Recognition and execution of a decision of a foreign court

Introduction

The topic I will elaborate on is chosen with the intention for the public to be familiarized with the legal regulative in the Republic of Macedonia about the recognition and enforcement of a decision of a foreign court.

The more intensive connection of the citizen, the legal entities, and other entities from different jurisdictions in the area of the civil law in its broader scope were manifested in the need for stipulation and harmonization of the material presumptions for recognition of the decisions of a foreign court and their enforcement in the Macedonian legislation, in order for compliance of the domestic jurisdiction with the postulates and the accepted legal norms in the European Union in this area of the law.

Below I will elaborate on homologation and execution of a decision of a foreign court as interconnected components when executing a decision of a foreign court regulated in two separate Laws:

International Private Law

(Official Gazette of RM number 87/07, in force from July 20th, 2007)

Law on Enforcement

(Official Gazette of RM number 59/2011 — integrated text)

EXECUTION (enforcement of a decision of a foreign court)

With the coming into force on international private law in our legislative there is no regulative for enforcement (execution) of foreign court decisions. The substantive and procedural provisions from the civil procedure with the presence of foreign elements provided in previous regulations for enforcement are eliminated with this Law.

The Rules for International court jurisdiction and the provisions from the civil procedure for enforcement were in use from 1957 introduced with the Introductory Law of the Law for civil procedure, almost unchanged taken from the Law for resolving conflicts of laws from other countries in particular relations (Official gazette of SFRJ number 43/82, from the independence taken as republican regulation in accordance with the Constitution of the Republic of Macedonia) whose applicability stopped with the coming into force of the International private law.

Such an approach could be understood by the legislator in double focus:

Abandonment of the regulative for enforcement | element of the sovereignty of the executive law, the law entirely and of the whole state | as an abandonment of the integrity and sovereignty of our law and of our state and its legal entities, among other things with the determination of mutuality (reciprocity) as one of the assumptions for recognition and enforcement of foreign decisions

or

Abandonment of the regulative for enforcement as a legal basis for creating easier approach for the legal entities from abroad in processing and realization of their gained rights with outside the domicile executive titles in front of the Jurisdictional authorities of the Republic of Macedonia

The EXECUTION (Enforcement) which was before the now applicable International private law, absorbed the CERTIFICATION (recognition of a decision of a foreign court) for today in our legal system the certification to have priority before the enforcement, without the existence of provisions for enforcement of a decision of a foreign court. This dominant transition into the era of harmonization of the jurisdictions among the members of the European Union in the area of enforcement of foreign court decisions (executive titles) with emphasis on the easier access during their enforcement in the countries outside the domicile jurisdiction could be said that represents getting closer to unified rules of equality in the mutual approach of different jurisdictions towards which the Republic of Macedonia aims.

LAW ON ENFORCEMENT

(Enforcement of a decision of a foreign court)

Article 1

This Law shall regulate the rules according to which the enforcement agents act for forcible enforcement of a court decision for the fulfillment of an obligation unless otherwise stipulated by another law. “

“Article 8

Enforcement of a decision of a foreign court may be carried out in the Republic of Macedonia, provided the decision meets the requirements for recognition prescribed by law or international treaty, ratified in accordance with the Constitution of the Republic of Macedonia. “

The only provision that speaks about the enforcement of a decision of a foreign court is the above-cited provision (article 8) from the Law on enforcement.

“The international agreements ratified in accordance with the Constitution are part of the domestic legal system and cannot be changed by law” (stipulated in the Constitution of the Republic of Macedonia).

The Constitution of the Republic the ratified international agreements equate with the domestic legal system with the prohibition of them to be changed by law, whose stipulated presumptions for recognition of a decision of a foreign court creates the basis for their enforcement.

Placement of the EXECUTION under the domination of the HOMOLOGATION of a foreign court decision reduces their enforcement in a way and with means provided for enforcement of domestic court decisions.

During this essential is to note that the recognition of a foreign court decision is under the jurisdiction of the Courts, while the enforcement is under the authority of the Enforcement Agents.

As a decision is International private law considered:

the decision of the court of a foreign state

the settlement concluded in front of the court (court settlement)

the decision of other body which in the state that is issued in is equal to a court decision, or with a court settlement

Under the term court decision, the Law on Enforcement implies:

verdict, decision, payment order or other court orders, of the elected courts and arbitrages.

Under the term court settlement, settlement concluded in front of those courts.

Ratio to the previous remarks would be drawn:

“A foreign court decision is equated to a decision of the court of the Republic of Macedonia and has the same legal effect in the Republic of Macedonia only if the court of the Republic of Macedonia recognizes it.”…

moreover, as the subject under-recognition and enforcement are the decisions of the court of a foreign state and the settlements concluded in front of such court, or decision of other body that in the state in which is issued is equated to a court decision, or with court settlement and decisions of chosen courts and of arbitration and settlement concluded in front of those courts under the conditions laid down with the domestic law and the ratified international agreements.

The most essential thing in the procedure for enforcement of foreign enforced titles is that the procedure for enforcement of foreign decisions is preceded by the procedure for recognition of foreign decisions of our domestic court.

HOMOLOGATION (Recognition of a decision of a foreign court)

The presumptions for recognition of a foreign decision are set out in the Law on private international law with the proper application of the provisions of particular extrajudicial procedures.

The presumptions for recognition of a foreign decision are divided into two groups:

-positive presumptions (presumptions that must exist)

-negative presumptions (presumptions that must not exist)

POSITIVE PRESUMPTIONS for recognition of a foreign decision represent:

*The decision must be submitted in original or verified copy.

As a decision the international private law considers:

the decision of a court of a foreign state.

the settlement concluded in front of the court (court settlement).

the decision of other body which in the state that is issued in is equal to a court decision, or with court settlement, if with that decision or settlement the relations on personal matters (status), family, labor, property or other substantial legal relations with the international element are regulated.

*Confirmation from a jurisdictional foreign court, body for finalization of the decision in accordance with the law of the state in which that decision is issued If with the request for recognition of foreign decision is requested its recognition of its enforceability a confirmation for enforceability has to be submitted, in accordance with the law of the state which issued it.

NEGATIVE PRESUMPTIONS for recognition of foreign court decision that represents rejection for recognition of foreign decision are:

If during deliberation of the decision the right of defense was not respected to which one of the parties' objects to and proofs that:

1.

Because of inconsistencies in the proceedings, the party could not outline his/her means of defense

2.

The subpoena, the claim or decision with what the proceeding is stared was not delivered to the party in a way prescribed with the law of the state in which such decision was issued, or that there was no attempt at all for such delivery unless the party engaged in any way in discussion for the primary matter in the first-degree proceeding.

3.

If for the legal matter for which is deliberated exclusive jurisdiction of a court, or another body of the Republic of Macedonia is predicted for the foreign decision (Article 104 paragraph 1 from the international private law)

However, if the defendant asks for recognition of a foreign court decision delivered in the marital dispute or if that is requested by the plaintiff, and the defendant does not object, the exclusive jurisdiction of the court of the Republic of Macedonia is not an obstacle for recognition of that decision (article 104 paragraph 2 from the Law on private international law).

4.

If the jurisdiction of the foreign court was based only on grounds of citizenship of the plaintiff, or the foreign court that delivered the decision did not take into consideration the arrangement of the parties for the jurisdiction of the court of the Republic of Macedonia (article 105 from the Law on private international law).

5.

If in the same legal matter, the court or other body of Republic of Macedonia delivered final decision (Res Judicata), or if in the Republic of Macedonia another foreign decision delivered in the same matter has been recognized (article 106 paragraph 1 of the Law on private international law).

The court will not reject it but it will stop with the recognition of foreign court decision if in front of a court in Republic Macedonia there is ongoing earlier initiated proceeding in the same legal matter and between the same parties to the finalization of that proceeding (article 106 paragraph 2 of the Law on private international law).

6.

If during deliberation for the foreign decision an effect was created that is in contrary to the public order in the Republic of Macedonia (article 107 of the Law on private international law).

PROCEDURE

The procedure for recognition of foreign court decisions is initiated upon the proposal, and the recognition of a foreign court decision in matters relating to personal matters (status) may be required by anyone who has a legal interest in that.

Competent for recognition of foreign court decision is the single-sitting judge of a basic court, and territorially competent in every court competent on the matter, or every basic court with exception of the Basic Court Skopje 1 (Criminal Court) specialized only for criminal matters.

According to the above mentioned, the competence on the matter is elective (forum electivum) so that a decision on the competence on the matter is made by the proponent.

If for recognition of a foreign decision a separate decision has not been made, each court for the recognition of that decision can deliberate as for prior issue, but only with the effect of that procedure.

The provision for recognition of foreign court decision as a prior issue cannot be applied for the enforcement of foreign court decisions because there is no court proceeding in which the recognition of foreign court decision should be resolved as a prior issue because the enforcement according to the Law on enforcement is not in court jurisdiction, but it is implemented by the Enforcement Agents.

The court in the procedure for recognition of a foreign court decision is limited to whether there are presumptions stipulated in the International private law (positive presumptions and negative presumptions), and whether there are presumptions for recognition of foreign court decisions with which is decided about:

*The personal matter (status) of the citizen of the Republic of Macedonia

*Foreigner who is a citizen of the state of the court

*Foreigner who is not a citizen of the state of the court.

If when deliberating on the personal matter (status) of a citizen of the Republic of Macedonia the law of the Republic of Macedonia should have been applied according to this law, the foreign court decision will be recognized when foreign law is applied, if that decision essentially does not deviate from the law of Republic of Macedonia applied in such matter.

(1) the decisions of a foreign court concerning the personal matter (status) of a citizen of the state whose decision is in question are recognized in Republic Macedonia without reviewing by the court under articles 104 and 107 of the Law on private international law.

(2) if the competent authority of the Republic of Macedonia considers that the foreign court decision refers to the personal matter (status) of a citizen of the Republic of Macedonia, the decision in order to be recognized is subject to review of whether the positive presumptions about recognition provided in the provisions of the Law on private international law are met.

(3) if the foreign court decision refers to the personal matter (status) of foreigners who are not citizens of the state that delivered that decision, the decision will be recognized only if it meets the requirements for recognition in the state whose citizens are the persons concerned.

DECISION AND PROCEDURE FOR RECOGNITION

When the court determines that there are no obstacles for recognition it will deliver a decision for recognition of the foreign court decision.

The court submits the decision to the opposing party and to the other participants with the instruction that against the decision for the recognition they can object within 15 days from the receipt of the decision.

The court that delivered the decision decides on the complaint, in a panel of three judges, and if the decision depends on disputed facts, the court decides after the scheduled hearing.

Against the decision upon the complaint, as well as against the decision with which the court rejected the proposal for recognition, an appeal can be lodged to the court of appeal within 8 days from the receipt of the decision.

The provisions of the Law on private international law concerning the procedure for the recognition of foreign court decisions can be applied as well to the procedure for the recognition of foreign arbitrage decisions.

The conditions for recognition and enforcement of the foreign arbitral awards, the court or the Enforcement Agents (during enforcement) in the Republic of Macedonia evaluate them in accordance with the Convention on the recognition and enforcement of the arbitral awards signed on June 10, 1958, in New York.

REQUEST FOR ENFORCEMENT OF A DECISION OF A FOREIGN COURT

The person on whose proposal the decision for recognition of foreign court decision is delivered submits a proposal for its enforcement to the competent Enforcement agent.

ENFORCEMENT AGENT

*An Enforcement Agent is a person who performs public authorizations, determined with law, appointed in accordance with the provisions of Law on enforcement.

*The enforcement agent shall be appointed for the territory of a basic court and shall enforce the enforcement titles of the court or the body whose seat is located in territory for which he/she is appointed and during the performance of the enforcement shall take up actions on the overall territory of the Republic of Macedonia.

*The enforcement agent can perform other actions if so, provided by the law

*Enforcement Agents are appointed by the Minister of Justice.

This means that a competent enforcement agent for enforcement of foreign court decision or arbitral awards will be the enforcement agent appointed for the territory of the court that delivered that decision.

The ratio from the above-stated presentation a conclusion is drawn that CERTIFICATION| RECOGNITION of a foreign court decision creates presumptions that such decision needs to align with a decision of a Court of the Republic of Macedonia, and the EXECUTION to be conducted the accordance with the substantive legal provisions and the provisions of procedural nature provided in Law on Enforcement, or the Convention on recognition and enforcement of foreign Arbitral Awards signed on June 10, 1958, in New York.

NOTE

The essence of this introduction is based on the publications:

Book 1 & 2 (Civil Law procedure> & <Executive Law) of the Author Stefan Georgievski Ph.D. my esteemed Professor of Civil Court proceedings at the University St. Cyril & Methodius, Faculty of Law Justinianus Primus Skopje, Macedonia.

All other in the Introduction is just quotes from the legislation.