Foreign Judgments Research Articles

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 judgments delivered in member states of the European Union

Recognition is the process by which the authority of a foreign judgment is established, i.e. the effects of a foreign judgment are allowed to take effect in the territory of the State addressed. The concept of foreign judgment includes both contentious and non-contentious acts. The authority from which it emanates is irrelevant. Foreign judgments may be court judgments, authentic instruments or court settlements (which are assimilated to authentic instruments). In Romania recognition is allowed either by operation of law or by court decision, subject to certain specific conditions. The regulations contained in the Code of Civil Procedure on the recognition of foreign judgments usually apply to judgments from non-EU countries. In order to produce legal effects, the foreign judgment must be recognized and enforced, which is not automatically done through 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

Recognition and Enforcement of Annulment Judgments under the New York Convention

This article explores the heavily debated issue of enforcement of annulled arbitral awards through the framework of American caselaw. It focuses on recent jurisprudence from the Second and Tenth Circuits, which has developed a ‘foreign judgments approach’ in purporting to apply private international law principles when determining the question of enforcement under the New York Convention. This article argues that while a foreign judgments approach is appropriate, the recent caselaw from the American courts is problematic, as it is out of step with the broader regime of foreign judgment recognition and enforcement. This article also addresses some criticisms of the foreign judgments approach which have received less attention in the academic literature on the subject.While this article’s primary focus is on the United States’ approach to annulled awards, the caselaw in this jurisdiction is of relevance to others (particularly the United Kingdom) which have adopted a foreign judgments approach. annul, annulled, New York Convention, Article V, Pemex, Esso, Compañía, set aside

Navigating the New Era: the emergence of China’s international commercial courts

ABSTRACT Alongside China’s increasing efforts to update its legal regime facilitating the ‘One Belt and One Road Initiative’ and strengthening foreign-related rule of law, China’s Supreme People’s Court (SPC) and some lower courts are playing a vital role in modernizing international commercial litigation. The SPC, leading lower Chinese courts, has been zealous in reforming international commercial litigation, and piece-meal measures were adopted over the years. The most salient step is the establishment of international commercial courts (CICCs), accompanied by the use of such mechanisms as anti-suit injunctions, forum non conveniens, and de jure reciprocity favouring foreign judgments recognition in China. These judicial efforts and the expected moves alike will definitely contribute a lot to internationalization of China’s international civil procedure towards the global mainstream. However, the systemic deep judicial and legislative reforms are both needed for China’s international commercial litigation to go global and moreover, the process shall be conducted with an eye towards keeping it current and enhancing its relevance to the realities of today’s dispute resolution world.

The relationship between the Hague Judgement Convention, the Brussels Ibis Regulation and the agreement between Ukraine and the Republic of Lithuania on legal assistance

"The aim of this article is to analyse the correlation between the Hague Convention on the Recognition and Enforcement of Foreign Judgements in Civil or Commercial Matters (hereinafter – Convention, Hague Judgement Convention), Regulation No. 1215/2012 of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters (hereinafter – Brussels Ibis Regulation) and the Agreement between the Republic of Lithuania and Ukraine on legal assistance (hereinafter – Agreement). To achieve this goal, the first part of the article analyses historical models of regulation in the sphere of enforcement and recognition of foreign judgements. The second part of the article defines the scope of application of the Hague Judgement Convention and compares it with the scope of application of the Brussels Ibis Regulation. The third part is devoted to the determination of the scope of the application of the Agreement. Parts five and six analyse the types of ‘relation clauses’ adopted in the Convention and the Brussels Ibis Regulation and define the order of the application of international instruments. The materials used include literature and scientific publications relating to resolving conflicts between international instruments in the field of recognition and enforcement of foreign judgements. The following methods were used to write this paper: description, analysis, synthesis and comparison. Keywords: the Hague Judgement Convention, the Brussels Ibis Regulation, bilateral agreements, relationship."

„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.

Photography as an object of copyright

Copyright, the norms of which regulate relations that arise in connection with the creation and use of works of science and art. Copyright is an important component of the universal system of human rights, copyright is one of the essential guarantors of intellectual creativity, self-affirmation and dignity of every person. From whatever side copyright is analyzed, its purpose is to protect the interests of the creator of works and the interests of society. A photo can be created not only by a professional photographer, but also by any other individual. This is where the opportunity enshrined in the law to realize their creative abilities of each member of society is manifested.This article deals with issues related to a special object of copyright - photography. With the adoption of the new Law of Ukraine «On Copyright and Related Rights», the approach to understanding photography has changed. This is connected with the legal definition of the concept of a work and its features. Signs of originality and objective form are highlighted. Moreover, the legislator clearly defines which photographs should be attributed to objects of copyright, and which photographs are not subject to legal protection. This approach will greatly facilitate the resolution of issues related to the establishment of which photographs are subject to copyright. The Law of Ukraine «On Copyright and Related Rights» clearly states that photographic works are subject to legal protection. Based on the legislative definition of a work as an object of copyright, we can conclude that only original photographs are subject to legal protection. Moreover, paragraph 8 of Art. 8 of the Law of Ukraine «On Copyright and Related Rights» clearly defines that photographs that do not have a sign of originality are not photographic works. An analysis of some foreign judgments regarding the legal nature of photography makes it possible to conclude that a photograph is considered as an object of copyright if there are signs inherent in the work. he study conducted in this article confirms the correctness of the legislative understanding of photography as an object of copyright.

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’.

The Recognition and Enforcement of a Foreign Judgment that Ordered Punitive Damages - Provoked by the Supreme Court Decision 2018Da231550 rendered on March. 11. 2022 -

The Recognition and Enforcement of a Foreign Judgment that Ordered Punitive Damages - Provoked by the Supreme Court Decision 2018Da231550 rendered on March. 11. 2022 -

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?.

Extra-territoriality and the UK Insolvency Act 1986

AbstractThis paper considers whether UK corporate insolvency law and the UK Insolvency Act 1986 have extra-territorial effect post-Brexit, and whether – and to what extent – it is for the courts or the legislature to extend any extra-territorial effect. It does not deal with ‘inward recognition’, ie the recognition of foreign judgments and orders in the UK.Brexit has left something of a vacuum and provisions which might otherwise have applied extra-territorially, at least within the EU, may now have been deprived completely of extra-territorial effect. But all is not lost and Brexit here presents opportunities. There is room for clarifying that particular provisions which might otherwise have discriminated between EU application and application vis-à-vis the rest of the world can now be given a uniform global interpretation. Courts should, however, proceed incrementally in extending the extra-territorial scope of UK corporate insolvency law.A bolder reform would be to enact legislation that specifies the exact extent to which the UK Insolvency Act applies extra-territorially. Legislation obviously depends on parliamentary time and requires detailed drafting but also provides the opportunity for the UK to showcase that it remains at the forefront of international insolvency developments.

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.

Protection against the breach of choice of court agreements: A comparative analysis of remedies in English and German courts

In fixing the place and provider for the resolution of disputes in advance, choice of court agreements increase procedural legal certainty and the predictability of litigation risks. Hence, their protection is crucial. This article undertakes a functional comparison of the remedies for breach of exclusive choice of court agreements in English and German courts, painting a picture of different approaches to a common problem. English courts, now no longer constrained by EU law, employ an entire arsenal of remedies, most strikingly the anti-suit injunction and damages effectively reversing a foreign judgment. In contrast, German courts exercise greater judicial restraint, even though damages for the breach of a choice of court agreement have recently been awarded for the first time. Against this backdrop, two distinct but interrelated reasons for the diverging approaches are identified and analysed, the different conceptions of choice of court agreements and the different roles of comity and mutual trust.

Recognition of foreign decrees of divorce in the German legal system

INTRODUCTION. The object of the research consists in the specific procedure of the recognition of foreign decrees of divorce which exists in the German law. The actuality of the object of the research is confirmed by keeping of this procedure during many decades, as well as nowadays, in regard of the recent reform of the law of the European Union about the mutual recognition of decisions in matrimonial matters.MATERIALS AND METHODS. The article is based on the Act of the Federal Republic of Germany of 2009 on Proceedings in Family Matters and on the Family Law Reform Act of the Federal Republic of Germany of 1961, as well as both on the case law to the application of these Acts and on the German legal doctrine which analyzes it. The first Act is and the last Act was before the legal basis of that procedure of recognition. To achieve the results were applied the general and specific scientific methods, in particular the method of comparative legal study.RESEARCH RESULTS. The research result consists in the presentation of the analyzed procedure of recognition of foreign decrees of divorce in German law. It is considered that this procedure is constructed after the model of the recognition and enforcement of foreign judgements. Until the foreign decree of divorce is not recognized in the framework of this procedure, this decree is completely ignored by the German authorities, that means the spouses divorced by the foreign court remain spouses from the point of view of German law with all the ensuing consequences in the field of property and non-property rights both between each other and in the relations with the thirds parties. This procedure is realized by the regional administration of justice whose decision may be a subject matter of scrutiny by the appellate court. Although the delegation of this power to the executive raises by some authors the doubts about its constitutionality, the case law proceeds from the legitimacy of this competence.DISCUSSION AND CONCLUSIONS. The German concept of the obligatory preliminary recognition of foreign decrees of divorce is the equal alternative to the concept of automatic recognition of foreign judgements ruled on the status and legal capacity which exists in Russian law.

«Фактор доверия» как основное препятствие признания и исполнения иностранных судебных решений

September 1, 2023 is the date of entry into force of the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (adopted on July 2, 2019 as part of the 22nd session of the Hague Conference on Private International Law). Russia signed the Convention on November 17, 2021. Despite the fact that in the current geopolitical situation one could hardly expect this Convention to be ratified in the short or medium term, the discussion on the preparation and conditions for ratification, the changes in legislation necessary for its use, the consequences for law enforcement practicestill appears to be relevant. The current principles of Russian law and the law of other countries in relation to the recognition and enforcement of foreign court judgments should be analysed. To this end, first of all, the legal basis for the recognition of foreign court judgments in Russia prior to the ratification of the Hague Convention in 2019 should be presented and the approaches of private international law and the law of other countries to the recognition of foreign court judgments should be analysed. If the approach to the ratification of the Сonvention persists, the issue of amending the Civil Procedure and Arbitration Procedure Codes of the Russian Federation will arise. The ratification process is undoubtedly affected by Western sanctions against Russia and Russian businesses and the loss of mutual trust. Trust is a key factor when considering the recognition and enforcement of foreign judgments.

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.