Can a foreign commercial creditor enforce, executing in France a decision obtained in another country? Can the debtor object against the fraud on the grounds that the foreign decision could not have been made in France?
It is necessary to look at the ability of a foreign commercial creditor to have a decision obtained in another country executed in France,
This issue addresses the question of the exequatur of a decision that would condemn a person to the payment of a debt that would have been fixed by a foreign jurisdiction and more particularly American.
However, the real difficulty in commercial law, even at the most international level, is not so much to obtain a court decision, but to get it enforced, and in case of a foreign decision to have it enforced. in France, It should be recalled that the exequatur makes it possible to enforce a foreign judgment in French territory and thereby to enforce a decision of foreign law in France,
Where enforcement is not effected through an international convention or an international agreement, exequatur can only be granted if it satisfies a number of conditions and follows a particular procedure.
Three criteria are clearly mentioned in the texts but also in case law.
The French judge must verify:
- The jurisdiction of the foreign judge who rendered the decision that is the subject of a request for exequatur
- compliance with the international public policy of substance and procedure,
- The absence of fraud in the law,
It is in these circumstances that in a judgment dated August 27, 1993, the District Court of Columbia sentenced MX, of Colombian nationality, to pay to NA CORPORATIONS and Colombian companies AV SA , the sum of 3,987,916.66 US dollars, in addition to interest.
What is not nothing,
- X … having settled in France, the companies had it assigned to obtain the exequatur of this decision in order to allow to execute in France the American decision,
By judgment of 1 February 2000, however, the District Court dismissed them,
On the grounds that there was no link attaching the facts in question to the United States and that, in addition, the applicable law was Colombian law;
Preventing foreign companies from executing in France their US decision against their debtor resident in France,
Appeal was lodged and the Court of Appeal of Aix en Provence has given the creditors the right, enabling them to execute in France, notwithstanding the appeal,
However, Mr X has therefore appealed in cassation.
Before the Court of Cassation, Mr. X considered that the judgment of August 27, 1993 by the district court of Columbia District was irregular and that consequently the jurisdiction of the foreign judge was not acquired,
On the ground in particular that the principal plaintiffs were at the time domiciled in ColombiaAccordingly, the creditor did not justify a sufficient connection of the dispute over the District of Columbia, the only signature in that district of an agreement by a company led by MXne could allow the jurisdiction of the US Judge, said creditor could not so run in FranceWill the Court of Appeal then have disregarded the principles governing international jurisdiction?
Mr. X recalled that the exequatur of a foreign judgment can be granted only if the foreign judge applied the law designated by the French rule of conflict or a law leading to an equivalent resultBy granting the exequatur to a US judgment which had applied the American law, in order to allow the creditor to execute in France, without seeking, if the competent law was not the Colombian law of the headquarters of the company, the Court of Appeal had not favored the French rule of conflict,
However, the Court of Cassation is not mistaken,
It recalls that in order to grant exequatur outside any international convention, the French judge must ensure that three conditions are met, namely- the indirect jurisdiction of the foreign judge, based on the connection of the dispute with the judge seized, – compliance with the international public policy of substance and procedure and- the absence of fraud to the law.
The Court of Cassation considered that the District Court of Columbia had retained its international jurisdiction in accordance with the rules of federal civil procedure which gave it jurisdiction to hear applications made against nationals of a foreign state to the extent that the principal defendant himself domiciled in Washington and that the « charges against Mr. X related to facts committed in his business dealings in Washington with the principal defendant and that two of the five plaintiff companies were under US law and domiciled in the United States « .
This jurisprudence is salutary,. It recalls the strict requirement of the three criteria mentioned above to carry out the exequatur of a foreign decision and in this case a US decision, allowing the foreign creditor to execute in France a decision of foreign law, Regarding the criterion of law fraud, we should also look at a judgment of 4 May 2017 which addresses the specific issue of law fraud
This notion is subtle, Master Laurent LATAPIE, as Doctor in Law has also largely addressed this topic in his thesis: The bank support of a company in difficulty after the law of July 26, 2005 « , supported in 2010 to the Faculty of Law of the University of Nice Sophia Antipolis, In this case-law, the question was whether fraud could be obtained by obtaining abroad a decision with a view to invoking it later in France, in order to allow the plaintiff to execute a foreign judgment in France while no French Judge would have made such a decision.
Still, it is the purpose of US law to apply to the substance of the dispute,
It is therefore right that the US company has obtained a decision in the District Court of the District of Columbia
It only remained to execute in France, The exequatur procedure was necessary, Since the three criteria were met, Mr X could not come to address the specific question of the French conflict of laws rule which is a substantive problem that should have been raised in due course.
It is therefore right that the Court of Cassation considers and recalls that to grant exequatur out of any international convention, the French judge must ensure that three conditions are met, namely the indirect jurisdiction of the foreign judge, based on the attachment of the dispute to the judge seized, the conformity with the international public policy of substance and procedure and the absence of fraud to the law;
Thus, the judge of the exequatur does not have to verify that the law applied by the foreign judge is that designated by the rule of conflict of French law,
As a result, foreign creditors may, in the event of a conviction decision obtained in another country, execute a debtor in France provided that the three cumulative criteria specific to the exequatur procedure are respected
Article written by Maître Laurent LATAPIE, Lawyer, Phd,