Normally, legal judgements, once issued, acquire enforceability and res judicata in the State that issued them and exercises coercion in order to achieve justice.
Enforcement of a foreign judgment in the territory of another country is hindered by the sovereignty of the State within whose territory that ruling is claimed because states are sovereign and equal. Thus, foreign judgments can not operate as of right in another country than the one whose court issued the judgement in question.
Therefore, the "exequatur" procedure is the procedure through which a foreign judgment becomes enforceable in the same manner as a judgement issued by the State in which the recognition and enforcement is desired.
As we explained, a foreign judgment may take effect in another State if it fulfills the requirements set by the law of the State in which the effects are desired, namely the recognition of the foreign judgment or obtaining the "exequatur".
However, in certain circumstances, a foreign judgment may take effect even without fulfilling the legal requirements established.
Although in the past the exeuqatur procedure was regulated by Law no. 105/1992, now repealed, the New Code of Civil Procedure is where we find the provisions of private international law.
Under the old regulation, "exequatur" was defined as a legal procedure through which the judgment was enforced due to the control the courts of the State in which the enforcement is sought had over it.
This recognition occurs if the foreign judgment is not executed voluntarily by people who have this obligation.
The provisions of the Civil Procedure Code established that certain foreign judgments are recognized as of right in Romania. Such decisions relate to the personal status of citizens of the State where they were pronounced or, if pronounced by a third country, they were first recognized in the State of nationality of each party, or in lack of recognition, were pronounced based on the law determined as applicable by virtue of private international law. Conformation of public order of private international law, as well as respect for the right to defense constitute additional conditions necessary for recognizing these foreign judgements as of right.
Foreign judgments which do not refer to the above will be recognized in Romania and achieve res judicata in the following conditions:
▪ the decision is enforceable under the law of the state whose court pronounced it;
▪ the decision is final under the law of the State where it was pronounced;
▪ the court that pronounced it had jurisdiction to try the process without being based solely on the presence of the defendant or his/her property not directly related to the litigation in the State of establishment of that jurisdiction;
▪ there is reciprocity in terms of the effects of foreign judgments between Romania and the State of the court which pronounced that decision.
The court competent to hear the application for recognition of a foreign judgment in Romania is the court in whose district the domicile or headquarters of the person who refused to execute the judgement is located.
If the competent court can not be determined, the competence to judge the request for recognition belongs to the Bucharest Tribunal.
However, the request for recognition of a foreign judgment can be resolved incidentally, by a court that hears a cause with another object, in which the res judicata exception rises or a prior issue is grounded on the foreign judgement.
One important thing is that the request for recognition of the foreign judgment would interrupt the prescription of the right to obtain the enforcement.
A foreign judgment shall not be recognized if it was given in default of the party that lost the case, in case the citation for the debate on the merits and the document instituting the proceedings were not handed in time and the person was not given the ability to defend and exercise proper appeal against the court’s decision.
Besides these reasons, the recognition of the foreign judgment may be refused in the following circumstances:
▪ Romanian courts owned exclusive competence to hear the case;
▪ the right to defense was violated;
▪ the decision may be subject to an appeal in the state where it was issued;
▪ the foreign judgment is irreconcilable with an earlier judgment rendered abroad and which may be recognized in Romania;
▪ the judgement is contrary to the public order of Private International Law;
▪ the judgement issued in an area where people do not dispose freely of their rights was pronounced with the sole purpose of evading the applicable law according to Romanian private international law;
▪ the process has been settled between the same parties by a decision, even non-final, belonging to the Romanian courts or is undergoing trial in front of them at the moment that the foreign courts had been referred.
The verification of the conditions required for the recognition of a foreign judgment in Romania does not entail the examination by the Romanian court of the substance of the foreign judgement nor its amendment.
For more information about the exequatur procedure in Romania, as well as legal advice in terms of the recognition of foreign judgements in Romania, do not hesitate to contact the team of lawyers within the law firm Darie, Manea & associates who will provide legal assistance, as well as representation before the competent authorities!