The View from Cyprus Nikitas E. Hatzimihail

Paper outline 1. The Context - Brief Introduction to the Cyprus Legal System - Brief introduction to the Cyprus Problem 2. Challenges and Lessons from Dealing with Northern Cyprus - A de facto legal system - Problem cases 3. Potential challenges in dealing with PS NRS - Identifying areas of challenge - Potential legal solutions

Outline of presentation 1. Cyprus as a Jurisdiction of Interest 2. The Cyprus problem 3. Cases involving post-Soviet

Cyprus: Country profile Ethnic composition: Greek – Turkish (4:1) Official languages: Greek (and Turkish) British possession and Colony of the Crown, 1878-1960 Independence, 1960 (British Sovereign Base Areas remain – colonial Cyprus law applies, not part of the EU) Turkish invasion, 1974 – loss of control over 37% of territory EU Accession, 2004

Cyprus: Mixed legal System Common law dominant in “core” areas of the legal system and private law Codification of common-law principles in each basic legal field (Contracts, Torts) Procedural law clearly falling within the English/“common law” tradition Common-law encroachment upon the civilian enclave of family law (e.g. constructive trusts) Presence of English language continues to be strong Greek (and Turkish) as official language Mutation See Symeonides (2003); Hatzimihail (2013, 2015, 2017)

Cyprus: Environment for cross-border disputes Drastic transformation of society, economy since the 1980s/1990s Internationalized economy, Foreign residents: MS citizens (ECE), mostly workers Commonwealth of Independent States (CIS), mostly workers, some affluent Middle East: few, some workers, some affluent Many affluent or long-term third-country nationals obtain citizenship => Assets: residents, non-residents (MS), non-residents (third-country, esp. post-Soviet) Companies, trusts

Cyprus: types of cross-border disputes Enforcement of judgments over property located in Cyprus Family Succession Civil and commercial Interim relief Injunctions ad personam Emerging Enforcement of jurisdictional agreements? Spillover of non-contractual claims (e.g. personality / internet torts)

Cyprus: types of potential cases relating to PSS NRS 1. Seeking to establish jurisdiction over individuals - domicile is paramount for both jurisdiction and applicable law A: few problems (unless an entity itself sues – see 3 below) 2. litigating issues involving actions (and legal actions) in the pSS NRS territory - Cf Hesperides Hotels Ltd v Aegean Turkish Holidays Ltd (HL 1978, CA 1978) A: Follow an English-law approach? 3. Having to acknowledge the political entity itself - e.g. judicial assistance; enforcement of judgments\ A: No de facto recognition – look to international and EU law – strong Cyprus public policy Q: What about false conflicts?

Cyprus: types of potential cases relating to PSS NRS Seeking to establish jurisdiction over individuals A: few problems unless an entity itself sues – see 3 below) Domicile is paramount for both jurisdiction and applicable law - EU PiL: “domicile” for civil jurisdiction – habitual residence - Common law: domicile - Little role for nationality as connecting factor / jurisdiction ground - Dual nationalities in many cases? Cypriotization of many cases Q: What about “false conflicts”? Forum non conveniens?

Cyprus: types of potential cases relating to PSS NRS, pt 2 Litigating issues involving actions (and legal actions) in the pSS NRS territory - Cf Hesperides Hotels Ltd v Aegean Turkish Holidays Ltd (HL 1978, CA 1978) Actions for trespass and conversion of chattels – dismissed under Moçambique rule A: Follow an English-law approach? Cases might involve more than private interests? - Forum non conveniens - any impact of EU PIL? (as long as no effet reflexe, not so much)

Cyprus: types of potential cases relating to PSS NRS, pt. 3 Having to acknowledge the political entity itself - e.g. judicial assistance; enforcement of judgments\ A: No de facto recognition Strong Cyprus public policy - consideration of precedents relative to our own case - conscious about reciprocity Look to international and EU law (due deference to international legality)

Artesa Trading Co Ltd v Credit Bank of Russia A recent case… Artesa Trading Co Ltd v Credit Bank of Russia (Supreme Court of Cyprus, Civil appeal, 2018) Claimants: P2, P3, P4, P5: Turkish Cypriots (address just north the ‘green line’) - organized in a company (presumably) registered in the North (“A”) Lead plaintiff (P1): Cyprus Company with address listed in Pyla (only inhabited village in the ‘green line’ – both Greek and Turkish Cypriot residents) Defendant: Russian bank

A recent case (ARTESA – cont’d) Contract by A to ”provide oil and asphalt products to another party in areas south of the UN controlled dead zone” (Plaintiff’s statement of claim) Plaintiffs’ payment to defendant made by a bank in the north P2, P3, P4, P5 created P1 and assigned all their claims against Defendant to P1 Action stricken out for lack of standing – S.Ct. affirmed - Sole purpose for creation of P1was to file a claim against D for “facts allegedly occurred in the occupied areas of the Republic” – this constitutes an ”evident” abuse of process (inherent powers doctrine) - The Courts of the Republic cannot, “via the indirect approach” examine and decide over issues arising from actions occurring in the occupied parts

(Tentative) conclusions Factual approach over a normative approach? - in principle yes, but beware of the potential normativity of factual approaches