The Orams Case, the Judgments Regulation and Public Policy: An English and European Law Perspective

AuthorPhoebus Athanassiou
Publication Date01 Dec 2009
16 MJ 4 (2009) 423
P A*
Using as a star ting point the landmark ruling of the European Cour t of Justice in
Apostolides v. Orams this Article examines the interpretation of the concept of public policy
and its concrete ap plication in the jurispruden ce of the English and other nati onal and
supranational courts as a bar to the rec ognition and enforcement of foreign judgments,
with an emphasis on situati ons where the competing acts of unrecognized foreign states or
governments are at stake.
Keywords: Judgments Regulation; foreign judgments; recognition and enforcement;
public policy
e Court of Justice of the European Union has recently ruled that a judgment handed
down by a court in t he Republic of Cyprus is to be recognize d and enforced throughout
the European Union (EU), in accordance with t he Brussels I Regulation (hereinaer the
‘Judgments Regulat ion’),1 even where it concerns land located outside the government-
* Legal Cou nsel, European C entral Bank (E CB). e views expresse d in this Ar ticle are purely pe rsonal
and do not represent t hose of the ECB or the Euro system. is Art icle was accepted for publ ication on
26 October 200 9 and was last revis ed on 23 January 2010.
1 Council Re gulation ( EC) No 44 /2001 of 2 2 December 2000 on jurisdic tion and the recog nition and
enforcement of judgments in civil and comme rcial matters (hereaer the ‘Judgme nts Regulation’ or the
‘Regulation’) [20 01] OJ L12, as amended.
Phoebus Athana ssiou
424 16 MJ 4 (2009)
controlled area.2 e ruling of the European Court of Justice (ECJ), as it then was, is both
of general sig nicance (as it elaborates on the scope of applicat ion of the acquis i n part
of the EU) and of specia l relevance to disputes, actual or potential, pitting thousa nds
of Gre ek Cypriots, forcefully dispossessed of t heir properties in the a ermath of the
Turkish i nvasion of Cyprus, against their current oc cupiers. Regard being had to its
precedential value and to its likely consequences for comparable enforcement claims
brought anywhere in the EU by the rightful owners of land situated to t he north of the
Green Line, the ECJ ru ling no doubt deser ves a modicum of attention. No less worthy
of attention is the follow-up to that ru ling in t he United Kingdom where the Court of
Appeal (Civil Div ision) rendered its judgment in the Orams litigation on 19 January
2010. 3 More generally, it is not without interest to consider why enforcing the C ypriot
court judgment i nvolved in the present case ha s not been (and could not be) deemed to
contradict public policy in the UK. Perhaps more importantly, what does its enforcement
by the Court of Appeal have to say about the status of public policy justications as a bar
to the recognition, in that jur isdiction, of foreign judgments. While focusing on Eng lish
law precedents, the  ndings of this inquir y are of wider relevance for t he interpretation
of the ‘public policy clause’ in the Judgments Regulation, helping to shed light on the
fortunes of public policy-based objections to the recogn ition and enforcement of similar
judgments in other EU Member States, where the acts of unrecognized foreign sovereigns
are also at stake .
is Article is di vided in 4 parts. §2 summariz es the facts of the case and the ruli ngs
of the High Court, the ECJ and the Court of Appeal in the Orams lit igation. §3 examines
relevant case law with a view to explaining the interplay between the en forcement of
judgments similar to the one involved in the Orams litigation and judicial precedents on
the recog nition of the acts of un recognized foreign states or governments. §4 inquires
into ‘fairness’ and ‘justice’ as public policy grounds for non-recognition. Finally, §5
summariz es the main ndings of this inqui ry.
e plainti  owned land situated withi n the area of the Republic of Cyprus under the
de fa cto control of the sel f-declared ‘Turkish Republic of Northern Cypr us’ (TRNC).4
2 Case C-420/07, Meletis Apostol ides v. David Charles Orams, Lind a E lizabeth Orams Judgment of
28 April 200 9, not yet reported.
3 Orams v. Apostolides [2010] EWCA Civ 9; 2010 WL 19916.
4 e reference is to the autonomous, sub -state entity establ ished in 1983 in the territor y of the Republic
of C yprus occupied by Turkish troops in 1974. e TRNC is not internationally recogn ized as an
independent state (except by Turkey) and its ‘territory’ is consid ered as an integral part of the sovereig n
territory of t he Republic of Cyprus, w hich entered the EU on the 1st of May 20 04.

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