International Legal Documents
- if such recognition is manifestly contrary to public policy in the Member State, i.e. Belgium; - where the judgment was given in default of appearance, if the defendant was not served with the document which started the proceedings or with an equivalent document in a way as to enable him to arrange for his defense, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so; - if the judgment is irreconcilable with a judgment given between the same parties in the Member State addressed (Belgium); - if the judgment is irreconcilable with an earlier judgment given in another Member State or in a third State involving the same parties, provided that the earlier judgment fulfills the conditions necessary for its recognition in the Member State addressed( Belgium) ; or - if the judgment conflicts with jurisdiction rules in matters where the defendant is policyholder, a insured, an beneficiary of an insurance contract, the injured part, the consumer or the employee, and in matters of exclusive jurisdiction.
The grounds for refusal of enforcement are :
Enforcement means the forced execution of a judgment. A foreign judgment will be given access to the in Belgium available execution measures.
The grounds for refusal of enforcement are the same as for refusal of recognition (see above). Note that a person against whom enforcement is sought in another Member State than the Member State of origin, can stall the procedure by requesting a translation of the judgment if that judgment is not written in language he understand, or an official language of the Member State where he is domiciled. (art 43. 2) Note also that in the event of an application for refusal of enforcement, the Court in the Member State addressed can limit the enforcement proceedings to protective measures, or make the enforcement conditional to a security it shall determine, or suspend the enforcement.
To summarize: Despite the fact that the declaration of enforcement (Exequatur) is no longer required, the person against who enforcement is sought still has possibilities to counter the execution in the Courts of his Member State (i.e Belgium). Hence the grounds for refusal of recognition are limited.A judgment rendered by a non EU-member State Court The regime for the recognition and enforcement of foreign judgments in civil and commercial matters is set out in the Belgian Code of Private Law of July 16, 2004 (“CPIL”). The Code applies to all foreign judgments in civil and commercial matters regardless of their country of origin, in absence of international treaties and European legislation or more specific rules of Belgian law. Procedure for recognition and enforcement Legalization Before a foreign judgment (or authentic instrument) can be produced in Belgium it has to be legalized entirely or in part, in original copy. This will give authentication to the signature and the capacity the document was signed. Legalization takes place in two steps. The foreign judgment needs to legalized in the country of origin through its competent authorities, and next the judgment needs to be legalized in Belgium. In Belgium the legalization is done by a Belgian diplomatic or consular office in the State where the judgment was rendered. Recognition Foreign judgments will be recognized in Belgium without the need any specific procedure. However, the automatic recognition is basically a presumption. An authority confronted with a foreign judgment will still have to verify whether any of the refusal grounds (see below) are present prohibiting recognition. A requesting party should therefore seek to obtain recognition through court. Enforcement Foreign judgments that are enforceable in the State were they are rendered will be declared enforceable in Belgium in accordance with the rules set out in art 23 of CPIL. Therefor an action for declaration of enforceability needs to be filed with the Court of First Instance that has territorial competence, this is normally the court of the domicile or habitual residence of the defendant. Note that a lawyer is required to file the action with the court upon unilateral petition. The requesting party is required to elect domicile in the judicial district of the competent Court, usually at his lawyer’s office. The requesting party needs to produce following documents (art 24):
- a certified copy of the decision, meeting the requirement for authenticity in the country of origin; - In case of a decision by default, the original or a certified copy of the document establishing that the act that introduced the proceeding was served on the defaulting party in accordance with the laws of the State where the decision was rendered. - a document that establishes that the decision is enforceable and has been served to notice in accordance with the laws of the State where the decision was rendered.
Note that this decision is open to appeal within one month after notification of the decision. In that period where an appeal is lodged, only conservatory measures can be taken on the assets of the party against who execution is sought. On what grounds can recognition / enforcement be refused The foreign judgment may only be recognized or declared enforceable if it does not violate the conditions of art 25. It is important to note that the Belgian courts are not allowed to review the foreign judgment on the merits of the case. These grounds are: 1. Manifest incompatibility with Belgian Public Policy. The result of the recognition / enforceability may not be against the moral, political and economic order of Belgium. 2. The rights of defense may not be violated. 3. The only intention was to evade the laws of the State designated by the CPIL in matters where parties cannot freely dispose of their laws. 4. If the judgment would still be open to an ordinary recourse in the Country where it was rendered. 5. If the judgment is incompatible with a Belgian judgment or an earlier foreign judgment that can be recognized in Belgium. 6. If there is a claim pending in a Belgian court between the same parties and with the same cause. 7. If the Belgian court has exclusive jurisdiction over the claim. 8. If the foreign court has jurisdiction only because of the presence of the defendant or the assets located in the State of that court, but without any direct relation to the dispute. 9. If the recognition or enforceability would be contrary to grounds for refusal in very specific matters, such as the change of name, foreign divorce based on the will of the husband, adoption, intellectual property, legal entities, insolvency. Note that in case of urgency, a conservatory attachment can be obtained. The existence of a foreign judgment will be sufficient in order have assets seized, without prior intervention of a Belgian judge. 1. Rules on the Service abroad of Judicial Documents The service abroad of a Belgian judgment must be made in application of the Hague Convention on “the service abroad of judicial and extrajudicial documents in civil and commercial matters” (Concluded 15 November 1965) Hereunder follow the relevant rules : Article 2 Each Contracting State shall designate a Central Authority which will undertake to receive requests for service coming from other Contracting States and to proceed in conformity with the provisions of Articles 3 to 6. Each State shall organise the Central Authority in conformity with its own law. Article 3 The authority or judicial officer competent under the law of the State in which the documents originate shall forward to the Central Authority of the State addressed a request conforming to the model annexed to the present Convention, without any requirement of legalisation or other equivalent formality. The document to be served or a copy thereof shall be annexed to the request. The request and the document shall both be furnished in duplicate. Article 4 If the Central Authority considers that the request does not comply with the provisions of the present Convention it shall promptly inform the applicant and specify its objections to the request. Article 5 The Central Authority of the State addressed shall itself serve the document or shall arrange to have it served by an appropriate agency, either – a) by a method prescribed by its internal law for the service of documents in domestic actions upon persons who are within its territory, or b) by a particular method requested by the applicant, unless such a method is incompatible with the law of the State addressed. Subject to sub-paragraph (b) of the first paragraph of this Article, the document may always be served by delivery to an addressee who accepts it voluntarily. If the document is to be served under the first paragraph above, the Central Authority may require the document to be written in, or translated into, the official language or one of the official languages of the State addressed. That part of the request, in the form attached to the present Convention, which contains a summary of the document to be served, shall be served with the document. Article 6 The Central Authority of the State addressed or any authority which it may have designated for that purpose, shall complete a certificate in the form of the model annexed to the present Convention. The certificate shall state that the document has been served and shall include the method, the place and the date of service and the person to whom the document was delivered. If the document has not been served, the certificate shall set out the reasons which have prevented service. The applicant may require that a certificate not completed by a Central Authority or by a judicial authority shall be countersigned by one of these authorities. The certificate shall be forwarded directly to the applicant. Ratification of the Hague Convention The status of this convention conventions shows that both Belgium and Egypt have signed (S) and ratified (R/A) the Convention, that reciprocally applies in both legislations : The Competent Central Authority as mentioned under article 2 of the Convention in Egypt is the Ministry of Justice. In casu, the Belgian judgment rendered in the case Naamloze Vennootschap JOS VANNESTE / EL WADI-VANNESTE LINEN SPINNING S.A.E. Registration number AR 1016/2007 rendered by the Commercial Court of Kortrijk on May 3, 2007 was on request of a Belgian Judicial Officer (Bailiff) sent to the Egyptian Ministry of Justice. The Belgian Bailiff forwarded the Judgement on June 22, 2007, to the Ministère de la Justice, Service de l’assistance judiciaire internationale, Magles El Saeb St., Wezarte Al Adl, Le Caire, Egypt. The Epyptian Ministry of Justice has on its turn and in application of its appropriate agency requested a Bailiff in Belkas, Alaa ElHaddad, to serve the Judicial Document to El Wadi Vanneste Linen Spinning. This Bailiff served the judgement to El Wadi Vanneste Linen Spinning on January 2 and on January 14, 2008. 2. With respect to the final judgement Pursuant to art 1051 of the Belgian Judicial Code, the delay for lodging appeal against a judgment is of 1 month after service of the judgement. This delay of 1 month is increased with 80 days if the person to whom the judgement is served resides outside the E.U. Once this delay is passed the judgement is final, and no legal action against it will be allowed. The Belgian judgment of May 3, 2007 was served on El Wadi Vanneste Linen Spinning on January 2 and on January 14, 2008. As the time to appeal has lapsed, the judgment has become final and enforceable. No appeal nor objection can be made against it. 3. With respect the execution of a foreign judgment As Egypt is not a party of any bilateral Convention or Treaty providing for the routine of registration and enforcement between states, the courts of most states will accept jurisdiction to hear cases for the recognition and enforcement of judgments awarded by the courts of another state if the defendant or relevant assets are physically located within their territorial boundaries. Therefore the holder of a Belgian Judgment may file suit before a competent court in Egypt, which will determine whether to give effect to the foreign judgment. Whether recognition (Exequatur) will be given is determined by the lex fori, i.e. the local law. The following issues are generally considered: Whether the foreign court properly accepted personal jurisdiction over the defendant; Whether the defendant was properly served with notice of the proceedings and given a reasonable opportunity to be heard which raises general principles of natural justice and will frequently be judged by international standards (hence, the rules for service on a non-resident defendant outside the jurisdiction must match general standards and the fact that the first instance court's rules were followed will be irrelevant if the international view is that the local system is unjust); Whether the proceedings were tainted with fraud; and Whether the judgment offends the public policy of the local state. Obviously I cannot comment further on the Execution of the Belgian Judgment as this is regulated by domestic – be it international – private law. Please don’t hesitate to contact me for further discussion.