Recognition And Enforcement Of Foreign Judgments Notes

RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS

• 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

1. RECOGNITION

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

• For foreign judgment to be recognised in England:

1. Parties to both proceedings must be identical

2. Proceedings must have same cause of action of same issue

3. Judgment must be final and conclusive (see below)

• Where foreign judgment entitled to recognition, can be:

  Cause of action estoppel

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

  Issue estoppel

  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

   see below

2. D relies on foreign judgment given in C’s favour to prevent double-recovery by C

   CJAA 1982 section 34

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

   unless foreign judgment is unenforceable in England

   however s.34 is not a mandatory provision

   thus D may waive protection of s.34 where:

1. he consents to English courts’ jurisdiction

2. or he enters contrary agreement

   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)

   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

   Desert Sun Loan Corp v Hill [1996]

2. ENFORCEMENT

• 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:

1. Final and conclusive

2. Judgment of a court

3. For a fixed debt or sum of money

1. Final and Conclusive

1. ‘final’: i.e. cannot be reopened in the court which made the ruling

   However judgment may be ‘final’ even if it can be appealed to a higher court

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

   Colt Industries v Sarlie (No 2) [1966]

2. ‘conclusive’: i.e. it represents court’s settled conclusion on merits of point adjudicated

   no need for this to be the final judgment in case

   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

   thus judgements that CANNOT be enforced include:

1. public judgments (e.g. judicial review);

2. arbitral awards

3. For a Fixed Debt or Sum of Money

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

   orders that are not enforceable include:

1. Injunctions

2. Specific performance (e.g. for delivery of goods)

3. 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

1. if money taken from loser goes to the state, judgment is usually penal

2. if money goes to a private individual, judgment is usually not penal

   Huntington v Attrill [1893]

• However not every exercise of a public law power is unenforceable

  key question is whether the award sought represents either:

1. reparation to an aggrieved private party;

2. or vindication of a government interest

   Thus necessary to look at substance of enforcement proceedings, and NOT form.

   i.e. even if money is formally payable to the State, judgment is enforceable if it is in substance a claim for damages on behalf of private party

   Robb Evans v European Bank [2004] (Australian Case)

   Followed in Manterfield [2009] (English Case)

Competent Jurisdiction

• Court whose judgment C seeks to enforce must have had competent jurisdiction.

• Relevant question is whether foreign court had jurisdiction to hear case under the English conflict of law rules.

• whether it had jurisdiction under its own conflict of laws rules is irrelevant

• Five-stage test for when courts will enforce foreign judgment laid down

  Emmanuel v Symon [1908].

• These can be condensed into two headings:

1. Sufficient territorial connection

2. Submission

   Sufficient Territorial Connection

• Foreign courts had proper jurisdiction if there was sufficient territorial connection between D and country of those courts.

1. Individuals

• Probably case that sufficient territorial connection between D and State A can be shown by:

1. temporary presence of D in State A when proceedings were commenced; or

2. residence of D in State A when proceedings were commenced

• Adams v Cape Industries [1990] considered three alternative scenarios:

1. D is resident of State A and present in State A

• State A has jurisdiction

2. D is non-resident of State A and present in State A

• State A has jurisdiction

3. D is resident of State A but not present in State A

• This possibility expressly left open by court

• Clarkson: is probably case, however, that residence without presence suffices.

  • i.e. would be odd if presence alone sufficed yet residence (which is a stronger connection) did not

2. Companies

• Two alternative tests for whether company is ‘present’ set out in Adams v Cape Industries.

1. Direct presence; or

2. Indirect presence

1. Direct Presence

• Company is present in State A if it has:

• established and maintained at its own expense a fixed place of business of its own in State A;

• and for a more...

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