Dominican Republic: Enforcement Of A Foreign Judgment
Any enforcement cannot be made without an order from a national public authority in Dominican Republic. This is due the public force officer cannot be subject to an order of a foreign authority. Hence, the provision in Article 2123 of Dominican Civil Code is which conditions the validity of foreign sentences to the enforceability declaration by Dominican courts.
However, the exequatur is requested depending on the sentence nature. As we recall, the usual sentences classification: declaratory, constitutive and convictions, we notice that the declaratory sentences can be recognized but not enforceable, like constitutes sentences which can be recognized but not enforced because they are enforceable from their mere decision, as the sentences of convictions can be recognized and enforceable.
Concerning the granting of the exequatur to foreign sentences, Dominican jurisprudence has provided that the validity of a foreign sentence in Dominican territory is subject to obtain the exequatur, the judge should consider the legal qualification of the judicial decision submitted to him to be examined, to determine its declaratory, constitutive or conviction nature, since
the declaratory and constitutive sentences don’t require such exequatur, due their enforcement don’t require a real performance, which request the public force support, only the sentences of convictions, that impose the enforcement of a positive benefit to give or make, or negative to not make, are subject to ask for the exequatur, according therefore.¹
Recognition of a foreign sentence is done by the exequatur procedure, to confer on it the same effect as national sentences.
Exequatur is the decision by which the first instance court authorizes the enforcement In Dominican Republic of a sentence or foreign act; this decision is passed previously to the Assessment of procedure and substance, confirmation of final and rendering enforceable of act or sentence in the country of origin and the fulfilment with the contentious public order where every person of interest shall appear.²
A foreign sentence to be recognized and enforced shall have three requirements. Those requirements are formal, procedure and material type.
Concerning the formal requirements, it worth to remember the sentence is a document from foreign jurisdiction which authenticity, therefore, is hard to determine. That’s why is required the foreign sentence has the characteristics as any foreign document has to be admitted.
The procedure requirements are to ensure a due process existence. Then, in a hand is required an international jurisdiction judge is involved, and, in the other hand, that the defendant had has a real chance for a defense.
The material requirement, finally, concerns to the desire of guarantee the public order in the own country; consequently the foreign sentence contains is examined from this point of view.
The Bustamante code, an international instrument which serves as a reference, even United States is not a signatory, in Title Tenth set out the Enforcement of Sentences passed by foreign courts, provides in Article 423 that: “Any civil sentence or contentiously administrative passed in one of the contracting State, shall be valid and could be enforced in the other states, if having the following conditions:
Capacity to know the matter and try it, according with this code rules, the judge or court that having passed it;
The parties have been summoned in person or by attorneys in fact for the trial;
The rule is not in the contrary of the public law or public order in the country to be enforced;
Enforceable in the State in which is passed;
Translated by an officer or legal translator from the State on which it is to be enforced, if language is different; and
- That the document has the needed requirements as to be authentic in the State which is from, and those required to be legalized by the State which desires to enforce the sentence.
Rodolfo Mesa Chavez
Attorney specialized in Commercial Law and Business Transactions.
MESA & MESA | Abogados
¹Civ. Case May 8th 2002, B.J. unpublished