In French private international law, exequatur is defined as a procedure by which a party requests a French jurisdiction to grant, in France, enforcement to a foreign judicial decision.
Exequatur: procedure for recognition and enforcement in France of a foreign judicial decision
Exequatur comes from the Latin verb exequi and means: let it be executed.
In French private international law, exequatur is defined as a procedure by which a party requests a French jurisdiction to grant, in France, enforcement to a foreign judicial decision.
This exequatur procedure draws its origin from the recognition of judgments between different French provinces in the Middle Ages.
In contemporary law, it concerns the recognition of foreign judgments and foreign arbitral awards in France.
In application of the principle of territoriality, a judicial decision only has effect in the country where it was rendered, although this rule has exceptions.
Therefore, the party having obtained a judgment in a foreign country must resort to the exequatur procedure in order to have this judgment recognized in France and to be able to benefit from the effects attached to it.
Exequatur, and more generally the recognition of foreign judicial decisions, is one of the three components of private international law, these being: conflict of jurisdictions (rules allowing the determination of the national jurisdiction competent to hear an international dispute), conflict of laws (rules allowing the determination of the law applicable to an international dispute), and the recognition and enforcement of foreign judicial decisions (rules stating under which conditions a judicial decision rendered by a foreign jurisdiction or by an arbitral tribunal can be recognized and executed in France).
The procedure for the exequatur of a foreign judgment in France
In France, the exequatur procedure is introduced by the party wishing to obtain it before the Tribunal de Grande Instance.
Traditionally, the Tribunal de Grande Instance of Paris is the main jurisdiction seized with exequatur requests.
Judgments rendered by the Tribunal de Grande Instance of Paris regarding exequatur apply throughout the entire French territory.
In other words, any judgment rendered by the Tribunal de Grande Instance of Paris granting exequatur to a foreign judicial decision allows the party who obtained it to execute this foreign judicial decision throughout the entire French territory.
Representation by a lawyer is mandatory.
The lawyer introduces the exequatur request by serving a summons (assignation) that they have drafted.
A lawyer at the Paris Bar can, for this purpose, intervene not only before the Tribunal de Grande Instance of Paris but also before all French tribunaux de grande instance.
Exequatur is a very active legal procedure.
The substantial number of exequatur procedures introduced in France gives rise to abundant and interesting case law concerning the exequatur regime, depending on the country and the subject matter involved.
The Court of Cassation rendered no fewer than 741 rulings concerning exequatur throughout the year 2013.
The conditions for the exequatur of a foreign judgment in France
The conditions under which a foreign judgment can receive exequatur from the tribunal de grande instance depend on the country in which that judgment was rendered.
It is indeed necessary to distinguish according to whether or not France has concluded a bilateral international convention, known as a “judicial cooperation agreement,” with the country in which the judgment was rendered.
These judicial cooperation agreements set the conditions under which a foreign judgment can be granted exequatur.
In the absence of a judicial cooperation agreement between France and the country concerned, the regime for the exequatur of a foreign judgment is the common law regime, defined by the case law of the French Court of Cassation in the Cornelissen ruling of February 20, 2007.
Historically, the Munzer ruling (Cass. Civ. 1st, January 7, 1964, JCP 64.13590) laid down five conditions for exequatur to be conferred on a foreign judgment:
- The competence of the foreign tribunal that rendered the decision.
- The regularity of the procedure followed before that jurisdiction.
- The application of the competent law according to French conflict rules.
- Conformity with international public policy.
- The absence of fraud to the law.
The Bachir ruling (Cass. Civ. 1st, October 4, 1967, RCDIP 1968.98) reduced the number of exequatur conditions to four, by placing the examination of procedural regularity under the perspective of conformity with international public policy.
From now on, in positive law, since the Cornelissen ruling rendered on February 20, 2007 (no. 05-14082), the First Civil Chamber of the Court of Cassation has removed the condition of the application of the competent law according to French conflict rules.
Three conditions are required today, under common law, for a foreign judgment to receive exequatur:
- “To grant exequatur outside of any international convention, the French judge must ensure that three conditions are met, namely the indirect competence of the foreign judge, based on the connection of the dispute to the court seized, compliance with substantive and procedural international public policy, and the absence of fraud to the law; the exequatur judge does not therefore have to verify that the law applied by the foreign judge is the one designated by the French conflict of laws rule.”
This common law legal regime for exequatur has since been regularly confirmed, for example by the rulings of the Court of Cassation Gazprombank / Jean Lion rendered on January 30, 2013, and of the Paris Court of Appeal Baltiyskiy Bank / Stroïmontage rendered on February 18, 2014.
The practice of exequatur by the firm of Maître David Motte-Suraniti
The exequatur of foreign judicial decisions, both before the Tribunal de Grande Instance of Paris and before any other tribunal de grande instance, has been one of the main activities of Maître David Motte-Suraniti for years.