Foreign judgments in Belarus
As a general rule, decisions of foreign courts on commercial disputes are recognized in Belarus and are the subject to compulsory execution in case if this is provided by legislation or an international treaty. The Republic of Belarus is a party to a number of international treaties and conventions, that establish mutually binding conditions for the recognition of foreign judgments on the territory of different countries.
For example, in 1992, the Republic of Belarus and Lithuania signed an Agreement on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases, which implies mutual recognition and enforcement of decisions in civil (including economic) and family cases, as well as in criminal cases in terms of compensation for damage. In addition, similar agreements have been concluded with Bulgaria, Hungary, Vietnam, Iran, Italy, China, Cuba, Latvia, Pakistan, Poland, Serbia, Syria, Slovakia and the Czech Republic. The provisions of such international traties are the basis for the enforcement of decisions of a foreign court in Belarus.
In addition to bilateral, the Republic of Belarus is a party to a number of multilateral conventions, for example, the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (concluded in Kishinev in 2002).
Compulsory execution of a foreign court decision in Belarus
A decision on a commercial dispute is subject to compulsory execution after an economic court issues a ruling on its recognition and enforcement. Attorney at law in a case on the compulsory execution of a foreign court decision will prepare an application to the court, other documents specified by procedural legislation, and ensure the representation of the applicant's interests in court.
Refusal to enforce a foreign judgment in Belarus
As a general rule, the courts of the Republic of Belarus do not assess the legality and validity of court decisions, adopted abroad. Nevertheless, the procedural legislation defines a number of grounds on which the Belarusian court may refuse to enforce the decision of foreign court.
The decision of a foreign court has not entered into legal force
Usually court decision has a corresponding mark of the court registry, informing all interested persons about the date, when the decision has come into force. For example, in Belarus, an interested person will not be able to legalize a decision made by a Belarusian court, i.e. affix an apostille, certify the translation of the decision with a notary, etc., if the decision itself has not entered into legal force.
However, in our practice, there have been cases when the date, when the date of entry into legal force is not clear from the text of the decision itself. For example, in the decision of the court, adopted by one of the Dutch courts, there was no corresponding mark on the date of its entry into legal force, and there was no procedure for affixing such a mark. Such procedural features force Belarusian attorneys at law to seek additional means and ways to confirm the fact that the decision has entered into legal force, which the Belarusian court would find convincing.
The party of a dispute was not duly notified on the proceedings
The ability to defend oneself in a legal proceeding is one of the main guarantees that ensure the principle of adversarial parties in a legal proceeding. For this reason, the lack of proper notification is one of the grounds for refusing to enforce the decision of a foreign court.
We need to notice, that in such casses Belarusian court checks not only the fact of notification, but also its timeliness, in order to make sure that the party against whom the decision was made had time to provide counter-arguments, form a position on the case and appear in court. Such approach is a worldwide practice, which is enshrined in a number of international treaties, in particular, in the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, concluded in The Hague on November 15, 1965, and in the Convention, relating to Civil Procedure, concluded in The Hague on March 1, 1954.
A dispute considered by a foreign court falls within the exclusive competence of the Belarusian court
In the court prcatice of Belarus, the refusal to recognize the decision of a foreign court on this basis is a special case. Nevertheless, similar provisions are stipulated by a number of international treaties to which the Republic of Belarus is a party, f.e. the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (Minsk, 1993).
The court in the Republic of Belarus is considering a case on a dispute between the same parties, on the same subject and on the same grounds, the proceedings on which were initiated before the initiation of proceedings in the case in a foreign court
These rules are aimed at preventing the so-called "forum shopping" - an attempt by an interested party to choose the most favorable jurisdiction for considering a dispute. Particularly, various legal regimes in specific cases, due to the specifics of the legislation, provide "more beneficial" material or procedural law for the party to the conflict. For example, in the Republic of Belarus, economic courts do not actively use the customs of business turnover as a justification for certain decisions taken, as in the countries of the Anglo-Saxon legal system.
The limitation period for bringing the decision of a foreign court to execution has expired
As a general rule, a foreign judgment can be enforced within three years from the date the court decision comes into legal force. If the specified period is missed, it can be restored at the request of the interested party in the manner determined by the procedural legislation of the Republic of Belarus.
Our practice shows that it is extremely important to take into account the course of the statute of limitations, since in commercial disputes it is often difficult to justify the fact that the period for recognition of a foreign judgment was missed for a serious reason.
Execution of the decision of a foreign court contradicts the public order of the Republic of Belarus
The public order of the Republic of Belarus should be understood as the fundamental principles of international law, the norms of the Constitution of the Republic of Belarus, the provisions of international treaties of the Republic of Belarus, the basic principles of the fundamental branches of law. Nevertheless, the public order is not connected with moral, religious, cultural, economic principles of building public life. An example of a generally recognized principle of international law is the pacta sunt servanda principle - each valid contract must be fulfilled in good faith by its participants.
Recognition and enforcement of foreign arbitral awards
The procedure of recognition of arbitral awards in Belarus is generally similar to the procedure for the recognition and enforcement of foreign courts decisions. Particularly, the procedural law provides for a similar procedure for filing applications to the court, as well as grounds for refusing to issue a corresponding ruling. The Republic of Belarus is a party to the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards, concluded in New York on June 10, 1958, which creates the legal perspectives for access to Belarusian justice.
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