Is the applicant for enforcement in France of a foreign court decision subject to the requirement of the possession on French territory, by the debtor of foreign nationality, not domiciled in France, of assets that can make the subject to enforcement measures?
We should be interested in a judgment rendered by the Court of Cassation which comes to address the issue of the exequatur of a foreign decision on French territory.
This case law is interesting because it raises questions about the plaintiff’s interest in bringing an action before the trial and for the benefit of which the foreign decision was made.
In this case, Mr. E of Danish nationality, through a broker, sold a pleasure ship to Mr. S of American nationality.
A dispute having opposed the parts, the salesman seized the Circuit Court of the 17th judicial circuit of the county of Broward, (State of Florida) in order to obtain the payment of the sums sequestrated in the hands of the broker.
The parties having agreed to resort to non-binding arbitration, two awards were made ordering the seller to pay different amounts.
By judgment of February 11, 2010, the American court approved the awards, adding the interest until the execution of the judgment and the cost thereof.
It was in these circumstances that Mr. S seized the French jurisdiction for the purposes of obtaining the enforcement of the decision of the American jurisdiction, with the exception of the condemnation to the payment of punitive damages which are not recognized in French right.
Mr. E raised a number of means to prevent exequatur in France.
He argued that the applicant for exequatur had to justify a born and present interest in seeking recognition in France of a foreign judgment.
Mr E argued that being a Danish national and resident, his heritage was located in Denmark and that he had no assets in France, so that the judgment of the « Circuit Court » of the 17th judicial circuit, County of Broward in Florida, on February 11, 2010, whose exequatur was requested, which ordered him to pay various sums for the benefit of Mr. S could not be the subject of any execution in France.
He also maintained that the enforcement of a foreign decision should be refused in the event of a breach of procedural international public policy, that is to say when the interests of a party were objectively compromised by a violation of the basic procedural principles, such as the adversarial principle.
Mr. E argued that the purpose of the judgment for which enforcement was sought was to certify two awards made, after his withdrawal from the proceedings, on the basis of only elements provided by Mr. S without taking into account the means and evidence that he had himself developed, before withdrawing from the proceedings, in violation of the principle of adversarial proceedings.
Lastly, he argued that the enforcement of a foreign decision should be refused in the event of a breach of procedural international public policy, that is to say when the interests of a party were objectively compromised by a violation of the fundamental procedural principles, such as the right to an effective judicial remedy
Mr. E argued that the judgment of the “Circuit Court” of the 17th judicial circuit, County of Broward in Florida, dated February 11, 2010, the exequatur of which was requested, was intended to homologate two sentences rendered, after its withdrawal of the procedure, on the basis of only elements provided by Mr. S therefore in a non-adversarial manner, and that he could not prevent this homologation and request the holding of new adversarial hearings, failing to have been notified of these awards in regular conditions.
It should be recalled that in the absence of a convention for cooperation in judicial matters between the French Republic and the United States of America, the French judge hearing an application for enforcement must ensure that three conditions are met, taking into account the indirect jurisdiction of the foreign judge based on the attachment of the dispute to the judge seized, compliance with international substantive and procedural public order and the absence of fraud to the law.
The Court of Cassation held that the jurisdiction of the Florida judge was not disputed.
The High Court recalls that Mr. E agreed to participate in the non-binding arbitration procedure, and that he effectively defended himself before retiring.
The Court of Cassation emphasizes that if Mr. E produced two certificates from his attending physician dating from November 2008 and February 2009 mentioning a state of stress and anxiety affecting his sleep and his cognitive functions and contraindicating travel, he declared before the Western High Court, seized of the liquidation proceedings brought against him in Denmark by Mr. S that he « wanted to close the arbitration because he thought it was a waste of time and money that it was a non-binding arbitration and he was certain that Mr. S only wanted to delay the arbitration ”;
He was therefore perfectly capable of continuing this procedure if he wished, that it was a matter of priority and it was therefore by the effect of Mr. E’s choice that the awards were made in his absence.
The Court of Cassation considered that Mr E was therefore sufficiently informed of the legal remedies open to him, especially since the decisions were regularly served on him.
It was therefore right that the Court of Appeal had considered that Mr. S was admissible to request the enforcement of this judgment in France therefore and for this sole reason that this decision is likely to be applied on French territory, without being required to demonstrate the current existence of seizable property in France without otherwise characterizing the interest of the applicant.
The Court of Cassation recalls that the interest in bringing an action exists as soon as the applicant for enforcement is the party to the trial for the benefit of which the foreign decision has been rendered.
It specifies that the request for recognition in France of a foreign decision is not subject to the requirement of the possession on French territory, by the debtor of foreign nationality, not domiciled in France, of assets which can make the subject to enforcement measures.
It considers that Mr. E having been the recipient of the elements of the procedure and having made the personal choice not to continue, the latter can no longer usefully evoke the presence of an annoyance with the international public order procedure.
Article written by Maître Laurent LATAPIE,
Lawyer, Doctor of Law,