BiH Pravo 2014.-2020.

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Recognition of foreign Court Decisions in Bosnia and Herzegovina

Autor: https://advokat-prnjavorac.com/lawoffice/

In which cases a foreign court decision shall not be recognised in Bosnia and Herzegovina?

A: A competent Cantonal Court / District Court shall reject recognition of a foreign court ruling in the following cases:

– If contrary to the fundamentals of social system established in the Constitution of Bosnia and Herzegovina,

– If in the matter there is an exclusive competence of a court or another body in Bosnia and Herzegovina,

– If based on objection of a person against whom the decision has been passed, it is established that the person could not participate in the procedure due to irregularities in it,

– If in the same matter a court or some other body of Bosnia and Herzegovina passed a final decision (res judicata) or if some other foreign court decision passed in the same legal matter was recognized in Bosnia and Herzegovina and until the final termination of the lawsuit,

– If there is no reciprocity.

Q: What is the legal remedy in the procedure for recognition of a foreign court decision?

A: Against the decision on recognition, that is, execution of a decision, parties may file an appeal within fifteen days from the delivery of the decision, and the appeal shall be decided on by the appellate court – Supreme Court of Federation BiH / Supreme Court of the Republic of Srpska.
In accordance with the decision, it may be allowed to conduct the procedure for reinstatement and repetition of the procedure.

Q: What happens in cases when the place of residence of the opponent of the proposer is unknown?

A: In cases when proposal for recognition of a foreign court decision is filed, and the place of residence of the opponent of the proposer is unknown, and there is no attorney, apply provisions of the Law on Civil Procedure on appointment of temporary representative. The lawyer Azur Prnjavorac pointed out for our paper

In terms of procedural international private law the lawyer's office does the following:

Recognition of a foreign court judgment/recognition of a court decision on the territory of Bosnia and Herzegovina and procedures to enforce a foreign court judgment / a foreign court decision, before all courts of Bosnia and Herzegovina.

The lawyer's office also works on recognition and enforcement of foreign arbitral awards in BiH.

Recognition of a foreign court decision in Bosnia and Herzegovina

Initiation of a procedure for recognition of a foreign court decision / foreign arbitral awards in civil matters in Bosnia and Herzegovina:

The procedure for recognition of foreign court decisions and foreign arbitral awards is initiated by proposal of an authorized person, that is his lawyer. Law on resolution of conflict of laws with regulations of other countries in certain relations expressly provides that the recognition of a foreign court decision in status matters may be requested by anybody having a legal interest, accordingly even persons who were not personally parties in the procedure. The most frequent cases of recognition of foreign court decisions relate to family relations (decisions in marital disputes, alimonies, disputes to determine or challenge paternity or maternity, adoption), commercial court disputes and commercial arbitral awards, court decisions on payment of a sum of money arising from contractual obligations of a domestic and foreign legal entity, legacy cases, and other kinds of foreign court decisions.

Constitutional rule which has to be directly and primarily applied in all procedures is that anyone has to be given the opportunity to participate in the procedure in which his rights are being decided on, and only the right to appeal may be replaced by some other legal remedy. The procedure for recognition of foreign court and arbitral decisions is initiated by a proposal of an authorized person, that is, lawyer.

For recognition and implementation of foreign court decisions and foreign arbitral awards, jurisdiction as to place belongs to the court where the procedure of recognition or implementation is to be performed. For recognition of foreign court decisions and foreign arbitral awards, jurisdiction as to place belongs to the court where the procedure of recognition, that is, implementation is to be performed. Jurisdiction of the Cantonal Court / District Court in Bosnia and Herzegovina to decide on recognition of foreign court decisions, foreign commercial courts and foreign arbitral awards is stipulated by the Law on courts in Federation of BiH / Law on courts of the Republic of Srpska.

The procedure of recognition is performed in accordance with the Entity Law on out-of-court procedure, where the provisions of the Law on civil procedure apply, unless otherwise provided by law, as well as the Law on resolution of conflict of laws with regulations of other countries (“Official Gazette of SFRY” 43/82, 72/82), and Decree Law on recognition and application of federal laws applied in BiH as well as republic regulations (“Official Gazette of the Republic of Bosnia and Herzegovina”, No.: 2/92).

In case of signatory states of the Hague convention on abolishing the need for legalization of foreign legal documents dated October 5, 1961 (Convention de la Haye du 5 octobre 1961), public documents issued in foreign countries have legal validity in Bosnia and Herzegovina if certified by Apostille seal, without the need for further certification, and if the documents in question are cited in Article 1 of the said convention, among which belong also documents issued or certified by notary public.

Legal significance in Bosnia and Herzegovina under the applicable bilateral contracts is given also to public documents including certified power of attorney not requiring further certification if issued by competent bodies in the following countries: the Republic of Croatia, Austria, Bulgaria, Belgium, the Czech Republic, Slovakia, Libya, France, Italy, Greece, Cyprus, Hungary, Mongolia, Poland, the Russian Federation, Romania, Serbia and Monte Negro.

In which cases a foreign court decision shall not be recognized in BiH?
Competent Cantonal Court / District Court shall reject recognition of a foreign court decision, that is, foreign arbitral award in the following cases:
• If contrary to the fundamentals of social system established in the Constitution of Bosnia and Herzegovina,
• If in the matter, there is an exclusive competence of a court or another body in Bosnia and Herzegovina, if a respondent asks for recognition of a foreign court decision brought in a marital dispute or if asked by plaintiff and respondent does not object, exclusive competence of the court of Bosnia and Herzegovina is no obstacle for recognition of the decision,
• If based on objection of a person against whom the decision has been passed, it is established that the person could not participate in the procedure due to irregularities in it (because the summons, complaint or decision were not personally delivered, or personal delivery was not attempted at all. Unless the person in any way participated in the main hearing in first-instance procedure),
• If in the same matter a court or some other body of Bosnia and Herzegovina passed a final decision (res judicata) or if some other foreign court decision passed in the same legal matter, was recognized in Bosnia and Herzegovina and until the final termination of the lawsuit.

If there is no reciprocity. Reciprocity with respect to recognition of a foreign court decision is presupposed until otherwise proved, and in case of suspicion in existence of that reciprocity, explanation is given by an administrative body competent for judiciary. Absence of reciprocity does not impede recognition of a foreign court decision passed in a marital dispute and in the dispute for paternity or maternity, or if recognition or execution of a foreign court decision is requested by a citizen of Bosnia and Herzegovina.

In cases when proposal for recognition of a foreign court decision is filed, and the place of residence of the opponent of the proposer is unknown, and there is no attorney (as in practice the most frequent case with recognition of foreign court decisions on divorce), apply provisions of the Law on civil procedure on appointment of temporary representative. Costs of this procedure should be advanced by the proposer of recognition of a foreign court decision.

Against the decision on recognition, that is, execution of a decision, parties may file an appeal within fifteen days from the delivery of the decision, and the appeal shall be decided on by the appellate court – Supreme Court of Federation BiH / Supreme Court of the Republic of Srpska.

In accordance with the decision, it would be allowed to conduct the procedure for reinstatement and repetition of the procedure.

To execute a foreign court decision in Bosnia and Herzegovina, it is necessary as preliminary question, to recognize the foreign court decision, and then execute the same in Bosnia and Herzegovina.

f you’ve been doing business with Bosnia and Herzegovina companies, chances are that sometimes things didn’t go as expected. Our own experience tells us that clients sometimes feel uneasy about filling for recognition and enforcement of judgment issued by their own national courts or arbitration. When talking to business owners and managers who contact us about this issue, we get all sorts of questions, mostly expressing uncertainty and reservations towards the outcome of the recognition and enforcement proceedings.

In addressing those fears, we tell our clients that Bosnia and Herzegovina legal system has been transformed to accommodate European standards and reformed to meet all challenges faced by international business, including laws and regulations regarding judgment enforcement procedures.

Call, write or email to us with your legal problem. We will work together in gathering everything needed for recognition and enforcement of foreign court issued decision. We promise that your interests, as a client, will be our most important goal, and that you will be informed about every step in the process.

The ruling on recognition and enforceability (exequatur) will be rendered in the so-called non--contentious procedure regulated by the Law on Non-Contentious Procedure (the procedure that is simpler than the contentious procedure (litigation) regulated by the Code of Civil Procedure). If the foreign judgment concerns a civil matter, the ruling on recognition will be rendered by a high court. Foreign judgments in commercial matters will be recognized by commercial courts (the Law on Judicial Organization (2008), Articles 23(3) and 25(2).There is a right of appeal against the ruling of the high court to the court of appeals and against the ruling of the commercial court to the Commercial Court of Appeals (Article 101(3) and The Law on Judicial Organization (2008), Articles 24 and 26).

The issue of recognition of a foreign judgment may also arise as a preliminary question in any civil or enforcement action. The court may decide upon such a preliminary question if there is no prior ruling on recognition. The ruling will have effect only in the proceedings in which it was made (Article 101(5).


ABOUT THE AUTHOR: Law office Prnjavorac - Bosnia and Herzegovina
Law office Prnjavorac - Bosnia and Herzegovina

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