The party seeking the recognition and enforcement of a judgement rendered by a foreign court ("FCJ"), including in cases where the jurisdiction of such foreign court is based on the contractual choice by the parties to an agreement1, is required to apply for the recognition and enforcement of the FCJ before the Sofia City Court ("SCC"). The SCC shall not review the merits of the dispute and shall recognise the FCJ unless it establishes one or more of the following facts:
- there is no mutuality between Bulgaria and the relevant foreign jurisdiction with regard to recognition and enforcement by the courts of one of the countries of the judgements issued by the courts of the other country;
- the FCJ is contrary to Bulgarian public policy or to public morality;
- the FCJ is rendered in connection with a dispute over property rights in relation to real estate located in Bulgaria;
- pursuant to the Civil Procedure Code the resolution of a dispute could not be subject to the jurisdiction of the courts of Italy if a person enjoying the right of extraterritoriality: (a) has initiated the case itself or (b) the case refers to such person's companies which are registered in the Republic of Bulgaria or (c) because it relates to rights in rem in respect of real estate located in Bulgaria;
- the defendant is a Bulgarian national who has not taken part in the court proceedings resulting in the FCJ and there is no evidence that the Bulgarian national was served with notice to take part in the court proceedings;
- a Bulgarian court has previously ruled on a dispute between the same parties on identical legal grounds as that on which the FCJ was based, or a claim has been filed with a Bulgarian court by the same applicant prior to the entry into force of the FCJ and is pending before the Bulgarian courts between the same parties and on identical legal grounds;
- the FCJ is null and void pursuant to the laws of the jurisdiction in which it was delivered;
- subsequent facts have terminated or extinguished the obligations of the parties.
Mutuality shall exist where there is a bilateral treaty between Bulgaria and another jurisdiction, establishing mutuality (the socalled formal mutuality). The Bulgarian Ministry of Justice has compiled a list of some 50 jurisdictions in relation to which Bulgaria has acknowledged the existence of mutuality (whether formal mutuality, established by way of a treaty, or mutuality in practice, referred to as factual mutuality). However, this list is only instructive and the Bulgarian courts are not bound by it. The existence of mutuality shall be established on a casebycase basis, and the burden of proof falls on the party that requests recognition and enforcement of a FCJ. Such proof is often difficult to provide and the exact scope of the reciprocity requirement is not very well defined, thus reducing the predictability and certainty in respect of the outcome of the proceedings.
The decision of the SCC in relation to the recognition of a FCJ is subject to appeal to the Sofia Court of Appeals and to the Supreme Court of Cassation. Please be advised that a fully fledged appeals procedure may take as long as three years, and in some instances even longer. Once the FCJ is recognised it shall be subject to enforcement pursuant to the general rules of Bulgarian law. The procedure shall include the issuance of a writ of execution by the executive judge in case the respondent fails to perform voluntarily.
Bilateral treaty on recognition and enforcement of foreign judgements has been executed between the Republic of Bulgaria and Italy.
1 Under Bulgarian law the submission of a dispute to the jurisdiction of a foreign court shall be valid and enforceable, subject to the existence of the following requirements: (1) one of the parties has its seat or domicile, as the case may be, abroad, in a foreign jurisdiction, (2) the dispute is not of the exclusive jurisdiction of the Bulgarian courts, namely it does not involve (i) disputes relating to rights over real property; (ii) disputes arising out of Bulgarian labor law; (iii) disputes having as subject matter rights in alimony; and (3) the agreement for the choice of the jurisdiction of the foreign court is in written form and is valid under the laws of the country where the seat of the court is located. A potential submission of a dispute under an Agreement to the jurisdiction of a foreign court, in particular the English courts, would satisfy the validity and enforceability requirements of the Bulgarian legislation.
Nadejda Krastanova is an associate of the Company Commercial Law Dept. of Studio Legale Sutti in Milan.
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