A Tunisian civil or commercial judgment is recognised as of right in France once it meets the five conditions of article 15 of the Franco-Tunisian convention of 28 June 1972. Recognition alone is not enough to seize assets, however: article 18 requires a declaration of exequatur before any enforcement and before any registration on a public register. The French court does not retry the case; it verifies the five conditions on its own motion and may grant exequatur for only part of the decision.
A trading company established in Sfax obtains from the Tunis court of first instance an order against its French buyer to pay 640,000 euros for goods delivered and never paid for. The judgment has become final, the buyer never owned anything in Tunisia, but it holds a warehouse in Seine-Saint-Denis, an account at a Paris bank, and claims against its own customers. The Tunisian seller wants to know what stands between it and a seizure, how long it will take, and which documents to have prepared in Tunis before its French lawyer applies to the court.
The answer lies in a text many creditors are unaware of, and some colleagues discover midway through a case: the convention between the French Republic and the Republic of Tunisia on judicial assistance in civil and commercial matters and on the recognition and enforcement of judicial decisions, signed in Paris on 28 June 1972 and published by decree no. 74-249 of 11 March 1974. It displaces the ordinary law of exequatur and replaces it with a precise, more predictable framework, one that nonetheless shuts the door on an unprepared creditor.
1. Why the 1972 convention changes everything
Without a convention, a foreign judgment produces no enforceable effect in France until a judicial court has declared it enforceable, at the end of a judge-made review of the indirect jurisdiction of the court of origin, conformity with international public policy on the merits and in procedure, and the absence of fraud. This review is well known, but it leaves the court a margin of discretion that a creditor tolerates poorly when it needs to quantify a timeline and a risk before incurring costs.
The 1972 convention replaces this open-ended assessment with a list. Title II, entitled “On the recognition and enforcement of judicial decisions,” sets out five conditions for recognition in article 15, ten heads of jurisdiction in article 16, three excluded matters in article 17, and fixes the required documents in article 22. The French court no longer has to build its own review; it applies the text. For the creditor, this means the case is won or lost upstream, while proceedings in Tunisia are still under way, far more than before the Paris court.
It is also worth noting what the convention does not do. It does not create an automatic enforceable title, unlike the Brussels I bis Regulation between EU member states. Nor does it dispense with the involvement of a French court, unlike the Lugano Convention, which for Switzerland is satisfied with a declaration of enforceability issued by the court registry. Tunisia occupies an intermediate position: more favourable than ordinary law, less expedited than Europe.
2. The five conditions of article 15
Article 15 provides that contentious and non-contentious decisions rendered in civil or commercial matters by courts sitting in France or Tunisia are recognised as of right on the territory of the other state if five conditions are met. The first is that the decision comes from a court with jurisdiction within the meaning of article 16, which, as we will see, must be read as a closed list with a safety valve. The second is that the losing party appeared or was properly summoned: a default judgment is not excluded in principle, but the regularity of service becomes the debtor’s natural point of attack.
The third condition is twofold and deserves a careful reading. The decision must no longer be open to an ordinary remedy under Tunisian law, and it must be enforceable there. This is not the same requirement as under ordinary law or the EU Regulation, which are satisfied with enforceability in the state of origin even if an appeal remains open. Here, a Tunisian judgment still open to an appeal, even one not exercised, does not clear the first hurdle. The certificate of no appeal is therefore not a mere formality; it is the document on which everything else depends.
The fourth condition is the absence of contrariety to the public policy of the state where the decision is relied upon and to the principles of public law applicable there. The wording is broader than international public policy alone, which mainly has consequences in cases touching on personal status. The fifth condition, finally, is a lis pendens rule: no court of the state addressed must have been seised, before the claim was brought before the Tunisian court, of proceedings between the same parties, based on the same facts and having the same object. A debtor who got ahead of the game by suing in France before being sued in Tunis therefore holds a formidable argument, and uses it.
3. The Tunisian court’s jurisdiction, as seen from France
Article 16 lists the cases in which the court of origin is regarded as having had jurisdiction. For personal or movable-property actions, it covers the defendant’s domicile or habitual residence at the time the document instituting proceedings was served, including that of one of several defendants in case of an indivisible claim. It also covers a defendant who has a commercial or industrial establishment or a branch in the state of origin and is sued there over a dispute relating to that establishment’s activity. It covers a counterclaim arising from the same facts or the same legal acts as the main claim.
Next come heads specific to personal status and family matters, between nationals of the state of origin, with a special rule for divorce and annulment of marriage where the claimant held the nationality of that state and had habitually resided there for at least one year on the date proceedings were instituted. The movable succession of a national of the state of origin, or one opened in that state, also founds jurisdiction, as does any dispute concerning rights in rem over real property situated there.
Two heads are of particular interest in business litigation. In commercial matters, jurisdiction is founded where, by the express or tacit agreement of claimant and defendant, the contractual obligation at issue arose, was performed, or was to be performed on the territory of the state of origin. The wording is generous for a Tunisian creditor who delivered goods from Tunisia, but it requires an agreement between the parties on the place of performance, which must be demonstrated by the contract, purchase orders and the Incoterms used, not merely asserted. In tort matters, jurisdiction follows the place where the harmful act was committed.
Two remaining provisions save many cases. Jurisdiction is established where the defendant argued the merits without contesting the jurisdiction of the court of origin, which neutralises the belated argument of a debtor who litigated in Tunis for two years before discovering in Paris that the Tunisian court lacked jurisdiction. And the final head opens the list to any other case in which jurisdiction is founded under the rules of international judicial jurisdiction accepted by the law of the state where the decision is relied upon. In other words, where none of the first nine heads applies, the French court can still recognise the Tunisian court’s jurisdiction by applying its own rules, which brings the matter back to ordinary-law review without the disadvantage of the text’s closed list.
4. The three matters excluded by article 17
Title II does not apply to decisions relating to bankruptcy, composition with creditors, or similar proceedings, including proceedings consequent on them concerning the validity of acts as against creditors. Nor does it apply to decisions rendered in social security matters, or in matters of nuclear damage.
The exclusion of insolvency proceedings is the one encountered in practice. A Tunisian opening judgment, a decision setting back the date of cessation of payments, an action to declare acts unenforceable carried out during the hardening period, an order against a director to bear an asset shortfall: none of this falls under the convention. A creditor or insolvency practitioner wishing to act in France then falls back on the ordinary law of exequatur, with a more open-ended review and a heightened requirement on indirect jurisdiction, since the French court will examine the connection between the Tunisian proceedings and the debtor’s centre of main interests. The EU Insolvency Regulation 2015/848 does not apply either, Tunisia not being an EU member state.
A strategic consequence follows from this exclusion. Where a commercial claim risks being absorbed into insolvency proceedings opened in Tunis, the creditor has an interest in having its claim adjudicated on the merits and obtaining a judgment of condemnation before the opening, since that judgment will fall under the convention, whereas a decision admitting the claim to the list of liabilities will not.
5. Recognition as of right and exequatur: not to be confused
This is the most common mistake, and it costs months. Recognition as of right under article 15 means the Tunisian judgment has res judicata effect in France without any formality being required. It can be raised as a bar to a new claim, it can support a defence, it stands as an established legal fact. It gives it no enforceable force whatsoever.
Article 18 says so plainly: decisions mentioned in article 15, enforceable in one of the two states, cannot give rise to any enforcement by the authorities of the other state, nor be the subject of any public formality such as registration, transcription or correction on public registers, until they have been declared enforceable there. A bailiff will therefore carry out no seizure on the mere production of the Tunisian judgment, and the land registry office will refuse any registration. The only exception provided by the text concerns decisions on the status and legal capacity of persons, which may receive the necessary annotations and transcriptions on civil status registers as long as they do not appear contrary to the rules of the convention.
Article 21 specifies the effect of the exequatur decision over time. It takes effect as between all parties to the proceedings and over the entire territory of the state addressed, and it allows the decision, from the date exequatur is obtained and as regards enforcement measures, to produce the same effects as if it had been rendered on that date by the court that granted exequatur. The practical consequence is that the starting point for enforcement measures is the date of exequatur, not that of the Tunisian judgment. A creditor wishing to freeze the situation before that date must resort to protective measures, a different subject covered elsewhere.
6. Which French court, and what review
Article 19 refers to the law of the state addressed: exequatur is granted by the judicial authority with jurisdiction under the law of that state, and the procedure is governed by that same law. In France, the application therefore falls to the judicial court, seised by summons, under the ordinary conditions of exequatur. Representation by a lawyer is mandatory: article 760 of the Code of Civil Procedure requires appointing a lawyer before the judicial court, and exequatur is not among the exemptions listed in article 761. A creditor cannot file the application itself, however well prepared its case, which is why the preparatory work done in Morocco or Tunisia matters as much as the French proceedings themselves. The choice of court takes account of the defendant’s domicile or the place where enforcement is contemplated, and it is not a neutral choice: applying to the court for the district where the warehouse to be sold is located simplifies what follows.
Article 20 defines the scope of review, and it does so restrictively. The competent court confines itself to verifying whether the decision meets the conditions set out in the preceding articles for recognition. It carries out this examination on its own motion and must record the outcome in its decision. There is therefore no review on the merits, and a debtor who comes to argue in Paris that the goods were defective or that the interest calculation was wrong is arguing before the wrong court: those arguments belonged to an appeal in Tunisia.
Two further points in article 20 are useful to the creditor. The first is that the court, in granting exequatur, orders, where appropriate, the measures necessary for the foreign decision to receive the same publicity as if it had been rendered in France, which allows the question of registrations to be settled in the same judgment. The second is that exequatur may be granted partially, for one or another head of the foreign decision alone. A Tunisian judgment ordering payment of the principal, interest, and an indemnity whose nature would offend French public policy can thus be declared enforceable for the principal and interest alone. It is better to frame the application in these terms from the summons onward, rather than let the debtor argue that one objectionable head taints the whole.
7. The documents required by article 22, and the timing trap
The party relying on recognition or seeking enforcement must produce five documents: an exemplification of the decision meeting the conditions necessary for its authenticity under Tunisian law; the original service document for the decision, or any other act taking its place; a document from the court registry certifying that no opposition or appeal exists against the decision; a certified copy of the document instituting proceedings sent to the defendant where the defendant did not appear; and a translation of all these documents, certified in accordance with French rules.
The registry certificate is the document creditors underestimate, because it looks administrative when in fact it carries the substantive condition of article 15. It must establish that no ordinary remedy remains open, which requires that the time limit has run, and therefore that service was properly made on the defendant. Where the debtor is established in France, this service had to be carried out abroad, and its regularity must be proven. This is where cases are lost, not on the merits.
Article 23 adds a safeguard that benefits the non-resident litigant: time limits for appearance and appeal are not less than three months for nationals of either state who do not reside on the territory of the state where the court seised sits. A Tunisian creditor who obtained a judgment in Tunis against a defendant established in France must check that this three-month period was indeed observed, failing which the debtor will argue before the French court that service was not proper within the meaning of article 15, and the certificate of no appeal will lose its effect.
On translation, note that certification follows the rules of the state addressed, meaning French rules: a translator listed with a court of appeal. A translation made in Tunis, even by a sworn Tunisian translator, will routinely be challenged. It is cheaper to have it redone than to argue over it.
8. What the convention does not address: arbitration and notarial deeds
Title II of the convention contains no provision on arbitral awards, or on notarial deeds and court settlements. Many creditors conclude they have no recourse. It is the opposite.
An arbitral award rendered in Tunisia falls, in France, under the New York Convention of 10 June 1958 on the recognition and enforcement of foreign arbitral awards, to which both France and Tunisia are parties, and above all under the regime of articles 1514 and following of the Code of Civil Procedure. This regime is considerably more favourable to the creditor than that for judgments. The award is recognised in France if its existence is established and recognition is not manifestly contrary to international public policy, exequatur is obtained on application, without adversarial debate, and the debtor’s remedy is confined to the five exhaustive grounds of article 1520. There is no condition of no remaining appeal, no registry certificate, and no review of jurisdiction against a list of heads. For a Franco-Tunisian contract, an arbitration clause is therefore, purely from the standpoint of enforcement in France, clearly superior to a clause conferring jurisdiction on the Tunisian courts.
As for Tunisian notarial deeds, in particular notarial deeds acknowledging a debt, they benefit from no treaty regime and do not constitute an enforceable title in France. They serve only as evidence of the claim, leaving the creditor to obtain a title, in France or in Tunisia. Here again, the decision is made when the contract is drafted, not when recovery is sought.
The firm has brought together, in a practical guide on exequatur and enforcement of foreign decisions, every check to carry out on a foreign title before starting any proceedings in France, with the documents to gather depending on the applicable regime and the real timeframes observed before the French courts. Its page on enforcement of foreign judgments describes how it handles these matters, and the contact form allows a case to be outlined in a few lines.
Frequently Asked Questions
Can a Tunisian judgment under appeal be enforced in France?
No. Article 15 of the convention of 28 June 1972 requires that the decision no longer be open to an ordinary remedy under Tunisian law and that it be enforceable there. An appeal still open, even one not exercised, defeats recognition. This is a stricter requirement than under ordinary law and the Brussels I bis Regulation, which are satisfied with enforceability in the state of origin. The registry document certifying the absence of opposition and appeal, required by article 22, is therefore the central document in the case.
Can the French court retry the case?
No. Article 20 limits the review to verifying the conditions for recognition, which the court carries out on its own motion and must record in its decision. Arguments about the merits of the award, the quality of the goods, or the calculation of interest belonged to the remedies available in Tunisia. The debtor does, however, retain serious arguments based on the regularity of service, the Tunisian court’s jurisdiction under article 16, lis pendens, and public policy.
What matters does the convention leave aside?
Article 17 excludes decisions relating to bankruptcy, composition with creditors, and similar proceedings, including consequent actions on the validity of acts as against creditors, as well as decisions rendered in social security and nuclear damage matters. These decisions fall back on the ordinary law of exequatur, with a more open-ended review. The EU Insolvency Regulation does not apply, Tunisia not being an EU member state.
Can exequatur be granted for only part of the judgment?
Yes. Article 20 expressly allows exequatur to be granted partially, for one or another head of the Tunisian decision alone. This option is valuable where one head of the award is open to challenge under French public policy while the principal claim raises no difficulty. It is better to request this partial exequatur as an alternative from the summons onward, rather than let the debtor argue that one questionable head makes the whole unenforceable.
Does an arbitral award rendered in Tunis follow the same path?
No, and the path is shorter. The 1972 convention does not deal with arbitration. An award rendered in Tunisia falls, in France, under the New York Convention of 1958 and articles 1514 and following of the Code of Civil Procedure: exequatur on application, without adversarial debate, with no requirement of no remaining appeal or registry certificate, and the debtor’s remedy confined to the five grounds of article 1520. For a Franco-Tunisian contract, an arbitration clause is, from the standpoint of enforcement in France, more effective than a clause conferring jurisdiction on the Tunisian courts.
On the same subject, from North America: enforcing a Canadian or Quebec judgment in France; on the EU regime: enforcing a German judgment in France; on urgent measures: can the debtor’s assets be secured in France before exequatur; from the debtor’s side: challenging exequatur of a foreign judgment; on assets: attaching a bank account in France and seizing real property in France; on arbitration: exequatur of an arbitral award; and for the overall framework, the six points that determine whether a foreign title will be enforceable; on the Maghreb: enforcing a Moroccan judgment in France; on francophone Africa: enforcing an OHADA judgment or a CCJA ruling in France; on Algeria: enforcing an Algerian judgment in France.