On The Cross-border Recognition And Enforcement Of Judicial Settlements

Diversified dispute resolution is recently the common pursuit of the courts of the world in resolving the controversy.Conciliation and mediation are the most frequently-used methods beside adjudication in the courts,because they base on the autonomy of parties without execution of judicial authority.They can not only solve the disputes between parties rapidly and conveniently,but also save the judicial resource and reduce the litigation cost.After concluding a judicial settlement through litigation reconciliation or judicial conformation procedure,it will come to the problem on the cross-border recognition and enforcement of judicial settlement if the parties to the settlement or their assets are in different countries or scope of law.However,every country has different rules on in-court settlements and out-of-court settlements and has different opinions on the property and effect of judicial settlements,especially on their res judicata,which make it difficult for judicial settlements concluded in one country to be recognized and enforced in others.2005 Convention on Choice of Court Agreements and 2017 Draft Convention on Recognition and Enforcement of Foreign Judgments drafted by Special Commission of Hague Conference on Private International Law have provided a method on cross-border recognition and enforcement of judicial settlements.But they only stipulate the enforcement of judicial settlements,leaving the sole recognition problem to contracting states to decide according to their domestic laws,in order to avoid controversy about the effect of judicial settlements.In theory,judicial settlement should only have the negative effect of res judicata,i.e.putting the litigation to the end and forbidding to prosecute repeatedly.It does not have the positive effect of res judicata,so it cannot be the foundation of the latter adjudication.There are mainly four moods on the cross-border enforcement of judicial settlement.Enforcing judicial settlement in accordance with the judgment or authentic instrument is the most frequently-used,while regarding it as a pure contract is unreliable.In addition,member states of European Union can apply European Enforcement Order for the judicial settlements on uncontested claim so that to simplify the execution procedure and be more efficient.With regard to the excuses on refusal of recognition and enforcement,it should apply separately with judgments and should be more cautious.As for the finality of judicial settlement,if it is legally effective and enforceable in the state where it is approved,it should be enforced in the state addressed.With the increase of the civil and commercial connection with other countries,there are more and more mediation papers in Chinese courts or judicial confirmation rulings that need to be recognized and enforced overseas.The judicial settlements made by foreign countries also need to apply to our courts for recognition and enforcement.However,so far there is not any rule on the cross-border recognition and enforcement of mediation papers in our domestic law.Only some civil or commercial judicial assistance treaties with foreign countries have relevant stipulation.On recent stage,2005 Convention on Choice of Court Agreements and 2017 Draft Convention on Recognition and Enforcement of Foreign Judgments both have reasonable stipulation on cross-border recognition and enforcement of judicial settlements.And court mediation papers in China are essentially corresponding with judicial settlements in two conventions and there is not big obstacle in applying the convention.Therefore,we should try to accept the relevant rules in two conventions with positive attitude and improve the domestic law and bilateral treaties.