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Published: Fri, 02 Feb 2018
Conditions For Enforcement Of Foreign Judgements
In modern world, in larger interest of business community recognition and enforcement of judgement given by alien (foreign) court has become necessary in any country. Suppose that a plaintiff domiciled in America successfully sues defendant domiciled in England in court of third country. Such defendant has assets in England and to claim these assets by plaintiff it is necessary to English court to recognise and enforce the judgement given by such third country. It has been rightly said by Hill and Chong, 1 that judgement operates as international currency. Cheshire2 states that one of the primary objects of private international law would never be attained if a judgment of a foreign court of competent jurisdiction were to be completely ignored, and that in particular, judgments of a purely declaratory nature or, for instance, those determining the status of a person ought to be recognised in other countries. As against lord’s Bridges view that the enforcement of foreign judgements is primarily governed by statutory codes,3 the common law significantly applies to judgements given by the courts of countries in Eastern Europe, middle east, as well as non common wealth countries in America, Africa, Asia. Common law permits enforcement of foreign judgements within certain limits. There are two theories for the recognition and enforcement of foreign judgements. 1) Doctrine of reciprocity and; 2) doctrine of obligation.4 English courts have accepted doctrine of obligation as part of English common law.5
A. Conditions for enforcement of foreign judgements at common law.
A foreign judgement to be entitled to enforcement in England must qualify certain requirements. They are:
Original court must be jurisdictionally competent.
The judgement must be final and conclusive.
The judgement must be for fixed sum of money, not being a tax or penalty.
This paper examines the circumstances under which English court would regard a foreign court as jurisdictionally competent for the purposes of recognition of its judgements at common law and further possible reforms in common law rules with respect to jurisdictionally competence of foreign court.
Hill and Chong, International commercial disputes, (4th edn Harth publishing, oxford 2010)401.
Marussia Borm-Reid (1954). Recognition and Enforcement of Foreign Judgments. International and Comparative Law Quarterly, 3, pp 49-92.
Owen bank Ltd v Bracco 2AC 443,489.
Hill and chong, (n1) 402.
Schibsby v Westenholz (1870) LR 6 QB 155.
The jurisdiction of foreign court or original court.
English courts for the purpose of recognition and enforcement of foreign judgement is not concerned with the internal law of country of origin. In Buchanan v ruckers6 it was held that competence of original court over the person against whom judgement is given is not important, the question is whether- as a matter of English law- the original court is to be regarded as a court of competent jurisdiction in the private international law sense. It is clear that English courts will look in their internal law to conclude whether foreign court is jurisdictionally competent. So relevant thing in the eyes of English court would be whether the connection between the country of origin and the person against whom judgement is invoked is sufficient to create an obligation which English court would recognise and enforce. In Emanuel v Symon7 it was proposed that, in actions in personam there are five cases in which court of England will enforce a foreign judgement. 1) where the defendant is subject to foreign country in which the judgement is obtained; 2) where he was resident in foreign country when the action began; 3) where defendant in the character of plaintiff has selected the forum in which he was afterward was sued; 4) where he was voluntarily appeared; 5) where he has contracted to submit himself to the forum in which the judgement is obtained.
According to me first case would not give rise to issue of jurisdiction. Such views were also expressed in case of Buchanan v Rucker8. Point no 2, boils down the question where defendant has sufficient territorial connection between party and country whose court has given judgement and whether it is sufficient to create any responsibility in terms of English court. Point no. 3, 4, 5 emphases on submission of party to original court.
Sufficient territorial connection
In case of Individuals:
The residence of defendant within foreign country is more than sufficient to establish a connection with foreign country. The matter of concern is whether a mere presence of defendant in foreign country for a limited time will create a territorial connection. According to me a person who happens to be within any country generally owes obedience to law of that country. “By making himself present he contracts into network of obligation, created by local law and local courts”9 Mere presences for short time will create an obligation on person. This view has been expressed in Carrick vs. Hancock.10 In above case proceeding was started in Sweden and defendant was served with the document instituting the proceeding during short visit to Sweden. Defendant took part in proceeding and so it was justified for English to enforce the judgement on the basis of defendant submission, but view expressed by Lord Russell was noteworthy. Lord Russell expressed that: “the jurisdiction was based on territorial dominion, and that all persons with in any territorial dominion owe their allegiance to its sovereign power and obedience to all its law and to the lawful jurisdiction of its courts.”11
 9 East 192.
 1 KB 302, 309.
(1895) 12 TLR 59.
The court of appeal held in Adams vs. Cape Industries Plc that, in absence of submission the jurisdiction of the foreign court depends upon the physical presence of person in the country at the time of commencing proceedings. Further it was expressed that presence must be voluntarily and not by force.12It may be difficult to ascertain presence of person in case involving cross border e-commerce. For a instance, if a seller is present in England advertises good on the internet which accessible anywhere in world and sells and delivers good on order to buyers in foreign countries, then it cannot be assumed that seller is present in that foreign country.13 So on the basis of above cases we can conclude that physical presence of person must be there in country where proceeding took place and such presence must be voluntarily. But in England the jurisdiction of English court can be stayed in case of mere presence by English court by invoking doctrine of forum non conveniens in England14. Court has discretion to stay proceeding on above grounds. So according to me it is rightly suggested that, it would be rational to determine competence of foreign court in the private international law sense by the application of a test based on the appropriateness of the foreign forum, rather than on factors such as mere presence or residence. 15
In case of corporation or company:
To determine presence of company in a country is more difficult than in a case of individual. For determining presence of company in foreign country English courts have considered two situation direct presence of company and indirect presence of company where company carries out its business through representative. Direct presence of company can be felt easily where company carries out business at definite or permanent place in a country.16Indirect presence poses more difficulty. Situation becomes worst where company carries out business through representative. In ascertaining whether company is present in country through representative court gives consideration to all facts and circumstances of case such as whether representative is empowered to conclude contracts on behalf of company or not and many more. The question of presence of company in a foreign country was subjected to review by the court of appeal in case of Adams v cape industries plc.17 It was held that English court would treat corporation established under the law of country as present in the another countries jurisdiction only if
Such company has been established on his own expense and carries business of original company in that country from such fixed place for more than minimum period of time has carried its own business through its servants or agents.
A representative of the overseas corporation has for more than a minimal period of time been carrying overseas corporation business from some fixed place of business.
 Ch 433.
Lucasfilm Ltd V Ainsworth  FSR 270.
JJ Fawcett and JM Carruthers, Cheshire, North and Fawcett: Private International law (Oxford,OUP, 14TH edn, 2008) 518.
A Briggs, ‘Which foreign Judgements Should We Recognise Today?’ (1987) 36 ICLQ 240.
Vogel v R & A Kohnstamm Ltd  QB 133.
From above expression we can conclude that presence can only be established if business is carried out from fixed place. In first case it is easier to find jurisdiction. For finding jurisdiction in second case we need to analysis the various factors. These factors are given in Adams v Cape Industries Plc.18 By analysing case in detail you may find following factors:
Whether the place acquired by representative for business was to enable him to act behalf of overseas company.
Whether overseas corporation pays representative for staff hired by him, daily expenses, rent for premises and percentage of contribution in financing business carried out by representative by overseas corporation.
Whether representative gets commission for business transacted by him for fixed sum of money.
Whether representative uses name of overseas corporation in any form for carrying out business.
Whether representative contracts with other party in the name of overseas corporation or binds by such act or he requires such binding authority from overseas corporation.
Degree of control exercised by overseas corporation over business of representative.
Whether overseas company reserves any part in appointing staff for purpose of carrying business.
In Adam vs. cape industries plc19 the plaintiff raised the jurisdiction on the basis that English company was carrying its business through its subsidiary marketing companies incorporated in Illinois. The court of appeal rejected the plaintiff argument of both direct and indirect presence. Court found both the companies as separate legal persons. The Court held that subsidiary companies were not empowered to bind defendant and were mainly carrying on business on their own. The Adam v cape industries plc20 raises important issue concerning relevant territorial connection, when judgement is granted by the courts of political state which is made of different law district then such case defendant should be present anywhere in that political state or in particular law district whose court has rendered judgement. Court of appeal concluded that presence in somewhere in such political state is enough to draw territorial connection with such state.
The original court is regarded as court of competent jurisdiction if the subject against whom judgement is rendered has submitted to the jurisdiction of court.21
Further where person has submitted to the foreign court with respect to claims brought against him, the submission extends not only to specific claim but also to the claims concerning same subject matter to the original claim and related claims provided such claims are in compliance of procedure of foreign court and are raised by original claimant or the parties to proceeding who were present at the time of submission by defendant to such foreign court. This views were expressed in case of Murthy v Sivajyothi.22
A Briggs, (2006) 77 BYIL 575.
 WLR 467.
A foreign judgement that is given against absent defendant primarily will not be actionable in England. But question arises what would happen when such person moves in foreign court to set aside such judgement and is unsuccessful. According to me if person raises question of merit of claim, then this would amount to submission.
Agreement to submit:
Agreement to submit to the foreign jurisdiction should be express one. In case of Copin v Adamson23 a less explicit agreement was regarded as sufficient one. In above case it was held that article of association of company, which provided that the all dispute that might arise during liquidation should be submitted to the jurisdiction of French court, constituted on the part of every shareholder that he should be bound by the judgement so obtained.
Further, it was held in Vogel v R and A Kohnstamm ltd 24that agreement to submit cannot be implied, it should be express.
Further it must be taken into consideration that jurisdiction agreement in favour of a particular court in a particular country is not to be regarded as amounting to a general submission to all the courts in that country. Such views were expressed in SA Consortium General Textile’s v Sun and Sand Agencies Ltd  QB 279.
Certain steps not to amount to submission to jurisdiction of overseas court.
The section 33(1) of the Civil Jurisdiction and Judgement Act 1982 does not provide steps which would amount to submission rather it provides a range of procedural acts which are not to be regarded as amounting to submission.
(i)The case which causes difficulty in many countries where a defendant entered an appearance with sole object of protesting against jurisdiction of the foreign court was solved by sec 33(1) (a) which provides that where defendant appeared in foreign country to contest jurisdiction would not amount to submission in the eyes of English courts.
(ii)For example, if Japanese seller who appeared before the Texas courts to ask for a stay of proceeding because of an arbitration clause, which provided that disputes should be submitted to arbitration in England, had not submitted to the jurisdiction of the Texas court according to sec 33(1) (b).This view was expressed in Tracomin SA v Sudan Oil Seeds Co Ltd.25
23. (1874) LR 9 Ex Ch 345.
24.  QB 133.
25.  1 WLR 662.
(iii) Under the common law rules, person possessing assets in foreign country is placed in uncomfortable situation. If he ignores the foreign proceeding, he would lose the property subjected in the judgement of foreign court. On the contrary if he takes part in foreign proceedings he likely to lose not only foreign property but also property situated in England because it would amount submission to foreign court.sec 33(1) (c) safeguards the interest of such person possessing property abroad. It allows defendant to protect his property without incurring such types of risk.
It is clear that if defendant fights on merit of case in foreign proceedings it would amount to submission. However, it would not amount to submission if he initially raises the initial plea of merits with his defence to lack jurisdiction.26In such matter court should act cautiously should be in hurry to conclude that defendant has submitted. Where foreign court requires a defendant to contest jurisdiction and plead to merits of the case same time, there is no submission, Unless defendant takes ‘some steps which is only necessary or useful if objection has been actually waived, or if the objection has been never raised at all’.27
In complex situation question may arise where submission to one set of proceeding can be regarded as a submission to other set of proceedings involving same issue. Such situation was found in Adams v Cape industries plc28 where an English company, which was involved in the mining and sale of asbestos, was the defendant in two set of proceedings(t1 and t2).Defendant took part in T1 proceeding but with regards to T2 proceeding defendant contested jurisdiction of court and further did not took part in proceedings. In enforcement proceeding in relation to T2 proceeding plaintiff sought to rely on submission of defendant in T1 amounting to submission to the court in case of T2.Scott J rejected the argument that two sets of proceedings constituted ‘one unit of litigation’ and held that the steps taken by the defendant in T1 actions could not be regarded as constituting consent to T2 actions.
Further in case where estoppel per rem judicatum is raised as s defence by a defendant in English proceeding then in such situation original court is obviously regarded as a court of competent jurisdiction.29
26. Boissiere & Co v Brocker & Co (1889)6 TLR 85.
27. Cave J in Rein v Stein (1892) 66 LT 469.
29. Emanuel v Symon  1 KB 302.
(III). Situation that would not be considered for jurisdiction.
From above investigation into the jurisdictionally competence of foreign court it is clear that foreign judgement will be actionable in England where the defendant was resident or was present in the country of forum at the time of action or where he himself submitted to the jurisdiction.
The fact that defendant is national of country where the foreign judgement is obtained is not sufficient to justify the recognition or enforcement of judgement.30
It is clear that a foreign court is not be regarded as court of competence because the party against whom the judgement is invoked owns property within jurisdiction of such court and even partnership contract relating to the property in that jurisdiction will be insufficient31Its also logical to me if person against whom judgement is given is domiciled in that country is insufficient to invoke jurisdiction independently.
Further, fact that claim arose out of events which occurred within jurisdiction of the original court is irrevalant.32
English court are prepared to exercise jurisdiction over foreign defendant in case where England is thought to be forum conveniens under CPR 6.36, would not give authority to foreign court to exercise jurisdiction on similar basis.33
A foreign court will not be regarded as court of competent jurisdiction on question relating to title to, or the right to the possession of, immovable property outside its country.34
30. L Collins et al, Dicey,Morris and Collins on The Conflicts of Laws ( London, Sweet & Maxwell, 14th edn, 2006) para 14-078.
31. (n 29).
32. Sirdar Gurdyal Singh v Rajah of Faridkote  AC 670.
33. Schibsby v Westenholz (1870) LR 6 QB 155.
34. (n 30) para 14R-099.
2. Recognition and enforcement of Judgements IN REM
The judgement in rem is defined as judicial determination of existence of right over the property.35A judgement in rem does not resolve the rights and duties of the parties to litigation as in personam. It determines possession or ownership of the res and is decisive with regard to entire world.
The basis for recognition and enforcement of judgement in rem is same as in case of judgements in personam. The difference is only where a foreign court which grants a judgement in rem with respect to movable and immovable property is to held competent jurisdiction only if the property in question was situated within territorial jurisdiction of the foreign court at the time of commencement of proceedings.36
According to me residence must be considered while determining jurisdiction of foreign court. Reason for that, if temporary presence is acceptable basis for determining jurisdiction, then I think there seems no reason why not residence of person in the country should considered which determines more significant link with the country. At least when defendant’s residence is accompanied by presence must be accepted while determining jurisdiction of foreign court.
I think court made mistake in Adam v Cape industries plc to determine relevant territorial jurisdiction. In above case question was whether plaintiff has to establish that defendant was present particularly in Texas or else presence anywhere in United States was sufficient. The court concluded that presence in somewhere in U.S. is enough to give jurisdiction. Reason given by the court for such finding was that there is distinction between state and federal matters and there is national jurisdiction in federal matters under the law of the United States. For an instance a judgement given by Texas court against English resident who carries business in Japan has no basis for recognition in England. Same is with regard to English resident carrying on business in Chicago. “The fact that Chicago is in U.S. does not make Texas any the less a foreign court for a resident in Illinois than if Chicago were in France.”37 If you investigate matter you will find that statutory provisions exist for the registration of federal court judgements of a state court-in the sense that it is regarded as a foreign court judgement for the enforcement purpose, but on the contrary court appeal thought that there is no national jurisdiction in the federal matter.
35. Briggs  LMCLQ 129.
36. Gas Transport Corporation v The Official Committee of Unsecured Creditors of Navigator Holdings plc  1 AC 508.
37. (n 12).
The view of court of appeal will create a problem where judgement of state court would be enforceable in England even though it is enforceable in any other part of Political state. Such problem can be solved to some extent by applying Canadian approach which is discussed below in detail.
Further consent given by the defendant to the jurisdiction of original court should be sufficient to confer jurisdiction even if it is non-contractual representation, if such representation is intended to be relied upon or there must be reasonable ground for claimant to believe such representation. But it was held in Adams v cape industries plc that such non-contractual representation is ‘of no legal effect if not acted upon or withdrawn before being acted on’38.
Real and substantial connection test(Canadian approach):
In Canada a judgement granted by the another province is entitled to recognition and enforcement provided a judgement granting court has acted carefully and with due care and in appropriate manner and given judgement has “a real and substantial connection with the action”.39 The supreme court of Canada in beals v saldhanha has extended this approach to the recognition and enforcement at common law of judgements decided outside Canada.40 I think Canadian approach should be applied by the English court while determining the jurisdiction of the foreign court. This will solve the problem which English court faced in case of federal states (which is made of different law districts). It is rightly said that such approach is “the need in modern times to facilitate the flow of wealth, skills and people across the state lines in fair and orderly manner.”41 The threat to protect the innocent defendant who has been subjected to the injustice abroad can be removed by redeveloping the natural justice and public policy defences.42
38. (n 12).
39. (n 14) 531.
40. 2003 SCC 72.
41. LA Forest J in Morguard, supra, at 269.
42. (n 14) 531.
The common law on the recognition and enforcement of foreign judgments was designed and constructed in the England of a century ago. Most English jurisprudence since then has pleased itself with confirming the continuing validity of old truths. But still the common laws choice of law has worked best till now. But the judgement of Supreme Court of Canada in Beals v. Saldanha provides opportunity us to develop the law by measured steps, and with a greater sensitivity. It is true that applying Canadian approach as whole would harm the interest of innocent defendant but it can be possible to protect innocent defendant by re-examining and developing the rules on natural justice and public policy defences. The need of modern business community and further development in wealth and prosperity of state cannot be also ignored against such harm.
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