SECTION VI - Recognition And Enforcement Of Foreign Judgments

VerfasserE. J. Cohn
Amt des AutorenSir
  1. Recognition and enforcement of foreign judgments, being questions of civil procedure, are dealt with in the Code of Civil procedure (ZPO) and not in the EGBGB.

  2. Recognition of foreign judgments is treated in section 328. ZPO.

    'Judgment' in the sense of this rule is a final decision of a Court exercisine jurisdiction in civil matters. The conception of civil matters is, however, in accordance with the principles summarised in section IV, para. 24(a) above, to be interpreted in the German sense with which the actual functions of the foreign court must be compared.

    EXAMPLE: A maintenance order by an English Court of Summary Jurisdiction may be recognised in Germany, because the Summary Courts exercise in respect of questions of maintenance civil jurisdiction in the German sense of these words.

  3. Section 328 stipulates the following five requirements in respect of the recognition of foreign judgments:-(a) The Courts of the country to which the foreign Court belongs must according to German law have had jurisdiction. Judgments of a foreign Court in matters in which under German law German Courts have exclusive jurisdiction are therefore not enforceable in Germany.

    EXAMPLE: A foreign judgment dealing with claims to immovable property in Germany cannot be recognised in Germany, section 24, ZPO. It is irrelevant whether the foreign Court had jurisdiction under its own rules.

    (b) If the unsuccessful party was a German national, he must either have put in an appearance in the proceedings or been served with the writ either in person in the foreign country in question or through legal aid granted to Germany.

    (c) The enforcement of the foreign judgment must not be contrary either to bonos mores or to the purpose of a German law. In this connection the relevant factor is not whether the foreign law on which the judgment is based violates either bonos mores or the purpose of a German law, but whether the individual foreign judgment constitutes such a violation. The German Courts have interpreted the two clauses similarly to the corresponding clauses in article 30, EGBGB (see section III, para. 19 above). On the whole they have shown a laudable tolerance of foreign views and habits.

    EXAMPLES: A foreign judgment granting divorce by consent is not contrary to bonos mores, if in addition to the consent a proper ground for divorce existed, Kammergericht Jur. Woch., 1937, p. 1977. A foreign judgment refusing divorce on the ground that the foreign law does...

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