Erasmus recognition and enforcement of foreign judgments

RECOGNITION AND ENFORCEMENT OF FOREIGN JUDMENTS IN SPAIN AND ROMANIA.

INGO MORALES JANKE.

Introduction:

The new times make us feel the need , in the european union and in the world , to have a better inter-state legal traffic . Specially the members of the UE have claimed a legal instrument for this cause.

The private international procedural law is an autonomous part of the PrivateInternational Law. Inside this procedural law we have two important parts : on one hand the judicial competency and in the other hand the recognition and enforcement of decisions.

When we talk about recognition , we must know that this is not an application of foreign law. The objective of this part of the Private International law is to validate a solution that other foreign authority hasgiven for this problem , with the application of the foreign law.

The exercise of judicial power is an inmediate consequence of the sovereignty of a state. Normally in the countries, only the judicial courts of every country have the power to make judgements , produce judicial decisions and execute them.
It is a power wich primarily is not attributed to foreign judgment courts or foreignauthority. That can produce an obstacle in the international and commercial relations. At the same time this would be a denial of the Private International Law and his function.

So the recognition and enforcement of judicial decisions need more than other parts of the International Private Law , the existence of international cooperation mechanisms or instruments to make the effectivenees of foreignjudicial decisions in different sovereignties easier.

If we interpret the principle of territorial sovereignty of the state in his ultimate consequences we could not execute foreign judicial decisions.
This practical objective explains the general reason of the existence of International Private Law and the recognition of foreign judgments.

In this context the states have the need tocooperate with other states to improve the international relations.
In the old Rome this has made the diffrerence between Ius Civile and Ius Gentium. In the first period (ius civile) the judgments could only be applicated in the territory in which the law had jurisdiction , after that in Ius Gentium the judgments could be applied in all the roman territory also for romans and foreigners.
In the middleage in Italy , the increasing trade between cities , the first expressions of International Cooperation were born, especially regarding the recognition and enforcement of foreign judgments.

Convention of New York (1958).

Now in the modern era the states have signed international treaties and agreements.
A very important step was the creation of the Convention of the Recognition andEnforcement of Foreign Arbitral Awards in 1958 , also known as New York Convention. This convention was established in the within by the UN.
So the reason of his establishment was the discontent with the previous protocol (1923) , and the convention of Ginebra (1927) for the recognition and endforcement of arbitral decisions. These texts were refused for being to formal in their procedures , and the lowpossibility to incorporate the private autonomy of the affected parts.

More than 140 countries have signed the New York convention also Romania at the 13 september of 1961 , and Spain at the 12 may of 1977.
The New York Convention is composed by sixteen articles, wich regulate the recognition and enforcement of arbitral awards caused by the resolution of conflicts proposed by natural personsalso by artificial persons.

Important articles are:

Art. 2:
Each contracting shall regognize an agreement in writing under wich the parties udertake to submit to arbitration all or any differences wich have arisen or wich may arise bettween them in respect of a legal relationship, whether contractual or not , concerning a subject matter capable of settlement by arbitration.
2- the term...