RECOGNITION AND ENFORCEMENT OF FOREIGN COURT DECISIONS IN THE CASE LAW OF THE CONSTITUTIONAL COURT OF REPUBLIC OF KOSOVO
1. Introduction. – 2. Recognition and enforcement of foreign court decisions according to private international law: literature review. – 3. Recognition and enforcement of foreign court decisions from the perspective of the Constitutional Court of Kosovo. – 3.1. Recognition and enforcement of foreign divorce decision according to Constitutional Court of Kosovo's practice (KI73/18). – 3.2. Scope of application of Article 6 of the ECHR according to Constitutional Court case (KI122/17), in the preliminary proceedings with regard to the application for recognition and enforcement of foreign arbitration decision. – 3.3. The Kosovo Constitutional Court's perspective on the recognition of contracts, certified by foreign courts (KI161/11). – 4. General analysis. – 5. Conclusions.
Abstract
Background: To respect international cooperation, human rights and legal certainty, it is possible to recognise the legal effects of foreign judicial decisions in another state, provided that the procedure for recognising a foreign judicial decision takes place and that such court decision fulfils the requirements set by local legislation. Recognition, as a concept, entails acknowledging the rights and obligations established in the originating jurisdictions and accepting juridical consequences. Enforcement, on the other hand, means fulfilling the obligation, allowing the creditor to realise his/her right and to ensure that the debtor has obligations and obeys the decisions that have already been made. International collaboration should facilitate the codification of Kosovo's legal framework on private international law, allowing for the recognition and enforcement of foreign decisions to be less complicated, more extensive, and more easily applicable. In comparison to prior solutions, the new law makes significant adjustments. Previous norms are being abandoned in favour of open links and jurisdictional criteria. Some prior solutions are preserved and, if necessary, changed and improved.
Methods: The doctrinal approach involves the systematic identification, collection, and application of legal literature within the domain, encompassing statutes, texts, articles, and scholarly research by both local and international authorities. Additionally, the method involves a meticulous analysis of judicial practices, evaluating the practical implementation of legal standards and their judicial interpretations. Through examining legislation, our approach not only identifies legal issues but also furnishes a scholarly interpretation of the laws governing the field of study and its related institutions.
Results and conclusions: Kosovo, as a relatively new state, has established a legislative framework through which it attempts to address problems and the path that must be taken in the implementation of foreign judgments. In general, the goal of having a democratic and well-developed society also means respecting the rights and decisions of foreign citizens, the rights that originate from the judicial decisions of international courts and the internationally accepted conventions. The harmonisation of the legislation and its compliance with ECHR conventions creates real opportunities for Kosovo to be ranked among the countries that respect these decisions. The legal system of Kosovo, as well as decisions made by the Constitutional Court, have produced results that can be used to influence future cases. The codification of private international law in Kosovo means that numerous circumstances will now have a legal basis for implementing foreign decisions.
Methods: The doctrinal approach involves the systematic identification, collection, and application of legal literature within the domain, encompassing statutes, texts, articles, and scholarly research by both local and international authorities. Additionally, the method involves a meticulous analysis of judicial practices, evaluating the practical implementation of legal standards and their judicial interpretations. Through examining legislation, our approach not only identifies legal issues but also furnishes a scholarly interpretation of the laws governing the field of study and its related institutions.
Results and conclusions: Kosovo, as a relatively new state, has established a legislative framework through which it attempts to address problems and the path that must be taken in the implementation of foreign judgments. In general, the goal of having a democratic and well-developed society also means respecting the rights and decisions of foreign citizens, the rights that originate from the judicial decisions of international courts and the internationally accepted conventions. The harmonisation of the legislation and its compliance with ECHR conventions creates real opportunities for Kosovo to be ranked among the countries that respect these decisions. The legal system of Kosovo, as well as decisions made by the Constitutional Court, have produced results that can be used to influence future cases. The codification of private international law in Kosovo means that numerous circumstances will now have a legal basis for implementing foreign decisions.
About Authors
Din Shahiqi
Dr.Sc. (Law), Alumni, Faculty of Law, South East European University, Tetovo, North Macedonia
dinn.sh@hotmail.com
https://orcid.org/0000-0002-6152-601X
Corresponding author, responsible for research methodology, data collection, writing, and supervising.
Zanita Fetahu
LL.M (Master) in Civil and Property Law, Alumni, Faculty of Law, University “Hasan Prishtina”, Prishtina, Republic of Kosovo zanitafetahu1@hotmail.com
https://orcid.org/0009-0007-9855-7008
Co-author, responsible for conceptualization, writing, and data collection.
Reshat Fetahu
LL.M (Master) in International Law, Alumni, Faculty of Law, University “Hasan Prishtina”, Prishtina, Republic of Kosovo fetahureshat@gmail.com
https://orcid.org/0009-0008-5206-7799
Co-author, responsible for writing and data collection.
Competing interests: No competing interests were disclosed.
Disclaimer: The authors declare that their opinion and views expressed in this manuscript are free of any impact of any organizations.
Managing editor – Mag. Yuliia Hartman. English Editor – Julie Bold.
Copyright: © 2024 Din Shahiqi, Zanita Fetahu and Reshat Fetahu. This is an open access article distributed under the terms of the Creative Commons Attribution License, (CC BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited.
Dr.Sc. (Law), Alumni, Faculty of Law, South East European University, Tetovo, North Macedonia
dinn.sh@hotmail.com
https://orcid.org/0000-0002-6152-601X
Corresponding author, responsible for research methodology, data collection, writing, and supervising.
Zanita Fetahu
LL.M (Master) in Civil and Property Law, Alumni, Faculty of Law, University “Hasan Prishtina”, Prishtina, Republic of Kosovo zanitafetahu1@hotmail.com
https://orcid.org/0009-0007-9855-7008
Co-author, responsible for conceptualization, writing, and data collection.
Reshat Fetahu
LL.M (Master) in International Law, Alumni, Faculty of Law, University “Hasan Prishtina”, Prishtina, Republic of Kosovo fetahureshat@gmail.com
https://orcid.org/0009-0008-5206-7799
Co-author, responsible for writing and data collection.
Competing interests: No competing interests were disclosed.
Disclaimer: The authors declare that their opinion and views expressed in this manuscript are free of any impact of any organizations.
Managing editor – Mag. Yuliia Hartman. English Editor – Julie Bold.
Copyright: © 2024 Din Shahiqi, Zanita Fetahu and Reshat Fetahu. This is an open access article distributed under the terms of the Creative Commons Attribution License, (CC BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited.
References
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2. Bilalli A dhe Kuçi H, E Drejta Ndërkombëtare Private (Pjesa e Përgijthshme) (Universiteti i Prishtinës Fakulteti juridik 2012).
3. Brilmayer RL and other, Conflict of Laws: Cases and Materials (Aspen Casebook, Wolters Kluwer 2019).
4. Deftou ML, Exporting the European Convention on Human Rights (Modern Studies in European Law, Bloomsbury Pub 2022). 5. Dickinson A and other, The Effect in the European Community of Judgments in Civil and Commercial Matters: Recognition, Res Judicata and Abuse of Process: Report for England and Wales (British institute of International and Comparative Law 2008, February 20) doi:10.2139/ssrn.1537154.
6. Douglas M, ‘Recognition and Enforcement of Foreign Judgments’ (CLE presentation, Perth, 2 May 2018) doi:10.13140/RG.2.2.29522.66248.
7. Mayss AJ, Principles of Conflict of Laws (3rd edn, Cavendish 1999).
8. Sikirić H, ‘Priznanje sudskih odluka prema Uredbi Vijeća (EZ) br 44/2001 od 22 prosinca 2000 O sudskoj nadležnosti i priznanju i ovrsi odluka u građanskim i trgovačkim predmetima’ (2012) 62(1-2) Zbornik Pravnog fakulteta u Zagrebu 289.
9. Stone P, EU Private International Law (Elgar European Law series, 3rd edn, Edward Elgar Pub 2014) doi:10.4337/9781782544517.
10. Totaj V dhe Sallauka L, ‘Bashkëpunimi Juridik Ndërkombëtar në Çështjet Civile’ (2016) 2 Opinio Juris 59.
11. Varadi T, Bordaš B i Knežević G, Međunarodno Privatno Pravo (5 izd, Forum 2001)
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Keywords
- Foreign judicial decisions, recognition and enforcement of foreign court decisions, European Conventions, Constitutional Court of Kosovo.
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How to cite it?
- Shahiqi D, Fetahu Z and Fetahu R, ‘Recognition and Enforcement of Foreign Court Decisions in the Case Law of Constitutional Court of Republic of Kosovo’ (2024) 7(2) Access to Justice in Eastern Europe 427-442. Last published 1 May 2024 https://doi.org/10.33327/ AJEE-18-7.2-n000207
