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we shall show later on, appears to be favourable to a considerable extension of its present rules, under International Conventions.
In France, Art. 545 of the Code of Civil Procedure, refers back to Arts. 2123 and 2128 of the Code Napoléon, the gist of the whole being that Foreign Judgments can only be made executory by the decision in that sense of a French Court, saving contrary dispositions in Treaties and in the Public Law of France; but as to the extent of the competence of the French Court in such questions, there appears still to be much uncertainty. That it would be held to extend to a review of the Foreign Judgment on its merits seems to be at least doubtful.
Switzerland appears to be guided principally by the existence or non-existence of Treaty-Stipulations, in the view which it takes of Foreign Judgments. Inter-cantonally, Judgments have force throughout the Confederation.
In Sweden and Norway the Foreign Judgment is considered as non-existent. In Russia and Portugal, says Fiore, it is declared executory, after review on its merits. But, with regard to Russia, his statement of the law would seem on this head to require modification, for M. Martens, himself a Professor in the University of St. Petersburg, has pointed out* that Fælix, who was followed by Fiore, wrote before the latest changes in the Russian Law. These changes are described by Martens as having brought about a revolution in Russian Jurisprudence. It does not appear to us, after careful consideration of the language used by M. Martens, that the Russian Courts do now review a Foreign Judgment on its merits.
The Court which has cognisance of such cases is the Court of the Arrondissement, or District, in which execution is sought (Code of Civ. Proc. of 1860, Art. 1275). This Court, after having examined whether the case was really
* Journ. de Dr. Int. Privé, 1878, pp. 139, et seqq.
decided in the foreign country by a competent Tribunal, gives its “exequatur ” without previous review of the case “ab imo” (Ib. Arts. 1276-1279). This certainly seems conclusive as regards the latest Russian Jurisprudence known to us.
There are, of course, dispositions with regard to public order and the existing Laws of the Empire, similar to those which we have noticed in Belgium, and which may be considered common to all civilised countries. M. Martens argues from a judgment of the Imperial Court of Cassation, under the direction of the Senate, in 1873, that the existence of Treaty-Stipulations between Russia and the country of the Foreign Judgment is in no wise necessary to the execution of such a judgment by authorisation of the Russian Courts. And his argument on this point seems both clear and cogent.
In Spain, Treaty-Stipulations and Reciprocity seem alike to be demanded. That Greece should not yet have concluded any such Treaties is not surprising, nor yet that under existing circumstances she gives validity to Foreign Judgments whenever asked. To this broad statement, however, Fiore himself mentions (op. cit. p. 26) an exception of a somewhat curious character, considering the relative youth of modern Hellenic Jurisprudence. Execution is disallowed in Greece if the Foreign Judgment was given “ in opposition to the proved facts of the case,” which is not saying much for the Greek estimate of Foreign Courts.
It would seem that the power of review on the part of the Hellenic Tribunals is very widely interpreted, and that in point of fact the case may be gone into “de novo," on demand of the defendant, when execution is sought against him. He may bring forward fresh proofs, says Fiore, to persuade the local judges to a different view from that taken by the Foreign Court. This clearly amounts to a fresh trial, and is not at all the same thing as giving execution to a Foreign Judgment. Perhaps this inclination to carrying the doctrine of review to excess, or rather entirely altering
its aspect, may be due in part to the confusion which Greek Jurists themselves confess to reign supreme in modern Hellas. Such Codification as has been hitherto put into force is due chiefly to one of the Bavarian members of King Otho's Council of Regency, the Senator G. L. von Maurer. It consists of a Code of Civil Procedure, a Penal Code, and a Code of Criminal Instruction, all borrowed from the French Codes, except the Penal Code, which was based on a then existing Draft Code for Bavaria. A Civil Code had been projected by Maurer, who had caused the Greek Customary Law to be collected with a view to ultimate Codification. But the matter may be said to have slept from that day until 1856, when the first part of the proposed Code was published. This contained the Titles concerning the enjoyment and privation of Civil Rights, Civil Registration, and Domicil. In 1861 fresh Titles were published concerning Minority, Tutela, and Emancipation. Meanwhile the whole of the Civil Law of the Byzantine Empire remains in force. Thus it is easy to see, as Professor Calligas, of the University of Athens, remarks in the interesting paper* upon which we rely for these facts, what is the state of existing Legislation in Greece. We should not hesitate to say that such a state must be one little removed from chaos, and we can well understand that, under the circumstances, a Hellenic Tribunal might consider it much easier to go into a foreign case “ de novo” than to attempt to settle whether or no it had been decided in conformity with Greek Law. We find nothing bearing directly on the subject of Foreign Judgments in the sketch of the Draft Code given by Prof. Calligas, but it may not be out of place to remark that the Code Napoléon and the Italian Code form the principal sources of the new Hellenic Legislation.
The practice of the United States in the matter of
* Bulletin, Society of Comparative Legislation (Paris), July, 1876
Foreign Judgments, as explained in the latest account we have seen,* by Messrs. Coudert Brothers, advocates in New York, appears to be not without points of similarity to the Greek practice. And yet there is not the same reason for a fresh action there as we have suggested for Hellas. But as a Foreign Judgment can only receive effect in the United States by means of the authority of a local Court, it becomes necessary, say Messrs. Coudert, to originate a new process, based, however, on the judgment, not on the subject of the litigation. Yet the object of this new suit is only to establish the regularity of the Foreign Judgment, which is not itself reviewed by the American Court. It appears to us somewhat difficult to maintain, as nevertheless we do find maintained, that Courts which require a fresh suit to be brought on the question of the regularity of a Foreign Judgment are upholding the definitive effect of such Judgment. Perhaps, however, what is really meant is only that the United States Courts take the ordinary precaution, which we have seen required by other Judicatures, to have the regularity of the Foreign Judgment established before proceeding to give it effect. If so, the true state of the case might be put much more plainly and briefly. If that is all that the United States Courts do, it is neither more nor less than what the Congress of South American Jurists,t held at Lima last
recommend ing. They decided that Foreign Judgments should be carried out, on request made to the local Court, after examination into the regularity of the procedure and the executory character of the Judgment, provided it be not contrary to the local Constitution.
As the Lima Congress only comprised those States of the South American Continent which are historically Spanish, the Brazilian Empire was not represented there. We only
* Journ. de Dr. Int. Privê, 1879, pp. 21 et seqq.
+ Bulletin, Soc. of Comp. Leg., June, 1879.
know that the latest Brazilian Legislation on the subject of Foreign Judgments took place in 1875, and in general terms that the Government of the Empire is thereby authorised to regulate the execution of Foreign Judginents, on condition of reciprocity.*
It is not always clear on the surface of such information as we can obtain whether the request for execution may be made by the interested party, or must come through rogatory letters of the foreign Court. The Lima Congress, by exacting a “rogatory commission," seems to have adopted the latter course, which would appear likewise to be the practice of some European States, e.g., Austria. But in stating this as the Austrian practice, Fiore guards himself by saying that it is the case, at least as regards Italy, being governed by a ministerial Order of 1853, and then, of course, limited to the Kingdom of Sardinia, but renewed in 1872 with regard to the Kingdom of Italy. He then discusses the difficulties which are apt to arise under such a rule, showing that Italian Courts, not being bound to such a course by their own Code, frequently refuse to grant the desired letters. It is obvious that such a state of things, wherever found, must cause great inconvenience to the subjects of the two States, who in most cases would be, as a matter of fact, suffering for the unfortunate jealousies or suspicions which often have no better origin than the fears caused by a perhaps importunate minority. Of the doctrine and practice of the Italian Courts in the matter of Foreign Judgments a very full and instructive account has been given in the pages of our able Belgian contemporary, the “Revue de Droit International "(now edited by Professor Rivier, of Brussels), by Sig. Cesare Norsa, a distinguished Italian Advocate, and Associate of the Institute of
* Annuaire de Législation Etrangère. 1878. Page 842.
† 1877. Nos. I. and II., forming those portions of a longer series of articles, which deal with this branch of Private International Law,