On The Severability Of Foreign Judgment Concerning Damages In The Process Of Recognition And Enforcement

With the strengthening of international communication,more and more civil and commercial judgments need to be recognized and enforced by other countries.Severance is one of the ways taken to promote the recognition and enforcement of foreign judgments.The judgment concerning damages,which is one of the main types of the civil and commercial judgments,encounter obstacles resulted from divarication in terms of the composition and nature of damages.The Hague Convention on Choice of Court Agreement puts forward a solution and takes an open attitude towards the nature definition of damages based on the clause about severability of judgments.Under the Hague Convention,the court addressed can independently determine the scope and the part of the recognition and enforcement of judgment concerning damages which can weaken the obstruction and improve the efficiency of the recognition and enforcement of judgments.The severance of foreign judgment concerning damages in the process of recognition and enforcement is a procedural issue while the applicable law is the law the court addressed.And the legal grounds should be considered in two aspects-whether to sever or not and the way of severance.In practice,different countries have different attitudes towards the severability and the application of it in facing the apply for recognition and enforcement of judgment concerning damages.Some countries refuse to recognize and enforce the whole compensation while the other countries apply the way of severance,mainly in three kinds-the severance between compensatory and punitive damages,the internal severance of punitive damages and the way of severance and addition.The court addressed decides whether to partly recognize and enforce the judgment based on the public order,the nature and composition of judgment,the violation of mandatory rules of the requested state and so on.However,some reasons have their own differences.For example,there are distinct definitions of specific scope of public order,and that punitive damages belong to the category of private law or public law has always been difficult to reach consensus,which bring obstacles to the application of the severance method.Moreover,the court of origin does not specify the form of judgment,increasing the difficulty of partly recognition and enforcement,and some countries even refuse severance for ambiguity of judgment.In the judicial practice of recognition and enforcement of judgment concerning damages,the trend in the application of these reasons is changing,from the conservative attitude in the past to explore how to apply the severance method as much as possible.On the basis of respecting the autonomy of severance,it is necessary to make a joint effort between the court addressed and the court of origin.On the one hand,the court of origin needs to make a clear explanation of the composition of judgment and to limit the amount of punitive damages.On the other hand,the court addressed should apply the controversial reason such as public order and the nature of punitive damages in a prudent way,and take account into the costs and expenses relating to the proceedings.With the enhance of civil and commercial exchanges between China and foreign countries,Chinese judgment needs to be recognized and enforced by foreign countries while foreign judgment needs to be recognized and enforced in China.The provisions of severability only exist in the bilateral treaties between China and some other countries and there is no specific provision about severance of judgment concerning damages.At the present stage,the Convention on the Choice of Court Agreements which has come into effect and the Preliminary Draft Convention by Special Commission on the Recognition and Enforcement of Foreign Judgments(2016)has made provisions about the recognition and enforcement of judgment concerning damages and the severability of foreign judgment.China should hold positive attitude towards the relating rules and try to balance the conflicts between the recognition and enforcement of foreign judgment and domestic law in China.In addition,it is necessary to perfect the law from the two aspects in the scope of recognition and enforcement and the specific provisions of applying severance.