Enforcement Of Foreign Decisions Research Articles

Jurisdiction in Switzerland in cross-border successions

Abstract When a legal dispute has an international or so-called “cross-border” connection before the Swiss courts or authorities, the private international law of Switzerland (codified in the Federal Act on Private International Law) determines whether Swiss courts and authorities have jurisdiction, which substantive law is applicable, and the recognition and enforcement of foreign decisions, measures, deeds, and rights. In Swiss international law, “residence” is the main connecting factor. Thus, the terminology of “residence” is to be defined, as it is typically the entry point of any case heard in Switzerland, which does not necessarily follow the tax authorities’ or other authorities’ assessment or tax rulings for residency. In recent years, the Federal Supreme Court has had the chance to decide on various cases where residence in cross-border inheritance cases was disputed and some findings led to unexpected and unintended results.

The indirect criteria for the recognition and enforcement of foreign judgments

The twenty-second diplomatic session of the Hague Conference on Private International Law closed on 2 July 2019 with the adoption of the Convention on the Recognition and Enforcement of Foreign Decisions in Civil and Commercial Matters, also known as the Judgments Convention. The present work focused on analyzing the indirect criteria that are provided for in art. 5 of the Conference of the Hague for the recognition and enforcement of judgments. This is an ambitious project that will give rise to a global enforcement regime on the circulation of judgments. The shortcomings are still many as well as the debate between civil and common law, but the time is ripe for a concrete project of broader inspiration, more political and less juridical. The method used in our work is based on comparative doctrine and jurisprudence on a global level.

National codifications of Private International Law: General Law of Uruguay No. 19.920

The processes of national codification of Private International Law and International Civil Procedure in the modern world are characterized by high intensity, but each state demonstrates its own specific features. In this regard, Latin American countries are of great interest – the codified Private International Law appeared in many of them already in the XIX century, and then the processes of its regional unification began. Despite the fact that the national Private International Law in all these countries was initially internationally oriented, each legislator solved the issues of its systematization in his own way. In view of this, it is of interest to undertake a brief analysis of the General Law on Private International Law of Uruguay, which was adopted in 2020 and entered into force in 2021. The research is aimed at clarifying and understanding the motives for the recodification of Private International Law / International Civil Procedure of Uruguay; analyzing the method (form) of codification and identifying the reasons for its election; evaluating the method of codification and the main novelties that have been consolidated in the new normative act. During the research, the relevant legal methodology was used: comparative legal and dialectical methods, methods of historical analysis, semantic and dogmatic interpretation of the law. Analysis of the General Law of Uruguay allows us to conclude that the method of two-fold codification of Private International Law / International Civil Procedure chosen by the legislator is not entirely successful: it lacks the most important part - the rules on recognition and enforcement of foreign decisions. An autonomous complex codification of Private International Law / International Civil Procedure has been carried out in the country, but it turned out to be logically incomplete. The new General Law deserves high evaluation for its content, successfully combining traditional Latin American approaches with the latest developments present in international acts and doctrinal studies.

РЕЦЕНЗІЯ НА МОНОГРАФІЮ І. А. ДІКОВСЬКОЇ "МІЖНАРОДНЕ СПАДКУВАННЯ У ЄС ТА УКРАЇНІ: НАПРЯМИ АДАПТАЦІЇ ПРАВА УКРАЇНИ ДО ПРАВА ЄС" (КИЇВ, АЛЕРТА, 2020)

The review evaluates the content of the monography. It has been concluded that the idea of the monograph is relevant since the rules of international treaties of Ukraine (namely, bilateral agreements on legal assistance) and the Law of Ukraine on Private International Law (hereinafter: PILA) contain some gaps and uncertain provisions regarding international succession law issues which need to be filled or revised respectively. We support the author's suggestion to make such amendments taking into consideration Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, as well as, the EU Private International Law doctrine and solutions to international succession law issues in national law of some the EU Member States. The book consists of 15 chapters which focus on the determination of international jurisdiction in succession matters; determination of the law applicable to succession relations with a foreign element; recognition and enforcement of foreign decisions in succession matters; acceptance of authentic documents created abroad. Many author's ideas seem appropriate. They include the suggestions to determine the scope of law applicable to the succession in PILA; to amend the conflict of laws rules applicable to the form of wills; to include in PILA conflict of laws rules regarding succession agreements; to amend some rules of Civil Procedural Code of Ukraine applicable to recognition and enforcement of foreign decisions in civil matters and others. It was concluded that the monograph would useful f

Recognition and enforcement of foreign decisions in family matters in the Russian Federation

Recognition and enforcement of foreign decisions in family matters in the Russian Federation

The Effect of Enforceability

In this paper, the author focuses on the effect of enforceability, in particular in relation to Austrian law. However, insights into German and European law are also provided. Enforceability is an effect of a judgment which is basically only granted to performance judgments. Declaratory and constitutive decisions (with the exception of the decision on costs) are not enforceable as such. As a result, the order for performance contained in the judgment can be enforced by state coercive measures. Enforceability occurs upon termination of the performance period. Enforceability is neither a consequence of, nor necessarily coincides with, res judicata. The introduction of the Brussels Ia Regulation has fundamentally changed the system of enforcement of foreign decisions. Decisions given in the EU Member State and enforceable in that State are now enforceable in another Member States without the need for a declaration of enforceability.

LE JUGE QUÉBÉCOIS FACE AU DIVORCE ISLAMIQUE COMMENT PRÉVENIR LES DIVORCES «BOITEUX» INTERNATIONAUX? Comment prévenir les divorces « boiteux » internationaux ?

The presence in Canada of a large population from Muslim countries has given rise to new litigation relating to religion-based family institutions. The courts are increasingly called upon to give effect to divorce decisions made under Muslim laws. Despite liberalism characterizing the regime for the recognition and enforcement of foreign decisions, Quebec jurisprudence is prima faciequite resistant to the reception of Islamic divorces. This contribution aims to determine the different variables that influence the effectiveness of these judgments inthe Quebec legal space. The analysis highlights the ambivalence of the case law which reflects the tension between two imperatives: that of preserving the cohesion and the values of the forum's legal order, on the one hand, and that of promoting international harmony between solutions, on the other hand.

The Enforcement of Foreign Decisions Concerning Punitive Damages

On 5 July 2017, the United Sections of the Italian Supreme Court of Cassation delivered an interesting decision in which – for the first time – the Court opened the doors to punitive damages in the Italian legal system. In recent years, scholars have long debated on the role of punitive damages on the availability of punitive damages in the legal systems of the European Union. The case, which is obviously very interesting for the Italian perspective, offers at the same time the opportunity to understand if and under which circumstances punitive damages are admitted by case law also in other civil law countries.

헤이그국제부양청구협약에 있어서 외국부양결정의 승인 및 집행에 관한 해석론적 고찰

오늘날 우리나라를 비롯하여 전 세계적으로 국제적 혼인 및 이혼이 증가함에 따라 섭외적 요소를 지닌 아동의 양육비지급청구사건이나 국제적 부양료청구사건과 같은 다양하고도 복잡한 섭외가사사건들이 점차 빈번해질 것으로 예상된다. 따라서 현재로서는 국제적 부양문제와 관련된 국제협약들 가운데 비교적 최근에 발효된 가장 유력하고도 포괄적인 협약인 헤이그국제부양청구협약에의 가입가능성을 깊이 있게 논의해보는 작업이 매우 의미 있고 시급하다고 할 것이다.BR 특히 본고에서는 헤이그국제부양청구협약에 있어서 외국부양결정의 승인 및 집행에 관하여 해석론적으로 살펴보고 있다. 우선 헤이그국제부양청구협약의 배경, 의의, 목적, 적용범위, 구성, 개요 등 개괄적인 검토를 하고 있다. 그 다음으로 동 협약상 외국부양결정의 승인 및 집행에 관하여 구체적인 내용을 다루고 있다. 즉 승인 및 집행의 적용범위와 원인, 가분성과 부분적 승인/집행, 승인 및 집행의 거부사유, 신청절차, 신청의 대체적 절차, 신청문서를 비롯하여 승인을 위한 신청절차, 사실인정, 본안재심사 금지, 아동/신청인의 물리적 현존 불요구, 부양료조정, 잠정명령/확정명령의 결합된 효과에 의해 형성된 결정, 피제소국에 의한 강제집행 등에 관하여 해석론적으로 고찰하고 있다. 끝으로 우리나라의 현행법상 외국부양결정의 승인 및 집행에 관한 문제를 비교법적으로 분석하고 있다. 즉 외국재판의 승인에 관한 민사소송법 규정과 외국재판의 강제집행 및 집행판결에 관한 민사집행법 규정을 외국부양결정의 승인 및 집행에 적용할 수 있도록 각각 재해석하고, 헤이그국제부양청구협약과의 관계를 정리해보고 있다.BR 실제로 국제적 부양문제가 발생하고 국가들 간에 각기 다른 법체계가 충돌하는 현상황에서 체약국 기관 간에 포괄적인 협력체계를 갖추고, 부양결정의 확립을 위한 유용한 신청규정을 만들며, 부양결정의 승인 및 집행을 위해 규정하고, 부양결정의 즉각적인 집행을 위한 효율적인 수단을 요구함으로써 아동양육 및 다른 형태의 가족부양에 대한 효과적인 국제적 청구를 보장하려는 헤이그국제부양청구협약의 본래적 목적을 심도 있게 되새겨볼 필요가 있다고 생각한다.BR 현재 우리나라는 외국재판의 승인 및 집행에 관하여 민사소송법과 민사집행법상 일반적 규정만을 두고 있는 상태이므로, 국제적 부양문제가 발생하는 경우에는 특히 외국부양결정의 승인 및 집행과 관련하여 볼 때 구체적인 사안에 있어서 그 해석 및 적용상 극히 어려운 처지에 놓이게 될 우려가 있다. 따라서 본고에서 다룬 외국부양결정의 승인 및 집행에 관한 해석론적 고찰을 통해 헤이그국제부양청구협약에의 가입가능성 및 필요성을 보다 더 절실하게 재인식하는 기회로 삼아야 할 것이다.

Međunarodno ostvarivanje izdržavanja članova porodice - birajući između konvencije UN (1956) i Haške konvencije (2007)

Globalization and increased movement of people are a challenge for Private International Law. A proper legal regulation of cross-border dispute cases requires a higher degree of international cooperation. In the context of maintenance, it has generated the partnership of two world organizations, the Hague Conference on Private International Law and the United Nations, each of which has been dealing with this matter in its own way. The result of this cooperation is the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (2007) which, in terms of relations between the Contracting States, replaces the United Nations Convention on the Recovery of Maintenance Abroad (1956). Bearing in mind that the Republic of Serbia is a member state of the 1956 UN Convention only, the paper discusses the need to ratify the 2007 Hague Convention. As compared to the New York Convention, the Hague Convention brings multiple benefits, including: the right to an effective access to procedures, the right to free legal assistance, establishment of diplomatic reciprocity regarding the recognition and enforcement of foreign decisions, well-organized and precisely regulated system of cooperation between the central authorities. Given that the Hague Convention has become part of acquis communautaries, the Serbian ratification of the Hague Maintenance Convention is even more significant.

Service of proceedings on the defendant as a safeguard of fairness in civil proceedings: in search of minimum standards from EU legislation and European case-law

Service of proceedings on the defendant must be effected in such a way that he is able to adequately defend his legal position and is therefore directly linked to Article 6(1) of the European Convention on Human Rights and to Article 47 of the Charter of the Fundamental Rights of the European Union (EU). The European Court of Human Rights (ECtHR) has dealt with service-related issues on many occasions, and so has also the Court of Justice of the European Union (CJEU), especially when dealing with difficulties detected by national courts facing the application of EU legislation. Indeed, the EU lawmaker has been aware of the relevance of first service of process and has afforded it a very significant attention: when regulating cross-border service of the claim; in the context of specific “EU” civil proceedings (like the EU order for payment procedure, the EU small claims procedure or the EU account preservation order); and in the framework of recognition and enforcement of foreign decisions. It is the aim of this paper to analyse the way in which first service of process has been addressed in European legislation, and also, from the point of view of case-law, the way in which the ECtHR and the CJEU have approached this issue. By analysing both Regulations and case-law it may be possible to extract minimum European standards regarding this procedural safeguard which, undoubtedly, can serve as a starting point for EU legislative implementation and, in a perhaps not-so-distant future, to standardize national codes of procedural law.

HOMOLOGAÇÃO DE SENTENÇAS PENAIS ESTRANGEIRAS NO DIREITO INTERNACIONAL PRIVADO BRASILEIRO

O presente trabalho visa analisar o reconhecimento e execução de decisões estrangeiras em matéria criminal, através da produção de efeitos de uma decisão prolatada em uma jurisdição estrangeira no Brasil. Considerando as propósitos e esforços da comunidade internacional em apresentar soluções aos conflitos criminais, que hoje tendem a ultrapassar as fronteiras geopolíticas dos Estados, o reconhecimento e execução de decisões penais estrangeiras é assunto relevante para o combate à criminalidade internacional, principalmente no Brasil, e para garantir às vítimas, a reparação pelo mal sofrido.

Effective firewall legislation--Cook Islands

Ordinary principles of international law require foreign judgments to be recognized and given effect in most offshore jurisdictions. A few jurisdictions have passed special legislation reserving certain areas of their law for application of domestic law only. The Cook Islands amended its law in 1989, reserving certain areas of law relating to Cook Islands international trusts for Cook Islands law only, prohibiting recognition and enforcement of foreign decisions in these areas. Those reservations have been considered by Cook Islands courts. Recent decisions of the United Kingdom Family Courts recognized by the Jersey High Court are examined and the conclusion is reached that a Cook Islands court would not have been able to reach the same decision if the trusts were Cook Islands international trusts.

Decisions in the field of international private law in the practice of the Novi Sad court of cassation between two world wars

This article analyzes decisions in the field of International Private Law of the Novi Sad Court of Cassation, the highest court in Vojvodina during the period between two world wars. Decisions of the Court concerned with the conflict of laws issues were extremely rare during this period. Available case law contains literary one decision dealing with the choice of law problems in cross-border disputes. On the other hand, internal conflicts of laws were much more common as a result of the fact that The Kingdom of Serbs, Croats and Slovenes (from 1929 onwards - The Kingdom of Yugo?slavia) was the country with seven different systems of civil law in force in its territory. Choice of law rules were scant and underdeveloped. Case law of the Court is somewhat more developed when it comes to decisions concerned with international jurisdiction of the courts, recognition and enforcement of foreign decisions and issues of international civil procedure. However, one should bear in mind that many of the disputes with cross--border implications originated not from the will of the parties, but rather as a result of the change of sovereignty over the territory of Vojvodina after World War I.

The New Swiss Law on International Arbitration

ON 18 December 1987, the Parliament of Switzerland finally adopted, by a nearly unanimous vote1, a comprehensive ‘Federal Act on Private International Law.’ This statute, whose preparation by a group of experts had started in 1973, contained 200 articles and deals with practically all domains of private international law including (apart from the conflict of laws in the fields of family relations, corporations, contracts, torts, etc.) jurisdiction of Swiss courts, recognition and enforcement of foreign decisions, bankruptcy and arbitration. A Chapter 12 of the Act (Articles 176 to 194) deals, for the first time in Swiss legal history, with ‘international arbitration,’ which is now clearly and officially distinguished from domestic arbitration, in contradistinction to the present regime of the so-called ‘Concordat’ (Intercantonal Convention on Arbitration, 1969, hereinafter ‘CIA’ as per its French acronym). Having regard to the important rôle traditionally played by Switzerland as a host country to...