Enforcement Of Judgments Research Articles

Bilateral Treaty on Mutual Enforcement of Judgments between Japan and China: A Discussion on Legal Structure

Bilateral Treaty on Mutual Enforcement of Judgments between Japan and China: A Discussion on Legal Structure

ПРАВОВОЙ РЕЖИМ ПРИЗНАНИЯ И ПРИВЕДЕНИЯ В ИСПОЛНЕНИЕ ИНОСТРАННЫХ СУДЕБНЫХ РЕШЕНИЙ В ЕВРАЗИЙСКОМ ЭКОНОМИЧЕСКОМ СОЮЗЕ

ПРАВОВОЙ РЕЖИМ ПРИЗНАНИЯ И ПРИВЕДЕНИЯ В ИСПОЛНЕНИЕ ИНОСТРАННЫХ СУДЕБНЫХ РЕШЕНИЙ В ЕВРАЗИЙСКОМ ЭКОНОМИЧЕСКОМ СОЮЗЕ

Recognition of Foreign Judgments in China: The Liu Case and the “Belt and Road” Initiative

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.

Enforcing ECOWAS judgments in Nigeria through the common law rule on the enforcement of foreign judgments

The ECOWAS Court was established by the Revised ECOWAS Treaty. By virtue of that treaty, the Court has assumed an existence at the international plane and has delivered a number of judgments. This study therefore examines the enforcement of the judgments of the ECOWAS Court in Nigeria as a Member State. The study finds that Nigeria has not been enforcing the judgments of the Court like other Member States. The study further finds that there are five sources of international law namely: treaties, custom, general principles of law recognised by civilised nations, judicial decisions and the writings of the most qualified publicists and that while Nigerian law has addressed domestic effect of treaties and custom, that of other sources most notably the decisions of international tribunals has not been seriously addressed. The study therefore argues that the common law on the enforcement of foreign judgments can be successfully adapted to give domestic effect to the judgments of the ECOWAS Court as an international tribunal in Nigeria. The study therefore recommends that the Nigerian judiciary should take the gauntlet to make the judgments of the ECOWAS Court effective in Nigeria.

Ka globalnoj Haškoj konvenciji o priznanju i izvršenju presuda u građanskim ili trgovačkim stvarima

There is a certain irony in the fact that, when later this year the Convention on the Recognition and Enforcement of Judgments will see the light, the work that started in the 1960's with the 1965 Choice of Court and the 1971 Recognition and Enforcement Conventions will have come full circle: the Hague Conference will, once again, after having crafted an instrument on choice of court, adopt a Recognition and Enforcement Convention! Yet, the image of an upward spiral will hopefully do better justice to the outcome. If one compares the 1965 and 2005 Choice of Court Conventions, it is only fair to note that the former went only half way, in particular insofar as it did not unify the rules of recognition and enforcement of judgments but left these to national law, and it never came into force, whereas the 2005 Convention now binds 32 States, has been signed by the US and China, and is likely to attract more Parties in the future. 50. The reasons for the failure of the 1971 Convention have been set out supra 10.-13. The structure of the new Convention will hopefully be less complicated than that of its predecessor. A bilateralisation requirement should be avoided, or at least drafted in a way that makes the application of the Convention not unduly difficult. Contrary to the situation forty years ago, there is no competing (European or international) instrument available. On the contrary, through its membership of the Hague Conference (since 2007), the EU has acknowledged the importance of this organisation as a forum for negotiating global instruments. For the EU, the Judgments Project is now a priority project of the gradual construction of an external EU policy on judicial cooperation in civil and commercial matters. From a global perspective, the Convention will fulfill a long-felt need for a multilateral framework for the recognition and enforcement of judgments. The Convention will, as a whole, contribute to the aforementioned 2030 UN Agenda for Sustainable Development which encourages the international community to promote the rule of law at the national and international levels and ensure equal access to justice for all (Sustainable Development Goal 16.3).45 in terms of its scope, if (for example) IP and or anti-trust matters were excluded, it may end up as a rather modest instrument, but that may be inevitable to attract worldwide participation. In the future, its substantive reach might also be broadened, through additional protocols.46 It will be very important to focus the energy of the Conference on the promotion and follow up on the implementation and application of the future Convention. This will require considerable efforts, from which work on a possible traite double (supra 2.) should not detract. After so many years of intense study, dialogue and negotiations, the 2019 Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters has the potential of meeting the need for a truly global common framework for the circulation of judgments in our emerging world society

ВІДКРИТІСТЬ І ГЛАСНІСТЬ СУДОВОГО РОЗГЛЯДУ ТА ВИКОНАННЯ СУДОВИХ РІШЕНЬ: СВІТОВІ ТА ЄВРОПЕЙСЬКІ СТАНДАРТИ НА ПРИКЛАДІ ЗАКОНОДАВСТВА АНГЛІЇ ТА УЕЛЬСУ, США І ПРАВА ЄС

The article reveals the legal nature of the principle of openness and transparency of a trial and the enforcement of judgments as an integral part of the concept of a person's right to a fair trial. The purpose of our study is to find out the main approaches to the openness and transparency of the enforcement of judgments in the light of international and European standards, such as the laws of England and Wales, the US and EU law. For our comparative study, the United States Federal Rules of Civil Procedure and Civil Procedure Rules of England and Wales have been selected in view of the need to study the world's best practices. The European legislation governing the provisions of the European Enforcement Order and the European Order for Payment and European Small Claims Procedure, are among the objects of our study. Provisions on common minimum stand- ards for civil procedure in the EU, which are in the process of legislative implementation, are examined as examples of the standards of openness and transparency of justice and enforcement of judgments in the EU. They are also among the sources of our study on, transparency and openness in the administration of justice and the enforcement of judgments. In this article the terminological problems of translation of the terms "public hearing", "open court", "open trial" and others relative terms are analyzed in depth, based on their legal content and essence. As a result of the research, the concept of open enforcement of court decisions as an integral part of court proceedings is proposed to imple- ment, in particular, by introducing the institution of review of court decisions and other documents subject to publication in accordance with the procedure established by law, attorneys or agents affairs.

Proceedings with the participation of foreign persons in International Procedural Law of Russia and Armenia (The end)

This article is dedicated to one of the most interesting aspects of International Procedural Law – litigation with the participation of foreign persons. Authors focused on a comparative analysis of Russian and Armenian legislation concerning the regulation of international procedural relations. Article includes two paragraphs: the first one considers International jurisdiction of Russian arbitrazh courts and Armenian courts of general jurisdiction on commercial matters; the second one examines the recognition and enforcement of foreign judgments in commercial matters on the territory of Russia and Armenia. Authors deeply scrutinized a wide range of legal documents including domestic legislation and multilateral international treaties of regional character in order to show the convergences and divergences in Russian and Armenian procedural law concerning participation of foreign persons in International commercial litigation.

О частичном исполнении постановлений Европейского Суда по правам человека: на примере дел Ким и другие против России и Анчугов и Гладков против России

О частичном исполнении постановлений Европейского Суда по правам человека: на примере дел Ким и другие против России и Анчугов и Гладков против России

Ogelegbanwei and Others v. President of Nigeria and Others

State immunity — Jurisdictional immunity — General rule that foreign State immune unless exception to immunity applicable — Enforcement of foreign judgments — Proceedings for registration of judgment against foreign State given by foreign State — Human rights — Whether State immunity applicable for human rights breaches — State Immunity Act 1978, Sections 1 and 5 — The law of England

Tendencije u oblasti nepažnje medicinskog osoblja, sa posebnim osvrtom na Mađarsku

Medical negligence has long been in the focus of legal research in most countries. In some countries, the negligence standard has been replaced by the avoidability standard, the latter leading to a no-fault system. Nonetheless, most legal systems apply the negligence standard. In my opinion, the negligence standard should be sustained because, despite the undoubted advantages of the no-fault system, the 'good old law' on medical negligence promotes greater legal certainty and patient safety. Criminal medical negligence differs from civil medical negligence as regards onus, as well as in other ways. In the UK, many lawyers and physicians have protested against the legal practice of gross negligence manslaughter, an effort which may also serve as an example for other countries. In most continental European countries, the enforcement of a foreign punitive damages judgment would run counter to the ordre public; however, in some countries, such as in France and Hungary, a punitive damages judgment might be enforced.

Отдельные вопросы признания и исполнения иностранных судебных решений в России

This work is aimed to analyze some specific issues of the recognition and enforcement of foreign judgements in Russian in the absence of foreign treaties. Despite the fact that provisions of procedural codes provide for the need of international treaty to enforce foreign judgement, many courts broadly interpret these provisions, allowing enforcement without such treaty with reference to international comity. However, this approach is not well-established, and existing judicial practice which formally interprets aforemen tioned provisions has a negative impact on the protection of the rights and legitimate interests of Russian and foreign persons. The author believes that a refusal to recognize and enforce a foreign judgment can contradict to the international obligations of the Russian Federation, in particular, the duty to ensure the right to a fair trial.

Civil Judgment Enforcement Service Quality: The Case Of Tien Giang Province, Vietnam

The purpose of this paper is to study some key factors regarding the quality of civil judgment enforcement service in the case of Tien Giang province, Vietnam by structural equation modeling using partial least squares (PLS-SEM). This study has involved qualitative and quantitative research. Qualitative research was carried out focusing group discussions with at least 10 leaders in the judicial field, and quantitative research was conducted through direct interviews with 400 respondents including survey civil judgment enforcement officials, judgment execution prosecutors, lawyers, representatives of organizations and civil judgment enforced people in Tien Giang province, Vietnam. The results show that the socioeconomic conditions, legal system, quality of applied decision, human factors, educational level and awareness of law compliance affect the quality of civil judgment enforcement service. However, this study has certain limitations: (i) due to limited resources in conducting research, the sample size consisted of 400 respondents, (ii) the sampling technique included direct interview methods from respondents.

The Court of the Astana International Financial Center in the wake of Its Persian Gulf Predecessors

The new Court of the Astana International Financial Center is an interesting dispute resolution initiative meant to attract investors in much the same way as it has been done in the case of the courts and arbitration mechanisms of similar financial centres in the Persian Gulf. This paper examines such initiatives from a comparative perspective, focusing on their Private International Law aspects such as jurisdiction, applicable law and recognition and enforcement of judgments and arbitration awards. It concludes that their success, especially in the case of the younger Courts, will depend on the ability to build harmonious relationships with the domestic courts of each host country.

Некоторые вопросы криминалистического и оперативно-розыскного обеспечения производства по исполнению итоговых судебных решений

Некоторые вопросы криминалистического и оперативно-розыскного обеспечения производства по исполнению итоговых судебных решений

BREXIT AND THE IMPLICATIONS FOR TACIT CHOICE OF LAW IN THE UNITED KINGDOM

The influence of European Union law on the United Kingdom is noteworthy. In the commercial arena, it has transformed the rules of private international law in the United Kingdom. The European Union has established a common framework for jurisdiction of national courts, the recognition and enforcement of judgments and the determination of the applicable law. The article highlights the implications of Brexit on the determination of the applicable law in the United Kingdom, more specifically, its impact on a tacit choice of law in international commercial contracts. The article examines the current legal position in the United Kingdom (i.e. the legal framework in a so-called “soft-Brexit” scenario). Secondly, the article analyses the effect of a complete withdrawal from the European Union (i.e. the legal framework in a “hard- Brexit” scenario).

Reformulating the common law rules on the recognition and enforcement of foreign judgments

AbstractThis paper revisits the English common law rules on the recognition and enforcement of foreign judgments in personam. It seeks to demonstrate that, mainly due to the narrow conception of the foreign courts’ ‘international jurisdictional competence’, the operation of this aspect of the English conflict-of-laws rules gives rise to problematic outcomes. Subsequently, the paper proceeds to identify and evaluate three of the main doctrinal models which have been proposed in response to these shortcomings. It is contended that, despite their virtues, ultimately, none of these models provides the desirable basis for recasting the law. The paper's main contribution is, therefore, to advance an alternative approach for the reformulation of the recognition and enforcement regime at common law. In this regard, it is argued that the foreign courts’ international jurisdictional competence should be defined more broadly as to include the jurisdictional ‘gateways’, presently codified within CPR Practice Direction 6B para 3.1.

Crisis matrimoniales y la reforma de las reglas domésticas españolas de competencia judicial internacional: paso adelante o paso atrás

Este trabajo tiene por objeto analizar la reciente reforma de las normas domésticas españolas de competencia judicial internacional en materia de crisis matrimoniales. Estas reglas son aplicables en ciertos casos aun cuando la vinculación de los operadores jurídicos españoles (y de los Estados miembros de la UE) por el Reglamento (CE) núm. 2201/2003, del Consejo, de 27 de noviembre de 2003, relativo a la competencia, el reconocimiento y la ejecución de resoluciones judiciales en materia matrimonial y de responsabilidad parental. Se examina la nueva normativa doméstica en su comparación con la derogada, con la intención de determinar si mejora el sistema o, por contrario, no había razón para modificar el régimen anterior.

Jurisdiction, Recognition and Enforcement of Judgments in Seeking Redress for Nuclear Damage

The article is about several procedural issues connected with seeking redress for nuclear damages on the basis of the Vienna Convention on Civil Liability for Nuclear Damage. Not only this Convention refers to substantive law, but it also concerns typically procedural matters such as international jurisdiction, domestic jurisdiction as well as recognition and enforcement of judgments. In some extent it forces domestic legislators to implement some legal norms into national law. Another essential thing is relation between regulations of the Vienna Convention and other legally binding acts in Poland regarding civil procedure.

Chronology of Practice: Chinese Practice in Private International Law in 2017*

This survey contains materials reflecting the practice of Chinese private international law in 2017. First, the statistics of the foreign-related civil or commercial cases accepted and decided by Chinese courts is extracted from the reports of the Supreme People’s Court (SPC), released in 2018, most notably the Report on the Work of the SPC in 2017. Second, two judicial interpretations of the SPC that took effect in 2017 are translated, i.e., the Provisions of the SPC on Issues Concerning Report and Approval of Cases Requiring Judicial Review of Arbitration and the Provisions of the SPC on Several Issues Concerning Trial of Cases Requiring Judicial Review of Arbitration. These two instruments contain provisions reflecting a pro-arbitration tendency in Chinese courts. Another document, the Nanning Statement of the Second China-ASEAN Justice Forum, is also introduced. It contains a commitment to judicial assistance cooperation, especially improvement of mutual recognition and enforcement of judgments. Third, since China signed The Hague Convention on Choice of Court Agreements in 2017, but has not yet ratified it, one case selected in this paper cites the Convention as a reference in its assessment of the exclusivity of the applicable choice of court clause. Fourth, three representative cases with regard to independent guarantee, letter of credit and financial loan contract are examined. These cases from the SPC shed light on the independence principle of the guarantee and the credit, as well as the strict compliance principle. Fifth, three typical cases decided by various Chinese courts during 2017 are introduced. These cases involve issues relating to the law applicable to construction contracts and land contracts, as well as property relationships between spouses. As for the application of international conventions, two separate cases involving the application of the CISG and the Montreal Convention are reviewed. Finally, the paper examines three cases with different or inconsistent practices regarding reciprocity and other issues, given recent increases in the recognition and enforcement of monetary judgments by Chinese courts. In this regard, a unified practice is required in Chinese courts.

Reform of enforcement system: preconditions and perspectives of development

This article deals with problems of enforcement effectiveness and searches of optimal models of enforcement proceedings developing. The author analyzes the present state of enforcement proceedings developing in Ukraine, studies the main stories of legislation in enforcement of judgments in civil justice of Ukraine, changes in the organization of the work of the state executive service bodies, introduction of foreign access and adaptation of the procedure of enforcement of judgments to European standards that affect on the interaction between judicial authorities and authorities of enforcement of judgments. The stories of the civil procedural legislation in the enforcement proceedings are considered in connection with the entry into force of anew Criminal Code of Ukraine, the Law of Ukraine On Enforcement Proceedings, On the and persons engaged in the enforcement of judgments and decisions of other bodies and other legislative documents in the framework of judicial reform. The positive assessment of the introduction of the private performers’ institution and recommendations on the effectiveness of the new legislation realization in enforcement of judgments in civil justice are given. The purpose and objectives of the study is an analysis of the application effectiveness of normative principles in enforcement proceedings; study of stories, advantages and disadvantages of the institute functioning of enforcement proceedings in Ukraine; justification of theoretical-methodological models of enforcement proceedings as a procedure of the civilization process; improvement of civil legal regulation mechanism in enforcement of judgments. The object of the study is the novations of the enforcement of judgments institute in Ukraine, their features and ways of improvement. The subject of the study is certain aspects of the mechanism of the enforcement of judgments, ensuring proper protection of the rights, freedoms and legitimate interests of the enforcement proceedings participants, stories of enforcement proceedings and their implementation in practice.