Recognition and Enforcement of Foreign Judgments in the Law of Iran and England: A Comparative Study

The aim of this study was to recognize and enforce foreign judgments in the law of Iran and England: a comparative study. There are a lot of similarities and commonalities between the legal system of Iran and England in the field of recognition and enforcement of foreign judgments including public discipline and conflicting judgments. Public discipline in England law is more specific than that of Iran. Being a civil case of the judgment, impossibility of recognition, enforcement of tax and criminal judgments are among the similarities of the two systems. On the other hand, reciprocity, precision of the foreign court, and the jurisdiction governing the nature of the claim are among instances which are different in Iran and England legal systems on the recognition and enforcement of foreign judgments.

Introduction

In the present age, which is called the communication age, dialogue among civilizations and information explosion, migration, and business have taken a new meaning and social communication facilities have made easier and more feasible (HAYATI, 2011). The Private International Law also has been changed and expanded increasingly; so, countries will have less authority and in fact the world goes forward the Legal Unity System. Although the law of civil judgment enforcement has envisaged the recognition and enforcement of foreign judgments and its provisions seem suitable somewhat in terms of justice principles, it must be understood that a written law in order to enforce the foreign judgments is not enough solely but the jurisprudence and legal doctrine that are the result of law enforcement over time have a valuable role in its enforcement and can compensate some of its weaknesses and shortcomings.

What drew attention mostly is the partnership that the jurisprudence of the countries have in fulfillment and expansion of the law associated with enforcement of foreign judgments (PARHISI, 2010).

Judgment of Foreign Courts Fraud

Even if the issued decrees by a foreign court were final decisions and all the terms were gathered in them, they would be applicable just in the territorial jurisdiction of the same country because “the issued decrees by a country are issued under the territorial jurisdiction of that country and according to the principles of the General International Law the sovereignty right of any country is limited to its political territory and no government can exercise sovereign power out of its own territory” (REZAEI, 2002).

Recognition of Foreign Judgments

Two important issues in the Private International Law merit mentioning in discussing the judgments of foreign courts:

• Recognition of a foreign judgment in which “a court of a country is asked to consider valid the judgment issued by a foreign jurisdiction. Therefore, the aim of recognition of the foreign judgment isn’t the direct enforcement of any judgment issued by a foreign court but is to accept and validate it.”

Closer Investigation of the Recognition of Foreign Judgments

Judgment means that “a court of a country is asked to treat the judgments issued in a foreign court as the judgments issued in interior courts and to issue their enforcement.” It must be noted that the enforcement phase of a foreign judgment is done following its recognition, and a court in a country shall recognize a judgment before enforcement yet enforcement isn’t necessary following recognition.

The article 975 of the Civil Code of Iran states in this regard: “The court shall not enforce those foreign rules or private agreements which are against public ethics or against public peace due to hurt the feelings of society or other reasons, though enforcement of such rules is allowed essentially” (MADANI, 2014). The public peace is “the rules that the purpose of codifying them is to protect public interests, and to violate them disrupt the order which is necessary for true administrative, political, economical process or to protect the family.”

Comparative Study: Iran and England

The comparative study of the legal systems of Iran and England on principles, terms, and restraints of recognition and enforcement of foreign judgments in the territories of the two countries clears the inevitable fact that recognition and enforcement of foreign judgments have a special place and importance among different issues of Private International law.

If countries want to achieve success in International Trading, Fundraising, and even membership in the World Trading Organization (WTO), they shall adjust their judicial system to the level of international standards.

Enforcement of Criminal Judgments

There is no doubt about the incapability of enforcement of foreign criminal judgments in Iran. The rules of the Islamic Republic of Iran are silent about the enforcement of criminal judgments of foreign countries, and since the principle is on the lack of enforcement of foreign criminal judgments, the Iranian judicial authorities aren’t allowed to enforce alien criminal judgments (ALMASI, 1995, p.6).

Enforcement Process

The interior judge shall command that the foreign judgment, if enforceable, be executed. By this way, the sovereignty of the state and authority of the judiciary will be kept, because the order is issued on the basis of the foreign written judgment but is the result of the interior judge’s decision and the judge isn’t bound by the foreign judgment (ALMASI, 2004).

Comparative Study Details

In the present comparative study, it is observed that an individual applying for the recognition and enforcement of foreign judgments in Iran can, if necessary terms are met and restrictions in Article 169 of the enforcement law are absent, achieve the purpose without filing a suit. According to Common Law in England, the claimant may bring a new action on the basis of the main reason of claim of the foreign judgment or treat the foreign judgment as an independent reason, with some exceptions by positive laws (KHALEGHI, 2012).

Common and Similar Conditions

• Competency of the court issuing the judgment considering Private International Law.
• Absoluteness of the judgment.
• Civil nature of the subject of the judgment.
• Impossibility of recognition and enforcement of tax and criminal judgments.

Differences Between the Two Legal Systems

• Reciprocal behavior: Iranian courts require reciprocal action, England does not.
• Issuing the enforcement order by the foreign court: required in Iran, not in England.
• Competency of the law governing the claim: necessary in Iran, not in England.

Conclusion

There are many similarities and commonalities between the legal systems of both countries in recognition and enforcement of foreign judgments, including public discipline and conflicting judgments. Public peace in Iran includes cases such as fraud and violation of natural justice, which are separate restraints in England law.

Although some limitations on enforcement have been mitigated by bilateral or multilateral agreements, there is still a long way to establish common and universal rules. Historically, enforcement was more open before the Islamic Revolution, but has become limited due to war, economic blockades, and political tensions. Iran’s enforcement laws are specific to the ninth chapter of the law on enforcement of civil judgments and need updating.

It is suggested to amend the reciprocal theory to Obligation, Legal Duty, and/or Acquired Rights to remove legal shortcomings and meet international standards. Furthermore, more research and updated references on foreign judgment enforcement should be provided in Iran.

About the Author

I am Khalil Asayesh (Iranian lawyer from the Tehran Bar Association with license number 21129). Thank you for choosing my site for legal services. My specialty is in international companies and contracts, with experience in international arbitration and enforcement of foreign judgments in Iran and abroad (Germany, France, Turkey, UAE, Oman).

Telephone contact and WhatsApp numbers:

• 09124439719 Iran
• 00971521583759 UAE (WhatsApp)

“We are not responsible for holidays and non-working hours”

References

• ALMASI, NEJAD, A. Conflict of Laws, Tehran University Publications, 2004, pp. 212-218.
• ALMASI, NEJAD A. Recognition and Enforcement of Foreign Judgments, Journal of Tehran Faculty of Law and Political Science, 1995, Vol. 10, no.3, pp.6-11.
• HAYATI, ALI A. Enforcement of Civil Judgments in the Current Legal Order, Mizan Publications, 2011, pp. 106-109.
• KATOUZIAN, N. Civil Law Legal System Today, Dadgostar Publications, 2010, pp.102-103.
• KHALEGHI, A. Transferring Convicts, Journal of the Faculty of Law and Political Sciences of Tehran University, Vol. 10, no.3, 2012, pp.12,19.
• MADANI, J. Private International Law, Ganj Danesh, 2013, pp. 96-102.
• MADANI, J. Private International Law, Ganje-Danesh, 2014, pp. 221-222.
• MOSCHTAGHI, R. Die menschenrechtliche Situation sunnitischer Kurden in der Islamischen Republik Iran, Mizan Publications, 2010, p. 66-74.
• PARHISI, P. Frauen in der iranischen Verfassungsordnung, Majd Publications, 2010, p. 31-39.
• REZAEI, H. “The Iranian Criminal Justice under the Islamization Project,” European Journal of Crime, Criminal Law and Criminal Justice, 2002, Vol. 10, no 1, pp. 4-5.