The enforcement of foreign judgments in France: the exequatur
Definition of the exequatur in French law
The exequatur is, in French private international law, a procedure by which a party asks to a French court to recognize and give the enforcement to a foreign legal decision like a judgment, a ruling or an arbitral award, in order that this foreign legal decision can be used in France.
Indeed, pursuant to the principle of territoriality, the rule is that a legal decision has effect only in the country where it was delivered.
Consequently, the party who obtains a judgment in a country shall, in France, use the procedure of the exequatur in order that this foreign judgment can be recognized and enforced in the French territory.
The exequatur, and more generally the recognition of the foreign legal decisions, is one of the three components of the private international law: the conflict of jurisdictions, the conflict of laws and the recognition of the foreign judgments.
The procedure of exequatur of the foreign judgments in France
In France, the procedure of exequatur is introduced before the tribunal de grande instance, which is the court of original jurisdiction in the French legal system.
The representation by a French attorney at law (avocat) is, like any procedure before the tribunal de grande instance, obligatory. The French attorney writes a summons (assignation) in order to introduce the procedure of exequatur before the tribunal.
The Tribunal de Grande Instance of Paris is, in France, the tribunal before which the requests of exequatur are the most introduced.
The French tribunals and courts very regularly render decisions granting, or rejecting, the exequatur of a foreign legal decision.
The case law of the French Cour de cassation (the French supreme judicial court) about the exequatur is essential. In 2014, 32 cases have been rendered by this Court concerning the enforcement of foreign judgments in France, rulings and arbitral awards, and 80 cases by the Court of appeals of Paris.
The conditions of the enforcement of foreign judgments in France
The arbitral awards can receive the exequatur in France if they satisfy to the conditions set forth by the New York Convention of June 10th, 1958.
The conditions of the exequatur of a legal decision, like a judgment or a ruling, in France depend on the country in which this decision has been rendered.
France has signed bilateral conventions with an important number of States. These international conventions, generally known as “conventions of mutual judicial cooperation”, set forth the conditions under which a foreign judgment can receive the enforcement in France.
In the absence of a bilateral agreement of cooperation between France and a State, the conditions of the exequatur of a foreign judgment are set forth by the case law of the Cour de cassation, lastly in the important Cornelissen case of February 20th, 2007.
Historically, since the Munzer case (Civ. 1st, January 7th, 1964, JCP 64.13590), five conditions were required in order that the exequatur could be granted to a foreign judgment: the jurisdiction of the foreign tribunal which delivered the decision, the regularity of the procedure followed before this tribunal, the application of the correct law according to the French rules of conflict of laws, the conformity to the international public order and the absence of fraud to the law.
The Bachir case (Civ. 1st, October 4th, 1967, RCDIP 1968.98) quickly brought the number of conditions of the exequatur to four, by placing the examination of the regularity of the procedure under the angle of the conformity to the international public order.
In a Cornelissen case rendered on February 20th, 2007 (n° 05-14082), the First Civil Chamber of the Cour de cassation removed the condition of the application of the correct law according to the French rule of conflict of laws, and set forth the following principle:
“ To grant the exequatur out of any international convention, the French judge has to control that three conditions are fulfilled: the indirect jurisdiction of the foreign judge, based on the link of the litigation with the judge, the conformity with the legal and procedural international public order and the absence of fraud to the law; the judge of the exequatur does not have to check that the law applied by the foreign judge is the one designated by the French rule of conflict of laws. ”
This case today defines the three conditions required for the exequatur of a foreign judgment. The rule is regularly confirmed, lastly in the cases of the Cour de cassation Gazprombank / Jean Lion rendered on January 30th, 2013, and of the Court of appeals of Paris Baltiyskiy Bank/ Stroïmontage rendered on February 18th, 2014.