The exequatur in France of the judgments from the States of Latin America

 

 

Argentina, Brazil and Uruguay are the three South-American States having signed an agreement of legal mutual cooperation with France, as regards exequatur of the judgments given in their respective countries.                                                                                                                                                                                                                       

 

These three conventions are the following ones:

 

-      Argentina: Legal cooperation agreement of July 2nd, 1991.

 

-      Brazil: Convention of legal mutual cooperation in civil matters of May 28th, 1996.

 

-      Uruguay: Convention of legal mutual cooperation in civil and commercial matters of September 16th, 1991.                                                                                                  

 

The exequatur of the judgments from the other States of South America is subjected to the conditions set forth by French case law in the Cornelissen case.                                                                                                                                                                                                                                                                                                                                                                                

 

Argentina

                                                                                                                                                                                                                                      

The judgments given by the Argentina’s tribunals shall satisfy seven conditions in order to receive the exequatur in France:

 

-      1. The decision emanates from a tribunal that has international jurisdiction according to the law of the required State (France).

 

-      2. The decision has res judicata in the State of origin (Argentina) and is suitable for execution; however, in the matters of maintenance obligations, custody charge of a minor or right of visit, the decision can be simply enforceable the State of origin.

 

-      3. The parties were regularly summoned to appear, were represented or, if they were declared failing, the summons was notified regularly to them and in a time that allowed them to be defended.

 

-      4. The decision does not contain anything opposite with the French public order.

 

-      5. A litigation between the same parties, founded on the same facts and having the same object as in the State of origin (Argentina), did not lead to a judgment by the French tribunals on a date former to the date of the decision presented for the exequatur.

 

-      6. A litigation between the same parties, founded on the same facts and having the same object as in the State of origin (Argentina), does not make the object of a procedure before the French tribunals, introduced before the action which led to the decision of which the exequatur is required.

 

-      7. A litigation between the same parties founded on the same facts and having the same object as in the State of origin (Argentina), did not gave a decision in another State on a date former to that of the decision presented to the exequatur and fulfilling the requirements for its recognition in France.                                                                                                       

 

Applicable legal texts

 

Legal cooperation agreement between the Government of the French Republic and the Government of the Argentinean Republic of July 2nd, 1991.

 

Law n° 92-427 of May 9th, 1992 authorizing the approval of the legal cooperation agreement between the Government of the French Republic and the Government of the Argentinean Republic.

 

Decree n° 92-1213 of November 12nd, 1992 for the publication of the legal cooperation agreement between the Government of the French Republic and the Government of the Argentinean Republic, signed in Paris on July 2nd, 1991.                                                                                                                                                                                   

 

Case law

 

By a case dated February 8th, 2005, the Cour de cassation confirmed the exequatur in France of a judgment of a commercial court of Buenos Aires opening a procedure for bankruptcy with regard of the company Aerolineas Argentinas.                                                                                                                                                                                 

 

 

Brazil

 

The judgments given by the Brazilian jurisdictions shall satisfy six conditions in order to receive the exequatur in France:

 

-      1. The decision emanates from a tribunal that has jurisdiction according to the law of the required State (France)

 

-      2. The law applied to the litigation is that indicated by the French conflict of laws rules; however, the law applied can be different from the law indicated by these rules of conflict if the application of one or another law leads to the same result.

 

-      3. The decision has res judicata and is enforceable; however, in the matters of maintenance obligations, custody charge of a minor or right of visit, the decision can be simply enforceable.

 

-      4. The parties were regularly summoned or declared failing.

 

-      5. The decision does not contain anything opposite with the French public order.

 

-      6. A litigation between the same parts, founded on the same facts and having the same object as on the territory of the State where the decision was given (Brazil) : i) is not pending before the French tribunals formerly seized, or ii) did not gave a decision by the French tribunals on a date former to that of the decision presented to the exequatur, or iii) did not gave a decision by another State on a date former to that of the decision presented to the exequatur and fulfilling the requirements for its recognition in France.

 

However, concerning decisions for the guard of a child, these three causes of refusal envisaged can apply only if a time is past: one year between the departure of the child of the State of origin (Brazil) on the territory of which it had its main home and the date of introduction of the procedure of exequatur in France.                                                                        

 

Applicable legal texts

 

Convention of legal mutual cooperation in civil matters between the Government of the French Republic and the Government of the Federative Republic of Brazil of May 28th, 1996.

 

Law n° 99-979 of December 1st, 1999 authorizing the approval of the Convention of legal mutual cooperation in civil matters between the Government of the French Republic and the Government of the Federative Republic of Brazil, signed in Paris on May 28th, 1996.

 

Decree n° 2000-940 of September 18th, 2000 for the publication of the Convention of legal mutual cooperation in civil matters between the Government of the French Republic and the Government of the Federative Republic of Brazil, signed in Paris on May 28th, 1996.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            

Case law

 

A judgment of which a party wishes to be prevailed in France for acts of material execution on the goods or coercion on the people shall receive exequatur, as required by French case law of the Cour de cassation.

 

Concerning the state and the capacity of the people, the principle remains however that the judgments given in these matters profit in France from the full effect: they do not require the exequatur.

 

The Cour de cassation applied these classic principles in a case delivered on June 4th, 2007 and decided that a Brazilian judgment entrusting the guard of one child to the mother and granting to the father a right of visit and lodging in Brazil has a full effect in France.

 

 

 

Uruguay

 

The judgments given by the Uruguayan tribunals shall satisfy five conditions in order to receive the exequatur in France:                                                                                            

 

-      1. The decision emanates from a tribunal that has international jurisdiction according to the law of the required State (France).

 

-      2. The decision cannot make anymore the object of an ordinary appeal in the State of origin (Uruguay) and is enforceable; however, in the matters of maintenance obligations, custody charge of a minor or right of visit, the decision can be simply enforceable.

 

-      3. The parties were regularly summoned, represented or declared failing.

 

-      4. The decision is not obviously contrary with the French public order.

 

-      5. A litigation between the same parts, founded on the same facts and having the same object as on the territory of the State where the decision was given (Uruguay) : i) is not pending before the French tribunals formerly seized, or ii) did not gave a decision by the French tribunals on a date former to that of the decision presented to the exequatur, or iii) did not gave a decision by another State on a date former to that of the decision presented to the exequatur and fulfilling the requirements for its recognition in France.

 

However, concerning decisions for the guard of a child, these three causes of refusal envisaged can apply only if a time is past: eight months between the departure of the child of the State of origin (Uruguay) on the territory of which it had its main home and the date of introduction of the procedure of exequatur in France.                         

 

Applicable legal texts

 

Convention of legal mutual cooperation in civil and commercial matters between the French Republic and the Eastern Republic of Uruguay of September 16th, 1991.

 

Law n° 92-1314 of December 18th, 1992 authorizing the approval of the Convention of legal mutual cooperation in civil and commercial matters between the French Republic and the Eastern Republic of Uruguay of September 16th, 1991.

 

Decree n° 99-663 of July 28th, 1999 for the publication of the Convention of legal mutual cooperation in civil and commercial matters between the French Republic and the Eastern Republic of Uruguay signed in Montevideo on September 16th, 1991.

 

 

 

Guatemala

 

The conditions of the exequatur of the judgments given by the Guatemala’s tribunals are, in the absence of a bilateral convention with France, the conditions set forth by the French case law in the Cornelissen case.

 

Court of Appeals of Paris, March 2nd, 2006. In this case, the Court of Appeals of Paris decides that the authentic act of adoption regularly pronounced in Guatemala produces in France the effects of a plenary adoption.