Anahita Asgari Fard
L.L.M., L.L.B.
The increasing economic activity between Iron and Russia will inevitably lead to an increase of the number of disputes between companies of this countries. International economic disputes not only have peculiarities in their support, but also court decisions taken on such disputes are enforce on the territory of a foreign state according to special rules. In this article, prepared by the Managing Partner of Asgari & Associates Anahita Asgari Fard, who specializes in the field of commercial law, reorganization and restructuring of business structures, and also in the commercial disputes, spoke about what should be taken into account when recognizing and enforcing the decision of the Russian court in Iran.
Enforcement of decisions of Russian civil courts in Iran
Foreign decisions or judgments, that is, judgments pronounced by a judicial tribunal other than an Iranian tribunal, are recognized and enforced in Iran under the Civil Code of Iran ( 1928 ) and the Law on the Civil Judgment Enforcement Law ( 1977 ).
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In addition, a series of bilateral treaties and international judicial assistance agreements are ratified between Iran and various countries to assist the domestic courts of Iran in interacting and cooperating with the foreign courts to deal with cases in connection with the legal and judicial systems of such foreign countries.
The Russian-Iranian Agreement regarding Legal Assistants in Civil and Criminal Cases was ratified in 1999 (The Agreement ). According to the same, the Russian civil judgments or penalty orders issued by the criminal courts can be recognized and enforced in Iran.
The procedure
According to article 45 of the Agreement, the applicant should apply to enforce Russian judgments and decisions to the competent court of the First Instance. The Iranian Law will determine the competent court qualified to handle the application. In most cases, it is the court of the place of residence or domicile of the defendant. However, suppose the area of residence of the defendant is not recognized. Then, the competent court can be a court of a place where the trade contract is signed between Iranian and Russian parties or the site of the completion of the subject matter of the contract. If all the information above is unknown, a respective court in Tehran will examine the case. Since 2019, a branch of the civil court has been explicitly designated to international claims and litigation in the trade and investment sector.
The final verdict, alongside the Persian translation, should be attached to the application. According to Iranian and Russian Law, the applicant should also add proof of the application submitted at the designated time.The applicant should also provide a copy of the enforcement letter issued by the Russian court ( if any ) with the final verdict. In addition, the applicant should submit documents stating that the court notifications have been delivered to the defendant at least once.
All official documents should be translated into Farsi and legalized by the Iranian Consulate in Russia.
The competent court will examine the applicant's request in an extraordinary meeting. Upon the court's acceptance, the court will issue an executive order. The court may dismiss issuing the enforcement order. Such a decision can be appealed within ten days by the applicant in the extraordinary court.
Once notified, the court will send the order to the executive department if the defendant does not proceed to execute the judgment in 10 days.
If the court recognizes the verdict and issues an enforcement order, such an order is final and should proceed. However, if the court does not accept the foreign court decision and refuses to issue an executive order, the applicant can appeal the court's refusal in the Court of Appeal.
The execution will start before notification to the defendant. If the defendant believes such an order is not enforceable according to Iranian Law, they can proceed to invalidate the order by appealing to the Court of Appeal. The Court of Appeal’s decision on the matter is final and binding.
If the subject of the enforcement exists, the executor will transfer the same to the applicant. Otherwise, all defendants' assets will be identified, seized, and valued by a judicial expert. The executor will then arrange an auction to sell the assets and pay the amount of judgment to the applicant. The administrative court will then transfer The remaining amount obtained from the auction to the defendant.
If the defendant owes no assets to pay for the judgment, the court will issue an arrest warrant against them.
The transfer of money or other movable objects obtained from the enforcement of the judgment by Russian entities outside Iran is subject to Iranian Law and regulations.
Expenses
The expenses occurred to enforce a Russian judgment in Iran are as follows :
- 5% of the claim amount as the execution fee;
- experts fee;
- fee for assets protection services;
- attorney fee.
The court can exempt Russian nationals and entities from the enforcement expenses according to Iranian Law and if they can prove their insolvency.
Refusal to issue the executive order
The Iranian court can refuse to recognize the Russian judgment in the below circumstances:
- the court determines that the defendant has not attended any trial and court sessions due to not receiving notifications;
- if the Iranian judiciary system enforced an executive order regarding the same matter in Iran or if an Iranian court has formed a similar case in the past;
- if, according to Iranian Law, a specialized court in Iran should handle such matters. For instance, addressing the claims regarding confiscated assets by the government is the exclusive right of the Islamic Revolutionary Court of Iran.
Requirements according to the Civil Code of Iran
According to the Civil Code of Iran, Iranian courts will recognize foreign judgments drafted in a foreign country, providing that:
1) The foreign order is legally valid in the foreign country, has not lost its validity for any legal reason, and is still binding.
Moreover, the Iranian consulate in Russia or the Russian consulate in Iran should certify that such a foreign judgment is prepared according to Russian Law.
2) Their contents do not contradict Iran's laws connected to public order or moral goods. The courts have two approaches in this case.
- first, the court can refuse to recognize the foreign judgment;
- second, The court refuses to recognize the foreign approach and will issue a new judgment complying with Iran's public order and good morals.
3) The country where the trial drew up the foreign judgment gives credit to the ones drawn up in Iran by the laws and treaties. This requirement is satisfied contractually by the Agreement discussed above (note VL - “the principle of reciprocity of recognition of judicial decisions).
(The Enforcement Law)
The Law on Enforcement of Civil Judgments (1977) explains the eight requirements for foreign judgment enforcement in Iran
1) The Reciprocity requirement: Similar to the civil code of Iran, the Enforcement Law, requires the country where the judgment is issued to recognize and execute the Iranian court’s decisions by its domestic Law or international treaties or agreements signed between Iran and the respective country.
2) Another substantive condition also mentioned in the Civil Law of Iran is that foreign judgment should not be contrary to the Iranian society's public order and good morals. For instance, Iranian courts will not enforce foreign judgments on drugs and alcoholic beverages.
3) The judgment should not contradict a decision issued by Iranian courts.
4) The court judgment's subject matter is not the Iranian courts' exclusive jurisdiction.
5) The foreign court decision does not involve immovable properties and rights related to such properties in Iran.
6) A formal requirement for the foreign judgment to be enforced in Iran is that it should be final, conclusive, and binding in the country where the decision is issued. It should not be nullified or overturned by any legal means. It should be a verdict and not an order.No interim, or provisional security order will be accepted for enforcement in Iran. Furthermore, Iranian courts will not accept settlements issued by the Russian courts to be enforced in Iran.
7) A competent court should issue the foreign judgment according to the Law of the country that renders the decision.
8) The foreign judgment should not be incompatible with the International treaties signed by the Iranian government or with the provisions of special laws.
Case studies
Below is the review of few court enforcement orders regarding the foreign judgments in Iran:
Case 1:
The applicant has requested the recognition of foreign judgment ordering the defendant to pay USD 449.999.46 in addition to the interest and court expenses. The verdict is final, and an enforcement letter is issued from the foreign court. The defendant does not own assets in the country of the issuance of the judgment. The Iranian consulate has confirmed and stamped the validity of the foreign decision.
The court has stated that the applicant should request both recognition and enforcement of the final verdict from the competent court in Iran.
The court has recognized the foreign verdict according to Articles 169 -172 of the Enforcement Law and issued a final and binding executive order.
Case 2:
The applicant is a foreign bank that has obtained an enforcement order to pay the amount of Dirham 200,000 in addition to the court’s expenses and attorney’s fees.
The defendant claims that the foreign court’s verdict is a default judgment issued in the defendant’s absence and, therefore, can not be enforced in Iran. However, the foreign country published the verdict in the Person judgment form, which means a verdict issued on a person's attendance.
The court has stated that the foreign judgment's formal proceedings are not a matter the Iranian court should handle. The foreign court should investigate whether the verdict is issued in person or by default, and the defendant should appeal to the same. Consequently, the Iranian court recognized the judgment as final and binding and issued an executive order.
Case 3:
The competent court in Iran has recognized the Judgment debt determined by the foreign court. However, regarding the interest rate of four percent added to the amount payable by the foreign court, the Iranian court refused to issue an enforcement letter based on the matter being against the Iranian public order and the good morals of Iranian society.
The applicant appealed the court’s decision to the Court of Appeal, which validated the court of first instance decision.
Finally, the Iranian court issued an executory order for the judgment debt, not including the interest rate.
