Recognition Of Foreign Judgments Research Articles

К вопросу о признании иностранных судебных решений по экономическим спорам, не требующих принудительного исполнения (научно-практический комментарий к ст. 245.1 АПК РФ)

К вопросу о признании иностранных судебных решений по экономическим спорам, не требующих принудительного исполнения (научно-практический комментарий к ст. 245.1 АПК РФ)

Review of the Bill of the International Adoption Act of 2016 prepared for Korea’s Ratification of the Hague Adoption Convention

The Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, (“Convention”) adopted in 1993 under the auspices of the Hague Conference on Private International Law is a very important convention on international adoption. Although Korea has signed the Convention on May 24, 2013, it has not yet ratified the Convention, which is very shameful. As a means to ratify the Convention, some members of the National Assembly of Korea has submitted a bill of the International Adoption Act (“Bill” and “IAA”, respectively) and a bill amending the current Special Adoption Act. The author welcomes such actions since they are necessary steps needed for Korea’s ratification of the Convention. Hoping to contribute to writing a perfect legislation, the author would like to provide a few comments on the Bill. More concretely, the author discusses the issues in the following order: First, private international law doctrines applicable to international adoption in general, which include doctrines on international jurisdiction, applicable law and recognition and enforcement of foreign judgments (PartⅡ). Knowledge of these doctrines are indispensable in preparing the Bill, since they constitute the legal ‘Gegebenheit’ (circumstances) for legislation on international adoption. Second, the changes to be brought by Korea’s ratification of the Convention (PartⅢ). Third, the tasks which the IAA should achieve (PartⅣ). Fourth, the overview and the fundamental issues of the Bill (PartⅤ). Fifth, the review of individual provisions of the Bill (PartⅥ). Sixth, concluding remarks (PartⅦ). The current Special Adoption Act mainly deals with outbound adoption of Korean “Children in Need of Protection”. However, since the IAA purports to regulate inbound and outbound adoptions of children in general as well as Korean Children in Need of Protection, the area where it may be in touch with the Korean Private International Law Act (“KPILA”) is much broader. Accordingly, we should first understand the private international law doctrines on applicable law, the recognition of Korean judgments in foreign countries and the recognition of foreign judgments in Korea. In addition, we should understand clearly what kind of changes will be brought by Korea’s ratification of the Convention. Under Article 43 of the KPILA, adoption and its dissolution shall be governed by the adoptive parent’s national law at the time of the adoption. The current Special Adoption Act regulating outbound adoptions of the “Children in Need of Protection” may include, by way of exceptions to the general private international law rules, some so-called “internationally mandatory rules” designed to protect Korean children under Article 7 of the KPILA. However, such exceptions should be kept to a minimum. Unlike the Special Adoption Act, the IAA purports to regulate international adoption of children in general and therefore should not include a wide range of exceptions. Since the law applicable to international adoption may be very diverse, inserting detailed rules on the conditions and effect of adoptions in the IAA will inevitably cause conflicts with the KPILA, and thus, is not desirable. It appears that most of the errors and mistakes of the Bill are attributable to the drafters’ lack of knowledge of the private international law. We also need to review carefully the consistency between the Bill and the Convention. In sum, the author strongly urges that the National Assembly should substantially revise the Bill after carefully considering the author’s comments herein.

El nuevo sistema español de reconocimiento y ejecución de decisiones extranjeras.

ABSTRACT: This paper addresses the new system of recognition and enforcement of foreign judgments in Spain, after the entry into force of the Regulation 1215/2012 in 2015 and the Law on International Legal Cooperation that finally repeals an antiquated system that was already exceeded by the jurisprudence of the Supreme Court. The new system, studied along these lines, is far away from the complexities of the system of 1881, adapted to the existing reality -the need of a simplified system for the recognition of foreign judgments done the current mobility of natural and legal persons. This has already occurred within the European Union, where since the entry into force of the 1215 regulation we can talk about the existence of the fifth freedom, the free movement of judgments.

International Comity in American Law

International comity is one of the principal foundations of U.S. foreign relations law. The doctrines of American law that mediate the relationship between the U.S. legal system and those of other nations are nearly all manifestations of international comity — from the conflict of laws to the presumption against extraterritoriality; from the recognition of foreign judgments to doctrines limiting adjudicative jurisdiction in international cases; and from a foreign government’s privilege of bringing suit in the U.S. courts to the doctrines of foreign sovereign immunity. Yet international comity remains poorly understood. This article provides the first comprehensive account of international comity in American law. It has three goals: (1) to offer a better definition of international comity and an analytic framework for thinking about its manifestations in American law; (2) to explain the relationship between international comity and international law; and (3) to challenge two widespread myths — that international comity doctrines must take the form of standards rather than rules and that international comity determinations should be left to the executive branch.

Rubin and New Cap: Foreign Judgments and Insolvency

The decisions of the UK Supreme Court in 2012 in Rubin and New Cap, and of the Singapore High Court in 2013 in Beluga Chartering, raise in acute form the question of how far the common law of international insolvency and of the recognition of foreign judgments can go when a local court is asked by a court in another country to render particular forms of assistance in relation to an insolvency administration which is taking place there. It asks how the instinct to give assistance for the ultimate benefit of creditors needs to be balanced by the caution which a local court naturally shows when asked to take a foreign court's word that the facts and matters are as it has determined them to be. It also prompts the question whether the common law of England, now overlaid with substantial legislative provision for assisting foreign insolvencies, might have departed from the common law of countries, like Singapore, where the intervention of the legislature has been rather less. The lecture, given at SMU on 10th April 2013, looks at, and hopes to prompt others to look at, some of the issues which arise.Based on a lecture given at Singapore Management University, (10 April 2013).

The Recognition of Foreign Judgments Lacking Reasons in Europe: Access to Justice, Foreign Court Avoidance and Efficiency

The recognition of foreign judgments lacking reasons raises several policy issues. Reason-giving is perceived by the European Court of Human Rights as critical to ensure an effective access to justice. Yet, foreign judgments often lack reasons because the defendant failed to appear before the foreign court, and it may be right to sanction this strategy of foreign court avoidance. Finally, the European Union has begun to implement its policy of efficiency of cross-border enforcement, which commands states to recognize such judgments irrespective of any other consideration. This article explores whether these conflicting issues can be reconciled.

DISCUSSION ON CHARACTERISATION IN SOUTH AFRICAN PRIVATE INTERNATIONAL LAW

To inform those unfamiliar to the subject, private international law is simply that branch of a country’s domestic law, which regulates the relationship between private individuals when foreign legal rules are in some way concerned. This branch generally has three subbranches: Jurisdiction (choice of court), choice of law and recognition of foreign judgments. The discipline of characterisation forms part of the choice of law sub-branch and is explained further below. This article discusses the problem of a ‘gap’ arising from the phenomenon of characterisation in South African private international law, by considering the current case law authorities on the matter as well as the criticisms (and suggested solutions) of legal academics. A general discussion of characterisation, with some alternative suggestions for dealing with the problem, is also mooted for consideration in a bid to air ideas. No short work could do justice to the problem visited here. This work seeks to show that the obsession with characterisation in the choice of law arena is perhaps ill founded and should perhaps be simplified in favour of a ‘most natural results’ approach.

Civil jurisdiction and judgments

The first edition of this leading specialist work on the law of civil jurisdiction and the recognition of foreign judgments was published in 1993. At that time, the Brussels Convention had already been in force in the United Kingdom for a number of years.1 The inter-relationship of that body of law with the myriad of common law rules was a subject of considerable complexity; and the authors skilfully steered a path through the resulting legal maze. Even so, the authors were able fully to describe and analyse the law in some 350 pages. Fast forward to the 5th edition, and the book is now some 925 pages in length. This has absolutely nothing to do with the quality of the editing of subsequent editions of the book or the tightness of the analysis. Rather, it is a reflection of the ever greater complexity of the law; which, in turn, provides ever more opportunities for tactical litigation. There is an almost constant stream of initiatives from the European Commission aimed, more or less directly or convincingly, at the promotion of the European internal market. There has been a consequential increase in the number of important authorities emanating from national courts, as well as a series of sometimes controversial decisions of the ECJ, many of which have progressively stripped the English courts of their common law powers. The result, as the authors concede, is a very different kind of work. The original work was one that the authors had intended2 to be used both as a detailed guide for English lawyers; and by lawyers in overseas jurisdictions hoping to get to grips with English law. Now, this is a book that, whilst different in character to Dicey, Morris and Collins, The Conflict of Laws, is very much in the mould of an encyclopaedic reference work on English law, perhaps best suited to the at least partially initiated.

Commonwealth practice in the recognition of foreign judgments

Commonwealth practice in the recognition of foreign judgments

Giving Effect to Out-of-Province Judgments in Class Actions

SummaryIn Canada Post Corp. v. Lépine, the Supreme Court of Canada upheld the lower Québec courts’ refusal to recognize an Ontario judgment approving an out-of-court settlement of a class action that included Québec residents. In reaching its decision, the Supreme Court of Canada did not extend to the non-resident plaintiff members of the class the jurisdictional test applicable to defendants. The decision was based on the lack of procedural fairness accorded to the non-residents. The Court also rejected a literal interpretation of Article 3164 of the Québec Civil Code, which requires that the foreign court must have had jurisdiction in accordance with Québec rules, including the doctrine of forum non-conveniens. To apply this doctrine is not compatible with inter-provincial and international comity as it defeats the liberal approach taken by the Civil Code with respect to the recognition of foreign judgments. This settles a long-lasting controversy. As a result of this decision, enhanced procedural fairness has become the best defence available to non-resident, non-attorning plaintiffs in inter-provincial and international class actions. Finally, the Court hoped that, in the spirit of mutual comity, the provincial legislatures would develop more effective methods for managing jurisdictional disputes involving national class actions.

THE RECOGNITION OF FOREIGN JUDGMENTS LACKING REASONS IN EUROPE: ACCESS TO JUSTICE, FOREIGN COURT AVOIDANCE, AND EFFICIENCY

AbstractThe recognition of foreign judgments lacking reasons raises several policy issues. Reason-giving is perceived by the European Court of Human Rights as critical to ensure an effective access to justice. Yet, foreign judgments often lack reasons because the defendant failed to appear before the foreign court, and it may be right to sanction this strategy of foreign court avoidance. Finally, the European Union has begun to implement its policy of efficiency of cross-border enforcement, which commands states to recognize such judgments irrespective of any other consideration. This article explores whether these conflicting issues can be reconciled.

The European Union and the Systematic Dismantling of the Common Law of Conflict of Laws

English conflict of laws is the creation of the common law. Prior to Britain's entry into the European Union, legislation played only a limited role. The few legislative measures concerning choice of law were narrowly targeted to remedy specific problems—for example the formal validity of wills, or torts. The rules for service outside the jurisdiction were a more important exception, but their practical operation largely depended on judge-made concepts and remedies, such as forum non conveniens and antisuit injunctions. The common law also provided a complete system for the recognition of foreign judgments that operated untrammelled with regard to judgments from many countries, including some of the most important, while the relevant legislation, where applicable, did little more than provide a simpler procedure.

Party Autonomy and Mandatory Rules in a Global World

The article discusses the evolution of the influence of international mandatory rules (lois de police) in the era of globalization. Classic private international law postulates the applicability of such rules even where legal systems in principle accept the applicability of foreign law. Increasingly such rules can be evaded through the operation of conflicts of jurisdiction (choice of forum, arbitration, recognition of foreign judgments). An evolution is occurring also at the level of substantive law, as a result of the greater ability of private parties to evade mandatory rules by «barrier-crossing», i.e by transferring their relationships to other legal systems, or even more simply by choice of law which is admitted more freely by states even where party autonomy was not accepted as a criterion for the selection of the applicable law. This evolution is the result of the growing competition between legal systems and of the forces of globalization.

Dalhuisen on International Commercial, Financial and Trade Law

The second edition of this uniquely wide-ranging work once again grapples with the dynamic and complex fields of law which make up the modern law of international commerce, finance and trade. As a guide for students and practitioners it is unrivalled. The original structure has been retained, with an extensive introductory chapter dealing with the sources of the modern law in its comparative context, and modern efforts to develop uniform or harmonised law at international level (in the EU, Uncitral and Unidroit). Further chapters then deal with with contract in the Common and Civil Law, payments, movable tangible and intangible assets, and the concept of ownership and possession. Later chapters look at finance leases, repos, receivable financings and securitisations, the regulation of cross border financial services and investment banking practices. Litigation and procedural matters which are often bypassed in books dealing with substantive commercial law, are covered in chapters devoted to international jurisdiction, provisional measures, the recognition of foreign judgments and bankruptcy decrees, and, finally, international arbitration.

An Alert to the Intellectual Property Bar: The Hague Judgments Convention

This paper takes a hard look at the relationship between international intellectual property litigation and the proposed Hague Convention on Jurisdiction and the Recognition of Foreign Judgments. The Convention is mainly aimed at creating a way for a civil judgment rendered in one member state to be assured enforcement in all other member states. Toward that end, it defines a series of agreed bases of personal jurisdiction; when a judgment is predicated on one of these bases, other member states are obliged to enforce it. The Convention also determines where particular claims can be litigated-certain claims are within the exclusive jurisdiction of particular states, others can be litigated where ever the Convention permits the assertion of adjudicatory authority over the defendant. After briefly describing the terms of the Convention, its application to intellectual property is analyzed. One question is whether the territorial nature of intellectual property rights means that no nation should be permitted to adjudicate intellectual property claims arising under the laws of another jurisdiction. If some extraterritorial adjudication is permissible, the next question is, in what kind of cases. The Convention distinguishes between registered rights cases, where issues of validity-and perhaps even infringement-can only be resolved at the place of registration, and all other intellectual property cases. This article takes the position that the line should be drawn between patent cases on the one hand and copyright and trademark cases on the other. Patent cases require a level of technical expertise that is not as necessary for resolving copyright and trademark cases. Moreover, copyright and trademark cases often involve products that are digitally transmitted and thus can be infringed in many states simultaneously. Consolidated adjudication of such multinational copyright and trademark disputes can save judicial and litigant resources, avoid inconsistent outcomes, and provide fora for developing law for the new borderless market that the creative industries now encounter. The paper ends with a series of proposals to facilitate consolidation and adjudication of intellectual property disputes. In that respect, it acts as background material for a draft judgments convention focusing exclusively on intellectual property litigation, which will be offered by the author and Professor Jane Ginsburg should the Hague efforts be frustrated or culminate in the exclusion of intellectual property from coverage.

The Recognition Scene: Game Theoretical Issues in the Recognition of Foreign Judgments

A standard feature of institutionalist approaches to international law and relations is modelling the interaction between states as an iterated prisoners' dilemma, in which states have incentives to act opportunistically, tempered by the advantages of cooperation where the shadow of the future is sufficiently long. This approach is also shared, either implicitly or explicitly, by private international law scholars modelling choice of law decisions. It is instructive to consider this issue in the context of state incentives to recognize foreign judgments, as it is an area that arises in the crossover between both public and private international law. The Hague Conference on Private International Law is currently considering the adoption of a convention on jurisdiction and judgment recognition, primarily at the instigation of the United States, the world's perpetual Cinderella in recognition treaties. This paper contrasts a PD explanation of the incentives to recognize, in which states prefer not to recognize, with an explanation which holds that recognition may be a weakly dominant strategy for most states. The private international law on recognition, including the demise of recognition reciprocity, is used to evaluate these hypotheses. Even if recognition is a weakly dominant strategy, state commitment to recognition creates the scope for opportunism and moral hazard, in the form of other states' expansion of their own jurisdictional competence. International conventions on recognition permit these issues to be addressed by agreement to permissible bases for civil jurisdiction and linkage of these to recognition. My specific claim is that verifiable, rule-like bases of jurisdiction, will be the preferred form of agreement, compared to the standard-like bases of jurisdiction prevalent in common law countries. On the other hand, such bases of jurisdiction create problems of contingent incompleteness in the allocation of jurisdiction.

Rule and Reason in the Common Law of Foreign Judgments

Two tenets are central to the Common Law rules for enforcement and recognition of foreign judgments. The first is that, subject to public policy, the enforcing court does not review the substance of the decision; in other words, mistake is no defence. The second is that, apart from ensuring that the judgment was not obtained by fraud or through a breach of the requirements of natural justice, the prime consideration for enforcement is whether the foreign court was competent to issue the judgment; in other words, whether it had jurisdiction.These two tenets are eminently reasonable. A foreign judgment is after all both a judgment—like a local judgment, and foreign—like a right acquired under a foreign law. The validity of local judgments and of foreign unadjudicated rights depends on jurisdiction: local judgments depend on adjudicatory jurisdiction (often defined in the rules of service); foreign rights—on legislative or prescriptive jurisdiction (the jurisdiction of a system to regulate the situation substantively, as defined in choice-of-law rules). It thus seems appropriate to require jurisdiction of foreign judgments too. Local judgments, once final, are never subject to review, and can be attacked on the grounds that they were obtained by fraud only exceptionally. Rights acquired under a foreign law cannot be refused enforcement because of their substance and are subject only to the public policy exception. It thus seems appropriate to immunise foreign judgments from substantive review too. Foreign judgments—adjudicated rights—are of course different from foreign unadjudicated rights in that they are the product of a process. So, as in the case of local judgments, it should nonetheless be possible, in limited circumstances, to examine whether the process was tainted by fraud. So too, they differ from local judgments in that the process from which they emerge is not a local one; it cannot be relied upon in the same way as locally controlled and institutionalised procedures. It thus seems reasonable that, while prevented from reviewing the substance of a foreign decision, the court should be permitted to require of it a minimal level of procedural justice.

Recognition and Enforcement of Arbitration Awards and the Brussels Convention

THIS ARTICLE is divided into six sections. The first section deals with the two reasons for excluding the enforcement of awards from the scope of the Brussels Convention. The second section examines the international effects of a formal order of a court giving an award executory force. The third section deals with the enforcement and recognition of foreign judgments entered on awards. The fourth section concerns the suspension of the enforcement of an award and the revocation of a judgment ordering the enforcement of an award. The fifth section examines the appeal of an award, the sixth section deals with the setting aside of an award. The ensuing discussion is based principally on the law of the Member States of the European Union (and of other States when this is of practical relevance). Both textual and policy arguments exclude arbitral awards from the scope of Title III of the Brussels Convention on Recognition and Enforcement. On its face, the title of the Brussels Convention ‘on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters’ excludes the enforcement of awards. The issue turns on the word ‘judgment’ in Article 25: > For the purposes of this Convention, ‘judgment’ means any judgment given by a court or tribunal of a Contracting State, whatever the judgment may be called, including a decree, order decision or writ of execution, as well as the determination of costs or expenses by an officer of the court. The definition of judgment for recognition and enforcement purposes provided in Article 25 of the Convention embraces decisions that correspond to the requirements of the Convention irrespective of what they are called in the legislation of the Contracting States.1 The broad meaning given to the concept of ‘judgment’ in Article 25 is consistent with the Brussels Convention's aim …

Recognition and Enforcement of Foreign Judgments: A New Approach for the Hague Conference?

Since this article was originally written and presented in the spring of 1992, considerable progress has been made in the effort achieve an international convention regulating jurisdiction and recognition of foreign judgments. In May 1993, the Seventeenth Session of the Hague Conference on Private International Law decided to include in the agenda for work of the Conference the question of the recognition and enforcement of foreign judgments in civil and commercial matters and requested the Conference's Secretary General convene a Special Commission study[] further the problems involved in drafting a new convention, make[] proposals with respect work which might be undertaken, and suggest[] the timing of such work. 1 The Special Commission met in the Hague on June 20-24, 1994, begin this preliminary work on a convention. Our hope is that the Conference's Eighteenth Session in 1996 will make a convention on jurisdiction and recognition an agenda item for an extraordinary session of the Conference in 1997 or 1998. The article was revised in May 1994 take into account these and other developments since the spring of 1992. Its intention remains the same, however: discuss the genesis of what is now the Hague jurisdiction and recognition project, consider the merits and demerits of various approaches jurisdiction and recognition problems, and explain why, in the United States's view, the most promising institutional basis for achieving a satisfactory convention was the Hague Conference on Private International Law.

The Impact of the Hague Conventions on Portuguese Private International Law

Portugal is one of the European countries that has been involved since the earliest time with the work of the Hague Conferences. Moreover, its participation in activities concerning the unification of private international law rules started even before the first conference in 1893. When the Italian Government, under the influence of Mancini, then its Minister for Foreign Affairs, tried to summon, in 1885, an international conference on the recognition of foreign judgments, Portugal was one of the twenty-two European and Latin-American countries that supported the idea. As is well known, this conference never took place, but the idea of the unification of private international law rules did not die and, under the proposal of Asser, the Dutch Government convoked in 1893 the first Hague Conference on Private International Law. Portugal was once again one of the twelve States that met for this purpose in The Hague between the 12th and 27th September.