Recognition of foreign judgments
The recognition of foreign judgments is a central concept in private international law as well as in international civil procedural law. It describes the legal process by which a judicial or administrative decision made abroad becomes effective and binding within the jurisdiction of another state. The term applies to civil law judgments as well as family law, and in some cases also to administrative and criminal law decisions. Recognition is a prerequisite for the enforcement of such a decision in the domestic territory and serves to ensure legal certainty and to protect the parties from multiple proceedings (ne bis in idem principle).
Concept and core principles
Definition
The recognition of foreign judgments refers to the respect for and the legal effect of a decision issued outside one’s own legal system within the territory of one’s own state. Recognition means that the foreign decision is equated with a domestic decision regarding its legal effects, without the domestic state conducting its own substantive review.
Legal basis
Recognition is governed by international agreements (e.g., Brussels Ia Regulation, Lugano Convention, Hague Conventions), bilateral treaties, or—subsidiarily—by national law, such as §§ 108, 109 et seq. of the German Code of Civil Procedure (ZPO) or the Act on the Recognition of Administrative Decisions (AnErkVwG) in Germany.
Areas of application
Civil law judgments
The most common form concerns judgments on contracts, claims for damages, tort disputes, or other civil law claims. Recognition enables, for example, monetary claims awarded abroad to be asserted in Germany.
Family law decisions
This includes in particular divorce decrees, custody, maintenance, and parentage decisions. Specific regulations, such as the Recognition and Enforcement Implementation Act (AVAG), govern their cross-border validity.
Administrative and criminal law decisions
Where administrative acts (e.g., naming law, state recognition of educational qualifications) or criminal judgments are concerned, special hurdles exist for recognition, as the public policy or internal interests of the state are often affected.
Requirements for recognition
Jurisdiction of the foreign court
For recognition, it must be examined whether the foreign court had international jurisdiction in accordance with the applicable law. If international jurisdiction is lacking, the decision has no effect in the domestic sphere.
Rule of law and procedural guarantees
The decision must have been rendered in a due process of law. Violations of fundamental principles, e.g., the right to be heard or a fair trial, will lead to the refusal of recognition.
No violation of public policy (ordre public)
If the content of the decision does not comply with the fundamental principles of national law (for instance, in the case of a manifest violation of human rights), recognition must not be granted (see Section 328(1) No. 4 ZPO).
Res judicata of the foreign decision
A requirement for recognition is that the foreign decision is final and binding, unless the relevant recognition regime provides otherwise.
Recognition procedure
Automatic (ex lege) and formal recognition
In many cases—particularly with civil judgments—recognition occurs automatically, without the need for a specific procedure to be initiated. A separate determination of recognition is only required when formal evidence is needed, such as for registration in the land register or for enforcement by compulsory execution (exequatur proceedings).
Exequatur proceedings
The exequatur serves to declare a foreign judgment enforceable. Once the aforementioned requirements have been reviewed, the competent court grants permission to enforce the judgment compulsorily as if it were a domestic judgment. Details are governed, for example, by §§ 722 et seq. ZPO, Section 38 AVAG, or Article 41 of the Brussels Ia Regulation.
Grounds for refusal
Recognition must be refused if:
- the decision is based on a violation of public policy (ordre public),
- the proceedings before the foreign court were marred by serious defects (in particular, a lack of hearing for the parties),
- the decision is in conflict with a domestic judgment or with another recognized foreign decision (known as contradictory judgments),
- the decision is not final or the opposing party can still appeal it by proper legal remedy.
Legal consequences of recognition
Upon recognition of the foreign decision, its legal effects are transferred to the Federal Republic of Germany or another recognizing state. In particular, the order is accorded the same effect as a domestic judgment; thus, it becomes binding, has a preclusive effect, and, where applicable, can be enforced.
International legal instruments and European law specifics
European Union
Within the European Union, the Brussels Ia Regulation (Regulation (EU) No. 1215/2012) provides for an extensive system of mutual recognition and enforcement of judicial decisions without requiring exequatur proceedings. Judgments of one member state must generally be recognized in all other member states.
Hague Conventions
Internationally, numerous Hague Conventions (e.g., on child abduction, guardianship, child maintenance, international divorce) govern recognition and enforcement. By signing and ratifying these conventions, states commit to adhering to recognized standards and procedures.
Other multilateral or bilateral treaties
In the absence of international conventions or EU regulations, bilateral agreements individually concluded between states apply. Their provisions take precedence and must be observed.
Distinction from the enforcement of foreign judgments
Recognition relates to the legal effect in the domestic territory, particularly concerning binding and preclusive effects. Only once recognition has occurred will enforcement take place if necessary, for which exequatur is then required. Recognition and enforcement thus constitute two consecutive but independent legal steps.
Summary
The recognition of foreign judgments is a complex, highly codified process that ensures legal certainty and efficiency in the interests of international legal relations. The legal framework is derived from supranational, international, and national regulations. The review of recognition requirements is based on clearly defined criteria. In line with growing globalization and the mobility of individuals and businesses, the importance of this area of law remains highly topical.
References
- Kropholler, International Jurisdiction and Recognition of Foreign Judgments, 10th edition, Mohr Siebeck.
- Schlosser, Commentary on the Brussels Ia Regulation and the Lugano Convention, in: ZPO Commentary, Beck.
- Palandt, BGB (Commentary on recognition issues in family law).
Weblinks
- Federal Ministry of Justice – <a href="https://www.bmj.de/DE/Themen/Internationales/InternationalesZivilverfahrensrecht/AnerkennungVollstreckung/AnerkennungVollstreckungnode.html”>Recognition and enforcement of foreign decisions
- European Commission – Civil justice: Recognition and enforcement of judgments
Frequently Asked Questions
What legal requirements must be met for the recognition of a foreign judgment in Germany?
For the recognition of a foreign judgment in Germany, various legal requirements must be met pursuant to the provisions of German private international law and, where applicable, existing bi- or multilateral agreements. An essential prerequisite is that the foreign decision has been issued by a court or authority that was actually competent to decide the matter according to the rules of international jurisdiction. Furthermore, the decision may not violate the German ordre public (public policy), meaning it must not disregard fundamental principles of German law, in particular those of the Basic Law. The decision must also be final and enforceable, if the latter is required. Lis pendens, meaning that there is not already a decision of a German court or a recognized foreign judgment on the same matter and between the same parties, must be avoided. In certain cases, such as divorces, it is also required that there is no pending or concluded domestic proceeding. Linguistic requirements may necessitate a translation into German by a certified translator.
Does recognition of a foreign judgment require a special procedure?
Whether a special recognition procedure is required depends on the type of decision and the relevant area of law. As a rule, Section 108(1) FamFG stipulates that, in particular, family law decisions (e.g., international divorces) require a formal recognition procedure before the competent state ministry of justice. Outside family law, the recognition of foreign civil judgments usually occurs ipso iure, meaning without further sovereign decision in the context of a specific procedure, unless objections are raised. However, the above-mentioned requirements for recognition must also be met and, in the event of a dispute, are reviewed by the courts. For decisions from certain countries, international agreements such as the Brussels Ia Regulation in civil and commercial matters within the EU may provide for automatic recognition. For countries outside the EU, the ZPO applies.
What role does public policy (ordre public) play in the recognition of foreign judgments?
Public policy (ordre public) constitutes a significant barrier to the recognition of foreign judgments. It ensures that foreign judgments may not be recognized if their content is manifestly incompatible with the fundamental principles of German law, particularly with fundamental constitutional principles such as those set out in the Basic Law. This includes, for example, violations of the right to be heard, the prohibition of discrimination, or the principle of equal treatment. Substantive legal assessments also play a role, especially if they fundamentally contradict core German legal values, such as immoral contractual provisions or flagrant infringements of personality rights.
Does recognition of foreign judgments also cover their enforceability in Germany?
Successful recognition of a foreign judgment is a prerequisite but not automatically equivalent to its enforceability in Germany. In principle, a separate procedure to declare enforceability must be carried out, following established recognition. The party seeking enforcement must file an application for a declaration of enforceability; the competent court then reviews the substantive and formal requirements, especially the grounds for recognition as well as whether proper service on the judgment debtor has taken place. For European judgments, the procedure has been considerably simplified by EU regulations and, in many cases, no special declaration of enforceability is still required. For judgments from non-EU countries, the Recognition and Enforcement Implementation Act (AVAG) and relevant ZPO provisions usually apply.
To what extent can parties challenge the recognition or refusal of recognition?
A party affected by the recognition of a foreign decision can use the legal remedies provided for under German law. For example, if recognition is granted in family matters by the state ministry of justice, administrative judicial protection is available (action for annulment or declaratory action) if there is a legitimate interest. If recognition of a civil judgment is refused, the party may, under certain circumstances, apply to a court in the context of an action for declaration of the recognition effect or in the enforcement proceedings to decide on recognition. During the review, the court will reassess compliance with the statutory provisions, particularly in respect of procedural law and public policy.
What documents must be submitted for the recognition procedure?
To carry out a recognition procedure, certain documents usually have to be provided. These generally include a complete official copy of the foreign decision bearing a certificate of finality, an officially certified translation of the judgment by a sworn translator, proof of proper service to the affected party in accordance with the regulations of the state of decision, as well as, if applicable, certificates regarding the jurisdiction of the foreign court. For family law decisions, additional documents such as marriage or birth certificates may be required. The specific list depends on the applicable national law and any relevant international treaties. If necessary documents are missing, the application may be rejected or suspended due to an incomplete submission.
Are recognized foreign decisions binding for German courts?
Yes, a recognized foreign decision, in principle, has a binding effect on German courts insofar as it concerns the same subject matter and the same parties. This means that a domestic proceeding may not be conducted again or a conflicting decision issued in respect of a matter already decided with res judicata effect abroad (principle of res judicata). Exceptions apply only if the decision was recognized in violation of public policy or if subsequent reasons arise that nullify its effect. However, the binding effect does not necessarily extend to all ancillary rulings, such as enforcement-related matters. During the recognition process, the German court also examines whether ancillary effects are included or must be considered separately.
