Studies On The Recognition And Enforcement Of Foreign Judgments Involving Punitive Damage Awards

Punitive damages are under such violent arguments in the world due to its special characters that countries in the world hold quiet different attitudes towards it.However,it is a real obstacle of international mobility of judgements and affects the development of international communication in civil and commercial areas.This article will make a systematic study on the recognition and enforcement of punitive damage awards with comparison method.The article is divided into four sections with logical connection.The first section makes analysis on relative conceptions and argumentation basis of the recognition and enforcement of punitive damage in foreign judgement.As a concept opposite to compensatory damage,punitive damage plays a role of punishment,rewards and compensating the lack of compensatory damage in civil and commercial judgements.Although it is denied by civil law countries because of its seemingly nature of public law,punitive damage does have essence of private law essentially.As for the recognition and enforcement of foreign judgements,it requires to be underlined that the principles of non-substantive review and public order must be adopted when a court reviews a foreign judgement.Generally,on the premise of a treaty or reciprocal relationship,countries may refuse the application with a variety of reasons like there is parallel litigation on the same issue,or parties in action suffered Procedural injustice,or the judgement has conflict with the public order of the country,etc.The second section talks about practical examples of decisions that countries have made to the applications of recognition and enforcement of foreign judgements with punitive damages so far.From the examples that a country refused to recognize and enforce a foreign judgement with punitive damage,it is easy to find that whether to recognize and enforce foreign judgements with punitive damages does not necessarily correspond to whether to adopt punitive damages system or not.More specifically,though it is true that a country which doesn't adopt punitive damage is more likely to refuse it,countries that acknowledge punitive damage itself may also make a refusal with the principle of public order.However,a tendency can be found that more and more countries become increasingly inclusive to foreign judgements with punitive damages.Moreover,the application of depecage conveys the idea of recognizing and enforcing foreign judgements as far as possible.The third section summarizes the development trend of recognition and enforcement of foreign judgments with punitive damages based on the relevant practices in the past.Overall,countries are beginning to tend to recognize and enforce such judgments to the greatest extent as far as possible.First,the application of principle of public order is restricted,for example,principle of international public order rather than principle of domestic public order is to be adopted and the broken of principle of public order must have a specifically negative result.The application of proportionality principle enables countries which do not recognize the reasonableness of parts of punitive damages in foreign judgements to partially recognize and enforce it,which ensures that the infringed part's legitimate rights and interests are realized to the maximum extent.Countries usually separate judgements using standards of mirror image as well as compensation according to their different attitudes towards punitive damage awards.The forth section makes some proposals based on the practice of recognizing and enforcing foreign judgements involving punitive damages in China.There are only some vague provisions in domestic laws and bilateral international treaties with other countries regulating the recognition and enforcement of foreign judgements and the practice is barely none in China.Though China still holds a careful attitude to foreign judgements,it is obvious that China is actively working to promote the recognition and enforcement of foreign judgements involving punitive damages and the recognition of the application of depecage to such judgements according to the enthusiasm it has shown in participating in the drafting of international covenant and in recognizing and enforcing other judgements in practice.To achieve this goal,China should take the principle of public order as the principle of review while using it cautiously when designing the system of recognizing and enforcing such judgements,harmonize the conflict between the method of depecage and the principle of non-substantive review,take the mirror criterion or compensatory criterion as practical operation criteria to improve and perfect the application of depecage according to the acceptance of punitive damages in different fields in China.