How are commercial proceedings commenced? Is service necessary and, if so, is this done by the court (or its agent) or by the parties?
Commercial proceedings under the Civil Procedure Code, 1908 commence with the filing of the plaint by the petitioner. The plaint is based on a set of facts which gives rise to the cause of action upon which the claim is based.
Service is necessary as the defendant must be given an opportunity to defend himself. If however summons have been duly served and the defendant does not tender appearance, the court may proceed ex parte. Since there are different methods through which service can be effected, all of them must be exhausted before proceeding ex parte. Summons are ordinarily effected through the court even though the plaintiff is required to pay for it.
Commercial proceedings in front of the courts of Malta are generally initiated by means of a sworn application or application which must be filed by the applicant in the court registry. The said sworn application when filed against a person who is either domiciled or resident or present in Malta would need to be notified in accordance with the ordinary rules of Maltese procedure through the court registry. If following service the defendant does not file a sworn reply he would be deemed contumacious.
As regards defendants who are not present in Malta and are outside the jurisdiction of Malta but resident, domiciled or present in one of the Member States of the European Union, service would be effected through the designated transmitting agency in accordance with regulation 1393/2007 of the European Parliament and of the Council on the service in the Member States of judicial and extra judicial documents in civil or commercial matters (service of documents).
As regards defendants who are absent from Malta, not resident within any Member State of the European Union, or otherwise their address is unknown, upon a request made by the plaintiff to the court, the court would order the appointment of curators in order to represent the interests of the said respondent. The curators would receive the sworn application on behalf of the respondent and would be responsible with communicating with the respondent, serving him with the sworn reply and representing him in the proceedings.
Commercial proceedings are commenced by an originating process, either by a Writ of Summons or by Originating Summons. Most civil actions in contract and tort involve substantial disputes of fact, and are thus commenced by a Writ of Summons. On the other hand, where a commercial dispute concerns matters of law with no substantial dispute of fact, proceedings may be commenced by way of Originating Summons.
A Writ of Summons must be served personally on each defendant, by the plaintiff or his agent. Service on a defendant company registered in Singapore is deemed good if sent by registered post to the registered office of that company, pursuant to section 387 of the Companies Act.
Service of a Writ of Summons on a defendant outside Singapore is permissible with the leave of the Court. Order 11 of the ROC sets out various circumstances under which leave of the Court ought to be granted for such purpose. Before leave for service outside Singapore is granted, the Court must be satisfied that the plaintiff has ‘a good cause of action’ and that there is ‘a real issue which the plaintiff may reasonably ask the Court to try’.
A court commences proceedings within five days after filing a statement of claim. Following that, the court officially notifies the parties by sending a court ruling by which the proceedings were commenced.
However, once such initial notification of the parties is made, it is subsequently a burden of each party to monitor the conduct of proceedings and the dates of hearings – the lack of further notifications cannot be a ground for challenging a court’s decision. Such monitoring has to be done through an online court system (https://kad.arbitr.ru/), which also allows to make electronic filing of a statement of claim, a statement of defence and other procedural documents.
Commercial proceedings normally begins with the filing of a claim. Interim mesures (or medidas cautelares) may be adopted before the claim is filed and some other actions can also be carried out before such filing, ie preliminary proceedings (or diligencias preliminares) and conciliation.
Service is necessary and is done either by civil servants of the court or by a party-appointed court representative (or procurador) whenever the party filing a claim chooses that option.
The first hearing commences with the summoning of the disputing parties by the court bailiff appointed for the case. What is considered as being properly summoned is regulated under Articles 122 to 127 of the HIR where if the plaintiff has been summoned for the first hearing but failed to attend, the presiding Judge will request the bailiff to re-summon the plaintiff. If after 3 (three) summons, the plaintiff does not attend the proceedings, the submitted claim shall be declared inadmissible. In such case, the plaintiff has the right to re-submit the claim only once more after making payment for the fees of the unattended court hearings. Similarly, if through the same mechanisms, the defendant fails to attend the court proceeding, the court will decide and issue an ex parte decision to which the defendant may challenge by requesting a retrial of the case.
Civil law proceedings are commenced by the plaintiff filing the complaint. The complaint needs to contain, apart from the names of the parties and the competent court, a specific request for relief (bestimmter Klageantrag) and a concise statement of the facts of the case (Klagegegenstand), sec. 253 (2) ZPO.
Service of process is necessary and is effected by the court ex officio if service is required by law upon the court’s order. Sec. 195 ZPO also allows for attorney-to-attorney service if both parties are represented by attorneys.
In Mexico, commercial proceedings are commenced when the plaintiff files its complaint before the Civil Court along with all relevant documents, defendant’s addresses, and the names of any witnesses they intend to call.
Once a claim is admitted by the Judge, the defendant will be summoned to court and must respond the claim within 15 business days following such notification, unless it is an executive commercial trial, in which case the complaint must be replied within 8 business days.
Every Court has special officers that are in charge of delivering personal notifications to the parties in their designated addresses. Daily notifications are published every day in a Judicial Bulletin. All of these services are public and provided by the Courts.
The proceedings before the courts are commenced with the filing of the action with the Secretariat of the Court and the subsequent service of the filed action to the defendant. The service is carried out by a court bailiff on the initiative of the plaintiff within the deadlines set by the GCCP. In particular, with reference to the ordinary procedure, the action shall be served to the defendant within (30) thirty days from its submission to the court (the deadline is extended to sixty (60) days in case the defendant is a resident of another country or of an unknown residence). In particular monetary proceedings, the deadline for the summoning of the defendant to participate to the proceedings shall take place up until thirty days (or sixty as per above) before the hearing.
Commercial proceedings are initiated by the service of summons on the defendant. Such service is performed through a bailiff appointed by the claimant.
There is no possibility to start proceedings with postal delivery.
There are typically three ways to commence commercial proceedings:
- by a writ of summons (used when the facts are disputed);
- by an originating summons or motion (used for cases with no (or few) factual disputes, such that the proceedings focus on legal issues or interpretation of legal documents); or
- by a petition or motion (only used for resolving particular matters, such as a winding-up petition for compulsory liquidation).
Generally speaking, most commercial actions in Hong Kong are commenced by writ of summons. Service by the plaintiff (or its agent) is required on each of the defendants.
Commercial proceedings generally start by serving the writ initiating the proceedings, which is normally a summons or, in certain cases (e.g.: labour proceedings; precautionary proceedings), a motion to the court and the decree scheduling the first hearing. The service is made by the process server. Under certain conditions lawyers can also perform service on their own.
High Court proceedings are commenced by way of summons. Once the relevant summons is issued, it must be served within 12 months (which may be renewed for a further 6 month period by application to the court if good reason for the extension sought is demonstrated). The summons is generally served by the plaintiff's solicitor or by a summons server on the plaintiff's behalf.
A commercial proceeding is commenced like other litigation by filing a statement of claim with the competent court / Justice of Peace (see above). All case correspondence (submissions etc.) is forwarded and served to the other party through the authorities (not by the parties).
As answered in question 4, commercial proceedings commence with the filing of a claim and its service of notice, which is carried out by court´s ancillary clerks, (“Receptores”).
First notice of a claim must be served in person to the defendant. However, if he is not found personally, but the “receptor” could confirm on two different days –as certifying officer- that (i) the address where the defendant is sought is correct (defendant’s domicile), and (ii) that the defendant is currently in the city where the proceeding will take place; service of the claim can be made just handing to an adult –not necessary the own defendant- a copy of the plaintiff’s filing and the courts orders.
Exceptionally, in cases where the defendant’s address is difficult to determine or service is difficult due to the number of defendants, Chilean law allows the service to be accomplished by publishing ads.
Commercial disputes are initiated by the lodging of a statement of claim to the district court and payment of the registration fee, SEK 2,800 for the year of 2018. Service is necessary in litigation and it is essentially the court’s responsibility to serve the defendant. Courts have efficient serving possibilities and are generally expedient at serving. However, a party is permitted to serve its counterparty where permission has been granted by the court (which it normally is upon request).
Usually, once the claim is filed, the counterparty is summoned to challenge it. The summons is served by the court by postal delivery or by an enforcement agent if postal delivery was not effective. However, in certain lawsuits (Injunctions or Enforcement Proceedings) and depending on the circumstances, the summons may only take place later in the process.
Pursuant to Article 42 of the Civil Procedures Law, a claim is brought to the court at the request of the plaintiff by submitting his statement of claim with what is known as the Case Management Office or by the electronic registration thereof.
The statement of claim must contain certain data including:
A. The plaintiff's name, title, identity card number, if any, profession, domicile, workplace and his representative's name, title, identity card number, if any, profession, domicile, workplace and postal address, fax number or email. If the plaintiff has no domicile in the state, he shall designate an address for service or notification.
B. The name of the defendant, his title, identity card number, if any, profession, domicile or address of service, workplace and telephone number and his representative's name, title, profession, domicile, workplace if he works for others. In case that the defendant or his representative have no known domicile or workplace, the last domicile, residence, workplace, postal address, fax number or email shall be mentioned.
C. Subject of the case, requests and supporting documents.
D. Date of submitting the statement of claim to the Case Management Office.
E. The court to which the case has been brought.
F. The signature of the plaintiff or his representative.
Once the case has been reviewed and the court fees paid, the court allocates a case number and schedules a date for the first hearing which is usually after 10-14 days, and then notifies the defendant/s.
This means that service or notification is necessary.
Notification is made pursuant to a party's request or the court's order through a Court Bailiff. However, the court may also authorize the plaintiff or his representative to notify, and notification may also be made by third party. Such as a courier company.
If the Court Bailiff or the party carrying out the notification fails to notify, he shall convey this to the Case Management Office or a competent judge as to order the appropriate notification method.
Notification of a party is very important and if not carried out properly and a judgment is issued in absentia, this could mean the invalidity of the judgment.
Having said that, notifying a party is not always a simple exercise and may significantly delay procedures.
If the address of the defendant as submitted by the plaintiff at the time of filing the statement of claim is not accurate, the court will order investigating the address from the relevant authorities such as the immigration, the telecommunication companies, the water and electricity authority, the Road and Transportation authority, the Economic Department and the free zones in case of a company.
If after carrying out all means of investigating a party’s address the same was not located, the court will order notification by publication in the newspapers.
Actions are commenced by filling a claim with the Commercial Court or the appropriate specialized tribunal. The Commercial Court and most of the tribunals require claims to be filed online.
The normal method of service is through the court, but the claimant’s attorney may apply to carry out service in order to speed up the process. Service by electronic means and registered mail has been approved and may be implemented in the near future.
Commercial proceedings are commenced either by a complaint to the conciliation board or a writ of summons to the district court. The complaint has to be in writing, but a writ may also be sent electronically to the party gateway that most district courts are a part of. The complaint or writ is then served by the conciliation board or the district court on the defendant along with an order to give notice of intention to defend.
In federal court, a lawsuit is commenced by the filing of a complaint with the court. The plaintiff (or its agent) must also serve a copy of the complaint, along with a summons, on the defendant. In most circumstances, the plaintiff will serve the complaint on the defendant directly, rather than through an attorney’s office.
The process for commencing commercial disputes in state courts is determined by each state’s procedural rules but is generally consistent with the federal procedure, as the majority of states have adopted all or substantially all of the FRCP.
In order to avoid dismissal, the complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief; detailed factual allegations are generally not required. However, for commercial disputes alleging fraud or mistake, a heightened pleading standard applies and a plaintiff must plead with particularity the circumstances constituting fraud or mistake.
Proceedings are initiated by submitting a statement of claim (“Klage”) directly to the court of first instance. An action is officially pending upon receipt by the competent court. Nowadays, claims (and other documents) are usually submitted to the competent court via an electronic communication system as legal professions are obliged to use such system.
A claim has to be written in the German language and needs to contain the following minimum requirements:
- name and address of the court to which the claim is submitted;
- names and addresses of the defendant(s)/the parties and their legal representatives (if known);
- the matter and amount in dispute;
- the relief sought and the facts on which the relief sought is based.
A statement of claim may, but does not have to contain legal reasoning and it is not required to present evidence at this state.
After having received a claim, the court will examine whether the procedural minimum requirements for the hearing of a claim are met, and if so, will forward the claim to the defendant. Within Austria, claims are served by the court, usually via registered mail (or, once represented by a lawyer, via the mandatory electronic communication system that connects courts and law offices). Service outside of Austria is either governed by the EU regulation on the service of documents in civil or commercial matters (within the European Union) or by bilateral or multilateral agreements (outside of the European Union).
Commercial proceedings are commenced when a complaint is served onto the defendant. The service of the complaint is made by an authority of the court, and administrative affairs related to the service are handled by the court clerk (CCP, Article 98).
When service has to be effected in a foreign country, it will be commissioned by the presiding judge to the competent government agency of that country or the Japanese ambassador, minister, or consul stationed in that country (Id., Article 108).
Proceedings are commenced when the court issues a claim form (by stamping it with the court’s seal), as prepared and requested by the claimant. The claim form is the first ‘statement of case’ which includes the name of the court in which the claimant wants to be heard, the parties and the parties’ addresses, details of the claim and the remedy sought by the claimant. Once the claim form has been issued, the claimant must serve it on the defendant within four months, if the claim form is served within the jurisdiction (or six months if outside the jurisdiction, in which case the court’s permission may be required). Service can be effected by the Claimant or the Court (but it is advisable for a Claimant to serve itself so that it can be sure that it has been served and knows when).
Commercial legal proceedings are commenced by filing a writ of summons to the court. The writ of summons must include the name and address of the defendant. Furthermore, the writ must contain a claim (request for payment) and a presentation of the questions of fact and law. If the court assesses that the writ of summons is not sufficient detailed, which is very rare if the plaintiff is represented by a lawyer, the plaintiff receives a notice and is being asked to remedy the defects identified. Once the writ of summons is sufficiently detailed the writ is served on the defendant. The court has the exclusive right to serve the writ of summons. However, under certain circumstances service is valid even though the regular process has not been followed as long as the defendant has gained knowledge of the writ of summons. Today, a writ of summons can be served digitally.
After the writ of summons has been delivered to the defendant, the defendant has at least two weeks to file a statement of defence to the court containing any preliminary objections.
Pursuant to Decree No. 2015-282 dated 11 March 2015, the claimant has to mention in the writ of summons which steps have been undertaken to try to resolve the dispute amicably prior to initiating judicial proceedings, unless there is a legitimate reason relating to the urgency or the matter in question.
If the claimant fails to demonstrate such attempt, the court may appoint a mediator or a conciliator; this will generally slow down the procedure.
If the parties have agreed on a multi-tier dispute resolution clause, providing for a mediation or conciliation phase prior to any judicial claim before the court, such clause will be binding on the court. If an action is brought in breach of such clause, it will constitute grounds for inadmissibility of the claim.
There is no principle of mitigation of damages under French law, i.e. the claimant does not have to take reasonable actions to avoid additional injury or loss.
In general, commercial proceedings will stand instituted by filing a claim/petition before the appropriate court/forum and serving the counter party is not a pre-requisite to commencement of proceedings.
Thus, in case of a suit, the proceedings are commenced by filing a plaint i.e. the claim with the court. The claimant must also pay the requisite court fees for such filing subsequent to which the court issues summons to the defendant. The summons issued by the court normally contains a direction to the defendant to appear before it and respond to the claim in the form of a written statement of defence.
Order V (Rules 9 to 30) of the Code governs the principles pertaining to service of summons upon the defendant. It is provided that the summons is served either by an authorised officer of the court or by the court itself through registered post, speed post or any other such courier services with due acknowledgement. In addition to this, a copy of summons signed by the court may be given to the plaintiff for service to the defendant personally.
Under the Arbitration Act, the arbitration proceedings commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent from the claimant.