Review on fund

from Wikipedia, the free encyclopedia

In international civil procedural law , one speaks of révision au fond when a court reviews these decisions in legal and factual terms when recognizing or declaring enforceability of foreign court decisions or arbitral awards.

A révision au fond is prohibited in Germany and many other countries.

References

This prohibition is standardized in Art. 29 and 34 (3) Brussels Convention as well as in Art. 36 and 45 (2) EuGVVO with regard to recognition and enforcement proceedings (for family matters in Art. 19 EheGVO ). The regulations read in each case: "The foreign decision may under no circumstances be reviewed in terms of the matter itself."

In the Code of Civil Procedure (ZPO) there is an express regulation only in Section 723 (1) ZPO regarding the declaration of enforceability of foreign decisions ("The enforcement judgment is to be issued without checking the legality of the decision"). With regard to the recognition of foreign decisions, the prohibition of révision au fond is not expressly regulated in the ZPO, but it is undisputed that it also applies there.

For the law of arbitration, the prohibition of the révision au fond for foreign arbitral awards results from the final list in Art. V of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. For domestic arbitral awards, the révision au fond according to § 1059 para. 2 ZPO prohibited. The final list there is based on Article 34, Paragraph 2 of the UNCITRAL Model Act on International Commercial Arbitration of 1985. It thus corresponds to the list in Article V of the New York Convention.

A ban on révision au fond is also recognized in the Anglo-American legal system and has been in force in France since the Munzer / Munzer decision in 1964.

Relationship between the prohibition of révision au fond and the examination of obstacles to recognition

The relationship between the prohibition of révision au fond and the examination of obstacles to recognition can be described in three ways.

  • First, the barriers to recognition are generally seen as an exception to the general prohibition on révision au fond. In some cases, the opposite view was taken that the prohibition of révision au fond should also be observed directly when examining obstacles to recognition - this would, however, lead to the conclusion that the examination of any obstacles to recognition would be in vain.
  • In addition, the obstacles to recognition can be understood as a prerequisite for the prohibition of révision au fond: "Because only the filter of the recognition requirements ultimately makes it possible to dispense with a further review."
  • Thirdly, different views are expressed on the question of whether the prohibition of révision au fond should be taken into account when interpreting obstacles to recognition as a yardstick . According to one opinion, recognition controls may only be justified with a possible poor quality of case law in the first state, as the respective obstacle to recognition is specifically tailored to the cause of the low quality of case law.

Individual evidence

  1. ↑ Ekkehard Rain: Process fraud as a bar to recognition. A contribution to the specification of the public policy reservation, Rn. 180 f. with evidence.
  2. ↑ For evidence cf. Ekkehard Regen: Trial fraud as an obstacle to recognition. A contribution to the specification of the public policy reservation, Rn. 433 footnote 437.
  3. ↑ See Haimo Schack: Internationales Zivilver procedural law, 4th edition 2006, Rn. 909 and Ekkehard Regen: Trial fraud as an obstacle to recognition. A contribution to the specification of the public policy reservation, Rn. 225
  4. ↑ Evidence from Ekkehard Regen: Trial fraud as an obstacle to recognition. A contribution to the specification of the public policy reservation, Rn. 349 footnote 268.
  5. ↑ Evidence from Ekkehard Regen: Trial fraud as an obstacle to recognition. A contribution to the specification of the public policy reservation, Rn. 348.
  6. ^ Rolf A. Schütze: German International Civil Procedure Law including European Civil Procedure Law, 2nd edition 2005, Rn. 358 (p. 200 above).
  7. ↑ Evidence on the state of opinion in German and English literature by Ekkehard Regen: Trial fraud as an obstacle to recognition. A contribution to the specification of the public policy reservation, Rn. 432-439; Online summary .
  8. ↑ Cf. Ekkehard Regen: Trial fraud as an obstacle to recognition. A contribution to the specification of the public policy reservation, Rn. 794 ff. And Rn. 913; Online summary .