264 国際私法年報第16号(2014)

SpontaneousHarmonizationandtheLiberalizationoftheRecognitionandEnfbrcementofForeignludgments

B61ighELBAIJrlProgram-SpccificAssis[antat lq,o[oUniversit)ノ

1.Introduction.

RecognitionandEnfbrcementofForeignludgments (REFJ)havealwaysbcenatthecentreofinterestofbothschola,･Sandlawmakers・ Sincethel9II､ ccI'turyj authorshavebeenactivelytryingroidentilj,[he[heoreticalandpracticalobs[acles[hatthwartachievingthemainobjectiveofjudgmentsrecognition, i.e. toensurethatajudgmentobtainedinonestatcisgrantedeffectabroadBeingacutelycriticalofthestatusquooffbreignjudg-mentslawandprac[ice, theyhavebeenclamouringfbraglobalscaleofharmonizationtha[wouldeliminatemostoftheimpedimentstojudgmentsrecognitionj! thishasbeendonebypointingout thecontradictionbetweentherelevantneedib,． anintemational inStru-men[onjudgmentsrecognitionandtherealityofitspractice.2O,,theotherhand, [hesigni6cantprogrcssmadetowardstheliberalizationofdomestic

recognitionspracticesshouldnotbeunderestimated.Thisliberalizationistheresultoftherecent trendofcodi6cationofPIL, lawrefb,･msandcaselawdevelopments.Acursorycomparativeglanceatthelawoffbreignjudgmentsrevealsthatthestatesthathavctradi-tiOnallybeenclingingtorestrictiverequisitesareslowlyabandoning,orlikely[oabandon,theirnarrow-mindedapproachtowardsjudgmentsrecognition.3Theresultofthisunilat-eral liberalizationisthe"""‘唾""ofmanyaSPectsofjudgmentsrecognitionregimes. Ino[herwords,withoutanyprioragrecmentbetweendifferentstates, theprocessofunilateralliberalizationofnational lawhassofirendedupinharmonizi,,gthediffbren[approachesrojudgmentsrecognition.41[isthistrend[hatwillbel,ereinafterrefbrredtoas"0"ZzZ"""~ノ ， 弓〃〃γ"ZO〃Z”〃0〃.〃

Theconceptofや0"”"”“harmomzatlondescribesthe［rendtowardsapprox1matlonoffbreignjudgmentsrecognitionregimeswhichistheoutcomeofthemodi6cationofna-tional lawsandpractices･ ItcEInbeopposedtotheconceptof"organised/fbrmalharmoni-zation"wherebytwoormores[atesutiliseinternationalinstrumentstoregulatctheirmu-

SpoI,tanco,'sHarmonizationandthcLiberalizarionofthe[BelighELBAI:1･i] Rccogni[ionandEnfbrcementofForeignJudgmen[s 265

tualorreciprocalrecognitionregimcs・Hence, spontaneousharmonizationunderlines [heunilateral liberalizationproccssofthedomesticrecognitionlawinseveralstates; aliberal-izationwhichhassofarresultedinimprovingthenational recognitionpractices,andhas,consequentlyJedtoaccrtainconvergenceofthenationalREFJregimesInthepresentwork, :､spontaneousharmonization"doesnotmeanthatthesolutionsin

alllegalordershavebecomesimilarintermsofregulatingjudgmentsrecognition.Theau-thorisawarethatseveral restrictivejudgmentsregimesstill existandarenot likelytochangeinthenea,･ fi,ture.6Nevertheless,as itwillbediScLIssedbelow, themovement to-wardstheliberalizationoftl,eREFJisanundeniablefact.Thedevelopmentsofdomesticlawsinthemajorlegalsystems,whichareusuallytakenasexamples incomParativestud-ies,7revealspectacularchanges.Thisunilateral liberalizationofREFj isindicativeoftheemergenceofthephenomenonofspontaneousharmonization, i.e. thespontaneouscon-vergenceoftheREF肱eg'mes･Thisbeingsaid, theprimaryaimofthispaPeristoshedlightonsomerecentdevelop-

mentsinfbreignnational lawoffbreignjudgments､8Tbthatend, thefbcuSwillessentiallybeplacedoncertainlcgalorders[hatarecommonlyexempli6edasorderswithrest,･ictivejudgmentsrecognitionregimes.Duetospacerestrictions,onlyageneraldescriptiveover-viewofthephenomenonofconvergencewillbeprovidedinorder[ohaveageneralinsigh[intothisemergingphenomenon.ThephenomenonofconvergenceresultingfiomtheliberalizationoftheREFJistwo-

fbld. Itcanbe6rstobservedwithregardstotheatti[udetowardsfbreignjudgments.Theparochialattitudeofnon-recognitionisclearlyonthewaneasit isbeingsupplantedbyaprorecognitionattitude.Theconvergenccoflegalsystemscanalsobeobservedintermsof[herequirementswithwhichfbreignjudgmentshavetocomplyinordertoobtainextra-[erritorial effEcts.Hereagain,manyofthemostquestionablerequirementshaveeitherbeensupprcssedorhadtheirstancesoftenedinawaytheynolongerconstituteserioushurdles[oREF1・TheseissueswillbedealtwithinPartsTwoandThreeofthisworkwhich

三

willrespectivelybedevotedtodescribingthemost importantdevelopmentswithregardto[heprincipleofnon-recognition(II) andtherequirementsfbrtheREFJ(111).ThiSPaPerwillalsoseekmexPlainthereasonsunderliningspontaneousharmonization.

Itarguesthattheevolu[ionoftheperceptionoffbreignjudgmentsisthemainreasonbe-hindthesedevelopmentsasthefbcus is increasinglyplacedontheprivateaspectsoffbr-eignjudgmcntsratherthanthcirpublicaspects.ThisquestionwillbeexaminedinPart

266 国際私法年報第16号(2014)

Four(1V)

Ⅲ､FromthePrincipleofNon-RecognitiontoPrinciplcofRecognition

CourtsdealingwiththeREFIhaveonlytwooptions:Eithertogiveefftctstofbreignjudgmentsornot.Thetraditional,andmoreorlessinstinctive,attitudehasbeenthatfbr-eignjudgmentshaveinprincipalnoextraterritorialeffectsintheabsenceoftheconsentofthelocalsovereign.Twodifftrentapproachescanbedistinguished,butbothleadtothesameresult: fbreignjudgmentsaredisregardedandpartieshavenochoicebuttolitigatetheirdisputeagain,aSaresult.Accordingtothefirstapproach,fbreignjudgmentsaredisregardedunlessthereisafbr-

malreciprocityestablishedeitherbyatreatyoragovernmentaldeclarationtothecontraryHInthisoutlook, thereisnoneedtochecktheregularityoffbreignjudgmentsorevenre-examinetheirmerits・Theonlypermirtedexceptiontothisruleistheexistenceofapriorconsen[fbrmallymaniftstedbythelocalsovereign(1).Thesecondapproachconsists insubjectingtheauthorityofthefbreignjudgmentto

proceduralconstraintsintheabsenceofwhichfbreignjudgmentsarenothingmorethanapieceofpaper.Thisconsistsbasicallyinmakingtheeffbctsoffbrcignjudgmentsdependonacompletere-examinationof[hefbreignjudgments6ndingsoffactsandconclusionsoflaw(2). Itcanalsoconsistinsubjecting[he"recognition"toapriordeclarationofen-fbrceabilitywithoutwhichthefbreignjudgmentisregardedashavingnolegalauthorityandcannotbeinvokedtopreventrelitigationofthedispute(3).

1.Non-RecognitionintheAbscnceofInternationalTreaqroraGovernmentalDec-~ご

laration

It iscommonlyagreedthatsubjectingREFJtothePrio,･existcnceofatreatyoragov-ernmentaldeclara[ionisthemostrestrictiveapproachtofbreignjudgments.'Oneoftheimportantmanifestationsofthephenomenonofliberalizationofjudgmentsrecognitionregimescanbeobservedincertaincoun[rieswherethisanachronisticapproachistradi-tionallyadopted. Inthesecountries,andinspiteoftherestrictivelanguageoftheirrespec-tiverecognitionrules,domesticcourtshavemanagedtosoftentheimpactoftheserulesbycreatingextensiveexceptionspropoundingthattheabsenceofatreatyoragovernmentaldeclarationisnotanabsolutebarriertojudgmentsrecognition.

1. InRussia, '0fbrexample, theprincipleofnon-recognitionintheabsenceofinterna-

Spontaneous Harmonization anti the Liberalization of theRecognition anti Enforcement of Foreign Judgments 267[Beligh Elbalti]

tional treaty is well established in Russian law" despite the several admitted exceptions.' Strictly construing the law, Russian courts traditionally apply these commands literally andreftrse in principle to grant effects to foreign judgments in the absence of a treaty obliga-tion to do so.

However, in the liglit of recent developments, it seems that the requirement of a special

international treaty no longer constitutes an unconditional ground fot reftising the REF).Indeed, in 2002, the Russian Supreme Court considered that foreign courts decisionscould be recognized and enforced on other bases such as Agreements on Partnership(AP) - concluded witli certain European countries and in which access to justice is guar-anteed - and/or reciprocity.'^ Later, in 2006, Russian courts formally acknowledged thatAP could be a legal basis for the REF). They considered tliat access to justice guaranteed

by AP was to be understood and interpreted in the liglit of the jurisprudence of tlie Euro-pean Court of Human Rights (ECHR) according to which fair trial does not only meanthat there be a competent court to hear the dispute but also include the enforcement of its

decisions.'

More importantly., in 2009, Russian Courts - in a case that was considered as “turning

point in the Russian judiciary's approach to foreign judgments,,]6

acknowledged that rec-iprocity and international comity, as general principles recognized by the Federal Constitu-tion, could serve as ground for judgments recognition even in the absence of AP or inter-

national agreement.' Russian courts confirmed the new solutions in subsequent decisions.In November 2011, the State Commercial Court of tlie City of Moscow enforced an

American Judgment rendered by a District Court of the State of New York.'o The signifi-canee of the case resides in the fact that there were neither international conventions nor

AP beween Russia and the United States. Thus, the recognition and enforcement of the

American judgment was allowed on the sole basis of reciprocity and international comity.Finally, in 2012, Russian courts, following closely the reasoning adopted in the 2009 deci-slon, allowed again the recognition and enforcement of an English judgment.

These developments illustrate that despite the statutory prohibition to recognize andenforce foreign judgments in the absence of any treaty obligation, foreign judgments areactually recognized and enforced if the judgment creditor establishes that Russian Judg-

ments are likely to be recognized and enforced abroad. It seems then that the onus is put

on upoir the parties to provide the evidence on how effectively Russian courts judgmentsare treated abroad.“ If evidence is brought, foreign judgments are likely to be granted ef-

~68 lllíiííệl 116! (2014)

feet.

2. In the Netherlands ' and other Nordic countries such as Norway, Sweden, Finlandand Denmark, foreign judgments are in principle denied recognition and enforcement.The rule in these countries is that cases should be decided de novo in Ol'der to obtain a lo-

cal judgment on the merits. Nevertheless and despite the statutory prohibition, ^ develop-ments in these countries indicate that a more positive approach is being adopted. Accord-Ing to this approach, since foreign judgments cannot be recognized and enforced in theabsence of applicable treaty, a new action on the merits can be initiated. However, in thenew proceedings, although it takes the form of a new trial, foreign judgments will begranted certain effects, and in certain cases more than a mere evidentiary weight. The re-suit is that the recognizing court will base its decision on the foreign judgment. For in-stance, in the Netherlands, the Dutch courts practice has succeeded in changing the ruleaccording to which disputes should be relitigated in the absence of a treaty obligation intoa sort of actio judicati akin to an action on the foreign judgment as known in CommonLaw countries. In tlie new action the foreign judgment will be regarded as having “bind-ing force” when it meets certain requirements that have been established by case law inthe absence of legislative guidance. In other situations, Dutch court simply recognize for-eign judgments. This is the case for example, when the foreign judgment is rendered onthe basis of choice of court agreement. ^ In any case, Dutch authors affi I'm that foreignJudgments are likely to be recognized upon the fulfilment of the requirements establishedby case law.

Similarly, in Nordic countries, although officially not binding, foreign judgments areten given considerable evidentiary weight so that they are almost recognized. In general,this would be the case when the foreign judgment is rendered by a competent court andwlien it does not violate the ordre public of the forum, although other factors can be taken

In certain situations, however, Nordic courts will literally recognizeforeign judgments despite of legislative restriction especially when the foreign Judgment isrendered by a foi'eign coui't having jurisdiction under an exclusive choice of court agree-ment.

of-

into consideration.

T. Reuision att Fond

The principle of non-recognition also manifests itself in the practice that consists insubjecting the content of the foreign judgment to a reexamination of its finding of facts

Spontaneous Harmonization and the Liberalization of theRecognition and Enforcement ofFoteign Judgments S69[Beligli Elbaiti]

and law, better known as révision aufond. The practice of révision aufond, wlrich was origi-

nated in France, ^ used to be largely adopted by different legal systems.However, during the last few decades, one of the major developments is this trend to-

wards the proliibition of the practice of révision au fond and the generalization of theREFJ. As is widely known, French courts abolished this practice in 1964, 150 years afterits introduction into French law.5 Before that, it was abolished in Luxembourg in 1956.The practice of reviewing of the merits of the case was also formally abolished in Quebec

in 1991 > in Italy in 199555 and in Belgium in 2004.^“ These developments demonstratethat the prohibition of révision au fond has been elevated to an internationally acknowl-

edged principle in modern PII adopted by the majoripz of legal systems.

3. Declaration of Enforceability as Prerequisite for Mere Recognition

In certain legal systems, foreign judgments may not be entitled to any effect as long asthey are not declared enforceable. However, although it is logical to require a special pro-

ceeding when "enforcement” is at issue, the situation turns to be problematic when the"recognition” of certain effects, namely resjudicata, is to be subject to a prior formal decia-ration. In such a case, a person divorced abroad will contintie to be considered as married

until the foreign divorce he/she obtained is declared enforceable. More importantly, a de-

fendant will not be able to invoke the foreign Judgment in order to prevent relitigation aslong as it is not declared enforceable.

One of the drastic consequences of sucli rule is tliat a new action on tire merits beween

the same parties will prevent the recognition of the foreign judgement.^ In this respect,the generalization of de piano recognition is to be liighlighted. For example, in Italy, the'[delibazione" is no longer required for the mere recognition of foreign judgments.« Simi-larly in Belgium, the new code of 2004 extends henceforth the de piano recognition - tra-ditionally acknowledged only to family law judgments - to all foreign judgments.^^ More-over, in France, even though the practice that makes res judicata conditional upon a priordeclaration of enforceability has not been officially abolished yet, there is unanimous opin-ion among scholars that there is a general trend towards the generalization of the de pianorecognition to all categories of foreign judgments.

(2014 )Ẳ?Ếệ« .16 ạ]|;| 270 Ìl

III. Liberalization of the Requirements for the Recognition of ForeignJudgments

Not only have the recent developments in national laws affected the attitude towards

foreign judgments, but also the requirements with which foreign judgments have to com-ply. These developments suggest there exist two complementary trends which contribute

to the liberalization of the requirements for the REFJ. The first consists in the reconsidera-

tion of certain requirements whose existence is firmly contested by scholars. In this regard,national law developments show that these requirements are either abolished or so softened

that they become almost inoperative (1). Tlie second consists in reconsidering the require-ments that are deemed essential to any judgments recognition regime. These requirementsare adapted to the modern objectives of PII (2).

1. Developments with regard to Contested Requirements

a. Control of Choice of Law

Several legal systems require that the law applied by foreign courts should correspond tothe applicable law designated by their choice of law rule. This requirement was even in-eluded, under certain conditions, in certain international conventions such as 1968 Brus-

sels Convention^ and tlie 1971 Hague Judgment Convention.^^ However, although cer-tain influential scholars defended the control of choice of law rule,^8 and few others stilldefend it. its legitimacy is in constant decline. It lost popularity among scholars who areeither hostile towards its adoption “ or call for its abolition. ’ It is also constantly excludedftom recent instruments on judgments recognition. More interestingly, the compatibilityof the result of its application with human rights was seriously questioned as demonstratedby the decision the European Court of Human Rights (ECHR) in Wagner V. Luxem-bourg.

Recent developments in national law confirm this trend. Often severely criticized forcausing limping legal relationships or for being aldn to a révision au fond, the control ofchoice of law was excluded ftom many codifications such as those of Germany (1986),Quebec (1991), Turkey (2007)

France or Luxembourg,““ the condition was rather eliminated by case law. In anycase, even thougli few legal systems still impose, with many restrictions, a certain review of

the law applied by the rendering court,“' it is now generally admitted that this anachronis-

% Poland (2008) .7 In other countries, such as Ja-pan.

Spontaneous Harmonization and the Liberalization of theRecognition and Enforcement of Foreign Judgments[BCligh Elbalti]

tic requirement has nothing to do with REFJ.

271

b. Reciprocity

Reciprocity is also a much-criticized requirement; "an ill-conceived notion'' 5 that manyscholars hope to see disappear from the law of judgments recognition one day. Consideredas a factor of regression and a source of complication in PIL,“ reciprocity has nothing todo with fairness beween the parties nor it impedes unduly and abusive relitigation; yet itrequires tliat perfectly valid judgments be disregarded. In fact, support of reciprocity isnot necessarily guided by its intrinsic qualities (if any), but it is ratlier deemed as neces-sary evil towards promoting the recognition of local judgments abroad.oo As the develop-ments outlined below will demonstrate, in many legal systems where reciprocity is still re-quired, it has become a condition that can be easily satisfied. The principle being thatforeign judgments should be recognized and enforced, it seems that reciprocity can effec-tively lead to tire refusal of recognition of foreign judgments are limited to few extreme ex-ceptional situations where the rendering state still adheres to outdated approaches such asrévision aufond, treaty obligation or still cling to a restrictive conception of the reciprocityrule.

Recent developments regarding the requirement of reciprocity are indicative of a wo-

fold trend. On the one hand, there is a tendency of a pure and simple abolition of reel-procity requirement. Many examples of recent codifications and law reforms show that

reciprocity has been completely excluded fiom the law of recognition in a nunrber of statesincluding Venezuela (1999),“ Bulgaria (2005), Macedonia (2007), “ Poland (2ΟΟ8)etc... On the other hand, in other countries where reciprocity is still maintained, the legis-lative or the judiciary authorities have actively intervened in order to loosen the practicalimplications of the reciprocity rule. In several legislations the scope of application of thereciprocity requirement has been substantially reduced. For instance, some countries re-

quire reciprocity only for the recognition of judgments rendered against their national de-fendants.72 In other countries, reciprocity applies only to the enforcement but not to therecognition of foreign judgments.75 More importantly, in some 0tiler countries, reciprocityis presumed until evidence to the contrary is produced.

In addition, case law in a number of countries lias played a decisive role in limiting theundesirable effects of the reciprocity requirement. For instance, in Germany, it suffices thatGerman judgments are likely to be recognized and enforced to establish reciprocity.75 Simi-

272 lll-sẹi 16. (2014)

larly, Japanese courts usua!ly admit reciprocity when it is likely that Japanese judgments ofthe same kind would be recognized by the rendering court under conditions that are not

significantly different from those adopted in Japan.7 Moreover, in Spain, and despite theexistence of two provisions dealing with judgments 1 1| ,77 Spanish authors pointout that courts have made of provisions on reciprocity a mere slogan which has no practi-

cal implications.Nonetheless, the existence of recently reported cases in which reciprocity was employed

to refuse the REFJ should be pointed out. For example, in 2003 the Osaka High Court re-

fused to recognize a judgment rendered by a Chinese court in retaliation to the refusal of

Chinese courts to recognize a Japairese court’s decision for lack of reciprocity.75 However,the reaction of Japanese courts can be contrasted with the reaction of Israeli and Germancourts.

In 2012, the Tel Aviv District Court, faced with the issue of the recognition of a Russian

judgment, held that in the light of the recent developments in Russian case law, Israeli

judgments were likely to be recognized and enforced in Russia althougli Russian statutorylaw required that reciprocity be established by a treaty. More importantly., in this case, the

defendant opposed to the recognition of the Russian judgment because of the existence ofa Russian precedent that refused the recognition of an Israeli judgment on the ground ofreciprocity. However, the court considered that the existence of such precedent was not de-cisive because the refirsal was only justified by the absence of proof of reciprocity beweenRussia and Israel. Therefore, according to the Israeli court, if evidence of reciprocity had

been brought, the Israeli judgment would have been given effect in Russia. “ Similarly, aGerman court accepted to recognize a Chinese judgment ‘ although there was a precedentof a Chinese judgment reftrsing the recognition of a German judgment on the basis of reel-procity.“ The German court justified its decision by the willingness of the German courtto establish reciprocity with China expecting Chinese courts to reciprocate and start recog-nizing German judgments.

These cases are of great significance because they demonstrate that certain courts have

adopted a more open-minded attitude that is in line with the phenomenon of liberaliza-tion of the REFJ. This attitude, which pave the path towards the complete ineffectivenessof reciprocity requirement, may inspire other foreign legal systems to adopt more liberalattitude towards the recognition of foreign judgments. In any case and in the light of therecent developments affecting the reciprocity requirement, one can hardly imagine how

Spontaneous Harmonization and the Liberalization of theRecognition and Enforcement of Foreign Judgments 7 [Béligh Elbalti]

this rule can still be operative outside a very few exceptional cases.

2. Developments with regard to the Recognition Core Requirements

a. Jurisdiction of Foreign Courts

In number of legal systems, the jurisdiction of foreign courts is considered as the most

important of all requirements of judgment recognition.^^ However, behind this basic con-sensus, rules and applications of this requirement do vary.o Nevertheless, new develop-ments reveal that there is a general movement towards adapting the requirement of Indi-rect Jurisdiction to the present needs of international litigation. This consists in limitingthe control of the jurisdiction of foreign courts into reasonable boundaries by requiring acertain connection between the dispute and the forum. These reasonable boundaries are

usually justified by the protection of defendants fiom exorbitant jurisdictions, the viola-

tion of his/her procedural human rights and limiting forum shopping.Firstly, these developments consist in the abolition of certain restrictive rules that have

turned the requirement of Indirect jurisdiction into a serious impediment to the REFJ. Inthis respect, the abolition of the exclusive character of Articles 14 and 15 of the French

Civil Code is very illustrative. Considered as "legal trap",87 these Articles used to be under-stood as granting exclusive jurisdiction to French courts over any disputes involvingFrench citizens. This was enough to make the REFJ almost impossible against French na-tionals who did not waive their privilege.88 However, in two important decisions,85 theFrench cour de cassation finally declared that these Articles no longer confer exclusive juris-diction to the French courts but only set optional jurisdiction inadequate to exclude tlie

indirect jurisdiction of foreign courts.Other restrictive rules can be found in other legal systems. For example, in certain legal

systems default Judgments cannot be recognized or enforced against foreign defendantsunless they accept to submit to the jurisdiction of the foreign rendering court. This systemprevailed for example in Spain.51 It is also largely accepted in many common law coun-tries.82 However, simply denying the indirect jurisdiction of the foreign court because tliedefendant did not accept to submit to its jurisdiction is somehow excessive especially when

the dispute has a reasonable connection with the foreign rendering State. Sucli a rule arbi-trarily favors defendants and encourages tactical abuses.

To counter these excesses, Spanisli courts later construed that default judgments per sewould be recognized if they were rendered on the ground of acceptable jurisdictional bases

274 IIIÍẾệệlỉ 116! (2014)

and the defendant had been duly notifìed.55 Similarly., significant changes occurred inCanada where the Canadian Supreme Court questioned the adequacy of the traditional

common law bases for assessing the jurisdiction of foreign courts to tlie modern judicialera. In two important decisions, the Supreme Court decided tliat traditional common law

should be adapted and considered that foreign courts should be regarded as having juris-diction when there existed a real and substantial conirectioir beween the rendering court

and the dispute.As the foregoing demonstrates, the general tendency in the law of judgments recogni-

tion is to limit the impact of exclusive jurisdiction, and in other cases where jurisdiction isonly concurrent, the onus of the jurisdictional control is placed on the existence of a con-nection with tire dispute that justifies that jurisdiction of the foreign court, although thecriteria according to which the control is exercised may differ ftom one legal system to an-other.

b. Public Policy

Similarly to the jurisdictional requirement, public policy is uiriversally admitted.’ Gen-erally speaking, it is agreed that only serious violations of the forum fondamental notions

and values can trigger public policy reactions althougli a certain connection witli the fo-

rum is usually required. This means, at least in principle) that the recourse to public policyshoitld be admitted only in very exceptional situations.’o Despite tliese common features,the content of public policy does considerably vary ftom one legal order to another.” Inaddition, the nature of its changing and imdefined content makes it is verjr difficult, not tosay impossible, to generalize any conclitsion.

Still, with regard to certain issues, certain developments relating to the operation ofpublic policy are undeniable. For instance, the recognition of foreign judgments awardingpunitive damages was one of the most controversial questions about which delegations andexperts involved in the negotiation of a global convention on jurisdiction and judgmentsrecognition liad to find a certain compromise.’^ The traditional approach adopted in manycountries is tliat punitive damages should in principle be ruled out.” However, a more

moderate approach, which is gaining support among different scholars’™, is fi nding itsway into the case law in a number of Jurisdictions. This approach consists in acktiowl-edging that punitive danrages awards are not per se contrary to public policy. Yet, it wouldbe otherwise when the amount awarded is disproportionate to damages actually suffered.

Spontaneous Harmonization and the Liberalization of the

Recognition and Enforcement of Foreign Judgments

Here, the intervention of public policj is in concreto, which makes rooms for the recogni-

tion of punitive damages awards. Such an approach is consistent with the recent solution

adopted by certain international instruments including the 2005 Hague convention (Art -cle 11), in which the rigid attitude of outright refilsal to recognition is not admitted.

In any case, the history of the REFJ teaches that categorical refusal to recognize and en-force foreign judgments is always excessive and that nuances brought to the traditional so-lutlons usually paves die path towards a more tolerant approach.

[Beligli Ειβαιπ] 275

IV. Reasons for the Emergence of the Phenomenon of SpontaneousHarmonization

As the foregoing demonstrates, in many legal orders, the adequacy of many of the mostquestionable rules for the REFJ has been seriously questioned at a national level by nation-al courts and lawmakers. It should be remembered that it is exactly the abolition of theserules that has been the subject of negotiation of many international conventions.‘“^ These

developments raise the question of the reasons beliind this phenomenon of fast track ofliberalization of Judgment recognition regimes that can be observed in many legal systems.

l. Upon examination of the requirements that have been subject to reconsideration, onecan notice that all of them sliare common feature i.e. all these impediments were conceivedin order to protect tile sovereignty of the recognition state at the detriment of fairness of

the foreign proceeding and the protection of the interest of the parties.‘ Accordingly,these impediments reflect a certain perception of tlie REFJ in which foreign judgments arelimited to tlieir public law aspect l.e. as emanations or exercise of sovereignty prerogativesby foreign authorities. This perception is in line with a public law conception according towhich PII is primarily concerned with delimiting the sovereignty prerogative of foreign

Certain scholars, especially in the French academia, called it "publicist concep-ύοη 11 conceptionpttblicistef.

As commonly known, PIT used to be conceived through the distorting lenses of sover-eignty. Here, the concept of sovereignty is of primary significance as it used to be at thecenter of all the construction of PII. Indeed, according to the opinion tliat prevailed untiltlie middle of the 2 ''' century, the primary function of PIT is to resolve conflict of sover-

Thus, since foreign judgments are the result of the exercise of the sovereign pre-rogatives by foreign public authorities, emphasis used to be placed on foreign judgments asemanations from foreign sovereignty. As act of sovereign, foreign judgments are entitled to

states.

06

eignty.

276 lệ\lằiẹ-l s 16-~~- (2 14)

extraterritorial effect unless declared otherwise by the authorities of the local sover-108

eign.

This understanding entails that the principle of non-recognition and the recognitionunder unduly restrictive requirements are in line with the raison d’être of judgments recog-

This105

nition regime: the protection of the sovereign prerogatives from foreign intrusions,lains why one of the fi rst approaches to foreign judgments was to completely disregard

them in the absence of formal reciprocity established either via a treaty or a governmentalLater when revision aufond was admitted, it was understood that local judg-

es can by no means be subject to the authority of foreign courts, and therefore, foreignjudgments had to be subject to a full reexamination fiom both aspect of facts and law. Tirerequirement of a declaration of enforceability for mere recognition also was consideredfiom this perspective, i.e. unless the judiciary of the local sovereign declares by an act ofsovereignty that the foreign judgment can liave effect witliin its territory, the foreign judg-ments cannot be effective.

declaration.

In addition, in a number of legal systems, even when "a more positive" approach are ad-opted, i.e. when It Is admitted that foreign judgments can be effective if they meet certainrequirements, the onus is still placed on the fact that the exequatur proceeding has to pro-tect die interest of the local sovereign."' Under this perspective, choice of law rules isquired in order to prevent parties ftom taking away the dispute outside the realm of tlielegislative jurisdiction of the forum. It is needless to insist on the political character of reel-procity which is the incarnation of public law in the field of ΡΙ1.''2 Similarly-, public policyis often understood so largely that it encompasses any social, political, economic or legisla-tive interests pursued by the local sovereign.'

With regard to the jurisdictional requirement, under the publicist conception, jurisdic-tional rules serve to determine the territorial reach and the scope of national sovereignty by

allocating jurisdiction over international dispute. Consequently, when the courts of a stateare regarded as having jurisdiction over certain disputes, it is then recognized that the ad-judication of the disputes are subject to its sovereignty, when it comes to REFJ, the pri- role of the jurisdictional rules (indirect jurisdiction) is to ensure tliat tlie foreignsovereignty does not exceed its scope and does not impinge on the juridical sovereignty ofthe state of recognition or that of a third state. Therefore, when applied at the recognitionstage. Jurisdictional rules serve to sanction the excess of exercise of jurisdiction by foreigncourts.

Spontaneous Harmonization and the Liberalization of theRecognition and Enforcement of Foreign Judgments 277[BCligh EiBAin]

2. However, from the beginning of the second half of the last century, the publicist con-

ception of PIL started losing popularity among scholars." Its decline was fitelled by therevolutions in the technologies of transportation and telecommunications, the constant in-crease of the level of international commerce and the movements of people and goods. The

weakening of nation-state under the increasing impact of globalization’I and the criticsagainst the concept of sovereignty were the key reasons behind the emergence of a newperception of PII, a perception that places focus on the private aspects of PII.

Nowadays, PII is not concerned with resolving conflicts between sovereigns. The mod-ern objective of modern PII is to provide solutions to private disputes with foreign ele-ments. Under tlie contemporary conception, all what matters is the fairness of the pro-

ceedings abroad and the respect of the legitimate previsions of the parties. " Tlrerefore, itsuffices that the dispute has reasonable connection with the foreign State in order for for-eign judgments to be recognized abroad."^ Jurisdictional rules are no longer regarded asdelimiting the juridical sovereignty, but rather contended to a simple role of determining,unilaterally, tlie catalogue of cases in which the courts of the forum will take jurisdiction.The main criteria to determine those cases are fairness to the parties and good administra-

tion of justice, although other factors can be included. Accordingly, in modern REFJ the

onus should be placed on tlie fairness of the foreign proceedings and the respect of riglitsand status obtained abroad. In other words, unless there is a serious reason for non-recog-

nition, a judgments that is rendered by a competent court without fraud and that is com-

patible with the recognition State public policy, is likely to be recognized. Tire result is thatunnecessary requirements, which are not in line with the modern objective of PIL, arelikely to be abolished.

V. Concluding Remarks

Judgments recognition practices in many legal systems are on track for liberalization.

What several conflictoflaws scholars had predicted proved to be true.’” Presently., therecognition regimes are pretty much advanced. A quick comparison with the judgmentsrecognition practices prevailing during the sixties, the seventies or even the end of the

twentieth century., demonstrates that considerable changes have occurred. Nowadays, ma-

jor legal systems, notorious for their restrictive regime of judgments recognition, areadopting a more positive attitude towards foreign judgments because the process of liberal-ization necessarily entails relinquishing restrictive impediments to judgments recognition.

278 lifti (2014 ) -16

As ¡t was pointed out, the logical result of this process is that the rules regulating tecogni-tion have become considerably similar.‘ In a nutshell, what negotiators and experts failedto achieve through the negotiations of a worldwide convention could have been provenunilaterally feasible at a national level via the proactive actions of local courts and lawmak-

' List of .abbreviations used In this paper: Pll: Private International Law; PILAZC: Private Interna-tional Law Act/Code; CCP: Code of Civil Procedure; REFJ: Recognition and Enforcement ofForeign Judgments.‘ See for example, A T. von Mehren, "Recognition of United States Judgments Abroad and For-eign Judgmettts in the United States: Would an International Convention Be Useftil?", RabelsZ,(1593), pp. 449ff.

2 See, Permaitent Bureau, “Some Reflections of the Permanent Bureau on a General Convention

on Enforcement of Judgments - Preliminary Document No 17 of May 1992", in Acts Proceed-ings of the Seventeenth Session, ƒ, (Hague, 1995), p. 231. For example, see G Cuniberti, “The Liberalization of the French Law of Foreign Judgments",ICLQ (2007), pp. 93Iff For detailed analysis, see infra Part II and III. This confirms the opinion expressed by Ch. N. Ftagistas according to wlilcli the unsatisfactorysituation of the REFJ can be improve by modifying domestic rules. Ch. F. Fragistas, “Rapport ex-plicatif sur la Convention-Jugements de 1971", in Actes et documents de la Session extraordinaire( 1966), Execution des jugements, (la Haye, 1969), P. 360.

5 Cf K Siehr, “National Private International Law and International Insti'uments”, in Essays inHonour of Sir Peter North (Oxford, 2002) p. 336.

For example, the recognition regimes in many Arab and Asian countries are rather restrictive andseem to be behind the liberalization movement of the REFJ. See, S Kantarla, “The Enforcementof Foreign Judgments in the UAE and DIFC Coitrts", Arab LQ. (2014), pp. 193ff; p M. c.Koh, "Foreign judgments in Asean - A proposal", laą (1996), pp. 844ff7 For example, F K. Juenger, “The Recognition of Money Judgments in Civil and CommercialMatters", 4/C, (1988), pp. Iff G Droz, "Regards sur le droit international privé comparé: Coursgểnểra! de droit international privé". Collected Courses, (1991), PP. 9ff; s R Baumgartner, “HowWell Do u.s. Judgments Fare in Europe?’’, Geo. Wash. 7« ¿ / Rev., (2008), pp. 173ff; K H.Nadelmann, “Non-Recognition of American Money Judgments Abroad and What to Do aboutIt”, Iowa L. Rev,, (1957), pp. 236ff; G Walter & s p. Baumgartner, “General Report”, in Recogni-tion nnd Enforcement ofJudgtnent outside the Scope of be Brussels and Lugano Contentions, (,IVietLaw International, 2000) pp. Iff8 Tit ese developments are often not taken Into consideration by some authors. See for example, YZeynalova, "The Law- on Recognition and Enforcement of Foreign Judgments: Is It Broken andHow Do We Fix It?”, 5 o/. ƒ 7« 2013 ) 7, '/ ), pp. 150ff.9 One author even considers that “the attitude of refusing, as a matter of principle, to enforce for-eign judgments (unless their enforcement is covered by a treaty) bears witli it a serious risk of a

Spontaneous Harmonization and the Liberalization of theRecognition and Enforcement of Foreign Judgments 279[Beligli Elbalti]

violation" of the parties' fundamental rights to enforcement as guaranteed by the European Con-vention of Human Rights, p Kinsch, Enforcement as a Fundamental Right, Nederlanả Internatio-naai Privaatrecht,1 04 .4 \ ,io See, Dutoit, “Reconnaissance et exécution des jugements en matière civile et commerciale etsentence arbitrale en Russie: Du vieux vin dans de nouvelles outres?" Mélanges en l'honneur deFrançois Knoepfler (Helbing & Lichtenhahn, 2005) PP. 129ff. The non-recognition principle wasreaffirmed in 2002 ln the reform of the Commercial Procedural Code (CoraPC) and the CivilProcedural Code (CPC). For an overview of these reforms see T Kouteeva-Vathelot, “Russie,

Conflits de jurisdictions", rea. cr¿ . DIP (2003), pp. 790ff. See also, A Muranov & D Davydenko,“Summary of the Law and Practice of Enforcement of Foreign Judgments In Russia", Arbitration,(2007), pp. 305ff: D LİRtinski, note sous Arrêts des 22 Fev. et 2 Mar. 2006 de la Cour Commet-claie Fédérale du District de Moscou, rea. er¿ . DIP (2006), pp. 642ff.I' Article 241 ComPC of 24 July 2002; Article 409 CPC of 14 November 2002. For example, the law on Insolvency (Bankruptcy) adopted in 2002 expressly mentions reel-procity as a legal ground for judgments recognition (art. 1)6). Similarly, die principle of non-rec-ognition in the absence of a treaty does not apply for the recognition of Judgments relating to civilstatus such as divorce, annulment of marriage or adoption (art. 415 CPC and art. 165 FamilyCode ofl995).

In addition to references in supra n 10, see o Vorobieva, “Reciprocity in Recognition and En-forcement of Foreign Judgments in Russia and the United States", in Festschrififir Mark MoiseevicBoguslavsktj (Wessendhafts-verlag, 2004) pp. 254ff.

The decision of the Supreme Court of the Federation of Russia of 7 June 2002, Rea. Crit. DIP(2003), pp. looff comm. T Kouteeva-Vathelot. The court overturned an inferior court decisionthat refused to recognize an Engllsli judgment on the ground of the absence of treaty Russia and England. The Supreme Court sent back the case to the lower courts in order to exam-ine whether AP and reciprocity could be considered as legal bases for the recognition of the Eng-lisli judgments.

Decisions of tlie Federal Commercial Court of the District of Moscow of 22 February and 2March 2006, supra n 10 (the recognition of an English judgment despite the absence of a recogni-tion treaty beween Russia and England).

c Lightfoot, “Hope on Russian Enforcement”, Int'l. Fin. ¿ R. (.2010), pp. .38ff.Rentpool s. 17 V. Podjemnye Tekhnologii, decision of the Commercial Court of Moscow Region

No. A41-9613J09 of 5 June 2009 upheld by tlie Cassation Court of Moscow Circuit on 29 June2009 and the Federal Supreme Court of the Republic of Russia on 7 December 2009 (ruling No.BAC-12688J09). The case concerned the recognition of a Dutch judgment rendered by the Dis-trict court of Dordrecht with regard to a dispute wliich arose out of a commercial lease beween aDutch and a Russian companies.

See, K Krasnokutskiy, "Russian Commercial Court Enforces a Judgment of a US NY DistrictCourt”, available at http:IInavicus.ru¿filesJEnforcement /o20of /o20US%20jugdment'>/o20in%20Russia.pdf (last visited 27 October 2014).

Boegli-Gmvures SA v. DarsflilASP Ltd u Andrei Ivanovich Pyzhov case àectàeàUy Ave Commet-

280 ||&?ỀậệR liet (2014)

ciai Court of the City of Moscow on 10 February 2012 upheld by the decisions of the MoscowCircuit Court on 12 April 2012 and the Supreme Commercial Court of the Russian Federationon 26 July 2012. I Nikiforov and T Sen, "Enforcement of Foreign Judgments in Russia - A Re-cent Case Study" (June 2013), available at, http://-.epam.ru/files/documents/pubhshes/51af2638337e9.pdf (last visited 27 October 2014).

See, A Grishchenkova, “Recognition and Enforcement of Foreign Judgments in Russia - RecentTrends”, YBPIL (2013-2014), at 442.21 See, R Ch. Verschuur, “Recognition and Enforcement of Foreign Judgments in the Nether-lands”, in G Walter & s p. Baumgartner, supra n 7, pp. 409ff Rvan Rooij & M V. Polak, PrivateInternational Law in the Netherlands, (Kluwer Law and Taxation Publishers, 1987), pp. 7Iff(Wremafeer idem. Private International Law In the Netberlaiids - Supplement ( 4 (.kre-inafter Supplement) Th. M. De Boet & R. Korting, “Private International Law”, '« J.M.J Choruset al. (ed.). Introduction Dutch Law 4''’ ed. (Kluwer Law International, 2006) pp. 269ff.22 For Norway, see H Bull, in G Walter & s p. Baumgartner, supra n 7 at 425ff. For Sweden, see,M Berglund, in G Walter & s p Baumgartner, supra n 7, pp. 529ff; M Bogdan, “The Recognitionin Sweden of Money Judgments in Civil and Commercial Matters", Nordisk Tidsskrififor Interna-tionalRet (1985), pp. 85ff. For Finland See, Lappalainen, in G Walter & s E Baumgartiter, su-pra n 7, pp. 169ff; 1 Eivo, “Preclusive Effects of Foreign Judgments According to Finnish Law”,in R StUrner et al. (ed.). Current Topics of International Litigation (Mohr Siebeck, 2009) pp.256ff. For Denmark, see M Budtz, Denmark, in D Campbell (ed.). International ExecutionagainstJudřÉDebtors-Voi 1, (Center for International !.egal Studies, 1993).25 However, judgments relating to status and capacity that usually do not require enforcement areexcluded ftora the principle of non-recognition. For the Netherlands, the principle of recognitionwas reaffirmed by tlie new codification of PIL (the Book 10 of tlie Civil Code of the Nether-lands) YPIL (2011), pp. 657ff. For Nordic countries, see references mentioned above for eachcountry. Accordingly, a wide range of foreign judgments are excluded from the treaty obligationrule.

2^ Article 431 of the 1838 Dutch CCP; Section 19-16 para.1 of the Norwegian Dispute Resolu-tion Act of 2005; Section 3 of the Swedish Enforcement Code of 1981; Section 16 of the Finnish

Act on Cooperation beween Finnish and Foreign Authorities of 10 June 1921; Sections 223 A(recognition) and Section 479 (enforcement) of the Danish Administration of Justice Act of1916).

25 However, in 1916, the Dutcli Supreme Court declared that the statutoty prohibition concernedonly enforcement but not the recognition of foreign judgments. See, H Smit, "International ResJudicata in the Netlierlands: A Comparative Analysis”, Buffalo Law Review, (1966-1967), pp.165ff.

2 Til. M. De Boer & R. Kotting, supra n 21, pp. 294. F K. Juenger, supra n 7 at 27.27 These requirements include the jurisdiction of the foreign court; the foreign judgment is notsubject to ordinary form of review in the state of origin and the foreign judgment is not contraryto the Dutch substantive and procedural public policy. For a detailed analysis of these require-ments, see N Rosner, "The Requirements for Execution of Foreign Money Judgments in the

Spontaneous Harmonization and the Liberalization of theRecognition and Enforcement of foreign Judgments

Netherlands Absent a Treaty”, January 2, 2003, available at httpt//www.llrx.com/features/norel.htm (last visited 27 October 2014).

However, Dutch courts considered that they were not obliged to recognize the binding forceforeign judgments, but only allowed to do so in a case by case basis. This is usually done on thebasis of good faith and fairness tliat requires ftom the parties to be bound by the foreign decision.Til. M. De Boer & R. Kotting, supra n 21, at 294.

Decision of the Supreme Court of the Netlierlands, 17 December 1993 {Esmil International51^v. Enka Arabia Ltd.), note L Th.L.G. Pelhs, NILR, 1994, pp. 372fE This decision was laterconfirmed in a similar case. See, Decision of the Supreme Court of the Netherlands, 16 June1995, note R cli. Verschuur, MLR, 1996, pp. 26Iff

According to R van Rooi¡ & M V. Polalc, “in practice, courts are, more often than not, willingto recognize and enforce foreign judgments", in PH, supra n 21, p. 73. See also N Rosner, stipra n27, who considers tliat the Dutch regime of REFJ as “fairly open towards foreign judgments”; FK. Juenger, supra n 7, at 27.51 For example, in Nolway, It is admitted tliat considerable weiglit will be accorded if the foreign

;ment is rendered by an appropriate court in accordance witli tlie Norwegian rules of PIL.Other factors sucli as the quality of justice, fairness, intrinsic reasonableness, closeness of the evi-

dence can also be considered. See, K Boye, Norway (Rel 28-2010), in L w. Newman (ed.), En-

forcement of Money Judřnts (Juris Publishing, 2011).52 For example, in Sweden and Finland, foreign judgments will be recognized when the case can-not be adjudicated in the forum for lack of jurisdiction. In Finland and Norway, the foreign judg-ment will be recognized wlien the dispute concern an immovable situated in a foreign country.For Sweden see, M Bogdan, supraCamçVeW Jeà.J, I,tţ mat o ial Execution ajainst Judgment Debtors-Vol. 2, f Cewce 0 IwcettviCvon-al Legal Studies, 1993), p. 6. For Finland, see Lappalainen, supra n 22, p. 169-170; For Norway,see, H Bull, supra n 22, p. 429.

This solution is adopted by case law in Sweden (Swedish Supreme Court decision of 1973),Denmark (Eastern High Court decision 31 May 2001) and more recently in Finland (SupremeCourt KKO; 2011; 74). On the ocher liand, in Norway, this rule is provided for by Section19-16(2) of the Norwegian Dispute Resolution Act of 2005. In general, it seems that Nordic

foreign judgments favorably when they (the Nordic courts) lack international juris-diction over tire claim brought abroad, either because the parties so decided (choice of courtagreement) or because of the nature of the dispute (the dispute relates to immovable situatedabroad). See, s E Baumgartner, supra n 7, pp. 187-188.54 See the decision of the French Gourde Cassation in its decision Holker v. Parker, 19 April 1819.35 However, this practice was subject to certain limitations. For example, certain type of judg-ments such as judgments relating to civil statussuch as Italy before 1995 or Lebanon, tire review is allowed only in certain circumstances such asdefault judgments or ftaud.3 See the French Gourde Cassations famous decision of 7 January 1964 {Munzer case).

See T Hoscheit, in G Walter & S p. Baumgartner, supra n 7, p. 385.

281[Béligh . ]

j

22, p. 86-87; Nilsson & Westerberg, Sweden, in D

courts treat

and capacity were excluded. In other countries.

282 ||ậ?Ếệệfi ®16! (2014)

38 Article 3158 Civil Code. See, G Goldstein, "The Recognition and Enforcement of ForeigiJudgments in Qitebec”, YBPIL, (2013-2014) at 294.35 See, A Bonomi, "Italian Statute on Private International Law”, Int’İJ. Legal Info., (1999)266.

4“ See Article 25 §2 of the new Belgian PILC of 2004. p Wautelet, “Le Noitveau Régime des Dé-cisions Etrangères dans le Code de Droit International Privé”, Rev. Dr. Judiciaire et de ¿ Preuve,(2004) at208fE

4 This practice can still be found for exampleexceptional situations) and some Asian countries such as ThailandHowever its prohibition is clearly stated in many recent codifications and law reform. Among themost recent ones see for example, Bitlgarian 2005 CPIL Article 121 (l); Ronranian New CCP(entered into force in 2013) Article 1097; Monaco proposed law relating to PIL of 2013 Article

in Lebanon (Art. 1015 CCP, but limited to veryor Philippines {supra n 6).

16.

See, 1 Intel-national Ciull Procedure: A Comparative study S\\d oK, at \74who considers it as "indirect requirement for recognition".43 Article 64 (l) of the Italian Statute on PIL.

Article 22 paragraphs 2 and 3 CPIL of 2004.45 cf H Muir Watt, “Remarques sur les Effets enment de !'Exequatur'

France des Jugements Etrangers Indépendam-5'~ Melanges oedies a D. Holleaux, ((Itiec, \ 0 bQL -, K le .,

“L’autorité (negative) de la chose jugée des jugements étrangers, réflexions sur le DIP français”.Mélanges en PHonneur du Doyen G. Wiederkehr, (Dalloz, 2009) PP. 397ff

Article 27 (4) of the Brussels Convention.

47 Article 7 paragraph 2.48 In France, H. Batiffol & p Lagarde, Droit international prive T ed., t. II (L.G.D.J., , 1983)584; in the United States, A T von Mehren & D T. Trautman, Recognition of Foreign Adịudica-fions: A Survey and a Suggested Approach, Harv. L. Rev., 1968, pp. 1636ff; In Germany, w Wen-gler. The General Principal of Private International Law, Collected Courses, 1961, pp. 443ff.45 For example in France see, Y Loussouarn, p Bourel & p de Vareilles-Sommière, Droit Interna-tionalPrive, 10'ed. (Dalloz, 2013) pp. 883ff.5“ See The Conclusions of the Second Meeting of the Special Commission, Prel. Doc. No 6 ofAugust 1996, prepared for the Eighteenth Session, p. 23, η“34 indicating that a virtual consensuswas reached to exclude the control of choice of law by the expert of the Special Commission at theHague Conference dttring the preparation of the 1999 Hague Draft Convention.5' See for example in Fratrce, s Gressot-Leger, “Faut-il supprimer le contrôle de la loi appliquéepar le juge étranger lors de !'instance en exequatur”, clunet (2003), PP. 767ff. Both in civil and commercial matters (for example, Brussels I Regulation, 1999 Hague DraftConvention), as well as in family matters (for example 1998 Brussels II Convention (Brussels IIfor Regulation).53 Decision of CEDH of 28 Juin 2007, Rev. Crit. DIP, 2007, p. 807, note p Kinsch; Clunet,2008, p. 199 note L d'Avout; Dalloz, 2007, p. 2700, note F Marchadler, in which the court con-sidered that refusing the recognition of a foreign judicial adoption on the basis that the law ap-

Spontaneous Harmonization and the L beta! zation of theRecognition and Enforcement of Foreign )udgments 28â[B !igh Elbalti]

plied by the foreign judge was not the same as the one designated by forum choice of law rulesconstitutes interference with the applicants' right to respect for family life as guaranteed under Ar-tide 8 of the Convention.

4 See, D Martiny, "Recognition and Enforceraetrt of Foreign Money Judgments in tire FederalRepublic of Germany”, AJCL (1987), at 742-743.55 Artide 3157 QcC. See, G Goldstein, supra n 38 at 295. G Tekinalp, “The 2007 Turkish code concenring Private International Law and InternationalCivil Procedure", YBPIL (2007) at 341.57 The condition was officially suppressed by tire reform of 2008 (Act of 5 December 2008 onamendment of the Code of Civil Procedure and other acts (official Journal of 30 December2008)).

Japanese courts as well as the practice of family registration (Circular Notice No. 280 of 14January 1976) abandoned sulrjecting foreign divorces to a control of clioice of law. For an over-view see, Y Okuda, Divorce, "Protection of Minors, and Child Abduction in Japan's Private Inter- \ 0 \ Ui”, in Japan and Enropsan Privat International Larv in Comparativ Perspectiv (Mohr Siebeck, 2008) at 311.

55 Cass. Civ. 20 févr. 2007, Rev. Crii. DIP, pp. 420ff, note B. Ancel et H. Muir Watt; Clunet,2007, pp. 1195ff, note F.-X. Train. See also, . Ancel et H. Muir Watt, “Les jugements étrangerset la règle de conflit de lois: chronique d'une séparation”, in Mélanges en l’honneur de HélèneGaudement-Talion (Dalloz, 2008) PP. 133ff; M.-L. Niboyet, “L'abandon du contrôle de la com-pétence législative indirecte”. Gaz. /« Palais (2007), PP. 1387ff; L D'Avout & S Bollée, “Laban-don du contrOle de la loi appliquée par les jugements étrangers”, Dalloz (2007), PP. 1115ff. Foran overview in English see, G Cuniberti, supra n 3 at 937-938. “ Tribunal de l'Arrondissement de laixembourg, 10 January 2008 (No. 13/2008), quoted by pKinsch, "Recognition in the Forum of a Status Acquired Abroad - Private International Law Rulesand Y.Atto e tn Wuman UW’, in Convergence and Divergence In Private International Latv —Liber Amicorum Kurt Siehr (Eleven International Publishing 2010) p. 264.

For example, the control of choice of law is still required in Portugal when tire foreign judg-ment is rendered against a Portuguese national (Article 1100(2)). See, c M F Da Silva, “De lareconnaissance et de !'exécution de jugements étrangers au Portugal”, inBaumgartner, supra n 7, at 480-481; H Soares de Moura, Portugal, in D Campbell (ed), Interna-tlonalExecution Against Jndgnt Debtors, Oxfotd, 1Q\0, . F K. Juenger, supra n 7 at 34; G Walter & s P Baumgartner, General Report, supra tr 7 at

FKJuenger, “A Hague Judgments Convention?” A 1998) '/¿., ) at 113. 4 P Lagarde, “La réciprocité en droit iirternational privé”. Recueil des cours (1977) at 189. 5 From this perspective, one author questions the compatibility of the reciprocity requirementwith the parties' ftrndamental right of enforcement. See, p Kinsch, supra n 9, footnote (30.). For example, L j. Silberman, “Some Judgments on Judgments: A View fiom America”, King’s

2008 ) ) at 261. 7 See, w Zhang, “Recogtrition and Enforcenrent of Foreign Judgments in China: A Call for Spe-

G Walter & s p.

284 IXặịịìkl 1161 (2014)

ciai Attention to Both the "Due Service Requirement” and the “Principle of Reciprocity^/. Int’l L (2013) pp. 143ff, idem, “Recognition of Foreign Judgments in China: The Essentialsand Strategies”, YBPIL, (2013-2014) at 333-336, who explains that Chinese courts will not rec-ognize foreign judgments if there are no existing precedents of recognition of Chinese judgmentsno matter Ilow liberal are the practice and the law in the rendering state. 8 See, G E. Parra-Aranguren, “The Venezuelan Act on Private International Law of 1998”, YB-Tf¿, (1999) at 116. 9 c Jessel-Holst, “The Bulgarian Private International Law Code of 2005”, YBPIL, (2007)383.

Chinese

T Deskoski, “The New Macedonian Private International Law Act of 2007", YBPIL, (2008) at456.

See, M Czernis & p Mickiewicz, Poland, in Mills-Webb (ed.), shipping Law 2013 (ICLG,2013) n°7.1.

See Article 15 para.1 (f) of the new Czech PILA of 25 January 2012. However the solution isnot new aird has only beetr reiterated.73 See the Tirrkish PILC of 2007 Article 54 and 58. The solution however is not new since it was

admitted in the old PILC of 1982.

74 See, Article 101 (!)of the Slovenian PIL and Procedure Act of 1999; Ar-ticle 92 of the Croa-tian PILA of 1991.

75 D Martiny, suprä n 54, at 397-398; w Wirrmnesr, "Recognitíoir and Enforcement of u.s.Money Jtrdgments in Germany”, ƒ 7« ') ¿ (2005) at 186-188.

Supreme Court, Judgment of 7 June 1983, Minshu, Voi. 37 (5), at 611 ;/ . Ann. Int'l. ¿ ,1984, pp. 119ff. See, Y Okuda, Recognition and Enforcement of Foreign Judgments in Japan,YBPIL, 2013-2014, at 417-418. Similar interpretation is adopted by Korean courts. See, K HyunSunk, “Recognition and Enforcement of Foreign Judgments In Korea”, YBPIL, (2013-2014)433-434.

Articles 952 (positive reciprocity), and 953 (negative reciprocity) of the former CCP of 1881which are still applicable because the new CCP of 2000 contains no special rules on recognitionof foreign judgments.78 F Ramos Romeu, “Litigation under the Shadow of an Exequatur: The Spanish Recognition ofu.s. Jttdgments", Inti Lawyer (2004) at 947-949; A Pérez Bevia, “Reconnaissance et exécutiondes décisions étrangères en marge de l'application des conventions de Bruxelles et Lugano - Rap-port sur le droit espagnol”, in G Walter & s P Baumgartner, supra n 7, at 502-503.

Osaka Hight Court decision of 9 April 2003, Hanrei Jiho, No. 1841 atili; Hanrei Taimuzu,No. 1141 t 270;/ . Ann. Inti L, 2005, pp. I71ff. SeeYOkuda, supra n 76 at 417.

KV« ïïtsu'ttt coMtt 0 \ MatcVlOll (.Gazprom Transgaz Ochta Ltd. 1). Double K Oil Prod-urts 1996 Ltd). See,u Catmon, Foreign Judgments In Israel: Recogrtltion and En orcsment (, ťm r

2012) pp. 71-72.The Higher Regional Court of Berlin, Order of May 18 2006, File 20 Sch 13/04 ( German

Ziiblin International Co. Ltd t). Wuxi Walker General Engineeering Co. Ltd. . See, >eckers,“Geĩ-man Court Takes First Step on Road to Mutual Recognition with China", available at littp://-.

SpontaneousHarmonizationandtheLiberalizationof[1,e[B61ighELBALT]] RecognitionandEnfbrcementofForeigllJudgments 285

internationallawoffice・com/newsletters/detail.aspx?g=adddf577-7da5-4cOO-ad45-4e597ecO5809&redir=1(las[visited270ctober2014) '8zCasereportedinYShen,R"0/""0"qfD"""6"z"22"んγ2""B""んα"〃Cﾙ加釘fS"e’で唾，β‘γ,w,ど汀:P"雌c""〃乃・"α〃”どγ"α"‘"α/L"z""g"(KluwerLawln[ernationa1,2000)pp.'う9-162.

83SeejECoyle, "RethinkingludgmentsReciprocity",AICL.R"(2014)pP1109圧s4See,BElbalti,The]urisdic[ionofForeig',Cou'･tsandtheEnlbrcemenroftheirludgme''[si''Ti,nisia:ANeedfbrReconsideration",ﾉPIz(2012)at20885Seefbrexample,FK.Juenger,J""n7a[ 13fEGDroz,J""n7at881f86Fo,･ fi,rtherdevelopments, see,BElbalti,J""n84pp.210ff87ACornec&JLosson, "FrenchSupremeCourtRestatesRulesonjurisdiction,Recogni[ionandEnfbrcemel,[ofForeignDecisions inMatrimonialMatters:ANewChancefbrOldCases",Rz"z.L･Q･ (2010)p.84.88See,TE.Carbon,,eaL,, ､GTheFrench&f9"""ﾉ･Proceeding:TheExorbirantjurisdictionalRulesofArticleSl4andl5 (Cb雄α"") asObstacles totheEnfbrcementofForeignludgments inFrance",HIzJ"噂ん〃&cb".LR(1979)pp307ff:89Cass.Civ. lrc,23May2006,P7･""γcase (whichabolishedtheexclusivecharacterofArticlc15) ;cass・civ. l",22May2007,",ro7"e"/case(whichabolishedtheexclusivecharacterofArticlel41▲~Lﾉ ｡

90Forfi,rtheranalyses,seeGCuniberti､"7"n3,pp.934ffASinay-Cy[ermann, "Etatdeslie,,xsurlesArticlesl4et laducodecivilendl･oit i,,ternationalpl･ive", in〃乱z題画ど〃／物o""ど"7．〃〃丹V/2w"γ〃""-MIcﾙe/jzc9"er, (LexisNexis,2013)pp.434ff'｣Article954(2)ofthefbrmerCCPForfhrtherdevelopmentssee,OA.Gonzalez-Arias, "TheEnlbrcementofUSDelaultJudgmentsinSpain","""'ZgJ〃〃&Cb7Mp.L.R. (1986)PP.97fE92See,TC.Hartley,ん"γ"α"O""/Cb"z""r/iz/L"煙""(CambridgeUniversi[yPresS,2009)pp346圧

"OA.Gonzalez-Arias,〃妙加n91.941t is the"realandsubstantialco,,nectiontest"adoptedfirst inl990byMb櫨岬減〃zﾉど""zど"rL"zJDESZz""([199013SCR1077) fbr[herecognitionandenfbrcementofinterprovincialjudgments.ItwaslaterextendedtotherecognitionoffbreignjudgmeI'[sin2003byBど"~"Siz"”"ﾙ"([2003]3SCR416)Cb"", seeDKennyjReFlighlease:The~RealandSubstan[ialCon-nection' tes[fb,RecognitionandE11fbl℃ementofForeignjudgmentsFailstoThkeFlight i,,Ire-land,JCLQ,2014,pp.197HThesolutionissomehowsimilarwiththeoneadoptedbytheFrench"z〃雄“”α"0〃in l985 in itsfamousSj沈雄ルdecisionwhenitdeclaredthatfbreigncourtsshouldbedeemedtohaveindirectjurisdictionwheneverthereexisted"anactualco,,nec-[ion("ど"",zZc"")betweenthedisputeandthecountryofthefbreigncourt".Sec,GCuniberti,.f""n3at933.聖

"Generallyit iscommontodistinguishbetweentheprocedural andthesubstantiveaspectsofPublicpolicyWithregard[otheproceduralasPec[s,theseuSuallyincludepropernotice, therightofthedefbndanttobeheard, theimpartialityofthefbreig,,judgeetc…Despite[heexistenceofdisparityinthemodali[iesofapplicarionoftheseaspecrs, it ispossibietodrawsomegeneralcon-

286 1ZI際私法年報第16号(2014)

clusions. Forexample, it is L,sL,allyadmittedthatapropernoticeshouldbetimelyandregularlyservedastoallowdefEndants toprepa,･ctheirdefense,orthatprocedurebefbrefbreigncourtshouldguaran[eetherightofthedefbndanttobehea,dandtobetreatedequally6Asfbrsubstan-[ivepublicpolicyi theconceptcanencomPaSsavarietyofnotionssuchas6aud,mandatorylaworeve''choiceoflaw.

96FK.Juenger, J""n7at21-23;GWalter&SIIBaumgartner,GeneralReport,"""n7at28．

971nmostoflegalsystems/hereisnostatutoryde6',itio,,ofpublicpolicysTherefb,･e, themean-ingofrequireme,,tmostlydePendsonthePeculia,･historicalandculturalenvironmen[ofacertainlegalsystem､ SeeGWalter&SIIBaL'mgarmer,Genel･alReport,J""'17at10-11,28-30.98SeeRDTtrooboff"Tbn(andprobablymore)Difnculties inNegotiatingaWorldwideCon-ventiOnonlnter''ationallurisdictionandEnfbrcememofJudgmen[s:Somelni[ialLessons, inJIBarcelolll&KM.Clermon[ (ed.),,4Gん""/L""q/W"･jj施α/0"""ゴル唯"'e""･L"0"'jiw""e泓喧"g, (KluwerLawlnterna[ional,2002),pp.262fE99Eitherbecauseofthei,･nature (criminalbutnotcivil)orbecauseofthei,･ fi,nction(puni[ivebutnotcompensatory).ThisapproachisalfirmedbycourtdecisionsinGermanyJapanandltal)RSee,HDTｾbbens,:(PL,nitiveDamageS:TbwardsaRuleofReaSonfbrU.S.AwardsandtheiIRec-ognitionEIsewhere''､加〃〃どγ蹄"j""""(Giu紐さ,2009)PP.273ff'00Manyvoicesareaskingfbrachangeinperspectivebyadopringamorelenientapproach[o-wardsPLmitivedamages. I,,Germany, seeVBeh,･, "My[handRealityofPuni[iveDamages inGer-many",ノL＆Cb,". (200;)pp.197ffMTblani, ~(USPunitiveDamagesbefbreGermanCourts:AComparativeAnalysiswithrespec[ [otheOrdrePublic",A"".Sz"""りﾉ〃〃&cb"'L. (2011)pp.185.Injapan,seeTKono,~@InternationalCivilProcedurelaw,RecognitionofForeignJudg-men[s,PullitiveDamages", in&"""L"z"j"〃"",W""“加励"0"γザ雄ﾉ掘胆助"加(KluwerLawlntemational,2012)a[743'()IThisapproachisadmi[[edilIFra''ce,Spain,GreeceandSwi[zerland.See,CINagyj "Recogni-[ionandEnlbrcementofUSJudgmen[slnvolvingPunitiveDamagesinCo''[inentalEurope",ﾊﾙ”ﾙZ"ぬん"γ""""“/〃･j""”だC"(2012) pp.4ffAlthoughthefinaloutcomediffEredbe-tweenjurisdictionsthatactuallyrecognizedandenfbrcedpunitivedamagesawards (SpainandSwitzerland) andju[isdicrionstha[didnot (FranceandGreece), theadoptedapproachisquitesimilar.

102Forfi,rtheranalysissee,CINagX.r""nlO1,p.10.CfHGaudemet-'Ihllonwhoconside'･ed[hat in[helighrofrecentdevelopmems,punitivedamagescannotbepossibledeclaredasarulecontrarytothepublicpolicyofthefbrum;j〃ﾉで乱c"たD",2010,a[ 100.103SeefbrexamPle,PJe,'ard, (<Ref,''･r0〃"fCb"zﾉ‘""0〃’"ﾉ"γj域c"0〃α”めど陸ど"液"0〃〃"〃E城γ"加‘"rq//wg"ze"な"α"〃""〃Cb"""""/M@zなどγj", 19790.IC39/6, s[atingall [hequestionablerules thatshouldbeeliminatedbyB,･uSselSConventionamongcontractings[a[es.Seealso,MDogauchi, "TheHagueDraftConventiononJurisdictionandForeignJudgmen[s inCivilandCommercialMattersfiomaPerspectiveofJapan","α"嘩吻γ〃‘"たqf"z, (2001) a[97s[atingthattheelimi''ationofimPediments[otherecognitionofJapanesejudgmentsabroadisoneofthemos[importantobjectivesofjapan.Asexamplesoftheseimpediments,hegaveexam-

Spontaneous Harmonization and the Liberalization of theRecognition and Enforcement of Foreign Judgments[Beligh ElBAinJ S87

pies of rules treated in this paper. In the same sense, F K. Juenger, supra n 7 at 26, 37.‘ For further analysis see, A Mills, “The Identities of Private International Law: Lessons from theu.s and the ELI Revolutions", Duke], Comp. & Inti ¿ (2013) at 445ff; Th.M. de Boer, “LivingApart Togetlier: The Relationship between Public International Law and Private InternationalLaw", NILR (2010) at 183ff p Mayer, “Le phénomène de la coordination des ordres étatiques endroit privé". Collected Courses (2007) PP. 95ff, idem, “Droit international privé et droit interna-tional public sous l'angle de la notion de compétence", rev. crit. DIP (1975), PP. Iff 349ff PP.537ff.

‘“ In addition to the references idem, see among others, Ph. Francescakis. La théorie du renvoi etles conJLits de systèmes en droit internationalfrit)é (Svtey, ~ WoWeai, Competencedu juge etranger et reconnaissance des jugements (Dalloz, 1970) PP. 203ff; D Bureau & H Muir

Droit International Prit)é,3' ed. t.l ( . 1("1014 \ , .Ι 7 For instance, choice of law rules used to be regarded as delimiting the legislative jurisdictionbetween national and foreign sovereigns, when a choice of law rule designates a foreign law, it isunderstood that the question at issue belongs to the sovereignty of the foreign state, and any dlsre-gard to the application of tlie foreigit law entails an encroachment on the sovereignty of the for-eign state. Similarly., rules of adjudicatory jurisdiction used to be considered as delimiting the ter-ritorial reach of judicial sovereignty. See, p Mayer, "Droit international přivé et droit internationalpublic sous !'angle de la notion de compétence" supra n 105 pp. 13ff.‘ A Briggs, "The Principle of Comity in Private International Law", Collected Courses (2012), p.I45ff. But, according to the common law tradition, the application of the principle of sovereignty,which is not based on the fear of foreign sovereignties but on their respect, lias led to a differentresult i.e. the respect of foreign judgments rendered by sovereign witli appropriate jurisdiction. A.Briggs, id. See also, F K Juenger, supra n 7, pp. 9ff; H. L. Ho, "Policies Underlying tlie Enforce-ment of Foreign Commercial Judgments", ICLQ (1997) pp. 448.' See, s E Baumgartner, “Understanding the Obstacles to the Recognition and Enforcement ofu.s. Judgments Abroad”, N.Y.U.J. IntlL. &ΡοΙ. (2013) pp. 965fF.

See article 121 of the French Code Michaud of 1629 whlcli clearly stated that foreign judg-ments had no effect in France. The only exception to this rule was to conclude international con-vention with neighbouring foreign states."I For example, in the famous Munzer case {supra n 36) by which the practice of revision wasabolished, the cour de cassation nevertlieless declared that the objective of the exequatur proceedingis to protect the interests of the Frencli Republic."2 See, L B. Childs, “Shalty Foundations: Criticism of Reciprocity and the Distinction betweenPublic and Private International Law”, N.Y.U.J. IndiL.p, (2006) pp. 221 s."3 For example, M Antonov, “Theoretical Issues of Sovereignty in Russia and Russian Law", Rev.Central & East Eu. L. (2012), pp. 95ff. In this respect, the enforcement of punitive damagesawards is very illustrative. Indeed the quasi-public law (penal) nature of these damages is usuallypresented as the main reason to rule them out. In addition, even when their civil law character isadmitted, their recognition is regarded as a threat to die judicial integrity of the recognition state.

(2014 )- -16 388 IPSIiÌifl

For further analyses see, p Mayer, “Droit international privé et droit international public sous!'angle de la notion de compétence", supra n 105.

See, Ph. Francescakis, supra n 106. Guillaume, “The Weakening of the Nation-State and Private International Law: The “RightInternational Mobility””, YBPIL (2012-2013), pp. 51 off; Basedow, The Effects of Globaliza-

tion on Private International Law, '« Ị Basedow & T Kono (ed.). Legal Aspects of Globalization:Convicts of Latus, Internet, Capital Market and Insolvency in a Global Economy Hiet li ktet-national, 2000), pp. Iff

This does not mean that interests of the states are no longer taken Into consideration, but sim-ply means that these interests are relegated to a position of secondary importance. See, p Mayer, ™: n 105, Ρ. 1101)8 E Jayme, "Recognition of Foreign Judgments: International Jurisdiction of Foreign Courts Re-visited”, in Etudes en l’honneur de Roberto Ago, IV, Giuffré, 1987, pp. 139ff.

G Walter & s E Baumgartner, General Report, siipra n 7, at 38.G Walter & s R Baumgartner, General Report, ibid at 40.