The exequatur judge must control the amount of a foreign conviction against public policy (Note on Cass. Civ. 1st, January 30, 2019, no. 17-28555)
The Court of Cassation seems to be continuing its jurisprudence, allowing greater latitude for the exequatur judge to control the conformity of the amount of a conviction set by a foreign judgment with international public policy.
In a ruling dated January 30, 2019, published in the bulletin—on which the Court of Cassation clearly wanted to draw attention—the latter censured a ruling by the Chambéry Court of Appeal regarding the exequatur of a Swiss judgment.
The facts of the case were as follows: A judgment from a Swiss court had ordered a company director to pay compensation for embezzlement to their former associate and to pay them the sum of 36,000 Swiss francs (€32,000) for attorney’s fees.
Seized with an appeal on the exequatur in France of the Swiss judgment, the Chambéry Court of Appeal decided that the conviction proceeded from a sovereign assessment, that its amount must be put into perspective given the evolution of the parity between the euro and the Swiss franc, the higher level of remuneration in Switzerland compared to France, and the lack of elements to assess the importance, complexity, and length of the case. The Chambéry Court of Appeal therefore granted exequatur to the Swiss judgment.
The convicted person filed an appeal in cassation, the third ground of which invoked two texts. On one hand, Article 34 of the Lugano Convention, which states that “a decision shall not be recognized if recognition is manifestly contrary to public policy in the State addressed.” On the other hand, Article 6 of the European Convention on Human Rights on the right to a fair trial, providing that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law, which will decide either on disputes over his civil rights and obligations, or on the merits of any criminal charge against him.”
Based on these two texts, the Court of Cassation quashed the ruling of the Chambéry Court of Appeal. It decided indeed that “the exercise by the foreign judge of their office in equity does not, in principle, prevent the control by the exequatur judge of any potential infringement of international public policy.”
Implicitly stated, and even if it is only a judge of law and not of facts, the Court of Cassation considers that, regarding the litigation that took place before the Swiss jurisdiction, the amount of the conviction pronounced by the latter is contrary to public policy and opposes the granting of exequatur in France to the judicial decision rendered in Switzerland.
This ruling seems to fit into a new orientation that the Court of Cassation would be giving on the control by the exequatur judge of the amount of convictions pronounced abroad.
Until 2018, to our knowledge, the only ruling of the Court of Cassation that had ruled in this direction was the famous decision Cass. Civ. 1st, December 1, 2010, no. 09-13303, which considered that the excessive amount of punitive damages pronounced by an American jurisdiction was contrary to public policy, and thus prevented the exequatur in France of the American judgment.
This latter decision seemed to be isolated, as the Court of Cassation had continuously, before and after it, rejected the argument of the contrariety of a foreign conviction to public policy, by recalling the principle of exequatur in numerous rulings: “if it is for the exequatur judge to ensure the conformity of the decision submitted to them with French international public policy, this control cannot lead to revising on the merits a decision that has acquired the authority of res judicata in the State from which it emanates and irrevocable authority through the exhaustion of legal remedies in that State” (Cass. Civ. 1st, July 4, 2007, no. 05-14918, 05-16585, 05-17433; January 14, 2009, no. 07-17194; March 28, 2013, no. 11-19279).
Very recently, the Court of Cassation decided that the exequatur judge must check whether the interest rate retained in a foreign judgment complies with public policy to refuse the exequatur of judicial decisions rendered in Russia: “it was incumbent upon them, to fully exercise their control under the public policy exception, to research, concretely, whether the rate applied by the Russian decisions was not contrary to international public policy” (Cass. Civ. 1st, October 17, 2018, no. 17-18995).
The rulings of October 17, 2018, and January 30, 2019, likely mark the desire of the Court of Cassation to relax the control by the exequatur judge of the amount of convictions pronounced by a foreign judgment.
It is therefore to be expected that parties to an exequatur procedure will henceforth regularly invoke this argument, with the task for the lower courts to find, file by file, the right balance between this new trend and the principle that must remain: that of the absence of revision on the merits of the foreign judgment due to its sovereignty.