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Recognition And Enforcement Of Foreign Judgments Notes

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RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS

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Are three categories into which judgments obtained abroad fall: 1) Judgments obtained in Member States (Brussels Regulation) 2) Judgments obtained in non-Member States (common law) 3) Judgments covered by bilateral treaties

COMMON LAW a.

RECOGNITION

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Recognition is treating claim decided abroad as having been determined once and for all

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For foreign judgment to be recognised in England: i) Parties to both proceedings must be identical ii) Proceedings must have same cause of action of same issue iii) Judgment must be final and conclusive (see below)

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Where foreign judgment entitled to recognition, can be:

1. Cause of action estoppel

1. i.e. C cannot bring claim in respect of same cause of action litigated abroad

2. Issue estoppel

1. i.e. C cannot argue a preliminary issue which has already been decided by foreign court

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Relevance 1) D relies on foreign judgment given in D's favour as defence to English proceedings

1. see below 2) D relies on foreign judgment given in C's favour to prevent doublerecovery by C

2. CJAA 1982 section 34

1. no proceedings may be brought by C on a cause of action in respect of which C has obtained judgment in his favour abroad

2. unless foreign judgment is unenforceable in England

3. however s.34 is not a mandatory provision

4. thus D may waive protection of s.34 where: i) he consents to English courts' jurisdiction ii) or he enters contrary agreement

1. The Indian Grace [1993]
3) C relies on issue estoppel from foreign judgment to show D submitted to foreign courts (and thus prevent D contesting enforcement)

2. e.g. where factual issues determined by foreign court prove that under English conflicts of laws rules D submitted to foreign proceedings, D estopped from arguing that foreign court did not have competent jurisdiction

3. Desert Sun Loan Corp v Hill [1996]
b.

ENFORCEMENT

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For judgment to be enforceable at common law, three conditions must be satisfied: 1) Judgment must be enforceable 2) Original court must be one of competent jurisdiction 3) Must be no defences to enforcement

Enforceable Judgments

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To be enforceable, foreign judgment must be: i) Final and conclusive ii) Judgment of a court iii) For a fixed debt or sum of money 1) Final and Conclusive i) 'final': i.e. cannot be reopened in the court which made the ruling

1. However judgment may be 'final' even if it can be appealed to a higher court

1. is simply case here that English courts may stay proceedings pending the outcome of an appeal

2. Colt Industries v Sarlie (No 2) [1966]
ii) 'conclusive': i.e. it represents court's settled conclusion on merits of point adjudicated

1. no need for this to be the final judgment in case

2. i.e. judgment on a procedural matter can be 'conclusive', provided the view of court is not subject to revision 2) Judgment of a Court

1. thus judgements that CANNOT be enforced include: i) public judgments (e.g. judicial review); ii) arbitral awards 3) For a Fixed Debt or Sum of Money

2. the foreign judgment must be for a fixed sum of money payable to winner.

3. orders that are not enforceable include: i) Injunctions ii) Specific performance (e.g. for delivery of goods) iii) Tax, penalties, or other public law orders Tax, Penalty or Public Law

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Judgment will not be enforced if it enforces State A's penal, revenue or public law.
? even if only indirectly
? USA v Inkley [1989]
Punitive damages are enforceable.
? even though they are imposed by court to punish D, are in fact compensatory
? SA Consortium General Textiles [1978]
Key distinction seems to be whether money awarded goes to a private party or not i) if money taken from loser goes to the state, judgment is usually penal ii) if money goes to a private individual, judgment is usually not penal

1. Huntington v Attrill [1893]

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