Will the Republic of Belarus judicial system treat U.S. businesses per American notions of justice? Recent Belarus courts’ decisions in a precedent-setting case bode well for U.S. technology exporters, R&D joint ventures, reciprocal investments and beneficial business with Belarus enterprises.
The case saga began in 2008 when the Illinois state court awarded a small company M a judgment $733,294.50 against three defendants who became jointly and severally liable for that judgment payment.[i] The key defendant, a Belarus citizen and U.S. permanent resident, refused to pay the judgment and left the United States for Belarus where he had a successful business and substantial assets. Despite geographical remoteness of countries, foreign language barriers, law and cultural differences, and risks of moving through the legally unchartered territory, M authorized its attorneys to seek justice and collect on the judgment through the Belarus judicial system.
The United States and Belarus do not share any international treaties on reciprocal recognition and enforcement of judgments but do participate in the New York Arbitration Convention treaty (recognition and enforcement of international arbitral awards). However, an international arbitration term must be provided for in a commercial contract between the disputing parties and the treaty is not applicable to courts’ judgments. Therefore, the U.S. judgment could be recognized only on comity principles (courtesy/ respect for the laws, judicial decisions, and tribunals of another nation).
The Belarus civil law system is based on the French Civil Code unlike the U.S. common law and statutory law based on the stare decisis doctrine (a court’s decision is binding on or persuasive for courts in subsequent similar-issue cases). The systems’ correlation necessitates a court’s review of foreign litigation-related rules, laws and records. Due to the fact that both countries joined the Hague Convention Abolishing the Requirements of Legalization for Foreign Public Documents authorizing the use of an apostille signed by a state agency/ authority (such as Secretary of State), the submission process of American official documents (and their translation) to Belarus courts is simplified.
In the absence of treaties and preceding American courts’ recognition of Belarus judgments, the Belarus Commercial Court (only such business/ economic courts can rule on recognition of foreign judgments) had a daunting task of comparing the due process, laws and procedures in two countries. The Court requested M’s attorneys to provide the apostilles of certified copies of the judgment order and American statutes confirming the judgment became effective, final, enforceable and appealable on the date of the order; and proof of (1) proper notices to and service of judgment order on Defendant/ Debtor; (2) active Debtor’s participation and attorneys’ representation in legal proceedings through the date of the order; (3) Debtor filed no appeal of the judgment, and (4) the dispute arose out of a business transaction. The Court then ruled that, based on comity principles and satisfaction of Belarus laws, proper due process and Code of Civil Procedures, the American judgment order is recognized and will be enforced on the territory of Belarus.
The Debtor filed a bankruptcy petition in the U.S. bankruptcy court but the judge allowed M, the judgment-creditor, to continue a collection process in Belarus and approved Trustee’s engagement of the M’s bilingual and experienced attorneys as special counsel to work in concert with Belarus local attorneys. Meanwhile, the Belarus courts denied Debtor’s appeals of each decision including the order nullifying his sham asset alienation/ concealment transactions designed to avoid the judgment payment.
The Belarus courts’ giant judicial and goodwill overture in this extraordinary cross-border case has proved the U.S.-Belarus jurisprudences’ law-and-procedure congruity and widened the way for mutual cooperation in law and business spheres.
[i] The case is winding down in the parallel judicial processes in both countries. In Re: Aleksandr Abramovich, BK 14-24708, U.S. Bankruptcy Court, Northern District of Illinois, Eastern Division.