by Radu Damaschin - Partner and Cristiana Prodescu - Associate, NNDKP
In a world that is becoming increasingly globalized, the law serves as a powerful tool in improving economic and social conditions. In such a world, trans-border judicial proceedings, or, as legal scholars call it, "legal disputes with extraneous elements" demand a certain consistency and predictability. We consume the same products and services; we abide by the same rules; therefore it is natural to develop the same expectations, including with respect to the enforcement of legal documents. The trend in this direction is clear, albeit more or less intentionally so: parallel customs, bilateral and multilateral treaties; common rules that will facilitate the creation, amendment and termination of legal relationships of any kind, regardless of the way in which this is achieved.
Globalization is clearly a complex and sensitive phenomenon. Equally sensitive and complex is the way globalization manifests itself in the application of the law.
In this material we intend to provide an overview of what is perhaps the most prosaic facet of this process: the recognition and enforcement in Romania of court and arbitral judgments rendered in foreign jurisdictions.
The purpose of this paper is to offer those who face such challenge a few practical tips with respect to the steps that must be taken to this end. The information presented below does not solve all the problems, but can be seen as a helpful starting point.
For purely practical considerations, we present below some of the relevant rules applicable to the recognition and enforcement in Romania of court decisions issued by other domestic courts and, alternatively, of arbitral decisions issued in other jurisdictions.
The legal norms that are relevant to the analyzed procedure are found in the Code of Civil Procedure Titles III and IV, Convention on the Recognition and Enforcement of Foreign Arbitral Awards adopted in New York on June 10, 1958, the European Convention on International Commercial Arbitration concluded in Geneva on April 21, 1961, (EU) Regulation nr. 1215/2012 of the European Parliament and of the Council signed on December 12, 2012 on jurisdiction, the recognition and enforcement of judgments in civil and commercial matters, and the Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children adopted in the Hague on October 19, 1996, et al.
Recognition of judgment
The recognition procedure is a formality that is preliminary to any type of enforcement proceeding commenced on the territory of Romania. Judgments that are recognized as final and binding are exempt from such proceeding, whereas measures that are precautionary or injunctive in nature are not covered by this proceeding.
Court judgments that are recognized as final and binding are those regarding the personal status of foreign citizens. Art. 1095 of the Code of Civil Procedure lists the strict conditions in which these judgments must be rendered in order to benefit from this privileged statute. We will, however, not delve into more detail on this aspect.
The recognition and enforcement of foreign judgments is always a judicial proceeding, meaning that it involves the intervention of a court. Depending on the case, the claim may be directed either exclusively to the recognition or to both the recognition and enforcement of the foreign judgment.
The claim for the recognition of court decisions and that for the recognition and enforcement of arbitral judgments falls under the jurisdiction of the court located on the territory where the domicile/ head office of the entity against which the judgment is being enforced is located. If such court cannot be identified, jurisdiction rests with the Bucharest Trial Court. By means of exception, the claim for the recognition and approval of the enforcement of the foreign judgment will be filed with the court in the jurisdiction of which the enforcement will be carried out.
As a rule, the claim is resolved in the presence of the parties to the case on the merits. However, the law also allows for the resolution without the summoning of the parties when the party against whom the judgment will be enforced agreed to the admission of the claim that was resolved through the foreign judgment. However, in all cases, the resolution of a claim requesting the approval of the enforcement of a foreign judgment will be made only pursuant to the summoning of the parties.
The process is centered mainly on procedural issues and the court before which the claim is filed may not re-examine the issues that were adjudicated or modify the writ subject to recognition and enforcement.
The decision regarding the recognition and enforcement of an arbitral judgment is only subject to appeal, pursuant to the provisions of Art. 1131 para. (1) of the Code of Civil Procedure. Surprisingly, the lawmaker decided that the judgment rendered the procedure for the recognition / recognition and enforcement of court judgments will be subject to both a first and a second appeal.
Conditions concerning the recognition of a foreign judgment in Romania
The requirements that must be met in order for a foreign court’s judgment to be recognized in Romania are provided by law strictly and with limitations. Thus, first of all, the judgment must be final pursuant to the law of the issuing state and must have been rendered by a court of relevant jurisdiction. The Romanian court will be the one to determine the competence of the foreign court to resolve the dispute as well as the absence of fraud in the notification thereof. Second, the law conditions the recognition and the enforcement of the foreign judgment on the existence, of a similar, mutual conduct in the issuing state concerning the judgments rendered in Romania. If the party who lost the trial was not present when the decision was rendered, it is mandatory to prove before the court where the recognition was requested that both the summons for oral arguments on the merits and the document filed with the court were served in due time upon the party and that the party under discussion had the opportunity to defend itself and to exercise the relevant means of challenge.
The refusal to recognize a foreign judgment
The refusal to recognize may occur when, as a general principle, the resolution of the matter in the foreign jurisdiction breached public order norms, thus casting doubt upon the efficiency of the legal procedure the recognition of which is requested, or, in a broader sense, upon whether the right to a fair trial was observed.
The impediments to acknowledging court judgments are provided in Art. 1097 of the Code of Civil Procedure and refer first of all to the obvious breach of the public order of international Romanian private law. This refers to the norms regulating institutions and fundamental principles for the functioning of the state. Another ground for dismissing the recognition request is the fraudulent notification of the foreign issuing court in order to evade a domestic legal provision regulating the mandatory enforcement of Romanian law in the matters where the individuals cannot freely exercise their rights.
The existence of a prior decision of the Romanian courts or their prior notification of the same dispute, as well as the existence of a prior irreconcilable judgment rendered by a foreign court and susceptible to be recognized in Romania also constitute grounds for dismissing the claim for recognition. In the Romanian lawmaker's vision, the same effect results from the breach of the exclusive competence of the Romanian courts, the breach of the right to mount a defense and occurrence of the possibility to annul the foreign decision by means of a remedy at law.
With respect to arbitral judgments, the lawmaker provided in Arts. 1125 and 1129 of the Code of Civil Procedure distinct impediments to recognition and enforcement. The impediments concern on the one hand the breach (even if not obvious) of the public order of Romanian international private law, the lack of the authority to conclude the arbitration agreement, the lack of validity of the arbitration agreement and not informing the party who lost the trial of the establishment of the arbitral court and the applicable arbitration procedure, as well as the failure to observe the arbitration agreement or (in the absence thereof), of the law of the arbitration seat. Moreover, there will be refusal to recognize the judgment in cases where the judgment rendered was contrary to the provisions of the arbitration agreement or that exceeds the limits thereof, or that refers to a dispute that was not covered by the agreement, as well as the case in which the decision is not binding or it was annulled/suspended by the competent authority.
Requirements regarding official documents
Pursuant to Art. 1100 of the Code of Civil Procedure, the claim for recognition will be accompanied by a copy of the final judgment, proof of the binding nature issued by the foreign court (if the judgment does not reflect by itself its binding nature), the official document attesting that the summons and the notification deed were known in due time by the party that was absent when the matter was solved, any other document that can prove, on the one hand, that the court that rendered the judgment has jurisdiction over the matter, and on the other hand that reciprocity exists between the issuing state and Romania with respect to the effects of the court judgments.
Other requirements regarding official documents
The official documents listed above will be subject to the super-legalization process only when there are no grounds for eliminating this preliminary requirement in full or in part
The documents attached to the request will also be accompanied by their certified translation
Depending on the circumstances of the case, the acknowledging court may expressly exempt the party from the obligation to provide the other party with part of the documents listed above.
When the request also asks for the enforcement of foreign judgments, it will be accompanied by the evidence of the enforceable nature of the decision which will be subject to the preliminary conditions of super-legalization.
In case of arbitration, the lawmaker seems to be less demanding with respect to the documents to be presented to the national court: arbitration decision (subject to super-legalization) and arbitration agreement, in original or copy, accompanied by their certified translation.
A brief analysis of the administrative procedure of super-legalization indicates that it involves in fact two stages:
The super-legalization under the procedure determined by the state of origin of the arbitration decision
The super-legalization performed by rotation either by the Romanian diplomatic mission/ Romanian consulate in the issuing state, or by the diplomatic mission of the consulate of the origin state in Romania. In any of these two cases, the law provides the obligation of the super-legalization by the Foreign Affairs Ministry.
The super-legalization is not required when based on international treaties to which Romania is part, based on the multilateral agreements or the bilateral agreements concluded by Romania with the issuing states, under reciprocity conditions or based on the law of the European Union, this formality is expressly eliminated.
For exemplification purposes, we indicate two instruments that provide for super-legalization to be eliminated:
The Convention on the taking of evidence abroad in civil or commercial matters approved in Hague on March 18, 1970
Regulation (EU) no. 1215/2012 of the European Parliament and of the Council dated December 12, 2012 on the legal competence, the recognition and enforcement of the judgments in civil and commercial matters (the arbitration is exempt from the enforcement area of the Regulation).
A partial exemption from super-legalization can be achieved by applying an apostille by the issuing state pursuant to the conditions of the Convention abolishing the requirement of legalization for foreign public documents passed in Hague on October 5, 1961.
By way of exception, when the parties agree expressly to submit a certified copy for compliance purposes of the foreign court’s judgment and of the relevant public documents, the super-legalization will not be required. This exception, however, does not apply to foreign arbitral judgments.
Court and arbitral decisions rendered in foreign jurisdictions cannot be enforced in Romania without a preliminary court recognition proceeding. All of the above provide a general perspective on the minimum steps that must be taken for the recognition and enforcement of a foreign court or arbitral decision on the territory of Romania.
We recommend reviewing these rules because, despite apparently clear regulations, these proceedings give rise fairly often to issues that are more complicated than the resolution of the dispute in which the decision whose recognition and enforcement is sought was rendered. After all, globalization remains, in all of its aspects, a complex phenomenon.