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Problems
Encountered with Recognition and Enforcement of German Executory
Titles in the U.S.A., as well as of American Executory Titles
in the Federal Republic of Germany
FORM
FOR INTERNATIONAL SERVICE
Sandra
Ch. Frauenheim
translated by Karin Isbell
In view
of the ongoing across-the-border links between Germany and
the U.S.A. and increased instances of contact with foreign
countries, this contribution aims at assisting in overcoming
problems concerning recognition and enforcement of executory
titles - focusing on family law - and at serving as a working
tool. In addition, it intends to give fair weight to practical
needs by setting forth ways and means to enforce American
executory titles in Germany and vice versa and to provide
relevant questionnaires to work with. Rather than dealing
in scientific arguments involving differing opinions, it aims
at providing German and U.S. lawyers with problem-solving
tools.
I.
INTRODUCTION
In order
to answer the question as to where and how to enforce executory
titles regarding disputes involving international relationships,
one can hardly fall back on auxiliary tools used in formulating
treaties.
As far
as the contractual parties are concerned, the issues to be
resolved pertain strictly to the conditions under which someone
may be held liable or which law is to be applied by which
forum, and the choice between ordinary and arbitration courts.
Therefore,
we must rely on the current statutory provisions of the executing
country and forum, as well as mutual agreements and treaties
currently in effect.
Alas,
relations between the U.S.A. and FRG rarely involve applications
of bi- or multilateral agreements; therefore, for the main
part, autonomous state law will apply, based in part on case
law - - in part on national law.
However,
in the area of family law multilateral agreements play a role
in individual instances; thus an interaction of different
standards may result in a confusing overall picture. The following
discussion is aimed at overcoming this problem.
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II.
INTERNATIONAL JURISDICTION
At this
point, the determination of international jurisdiction deserves
closer scrutiny than is usually the case, as justified by
the fact that, pursuant to Section 328, § 1, # 1, ZPO
[=German] Code of Civil Procedure], section 16 a, # 1, FGG
[=provisions governing matters of voluntary jurisdiction]
in Germany, as well as pursuant to the comity rules applicable
in the United States (to be explained below in more detail),
international jurisdiction, within the scope of recognition
and enforcement of executory titles, occupies a special position
insofar as recognition of a ruling passed by a foreign country
will be excluded if, according to domestic law, the courts
of the country to which the foreign court belongs, had no
jurisdiction.
1. Foreign
Relations
International
jurisdiction must be determined whenever the facts of the
case point to a foreign country, however slightly, i.e. if
any point of contact with a foreign country exists, legally
insignificant as it may seem at first glance, e.g. an individual's
foreign citizenship, residence or stay abroad, situs of a
case or a foreign law abroad, or venue where a legal matter
is conducted abroad.1
1 cf.
Rausch in NJW (=[German]] New Legal Weekly), p. 2120
2. Applicable Law
a) International
Jurisdiction According to International Treaties
In principle,
the conflict-of-laws issue with respect to international jurisdiction
may be determined based on international treaties, statutory
or unwritten rules. For Germany and the U.S.A., the Hague
Convention concrning the Jurisdiction of Authorities and the
Law applicable in Respect to the Protection of Minors, dated
October 5, 1961² / (hereafter described as Hague Convention
on the Protection of Minors {CPM}), contains rules to be observed
as a matter of priority.³
While,
unlike Germany, the U.S.A. did not join the Convention, applicability
of the Hague Convention on the Protection of Minors is not
contingent upon reciprocity. With Germany not having explained
the proviso under Article 13, § III, CPM, this Convention
applies to all minors, provided they habitually reside in
one of the contracting countries. Whether or not their country
of origin is itself a CPM member, is irrelevant. CPM encompasses
all principal rules related to determining international jurisdiction
with respect to court decisions on parental custody and care.
Article
1 determines its material, Article 12, CPM, its private; and
Article 13 I, CPM, its physical applicability.
Under
the provisions of Article 1, CPM, international jurisdiction
exists principally at a minor's habitual abode unless jurisdiction
is limited by Article 3 or 4,5, III, CPM. Furthermore, international
jurisdiction concerning court rulings on parental custody
and care may follow Clause 4 or Clause 8 or Clause 9, CPM.
In cases relating to Article 1, CPM, national law applies,
pursuant to Clause 2, CPM; in cases of Clause 4, CPM, lex
patriae applies; and in cases of Clauses 8 & 9, CPM, lex
fori applies.4
b) International
Jurisdiction under Autonomous Provisions of the Federal Republic
of Germany
Whenever
applicability of the Hague Convention Concerning Protection
of Minors has not been established, the autonomous provisions
of the FRG and/or U.S.A. must be reverted to. Please note
that in Germany, unlike in private law, there exist no self-contained
codified provisions concerning international procedural law
but only selective provisions among a variety of national
procedural rules . I
In the
absence of any ruling on certain conflict-of-law issues laid
out either in an international treaty or a codified autonomous
provision, customary law will apply.
In the
absence of any general statutory ruling on international jurisdiction
in the German Code of Civil Procedures with respect to civil
law 8 , one resorts to the round rule established by legal
precedence and literature, which states:
> Local
jurisdiction indicates international jurisdiction<. 6
Accordingly,
a German court exercises international jurisdiction over a
legal dispute which falls under its local jurisdiction.
There
are exceptions to this rule, established mainly within the
fields of family law by ZPO [=German Code of Civil Procedure
and German voluntary jurisdiction (FGG), as set forth below.
²
BGBI [=German Civil Code I] 1971 II, p. 219 ³ If there
exists a State Treaty regarding a certain area, it will displace
autonomous regulations to the extent that its sphere of application
has been established.
4 Cf. Palandt / Heinrich, 54th Edition, 1995, Article 24,
Introductory Law of the [German] Civil Code, addendum, 13th
rev.
5 These are the [German] Civil Code (ZPO) and German Ex Parte
Jurisdiction Act
6 cf. Thomas/Putzo, ZPO, 18, 1993 edition, preamble to section
1, #6
- - Matrimonial
Causes, Section 606 a, § I ZPO -
The issue
of conflict of laws regarding international jurisdiction over
matrimonial causes (e.g. divorce proceedings) is ruled upon
in section 606 a, para. I, ZPO, apart from local jurisdiction,
where international jurisdiction under section 606 a, §.I
# 1-3, ZPO. Numbers 2, 3, as well as 4, is easily deduced
from its statutory language7. # 2 & 3, as well as #4 are
geared to the spouses' habitual domicile , defining it as
the center of existence, i.e. the main focus of an attachment,
in particular with respect to family and occupation, rather
than a place of a mere temporary residence. 8
More difficult
are cases falling under section 606 a, § 1 # 4, ZPO,
which provide international jurisdiction in marital cases,
even though both spouses are foreign nationals with only one
of them having his/her domicile on domestic territory, unless
the ruling to be passed be not recognized under the laws of
any of the countries to which either spouse belongs. In this
case the recognition right of the secondary country would
have to be reviewed. The provisions of section 606 a, §
1, # 4, ZPO constitutes an omnibus rule to be considered only
if none of the cases addressed in # 1-3 applies, as it aims
at avoiding "limping divorces and therefore limping issues
of matrimonial law " 9.
Depending
upon which court exercises international jurisdiction over
a ruling, procedural issues are determined in each case commensurate
with procedural law of the recognizing court.10
- Ancillary
Divorce Issues, Sections 623, § I in Conjunction with
621, § II, p. 1, in Conjunction with 606 a, ZPO -
International
jurisdiction relating to ancillary divorce issues 11, as defined
in section 623, § 1, ZPO, is assessed by the provisions
of section 621, § II, in conjunction with section 608
a, § 1, ZPO.
Section
621, § II, p. 1, ZPO, viewed in itself, defines only
local jurisdiction; however, according to a consensus of opinion
12, it may be deduced from the provisions of sections 623
ff ZPO regarding divorce cases and ancillary divorce issues,
that international jurisdiction over matrimonial matters entails
jurisdiction over ancillary divorce issues as well. This holds
true, even in isolated proceedings regarding ancillary issues,
due to the material linkage between ancillary divorce matters
and the divorce itself,
However,
as set forth above, the Hague Convention on the Protection
of Minors, i.e. courts exercising international jurisdiction,
has priority in determining child custody rulings.
The Hague
Convention on the Civil Aspects of International Child Abduction.
In this
context it must be borne in mind that power of disposal lying
with a court having jurisdiction over child custody rulings
in reaching its decision based on the Hague Convention on
the Civil Aspects of International Child Abduction (hereafter
called 'Hague Convention) of October 25, 1980 13, joined by
the United States as well as Germany, may be temporarily suspended.
The Hague
Convention constitutes an agreement on judicial assistance
aimed at ensuring that the original relationships and circumstances
- e.g. abduction of a child into the country/state of its
habitual domicile - be restored expeditiously and with a minimum
of formality. An application for repatriation of a child pursuant
to the Hague Convention must be filed with the authorities
appointed pursuant to domestic law to handle such cases (in
Germany the Federal Attorney General of the Federal Court)
not later than one year following the abduction. A ruling
on repatriation will assist the custody right in force in
obtaining de facto effectiveness.
While
repatriation proceedings based on the Hague Convention, are
pending, any court in the country where the children were
taken or are being held unlawfully within the meaning of the
Hague Convention, under the provisions of Article 16 of said
Convention, meaning of the Hague Convention, is temporarily
barred from issuing a new ruling on custody rights, provided
that the petitioned country/state has been notified about
the abduction or retaining of a child against the law. Aim
and object of this provision is to avoid contradictory rulings
7 See
Appendix, under "I. Legal Texts"
8 See [German] Federal Court, New Judicial Weekly 1975, 1068
9 cf. BT-Do. 10/5832, p. 47, Reiner Hüßlege, Private
International Law, 2nd edition, 1995, p. 45
10 [German] Federal Court, New Judicial Weekly 1985/ p. 552
= Monthly Journal of German Law 1985/ p. 215
11 These include, e.g.,custody rulings, pension adjustments
12 Decisions of the Federal Court in Civil Matters 75, 241
= NJW 1980, 47
13 [German] Civil Code I, 1990, II p. 207
on the
location of a child's legal residence, by allowing the Hague
Convention to take precedence commensurate with its stated
purposes.
- - Parent(s)
and Child Cases, Section 640 a, § II, ZPO -
Section
640 a, § II ZPO provides specific international jurisdiction,
with alternative applicability of facts and circumstances,
as stated.
- - Guardianship
and Family Cases under the Provisions of Noncontentious Jurisdiction,
Sections 621 a, § I, p. 1, ZPO, in conjunction with 64,
German Ex Parte Jurisdiction Act -
Section
35 b of the German Voluntary Jurisdiction Act, in conjunction
with section 43 contains a specific international jurisdiction
clause on guardianship and family cases adhering to proceedings
under the German Voluntary Jurisdiction Act, provided application
of the Hague Convention Concerning the Protection of Minors
has not been established. Declarations of legitimacy are defined
in section 43, § I of the German Voluntary Jurisdiction
Act and child adoptions - in section 43, § I of the same
Act.
Petition
to Modify Judgment
According
to German law, German courts exercise concurrent jurisdiction
for the amendment of decisions handed down in Germany, regardless
as to whether or not domestic international jurisdiction exists.
Also, amendments of foreign judgments are admitted in the
Federal Republic of Germany, provided international jurisdiction
exists therefor.15 In addition, German courts provide for
a domestic emergency jurisdiction reserved for cases where,
according to its autonomous national rules, none of the courts
in the various countries has international jurisdiction.
c) Choices
of Forum Agreement/ No Objection to Appearance - Sections
38, 39, ZPO
Under
the provisions of section 38, ZPO, international jurisdiction
of German courts may also be established by forum agreements,
provided the parties are included in the group of individuals
described therein. As a choice-of forum agreement constitutes
an agreement relating to substantive law, concerning itself
with matters of procedural law (the so-called dual nature
of choices of forum agreement), the proper law of the contract
16 governs the establishment of such an agreement, and lex
fori determines its procedural admissibility.
If respondent
participates in a court hearing regarding the issue at hand
without having taken issue with the court's lack of international
jurisdiction (a so-called uncontested appearance), in spite
of being advised of this circumstance, the court's international
jurisdiction is thereby deemed to be substantiated.
d) International
Jurisdiction According to the Autonomous Rules of the United
States
Seen from
the German point of view, procedural rules of law governing
individual federal states in the U.S.A. include essentially
four types of vitally important jurisdictions. 17
First,
Longarm Statutes establish jurisdiction based on business
transactions in the U.S.-federal state at issue. The concept
of business transaction must be construed in a broader sense
and may be justified by nothing more than a shipment into
the U.S.A. .
14 All
of these are family matters set forth in section 621 a, §
1, p. 1 ZPO - see Appendix, "Legal Texts"
15 [German] Civil Code, Judicial Weekly 1983/S. 1976
16 See Rush in NJW, 1994/ p. 2120H
17 Cf. WM 1983, p. 1078 ff (1081 f.)
Secondly,
the service of a complaint, i.e. transient jurisdiction, establishes
international jurisdiction.
In the
area of litigation against corporations, an "enforcement
of jurisdiction" substantiates international jurisdiction,
due to interlocking capital interests with a certain enterprise,
usually a subsidiary corporation seated in the venue of litigation.
Finally,
international jurisdiction of U.S.-American courts is established
by so-called impleaders - from the German point of view a
less desirable jurisdiction - in which the respondent in a
lawsuit may file a complaint against his potential party liable
to recourse at the venue of litigation proceedings.
However,
autonomous jurisdictional rules of the FRG covering a broader
basis than those of the U.S., there arise no tensions, let
alone any problems. One may assume international jurisdiction
on the part of German or American courts, even under U.S.
law, provided it exists under German provisions.
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III.
RECOGNITION AND ENFORCEMENT OF JUDGMENTS IN FAMILY MATTERS
RECOGNITION
OF AMERICAN JUDGMENTS IN GERMANY
1. Preamble
Basically,
the effects of acts of state on the original country/state
are limited (so-called territorial principle). However, sometimes
actual circumstances and relationships with foreign countries
preclude the possibility of enforcing executory titles in
the original country/state, making it necessary, instead,
to assert them abroad. The legal institutions of recognition
and writ of execution with respect to foreign executory titles
are intended to override the "limited usability"
of domestic judiciary titles.
The screening
of an executory title is limited to the verification of its
compatibility with elementary tenets of the domestic legal
system. This aspect is also treated under the key -phrase,
"prohibited screening of legality".
Recognition
of an executory title substantially extends preclusive, declaratory
, constitutive, and various third-party effects resulting
from the substantive res judicata to the domestic realm of
a foreign country. 18
Also acceptable
for recognition, in addition to substantive decisions, are
decisions regarding the dismissal of an action, such as would
disallow the substantive claim. Whether this involves a judgment
on the merits of the case depends upon lex fori.
As a rule,
recognition of a judgment proceeds automatically, i.e. without
any special Act of Recognition, with thea ruling taking effect
in the original country.
By contrast,
in most instances the writ of execution regarding an executory
title requires a new formal proceeding, with the enforcement
effect being sought by the enforcing country according to
lex fori of the decreeing country in this case.
18. See
Geimer in Geimer/Schütze, vol. 1/2, section 1901
2. Applicable
Law
a) International
Treaties In principle, in these cases international treaties
take precedence over autonomous/national law as well. However,
the provisions of international treaties aim at facilitating
the enforcement of executory titles abroad. Therefore, the
principle of advantage must be applied, according to which
recognition-friendly rules take precedence to the extent that
treaty in itself is not deemed to constitute a conclusive
ruling. 19
With respect
to the relationship between the U.S.A. and Germany, a simplified
recognition process covers only the field of custodial rights
decisions commensurate withthe Hague Convention on the Protection
of Minors,
In the
absence of a universal international recognition mandate,
one must revert to the domestic legal system.
b) Autonomous
Provisions of the FRG Governing Recognition of Divorce Decrees
Pronounced in the U.S.
As an
exception to the rule, under the autonomous provisions in
Germany a formal recognition process is provided by article
7, section 1, [German] Family Law Alteration Act 20, for the
recognition of divorce decrees. It contains a declaratory
monopoly, including a legal commitment to the recognition
of a foreign decree within the sphere of applied provisions
in Germany. This process aims at meeting the need for a generally
binding, uniform determination of status.
Those
competent to make decisions are the Land Administrative Agencies
of Justice where a spouse has his/her habitual residence 21
- - alternatively the Land Administration of Justice in Berlin.
Recognition Application forms which contain instructions about
the necessary documents to be submitted, must be specifically
ordered from the Land Administrative Agencies of Justice.
A sample copy is included with the Appendix to this contribution.
The decision
handed down by a Land Administration of Justice may be appealed
as an administrative judicial act, pursuant to section 23,
Introduction to the [German] Judicature Act 22. Those qualified
to act on such appeals are the higher regional courts.
Recognition
of a foreign divorce decree is established with res judicata
of the final ruling.
During
the course of recognition proceedings before the Land Administration
of Justice, the recognition criteria based on the provisions
of section 328, ZPO, i.e., the field of the German Voluntary
Jurisdiction Act of Section 16 a FGG (which, formulated after
section 328, ZPO, is nearly identical with it), are verified.
In this respect, it does not differ from the recognition criteria
applied to all remaining executory titles, even though no
formal recognition process may be provided.
19 Federal
Supreme Court of Justice, 03/18/1987, Private International
Law, 1969, 104,106
20 dated 08/11/1961 / [German] Civil Code I, 1221 - see Appendix,
"Law Texts"
21 "Habitual domicile" ist to be determined by the
principles set forth in section 606 a, § 12 PO
22 Dated 01/27/1877 / Reich Law Gazette I [now: Federal Law
Gazette], p. 77
As an
exception, divorce decrees will be recognized automatically,
i.e., without formal proceedings, provided both spouses were
merely citizens of the country whose court decreed the divorce.
General
recognition criteria include that: the subject-matter at issue
be of a civil-procedural nature; the foreign court's quality
be guaranteed; the ruling be res judicata; and reciprocity
be guaranteed. 23
In addition,
none of the following obstacles may interfere with recognition.
- Obstacles
to Recognition under the Provisions of Sections 328, ZPO /
16 a, # 2, FGG -
The provisions
of sections 328 , ZPO 16 a, # 2, FGG, contain recognition
criteria compiled in a negative-catalog manner, to be verified
ex officio.
The provisions
of section 328, § 1, #1, ZPO, and section 16 a, #1, FGG,
exclude recognition of a foreign decision, if the courts of
the country to which the foreign court belongs, are not competent
under German law. Therefore, investigation into whether, from
the German viewpoint, the U.S. court had jurisdiction over
the decision, is in order, 24 because international jurisdiction
on the part of the original country must exist, according
to the jurisdictional system of the secondary country.
Another
obstacle standing in the way of recognition under the provisions
of section 328, § 1, #2, ZPO and/or section 16 a, #2,
FGG, would be the exclusion of recognition in cases where
the unsuccessful defendant refused to appear at the trial,
on grounds that the subpoena or order initiating such proceedings
failed to be served on time or in due form, thereby aggravating
the defense. The Hague Convention on the Service Abroad of
Judicial and Non-Judicial Documents in Civil or Commercial
Matters assists in conducting service aborad. Both Germany
and the U.S.A. are members of the Convention.
In addition,
section 328, §1, #3, ZPO and/or section 16 a, #3, FGG,
discusses priorities in cases of several conflicting rulings.
Under
the provisions of section 328, §1, #4, ZPO and/or section
16 a, #4, FGG, a ruling abroad may not violate public policy,
i.e., recognition may not yield any result which would obviously
prove incompatible with essential principles of German law
-- specifically, its constitutional rights. The provision
to be applied was reformulated by the Private International
Law Reform Act of 1986, whenever recognition of a foreign
decision were to fundamentally interfere with the domestic
judicial system or were to simply constitute an unacceptable
deviation from fundamental ideas of value and justice. 26
Finally,
section 328, §1, #5, ZPO, unlike section 16 a, FGG, requires
guaranteed reciprocity for the recognition of foreign judgments.
This provision was interpreted restrictively by German adjudication
to the extent that only partial reciprocity must be guaranteed.
23 For
further details, see Law of Civil Procedure, volumes 1/2,
section 193 VII, by Geimer/Schütze
24 More about "Spiegeltheorie [= Mirror Theory}"
by Thomas/Putzo,, Commentary to the Code of Civil Procedure,
18th edition, 1993, section 328, line 8.
25 dated 11/15/1965/ Federal Law Gazette 1977 II, p. 1453
26 Re this problem see essay on Stiefel / Stümer, rev.version
of 1987, which discusses ordre public reservations about the
execution of US judgments
c) Autonomous
Provisions of the FRG for Recognizing other US-American Executory
Titles Relating to Family Law
The criteria
set forth above apply to the recognition of U..S. American
executory titles relating to the field of family law. Only
formal proceedings under the provisions of Article 7, §
1, Family Law Alteration Act, are exempt in these circumstances.
Also, the recognition proceedings do not automatically result
in recognizing all of the ancillary issues beyond the divorce
decree.
ENFORCEABILITY
IN GERMANY OF JUDGMENTS PASSED BY A COURT IN THE U.S.A.
1. Preamble
As mentioned
previously, enforcement proceedings aim at generating a domestic
judgment which will effect a judicially enforceable instrument.
However, in order to obtain such a domestic judgment, a proceeding
must be conducted for the purpose of awarding enforceability
of a foreign judgment to the domestic realm.27
2. Applicable
Law
With international
treaties between USA and Germany not being asserted with respect
to these issues, one must revert to sections 722 and 723 of
ZPO [German Civil Procedure] and section 33 of IPR [lex fori].
The initial
criterion for enforcement proceedings is always the acceptability
of a certain ruling, supplemented by a specific feature characterizing
temporary or final enforceability in the original country
. In addition, the general enforcement criteria of lex fori
must be present. Please note at this point that Germany, unlike
USA, refuses to recognize a foreign judgment, as long as there
remains a recourse to appeal.
As long
as an enforcement proceeding is possible, one cannot revert
to a domestic second proceeding. Instead, as a matter of priority,
the judgment creditor must file a petition for a judgment
of execution, in accordance with sections 722, 723, ZPO.
3. ZPO-Proceedings
Sections
722 and 723, ZPO, do not provide for specific enforcement
proceedings of foreign judgments., so that the ordinary costly
& time-consuming course of litigation course, must be
pursued. The relief prayed for must be oriented toward enforcement
proceedings retarding the foreign ruling. This involves an
action for a change of legal relationship, resulting in a
new judicial title. The enforcement itself will them proceed
under only one enforceable title -- that of the domestic enforcement
court, which will be the only one granted the writ of execution
under the provisions of sections 724 ff ZPO.28
Any claim
for execution as defined by section 722, ZPO, must be filed
within 30 years following the effective date of res judicata
of the foreign judgment.
The criteria
for admissibility may be assessed based on general rules;
nor will the course of a proceeding yield any specifics.
Money
judgments are enforced in foreign currency, thus eliminating
the need for currency exchanges. The judicially enforceable
instrument expressed in foreign currency will be executed
under the provisions of sections 803 ff, ZPO.
4. Voluntary-Jurisdiction
Proceedings
27 Federal Court, dated 11/06/1985, RIW 1986, p. 554
28 Federal Court, NJW 1986, p. 1440
c) Within
the purview of German Voluntary Jurisdiction, foreign enforceable
instruments will be executed, provided the criteria for recognition
exist. There are no specific enforcement criteria; instead,
recognition of a foreign ruling constitutes a preliminary
question to be scrutinized under the provisions of section
33, FGG [= German Voluntary Jurisdiction], and there is no
need for an independent judicial dictum. Section 722, ZPO
is not applicable in this case.
5. Action
Opposing Execution, Section 767, § II, ZPO Furthermore,
a foreign judgment is unenforceable if respondent raises objections,
as defined in section 767, ZPO.
6. Special
Features Regarding Custody Orders Respondent may counteract
enforcement of a foreign custody instrument if he/she causes
a new final custody order to be issued, to the extent that
the applicability of MSA30 [ =Hague Convention Concerning
the Protection of Minor] has been established, because under
the provisions of MSA a foreign custody order is not opposed
to a new decision on its merits by a German court, as long
as the minor children habitually reside in Germany (Article
13 I, MSA).
Under
the provisions of article 1, MSA, courts located in the venue
of the minor children's residence are competent to take appropriate
measures for the protection of the individual. Within this
meaning, protective measures constitute custody rulings as
well.
Decisions
on the merits are not opposed by the fact that a foreign court
passed a ruling in the same matter. If the ruling is to be
recognized, it merely follows that a passed, which agrees
in its contents. 31
Custody
matters have no room for argument on grounds of final and
conclusive rulings. The welfare of a child always takes precedence
over the conclusiveness of a previous ruling.
Therefore,
custody matters do not fall under the purview of substantive
res judicata.32
RECOGNITION
AND WRIT OF EXECUTION REGARDING GERMAN JUDICIAL TITLES IN
THE USA
1. Preamble
Again,
in the absence of applicable bilateral treaties one must revert
to autonomous national law.
Unlike
in Germany, there exists no federal law regarding these issues,
nor does federal law contain any isolated individual standards.
Instead,
in the United States recognition and enforcement are based
on Common law developed by judges.
29 Federal
Supreme Court, New Judicial Weekly 1977, p. 150
30 See above
31 Federal Court, NJW 1973, p. 950: Senate, NJW 1986, p. 2193
Also,
there is no express ruling on the part of the Supreme Court
as to whether the principles of Common Law are to be regarded
as an issue of federal law or an issue of individual states.
In fact,
federal courts overwhelmingly agree that in the absence of
a federal law the effect attributed to foreign judgements
belongs within the jurisdictional sphere of individual federal
states, rather than the sphere of federal law.
However,
the law governing individual federal states may be restricted
by federal legislation, e.g. sovereign immunity.
Although
Common Law principles may be the starting point of each judicial
assessment relating to the enforceability of foreign judgments
in the United States, several federal states followed two
different avenues of implementation, the majority opting for
application of Common Law, without laying out specific provisions.33
Sixteen
states legislated 34 versions of the Uniform Money Judgments
Recognition Act (hereafter called Uniform Act)35 - founded
at the time on the general principles of Common Law. The Uniform
Act was ratified by the National Conference of Commissioners
on Uniform State Laws and the American Bar Association.36
Incidentally,
On principle, U.S. courts will not pass money judgments in
foreign currency. Unless the amount owed is expressed in dollars,
US courts will convert it accordingly.37
2. Principles
of Recognition and Execution Applicable in all Federal States
On principle,
in the ruling in the case of Hilton vs. Guyot, all federal
states followed the statement issued by the Supreme Court,
pursuant to which foreign judgments are to be recognized and
executed, as long this shows comity toward the foreign nation
on one hand and does not sacrifice substantial interests on
part of the executing forum, on the other..
Principles
of Comity
The ruling
on Hilton versus Guyot shows that th principle of comity originally
caused the US courts to recognize and execute foreign court
judgments.
Substantially,
comity principles include the following provisions for the
recognition and execution of foreign judgments:
In order
to be qualified for recognition and execution of foreign judgments
1. - court
proceedings abroad must have been conducted in a fair manner
by a competent court with international jurisdiction having
been determined commensurate with foreign law;
2. - court
proceedings were conducted based on customary procedural principles,
commensurate with procedural law governing the country which
issued the ruling;
3. - respondent
was duly summoned or appeared at the proceeding on his/her
own accord; 4. - proceedings were conducted under a legal
system which guarantees a nonpartisan application of law on
behalf of its own citizens as well as citizens of other countries;
33 including,
among others, North Dakota, Arizona, Arkansas, Louisiana,
Pennsylvania, South Carolina and Idaho
34 Alaska, California, Colorado, Georgia, Illinois, Maryland,
Massachusetts, Michigan, Minnesota, Missouri, New York Ohio,
Oklahoma, Oregon, Texas, and Washington
35 Uniform Foreign Money Judgments Recognition Act, sections
1-11, 13 U.L.A. 261 (1986)
36 Schütze in JR 1988, p. 229
37 Re problems caused by fluctuating exchange rates, see Chroziel
/ Westin in conjunction w/ Jurisprudence 87 (1988) p. 166
5. - The
principles of res judicata must be upheld, i.e. the foreign
judgment must have conclusive and binding between the parties.
38 Whether or not this is the case will be determined by the
law governing the foreign country.
Principles
of Interest
A judgment
debtor my object to the execution of a judicial title in the
USA on grounds that the judgment was obtained by surreptitious
means, basing his argument specifically on:
1. errors
committed when a complaint was served 39 (here, too, the Hague
Convention on the Service Abroad of Judicial and Extrajudicial
Documents in Civil or Commercial Matters must be observed);
2. appearance
in court not possible;
3. the
ruling court has no personal jurisdiction;
4. prejudice
or unfairness on the part of the foreign legal system;
5. the
fact that judgment was obtained by fraudulent means.40
For a
long time the requirement for reciprocity used to be problematic
in several federal states. In the meantime, reciprocity ,
as defined by section 328, § 1, # 5, ZPO, is generally
guaranteed, overall. 41
Several
federal states (e.g. Louisiana) even fail to mention any reciprocity
requirement.
Others
(e.g. Virginia) require it in the field of support law. In
these cases - insofar as applicable in individual federal
states - application of the support law in order to assert
claims for support in traffic with foreign countries (cf.
Reciprocal Enforcement of Support Act -- AUG) dated 12/19/1986,
makes a reciprocal guaranty possible. Under the provisions
of section 2, § 2, AUG, the Attorney General constitutes
the competent central authority.
In the
absence of applicability of AUG, one must revert to the above-described
general principles regarding recognition and execution.
Beyond
that, the principles of public policy in the USA and individual
federal states must be observed. 42
Added
to the above-named principles of execution and recognition,
was the universal principle regarding the finality of court
decisions.
38 Compare
e.g. Uniform Act, section 2 (1986): This act applies only
to foreign judgments which are "final and conclusive
and enforceable in the decreeing country"; Restatement
(Second) of Conflict of Law, sections 92, 98 (1971 and 186
revisions); in order to render a foreign judgment enforceable,
it must be final in the decreeing country. However, the fact
that a foreign judgment has been appealed does not preclude
its being regarded as final by the USA, for purposes of execution,
even though the U.S. court may delay the act of execution.
39 Re Hollmann, Service Abroad in U.S. Civil and Administrative
Matters, RIW / AWD 1985, p.764 ff
40 re Chrocziel / Westin compared to RWiss 87 (1988), p. 163
ff.
41 cf. Geimer / Schütze, International Recognition of
Judgment, vol. 1, 2, 1984, p. 1921;
42 in continuation thereof - Chroziel / Westin, compare with
RWiss
3. Proceedings
in Individual Federal States
Proceedings
in individual federal states are governed either by general
principles of Common Law or by amendments to the Uniform Act.
Common
Law will be reverted to only if a ruling on a certain subject
matter is absent from the Uniform Act.
a) Common
Law Principles 43
As is
the case in Germany, recognition of foreign judgments is an
informal act.
However,
execution of a recognized judicial instrument requires a new
formal proceeding, i.e. a complaint must be filed with a competent
U.S. court, based on the foreign judicial title. Within the
scope of the summary proceedings, respondent's means of a
defense are limited. by his inability to present the material
cause underlying the judgment anew for disposition by the
court. 44
In the
states of North Dakota, Arkansas, Louisiana, Pennsylvania
, South Carolina, and Idaho, the principles of the 2nd Restatement,
Conflict of Law take precedence over the principles of Common
Law.
In Pennsylvania,
South Carolina, and Idaho, the principles of the 3rd Statement
- Foreign Relations - are applied in addition.
Divorce
decrees are not governed by any specifics. Support orders,
too, are recognized and executed principally in accordance
with Common Law principles. However, special provisions apply
in the federal states of Pennsylvania, New Hampshire, South
Caroline, and Idaho, which adopted the Uniform Reciprocal
Enforcement of Support Act (RURESA) into their intra-state
law, thereby creating a basis for declarations of reciprocity
via the General Disposition Act (AVG).
In addition,
with respect to court rulings on parental custody and care,
Pennsylvania, Mississippi, and New Hampshire, transformed
the Uniform Custody Jurisdiction Act (UCCJA) into intra-state
law.
Both acts
include provisions governing jurisdiction and recognition.
b) Uniform
Foreign Money Judgments Recognition Act 45
Twelve
states46 , having adopted the Uniform Act in its version into
intra-state law, provide for the writ of execution to be implemented
by simply recording the foreign judgment with the competent
authorities of the respective state.
Illinois
and Missouri legislated the Uniform Act version of the year
1948, pursuant to which foreign judgments, like those of other
federal states, are merely filed with the court, to be recorded.
43 The
majority of US federal states adopted Common Law principles
44 re summary proceedings, see Schurbmann vs. Walter, American
Civil Procedure, 1978, p. 54 f.
45 Alaska, California, Colorado, Georgia, Illinois, Maryland,
Massachusetts, Michigan, Minnesota, Missouri, New York, Ohio,
Oklahoma, Oregon, Texas, and Washington
46 Alabama, Colorado, Georgia, Illinois, Missouri, Minnesota,
New York, Ohio, Oklahoma, Oregon, Texas, and Washington
The remaining
10 federal states legislated the 1964 version of the Uniform
Act, which provides that, like judicial titles of other federal
states, foreign judicial titles be enforceable as well by
merely filing it with a competent official of the trial court,
to be entered into the record.
A special
provision to be noted regarding the federal state of New York
requires that for the writ of execution pertaining to money
judgments a new claim must be filed with the jurisdictional
court of the federal state of
New York,
regardless of the Uniform Act.
In the
absence of any provisions for the implementation of the Uniform
Act of California, Maryland, Massachusetts, and Michigan,
regarding the filing and recording of foreign judgments, it
must be assumed that these states require a new claim for
a writ of execution, as well.
Regarding
custody orders, the states of Massachusetts and Minnesota
transformed the Uniform Child Custody Jurisdiction Act (UCCJA)
into intra-state law.
In addition,
the Uniform Act provides an opening clause for custody orders,
thus assessing a recognition on the according to the comity
doctrine.
The Uniform
Reciprocal Enforcement of Support Act (RURESA) was implemented
only in Minnesota.
RECOGNITION
AND ENFORCEMENT OF ARBITRAL AWARDS
With recognition
and execution proceedings of judicial titles involving a time-consuming
but also costly process in most cases because of the absence
of a treaty in Germany as well the USA that would simplify
such proceedings, arbitration should be used in areas having
access thereto, seeking a contractual settlement in the preliminary
stages.
For U.S.
American and German arbitral awards there exists a multinational
treaty applicable to both countries, i.e., the New York Convention
on the Recognition and Enforcement of Arbitral Awards (UN
Convention). 47
In essence,
this Convention stipulates that each contractual country/state
must execute arbitral awards of other contractual countries/states,
unless exceptions listed in the conclusion of Article V of
this Convention apply.
Included
in the criteria for recognition and enforcement is:
1. Under
to the provisions of the Convention (Article V (1) a), the
arbitration clause may not be invalid, regardless of any reason
underlying invalidity; e.g. the parties may lack the capacity
for executing agreements, or the law applicable to arbitration
agreements renders the latter invalid.
2. The
party subject to enforcement must be allowed sufficient opportunity
to defend itself against a claim (Article V (1) b). This applies
to the requirement for service as well as to the principle
of a fair hearing.
3. The
arbitral award may not exist outside the sphere of the arbitration
clause (Article V (1) c), which would be the case, if the
aforementioned issues were to lie neither within the scope
of settlement set forth in the arbitral agreement nor within
its boundaries.
4. The
arbitrators must adhere to the arbitration clause (Article
V (1) d), as regards the procedural course and the formation
of an arbitration court. In the absence of such an agreement,
one must revert to the law of the country/state were the proceedings
were conducted.
13 a
5. The
arbitral award must have become binding for the parties (Article
V (1) e). A writ of execution must be possible.
6. The
legal dispute must constitute the subject of the arbitration
proceedings under the law of the country which is to implement
enforcement (Article V (2) a).
7. The
arbitral award must not be at variance with public policy
of the enforcing country (Article V (2) b).
47 Convention
on the Recognition and Enforcement of Foreign Arbitral Awards,
dated 06/10/1958, Federal Law Gazette 1961 II, p. 122
Situation
in the USA
The USA
incorporated the Convention in sections 201 to 208 of U.S.
Code Title 9 of its legal code. However the writ of execution
may be carried out only within 3 years following the delivery
of the arbitral award. In conclusion, the US court exercising
jurisdiction will issue a Confirmation Order.
Upon confirmation
of the arbitral award, it will become a court judgment and
enforceable thereby pursuant to the provisions customary in
the USA.
Situation
in Germany
The UN
Convention became applicable for Germany by German Federal
Act. In addition, section 1044, ZPO, provides a statutory
ruling. In general, section 1044, ZPO, rules that foreign
arbitral awards be declared enforceable pursuant to the same
proceeding as domestic arbitral awards. Under the provisions
of sections 1042 ff ZPO, an application for a writ of execution
must be filed during court-order proceedings or proceedings
leading to a judgment, accompanied by the required copies
of the arbitral award. Based on the principle of most favored
nation treatment, either the procedural provisions of the
UN-Convention or of sections 1042 ff, [German] Civil Code
apply, there being no big differences either in cost or quality.
Section
1044 (2), ZPO, presents the following grounds for rejecting
a writ of execution:
* 1. Legal
ineffectiveness of arbitral award
* 2. Violation
of German ordre public
* 3. No
and no ex post facto approved proper representation form during
arbitration proceedings
* 4. Denial
of right to a fair hearing
Back to Top
IV.
CONCLUSION
In the
field of commercial law, it would be advisable to reflect
upon an arbitration clause even while preparing an agreement,
thereby avoiding two lengthy proceedings and additional expense.
As for
family matters, the customary procedural course cannot be
avoided. Only the Protection of Minors Act will facilitate
matters within the scope of its application.
48 See
Schwab, Arbitral Jurisdiction, 3rd edition 1979, p. 416 ff
49 The USA made use of the proviso set forth in Article I
(3) clause 2, by limiting the scope of application of the
law to arbitral awards in commercial cases, In addition, the
United States made use of the second proviso in Article I
(3), limiting the scope of applicability of the Convention
to those arbitral awards issued in sovereign territory of
another member country
50 An application form sample is listed in APPENDIX under
'blank forms'
51 In effect since 09/28/1961; no indication of proviso as
defined by Article I (3), clause #2.
Back to Top
APPENDIX:
I. TEXTS
OF THE LAW
The complete
text of the Hague Convention Concerning the Protection of
Minors exists in both German- and English-language versions.
The complete
text of the Hague Convention on the Civil Aspects of International
Child Abduction exists in both German- and English-language
versions.
The complete
text of the Hague Convention on the Service Abroad of Judicial
and Extrajudicial Documents in Civil or Commercial Matters
exists in both German- and English-language versions.
Excerpt
from the Hague Convention Concerning the Jurisdiction of Authorities
and the Law Applicable in Respect to the Protection of Minors
(of October 5, 1961: Federal Law Gazette 1971 II, p. 219)
Article
I. [International Jurisdiction]. Subject to the provisions
of Articles 3, 4, and 5, § 3, the authorities, be it
a court or administrative agency of the country/state where
a minor has his/her habitual domicile, are responsible for
taking the appropriate measures for the protection of the
minor individuals and their assets.
Article
2. [Application of Right to Residence] (1) It is incumbent
upon the authorities having jurisdiction according to Article
1, to take such measures, as are provided by their own intra-state
law.
(2) Said
law will determine the criteria for the amendment or curtailment
of these measures. It will also determine their effect with
respect to the relationship between the minor and other individuals
or institutions, to which the minor has been entrusted, as
well as to the minor's relationship to third parties.
Article 7. [Recognition of Measures - enforcement is not ipso
jure] The measures taken by the competent authorities in compliance
with the foregoing articles must be recognized by all countries
which are parties to the treaty. However, if these measures
require enforcement procedures in a country different from
the one where they originated, their recognition and enforcement
will be determined by the intra-state law of the country where
enforcement is applied for or by interstate agreements.
Article
8. [Sphere of Application] (1) This agreement applies to all
minors having their habitual domicile in a country which is
a party to the treaty..
(2) However,
jurisdiction belonging to the authorities of the country to
which a minor belongs under this agreement, remain reserved
by the countries which are parties to the treaty.
(3) Each
country which is a party to the treaty has the right to limit
application of this agreement to those minors who belong to
one of the countries which are parties to the treaty.
Excerpt
from the Hague Convention on the Civil Aspects of International
Child Abduction (of October 25, 1980 : Federal Law Gazette
1990 II, p. 207)
Back to Top
Chapter
III - Return of Children
Article
16. If the courts or administrative authorities of the country,
party to the treaty, to which the child was abducted or in
which it is being held against the law, were informed of the
child's abduction or its being held, as defined in Article
3, they may not rule on the merits of child custody until
it is based on this agreement, that the child will not be
returned or if no request was filed under this agreement within
a reasonable deadline.
Excerpt
from the European Convention on Jurisdiction and Enforcement
of Judgments in Civil and Commercial Matters (EüGVÜ)
(of September 27, 1968, version of 3rd Treaty of Accession
of May 1989 : Federal Law Gazette 1994 II, p. 519)
Article
1. (1) This treaty will be applied in civil and commercial
matters, regardless of the type of jurisdiction. Specifically,
it does not include tax or customs matters or matters of administrative
law.
(2) It
does not apply to:
1. Marital
status, legal capacity or the capacity to act or legal representation
of individuals, marital property, the field of law of succession
including Probate Law;
2. bankruptcy-,
and settlement proceedings or similar matters;
3. Social
Security;
4. arbitration
Excerpts
from the [German] Code of Civil Procedure of September 12,
1950 - ZPO (Federal Law Gazette, p. 533)
Section
38, ZPO [Admissible Choice of forum] (1) A court of 1st instance
which normally would have no jurisdiction, will obtain jurisdiction
by express or tacit agreement between the parties, if the
contractual parties are merchants not listed in section 4
of the Commercial Code as persons engaged in a trade of business
or legal entities under public law or separate assets under
public law.
(2) Furthermore,
jurisdiction of a court of the 1st instance may be agreed
on, if at least one contractual partner lacks a general domestic
venue. The agreement must be entered into in writing or, if
entered into verbally, must be confirmed in writing. If one
of the parties has a general domestic venue, the only choice
will be a court where said party has its general jurisdictional
venue or if there are grounds for choosing a particular venue.
(3) Incidentally,
agreements on the choice of jurisdictional venues will be
admitted only if they are expressly entered into in written
form
1. after
a legal dispute has devloped or
2. if,
having entered into the agreement, the party claimed against
moves its residence or habitual domicile outside the area
in which this law is in force or if at the time the complaint
was filed the party's residence or habitual domicile was unknown.
Section
39, ZPO [Jurisdiction on Grounds of Uncontested Proceedings]
Furthermore, the jurisdiction of a court of the 1st instance
is justified if respondent, without objecting to its want
of jurisdiction, verbally considers the case on its merits.
This will not apply in cases where instructions under section
504 were not given.
Section
323, ZPO [Petition to Modify a Judgment] (1) If, following
a court judgment ordering future payments on a recurrent basis,
the financial circumstances which at the time the judgment
was passed being the decisive factor in regard to payments,
assessment of payable amounts, or term of payments, undergo
a drastic change, each party has the right to demand an appropriate
modification of judgment by filing action.
(2) Said
action is admissible only if its underlying reasons developed
after conclusion of the hearing during which, at the latest,
the claim of the action should have been extended or objections
raised, and no longer could be asserted by appeal.
(3) A
judgment can be modified only after a claim has been filed.
(4) The
aforementioned provisions are to be applied accordingly to
the executory titles of section 641 p, section 642 c, section
642 d, in conjunction with section 642 c and section 794,
§ 1 #1 and 5, insofar as payments, as defined in §
1, have been assumed.
(5) Instruments
of indebtedness on support payments, whose amendment is permitted
in a simplified proceeding (sections 1 to 641 l to 641 t),
may be amended under the aforementioned provisions only, if
an adjustment in a simplified proceeding were to result in
a support amount substantially deviating from the amount that
would take into account the development of special circumstances
surrounding the parties.
Section
328, ZPO [Recognition of Foreign Judgments] (1) Recognition
of a judgment passed by a foreign court is excluded:
1. if,
according to German law, the court belonging to a foreign
country, has no jurisdiction;
2. if respondent, having refused to enter an appearance, claims
that the main document to the proceeding was served him in
undue form or not on time;
3. if the judgment is incompatible with a judgment passed
in the domestic realm or a former foreign judgment awaiting
recognition or his underlying proceeding with a former, currently
pending, domestic proceeding.
4. if recognition of the judgment yields a result that is
obviously incompatible with fundamental principles of the
[German] Constitution;
5. if there exists no guaranteed reciprocity.
(2) The
provision of #5 is not opposed to recognizing a judgment,
as long as the judgment does not pertain to a proprietary
claim or does not hold up in a domestic court under German
law or if it regards a parent and child case (section 640).
Section
606 a, ZPO [International Jurisdiction] (1) German courts
have jurisdiction over marital causes,
1. if
one spouse is a German citizen or was a German citizen at
the time the marriage took place;
2. if
both spouses habitually reside in Germany;
3. if
either spouse is stateless but habitually resides in Germany,
unless the ruling to be passed would not be passed under the
law of the country to which one spouse belongs.
This jurisdiction
is not exclusive.
(2) There
is no objection to recognizing a foreign ruling under §
1, subparagraph , #4, or under # 1 to 3, provided the ruling
is recognized by those countries to which the spouses belong.
Section
621, ZPO [Jurisdiction of Family Courts; Referral or Assignment
to a Court with Matrimonial Jurisdiction (1) In family matters
regarding:
1. Ruling
on parental custody over a child born in wedlock, insofar
as the family court has jurisdiction under the provisions
of the [German] Civil Code;
2. Right
of access to the child;
3. Surrender
of the child to the other spouse,
4. Statutory
liability to the support of a legitimate child;
5. Liability
to support on grounds of marriage;
6. Pension
rights adjustment;
7. Ruling
on proprietary rights to the matrimonial home and household
goods (Ordinance regarding the handling of marital home and
household goods - Sixth Implementing Regulation to Marital
Law, dated October 21, 1944, Imperial Legal Gazette I, p.
256);
8. Agreements
regarding marital proprietary rights, although a third party
may be part of the proceeding.
9. Proceedings
conducted under the provisions of sections 1382 and 1383 of
the [German] Civil Code are subject to the exclusive jurisdiction
of family courts.
(2) During
pendente lite of a matrimonial cause, exclusive jurisdiction
belongs to the court of first instance where the marital cause
is pending. In the absence of pendente lite, local jurisdiction
will be subject to general provisions.
(3) If
a matrimonial cause becomes right-handed[*], while a family
matter of the nature as defined in § 1 is pending in
another court of first instance, it must be officially referred
or transferred to a court with matrimonial jurisdiction. Section
281, § 2,3, # 1 applies accordingly. [* Handelt es sich
bei "rechtshändig" eventuell um einen Tippfehler
- habe den Ausdruck zuvor nie gehört oder gelesen.]
Section
621 a, ZPO [Applicable Procedural Provisions] (1) In family
matters subject to section 621, § 1, # 1 through 3,6,7,9,
proceedings follow the provisions of the law regarding ex
matters of voluntary jurisdiction and the regulations included
in the ordinance regarding the handling of a marital home
and household goods, if not determined otherwise by this law
or the Judicature Act. The provisions applicable in civil-procedural
proceedings will replace sections 2 to 6; sections 8 to 11,
13, 16, § 2, 3; and section 17 of the law regarding matters
of voluntary jurisdiction.
(2) If
in a legal dispute involving a claim for proprietary pension
adjustments a petition is filed according to the provisions
of section 1382, § 5 or section 1383, § 3 of the
[German] Civil Code is filed, a uniform ruling will be passed
by judgment, with section 629, § 2 being applicable,
accordingly.
Section
623, ZPO [Combining Divorce and Ancillary Matters] (1) To
the extent that in family matters under section 621, §
2, a ruling is to be passed in view of an anticipated divorce,
petitioned by a spouse in due time, this will be heard, together
with the divorce matter (i.e., ancillary matters). If in a
family matter under section 621, § 1, #4, 5, 8, a third
party takes part in the proceeding, this family matter will
be treated separately.
(2) The
proceeding must remain pendente lite until the hearing of
first instance in the divorce matter is concluded. §
1 will apply accordingly, if the divorce matter under section
629 b is remanded to the court of first instance.
(3) No
petition is required for a ruling on parental care for a child
in common or for implementation of pension adjustments in
cases under section 1587 of the [German Civil Code. In general,
a ruling on access to the child will be passed only if suggested
by a spouse.
(4) The
aforementioned provisions also apply to those proceedings
which have been transferred to the court of marital matters,
to the extent that a ruling in view of an anticipated divorce
is to be expected.
Section
640 a [Jurisdiction] (1) If respondent has no general domestic
jurisdictional venue, the local court, in whose district one
of the parties or the claimant has his/her habitual residence,
will exercise jurisdiction. In the absence of a jurisdictional
venue even for him/her, the local district court in Berlin
Schöneberg will exercise jurisdiction.
(2) German
courts have jurisdiction if one of the parties 1. is a German
citizen or 2. has his habitual residence in Germany. This
jurisdiction is not exclusive
Section
722, ZPO [Enforceability of Foreign Judgments] (1) Enforcement
of a judgment pronounced by a foreign court may be implemented
only, if its jurisdiction has been stated by a judgment authorizing
execution of a judgment.
(2) Regarding
a claim for the pronouncement of a judgment, the local regional
court located within debtor's general jurisdictional venue
will exercise jurisdiction - alternatively, jurisdiction belongs
to a local or regional court with whom a complaint was filed
against the debtor under the provisions of section 23.
Section
723, ZPO [Judgment Authorizing Execution of Foreign Judgments]
(1) A judgment authorizing execution of a foreign judgment
will be pronounced without verifying the lawfulness of the
ruling.
(2) A
judgment authorizing execution will be pronounced only after
the foreign judgment has obtained res judicata under the law
in effect for this court. It will not be pronounced, if section
328 precludes recognition of the judgment.
Section
767, ZPO [Action Raising Objection to the Judgment Claim]
(1) Debtor may plead on an objection to the claim established
by the court by filing a complaint with the trial court of
first instance.
(2) Objections
are admissible to the extent that their underlying reasons
evolved only after the conclusion of the hearing in which,
under the provisions of the law, they should have been pleaded
at the latest but now can no longer be asserted by appeal.
(3) In
his forthcoming complaint, debtor must plead any objection
he would have been able to raise at the time of filing the
complaint.
Excerpts
from the German Ex Parte Jurisdiction Act of May 17, 1898
(RGBl. [Reich Law Gazette], p. 771)
Section
16 a of the German Voluntary Jurisdiction Act [FGG] [Recognition
of Foreign Rulings] excludes recognition of foreign rulings
if:
1. under
German law, the court of the other country is not competent;
2. one
of the parties, not having made a statement to the main issue,
pleads that the leading procedural document was not duly served
him or not served on time, thus preventing him from exercising
his rights;
3. the
ruling is incompatible with a locally pronounced judgment
or with a previous foreign ruling expected to be recognized,
or with the proceeding underlying the former, locally pending,
action.
4. recognition
of the ruling would yield a result that would obviously be
incompatible with fundamental principles of German law, especially
if recognition is incompatible with the Constitution.
Section
33, § 1, FGG [Coercive Penalty Payment; Direct Coercion]
(1) If
a court order imposes an obligation upon someone, to carry
out a certain act exclusively on his own volition, or to refrain
from a certain act, or to tolerate an act being carried out,
the court may, unless provided otherwise by law, urge him/her
to follow its order by assessing a coercive penalty payment.
If an individual is to be surrendered, the court may, notwithstanding
its assessment of a coercive penalty payment, threaten coercive
detention. At the time of assessing the coercive penalty payment,
the costs of the proceeding will simultaneously bei imposed
upon the party.
Section
35 b [Competing Jurisdiction Between Home and Residence] (1)
Matters regarding guardianship, foster care, or legal counsel,
are subject to the jurisdiction of German courts, provided
the ward, foster child, or child
1. --
is a German citizen or
2. --
habitually resides in Germany
(2) Furthermore,
the German courts have jurisdiction to the extent that the
ward, foster child, or child is in need of assistance from
a German court.
(3) Under
§§ 1 and 2 this jurisdiction is not exclusive.
Section
43 a, § 1 [Declaration of Legitimacy] (1) Rulings regarding
a declaration of legitimacy are subject to German court jurisdiction,
as long as the father or the child 1. - is a German citizen
or 2. - habitually resides in Germany. This jurisdiction is
not exclusive.
Section
43 b, § 1 [Adoption of a Child] (1) Matters regarding
adoption of a child are subject to German court jurisdiction,
as long as the adopting party, one adopting parent, or the
child 1. - is a German citizen, or 2. - habitually resides
in Germany. This jurisdiction is not exclusive.
Section
64 FGG [Family Law Cases] (1) Procedures incumbent upon family
courts are subject to the jurisdiction of local courts.
(2) In
case a marital cause is pendente lite, the family court where
the cause - as defined by its nature in section 621, §
1, #1 to 3, 9, Code of Civil Procedure - is pending in first
instance will officially assign it to the matrimonial court.
Section 281, §§ 2, 3, sentence #1, Code of Civil
Procedure, applies accordingly.
(3) Cases
to be handled by the family court re subject to the provisions
of the second and third §§ of the sixth volume of
the Code of Civil Procedure, as well as section 119, §
1, # 1, 2, and section 133, #2 of the Judicature Act. To the
extent that section 621 a of the Code of Civil Procedure provides
for the application of the provisions of the Voluntary Jurisdiction
Act, the family court will replaces the guardianship law.
Accordingly, section 57, § 2 of this law applies to complaints
under the provisions of sections 621 e, 629 a, § 2, Code
of Civil Procedure, however, it is not opposed to the right
of the Youth Welfare Department to file a complaint. In cases
falling under section 57, § 1, # 1 and 3, only a ward's
or foster person's spouse is entitled to file a complaint.
Excerpt
from the Family Law Alteration Act of August 11, 1961 (Federal
Law Gazette I, p. 122)
Article
7. Recognition of Foreign Rulings Regarding Marital Causes
Section
1. Recognition of Foreign Rulings Regarding Marital Causes
.
1) A ruling
declaring a marriage null and void, dissolved, the bonds of
marriage broken or maintained or by which the existence or
nonexistence of a marriage between partners is determined,
may be recognized only, if the Regional Administration of
Justice finds that the criteria for recognition exist. The
Reciprocity Act constitutes criterion for recognition. If
such a ruling is passed by a court in the country to which
both spouses belong at the time of said ruling, ruling, the
recognition is not contingent upon the determination by the
Regional Administration of Justice.
2) The
Regional Administration of Justice exercising jurisdiction
is the one where either spouse maintains his habitual domicile.
If neither spouse has his/her habitual domicile in Germany,
the Regional Administration of Justice in the country where
remarriage will take place has jurisdiction. The Regional
Administration of Justice may demand proof that public notice
of intended marriage has either been requested or a request
for release from such notice has been submitted. If no jurisdiction
is indicated, it will be exercised by the Regional Administration
of Justice in Berlin.
(3) A
decision will be pronounced based on an application. Anyone
able to substantiate a legal interest in recognition by prima
facie evidence, may file an application.
(4) If
the Regional Administration of Justice rejects the application,
applicant may apply for a decision from the Regional Appeals
Court.
(5) If
the Regional Administration of Justice determines, that the
criteria for recognition exist, the spouse who did not file
an application may apply for a decision by the Regional Appeals
Court. The Decision made by the Regional Administration of
Justice will take effect upon notification of the applicant.
However, the Regional Administration of Justice may rule for
the decision to take effect only after a certain period of
time.
(6) The
Regional Appeals Court makes its determination in proceedings
regarding Voluntary Jurisdiction. Jurisdiction is exercised
by the Regional Appeals Court in whose district the Regional
Administration of justice has its seat. The petition for a
determination by a court has no suspensive effect. Section
21, § 2; sections 23, 24, § 3; sections 25, 28,
§ 2,3; section 30, § 1, sentence #1; and section
199, § 1, of the law regarding matters of voluntary jurisdiction
will apply mutatis mutandis.
(7) The
aforementioned provisions will be applied mutatis mutandis,
if there is a request for verification that the criteria for
recognition are nonexistent.
(8) The
findings regarding the existence or nonexistence of the criteria
for recognition is binding for both the courts and regional
administrations of justice.
Excerpt
from the Introductory Law to the Judicature Act of January
27, 1877 (Imperial Law Gazette, p. 77)
Section
23 [Legal Process Regarding Judicial Administrative Acts]
(1) Upon request, courts of record will meet their decision
with respect to the legality of orders, rulings, or other
measures pronounced by judicial authorities for the settlement
of individual cases in the field of civil rights, including
commercial lw, civil proceedings, voluntary jurisdiction,
and criminal justice. The same provisions apply in the case
of orders, rulings, or other measures taken by enforcement
authorities in executing a young offender sentence, detention
of juvenile delinquents, and pretrial detention, as well as
imprisonment and measures taken for the sake of correction
and security, such as are implemented outside judicial enforcement.
(2) A
petition for a court ruling may include a request for commitment
on the part of judicial and enforcement authorities to issuing
a decree regarding a rejected or omitted administrative act.
(3) Insofar
as courts of record may already be called upon on grounds
of other provisions, the matter rests.
Magistrate's
Office
Date:
Telephone:
Application
for the Recognition of a Foreign Ruling in Marital Causes
Pursuant Article 7 of the Family Law Alteration Act
Applicant:
Last Name; birth name, if applicable, first name; part of
name, if applicable; academic degree, if applicable; occupation,
city & address where residing; personal I.D.
Marriage
date and location; magistrate registration #
Husband:
Family name; birth name, if applicable; first name(s)
Wife:
Family name; birth name, if applicable; first name(s)
Court
decision regarding annulment or dissolution of marriage; file
reference; date of res judicata/ miscellaneous grounds
I hereby
request determination to the effect that this foreign decision
meets the required legal criteria. Following are my answers
to questions stated below:
1. Nationality;
how obtained; eligibility for asylum or status, according
to the Geneva Convention Regarding Refugees
a) at
the time of marriage
b) at
the time the foreign ruling was passed
c) Currently
2. Birth
date and -location
3 .Current
name (first & family name)
4. Information
about habitual residence (i.e., location considered to be
the center of existence) (Mailing address & telephone
#)
e.g. by
birth, legitimation, marriage, naturalization, declarations
at the time of marriage. Persons with multiple nationalities
must list all of them; persons who were granted asylum or
refugees must state the dates of recognition as such; in the
absence of proof of these data, describe on a separate sheet
each reason which is important for the assessment. [UNLESERLICH]
from the former USSR , former Yugoslavia, as well as former
Czechoslovakia must state all countries of their successive
residence.
b) Habitual
residence at the time of proceeding abroad
c) Spouses'
last common residence prior to court ruling .
5. Did
either spouse remarry? If so - when and where? Submit proof.
.
6. Did
either spouse pass away? If so - when and where? Submit proof
7. Does
the copy containing the ruling show an entry of res judicata?
If so, please state date of res judicata.
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