Decomposition of Legal Constructions in Cross-Border E-Commerce Dispute Resolution from an International Civil Law Perspective

Contents: Acknowledgements Research Review Linda J. Silberman and Franco Ferrari PART I APPROACHES TO JUDGEMENT RECOGNITION AND ENFORCEMENT 1. Willis L. M. Reese (1950), 'The Status in This Country of Judgments Rendered Abroad', Columbia Law Review, 50 (6), June, 783-800 2. Arthur T. von Mehren and Donald T. Trautman (1968), 'Recognition of Foreign Adjudications: A Survey and a Suggested Approach', Harvard Law Review, 81 (8), June, 1601-96 3. Ruth Bader Ginsburg (1969), 'Recognition and Enforcement of Foreign Civil Judgments: A Summary View of the Situation in the United States', International Lawyer, 4 (4), July, 720-40 4. Courtland H. Peterson (1972), 'Foreign Country Judgments and the Second Restatement of Conflict of Laws', Columbia Law Review, 72 (2), February, 220-66 5. Ronald A. Brand (1991), 'Enforcement of Foreign Money Judgements in the United States: In Search of Uniformity and International Acceptance', Notre Dame Law Review, 67 (2), 253-334 6. Michael Whincop (1999), 'The Recognition Scene: Game Theoretic Issues in the Recognition of Foreign Judgments', Melbourne University Law Review, 23 (2), 416-39 PART II COMPARATIVE PERSPECTIVES 7. Arthur Taylor von Mehren (1981), 'Recognition and Enforcement of Sister-State Judgments: Reflections on General Theory and Current Practice in the European Economic Community and the United States', Columbia Law Review, 81 (5), June, 1044-60 8. Friedrich K. Juenger (1988), 'The Recognition of Money Judgments in Civil and Commercial Matters', American Journal of Comparative Law, 36 (1), Winter, 1-39 9. Linda J. Silberman (2008), 'Some Judgments on Judgments: A View from America', King's Law Journal, 19 (1), 235-63 10. Samuel Baumgartner (2008), 'How Well Do U.S. Judgments Fare in Europe?', George Washington International Law Review, 40 (1), 173-231 11. Konstantinos D. Kerameaus (2002), 'Enforcement of Non-Money Judgments and Orders in a Comparative Perspective', in James A. R. Nafziger and Symeon Symeonides (eds.) Law and Justice in a Multi-State World: Essays in Honor of Arthur T. Von Mehren, Leiden, the Netherlands: Nijhoff/Brill, 107-19 12. Kurt H. Nadelmann (1957), 'Non-Recognition of American Money Judgments and What To Do About It', Iowa Law Review, 42, 236-64 13. Jie Huang (2011), 'Conflicts between Civil Law and Common Law in Judgement Recognition and Enforcement: When is the Finality Dispute Final?', Wisconsin International Law Journal, 29, 70-109 PART III SPECIAL ISSUES A The Revenue Rule and Public Law 14. William S. Dodge (2002), 'Breaking the Public Law Taboo', Harvard International Law Journal, 43 (1), Winter, 161-235 B Reciprocity 15. John F. Coyle (2014), 'Rethinking Judgments Reciprocity', North Carolina Law Review, 92 (4), 1109-74 C Fraud 16. Richard Garnett (2002), 'Fraud and Foreign Judgments: The Defense that Refuses to Die?', Journal of International Commercial Law, 1 (2), 161-86 D Preclusion and Res Judicata 17. Robert C. Casad (1984), 'Issue Preclusion and Foreign Country Judgments: Whose Law?', Iowa Law Review, 70, 53-80 18. Hans Smit (1962), 'International Res Judicata and Collateral Estoppel in the United States', University of California, Los Angeles Law Review, 9, 44-75 E Exequatur 19. Paul Beaumont and Lara Walker (2015), 'Recognition and Enforcement of Judgements in Civil and Commercial Matters in the Brussels I Recast and Some Lessons from it and the Recent Hague Conventions for the Hague Judgements Project,' Journal of Private International Law, 11 (1), 31-63 F Class Actions 20. Richard Fentiman (2014), 'Recognition, Enforcement and Collective Judgments', in Arnaud Nuyts and Nikitase Hatzimihail (eds.) Cross-Border Class Actions: The European Way, Munich, Germany: Sellier European Law Publishers Ltd., 85-110 21. Antonio Gidi (2012), 'The Recognition of U.S. Class Action Judgments Abroad: The Case of Latin America,' Brooklyn Journal of International Law, 37, 893-965 PART IV INTERNATIONAL SOLUTIONS 22. Russell J. Weintraub (1998), 'How Substantial is our Need for a Judgments-Recognition Convention and What Should we Bargain Away to get it?', Brooklyn Journal of International Law, XXIV (1), 167-220 23. Arthur T. von Mehren (1994), 'Recognition and Enforcement of Foreign Judgments: A New Approach for the Hague Conference?', Law and Contemporary Problems, 57 (3), Summer, 271-87 PART V FUTURE ISSUES 24. Patrick Kinsch (2004), 'The Impact of Human Rights on the Application of Foreign Law and on the Recognition of Foreign Judgments - A Survey of the Cases Decided by the European Human Rights Institutions', in Talia Einhorn and Kurt Siehr (eds.) Intercontinental Cooperation through Private International Law, The Hague, the Netherlands: T.M.C. Asser Press, 197-228 Index

In June, 2017, the Wuhan Intermediate People’s Court became the first Chinese court to recognize a U.S. judgment in the case of Liu Li v. Tao Li & Tong Wu. The Liu case is a significant development in Chinese private international law, but represents more than a single decision in a single case. It is one piece of a developing puzzle in which the law on the recognition and enforcement of foreign judgments in China is a part of a larger set of developments. These developments are inextricably tied to the “One Belt and One Road,” or “Belt and Road” Initiative first announced by Chinese President Xi Jinping on a visit to Kazakhstan in 2013. This article traces the development of the Liu case, from the first judgment in California to the decision to recognize and enforce that judgment in Wuhan, China. It then provides the context within which the decision on recognition and enforcement was made, and the way the decision fits within President Xi’s “Belt and Road” Initiative and the pronouncements of the Chinese People’s Supreme Court which have encouraged the recognition and enforcement of foreign judgments as part of that Initiative.

International trade includes a procedural dimension, in particular access to courts and mutual recognition and enforcement of foreign judgments and arbitral awards. The author discusses topical issues in this field from the perspective of Russian law, which is often used as a comparative model in other countries of the Caucasus-Central Asian region. The contribution states that Russian courts show a somewhat cautious attitude towards recognition of foreign judgments (much less towards foreign arbitral awards), but cannot be described as principally negative in this respect. The article then addresses the topics of reciprocity as a sufficient reason for recognition (open question), the relationship between exclusive jurisdiction and arbitrability (denied), the requirement of due notice to defendants and public policy (use decreasing).

Since this article was originally written and presented in the spring of 1992, considerable progress has been made in the effort achieve an international convention regulating jurisdiction and recognition of foreign judgments. In May 1993, the Seventeenth Session of the Hague Conference on Private International Law decided to include in the agenda for work of the Conference the question of the recognition and enforcement of foreign judgments in civil and commercial matters and requested the Conference's Secretary General convene a Special Commission study[] further the problems involved in drafting a new convention, make[] proposals with respect work which might be undertaken, and suggest[] the timing of such work. 1 The Special Commission met in the Hague on June 20-24, 1994, begin this preliminary work on a convention. Our hope is that the Conference's Eighteenth Session in 1996 will make a convention on jurisdiction and recognition an agenda item for an extraordinary session of the Conference in 1997 or 1998. The article was revised in May 1994 take into account these and other developments since the spring of 1992. Its intention remains the same, however: discuss the genesis of what is now the Hague jurisdiction and recognition project, consider the merits and demerits of various approaches jurisdiction and recognition problems, and explain why, in the United States's view, the most promising institutional basis for achieving a satisfactory convention was the Hague Conference on Private International Law.

The recognition and enforcement of foreign judgments are essential aspects of cross-border legal relations, especially in the context of globalization and increasing international legal interactions. This article aims to examine and compare the legal frameworks governing the recognition of foreign court decisions in Indonesia and Malaysia. This study employs a normative juridical method with a comparative legal approach. In Indonesia, the recognition of foreign judgments is regulated under the Reglement op de Rechtsvordering (Rv) and requires an exequatur process by the Supreme Court. Specifically for the recognition of foreign arbitration awards, Indonesia has ratified the 1958 New York Convention on the Recognition of Foreign Arbitration Awards. Meanwhile, in Malaysia, foreign judgments can be recognized through a reciprocal enforcement system based on the Foreign Judgments Act 1956 and common law principles. This comparison shows that Malaysia’s legal system is relatively more receptive to the recognition of foreign judgments than Indonesia, which still imposes several formal requirements. The study recommends regulatory reforms in Indonesia to better adapt to the dynamics of international law and to provide legal certainty for parties involved in cross-border disputes.

FOR over a century the rules of English law on the recognition and enforcement of foreign judgments have developed a rather curious way. Whilst the rules governing the taking of jurisdiction are seen by students and textbook writers as being the sensible beginning of a conflict of laws syllabus, the recognition of foreign judgments has by universal tradition come at the end of the course. For this reason conflicts lawyers have grown up to see these as two separate and distinct branches of the law, with little common but much them: the in between part being the rules on choice of law. This is puzzling and has no rational justification. Additionally, the result of separating the rules on jurisdiction and judgments is that developments legal thought which should apply to both are danger of being applied only to one of these branches. The case for reuniting the two areas is a strong one. After all, the doctrine on recognition begins with the search for a foreign court which had jurisdiction in the international sense. Might this not suggest the closeness of their relationship? And if so, certain conclusions can be drawn about the common law rules for the recognition of judgments which would not otherwise be possible. In the course of the analysis it will be necessary to pay some attention to the relevant provisions of the Convention on Jurisdiction and Judgments Civil Matters (the Brussels Convention).

This chapter, after discussing the theoretical basis for the recognition of foreign judgments (14.01), and the types of foreign and ecclesiastical judgments that may be recognized (14.02–14.03), describes the prerequisites to (14.04–14.10), the procedure leading towards (14.11–14.13), and the consequences of (14.14), recognition. It further deals with the recognition accorded to foreign non-contentious judgments and orders (14.15–14.16), to foreign arbitral awards (14.17), and to foreign official acts and negotiable instruments (14.18), and with treaties that contain provisions affecting the recognition of foreign judgments (14.19–14.21). It ends with an examination of the recognition granted to ecclesiastical judgments (14.22–14.23).

In many national systems of private international law, reciprocity is still a condition for the recognition and enforcement of foreign judgments in civil and commercial matters. However, in the modern globalized economic and social context, where legal and natural persons enter into cross-border private law relationships and international transactions on a daily basis, the question is whether this condition is justified and necessary. Although many states have taken a more flexible approach to this issue in the last few decades, this condition still exists in the legislation of a certain number of states and is considered to be a major obstacle to the recognition and enforcement of foreign judgments. In the legislation of the Republic of Serbia, reciprocity is also one of the conditions for the recognition of foreign judgments. In order to be able to respond to the ever-increasing economic interest expressed through crossborder trade and investments, it would be desirable to consider amending our applicable legislation, as well as the Republic of Serbia’s acceding to the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments. Namely, it has entered into force recently and is aimed at giving a truly global significance to the unification of conditions for the recognition and enforcement of judgments. At the same time, this would also eliminate the problem of reciprocity in relations between the Republic of Serbia and states party to the Convention, both in terms of difficulties related to the procedure for its establishment and the recognition of judgments of the courts of the Republic of Serbia in the states requiring diplomatic reciprocity in this respect.

ABSTRACT: This paper addresses the new system of recognition and enforcement of foreign judgments in Spain, after the entry into force of the Regulation 1215/2012 in 2015 and the Law on International Legal Cooperation that finally repeals an antiquated system that was already exceeded by the jurisprudence of the Supreme Court. The new system, studied along these lines, is far away from the complexities of the system of 1881, adapted to the existing reality -the need of a simplified system for the recognition of foreign judgments done the current mobility of natural and legal persons. This has already occurred within the European Union, where since the entry into force of the 1215 regulation we can talk about the existence of the fifth freedom, the free movement of judgments.

This article addresses the role of certain Russian Federal Law “On Insolvency (Bankruptcy)” provisions (eg Article 1(6)) for resolving bankruptcy and insolvency matters under Russian law. The author argues that the “foreign judgment on the insolvency matters” term covers not only the judgments on initiation of bankruptcy/insolvency, but also other related judgments like those on vicarious liability, avoidance of transactions and settlement agreements. The issues associated with enforcing foreign judgments on the grounds of reciprocity under Article 1(6) of the Federal Law “On Insolvency (Bankruptcy)” are being explored and valid arguments in favour of recognition simpliciter (recognition of foreign judgments without extra exequatur proceedings at the national level) are provided. The legal effects of foreign judgments on the initiation of bankruptcy/insolvency proceedings recognition are analysed as well as the interconnection between relevant provisions of the Russian legislation on lex societatis of a legal entity and the rules for recognising foreign judgments on the initiation of bankruptcy/insolvency proceedings.

The growth of global trade requires the development of private international law consistent with the development of international trade law. The recognition of foreign judgments is a necessary part of both of these areas of the law. There cannot be consistent increase in the free movement of goods, services and capital without the corresponding free movement of judgments. Thus, the law of judgments recognition must develop with an eye on its impact on and its consistency with international trade law. This chapter sets out the current law on judgments recognition in the world's three largest economies: the United States, the European Union and China. It then considers challenges to the development of judgments recognition law both at the global level and within the United States. At the global level, this requires an assessment of the May 2018 draft text for a Hague Convention on the recognition of foreign judgments. At the national level in the United States, this requires an assessment of the restrictions and problems created by having judgments recognition law largely determined at the state, rather than the federal, level. This has implications for global developments in terms of the ability of the United States to become a party to both the 2005 Hague Convention on Choice of Court Agreements and any new Hague Convention on the recognition of foreign judgments. The chapter concludes with a full list of challenges to judgments recognition law and concerns regarding recent developments.

The Article provides an insight into the development of the Russian rules of law concerning recognition of foreign judgments on personal status. The analysis reveals that initially the Russian (formerly Soviet) law did not include any specific provisions relating to recognition of foreign judgments on personal status. In this regard such judgments were recognised on the basis of the conflict of laws’ provisions of the Family and Civil Codes. In turn the current Article 415 of the Civil Procedure Code of the Russian Federation addressing the recognition of foreign judgments on personal status and foreign divorces should be considered as a borrowing from the legislation of the former Socialist countries. The authors argue that the concept of “personal status” in Article 415 covers both foreign judgments affecting capacity and regarding filiation (kinship). Therefore, these foreign judgments shall be recognised in Russia in absence of an international treaty and without exequatur proceedings.

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relatively low level during most of the nineteenth century, the recognition and enforcement of foreign judgments did not fully develop. Not until 1869 did the first modern treaty on recognition-the Franco-Swiss treaty-come into being; not until thirty years later was the second treaty-the Franco-Belgium treaty of 1899-signed. No multilateral convention to this effect was recorded. Recognition and enforcement of foreign judgments were mainly effected by the national laws of the countries concerned and were marked by cumbersomeness and heavy formalities. At common law, the original decision served only as prima facie evidence; it had to be examined by the executing court. Under the laws of France, Belgium, and Luxembourg, it had to undergo revision au fond. In Holland, except in cases expressly provided for by law, judgments of foreign courts ... cannot be enforced within the kingdom (Art. 431 of Civil Procedure Code). The twentieth century has witnessed an expansion in the area of recognition of foreign judgments. The doctrine of reciprocity came to replace the doctrine of comity. The English case of Godard v. Gray (1870) and the American case of Hilton v. Guyot (1894) both embrace the doctrine of reciprocity. So did the British Administration of Justice Act 1920 and the Foreign Judgment (Reciprocity Enforcement) Act 1933. The latter Act removed two major difficulties. Previously, a new action had to be brought upon the foreign judgment; afterward the foreign judgment had merely to be registered. Before the 1933 Act, whether a foreign judgment was accepted as conclusive depended on case law; the 1933 Act provided a statutory

This article examines the evolving legal framework of cross-border transactions against the backdrop of shifting international regulations and diminishing traditional notions of state sovereignty. Drawing upon doctrinal analysis and a comparative perspective, it explores how emerging global governance structures, regional integration mechanisms, and soft-law instruments influence the design and implementation of transnational deals. Key areas of focus include the choice of corporate structures (holdings, SPVs, joint ventures), compliance with anti-corruption and tax regulations, and the strategic use of dispute resolution clauses, particularly in a context where national, supranational, and private regulatory regimes increasingly overlap. Empirical illustrations from Europe, North America, and Asia underscore the growing role of borderland cooperation and subnational initiatives in shaping cross-border transactions. The analysis highlights the need for practitioners to adapt contractual mechanisms in light of complex global norms and offers a multi-level approach to legal and regulatory compliance. Ultimately, the article argues that success in cross-border endeavors depends on integrating national law with transnational standards, leveraging innovative dispute resolution processes, and proactively engaging with local/regional stakeholders to foster legal certainty and minimize risk.