The immunities of States and international organisations

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Database of the CAHDI "The immunities of States and international organisations" - contribution of Hungary - Law of 01/01/1979

Law Decree No. 13 of 1979 on International Private Law



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This Law Decree was significantly amended by Law No. CX of 2000 amending Certain Legislative Acts Concerning Jurisdiction and the Recognition and Enforcement of Foreign Decisions, with an effect as of 1 May 2001. This latter Law has — when amending the Law Decree — taken into account to a large extent the institutions and solutions provided for in the Lugano Convention of 16 September 1988 on Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters with a view to modernizing the domestic framework of international private law and, in general, of civil procedural law and thus, to preparing the Hungarian legal system for the eventual accession by Hungary to the Lugano Convention after Hungary will have become a Member of the European Union. By placing the rules on jurisdiction in civil law matters on new grounds, and by modernizing the rules on recognition and enforcement of foreign court decisions an appropriate domestic legal infrastructure has been created
that will allow Hungary to conclude further bilateral agreements providing for reciprocity in the field of mutual recognition and enforcement of judgments.

The issue of State immunity arises in the context of international private law and procedural law as a twofold problem: 1) Which law is applicable to the legal relations of the State? 2) How does the State become subject to the jurisdiction of a foreign court? Our relevant Law in force deals with the issue of jurisdiction on the basis of the principle of functional (relative) immunity, making a distinction between the legal relations of the State in the context of exercising public authority (in a capacity iure imperii) and the
private law relations of the State (iure gestionis). In its private law relations, the State does not enjoy immunity from the jurisdiction of a foreign court. It is to be noted that the Law Decree on International Private Law contains a regulation in conformity with the Council of Europe’s Convention on State Immunity of 16 May 1972 in respect of matters considered typically as acta iure gestionis.

The Law Decree on International Private Law sets out those cases when the Hungarian authorities exercise exclusive jurisdiction in proceedings initiated against the State (see Article 62/A). However, even in these cases Hungarian jurisdiction is not exclusive, if the Hungarian State renounces its immunity, or if the subject matter of the action filed against it constitutes such a legal relation of the State which has a foreign element to it, and in respect of which the foreign State would not enjoy immunity from the jurisdiction of Hungarian organs either (Article 62/E lists those cases where it is the Hungarian court or other authority which has jurisdiction in an action filed against a foreign State or foreign State agency).

Pursuant to the Law Decree, Hungarian authorities cannot exercise jurisdiction - that is Hungarian jurisdiction is excluded - in respect of other States in the very same instances when jurisdiction would be reserved for the Hungarian State itself in actions filed against Hungarian State agencies (see Articles 62/C and 62/D).

The Law Decree enumerates also those cases where in general, but not without exception, jurisdiction of Hungarian courts is excluded (see Articles 62/E and 62/F). In a proceeding filed against a foreign State or foreign State agency, or a foreign citizen acting as a diplomatic agent in Hungary, Hungarian jurisdiction — as a general rule — is excluded, unless the State/agency/person concerned has explicitly renounced its immunity, or unless the civil law legal relation of the foreign State constitutes the subject matter of the proceeding.

In the event of lack of jurisdiction, the jurisdiction of the Hungarian court may also be established by the defendant making a statement on the merits of the case (admission of suit), unless, of course, the jurisdiction of the Hungarian court is excluded under the provisions of this Law.

It is also this Law Decree which provides for the law applicable in proceedings against the Hungarian State (see Articles 17 and 63; as well as Articles 3 to 5 and 7 to 9 concerning questions of the applicable law). As a main rule, the Hungarian law shall be applicable to the legal relations of the Hungarian State; the exceptions are listed in the relevant Article of the Law Decree.

Chapter XI of the Law Decree contains the rules on the recognition and enforcement of foreign decisions (Articles 70 to 74/A). These rules show that the recognition of foreign decisions depends on that whether the matter in question concerns an exclusive Hungarian jurisdiction, or whether the jurisdiction of Hungarian authorities is excluded in respect of that matter, or whether there is concurrent jurisdiction:

• in the case of exclusive Hungarian jurisdiction, a foreign decision may be recognized only if it is a judgement dissolving the marriage of a Hungarian citizen, and if the recognition is sought by this Hungarian citizen.

• in the case of excluded Hungarian jurisdiction, foreign decisions shall be recognized without prejudice to any reciprocity, provided that these decisions are construed as definitive by the foreign law, and there exist no grounds of non-recognition.

• in the case of concurrent jurisdiction, foreign decisions shall be recognized in Hungary under certain conditions, as specified in the Law Decree.

Although recognition of foreign decisions takes place by virtue of the Law Decree, without any special procedure, there are certain conditions (jurisdiction of the foreign authority having issued the decision; definitive character of the decision; reciprocity; lack of ground of refusal) that the domestic authority, before which the party makes reference to a particular foreign decision, needs to examine.

In the case of foreign decisions that require execution, a special procedure needs to be pursued in order to establish whether the conditions for domestic recognition and enforcement are met. Here, reference is to be made to Law No. LIII of 1994 on Judicial Execution: any foreign decision may only be executed in Hungary, if the court issues a decree of confirmation of execution, which is to assert that the decision may be executed in accordance with Hungarian law in the same way as a decision of a Hungarian court (see Articles 205 to 210).

In respect of executing a decision against a foreign State, the Law Decree sets out a rule of guarantee: those assets of a foreign State in Hungary that serve the carrying out of public functions by that State or support the functioning of its agencies cannot be attached on the basis of any adverse ruling against that State (see Article 62/E).

Matters of international legal aid and request are also governed by the Law Decree (see Articles 67 to 69). In such matters, Hungarian courts shall establish contact with foreign courts and other authorities through the Minister of Justice, while other authorities shall get in contact with foreign authorities through the Minister of Foreign Affairs, via the Minister exercising supervision. At the request of a foreign court or another authority, a Hungarian court or another authority shall provide legal aid on the basis of an international treaty or in the case of reciprocity. Legal aid shall be refused, if the performance of the request were to be in contravention of the Hungarian public order.

The Law Decree sets out among its General Provisions that its provisions cannot be applied to such questions that are governed by an international treaty (see Article 2). It should be mentioned here that Circular No. 8001/2001 of the Minister of Justice on the Administration of Matters Involving an International Element names those international treaties and contains those detailed rules that are to be respected by both the Hungarian and the foreign authorities in the course of their action in international
matters. The First Chapter of the Circular sets out the general rules relating to the application of the Law Decree (international treaties; jurisdiction; applicable law; reference to international treaties; getting in contact by courts with foreign authorities and persons abroad; documents filed in foreign language; use of language; formalities of documents to be used abroad; authentic and certified copies), while Chapters II and III contain the provisions concerning legal aid requested by Hungarian and foreign authorities, respectively. Chapter IV deals with the attestation of official documents, and Chapter V has detailed rules on maintenance obligations, child placement and child abduction. Chapter VI governs legacy issues, while Chapter VIII deals with criminal matters. Detailed rules of execution in international matters are set out in Chapter VII, and finally, Chapter IX provides for the procedure to be followed in respect of persons enjoying diplomatic or other immunities.

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