A Summary in English


»Public Policy«, »Fraud« and »Ordre Public«

In most civil law systems, there is a general rule that foreign judgments will neither be recognized nor enforced, if they have been obtained by fraud or if their recognition or enforcement would be contrary to »public policy«. In English case law and in the United States, constellations of »fraud« are understood to be separate from the category of »public policy«.

Some countries – such as France and Germany – use the term »ordre public«, which is meant to be all-embracing, i.e. it covers the constellation that a foreign judgment has been obtained fraudulently as well as other offences against »public policy«.

Two Approaches

While these basic questions of terminology are beyond controversy – and of no practical consequences –, the exact scope of the defence of fraud (respectively ordre public) is in dispute:

Aim of the Investigation

Both approaches are understandable. Is one of them objectively »preferable«, or is it merely a question of taste, how much legal protection is offered to a party who claims to have been the victim of fraud in a foreign trial?

Prozeßbetrug als Anerkennungshindernis. Ein Beitrag zur Konkretisierung des ordre public-Vorbehaltes

This is the topic of the thesis »Prozeßbetrug als Anerkennungshindernis. Ein Beitrag zur Konkretisierung des ordre public-Vorbehaltes« (Fraud as a defence to the recognition of foreign judgments. Putting the ordre public-clause in more concrete terms).

The aim of the investigation is to find compelling arguments where – so far – »sentiments« have seemed to prevail.

Contents of this Site

On this site you are presented a summary of what is explored and discussed in the thesis. Besides you find documents cited in the thesis and a collection of some helpful links.

If you have any questions or suggestions, please feel free to write into the visitors' book, or you can send an e-mail.

Global Horizon

Even though the thesis refers to recognition and enforcement of foreign judgments according to German respectively European law, its reach is not restricted to these systems of law.

On the one hand, the recognition and enforcement of foreign judgments is of worldwide interest. Solutions, statements and arguments can be found in many jurisdictions. Therefore, the investigation does not only consider judicial decisions and legal literature from Germany, Austria, Switzerland, France and Britain, but also from the USA, Canada and Australia.

On the other hand, some of the results found with regard to the German and European system of recognition and enforcement will be transferable to many other legal systems, as they are deduced from widely accepted principles such as the prohibition of »révision au fond« (this principle is known in Britain and the USA as the »conclusiveness of foreign judgments«, see below).

Terminology: »First« and »Second« Court

If, for example, a French court has made a judgment, and an English court has to decide whether this judgment will be recognized and enforced in England, the French court is the »first court«, and the English court is the »second court«.



There is a consensus that the recognition of a foreign judgment may be denied, if the foreign judgment was obtained by fraud. On the other hand, there is an astonishing variety of opinions on the question under what circumstances the defence of fraud is relevant.

Many authors suggest that there may be constellations where a fraud has happened in the state of rendition, but nevertheless the defence of fraud is not allowed in the state of recognition. If the defence of fraud is restricted in such a way, this can be described by the term »preclusion«.

Details about the concept of »preclusion« (and the seven categories described below) can be found in § 13 of the thesis.

Seven Categories of Opinions on Preclusion

In judicial decisions and the legal literature, there are various statements regarding the matter of preclusion. These statements can be classified in the following way:

Interests and Basic Principles in the Law of Recognition

Looking at this remarkable variety of views, the question is inevitable: Why are there so many different opinions? And: Is it possible to say that some models are better than others, from an objective point of view?

The variety of views can probably be explained by the fact that the recognition of foreign judgments concerns many aspects and that the different participants of the discussion attach different degrees of importance to these aspects.

Legal Protection

The »opponents of preclusion« offer a maximum of legal protection to a party who has become the victim of fraud in a foreign country.

By way of contrast, stricter models of preclusion – e.g. of type 4 or type 6 – have the unfavourable effect that in some constellations a party may have no chance to prove that the foreign judgment was obtained by fraud, neither before the first nor before the second court.

Besides, it is possible that the law system of the first court is »inferior« to the law system of the second court – and with regard to that idea it might be argued that the second court should generally offer legal protection itself instead of referring the parties to the first court.

With regard to legal protection, the stricter models of preclusion may lead to disadvantages, while the »opponents of preclusion« seem to stand for the best solution.

»Finality of Judgments« and »Conclusiveness of Foreign Judgments«

However, it is important to realize that the allegation of fraud is not equivalent to the proof of fraud. If any allegation of fraud led to »relitigation«, courts and parties would suffer from overwork, and there would be no finality of judgments. Therefore, in the national context, there seems to be world-wide consent that attacks on judgments on account of alleged fraud must be heavily restricted.

With regard to the law of the United States of America, the Restatement of Judgments 2d states that

"the rules concerning relief from a judgment are properly cast in narrow terms."
In §§ 5 and 6 of the thesis, the reader finds a thorough analysis and discussion of the requirements which have to be met in Germany in order to attack a judgment on account of fraud. In § 7, the corresponding law in the USA, in England, in Australia and in France is examined.

Similarly to the principle of »finality of judgments« within the national context, in the international context most law systems know a rule called »conclusiveness of foreign judgments«. According to Cheshire and North, for example,

»it is well established that in an action on a foreign judgment the English court is not entitled to investigate the propriety of the proceedings in the foreign court.«
In German law, the same principle is described by the term »Verbot der révision au fond«.

The principle of »conclusiveness of foreign judgments« guarantees certainty of law (instead of never-ending litigation), it protects courts and parties from overwork, and it prevents the unfavourable constellation that courts in different countries decide differently on one and the same matter (which might lead to »claw backs« and might even have adverse influence on the political climate between the countries involved).

Obviously, the »conclusiveness« of foreign judgments is preserved the better the stricter the models of preclusion are.

Litigating Abroad

Another important aspect is the necessity of litigating abroad: If the second court follows a »strict« model of preclusion, a party who has become victim of fraud in a foreign country may have to go back to the foreign court in order to seek remedy; by contrast, a »lenient« model of preclusion would allow that party to stay at home and to seek remedy before a court which is nearer, which uses a language that the party can understand more easily and which follows a system of law that is known to the party. A German party, for example, who has lost a trial in the USA against an American party, will appreciate it highly if the question of (alleged) fraud can be dealt with before a German court who decides on the recognition of the US-American judgment.

On the other hand, any advantage granted to a party who has allegedly become victim of fraud is, at the same time, a potential disadvantage to the opposing party who has allegedly committed fraud. In the constellation just mentioned, it is convenient for the German party if the second trial takes place »at home« – and it is correspondingly inconvenient for the US-American party that, from their perspective, the second trial takes place abroad.

Deducing a Solution

Obviously it is a challenge to find a solution which takes these aspects (and some more which are not part of this summary) into consideration and attaches the appropriate importance to each of them.

The approach followed in the thesis is to weigh up the arguments in two steps.

First Step: Hypothesis of »Identically Working Courts« in the First State

In the first step we assume that the courts of the first state work exactly in the same way as the courts of the second state.

On the basis of this – very theoretical – assumption, it shows that the weighing up of interests leads to a simple result: The best solution is to let only the courts in the first state decide on the question whether there was fraud or not. The recognition and enforcement of judgments should therefore not depend on a »defence of fraud«.

In this first step of the investigation, it becomes apparent that there are many similarities between the concept of »finality of judgments« in the national context and the concept of »conclusiveness of foreign judgments« in the international context. The interests speaking for »conclusiveness of foreign judgments« are even stronger than the corresponding interests speaking for »finality of judgments«.

Details about the »first step« of the investigation are explained in §§ 19–23 of the thesis.

Second Step: Back to Reality

In the second step, we take into consideration that obviously courts in different countries do not work exactly in the same way. In the first and the second state there may be different systems of law, different ways of procedure, different education and qualification of the judges etc.

But to what extent can such differences justify that courts of the second state check whether judgments of the first state were obtained by fraud or not?

In order to answer this crucial question, we have to look more closely at the reasons why courts of the first and the second state do possibly not work in exactly the same way:


Against the recognition or enforcement of foreign judgments, the defence of fraud should only be available within very narrow bounds.

It is necessary to give up the one-sided approach of offering »maximum legal protection« to a party who has allegedly become victim of fraud in a foreign state. Instead, it must be realized that there are many similarities between the concept of »finality of judgments« in the national context and the concept of »conclusiveness of foreign judgments« in the international context. In both cases it is advisable to allow exceptions only where necessary.

As far as the first state offers sufficient remedies against fraud, the second state should not permit a defence of fraud, but refer a party who has allegedly become victim of fraud to the legal protection offered by the courts of the first state.


© 2008–2011 • Ekkehard Regen