RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENTS

Regimes governing enforcement and recognition of foreign judgments

Brussels 1 Regime
1. Any decision of a court/tribunal of a Member State
2. Subject matter needs to be within scope of Regulation
3. Parties could be domiciled in Member States or not
4. NB: Easiest to enforce
Common law regime
1. Recognition and enforcement of judgments from third states
Bilateral Treaty
1. 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
2. Statutory conditions for recognition and enforcement reflect common law
3. 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:

Issue before the English court must be identical with that determined by the foreign court
Foreign decision must be final and on the merits
Parties or their privies must be identical.

Effect

Foreign judgment is treated on res judicata
1. End of litigation on the dispute
2. Treats all matters which could have been raised on a dispute as decided, regardless of whether they were raised
Gives rise to cause of action estoppel
1. Prevents parties from relitigating the same claim
2. Civil Jurisdiction and Judgments Act (CJJA) 1982, s34
Issue estoppel
1. Treated as having been decided in a foreign court, cannot be re-opened in England
2. Conditions - Good Challenger Navegante SA v Metalexportimport SA
  1. Judgment must be given by foreign court of competent jurisdiction
  2. Judgment must be final and conclusive and on the merits
  3. Must be identity of parties
  4. Identity of subject matter

To enforce a foreign judgment, a judgment must first be recognised.

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.

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.
1. Mutual trust and confidence in decisions of other Member State’s courts is paramount
2. Explains fullest effect being given to foreign judgment + availability of limited defences
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.
1. 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	Civil and commercial matters (Article 1) Not excluded matter (e.g. tax, fine, administrative decision) Art 1(4) – arbitration exclusion (e.g. arbitration award)
Meaning of judgment	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’
Recognition	Article 36 – “judgment given in a MS shall be recognised in the other MS without any special procedure being required”. Foreign judgment cannot be reviewed as to substance Limited defences present for recognition of judgment given by court of another MS
Enforcement	Art 38 of BIR: must be enforceable in the country of origin If 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 Claimant makes application for enforcement to High Court Court orders enforcement, provided that formalities are right, without considering defences available to judgment-debtor 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) Art 45(2), (3): test of public policy cannot be applied to rules regarding jurisdiction
Manifestly contrary to public policy	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...

Recognition And Enforcement Of Foreign Judgments - Conflict of Laws

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