Academic journal article Current Politics and Economics of Russia, Eastern and Central Europe

Cross-Border Circulation of Judicial Acts from Georgian Law Perspective (a Comparative Legal Research)

Academic journal article Current Politics and Economics of Russia, Eastern and Central Europe

Cross-Border Circulation of Judicial Acts from Georgian Law Perspective (a Comparative Legal Research)

Article excerpt

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1.The Subject of the Research and Main Elements of Cross-Border Circulation of Judicial Acts - (i) Recognition; (ii) Declaration as Enforceable; And (iii) Enforcement

The cross-border circulation of judicial acts represents one of the central topics in contemporary International Private Law and has acquired a significantly increasing practical importance for Georgia through the last decade. This is caused by the whole series of global processes, which include integration of capital markets of various countries, permanently growing intensity of international trade relationships, etc. and the effect of such processes on a developing economy of Georgia. Therefore, the necessity of proper legal regulation of cross-border circulation of judicial acts is obvious.

Particularly, under cross-border circulation of judicial acts Georgian law and legal practice generally implies the procedures of: (i) recognition; (ii) declaration as enforceable; and factual enforcement of foreign court decisions and foreign arbitral awards. For better understanding of the above, each of the referred elements of cross-border circulation of judicial acts deserves our special attention.

Cross-border circulation of judicial acts, as a legal process, can conditionally be divided into several steps. Two of them are generally made simultaneously and involve the reference of a foreign judicial act for recognition and for declaration as enforceable (in French - Exequatur, in German - Vollstreckbarerklaerung) addressed to the court. However, the term "declaration as enforceable" is mostly not used in Georgian sources and is replaced with simply "enforcement." I believe that most of Georgian legal literature incorrectly uses the term "enforcement" in regards to the action of the court. "Declaration as enforceable" is a more precise definition for court ruling, which lets the foreign judicial act spread its legal force on the territory of a state. At the same time "enforcement," from the legal point of view, implies broader meaning. It also implies the coercive enforcement procedures. Thus, declaration as enforceable represents a precondition for the international coercive enforcement. The latter is regarded as a separate element1 of International Private Law (International Procedural Law) in the contemporary legal literature, and these two elements, constitute integral parts of the international enforcement.2

Recognition and enforcement of foreign court decisions and foreign arbitral awards are tightly interlinked concepts. Declaration of such judicial acts as enforceable has been understood for a significant period of time without their recognition. Based on the practice, the European lawyers have come to the conclusion that declaration of foreign judicial acts only as enforceable was not sufficient for determining their legal effect within the country. First of all, the ground for this is that it is not reasonable to allow the effect of a judgment of a foreign court in the territory of another country without its fundamental verification. For eliminating this gap, the institute of acknowledgment or recognition has emerged.3 After some time the concept of recognition was also established: as a rule, the recognition is made automatically i.e. without specific recognition procedure and by the judge who is authorized to consider the subject of the dispute. This means that, based on the judgment of a foreign court, the results of proceedings, which are envisaged by the legislation of the state that recognizes them as enforceable, and which, correspondingly, are subject of recognition, ipso iure, in practice automatically cover the so called "secondary state"4 (based on the international terminology, the state, where the recognition and enforcement take place is a secondary state, and the state rendering a primary decision is called the primary state). The fact of enforceability of the court decision and arbitral award in the foreign country, according to all the laws, represents a result of proceedings, which is not a subject of recognition in the secondary state. …

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