In the absence of exequatur, a bankruptcy judgment cannot produce any effect of dispossession of the debtor, nor any suspension of individual proceedings in France.
The legal regime for the exequatur of bankruptcy judgments
The legal regime for the exequatur of a bankruptcy judgment depends on the country in which it was rendered. It is necessary to determine whether or not the country in which this judgment was rendered has concluded a bilateral judicial cooperation agreement with France.
In the event that the foreign country has concluded such a convention with France, it will apply. This is, for example, the case for the Principality of Monaco, pursuant to the Franco-Monégasque convention of September 13, 1950, regarding bankruptcy and judicial liquidation (Cass. civ. 1st, July 6, 2010, no. 09-12993).
If the country in which the bankruptcy judgment was rendered has not concluded a bilateral judicial cooperation agreement with France, the common law regime for exequatur applies. It is established by the landmark Cornelissen ruling: “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 against the law; the exequatur judge does not therefore have to verify that the law applied by the foreign judge is that designated by the French conflict of laws rule.” (Cass. Civ. 1st, February 20, 2007, no. 05-14082)
This is, for example, the case for a bankruptcy judgment rendered in the United States (Cass. civ. 1st, January 10, 2018, no. 16-20416: judgment of the Florida Bankruptcy Court).
It should be noted that the European Regulation (EU) no. 1215/2012 of December 12, 2012, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, known as Brussels I bis, excludes bankruptcy from its scope of application in its first article: “2. Are excluded from its application: b) bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings.”
Thus, bankruptcy judgments rendered in European Union countries are subject to the common law exequatur regime (Paris Court of Appeal, March 3, 2011, RG no. 10/08856: bankruptcy judgment rendered by the Tribunal of Bologna).
The same applies to bankruptcy judgments rendered in Switzerland. Indeed, the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters of October 30, 2007, known as the Lugano Convention, provides in its Article 1… French case law is particularly rich regarding cases of exequatur for bankruptcy judgments rendered in Switzerland (Cass. Civ. 1st, October 30, 2006, no. 04-17326: exequatur of a bankruptcy judgment of the District Tribunal of Nyon requested by the Nyon Debt Enforcement and Bankruptcy Office; Cass. Civ. 1st, June 12, 2014, no. 13-12463: exequatur of a bankruptcy judgment of the Geneva Court of First Instance requested by the Geneva Bankruptcy Office; Cass. Civ. 1st, January 28, 2015, no. 14-11976: exequatur requested by the Bankruptcy Office of the Lausanne district).
The procedure for the exequatur of bankruptcy judgments
The application for exequatur of a bankruptcy judgment is introduced by way of a summons (assignation) before the Tribunal de Grande Instance. Representation by a lawyer is mandatory (Article 751 of the Code of Civil Procedure). The summons may be commonly introduced in the interest of the liquidator and the debtor. This procedural practice allows for a significant saving of time in obtaining the exequatur judgment. In this case, the civil Public Prosecutor’s Office (Parquet civil) is summoned as the legitimate adverse party. In the event that the liquidator and the debtor are in conflict, the procedure classically opposes the two parties, one as the plaintiff and the other as the defendant.
The effects of the exequatur of bankruptcy judgments
In the absence of exequatur, a bankruptcy judgment cannot produce any effect of dispossession of the debtor, nor any suspension of individual proceedings in France. This is a constant principle judged with reference to Article 509 of the Code of Civil Procedure, which constitutes the general text regarding the exequatur of foreign judgments (Cass. Civ. 1st, March 24, 1998, no. 96-10171: bankruptcy decision pronounced in England; Cass. Civ. 1st, March 28, 2012, no. 11-10639: liquidation judgment rendered in Connecticut, United States; Cass. Civ. 1st, July 6, 2016, no. 15-15850: bankruptcy judgment rendered in Qatar).
Any type of decision ruling abroad in matters of bankruptcy may receive exequatur, whether it be a judgment or another type of act. Thus, an order rendered by the New York Bankruptcy Court constitutes a bankruptcy decision that can receive exequatur (Cass. Civ. 1st, October 17, 2000, no. 98-19913).