#10007 - Recognition And Enforcement - Conflict of Laws

RECOGNITION AND ENFORCEMENT

DIFFERENCE

1. Can be no enforcement without recognition. So if recognition denied as res judicata there can be no question of enforcement

2. Enforcement of a foreign judgment is essentially a positive process whereby the English court authorizes the judgment-creditor to take the necessary steps so that the judgment is satisfied

3. Recognition of a foreign judgment merely provides a barrier which prevents proceedings being pursued in England

RECOGNITION WITHOUT ENFORCEMENT

1. So if the judgment cannot be enforced eg. because the remedy ordered by the foreign court is not one which can be enforced in an English court. But can still get res judicata on this

RECOGNITION GENERALLY

1. Recognition of a judgment means treating the claim which was adjudicated as having been determined once and for all. It does not matter whether it was determined in favour of C or D

2. In personam - Judgments in personam are only ever recognised as effective against particular parties

3. In rem - Judgments in rem are recognised generally or universally, and not just against particular parties to the litigation.

4. Res Judicata – when a judgment is recognised, the matter is res judicata and the party bound by it will be estopped from contradicting it in subsequent proceedings in an English court

THREE CATEGORIES OF FOREIGN JUDGMENTS

1. Judgments obtained in MS (Chapter III Brussels Reg)

2. Judgments obtained in non-MS (common law)

3. Judgments covered by bilateral treaties

TERMINOLOGY

1. Judgment creditor – litigant who has obtained a judgment in a foreign court and now wishes to enforce

2. Judgment debtor – ‘victim’ of the judgment

3. ISSUE ESTOPPEL

• so this is estoppel based on just one point, rather than the whole claim, which arose and was determined in the course of the trial of a cause of action

4. CAUSE OF ACTION ESTOPPEL

• this is estoppel based on the whole claim

ISSUE AND CAUSE OF ACTION ESTOPPEL

1. For these estoppels to apply:

1. it must be the same proceedings (or the same issue in those proceedings); AND

2. The parties to the judicial decision are the same as the parties or privies to the proceedings in which the estoppel is raised

TWO STAGE PROCESS

1. This is always applicable:

1. are the basic conditions for recognition or enforcement satisfied? IF YES

2. Is there a defence by reason of which the foreign judgment should nevertheless not be recognised or enforced?

WHY DO WE RECOGNISE FOREIGN JUDGMENTS

1. Adams v Cape Industries – Slade LJ – the law is based on ‘an acknowledgment that the society of nations will work better if some foreign judgments are taken to creat rights which supersede the underlying cause of action, and which may be directly enforced in countries where the defendant or his assets are to be found’

2. COMITY

1. Briggs - So the requirement that the foreign court had ‘international jurisdiction’ is based on the idea that if D was present in the foreign state, comity requires that the English court respects the exercise of sovereign power over a person within the territory of the sovereign. ‘If the defendant was present when proceedings were instituted, comity and respect for sovereignty dictate that he is bound by the judgment’ BUT

2. Schibsby – Blackburn rejected the obligation view

3. TWO THEORIES (Clarkson & Hill):

1. Doctrine of obligation – original court assumed jurisdiction and created an obligation between the parties in personam that should be recognised (Scott J Adams v Cape Industries). Indeed, it is this obligation, rather the judgment itself which is enforced

2. Doctrine of reciprocity – we’ll recognised and enforce your judgments if, mutatis mutandis, you recognise ours

3. Mutatis mutandis = with those things changed that need to be changed

4. RUBIN v EUROFINANCE

1. Lord Collins was skeptical about the obligation view

5. FORUM CONVENIENS DOESN’T APPLY

1. Adams v Cape Industries – this doctrine has no bearing in determining whether foreign court’s judgment should be recognised

2. Clarkson & Hill – “there is something fundamentally suspect about a system of rules which refuses to enforce a judgment given by a foreign court which is obviously the most appropriate forum for the trial of the action’ BUT

3. Briggs – he says this misses the point. We don’t recognise foreign judgment because it is the appropriate forum, we recognise because of comity and points raised above with Comity

4. Briggs – if English court assumes jurisdiction when it is the appropriate forum, it ought to be prepared to enforce a foreign judgment when the original court was the appropriate forum (and should refuse to enforce a foreign judgment if the original court was not an appropriate forum). BUT Clarkson & Hill say this test of appropriateness is too open to discretion

CANADA

1. Amchem Products v British Columbia

• Supreme Court of Canada re-examined the law and essentially decided that the exercise of jurisdiction, the power to grant anti-suit injunctions and the recognition of foreign judgments will be based on considerations of forum conveniens and any other relevant connecting factors

• So if C has been sued in the court which is, in Canadian eyes, at least an appropriate place for the claim to have been brought, why should the judgment be denied?

• CONTRAST WITH ENGLAND

2. Owens Bank v Bracco – such a shift in England would require legislation

WE NEVER ENFORCE FOREIGN JUDGMENTS!

1. Briggs says that we recognise foreign judgments, but we never enforce them. People who say otherwise are wrong. At CL, only English judgments are enforced. Whereas, with the Regulation scheme foreign judgments themselves are enforced SO:

2. Merchant International v AK – a judgment which is final in the court which pronounced it may be recognised and enforced even though it was later set aside by an appellate court if the appellate judgment is refused recognition on one of the defences

3. Briggs says the explanation for this is that we don’t enforce foreign judgment at CL. Were we to, there would no foreign judgment to enforce, as it would have been set aside by the superior court. However, as the foreign judgment just provides a cause of action to bring original English proceedings on, this problem is not present

SUBMISSION POINTS BY BRIGGS

1. Essentially, s.33(1) CJJA 1982 says that when you challenge jurisdiction in the foreign court, that is not submitting. Briggs says that there is the argument that where the foreign court says they do have jurisdiction, that creates an issue estoppel on the matter that can be recognised. Briggs says this is wrong and to accept this would deform what s.33(1) tries...