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Can Exequatur be Abolished in Brussels I Whilst Retaining a Public Policy Defence?

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Abstract:

This article examines the importance of the public policy defence in the Brussels I Regulation. It analyses the relevant case law of the European Court of Justice in ascertaining the definition of public policy under Brussels I. The authors question the prudence of the European Union's long term goal of abolishing the exequatur procedure if it is only replaced with some form of a posteriori review in the country of origin. It is argued that the landmark case of Krombach and other cases validate the submission that at least a procedural public policy defence in the country of enforcement is necessary to protect the judgment debtor from breach of his fundamental rights, in particular the right to be defended under Article 6 ECHR. The paper examines whether a provision similar to that of Article 20 of the Hague Child Abduction Convention 1980 could strike a fair balance between the interests of the judgment creditor and debtor without destroying mutual trust within the EU. Such a provision would ensure that a judgment could only be refused recognition and enforcement on the basis of evidence of a manifest breach of the fundamental principles of the state of enforcement relating to human rights and fundamental freedoms. Whether this defence is available at the declaration of enforceability (the exequatur) stage or at the actual enforcement stage may be significant in being seen to achieve the long term EU goal of abolition of exequatur. The article also examines in some detail whether there is still a need for a substantive public policy defence, whether at the exequatur stage or the actual enforcement stage, even though it is very rarely invoked successfully in practice.

Document Type: Research Article

DOI: http://dx.doi.org/10.5235/174410410792166566

Publication date: August 1, 2010

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