حقوق الإنسان ومراقبة القانون المطبق من طرف القاضي الأجنبي في دعاوى تنفيذ الأحكام الأجنبية دراسة مقارنة: القانون الأوروبي والقانون التونسي والقانون الكويتي

The fundamental right of access to justice is neither effective nor efficient, unless the litigant can execute the court decision outside his State of origin. However, even if respect for human rights could require the State to ensure the immediate recognition of foreign judgments, it is important, nevertheless, that the state reserve the right to verify satisfaction by the foreign judgment of a minimum of conditions for recognition and execution. In this context, the control of the law applied by the foreign judge, as a condition for the international efficiency of foreign judgments, takes all its importance with respect to fundamental rights. Recent developments in the case law of the European Court of Human Rights (ECHR) establish fundamental rights as a basis for immediate recognition of foreign judgments. Respect for human rights imposes, in the eyes of the Court, a right to the recognition of foreign decisions. Therefore, the control of the law applied by the foreign judge seems in total contradiction with this logic of recognition of the foreign judgments. The same question arises more deeply in Kuwaiti law and Tunisian law, because of the specificities of national and conventional law of the two States about this matter.