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Recognition And Enforcement Of Foreign Judgments Notes

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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




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

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)

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

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]



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

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




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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