Business operations with a foreign element, the departure of domestic citizens to work abroad or the arrival of foreigners in our country for living, working, or investing, as well as the establishment of marriages and families between citizens of different nationalities, raise questions about which laws will apply to these complex legal relationships and which court will potentially have jurisdiction if a dispute arises.
In recent years, we have witnessed an increasing presence of legal relationships among people with an international element, which require the application of legal norms from different legal systems.
In such circumstances, numerous questions arise, such as which laws will apply to a specific legal relationship, whether a marriage concluded abroad is valid in Serbia, and which legal norms will apply in the event of a divorce, what if property acquired in that marriage is located in different countries, which courts will have jurisdiction in cases with a foreign element, and whether a decision made by a foreign court is valid in the Republic of Serbia.
Answers to these and many other questions are found in the Law on Resolving Conflicts of Laws with the Regulations of Other Countries, as well as in many international conventions and bilateral agreements that Serbia has signed.
In the following, we will discuss what to do when it is necessary for a court decision made abroad to have legal effect in Serbia, i.e., the recognition of foreign court decisions in our country.
What Does It Mean to Recognize a Foreign Court Decision?
According to the Law on Resolving Conflicts of Laws with the Regulations of Other Countries, once a foreign court decision is recognized by the court of the Republic of Serbia, it has the same effect as a decision made by a court in Serbia and is valid here.
Therefore, without the recognition process, a decision from another country is not valid in Serbia.
When the recognition process is successfully completed, the foreign court decision has the same legal effect as if it were made by a court in Serbia.
Which Foreign Decisions Can Hold Legal Weight in Serbia?
According to the Law on Resolving Conflicts of Laws with the Regulations of Other Countries, the following decisions made abroad are eligible for recognition before a court in Serbia:
- A decision made by a foreign court;
- A settlement reached before a foreign court;
- A decision by another authority that has the force of a court decision in the country of origin if it regulates status, family, property, and other substantive legal relationships with a foreign element.
From this, it is clear that court judgments, rulings, and settlements reached before a court are eligible for recognition. The question of which decisions by other authorities can be recognized in Serbia often causes confusion. In short, these are all decisions by state authorities that have the same effect as court decisions in the country of origin and regulate substantive legal relationships with a foreign element.
For example, in some countries, marriage under certain conditions is not dissolved in court but before a registrar. Such a decision is not a court decision but is recognized in practice because it regulates family relationships and has the same effect as a court decision.
Also, the recognition of a foreign court decision can relate to legal transactions (contracts, settlements, agreements, or similar legal transactions) concluded before a notary public, which contain a clause that they have the force of an enforceable document – i.e., a special court procedure is not needed for them to become binding. If recognition is sought for decisions that were not made by a court in the country of origin, it is necessary to consult foreign law to verify the effect of that decision in the country of origin.
What Conditions Must Be Met to Recognize a Foreign Court Decision?
The Law on Resolving Conflicts of Laws with the Regulations of Other Countries prescribes the conditions for recognizing a foreign court decision.
The first condition is that the foreign court decision must have a confirmation of finality from the foreign court.
Other conditions are defined negatively, meaning that the law lists situations in which the court will not recognize the decision.
The court may refuse recognition:
- If the party against whom the decision was made did not participate in the proceedings due to procedural irregularities – the purpose of this provision is to ensure that the party can actively participate in the proceedings, and irregularities usually occur due to the failure to personally serve documents when required;
- If the court in Serbia is exclusively competent for that legal matter – except in matrimonial disputes if the defendant does not object;
- If a final decision has already been made in Serbia or a recognized decision on the same matter exists;
- If the decision is contrary to the principles of social order according to the Constitution of Serbia;
- If there is no reciprocity (which is presumed), and in case of doubt about the existence of reciprocity, the explanation is provided by the Ministry responsible for justice.
Therefore, before making a decision on recognizing a foreign document, the court must establish:
- Whether the foreign court decision is final and enforceable according to the law of the country where it was made;
- Whether the party against whom the decision was made had the opportunity to participate in the proceedings;
- Whether there is exclusive competence of the authority in whose area the recognition procedure should be conducted;
- Whether there is a final decision of a competent domestic authority or a recognized other foreign decision on the same matter;
- Whether there is reciprocity;
- Whether the decision is contrary to the principles of social order established by the Constitution.
Recognition of decisions on personal status depends on whether the person whose status is regulated by that decision is a citizen of Serbia, the country from which the decision comes, or a third country:
- If domestic law should have been applied to the personal status of a Serbian citizen, but foreign law was applied, the decision will be recognized if it does not significantly deviate from Serbian law;
- If the decision concerns the personal status of a citizen of the country from which the decision comes, the court will not check the existence of reciprocity, violation of exclusive competence, and the legal order;
- Finally, the recognition of a foreign court decision concerning the personal status of a citizen of a third country will depend on the fulfillment of the conditions for recognition in the country of which the person is a citizen.
The Process of Recognizing a Foreign Court Decision
- The recognition of a foreign court decision falls under extra-judicial proceedings.
- Since the Law on extra-judicial proceedings does not specifically regulate this issue, the general norms of that law apply.
- The procedure is initiated by a proposal submitted by the interested party.
- The higher court is competent, and in commercial disputes, the commercial court is competent.
- The procedure ends with a decision recognizing or rejecting the decision.
- Once the recognition decision becomes final, the foreign court decision has legal effect in Serbia.
If recognition of foreign decisions suitable for enforcement is sought, a proposal for recognition can be submitted along with a proposal for enforcement. In that case, the court competent for enforcement decides on recognition, but only for that specific enforcement procedure, as a preliminary issue. This possibility is provided by the Law on Enforcement and Security, which allows recognition and enforcement of a foreign court decision to be carried out in one procedure before the same court.
It is also important to note that a recognized foreign court decision in Serbia produces legal effect from the moment it was made, not from the moment of recognition. A foreign decision can be recognized by the recognition decision only identically as it was made by the foreign authority, without the possibility of modification or supplementation.
