Enforcement as a Fundamental Right

Nederlands Internationaal Privaatrecht, 2014, pp. 540-544

University of Luxembourg Law Working Paper No. 2014-07

5 Pages Posted: 23 Oct 2014 Last revised: 8 Nov 2018

Date Written: October 22, 2014

Abstract

There is, under the case law of the European Court of Human Rights, a right to the enforcement of judgments obtained abroad. The nature of that right can be substantive and founded on the right to recognition of the underlying situation. It can also be procedural and derive from the fair trial guarantee of Article 6 of the Convention which includes a right to the effectiveness of judgments rendered by ‘any court,’ a concept considered – without, in the author’s opinion, a cogent justification in the present jurisprudence of the Court – as including foreign courts. Once there is a right to enforcement, there can be no interferences by national law with that right (and the national authorities can even have a ‘positive obligation’ to see to its effectiveness), unless the interference or the refusal to take positive measures are justified, in line with the principle of proportionality.

Keywords: Private international law, human rights, enforcement of foreign judgments, European Convention on Human Rights, European Court of Human Rights

Suggested Citation

Kinsch, Patrick, Enforcement as a Fundamental Right (October 22, 2014). Nederlands Internationaal Privaatrecht, 2014, pp. 540-544, University of Luxembourg Law Working Paper No. 2014-07, Available at SSRN: https://ssrn.com/abstract=2513307

Patrick Kinsch (Contact Author)

University of Luxembourg ( email )

L-1511 Luxembourg
Luxembourg

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