17 Jul Exequatur of a judgment outside the European Community
Although European Regulation 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, known as the “Brussels I bis Regulation”, applies when a judgment is handed down in one of the countries of the European Community, the same does not apply to judgments handed down in a country that is not a member of the European Community and, conversely, a judgment handed down in France will have to undergo a special procedure outside the European Community.
This procedure is called exequatur.
Exequatur is a procedure whereby the beneficiary of a foreign judgment seeks to have it enforceable in his country. The exequatur judge has no power to review a foreign decision; he can only examine it.
Exequatur in France of a foreign judgment outside the EC
Under the terms of article 509 of the Code of Civil Procedure, foreign judgments become enforceable on French territory “in the manner and in the cases provided for by law”. It is therefore necessary to comply with the rules for obtaining exequatur in order to benefit from its effects.
You have to turn to the rules of ordinary exequatur law laid down by French case law.
Since 2007, only three cumulative criteria have been applicable:
– Verification of the jurisdiction of the foreign court,
– The foreign decision must comply with international public policy,
– And the absence of fraud (Cour de cassation 20/02/2007 n° 05-14.082 arrêt Cornelissen).
A fourth condition must be added:
That the judgment is enforceable abroad (Court of Cassation 16/03/1999, no. 96-18.650).
1. The jurisdiction of the foreign court.
When a French court receives an application for exequatur, it must ensure that the foreign court that rendered the decision had jurisdiction to rule in accordance with the criteria established by case law (Cour de cassation 06/02/1985 no. 83-11.241).
Firstly, it must be verified that the jurisdiction of the foreign court does not violate a rule of exclusive French jurisdiction.
Secondly, the dispute must have a clear connection with the country before the court.
In the case of a contract drawn up in English providing for payment in pounds sterling, with the application of foreign law and the jurisdiction of a foreign court, the dispute may be dealt with in the foreign country provided that the contract was not concluded by a French resident in his capacity as a consumer.
If the contract relates to consumer resident in France who has signed a contract in France for a transaction to be carried out in France, the question of jurisdiction may arise.
2. Compliance of the foreign decision with international public policy (procedural and substantive).
The French court hearing the exequatur application must check that the foreign decision complies with international public policy. International public policy may be defined as the fundamental principles of the legal system, which may derive from French law but also from European Union, international or European texts binding in France (such as the European Convention for the Protection of Human Rights (Cour de cassation 15/01/2020 no. 18-24.261)).
International public policy is violated when the interests of a party have been objectively compromised by a violation of the fundamental principles of the procedure (Cour de cassation 19/09/2007 no. 06-17.096). Each party must be able to assert its rights (Cour de cassation 17/03/2021 n°19-26.071).
The principle of equality of arms and the right to a fair trial, i.e. respect for the rights of the defence, are therefore part of the international public order of procedure (Cour de cassation 04/10/1967 Bachir ruling). These principles are to be found in article 6 of the European Convention on Human Rights, which is a text that must be applied by any judge of a State party to an application for exequatur (ECHR 20/07/2001 Pellegrini v Italy).
3. Absence of fraud.
The last element to be verified is the absence of fraud, i.e. the French court should not be asked to grant exequatur following a procedure vitiated by fraudulent intent. In other words, French law should not be circumvented by applying to a foreign court for exequatur of a decision that clearly could not have been made under French law. This often takes the form of a misuse of the conflict of laws rule.
4. Limitation period.
In a judgment of 11 January 2023, the Cour de cassation held, in application of the Lugano Convention, that the exequatur action itself is not subject to any limitation period.
However, the limitation rules of the State of origin are likely to affect the enforceability of the judgment and, consequently, the applicant’s interest in bringing proceedings (no. 21-21.168).
5. Exequatur in other countries.
We have examined exequatur in the United Arab Emirates, India, Spain, Poland, Holland, the United Kingdom, Austria, Monaco and Italy.
In most cases, it is necessary to check whether there is a bilateral agreement between France and the other country.
This is the case between the United Arab Emirates and France, for example.
In the case of arbitration for which exequatur must be sought, the New York Convention applies, and India, for example, is a signatory to this convention.
The principle of reciprocity may also be invoked, for example in Spain, where exequatur will only be granted if the country from which the judgment originates accepts the exequatur of Spanish decisions.
In most cases, the judgment must not conflict with a judgment already handed down in the country of exequatur. This is particularly the case in Poland.
Many countries are signatories to the Lugano Convention of 30 October 2007 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
The list of signatory countries can be found in the appendix to this Convention.
In particular, it sets out the rules of national jurisdiction. For example, France refers to articles 14 and 15 of the French Civil Code.
Each country determines the competent courts to which the application for exequatur is to be submitted and the courts competent to hear appeals against the exequatur.
A model certificate proving that the judgment is enforceable in the State of origin is also attached.