As globalization intensifies cross-border interactions, understanding the legal mechanisms for enforcing foreign decisions becomes crucial for international business and dispute resolution. This article examines the recognition and enforcement of foreign judgments and arbitral awards across four jurisdictions: China, India, Italy, and Vietnam. By comparing these jurisdictions, we aim to highlight the similarities and differences in their legal processes, providing a comprehensive overview for legal practitioners and international businesses navigating cross-border disputes.
In the absence of a bilateral agreement, the recognition and enforcement of foreign judgments in China are governed by the principle of reciprocity, as outlined in Article 298 of the Civil Procedure Law. The applicant must submit the foreign judgment to a Chinese intermediate court with necessary documents, including a certified copy of the judgment and its Chinese translation. The court assesses whether there is reciprocity between China and the foreign country, i.e., whether the foreign country would recognize Chinese judgments in similar circumstances. Furthermore, the judgment must not violate Chinese laws, public policy, or sovereignty, and it must be final and binding.
Instead, China’s recognition and enforcement of foreign arbitral awards are primarily governed by the New York Convention, to which China is a signatory. If the arbitral award originates from a state party to the New York Convention, the applicant must submit the award to a Chinese intermediate court (art. 304 of the Civil Procedure Law). The court verifies the award’s compliance with the conditions set by the New York Convention, such as the validity of the arbitration agreement and the fairness of the arbitral procedure. Chinese courts may refuse enforcement if issues related to procedural fairness, jurisdiction, or public policy are found. However, the refusal threshold is high, reflecting China’s pro-arbitration stance and its adherence to international arbitration standards.
In India, the recognition and enforcement of foreign judgments are governed by the Code of Civil Procedure, 1908 (CPC). There are two methods through which the foreign judgement can be enforced in India. For judgments from reciprocating territories, recognition and enforcement are straightforward. Section 44A of the CPC allows a decree from a reciprocating territory to be enforced as if it were a decree passed by an Indian court and shall not be subject to review on merit. The applicant must file an Execution Petition along with a certified copy of the foreign decree and a certificate from the Superior court stating the amount that has been satisfied under the decree. The court then issues a notice to the judgment debtor to show cause against the execution of the decree. India has notified 13 reciprocating territories under Section 44-A of the Code such as the United Kingdom, Singapore, Bangladesh, Malaysia, Trinidad & Tobago, New Zealand, the Cook Islands (including Niue), Western Samoa, Hong Kong, Papua New Guinea, Fiji, Aden and, most recently, the United Arab Emirates. A judgment passed by any other court in any other territory, therefore, only acts as a cause of action for filing a fresh suit in India.
For non-reciprocating territories, the process is more complex. The judgment creditor must file a fresh suit in an Indian court based on the foreign judgment. If the court finds the foreign judgment to be conclusive under Section 13 of the CPC, which sets out specific exceptions (e.g., fraud, lack of jurisdiction, or contravention of Indian law), it can then pass a decree, which is enforceable as a domestic decree.
The enforcement of foreign arbitral awards in India is governed by the Arbitration and Conciliation Act, 1996, which incorporates the provisions of the New York Convention. As India is a signatory to the New York Convention and the Geneva Convention, the succeeding party can enforce the foreign award. The enforcement of foreign award is a two-stage process wherein Under Section 47 of the Act, the party seeking enforcement must first produce the original award, the original arbitration agreement, and evidence to prove that the award is a foreign award. Thereafter, the court will enforce the award unless it finds reasons to refuse enforcement under Section 48, which includes grounds such as incapacity of parties, invalid arbitration agreement, improper notice, and the award being against public policy.
The legal frameworks provided by the CPC and the Arbitration and Conciliation Act ensure that India maintains a structured approach to recognizing and enforcing foreign judgments and arbitral awards, upholding the principles of fairness and justice in international transactions.
The recognition of foreign judgments in Italy is governed by Law No. 218/1995. To obtain recognition for the purpose of enforcement, the interested party must bring an action before the Court of Appeal where enforcement is sought. The application must include an authentic copy of the foreign judgment and, if necessary, a translation into Italian.
Then, the Court of Appeal must examine whether the judgment for which recognition is sought complies with the requirements of Article 64 of Law 218/1995. These requirements are as follows: (i) the judge was competent according to the fundamental principles of Italian procedural law; (ii) The writ of summons was served on the defendant according to local law, respecting the rights of defence; (iii) The parties appeared in court, or default was declared according to local law; (iv) The judgment is res iudicata according to local law, (v) The judgment does not conflict with another judgment that is already res iudicata in Italy; (vi) There is no pending trial in Italy concerning the same subject matter and between the same parties; (vii) The provisions of the judgment do not contradict public order.
If the Court of Appeal finds that all these requirements are met, it will issue a judgement confirming that the conditions for recognition are met, thus making it enforceable in Italy.
The recognition of foreign arbitral awards is governed by Article 893 of the Italian Code of Civil Procedure, which implements the 1958 New York Convention. According to this article, anyone wanting to enforce a foreign arbitral award in Italy must file a petition with the President of the Court of Appeal in whose jurisdiction the counterparty resides. In case the counterparty does not reside in Italy, the jurisdiction belongs to the Court of Appeal of Rome.
The petitioner must submit the original award or a certified copy of it, along with the arbitration agreement, or an equivalent document, in original or a certified copy of it. If these documents are not in Italian language, the petitioner must provide a certified translation.
The President of the Court of Appeal, upon verifying the formal regularity of the award, declares by decree its immediate enforceability, unless the dispute could not be subject to arbitration under Italian law, or the award contains provisions contrary to public order.
In Vietnam, procedures for the recognition and enforcement of foreign judgments and arbitral awards are governed by Part Seven of the Code of Civil Procedure 2015. In principle, Vietnamese courts only recognize and enforce foreign judgments and arbitral awards when: (i) Foreign judgments and arbitral awards are consistent with the provisions of international treaties that Vietnam has signed or acceded to; (ii) On the basis of the principle of reciprocity; (iii) According to Vietnamese law.
Within a period of three years from the date a foreign judgment or arbitral award becomes effective, judgment creditors and persons with relevant legitimate rights and interests, or their lawful representatives, have the right to submit a request for recognition and enforcement in Vietnam.
Foreign judgments that can be recognized and enforced in Vietnam include civil, marriage, family, trade, business, and labor-related judgments/decisions, as well as decisions on properties in criminal/administrative judgments/decisions. Regarding the documents enclosed with the applications, in addition to the petition and foreign judgment, the applicant also needs to submit documents from the foreign court or competent authority confirming: the judgment or decision is legally effective, not expired for enforcement, and needs to be enforced in Vietnam; the valid service result of the judgment or decision to the person bound by it; and that the person or their legally authorized representative has been duly summoned in case the foreign court passes judgment in their absence.
For foreign arbitral awards, the documentation required for recognition and enforcement is much simpler. The applicant needs to submit a request, the arbitral award issued by the foreign arbitrator, and the arbitration agreement between the parties.
After receiving an application for recognition and enforcement of a foreign judgment or arbitral award, the court will carry out the procedures for accepting, considering the application, and deciding whether to recognize and enforce (or reject the recognition of) the foreign award or foreign judgment in Vietnam. This process will take at least six months from the date the court receives an eligible application in the case of recognition and enforcement of a foreign judgment, and at least three months in the case of foreign arbitral awards.
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