Enforcement Of Foreign Judgments Research Articles

Codification of European Private International Law!

Codification of European Private International Law!

Impact of Sanctions on Formation of the Russian Approach to the Legal Regulation of Cross-Border Insolvency

This article is devoted to the analysis of the impact of sanctions and counter-sanctions measures on the formation of the approach of Russian courts to the consideration of disputes in insolvency cases. under the influence of integration processes on a global and regional scale, there is an intensification of foreign economic relations of economic entities from different countries, the interdependence of legal entities is formed within the framework of the international economic process. the active development of international economic activity brings with it not only great profits, opportunities for cost reduction and the development of international communication, but also the most severe crisis phenomena, a great risk of not staying afloat, resulting in a relatively new phenomenon of cross-border insolvency. The author noted the problematic aspects of the impact of sanctions on the consideration of insolvency disputes, including the initiation of bankruptcy proceedings, the inclusion of foreign creditors in the register of creditors’ claims, the recognition and enforcement of foreign judgments. The author studied cases from the latest practice of Russian courts, noted the features of the consideration of insolvency cases involving creditors and debtors of «unfriendly» countries, made conclusions and assumptions about the further development of judicial practice.

Chronology of Practice: Chinese Practice in Private International Law in 2022

Abstract This survey contains materials reflecting the Chinese practice of private international law in 2022. Firstly, the changes in the statutory framework of private international law in China include two legislative acts and one administrative regulation. Moreover, three international treaties in this regard were ratified by the National People’s Congress. Secondly, three judicial interpretations of the Supreme People’s Court (“SPC”) were adopted or amended, and 56 typical cases in six judicial documents on different topics were issued by the SPC. Thirdly, four typical cases on Chinese courts’ jurisdiction; 14 cases on choice of laws on various issues such as foreign investment contracts and negative lists, rights in rem, life insurance contracts and mandatory rules; one case on international judicial assistance rendered to an Argentinean court; three cases on interim measures; three cases on the recognition and enforcement of foreign judgments; nine cases on international arbitration including international sports arbitration and foreign awards, are selected in this survey for their emerging significance. Fourthly, the provisions regarding the extraterritorial application of Chinese laws have been identified for the first time in this series of surveys, shedding light on this aspect of private international law in China. They include those contained in, inter alia, China’s Anti-Monopoly Law, Anti-foreign Sanctions Law, Export Control Law, Securities Law, the Rules on Counteracting Unjustified Extra-territorial Application of Foreign Legislation and Other Measures, as well as the Provisions on the Unreliable Entity List.

Certainly of Divorce Laws in Different Countries Base on Indonesian International Civil Law

Recognition and implementation of the divorce decision. Therefore, a thorough understanding of the principles of private international law is essential to navigate these complex legal challenges. Principles such as lex loci celebrationis, lex domicilii, and the principle of recognition and enforcement of foreign judgments serve as guidelines in handling inter-country divorce cases. Court jurisdiction, the choice of applicable law, and the process of recognizing and implementing divorce decisions between countries are important focal points in legal settlements. International divorce, especially involving spouses of different nationalities, raises a number of complex issues. From determining jurisdiction to choosing the applicable law, every step in the divorce process requires careful consideration. In this context, several international treaties, such as the Convention on the Civil Aspects of International Divorce, provide a uniform legal framework for dealing with such divorce cases.
 In addition, the importance of recognizing and enforcing foreign divorce judgments in other jurisdictions is an important factor in preventing multiple divorces and providing legal certainty. This process involves coordination between countries to respect and recognize foreign court decisions. Protecting children's rights in interstate divorce is an important focus, with jurisdictional determination and appropriate application of the law to ensure the child's best interests are safeguarded. An in-depth understanding of international private law, especially in the context of divorce from different countries, is the key to ensuring justice and legal certainty for all parties involved.
 In handling inter-country divorce cases in Indonesia, especially those involving couples with different nationalities, it is important to pay attention to national legal regulations, applicable laws and regulations, and guidelines from relevant international conventions. The divorce process in Indonesia, as explained in Article 66 of the Marriage Law, must follow the applicable national laws and regulations. This research, using normative juridical methods, provides in-depth insight into how international private law is applied in inter-state divorce cases in Indonesia. By exploring the principles of private international law and examining expert views, this research discusses the legal complexities involving marriage between countries and contributes to further understanding of legal certainty in this context. Overall, interstate divorce opens up a broad discussion of private international law issues, including jurisdiction, choice of law, recognition, and protection of children's rights. With increasing human mobility and globalization, a deep understanding of the principles of international private law is becoming increasingly important in dealing with marriages and divorces from different countries.

Qualification of private divorce in private international law of Germany

The private divorce is such a dissolution of marriage that does not require the participation of the state. The examples are the Islamic talaq in its original concept still existing in some Arabic countries, the customary divorces in some countries of Sub-Saharan Africa as well as, according to the prevailing opinion in Germany, the divorce by mutual consent in the Far-East countries (Japan, Thailand, South Korea). The problem of classifying a divorce in the situation when European legal order raises the question of its recognition is generated by the fact that there is a conflict method for assessing the validity of transactions made abroad in classical private international law, on the one hand, and, on the other hand, the divorce in the European legal orders is the public instrument which is performed by the state or at least by its active participation so that for the purpose of recognition it is submitted to the special procedure of recognition and enforcement of foreign judgments. Private international law of Germany is a unique case of dual classification of the foreign private divorce both as a public instrument (on the ground of fiction) and as a legal transaction according to the purpose of classification. To apply the procedure of recognizing foreign private divorce in Germany, such a divorce is equated to the foreign public instrument. To determine the scope of verification, such a divorce is regarded as a legal transaction and submitted to the conflict of laws-approach, not to the approach of procedural recognition.

Recognition and Enforcement of Foreign Judgments in International Sales Contracts: A Comparative Study of the Brussels I bis Regulation and the Law of Ghana

Recognition and Enforcement of Foreign Judgments in International Sales Contracts: A Comparative Study of the Brussels I bis Regulation and the Law of Ghana

„Brexito“ įtaka tarptautiniam bylinėjimuisi

By concentrating on the few recognised instruments of private international law, the article analyses problems in international commercial dispute resolution arising from Brexit. In particular, the paper deals with the relevance of, firstly, the 2007 Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters; secondly, the 2005 Hague Convention on Choice of Court Agreements; and, thirdly, the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, all in the context of Brexit. Contextual analysis of each of the said instruments pays particular attention to the challenges specific to each of them. Therefore, for example, the article discusses the EU’s arguments in relation to its refusal to allow the United Kingdom to join the aforementioned 2007 Lugano Convention as well as varying perspectives on the moment when the 2005 Hague Convention begins to apply to the United Kingdom. Finally, the paper discusses the relevance of the recent 2019 Hague Convention in the context of Brexit.

Practical application of the reciprocity principle in the recognition and enforcement of foreign judgments in civil and commercial matters in Vietnam

The reciprocity principle was first introduced in Vietnam by Decree 83/1998 to allow for the recognition of foreign non-executionary judgments, decisions on family and marriage matters in Vietnam. It was then adapted in the first Civil Procedure Code in 2004 and was later modified in the current Civil Procedure Code for the purpose of recognition and enforcement of foreign judgments from non-treaty countries. This article examines the practical application of this reciprocity principle in Vietnamese courts by analysing cases in which they have recognised or denied recognition to foreign judgments in civil and commercial matters (that is, non-family matters), as well as a recent development in the Supreme Court’s Resolution Draft on guidance on the recognition and enforcement of foreign judgments, which adopts a presumed reciprocity approach. The article concludes that the courts have not applied the reciprocity principle in a consistent manner. The resolution for this current problem is for the presumed reciprocity approach to be promulgated soon to facilitate a uniform application in the local courts.

Developing Chinese Private International Law for Transnational Civil and Commercial Litigation: The 2024 New Chinese Civil Procedure Law

On 1 September 2023, the Standing Committee of the National People’s Congress amended the Chinese Civil Procedure Law which will come into effect on 1 January 2024 (‘the 2024 CPL’). The 2024 CPL brings significant changes to the entire procedure of transnational civil and commercial litigation in China covering jurisdiction, service of process, the taking of evidence abroad, and the recognition and enforcement of foreign judgments. It is critical for foreign states, courts, and parties which conduct business in China to understand this new legal development and to prepare for the changes. Adopting comparative-law and empirical research methods, this commentary aims to explain the new provisions for transnational civil litigation in the 2024 CPL and how they may be implemented in practice.

Public Policy a Hurdle Under the Indian Arbitration Law: Critical Analysis

The traditional role of public policy was to limit the scope offoreign law, recognition, and enforcement of foreign judgments or awards. Sometimes domestic courts use this doctrine to strike down the foreign arbitral awards. Though the disputing parties are free to choose applicable laws in international commercial arbitration, when it comes to the recognition and enforcement of an award they rely on the domestic laws and courts. If the court thinks that an award before them deals with a matter violates public policy, the court may refuse to recognise and enforce it. There is no uniformity in public policy notion among the states, it has been interpreted in different ways indifferent jurisdictions so it becomes very difficult to say which award will be allowed and which will violate the principle. Therefore, it becomes a big hurdle in the way of international commercial arbitration. To deal with this issue Indian judiciary took a step to define it and limit the scope doctrine of publicpolicy. Finally, in 2015 Indian Parliament amended the Arbitration and Conciliation Act, 1996, and clarified the term ‘public policy’.

Conditions for the Recognition and Enforcement of Foreign Judgments on Disputes Involving «Sanctioned» Persons in the Russian Jurisdiction

The paper aims at studying the legal nature and procedure for applying the rules of arbitration procedural legislation, which determine the conditions for the recognition and enforcement in Russia of foreign decisions on disputes involving «sanctioned» persons. These conditions are both an additional guarantee and a means of protecting the rights of these persons. The author argues that the legislator’s admission of the issuance of an exequatur to a foreign decision taken at the suit of a «sanctioned» person is justified, since the said person himself initiated a lawsuit in a foreign jurisdiction. The objections of the «sanctioned» person against the consideration of the case by a foreign court with his participation are characterized as one of the procedural and legal means of protecting the rights of the defendant, aimed at completing the consideration of the case without making a decision on the merits. The paper concludes that the fact of filing these objections in a foreign court is assessed taking into account the procedural norms of the place where the case is heard, the obstacles in their statement due to the effect of sanctions and the applicant’s good faith.

THE EFFECT TO STIRRING THE PUBLIC ORDER ON THE APPENDIX OF FOREIGN DECISIONS IN THE EXEQUATUR

The concept of public order is ambiguous and difficult to determine its exact scope, and its content varies according to the circumstances of each time and place. Thus, what is considered public order in one country is not considered so in another, this is according to the economic, political and social variants. This system is considered as a restriction to the exequatur of foreign decisions in case they violate the public order prevailing in the country of implementation. In any case, the public order differs its role between internal private relations and international private relations; where based in the first, to ensure that there is no voluntary deviation from the provisions of jus cogens in the judge's country, while in international private relations, it is used to exclude the implementation of decisions issued by various foreign courts before the judge's state. When nationals have recourse to foreign jurisdiction or arbitration outside the country of enforcement, this is due to the presence of a foreign element and the exequatur to the foreign judgment was rejected in the executive form. Hence the importance of public order to consider it as an objective condition for the enforcement of foreign judgments, which is automatically raised by the enforcement judge. Or encourage the parties to defend their interests to the conflict. The purpose of this study is to clarify the ambiguity and limitations of public order, and try to mitigate them, by finding effective ways to preserve the rights of individuals established or have been decided by a foreign decision, by answering the following problem: Is it palatable to find a unified concept of public order regardless of the various texts and references of the issuing country of the decision in relation to the country of implementation of this foreign decision?.

Enforcement of foreign judgments – Israel as a case study

This article shows how enforcement of foreign judgments in Israel works in practice. Using an original hand-coded dataset, the article seeks to determine empirically which factors increase the likelihood of a foreign judgment being enforced by Israeli courts. To do so the article makes use of two major theories about enforcement of foreign judgments – international comity and vested rights. Also, the article hypothesises that enforcement can be influenced by specific characteristics of the Israeli court and the foreign judgment. The article finds that the best predictor of foreign judgment enforcement in Israel is the specific characteristics of the foreign judgment and of the Israeli court – cases with a contractual-commercial nature, and cases brought before one of the central districts of Israel are more likely to be enforced. Additionally, the volume of trade between the issuing country and Israel might also be a certain predictor of enforcement. Finally, the article finds that the due process in individual cases might have some influence on the enforcement decision.

2022년 민사소송법 중요 판례 평석

In 2022, the Supreme Court issued several significant precedents in Civil Procedure Law. This article highlights seven key precedents relating to the Civil Procedure Law that were issued in 2022. Some of these precedents also touch on other legal areas such as civil law, commercial law, and civil enforcement law, but they were considered within the context of civil litigation legal issues. The seven precedents that are discussed in this article include: 1) the recognition and enforcement of foreign judgments that mandate double compensation; 2) the disclaimer of a lawsuit and the suspension of prescription following the invalidation of a contract name trust; 4) the criteria for determining the eligibility of parties in a lawsuit for the return of co-owned property; and 7) others. Additionally, 14 cases were summarized and classified separately based on the other precedents of the Civil Procedure Act issued in 2022.
 While this article only provides a brief overview of these precedents, it is intended to be a useful resource for future studies on the 2022 civil procedure law cases.

Industrial Property Arbitration in Turkey: An Analysis in Comparison with Swiss Law

Abstract Given the difficulties in international intellectual property litigation, such as jurisdictional issues, choice of law, and recognition and enforcement of foreign judgments, arbitration and other dispute resolution mechanisms may be better tailored to resolve intellectual property disputes. Under Swiss law, these disputes are arbitrable to such an extent that arbitral tribunals seated in Switzerland and state courts are equally competent to rule on the validity of industrial property rights. This paper assesses the arbitrability of industrial property disputes under Turkish law, under which there is neither a specific statutory provision nor an official decision regarding their arbitrability. The paper concludes that disputes arising from industrial property rights should be considered arbitrable under Turkish law, provided that for disputes over the validity of industrial property rights, the arbitral tribunal decides on the industrial property rights’ enforceability and the arbitral award has an inter partes effect. Although submitting industrial property disputes, especially those on employee inventions, to arbitration may in certain cases not be accepted due to the intention to protect the weaker party, employees are obliged to resort to arbitration for the resolution of their employee invention disputes under Turkish law. This paper also examines the resolution of employee invention disputes by way of arbitration from a comparative perspective.

Chronology of Practice: Chinese Practice in Private International Law in 2021

Abstract This survey contains materials reflecting the Chinese practice in private law in 2021. Firstly, regarding changes in the statutory framework of private international law in China, six legislative acts, one administrative regulation on Counteracting Unjustified Extra-Territorial Application of Foreign Legislation and Other Measures, and six judicial interpretations of the Supreme People’s Court (“SPC”) were adopted or amended in 2021, covering a wide range of matters, including punitive damages, online litigation, online mediation, and international civil procedure. Secondly, five typical cases on Chinese courts’ jurisdiction are selected to highlight the development of Chinese judicial practice in respect of consumer contracts, abuse of dominant market position, repeated actions and other matters. Thirdly, this survey considers 18 cases on choice-of-law issues relating, in particular, to capacities of legal persons, proprietary rights, employee contracts, mandatory rules, gambling and public policy. Fourthly, two significant decisions on punitive damages of intellectual property are reported. Fifthly, several key decisions in the recognition and enforcement of foreign judgments, international arbitration agreements and foreign settlement agreements, are reproduced. Lastly, this survey also covers the Summaries of the National Symposium on Foreign-related Commercial and Maritime Trials of Courts published by the SPC, an official document which represents the current judicial practices in the Chinese courts, and which is expected to provide guidance in the adjudication of foreign-related matters in the future.

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.

The Reciprocity Principle in Recognition and Enforcement of Foreign Judgements: Dilemma and Solutions

In China's judicial practice, de facto reciprocity is the underlying principle for recognition and enforcement of civil and commercial judgments and rulings by foreign countries with which China has not concluded bilateral or international treaties. The principle of reciprocity, now widely considered the key basis for recognition and enforcement of foreign judgments, should be reviewed since misuse of this principle may incur revanchism or impede the smooth enforcement of judgments. Based on the implementation of reciprocal recognition and enforcement of foreign judgments in China, the varied interpretations of judicial practice are critically analyzed, and suggestions for legislative and judicial practice are proposed from six perspectives including jurisdiction, due process, and legitimacy of judgments. The present work is intended to improve China's system of recognition and enforcement of foreign judgments and enhance China's image in international judicial practice.

"Judicial Convention": Issues of Jurisdiction

Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Cases of July 2, 2019 (The 2019 Convention) offered us the option of universal regulation of recognition and authorization of execution of a foreign judgment. However, is he that good? The aim of the work is to identify the advantages and disadvantages of the new universal legal regulation in relation to the issue of jurisdiction. The author analyzes the approaches used in the national legislation of various states to consolidate the rules of international jurisdiction for the purposes of recognition of foreign judicial decisions. General scientific and special methods of cognition, including formal-logical and comparative-legal, were used as research methods. The article demonstrates the dependence of the legal consequences of accession to the 2019 Convention on the approach implemented in national legislation to the regulation of indirect international jurisdiction, as well as on the ratio of the scope of competence of national courts according to national legislation and the jurisdictional filters established in the 2019 Convention. The conclusion is substantiated that the conclusion of the 2019 Convention on the proposed conditions on indirect international jurisdiction does not meet the interests of the Russian Federation. As a measure to increase the competitiveness of the jurisdiction of the Russian Federation, it is proposed to introduce into national legislation legal norms on indirect jurisdiction that consolidate the recognized competence of foreign courts in an amount not exceeding that which defines the competence of national courts to consider cases with a foreign element.

Italy and the Enforcement of Foreign Judgments on Third States’ Tort Liability for Sponsoring Terrorism

Abstract The present comment deals with the much-debated issue of the denial of foreign States’ jurisdictional immunity for acta iure imperii resulting in serious violations of human rights. This question came to the fore in Italy in the early 2000s and has since led to a stark contrast between the International Court of Justice, on the one hand, and Italian courts, in particular the Constitutional Court, on the other. Against this backdrop, these pages are aimed at analysing Order No. 39391/2021 of the Italian Corte di Cassazione, which concerns a proceeding for the enforcement of a US judgment condemning Iran to pay damages to the victims of the 9/11 terrorist attacks. Based on the reasoning of the decision, this comment argues that Italian courts, while praiseworthy for attempting to protect fundamental human rights, seem to have renounced speaking the language of international law.