22-04-2013

Enforcement Of Foreign Judgements And Foreign Arbitral Awards

Authors

  • Artion Pashollari, Attorney at Law
    Partner at Artion PASHOLLARI Law Office

Enforcement of the foreign judgments

In the Republic of Albania, the judgments of foreign courts are recognized and enforced, as far as they are compatible with the provisions of the Civil Procedural Code or other applicable laws, with exception of such cases which are subject to other international agreements, which are recognized from the Republic of Albania. In such a case, the provisions of the international agreement prevail.

Which foreign judgments can be forced in Albania?

All foreign judgments can be enforced in the Republic of Albania irrespectively of the country where they are issued, after being recognized as applicable by a decision of the Albanian Court. The foreign judgments may be recognized as applicable by the Albanian Courts, if they meet the criteria of the Albanian legislation. Once recognized, the judgments of foreign courts become enforceable, being so equal to the judgments of the Albanian courts.

On which legal bases a foreign judgment can be recognized and enforced in Albania?

The procedure for the recognition of foreign judgments is regulated by the articles 394-398 of the Code of Civil Procedure. Besides the provisions of the above legislation, Albania as a member of the Hague Convention on Private International Law, has ratified the following Conventions: The Convention of 1 March 1954 “On Civil Procedure”, the Convention of 5 October 1961 “On the Abolishing the Requirement of Legalization for Foreign Public Documents”, the Convention of 15 November 1965 “On the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters”, the Convention of 1 February 1971 “On the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters”the Convention of 18 March 1970 “On the Taking of Evidence Abroad in Civil or Commercial Matters” , the Convention of 2 October 1973 “On the Recognition and Enforcement of Decisions Relating to Maintenance Obligations” , the Convention of 2 October 1973 “On the Law Applicable to Maintenance Obligations”, the Convention of 25 October 1980 “On the Civil Aspects of International Child Abduction”, the Convention of 25 October 1980 “On International Access to Justice” the Convention of 29 May 1993 “On Protection of Children and Co-operation in Respect of Intercountry Adoption” , the Convention of 19 October 1996 “On Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children” the Convention of 23 November 2007 “On the International Recovery of Child Support and Other Forms of Family Maintenance”.

Which are the criteria that a foreign judgment must meet so that it is recognized by the Albanian court?

The Albanian legislation set a number of criteria that a foreign judgment must meet in order to be recognized and so enforced in Albania. The foreign Court that has issued the judgment must be so competent in the relevant field of law. This must be understood as competence that according to the standards of the Albanian legislation, will determine the jurisdiction of the Albanian courts in similar cases. The claim and the lawsuit should have been adequately notified to the respondent, if they were absent during the trial in the foreign court, so that he may present his arguments before Court. This requirement guaranties to the respondent who’s absent during the trial, that the right to be present and be heard during the trial has been properly respected by the foreign Court, according to the standards of the Albanian legislation. It is at the Albanian Court’s discretion to conduct an inquiry as to whether the lawsuit has been properly notified to the respondent, having to justify the reasons for such an inquiry with its own judgment. Another important criterion for the recognition of foreign judgments is whether for the same case between the same litigants and with the same subject matter there is already judgment issued from Albanian Courts, or the same case has already been submitted to be heard before Albanian Courts, prior to issue of the foreign judgment. In order for the foreign judgment to be recognized as enforceable, it must be declared as final judgment, according to the Albanian law provisions.

Which documents are required to be presented to the Albanian Court in order to recognize a foreign judgment?

An application must be addressed to the competent Albanian Court asking for the recognition of the foreign judgment. The application, signed by the interested party or its representative, must be accompanied by a copy of the foreign judgment, translated into Albanian and certified by an Albanian notary public. The foreign judgment copy must include a note from the Court that has issued the judgment that this decision is final being so an enforceable title. This note if released separately as a document must be also translated into Albanian and certified by an Albanian notary public. If the interested parties are being represented, a copy of the representation act, such as Special Power of Attorney, must be presented as well. If this act is drafted outside Albania, it must be translated in Albanian and certified by an Albanian public notary and all the above documents must be legalized according to the Convention of Hague of October 5, 1961 “Abolishing the Requirement of Legalization for Foreign Public Documents”.

What is the particular procedure for recognizing a foreign judgment under the Albanian legislation?

The application together with all the above mentioned documents will be examined by the Albanian Appeal Court. According to Law no. 9877 of February 18, 2008 “On the organization of the judiciary system on the Republic of Albania”, in Albania there are 5 Appeal Courts, each one with a different zone of geographical jurisdiction. The application must be submitted to the attention of the Appeal Court that has under its jurisdiction the district in which the foreign judgment will be enforced. The Appeal Court hears the case and issues its judgment after examining whether the foreign judgment meets the abovementioned criteria, without entering into the details of the case and of the foreign judgment itself. The judgment issued by the Appeal Court declares the foreign judgment an enforceable title in Albania.

What are the next steps for enforcing a foreign judgment in Albania?

The execution of Court Decisions in Albania, once they become enforceable, is made by Bailiff Service, which as of 2008 is offered by public or private offices. In order for a court decision that has been declared enforceable in Albania (such as any foreign judgment that has been declared enforceable by the competent Appeal Court) to be executed by Bailiff Officers, an order for execution must be issued by the competent Court. Orders for execution are issued by the District Courts which have jurisdiction over the territory where the enforceable title shall be executed. A petition must be presented to the District Court by the interested party, so the Court may release the execution order. This petition must be accompanied with a copy of the foreign judgment translated into Albanian language, certified by a Notary public and legalized as per above, a copy of the representation act, such as a Special Power of Attorney and a copy of the judgment of the Appeal Court which recognized the foreign judgment. The District Court goes through a typical review of the judgment of the Albanian Appeal Court and then releases the execution order. The interested parties may then seek to enforce the foreign judgment, simply by addressing a request to the Bailiff Officers, being private or public, and presenting to them the execution order, a copy of the foreign judgment and a copy of the Appeal Courts judgment which recognized and declared the latter enforceable.

What is the approach of the Albanian Courts regarding the enforcement of the foreign judgments?

The Albanian Courts are very careful with the application of the provisions of the non­enforcement of the foreign judgments. To our best knowledge there are only few judgments that have been denied the enforcement in Albania, mostly because they were issued against the criteria specified above.

Can the recognition of the foreign judgments be challenged?

Generally, the recognition of the foreign judgments is not subject to challenge, being considered as judgments that were issued on the grounds of the judgment of a foreign Court. However, there are a few cases that the recognition has been challenged by submitting an appeal to the Supreme Court. To our best knowledge at least in one case, the defendant that presented such an appeal also presented a request for suspending the enforcement of the execution order, which was issued after the recognition of the foreign judgment by the Appeal Court, request that was accepted by the Supreme Court. Up to now the Supreme Court has not taken into consideration the appeal presented, and has not issued any judgment on the recognition of the foreign judgment by the Appeal Court.

Enforcement of the foreign arbitral awards

In the Republic of Albania the foreign awards are recognized and enforced, as far as they are compatible with the provisions of the Civil Procedural Code or other applicable laws, with exception of such cases which are subject to other international agreements, which are recognized from the Republic of Albania. In such a case the provisions of the international agreement prevail.

Which foreign awards can be enforced in Albania?

According to the Article 399 Code of Civil Procedure, the provisions that are applied for the recognition and the enforcement of the foreign judgments are also applicable for the recognition and the enforcement of the foreign awards. This means that all foreign awards exactly as foreign judgments can be enforced in the Republic of Albania irrespectively of the country where they are issued, after being recognized as applicable by a decision of the Albanian Court. As it applies to the foreign judgments, foreign awards too can be recognized as applicable by the Albanian Courts, if they meet the criteria of the Albanian legislation. Once recognized as applicable, foreign awards can then be declared enforceable, this way becoming equivalent to the judgments of the Albanian courts.

On which legal bases a foreign award can be recognized and enforced in Albania?

The local legislative provisions that determine the procedure applicable to the enforcement of an award are Articles 399 and 439 of the Code of Civil Procedure. Domestic arbitration is regulated by articles 400-438 of the Code of Civil Procedure. This means that different provisions apply in respect of domestic and international arbitration. Albania is part of the New York Convention of June 10, 1958 “On the recognition and the enforcement of the foreign arbitral awards”, meaning that the enforcement of the international awards is made primarily under the above mentioned convention. Albania is also a member of the International Centre for Settlement of Investment Disputes, having signed the Washington Convention of March 18, 1965 “On the Settlement of Investment Disputes between States and Nationals of Other States” and part of Geneva Convention of April 21, 1961 “The European Convention on International Commercial Arbitration”, and has ratified on 2006 the U.N. Convention “United Nations Convention on the Carriage of Goods by Sea” commonly known as “Hamburg Rules”. All the above treaties prevail in the enforcement of the foreign awards toward domestic provisions.

What is the particular procedure for recognizing and enforcing foreign awards under the Albanian legislation?

As stated above, according to the Article 399 Code of Civil Procedure, the same procedure that applies for the recognition and the enforcement of a foreign judgment applies as well for the recognition and the enforcement of a foreign award in Albania.

Which documents are required to be presented to the Court in order to recognize a foreign award?

A petition must be submitted to the Appeal Court requesting the recognition of the foreign award. Attached to the petition the applicant must present a copy of the award and its translation into Albanian language authenticated by an Albanian Notary public, a certificate from the issuing authority that the award is of final form, translated into Albanian language authenticated by an Albanian Notary public, and a power of attorney if the applicant is represented in the proceedings by a lawyer, translated and legalized by the notary public. All the above documents must be legalized according to the Convention of Hague of October 5, 1961 “Abolishing the Requirement of Legalization for Foreign Public Documents”.

What are the reasons that a foreign arbitral award cannot be recognized and enforced under the Albanian legislation? Can a foreign award be challenged?

As stated above, according to Article 399 Code of Civil Procedure, a foreign award may not be recognized and enforced by the Albanian courts for the same reasons that a foreign judgment may not be recognized and enforced in Albania, In addition, the decision of the competent Albanian court which recognize and declare enforceable the foreign award, can be challenged through the same procedures described above for the challenging of the foreign judgments.

What are the next steps for enforcing a foreign arbitral award in Albania?

According to the Albanian legislation the same procedure used for enforcing a foreign judgment, specified above, it is used for enforcing a foreign arbitral award.

What is the approach of the Albanian Courts regarding the enforcement of the foreign arbitral awards?

The Albanian Courts are very careful with the application of the provisions of the non­enforcement of the foreign arbitral awards. To our best knowledge there are no cases of non - enforcement of the foreign arbitral awards by the Albanian courts or even challenges presented against the recognition of a foreign award.

Is arbitration a developed method for the resolution of the disputes in Albania?

Unfortunately arbitration is not a developed method in Albania. The lack of confidence in the Albanian justice system and in the alternative methods for the resolution of the problems makes the arbitration a less preferred method for the resolution of the disputes.

Are there initiatives in promoting the arbitration as an alternative method for the resolution of disputes in Albania?

They have been several attempts in promoting the arbitration and the mediation as an alternative method for the resolution of the disputes related to civil disputes. On February 24, 2011 the Albanian Parliament approved the Law Nr. 10385 “On the mediation for the resolution of the disputes”, which has incorporated the European Union mediation directive 2008/52/EC “On certain aspects of mediation in civil and commercial maters” CELEX nr. 32008/0052. Through such law and specific provisions on other legislative acts, it is hoped that in the future arbitration and mediation will become a preferred method for the resolution of private disputes.

GREEK LAW DIGEST REPUBLIC OF ALBANIA MINISTRY OF INTEGRATION Union of Chambers of Commerce and Industry of Albania
Nomiki Bibliothiki ALBANIA INVESTMENT DEVELOPMENT AGENCY Foreign Investors Association of Albania
     

 

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