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| Article title | Recognition and Enforcement of Foreign Judgments in International Family Disputes: World Experience of Unification of Legal Provisions and Some Issues of Court Practice | ||
| Authors |
Doctor of Law, Associate Professor, Judge of the Supreme Court (Kyiv, Ukraine) y.v.chernyak@gmail.com
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| Name of magazine | Legal journal «Law of Ukraine» (Ukrainian version) | ||
| Issue | 6/2020 | ||
| Сторінки | [18-205] | ||
| DOI | https://doi.org/10.33498/louu-2020-06-188 | ||
| Annotation | The point of practical complexity pertaining to recognition and enforcement of a foreign court judgment is that a judgment, as an act of public authority of one State adopted within its jurisdiction, should be recognized and enforced in the territory of another State, which this public authority does not apply to. Today’s international legal treaties which unify the provisions of international civil procedure designated for resolution of family disputes comprise the following two provisions: on the one part, the State assumesthe obligation to recognize and enforce foreign court judgments, being guided by such motives as the need to develop international relations and ensure human rights; on the other part, each State sets certain boundaries for such recognition and enforcement by defining the list of possible grounds upon which recognition and enforcement of a foreign judgment may be refused. The purpose of the article is to determine the current situation with unification of the provisions of the institute of recognition and enforcement of foreign judgments in international family disputes, and to outline the set of principles underlying this institute of law. Special attention is focused on the interpretation and application of the principle of reciprocity and the order public clause based on the analysis of doctrine and judicial practice. The author established that at the level of the Hague children’s conventions, European Union regulations, and taking into account the practice of the European Court of Human Rights, the following principles of today’s institute of recognition and enforcement of foreign court judgments in family law disputes have been unified: finality of court judgments (res judicata) and impossibility of revising a judgment on the merits at the stage of recognition and enforcement in the requested State; reciprocity; a court of the requested State may not revise the actual circumstances based on which the court of the State from which the judgment originates justified its jurisdiction; application of lex fori to the procedure of recognition and enforcement of a foreign court judgment; possibility of partial recognition and enforcement of a foreign court judgment; the need to apply a simple and prompt procedure for recognition and effective measures for enforcement; expanded definition of the category “court judgment” which provides that this category “court judgment” also covers settlement agreements and contracts which are concluded by the parties to alimony obligations and approved by court. The positive effect of the provisions of articles 462 and 471 of the Civil Procedure Code of Ukraine of 2017 is examined from two positions: 1) from the position of the State and development of international legal cooperation, which means a departure from the isolation policy and the intention to accept international and, particularly, European human rights standards; 2) from the standpoint of ordinary citizens of Ukraine – entities to civil, including family, relations, which means an expansion of the possibility for recognizing in Ukraine of judgments delivered by foreign courts, and the possibility to raise the question of recognition and enforcement of Ukrainian courts’ judgments abroad on the terms of reciprocity.
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| Keywords | international civil procedure; international family disputes; foreign court judgments; reciprocity principle; public order; Hague Conventions; European Union regulations | ||
| References |
Bibliography Authored books . Anufrieva L, Mezhdunarodnoe chastnoe pravo [Private International Law], t 3: Transgranichnye bankrotstva. Mezhdunarodnyj kommercheskij arbitrazh. Mezhdunarodnyj grazhdanskij process: uchebnik [Cross-Border Bankruptcy. International Commercial Arbitration. International Civil Procedure: Textbook] (BEK 2001) (in Russian). 2. Cherniak Yu, Unifikatsiia norm mizhnarodnoho tsyvilnoho protsesu z rozghliadu simeinykh sporiv [Unification of the International Civil Procedure Rules for Family Dispute Resolution] (Alerta 2018) (in Ukrainian). 3. Kysil V, Mizhnarodne pryvatne pravo: pytannia kodyfikatsii [Private International Law: Issues of Codification] (Ukraina 2000) (in Ukrainian). 4. Marysheva N, Semejnye otnoshenija s uchastiem inostrancev: pravovoe regulirovanie v Rossii [Family Relationships Involving Foreigners: Legal Regulation in Russia] (Volters Kluver 2007) (in Russian). 5. Shak H, Mezhdunarodnoe grazhdanskoe processual’noe pravo: uchebnik [International Civil Procedure Law: Textbook] (per s nem, BEK 2001) (in Russian). 6. Tsirat G, Mizhnarodnyi tsyvilnyi protses: suchasnyi stan ta perspektyvy mizhnarodnopravovoi unifikatsii [International Civil Procedure: Current Situation and Prospects for International Legal Unification] (Vydavnytstvo Ivanchenka I. S. 2013) (in Ukrainian).
Edited books 7. Biavati P, ‘Is Flexibility a Way to the Harmonization of Civil Procedural Law in Europe?’ in Carpi F and Lupoi M (eds), Essays on transnational and comparative civil procedure (Giappichelli 2001) (in English). 8. Kramer X E, ‘Harmonisation of Provisional and Protective Measures in Europe’ in Storme M (ed), Procedural Laws in Europe. Towards Harmonisation (Apeldoorn 2003) (in English). 9. Beloglavek A, ‘Tendencii v razvitii processual’noj ogovorki o publichnom porjadke (order public) v evropejskom kontekste s 2002 goda’ [‘Trends in the Development of the Order Public Procedural Clause in the European Context Since 2002’] v Civilisticheskaja processual’naja mysl’. Mezhdunarodnyj sbornik nauchnyh statej [Civil Procedural Thought. International Collection of Scientific Articles], vyp 3: Ispolnitel’nyj process [Enforcement Process] (Fursa S red, Izdatel’ Fursa S. Ja. 2014) (in Russian). 10. Klymenko O, ‘Suchasni tendentsii rozvytku v Ukraini instytutu vyznannia ta vykonannia rishennia inozemnoho sudu’ [‘Current Trends in Ukraine in the Development of the Institute of Recognition and Enforcement of Foreign Court Judgments’] v Narysy z mizhnarodnoho pryvatnoho prava [Essays on Private International Law], vyp 5 (Kalakura V red, Alerta 2019) (in Ukrainian). 11. Kornelis H van R, ‘Garmonizacija grazhdanskogo processa v global’nom masshtabe. – Evropejskij grazhdanskij process i ispolnitel’noe proizvodstvo’ [‘Harmonization of Civil Procedure on a Global Scale. – European Civil Procedure and Enforcement Proceedings’] v Sbornik materialov Mezhdunarodnoj nauchno-prakticheskoj konferencii [Collected Materials of International Scientific and Practical Conference] (Valeev D otv red, Statut 2012) (in Russian).
Journal articles 12. Freudenthal M, ‘The Future of European Civil Procedure’ (2003) 7.5 Electronic Journal of Comparative Law <http://www.ejcl.org/ejcl/75/art75-6.html> (accessed: 25.05.2020) (in English). 13. Gottwald P, ‘Comparative Civil Procedure’ (2005) 22 Ritsumeikan Law Review 23–35 (in English). 14. Jantera-Jareborg Maarit, ‘Marriage Dissolution in an Integrated Europe. The 1998 European Union Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters (Brussels II Convention)’ (1999) 1 Yearbook of Private International Law 22 (in English). 15. Storme Marcel, ‘A Single Civil Procedure for Europe: A Cathedral Builders’ Dream’ (2005) 22 Ritsumeikan Law Review 87–100 (in English).
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