Recognition and enforcement of foreign judgments in Bosnia and Herzegovina
Conditions for Recognition under the Law on International Private Law
In our law of Bosnia and Herzegovina, acts of foreign sovereignty are not accepted unconditionally. In the efforts to find a balance between preservation of sovereignty and establishment of international legal cooperation, states stipulate conditions for recognition and enforcement of a foreign court decision. Our legislator in Bosnia and Herzegovina has foreseen conditions, that is, impediments for recognition of foreign decisions. In order for a foreign court decision to produce effect in our country, it is necessary that it passes the procedure for recognition through the system that our country has adopted. A recognised foreign court decision in Bosnia and Herzegovina is equal with decisions of domestic courts. A foreign decision in our country may produce only such effects as foreseen for such decisions by our law, and it may not produce any effects it might have pursuant by the law of the country of origin. According to the Law on International Private Law, conditions for recognition of a foreign court decision are: Indirect jurisdiction, validity and enforceability of a foreign court decision pursuant to the law of the country of origin, absence of violation of the law of Bosnia and Herzegovina as the country in which the recognition is sought, respect of the parties’ right to defence in the proceedings before a foreign body, absence of a domestic valid decision in the same matter, earlier commenced proceeding before a domestic body, violation of public order and reciprocity under old regulations.
Competence of the decision-making body is a general premise of its validity. Our law envisages that the recognition of a foreign court decision may be denied due to incompetence of a foreign court only if by adjudicating in the given case, the foreign court has violated a provision on exclusive international jurisdiction of the domestic judiciary. A valid and final decision passed in accordance with the law of the country of issuance represents a decision suitable for recognition. A court decision for a property-legal request should also have a capacity to be enforced.
The requirement to demand that a foreign court decision cannot be challenged by regular legal remedies in the country of issuance is logical and justified as it would constitute a distortion of legal reliability that a foreign court decision may be recognised in our country, and in its country of origin it may be altered in the appeal proceedings. The validity of a foreign decision will not be appreciated by our law, but by the law of the state where the decision was made. It should be borne in mind that foreign decisions from some legal systems differently acquire validity from what is commonplace in the European-continental legal system. The party seeking recognition is to prove that this decision has become final by the law of the country of origin. Certificate of validity does not always have to be a separate document, separate from a court decision whose recognition in the specific case is sought. It can be stated in the decision itself, by additional text and a special seal, that the decision has become final, that is, enforceable. In modern legal systems, procedural public order prevents recognition of foreign decisions passed contrary to the principles of the procedural law of the state of recognition, and the most common reason is that what is contrary to the principle of hearing the parties. The compulsory application of this principle, as well as respect of basic procedural principles of the state of recognition, is the result of efforts to provide minimum procedural guarantees of active participation of parties in the proceedings. Absence of a domestic final decision on the same matter is the principle which has to be respected and if there is a decision on the same legal matter, it necessarily means that the national state, if it exists, will not recognise a foreign court decision. If there is an earlier initiated procedure before a domestic body because our law foresees the case of collateral estoppel in case there is an earlier initiated procedure in Bosnia and Herzegovina, a foreign court decision will not be recognised. The principle that represents the basis of a constitutional-legal system in a formal sense is also a violation of public order, and with respect to recognition and enforcement of a foreign court decision, the disturbance of the public order of Bosnia and Herzegovina is also reexamined. The competent court in the process of recognition of a foreign court decision assesses a possible violation of the domestic substantial and procedural law by invoking the protection of the public order. The principle of reciprocity is a prerequisite for many systems as it is in our country, in which case the court may refuse to recognise a foreign court or other decision, even though it fulfills all legally prescribed conditions because in the country of origin court and other decisions of domestic competent bodies are not recognised.
Q: What is the procedure for recognition and enforcement of foreign judgments in BiH about?
A: When it comes to business and legal relations between foreigners and parties from Bosnia and Herzegovina, a foreign legal or natural person could think they have been successful if the counterparty from Bosnia and Herzegovina has accepted the court jurisdiction of their country. On the contrary, the foreign legal or natural person has obtained a court ruling that is not enforceable against the debtor in Bosnia and Herzegovina. A foreign court ruling has to be recognised before a competent court in Bosnia and Herzegovina, and only after recognition, the execution proceeding of the foreign court ruling may be initiated in Bosnia and Herzegovina. The recognised foreign court ruling will have the force of a domestic court decision and it will be enforceable. The lawyer Azur Prnjavorac pointed out for our paper
Q: What does the lawyer’s office do in terms of international private and procedural law?
A: First of all, the lawyer’s office looks into the matter, does some research work, gathers all documentation and information required for recognition and enforcement of a foreign court ruling before all courts of Bosnia and Hezegovina and on its entire territory. The lawyer’s office sets the client’s interests as their highest priority and offers full cooperation and transparency in the process. Recognition and enforcement of foreign judgments in Bosnia and Herzegovina
Q: How is the procedure for recognition of a foreign court ruling in civil matters initiated in Bosnia and Herzegovina?
A: The procedure for recognition of a foreign court ruling is initiated by proposal of an authorised representative, that is the lawyer. Law on Resolution of Conflict of Laws with regulations of other countries in certain relations expressly provides that the recognition of a foreign court decision in status matters may be requested by anybody having a legal interest, even persons who were not personally parties in the procedure. Constitutional rule which has to be directly and primarily applied in all procedures is that anyone has to be given the opportunity to participate in the procedure in which his rights are being decided on, and only the right to appeal may be replaced by some other legal remedy.
Q: What do the most frequent cases of recognition of foreign court decisions relate to?
A: The most frequent cases of recognition of foreign court decisions relate to family relations, commercial court disputes and commercial arbitral awards, court decisions on payment of a sum of money arising from contractual obligations of a domestic and foreign legal entity, legacy cases, and other kinds of foreign court decisions.
Q: Who does the jurisdiction as to place belong to in the procedure for recognition and implementation of foreign court decisions?
A: In the procedure for recognition and implementation of a foreign court decision, jurisdiction as to place belongs to the court where the procedure of recognition, that is, implementation is to be performed. Jurisdiction of the cantonal and district courts in Bosnia and Herzegovina to decide on recognition of foreign court rulings is stipulated by the Law on Courts of Federation of BiH / Law on Courts of the Republic of Srpska. The lawyer Azur Prnjavorac pointed out for our paper
Q: Which legal acts apply in the procedure of recognition and implementation of foreign court decisions?
A: The procedure of recognition is performed in accordance with the Entity Law on Out-Of-Court Procedure, where the provisions of the Law on Civil Procedure apply, unless otherwise provided by law, as well as the Law on Resolution of Conflict of Laws with regulations of other countries (“Official Gazette of SFRY” 43/82, 72/82), and Decree Law on Recognition and Application of Federal Laws applied in BiH as well as republic regulations (“Official Gazette of the Republic of Bosnia and Herzegovina”, No.: 2/92). Recognition and enforcement of foreign judgments in Bosnia and Herzegovina
Q: Which public documents issued in foreign countries have legal validity in Bosnia and Herzegovina?
A: In case of signatory states of the Hague convention on abolishing the need for legalization of foreign legal documents dated October 5, 1961 (Convention de la Haye du 5 octobre 1961), public documents issued in foreign countries have legal validity in Bosnia and Herzegovina if certified by Apostille seal, without the need for further certification, and if the documents in question are cited in Article 1 of the said convention, among which belong also documents issued or certified by notary public.
Q: Are there any other foreign public documents with legal significance in Bosnia and Herzegovina?
A: Legal significance in Bosnia and Herzegovina under the applicable bilateral contracts is given also to public documents including certified power of attorney not requiring further certification if issued by competent bodies in the following countries: the Republic of Croatia, Austria, Bulgaria, Belgium, the Czech Republic, Slovakia, Libya, France, Italy, Greece, Cyprus, Hungary, Mongolia, Poland, the Russian Federation, Romania, Serbia and Montenegro. The lawyer Azur Prnjavorac pointed out for our paper
Q: In which cases a foreign court decision shall not be recognised in BiH?
A: A competent Cantonal Court / District Court shall reject recognition of a foreign court ruling in the following cases:
– If contrary to the fundamentals of social system established in the Constitution of Bosnia and Herzegovina,
– If in the matter there is an exclusive competence of a court or another body in Bosnia and Herzegovina,
– If based on objection of a person against whom the decision has been passed, it is established that the person could not participate in the procedure due to irregularities in it,
– If in the same matter a court or some other body of Bosnia and Herzegovina passed a final decision (res judicata) or if some other foreign court decision passed in the same legal matter was recognized in Bosnia and Herzegovina and until the final termination of the lawsuit,
– If there is no reciprocity. Recognition and enforcement of foreign judgments in Bosnia and Herzegovina
Q: What happens in cases when the place of residence of the opponent of the proposer is unknown?
A: In cases when proposal for recognition of a foreign court decision is filed, and the place of residence of the opponent of the proposer is unknown, and there is no attorney, apply provisions of the Law on Civil Procedure on appointment of temporary representative. The lawyer Azur Prnjavorac pointed out for our paper
Q: What is the legal remedy in the procedure for recognition of a foreign court decision?
A: Against the decision on recognition, that is, execution of a decision, parties may file an appeal within fifteen days from the delivery of the decision, and the appeal shall be decided on by the appellate court – Supreme Court of Federation BiH / Supreme Court of the Republic of Srpska. Recognition and enforcement of foreign judgments in Bosnia and Herzegovina
In accordance with the decision, it may be allowed to conduct the procedure for reinstatement and repetition of the procedure.