Examination of the foreign judgment

Vitiation by fraud

Will the court examine the foreign judgment for allegations of fraud upon the defendant or the court?

According to Luxembourg private international law, the Luxembourg court will not examine the foreign judgment as to its substance. However, the Luxembourg courts can refuse recognition or enforcement of a foreign judgment if it violates Luxembourg public policy or if it was rendered on a fraudulent basis.

Public policy

Will the court examine the foreign judgment for consistency with the enforcing jurisdiction’s public policy and substantive laws?

A foreign judgment may not be recognised or enforced if it violates Luxembourg public policy or any substantive Luxembourg laws. In the proceedings of enforcing a foreign non-EU judgment, Luxembourg private international law will examine the foreign decision if it complies with Luxembourg public policy. In the negative, the Luxembourg district court will not enforce the foreign judgment. A decision is not recognised if its recognition is manifestly contrary to the public policy of the requested member state, in particular to its fundamental principles. The adverb ‘manifestly’ reveals a desire to retain a restrictive conception of the public order. The judge of a requested state may invoke the concept of public policy only in the event that the recognition or enforcement of the decision would unacceptably prejudice the judicial order of the requested state as it would undermine a fundamental principle; the infringement should constitute a manifest violation of a rule of law considered essential in the legal order of the requested state or of a right recognised as fundamental in that legal order (Court of Appeal, 30 June 2011).

According to article 45 of EU Regulation 1215/12, the recognition of a judgment shall be refused if such recognition is manifestly contrary to public policy in the member state addressed.

Conflicting decisions

What will the court do if the foreign judgment sought to be enforced is in conflict with another final and conclusive judgment involving the same parties or parties in privity?

The recognition and enforcement of a foreign judgment may be refused when the foreign judgment is irreconcilable with concurrent proceedings or conflicting judgments involving the same parties or dispute.

If a Luxembourg conflicting domestic judgment already exists, the recognition and enforcement of the foreign judgment would be denied.

Enforcement against third parties

Will a court apply the principles of agency or alter ego to enforce a judgment against a party other than the named judgment debtor?

A person domiciled in a member state may also be sued as a third party in an action on a warranty or guarantee or in any other third-party proceedings, in the court seized of the original proceedings, unless these were instituted solely with the object of removing him or her from the jurisdiction of the court which would be competent in his or her case.

The Luxembourg court can consequently enforce a foreign judgment against third parties.

However, Luxembourg courts do not apply the principles of agency or alter ego. A foreign judgment can only be enforced against the party named as debtor.

Alternative dispute resolution

What will the court do if the parties had an enforceable agreement to use alternative dispute resolution, and the defendant argues that this requirement was not followed by the party seeking to enforce?

According to Luxembourg private international law, the parties to an agreement are free to agree to use alternative dispute resolution (ADR). Under article 1224 of the Code of Civil Procedure (the NCPC), a dispute may be submitted to arbitration if the issue at stake relates to rights of which parties have free disposal. Therefore, disputes involving family law, criminal law or, more broadly, involving public policy, cannot be subject to arbitration. Accordingly, parties who have agreed to use ADR in a contract clause are prevented from bringing an action in a district court. If one party to the ADR brings an action in court in violation of the ADR clause, the other party can contest the jurisdiction of the court. The Luxembourg court would declare the action inadmissible unless the ADR clause is manifestly invalid. Arbitral awards under Luxembourg law have the same legal effect as a court judgment. However, in order to be enforceable, an arbitral award requires an enforcement order issued by the president of the district court of Luxembourg (article 1241 of the NCPC).

The only possibility to challenge an arbitral award is to take an opposition procedure against the order of the president of the district court to have it declared null and void.

Favourably treated jurisdictions

Are judgments from some foreign jurisdictions given greater deference than judgments from others? If so, why?

Luxembourg courts do not give greater defence to foreign judgments from certain foreign jurisdictions.

However, European regulations simplify and facilitate the recognition and enforcement of judgments between the different member states within the EU.

Alteration of awards

Will a court ever recognise only part of a judgment, or alter or limit the damage award?

In conformity with Luxembourg international private law, the applicant can ask for a partial enforcement of foreign judgments (article 685 of the NCPC).According to article 48 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, an applicant may request a declaration of enforceability limited to parts of a judgment. This provision is not included in the later EU Regulation 1215/12.Article 49 of EU Regulation 1215/12 foresees that a foreign judgment that orders a periodic payment by way of a penalty shall be enforceable in the member state in which enforcement is sought only if the amount of the payment has been finally determined by the courts of the member state of origin.

It is consequently not possible to enhance or reduce the amount due in the foreign judgment.

Law stated date

Correct on:

Give the date on which the above content was accurate.

5 July 2020.