ACKNOWLEDGEMENT IN ROMANIA OF FOREIGN RESOLUTIONS
Abstract: In 2007 two procedures regarding the acknowledgement of foreign resolutions became enforceable in Romania. The first one is a procedure which applies to foreign resolutions passed in one of the member states of the European Union, while the other is a procedure which applies to member states, based on the principles which apply to international private law.
Thus, the legislation of the European Union provides a set of rules which will help European citizens and residents have access to the same rules of the legal system, benefiting from a simplified procedure stipulated by Regulation 44/2001 and 805/2004.
The acknowledgement of foreign court resolutions is a contentious procedure whose purpose is to verify the compliance with the regularity conditions of these resolutions.
One of the main conditions of such foreign resolutions is that they are intangible. This means that their main effects are to have the value of a matter judged (res judicata), to be enforceable and to have the power to prove an authentic act.
Foreign resolutions that can be acknowledged and executed in Romania may be issued not only by courts of law but also by other authorities with jurisdictional competence.
The procedure for the acknowledgement and enforcement of court resolutions passed in any EU member state is provided in EU regulations that can be directly applied by these member states, namely Regulation no. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters and Regulation no. 805/2004 creating a European Enforcement Order for uncontested claims.
Court resolutions passed in states that are not members of the European Union shall continue to be regulated by the provisions of Law 105/1992 regarding the regulation of international private law relations.
A foreign court resolution usually acquires an enforceable power same as a resolution issued by the country on whose territory the execution of such resolution is requested through the procedure known as exequatur which requires the examination the international regularity of foreign resolutions for their acknowledgement and enforcement. According to the New York Convention from 1958 „no more onerous conditions or higher fees should be imposed than when enforcement of a domestic award is sought.”
Law no. 105/1992 makes a clear distinction between the acknowledgement of foreign court resolutions and their enforcement and between the acknowledgement by right of a resolution and the acknowledgement through a resolution issued by a Romanian court.
Through acknowledgement, the foreign court decision is regarded in Romania as a matter judged (res judicata) same as a Romanian court resolution. In this regard, article 167 of Law no. 105/1992 stipulates that foreign court resolutions may be acknowledged in Romania and be regarded as a matter judged (res judicata). This is the acknowledgement through a Romanian court resolution. However, the effects are the same as the acknowledgement by right.
We are talking about an acknowledgement by right of a foreign court resolution when it refers to the personal status of the citizens of the state where it was passed or if, being passed in a third country, they were first acknowledged in the state whose citizens each party is or, in case such an acknowledgement is lacking, they were passed on the law applicable according to the Romanian international private law, it is not contrary to the Romanian international private law public order and the right of defence was respected.
The conditions for a foreign court resolution to be acknowledged in Romania are the following:
- The resolution is final according to the laws of the state where it was passed;
- According to the laws of the respective country, the court that passed the resolution was competent to judge the case;
- A principle of reciprocity applies in this regard between Romania and the state of the court that passed the resolution;
- If the resolution was passed in the absence of the party who lost the trial, it must be acknowledged that the respective party has received the summons and the act of apprehension in due time, that his right of defence and to appeal the resolution were both respected. The non-final nature of the foreign resolution, resulting from the failure to summon the person who hasn’t attended the trial before the foreign court, can only be invoked by that person.
The court may refuse the acknowledgement of a foreign resolution for the following reasons:
- The resolution is the result of a fraud committed during the procedure carried out abroad;
- The foreign resolution breaches the public order of the Romanian international private law;
- The lawsuit was settled between the same parties through a resolution, even if not a final one, of Romanian courts or is being tried by these courts at the time the foreign court is notified;
- If the Romanian courts had exclusive competence for judging the case (art. 1096 paragraph (1) letter e) Civil Procedure Code.
If the acknowledgement of a foreign resolution is sought, a request must be submitted in this regard with the competent court or authority. A certificate filled out by the competent court or authority that has issued the resolution, the authentic act or the judicial transaction must also be attached to the aforementioned request. According to article 1098 of the Civil Procedure Code, the acknowledgement request is a matter to be solved directly by the competent court. If it is impossible to determine the competent court, such matters shall be solved by Bucharest Court.
The request for the acknowledgement of a foreign resolution shall be drawn up according to the conditions stipulated by the Civil Procedure Code and shall include the following documents:
- copy of the foreign resolution
- proof that certifies the final nature of the court resolution
- copy of the proof that the summons and act of apprehension were communicated to the party who did not attend the trial or any other official document certifying that the summons and act of apprehension were brought to the attention of the party against which such resolution was passed
- any other document certifying that the foreign resolution complies with all the other provisions stipulated by article 1095 of the Civil Procedure Code.
- S. Deleanu, Drept internaţional privat, partea generală, Dacia Europa Nova Publishing House
- “Enforcements of Foreign Arbitral Awards”, The Romanian Digest, Nr. 5 from May 2005, Vol. X;
- Ghid de cooperare judiciară internațională în materie civilă și comercială, Coordinator: Dr. Viviana Onaca.