#10004 - Seminar 5 - Conflict of Laws

RECOGNITION AND ENFORCEMENT AT COMMON LAW

WHO IT APPLIES TO:

1. Where a decision was given by a foreign court that is not within Brussels regime or other acts eg. Honk Kong, USA, Ruritania

BRUSSELS 1 APPLY?

1. Owens Bank (ECR): proceedings to enforce non-member state judgment are outside Article 1, including ancillary or incidental procedures from those proceedings SO

2. If it’s a non-MS judgment it doesn’t fall within Brussels I

3. Then consider other treaties

TEST FOR BOTH RECOGNITION AND ENFORCEMENT!

1. A foreign judgment will be recognised at common law if (Arden LJ in Aeroflot Russian Airlines):

1. the judgment was final and conclusive according to foreign law

2. the foreign court had ‘international jurisdiction’ according to English private international law (which was a restatement of it being a court of competent jurisdiction (ie. Nouvion v Freeman))

3. there are no defences to recognition

2. If these are all satisfied, judgment will be recognised. The person relying on the judgment can also bring English proceedings for enforcement if these three elements are satisfied. The judgment should also be for a fixed sum of money where enforcement.

PROCEDURE

1. To have a judgment JUST recognised, just need to plead it as res judicata

2. TO ENFORCE: Judgment creditor can bring proceedings on the claim at CL, in which the judgment is sued upon as a debt. This is original proceedings in the English courts. Permission for service out of the jurisdiction may be necessary if D is not present.

3. The proceedings are brought on the judgment, rather then the underlying cause of action

4. Once proceedings have been commenced, then apply for summary judgment under CPR 24 (so apply test of: D has no real prospect of successfully defending the claim or issue and there is no other compelling reason why it should be disposed of at a trial).

5. Godard v Gray – so judgment creditor gets a judgment out of this that he then enforces – so he’s only ever enforcing the English judgment

6. English court can grant interest on the judgment, even if foreign court couldn’t

7. LIMITATION: 6 years from date of foreign judgment

8. Miliangos (UK case) – judgment can be in foreign currency

FOREIGN COURT HAD INTERNATIONAL JURISDICTION

1. Buchana v Rucker – whether foreign court had jurisdiction is determined by reference to English ‘private international’ law (so doesn’t matter what the foreign court thought of this)

2. Foreign court will be regarded as being competent/having international jurisdiction in two situations:

1. SUBMISSION where the judgment-debtor submitted to the jurisdiction of the foreign court (Feyerick v Hubbard) OR

2. SUFFICIENT TERRITORIAL CONNECTION where there is sufficient territorial connection between the judgment-debtor and the country of origin

3. Other types of connection or factors are irrelevant

Submission

1. CONTRACT/CONSENT:

1. This will often be by virtue of a contractual clause providing for the exclusive or non-exclusive jurisdiction of the foreign court

2. Adams v Cape Industries – Scott J – doesn’t need to just be a contractually binding agreement though. For example, if judgment debtor orally consents to foreign court, that may suffice, as long as judgment creditor acts on this before judgment-debtor withdraws his consent

3. Briggs – he says that an implied agreement will only apply in the clearest of cases

2. VOLUNTARY APPEARANCE

1. Apply English Law?

1. Desert Sun Loan Corp – it must be shown that judgment-debtor voluntarily took part in the foreign proceedings in a way accepted by English law as amounting to a voluntary appearance BUT

2. Eurofinance v Rubin (SC) - The court emphasised that its approach should not be simply to consider whether steps taken abroad would have been submission in English proceedings, nor whether the foreign court would or would not have regarded the steps taken as submission. The international context requires a broader approach and all the facts need to be considered.

3. Adams v Cape Industries – if it doesn’t amount to submission in the law of the foreign court, won’t be submission (despite it being so in England)

2. Statutory Test For This

1. Section 33(1) CJJA 1982 (Civil Jurisdiction and Judgments Act 1982) means challenging jurisdiction is not submitting

3. What is or isn’t submitting

1. AES UKH v AES – if D is required, strictly or as a matter of good practice or to make the jurisdictional defence appear genuine, to plead to the merits at the same time as making his jurisdictional challenge, or finds that he is compelled to participate in other procedures to keep his jurisdictional challenge alive, the statutory protection under s.33(1)(a) CJJA 1982 is not lost SIMILARLY

2. Marc Rich – as long as clear from D’s first defence, rather then in some subsequent one, that he is contesting the foreign court’s jurisdiction, his conduct does not amount to submission even if the first defence contains some additional material which constitutes a plea to the merits of the case

3. Multiple Parties

1. Adams v Cape Industries – submitting to C1 in a foreign country is not implied submission to related proceedings commenced by C2 in the same court CONTRAST

2. Murthy v Sivajothi – held that it could be where though where joinder would have been permissible between C1 and C2 according to the rules of the foreign court; have to consider how similar the claims are

3. Rubin v Eurofinance – where a judgment is in personam against D1, it can’t be used for enforcement against D2 (ie. a third party

4. Henry v Geoprosco (EWCA)

• asking a foreign court to exercise its discretion to stay proceedings on the basis of forum non conveniens was submitting (this is a dated authority pre-CJJA).

• One view is that if you ask a court not to exercise it’s discretion, you’re accepting that it does have jurisdiction over you?

3. INVOKING THE JURISDICTION OF THE ORIGINAL COURT

1. Means

1. Where judgment-debtor took part in the proceedings as a claimant in some form.

2. Examples

1. Emanuel v Symon – taking part in proceedings as a claimant or counterclaiming D means submission

2. Murthy v Sivasjothi* - whether a claimant is taken to submit to any and every counterclaim raised against him will depend on whether the counterclaim arises out of the same facts or transaction as his claim or out of facts which are reasonably connected: broad commonsense test applies.

Sufficient Territorial Connection

1. INDIVIDUALS

1. Adams v Cape Industries (CA)

• D resident + present = foreign state has jurisdiction

• D non-resident + present = foreign state has jurisdiction

• D resident + not present = CA expressly left this open

• BUT NEXT CASE SUGGESTED THIS WOULD BE OKAY

2. State Bank of India (CA) – seemed to suggest that either presence or residence on the material date will suffice, either/or will do – Briggs thinks this is a bad idea as ‘Residence lacks hard edges’ and it too uncertain

3. Clarkson – thinks it would odd if presence alone suffices yet not residence

4. ME: this is particularly odd when one considers that under 1920 Act and 1933 Act presence alone wouldn’t suffice

2. COMPANIES

1. CL test is physical presence, which can be either direct or indirect presence (ie. through a representative)

• Direct Presence

1. Adams v Cape Industries – company has direct presence in country of origin if ‘it has established and maintained at its own expense (whether as owner or lessee) a fixed place of business of its own in the other country and for more than a minimal period of time has carried on its own business at or from such premises by its servants or agents

2. Simply carrying on business or selling goods there is not enough.

3. Littauer – irrelevant that one of D’s directors has had a claim form served on him whilst on a business trip there

4. Lucasfilm v Ainsworth – having a website in the country is not direct presence

• Indirect Presence

1. Adams v Cape Industries – a company is indirectly present in a foreign country only if a representative of the company has for more than a minimal period of time been carrying on the company’s business in the other country at or from some fixed place of business

2. Consider all factors but whether representative makes contracts on behalf of D is particularly important

3. FEDERAL STATES

1. Adams v Cape Industries – CA seemed to accept that if proceedings conducted in a local court, D needs to be present in that relevant law district. However, if original proceedings conducted in a federal court, it has to be established only that the defendant was present somewhere in the political unit

FINAL AND CONCLUSIVE

1. WHAT DOES THIS MEAN?

1. Nouvion v Freeman – a judgment is final if it permanently decides the matter and is unalterable in the court that made it. If the decision can be challenged in the foreign court by the losing party with the possibility of it being varied or set aside it will not be enforced

2. The Senna (No 2) – It can final on the whole dispute or just one issue

3. Any judicial tribunal will suffice, but not an arbitral tribunal

2. DEFAULT JUDGMENT

1. Briggs – voices uncertainty with this, seems to suggest that they can’t be regarded as being final, as they are liable to be reopened in foreign court BUT

2. Ainslie v Ainslie – one view of default judgment is that it is a final judgment until something happens which may never happen

3. APPEAL

1. Just because there is an appeal in the country of origin does not mean that it is not final and conclusive

4. NON-MONEY OR OPEN TO VARIATION OF AMOUNT

1. A sum that is open to variation by adjudicating court is NOT final and conclusive for the purpose of enforcement. HOWEVER,

2. if it is final as regards liability or led to a non-money order the finding of liability may be...