Agrégateur de flux

Real Madrid Club de Fútbol
Espace de liberté, sécurité et justice
Liberté d’expression : l’exécution d’un jugement condamnant un journaliste et un éditeur de presse au paiement de dommages-intérêts doit être refusée pour autant qu’elle viole la liberté de la presse

Commission / Front Polisario
Relations extérieures
Sahara occidental : les accords commerciaux UE-Maroc de 2019 en matière de pêche et de produits agricoles, auxquels le peuple du Sahara occidental n’a pas consenti, ont été conclus en méconnaissance des principes de l’autodétermination et de l’effet relatif des traités

Confédération paysanne (Melons et tomates du Sahara occidental)
Rapprochement des législations
Information des consommateurs : l’étiquetage des melons et des tomates récoltés au Sahara occidental doit mentionner ce territoire, et non le Maroc, en tant que pays d’origine

Bezirkshauptmannschaft Landeck (Tentative d’accès aux données personnelles stockées sur un téléphone portable)
L’accès de la police aux données contenues dans un téléphone portable n’est pas nécessairement limité à la lutte contre la criminalité grave

Lituanie / Parlement et Conseil (Paquet mobilité - Détachement et temps de travail)
Transport

La Cour confirme largement la validité du Paquet mobilité

The Hague Academy of International Law has made known the programme of the summer course of Private International Law of 2025. The course will be opened by Linda Silberman (Clarence D. Ashley Professor Emerita at New York University School of Law) with a lecture on Cooperation and Communication in Private International Law. The general course, […]

I. Introduction

It is widely acknowledged that the recognition and enforcement of foreign judgments depend, first and foremost, on whether the foreign court issuing the judgment was competent to hear the dispute (see Béligh Elbalti, “The Jurisdiction of Foreign Courts and the Enforcement of Their Judgments in Tunisia: A Need for Reconsideration”, 8 Journal of Private International Law 2 (2012) 199). This is often referred to as “indirect jurisdiction,” a term generally attributed to the renowned French scholar Bartin. (For more on the life and work of this influential figure, see Samuel Fulli-Lemaire, “Bartin, Etienne”, in J. Basedow et al. (eds.), Encyclopedia of Private International Law – Vol. I (2017) 151.)

Broadly speaking, indirect jurisdiction refers to the jurisdiction of the foreign court in the context of recognizing and enforcing foreign judgments. Concretely, the court being asked to recognize and enforce a foreign judgment evaluates whether the foreign court had proper jurisdiction to hear the dispute. The term “indirect” distinguishes this concept from its legal opposite: direct jurisdiction. Unlike indirect jurisdiction, direct jurisdiction refers to the authority (international jurisdiction) of a domestic court to hear and adjudicate a dispute involving a foreign element (see Ralf Michaels, “Some Fundamental Jurisdictional Conceptions as Applied in Judgment Conventions,” in E. Gottschalk et al. (eds.), Conflict of Laws in a Globalized World (2007) 35).

While indirect jurisdiction is universally admitted in national legislation and international conventions on the recognition and enforcement of foreign judgments, the standard based on which this requirement is examined vary at best running the gamut from a quite loose standard (usually limited only to the examination of whether the dispute fall under the exclusive jurisdiction of the requested court as legally determined in a limitative manner), to a very restrictive one (excluding the indirect jurisdiction of the rendering court every time the jurisdiction of the requested court – usually determined in a very broad manner – is verified). The UAE traditionally belonged to this latter group (for a comparative overview in MENA Arab Jurisdictions, see Béligh Elbalti, “Perspective of Arab Countries,” in M. Weller et al. (eds.), The 2019 HCCH Judgments Convention – Cornerstones, Prospects, Outlook (2023) 187-188; Idem “The Recognition of Foreign Judgments as a Tool of Economic Integration – Views from Middle Eastern and Arab Gulf Countries, in P Sooksripaisarnkit and S R Garimella, China’s One Belt One Road Initiative and Private International Law (2018) 226-229). Indeed, despite the legal reform introduced in 2018 (see infra), UAE courts have continued to adhere to their stringent approach to indirect jurisdiction. However, as the case reported here shows this might no longer be the case. The recent Dubai Supreme Court’s decision in the Appeal No. 339/2023 of 15 August 2024 confirms a latent trend observed in the UAE, particularly in Dubai, thus introducing a significant shift towards the liberalization of the recognition and enforcement requirements. Although some questions remain as to the reach of this case and its consequences, it remains a very important decision and therefore warrants attention.

 

II. Facts

The summaries of facts in UAE courts’ decisions are sometimes sparse in details. This one particularly lacks the information necessary to fully understand the case.

What can be inferred from the description of facts in the decision is that the dispute involved two Polish parties, a company as a plaintiff (hereafter referred to as “X”) and a seemingly a natural person as a defendant (hereafter referred to as “Y”) who has his “residence [iqamah]” in Dubai.

X was successful in the action it brought against Y in Poland and obtained a judgment ordering the latter to pay a certain amount of money. Later, X sought to enforce the Polish judgment in Dubai.

X’s enforcement petition was first admitted by the Execution Court of Dubai. On appeal, the Dubai Court of Appeal overturned the enforcement order on the ground that the international jurisdiction over the dispute lied with Dubai courts since Y had his “residence” in Dubai. Dissatisfied, X filed an appeal before the Dubai Supreme Court.

Before the Supreme Court, X argued that Y’s residence in the UAE does not prevent actions from being brought against him in his home country, where the “event [waqi’a]” giving rise to the dispute occurred, particularly since both parties hold the same nationality. In addition, X claimed that it was not aware that Y’s residence was in the UAE.

 

III. The Ruling

The Supreme Court admitted the appeal and overturned the appealed decision with remand.

In its ruling, and after recalling the basic rules on statutory interpretation, the Supreme Court held as follows:

“According to Article 85 paragraph [……] of the Executive Regulation of the Civil Procedure Act (issued by Cabinet Decision No. 57/2018,[i] applicable to the case in question), [……], “enforcement shall not be ordered unless the following is verified: “UAE courts do not have exclusive jurisdiction over the dispute [……], and that the foreign rendering court had jurisdiction according to its own laws.”

“This clearly indicates that the legislator did not allow enforcement orders to be granted [……] unless UAE courts do not have exclusive jurisdiction over the dispute in which the foreign judgment to be declared enforceable was rendered. Therefore, in case of concurrent jurisdiction between UAE courts and the foreign rendering court, and both courts are competent to hear the dispute, this does not, by itself, prevent the granting of the enforcement order. This marks a departure from the previous approach prior to the aforementioned Executive Regulation, where, under the provisions of Article 235 of Federal Act on Civil Procedure No. 11/1992,[ii] it was sufficient to refuse the enforcement of a foreign judgment if the UAE courts were found to have jurisdiction over the dispute—even if their jurisdiction was not exclusive. [This continued to be the case until] the legislator intervened to address the issue of the jurisdiction that is exclusive to UAE courts [as the requested State] and concurrent jurisdiction that shared the foreign rendering court whose judgment is sought to be enforced [in UAE]. [Indeed,] the abovementioned 2018 Executive Regulation resolved this issue by clarifying that what prevents from declaring a foreign judgment enforceable is [the fact that] UAE courts are conferred exclusive jurisdiction over the dispute in which the foreign judgment was rendered. This was reaffirmed in [……] in [the new] Article 222 of the Civil Procedure Law issued by Federal Decree-Law No. 42 of 2022,[iii] which maintained this requirement [without modification].

[…] the appealed decision departed from this point view, and overturned the order declaring the foreign judgment in question enforceable on the ground that Y resides UAE, which grants jurisdiction to Dubai courts over the dispute […], despite the fact that [this] basis [of jurisdiction] referred to by the appealed decision [i.e. – the defendant’s residence in the UAE] does not grant exclusive jurisdiction to UAE courts to the exclusion of the foreign rendering court’s jurisdiction. Therefore, the ruling misapplied the law and should be overturned.” (underline added)

 

IV. Analyses

 The conclusion of the Dubai Supreme Court must be approved. The decision provides indeed a welcomed, and a much-awaited clarification regarding what can be considered one of the most controversial requirements in the UAE enforcement system. In a previous post, I mentioned indirect jurisdiction as one of the common grounds based on which UAE courts have often refused to recognize an enforce foreign judgments in addition to reciprocity and public policy.[iv] This is because, as explained elsewhere (Elbalti, op. cit), the UAE has probably one of the most stringent standard to review a foreign court’s indirect jurisdiction.

 

1. Indirect jurisdiction – Standard of control

The standard for recognizing foreign judgments under UAE law involves three layers of control (former article 235 of the 1992 FACP). First, UAE courts must not have jurisdiction over the case in which the foreign judgment was issued(former article 235(2)(a) first half of the 1992 FACP). Second, the foreign court must have exercised jurisdiction in accordance with its rules of international jurisdiction (former article 235(2)(a) second half of the 1992 FACP). Third, the foreign court’s jurisdiction must align with its domestic law, which includes both subject-matter and territorial jurisdiction, as interpreted by the court (former Article 235(2)(b) of the 1992 FACP).

 

a) Traditional (stringent) position under the then applicable provisions

 The interpretation and application of the first rule have been particularly problematic as UAE courts. The courts have, indeed, often rejected foreign courts’ indirect jurisdiction when UAE jurisdiction can be justified under the expansive UAE rules of direct jurisdiction (former articles 20 to 23 of the 1992 FACP), even when the foreign court is validly competent by its own standards (Dubai Supreme Court, Appeal No. 114/1993 of 26 September 1993 [Hong Kong judgment in a contractual dispute – defendant’s domicile in Dubai]). Further complicating the issue, UAE courts tend to view their jurisdiction as mandatory and routinely nullify agreements that attempt to derogate from it (article 24 of the 1992 FACP, current article 23 of the 2022 FACP. See e.g., Federal Supreme Court, Appeals No. 311 & 325/14 of 20 March 1994; Dubai Supreme Court, Appeals No. 244 & 265/2010 of 9 November 2010; Abu Dhabi Supreme Court, Appeal No. 733/2019 of 20 August 2019).

 

b) Case law application

While there are rare cases where UAE courts have accepted the indirect jurisdiction of a foreign court, either based on the law of the rendering state (see e.g., Abu Dhabi Supreme Court, Appeal No. 1366/2009 of 13 January 2010) or by determining that their own jurisdiction does not exclude foreign jurisdiction unless the dispute falls under their exclusive authority (see e.g., Abu Dhabi Supreme Court, Appeal No. 36/2007 of 28 November 2007), the majority of cases have adhered to the traditional restrictive view (see e.g., Federal Supreme Court, Appeal No. 60/25 of 11 December 2004; Dubai Supreme Court, Appeal No. 240/2017 of 27 July 2017 ; Abu Dhabi Supreme Court, Appeal No. 106/2016 of 11 May 2016). This holds true even when the foreign court’s jurisdiction is based on a choice of court agreement (see e.g., Dubai Supreme Court, Appeal No. 52/2019 of 18 April 2019). Notably, UAE courts have sometimes favored local interpretations over international conventions governing indirect jurisdiction, even when such conventions were applicable (see e.g., Dubai Supreme Court, Appeal No. 468/2017 of 14 December 2017; Abu Dhabi Supreme Court, Appeal No. 238/2017 of 11 October 2017. But contra, see e.g., Dubai Supreme Court, Appeal No. 87/2009 of 22 December 2009; Federal Supreme Court, Appeal 5/2004 of 26 June 2006).

 

2. The 2018 Reform and its confirmation in 2022

The 2018 reform of the FACP introduced significant changes to the enforcement of foreign judgments, now outlined in the 2018 Executive Regulation (articles 85–88) and later confirmed in the new 2022 FACP (articles 222~225). One of the key modifications was the clarification that UAE courts’ exclusive jurisdiction should only be a factor when the dispute falls under their exclusive authority (Art. 85(2)(a) of the 2018 Executive Regulation; article 222(2)(a) of the new 2022 FACP). While courts initially continued adhering to older interpretations, a shift toward the new rule emerged, as evidenced by a case involving the enforcement of a Singaporean judgment (which I previously reported here in the comments). In this case, Dubai courts upheld the foreign judgment, acknowledging that their jurisdiction, though applicable, was not exclusive (Dubai Court of First Instance, Case No. 968/2020 of 7 April 2021). The Dubai Supreme Court further confirmed this approach by dismissing an appeal that sought to challenge the judgment’s enforcement (Appeal No. 415/2021 of 30 December 2021). This case is among the first to reflect a new, more expansive interpretation of UAE courts’ recognition of foreign judgments, aligning with the intent behind the 2018 reform.

 

3. Legal implications of the new decision and the way forward

The Dubai Supreme Court’s decision in the case reported here signifies a clear shift in the UAE’s policy toward recognizing and enforcing foreign judgments. This ruling addresses a critical issue within the UAE’s enforcement regime and aligns with broader trends in global legal systems (see Béligh Elbalti, “Spontaneous Harmonization and the Liberalization of the Recognition and Enforcement of Foreign Judgments” 16 Japanese Yearbook of Private International Law (2014) 273). As such, the significance of this development cannot be underestimated.

However, there is a notable caveat: while the ruling establishes that enforcement will be granted if UAE courts do not have exclusive jurisdiction, the question remains as to which cases fall under the UAE courts’ exclusive jurisdiction. The 2022 FACP does not provide clarity on this matter. One possible exception can be inferred from the 2022 FACP’s regulation of direct jurisdiction which confers broad jurisdiction to UAE courts, “except for actions relating to immovable located abroad” (article 19 of the 2022 FACP). Another exception is provided for in Article 5(2) of the Federal Act on Commercial Agencies,[v] which subjects all disputes regarding commercial agencies in UAE to the jurisdiction of the UAE courts (see e.g., Federal Supreme Appeal No. 318/18 of 12 November 1996).

Finally, one can question the relevance of the three-layer control of the indirect jurisdiction of foreign courts, particularly regarding the assessment of whether the foreign court had jurisdiction based on its own rules of both domestic and international jurisdiction. It seems rather peculiar that a UAE judge would be considered more knowledgeable or better equipped to determine that these rules were misapplied by a foreign judge, who is presumably well-versed in the legal framework of their own jurisdiction. This raises concerns about the efficiency and fairness of such a control mechanism, as it could lead to inconsistent or overly stringent standards in evaluating foreign judgments. These requirements are thus called to be abolished.

 

———————————————

[i] The 2018 Executive Regulation Implementing the 1992 Federal Act on Civil Procedure (Cabinet decision No. 57/2018 of 9 December 2018, as subsequently amended notably by the Cabinet Decision No.75/2021 of 30 August 2021; hereafter referred to as “2018 Executive Regulation”.)

[ii] The 1992 Federal Act on Civil Procedure (Federal Law No. 11/1992 of 24 February 1992, hereafter “1992 FACP”).

[iii] The 2022 Federal Act on Civil Procedure (Federal Legislative Decree No. 42/2022 of 30 October 2022). The Act abolished and replaced the 2018 Executive Regulation and the 1992 FACP (hereafter “2022 FACP”).

[iv] However, since then, there have been subsequent developments regarding reciprocity that warrant attention as reported here.

[v] Federal Law No. 3/2022 of 13 December 2022 regulating Commercial Agencies, which repealed and replaced the former Federal Law No. 18/1982 of 11 August 1981.

Madalena Perestrelo de Oliveira (University of Lisbon) and António Garcia Rolo (University of Lisbon) edited Decentralised Autonomous Organisation (DAO) Regulation – Principles and Perspectives for the Future with Mohr Siebeck. The Lisbon Centre for Research in Private Law (CIDP) launched the Lisbon DAO Observatory to address legal challenges surrounding decentralised autonomous organisations (DAOs) and to […]

(This post was drafted by Zhang Yong, a PhD student in the University of Macau and revised by Guangjian Tu)

The Annual Inter-regional and International Family Law Forum of Chinese Society of Private International Law was held on September 21, 2024 in Everwin Law Office, Guangzhou. Scholars, practitioners and notaries from all over the country working in the field came together to discuss the relevant issues. After the opening ceremony chaired by Prof. Guangjian Tu from the University of Macau, keynote speeches were delivered: 1, Prof. Yong Gan, School of Law of Wuhan University, who is a member of the Expert Group, introduced the progress of the Expert Group’s work on the Parentage/Surrogacy Project in the Hague Conference on Private International Law; 2, Prof. Faqiang Yuan, School of International Law of East China University of Political Science and Law, shared his research article titled “Annual Report on the Development of Rule of Law in the Field of Family Affairs: Domestic and Abroad in 2022-2023″.

In the parallel sessions, participants had heated debates and discussions on new developments in foreign-related family law in the Mainland China, foreign-related and Hong Kong and/or Macao-related marital property relations and agreements, parentage and maintenance support, recognition and enforcement of inter-regional marriage and family judgments, foreign-related and Hong Kong and/or Macao-related inheritance, and jurisdiction over inter-regional family issues etc.

Of course, the Arrangement on Reciprocal Recognition and Enforcement of Civil Judgments in Matrimonial and Family Cases by the Courts of the Mainland China and of the Hong Kong Special Administrative Region (the Arrangement) was the focus of this forum. The Arrangement was adopted on 20 June 2017 and came into effect on 15 February 2022. In order to achieve closer and more extensive judicial assistance in the area of marriage and family law between Mainland China and Hong Kong, except for inheritance-related issues, the Arrangement covers a broad range of matters, almost everything in marriage and family laws such as validity of marriage, marital property relationships, parentage, maintenance, adoption etc. This is very different from the Regulations enacted in the European Union, which regulated those issues one by one in a piece-meal approach.

Written by Hadrien Pauchard (assistant researcher and doctoral student at Sciences Po Law School)

The third issue of the Revue Critique de droit international privé of 2024 was released on October 1st. It contains four articles and several case notes. In line with the Revue Critique’s recent policy, the doctrinal part will shortly be made available in English on the editor’s website (for registered users and institutions).

The volume features a first article on L’ambiguïté de la notion de « reconnaissance » confrontée à la proposition de règlement de l’Union européenne relative à la filiation (The ambiguity of the concept of “recognition” in the light of the EU draft regulation on parenthood) authored by Prof. Christine Bideau (Université Jean Moulin Lyon 3), who provided the following abstract :

The term “recognition” is often used in private international law, but it has very different meanings. So when the European Commission draws up a proposal for a regulation on jurisdiction, applicable law, recognition of decisions and acceptance of authentic instruments in matters of parenthood and on the creation of a European Certificate of Parenthood, insisting on the permanence of the parenthood link regardless of the Member State in which the persons concerned are located, we can only wonder what meaning it intended to give to this “recognition” of parenthood that it advocates in its explanatory memorandum.

In the second article, Prof. Étienne Pataut (Université Paris I Panthéon Sorbonne) discusses the Perte de nationalité en Europe : la consolidation du contrôle de proportionnalité (Loss of nationality in Europe : the strengthening of proportionnality review). Its abstract reads as follows :

By two new decisions, the Court of Justice clarifies the content, in particular procedural, of the proportionality control in matters of loss of nationality. These solutions could have a significant impact on French litigation in this area.

In the third article, Prof. Gilles Cuniberti (Université du Luxembourg) embarks À la recherche d’une justification sérieuse à l’application de la Convention de 2004 sur l’immunité des États par le juge français (In search of a serious justification for the application of the 2004 Convention on State Immunity by the French judge). The abstract reads as follows :

Since 2011, the French supreme court for private and criminal matters (Cour de cassation) has ruled that the French law of sovereign immunities is based on customary international law, and that it would be reflected in the United Nations Convention on Jurisdictional Immunities of States and Their Property. This Article surveys the case law of several European supreme courts and argues that it is doubtful that the Convention reflects customary international law. It concludes by proposing that French courts apply the Convention as such, instead of pretending to apply customary international law.

Lastly, Prof. Thibaut Fleury Graff (Université Paris II Panthéon Assas) conducts a review of recent French and European case law on droit des étrangers (aliens’ law). Entitled Du politique au juridique : qui est l’étranger ? Retours choisis sur la jurisprudence 2023 en matière de migrations (From the political to the legal: who is the alien? Selected case law on migration in 2023), the contribution offers a critical look at the boundary work constantly at play in the definition of the status of aliens.

The full table of contents is available here.

Previous issues of the Revue Critique (from 2010 to 2022) are available on Cairn.

Ordre néerlandais des avocats du barreau de Bruxelles e.a. / Conseil
Relations extérieures
Mesures restrictives en réaction à la guerre en Ukraine : l’interdiction de fournir des services de conseil juridique au gouvernement russe et aux entités établies en Russie est valide

Wolfgang Hau (Ludwig Maximilian University of Munich), Bart Krans (Leiden University) and Anna Nylund (University of Bergen) edited European Law and National Organisation of Civil Justice with Nomos. The book is part of the Streitbeilegung und Streitvermeidung im Zivilrecht – Schriftenreihe des Munich Center for Dispute Resolution. The book explores the interplay between European law […]

By Ananya Bhargava, Jindal Global Law School, OP Jindal Global University, India.

Recently, the Delhi High Court in the case of Honasa Consumer Limited v RSM General Trading LLC granted an anti-enforcement injunction against the execution proceedings instituted in the Dubai Court on the ground that it threatened the arbitral process in India. The Court deemed the proceedings before the Dubai Court as an attempt to frustrate a possible arbitration envisaged by the contract between the parties.  The injunction was granted under S.9 of the Indian Arbitration and Conciliation Act 1996 as an “interim measure.”  This is a significant turning point in the intersection of arbitration and cross-border litigation in India since the remedy of anti-enforcement injunction is rarely granted by judicial authorities across jurisdictions.

Interestingly, in 2021, the same bench of the Delhi High Court granted the first-ever anti-enforcement injunction in India in Interdigital Technology Corporation v. Xiaomi Corporation. Here, the court defined anti-enforcement injunctions as injunctions where a court injuncts one of the parties before it from enforcing against the other a decree or order passed by a foreign court. Thus, the remedy of anti-enforcement injunctions is triggered when a foreign proceeding has already run its course and resulted in an unfavourable judgment. It is a remedy restraining the enforcement of a decree that is in an inconvenient forum or is in breach of the parties’ contractual agreement.

 

By its very definition, an anti-enforcement injunction appears to be a more aggressive and exceptional form of relief. Thus, courts have traditionally been cautious in granting such injunctions, given the potential implications on international comity and judicial restraint. However, the Delhi High Court’s decision to grant one in this case marks an interesting departure from this reluctance. This article delves into the rationale behind Delhi High Court’s judgment in this case and explores its implications on cross-border litigation in India.

 

Brief facts:

The fulcrum of the dispute concerned an Authorized Distributorship Agreement (ADA) between Honasa Consumer Limited (petitioners) and RSM General Trading LLC (respondents). The ADA included an Arbitration clause with New Delhi as the venue of arbitration and the Arbitration and Conciliation Act, 1996 declared as the governing law.  The ADA also conferred exclusive jurisdiction on the courts of New Delhi for matters arising from the contract. Despite these provisions, the respondents filed a suit in the Court of First Instance in Dubai, which ruled against the petitioners and imposed damages. The petitioners challenged this decree in the Dubai Courts of Appeal.

 

While the appeal was pending, the petitioner approached the Delhi High Court under S.9 of the Arbitration and Conciliation Act and sought an injunction against the respondents from enforcing the Dubai Court’s decree. The petitioners argued that the respondent’s actions in filing the Dubai Suit was oppressive and vexatious in nature and it attempted to subvert the contractual clauses agreed upon by both the parties. The respondents, on the other hand, argued that the court’s power to grant interim reliefs under S.9 of ACA does not encompass the power to grant an anti-enforcement injunction against a foreign court’s decree.

 

Delhi High Court’s Ruling:

Based on the following contentions, the Court held that the power to grant “anti-enforcement” or anti-suit injunction would also be encompassed in the power to grant interim measures. The judgment was predicated on a liberal understanding of S.9 of Arbitration and Conciliation Act, where the court owing to the legally abusive nature of the foreign proceedings, deemed it to be “just and convenient” to pass an injunction against the respondents from enforcing the Dubai Court’s decree against the petitioners.

 

The court arrived at this conclusion through a comprehensive analysis of three broad legal principles. First, the court analyzed the threshold of granting anti-enforcement injunctions in other jurisdictions. Second, the court considered the scope of S.9 of Arbitration and Conciliation Act, that provides for interim reliefs. Finally, the principle of international comity was discussed in detail by the court. These are discussed briefly below.

 

• Court’s analysis of international jurisprudence:

In the absence of established precedent on anti-enforcement injunctions in India, the Delhi High Court analysed cases from various jurisdictions to shape its approach. The principles outlined in these cases manifest the overall outlook of courts across jurisdictions on anti-enforcement injunctions. While some courts have taken a liberal approach, other jurisdictions are wary of the sheer magnitude of the injunction in rendering the foreign judgment almost redundant.

 

In England, the Court of Appeal in SAS Institute Inc v World Programming Ltd adopted a more liberal view, focusing on the principles of justice and comity rather than imposing a high threshold of “exceptionality in granting such injunctions.” The court held that an anti-enforcement injunction has developed incrementally from the same underlying principles as the anti-suit injunction. Thus, the court did not distinguish between anti-suit and anti-enforcement injunctions based on the degree of exceptionality. Instead, it lowered the threshold for the latter, placing both on the same level.

 

Conversely, the Singapore Court of Appeals (SCA) in Sun Travels & Tours Pvt Ltd v. Hilton International Manage (Maldives) Pvt Ltd., emphasized on the difference between anti-suit and anti-enforcement injunctions and held that a “greater degree of caution” should be exercised by courts while considering an anti-enforcement application.  The court reasoned this on the ground that, “an AEI proscribes the enforcement of foreign, granting an anti-enforcement injunction is comparable to nullifying the foreign judgment or stripping the judgment of any legal effect when only the foreign court can set aside or vary its own judgment.” The SCA was cognizant of the legally aggressive nature of anti-enforcement injunctions and therefore incorporated the threshold of “exceptionality” while dealing with such applications.

 

The Delhi High court on the other hand, deviated from the approach taken by SCA in Sun Travels and subscribed to a more liberal understanding similar to the English Courts. The court while endorsing its holding in Interdigital Technology Corporation v. Xiaomi Corporation held that “where a court in rendering of “justice” requires an anti-enforcement injunction to be issued, then it should not hold back its hands on some perceived notion of lack of “exceptionality” in the case.” By doing so, the court significantly lowered the threshold for granting anti-enforcement injunctions in India and held that rarity and exceptionality need not necessarily be a deciding factor for granting such injunctions.

 

• On the scope of S.9 of Arbitration and Conciliation Act:

On the scope of S.9 of Arbitration and Conciliation Act, the court held that that the scope of S.9 is wide and compendious. It stated that although the section appears exhaustive in nature as it enumerates the matters in which interim relief can be granted, clause (e) of S.9(1)(ii) provided the courts with the discretionary power to grant any such interim measure that is “just and convenient.”. The court while reiterating established principles on interim measures held that while granting an injunction under S.9 of ACA, all the court has to see is whether  the applicant for interim measure has a good prima facie case, whether the balance of convenience is in favour of  interim relief as prayed for being granted and whether the applicant  has approached the court with reasonable expedition.  If these requirements are fulfilled, the court stated that it is within its power to grant the requisite interim relief in the form of an injunction. In this case, the Dubai court decree was held to be oppressive and vexatious, as a result, the court granted the anti-enforcement injunction as an interim relief.

 

Further, the court made an interesting observation with regards to S.9 of Arbitration and Conciliation Act. In response to the respondents citing S.44 of UK Arbitration Act as a defence, the court held that S.9 of ACA combines S.44 of UK Arbitration Act and S.37 of the Senior Courts Act. S.44 of the UK Act empowers the court to pass orders in support of the Arbitral Proceedings. The court noted that the section did not contain any “just and convenient” clause similar to S.9(1)(ii)(e) of Indian ACA. Whereas S.37 of the Senior Courts Act did contain a provision that allows the courts to pass interlocutory orders as is “just and convenient.” Ultimately the court concluded that S.9 of ACA does give powers to the courts to intervene in foreign proceedings where it is in the interest of justice.

 

• On the issue of international comity:

Lastly, on the issue of comity of Courts, the court held that “the principle of comity of courts can have no application where a foreign Court is manifestly acting in excess of jurisdiction.” Here, the respondent in manifest disregard of  the arbitration agreement contractually agreed upon by the parties, instituted a suit in the Dubai Court against the exclusive choice of Delhi High Court as the seat court. In this regard, the court held that the principle of comity of courts is not, jurisprudentially, a bar to grant of anti-suit or anti-enforcement injunction, where the facts of the case justify such grant.

 

Further, while disregarding the principle of comity in this case, the court buttressed on the principle of contractual supremacy and the need to hold parties accountable to their contractual commitments. It stated that adherence to contractual  covenants, voluntarily executed ad idem, is the very life breath of commerce. Ultimately it concluded that the defence of comity cannot be pleaded by the respondents in this case since the decree of the Dubai court was coram non judice as per the contractual covenants.

 

Implications of the court’s analysis :

The protection of contractual rights stands out as one of the most important themes in the Court’s approach to grant anti-enforcement injunction in the present case. In this regard, the judgment has some positive implications.

 

For instance, while disregarding the application of international comity in this case, the court upheld the exclusive jurisdiction clause between the parties and equated it to the negative covenant in the agreement. This effectively means that judgments from non-chosen jurisdictions would be in prima facie breach of such contractual clauses and would not be enforced ideally. This is in line with the common law approach to private international law that thrives on such contractual agreements.

 

This is a refreshing approach considering the fact that Indian courts have in the past disregarded the choice of law agreements to impute the law of the lex fori. Just a year ago in TransAsia Private Capital vs Gaurav Dhawan, the Delhi High Court had recorded that Indian courts are not required to automatically apply the chosen governing law to the dispute unless the parties introduce expert evidence to that effect. The present judgment in this regard is a positive deviation from the standard “default rule” applied by Indian Courts. A logical corollary to the court’s emphasis on contractual supremacy and protection of the exclusive jurisdiction clause is also the respect for parties choice of governing law. In the present case Dubai Court’s application of Dubai Law was seen as a violation of the contract which stipulated Arbitration and Conciliation Act as the governing statute. The precedential implication of this is that Indian courts can now move away from the default rule and respect the principles of party autonomy which is grounded on the principle of contractual supremacy. Thus, the court rightfully asserted the principle of contractual supremacy while granting an anti-enforcement injunction.

 

That said, the court’s attempt in lowering the threshold for anti-enforcement injunction to the same level as anti-suit injunctions may lead to uncertainty regarding its precedential value for other jurisdictions. In this regard, the judgment does suffer from certain deficiencies. First, setting a low standard for such injunctions can run the risk of courts frequently granting injunctions against foreign judgments in breach of international comity. Dispensing with the requirement of “exceptionality” in cases of anti-enforcement injunctions is dangerous in India, especially when the law on exclusive choice of court agreements is still at its nascent stage. In the past, Indian courts have wrongfully granted anti-suit injunctions despite there being an exclusive choice of court clause between the parties. Reducing the threshold for anti-enforcement injunctions to the same level would pose similar risks, with courts completely disregarding the rule of comity as has been done in cases granting anti-suit injunctions.

 

It was imperative for the court to appreciate the difference between anti-suit and anti-enforcement injunctions. The difference between an anti-suit injunction and an anti-enforcement injunction is not one of material but of degree. There is a spectrum. This is manifested in the fact that injuncting a party from executing a foreign judgment in a foreign court is a greater interference than injuncting a party from initiating foreign proceedings that are still at an early stage. In the present case, the petitioners could have sought an anti-suit injunction while the respondents initiated a suit in the Dubai Court, rather than waiting for the court to finish proceedings and deliver its judgment. As argued by scholars, the earlier an injunction is sought, the less damage is done to international comity, since there is significant wastage of resources of the foreign court in cases of anti-enforcement injunctions.

 

Thus, keeping the threshold for an anti-enforcement injunction the same as an anti-suit injunction creates significant risks. Indian courts should instead adhere to the high-threshold approach taken by the SCA in Sun Travels while granting an anti-enforcement injunction and relegate it to “exceptional cases” where the defendants are in clear breach of their contractual obligations, as in the present case.

 

Second, the court’s remark on the difference between S.9 of ACA and S.44 of the UK Arbitration Act is a crucial observation. Even though the UNCITRAL Model Law on International Commercial Arbitration (on which the Indian ACA is based) under Article 9 provides for interim measures, it does not elucidate the nature of such measures or the situations where they can be granted. The inclusion of the “just and convenient” clause in S.9 gives Indian courts an extra degree of discretion that is not contemplated in other jurisdictions. In the UK, the discretionary power of the court to grant interim measures when it is “just and convenient” does not flow from the UK Arbitration Act, but rather from the Senior Courts Act, which is used exceptionally. In India, this power is enunciated in the ACA itself. This distinction is important since it highlights the degree of judicial intervention envisaged by Indian and UK legislation. Ordinarily, S.151 of the CPC does provide the requisite power to the courts to grant remedies in the interest of justice. The specific inclusion of the “just and convenient” clause within the ACA risks a higher degree of judicial intervention in arbitration. Furthermore, incorporating the power to grant an anti-enforcement injunction within the clause can set a dangerous precedent.

 

More prominently, without delineating specific considerations as to when such injunctions can be granted and by simultaneously reducing the threshold of rarity in granting such injunctions, the court has normalized a higher degree of judicial intervention in cases of transnational litigation. Here, although the court rightly passed an anti-enforcement injunction, it sourced its legality from S.9(1)(ii)(e) as being “just and convenient,” rather than acknowledging the exceptionality of the present case and limiting such injunctions to rare circumstances. The court completely failed to recognize  the risks of lowering the threshold for granting such injunctions especially in India where excessive judicial intervention has been the biggest impediment to the development of transnational litigation.

 

The concerns raised above become more prominent considering  the absence of a specific legal framework governing the grant of such injunctions. The court’s move to lower the threshold could significantly impact decisions in other jurisdictions, given the lack of a uniform procedural law on this issue. To further contextualize this concern, I will briefly discuss the international framework—or rather, the lack thereof surrounding anti-enforcement injunctions and the concerns that arise due to this legal lacunae.

 

Which law governs Anti-Enforcement Injunctions?

There is no explicit domestic or international procedural framework that gives the court the power to grant such injunctions. S.9 of the Arbitration and Conciliation Act adopts Article 9 of the UNCITRAL Model Law on International Commercial Arbitration (Model Law) that allows courts to grant interim measures at the request of a party. The Model Law does not provide for an express provision authorising the grant of an anti-enforcement injunction in aid of arbitration.

 

In the absence of such express provision, the question that arises here is  “whether the scope of Article 9 is broad enough to encompass the power to grant anti-enforcement injunctions?” At this juncture, there seems to be no definitive answer to this.  Whether Article 9 is broad enough to restrain enforcement of a foreign court decree in aid of arbitration is a matter of conjecture. Model Law’s silence with respect to this has already lead to inconsistent judgments in domestic courts of States that have adopted it, as demonstrated by jurisprudence in Singapore and India. Thus, the need to incorporate a procedural framework with respect to such injunctions becomes important.

 

Another concern that arises is the potential conflict between anti-enforcement injunctions and laws related to recognition and enforcement of foreign judgments.  Earlier in this blog, the US Court of Appeal for the Second Circuit’s decision on anti-enforcement injunction was discussed. The court here held that the Recognition Act of the US does not allow pre-emptive anti-enforcement injunctions and the court granting such injunctions are in overreach of their powers. The court reasoned this on the ground that anti-enforcement injunctions preclude the normal operation of New York’s Laws on recognition and enforcement of foreign judgment. A party can challenge such judgments at the Enforcement stage according to the laws of the enforcing court but cannot sought an injunction against a party to initiate such enforcement proceedings altogether.  The respondents in this case gave a similar argument on S.13 of CPC which deals with executability of foreign judgments in India. They argued that the court cannot grant “pre-emptive” Injunction against enforcement as the same will be against S.13 of CPC.

 

The Hague Convention of the Recognition and Enforcement of Foreign Judgments does not contemplate the pre-emptive restrain against the enforcement of a judgment either.  Article 7(1)(d) of the Convention states that recognition and enforcement of a judgment maybe refused if the proceedings were contrary to an Agreement. Thus, although the remedy of refusal of enforcement is available, both domestic and international law is silent on an anti-enforcement injunction as a pre-emptive relief. Unlike the US courts that explicitly disallowed the power to grant anti-enforcement injunctions, the Delhi High Court in this case rooted it in S.9 of Arbitration and Conciliation act as an interim relief. Thus, without any international legal standard, domestic courts are free to interpret the legality of anti-enforcement injunctions in their jurisdictions. While a complete bar on courts to grant anti-enforcement injunction is not the correct approach, a liberal approach in granting it is dangerous as well. Presently, such injunctions can only be incorporated as an interim relief. This significantly lowers the exceptionality threshold. Anti-enforcement injunctions are inherently hostile and aggressive in nature, thus there is a need for an international procedural framework to address such injunctions.

 

Conclusion:

While the judgment provides much-needed protection of contractual rights, it falls short of addressing the existing lacuna in the law. The court could have taken this opportunity to delineate specific guidelines for granting such injunctions, granted since this was only the second instance when it was granted in India. By failing to do so, the reduced threshold for granting anti-enforcement injunctions becomes even more dangerous. The present case fits into the rare and exceptional category as the respondents were in clear breach of the contract. Thus, the courts attempt in lowering the threshold for granting anti-enforcement injunctions was not needed. Anti-enforcement injunctions raise serious concerns of comity and they interfere significantly with foreign legal systems. It is therefore necessary to determine the relevant factors that necessitate the grant of an anti-enforcement injunction.

 

The court’s approach in this case highlights the need for clearer guidelines. A more defined framework for when and how anti-enforcement injunctions can be granted will help ensure that domestic courts adhere to certain standards set by the Model Law. The current silence of the Model Law on such injunctions is causing a patchwork of interpretations across different jurisdictions, leading to uncertainty and inconsistency. Establishing clear international standards would help courts manage these complex legal issues more effectively, paving the way for more predictable decisions in the future.

Les règles relatives au transfert partiel de la compétence préjudicielle de la Cour de justice au Tribunal entrent en application

The Global Network on Private International Law, Employment and Labour Relations has just been launched by Professor Ulla Liukkunen, University of Helsinki, and Professor Guillermo Palao Moreno, University of Valencia. These scholars were aware that the status of workers and labour relations raise cross-border legal challenges of relevance to labour law and private international law. They therefore considered that there was a a global need to increase knowledge of regulatory approaches and legal practices in different countries and regions as well as internationally. Also their impact on the field of private international law is a relevant concern.

The Global  Network aims to spread knowledge and understanding of the field and its relevance, and to promote interaction among researchers. It brings together researchers from different continents and operates globally. It promotes the development of the field and provides a forum for collaboration and exchange of information between researchers of labour law and private international law.

The are also planning a first seminar on 17 and 18 October 2024.

It is necessary to distinguish (1) a court’s decision to acknowledge the validity of a foreign judgment (judgment recognition and enforcement), and (1) whether a judgment creditor successfully recovers the awarded amount in practice.

For example, Kolmar Group AG v. Jiangsu Textile Industry (Group) Import & Export Co., Ltd. is notable because it was the first case where a foreign monetary judgment was recognized based on the principle of de facto reciprocity in China. However, the recognition and enforcement of the judgment does not necessarily mean that Kolmar Group actually recovered the money.

Up to 10 September 2023, there had been 63 cases in total concerning the recognition and enforcement of foreign judgments on the grounds of reciprocity or judicial assistance treaties ratified by China in civil or commercial matters. Of these, 26 were successful cases where the Chinese courts decided to recognize and enforce foreign judgments while 3 were partially successful cases (the Chinese courts recognized compensatory damages but rejected punitive damages); the recognition and enforcement of foreign judgments were rejected in the remaining 34 cases.

Have the creditors of the 29 foreign judgments recovered their money in China?

After extensive empirical research, the findings can be divided into three groups.

Firstly, the (partially) successful enforcement group includes both voluntary and compulsory enforcement cases. Among the 9 judgments, 3 were to appoint insolvency administrators and with no or limited enforcement contents. For example, in the case of In re DAR, real property owned by the German insolvent company had already been fully paid for and been occupied by the company associated with the creditor before the German insolvency judgment was recognized in China. As this real property was the only property owned by the insolvent company in China, there was no other property to be collected or debt to be paid by the insolvency administrator. Another 3 judgments in this group were rendered against the same party. The plaintiffs, when applying for US judgments to be recognized and enforced in China, successfully requested the Guangzhou Intermediate People’s Court to preserve a significant amount of the defendant’s assets in China in order to pay the judgment debts. Importantly, the cases in this group do not necessarily mean that the judgment creditors will have their foreign judgment completely satisfied.

Secondly, 7 cases are in the group of unsuccessful compulsory enforcement, where all of the compulsory enforcement proceedings had been closed due to the debtors having no assets for enforcement. In Kolmar Group AG v. Jiangsu Textile Industry (Group) Import & Export Co., Ltd, although the Chinese court decided to recognize and enforce the Singaporean judgment, the debtor did not voluntarily fulfill the obligations under the judgment. Consequently, the creditor applied to the Chinese court for compulsory enforcement, and the court docketed the case on 21 December 2016. On 24 January 2017, the same court made a civil ruling and accepted another Chinese company’s application to reorganize the debtor due to the latter’s insolvency. On 8 December 2017, the court made a series of civil rulings approving the merger and reorganization plan of the debtor and terminating the insolvency proceedings. On 28 December 2017, the creditor withdrew its application for the compulsory enforcement of the judgment. From the publicly available documents, the relationship between the judgment creditor and the Chinese company that merged with the judgment debtor is unknown. However, if the judgment creditor had received the payment from the insolvency reorganization proceedings, the Chinese Judgment Enforcement Decision would have contained this information.

Thirdly, 13 cases are in the group containing an unknown enforcement status. This group covers three circumstances. (1) The foreign judgments have been voluntarily enforced by judgment debtors so compulsory enforcement decisions are not necessary. (2) The judgment creditors have not applied for compulsory enforcement and the foreign judgments remain outstanding. (3) The judgment creditors have applied for compulsory enforcement, but the relevant compulsory enforcement decisions are not available to the public, so the status of the enforcement remains unknown.

As a conclusion, although the empirical study only covered 29 foreign judgments, which is a relatively small number, it exhausts all foreign judgments that the Chinese courts have decided to recognize and enforce up to September 2023. It reflects the fact that, for a judgment creditor, obtaining a Chinese court’s decision to recognize and enforcement a foreign judgment is only the first step to recover funds in China.

All comments are welcome.

For detailed information about this research, please refer to section 5.3.1 of ‘Jie (Jeanne) Huang, Developing Chinese Private International Law for Transnational Civil and Commercial Litigation: The 2024 New Chinese Civil Procedure Law, Netherlands International Law Review (2023).’

To date, two decisions are scheduled for publication in October in relation to EU private international law instruments. Both will be known on Friday 4. The first one is C- 633/22, Real Madrid Club de Fútbol, a Grand Chamber decision on Regulation 44/2001 (T. von Danwitz as reporting judge). As reported here, the dispute on the […]

 

Conventions & Instruments

On 1 September 2024, the 2007 Child Support Convention and the 2007 Maintenance Obligations Protocol entered into force for Georgia. At present, 51 States and the European Union are bound by the 2007 Child Support Convention, while 33 States and the European Union are bound by the 2007 Maintenance Obligations Protocol. More information is available here.

On 10 September 2024, El Salvador deposited its instrument of accession to the 1996 Child Protection Convention. With the accession of El Salvador, the 1996 Child Protection Convention now has 55 Contracting Parties. It will enter into force for El Salvador on 1 July 2025. More information is available here.

On 12 September 2024, Albania signed the 2019 Judgments Convention. Currently, 30 HCCH Members are either bound by the Convention or a Contracting Party for which the Convention has not entered into force yet (United Kingdom and Uruguay). The 2019 Judgments Convention will enter into force for the Republic of Albania only after it deposits an instrument of ratification pursuant to Art. 28(2) of the Convention.  More information is available here.

On 18 September 2024, Switzerland deposited its instrument of accession to the 2005 Choice of Court Convention. With the accession of Switzerland, 35 States and the European Union are bound by the 2005 Choice of Court Convention. It will enter into force for Switzerland on 1 January 2025. More information is available here.

On 19 September 2024, Kosovo signed the 2005 Choice of Court and 2019 Judgments Conventions. The Conventions will enter into force for Kosovo only after it deposits instruments of ratification pursuant to Art. 31(2) of the 2005 Choice of Court Convention and Art. 28(2) of the 2019 Judgments Convention. More information is available here.

 

Upcoming Events

Registration is open until 7 October for participation in the 13th International Forum on the electronic Apostille Programme (e-APP), which will take place on 21 and 22 October 2024 in Astana, Kazakhstan. The Forum will provide a unique international platform for governments, organisations, and the private sector to learn more about the benefits of the e-APP, to promote its effective implementation, and to discuss the latest developments in relation to the e-APP worldwide. More information is available here.

 

These monthly updates are published by the Permanent Bureau of the Hague Conference on Private International Law (HCCH), providing an overview of the latest developments. More information and materials are available on the HCCH website.

We are pleased to announce an online symposium on Unveiling Arbitration’s (New) Identity in a Changing World, scheduled for May 9, 2025. This symposium aims to explore the evolving identity of arbitration in the face of rapid technological and societal shifts.

Conference Theme
In a world marked by digitalization, artificial intelligence, and growing public scrutiny, arbitration law faces both opportunities and challenges. While it remains essential to uphold arbitration’s core principles—such as party autonomy, consent, privity, due process, and the independence and impartiality of arbitrators—it is equally crucial to assess whether these principles require reevaluation in light of modern developments. The symposium will critically examine these fundamentals, considering whether contemporary issues, such as increased supply chain complexity, the rise of AI, and calls for greater transparency, demand a reconceptualization of arbitration’s foundations.

Call for Papers
We invite submissions that address how technological and societal changes are impacting the key tenets of arbitration. Potential topics include but are not limited to:

• The nature of arbitration and emerging forms of online private adjudication (ODR, BDR, smart contracts, DAOs)
• Consent to arbitration in anonymous or pseudonymous online environments
• Involvement of non-signatories in arbitration agreements
• The role of AI in the arbitrator’s mandate
• Balancing confidentiality with demands for transparency
• Addressing inequalities in resources and expertise between parties
• Efficiency and due process in arbitration
• Technology-driven enforcement vs. traditional mechanisms like the 1958 New York Convention

We particularly encourage submissions from early career researchers, including graduate students and postdoctoral fellows. Participation is free of charge.

Submission Guidelines
Please submit an abstract (200-500 words) and a brief bio (100-200 words) though this link: https://forms.gle/7Fn2YDqPvEZYeExT9 by November 1, 2024. Notifications of acceptance will be sent in December 2024. Full draft papers will be due by May 14, 2025, and will be made available to all participants. Select contributors may be invited to develop their papers into chapters for an edited volume.

Organizers:

• Prof. Giorgio Colombo, Ca’ Foscari University of Venice
• Prof. Joshua Karton, Queen’s University
• Prof. Pietro Ortolani, Radboud University
• Prof. Maud Piers, Ghent University

 

 

September 2024 Update: List of China’s Cases on Recognition of Foreign Judgments

 

Written by Dr. Meng Yu and Dr. Guodong Du, co-founders of China Justice Observer*

 

On 22 September 2024, China Justice Observer released the 2024 version of the List of China’s Cases on Recognition of Foreign Judgments.[1] To date, we have collected 109 cases involving China and 26 foreign States and regions. (Note: Foreign divorce judgments are excluded in the Case List.)

The Case List was issued on July 16, 2019, and is updated annually. The 2020 update[2], 2022 update[3], and 2023 update[4] were also posted on Conflictoflaws.net.

The full version of the 2024 List of China’s Cases on Recognition of Foreign Judgments is available here.[5]

The key features of the updated list are:

• The List comprises 26 concise reports for each jurisdiction, together with a chart of bilateral judicial assistance treaties which China has concluded with 39 States, of which 35 bilateral treaties include judgment enforcement clauses.
• A total of eleven newly added cases involve one treaty jurisdiction – Russia (one case), [6]and six non-treaty jurisdictions, namely, Australia (two cases),[7] Canada (three cases),[8] Japan (one case),[9] Malaysia (one case),[10] Singapore (two cases), [11] and Thailand (one case).[12]
• Please note that in Guangxi Nanning China Travel Service Co., Ltd. v. Orient Thai Airlines Co., Ltd. (2023) Gui 71 Xie Wai Ren No. 1,[13] a local Chinese court in Nanning, Guangxi Province, ruled to recognize and enforce a Thai monetary judgment in 2024. Apart from being the first case of enforcing Thai monetary judgments in China, it is also the first publicly reported case confirming a reciprocal relationship based on “presumptive reciprocity”, a concept which was outlined in the Nanning Statement signed by the judiciary of China and the ASEAN countries in 2017. This decision is also interesting because it is unlikely, if not impossible, to have foreign judgments recognized and enforced in Thailand.
• Another noteworthy case is In re Shanghai International Corporation (2021) Hu 03 Xie Wai Ren No.1, [14] where the Shanghai Third Intermediate People’s Court ruled to recognize the Tokyo District Court’s decision to commence civil rehabilitation proceedings and the order appointing the supervisor. This marks not only the first time that China has recognized a Japanese court’s decision in a bankruptcy procedure, but also the first time that China has recognized a Japanese court judgment, signaling a potential shift in the traditionally strained mutual recognition landscape between China and Japan.
• Other newly added cases, be it foreign judgments to be enforced in China or Chinese judgments to be enforced in foreign jurisdictions, provide a valuable comparative perspective on key issues in the eyes of courts from different jurisdictions, such as the enforceability of Chinese civil settlement statements (also known as “civil mediation judgments”, cf. different views in Wei v. Li 2019 BCCA 114 (Canada)[15] and Shi Wen Yue v Shi Minjiu & Anor [2016] SGHC 137 (Singapore) [16]), finality (Canada), [17] proof of foreign judgments (Malaysia),[18] due process in absentia judgments (Singapore,[19] Russia[20]), procedural fairness/natural justice issues arising from alternative service of process (cf. Zhou v Jing [2023] NSWSC 214 (Australia),[21] Yin v Wu [2023] VSCA 130 (Australia)[22]).
• Each case has been reviewed and more details, such as the grounds, the case numbers, and causes of action, have been added.
• Case analyses have been aggregated under the country tags since 2022, so it is now easier to track down relevant cases, together with their information and analyses, in each country/region report. For example, under the tag ‘US-China Judgments Recognition and Enforcement’[23], one can find relevant case analyses involving mutual recognition and enforcement of judgments between the US and China.

 

As always, we endeavor to collect all Chinese court decisions involving the recognition and enforcement of foreign judgments (“REFJ”), and foreign counterparts concerning the recognition and enforcement of Chinese judgments. The Case List is made available for our readers to build reasonable expectations on REFJ in China.

The Case List is continually updated with new reports. Case information, comments, and suggestions are most welcome. Please feel free to contact Ms. Meng YU via e-mail at meng.yu@chinajusticeobserver.com.

 

*We would like to thank the following persons/institutions that shared thoughts and valuable information with us:

Dr. Béligh Elbalti, Associate Professor, Graduate School of Law and Politics, Osaka University, Japan; Dr. ZHANG Wenliang, Associate Professor, School of Law, Renmin University of China; Dr. SU Xiaoling, Lawyer at Beijing DHH Law Firm; Mr. WANG Chengjie, Lawyer at Allbright Law Offices (Shanghai);Wonbanglaw; Ms. Renee M Wong, Attorney at Goldberger and Dubin PC (New York); Dr. WANG Yahan, Associate Professor, Henan University School of Law; Mr. Angus Ni, Litigation attorney at AFN Law PLLC (Seattle); Asian Business Law Institute (ABLI); Ms. Dawei Gongsun, Partner at DGW Kramer LLP (New York).

 

 

 

[1] https://www.chinajusticeobserver.com/a/september-2024-update-list-of-china-s-cases-on-recognition-of-foreign-judgments

[2] https://conflictoflaws.net/2020/out-now-list-of-chinas-cases-on-recognition-of-foreign-judgments/

[3] https://conflictoflaws.net/2022/august-2022-update-list-of-chinas-cases-on-recognition-of-foreign-judgments/

[4] https://conflictoflaws.net/2023/august-2023-update-list-of-chinas-cases-on-recognition-of-foreign-judgments/

[5] https://www.chinajusticeobserver.com/a/list-of-chinas-cases-on-recognition-of-foreign-judgments

[6] https://www.chinajusticeobserver.com/a/chinese-court-refuses-to-recognize-russian-judgment-due-to-due-process

[7] https://www.chinajusticeobserver.com/t/recognizing-and-enforcing-australian-judgments-in-china

[8] https://www.chinajusticeobserver.com/t/canada-china-judgments-recognition-and-enforcement

[9] https://www.chinajusticeobserver.com/a/decoding-the-turning-point-a-closer-look-at-chinas-recognition-of-japanese-bankruptcy

[10] https://www.chinajusticeobserver.com/a/malaysia-dismisses-application-to-enforce-chinese-judgment-due-to-procedural-irregularities-in-2023

[11] https://www.chinajusticeobserver.com/t/singapore-china-judgments-recognition-and-enforcement

[12] https://conflictoflaws.net/2024/first-thai-monetary-judgment-enforced-in-china-highlighting-presumptive-reciprocity-in-china-asean-region/

[13] https://www.chinajusticeobserver.com/a/first-thai-monetary-judgment-enforced-in-china,-highlighting-presumptive-reciprocity-in-china-asean-region

[14] https://www.chinajusticeobserver.com/a/decoding-the-turning-point-a-closer-look-at-chinas-recognition-of-japanese-bankruptcy

[15] https://www.chinajusticeobserver.com/a/canadian-court-enforces-chinese-civil-settlement-statement-mediation-judgment-in-2019

[16] https://www.chinajusticeobserver.com/a/chinese-civil-settlement-statements-enforceable-in-singapore

[17] https://www.chinajusticeobserver.com/a/chinese-judgment-finality-in-doubt-in-canada

[18] https://www.chinajusticeobserver.com/a/malaysia-dismisses-application-to-enforce-chinese-judgment-due-to-procedural-irregularities-in-2023

[19] https://www.chinajusticeobserver.com/a/china-wenzhou-court-recognizes-a-singapore-monetary-judgment

[20] https://www.chinajusticeobserver.com/a/chinese-court-refuses-to-recognize-russian-judgment-due-to-due-process

[21] https://www.chinajusticeobserver.com/a/a-chinese-judgment-denied-enforcement-by-court-of-nsw-australia,-due-to-defective-service-by-post%ef%bc%9f

[22] https://www.chinajusticeobserver.com/a/a-chinese-judgment-denied-enforcement-in-australia-as-public-announcement-against-natural-justice

[23] https://www.chinajusticeobserver.com/t/recognizing-and-enforcing-american-judgments-in-china