By Jelena Bajin, lawyer
Law office of Tomislav Šunjka
Recognition and enforcement of foreign decisions in the Republic of Serbia are governed by the Law on resolving legal conflict with other countries (the ‘Law’), which was initially adopted by the then Yugoslavia in 1982. Considering the great importance of this Law for the economy and citizens, Serbia has continued to apply it on its territory since the dissolution of the former Yugoslavia.
According to the Law, a decision of a foreign court, a court settlement and a decision of another authority which is equivalent to a court decision in the country where it was taken, shall have the same status as the decision of a court in Serbia. The decision shall produce legal effects in Serbia only if recognized by a court of Serbia and if the applicant has accompanied his request for the recognition with a confirmation of the competent foreign court or another authority respectively that the decision is final and enforceable under the law of the country in which it was taken.
The process of recognition of foreign court decisions is a bipartisan process, and contradictory, since the opposing party has the right to challenge the proposal and present the facts and evidence that indicate that the conditions for recognition of a foreign court decision are not fulfilled.
There are a number of other conditions stated by the Law. These include: that there is no exclusive jurisdiction for the courts of Serbia; that, if there is a non-enforceable decision passed by the Serbian authority, or foreign authority decision that has been already recognized in the same legal matter and between the same parties, the decision cannot be contrary to the foundations of the social system established by the Constitution of the Republic of Serbia (the ‘Constitution’); and reciprocity has to exist between the state that has rendered the decision and Serbia.
Also, the court of Serbia shall decline to recognize a foreign court decision if it establishes, as a result of a review of an objection lodged by the person against whom the decision is passed, that such person was not able to participate in the proceedings due to procedural shortcomings.
There is a considerably small number of limitations regarding exclusive jurisdiction of the Serbian authorities. Those limitations are usually established for the protection of economic interests of the State, especially in legal matters concerning immovable property, or protection of citizens, especially children in matrimonial matters.
However, the interests of the parties, especially when it comes to private matrimonial legal matters, have priority. For example, if the respondent is seeking recognition of a foreign decision made in matrimonial proceedings, or if the plaintiff requests so and the respondent is not opposing, the exclusive jurisdiction of a Serbian court shall not be an impediment to the recognition of such decision.
A foreign court decision shall not be recognized if a court or other Serbian authority has rendered an enforceable decision on the same cause of action, or if another foreign court decision passed in relation to the same cause of action has already been recognized. The court shall stay the recognition of a foreign court decision if proceedings involving the same cause of action between the same parties have been brought in a court in Serbia until the latter proceeding is completed.
A foreign court decision shall not be recognized if it is contrary to the foundations of the social system established by the Constitution. This provision of the Law represents the well-known legal institution of public order.
Public order represents the core values and principles of the State’s social, political and legal foundations and cannot be sacrificed in the international legal traffic. As such, it can differ from state to state, depending on political, social or religious views of a particular state establishment.
Also, the formulation ‘contrary to the foundations of the social system…’ is quite unusual when talking about the provisions that are in fact public order limitations. This formulation certainly suggests a narrow interpretation of the institution of public order. Foundation of the social system established by the Constitution, above all, is a much narrower category of the totality of peremptory norms. Not all peremptory norms of a legal system of the Republic of Serbia are considered to be public order, only the most important ones that make the foundation of the legal, and political system of the Republic. For example, a natural person is of legal age when the age of 18 years is attained, and attaining legal age is a peremptory norm of the legal system in the Republic of Serbia. However, it would not be justified if a Serbian court, when recognizing and enforcing a foreign decision where the applicant is younger and is considered an adult in the legal system that rendered the original decision, refuses recognition and enforcement on the basis of public order, since the peremptory norms of the Republic of Serbia and foreign country that rendered decision have different norms regarding attaining legal age. On the other hand, if a recognition and enforcement of a foreign decision is sought for a decision that contains elements of discrimination on the basis of gender, race or religion, and even if such a decision is rendered according to law of the foreign country, such decision will not be recognized by the court of the Republic of Serbia, on the basis that is contrary to the public order, bearing in mind that the prohibition of discrimination is a constitutional principle.
It is quite clear that the intention of the legislator was that public order is used only in situations where the standards of foreign law or foreign decision encroach upon the most important issues - constitutional principles – if they are opposed, not any set up or order, but the very foundations of public order.
Of course, when it comes to public order, application of this provision essentially the most important is the strength of connections between specific legal rights and domestic order. If the connection is stronger, there is more justification for the application of the institution of public order. Thus, the application of the public order provision will mostly depend on the degree of interest the state has in particular legal matter. As in examples mentioned in previous paragraph, the interest of the state is much greater when protecting the constitutional principle of prohibition of discrimination with the institution of public order, than when protecting other peremptory norms of the state’s legal system. Only such great state interests justify refusal of recognition and enforcement of a foreign decision.
A foreign court decision shall not be recognized by the courts of Serbia if reciprocity is lacking.
Reciprocity shall be presumed until evidence to the contrary is presented.
As we can see, the reciprocity needed is factual, real reciprocity, not diplomatic reciprocity. This means that if a court of a foreign state recognizes decisions of Serbian courts, the courts in Serbia will recognize the decisions of said foreign state, even if there is not a bilateral or multilateral agreement between them. The lack of international agreement does not prejudice the presumption of reciprocity in terms of recognition of foreign court decisions. Also, reciprocity does not have to be ‘total’; that is, not all of the court or other authority decisions in Serbia have to be recognized by the foreign court in order for reciprocity to exist. If the Serbian court finds that the authorities of the foreign country have recognized the decisions of Serbian authorities in the same legal matter, it will be satisfied that factual reciprocity exists.
In the case of doubt as to the existence of such reciprocity, a clarification shall be provided by the state authority responsible for the judiciary. Furthermore, the court is authorized to – regardless of the lack of initiative of the parties in the procedure – ex officio discover if there is reciprocity throughout the procedure, providing there is doubt that reciprocity is lacking.
The lack of reciprocity shall not be an impediment to the recognition of a foreign court decision made in matrimonial proceedings or proceedings for the establishment or denial of paternity or maternity, nor if the recognition or enforcement is sought by a Serbian national.
The domestic court has no power to control the legality of the court judgment which recognition is sought or to examine its contents. The domestic court will not examine if the decision is rendered according to material laws of the foreign country. Powers of the domestic court are limited to formal testing, which involves the control of fulfillment of domestic conditions for the recognition, or the existence of obstacles that would prevent the recognition of foreign court decisions.
A decision of a foreign court relating to the personal status of a national of the country from which the decision originates shall be recognized without court examination, if the exclusive jurisdiction of Serbian authorities exists, it is contrary to public order, or the reciprocity exists. If a foreign court decision relates to the personal status of foreigners who are not nationals of the country which passed the decision, the decision shall be recognized only if it meets the requirements for recognition in the said person’s home country.
All of the above applies when the applicant seeks an enforcement of a foreign decision. An applicant must submit, in addition to the confirmation of the competent foreign court or another authority respectively, a declaration that the decision is final and enforceable under the law of the country in which it was taken.
The court in the territory of which the procedure of recognition or enforcement is to be carried out shall have territorial jurisdiction for the recognition and enforcement of foreign decisions. The court may request an explanation from both the court which rendered the decision and the parties, if it finds it necessary to do so.
The parties may file an appeal against a decision on the recognition or enforcement within 15 days of when the decision is served to them, and it shall be decided upon by the second-instance court.
If no specific ruling has been rendered in relation to the recognition, every court may settle the issue of recognition in the course of proceedings as a preliminary question, which will have effect only in relation to the proceedings concerned. The court will decide on recognition of the foreign decision as a preliminary question, if it finds that this will be economical and expedient for the process and the parties.
Everyone who has a legal interest is entitled to request the recognition of a foreign court decision relating to the personal status.
The matter of recognition and enforcement of foreign decisions is a very important legal matter in every country.
In conditions of high cross-border movability of people and funds, it is of great importance to ensure that the decisions of a foreign court or authority are recognized and enforced.
When looking at European Union legislature, one could think that the legal matter of recognition and enforcement of foreign decisions is losing its importance, considering that in the EU national authorities of a country where the recognition and enforcement of a foreign decision is sought mainly just check if the decision in question is in accordance with public order of the state where recognition and enforcement is sought, due to the fact that national legislature between the countries of EU is mostly harmonized.
Considering that Serbia has not yet joined the EU, having a working mechanism of recognition and enforcement of foreign decisions is still of great importance to the transition process and efforts to strengthen the economy. Of course, the protection of interests of state and its residents must not be compromised. Hence, it is a matter of finding a middle solution, providing the possibility of recognition and enforcement of foreign decisions without compromising the most important State interests.