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Which domestic laws and regulations govern the recognition and enforcement of foreign judgments in your jurisdiction?
The enforcement and recognition of foreign judgments in France is governed locally by Articles 509 to 509-9 of the Code of Civil Procedure, which deals with cross-border recognition (La reconnaissance transfrontalière, Chapter II, Title XV, Book I).
Article 509 states that "judgments rendered by foreign courts and deeds received by foreign officers shall be enforceable on the territory of the French Republic in the manner and under the circumstances specified by law".
As the field is mainly regulated at the EU level, the rest of the chapter refers to EU legislation.
That said, French case law has refined specific criteria on the recognition and enforcement and provided precise guidelines. For example, in the 1964 case of Munzer, the Supreme Court set out the first conditions under which a foreign judgment should be recognised in France (Cass Civ 1st, January 7 1964, JurisData 1964-800015 – see below).
Following this first decision, numerous others decisions have sharpened the conditions under which a foreign judgment may be enforceable in France (Cass Civ 1st, January 30 2013, 11-10.588; Cass Civ 1st, January 29 2014, 12-28.953; Cass, Civ 1st, January 6 2016, 15-15.850).
Which international conventions and bilateral treaties relating to the recognition and enforcement of judgments apply in your jurisdiction?
France is party to multiple European instruments, international conventions and bilateral treaties which provide legal frameworks for the recognition and the enforcement of foreign judgments.
EU level With regard to EU law, since the Amsterdam Treaty 1997, the European Union has had the power to edict regulations that directly apply in France regarding the recognition and enforcement of judgments rendered by member states (Article 81 of the Treaty on the Functioning of the European Union).
One of the most important was the Brussels I Regulation (44/2001) on jurisdiction and the recognition and enforcement of the judgments rendered in civil and commercial matters. The goal of this regulation was to:
- improve the way in which judgments are circulated between the member states;
- provide an automatic recognition of foreign judgment; and
- create a two-step procedure for enforcement, as set out in the Lugano Convention (see above).
The Brussels I Regulation was rewritten in 2012 with the implementation of the Brussels Recast Regulation (1215/2012), which abolished the two-step procedure and provided for an automatic recognition and enforcement of the foreign judgments.
Apart from civil and commercial matters, the European Union has also implemented regulations with regard to family law. The Brussels II Regulation (2201/2003) deals with the recognition and enforcement of judgments on marital and parental matters. Similarly to the Brussels I Regulation, it provides an automatic recognition principle and a fast and simple procedure for member state courts to follow when enforcing foreign judgments.
Further, other instruments such as the 2000 regulation on insolvency proceedings and the 2008 regulation on maintenance obligations are often used.
International treaties Several international treaties apply in France, and their scope and provisions. Some of them have been drafted under the aegis of the Hague Conference on international private law and cover specific areas (mostly personal and family law; for example, the conventions of April 15 1958 and October 2 1973 on the recognition and enforcement of judgments regarding the maintenance obligation and the convention of October 19 1996 on the recognition and enforcement of parental responsibility).
In addition to the Hague Conference, France has entered into other international treaties, one of the most important being the Lugano Convention, which was initially concluded in 1988 between the member states of the European Union (hence its applicability in France) and the European Free Trade Association (ie, Iceland, Liechtenstein, Norway and Switzerland). It was last modified on October 30 2007. Its aim is to offer the same rules and ease of European regulations in relation to recognition and enforcement. As a result, it replicates the rules stated in the former Brussels I Regulation and grants an automatic recognition of relevant foreign decisions. Enforcement therein requires a two-step proceeding, which must be pursued before French courts:
- The petitioner must file a request in exequatur, which will be granted when the petitioner produces a certificate of enforceability.
- If the defendant appeals this decision, the judge will review the international regularity of the decision under the criteria provided for by European law.
Bilateral treaties Finally, France has entered into numerous bilateral conventions on the recognition and enforcement of foreign judgments with non-EU member states (around 55 states). The substantive rules stated in those conventions are mainly the same, as similar international standards have gradually been established between the main international players.
For instance, France and China entered into a convention on March 24 1988, which provides conditions for the recognition and enforcement of Chinese judgments in France. With regard to the proceedings that must be undertaken, this convention does not greatly differ from French domestic law, which requires that a contradictory procedure be held in front of a French first-instance civil court in order to review:
- the res judicata of the decision;
- the jurisdiction of the foreign court;
- the applicable law;
- the service of process;
- compliance with public policy, sovereignty and public safety; and
- compliance with concurring decisions.
Since the European Court of Justice’s (ECJ) 2006 judgment (Opinion 1/03, dated February 7 2006), and in order to ensure consistency within the European Union, the ECJ is deemed to have exclusive competence to negotiate conventions in relation to the recognition and enforcement of foreign judgments.
Finally, in situations where no international treaty or bilateral convention applies (eg, as with the United States and Russia), the foreign judgment will be recognised and enforced in accordance with the criteria set out by French case law.
Which courts are competent to hear cases on the recognition and enforcement of foreign judgments?
Pursuant to international regulations and Article R 212-8 of the Code of the Judicial Organisation, applications for the exequatur of a foreign judgment must be submitted to a first-instance civil court (sitting with a single judge).
The level of the foreign court with jurisdiction is irrelevant.
As to jurisdictional competence within the French territory, the applicant can file its demand before the court where the defendant resides or, if the aim is to obtain a specific performance, where the decision must be enforced.
If the defendant does not have its residence in France, the choice must be guided by considering good administration of justice.
Distinction between recognition and enforcement
Is there a legal distinction between the recognition and enforcement of a judgment?
The notions of recognition and enforcement differ in their meaning and implementation.
On the one hand, the recognition of foreign judgments implies the substantial effectiveness of the judgments, which means that recognition materialise the legal consequences of the foreign judgment. On the other hand, res judicata signifies that the issue will never be ruled again by a court.
The enforcement of foreign judgments implies the concrete realisation of those legal consequences, and not just the acknowledgment of the rights granted. It allows the applicant to undertake enforcement measures.
The Brussels Recast Regulation distinguishes between recognition and enforcement by referring to them separately.
As mentioned above, recognition and enforcement are also subject to different procedures.
Ease of enforcement
In general, how easy is it to secure recognition and enforcement of foreign judgments in your jurisdiction?
The criteria to have a foreign judgment enforced or recognised are settled.
According to Ministry of Justice data, there were around 3,000 enforcement procedures initiated each year between 2012 and 2016, 90% of which were successful (this data was gathered by the Direction des Affaires Civiles et du Sceau of the Ministry of Justice).
Further, European data confirms this trend, as it appears that 90% to 100% of exequatur procedures were successful within the European Union, and only 1% to 5% were subject to a recourse against the granting of the exequatur, mostly in vain. This data was collated in a European Commission report edited in 2010 (Report on the implementation and review of Council Regulation 44/2001/EC on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters dated June 26 2010). These statistics are the reason why the exequatur procedure has been abolished within the European Union by the Brussels Recast Regulation.
In short, the EU legal framework helps to ease the recognition and enforcement of judgments between member states. The same phenomenon can be observed regarding foreign judgments which are subject to international conventions using the same criteria as the EU regulations.
Are any reforms to the framework on recognition and enforcement of judgments envisioned or underway?
Conditions for recognition and enforcement
Which types of judgment (eg, monetary judgments, mandatory or prohibitory orders) are enforceable in your jurisdiction and which (if any) are explicitly excluded from recognition and enforcement (eg, default judgments, judgments granting punitive damages)?
Provided that they comply with the commonly used conditions, all types of judgment are potentially enforceable. These conditions are:
- the competence of the jurisdiction;
- compliance with the French public policy; and
- the absence of fraud.
Therefore, even if some actions cannot be initiated in France, they may be enforced within French territory, as long as there are not contrary to French public policy.
For instance, the Supreme Court has held that even if such remedies are not allowed in France:
- an anti-suit injunction is enforceable when its sole purpose is to penalise the violation of a contractual obligation (Cass Civ 1st, December 1 2010, 09-13303); and
- a judgment granting punitive damages can be enforced, provided that the damages are not disproportionate (Cass Civ 1, October 14 2009, 08-16369 and 08-16549).
How are foreign judgments subject to appeal treated?
French courts can grant the exequatur to a decision that is enforceable in its state of origin. Therefore, the answer to this question varies, depending on whether the appeal is suspensory or not:
- If the appeal is suspensory, the French judge will deem the exequatur request inadmissible for lack of interest.
- If the appeal is not suspensory, the exequatur of the first-instance judgment is possible. If the court decides to wait for the outcome of appellate proceedings, it can also stay the exequatur proceedings while waiting for the appellate decision.
What are the formal and documentary requirements for recognition and enforcement of foreign judgments?
The requirement for recognition and enforcement of foreign judgments depends on whether they fall under the scope of an EU regulation, an international treaty, a bilateral convention or none of these.
Brussels Recast Regulation Under the Brussels Recast Regulation (thanks to its large scope of application, this regulation appears to be the ordinary law of the recognition and enforcement of judgments within the European Union), member state judgments rendered in civil or commercial matters initiated after January 10 2015 benefit from the following simplified recognition and enforcement scheme:
- The judgments are recognised in France without any specific procedure, and the only document needed is a certificate from the court having rendered the judgment (Article 36 and following of the Brussels Recast Regulation and Annex I of the regulation);
- Member state judgments are enforceable in France if enforceable in the state of origin, without intervention by the French courts. A certificate of enforcement must be issued by the court having rendered the judgment (Article 39 and following of the Brussels Recast Regulation and Annex I of the regulation).
International treaties and bilateral conventions With regard to international treaties and bilateral conventions, the formal and documentary requirements are specifically enumerated therein.
Judgments outside scope of international treaties and European regulations When no European regulations or international treaties apply, French case law provides rules to deal with applications for recognition and enforcement:
- Foreign judgments are recognised by the French law without any prior formalities: they benefit from what is called ‘de plano’ recognition. To prevent any difficulties linked to the substantive requirements defined below, a party can seek the exequatur of the foreign judgment for the purpose of its recognition only.
- However, a foreign judgment can be enforced in France only when a judgment of exequatur has been rendered by a French court following the specific procedure and after meeting the criteria set out by French case law.
What substantive requirements (if any) apply to the recognition and enforcement of foreign judgments? Are enforcing courts in your jurisdiction permitted to review the foreign judgment on the merits?
The substantive criteria that must be met by a foreign judgment in order to be recognised or enforced in France are set out by the following sources.
Brussels Recast Regulation Under this regulation, member states’ judgements are recognised and enforceable in France without any intervention of the French courts.
However, any interested party (for the recognition) or the party against whom enforcement is sought can challenge the automatic recognition or enforcement of a member state’s decision by filing a petition before the enforcing court. The automatic recognition or enforcement will be refused by French courts when (Articles 45 and 46 of the regulation):
- the recognition or enforcement are manifestly contrary to public order;
- the judgment was given in default of appearance, and the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time as to enable it to arrange for its defence;
- the judgment is irreconcilable with a judgment rendered between the same parties in the addressed member state;
- the judgment is irreconcilable with an earlier judgment rendered in another member state or in a third state involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the applicable member state; and
- the judgment was rendered by an incompetent court with regard to the Sections 3, 4, 5 and 6 of the regulation, which set out special competences relating to insurance, consumer contracts and employment contracts as well as an exclusive competence list.
Judgments outside scope of international treaties and European regulations When the judgment falls outside the scope of international treaties and European regulations, it must fulfil the conditions stated by French case law.
In the 2007 decision in Cornelisen, the Supreme Court set out a three-step test that must be carried out by judges before refusing recognition or granting a writ of execution (Cass Civ January 14 2009, 05-14082). The judge must examine whether:
- the foreign court had jurisdiction over the matter;
- the foreign judgment complies with the French substantive and procedural public order; and
- the foreign judgment was not fraudulently obtain.
However, the French court has no power to review foreign judgments (Munzer, 1964).
In this case, the main difference between enforcement and recognition is that no prior assessment of the substantive requirements is necessary for the former.
What is the limitation period for enforcement of a foreign judgment?
When a judgment is directly enforceable in France pursuant to the Brussels Recast Regulation, its enforcement is possible as long as it is enforceable in its state of origin. However, when the applicant must first obtain a judgment of exequatur, the applicant has 10 years from the decision to actually enforce the decision and seek specific performance in France (Article L 111-4 of the Enforcement Proceedings Code).
Grounds for refusal
On what grounds can recognition and enforcement be refused?
The enforcement of a foreign decision can be denied by the court if one of the three above-mentioned substantive requirements is not met – that is, competence of the foreign court, compliance with French public policy and the absence of fraud.
Service of process
To what extent does the enforcing court review the service of process in the original foreign proceedings?
Brussels Recast Regulation
Under this regulation, the automatic recognition or enforcement of a European judgment can be denied if:
- the judgment was a default judgment; and
- the defendant was not served with the writ which initiated the proceedings in a timely manner and, as a consequence, was unable to organise its defence properly.
However, this protection does not apply if the defendant failed to start proceedings to challenge the judgment when it was in a position to do so.
No international instrument When no international instrument applies, the foreign decision must comply with the French procedural public order to be enforceable in France. For this condition to be satisfied, the judgment must be the outcome of proceedings that allowed the defendant to argue its case from the beginning. That is why the service of process is a crucial point of scrutiny by French courts.
The case law on this matter is stable. In short, it holds that the defendants must have benefited from a service of process that informed them of the proceedings and allowed them to prepare their defences in a timely manner. If it is not the case, the French judge will deny the enforcement.
What public policy issues are considered in the court’s decision to grant recognition and enforcement? Is there any notable case law in this regard?
As indicated above, the international regularity of the foreign judgment depends on its compliance with both procedural and substantive French public policy (notably, the EU regulations refer only to public policy without subdividing it):
- Procedural public policy deals with the way in which the decision has been reached and enshrines fundamental principles such as:
- the defendant’s rights;
- the service of process (see above);
- the impartiality of the jurisdiction; and
- the reasoning of the decisions.
- Substantive public order covers various fundamental rules that are protected by French law in numerous areas. For instance, a repudiation does not comply with the French public order and cannot have effects in France (see Cass Civ 1, March 11 1997).
In commercial matters, it is difficult to find examples of judgments that do not comply with French substantive public policy. In fact, cases where foreign law fundamentally differs from the principles safeguarded by the French public policy are rare. For instance, neither employment law nor bankruptcy law are considered as parts of public policy. The only fields where such contradiction are hypothetically possible are competition law or securities law, but no case law has been rendered on these matters.
What is the extent of the enforcing court’s power to review the personal and subject-matter jurisdiction of the foreign court that issued the judgment?
Brussels Recast Regulation
Under Articles 45 and 46 of the Brussels Recast Regulation, a judgment can be denied recognition or enforcement if it conflicts with the rule of jurisdiction provided for by the regulation, particularly in matters relating to:
- insurance (Section 3 of Chapter II);
- consumer contracts (Section 4 of Chapter II);
- individual contracts of employment (Section 5 of Chapter II); or
- conflicts with any exclusive jurisdiction (Section 5 of Chapter II).
Besides these specific situations, the jurisdiction of the court of origin may not be reviewed.
No international instrument Where no international instrument applies, in order to allow the execution of a foreign judgment in France, the judge must determine whether the court that rendered the decision had jurisdiction over the matter.
In international law, the concept of jurisdiction can refer to two questions: the first is to determine which state had jurisdiction over the matter (ie, general jurisdiction) and the second is to determine which specific court within said state had jurisdiction (ie, specific jurisdiction).
Under French law, the judge’s scrutiny of the foreign court’s jurisdiction is limited only to the concept of general jurisdiction.
To that extent, in the 1985 case of Simitch, the Supreme Court held that two conditions must be fulfilled for the foreign state’s jurisdiction to be acknowledged (Cass Civ 1, February 6 1985, 97-17598):
- The case must not fall within the scope of an exclusive French jurisdiction.
- The case must have a sufficient link to the foreign state.
Concurrent proceedings and conflicting judgments
How do the courts in your jurisdiction address applications for recognition and enforcement where there are concurrent proceedings (foreign or domestic) or conflicting judgments involving the same parties/dispute?
As stated above, under the Brussels Recast Regulation, the recognition or enforcement of a European judgment can be denied when the judgment:
- is irreconcilable with a judgment rendered between the same parties in the applicable member state; or
- is irreconcilable with an earlier judgment rendered in another member state or a third state involving the same cause of action and between the same parties.
Similar provisions are also set out in the Lugano Convention.
What defences are available to the losing party to a foreign judgment that is sought to be recognised and enforced in your jurisdiction?
The recognition and enforcement of foreign judgments in France are subject to the conditions of regularity of foreign judgments laid down by French case law.
The defendant to the recognition and enforcement of the foreign judgment must therefore argue that one or more of these conditions of regularity have not been met in order to prevent the recognition and enforcement of the judgment.
What injunctive relief is available to defendants (eg, anti-suit injunctions)?
Actions for declaratory judgment are prohibited under French law unless the plaintiff has a lawful interest. Therefore, there is an exception to the recognition and enforcement of foreign judgments through an unenforceability action.
The applicant must immediately take legal action in order to have the court ruling that the foreign judgment may have a negative effect. In Weiller the Supreme Court ruled in favour of a legal claim seeking to deny the effect of a foreign judgment (Cass Civ 1st, January 22, 1951, rev crit DIP 1951.167). This decision has been confirmed by several court decisions.
The procedure is governed by the same rules as for the recognition and enforcement of foreign judgments in the absence of derogatory rules from international treaty.
Recognition and enforcement procedure
What is the formal procedure for seeking recognition and enforcement of a foreign judgment?
The formal procedure for seeking recognition and enforcement of a foreign judgment depends on the scope of the relevant regulation.
Brussels Recast Regulation The recognition and enforcement of civil and commercial judgments rendered by an EU member state and issued from procedures introduced from January 10 2015 are automatic and do not required the prior intervention of a French judge. The claimant must request a European enforcement order certificate from the court that issued the judgment in order to obtain its recognition and enforcement in France.
Once the certificate is issued, it must be sent to the enforcement authority of the member state where the debtor has its residence or assets, along with a copy of the original judgment in favour of the applicant and a translation of the latter. In this scenario, the claimant can take direct enforcement measures and turn to a local bailiff where the decision should be enforced.
Nevertheless, the recognition or enforcement of a foreign judgment can be denied by the French courts on the request of any interested party (for the recognition) or the party against whom enforcement is sought (Articles 45 and 46 of the Brussels Recast Regulation).
An interested party that wishes to challenge the recognition or enforcement of a judgment must initiate contradictory proceedings before either the French first-instance civil court for the refusal of recognition or the enforcement judge for the refusal of enforcement. The court will then assess the criteria of international regularity, as stated by Articles 45 and 46 of the regulation.
For instance, no recognition or enforcement can be granted when the decision was rendered in default of appearance, and the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time as to enable it to arrange its defence. Such protection is once again precluded if the defendant fails to appeal the decision when it is in a position to do so. The request for recognition or enforcement will also be denied if the foreign judgment is irreconcilable with an earlier judgment rendered between the same parties in the addressed member state, another member state or in a third state.
Civil and commercial judgments before January 10 2015, Brussels II Regulation and Lugano Convention This covers the recognition and enforcement of:
- civil and commercial judgments rendered on proceedings initiated before January 10 2015;
- judgments that fall within the scope of the Brussels II Regulation; and
- judgments that fall within the scope of the Lugano Convention.
All of these types of judgment follow the same recognition and enforcement regime, based on the former Brussels I Regulation:
- The recognition of these judgments is automatic and does not require the prior intervention of a French judge. However, any interested party can lodge a recourse against the recognition, claiming that the foreign judgment does not meet the criteria described above and stated by each regulation.
- The enforcement of these judgments requires the filing of an application for a declaration of enforceability before the French first-instance civil court:
- If the judgment falls within the scope of Brussels I Regulation or the Lugano Convention, the declaration of enforceability is mandatory on presentation of a certificate issued by the court of origin.
- If the judgment falls within the scope of Brussels II Regulation, the court will review the international regularity of the judgment.
In both cases, a recourse against the declaration of enforceability can be lodged afterwards before the Court of Appeal by the party against whom the decision is to be enforced.
Recognition and enforcement procedures under French local law With regard to recognition, foreign judgments are recognised by French law without any prior formalities. They benefit from what is called a ‘de plano’ recognition. To prevent any difficulties linked to the substantive requirements defined above, a party can seek the exequatur of the foreign judgment for recognition purposes only.
Regarding enforcement, foreign judgments can be enforced in France only when a judgment of exequatur has been rendered by a French court. This adversarial procedure is introduced before a first-instance civil court by serving a summons. Representation by a lawyer is compulsory.
The claimant can file the proceedings either before the first-instance civil court of the place of the defendant’s residence or the court where the enforcement measure must be undertaken. Traditionally, the First-Instance Civil Court of Paris is the main jurisdiction for exequatur applications, as the judgments rendered by this court in this regard apply throughout France. In other words, any judgment rendered by the First-Instance Civil Court of Paris granting exequatur to a foreign court decision allows the applicant to execute the foreign judicial decision on the entire French territory.
What is the typical timeframe for the proceedings to grant recognition and enforcement?
As explain, the current trend is to ease the circulation of foreign judgments. The recent evolution of the EU regulations demonstrates this effort.
Thus, in cases where the enforcement is not automatic and a procedure has to be initiated, only a few weeks are needed for the applicant to obtain the enforcement from the competent French courts. If such a request is challenged, the litigation over the matter could take between 12 and 18 months. However, in a few cases, where the issues at stake are highly specific, the procedure could take years.
What fees apply to applications for recognition and enforcement of foreign judgments?
The costs that an applicant would have to support for the enforcement procedure are attorneys’ fees, court service fees and bailiff fees. As the decision should be translated into the addressed state’s language, translator costs might also be taken into account.
Must the applicant for recognition and enforcement provide security for costs?
Are decisions on recognition and enforcement subject to appeal?
The decisions that grant or reject the enforcement to foreign judgments can be challenged by the parties (but not third parties).
The appeal against the declaration of enforceability or a rejection of a request for a declaration of enforceability must be brought before the president of the French first-instance civil court, who will rule on the request (Article 509-9 of the Code of Civil Procedure).
How does the enforcing court address other costs issues arising in relation to the foreign judgment (eg, calculation of interest, exchange rates)?
The enforcing court calculates the interest as set out in the decision. The exchange rate applicable on the date on which the decision was enforced will be used.
Enforcement against third parties
To what extent can the courts enforce a foreign judgment against third parties?
The courts can recognise the enforceability of a foreign judgment, but will not enforce it. However, the applicant can apply for enforcement measures based on a ruling in its favour.
Partial recognition and enforcement
Can the courts grant partial recognition and enforcement of foreign judgments?
The courts can either grant or reject an application for recognition and enforcement of a foreign judgment. There are no partial recognition or enforcement judgments.