aperçu des réponses au questionnaire accompagnant la ... - HCCH

Question Réponse / Reply État / State
précise [...]. Alberta : Oui, une cour pourrait juger qu'il est contraire à la politique officielle d'exécuter un tel
jugement étranger. Il est difficile de prédire les circonstances [...] mais on pense que cela pourrait se produire
lorsque la créance qu'on veut faire exécuter est une créance illégale en vertu du droit canadien, par exemple une
créance découlant d'une servitude.
[E] Québec: Under art. 3155, (3) C.C.Q., “A Quebec authority recognizes and, where applicable, declares
enforceable any decision rendered outside Quebec except in the following cases: … (3) the decision was rendered in
contravention of the fundamental principles of procedure”. Note also art. 3156 C.C.Q., which provides: “A
decision rendered by default may not be recognized or declared enforceable unless the plaintiff proves that the act of
procedure initiating the proceedings was duly served on the defaulting party in accordance with the law of
the place where the decision was rendered. However, the authority may refuse recognition or enforcement
if the defaulting party proves that, owing to the circumstances, he was unable to learn of the act of procedure
initiating the proceedings or was not given sufficient time to offer his defence. There has not yet been any
expression of opinion in the judicial decisions on this specific issue of a refusal to enforce a foreign judgment where
service has been made in accordance with the methods provided for in the Convention. Alberta: Yes, a Court might
find that it is contrary to public policy to enforce such a foreign judgement. It is difficult to predict what
circumstances [...] but it is suspected that this might occur where the debt sought to be enforced is an illegal one
under Canadian law, e.g. a debt related to indentured servitude.
Under section 6(1)(a)(iii) of the Foreign Judgments (Reciprocal Enforcement) Ordinance, Chapter 319 of the Laws of
Hong Kong, the court shall refuse to register a judgment for enforcement if, inter alia, it is satisfied that the
defendant did not (notwithstanding that process may have been duly served on him in accordance with the law of
the country of the original court) receive notice of those proceedings in sufficient time to enable him to defend the
proceedings and did not appear. Therefore, service may have been performed in compliance with the Convention,
but the court is still entitled to take everything into consideration to decide whether or not the defendant has
sufficient time to enable him to defend the proceedings if he did not appear in the proceedings in the original court.
Furthermore, section 6(1)(a)(v) of the same Ordinance provides for a mandatory ground of refusal to enforce a
foreign judgment based on public policy. Our position on translation is clear as represented by Order 69 rule 3(1) of
the Rules of the High Court. But if the lack of translation of the relevant documents is considered to have
fundamentally affected the rights of the defendant to have a fair trial, the resulting judgment may not
be enforced in Hong Kong by virtue of this section.
The principal constraint as to the effectiveness of a foreign judgment is that the defendant against whom the
judgment is to be enforced, has been accorded appropriate due process, including notice and an opportunity to
respond. Where the service of process has been made under the Convention consistent with the domestic laws and
court procedures, courts would typically consider the service effective. This does not preclude a judgment
defendant from later challenging the judgment based upon some factual infirmity in the service not
otherwise apparent to the court. Thus, for example, if the addressee accepts mail service of an untranslated
pleading or document, a U.S. court could still find, if challenged, that the defendant had not been provided
reasonable due process and deny enforcement of a resulting judgment. However, there are no reported cases of
this happening, in fact. In addition, of course, other procedural or substantive infirmities may exist in the underlying
action that might the judgment also unenforceable.
Chine (Hongkong)
Etats-Unis
No enforcement for judgement violating public order. Koweït
It would be possible, that Polish court might deny enforcement of a foreign judgement on the grounds that the
service has not been translated, even though the service has been performed by the methods provided for under
Convention. The grounds of that refusal would not be the breach of public policy but the depriving of the right of
defence - if the addressee would not know the language in which document would be drawn up.
Pologne
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