Séance du vendredi 9 novembre 2007 (après-midi) Meeting of Friday 9 November 2007 (afternoon)
La séance est ouverte à 14 h 45 sous la présidence de Mme Kurucz (Hongrie), Mmes Degeling (Bureau Perma-nent) et Borrás (Espagne) étant co-Rapporteurs.
Article 20(1) à / to (5) (suite / cont.)
1. The Chair welcomed the delegations and indicated that discussions would continue in relation to the first five paragraphs of Article 20.
2. Ms Cameron (Australia) thanked the Chair and re-ferred the delegations to Preliminary Document No 36 which contained a proposal that had been made by the Aus-tralian delegation in relation to paragraph 4 of Article 20 and supporting reasons. It was suggested that the grounds on which the competent authority in the requested State may review ex officio an application for recognition and enforcement should exclude Article 17, but include para-graphs (a), (c) and (d) of Article 19. Ms Cameron explained that in Australia, the competent authority for recognition and enforcement would likely be aware that there was ei-ther an inconsistent decision in existence, or, proceedings involving the same parties and for the same purpose as those pending before an authority in the State addressed, i.e., that the circumstances in paragraphs (c) and (d) of Article 19 had been met. She noted that the competent au-thority would likely be aware of such circumstances with-out the need for submissions from either party.
Ms Cameron noted that if the competent authority was not able to refuse to make a declaration or registration, then the authority could be forced to register a decision that would be inconsistent with a prior decision that was also regis-tered for enforcement. She explained that it would then be requisite upon the debtor to institute proceedings to bring a challenge in respect of any declaration and registration.
Ms Cameron further stated that in relation to the proposal that had been made by the delegation of Switzerland con-cerning Article 20, paragraph 2, sub-paragraph (a), Austral-ia would consider accepting an addition to that Article to allow for a process of reaching amicable solutions between the parties, but that it had to be made in writing. Ms Cam-eron also said that in relation to any proposal that would include a stay on the enforcement of any decision during an appeal period, the delegation of Australia was open to that possibility but considered that the imposition of a stay should be optional.
3. Ms Fisher (International Association of Women Judges) thanked the Chair and informed her that the Inter-national Association of Women Judges wished to comment on paragraph 4 of Article 20. Ms Fisher expressed a
con-cern that if any ex officio review were to be done by a judi-cial authority, there would be consequences that a judge would then have to be informed about to decide whether the conditions of Articles 17 and 19 had been met, possibly prolonging proceedings.
Ms Fisher did not consider that Articles 17 and 19 were necessary for the application of paragraph 4 of Article 20 but that if they would be the standard of an ex officio re-view, then extra words would need to be added into the Article stating for the benefit of a judicial authority that any application was to be determined on the face of the documents.
4. Mr Segal (Israel) thanked the Chair and stated that Article 20 was somewhat of a landmark in this Convention as it was the basis of co-operation between the State ad-dressed and the requesting State. He further said that it was the debtor who should raise any objections to recognition and enforcement because otherwise, the court would have to act on behalf of the requesting State and a judge may have to consider Articles 17 and 19 without even being asked by a debtor to do so.
Mr Segal believed that some flexibility was needed with regard to the internal law of each State. He said that by adding further procedures into the recognition and en-forcement process, the Convention would not retain its essence and would be impacting upon what was the duty of the State addressed. He stated that some procedural matters could be addressed by the internal law of the State ad-dressed.
5. Ms Bean (United States of America) referred to the possibility of granting a stay of the recognition and en-forcement of a decision until an appeal period had ended and even possibly until any appeal had been finalised. She further stated that a time frame should be incorporated into the Convention in relation to the period of existence of any stay. She made the suggestion of 120 days. Ms Bean indi-cated however that the delegation of the United States of America would want a prohibition on any stays for a fur-ther appeal.
6. Ms Ménard (Canada) thanked the Chair and noted that the delegation of Canada had not previously discussed the possibility of making a stay available within Article 20.
She stated that the delegation of Canada would prefer that the Convention not contain any provisions concerning stays but that their delegation could accept the availability of a stay, so long as it were limited in time and utilised in cir-cumstances where the debtor may otherwise be disadvan-taged.
7. Mme Mansilla y Mejía (Mexique) estime qu’il serait beaucoup plus judicieux de prévoir une procédure relative à la reconnaissance et à l’exécution dans le texte de la Con-vention. Cependant, elle note que beaucoup d’objections ont été exprimées. En outre, elle indique qu’il existe au Mexique une Convention en matière de reconnaissance et d’exécution des décisions qui, sur un grand nombre de points, serait en contradiction avec l’article 20 de l’actuel avant-projet de Convention. Aussi le texte de l’avant-projet de Convention, tel qu’il est rédigé actuellement, leur pose-rait-il de grandes difficultés. C’est pourquoi elle pense qu’il serait préférable de s’en remettre au droit interne.
8. The Chair thanked Ms Mansilla y Mejía and asked whether any delegations wished to make any further inter-ventions. She summarised the discussion that had occurred and stated that even though no agreement or consensus on
policy had been reached, there were many States who ap-peared interested in restricting a refusal for recognition and enforcement in paragraph 4 of Article 20 to those consider-ations outlined in paragraph (a) of Article 19. She request-ed that the delegation of Switzerland prepare written pro-posals of their verbal propro-posals that had been made and indicated her belief that delegations appeared willing and ready to work on solutions for paragraph 4 of Article 20.
Article 20(6) à (9) et article 21(1) et (2) – Document préli-minaire No 36 et Document de travail No 7 / Article 20(6) to (9) and Article 21(1) and (2) – Preliminary Document No 36 and Working Document No 7
9. The Chair announced that the plenary would move on to the second stage of the process in relation to recognition and enforcement and which involved paragraphs 6 to 9 of Article 20, the challenge and appeal stage. She noted that some States had observed an error in paragraph 6 because within the text, the reference to paragraph 6 should have been a reference to paragraph 5. She invited the First Secre-tary, Mr Philippe Lortie, to explain the proposal in relation to the amendment to sub-paragraph (c) of paragraph 7 of Article 20.
10. Mr Lortie (First Secretary) commenced by stating that the Permanent Bureau suggested that the word “verac-ity” be removed from sub-paragraph (c) of paragraph 7 of Article 20 because an appeal on the basis of the veracity of a document would be contrary to Articles 23 (Finding of fact) and 24 (No review of the merits). Mr Lortie further explained that its removal was also an issue because of information technology considerations. He noted that the only aspects of a document that could be tampered with were the authenticity and integrity of a document, for ex-ample, whether parts of the document had been truncated, missed or deleted. The veracity of a document was not a feature that could be tampered with or tested physically.
Mr Lortie also mentioned the addition of paragraph 2 of Article 21, relating to the summary of decisions, to para-graph 7 of Article 20. He stated that the addition of this provision to Article 20 was important so that an abstract or extract of a decision drawn up by the competent authority of the State of origin in lieu of a complete text of a decision would also be subject to the procedure under Article 20, paragraph 3, and that a complete copy of the decision would be made available within the context of that proce-dure.
11. The Chair thanked Mr Lortie and noted that his latter comments in relation to paragraph 2 of Article 21 would also be discussed by the plenary after discussion on Arti- cle 20 had been completed.
12. Mr Lortie (First Secretary) added that the comments he had made on behalf of the Permanent Bureau were avail-able within Preliminary Document No 36.
13. Ms Cameron (Australia) thanked the Chair and ex-plained the proposal suggested by the delegation of Aus-tralia for an amendment to paragraph 8 of Article 20. She noted that this proposal was contained within Preliminary Document No 36 although it had since been amended and the amended version could be read in Working Document No 7. Ms Cameron observed that in its form as it appeared in the preliminary draft Convention, paragraph 8 of Arti- cle 20 implied that an appeal could be brought against rec-ognition and enforcement only where the application was for payments fallen due in the past. Ms Cameron recog-nised that recognition and enforcement might be applied for
payments due in the future and that the revision proposed by the Australian delegation therefore took that into ac-count.
14. Ms Bean (United States of America) thanked the Chair and directed her intervention to the Drafting Commit-tee with respect to the phrase “challenge or appeal”. She noted that the delegation of the United States of America had previously suggested that the phrase “or appeal” either be deleted or replaced with the phrase “appeal at first level”
so that it would be clear that the “appeal” referred to was not an appeal from another body.
15. Mr Markus (Switzerland) responded to the proposal by the Permanent Bureau with respect to the removal of the word “veracity” from sub-paragraph (c) of paragraph 7 of Article 20. He stated that the immediate reaction of the Swiss delegation would be that they would support the deletion of the word.
In relation to paragraph 1 of Article 21, Mr Markus stated that he was concerned with the separate requirement for a document showing the amount of any arrears and the date such amount was calculated, referred to in sub-paragraph (d).
He did not consider it necessary to extend the procedure of Article 20, paragraph 7, sub-paragraph (c). He also noted that sometimes the nature of the information contained within a document such as that referred to in sub-paragraph (d) could also be confirmed by the parties themselves.
Mr Markus further noted that the categories of documents referred to in sub-paragraphs (a) and (b) and the question of enforceability was a question that was normally decided by a court. A document similar to that referred to in sub-para-graph (d) would not be something that would stem from a court however, and so he expressed some concern about the accuracy and authority of such a document. He acknowl-edged that States were able to make a declaration with regards to accepting summaries under paragraph 2 of Arti-cle 21 but he nevertheless considered that ArtiArti-cle 21, para-graph 1, sub-parapara-graph (d), remained a problem.
16. Ms Ménard (Canada) stated that in relation to Arti-cle 20, paragraph 7, sub-paragraph (c), the Canadian dele-gation agreed with the proposal made by the Permanent Bureau to delete the word “veracity”. She also supported the proposal made by the Permanent Bureau that para- graph 7 of Article 20 include a reference to paragraph 2 of Article 21. She considered that that would be an improve-ment of the text.
17. The Chair asked whether there were any reactions to Working Document No 7 or in relation to the suggestion that had been made by the delegation of the United States of America concerning the appeal process referred to in paragraph 6 of Article 20.
18. M. Cieza (Pérou) souhaiterait des clarifications quant à la version espagnole du texte de l’avant-projet de Con-vention. En effet, suite à l’intervention de la Déléguée des États-Unis d’Amérique, il s’interroge sur l’opportunité des termes choisis dans la version espagnole. Bien qu’il ne s’agisse que d’un Document de travail pour le moment, il souligne que le choix des termes est important pour l’appli-cation ultérieure du texte.
Il indique qu’il existe en droit péruvien des différences selon le terme retenu. Ainsi, en droit péruvien, l’« oposi-ción » désigne la procédure d’appel. Le mot « apelaoposi-ción » est normalement utilisé pour désigner un certain type de
recours. Il se demande quels sont les termes qu’il faudrait retenir : « apelación » ou bien « oposición ».
19. Mme Borrás (co-Rapporteur) répond au Délégué du Pérou que le même problème se pose en anglais puisque les termes « challenge » et « appeal » sont utilisés dans le but d’opérer une distinction essentielle entre les procédures administratives et les procédures judiciaires. Elle indique qu’en espagnol une distinction similaire s’impose. Aussi le terme « apelación » s’applique-t-il dans le cadre des procé-dures judiciaires, alors que pour les procéprocé-dures administra-tives, le terme le plus approprié a semblé être « oposi-ción ». Elle constate que le terme « impugnaoposi-ción » aurait aussi pu être retenu mais « oposición » semblait mieux adapté pour désigner une procédure par laquelle on s’op-pose à ce qui a été dit en première instance. Elle précise que l’« oposición » ne s’applique pas aux recours judi-ciaires.
20. Mr Hayakawa (Japan) thanked the Chair and stated that in relation to paragraph 6 of Article 20, his delegation believed that this paragraph should be deleted as those con-siderations should be left to the internal law of a State to deal with. He believed that the respective 30-day and 60-day periods outlined in paragraph 6 were too long and that if they were to be shortened then the Japanese delega-tion would consider its support of this paragraph.
21. The Chair thanked the delegation of Japan for the comments and stated that if the deadlines for the lodging of a challenge or an appeal were shortened then that may be an expeditious procedure under the definition of para-graph 11 of Article 20. She noted however that this had to be discussed further with the Drafting Committee, especial-ly in relation to note 8 of the revised preliminary draft Con-vention.
22. Mrs Hoang Oanh (Viet Nam) thanked the Chair and stated that her delegation was supportive of the comments that had been made by the delegations of Japan and the Russian Federation during the morning meeting. With re-gards to the recognition and enforcement of decisions, she noted that every State had laws for the recognition and enforcement of foreign judgments and so therefore queried the utility of several articles of the revised preliminary draft Convention. She also considered that in comparison to the internal laws of many States, the grounds for a refusal to recognise and enforce a decision within the preliminary draft Convention (Art. 19) were quite broad and sufficient.
23. Ms Bean (United States of America) thanked the Chair and the delegation of Australia for Working Docu-ment No 7. The delegation of the United States of America expressed their support for that proposal.
24. Ms Nind (New Zealand) expressed the support of the delegation of New Zealand for the proposal that had been made by the delegation of Australia in Working Document No 7.
25. The Chair asked the delegations whether there were any objections to the proposal made by the delegation of Australia in relation to paragraph 8 of Article 20 (Work.
Doc. No 7). She also asked the delegations whether there were any remarks in relation to removing the word “veraci-ty” as appeared in sub-paragraph (c) of paragraph 7 of Arti-cle 20 and as had been suggested by the Permanent Bureau.
26. Mme Mansilla y Mejía (Mexique) remercie la Prési-dente et indique que le Mexique est favorable à la proposi-tion de suppression du mot “véracité”. Elle reconnaît qu’un
document peut être authentique mais il ne dit pas forcément la vérité.
27. The Chair thanked Ms Mansilla y Mejía and request-ed the views of delegates with regard to changing the word-ing of the phrase “challenge or appeal” as contained in Article 20.
28. Mr Segal (Israel) clarified that the word “appeal”
within the legal system in Israel was usually used, but when referring to a review of an administrative order by a court, it was not referred to as an appeal. He suggested using the word “review” instead of “appeal”, which had a specific terminology within some legal systems.
29. Mr Schütz (Austria) thanked the Chair and stated in response to the intervention made by the delegation of Isra-el that replacing the word “appeal” with the word “review”
could make matters more complex for some States that regard a “review” as something completely different. He indicated his belief that the phrase “challenge or appeal”
reflected a compromise that had previously been reached.
30. Ms Nind (New Zealand) queried whether the concern voiced by the delegation of the United States of America in relation to use of the phrase “or appeal” could be addressed by changing the wording that was currently contained in the Explanatory Report to the Convention.
31. Mr Beaumont (United Kingdom) stated that the word
“review” had just as much technical meaning as the word
“appeal”. He explained that in common law a “review” did not apply to judicial proceedings but to administrative pro-ceedings. He also thought that there should be an explana-tion within the Explanatory Report to the Convenexplana-tion of the usage of the word.
32. Ms Bean (United States of America) stated that the delegation of the United States of America could accept an addition to the Explanatory Report to the Convention of an explanation of the usage of the words.
33. M. Moraes Soares (Brésil) indique que le Brésil est disposé à soutenir la proposition du Bureau Permanent en faveur de la suppression du mot « véracité » au para-graphe 7, alinéa (c). Il indique en outre que le Brésil ap-prouve la proposition de la délégation de l’Australie rela-tive à l’article 20, paragraphe 8, en ce qu’elle permet de raccourcir le texte en anglais.
34. The Chair asked whether there were any other inter-ventions. She concluded that Working Document No 7 pro-posed by the delegation of Australia had been accepted.
She also concluded that the phrase “challenge or appeal”
would remain in the text of the revised preliminary draft Convention and that an explanation of the usage of the words would be incorporated into the Explanatory Report to the Convention. She noted that there was some support for deleting the word “veracity” as proposed by the Perma-nent Bureau, but that discussions that had been held on sub-paragraph (d) of sub-paragraph 1 of Article 21 and sub-paragraph 2 of Article 21 had not reached a consensus.
35. Mr Lortie (First Secretary) thanked the Chair and stated that the Delegate of Switzerland had made a val- id point with regard to his discussion of Article 21, para-
35. Mr Lortie (First Secretary) thanked the Chair and stated that the Delegate of Switzerland had made a val- id point with regard to his discussion of Article 21, para-