Due Process and Cross-Border Enforcement in Lithuania and Portugal

Abstract

The chapter deals with the issues related to cross-border enforcement and due process in Lithuania and Portugal. It analyses how the concept of due process is defined by the national courts in both countries in cross-border civil cases and whether this interpretation is compatible with the case law of the European Court on Human Rights and Article 6 of the European Convention of Human Rights with establishes the general requirements of the right to a fair trial. Particularly the authors focus on the common problems of due process which arise in cross-border situation, such as service of documents, proper notification (summoning) of court hearings and equality of arms. The problems of service of documents arise when the national courts use methods of service of documents which results not in the direct service of documents to the addressee, but other persons. The authors found that pursuant to the national case law when assessing the appropriateness of service of documents in such cases, it must be determined whether the addressee was actually aware of the court proceeding initiated in a foreign country. Furthermore, the author analyze the application of public policy clause as the ground for non-recognition of judgments. The interpretation of the public policy clause by the national courts in Lithuania and Portugal is narrow. Lithuanian and Portuguese case law distinguish between proce- dural and substantive public policy. In practice procedural public policy is of great importance while substantive public policy does not play any considerable role. The authors found that the content of public policy is interpreted in accordance with the international principles of due process set out in the case law of the European Court on Human Rights and the case law of the Court of Justice of the European Union.