Foreign Judgments Research Articles

Possible impact of the 2019 Hague Convention on the recognition and enforcement of foreign judgments in civil or commercial matters on the grounds of international competence in Ghana

The 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters is a product of the Judgments Project of the Hague Conference on Private International Law. The Hague Judgment Convention has the advantage of providing business partners with a simple, efficient, and predictable structure with regards to the recognition and enforcement regime; as well as reducing related cost. More specifically, the convention fosters predictability and certainty in international commercial relations by enabling international commercial partners to be precisely informed of the grounds on which the decision of the court of one contracting state will be recognised or enforced in the territory of another contracting state. The Convention offers a wide range of jurisdictional filters for the purposes of recognition and enforcement of judgments from Contracting States. This article discusses the modern and innovative grounds of international competence introduced by the Hague Convention and its potential impact on the grounds of international competence for Ghana if Ghana ratifies the convention. The article recommends the ratification of the 2019 Hague Judgment Convention as it would be of enormous benefit to Ghana whose grounds of international competence when it comes to recognition and enforcement of foreign judgments seems antiquated and confined only to residence, submission and more controversially, the presence of the judgment debtor in the jurisdiction of the foreign court.

Ordre public and non-enforcement of judgments in intra-EU civil matters: remarks on some recent Polish-German cases

The article discusses the enforcement of foreign judgments within the European Union and the public policy (ordre public) exception. It is mainly focused on some recent judgments of Polish and German courts. On 22nd December 2016 and 23rd of March 2021 rulings in cases of infringement of personality rights were issued by the Court of Appeal in Cracow (ordering an apology and correction). The enforcement of the former ruling was dismissed by the German Supreme Court (Bundesgerichtshof, BGH) (IX ZB 10/18) on 19th July 2018. The non-enforcement was justified by invoking German ordre public and “freedom of opinion” as a constitutional right stipulated in Article 5 of the German Constitution (Grundgesetz). A reference to the CJEU ruling of 17 June 2021 is also presented. After presenting the issue of ordre public in the context of enforcement of foreign judgments within the EU, the authors evaluate as questionable the argumentation of the BGH in its 2018 judgment. The Polish ruling ordering the defendant to correct and apologise for the false statement was included by the BGH in the category of “opinion” (Meinung) protected by the German Constitution. Enforcement of the judgment of the Polish court in Germany was held to be contrary to this German constitutional right and the enforceability of the Polish judgment was denied as being manifestly contrary to German public policy. The authors support the functioning of the ordre public clause in intra-EU relations. It is justified inter alia by the large differences in EU legal systems and future possible changes. However, the common standards of the ECHR should be particularly taken into consideration when applying the public policy clause, because they co-shape the EU legal systems.

South African Creditors May Wield the Gibbs Rule to Confront an Italian Pre-Insolvency Statutory Restructuring Composition

This article summarises the judgment in Cooperativa Muratori & Cementisti & others v Companies and Intellectual Property Commission & others, in which the Supreme Court of Appeal confirmed the statutory denial of business rescue to external companies and refused to recognise and apply the Italian restructuring process in South Africa. The article then discusses the private international law (conflict of laws) on the discharge of a contract by a foreign sequestration or liquidation, and the statutory novation of the contract by a foreign pre-insolvency composition or restructuring. Central to the debate over characterisation and choice of law (between contract or insolvency) is the effect of the Gibbs rule, a long-standing feature of the law of the United Kingdom, South Africa, and several other countries, but increasingly controversial because of contemporary ideas of cross-border insolvency law. The article argues for an approach based on contract and company law rather than insolvency law, because pre-insolvency proceedings, by definition, do not involve a winding-up order or a liquidation process, and, if timely and successful, prevent both. The South African private international law on the recognition of a foreign pre-insolvency statutory composition or restructuring as a foreign judgment may thus need to be reconsidered.

The Reciprocity Principle in Refusal to Recognize or Enforcement of Foreign Judgments

The Reciprocity Principle in Refusal to Recognize or Enforcement of Foreign Judgments

Giving Effect to a Foreign Extrajudicial Divorce Through Judicial Intervention and Recognition

A foreign divorce, i.e., a divorce constituted abroad or according to foreign law, should be accepted into the Korean legal order, as long as no particular problem exists. The purpose lies in preserving and promoting the stability of cross-border legal relations in personal matters. Two approaches exist in this regard: the applicable law approach and the judgment recognition approach. The recognition of legal situations, which dispenses with a substantive review of whether the lex causae was correctly applied, belongs to the applicable law approach. Although there is an opposing view, the judgment recognition approach is not superior to the applicable law approach in all respects. Particularly, the conditions of recognizing a foreign judgment may be interpreted less favorably than those of recognizing a foreign legal situation. Firstly, forum legis may not be upheld as a basis of divorce jurisdiction. Secondly, the interpretive efforts to do away with the reciprocity requirement may fail. Thirdly, the process of consensual divorce as pursued in the receiving state may be seen as violating the territorial integrity of the receiving state, due to an emphasis given to its territorial sovereignty. Fourthly, an uncompleted consensual divorce may be an object of applying the lex causae, and even the object of recognition pursuant to the doctrine of recognizing a foreign legal situation. In order to embrace those possible advantages of the applicable law approach, the concurrence should be upheld between the judgment recognition approach and the applicable law approach. The conditions of recognizing a foreign judgment in family matters should be construed as being limited to international adjudicatory jurisdiction and the congruence with public policy. The requirements of the legality of the service of process and the reciprocity should be discarded, even in interpreting the existing law. This differentiation may be made in the course of applying Article 217 of the Civil Procedure Act mutatis mutandis, pursuant to Article 12 of the Family Procedure Act. On the other hand, Korean courts should also dispense with a scrutiny of whether the foreign court applied the same law as Korean courts would apply in the same situation. Furthermore, forum legis should be added to the list of jurisdictional bases. This will prevent the imbalance between the judgments recognition avenue and the applicable law avenue, including the recognition of a foreign legal situation, in particular.

Legal Regime for the Enforcement of Foreign Court Judgments and Arbitral Awards in the Eurasian Economic Union

In today’s world, there is intense competition between integration entities that are working to strengthen and expand their political and economic positions. This article examines the movement of the Eurasian Economic Union in this direction. Aim. To propose a way to ensure a common legal space in the Eurasian Economic Union.Tasks. To analyse the regulation in force in the Eurasian Economic Union on the execution of court judgments and arbitral awards, to identify problems that member states of the Eurasian Economic Union may encounter in the execution of court judgments and arbitral awards.Methods. In this work were used both general scientific methods of knowledge: analysis, synthesis, generalization, and particular scientific methods: formal-logical, formal-legal, comparative-legal, method of legal prediction.Results. One of the most acute problems faced by states in the execution of judicial and arbitral decisions is the problem of execution of annulled judicial or arbitral decisions. To prevent this problem within the European Economic Union, the author considers that the members of the European Economic Union should not accede to the Convention on the Recognition and Enforcement of Foreign Judgements in Civil or Commercial Matters of 2 July 2019, as it does not resolve the fate of annulled judgements. With regard to arbitral awards, it would be desirable for the Member States of the European Economic Union to conclude between themselves a protocol to the Convention on the Recognition and Enforcement of Arbitral Awards of 10 June 1958, which would exclude the enforceability of annulled arbitral awards in all the States parties to the Protocol. The drafting of this additional protocol could be entrusted to the Eurasian Economic Commission of the European Economic Union.Conclusions. The Eurasian Economic Union needs to create a predictable legal space, which would primarily be ensured by the free movement of judicial and arbitral decisions.

The Balance Between the Public Order Preservation Policy and the Protection of Children's Interests in Cross-Border Surrogate Parentage

The international community is widely divided on the validity of surrogacy, which has led to the phenomenon of cross-border surrogacy conflicts and triggered the application of public order reservation on the issue of cross-border surrogacy and recognition of foreign surrogacy judgments. In the process of applying public order, the judges of various countries are prone to abuse their discretionary power due to the rigidity of the connotation and theory of public order, and the unclear standard of invoking public order, which interferes with family life and is detrimental to the protection of children. This paper argues that in the parent-child relationship of cross-border surrogacy, public order reservation and protection of children's interests are equally important issues, and cross-border surrogacy judgments should strike a reasonable balance between public order reservation and the principle of the best interests of children. Not only it is necessary to enrich the theory of public order reservation and improve the rules of its application, but the principle of the best interests of the child should be implemented to the greatest extent possible to protect the interests of the surrogate child.

Unjustified Interruption of the Taking Evidence by the Court of Origin as a Ground to Refuse Cross-Border Enforcement Under the Brussels I Rules

Abstract The contribution examines a recent decision by the Italian Corte di Cassazione rendered in matters of recognition and enforcement of foreign judgments issued in other European Union Member States. By analysing the reasoning of the Italian Corte di Cassazione in the application of the public policy test as a ground to refuse enforcement in Italy of a Polish ruling, the Corte di Cassazione’s methodological approaches are scrutinised against the background of the founding principles of mutual trust and free movement of decisions in the European judicial space. The conclusions of the Italian Corte di Cassazione are supported as it emerges from the commented decision that the public policy exception is applied in such a way to avoid an application that would go beyond its scope and purpose. More specifically, the circumstance a foreign decision has been adopted without an evidence being taken has not been considered to be in violation of a general substantive “right to evidence,” whilst it has been deemed that, in relevant fields of life, the lack of taking of an evidence already admitted to trial by the court of origin does constitute a breach of a (constitutionally protected) procedural fair trial in Italy.

Recognition of a status acquired abroad

Analyzing the recent Italian case-law is clear that a difficult balance is maintained between the Italian Law and the State’s obligation to recognize a foreign status under the EU law and ECHR principles. Moreover, the recognition of foreign judgment and provisions related to personal status are surely interconnected with the role of public policy, on one hand, and the effectiveness of human rights on the other hand.

일제강제징용 배상판결에 대한 민사소송법 쟁점의 검토

Legal remedies for the forced labor of the Korean people for the production of military supplies by Japanese companies during the Japanese colonial period have not been appropriately implemented to this day. Accordingly, the victims first requested a Japanese court for damages against Japan and Japanese companies, and the Japanese court dismissed and confirmed the plaintiff s claim. Victims claimed for damages to the Korean courts again, and the Supreme Court Decision 2009Da 68620 and the Supreme Court en banc Decision 2013Da 61381 after reversed were in favor of the plaintiffs. It is the first final and groundbreaking judgment in favor of the plaintiff in legal actions related to various compensations filed by victims of the Japanese colonial period against the Korean and Japanese governments, Etc. In the above case, the courts start from the domestic jurisdictional provisions of the Civil Procedure Law in determining international jurisdiction. In addition, the courts consider the ideology of the distribution of international jurisdiction, the distinctiveness of international jurisdiction, predictability, Etc. by accepting substantial relations. Moreover, the courts affirmed that the situation of the Republic of Korea, the conclusion of the Korea-Japan Claims Settlement Agreement, and follow-up measures are more closely related. However, it is sorry that the decision simply enumerates the legal basis without explaining the interrelationship between each criterion in the development of logic. On the other hand, it is very reasonable to apply constitutional values and international jus cogens rules in determining whether foreign judgments violate public policy as one of the requirements for recognizing them. However, it is necessary to supplement more elaborate legal grounds for public policy as the requirements for recognizing foreign judgment and the detailed legal basis on the conclusion of the judgment. Recently, in the same case of claims for damage by victims of forced labor, a lower court concluded contrary to the above logic of the Supreme Court, raising concerns about the regression of the precedent. The lower court should respect the purport of the above Supreme Court decision, and it is hoped that the upper courts will amend the decision. Conclusions and rationale of the Supreme Court decision will be an essential milestone in the future remaining enforcement proceedings as an executive title, in the unification of precedents between the contrary court decisions, and the establishment of political, economic, and international relations between Korea and Japan. It is expected that the theory of precedent will progress further with the development of more advanced and sophisticated legal grounds in related cases in the future.

Recognition and enforcement of foreign judgments on civil liability for nuclear damage

Recognition and enforcement of foreign judgments on civil liability for nuclear damage

Enforcement of foreign judgments, systemic calibration, and the global law market

Abstract There are important reasons for states to recognize and enforce the judgments of other states’ courts. There are also reasons that may militate against recognition or enforcement of certain foreign judgments, making it appropriate to calibrate or “fine tune” the presumption favoring recognition and enforcement so it is not applied too broadly. Most calibration principles, such as the principle that a judgment from a court lacking jurisdiction should not be recognized, are case-specific. However, one calibration principle that is, to our knowledge, unique to the law of the United States stands out: the principle of systemic calibration, according to which U.S. courts must not recognize or enforce foreign judgments “rendered under a system which does not provide impartial tribunals or procedures compatible with the requirements of due process of law.” In this Article, we aim to shed empirical light on how U.S.-style systemic calibration operates in practice. We find that state-of-origin indicator scores related to systemic adequacy are on average higher when U.S. courts recognize or enforce foreign judgments than when they refuse to do so. Moreover, the probability of recognition and enforcement increases as these indicator scores increase. However, in only six of the 587 opinions in our dataset did a court refuse recognition or enforcement based explicitly on the systemic inadequacy ground. Thus, while the level of systemic calibration in U.S. courts is high, it is mostly achieved implicitly. Finally, even judgments from states with low systemic adequacy scores are sometimes recognized or enforced by U.S. courts.

Recognition and enforcement of foreign judgments in American courts and the limits of the law market model

Abstract The law market model posits that the most appropriate resolution of choice-of-law disputes in private international law is to permit individuals to choose ex ante the law that applies to them. This is contrasted to the public law model where courts choose law based on the perceived interests of, or the parties’ connections with, the states or nations involved. The law market model envisions that consumer choice will lead to optimal competition among jurisdictions to supply the most efficient law. This model has influenced the rise of party autonomy, most notably in the widespread enforcement of many contractual choice-of-law and forum-selection clauses. One area that the model has had little influence on is the enforcement of foreign judgments. In the United States, judgments from other countries face higher hurdles in obtaining recognition and enforcement, as compared to judgments issued by courts of sister states. There has been little discussion in the law market literature of the possibility of ex ante contractually waiving these hurdles, or of choosing the law of states that make it easier to enforce foreign judgments. This reticence appears to be based in part on the assumption that state law on such recognition is mandatory and non-waivable, and that such law reflects the sovereign interests of states. Revisiting this regime through the lens of the law market model suggests that courts and public policymakers should permit parties, within broad limits, to contractually waive or select the law on judgment recognition, as they are permitted to do with other areas of law.

Consideration of the nature of the case in which a foreign court decision has been rendered, subject to recognition and enforcement in the Russian Federation

The subject of the study is the legal specifics of the recognition of decisions made by foreign justice institutions and their subsequent execution by the nature of the case. The presented aspects are an integral component of effective modern cross-border legal interaction, and also provide practical guarantees for the protection of the rights of its direct participants. In the context of a specific mechanism of legal regulation of the international turnover of variable judicial acts, the most significant point is the establishment of the object of the recognition in question and subsequent execution. Within the framework of our state, the specifics of recognition and enforcement are provided for by the provisions of relevant international treaties, as well as the norms of current domestic federal legislation – in cases where it is a question of recognizing decisions for which there is no need for enforcement. The provisions of the Minsk Convention of the CIS countries, the Kiev Agreement of the CIS countries, the variable bilateral treaties of our state establishing the rules of legal assistance, other international treaties, the norms of which fix the procedure for recognition and subsequent enforcement of decisions taken by foreign justice institutions, the norms of current domestic legislation and current accumulated law enforcement practice. The author focuses on the analysis of current trends in the regulation of these relations, including through the use of relevant materials of the development of the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Cases, which indicates the novelty of the study. The main conclusion of the study is to identify the variable directions of determining the range of foreign court decisions that are recognized and enforced, while taking into account the features of judicial acts and relevant proceedings that determine their formation. When analyzing a foreign court decision as a specific object of appropriate recognition and enforcement, several aspects are subject to consideration, first of all, we are talking about the nature of the individual case in connection with which the decision in question was made.

The recognition of foreign judgments on personal status under Russian law (Historical aspects and current issues)

The Article provides an insight into the development of the Russian rules of law concerning recognition of foreign judgments on personal status. The analysis reveals that initially the Russian (formerly Soviet) law did not include any specific provisions relating to recognition of foreign judgments on personal status. In this regard such judgments were recognised on the basis of the conflict of laws’ provisions of the Family and Civil Codes. In turn the current Article 415 of the Civil Procedure Code of the Russian Federation addressing the recognition of foreign judgments on personal status and foreign divorces should be considered as a borrowing from the legislation of the former Socialist countries. The authors argue that the concept of “personal status” in Article 415 covers both foreign judgments affecting capacity and regarding filiation (kinship). Therefore, these foreign judgments shall be recognised in Russia in absence of an international treaty and without exequatur proceedings.

Resolving conflicts: establishing forum non conveniens in a new Hague jurisdiction convention

In 1992, the Hague Conference on Private International Law (HCCH) commenced the Judgments Project with the aim of delivering a convention harmonising rules of jurisdiction and recognition and enforcement of judgments. Despite the ambition and promise the project held, the first major attempt at delivering a convention, the 2001 Interim Text, was unsuccessful after it failed to gain consensus among the Conference’s Member States. The HCCH scaled back the Judgments Project to focus work on the 2005 Convention on Choice of Court Agreements and the 2019 Convention on the Recognition and Enforcement of Foreign Judgments. However, the issue of jurisdiction has not been forgotten, with the Hague having recently established a Working Group to begin drafting provisions for a fresh attempt at the subject which hopefully will succeed where the Interim Text did not. The aim of this article is to explore the issue of how the proposed convention shall address conflicts of jurisdiction in international litigation. A conflict of jurisdiction will typically arise where the same proceedings, or related ones, come before the courts of several fora, or in one forum which considers another forum to be better placed to adjudicate the dispute. One solution to such conflicts is the, originally Scottish, doctrine of forum non conveniens, which allows a court discretion to decline to exercise jurisdiction on the basis that the appropriate forum for the trial is abroad or the local forum is inappropriate. This article argues for the inclusion of a version of forum non conveniens in the proposed jurisdiction convention to settle these conflicts when they arise. However, as there are many interpretations of what makes one forum more or less appropriate to hear a case than another, this article tackles the issue of how such a principle could be drafted to achieve consensus at the Hague Conference. Much of this analysis is based on the original 2001 Interim Text, and upon more modern cross-border agreements which utilise forum non conveniens.

Иностранные судебные решения о личном статусе во французском правопорядке

The world practice of the special privileged position of foreign judgments on the status and legal capacity which consists in their exemption from the necessity of being previously recognised that exists also in Russia, has its origin in France where on the base of the fundamental decisions of the Court of Cassation was created the still existing exception to the rule of preliminary recognition of foreign judgments for their having legal effect in France. On the ground of such foreign judgments can be made the entries in the French civil register. The examination of such foreign judgments can be made either incidentally as a preliminary question on which depends the outcome of other proceedings in a French court, or as the recognition of a foreign judgment which is not necessary, but also not excluded, or, finally, as a special claim for declaratory ruling that such foreign judgment had no legal effect in France. This experience has found echoes in the Russian legislation and can be used to fill gaps and eliminate ambiguities in Russian law.

Jurisdiction and Costs in Recent Inter-EU Cases of Démenti and Apology for Falsifying History

This study covers two issues concerning the intra-EU proceedings in the cases of personality rights infringement. The core of the analyzed matters are the special (alternative) jurisdiction and the costs of the proceedings. These problems are interesting both from the theoretical and the practical standpoints. The discussed judgments concern the dissemination of statements that constitute a historical falsification that is usually caused by using the expression Polish concentration camps instead of Nazi-German concentration camps. The CJEU recently address the issue of the special (alternative) jurisdiction based on Art. 7 (2) Brussels I Recast Regulation in such cases in the judgment from June 17, 2021, for the case C-800/19. This study analyses this judgment and the exclusion of jurisdiction based on ‘center of life interests’ in such cases for the ‘indivisible’ claims (e.g. the claim for apology). The problem of the costs is discussed from the perspective of the enforcement proceedings of foreign judgments in the intra-EU cases based on the German Supreme Court’s judgment from July 19, 2018 (IX ZB 10/18). The high costs of such proceedings based on the German Code of Civil Procedure were analyzed from the perspective of the access to court rule based on Article 6 (1) ECHR and the jurisprudence of EctHR.

Against Systemic Review of Foreign Judgments

Against Systemic Review of Foreign Judgments

Counteracting the Extraterritorial Jurisdiction through Refusing Recognition and Enforcement

In China’s development in foreign business, companies are suffering losses which British and European companies have experienced as well decades ago from the United States extraterritorial jurisdiction, effective countermeasures are needed badly. UK and EU respectively adopted blocking statutes to counteract in last century. Though both are blocking statutes, they have different aims and targets, they’re respectively against two kinds of extraterritorial laws. Countermeasures set therein can be concluded to three: refusing the effects of foreign judgments and orders from foreign authority, recovering the damages from specific awards and prohibiting the providing of information to foreign authority. This article mainly discusses the first countermeasures through comparing existing Chinese one with EU and UK. The adoption of “the Rules on Counteracting Unjustified Extraterritorial Application of Foreign Legislation and Other Measures” is China’s first try in blocking statute, which absorbs some experience therefrom but also leaves some gaps. Through comparative analysis this article aims to provide for advice on this matter.