Keywords

Summary



Keywords

1. Convention on Jurisdiction and the Enforcement of Judgments - Recognition and enforcement of judgments - Grounds for refusal - Contrary to the public policy of the State in which enforcement is sought - Assessment by the court before which enforcement is sought - Limits - Review by the Court

(Convention of 27 September 1968, Art. 27(1))

2. Convention on Jurisdiction and the Enforcement of Judgments - Recognition and enforcement of judgments - Grounds for refusal - Contrary to the public policy of the State in which enforcement is sought - Jurisdiction of the original court founded on the nationality of the victim of an offence - Account taken by the court before which enforcement is sought - Not permissible

(Convention of 27 September 1968, Art. 27(1))

3. Convention on Jurisdiction and the Enforcement of Judgments - Recognition and enforcement of judgments - Grounds for refusal - Contrary to the public policy of the State in which enforcement is sought - Definition

(Convention of 27 September 1968, Art. 27(1)

4. Convention on Jurisdiction and the Enforcement of Judgments - Recognition and enforcement of judgments - Grounds for refusal - Contrary to the public policy of the State in which enforcement is sought - Defendant prosecuted for an intentional offence - Refusal of the original court to allow the defendant to have his defence presented unless he appeared in person - Account taken by the court before which enforcement is sought - Whether permissible

(Convention of 27 September 1968, Art. 27(1) and Protocol, Art. II)

Summary

1. While the Contracting States in principle remain free, by virtue of the proviso in Article 27, point 1, of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, to determine, according to their own conceptions, what public policy requires, the limits of that concept are a matter for interpretation of the Convention. Consequently, while it is not for the Court to define the content of the public policy of a Contracting State, it is none the less required to review the limits within which the courts of a Contracting State may have recourse to that concept for the purpose of refusing recognition to a judgment emanating from a court in another Contracting State.

( see paras 22-23 )

2. The court of the State in which enforcement is sought cannot, with respect to a defendant domiciled in that State, take account, for the purposes of the public-policy clause in Article 27, point 1, of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, of the fact, without more, that the court of the State of origin based its jurisdiction on the nationality of the victim of an offence.

( see para. 34 and operative part )

3. Recourse to the public-policy clause in Article 27, point 1, of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters can be envisaged only where recognition or enforcement of the judgment delivered in another Contracting State would be at variance to an unacceptable degree with the legal order of the State in which enforcement is sought inasmuch as it infringes a fundamental principle. In order for the prohibition of any review of the foreign judgment as to its substance to be observed, the infringement would have to constitute a manifest breach of a rule of law regarded as essential in the legal order of the State in which enforcement is sought or of a right recognised as being fundamental within that legal order.

( see para. 37 )

4. Recourse to the public-policy clause in Article 27, point 1, of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters must be regarded as being possible in exceptional cases where the guarantees laid down in the legislation of the State of origin and in the Convention itself have been insufficient to protect the defendant from a manifest breach of his right to defend himself before the court of origin, as recognised by the European Convention on Human Rights. Consequently, Article II of the Protocol annexed to the Convention, which recognizes the right of persons domiciled in one Contracting State, who are being prosecuted in the criminal courts of another Contracting State of which they are not nationals, to have their defence presented even if they do not appear in person only where the offence in question was not intentionally committed, cannot be construed as precluding the court of the State in which enforcement is sought from being entitled, with respect to a defendant domiciled in that State and prosecuted for an intentional offence, to take account, in relation to the public-policy clause in Article 27, point 1, of the fact that the court of the State of origin refused to allow the defendant to have his defence presented unless he appeared in person.

( see paras 44-45 and operative part )