judge who will conduct the oral hearing (trial). In any case, the defendant in the main proceedings can indirectly announce a kind of counterclaim in a binding manner. In the above-mentioned case ruled by the Court of Appeal, the court was allowed to postpone the decision on the defendant's claim for damages until the time after the judgment in the main matter had been issued, because the Freezing Injunction had been issued on an incorrect factual basis, it was therefore "due to lack of grounds" had also been repealed, but there was nevertheless the possibility that the plaintiff with his action based on fraudulent machinations would predominantly prevail.bb) Undertakings of the solicitor of a party If a solicitor has made an undertaking in this capacity, there is also that the High Court claims some form of disciplinary oversight of this profession which can be exercised by any of its judges in any case in which a solicitor is involved, either as a person or as a party advocate. In 1987 the Court of Appeal summarized the applicable principles60 Udall v. Capri Lighting Ltd. [1988] QB 1907 .: Within the scope of its implicit supervisory authority over the profession of solicitor, the court can request a solicitor to perform a certain service to which he has committed himself through undertaking. This route is often used to save the costs of a normal lawsuit. It is true that the powers of the court are to be exercised at its own discretion. The type of procedure is also qualified in sibylline as "compensatory and not punitive [but still retaining] a disciplinary slant". In any case, in these proceedings, the solicitor is regularly sentenced in the event of non-compliance with an undertaking to comply with the undertaken obligation. In the underlying case, a solicitor had personally taken care of the encumbrance of the real estate assets of his two defendant clients. The fulfillment of this undertaking had become impossible because of the death of one client and the sale of the other's property. The Court of Appeal held that the courts were empowered to order compensation payments from the solicitor and referred the case to the Court of First Instance to determine the amount of the damage. Treatment of undertakings in Germany Since an undertaking is on an equal footing with a corresponding court decision, the first question is whether an undertaking like a court decision is subject to recognition and enforcement (1.). If an undertaking is directed towards a procedural act before a German court, then one does not get much further with the idea of ​​the obligation to recognize and enforce a foreign decision. The question then goes as to whether a binding has arisen in any other way that the German court must or may at least observe (2.). 1. Transnational Enforcement of Undertakings Is it about undertakings that are brought before a U.K. court. or Ireland's, then of course the first question (a) is whether they can be enforced under the Brussels Convention. For undertakings addressed to the courts of other countries, the corresponding question is: (b) Are they subject to recognition and enforcement according to Sections 328, 722 f. ZPO? However, there are two other transnational enforcement problems: (c) If someone undertakes in an undertaking not to dispose of an item or right, does Section 136 of the German Civil Code apply? (d) If an undertaking relates to a matter that would have to be dealt with in Germany in the voluntary jurisdiction procedure, Section 16 of the FGG and the principles governing the enforcement of foreign decisions of the voluntary jurisdiction could be applicable which could become practical with undertakings, however, is excluded here: the question of whether a title is sufficiently definite for purposes of transnational enforcement. If, for example, a spouse undertakes "not to molest his wife" 61S. II. 1.e)., It is questionable whether the title is sufficiently determined for an enforcement based on the ZPO and not according to § 33 FGG in this case. B. OLG Karlsruhe, FamRZ 1984, 184: "to bother, to insult" .. The extent to which foreign titles have to meet the German requirements for the specificity of enforcement titles, even if they are otherwise subject to enforcement by the State Treaty, is not yet complete Clarified question 63S. II.1.a) on this in detail Kropholler, European Civil Procedure Law, 6th edition 1998, Art. 13, marginal no. In any case, no higher demands can be made on the certainty of undertakings than on the certainty of court decisions. A) Applicability of the Brussels Convention If the Brussels Convention is deemed to be applicable, then the determination of international jurisdiction and the justification of the Lis pendens a problem. One could come up with the idea of ​​viewing the procedure that ends with the submission of an undertaking as a separate procedure. But there are in the U.K. not a procedure that is primarily aimed at inducing the opponent to submit an undertaking. The submission of an undertaking is always either the conclusion of a procedure initially aimed at an original court decision or an interim event in an ongoing procedure. These procedures are decisive for determining jurisdiction. However, it is very natural to consider an undertaking by one of the parties in a civil and commercial matter as a decision i. S. v. Article 25, which is subject to transnational recognition and enforcement. Aa) Cross Undertaking in Damages For the course of the investigation, it is best to first take the prototype of an undertaking aimed at the other party to the proceedings, namely the Cross Undertaking in Damages64S. II. 1. a) .. In favor of the defendant against whom a freezing order or a search order has been issued, the applicant has undertaken to pay compensation in the event of failure in the main proceedings, which the court will order. Such an undertaking is neither determined in the amount of the damages to be granted to the respondent nor does it contain an unconditional statement in terms of the reason. Whether the judge orders that the party ultimately unsuccessful in the main has to pay damages is at his discretion. Involuntarily, one wonders why an undertaking is necessary at all if the whether and the amount of the compensation is based on a court decision that its addressee would have to follow anyway. The cross undertaking in damage basically has the function of providing a legal basis for a judicial discretionary decision on damages. However, this discretionary decision can only be made by the court that was authorized to do so by the undertaking. An undertaking can therefore also be viewed as a conclusive jurisdiction agreement within the meaning of Art. 17 Brussels Convention, which applies to all disputes related to the enforcement of the undertaking. It is initially unilaterally binding, but precisely for that reason it is irrevocable. If the beneficiary of the undertaking comes back to the latter, he has accepted the unilateral commitment of the author of the undertaking. The same interests exist as Art. 17 EuGVÜ has in mind. Mutual submission to the jurisdiction of the court has come about on both sides in writing; if the beneficiary applies to the English court to encourage the author of the undertaking to provide the promised service, i.e. also to pay damages in a certain amount, he / she accepts the undertaking to a certain extent. Should it occur to the beneficiary to turn to a foreign court about the enforcement of the undertaking, for example where the author of the undertaking has meanwhile moved, the action would have to be dismissed as unfounded because there is a basis for a claim or there is no legal basis. In application of foreign law, a court can make organizational decisions that it could not make under its own law65BGHZ 47, 324 = NJW 1967, 2109 - Separation of table and bed; Geimer, IZPR, 3rd ed. 1997, para. 2640., even if foreign law for its part authorizes the parties to grant the judge powers to bring legal action. However, the author of the undertaking has only granted the court to which the undertaking is directed. However, the problem of the execution of undertakings under the Brussels Convention arises when the undertaking aimed at compensation has been made more concrete. It is conceivable that the undertaking itself involves a payment of a sum of money that is not dependent on the judges' discretion. From previous English practice, cases have been reported in which someone undertakes to provide maintenance payments through undertaking66S. II.1.e) .. It is not inconceivable that the English practice will recognize the frailty of an undertaking of the hitherto customary layout and strengthen the legal position of the defendant, who will ultimately prevail in the main proceedings. It could also demand an undertaking from the applicant to pay a certain sum as lump-sum compensation in the event of loss of legal proceedings. Above all, however, the problem of cross-border enforcement arises if the English court itself has decided that a certain amount is to be paid as compensation due to an undertaking. The fact that the beneficiary theoretically does not have his own right from the undertaking, rather only After the undertaking has been specified, the beneficiary has practically the same options for indirect execution as a beneficiary of a non-monetary payment judgment. The only difference between a monetary payment judgment and an undertaking that is specific to the payment of a sum of money is that in the latter case, enforcement does not take place with the normal means of enforcement under civil proceedings, but with the sanctions customary for Contempt of Court67S. II.2.b) ..The court's discretion is reduced to aspects, which is why, in exceptional cases, sanctions are not imposed. In the other types of enforcement as well, however, the enforcement authority may in exceptional cases refuse or postpone enforcement due to general regulatory clauses. It is therefore not justified to treat a specific undertaking in damages or an undertaking otherwise specified by a court decision on the payment of a certain sum of money differently from court decisions that urge a person to pay a sum of money. Bb) Undertakings in lieu of an InjunctionUndertakings can also be made by others Content have as an obligation to pay money. Above all, undertakings in lieu of an injunction68S should be mentioned. II.1.d) .. In the category of undertakings that are not aimed at the performance or omission of procedural acts in other proceedings, there is also an "undertaking not to use information ..." 69S. II.1.c) .. It is namely not a fictitious injection that would be aimed at the omission of a process. Rather, the use of the information outside of the ongoing process should be prevented. In terms of family law matters, this includes undertakings not to bother the other spouse. The procedures on which such orders are based correspond to procedures that aim to prevent unwanted advances by one spouse living apart from the other.70 For German law Gernhuber / Coester-Waltjen, Familienrecht, 4th ed. 1994, § 23.6 civil disputes that lead to a decision that is enforceable71 OLG Karlsruhe, 30. 9. 1988 - 18 WF 70/88, FamRZ 1989, 77., whereby in the present context it does not matter whether a normal civil case or an interim order in 72 On this question see Zöller / Philippi, ZPO, 22nd ed. 2000, § 620 marginal no. 55 .. Such an undertaking has the peculiarity that it no longer needs to be specified by a judge's verdict, rather it is meant in absolute terms. It must therefore be transnationally enforceable under the Brussels Convention. The same principles apply as the enforcement of court decisions that are not aimed at providing a cash benefit. In the case of undertakings that are aimed at an omission, enforcement is carried out by declaring them enforceable by a German court. The declaration of enforceability must be added to the threat in the sense of Section 890 (2) ZPO73So the solution that is predominantly favored for court decisions: see Schlosser, EuGVÜ, Art. 9..b) Recognition and enforcement according to §§ 722 f. In connection with § 328 ZPO According to the correct view, the recognition of a foreign court decision according to § 328 ZPO does not require its legal force even outside the EuGVÜ74 Stein / Jonas / Roth, ZPO, 21st ed 1998, § 328 marginal no. 73; Schlosser, RIW 1983, 473, 480; Geimer (footnote 65), para. 2856; a. M. Schack, IZVR, 1996, no. 821; Nagel / Gottwald, IZVR, 4th ed. 1996, p. 396; BayObLG, March 29, 1990 - BReg J 2 J1 / 89, FamRZ 1990, 897, 898 .. At the same time, one wants to be subject to recognition according to § 328 only those decisions that are meant "final", as in the first instance with the Appealable judgments, but not measures of interim legal protection75 Stein / Jonas / Roth (footnote 74), para. 63; a. M. Schack, IZVR, 2nd ed. 1996, para. 826 .. However, neither the text of the law nor the purpose of the law cover this limitation. In contrast to the transnational enforcement of a judgment, one must also recognize the effects of decisions that are only meant temporarily, which is also a matter of course in the event of the confiscation of assets to acknowledge. This has a certain significance for the cases to be treated immediately under c). Otherwise, however, the effects of undertakings that do not have to be declared enforceable but only have to be "recognized" are inconceivable. Because it is precisely the typical content of an undertaking that the declaring person undertakes to do something, not that he makes dispositions that would be immediately recognizable as a court decision. Is an undertaking against a court in a common law state other than the U.K. or Ireland, its suitability as a title that could be declared enforceable depends on whether it is equivalent to a foreign judgment that within the meaning of section 723 (2) sentence 1 under the law applicable to that court has become legally binding. These prerequisites are certainly present if it is an undertaking in lieu of a permanent injury, which should not only apply until a court decision on the main matter, but already represent the main matter decision itself. The same applies to a specific undertaking in damages, the assumption of specific maintenance payments for the benefit of a person as for an undertaking not to pass on information received. The fact that the foreign court can dispense from complying with an undertaking in the event of a change in circumstances does not stand in the way of equating it with a "final" decision, just as the fact that maintenance decisions can be changed does not prevent them from qualifying as final decisions. Measures of interim legal protection are kept outside the Brussels Convention As stated, for the most part not suitable for transnational enforcement because they are not a "final" decision in the sense that it is interpreted as a requirement for recognition in Section 328 of the German Code of Civil Procedure. Since this assumption is not correct, however, the question arises whether measures of interim legal protection are then suitable for transnational enforcement if they have become formally final within the interim legal protection procedure. There are various reasons against such an assumption. The legislature has envisaged an extremely cumbersome procedure which in practice amounts to bringing a new action in Germany on the binding basis of the foreign decision. Such a procedure is only appropriate if the foreign decision to be enforced is itself a final decision on the main substance; however, the question can ultimately be left on its own. In the case of an undertaking, you are dealing with a material intermediate right. Instead of providing for temporary legal protection, the legal systems can also develop a substantive intermediate law. In Germany this is typically done in the form of possessorial claims (§§ 861, 862 BGB). The parties can of course also create such a material intermediate right through agreements. As soon as the beneficiary of an undertaking comes back to it via the interim regulation, an agreed interim regulation also exists from the point of view of German law. It is final for the meantime, even if the court can release the obligation arising from an undertaking in the event of a fundamental change in circumstances. In some respects, substantive interim claims and remedies for interim relief may be interchangeable; or rather, the former do not like to become the main thing in relation to the latter. 76For more details on this, Schlosser, in: FS Henckel, 1995, p. 737 ff .. Court decisions on material interim claims cannot be banished from the scope of Sections 722 f. ZPO .However, undertakings that in turn only contain the obligation to contribute to an interim solution are rare. C) Due to § 136 BGB, automatic "execution" of an undertaking to refrain from legal transactions? The question of whether the effects of § 136 has been discussed very little so far. 136 BGB can also apply to a foreign court judgment that has issued a prohibition of disposal. However, there is no reason to withhold this effect in principle from a foreign court decision that is subject to recognition77Basedow, in: Schlosser (Ed.) Materielles Recht und Prozessrecht ..., 1992, p. 149; Schlosser, EuGVÜ, 1996, Art. 26 para. 3 .. However, in most foreign laws there is no provision corresponding to § 136 BGB. Foreign decisions, however, cannot be recognized with effects that they do not even have in their country of origin. However, the effect laid down in Section 136 of the German Civil Code (BGB) must be viewed as a case of automatic enforcement of a decision, similar to design judgments or judgments on levy under Section 894 ZPO automatically enforce a declaration of intent. In contrast to the design effects that can be recognized without a declaration of enforceability, the fiction of § 894 ZPO is viewed as an enforcement effect which, if not yet established according to the local law of the judiciary, can only be brought about by the German declaration of enforceability78Geimer (footnote 65), No. 3122 .. Functionally, the fiction triggered by § 136 BGB also corresponds to the execution of the underlying judiciary. It is therefore not necessary as a prerequisite for the applicability of this standard that the disposition prohibited by the foreign judiciary is subject to German law. Conversely, it is overall system-appropriate to make the triggering of the fictional effect provided for in § 136 BGB dependent on the declaration of enforceability of the underlying decision, although admittedly the inconsistency remains that such a fiction has hardly any effects like the fiction of § 894 ZPO, as are other enforcement measures , may remain restricted to the territory of the state of recognition and execution d) Undertakings in the field of voluntary jurisdiction An undertaking refers to a procedure that would be a procedure of voluntary jurisdiction in our case, or to an act whose legality a court of Voluntary jurisdiction would have to decide, s

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