Recognition and Enforcement of Foreign Money Judgments. Dates/Events

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1 International Litigation & Arbitration Specialist Group Newsletter Autumn 2014 Recognition and Enforcement of Foreign Money Judgments. Dates/Events Int. Litigation & Arbitration Group Meeting in New York City Telephonic Meeting Switzerland + Spain + Belgium + Israel + U.S.A. + U.K. + South Africa + Germany + Japan + France

2 Welcome from the Specialist Group Co-Chairs. Page 01 Heads of the Specialist Group As the new Co-Chairs of the CONSULEGIS International Litigation and Arbitration Specialist Group we are delighted to introduce the Specialist Group s first Newsletter. This first of many issues focuses on a timely global issue enforcement and recognition of foreign money judgments in ten different countries. This Newsletter should be of value in providing you with an overview of enforcement and recognition issues around the world. We are extremely grateful for the hard work of Marinus Vromans, the Editor of this Newsletter. One of the central objectives of the Consulegis International Litigation and Arbitration Specialist Group is to develop closer relationships between the litigators in our member firms so that we can work together in cross-border disputes. With member firms in more than 40 countries we have tremendous resources and legal talent. Our detailed internal database of litigation and arbitration practice specialities of our members is a great tool for obtaining legal assistance around the world. This is only the start. Please get involved with our Specialist Group. As Co-Chairs, along with our hard working secretary Kazuhiko Nishihara, we welcome your thoughts and ideas on how to improve the way in which we communicate among ourselves to ultimately improve the services we provide to our clients. Jeffery Daar and Peter Kaye Co-Chairs, CONSULEGIS International Litigation and Arbitration Specialist Group Co-Chair Jeffery Daar Co-Chair Peter Kaye Secretary Kazuhiko Nishihara

3 Page 02 After Jeffery Daar successfully launched the Newsletter on Intellectual Property, he suggested during the meeting of the Consulegis Specialist Group on international Litigation and Arbitration of last April in Edinburgh, that the Specialist Group would also publish a newsletter. The Consulegis Specialist Group on international Litigation and Arbitration, which is cochaired by Jeffery Daar (Daar & Newman, Los Angeles) and Peter Kaye (Linder Myers LLP, Manchester) and has Kazuhiko Nishihara (Umegae Chuo Law Office, Osaka) as Secretary, decided to dedicate the 1 st edition of our newsletter to the recognition and enforcement of foreign money judgments. You will find contributions from the following jurisdictions: Belgium, Germany, England, France, Israel, Japan, South Africa, Spain, Switzerland and the USA. I am grateful to the authors for their contributions. I hope and expect, that this newsletter will be the first of a many to come. We plan to publish 2 newsletters each year. The next newsletter will include articles concerning the forthcoming amendment of the European Regulation 44/2001 on the Recognition and Enforcement of decisions in civil and commercial matters. With increasing international commercial business relations, information on international aspects of litigation and arbitration, this newsletter will contribute to bringing the level of our legal services to our clients to an even higher level. Marinus Vromans Editor VDE Legal C O N T E N T 1... Welcome from the Specialist Group Co-Chairs 2... Letter from the Editor 3... Switzerland 4... Spain 5... Belgium 6... Israel 7... California 8... United Kingdom 9... South Africa Germany Japan France

4 Recognition and enforcement of foreign judgments in Switzerland. PAGE 03 Pachmann Attorneys at Law Ltd Dr. Christian Fraefel Löwenstrasse Zurich Switzerland Phone: Lemum distantia mannlaw.ch Foreign judgments are not automatically enforceable outside the country in which the judgment was made. Though, the private international law of many countries and a number of international treaties recognise the judgment under certain circumstances and therefore expand its effect to another country. In Switzerland, the recognition and enforcement of foreign judgments is based on different bilateral and multilateral treaties, as well as on the Swiss Private International Law Act. The most relevant treaty is the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters of 30 October 2007 (hereinafter Lugano Convention ), which has been applied by Switzerland since 1 January The Lugano Convention is applicable between Switzerland, the European Union, Iceland, Denmark and Norway. The recognition under this multilateral treaty does not include a review to the substance of the judgment (Article 36). For the recognition and enforcement of a foreign judgment under the Lugano Convention three conditions need to be fulfilled: civil and commercial matters; Non-existence of objections against the recognition (Article 34 and 35); The finality of the judgment is not a requirement for the recognition. It is sufficient, when the judgment is enforceable in the sentencing state. But if an appeal is lodged in the issuing state, the recognition process in Switzerland will be interrupted. As already mentioned, Switzerland is also party of several different bilateral treaties governing the recognition and enforcement in civil and commercial matters. In particular the contracting partners of Switzerland are Austria, Belgium, Czech Republic, Germany, Italy, Liechtenstein and Slovak Republic. Due to entry into force of the Lugano Convention, these bilateral treaties are in practice of minor importance. In case of a lack of an international convention, the recognition and enforcement of foreign judgment is ruled by the Swiss Private International Law Act of 18 December 1987 ( PILA ). According to the terms of Article 25 PILA, Switzerland recognises a foreign judgment if the following conditions are fulfilled: The foreign court, which was rendering the judgment, has jurisdiction under the PILA; No ordinary appeal can be lodged against the judgment or the judgment is final; The judgment is not inconsistent with Swiss public policy according to Article 27 PILA. If all these conditions are given, the Swiss Courts will recognize the judgment. According to Article 28 PILA, a recognized judgment will be declared enforceable in Switzerland upon application by the interested party. The judgment is given in a state bound by this convention; The judgment concerns

5 Recognition and execution in Spain of a foreign judgment of pecuniary sentence. PAGE 04 Dr. Astrid Dorfmeister Legal, Tax & Commercial Consulting Carmen Parra Vía Augusta 9 4º-2ª Barcelona Spain Phone: +34 Lemum distantia consulting@astriddorf meister.com dorfmeister.com Very briefly, we distinguish between judgments by courts in countries not being member states of the European Union and those issued by a Court in a member state of the European Union. We also distinguish between the process to obtain recognition of the foreign judgment which is regulated by international treaties or law and the execution of the judgment once it is recognized which is regulated by our national internal law. An exequatur on judgments rendered by non-eu Courts can in principle only be obtained when a treaty exists between Spain and the country concerned. If there is no treaty the principle of reciprocity will be followed. On a subsidiary basis, the judgment must have been issued in the exercise of a personal action, it must not have been issued in default and it should not violate Spanish public order. It should also be in an authentic form and trustworthy in Spain. Foreign judgments in Spain will not be open to provisional execution. The interested party can ask for the execution. The Court of First Instance, with attendance by the executed party and the Public Prosecutor s Office will or will not declare the exequatur. The decision by the first instance court can be appealed. The following documents have to be submitted to the court: certified authentic copy of the judgment accompanied by the Apostil in conformity with The Hague Convention, certificate of the official transcript that the judgment is final, certificate of notification of judgment to the defendant or that it has been issued in default, sworn translation in Spanish and a general power of attorney for lawsuits. Execution of a judgment in Spain rendered by a EU member-state court is governed by Regulation (EC) 44/2001 of the Council, of 22 December 2000, on jurisdiction and the recognition and execution of judgments in civil and commercial matters. This regulation will be replaced as from 10 January 2015 by Regulation (EU) Nº 1215/2012 of the European Parliament and of the Council, of 12 December 2012, on jurisdiction and the recognition and execution of judgments in civil and commercial matters. The new Regulation abolishes the exequatur and replaces it by the possibility of opposition and defence. Regulation (EC) 44/2001 applies to judgments in commercial and civil matters in general whether disputed or not, whilst Regulation 805/2004 for undisputed claims, which already abolished the requirement of exequatur only applies to judgments on undisputed monetary claims in civil and commercial matters, irrespective of the nature of the jurisdictional body. Regulation 805/2004 applies to enforceable resolutions, judicial transactions and public documents on liquid pecuniary claims. It applies in all member states of the European Union apart from Denmark. The undisputed claim must be certified (ex parte) as a European executable instrument by the State of origin always provided the resolution is enforceable, that it concerns a credit that has not been disputed by the debtor, and provided that certain rules on notification have been observed. Enforcement of a European Title of Enforcement may be refused, under certain conditions, for instance when the executed party can establish that the enforcement of the decision is incompatible with a decision issued previously.

6 Recognition and enforcement of foreign money judgments in Belgium. PAGE 05 Vanden Eynde Legal Marinus Vromans Avenue de la Toison d Or 77 Gulden Vlieslaan, Brussels Belgium Phone: +32 Lemum distantia mv@vdelegal.be Judgments given by EU- Courts: Council Regulation 44/2001 of 22 December 2001 on recognition and enforcement of judgments in civil and commercial matters will apply. The Regulation applies between all Member States of the European Union including Denmark which has concluded a parallel agreement on Regulation 44/2001 with the European Community. This agreement entered into force on 1st July A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required. A judgment given in a Member State and enforceable in that State shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there. The application shall be submitted by the interested party ex parte to the court or competent authority indicated in the list in Annex II to the Regulation (for Belgium: Rechtbank van Eerste Aanleg, Tribunal de Première Instance, Erstinstanzliches Gericht ). The other party may file opposition against the decision which declared the judgment of the other EU-Member State enforceable on limited grounds. Appeal against the decision on the application for a declaration of enforceability is to be lodged with the court indicated in the list in Annex III ( Hof van Beroep / Cour d Appel ). Regulation (EC) No 44/2001 will be replaced by Regulation (EU) No 1215/2012 (Brussels I Regulation (recast)) as from 10 January Under Regulation No 1215/2012 EU-judgments will be automatically enforceable in other EU Member States ( free movement of judgments ). Judgments given by Courts from Iceland, Norway and Switzerland: The Lugano Convention of 30 October 2007 between the EU and Iceland, Norway and Switzerland will apply. The Lugano Convention follows the principles of EU- Regulation 44/2001. Other Regulations: European Regulation 1896/2006 of 12 December 2006 creating a European Order for Payment Procedure. Regulation 861/2007 of 11 July 2007 establishing a European Small Claims Procedure. Regulation 805/2004 creating a European Enforcement Order for uncontested claims.. 2 Recognition Enforcement of non-eu judgments: Non-EU judgments will be recognized and may be declared enforceable in Belgium unless the judgment concerned is: - Not compatible with Belgian public order; - Rights of defendant are not respected; - Decision only obtained in order to avoid the law applicable under Belgian private international law in matters on which the parties are not free to make agreements; - Foreign proceedings initiated after subject matter was already pending before the Belgian Courts; - Belgian Courts have exclusive jurisdiction; - Jurisdiction foreign courts only based on presence of defendant or his assets when the dispute has no connection with the state of the court which gave the decision; - Judgments in relation with specific matters ; The Court of First Instance will decide on recognition and enforcement of non-eu judgments at unilateral request by the interested party subject to opposition by the defendant. Foreign judgments which are directly enforceable or which have been declared enforceable in Belgium are like judgments from Belgian Courts, subject to national enforcement proceedings.

7 Enforcing foreign judgments in Israel. PAGE 06 Balter, Guth, Aloni & Co. Raanan Bar Zohar Yigal Alon Street Tel Aviv Israel Phone: Lemum distantia rbzohar@bgalaw.co.il Foreign judgment A judgment given by a court in a foreign state in a civil matter, including a judgment for the payment of compensation or damages to an injured party even though it may not have been given in a civil matter. Conditions of Enforcement A Court in Israel may declare a foreign judgment enforceable if it finds that the judgment complies with the following: (1) The judgment was given in a state where the courts were, according to its laws, competent to give it; and (2) the judgment is no longer appealable; and (3) the obligation of the judgment is enforceable under the Statues of Enforcement of Foreign Judgments in Israel, and the content of which does not contradict the public policy in Israel; and (4) The judgment is executory in the State in which it was given. Reciprocity A foreign judgment will not be declared enforceable if it was given in a state where the laws do not provide for the enforcement of judgments of Israeli Courts. The existence of a bilateral enforcement convention between Israel and the foreign country satisfies this requirement. However, there is not a mandatory requirement of bilateral enforcement convention and foreign judgments from countries which do not maintain bilateral conventions with Israel are regularly enforced in Israel. In this case, required of the plaintiff is to bring evidence that the foreign country in question enforces judgments of Israeli courts. Period of Enforcement The Court will not hear an application for the enforcement of a foreign judgment if such application is filed more than five years after the day on which the judgment was given, unless a different period has been agreed upon between Israel and the state in which the judgment was given or unless the court considers that there are special reasons justifying the delay. Defenses A foreign judgment will not be declared enforceable if it is proved to the court that one of the following had occurred: (1) The judgment was obtained by fraud; (2) The defendant was not afforded a reasonable opportunity to present his arguments and to produce his evidence before the judgment was given; (3) The judgment was given by a Court not competent to give it in accordance with the rules of private international law applicable in Israel; [A person will not be deemed to have acknowledged the authority of the Court which gave judgment against him, even if that person participated in the proceeding before said Court, whether on certain conditions or with-out any conditions, if he claimed one or more of the following: (1) That person objected to the authority of the Court or protested against it; (2) Claimed the proceedings should be stricken out or delayed for the purpose of transferring the claim to arbitration or to a Court in another country; (3) Claimed with regard to releasing his assets which were seized or about to be seized, or while protecting such assets. It does not matter if along with the claims mentioned above the defendant claimed to the merits of the dispute or participated in the proceedings in any other matter provided he participated in same before the foreign Court gave its final decision on the question of authority.] (4) The judgment is in contradiction with another judgment given in the same matter between the same parties that is still valid; or (5) At the time the action was brought before the foreign court a suit in the same matter and between the same parties was pending before a Court or a Tribunal in Israel.

8 Enforcing foreign money judgments in California. PAGE 07 Daar & Newman Jeffery J. Daar Warner Center Towers Oxnard Street, Suite 350 Woodland Hills California USA Phone: Lemum distantia No international treaty, federal statute, or the U.S. Constitution requires a court in the United States to recognize a foreign country s judgment. However, in order to encourage other countries to recognize judgments from the United States, many of the states have adopted the Uniform Foreign-Country Money Judgments Recognition Act. California is one of those states (Calif. Code Civ. Proc. 1713, et seq.) (the Act ). Note that the law in each state may differ on recognition issues and procedure. If a foreign judgment is recognized, it will be converted into a domestic California judgment, enforceable by all means available for collecting on a California judgment. An action for recognition of a foreign country judgment must be generally filed no later than 10 years from when it becomes effective in the foreign country. The foreign judgment must grant or deny recovery of a sum of money (judgments for taxes, a fine, penalties, divorce, child custody, title to or possession of property, an injunction, or other non-monetary relief are not covered by the Act). However, non-monetary judgments remain recognizable and enforceable as a matter of comity. The foreign judgment must be final, conclusive and enforceable under the laws of the foreign country. If the foreign country does not consider the judgment to be final, e.g., while it is on appeal, the judgment cannot be recognized. The party seeking recognition of such judgment has the burden of establishing that the foreign country judgment is entitled to be recognized in California. California will not recognize a foreign country judgment if it was rendered under a judicial system in which procedures are not compatible with due process, and if the foreign court did not have jurisdiction over the defendant or over the subject matter. California may not recognize a foreign country judgment if the defendant in the foreign court did not receive notice of the proceedings in sufficient time to enable him/her to defend the action; if the foreign judgment was obtained by fraud; if the judgment is repugnant to the public policy of California or the United States; if it conflicts with another final and conclusive judgment; if the foreign court proceeding was contrary to an agreement between the parties under which the dispute in question was to be determined; if the foreign court was a seriously inconvenient forum for the trial of the action; if the foreign judgment was rendered in circumstances that raise substantial doubt about the integrity of the rendering court with respect to the judgment; if the specific proceedings in the foreign court leading to the judgment were not compatible with the requirements of due process of law; or if the foreign judgment includes recovery for a claim of defamation, unless the defamation law applied by the foreign court provided at least as much protection for freedom of speech and the press as provided by the United States and California Constitutions.

9 Recognition and enforcement of foreign money judgments. PAGE 08 hlw Keeble Hawson Michael Peaco ck & Giles Searby eblehawson.co.uk hawson.co.uk co.uk/ Lemum distantia Linder Myers LLP Peter Kaye s.co.uk Enforcing Foreign Judgments in England and Wales If you have obtained a domestic judgment or court order abroad, you may wish to enforce it in England and Wales because your debtor has assets here. Methods of enforcing a judgment depend largely on the nature of the judgment and where it was granted. Countries can be split into one or more of four categories which, in descending order of ease, are countries: - to which the European Enforcement Order ( EEO ) Regulation applies; - which have signed the Brussels Regulation or the Lugano Convention; - with which the UK has bi-lateral enforcement conventions in place; or - for which none of the above apply. 1. EEO Regulation This is the method of choice as it enables simple, quick enforcement within the EU. However it can only be used for uncontested money judgments. The application is a relatively straightforward paper exercise and once an EEO Certificate is issued the judgment is treated by the English courts as if it had been delivered within this jurisdiction. The usual methods of enforcement can then be used. 2. The Brussels Regulation/Lugano Convention This applies to all EU countries (plus Iceland, Switzerland, Norway, Poland and pre-2004 EU states) and provides relatively straightforward procedures for the mutual recognition and enforcement of most EU civil and commercial judgments. This would apply where the EEO procedure cannot be used such a judgment from a contested hearing or to enforce a non-money judgment such as an injunction or specific performance. The application must be made in the enforcing state accompanied by various documents including a copy of the judgment (and relevant translations). As long as certain formalities are fulfilled, the enforcing court in the UK should declare the judgment enforceable and not reexamine the case. 3. Bi-lateral Enforcement Arrangements The Administration of Judgment Act and the Foreign Judgments (Reciprocal Enforcement) Act streamline the enforcement of judgments obtained in various former and current Commonwealth countries and Crown States such as the Isle of Man and Jersey A final judgment obtained in one of the countries to which the Acts apply must first be registered here. A key issue is that the court in the UK must be satisfied that the original court had jurisdiction to deal with the claim. Once satisfied such judgments can then be enforced. 4. The Common Law If none of the above reciprocal regimes is applicable (e.g. Russia, the USA, Japan or China) fresh proceedings are commenced in the UK whereby the foreign judgment is sued upon as a debt. There will not be a re-examination on the merits of the case at court and the usual procedure involves the claimant making an application for summary judgment on the basis that there is no defence to the claim.

10 Recognition & enforcement of foreign civil money judgments ( foreign judgment ) in the Republic of South Africa ( RSA ). PAGE 09 Brian Kahn Inc. Jonet Crone No. 2 Burnside Island, Umlilo House 410 Jan Smuts Avenue Craighall Park 2196 Johannesburg South Africa Phone: Lemum distantia jonet@briankahn.co.za 1) INTRODUCTION A foreign judgment is not directly enforceable in the RSA and constitutes a cause of action that can be enforced by a RSA court. It is governed generally by common law and in specific instances by statute such as the Enforcement of Foreign Civil Judgments Act 32 of 1988 (the "Act"). 2) COMMON LAW ENFORCEMENT 2.1 In terms of the common law, the foreign judgment may be enforced by an action/ application. The amount of the foreign judgment and internal jurisdiction rules will determine whether the High or Magistrate s Court is to be approached and which particular division of that court. 2.2 The requirements to enforce are as follows: The foreign court must have been internationally competent, i.e. it must have exercised jurisdiction on grounds that RSA courts regard as appropriate; have been final and conclusive; not have been fraudulently obtained or be contrary to natural justice or public policy; not have lapsed or have been satisfied; not have been based on a foreign penal, revenue or public law; and conform to the requirements of the Protection of Businesses Act 99 of A duly authenticated copy of the foreign judgment is required and if done by way of application, a duly authenticated affidavit will be required. 2.4 A RSA court can grant the judgment in a foreign currency and may be satisfied in the RSA by payment in a foreign currency or by payment of its equivalent in South African Rand. A RSA court will enforce any foreign interest rate awarded and any foreign judgment costs. 2.5 Once a foreign judgment is recognised by the RSA court, the judgment creditor is entitled to issue a writ of execution against movable property. 3) ENFORCEMENT VIA THE ACT 3.1 The Minister of Justice must designate foreign countries to which the Act applies. Only one country, Namibia, has been designated so far. 3.2 The Act provides that final judgments enforceable by execution in the foreign country may be enforced. The only court provided with this statutory jurisdiction in RSA is the Magistrate s court and the foreign judgment is limited to that court s jurisdiction of ZAR A copy of the foreign judgment certified by the proper officer of the foreign court as a true copy is required. 3.4 The certified copy of the foreign judgment is registered by the clerk of the RSA court for the equivalent South African Rand value calculated at the exchange rate at the date of the foreign judgment together with interest and the costs of the registration in the RSA. 3.5 The foreign judgment is binding and take effect as a civil judgment of the RSA. 3.6 A notice to the judgment debtor is issued and served by a court official. It operates as an interdict not to remove or dispose of assets that would prejudice the execution of the judgment.

11 Germany s recognition and enforcement of foreign money judgments. PAGE 10 UP12 Rechtsanwälte Fachanwälte Notare Tim Steininger Christopher Hutz Denis Schultheis Am Hauptbahnhof Frankfurt am Main Germany Phone: Lemum distantia Always an issue of special interest for clients is the question, whether a foreign judgment is enforceable in Germany and what the conditions for such proceedings would be. Before focusing on the national rules regarding the recognition and enforcement of foreign judgments, it is wise to consider first, whether requirements relaxing International Treaties or European Union Directives or Regulations (in general or for specific fields of law) would be applicable. 1. EU-Regulations and Treaties Besides the possibility to achieve an European Enforcement Order according to EU-Regulation 805/2004, a recognition and enforcement through EU-Regulation 44/2001 ( EuGVO ) covering more than 27 states or through the Lugano Convention, Germany has bilateral treaties especially with Belgium, Great Britain, Greece, Israel, Netherlands, Norway, Austria, Switzerland, Spain and Tunesia. 2. Recognition and Enforcement of Non-EU Judgments in Germany Judgments awarded by non-eu states which are in turn not subject to those mentioned under 1. may be recognized and enforced under German procedural laws pursuant to sec. 328, 722 et seq. of the German Code of Civil Procedure ( ZPO ). Although the provisions of the ZPO are widely aligned with the EUGVO there remain, however, several differences. In particular, for foreign judgments to be recognized under German national laws they have to meet the following legal requirements pursuant to sec. 328 ZPO: - Recognizable are only final and legally binding judgments of a foreign court. E.g. decisions which are subject to later amendments (e.g. by continuation of the proceedings), settlements and notarial deeds are not sufficient; - An existing jurisdiction /cognisance of the foreign court; - Other proceedings must not be incompatible with the foreign decision. - International competence of the deciding foreign court For the protection of the defendant it is controlled under hypothetical conditions whether the deciding court from a German perspective would have had competence to decide thereby applying German procedural law; - Defendant s right to a fair hearing has been accordingly respected; - Contrary to the proceedings following the above mentioned rules of EuGVO or the Lugano Convention reciprocity has to be assured a foreign decision is accordingly only recognizable if a German decision meeting comparable legal requirements would be recognized in the state from which the decision originates; - The decision must not violate the German ordre public thus, a decision contradicting material German legal principles would not be recognized in Germany. Besides these conditions, the recognition does not require a particular proceeding. Judgments which are to be recognized pursuant to sec. 328 ZPO may be declared enforceable (sec. 722 ZPO). The declaration of enforceability is initiated by bringing an action aiming at the authorization to enforce to the competent German court. The respective action will thereby be decided upon following ordinary German procedural rules (so called Erkenntnisverfahren ) without the court s additional review regarding the facts and legal conclusions of the foreign ruling. However, legal objections may be raised if originated after the end of the foreign court s oral proceedings.

12 Enforcing foreign judgments in Japan. PAGE 11 Umegae Chuo Law Office, P.C. Kazuhiko Nishihara Umeda Plaza Building 4F , Nishitenma Kita-ku, Osaka Japan Lemum distantia Phone: gr.jp Source of Law and Procedure of Enforcement 1. Japan has not concluded any bilateral or multilateral treaties for the reciprocal recognition and enforcement of foreign judgments, and the courts apply the article 118 of the Code of Civil Procedure (CCP) for the recognition of a foreign judgment and the Civil Execution Act (CEA) for the enforcement of it. In Japan, enforcement shall be carried out by a court or a court execution officer upon petition (Article 2 of the CEA), and courts all over in Japan apply the same laws in a same manner because Japan is a civil law country and does not have a federal legal system. 2. With respect to the recognition of a foreign judgment, if it meets all of the requirements stipulated in the article 118 of the CCP, such a judgment is automatically recognized in Japan and no additional registration procedure is required. The article 118 of the CCP states that a final and binding judgment rendered by a foreign court shall be effective only where it meets (i) jurisdiction requirement, (ii) service requirement, (iii) public policy requirement, and (iv) mutual guarantee requirement. 3. In order to enforce the foreign judgment, however, the claimant has to file a suit against an obligor to obtain an execution judgment pursuant to the Article 24(1) of CEA, and file a petition for compulsory execution to the district court based on the execution judgment (Article 22 (iv) of the CEA). An execution judgment shall be made without investigating whether or not the foreign judicial decision is appropriate (Article 24(2) of the CEA), and the action seeking an execution judgment shall be dismissed without prejudice when it is not proved that the judgment of a foreign court has become final and binding or when such judgment fails to satisfy the requirements listed in the items of Article 118 of the CCP((Article 24(3) of the CEA)). Therefore, in this procedure, courts review whether the foreign judgments satisfy all requirements listed in the Article 118 of the CCP. Issues regarding the Recognition. 1. Jurisdiction requirement Article 118 (i) of the CCP requires The jurisdiction of the foreign court is recognized under laws or regulations or conventions or treaties. This requirement must be judged based on the rules of international jurisdiction under the CCP. (In re Order of the Hong Kong High Court, Supreme Court, 28 April 1998). Therefore, understanding the CCP of Japan is required if you want to enforce a foreign judgment in Japan. 2. Service requirement Article 118 (ii) of the CCP requires The defeated defendant has received a service (excluding a service by publication or any other service similar thereto) of a summons or order necessary for the commencement of the suit, or has appeared without receiving such service. Service must comply with the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters if the foreign judgment is rendered by the court of the nation which is the member of the Convention, and service which does not follow the Convention will not meet this requirements. 3. Public Policy requirement Article 118 (iii) of the CCP requires The content of the judgment and the court proceedings are not contrary to public policy in Japan. In Japan, gambling debts would be contrary to public policy, and judgment rendering punitive damage is also contrary to fundamental principles of Japanese tort law and the portion of the punitive damage is unenforceable in Japan (Northcon I An Oregon Partnership v. Mansei Kogyo Co.,Ltd., Supreme Court, 11 July, 1997). If there is a final judgment issued in Japan which is in conflict with the foreign judgment, the execution judgment may not be rendered regardless of whether the foreign judgment was issued before or after the judgment in Japan (Marubeni America Co v Kansai Iron Works Ltd., Osaka District Court, 22 December 1977), but there is a criticism that this judgment is disregarding the automatic recognition system under the CCP. 4. Reciprocity Article 118 (iv) of the CCP requires A mutual guarantee exists. The Japanese courts are basically generous to find the reciprocity, and there are cases in which the courts find the reciprocity with New York, California, Wisconsin, Nevada, Virginia, Hawaii, Minnesota, Maryland, United Kingdom, Hong Kong, Queensland (Australia), Singapore, Zurich (Swiss), Korea, and Germany. There are cases, however, which the courts did not find reciprocity with China and Belgium.

13 Enforcing foreign judgments in France. PAGE 12 Ziegenfeuter- Gaetjens-Saber Kay Gaetjens 16 Avenue Hoche F Paris Phone: Lemum distantia 7842 zgsparis@zgsavocats. com 1. OVERVIEW Types of enforceable judgments Apart from interim injunctions, all remedies are enforceable in France (see below for exact conditions). Please note however the restriction regarding decisions on punitive damages with a disproportionate character. Procedure In France, a difference is made between recognition and enforcement. Judgments are enforced by an exequatur procedure. Beforehand the judgments must be recognized to allow the enforcement. Between member States of the EU; judgments in civil and commercial matters are recognised ipso iure, which means that no special recognition procedure is necessary (article 33(1) Brussels I Regulation). As a result, the applicant can directly go to the district court in order to have a declaration of enforceability issued (art. 38 Brussels I and article 509-2(1) Code de Procedure Civile). 2. ENFORCEMENT OF JUDGMENTS BETWEEN EU MEMBERS EU regulations and treaties The enforcement of inter-eu judgments is governed by the Brussels I regulation (No. 44/2001 of 22 December 2000) binding all Member States except Denmark (reminder: EU Regulations are directly applicable in a Member State). Apart from Brussels I, a number of more specific Regulations exist: Regulation (No. 1346/2000 of 29 May 2000) on insolvency proceedings Regulation (No. 805/2004 of 21 April 2004) creating a European Enforcement order Regulation (No. 1896/2006 of 12 December 2006) on a European Payment Order Regulation (No. 861/2007 of 11 July) establishing a European Small Claims Procedure (up to 2.000) The new Lugano Convention of 30 October 2007 concerns the enforcement of judgments between EU states and Iceland, Norway and Switzerland. Requirements for recognition of EU judgments The possibility of review of an EU judgment is limited by articles 36 and 45(2): under no circumstances may a foreign judgment be reviewed as to its substance. The only possibility is to be found under article 34 and 35 of the Regulation (manifest conflict with public policy and only if the defendant had no possibility of defence, or incompatibility with an earlier judgment in the same cause of action involving the same parties). The competence of the jurisdiction in the country of origin must not, in general, be reviewed, with the exception of matters relating to insurance and consumer contracts. Effects of Recognition As an effect of the recognition of the foreign judgment, it will be considered as fact, proof and title. Public Policy The Brussels I notion of public policy mentioned in article 34(1) is to be understood in a more restrictive way compared to the general French public policy idea. The European Court of justice confirmed this view by stating that the words public policy under the Brussels regime has to be interpreted autonomously (CJEU Hoffmann/Krieg, 4 February 1988 and Krombach, 28 March 2000). Both interpretations contain however a procedural notion. For that reason, the French judges assess the regularity of the previous procedure. Appeal The Brussels I regulation allows an appeal against both a declaration of enforceability and a decision refusing the enforceability of a judgment. 3. NON-EU JUDGMENTS A variety of international and multilateral treaties are in place between

14 Enforcing foreign judgments in France. France and third PAGE 13 states (a list of all treaties can be found at Please note that these do not always cover all types of judgments. Enforcement is thus left in large parts up to the French judge and the rules of international private law. The French Supreme Court constantly re-defines the legal practice in civil and commercial matters. Requirements for recognition of non-eu judgments In this respect, the main criterion is the so-called international regularity. This implies the compliance of the foreign jurisdiction, the absence of fraud and the compliance with international public policy. This requirement implies an examination of procedural equivalence, but only as far as the principle of a fair process is concerned. On top of that, the judgment must be enforceable in its home country and the judgment cannot be in conflict with another judgment on the same subject matter between the same parties (principle of res iudicata). Public Policy In addition to what is already mentioned, the criteria of international procedural regularity has to be respected, especially the rights of the defence (i.e. dispossession without compensation). Appeal An appeal is possible against a declaration of enforceability. A judgment is therefore only enforceable after the exhaustion of all remedies. Disclaimer The Consulegis Int. Litigation & Arbitration Group Newsletter is designed to provide information of a general nature and is not intended as a substitute for professional consultation and advice in a particular matter. The opinions and interpretations expressed within are those of the respective authors only and may not reflect those of other identified parties. The editor of this newsletter as well as the respective authors do not warrant the accuracy and completeness of this newsletter, nor endorse or make any representations about its content. In no event will the editor or the authors be liable for any damages whatsoever arising out of the use of or reliance on the contents of this newsletter. This includes that the responsibility for the content of external links (to web pages of third parties) lies solely with the operators of the linked pages. No violations were evident to us at the time of linking. Even though we take care to avoid mistakes in this newsletter and to ensure maximum safety, errors may incidentally occur. Therefore, also no liability is accepted for incorrect information or transmission of conflicts through this newsletter.