The absence of fraud in the exequatur of a foreign judgment: a strictly applied condition
Among the three common law conditions necessary to obtain the exequatur of a foreign judgment, established by the Cornelissen jurisprudence, the absence of fraud in obtaining the foreign judgment must be interpreted strictly. This is what the Court of Cassation recently recalled in two cases handled by our firm.
Defendants in an exequatur proceeding tend to include more diverse arguments than others in the fraud argument, tending to consider it as what Professor Bernard Audit once referred to as a “catch-all condition,” that is to say, very broad, to oppose the exequatur of a foreign judgment. Consequently, it happens, unfortunately or fortunately depending on which side of the bar one is on, that lower court judges (tribunal de grande instance or court of appeal) reject an exequatur request for alleged fraud to the judgment or to the law, while fraud in exequatur must, according to the Court of Cassation, be assessed strictly.
When the applicant for exequatur fails in the first instance and/or on appeal because the lower court judge has found fraud in the exequatur request, an appeal in cassation constitutes the so-called extraordinary remedy that should be seriously considered.
In a first case in which we requested, for our client, the exequatur of a judgment rendered in Israel, it was refused by the tribunal de grande instance and then by the court of appeal due to an alleged fraud in obtaining the foreign judicial decision. We had encouraged our client to file an appeal in cassation against the appeal ruling, given that the definition of fraud retained by the latter did not correspond to the positive law of the Court of Cassation.
The Court of Cassation quashed the appeal ruling under Article 3 of the Civil Code and Article 509 of the Code of Civil Procedure (the basic text for exequatur procedure):
“In view of Articles 3 of the Civil Code and 509 of the Code of Civil Procedure; Whereas, to reject the request, the ruling holds that it constitutes fraud to obtain a decision abroad with the prospect of invoking it later in France when no French judge would have rendered a decision to that effect; Whereas by so ruling, while the dispute presented characterized links with Israel due to the dual French and Israeli nationality of Mr. X and the latter had not seized the foreign jurisdiction to thwart a decision or a procedure initiated in France, the court of appeal violated the aforementioned texts.” (Cass. Civ. 1st, May 4, 2017, no. 16-13645, published in the bulletin)
Our firm subsequently obtained the exequatur of the Israeli judgment before the referral court of appeal seized after the cassation.
In a second case, the tribunal de grande instance and then the court of appeal had successively rejected our client’s exequatur request concerning an adoption judgment rendered in the Comoros. Seized of an appeal, the Court of Cassation quashed the decision of the court of appeal in its ruling of October 3, 2019 (no. 18-21843):
“In view of Articles 509 of the Code of Civil Procedure and 370-5 of the Civil Code; Whereas, according to the contested ruling and the documents of the procedure, after having obtained the exequatur of a Comorian judgment delegating to her the attributes of parental authority over the child F… Y…, Ms. T… requested the exequatur of a Comorian judgment rendered previously, pronouncing the simple adoption of the same child; Whereas, to reject her request, after stating that Comorian law does not know the institution of adoption as understood by French law, the ruling holds that the Comorian judgment could only produce the effects of a delegation of parental authority and constituted, as a disguised adoption, a fraud to the law; Whereas by so ruling, without characterizing the existence of a fraud to the law which would have consisted for Ms. T…, by exploiting the resources of private international law, in evading the applicable standard, to obtain the benefit of a rule of law to which she could not claim, the court of appeal violated the aforementioned texts.”
In summary, fraud in the exequatur procedure cannot in positive law be retained by the lower courts unless the party obtained a judgment abroad to invoke it subsequently in France when a French court would not have rendered a decision to that effect (fraud to the judgment), or benefited from a law to which they were not entitled (fraud to the law). These two hypotheses are the only ones that the lower court judge can retain to refuse the exequatur of a foreign judgment for fraud.
Apart from these two relatively rare cases of fraud, the control of the exequatur judge will focus on the other two conditions thereof: the indirect international competence of the foreign court, on the one hand, and the respect for public policy by the foreign judgment, on the other hand. In case of any other interpretation of fraud by the lower court judge, an appeal in cassation must be considered in order to win the case.