21 January 2016
1) The possibility of recognition of foreign judgments and arbitral awards on the basis of reciprocity
In support of the need to recognize foreign judgments on the basis of reciprocity in the Concept Definition quoted the Supreme Court from
Commenting on the reference to the ECtHR judgment «Peter Korolev against the Russian Federation» in support of the existence of the principle of reciprocity, it should be noted that in this case the ECHR merely stated that the Russian courts recognize and execute decisions of foreign courts on the basis of reciprocity (comity) but not prescribed to recognize foreign decisions on the basis of this principle.
The circumstances of the case were as follows. The applicant — Petr Korolev — he served in the Pacific Fleet as commander of the tanker «Argun», which was leased to foreign companies. From 1996 -1999, the crew had not been paid in connection with what Mr. Korolev while the ship is in the port of Cape Town (South Africa) brought an action in the Supreme Court of Appeal of South Africa for the recovery of arrears of wages. This requirement by the Supreme Court of Appeal of South Africa was granted.
Subsequently, Peter Korolev to sue for recovery of wage arrears in the Russian courts, which satisfy this requirement was denied. In connection with the refusal of the claim and the exhaustion of domestic remedies, Mr. Korolev appealed to the European Court of Human Rights. As an objection, the Russian Federation declared the argument that the complaint Peter Queen does not comply with («not acceptable»), as they were not exhausted domestic remedies in the form of the possibility of recognition of the Supreme Court of Appeal of South Africa. ECHR, analyzing the Russian judicial practice (Determination of the Supreme Court of the Russian Federation of
Thus, the ECHR merely stated that the possibility of recognition of foreign judgments on the basis of reciprocity, allowed the Russian judicial practice, but does not produce the prescribed recognition on the basis of the discussion of this very principle.
2) The decision of a foreign court, does not require recognition — much to bear?
According to Art. 413 Code of Civil Procedure of the Russian Federation, a person whose rights are affected by the decision of a foreign court, not requiring enforcement has the right to raise objections against the recognition of decisions within one month after it became aware of the receipt of the decision.
Since Art. 413 Code of Civil Procedure Code does not specify which authority should have to do a foreign judgment, concept developer tried to eliminate this gap, but it turned out they have a very original way
According to the developers Concept art. 413 Code of Civil Procedure of the Russian Federation is applicable to a situation «where the foreign judgment was received by the Ministry of Justice, which came to the conclusion that enforcement decisions are not required to abstain from the direction in any court.»
Conclusion Concept developers that the foreign judgment shall be sent to the Ministry of Justice looks very strange for the following reasons.
In the vast majority, to the number of foreign judgments rendered in cases between citizens, refer the decision to divorce. Since such a decision is a confirmation of the status of a person changes, then it is subject to presentation to the bodies of the registry office (in rare cases, the notary), and not the Ministry of Justice.
Especially, do not fully understand the argument of the Concept of development of what side of the decision to bring the foreign Ministry of Justice, if, according to Art. 415 CPC RF data solutions are recognized in the Russian Federation without further proceedings.
3) Grounds for refusal of recognition of a foreign judgment / award — the obligation to apply or judicial discretion
One of the most controversial provisions of the Concept is the argument that if the court establishes the existence of grounds for refusal to recognize a foreign judgment / award, the court is obliged to apply this effect, because otherwise «the restraining effect of the rules set out in this article can be substantially reduced to zero discretion of the court. «
Securing such a provision in the new (e) Code of Civil Procedure will enter into a significant conflict with the existing international treaties of the Russian Federation, as according to Art. V of the New York Convention 1958 (of which the developers of the Concept mentioned), the refusal to recognize a foreign arbitral award on the grounds provided by para. 1 of Article V of the New York Convention of 1958 — a law of the court, but not the obligation («recognition and enforcement of an arbitral award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the competent authority at the place where the recognition and enforcement is evidence that (a) … «- continue by the list).
Enshrined in domestic law provisions directly contrary to an international treaty: (a) is meaningless due to n. 4 of Art. 15 of the Constitution; (b) harmful, because the courts will inevitably churn confused as to what the act shall apply.
Conclusion: The analysis of these provisions does not allow to recognize them through thoughtful and desirable to the introduction
Instead of an epilogue
At a conference in November 2014, dedicated to the 200th anniversary of the Code Napoleon, AL Makovsky said that while working on the 1804 PGA Mr. Jean cambaceres (Minister of Justice) brought Napoleon a daily report of the Government Commission on the PGA, which was recorded in which members of the Commission to make any corrections.
Names of the persons responsible for the preparation of this section are unlikely to be known to the public, although it might be very instructive.
