Признание и исполнение иностранных судебных решений.

In law, the enforcement of foreign judgments is the recognition and enforcement in one jurisdiction of judgments rendered in another ("foreign") jurisdiction. Foreign judgments may be recognized based on bilateral or multilateral treaties or understandings, or unilaterally without an express international agreement.

The "recognition" of a foreign judgment occurs when the court of one country or jurisdiction accepts a judicial decision made by the courts of another "foreign" country or jurisdiction, and issues a judgment in substantially identical terms without rehearing the substance of the original lawsuit. In English law, there is a clear distinction between recognition of foreign judgments, and enforcement of foreign judgments. Recognition means treating the claim as having been determined in favour of one of the litigating parties. This is an acknowledgment of foreign competence and of the settling of a dispute, known as res judicata. Enforcement, by contrast, is the implementation of the judgment. In American legal terminology, a "foreign" judgment means a judgment from another state in the United States or from a foreign country. To differentiate between the two, more precise terminology used is "foreign country judgment" (for judgments from another country) and "foreign sister state judgment" (from a different state within the United States). Once a foreign judgment is recognized, the party who was successful in the original case can then seek its enforcement in the recognizing country. If the foreign judgment is a money judgment and the debtor has assets in the recognizing jurisdiction, the judgment creditor has access to all the enforcement remedies as if the case had originated in the recognizing country, e. g. garnishment, judicial sale, etc. If some other form of judgment was obtained, e. g. affecting status, granting injunctive relief, etc., the recognizing court will make whatever orders are appropriate to make the original judgment effective. Foreign judgments may be recognized either unilaterally or based on principles of comity, i. e. mutual deference between courts in different countries. In English courts, the basis of the enforcement of foreign judgments is not comity, but the doctrine of obligation. Between two different States in the United States, enforcement is generally required under the Full Faith and Credit Clause (Article IV, Section 1) of the U. S. Constitution, which compels a State to give effect to another State's judgment as if it were local. This usually requires some sort of an abbreviated application on notice, or docketing. Between one State in the United States, and a foreign country, e. g. Canada, the prevailing concept is comity. The Court in the United States, in most cases, will unilaterally enforce the foreign judgment, without proof of diplomatic reciprocity, either under judge made law or under specific statutes. Recognition will generally be denied if the judgment is substantively incompatible with basic legal principles in the recognizing country. For example, U. S. courts, in accordance with the Securing the Protection of our Enduring and Established Constitutional Heritage Act, are prohibited from recognizing or enforcing foreign libel judgments against any United States person unless the foreign country in which the judgement was made protects freedom of speech to at least the same degree as the United States and the foreign court's conduct of the case in which the judgement was reached respected the due process guarantees of the U. S. Constitution to the same extent as a U. S. court would have.

If the time to appeal in the court of origin has lapsed, and the judgment has become final, the holder of a foreign judgment, decree or order may file suit before a competent court in the U. S. which will determine whether to give effect to the foreign judgment. A local version of the Uniform Foreign Money Judgments Recognition Act applies in most states, for example in California, 13 U. L. A. 149 (1986). A judgment rendered in a "sister" state or a territory of the U. S. is also referred to as a "foreign judgment". 48 states, the District of Columbia, the Northern Mariana Islands, and the U. S. Virgin Islands have adopted the Uniform Enforcement of Foreign Judgments Act (UEFJA), 13 U. L. A. 261 (1986), which requires the states and the territories to give effect to the judgments of other states and territories, if an exemplified copy of the foreign judgment is registered with the clerk of a court of competent jurisdiction along with an affidavit stating certain things. The only U. S. states which have not adopted the Uniform Enforcement of Foreign Judgments Act are California and Vermont. New York State and Connecticut are two of a small minority of U. S. jurisdictions that do not simply allow a judgment creditor to file a foreign judgment from a sister state if the judgment was obtained by default (meaning the other side never showed up for to contest its entry in the other state by, for example, defending himself at trial) or the judgment was obtained by confession (meaning the other side signed paperwork allowing a judgment to be entered against him). Instead, a party wishing to domesticate the foreign default judgment or foreign judgment obtained by confession must bring another action in New York State "on the judgment" where the relief sought is to have the foreign judgment domesticated in New York State. Moreover, a quicker "motion action" procedure is available in New York where the owner of the foreign default judgment/judgment by confession files a summons and notice of motion for summary judgment in lieu of complaint. When seeking to enforce a judgment in or from a state that has not adopted the Uniform Act, the holder of the judgment files a suit known as a "domestication" action. Since the full faith and credit clause of the U. S. constitution requires that states honor the judgments of other states, the domestication of a judgment from another state is generally a formality, even in the absence of the expedited procedure under the UEFJA. To solve the problem of libel tourism, the SPEECH Act makes foreign libel judgments unenforceable in U. S. courts, unless those judgments are compliant with the U. S. First Amendment. The act was passed by the 111th United States Congress and signed into law by President Barack Obama.

Whether the foreign court had jurisdiction over the matter is assessed using one of three tests. The first two – presence of the defendant in the jurisdiction and submission of the defendant to the foreign court – are traditional tests that have their roots in English common law. The third and now most common test, real and substantial connection, was recognized in the Supreme Court of Canada's 1990 decision Morguard Investments Ltd v De Savoye.

The defendant's presence in the foreign jurisdiction is established if they were within the jurisdiction when the action was taken. Defendants with only a transient presence at the time of the action are also considered to have been in the foreign court's jurisdiction. For corporations, the test is whether the company was headquartered, had an office, or was carrying on business in the jurisdiction.

The test for proving the defendant's submission to the foreign court consists of two separate branches: attornment and agreement. The usual test for submission is whether the defendant attorned, that is, appeared in court to make an argument on the substantive merits of the case, in which case he or she is considered to have voluntarily submitted to the court. Appearing merely to contest the court's jurisdiction is generally not considered submission. If a defendant combines a jurisdictional challenge with substantive arguments, they will also be held to have submitted. If the parties were subject to a contract that contained a forum selection clause, and the plaintiff obtained a judgment by suing in the specified jurisdiction, the defendant will be held to have submitted to the court’s jurisdiction, and a Canadian court will enforce the judgment.

Recognized by the Supreme Court in Morguard, the real and substantial test is also used by Canadian courts to determine jurisdiction outside of the recognition and enforcement context. The court’s decision was based on the principles of comity. The real and substantial connection doctrine has subsequently become the dominant test for whether Canadian courts recognize and enforce foreign judgments. The original doctrine from Morguard only applied to inter provincial judgments within Canada. However, the 2003 case Beals v Saldhana expanded the test to apply to international judgments. The definition of "real and substantial" is interpreted broadly in order to maintain flexibility for courts. In Beals, the Supreme Court further clarified that the real and substantial connection should be between the jurisdiction of the foreign court and either the subject matter or the defendant.

Once the foreign court has been found to have had jurisdiction, the defendant may raise defences to the enforcement of the foreign judgment. However, these defences strictly concern whether the order shall be enforced, and are not about the merits of the case the judgment originated from.

Foreign judgments obtained by fraud will generally not be enforced. In this context fraud is divided into two categories: misleading the foreign court to believe it has jurisdiction ("extrinsic fraud") or fraud going to the merits of the case ("intrinsic fraud"). Because of the importance of jurisdiction in the recognition and enforcement context, if evidence of fraud having to do with jurisdiction is accepted by the Canadian court, the judgment will not be enforced. Fraud that has to do with the merits of the case will only justify setting aside a judgment if the evidence about the fraud presented to the Canadian court is new and was not previously adjudicated. The defence of fraud will only be accepted by a Canadian court if the defendant can prove that the fraud could not have been discovered by the use of reasonable due diligence before the foreign judgment was issued.

Foreign judgments will not be enforced if it is proven on a balance of probabilities that the foreign court did not follow Canadian standards of fair process. Fair process includes an independent judiciary, the defendant's right to be notified of claims against them and their right to submit a defence.

Foreign judgments created by laws that violate the fundamental morals underlying Canada's legal system will not be enforced. This would include laws that confiscate property based on religious or racial grounds, as well as a foreign court that has been proven to be corrupt. However, the mere fact that foreign policies produce outcomes that are different from Canada’s is not in itself a reason to deny enforcement. This defence is very narrowly construed and is almost never applied.

Every common law province in Canada has enacted legislation that allows for registration of judgments from other jurisdictions; most of these statutes are based on model legislation drafted and continually updated by the Uniform Law Conference of Canada. The provincial statutes operate alongside the common law in this area and do not replace it. Thus, plaintiffs can choose which process to use. The statutes differ by province; some only deal with inter provincial judgments while others allow international judgments. They also differ on whether they allow non pecuniary judgments. The defences to jurisdiction are generally the same as those in the common law. Some provincial registration provisions use more traditional rules than the common law. New Brunswick’s Foreign Judgments Act, which enables the registration of judgments from outside of Canada, does not include the real and substantial connection test as a basis for a foreign court’s jurisdiction. It also restricts registration to final monetary judgments, excluding injunctive orders. The Court Jurisdiction and Proceedings Transfer Act is in force in Nova Scotia, Saskatchewan and British Columbia, which alters the analysis of the enforcing court’s jurisdiction. In an action to enforce a foreign judgment, a real and substantial connection between the province and the subject of the action is presumed to exist.

The first category of recognition is where the defendant was present when proceedings began. Two primary definitions exist: one relating to individuals, the second to corporations. Academic criticism has extended from the use of presence rather than residence; however, residence on the date of when proceedings were begun creates uncertainty. It is difficult to determine whether a party who spends two years aboard is resident there. However, authority suggests that residence without presence at the material time would still suffice if the relevant time was at the service of process representing the start of legal proceedings. The leading authority within is Adams v Cape Industries, setting out that presence, as distinct from residence is necessary. With regard to individuals, the court has held that it will mean that the defendant must be within the jurisdiction of a court when the proceedings were instituted, meaning service or notice that proceedings had begun. Presence at the time of the trial is not used as a defendant could simply leave the jurisdiction upon becoming aware. By contrast, in Adams v Cape the question of whether a company was present was to analogise from the reasoning of human beings. The court must be either able to determine presence as (a) servants of the corporation carrying on its business from a fixed place maintained by the corporation, or (b) a representative of the corporation carrying on the business of the corporation from a fixed place. Either of these criteria will determine the company is present. This is designed to prevent the argument that the company is present wherever a company officer or director is present. If the representative/servant has the power to bind the corporation into a contract without seeking approval from other entities abroad, presence will be determined. The difficulty of determining presence of a company derives primarily because it is difficult to apply to the margins. Travelling salesmen certainly operate in jurisdictions on behalf of companies, enjoying the benefit of economic markets, and under the current criteria would not be considered "present". The U. S. model operates on the assumption that the conclusion of any contract will bind the corporation in that jurisdiction. Further, the common law's ignorance as to the content of the judgment itself. This was seen notably in Adams v Cape itself. The effect of corporate presence is that any claim relating whatsoever can be brought against the corporation, regardless of the work the corporation conducts within the jurisdiction.

The second criterion where a party may be subject to a foreign judgment recognised in England is where the defendant has accepted the foreign court. This is consistent with the English court's approach to a choice of jurisdiction clause: a judgment will be denied recognition at common law if the adjudicating court failed to give effect to a choice of court clause or arbitration agreement. A party will not sufficiently submit to a jurisdiction by simply agreeing to a contract in a foreign jurisdiction. If, for example, parties 'A' and 'B' agreed to be bound to a contract which included the terms "this contract shall be governed by the law of England and Wales and the English courts shall have exclusive jurisdiction to decide matters arising from the contract", both parties will be unable to commence proceedings in New York, even if the New York court considers the exclusive jurisdiction clause to be invalid. If 'A' brings proceedings, the English court will not recognise the judgment of a New York court regardless of whether 'B' attends the foreign jurisdiction to contest the jurisdiction of the New York court. Section 33 of the Civil Jurisdiction and Judgments Act 1982 altered the previous common law approach. It provided a defence to attending a foreign court for the purposes of challenging the jurisdiction of the court. There is considerable academic debate as to whether, after the foreign court determines jurisdiction, party 'B' can continue to forward a defence so long as he contests jurisdiction at every opportunity. In doing so, the defendant may well have the opportunity to enjoy two attempts at defending the action, first seeking to defend the action abroad, and secondly operating with the confidence that they will be protected by Section 33 of the 1982 Act.

The only foreign judgment which can be enforced in England is a money judgment for which a party will sue on the debt. Should a foreign court apply specific performance, a party may sue in England on the same cause of action as the foreign judgment and use the foreign judgment on the merits to seek a similar order from the English courts. It is the obligation, not the judgment, that is enforced. Only final judgments for fixed sums of money can be enforced. A foreign country court has jurisdiction to give a judgment in personam in four cases. Murthy v Sivajothi [1993] 1 WLR 467 upheld the recognition of res judicata.

Two parliamentary acts enforce jurisdictional rules. In particular, these apply to Commonwealth matters and operate close to the current common law. The first is the Administration of Justice Act 1920 where Part II applies to former colonial jurisdictions such as New Zealand, Nigeria, and Singapore. If the judgment is still subject to an appeal in the ordinary, it cannot be registered. The second parliamentary statute which allows for enforcement and recognition is the Foreign Judgments (Reciprocal Enforcement) Act 1933, which enforces civil and commercial matters from designated courts in countries with bilateral agreements, such as Canada. Instead of it being necessary to commence original proceedings by service, the statutes allow the judgement creditor, the party seeking to enforce a foreign jurisdiction, to merely register the judgment for direct enforcement. This produces the same effect as if the foreign action had been an English judgment. Respondents may apply to set aside the registration as specified by the statutory instruments.

Succeeding the Brussels I Regulation, the Brussels Recast Regulation allocates jurisdiction between member states using Chapters I and II of the regime. Chapter III of the Recast Regulation implements articles relating to the automatic recognition and enforcement of Member State judgments. Except in very limited circumstances, it is not possible to claim that the court should not have adjudicated because it misinterpreted the rules on jurisdiction within Brussels. This is because jurisdiction rules are the same in all member states under the regulation. If the defendant thought that the foreign court was wrong, it should have, and could have, challenged jurisdiction at the first instance.

Arbitration awards enjoy the protection of special treaties. The U. S. is a signatory to international conventions regulating the enforcement of arbitration awards, including the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (often referred to as the "New York Convention"), and the Inter American Convention on International Commercial Arbitration, 14 I. L. M. 336 (1975). Ratified treaties in the U. S. are considered the "supreme law of the land".