The Paris Court of Appeal rendered a ruling on May 24, 2016, applying the rules for the exequatur of an American judgment in France.
The facts were as follows. A person of French nationality and a person of Paraguayan nationality (one residing in Paris, the other in Italy) had contracted a gambling debt in the amount of 5.2 million dollars to a casino located in Las Vegas.
In 2014, a Nevada court rendered two judgments ordering them to pay this sum to the American company.
Consequently, the American company operating the casino summoned the two debtors before the Tribunal de Grande Instance of Paris so that it would grant exequatur to the two American court decisions (the territorial jurisdiction of this court being established with regard to Article 42, 2° of the Code of Civil Procedure).
In 2015, the Tribunal de Grande Instance of Paris granted exequatur to the two American judgments. The debtor of French nationality appealed the exequatur judgment before the Paris Court of Appeal. The appellant argued that the American decision was contrary to international public policy in that it was not reasoned, on the one hand, that it was rendered by default without him being able to present his defense, on the other hand, and that it disregarded the will of French law to fight against gambling addiction, finally.
It is this last argument that characterizes the singularity of the case. The exequatur in France of a judgment rendered in the United States is, in the absence of a bilateral convention between these two countries, subject to the common law of the Cornelissen jurisprudence (Cass. Civ. 1st, February 20, 2007, n° 05-14082): “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.”
The first plea, relating to the lack of reasoning in the foreign judgment, was rejected: the Court noted that the American magistrate referred to numerous documents in order to make his decision: sworn statements, testimonies, summons, hearing reports, checks, and debt acknowledgments. The Court here makes a classic application of the jurisprudential rule according to which documents capable of serving as an equivalent to the missing reasoning make it possible to compensate for the latter. A principle well-timed when we know that judgments rendered in certain American states can, at times, be devoid of reasoning and more akin to a dispositive part. The second grievance regarding the failure to comply with procedural public policy (impossibility of presenting a defense) was also rejected since it was established that both debtors were regularly summoned to their homes, under the conditions of the Hague Convention of November 15, 1965, on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.
Consequently, the fact that the judgment was rendered by default does not in itself constitute a disregard for procedural public policy. Let us recall that the Court of Cassation today subordinates the admission of the grievance of infringement of procedural public policy to the demonstration that “the interests of a party have been objectively compromised by a violation of the fundamental principles of the procedure” (Cass. Civ. 1st, September 19, 2007, n° 06-17096). The mere fact that a judgment is rendered by default in a foreign country does not justify it being contrary to procedural public policy, provided that the defendant has received service of the summons to appear. The opposite would amount to allowing any defendant to ignore the competence of a foreign court, in disregard of the rules of conflict of jurisdictions.
Finally, the third argument related to a disregard for substantive public policy by the American judgment, due to the nature of the debt: a gambling debt.
We know that refusals of exequatur for disregard of substantive public policy are, in matters of foreign condemnation to pay a debt, extremely rare. One of the only illustrations is the Court of Cassation ruling of December 1, 2010 (n° 09-13303) relating to American punitive damages: “if the principle of a condemnation to punitive damages is not, in itself, contrary to public policy, it is otherwise when the amount awarded is disproportionate with regard to the damage suffered and the breaches of the debtor’s contractual obligations.”
There are many defendants to exequatur who invoke this ruling to argue the excessive amount of a monetary condemnation pronounced abroad. The scope of this decision being in reality limited to the question of punitive damages (whose principle is not called into question, but whose amount can be sovereignly controlled). The control of the type of debt, or its amount, would be equivalent to a review on the merits of the foreign judgment by the exequatur judge. A review whose prohibition is one of the foundations of modern exequatur. The argument raised in order to contest the conformity of the Nevada court judgment with substantive public policy, while astute, therefore had little chance of succeeding. Rejecting the three grounds of appeal, the Paris Court of Appeal therefore, in its ruling of May 24, 2016, confirmed the exequatur judgment of the Tribunal de Grande Instance of Paris, thus ordering the two debtors to pay a debt of 5.2 million dollars to the American gambling company.