On The Procedural Fairness Of Recognition And Enforcement Of Foreign Judgments

Recognition and enforcement of foreign judgments is not only an important part ofinternational civil procedure law, but also international judicial assistance. And the proceduralfairness requirement is one of the necessary conditions of the recognition and enforcement offoreign judgments. Therefore, procedural fairness is stipulated clearly in the law of everycountry and international conventions. Obviously, the principle of procedural fairness is veryimportant, but it is not stipulated in the law of our country. For this reason, this paper definesthe procedural fairness concept, and analyses judicial practice of every country on proceduralfairness principle, and proposes some measures which are suit for our country. This article isdivided into four parts:Part Ⅰ: the overview of the recognition and enforcement of foreign judgments andprocedural fairness.Firstly, this part explains some concepts, such as the foreign court, judgments,recognition and enforcement. Then it introduces conditions of the recognition andenforcement of foreign judgments, and points out that procedural fairness is one of thenecessary conditions. Secondly, it defines the procedural fairness concept, and introduceshistorical development of the procedural fairness. Finally, it discusses “fraud exception”conception and “public policy” conception, and analyses the relation between these twoconcepts and procedural fairness.Part Ⅱ: the legal norm of the procedural fairness of the recognition and enforcement offoreign judgments.This part introduces the provisions of the procedural fairness of every country andinternational conventions. The procedural fairness generally focuses on the suitable service ofthe parties and the reasonable defence opportunity of the parties. The matter of the proceduralfraud is one part of procedural fairness in the common law countries, while the public policyprotects the procedural fairness principle in the civil law countries. However, the fraudexception and the public policy are stipulated in the2005Hague《convention on choice ofcourt agreements》, which shows that the convention respects the law system of every country. Part Ⅲ: the judicial practice of the procedural fairness of the recognition andenforcement of foreign judgments.This part analyses some classic cases, and points out that the court mainly review theservice of documents, the matters of the fraud and the procedural public policy. And theservice of documents contains the following three aspects. Firstly, the documents should benotified to the defendant in sufficient time. Secondly, the document must contain fundamentalinformation. Thirdly, the language of the documents should be understandable. It is widelybelieved that the fraud exception and the public policy should be limited strictly, unless thelitigation rights of the parties are violated seriously.Part Ⅳ: the procedural fairness of the recognition and enforcement of foreign judgmentsof our country.According to present judicial situation of our country, this part analyses the problem ofthe procedural fairness of the recognition and enforcement of foreign judgments in ourcountry. At last, some suggestions are made to perfect the legislation of our country.