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Journal of Private International Law Volume 8, 2012 - Issue 2
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Original Articles

The Jurisdiction of Foreign Courts and the Enforcement of their Judgments in Tunisia: A Need for Reconsideration

Beligh Elbalti
Pages 195-224 | Published online: 07 May 2015

  • Private international law should be understood, according to the common law conception, as the branch of law that addresses the questions of international jurisdiction, choice of law and the recognition and enforcement of foreign judgments. See TC Hartley, International Commercial Litigation: Text, Cases and Materials on Private International Law (Cambridge University Press, 2009), 3–4.
  • A Mezghani, Droit international privé, États nouveaux et relation privées internationales–système de droit applicable et droit judiciaire international (CÉRES/CERP, 1991), 72, 140.
  • Ibid 72; MA Hachem, Leçons de droit international privé Livre I: Les règles matérielles, condition des etrangers et conflits de juridictions (CERP, 1996), 115.
  • Mezghani, supra n 2, 70–82.
  • S Bostanji, “Les Survivances du communautarisme dans l'application judiciaire du droit international privé tunisien” (2009) 98 Revue critique de droit international privé 253–54.
  • This article only addresses the issue of the enforcement of foreign judgments. The reason being, in practice, and except for the very limited category of declaratory acts and judgments related to civil status (marriage, birth or death, etc), foreign judgments need to be declared enforceable in order to be recognised in Tunisia. It should be noted that, despite the fact that the Tunisian Cour de Cassation clearly admitted the principle of de plano recognition of divorce judgments (Ruling No 49602 of 6 May 1997 in RJL No 1, 2002, 223; Ruling No 69622 of 4 January 1997, unpublished), some lower courts' decisions persist in denying foreign divorce judgments their normative and sometimes even preclusive effects in the absence of a declaration of exequatur. This practice has been strongly criticised by scholars and commentators in Tunisia. See A Mezghani, Commentaires du Code de droit international privé (CPU, 1999), 187–92; S Ben Achour, Enfance disputée–les problèmes juridiques relatifs aux droits de garde et de visite après divorce dans les relations franco-maghrébines (CPU, 2004), 193–97; L Chedly and M Ghazouani, The Code of Private International Law (CEJJ, 2008), 273–76, 291–98 (in Arabic). It should be noted, however, that there is a general trend in lower courts to accept the preclusive effect of foreign divorce judgments.
  • Mezghani, supra n 2, 397–402. Similar control is still required in some other Arabic countries such as Egypt (Art 298 of the Egyptian Code of Civil Procedure), Bahrain (Art 252 of the Civil and Commercial Procedure Act); see, JS Ahmed, “Enforcement of Foreign Judgments in Some Arab Countries: Legal Provisions and Court Precedents: Focus on Bahrain” (1999) 14 Arab Law Quarterly 169.
  • The old Art 318–1 CPCC stated that “To be declared enforceable, it is necessary: (1) that the judgment rendered in a foreign country emanates from a competent judicial authority in accordance with its law” (translated by the author). Several bilateral conventions concluded by Tunisia require that the jurisdiction of foreign courts be determined according to the law of the rendering State. For example, the conventions on judicial co-operation concluded with Algeria on 26 July 1963 (Art 19-a); UAE on 7 February 1975 (Art 22-a), Italy on 15 November 1967 (Art 3-a), etc.
  • “Direct jurisdiction” (compétence directe) refers to the jurisdiction assumed by national courts to hear an international dispute as opposed to “indirect jurisdiction” (compétence indirecte) which refers to the control of the jurisdiction of the foreign rendering court as a condition for the recognition and enforcement of foreign judgments. See R Michaels, “Some Fundamental Juris-dictional Conceptions as Applied in Judgment Conventions” in Conflict of Laws in a Globalized Wo r l d (Cambridge University Press, 2007), 35.
  • The old Art 318–3 CPCC required that “In order to be declared enforceable, it is necessary…3) that the dispute decided by the foreign court does not fall within the competence of Tunisian courts according to Tunisian laws” (translated by the author). Some bilateral conventions concluded by Tunisia used this criterion as a standard to review the jurisdiction of the rendering court. For example, the conventions on judicial co-operation concluded with Egypt on 12 May 1976 (Art 23-a); Kuwait on 25 July 1980 (Art 23-a); Argentina on 16 May 2006 (Art 28) etc.
  • Mezghani, supra n 2, 381–85, 399–402; M Charfi, “L'Exequatur des jugements etrangers et des sentences arbitrales internationales en Tunisie” in Droit syndical et droits de l'homme à l'aube du XXIe siècle: Mélanges en l'honneur de Jean-Maurice Verdier (Dalloz 2001), 320–22.
  • Such application leads to the ignorance of one of the most important principles governing international jurisdiction, ie the principle of “international concurrence of fora”. According to this principle, more than one available forum can assume jurisdiction over a dispute. Accordingly, judgments rendered by such a forum are readily recognised and enforced elsewhere subject to meeting certain requirements laid down by the law of the state of enforcement. See DP Fernández Arroyo, “Compétence exclusive et competence exorbitante dans les relations privées internationales” (2006) 323 Collected Courses 37.
  • Choice-of-court agreements were accepted subject to conferring jurisdiction to Tunisian courts. Mezghani, supra n 2, 362. They were considered invalid when they deprived Tunisian courts of their jurisdiction (old Art 3 CCPC); Mezghani, ibid, 382.
  • Old Art 2–3(6) of the CCPC enabled Tunisian courts to take jurisdiction over foreigners not domiciled in Tunisia in all cases whereby foreign courts would assume jurisdiction in an action initiated against a Tunisian on the basis of reciprocity.
  • To put it differently, the jurisdiction of foreign courts over cases that did not fall within the jurisdiction of Tunisian courts, be it exclusive or ordinary, was purely residual, Mezghani, supra n 2, 369. See also A Mezghani, “Harmonisation des compétences et exequatur, la compétence étrangere en question” in Mélanges en l'honneur de Habib Ayadi (CPU, 2000), 638.
  • However, as will be shown later, the control of the jurisdiction of foreign courts was not frequently addressed by Tunisian courts, and was almost not used to block the enforcement of foreign judgments. See infra Section A.1(b).
  • For example, the control of applicable law–a condition that did not exist in Tunisian law–could have been applied as a matter of reciprocity. Tunisian courts, however, clearly refused to do so. See Mezghani, supra n 2, 407–08. Similar provision can be found in the Egyptian Code of Civil Procedure (Art 296); Bahrain law of enforcement (Art 252 of the Civil and Commercial Act). See Ahmed, supra n 7, 170.
  • The refusal of the enforcement of a Tunisian judgment when Tunisian courts were deemed to lack jurisdiction for any reason (nationality of the foreign defendant, etc) could, theoretically, lead foreign courts to see their judgment refused enforcement in Tunisia on the ground of the same reason.
  • Bostanji, supra n 5. See also MA Hachem, “Le Code tunisien de droit international privé” (1999) 88 Revue critique de droit international privé 227.
  • Law No 98–97 of 27 November 1998 relating to the promulgation of the Private International Law Code, JORT, 1/12/1998.
  • See generally, Mezghani, supra n 6; A Mezghani, “Les innovations du code tunisien de droit international privé” (2001) 65 Rabels Zeitschrift für ausländisches und internationales Privatrecht 102; Bostanji, supra n 5; Hachem, supra n 19; Chedly and Ghazouani, supra n 6; K Meziou, “Introduction au code de droit international privé” in Le Code droit international privé, deux ans après: Première journée d'études en droit international privé organisée par la Faculté des sciences juridiques, politiques et sociales (Tunis) le 19 Avril 2001 (CPU, 2003), 1.
  • Mezghani, supra n 6, 193. Among other changes, the abolition of jurisdiction based on the nationality of the Tunisian defendant, jurisdiction based on reciprocity. In addition, the PILC draws, for the first time, a distinction between exclusive and ordinary jurisdiction.
  • 23 See Appendix.
  • In his commentaries of the PILC, Mezghani states that “le régime mis en place est donc libéral et il permet de recevoir dans l'ordre juridique tunisien toute décision étrangère se pro-nonçant sur une question qui pourrait relever ou ne pas relever de la compétence tunisienne” (Mezghani, supra n 6, 194).
  • See also Chedly and Ghazouani, supra n 6, 223; Ben Achour, supra n 6, 215.
  • See FK Juenger, “The Recognition of Money Judgments in Civil and Commercial Matters” (1988) 36 American Journal of Comparative Law 13. See also, G Walter and SP Baumgartner, “General Report—The Recognition and Enforcement of Judgments outside the Scope of the Brussels and Lugano Convention” in Recognition and Enforcement of Judgments outside the Scope of the Brussels and Lugano Convention (Kluwer Law International, 2000), 22–24.
  • For example, the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters concluded on 1 February 1971 (Art 4); the Preliminary Draft Convention on Jurisdiction and Enforcement of Foreign Judgments in Civil and Commercial Matters (Art 27). Almost all the bilateral and multilateral conventions on the recognition and enforcement of foreign judgments concluded by Tunisia (33 conventions) include the control of the international competence of foreign courts. The list of the bilateral conventions in French can be retrieved from www.e-justice.tn/index.php?id=99 (accessed 29 February 2012).
  • “Brussels system” refers to the conventions and regulations dealing with jurisdiction and enforcement of foreign judgments namely the Brussels Convention on Jurisdiction and the Enforcement of Foreign Judgments in Civil and Commercial Matters of 27 September 1968 (Brussels Convention), Lugano Convention on jurisdiction and the enforcement of judgments in civil and commercial matters of 16 September 1988 (Lugano Convention), Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (hereinafter Brussels I); Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (hereinafter Brussels IIbis).
  • Brussels I Recital 1.
  • AF Lowenfeld, International Litigation and Arbitration (Thomson/West, 3rd edn, 2006), 471.
  • Hartley, supra n 1, 346; See also D Bureau and H Muir Watt, Droit International Privé: Tome I Partie Générale (Presses Universitaires de France, 2nd edn, 2010), 269 who consider that the appreciation of the compétence indirecte of foreign court as “la condition cardinale de régular-ité internationale”. Following the same line of ideas, Castel considers that this control “is the most important of all requirements for the recognition and enforcement of foreign judgments in Canada.” JG Castel, Introduction to Conflict of Laws (Butterworths, 4th edn, 2002), 104–05.
  • PD Trooboff, “Ten (and Probably More) Difficulties in Negotiating a Worldwide Convention on International Jurisdiction and Enforcement of Judgments: Some Initial Lessons” in A Global Law of Jurisdiction and Judgments: Lessons from the Hague (Kluwer Law International, 2002), 263; see also P Nygh, “Arthur's Baby: The Hague Negotiations for a World-wide Judgments Conven-tion” in J Nafziger and S Symeonides (eds), Law and Justice in a Multistate World: Essays in Honor of Arthur T von Mehren (Transnational Publishers, 2002), 151.
  • 33 See Appendix.
  • See infra 2(a).
  • See infra 2(b).
  • Emphasis added. Translated by the author. Chedly and Ghazouani, supra n 6, 214. In their commentaries, the authors repeatedly confirm their position. We can quote for example these passages from their book. “The Private International Law Code has adopted a clear and simple solution since it limits the control of jurisdictional requirements to a minimum control of the non respect of the exclusive jurisdiction of Tunisian courts by foreign courts” and continue by stating that “in comparison with most of the comparative legislation, the Tunisian legislation is distinguishable by the abandonment of the control of the competence of foreign courts in a large way and limiting it only to the control of the exclusive jurisdiction” (translated by the author), Chedly and Ghazouani, ibid, 222–23; or the “Private International Law Code clearly excluded the condition that a foreign judgment should be rendered by a court of a competent jurisdiction since it only requires the judgment not to be rendered in breach of one of the heads of exclusive jurisdiction of the Tunisian courts” (translated by the author), Chedly and Ghazouani, ibid, 270.
  • Emphasis added. Translated by the author. S Ben Achour, “Les sources du droit tunisien de l'exequatur: tentative de résolution du conflit entre le droit commun et le droit conventionnel” in Le Code droit international privé, deux ans après, supra n 21, 65–66. S Ben Achour confirms her opinion by stating that “Encore plus libérale est la solution retenue par le Code tunisien de droit international privé puisqu'il a tout simplement supprimé le contrôle de la compétence indirecte du juge étranger” (emphasis added), Ben Achour, supra n 6, 215.
  • Mezghani, supra n 6, 197, see also Mezghani, supra n 21
  • Ben Achour considers that requiring such a minimum control entails reintroduction of what Art 11 clearly excluded, supra n 6, 215.
  • See infra 2(b). See also Ben Achour, supra n 37.
  • Art 17 of the bilateral convention concluded between the Republic of Tunisia and the Kingdom of Spain dated 24 September 2001, ie after the promulgation of the PILC.
  • Tunis Court of Appeal, case no 22715 dated 22 February 2006 reported in Chedly and Ghaz-ouani, supra n 6, 213, 216, 231–33.
  • See supra Introduction.
  • As far as the control of the jurisdiction of foreign courts is concerned, it is clear that the new code abolished the requirement according to which a foreign court should have jurisdiction according to Tunisian rules of direct jurisdiction. From now on, the possibility of concurrent jurisdictions is recognised in Tunisia and that only judgments rendered in matters considered as exclusive by Tunisian law will be denied enforcement in Tunisia. Moreover, the control of jurisdiction of foreign courts according to their own law should be considered abolished. Mezghani, supra n 6, 193–96.
  • Mezghani, ibid.
  • Ibid, 196.
  • Ibid.
  • Ibid. Some scholars argue the control of the international jurisdiction of foreign courts cannot be justified because an eventual incompetence is covered by res judicata (l'autorité de la chose jugée). See M Ben Jemia, “Répudiation islamique et effet attenué de l'ordre public” in Le Code droit international prive, deux ans après, supra n 21, 134.
  • Mezghani, ibid, 196.
  • Ibid, 197.
  • Ibid, 196; see also M Ben Jemia, “L'Exequatur des décisions étrangères en matière de statut personnel” (2002) RTD 151. It should be noted that this argument is limited to cases where the control is based on domestic law. When a bilateral convention (requiring the control of jurisdiction) is applicable, Tunisian courts usually examine whether or not the judgment in question was rendered by a competent jurisdiction. See supra 1(a).
  • Mezghani, supra n 6, 196.
  • 53 Art 12: see Appendix.
  • 54 The author considers that there is no contradiction between the two articles. Such contradiction appears only when one considers that the control of the jurisdiction of foreign courts is abolished by Art 11. See developments below.
  • Chedly and Ghazouani, supra n 6, 223.
  • Ibid, 270–71. See supra 1(b).
  • Chedly and Ghazouani, ibid.
  • Ibid, 270. In fact, it seems possible to construe the words “competent foreign authority” in Art 11–1 in a way that follows the prevailing academic opinion. Indeed, a foreign court that assumes jurisdiction on a basis that is not considered exclusive according to Tunisian law can be considered competent. (The heads of exclusive jurisdiction of Tunisian courts are laid down by Art 8 PILC: see Appendix.) A “competent foreign authority” in Art 12 would therefore mean any foreign authority that assumes jurisdiction on any basis, except those considered exclusive by Tunisian law. The doctrine of the academics does not seem to adopt this interpretation, which, as it will demonstrated below, has several harmful consequences.
  • Chedly and Ghazouani, ibid, 271.
  • A few lower court decisions seem to consider that the competence of foreign courts is controlled in the light of both Arts 11 and 12. For example, in its decision no 34116 dated 19 June 2000 (reported in Chedly and Ghazouani, ibid, 277), the Tribunal of First Instance of Tunis considered that marriage bonds can be dissolved only by a judgment rendered by a court having jurisdiction according to the conditions of Arts 11 and 12 PILC.
  • The total number of conventions related to the recognition and enforcement of foreign judgments amounts to 33 including 31 bilateral conventions and two multilateral conventions. See www.e-justice.tn/index.php?id=98. In fact, only one convention departs from this rule: the convention with Greece dated 12 April 1993, Art 29.
  • These Conventions were concluded with China (4 May 1999), Spain (24 September 2001) and Argentina (16 May 2006) available at www.e-justice.tn/index.php?id=99 (accessed 29 February 2012).
  • Juenger, supra n 26, 8.
  • Mezghani, supra n 6, 165. See also Chedly and Ghazouani, supra n 6, 213–14; Ben Achour, supra n 37.
  • 65 The New York Convention allows the application of more favourable conditions for the recognition and enforcement of foreign arbitral awards by the virtue of the so-called more-favourable-right provision (Art VII).
  • According to them, there is no need to apply the old conventional solutions since the law has changed, because they are more restrictive. Therefore, the new solutions of the code should prevail. Mezghani, supra n 6, 194, Ben Achour, supra n 37, 64–66. But what about the newly concluded conventions?
  • Mezghani, ibid, 165; See also Chedly and Ghazouani, supra n 6, 223.
  • Art 32 of the Constitution states that “Treaties come into force only following their ratification and provided they are applied by the other party. Treaties ratified by the President of the Republic and approved by the Chamber of Deputies have a higher authority than that of laws.” However, it should be noted that after the revolution of 14 January 2011, a new constitution is to be adopted. On 23 October 2011 a Constitutional Assembly was elected for this purpose and work is still going on.
  • See, for example, the judgment of the Tunis Court of Appeal, case no 22715, dated 22 February 2006, supra n 42. The court considered that “The PILC, and especially article 11, set forth the conditions that must be fulfilled in order to declare foreign judgments enforceable. In addition, a convention relating to judicial assistance in civil and commercial matters as well as the recognition of judgments was concluded between the Republic of Tunisia and the Kingdom of Spain…. Since the action is brought after the approval of that convention and before its publication, the convention is applicable to the case…the court, therefore, must apply the provisions of the convention.” (translated by the author).
  • According to Art 32 of the Constitution, these requirements are, first, the ratification by the President of the Republic and, second, the approval of the Chamber of Deputies. No condition related to the publication of the convention is required. For more details see M Ghazouani, “L'Opposabilité des conventions internationales non publiées aux particuliers, observations sous l'arrêt de la Cours de cassation No 77157 du 12 mai 2000 “ (2003) RTD 251–65.
  • 71 It is possible, however, to think that in order to ensure the enforcement of Tunisian judgments in countries that discard foreign judgments altogether in the absence of an international convention, the Tunisian government has no choice but to enter into such agreements. It is also possible to think that countries which accept to conclude such agreements do not want to give a free pass to Tunisian judgments. These countries may insist that Tunisian courts should be competent to issue judgments which would be given effect despite the fact that their judgment would eventually be enforced in Tunisia without any control of international competence. However, a country that does not want to give effect to Tunisian judgments without control of the international competence of Tunisian courts can simply abstain from entering such agreements knowing that its judgments will be freely enforced in Tunisia without any review of the jurisdiction of the rendering court.
  • See A Briggs, “Crossing the River by Feeling the Stones: Rethinking the Law on Foreign Judgments” (2004) 8 Singapore Year Book of International Law 1.
  • AI Pribetic, “‘Thinking Globally Acting Locally’: Recent Trends in the Recognition and Enforcement of Foreign Judgments in Canada” (2006) Paper 1462 Bepress Legal Series available at http://law.bepress.com/expresso/eps/1462 (accessed 29 February 2012)
  • DP Stewart, “The Recognition and Enforcement of Foreign Judgments in the United States” (2010) 12 Yearbook of Private International Law 179.
  • Juenger, supra n 26, 9–11. See also Hartley, supra n 1.
  • G Cuniberti, “The Liberalization of the French Law of Foreign Judgments” (2007) 56 International and Comparative Law Quarterly 931. See also A Cornec and J Losson, “French Supreme Court Restates Rules on Jurisdiction, Recognition and Enforcement of Foreign Decisions in Matrimonial Matters: A New Chance for Old Cases” (2010) 44 Family Law Quarterly 83.
  • For instance, Art 118–1 of the Japanese Code of Civil Procedure, M Takeshita, “The Recognition of Foreign Judgments by the Japanese Courts” (1996) 39 Japanese Annual of International Law 1996, 56; N Tada, “Enforcement of Foreign Judgments in Japan Regarding Business Activities” (2003) 46 Japanese Annual of International Law 75; Art 328–1 of the German Code of Civil Procedure (ZPO), see Dieter Martiny, “Recognition and Enforcement of Foreign Judgments in Germany and Europe” in J Basedow, H Baum and Y Nishitani (eds), Japanese and European Private International Law in Comparative Perspective (Mohr Siebeck, 2008), 377; Art 64(a) of the Italian legge 218/95, see MA Lupoi, “Recognition and Enforcement of Foreign Judgments Outside the Scope of Brussels and Lugano Convention: Italy” in Recognition and Enforcement of Judgments Outside the Scope of the Brussels and Lugano Convention (Kluwer Law International, 2000), 347, M Boni, “Recognition and Enforcement of Foreign Judgments in Italy” (2007) 29 Comparative Law Yearbook of International Business 119; Arts 25 and 26 of the Swiss law on private international law (18 December 1987), see YP Piantino, “Recognition and Enforcement of Money Judgments between the United States and Switzerland: An Analysis of the Legal Requirements and Case Law” (1997) 17 New York Law School Journal of International and Comparative Law 91; Art 3155 Quebec Civil Code, see C Emanuelli, “Recognition and Enforcement of Foreign Judgments in Quebec” (2007) 9 Yearbook of Private International Law 343.
  • For a general study see, see Juenger, supra n 26, 13–20. See also Walter and Baumgartner, supra n 26, 22–24.
  • For the United States, see AT von Mehren, “Recognition and Enforcement of Foreign Judgments of Sister State Judgments: Reflections on General Theory and Current Practice in the European Economic Community and the United States” (1981) 81 Columbia Law Review 1981, 1044, For Canada, see JA Wood, “Recognition and Enforcement of Judgments between Prov-inces: The Constitutional Dimensions of Morguard Investments Ltd” (1993) 22 Canadian Business Law Journal 104, see also PF Schlosser, “The Abolition of Exequatur Proceedings—Including Public Policy Review?” (2010) Heft 2 IPRax 102.
  • Schlosser, ibid. See also, V Black, “Canada and the US Contemplate Changes to Foreign-Judgment Enforcement” (2007) 3 Journal of Private International Law 1.
  • Art 35: “1. Moreover, a judgment shall not be recognised if it conflicts with Sections 3, 4 or 6 of Chapter II, or in a case provided for in Article 72. However, in the EU steps were taken to abolish exequatur proceedings. See Commission proposal (COM(2010) 748/3) available at http://ec.europa.eu/justice/policies/civil/docs/com_2010_748_en.pdf (accessed 29 February 2012); see also the Draft Report of the Committee of Legal Affairs of the European Parliament on the proposal for a regulation of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, available at www.contentieux-international.net/offres/file_inline_src/358/358_A_4254_17.pdf (accessed 29 February 2012). For comments on the Brussels I review proposal, see A Dickinson, “The Revision of the Brussels I Regulation, Surveying the Proposed Brussels IBIS Regulation—Solid Foundations but Renovation Needed” (2010) 12 Yearbook of Private International Law 247; see also C Kessedjian, “Commentaire de la refonte du règlement no 44/2001” (2011) 47 RTD eur. 1. It is likely that the final version of the recast Brussels I will retain the current limited situations where the jurisdiction of the court of origin can be reviewed even though the Regulation will abolish the declaration of enforceability (exequatur).
  • For the notion of reasonableness, see L Usunier, La régulation de la compétence juridictionnelle en droit international privé, étude de droit comparé en matière civile et commerciale (Economica, 2008), préface H Muir Watt. For a summary in English, see “Regulating the Jurisdiction of Courts in International Litigation: Toward Global Answers in Civil and Commercial Matters” (2007) 9 Yearbook of Private International Law 541.
  • The reciprocity requirement in the PILC is applied not only at the stage of the examination of the exequatur requirements (Art 11–5, see Appendix), but also to the actual enforcement of the foreign judgment (Art 18, see Appendix). See S Bostanji, “La Notion de réciprocité dans les relations privées internationales–réflexions à la lumière du nouveau code de droit international privé” in Le Code Droit international privé, deux ans après, supra n 23, 69.
  • Juenger, supra n 26, 293.
  • For a panorama of such exorbitant bases, see Fernández Arroyo, supra n 12, 127–70.
  • Official Report of Jenard, [1979] OJ C59, 19. This exclusion was described by one scholar as a “confession of sins”. P Schlosser, “Jurisdiction in International Litigation—The issue of Human Rights in Relation to National Law and to the Brussels Convention” (1991) 74 Rivista di diritto internazionale 5.
  • For example, the French Cour de cassation considered that Art 14 of the French Civil Code “qui donne compétence à la juridiction française en raison de la nationalité française du demandeur, n'a lieu de s'appliquer que lorsqu'aucun critère ordinaire de compétence territo-riale n'est réalisé en France.” Cass civ 1re, 19 November 1985, Société Cognac and Brandies from France [1986] Rev crit DIP 712 note Y Lequette; JDI 1986. 719 note A Huet; JCP 1987. II 20810 note P Courbe. See also KH Nadelmann, “Jurisdictionally Improper Fora in Treaties on Recognition of Judgments: The Common Market Draft” (1967) 67 Columbia Law Review 995; LI de Winter, “Excessive Jurisdiction in Private International Law” (1968) 17 International and Comparative Law Quarterly 706; KA Russell, “Exorbitant Jurisdiction and Enforcement of Judgments: The Brussels System as an Impetus for United States Action” (1993) 19 Syracuse Journal of International Law & Commerce 57; KM Clermont and JRB Palmer, “Exorbitant Jurisdiction” (2006) 58 Maine Law Review 474; Fernández Arroyo, supra n 12, and DP Fernández Arroyo “Exorbitant and Exclusive Grounds of Jurisdiction in European Private International Law: Will They Ever Survive” in Festschrift Erik Jayme, tome I (Sellier, 2004), 169.
  • de Winter, ibid.
  • DP Fernández Arroyo, “Beyond Choice of Law and Multistate Justice: Substantive Law Approach and Search for a Reasonable Jurisdiction” in FK Juenger, Choice of Law and Multistate Justice, special edn (Transnational Publishers, 2005) xxix; Fernández Arroyo, supra n 12, 128 and supra n 87, 170–71.
  • Fernández Arroyo, supra n 12, 128; Fernández Arroyo, supra n 87, 170–71.
  • In this context, D Holleaux wrote “Le but étant de ne repousser comme incompétemment ren-dues que les décisions des tribunaux dont la compétence est violemment attentatoire à l'intérêt procédural d'un plaideur, envisagé en particulier sous l'angle de droits de la défense, ou les déci-sions de tribunaux trop éloignés des données du litige pour avoir pu administrer correctement la justice”, D Holleaux, Compétence du juge étranger et reconnaissance des jugements (Dalloz, 1970), 383.
  • Indeed, the Protocol crystallises the obligation not to recognise judgments based only on a ground of specific bases of jurisdiction “which are usually condemned as excessive”: de Winter, supra n 87, 715; see also Nadelmann, supra n 87. Those exorbitant bases were listed in Art 4 of the Protocol.
  • TC Hartley, “The Brussels Regulation and Non-Community States” in Japanese and European Private International Law in Comparative Perspective (Mohr Siebeck, 2008), 22.
  • U Magnus and P Mankowski, Brussels I Regulation, (Sellier European Law Publishers 2007), 75–77; Hartley, ibid. 20.
  • Magnus and Mankowski, ibid, 76; Hartley, ibid.
  • This is the reason why some conventions were concluded on the basis of Art 59 of the Brussels Convention which allowed a contracting state to conclude conventions with non-contracting states under which it would agree not to give effect to judgments against persons domiciled or habitually resident in the non-contracting state if jurisdiction was taken on the objectionable grounds outlawed by the Brussels Convention itself. This system continues under Brussels I, but is only concerned with the conventions concluded before the entry into force of the regulation.
  • These conventions are: conventions concluded by the United Kingdom with Canada and Australia, and the convention concluded by France with Canada.
  • Fernández Arroyo, supra n 12, 134–37; see also Schlosser, supra n 82, 6.
  • Fernández Arroyo, ibid.
  • Ibid, 135.
  • Ibid, 44.
  • M-L Niboyet, “Regard européen sur le nouveau droit international privé tunisien” in Le Code droit international privé, deux ans après, supra n 23, 147–62.
  • Niboyet, ibid, 154.
  • In fact, Professor Ben Jemia considers that the incompetence of the foreign court is covered by res judicata (l'autorité de la chose jugée). See Jemia, supra n 48. This position is illogical because foreign judgments cannot be considered as conclusive unless they were rendered by a competent court. In this sense see Niboyet, supra n 101, 154.
  • P Kinsch, “Droits de l'homme, droits fondamentaux et droit international privé” (2005) 318 Collected Courses 47, or P Kinsch, “The Impact of Human Rights on the Application of Foreign Law and on the Recognition of Foreign Judgments—A Survey of the Cases Decided by the European Human Rights Institutions” in T Einhorn and K Siehr (eds), Intercontinental Cooperation through Private International Law—Essays in Memory of Peter E Nygh (TMC Asser Press, 2004), 197; JJ Fawcett, “The Impact of Article 6(1) of the ECHR on Private International Law” (2007) 56 International and Comparative Law Quarterly 1; B Juratowitch, “The European Convention on Human Rights and English Private International Law” (2007) 3 Journal of Private International Law 173.
  • Nygh, supra n 32, 167
  • Kinsch (2005), supra n 104, 47; See also Fernández Arroyo, supra n 12, 88, 89.
  • Usunier (2007), supra n 82, 548–49. In the same line of ideas, DP Fernández Arroyo affirms that “Il est un fait acquis que l'application des fors exorbitants provoque très souvent des violations des droits fondamentaux dans le procès judiciaire. Même lorsqu'il n'y a pas violation matérielle, l'essence propre des ces fors encline à telles violations, et cette seule potentialité devrait être suffisante pour les écarter de toutes les législations” (supra n 12, 133).
  • See Pennoyer v Neff, 95 US 714 (1877). Kinsch (2005), supra n 104, 51: “Le due process of law peut être assimilé à la garantie des droits de la défense des parties au litiges, ou, si l'on veut, à la garantie d'un procès équitable”, ibid, 53.
  • 346 US 310, 66 S Ct 154, 90 L Ed 95 (1945).
  • “It is unconstitutional for a state to take jurisdiction unless there are minimum contacts between the defendant, the cause of action and the forum.” Hartley, supra n 93, 22.
  • Von Mehren, supra n 79, 94.
  • Morguard Investment Ltd v De Savoye [1990] 3 SCR 1077. The Canadian Supreme Court explained that: “The taking of jurisdiction by a court in one province and its recognition must be viewed as correlatives and recognition in the other province should be dependent on the fact that the court giving judgment ‘properly’ or ‘appropriately’ exercised jurisdiction. It may meet the demands of order and fairness to recognize a judgment given in a jurisdiction that had the greatest or at least significant contacts with the subject matter of the action. But it hardly accords with principles of order and fairness to permit a person to sue another in any jurisdiction, without regard to the contacts that jurisdiction may have to the defendant or the subject matter of the suit…. The approach of permitting suit where there is a real and substantial connection with the action provides a reasonable balance between the rights of the parties. It affords some protection against being pursued in jurisdictions having little or no connection with the transaction or the parties.”
  • Kinsch (2005), supra n 104, 64.
  • 114 Art 6 - Right to a fair trial: “(1) In the determination of his civil rights and obligations…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
  • Kinsch (2005), supra n 104, 65, Kinsch (2004), supra n 104, 323.
  • It is via the recognition or the enforcement of judgments rendered in violation of the right to a fair trial that the effects of such violation will be extended to the enforcing state. Therefore, it is only by refusing to give effect to such judgments that such violation will be limited. In this context it is possible to talk about an obligation to control the respect of the right to a fair trial by the courts of the State of enforcement. See Kinsch (2004), supra n 104, 290–91.
  • See Fawcett, supra n 104, 4; Kinsch (2004), supra n 104, 233, 247, 309.
  • Kinsch (2004), supra n 104, 218; See Fawcett, supra n 104, 3.
  • Case C-7/98, Krombach [2000] ECR I-1935. The assumption of the French courts in a criminal proceeding trial (on a charge of voluntary homicide) involving a civil action (action for damages) was based on the nationality of the victim. The exercise of such jurisdiction is normally prohibited by Art 3 of the Brussels Convention. However, Brussels Convention could not be applied because criminal proceedings do not fall into its scope of application.
  • Krombach decision, ibid, para 17.
  • Hartley, supra n 1, 327.
  • 122 The court held in this regard that “32. It follows that the public policy of the State in which enforcement is sought cannot be raised as a bar to recognition or enforcement of a judgment given in another Contracting State solely on the ground that the court of the origin failed to comply with the rules of the Convention which relate to jurisdiction.” However, the enforcing court was permitted not to enforce the French judgment on the basis of public policy because it violated the defendant's right to a fair trial.
  • In his comments on this decision, Professor Lowenfeld expressed his surprise how “the exercise by F-1 (France) of jurisdiction to adjudicate on a questionable basis turns out not to justify refusal by F-2 (Germany) to enforce and not to be reviewable by the Court of Justice.” AF Lowenfeld, “Jurisdiction, Public Policy and Res Judicata: The Krombach Case” in Einhorn and Siehr, supra n 104, 244–45. In this context Kinsch also considered that with regard to the issue of jurisdiction “la Cour de justice fait prévaloir l'article 28 de la Convention–qui n'est rien d'autre qu'une modalité spécifique de l'idée de libre circulation des jugements–sur le droit du défendeur de ne pas être jugé sur le fondement d'une compétence exorbitante”, Kinsch (2004), supra n 104, 324.
  • Kinsch, ibid, 324, fn 870.
  • Ibid, 295–301.
  • Ibid, 300.
  • Ibid, 88–89. See also a recent decision of the French Cour de cassation (29 February 2012); for a brief outline of this decision, see the comments of G Cuniberti available at http://conflicto-flaws.net/2012/article-14-code-civil-comports-with-the-french-constitution/ (accessed 29 June 2012). The court refused to accept the arguments according to which Art 14 infringes their right of fair trial and violates the principle of equality before the law.
  • Fernández Arroyo, supra n 12, 37
  • Black's Law Dictionary (5th edn, 1979), 590, quoted in FK Juenger, “Forum Shopping, Domestic and International” [1989] Tulane Law Review 554.
  • Juenger, ibid, 553.
  • P Vareilles-Sommières, “Le Forum shopping devant les juridictions françaises” in Travaux Comité fr DIP 1998–1999 49.
  • Bureau and Muir Watt, supra n 31, 222 (forum shopping “à l'envers”).
  • For example, to benefit from substantive or procedural advantages. See Juenger, supra n 129, 554.
  • Vareilles-Sommières, supra n 131, 51.
  • Vareilles-Sommières, ibid.
  • Case C-159/02, Turner v Grovit [2004] ECR I-3565. See TC Hartley, “Antisuit Injunctions and the Brussels Jurisdiction and Judgments Convention” (2005) 54 International and Comparative Law Quarterly 166.
  • Case C-185/07, Allianz SpA v West Tankers Inc [2009] ECR I-663. See E Peel, “Arbitration and Anti-suit Injunctions in the European Union” (2009) 125 Law Quarterly Review 365.
  • Continental Bank v Aeakos SA [1994] 1 WLR 588 (CA) quoted in TC Hartley, “How to Abuse the Law and (Maybe) Come out on Top: Bad Faith Proceedings under the Brussels Jurisdiction and Judgments Convention” in Nafziger and Symeonides, supra n 32, 73.
  • 139 For example, a binational who wishes to get a quick divorce decides to repudiate his wife in his country of origin where repudiation is allowed.
  • 140 For examples of these kinds of manoeuvres, see Hartley, supra n 138, 73–76.
  • Bureau and Muir Watt, supra n 31, 271.
  • G Cuniberti, “Debarment from Defending, Default Judgments and Public Policy” (2010) Heft 2 IPRax 148; G Cuniberti, “La Reconnaissance en France des jugements par defaut anglais–a propos de l'affaire Gambazzi-Stolzenberg” (2009) 98 Revue critique de droit international privé 687.
  • Cuniberti (2009), ibid, 686.
  • Ibid, 686.
  • Cuniberti (2010), supra n 142, 149.
  • Cuniberti, ibid.
  • Canada Trust Company etc v Stolzenberg and Gambazzi and others (no 2), [2000] 3 WLR 1376, see Cuniberti, ibid.
  • Cuniberti, ibid, 149.
  • The European Court of Human Rights and the ECJ had also to intervene. See Cuniberti, ibid, 150; Cuniberti (2009), supra n 142, 686
  • CIBC Mellon Trust v Mora Hotel Corp N V, 100 NY 2d 215, 762 NY S2d 5, 792 NE 2d 155 (8 May 2003), in supra n 140, 692. In fact some of the defendants did appear not only to challenge the jurisdiction of the English court, but also to challenge the interim measures. Cunib-erti (2009), ibid, 692–93.
  • The question was whether the non-compliance of the defendants to English courts' judicial orders (Mareva injunction and disclosure order and two other orders–order which barred Mr Gambazzi from taking any further part in the proceedings unless he complied, within the prescribed time-limit, with the obligations regarding disclosure of the information and documents requested) justifies their debarment from defending therefore contrary to public policy. Cunib-erti (2010), supra n 142, 149.
  • Cuniberti (2009), supra n 142, 686.
  • Supra n 150.
  • Civ 1ère, 30 July 2004, Stolzenberg v CIBC Mellon Trust, supra n 140, 696–97.
  • Milan Court of appeal, 24 November 2010, http://conflictoflaws.net/2011/gambazzi-looses-in-milan/
  • Tribunal de Première Instance de Monaco, CIBC Mellon Trust and Daimlerchrysler Canada, Inc v Gambazzi, 4 December 2008, Cuniberti (2009), supra n 142, 686–97.
  • Swiss Federal Tribunal, 4 June 2002, Case 4 p.48/2002, and 9 November 2004, Case 40.82/2004 in Cuniberti (2009), supra n 142, 693–96. However, only the second judgment was denied enforcement.
  • In this respect, it was considered that the existence of powerful interim measures in England “have turned London into a magnet forum for international fraud cases”. Cuniberti (2010), supra n 142, 149.
  • Cuniberti, ibid.
  • E Cornut, “Forum shopping et abus du choix de for en droit international privé” (2007) 134 Journal de droit international 27.
  • Niboyet, supra n 101, 154.
  • In the Arabic version the word “residence” is used. However, in the French version the word “domicile” is used.

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