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Recognition and enforcement of foreign judgements in Costa Rica


Rechtsanwalt Dr. Dirk Roger Rissel, LL.M.
 

 


Preliminary remark
Costa Rica's legislation, in compliance with modern theories of International Procedural Law,
establishes thatjudgements, orders with the nature of ajudgement, awards, writs of
attachment, summons, evidence and other resolutions entered by foreign courts are
enforceable in Costa Rica. The relevant provisions are rather ample, and accordingly, Costa
Rican courts are able to recognize and enforce a wide range of Court documents or
resolutions.

Status and legislation related to the recognition and enforcement of foreign judgements in
Costa Rica

Under the Costa Rican Constitution (Article 7), duly ratified treaties become law and prevail
over existing legislation. An example for this is the Code of International Private Law, known
as "Bustamante Code", executed by the signatories on 13 February,1928, and ratified by
"
Costa Rica on December 13,1928. In its Twelfth Title the "Bustamante Code deals with the
matter of recognition and enforcement of foreign judgements. Article 432 and the following
articles state that civil resolutions, judicial decisions on disputed issues, administrative
resolutions, actions in the area of non-contentious litigation and civil resolutions against
defendants in criminal proceedings can be enforced.
The Code that regulates the recognition and enforcement of foreignjudgements in Costa Rica
is the Costa Rican Code of Civil Procedure. In its Article 707 it prescribes that ,judgements,
orders with the nature of ajudgement, awards, writs of attachment, summons, evidence and
other resolutions entered by foreign Courts" can be enforced in Costa Rica.
Notwithstanding, Costa Rica has ratified the "Bustamante Code" with the reserve that it is not
binding on Costa Rica in those situations in which its provisions contradict Costa Rican
legislation on the matter. Therefore, if Costa Rican legislation and the Code have conflicting
regulations on an issue, Costa Rican law prevails. If Costa Rican law is silent or in
accordance, the Bustamante Code applies.

International treaties relevant to the recognition and enforcement of foreign judgements in
Costa Rica

Costa Rica has executed and ratified the following international instruments on the
recognition and enforcement of foreign judgements.
· Code of International Private Law (Bustamante Code) (1928)
· United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards and
Judgements (1958)
· Inter-American Convention on International Commercial Arbitral Awards (1975)
· Inter-American Convention on Extraterritorial Effectiveness of Arbitral Awards and Judgements (1979)
· Inter-American Convetion on Competence in the International Sphere for Extraterritorial Effectiveness of
Foreign Judgements (1984)

Requirements for recognition and enforcement of foreign judgements
The "Bustamante Code" embodies the relevant principles in connection with the recogniton
and enforcement of foreign judgements in its article 423. Article 423 provides that:
"Every civil judgement or Court resolution on administrative issues entered in one of the
contracting States shall be effective and can be enforced in the others if the following
conditions are met:
1. The Judge or Court which entered the resolution is competent to hear the matter and
judge it in accordance with the rules of this Code.
2. The parties were summoned to appear, personally or by means of a legal representative, at a trial.
3. The judgement does not violate the Public Order or the Public Law of the country where it must be
enforced.
4. The judgment is enforceable in the State where it was rendered.
S. The judgement must be officially translated by an ofjrcial interpreter or oJJicer in the State
where it must be enforced, if written in another Ianguage.
6. The corresponding document meets all the requirements to be considered genuine in the
State of origin and complies with the Iaws of the State where the judgement must be enforced.
The Costa Rican Code of Civil Procedure contains the material and procedural provsions
concerning the recognition and enforcement of foreign judgements in articles 705 and
following. Article 705 contains the requirements to grant recogniton of a foreignjudgement.
1. The full text of the resolution to be enforced must be provided.
2. The corresponding documents must be authenticated by the Costa Rican Consul (article 705 item 1 ).
3. The defendant must have been summoned to the proceedings, represented or declared to
be in default, and thejudgement, the writ with the nature ofjudgement or the award must
have been legally served to the defendant, all pursuant to the laws of the country of origin
(article 705 item 2).
4. The claim asserted must not be of the exclusive competence of the Costa Rican Courts
(article 705 item 3).
5. There shall not exist a res judicata or litis pendentia or other similar proceedings in Costa
Rica pursuant to local laws (article 705 item 4).
6. The resolution must be enforceable under the laws of the country of origin (article 705 item 5).
7. The resolution must not violate Costa Rican laws (article 705 item 6).
Partial recognition of a foreign judgement is possible in Costa Rica. An example for that is the
enforcement of the civil consequences of a criminal trial. A foreign criminal judgement must,
however, be homologated by means of an exequatur in order for the civil portion of the
resolution to be enforced. Partial recognition is also important in situations where there is a
partial clash with Public Order because, in case of an exception of Public Order, the
judgement can be enforced on the portion that is not conflictive.

Necessary sleps to secure recognition
The mechanism to recognize a foreign resolution in Costa Rica is the exequatur.
The exequatur is a Court resolution by means of which the competent court of a specific state
authorizes the enforcement in its terntory of a foreign judgement or arbitral award. Through
an exequatur a foreign judgement or arbitral award is homologated to writ of execution.
The purpose of the process of recognition of a foreign judgement through an exequatur is
twofold. First, to etablish whether or not a res judicata exists, and second, to establish the
compulsory nature of of a foreign resolution. Thus, the process of exequatur is governed by
the principle of non bis in idem, which impedes not only the initiation of new proceedings
with identical parties, subject matter and cause, but also the introduction of the subject matter
of the exequatur as an identical question in other proceedings. The requirement of recogntion
in Costa Rica is merely a measure to ensure ceratin procedural guarantees and, in general, that
the enforcemnent of the foreign judgement does not violate Public Order. It does not mean a
substancial review of thé foreign judgment.
The above-mentioned item 2 of article 705 is to guarantee that the principle of Due Process
has not be violated and that the defendant was given the opportunity to defend himself.
Item 3 of said article includes a sub-section on the matter of international competence and its
relationship with foreign resolutions to be enforced in Costa Rica. Matters related to real
property located in Costa Rica are under the "exclusive competence" of Costa Rican courts.
Costa Rican courts will therefore not accept any ruling by a foreign court with respect to these
matters.
Item 6 of said article refers to the requirement that, in order to be recognized or enîorced, the
resolution be legal in accordance with the legal system of Costa Rica where the foreign
judgement will be enforced. Costa Rica will not recognize an action or right which although
fully legaland valid in the country where it was rendered, is legally null and void in Costa
Rica.
In case ofjudgements, writs with the nature of ajudgement and awards, the party against
whom the resolution is to be enforced shall be granted a term of ten days to be heard on the
matter (article 707). Upon expiration of this term, the Supreme Court will resolve the matter.
Once an exequatur is issued, the judgement is treated as any judgement issued by a Costa
Rican court or arbitrator.

Competent court for granting recognition of a foreign judgement
The only court in Costa Rica withjurisdiction to hear cases related to the recognition and
enforcement of foreignjudgements is the First Chamber of the Supreme Court of Justice
(article 707) which, after admitting the resolution in question as valid, shall transfer the writ
of execution to the corresponding court for its enforcment. 

Remedies and enforcement
When a creditor has an "executive title", in which there is an obligation to pay a specific
liquid amount on demand, the creditor has the right to initiate an "executive procedure".
Executive procedures are regulated by Book III of the Code of Civil Pmcedure.
In the "simple executive procedure", where the creditor has no secured interest, the creditor
files an action against all "seizable" property of the debtor.
Costa Rican law establishes two types of "special executive procedures" for the enforcement
of a mortgage or pledge. Generally, in both types the debtor has waived the procedural
formalities of the executive procedure. Such a waiver permits the creditor to skip the first,
evideutiary stage of the procedure and directly initiate the enforcement of the security interest
with a oourt auction of the underlying property. In special procedures, there is no need to
previously seize the goods given as security in order to auction them, but such a seizure my be
ordered at any time during the procedure if it is requested by the interested party. In the case
of mongages and mortgage bonds, the waiver must be made in the document in which they
were created (in the Notary Public's Protocol Book). For pledges, such a waiver is
automatically assumed to havc been granted.

 

 


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