The Recognition and Enforcement of Foreign Judgments: The Invocation of the ECHR Against Recognition and Enforcement

Abstract

AbstractThe invocation of one of the rights guaranteed against the recognition and enforcement of foreign judgments is the subject of this chapter. It is, in principle, well established that the recognition and enforcement of foreign judgments can (also) be denied on the basis of Article 6(1) ECHR. This would be the case if, for example, the proceedings abroad have been unfair, or if the defendant could not have been aware that proceedings were brought against him or her in another country. However, there is no clarity to be found in the Court’s case law concerning the standard of control which should be used in such cases, as the Court appears to have used varying standards. In this discussion attention is also paid to the manner in which national courts should apply the rights guaranteed in the ECHR. With regard to the invocation of the substantive rights guaranteed in the ECHR against the recognition and enforcement of foreign judgments, it is shown that, from the perspective of the Court, a clear distinction should be made between cases concerning the enforcement of a foreign judgment emanating from another Contracting Party and cases concerning foreign judgments originating from a third country. It follows from the Court’s case law that it appears to be difficult to successfully invoke one of the substantive rights guaranteed in the ECHR against the recognition and enforcement of a foreign judgment originating from another Contracting Party before the Court, as any complaints against the judgment should have been brought in Strasbourg against the Contracting Party of origin of the judgment. However, it has been found that this does not necessarily mean that the national courts of the Contracting Parties should always follow suit in relying on this argument.KeywordsNational CourtFair TrialInsolvency ProceedingBrussels ConventionProcedural SafeguardThese keywords were added by machine and not by the authors. This process is experimental and the keywords may be updated as the learning algorithm improves.