A Chinese divorce judgment delivered on 20 December 2013 by a court from Beijing was recognised by a French court in South Western France (Bergerac) in several decisions made in 2014 and 2016.
As will be explained below, the reason why the court had to rule twice on the issue is that each of its judgments was challenged before the Court of Appeal of Bordeaux and ended up before the French supreme court for civil and commercial matters (Cour de cassation).
Eventually, after the Cour de cassation set aside the second judgment of the Bordeaux Court of Appeal and sent back the parties before the Court of Appeal of Paris, the plaintiff gave up and never petitioned the Paris court. As a result, the first instance judgment now stands.
For years, the world has been following closely instances of enforcement and recognition of foreign judgments in the People’s Republic of China (China) and Chinese judgments abroad. This is because the default regime of judgments in China is based on reciprocity. A Chinese court will only enforce a foreign judgment if the state of origin enforced a Chinese judgment before. A more liberal regime applies to the recognition in China of judgments in family matters involving at least one Chinese national.
Bilateral Treaties
However, China has entered into bilateral treaties on judicial assistance in civil and commercial matters, which provide for the recognition and enforcement of foreign judgments, with 39 states, including quite a few European states (see the list here). France was one of the first to enter into such a bilateral treaty with China in 1987. The treaty applies not only to commercial matters, but also to family matters.
The main consequence of the existence of a bilateral treaty is that it fulfills (or replaces) the requirement of reciprocity. Chinesejusticeobserver has reported that there are several cases where Chinese courts have enforced French judgments in recent years, and it does not seem that the absence of prior enforcement of a Chinese judgements in France was an issue.
Parallel Divorce Proceedings
In the particular case, two spouses initiated parallel divorce proceedings in the contracting states. The wife, who was an English national, first sued in Beijing in December 2012. The husband, who was a French national, then initiated proceedings in Bergerac, France, in July 2013. The Beijing court delivered its judgment first and granted divorce in December 2013.
In the French proceedings, the lawyer for the wife first challenged the jurisdiction of the French court on the ground of lis pendens. Under the French common law of lis pendens, French courts may decline jurisdiction if they find that the foreign judgment is likely to be recognised in France. The French court applied the 1987 Bilateral Treaty with China and ruled that the Chinese judgment, once final, would be recognised. The court thus declined jurisdiction.
As will become clearer below, it is important to note that the wife had also made a subsidiary argument based on the res judicata of the Chinese judgment.
The husband appealed. Higher courts got involved. Not for the better.
Nationality Requirement in Bilateral Treaties?
Proceedings were first brought before the Court of Appeal of Bordeaux. In a judgment of 18 November 2014, the Court allowed the appeal and ruled that the French first instance court should have retained jurisdiction on the ground that the Chinese judgment did not fall within the scope of the bilateral treaty. This decision was wrong for two reasons.
The first was that the court held that the bilateral treaty only applied to disputes between Chinese and French nationals. In this case, the wife was an English national. As we shall see, the French Supreme Court would eventually rule that there is no such requirement in the relevant treaty, which applies irrespective of the nationality of the parties.
The second mistake was that the court did not care to examine whether the Chinese judgment could be recognised under the French common law of judgments. It simply concluded that the judgment could not be recognised outside of the scope of the treaty, and that no lis pendens exception could thus be raised.
The wife appealed to the Cour de cassation, arguing that the Court of Appeal had failed to apply the bilateral treaty.
Useless Appeals
Most unfortunately, the Cour de cassation dismissed the appeal on disciplinary grounds. In a judgment of 25 May 2016, the Court held that the argument of the appeal that the bilateral treaty had been violated was a pretext, and that what the appelant was really criticising was that the lower court had failed to respond to the subsidiary res judicata argument of the wife, which could be directly addressed by a request directed to the lower court.
The judgment was difficult to interpret. Was it saying anything, even implicitly, on the conditions for applying the Bilateral treaty? Probably not, but when the case was sentback to lower courts, they understood it differently.
The case came back to the first instance court in Bergerac, which was understandably puzzled. It decided that the 2016 judgment of the Cour de cassation had two consequences: 1) French courts had jurisdiction, and 2) the Bilateral Treaty did not apply.
The Bergerac judge retained jurisdiction, but then declared the claim inadmissible. It applied the French common law of judgments and recognised the Chinese divorce judgment in France, ruling that the Chinese judgment was res judicata, and made the claim of the husband inadmissible. The Court of Appeal of Bordeaux confirmed the first instance ruling in a judgment of September 2016.
The husband appealed to the Cour de cassation and argued that the conditions for the recognition of judgments under the French common law of judgments had been wrongly applied.
Astonishingly, the Cour de cassation informed the parties that it intended to raise ex officio the issue of the applicability of the Bilateral Treaty and, after hearing them on that point, allowed the appeal on the ground that the lower courts had failed to apply the 1987 Bilateral Treaty. Two year after failing itself to respond to an argument related to the proper application of the Bilateral Treaty, the Cour de cassation disciplined the lower courts for misunderstanding that the argument that it had neglected was excellent.
The case was sent back to the Court of Appeal of Paris so that it would apply properly the Bilateral Treaty. But it seems that the husband was exhausted: he never initiated the proceedings before the Paris court.
This case was handled pathetically by the Cour de cassation, which has probably eventually exhausted financially the plaintiff who gave it up. What matters is that, eventually, the Cour de cassation made clear that 1) the 1987 Bilateral Treaty should be applied, and 2) the Chinese judgment was recognised.
More details on this case can be found here.
Dear Mr. Cuniberti,
first of all, thank you for presenting a very interesting matter indeed. Unfortunately, I do not speak French and hence I can not read the full version of your analysis. Nonetheless, I have a few question marks regarding this case and I would be very grateful if you could shed some light on them.
1. If the husband sought a divorce judgment from the French courts, why did he appeal the second Bergerac decision, when the Bergerac court recognised the Chinese divorce judgment and therefore the husband achieved, what he originally pursued – a divorce?
2. After the husband eventually gave up the divorce procedure, what are the final results of the case? Is the recognition of the Chinese judgment valid or not?
Ľuboslav Sisák,
Slovakia
Correction: After a second read I found the answer for my second question.
Two points need to be highlighted:
First, only the recognition of foreign divorce judgments is not based on the principle of reciprocity in China. So “the more liberal regime” does not actually concern family matters in general, but only divorce judgments as far as the principle of the dissolution of the marriage bond is concerned.
Second, it was mentioned that the “default regime is based on reciprocity” and that “a Chinese court will only enforce a foreign judgment if the state of origin enforced a Chinese judgment before”. It should be indicated here that this system was confirmed only in 2013. In fact, the practice of Chinese courts shows that, until 2013, foreign judgments were not recognized nor enforced in China in the absence of an applicable treaty despite the fact that Chinese law allowed in principle the recognition and enforcement on the basis of reciprocity. So references in Chinese literature about the possibility to recognize foreign judgments on the basis of reciprocity before 2013 were simply doctrinal opinions that were contradicted by Chinese courts’ practice.
The evolution that happened recently is that now – and only after 2013 – Chinese courts start to allow the recognition and enforcement of foreign judgments on the basis of the so-called de facto reciprocity in the absence of applicable treaty i.e. “a Chinese court will only enforce a foreign judgment if the state of origin enforced a Chinese judgment before”. But still, Chinese courts’ practice is not consistent yet, as many reported judgments rendered after 2013 continued to follow the old approach. But things are changing slowly.
There are prospects for further evolution toward the so called “presumed reciprocity”. The adoption of presumed reciprocity would normalize the use of reciprocity in China. But as for now, the recognition of foreign judgments in the absence of an applicable treaty would be admitted if, and only is, the judgment creditor proves that the courts of the rendering state had already recognized or enforced a Chinese judgments. Consequently, If the judgment creditor fails to bring such a proof (simply because the opportunity to decide on the recognition of a Chinese judgment before the courts of the rendering state did not present itself), he/she can cry his/her bad luck as his/her application would be rejected no matter how liberal is the recognition practice in the rendering state and no matter how likely would be the recognition of Chinese judgments in that state.