Execution of legal and arbitral decisions

If your foreign client, with who you are in dispute is convicted by your national jurisdiction to pay you damages and interest but does not carry it out, you will probably have to start seizure proceedings abroad. Could this seizure have grounds on the basis of a judgement rendered in a foreign country? The problem posed here is that of carrying out foreign legal decisions abroad. Moreover, does the authority of the final decision enable in internal law to confront with the repetition of the same proceedings or a same demand. When is it abroad? Could the dispute which separates the two parties be judged again in the client's country?

Two requirements confront one another. On the one hand in a concern for the economy of the procedure and the efficiency of legal decisions, these must be automatically accepted abroad within the context of inevitable carrying out or for their recognition within the context the authority of the thing judged. However, on the other hand, the independence and sovereignty of states expresses itself in its willingness to exert control and to avoid giving effect to unjust or inequitable decisions on the territory (Not forgetting that different legal systems exist). Also, each national legislator has its own response to the question, and reception of judicial decisions pronounced abroad is subject to more or less stringent controls according to the country where advantage of the decision has tried to be taken.

a) Recognition of the judgement and enforceability

When it is a matter of referring to the authority of the final decision defined by a foreign judgement, one speaks of recognition of the judgement rendered abroad. When it is a matter of operating a seizure on the basis of a judgement rendered abroad, a formality is generally necessary which is known as the enforceability of decisions rendered abroad. In truth, to be able to seize on the basis of a judgement rendered abroad, it is necessary to obtain it beforehand in the opinion of a court in the country where one desires to operate the exequator seizure of judgement rendered abroad.

Likewise, all arbitration decisions have to automatically be the objective of the exequator's demand to be able to be applied.

In this way, it is sometimes more interesting to carry them from the moment of dispute in front of a court in the country where the judgement will be carried out. Thus the problems connected with enforcement are avoided.

b) International agreements

Treaties are sometimes concluded between countries with a view to facilitating the recognition and enforcement of decisions rendered in the treaty signing countries. This is the case for the Conventions of Brussels (EU) and Lugano (European Free-Trade Association countries: Iceland, Norway, Switzerland and Liechtenstein). The idea which underlies these conventions is to create a European legal zone and in this way facilitate the circulation of legal decisions with the EU and EFTA. By virtue of these conventions, the enforcement procedure cannot open out into a new examination of the dispute's content. The judge required within the enforcement procedure cannot re-estimate the elements of settling the dispute in one of the treaty signing countries. Moreover, the cases in which the judge could refuse the enforcement in another treaty signing country are limited to a list (annoying state public order, violation of defence rights,...).

Likewise, in 1958, the United Nations developped an agreement for the recognition and carrying out of foreign arbitral sentences.