Recognition Of Foreign Judgments Research Articles

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.

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.

International treaties on assistance in civil matters and their applicability to recognition of foreign judgments on the opening of insolvency proceedings (reflections regarding the Russian national and international experience)

The article examines the question of admissibility of recognition of foreign judgments on commencement of bankruptcy proceedings on the basis of international treaties on legal assistance. It examines the background of these international treaties, as well as the practice of their application in respect of this category of foreign judgments. The authors conclude that foreign court decisions on opening of insolvency (bankruptcy) proceedings should be regarded as “judgments in civil matters” for the purpose of the international treaties on legal assistance. This category of foreign judgments should be recognised on the basis of international treaties in the Russian Federation, despite the existing approach of Russian courts (including the Judgment of the Arbitrazh (Commercial) Court of the Ural District of 09.10.2019 in case No. A60-29115/2019).

Dozvoljenost izjavljivanja revizije u postupku priznanja strane sudske odluke

Serbian courts do not allow appeal on the points of law (as an extraordinary legal remedy) in the procedure for recognition of foreign judgments. The authors aim to examine the validity of this understanding by critically considering it from the perspective of regulations governing the issues of private international law, non-litigious procedure and civil procedure. In addition, the paper examines whether such a solution corresponds to a broader regulatory framework that includes constitutional and international norms, the purpose of applicable institutes, as well as the need to ensure full legal protection and facilitate international business transactions. The authors conclude that there are no legal obstacles to appeal on the points of law in the exequatur procedure, and that its admissibility would contribute to the improvement of international economic traffic and legal certainty.

Research on the Public Order Reservation System from Surrogacy

Surrogacy technology provides the possibility for families who are unable to have children. Different countries have different legal regulations on surrogacy, which leads to the creation of transnational surrogacy, and at the same time, disputes over transnational surrogacy are also increasing. As we all know, surrogacy is contrary to the public moral order in China, which leads to the issue of public order retention.Private international law, as an important legal system in the field of International law, has an unshakable position and role in dealing with transnational surrogacy disputes. In transnational surrogacy disputes, public order is mainly reflected in the legal regulations of each country on surrogacy, the determination of paternity and the relevant regulations on the ethics of surrogacy, and its role is mainly reflected in the exclusion of the application of foreign laws and the refusal to recognize the judgments of foreign courts. In the application of the law, countries have tried to find a balance between the recognition of foreign judgments and the protection of the public order of the courts. This article will take a comparative and case study approach, using the issue of surrogacy as an entry point to explore the application of public order reservations in this particular area.

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.

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.

Problems of Recognition of Foreign Judgments and res judicata in European Union

The article examines the problematic aspects of recognition and enforcement of foreign judgments in the European Union in relation to the application of the public policy clause. Analysis of the content of public order also constitutes part of the article. It focuses on the EU law instruments which provide unequal conditions for non-recognition of foreign judgments. The authors discuss if inclusion in the CJEU of the limits on the interpretation of the public order clause is a sufficient guarantee to ensure proper application of the public order clause. Moreover, the authors analyse the principle of res judicata according the EU law.

The Influence of Bilateral Treaties with Third States on Jurisdiction and Recognition of Decisions in Matters on Succession — Polish Perspective

The aim of the study is to discuss the impact of bilateral international treaties concluded by EU Member States with third countries on jurisdiction and recognition of judgments in matters of succession from Polish perspective. The author discusses the main problems in the interpretation of Article 75 of Regulation 650/2012 and the possible conflict of this solution with the Treaty on the Functioning of the EU. The article indicates also practical problems related to the collision of bilateral treaties and Regulation No 650/2012 regarding, for example, the possibility of concluding choice-of-court agreements, recognition of foreign judgments in matters of succession and the possibility of issuing the European Certificates of Succession.

Public Policy and Private International Law - Portugal

The present report is aimed at describing the concept, legal framework, and features of the public policy clause in the Portuguese legal order, and at giving an account of the main applications of this clause in modern Portuguese case law and literature (marriage, children, custodianship, succession, contract, non-contractual obligations, property, intellectual property, and corporate). The report deals mainly with choice of law, but reference is also made to the recognition of foreign judgments, since the public policy features and applications are to a large extent common in both contexts. Portuguese courts tend to respect the exceptionality of the public policy clause. In recent case law, only a few judgments have deviated from this guideline, namely concerning the right of some heirs to a legal portion of the estate. In the vast majority of situations, the arguments based upon international public policy considerations were not accepted by the courts.

Chronology of Practice: Chinese Private International Law in 2018

This paper contains materials reflecting the practice of Chinese private international law in 2018. First, the statistics of the foreign-related civil or commercial cases decided by Chinese courts is extracted from the Report on the Work of the Supreme People’s Court (SPC) in 2018. Second, the SPC judicial interpretation concerning the enforcement of arbitral awards is translated, and the interpretation reflects a pro-arbitration tendency in Chinese courts. Third, six typical cases, which involve the validity of a choice of court clause under the transfer of contract, the conflict of laws issues regarding personal injury on the high seas, visitation rights and uncontested divorces, as well as the recognition of foreign judgments, are selected. Fourth, the paper introduces a case embodying the “one-stop” international commercial dispute resolution mechanism in Chinese courts. Finally, the paper also covers six representative decisions regarding the parties’ status, the presumption of the parties’ intention as to choice of law, and the validity of arbitration agreements.

Choice-of-Law Justice

This essay is devoted to the justice of the Choice-of-Law system. Justice materializes in values and principles. It begins with a characterization of conflictual justice, namely its formal, substantive or mixed character, and the question about the extent in which it is justified to favor substantive results. This is followed by an examination of the formal and material values in which conflictual justice materializes, namely human dignity, and of the trend towards a conflictual justice of the particular case. Some brief closing remarks address the issues of the so-called methodological pluralism of Private International Law, of the nexuses between choice-of-law, choice-of-court and recognition of foreign judgments and awards, and of the convergence between the competent forum and the applicable law. Axiological pluralism, scientific eclecticism and an integrative approach are advocated.

Chronology of Practice: Chinese Practice in Private International Law in 2018

Abstract This paper contains materials reflecting the practice of Chinese practice in private international law in 2018. First, the statistics of the foreign-related civil or commercial cases decided by Chinese courts is extracted from the Report on the Work of the Supreme People’s Court (SPC) in 2018. Second, the SPC judicial interpretation concerning the enforcement of arbitral awards is translated, and the interpretation reflects a pro-arbitration tendency in Chinese courts. Third, six cases, on the validity of a choice of court clause, the conflict of laws issues regarding personal injury on the high seas, visitation rights and uncontested divorces, as well as the recognition of foreign judgments, are noted. Fourth, the paper introduces a case embodying the “one-stop” international commercial dispute resolution mechanism in Chinese courts. Finally, the paper also covers six representative decisions regarding the parties’ status, the presumption of the parties’ intention as to choice of law, and the validity of arbitration agreements.

Another One BITes the Dust - The Distance between Luxembourg and the World is Growing after Achmea

The CJEU has become a gatekeeper. Ever since Opinion 1/91, the CJEU has been imposing barriers to the recognition of decisions by foreign jurisdictions. Its recent Achmea decision is the natural consequence of case law so far. This attitude would not be problematic by itself since, through this attitude, the European Union would still be liable at the international plane, even if it did not implement its international obligations (liability- over property rules). This is not the end of the story. The CJEU accepts the, in principle, relevance of decisions by some international jurisdictions. However, the CJEU has repeatedly failed to establish clear criteria to identify ex ante the circumstances under which this will be the case. As things stand, recognition of foreign judgments is more of a line in the sand, than a dictum set in stone. This attitude is hardly reconcilable with the quintessential elements of a Rechtsstaat.

Review of the International Adoption Bill 2018 introduced for Korea’s Ratification of the Hague Adoption Convention

In order to ratify the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption (“Convention”) concluded on May 29, 1993 under the auspices of the Hague Conference on Private International Law, some Members of the National Assembly of Korea introduced on December 5, 2018 the International Adoption Bill (“Bill”) and the Act on Special Cases Concerning Adoption (“Special Adoption Act”) (Amendment) Bill. The author welcomes such proposals since they are steps necessary for Korea’s ratification of the Convention. Hoping to contribute to the International Adoption Act (“IAA”), the author makes some comments on the Bill. First, since the IAA is to be an act implementing the Convention, the Bill should serve the purpose of an implementing act, and in particular not be inconsistent with the Convention. For example, while the Convention (Article 27) provides for conversion of an adoption granted in another Contracting State, the Bill does not accurately reflect this. In addition, the Bill only distinguishes inbound adoption from outbound adoption, but does not distinguish adoptions to which the Convention applies from those to which the Convention does not apply. Since this causes confusion and is a mistake regarding the effect of adoption, the IAA should distinguish them. Second, while the current Special Adoption Act deals with ‘adoption of children in need of protection in Korea’ and ‘outbound adoption of children in need of protection’, the IAA, for it purports to apply to children in general, whether in need of protection or not, and regulate both inbound and outbound adoptions, touches upon the Act on Private International Law (“KPILA”), lex generalis applying to legal relationships with foreign element. Accordingly, the Bill should not conflict with rules for the choice of law, i.e. , private international law in the narrowest sense, or legal principles of recognition of foreign judgments, that is including both recognition of foreign judgments in Korea and that of Korean judgments elsewhere. Furthermore, the Bill must comprehend in relationship with other Contracting States the consequences on such rules Korea’s ratification of the Convention may entail. However, the Bill reveals various problems due to the lack of awareness of these legal circumstances. The author thus urges that the National Assembly should further consider amendments to the Bill in view of the author’s comments herein. The passage of the discussion is as follows: first, private international law doctrines applicable to international adoption in general (Chapter Ⅱ); second, changes to be brought by Korea’s ratification of the Convention (Chapter Ⅲ); third, missions the IAA should accomplish (Chapter Ⅳ); fourth, overview and overall assessment of the Bill (Chapter Ⅴ); fifth, review of individual provisions of the Bill (Chapter Ⅵ); and sixth, concluding remarks (Chapter Ⅶ). However, since Chapters Ⅱ to Ⅴ have already been dealt with in an article by the author, they are briefly dealt with and the focus will be on Chapter Ⅵ. In Chapter VI, the author also suggests amendments to the wording of some provisions.

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

In June, 2017, the Wuhan Intermediate People’s Court became the first Chinese court to recognize a U.S. judgment in the case of Liu Li v. Tao Li & Tong Wu. The Liu case is a significant development in Chinese private international law, but represents more than a single decision in a single case. It is one piece of a developing puzzle in which the law on the recognition and enforcement of foreign judgments in China is a part of a larger set of developments. These developments are inextricably tied to the “One Belt and One Road,” or “Belt and Road” Initiative first announced by Chinese President Xi Jinping on a visit to Kazakhstan in 2013. This article traces the development of the Liu case, from the first judgment in California to the decision to recognize and enforce that judgment in Wuhan, China. It then provides the context within which the decision on recognition and enforcement was made, and the way the decision fits within President Xi’s “Belt and Road” Initiative and the pronouncements of the Chinese People’s Supreme Court which have encouraged the recognition and enforcement of foreign judgments as part of that Initiative.

Las decisiones extranjeras de divorcio frente a la exigencia de conformidad con el derecho del foro: el ejemplo chileno y peruano

Las instituciones de familia se encuentran especialmente expuestas al impacto negativo del orden público en su vertiente sustantiva. En los procesos de reconocimiento de decisiones extranjeras de divorcio esta excepcional cláusula suele identificarte con situaciones en las que no se han visto afectados principios y valores esenciales del foro. Esto es precisamente lo que sucede en Chile y en Perú, sedes en las que el éxito de las decisiones extranjeras de divorcio se hace depender de una identificación entre la causal aplicada al divorcio decretado en el extranjero y las causales previstas en sus respectivos derechos internos. Para evitar las nocivas consecuencias que este comportamiento genera para el tráfico externo de estas decisiones y llegar a conclusiones certeras sobre su origen, el presente estudio será abordado a partir de la información que aportan las distintas fuentes que vinculan a dichos Estados en este ámbito material, el tratamiento dado por la doctrina y su proyección en la jurisprudencia local.

Recognition and Enforcement of Foreign Judgments - The Common Law's Jurisdiction Requirement

A judgment will be enforced or recognised in other nations or states only if the court that issued the judgment had “jurisdiction in the international sense”. For recognition or enforcement of a judgment in personam, the foreign court must have had jurisdiction over the party against whom the judgment is to be enforced or otherwise applied. This is governed by the conflict of laws doctrine of the court where recognition or enforcement is sought. The law on what is a basis for jurisdictional “competence” is one of the most important elements of conflict of laws. The rules set forth in successive editions of Dicey’s Conflict of Laws treatise have long guided courts in England and most other countries in which common law doctrines govern recognition of foreign judgments. However, the rules in the Dicey treatise are intended to state contemporary English law, as altered by judicial decisions and legislation. They do not necessarily state the common law as interpreted in other countries, from which many of the relevant judicial decisions originate, and they omit bases of jurisdiction that have been accepted in some cases. Drawing on case law and authoritative writing from across the common law world, this article provides a comprehensive examination of the law of jurisdiction in the recognition and enforcement of in personam foreign judgments, with specific identification of both established and debatable grounds for jurisdiction and how they have been applied.

Improving the recognition of foreign judgments: model law on the recognition and enforcement of Foreign Judgments

This paper contains the Commonwealth Model Recognition and Enforcement of Foreign Judgments Bill. The paper describes the background to the Model Bill, including its relationship with The Hague Convention on Choice of Court Agreements, and the present resumed Hague Conference work on a possible Convention on the recognition and enforcement of foreign judgments. The paper highlights the differences between these different initiatives and the relative advantages of the draft Commonwealth Model Bill.

Litigation or Arbitration: a Competition? – Cross-border Commercial Dispute Adjudication in a Globalizing Worldunder the Reign of EU Regulation 1215/2012

Cross-border civil and commercial conflicts can be adjudicated by courts of sovereign states or in a private setting, namely by arbitration panels. Against the background of a globalizing world and an increase in popularity of arbitration as a means of dispute resolution ‘Europe’ (the European Union) faces the challenge to demarcate borderlines as litigation in court and arbitration tend to get in conflict more often. Conflicts may relate to the jurisdiction of courts versus the competence of arbitration panels (inter alia resulting in anti-suit court orders or even arbitral awards), as well as to the recognition of foreign court orders being capable of frustrating arbitral awards or vice versa. This contribution attempts to analyze how these clashes ought to be resolved under the reign of ‘new’ cross-border civil and procedural law in Europe (EU Regulation 1215/2012, or ‘Recast’) on Jurisdiction and Recognition of Foreign Judgments in Civil and Commercial Matters’ (in force January 15, 2015). Two preliminary rulings of the Court of Justice of the European Union (CJEU) though still interpreting EU Regulation 44/2001 (i.e. the legislative predecessor of the Recast), remain important to the law regime of the Recast. The final conclusion is that, even though the Recast respects the international law framework of notably the 1958 New York Convention on the recognition and enforcement of arbitral awards, a considerable amount of legal uncertainty remains, as Recital 12 of the Recast Preamble contains ‘open-ended’ parameters leaving discretionary room for national law of each individual EU Member State and calling for further interpretative rulings of the CJEU.