#10006 - Seminar 5 Part Ii - Conflict of Laws

SEMINAR 5: PART II

WHICH SET OF RULES GOVERNS ENFORCEMENT?

1. From a commonwealth country = either 1920 or 1933 Act

2. From EU MS = Brussels I

3. Iceland, Switzerland, Norway = Lugano Convention

4. 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:

1. the person must either have been resident in that country; or

2. have carried on business there

• For the 1933 Act:

1. resident there; or

2. 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 like with 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 (unless court thinks otherwise)

• 1933 Act: this is as of right

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

1. original court acted without jurisdiction OR

2. D has a defence OR

3. 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

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 Now generally only applies to Commonwealth countries (as it’s superseded by Brussels I)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 (non-money 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

1. Where original court and enforcing court are both MS.

2. Applies to civil and commercial matters (so doesn’t include arbitration)

RECOGNITION

1. For a judgment to be recognised under Chapter III of the Regulation it:

1. must be an adjudication from a court in a MS (includes Gibraltar)

2. must be given in a civil or commercial matter

3. need not be in proceedings which were instituted after the Regulation came into effect

4. must not be impeachable for jurisdictional error

5. must not be impeachable for procedural or substantive reasons AND

6. must not be excluded from recognition by another treaty

2. Art 33 – don’t have to bring any form of action to obtain recognition of a Regulation judgment, beyond pleading it

Adjudication (Art 32)

1. Art 32 – defines what is a judgment

2. DOESN’T INCLUDE

1. Owens Bank - Doesn’t include non-MS judgments, even after a judge in a MS has held them to be enforceable

2. Doesn’t include a declaration about the enforceability of an arbitration award

3. DOES INCLUDE:

1. Gothaer

• this case concerned the Lugano Convention but the principle is general

• where a court rules that it has no jurisdiction because there is a jurisdiction agreement nominating another MS, this judgment must be recognised both in relation to the decision that the court seised has no jurisdiction and that this is because there is a valid and binding agreement for another MS

2. interlocutory judgment, no requirement for it to be final and conclusive in Brussels Regime

3. Art 49 – a judgment which orders a periodical payment

4. Art 58 – approved settlements

5. Art 57 – authentic instruments (even though unknown to English law)

Civil and Commercial Matter (Art 1)

1. England Decides This For Itself

1. Hoffman - Recognising court decides for itself whether the matter was civil or commercial. So irrespective of what original MS court decided, if it’s held to fall outside Art 1 by recognizing court they don’t recognise

2. Breach of Arbitration Agreement

1. The Wadi Sudr – CA said that where a judgment is in breach of an arbitration agreement it should still be recognised BUT

2. Case law from European Court uncertain on this point and NEW REG doesn’t clarify it. See Hoffman and Van Uden on this point from Sem 3-4 notes

3. CONCLUSION: likely should recognise even in breach of arbitration agreement, although this needs further clarification from the European Court

Date of Proceedings and Judgment (Art 66)

1. Regulation applies to the recognition of judgments given in proceedings instituted in the then MS after 1 March 2002

2. JUST SAY: having regard to Art 66 of the Regulation, there is no issue here

Jurisdictional Errors (art 35)

1. What will be recognised

1. It is irrelevant that the adjudicating court erred in its application of the Regulation

2. Will recognise even if rules of the court (including that court applying its residual jurisdiction under Art 4) seem contrary to public policy Art 35(3)

3. A judgment even in breach of an arbitration/jurisdiction agreement

2. What will be denied recognition Art 35.1

1. Insurance/consumer: can’t breach exclusive insurance and consumer contract provisions

2. or a judgment which violates Art 22

Procedural or Substantive Reasons (Art 34)

1. Art 34(1) Public Policy

1. Recognition precluded if manifestly contrary to public policy

2. Breach of Human Rights

Krombach – this rule can only operate within limits defined by European Court; breach of human rights may offend public policy

3. Mere Error of European Law

Maxicar

• botched application of European competition law could not be considered to be contrary to public policy, especially where the opportunity of bringing an appeal from adjudicating court could perfectly well have put it SO

• mere error of (European) law made by adjudicating court is not a basis for not recognizing

4. No reasons Given

Trade Agency

• court may not recognise an English default judgment, on grounds of public policy, if the court takes the view that the absence of reasons in the judgment and the contention that this may make it impossible to bring an appropriate and effective appeal against it, amounts to a manifest and disproportionate breach of the right to a fair trial

5. Breach of Arbitration Agreement

The Wadi Sudr

• CA held that breach of an arbitration agreement is not contrary to public policy BUT

• Briggs – he thinks wording of s.32 CJJA 1982 means otherwise

• Whether this applies to a jurisdiction agreement is uncertain. Probably not SO

• Essentially, where a judgment was reached in breach of an arbitration agreement (and most certainly a jurisdiction agreement), it cannot be denied recognition due to public policy

6. Fraud

• Briggs – thinks the argument that the judgment was obtained by fraud will fail to trigger this article unless adjudicating court has no provision for allowing this to be pleaded

7. Multiple Damages

• this would offend the Protection for Trading Interests Act 1980

2. Art 34(2) Judgment in Default of Appearance

1. Autonomous meaning

Hendrickman

• Default judgment has an autonomous meaning, doesn’t matter if adjudicating court did not consider there to be such a default

• This essentially covers the case where D was denied a proper right to be heard or represented

2. Don’t need ‘duly’ served

Apostolides

• For a judgment to be in default of appearance the document instituting the proceedings must have been served according to the assessment of the judge in the recognizing state BUT

• Brussels Convention used to say ‘duly’ served. This encouraged technical objections, so this word is no longer present and this was deliberate

• Essentially just need sufficient time to allow D to arrange for his defence

3. Adjudicating Court Makes This Decision

• Art 26 obliges adjudicating court to check that absent d was duly served and had time to arrange his defence

• Trade Agency – adjudicating court makes this assessment itself, not bound to accept adjudicating court’s decision on this

4. Without Notice Orders

• will be denied recognition

5. Order Loses Default Judgment Character

Apostilides

• Order may lose its original default character if subsequent applications made to set it aside are made and dismissed

6. Challenge in Adjudicating Court

• Briggs – if D faces an uphill struggle to get the order set aside in adjudicating court, that isn’t enough for refusing to recognise due to this art, but if it reimposes the original burden of proof on D then it’ll be enough

• If D had reasonable opportunity to have it set aside in adjudicating court then can’t rely on this art

3. Art 34(3) Irreconcilability with English Judgment

1. Doesn’t matter when English Judgment was

Hoffman

• if the foreign judgment is incompatible with English judgment in dispute between same parties, whether this was...