Should Certain Grounds for Refusal of Recognition of Foreign Judicial Decisions in Civil Matters Provided by Ukrainian Legislation Exist?

The article compares the grounds for refusal of recognition and execution of foreign judicial decisions in civil cases under the law of Germany, France, Austria, Italy and Ukraine. It has been concluded that some of the grounds for refusal are known only to Civil Procedure Code of Ukraine (CPCU). These cover the following: 1) ‘subject-matter of a dispute is not a subject to judicial review’ (Art. 468 (2) (6) of CPCU); 2) ‘execution of the decision would threaten the interests of Ukraine’ (Art. 468 (2) (7) of CPCU); 3) ‘in other cases provided by the laws of Ukraine’ (Art. 468 (2) (9) of CPCU).

It has been assumed that the first-mentioned ground was included in CPCU by analogy with one of the grounds for refusal of recognition and enforcement of foreign arbitral awards – ‘the subject-matter of the difference is not capable of settlement by arbitration under the law of the country where recognition and enforcement is sought’ (Article V (2) (a) of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards; Article 478 (2) (a) of the CPCU). The existence of such a ground for refusal for recognition and enforcement of foreign arbitral awards is justified, as it is well-known that the national legislation of many countries sets the limits on arbitrable disputes. However, the rule that provides the possibility to refuse in recognition and enforcement of foreign judicial decision if ‘subject-matter of a dispute is not a subject to judicial review’ is inappropriate, because by virtue of Art. 4 of the CPCU any violated, unrecognized or disputed right, freedom or legitimate interest may be subject to judicial review. There are no restrictions in this regard. Therefore, it has been concluded that Art. 468 (2) (6) of CPCU must be deleted.

It has been suggested to replace the second-mentioned ground for refusal in recognition and enforcement of foreign decisions by the following: ‘if the execution of the decision is manifestly contrary to public policy of Ukraine’. Public order should mean international public order and should be understood narrowly.

It has been concluded that the third-mentioned ground must be deleted from CPCU. Given that in Ukraine, CPCU is the only law that governs all possible civil proceedings, it is logical that the recognition (and granting the permission for enforcement) of foreign decisions in civil matters should be governed by CPCU exclusively. It has been emphasized that in contrast to CPCU the laws of other states provide closed lists of grounds for refusal of recognition and enforcement of foreign decisions, which contributes to legal certainty and reduces the opportunities for creation of obstacles to recognition and enforcement of foreign judicial decisions.