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Supervision 4 (Conflicts) - Ch. 8, Foreign Judgments (Rogerson)
RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS Regimes governing enforcement and recognition of foreign judgments 1) Brussels 1 Regime a. Any decision of a court/tribunal of a Member State b. Subject matter needs to be within scope of Regulation c. Parties could be domiciled in Member States or not d. NB: Easiest to enforce 2) Common law regime a. Recognition and enforcement of judgments from third states 3) Bilateral Treaty a. Judgments from a small number of states which are party to bilateral treaty within the UK and from other territories of the Commonwealth and Empire b. Statutory conditions for recognition and enforcement reflect common law c. Benefits from simplified procedure for enforcement Enforcement involves the act of exercising the judgment, and it necessarily involves its recognition. E.g. B has a car or bank account in England. A wishes to seize the car and get $1,000 out of the bank account. This constitutes enforcement of a judgment. Recognition means treating the claim which was adjudicated as having been determined once and for all. Three conditions must be satisfied: 1) Issue before the English court must be identical with that determined by the foreign court 2) Foreign decision must be final and on the merits 3) Parties or their privies must be identical. Effect 1) Foreign judgment is treated on res judicata a. End of litigation on the dispute b. Treats all matters which could have been raised on a dispute as decided, regardless of whether they were raised 2) Gives rise to cause of action estoppel a. Prevents parties from relitigating the same claim b. Civil Jurisdiction and Judgments Act (CJJA) 1982, s34 3) Issue estoppel a. Treated as having been decided in a foreign court, cannot be reopened in England b. Conditions Good Challenger Navegante SA v Metalexportimport SA i. Judgment must be given by foreign court of competent jurisdiction ii. Judgment must be final and conclusive and on the merits iii. Must be identity of parties iv. Identity of subject matter To enforce a foreign judgment, a judgment must first be recognised.
Supervision 4 (Conflicts) - Ch. 8, Foreign Judgments (Rogerson) Theories behind Recognition and Enforcement Issue isn't whether foreign judgments should be recognised and enforced, but rather which foreign judgments should be recognised and enforced. (1) Reciprocity/comity: the courts of country X should recognise and enforce the judgments of country Y if, mutatis mutandis, the courts of country Y recognise and enforce the judgments of country X. a.
Mutual trust and confidence in decisions of other Member State's courts is paramount Explains fullest effect being given to foreign judgment + availability of limited defences
(2) The theory of obligation: the judgment of the NY court creates a debt and the liability to pay the $100 becomes a legal obligation that may be enforced in this country by an action of debt. a.
Adams v Cape Industries plc: used theory of obligation and comity to justify recognition of judgment; obligation based on territoriality (strongest justification)
BRUSSELS I REGULATION Scope of Regulation Judgments falling within material scope of Brussels I regime Meaning of judgmentCivil and commercial matters (Article 1) Not excluded matter (e.g. tax, fine, administrative decision) Art 1(4) - arbitration exclusion (e.g. arbitration award)
Art 2(a) - widely defined.
- Interlocutory decisions which regulate procedural matters only (Gothaer v Samskip)
- Judgments by consent
- Interim orders, those made under Art 31
- Not private tribunal judgments - not tribunals of a Member State
- No distinction between final judgment and provisional measures (Italian Leather SpA v WECO) No need for court to have taken jurisdiction under Brussels Regulation, provided it is judgment of a MS (Borchers)
Arbitration agreements - no provision about court decisions about arbitration agreements.
- West Tankers: judgment did not concern 'arbitration', so entitled to recognition and enforcement.
- DHL v Fallimento: judgment granted in civil proceedings which were allegedly brought in breach of arbitration clause, concerned 'arbitration' Article 36 - "judgment given in a MS shall be recognised in the other MS without any special procedure being required".
Supervision 4 (Conflicts) - Ch. 8, Foreign Judgments (Rogerson) Enforcement
Foreign judgment cannot be reviewed as to substance Limited defences present for recognition of judgment given by court of another MS Art 38 of BIR: must be enforceable in the country of originIf it is a 'judgment', decree of specific performance or an injunction is as entitled to enforcement under Ch. III as a money judgment (De Cavel v De Cavel)
Procedure of enforcement 1) Claimant makes application for enforcement to High Court 2) Court orders enforcement, provided that formalities are right, without considering defences available to judgment
debtor 3) If court refuses to order enforcement, claimant can appeal (heard by High Court) Third state judgment ? won't be enforceable in England using Brussels I Regulation. Has to be recognised through traditional rules. Grounds of refusal for recognition: same as grounds for refusing enforcement (Art 45) Defences Listed in BIR itself; narrowly interpreted. Jurisdiction
? General rule: Original court needs to ensure that it has jurisdiction, this jurisdiction cannot be reviewed
? Exception: Art 45(1), provides that recognition may be refused if judgment conflicts with sections 3, 4, 5 (insurance, consumer, employment) and section 6 of Ch. II (exclusive jurisdiction)
Manifestly contrary to public policy
Art 45(2), (3): test of public policy cannot be applied to rules regarding jurisdiction Art 45(1)(a): English court is permitted to refuse recognition and enforcement if that judgment is manifestly contrary to English public policy.
? Strictly construed. No breach Apostolides v Orams: Facts: Judgment given by Cyprus court over ownership in land in Northern Cyprus. Ds were English owners of the land and claimants had benefit of Cyprus judgment requiring demolition of property on land and its return to them. Held: no fundamental principle of English legal order was infringed - had to be recognised and enforced.
Supervision 4 (Conflicts) - Ch. 8, Foreign Judgments (Rogerson)
Breach of fundamental principle - Krombach v Bamberski Facts: German D was suspected by French claimant of having killed C's daughter in Germany. Claimant sued in civil proceedings in France. German criminal proceedings were dropped. Attempted to enforce French judgment for damages in Germany. Defendant did not appear in French criminal proceedings, so forfeited right to be represented in civil proceedings.
- Argued it was against public policy in Germany to enforce judgment as he had not been permitted to defend himself. CJEU, held: defence was available; German court could refuse to recognise and enforce French judgment
- Definition of public policy ? for judgment recognising MS
Abuse of court procedures - Gambazzi v DaimlerChrysler Canada Inc Facts: Claimant sought to enforce English judgment in Italy.
- Defendant barred from proceedings in England, was in breach of freezing order therefore in contempt of English court
- Prevented from taking further steps until contempt was purged. Defendant: argued summary judgment should not be enforced because he was not able to participate in his defence. CJEU: held, for Italian court to decide whether enforcing judgment would be contrary to Italian public policy.
Breach of Article 6 of ECHR - Maronier v Larmer
- Enforcement was sought of a judgment of the Dutch court.
- C of A, acknowledged that Holland, as a party to the HRC is committed to ensuring that Article 6 is observed. o English courts should "apply a strong presumption that the procedure of other signatories of the HRC are compliant with article 6". o But not irrebuttable presumption that a judgment given in another MS cannot have resulted from a violation of article 6
FraudNo separate defence of fraud Could sometimes be refused recognition on grounds of public policy Even narrower than at common law (Interdesco v Nullifer)
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