Consideration of the nature of the case in which a foreign court decision has been rendered, subject to recognition and enforcement in the Russian Federation

Gaponov Marat Damirovich Postgraduate Student, Department of Civil and Administrative Proceedings, Russian State University of Justice 117418, Russia, g. Moscow, ul. Novocheremushkinskaya, 69 gaponovm7@gmail.com

Introduction

An obvious consequence of the improvement of international civil turnover is an increase in the quantitative indicator of disputes, one of the parties to which are foreign persons. The resolution of such disputes ends with the adoption of judicial acts that provide for the need for their appropriate recognition abroad, as well as subsequent practical execution. These points are among the most significant aspects of international legal interaction in civil cases, since they have an impact not only on the rights of specific subjects, but also on the functioning of justice institutions. As M. Wolf notes, among all the practical difficulties associated with international interactions, one of the most significant is the issue of recognition of judicial decisions formed by foreign institutions of justice and their direct enforcement ^{[5, p. 274]}.

The purpose of the study is to study the contractual provisions that determine the range of judicial decisions adopted by foreign justice institutions, which are subject to direct recognition and subsequent enforcement on the territory of our state, as well as to identify the difficulties of current law enforcement practice and the formation of ways to modernize contractual provisions to ensure uniformity and clarity of their interpretation and use by judicial authorities.

As a rule, the predominant legal instrument used in the framework of the interaction carried out between the legal systems of different countries in the field considered in this paper is an international treaty. In the Russian Federation, similar to some other states, the presented condition is mandatory, as is directly indicated by certain norms of the current domestic legislation (in particular, Part 3 of Article 6 of the Federal Constitutional Law No. 1-FKZ dated 31.12.1996 "On the Judicial System in the Russian Federation", Article 409 of the CPC of the Russian Federation, Article 241 of the APC of the Russian Federation). As the researchers analyze, in the situation with the recognition of foreign court decisions, in respect of which there is no need for enforcement, there is an opportunity to do without a binding international agreement, provided that such an option is prescribed in the norms of federal law, as indicated by the provisions of Article 415 of the CPC of the Russian Federation and Article 245 of the APC of the Russian Federation ^[7].

The legal instrument in question is also used to enforce decisions made by domestic courts in a territory not under the jurisdiction of the Russian Federation. A necessary condition for a strong and stable international legal order, effective protection of the rights of subjects of the relevant civil turnover, is the improvement of cross-border cooperation in the context of mutual recognition by various States of judicial decisions adopted by foreign justice institutions and their subsequent execution.

The set of international treaties concluded by the Russian Federation in relation to issues related to the recognition and enforcement of the decisions under consideration includes, in particular, those highlighted in the study of N.I. Marysheva and A. I. Shchukin: the Convention of the CIS Countries on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases of 1993 (hereinafter – The Minsk Convention), the Agreement of the CIS countries on the Procedure for Resolving Disputes related to the Implementation of Economic Activities in 1992 (hereinafter – the Kiev Agreement) ^[10].

In addition, the points presented are defined in many provisions of existing bilateral treaties that fix issues of legal assistance in certain categories of cases (in particular, civil, family, etc.). In the context of the CIS countries, these agreements, along with the above-mentioned convention and agreement, form a single community of international treaties, the norms of which are aimed at comprehensive legal interaction between the relevant institutions of justice, as well as the protection of the rights of subjects of individual relationships.

There are also a number of multilateral conventions in which our State participates, providing for the appropriate recognition of judicial decisions formed by foreign institutions of justice, and their subsequent execution. In particular, we are talking about the Hague Convention on Civil Procedure (1954), the Rome Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface (1952), the International Convention on Civil Liability for Oil Pollution Damage (1969) (as amended by the Protocol of 27.11.1992), etc. At the same time, the submitted documents apply to certain categories of civil disputes.

The main part

The initial action used by judicial authorities to determine the possibility of classifying judicial decisions adopted by foreign justice institutions as subject to recognition and enforcement in the context of the provisions of international treaties is the verification of compliance of these acts with specific stipulated conditions. The complexity of this stage is caused by the ambiguity of the definition of the object of appropriate recognition and performance in the context of variable international treaties. At the same time, we are talking not only about the difference in the directly formulated definitions, but also about the absence of a specific definition in the contracts. The indicated points complicate uniform law enforcement practice. The Supreme Court of the Russian Federation focuses special attention on the need for strict compliance by the judicial authorities with the provisions of international treaties, since this seems to be the most significant guarantee of the practical implementation by the domestic public authority of the international obligations assumed concerning the protection of the rights of citizens and economic entities, which has a favorable effect on the stability and improvement of the authority of our state in cross-border interactions.

The urgent need for judicial instances to take into account specific contractual norms is fixed, in particular, in paragraph 9 of the Resolution of the Plenum of the Supreme Court of Ukraine dated 12/24/1999 No. 12 "On the practice of consideration by courts of petitions for recognition and enforcement of decisions of foreign courts and arbitrations and on the cancellation of decisions rendered in the order of international commercial arbitration on the territory of Ukraine". Also note paragraph 3 of the Resolution of the Plenum of the Supreme Court of the Republic of Moldova dated 09.12.2013 No. 9 "On the practice of application by courts of legislation concerning the recognition and enforcement of decisions of foreign courts and foreign arbitral awards", which provides for the inadmissibility of recognition of judicial decisions formed by foreign institutions of justice, and their subsequent execution, in the absence of fixing the relevant possibility in the norms of an international treaty. The specifics of disputes, decisions on which belong to the category under consideration within the article, are traditionally determined by the direct provisions of international treaties. Thus, within the framework of the Minsk Convention, we are talking about civil and family disputes. A similar position is present in the predominant part of bilateral treaties concerning legal assistance. At the same time, some of these agreements provide for some variability. In particular, in some cases, exclusively civil disputes are recorded; there is a differentiation of disputes into civil, family, and labor disputes; civil disputes are distinguished, which include commercial and family disputes, etc. There are agreements that establish civil and trade disputes as the categories under consideration (for example, the 2000 Treaty with India, Article 24). Within the framework of the aforementioned Kiev Agreement, a narrower range of such court decisions is envisaged. Thus, the submitted document (Article 1) mentions disputes caused by contractual and other relationships related to the category of civil law. Individual treaties use a slightly different approach, in which, along with identifying suitable solutions, those that are not subject to appropriate recognition are also identified (for example, the 1990 Treaty with Spain).

According to K. L. Branovitsky, in order to classify a particular dispute as civil, the corresponding contract is determined by the initial source. Thus, paragraph 4 of Article 1 of the bilateral agreement on legal assistance of 1996 between The Russian Federation, on the one hand, and Poland, on the other, includes variable interactions of a family and labor nature in the concept of civil disputes. According to paragraph 3 of Article 1 of a similar Agreement concluded in 1992 between the Russian Federation and the PRC, the concept of civil disputes applies to cases arising from family relationships, labor disputes and trade interactions ^[2]. Similar provisions are provided for in contracts with a number of other states, which is a fairly relevant topic of research, as evidenced by domestic and foreign works, in particular E. Barten ^[1], K. L. Branovitsky ^[2-4]. The need for the presented clarifications is caused by the difference in the specifics of the legal systems of the parties to such agreements ^[6]. So, within the framework of our state, family law is an autonomous separate branch, while in other systems this right is part of civil law.

According to the German processalist H. Shaka, the moment when a dispute is classified as civil does not depend on the specific national specifics of the organization of judicial instances. Thus, even if labor disputes are assigned to the exclusive competence of special relevant courts, they "do not cease to be civil disputes" ^{[15, p. 400]}. The provisions of a significant number of treaties of the Russian Federation separately emphasize the recognition and subsequent execution of court sentences in the immediate part concerning compensation for damage caused by a criminal act. In the context of the interpretation of the "civil dispute", there is a lack of aspiration on the part of the courts to a narrow understanding of the designated term. For example, the decision of the Moscow City Court appointed the enforcement of the decision adopted by the judicial instance of Kazakhstan in the framework of the consideration of a labor dispute (namely, the collection of salary arrears), despite the allocation of the norms of the Minsk Convention exclusively civil and family disputes ^[14].

Similar solutions are presented in many ways in modern domestic practice. Some international treaties affirm the possibility of recognition and subsequent enforcement of exclusively specific categories of civil and family disputes (for example, only on the recovery of alimony, etc.). In particular, the provisions of the bilateral agreement on cooperation in the field of adoption, concluded in 2014 between the Russian Federation, on the one hand, and Spain, on the other, establish the possibility of recognizing foreign adoption decisions made by the competent relevant authority (paragraph 5 of Article 11). In this case, the range of specific decisions is determined by the definition of the term "judicial decision" provided for by such agreements. Some treaties of the Russian Federation also include those that arise from administrative disputes in the category of decisions considered in this paper. In particular, we are talking about the agreement with Argentina in 2000, etc.

In the case when a decision made by a foreign institution of justice concerns a dispute that is wider than the limits of a private law nature, a necessary condition for its subsequent implementation is the direct provision of such a moment in an international treaty ^[13].

Nevertheless, the practical resolution of issues of recognition of specific decisions taken by foreign justice institutions in relation to cases of a public legal nature, in the context of the application of the norms of various treaties (in particular, the Minsk Convention, as well as the Kiev Agreement), demonstrates ambiguous situations. Thus, in some situations, domestic judicial authorities, when using the norms of the Minsk Convention, made a choice in favor of compulsory enforcement of decisions taken by foreign justice institutions in administrative cases ^[16].

As an example, we can cite the decision of the judicial board of the Supreme Court of the Russian Federation, which indicated the lack of proper justification for the return of the declared petition concerning the enforcement of a foreign court decision (payment of debt by a citizen L., due to customs payments). In this case, the norms of the Minsk Convention were applied. As part of the use of the provisions of the Kiev Agreement, the domestic arbitration court positively resolved the petition filed by the Tax Committee of the Ministry of Finance of the Republic of Kazakhstan concerning the enforcement of the decision of a foreign justice institution (namely, the Specialized Interdistrict Economic Court of the Kyzylorda region of the Republic of Kazakhstan), providing for the recovery of arrears in taxes and penalties from the domestic company "Z" ^[14]. In this case, similarly to the previous one, despite the fact that the nature of the dispute did not belong to the category of civil law, the court found it possible to apply the norms of the Kiev Agreement.

At the same time, there is another position affecting the enforcement of a decision made by a foreign institution of justice (namely, the courts of Kazakhstan) on disputes about the collection of public payments (in particular, taxes, as well as customs duties). The opinion of the Judicial Board of the Supreme Court of the Russian Federation was expressed in the inadmissibility of the enforcement of such decisions on the territory of the Russian Federation due to the public-legal nature of the original disputes, which, in turn, are not provided for in the norms of relevant international treaties as classified as subject to appropriate recognition. As a result, the board stressed the inadmissibility of the application by lower courts of the provisions of the Kiev Agreement ^[10].

Recognizing the validity of the above position, it should be emphasized that there are positive decisions in current practice in the framework of satisfying requests from cross-border tax authorities regarding the compulsory recovery of court costs caused by the consideration of the relevant civil dispute ^[11]. The logic of such a positive resolution proceeds from the fact that the compulsory recovery of the relevant funds was carried out within the framework of civil disputes subject to recognition in accordance with the norms of international treaties. A different state of things would seem wrong and biased. It is logical to mention here a similar understanding of the provisions of international treaties, recorded in the Resolution of the Plenum of the Armed Forces of Ukraine dated 12/24/2009 No. 12. In particular, as the researchers note, paragraph 9 of the above document extends the provisions affecting the procedure for the formation of a permit for the direct execution of decisions taken by foreign justice institutions in civil disputes, as well as for the compulsory recovery of the corresponding costs from the debtor ^[9].

The opinion of the Belarusian courts on this issue is similar. In particular, the Supreme Court of Belarus confirms the correctness and objectivity of the current practice of collecting the relevant court costs directly from the debtor ^[8].

A similar position takes place in the Hague Convention on the Enforcement of Foreign Judgments in 2019. Thus, the general meaning of this provision boils down to the fact that if a court decision falls under the category of those subject to recognition and subsequent enforcement under this Convention, the court ruling concerning the relevant costs in this case is also subject to similar recognition and enforcement ^[12]. This rule also applies in the opposite direction. In other words, if the original decision is not recognized by the Convention, then the definition of costs does not fall under direct mandatory enforcement.

A similar provision concerning the execution of decisions related to the recovery of costs incurred in connection with the consideration of the case is also included in the Hague Convention on Civil Procedure (1954, Article 18). At the same time, the submitted document (Article 17) limits the range of relevant decisions, referring to those exclusively taken in the framework of civil and commercial disputes against specific entities (in particular, the plaintiff, as well as a third party), which, according to the norms of the Convention, are spared the need to provide collateral and appropriate collateral.

Conclusion

Adequate overcoming of international disputes and the real possibility of subsequent execution of relevant decisions abroad represent a significant integral component of effective cooperation in the field of business and ensuring the proper well-being of subjects of all states. Of particular importance in this matter belongs to the definition of the range of foreign judicial decisions that are subject to appropriate recognition and direct enforcement. Within the framework of our country, this moment is directly related to the existence of a specific international treaty, which necessitates the analysis of a separate object of recognition in the context of the stipulated contractual provisions. At the same time, it provides for the possibility of recognizing the decisions under consideration without the need for an international agreement, provided that they do not require direct execution, and in cases fixed by the current federal law.

Based on a thorough study of the existing provisions of international treaties concluded by our state, the analysis of practical positions determined by judicial authorities, as well as the current norms of domestic legislation, a number of conclusions have been formulated.

In the context of the nature of the dispute that determines the adoption of a decision, decisions on disputes classified as civil by the provisions of an international treaty are determined within our State for appropriate recognition and enforcement. At the same time, decisions on such cases can be formed directly by a civil court, as well as criminal, commercial, etc. From the point of view of the practical use of the norms of the Minsk Convention in the work of judicial instances, it is necessary to emphasize the expanded interpretation of the nature of civil disputes, which, along with family interactions, also include issues related to labor relations. The presented approach corresponds to the general spirit of the designated Convention, and is quite comparable with the domestic legal system that defines labor law as a separate branch. This moment is caused by the attribution of this right to private law relations. In the case when the court decision in question is taken on a dispute that is wider than the limits of a private law nature, a necessary condition for its subsequent implementation is the direct provision of such a moment in an international treaty. When determining the relevance of acts to the contractual provisions provided for, they proceed from the subjects of their adoption. In particular, we are talking about State courts. At the same time, the scope of the norms of international treaties of our state does not apply to decisions that are formed by religious courts, as well as other bodies belonging to the category of "quasi-judicial", since there is no direct fixation of the possibility of their recognition in all existing designated treaties. Nevertheless, some bilateral agreements related to the provision of legal assistance contain indications for the recognition and subsequent execution of decisions formulated by the so-called "competent institutions". Based on the circumstances presented, in some cases, in the context of such contracts, the recognition in question is possible. In each case and in any procedural form of the issuance of a foreign act, in the context analyzed in this paper, it is necessary to make such a decision directly on the merits of the case on behalf of the competent authorized body on the basis of law enforcement functioning aimed at the implementation of justice.

Traditionally, decisions of the judicial instance affecting procedural points are not considered as judicial decisions that are subject to direct recognition and subsequent execution. As part of the improvement and strengthening of the interaction of the participating countries of international treaties (namely, the Minsk Convention, as well as the Kiev Agreement), it seems appropriate to supplement their norms by fixing the possibility of enforcement of the definitions adopted by the judicial authorities, causing the introduction of interim measures. The moment connected with the execution of the relevant court orders formed by foreign justice institutions is also characterized by the debatable relevance. So, if, within the framework of the use of the Minsk Convention, the designated acts are considered by judicial authorities as permissible for appropriate recognition and execution, then in the context of the Kiev Agreement, the opposite situation develops. Based on the existing trend, which necessitates the simplification of the current judicial process, it seems logical to fix in the norms of both submitted documents the possibility of executing such acts.

An additional point that seems controversial to us is the provision of the current domestic procedural legislation, which establishes the obligation of the judicial instance to refuse to directly accept for consideration an application for a court order in the case of the residence of the relevant debtor in a territory that does not fall under the jurisdiction of our state (paragraph 2 of Part 3 of Article 125 of the Civil Procedure Code of the Russian Federation, paragraph 2 of Part 3 of Article 229.4 of the APC RF). In the case when the norms of an international treaty of the Russian Federation provide for the need to execute such an order (in particular, the presented moment is fixed in the provisions of the Treaty with India), there is a difference in the actual situation of domestic participants in the case, on the one hand, and foreign, on the other. A similar point will become relevant if the Russian Federation joins the Hague Convention on the Enforcement of Foreign Judgments (2019).