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Seminar 5 Part Ii Notes

BCL Law Notes > Conflict of Laws Notes

This is an extract of our Seminar 5 Part Ii document, which we sell as part of our Conflict of Laws Notes collection written by the top tier of University Of Oxford students.

The following is a more accessble plain text extract of the PDF sample above, taken from our Conflict of Laws Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

SEMINAR 5: PART II

WHICH SET OF RULES GOVERNS ENFORCEMENT?

1. 2.

3. 4.

From a commonwealth country = either 1920 or 1933 Act From EU MS = Brussels I Iceland, Switzerland, Norway = Lugano Convention Rest of World (including USA) = common law

1920 Act and 1933 Act Generally

1. Apply CL For Recognition
- They essentially follow the common law principles as this was understood at the time of enactment for recognition
- So just apply the CL principles for recognition with the exception that:

2. Exception
- For 'international jurisdiction' both Acts do not accept presence.
- For the 1920 Act: i. the person must either have been resident in that country; or ii. have carried on business there
- For the 1933 Act: i. resident there; or ii. had its principal place of business there

3. Enforcement
- Unlike CL, the actual judgment has direct effect. So there is no need to commence original proceedings or application for summary judgment likewith CL. The statutes allow for the judgment creditor to register the judgment for enforcement, it being thereupon of the same force and effect for the

purpose of enforcement as if it had been an English judgment

4. Registration
- 1920 Act: this is discretionary and need to do it within 12 months (unlesscourt thinks otherwise) 1933 Act: this is as of right

1 ADMINISTRATION OF JUSTICE ACT 1920

WHO IT APPLIES TO

1. NOT Hong Kong

PROCEDURE

1. Governed by CPR 74. Application made within 12 months from date of judgment (all others its 6 years)

GENERAL

1. Foreign judgment needs to be registered

2. It's discretionary as registering court only registers where 'in all the circumstances of the case ... just and convenient that the judgment should be enforced in the UK'

3. Registration won't be ordered where i. original court acted without jurisdiction OR ii. D has a defence OR iii. The judgment is still subject to appeal

4. Once registered though, the judgment has same effect as a judgment of the registering court

THE FOREIGN JUDGMENTS (RECIPROCAL ENFORCEMENT) ACT 1933

WHO IT APPLIES TO?

1. Australia, Canada, India, Pakistan, Guernsey, Isle of Man, Jersey

GENERAL

2 1. Registration is as of right

2. Only slightly deviates from the CL

3. If the judgment is subject to appeal the application for registration may be stayed

4. Now generally only applies to Commonwealth countries (as it's superseded by Brussels I)

Section 18 and 19 CJJA 1982

1. Provides for recognition and judgments emanating from Scotland, N. Ireland and Gibraltar

2. Procedural rules for enforcing in Sch 6 (money judgment) and Sch 7 (nonmoney judgments)

BRUSSELS I

GENERAL

1. Norway, Switzerland and Iceland basically have same provisions under the Lugano Convention which takes effect under Part I of the Civil Jurisdiction and Judgments Act 1982

2. Countries which are part of 1933 Act and also Brussels I mean that Brussels I supersedes 1933 Act

3. For the purposes of the Regulation, Gibraltar is essentially treated as part of the UK

WHERE IT APPLIES

3

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