The enforcement of foreign judgments is a major issue in international trade. A recent study carried out at the request of the French Minister of Justice has confirmed that the number of foreign judgments being enforced in France is very high. The recognition and enforcement of foreign judgments in France is known as the “exequatur procedure”.
The study showed that on average, 95% of foreign judgments made outside the European Union and 99.5% of foreign judgments made within the European Union are recognised and enforced in France. These impressive statistics belie the difficulties encountered by a claimant in navigating the “exequatur procedure”.
To register and enforce a judgment the claimant has to find the applicable provision among the numerous national, European and international texts and have it interpreted. The claimant then has to convince the French Judge of the regularity of the foreign decision. However, the more difficult obstacles are the arguments typically raised by the defendant to try to frustrate the enforcement of the foreign judgment in France altogether or, at least, to delay the “exequatur procedure”.
For example, by taking advantage of loopholes in the “exequatur procedure”, a French company from Bordeaux was recently able to persuade the French Supreme Court that the judgment rendered by the Court of Ouagadougou (Burkina-Faso) in favour of a company based in Burkina Faso was not capable of enforcement in France at this stage of the procedure.
The French defendant took advantage of an unexpected interpretation of the Bilateral Convention signed by France and Upper-Volta (now Burkina-Faso) in 1961. The French Supreme Court ordered the parties back before the President of the Tribunal de Grande Instance of Toulouse. The Burkina-Faso company is still waiting to receive the monies from the Bordeaux company notwithstanding that the “exequatur procedure” began more than three years ago.
The recent study reveals just how difficult it is to avoid the problems associated with the “exequatur procedure” and that the better strategy is therefore to anticipate and embrace it rather than fear it. The study recommends that the parties to an international trade contract consider the difficulties likely to be encountered at the very early stages of their relationship and bear them in mind when negotiating the choice of law and choice of jurisdiction clauses in any contract between them.
That is not to say that agreement on the choice of jurisdiction in international trade contracts is easily reached. The preference of each party is inevitably influenced by the contractual obligations and a natural reluctance to succumb to a foreign legal system. With this in mind, parties might specify arbitration as their preferred method of resolving disputes.
Arbitration does not mean that the parties will avoid the “exequatur procedure” altogether but the New York Convention of 10 June 1958 has certainly made the enforcement of international arbitral decisions a less arduous task than the enforcement of non-European Union foreign judgments.
 Marie-Laure Niboyet and Laurence Sinopoli, « l’Exequatur des jugements étrangers en France », Gazette du Palais, 16 and 17 June 2004. Analysis of the 1,390 decisions rendered in this subject between 1999 and 2001 by the Courts of appeal of Aix en Provence, Colmar, Douai, Paris and Versailles.
2 Cass. 1re civ, published in Bulletin de la Cour de cassation