Recognition Of Judgments Research Articles

Possible Ratification of the Hague Convention by Turkey and Its Effects to the Recognition and Enforcement of Foreign Judgments

The recognition and enforcement of foreign court judgments in Turkey have been regulated by the International Private and Procedural Law Act, which was entered into force on 4 December 2007 (hereinafter referred to as “PILA”) in Articles 50-59. According to the Turkish Constitution Article 90/V, international conventions shall have the same effect as national laws. In Article 1/2 PILA, it is emphasized that the provisions of international conventions prevail over the provisions of PILA. Therefore, if Turkey ratified the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (hereinafter referred to as the “Convention”), its provisions would prevail over PILA in cases within the scope of the Convention. In this study, the provisions of the Convention and PILA are compared in order to determine to what extent the recognition or enforcement of foreign court decisions would be facilitated in Turkey in the event that Turkey ratified the Convention. It is hypothetically accepted that not only Turkey, but also all other South East European countries mentioned in the study would ratify the Convention.

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.

Moving towards harmonisation in the recognition and enforcement of foreign judgment rules in Asia

This paper provides a comparative overview of the laws on the recognition and enforcement of foreign judgments in ASEAN and Australia, China, India, Japan and South Korea. It considers the principles which are shared in common and the significant differences in the laws on foreign judgments in the region. This paper argues that the laws which are canvassed here share many principles, albeit the interpretation on certain aspects may differ. Though differences exist, the differences are becoming less sharp. Further, there is a practical need for harmonisation given the plans for closer economic integration in the region. This paper argues that harmonisation is possible and should be pursued.

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.

Mutual Recognition of Judgements in Criminal Matters Involving Deprivation of Liberty in Spain

Council Framework Decision 2008/909/JHA of 27 November 2008 “on the application of the principle of mutual recognition to judgements in criminal matters imposing custodial sentences or measures involving deprivation of liberty for the purpose of their enforcement in the European Union” was implemented in Spain by the introduction of new rules into the Mutual Recognition Act. Achieving social rehabilitation is the core objective of the Framework Decision. This has also practical consequences for the implementation of this instrument, for example requiring ties on the part of the sentenced person with the executing State. Some of the most controversial procedural issues in Spain are analysed in this article, including the consent of the sentenced person and the grounds for the adaptation of the sentence by the executing State under Spanish law

Dobro dziecka w sprawach o uprowadzenie dziecka za granicę. Zmiany w prawie i ich spodziewane skutki

The international child abduction is regulated in the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, in the Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (Brussels II bis), and in the domestic law — in the Code of Civil Procedure. In the recent years the Regulation Brussels II bis was subject to review. As a result drawbacks were indicated and amendments have been proposed, in particular with a view of simplifying the procedures. The changes were triggered by the increasing number of cases in which one of the parents removes the child without a consent from the other. The Ministry of Justice does not provide any data on the amount of cases taking place in Poland. It is nevertheless certain that this amount has increased in comparison to previous years. Moreover, it is acknowledged that contrary to the Hague Convention and the EU Regulation, many children abducted by their parents are retained in Poland. The amendments to the Code of Civil Procedure seem to address this situation and streamline the process of the return of the children. The question remains: do the proposed amendments to the EU Regulation and those already enacted in the Code of Civil Procedure warrant to a sufficient degree that the welfare of a child — being one of the determinants of these regulations — is safeguarded?

2019년 헤이그 외국판결 승인집행협약

헤이그국제사법회의에서 2019년에 성립한 ‘민상사 외국판결의 승인집행에 관한 협약’은 단순협약(convention simple) 중에서도 간접관할의 백색목록을 부분적으로 입법화하고 과잉관할에 대한 어떤 형태의 통제도 정하지 않는 느슨한 협약이다. 판결의 승인절차도 승인국법에 일임한다. 그리고 신규 체약국이 들어올 때 서로 거부선언을 할 수 있게 하여, 양자화 장치가 가진 실용성도 외면하지 않았다.BR 이 협약이 스스로 규정하는 간접관할기초는 종류와 그것이 미치는 범위에 있어 대체로 제한적으로 규정되었다. 그러나 새로운 기준도 도입되었다. 특히 자연인의 주된 사무소․영업소 소재지국이 가지는 일종의 일반관할(제5조 제1항 b호)은 해석상 문제를 남기고 있다. 신탁에 관해서는 각별히 신경을 써서 규정체계의 완결성이 높은 편이다. 신탁의 내부관계에 관하여 설정자의 관할지정이나 주된 관리지 지정을 간접관할기초로 규정하고, 후자는 묵시적 지정도 인정할 의무를 지운다(제5조 제1항 k호). 게다가, 신탁증서상의 배제적 관할지정에도 효력을 부여할 수 있게 허용한다(제7조 제1항 d호). 제7조가 승인국의 재량을 허용하기는 하지만, 전속적 관할지정이 간접관할 단계에서도 의미부여될 수 있게 하는 장치이다.BR 이번 협약은 관할합의협약과 마찬가지로 승인절차도 피요청국법에 맡기는데(제13조), 국제재판관할의 경합을 전제하는 이번 협약의 속성상 이것이 판결승인집행협약의 실효성을 저해하는 문제가 두드러지게 나타날 수 있다. 특히, 패소당사자가 승인소송 진행 중에 승인집행거절사유로서 판결충돌의 사유를 사후적으로 창출시킬 여지를 남기기도 한다. 그러나 이런 부분은 목적론적 축소해석(감축)의 해석방법 또는 법률회피나 권리남용의 일반법리를 원용하여 대응할 수 있다. 1980년 국제물품매매협약 제7조와 같은 규정이 없더라도, 국제사법의 일반이론의 개입가능성은 인정되어야 한다. 이번 협약과 같이 외국판결 승인집행의 문제에 대하여 부분적으로만 규정하는 국제조약을 해석, 적용함에 있어서는, 법해석방법론과 국제사법의 일반이론에 맡겨진 역할이 좀 더 클 수 있다.BR 이번 협약은 관할합의협약과 달리, 집행가능선언이나 집행을 신청하는 절차의 비용 담보에 관해서도 규정을 두었다. 신청인이 외부인이라는 이유만으로 집행절차 비용담보를 요구받지 않는다(제14조 제1항). 그런데 비용담보를 요구받지 않은 신청인이 패소하여 그에 대하여 절차비용 상환명령이 내려지면 그것은 이 협약의 다른 조문에 상관없이 모든 체약국에서 집행될 수 있게 한다(제2항). 제1항은 외부인에 대하여 추가적 요건을 심사하여 절차비용 담보를 요구하는 것을 허용하므로, 큰 부담이 되지 않는다. 그러므로 제1항의 적용제외선언은 하지 않는 편이 나을 것이다.BR 이 협약의 체약국들 간에는, 이 협약에 의하지 않는 맥락에서도, 포괄적인 상호보증이 법률상 당연히 생기게 되는지 문제된다. 부정적으로 해석함이 타당하다.BR 한국이 이 협약을 비준하는 실익은 분명하므로, 비준을 적극적으로 검토하되, 제18조의 사항별 적용제외선언과 제19조의 국가 등의 적용제외선언을 할 필요가 있는 부분을 확인한 후 비준절차를 밟는 것이 좋을 것으로 생각된다.

민상사 외국판결의 승인 및 집행에 관한 협약 (2019년 7월 2일 체결)

민상사 외국판결의 승인 및 집행에 관한 협약 (2019년 7월 2일 체결)

Private International Law Bibliography 2019: U.S. and Foreign Sources in English

This bibliography covers private international law or conflict of laws in a broad sense. In particular, it covers judicial or adjudicatory jurisdiction, prescriptive jurisdiction, choice of forum, choice of law, federal-state conflicts, recognition and enforcement of sister-state and foreign-country judgments, extraterritoriality, arbitration and related topics. It includes books and law journal articles that appeared in print during 2019, or earlier but were not included in the 2018 bibliography. It does not include articles or essays published in books (as opposed to journals), or writings appearing only in electronic form.

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.

Between Informal Dialogue and Official Criticism

Abstract There are various forms of jurisdictional dialogue. In addition to drawing from the case law of another court or seeking direct assistance of such another court in passing the judgment, we can notice in practice situations when by issuing a verdict the courts are communicating with each other. The rulings of the Bundesverfassungsgericht, the Court of Justice of the European Union, and the European Court of Human Rights regarding the free movement of judgments in the European Union and protection of fundamental rights are the example of such activities. Each of these bodies was interpreting separately the extent to which the mechanisms of recognising and executing the judgments may interfere with the level of protection of fundamental rights. A common conclusion concerns assigning the priority to protection of fundamental rights, while individual bodies were determining differently the standards of such protection. The analysed judgments can be construed as a communication between these bodies. Although no direct discussion takes place between these courts, this is still a form of interaction which affects the development of the case law and understanding of the boundaries of mutual recognition of judgments and protection of human rights within judicial proceedings.

BRIEF COMMENTS ON THE CONCEPT OF JUDICIAL AUTHORITY JURISDICTION UNDER ARTICLE 6 OF COUNCIL FRAMEWORK DECISION NO. 2002/584/JHA REGARDING THE EUROPEAN ARREST WARRANT

Article 6, paragraph 1 of Framework Decision 2002/584/JHA provides that the issuing judicial authority is the judicial authority of the Member State competent to issue a judicial decision in accordance with the law of that State for the purpose of surrender on the basis of the European arrest warrant to another EU Member State.The Court of Justice in Luxembourg, by its recent case-law, held that the notion of issuing judicial authority does not concern the prosecutor's offices in a Member State which are at risk of being subjected, directly or indirectly, to individual orders or instructions by the executive power in the context of adopting a decision on the issuing of the European arrest warrant. The effects of this judgment are mandatory for all Member States and require clarification from the Member States affected by the ECJ ruling regarding the nature of the European arrest warrant authority, even a possible intervention by the legislature in these EU Member States, to facilitate the settlement of cases of arrest in full agreement with the principles of mutual recognition and mutual trust of judgments in the European area.

“Judicial Convention” as a New Stage in the Recognition and Enforcement of Foreign Judgments

In May 2018, at the 4th and final meeting of the Special Commission of the Hague Conference on Private International Law, the draft Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters that had been developed since 1992 was represented. It is expected that after the Diplomatic Session that will be held in the mid-2019 the draft will be finalized and the Convention will be adopted and opened for signature.In this regard, the article attempts to analyze the main provisions of the draft Convention and assess the appropriateness for the Russian Federation to access it, taking into account the fact that Russia has a limited number of international treaties permitting recognition and enforcement of foreign judgments in Russia and decisions of Russian courts abroad. Based on the results of the analysis, the author concludes that the adoption of this Convention will provide for a simple and effective basis for the recognition and enforcement of foreign judgments eligible for States with different legal, social and economic circumstances. This, in turn, will increase the practical value of court decisions ensuring the most comprehensive protection of the rights and interests of the party in whose favour the decision has been made and, as a consequence, will contribute to the attractiveness of this method of dispute resolution for parties involved in cross-border private law relations.However, the mixed attitudes of the EU and the USA to the Draft Convention raises the question of their accession to the future Convention and may significantly reduce the impact of the adoption of the document under consideration.

El Artículo 15 del Reglamento 2201/2003 y la remisión a un órgano jurisdiccional mejor situado para conocer del asunto. Nota a la Sentencia del TJUE de 4 de octubre de 2018, IQ y JO, AS. 478/17 = Article 15 of Regulation 2201/2003 and the transfer to a court better placed to hear the case. Comment to the ECJ Judgment 4

Resumen: Esta Sentencia tiene por objeto la interpretación del artículo 15 del Reglamento (CE) N.o 2201/2003 del Consejo, de 27 de noviembre de 2003, relativo a la competencia, el reconocimiento y la ejecución de resoluciones judiciales en materia matrimonial y de responsabilidad parental, por el que se deroga el Reglamento (CE) n.o 1347/2000. La cuestión que se planteó era cómo había que proceder en una situación caracterizada por el hecho de que los tribunales de los dos Estados miembros afectados tenían competencia judicial internacional conforme a las disposiciones de este Reglamento para conocer del fondo del asunto.Palabras clave: remisión a un órgano jurisdiccional mejor situado, tribunal competente para conocer del fondo del asunto.Abstract: This judgment refers to the interpretation of Article 15 of Council Regulation (EC) Nº 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000. The question was how to proceed in a situation characterised by the fact that the courts of both Member States concerned, had jurisdiction under this Regulation.Keywords: transfer to a court better placed to hear the case, court having jurisdiction as to the substance of a case.

The Hague Conference on Private International Law's Proposed Draft Text on the Recognition and Enforcement of Foreign Judgments: Should South Africa Endorse it?

AbstractThe Proposed Draft Text on the Recognition and Enforcement of Foreign Judgments forms an integral part of the ambitious Judgments Project of the Hague Conference on Private International Law. In particular, this instrument endeavours to foster predictability and certainty in international commercial relations by enabling litigants to be accurately informed in advance of the circumstances in which the decision of the court of one contracting state will be recognized or enforced in the territory of another. The endorsement of the Draft Judgments Convention could accordingly prove advantageous to countries like South Africa, whose private international law on the recognition and enforcement of foreign judgments seems archaic and confined to a narrow set of precepts. This article identifies the loopholes in the country's policy and practice on the subject, and demonstrates the manner in which the Draft Judgments Convention could plausibly address these lacunae.

Regionalism: Is it Essential to the Advancement of International Arbitration in ASEAN?

Over last two decades, we were witnessing the marked increase of trade and investment in Asia, especially intra-ASEAN and between China-ASEAN, inducing the establishment of many international arbitral institutions and promulgation of arbitration laws in the Member States. In which, Singapore International Arbitration Center has become the most preferred arbitration seat in the region. In despite of the fact that the establishment of a regional arbitration center, and the harmonization of mechanism of recognition and execution of foreign judgements and arbitral awards had been discussed, it is unlikely that both two subjects would be considered and realized in near future due to the state immunity and differences in politics and jurisdictions of the Member States. This paper shall investigate the necessity and alternative construction of the regionalism in international arbitration which may facilitate the commercial and investment disputes settlement in ASEAN by analyzing their current context and potential processes. This examination shall also reveal the impacts of the capital flows from China’s Belt and Road Initiative, European Union countries and the competition amongst the different other mechanisms of international disputes settlement on the advancement of the international arbitration in our region.

The HCCH Judgments Convention in Australian Law

In May 2018, the Hague Conference on Private International Law (‘HCCH’) produced a draft convention for the recognition and enforcement of foreign judgments. A Diplomatic Session of the HCCH is expected to take place in 2019 at which this draft ‘Judgments Convention’ will be presented. If a multilateral convention emerges from the Diplomatic Session, Australia is likely to be an early adopter: the Commonwealth Attorney-General’s Department conducted a public consultation on the draft Judgments Convention in 2018. Against that background, this article considers the impact of implementation of the Judgments Convention in Australia. It is argued that domestic legislation that emerges from the Judgments Convention will deliver an overdue refurbishment of the Australian law relating to the recognition and enforcement of foreign judgments. Australia’s adoption of the Judgments Convention ought to be welcomed.

Klauzula porządku publicznego a uznawanie zagranicznych orzeczeń, których przedmiotem jest uznanie wyroku lub stwierdzenie jego wykonalności

The paper is devoted to the admissibility of recognition and enforcement of a judgment of a foreign court, the subject matter of which is recognition or declaration of enforcement of a judgment from yet another state (judgment on judgment). The issue is discussed in particular with reference to the public policy exception which constitutes a ground for refusal of recognition or enforcement of foreign judgments, both under Polish domestic law (the Code of civil procedure) and European law (Brussels I bis Regulation). It remains controversial whether the judgments on judgments should be recognized, thus benefiting from the so called “parallel entitlement”. The article takes a comparative approach, examining solutions adopted by various legal systems and analysing arguments for and against recognition of such decisions. The author takes the position that they should not be recognized (and that their enforceability should not be declared) in Poland, both under the Code of civil procedure (as with respect to judgments originating from non-EU states), as well as under EU legislation, in particular Brussels I bis Regulation. It is advocated that the concept of a “parallel entitlement” should be rejected.

Milletlerarası Özel Hukukta Tüketicinin Korunması

<span style="color: rgb(0, 0, 0);">Under international private law, the issue of consumer protection bears significance regarding conflict of laws rules and international jurisdiction. Turkish Private International Law and International Civil Procedure Code no. 5718 (PIL Code) stipulates the relevant choice of law rules pertaining to consumer contracts under Art.26. On the other hand, the international jurisdiction of Turkish courts over consumer contracts are stated under Art.45 of PIL Code. In determining the international jurisdiction of Turkish courts over consumer contracts, PIL Code refers to Art.26. Hence, the scope of Art.26 regarding the types of consumer contracts it encompasses, bears a great significance both regarding the applicable law and international jurisdiction of Turkish courts. Under the first section of this study, the scope of the Art.26 will be determined. Following this, under the second section international civil procedure rules pertaining to consumer protection are examined. In this context, the legal characteristics of international jurisdiction rules under Art.45 will be explained; the validity of choice of court agreements in matters relating to a consumer contract will be examined; and finally, the recognition and enforcement of foreign judgments regarding consumer disputes will be discussed.</span>

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.