The Recognition and Enforcement of Foreign Judgments: The Obligation to Recognize and Enforce Foreign Judgments

The Impact of the European Convention on Human Rights on Private International Law

“…In Re J (a child), 125 the UKHL held with regard to the father's request for the return of the child to Saudi Arabia that the United Kingdom could be in breach of rights guaranteed in the ECHR 'where there is a real risk of particularly flagrant breaches.' Then again, even though this case dealt with an issue of private international law, the case also resembled very closely the sort of removal cases with which the Court's case law regarding the extra-territorial effect is concerned, 128 as the possible breach of one of the rights guaranteed in the ECHR upon the child's return to a non-Contracting Party was at issue. 126 The UKHL in Re J (a child) thus acknowledged the applicability of the ECHR to this particular case, even though the possible violation of the ECHR could occur in Saudi Arabia, a non-Contracting Party.…”

“…128 Ultimately, though, this case was not solely decided on human rights grounds. 128 Ultimately, though, this case was not solely decided on human rights grounds.…”

“…126 One could thus state that in these cases there was little left of the relative character of the public policy exception, if anything at all. 128 In the Swiss doctrine, it has similarly been argued that while the public policy exception usually has a relative character and that its application then depends on the links of the case with the forum, the exception would be where it is used to protect values that are international in their scope, such as human rights. However, in the Dutch doctrine, it has also been suggested that under certain circumstances, the public policy exception would assume an absolute character.…”

“…123 However, one could, in my opinion, wonder whether such a far-reaching interpretation of this judgment can be justified. 128 If one were to focus more on this aspect of the Court's findings in Wagner, this may lead to many more occasions where a validly acquired status abroad will be able to circumvent traditional private international law rules regarding recognition/grounds for refusal, as it is easily imaginable that a status acquired abroad will attain such a status. 125 The Court in Wagner, in its reasoning concerning Article 8 ECHR, named several factors which contributed to its finding that the decision of the Luxembourg courts to deny recognition was not proportionate.…”

“…W.M.L. 128 The Wagner judgment has in this regard also been hailed as 'an affirmation of the importance of the recognition of pre-existing family links, taking into consideration the best interest of the child, which should always predominate' by Judge Berro-Lefevre in a contribution to the Joint Council of Europe and European Commission Conference Challenges in adoption procedures in Europe: Ensuring the best interests of the child. 76240/01, para 130, ECHR 2007-VII (extracts).…”