DRAFT OHADAC MODEL LAW RELATING TO PRIVATE INTERNATIONAL LAW

Article 72

Concept of judgment

A judgment shall be understood to be any decision adopted by an equivalent court or authority of a State regardless of the denomination/name given to the proceeding from which it is derived, such as decree, ruling, order or writ of execution.

413. A wide and flexible definition of the word judgment is incorporated in order to make reference to the different categories of decisions likely to be recognised or enforced under the present provisions, which in principle include any decision on the merits of a case, both matrimonial sentences as well as decisions of any other type. Thus, instead of the term ruling, the term judgment is used, with a less precise legal meaning capable of encompassing disparate cases. In all cases, the definition must be combined with the existence of specific restrictions to the recognition and enforcement of some of those judgments, as well as with the circumstance that the extent of certain controls may be various according to the characteristics of the judgments. That same broad orientation is due to the use of the expression “court or equivalent authority”, so that it comprises the decisions of any authority that is attributed jurisdictional functions in matters of private law.

414. The definition of judgment used for these purposes corresponds to the focus adopted in the more modern international reference instruments in this area. In this sense, a similar definition can be found in article 4 of the Convention of 2005 on Agreements of Choice of Court Agreements adopted in the framework of the Hague Conference on Private International Law, as well as in article 23 of the Draft Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters of 30 of October of 1999, draw up in the same institution. The criterion that inspires these rules is consistent with the prevailing content of the instruments on recognition and enforcement of rulings adopted in the European Union, already the Brussels Convention of 1968, whose more recent formulation is currently included in article 2.a) Regulation 1215/2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters or Brussels I Regulation (recast).

On the contrary, the approach adopted differs in part from that inspired in the Inter-American Convention on Extraterritorial Validity of Foreign Judgments and Arbitral Awards of 8 May 1979. In accordance with its article 1, the Convention permits that the States limit its application to the compensatory judgements involving property, whilst only providing that it can be applied to the judgments that end proceedings and the decisions of authorities which exercise some jurisdictional function when the States declare this when ratifying the Convention.


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