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Klauzula porządku publicznego a uznawanie zagranicznych orzeczeń, których przedmiotem jest uznanie wyroku lub stwierdzenie jego wykonalności

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Zachariasiewicz M.
Problemy Prawa Prywatnego Międzynarodowego
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2019
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vol. 24
21-46
EN
The paper is devoted to the admissibility of recognition and enforcement of a judgment of a foreign court, the subject matter of which is recognition or declaration of enforcement of a judgment from yet another state (judgment on judgment). The issue is discussed in particular with reference to the public policy exception which constitutes a ground for refusal of recognition or enforcement of foreign judgments, both under Polish domestic law (the Code of civil procedure) and European law (Brussels I bis Regulation). It remains controversial whether the judgments on judgments should be recognized, thus benefiting from the so called “parallel entitlement”. The article takes a comparative approach, examining solutions adopted by various legal systems and analysing arguments for and against recognition of such decisions. The author takes the position that they should not be recognized (and that their enforceability should not be declared) in Poland, both under the Code of civil procedure (as with respect to judgments originating from non-EU states), as well as under EU legislation, in particular Brussels I bis Regulation. It is advocated that the concept of a “parallel entitlement” should be rejected.
2
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Swobodny przepływ dokumentów w Unii Europejskiej: znaczenie i oddziaływanie rozporządzenia 2016/1191

100%
Zachariasiewicz M.
Problemy Prawa Prywatnego Międzynarodowego
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2021
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vol. 29
91-123
EN
The article is dedicated to the (still relatively unknown) EU Regulation 2016/1191. The Regulation disposes of some of the formalities with respect to circulation of the public documents within EU. In particular, no legalization in any form, including the apostille under the Hague Convention, will be needed with respect to documents covered by the Regulation. Unliked originally planned by the Commission, the Regulation does not, unfortunately, completes a more challenging goal of mandating recognition of the civil status throughout the Union. This issue still remains subject to national conflict-of-law rules. Moreover, the scope of Regulation is relatively narrow. It does not, again regrettably, apply to many public documents which are crucial in cross-border transactions (excerpts from commercial registers, powers of attorney for sale of immovable property). The author analyses to what extent Regulation 2016/1191 offers progress in circulation of documents. This question is first raised in light of the long standing application of the Hague Apostille Convention. The author then attempts to discern the effective role of the Regulation given the fact that under Article 1138 of the Polish Code of Civil Procedure, no legalization in any form is in principle required for the foreign public documents to be treated as authentic and official proof in Poland (although the practice often is to ask for the apostille even if not required by law). Still, the Regulation 2016/1138 might come of assistance for the parties in some respects. First, it will facilitate acceptance of Polish public documents in those Member States, which have so far required apostille. Second, the Regulation may help to overcome an incorrect practice in Poland of requiring apostille by the officials, where Article 1138 actually dispenses of such formality. Third, the Regulation introduces an administrative cooperation based on the IMI system which allows to verify doubts as to the authenticity of the public document from another Member States. This last feature of the Regulation, it is argued, may prove of its true value to the freedom of circulation of public documents within the EU.
3
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Spadek po Emilii: studium przypadku z zakresu międzynarodowego prawa spadkowego i przepływu dokumentów w Unii Europejskiej

100%
Zachariasiewicz M.
Problemy Prawa Prywatnego Międzynarodowego
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2022
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vol. 30
173-202
EN
The presented case study builds upon a fictious factual scenario involving transnational succession. It tells a story of Emilia - a national of a Member State who emigrates to another Member State, establishes a successful business and marries a national of that other State - also a women. She dies during COVID-19 pandemic and leaves an estate comprising immovables and other assets located in a number of states. The case study touches upon various legal questions arising under Regulation 650/2012, Regulation 2016/1191, and the Hague Apostille Convention. It invites the trainers and students to consider concepts such as the place of habitual residence of the deceased, the European Succession Certificate and the national instruments certifying the inheritance, as well as the will and the donatio mortis causa. It asks questions relating to the formalities that are necessarily to complete a transnational succession. Notably, it lays out a problem whether a succession in a same-sex marriage - concluded validly in one Member State - should be accepted in another Member State that does not know such a concept in its domestic law.
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