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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.
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