Definition: Foreign Judgments
The term foreign judgments comprises court decisions issued by courts of a state other than the Federal Republic of Germany. In international legal relations, foreign judgments are significant when they are intended to have legal effects across national borders, particularly if they seek recognition and enforcement in another country. The handling of foreign judgments is the subject of international civil procedure law and touches on issues of state sovereignty, legal certainty, and mutual trust between states.
Fundamentals of Recognition and Enforcement
Core Principles
The recognition and enforcement of foreign judgments are generally governed by the principle of mutual respect for judicial decisions. The prerequisites and procedures are regulated either by international agreements (such as multilateral or bilateral state treaties) or—in their absence—by national law.
- Recognition of a foreign judgment means that it can have legal effects domestically as if it were a domestic judgment. Typical consequences include res judicata and preclusive effect.
- Enforcement refers to the judgment being implemented, if necessary, by means of compulsion (e.g., compulsory enforcement). Enforcement generally requires a so-called declaration of enforceability.
Legal Sources
The relevant legal bases for the handling of foreign judgments in Germany are:
- European regulations, in particular the Brussels Ia Regulation (Brussels I Recast)
- International conventions, such as the Hague Convention
- National law, in particular § 328 of the Code of Civil Procedure (ZPO) and the Act on the Recognition and Enforcement of Judgments
Requirements for the Recognition of Foreign Judgments
General Requirements for Recognition
A foreign judgment is generally recognized if it is final and enforceable in the state of origin. Further requirements include:
- State Jurisdiction: The deciding foreign court must have had international jurisdiction as understood under domestic concepts.
- Proper Procedure: The parties must have been heard fairly; in particular, there may not have been any serious procedural deficiencies (e.g., violation of the right to be heard).
- Lack of Incompatibility: The foreign judgment must not be incompatible with fundamental domestic legal principles (ordre public).
- No Conflicting Domestic Decisions: There must be no German or already recognized foreign judgment on the same matter.
- Reciprocity: In certain cases, recognition is facilitated if the foreign state also recognizes German judgments (principle of reciprocity).
Special Requirements for Recognition in the EU
Within the European Union, the Brussels Ia Regulation significantly simplifies recognition: No special declaration of recognition is required; an EU foreign judgment is basically automatically recognized unless specific grounds for refusal apply.
Grounds for Refusal (Brussels Ia Regulation)
- Manifest breach of public policy in the domestic country
- Violation of the right to be heard of a party
- Incompatibility with earlier domestic judgments or decisions of other states
Enforcement of Foreign Judgments
General Procedure
If a foreign judgment is to be enforced in Germany, a declaration of enforceability by the competent Regional Court (so-called exequatur proceedings) is generally required, provided no international agreement applies.
Requirements in Exequatur Proceedings
The court particularly examines:
- Jurisdiction and res judicata of the judgment rendered
- Proper determination and involvement of the parties
- Compatibility with the German ordre public
- Any restrictions due to reservation of reciprocity
Special Rules in the European Union
Within the EU, exequatur proceedings have been abolished by the Brussels Ia Regulation (Art. 39 et seq.). The judgment is directly enforceable in other member states, provided the judgment creditor submits a certificate from the court of origin.
Application of International Conventions
For judgments rendered outside the EU, especially from contracting states of the Hague Convention, the recognition and enforcement process is further facilitated, but presupposes that the state maintains the relevant treaty relationships.
Grounds for Refusal of Recognition and Enforcement
Overview of Grounds for Refusal (§ 328 ZPO)
Foreign judgments are not recognized in Germany if:
- The foreign court lacks jurisdiction (except in the case of voluntary appearance)
- The judgment is based on a serious procedural defect (e.g., no timely service on the party)
- The judgment would be incompatible with essential substantive principles of German law (violation of the “ordre public”)
- A German or already recognized foreign judgment on the same matter exists
Public Order (ordre public)
A core feature is the ordre public: A judgment must not be recognized in Germany if it leads to results that obviously contradict the fundamental principles of the German legal system. Examples include severe restrictions of procedural rights or violations of human rights.
Scope of Application of Foreign Judgments
The recognition and enforcement of foreign judgments particularly concern the following areas:
- Civil law decisions (e.g., contractual claims, tortious damages judgments)
- Family matters (such as maintenance or custody decisions)
- Commercial and corporate law judgments (including insolvencies)
- In some cases, arbitral awards, provided the New York Convention applies (distinguishable from state court judgments)
Significance and Legal Consequences
Res Judicata and Binding Effect
Recognized foreign judgments have the same res judicata effect as domestic judgments. They can have binding effect in both substantive and procedural law, for example regarding preclusion.
Cross-border Enforcement of Rights
The effective recognition and enforcement of foreign judgments enable efficient enforcement and pursuit of rights in international legal relations, promote economic integration, and ensure legal certainty for individuals and companies.
Summary
Foreign judgments are of increasing relevance in an era of globalization. The recognition and enforcement of such judgments constitute a complex area of international civil procedure law—regulated through an interplay of EU law, international conventions, and domestic regulations. A careful examination of jurisdiction, procedural quality, and compatibility with one’s own legal system is of central importance for their recognition and enforceability.
Frequently Asked Questions
What are the requirements for the recognition of foreign judgments in Germany?
Under German law, the recognition of foreign judgments is generally subject to certain requirements, which arise from international agreements (for example, EU regulations such as Brussels Ia Regulation), bilateral treaties, as well as national provisions such as §§ 328 et seq. ZPO. The main requirements include in particular: First, the judgment must have been rendered by a competent foreign court (international jurisdiction), whereby jurisdiction is reviewed according to German understanding. Second, the judgment must not have already been finally rejected or be pending in the recognizing state (no conflicting decision and no ongoing proceedings, “lis pendens” or “res judicata”). Third, recognition must not violate the ordre public; that is, the judgment must not be incompatible with fundamental principles of the German legal system, especially the Basic Law. Fourth, the procedure abroad must have taken place in accordance with the principles of a fair trial (right to be heard, judicial independence, proper service). Fifth, submission of a certified copy of the judgment together with a translation is often required (depending on the recognition route). These requirements are examined in detail in both substantive and formal respects.
Can foreign criminal judgments be enforced in Germany?
Foreign criminal judgments cannot generally be enforced in Germany. In particular, German law adheres to the principle of territoriality, meaning that only German courts may enforce criminal sanctions on German territory. Exceptions exist via various mechanisms, for example within the European Union: Due to directives and framework decisions on the mutual recognition of criminal judgments, especially Framework Decision 2008/909/JHA, certain penalties can be transferred across borders and also enforced by Germany. This, however, requires a corresponding formal procedure in which German courts and competent authorities examine whether the foreign judgment was issued in compliance with essential principles of the rule of law and whether there are any obstacles (especially violations of fundamental rights or double jeopardy) to enforcement. In non-European contexts, special mutual legal assistance agreements or the IRG (International Mutual Assistance Act) may apply, but only in limited circumstances.
What role does the ordre public play in the recognition of foreign judgments?
The so-called ordre public (public policy) constitutes a crucial barrier to the recognition and enforcement of foreign judgments in German law. If a foreign judgment violates fundamental principles of the German legal system (for example, violations of fundamental procedural rules, the prohibition of discrimination, human dignity), recognition can be refused. The competent court examines whether the result or the process leading to the judgment conflicts with core domestic norms. This review is particularly relevant in family law, status-related and criminal law matters, but also in civil law in cases of flagrant violations of fundamental principles of the rule of law, such as the right to be heard or the principle of equal treatment of the parties.
Are foreign maintenance judgments directly enforceable in Germany?
The enforceability of foreign maintenance judgments in Germany largely depends on the origin of the judgment (EU member state or third country). Within the EU, the Brussels IIa Regulation and the Maintenance Regulation (EC Regulation 4/2009) provide that maintenance decisions, subject to certain formal requirements, can be recognized and directly enforced in other member states, often even without exequatur proceedings. For judgments from so-called third countries, a recognition and enforcement procedure under §§ 108 et seq. FamFG is generally required. This process particularly examines the international jurisdiction of the court of origin, compliance with the right to be heard, the absence of conflicting decisions, and the ordre public. Upon successful recognition, the German enforcement authority can act.
What formal requirements must be observed when submitting foreign judgments?
For the recognition or enforcement of a foreign judgment in Germany, it is generally necessary to submit a certified copy of the original judgment, often accompanied by a complete translation into German by a sworn translator. In certain cases—for example, with EU-internal judgments—a specific standard form (e.g., certificate under EU regulations) may also be required. Depending on the mutual legal assistance agreement, an apostille or legalization may additionally be demanded to confirm the authenticity of the document. Failure to comply with these formal requirements may result in the dismissal of the recognition or enforcement application.
When does a foreign judgment become res judicata in Germany?
A foreign judgment does not automatically have res judicata effect in Germany; rather, its recognition depends on the law of the state of origin. It is examined whether the judgment is formally and materially final and binding abroad, thus having binding effect. In Germany itself, the decision is not “converted,” but the foreign res judicata effect is adopted as part of the recognition process—provided all requirements for recognition are met. Only after completion of the proceedings and successful recognition can the judgment take effect in Germany as well, for example by justifying enforcement measures.
Can foreign arbitral awards be enforced in Germany?
The enforcement of foreign arbitral awards in Germany is governed by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958, the New York Convention), to which Germany is a party. An arbitral award rendered abroad can generally be enforced like a domestic arbitral award, provided it meets certain formal requirements and there are no grounds for refusal—such as violation of ordre public, lack of an arbitration agreement, or lack of opportunity to be heard. The recognition and enforcement procedure is conducted pursuant to §§ 1061 et seq. ZPO. Here, too, certified copies and translations, as well as the original arbitration agreement, must be submitted. The courts examine recognition very strictly in order to prevent abuse and manipulation.
