#3624 - Recognition And Enforcement Of Foreign Judgments - Conflict of Laws

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 than a minimal period of time has carried on its own business at or from that place via its servants or agents.

• Adams v Cape Industries [1990]

• D is NOT made present in State A merely by virtue of:

• selling goods into State A

• advertising in State A

• or running a website that is accessible in State A

• Lucasfilm v Ainsworth [2011]

• Where D is not present in State A, is irrelevant that one of D’s directors has had claim form served on him whilst on business trip in State A.

• Littauer [1928]

2. Indirect Presence

• Company is present in State A if:

• a representative of company has been carrying on that company’s business in State A, at or from a fixed place of business for more than a minimal period of time.

• Adams v Cape Industries [1990]

• Whether representative has been carrying on D ‘s business depends upon:

• extent to which D finances business carried out by representative

• way in which representative is remunerated

• i.e. commission (less likely), fixed regular payments (more likely)

• degree of control exercised by D

• whether representative displays D’s name on premises/stationery

• whether representative makes contracts on behalf of D

• and if so, whether he requires specific authority of D in advance

• this factor particularly important

• Adams v Cape Industries [1990]

  Submission

• Emmanuel v Symon grounds (3) – (5).

• I.e. D submitted to jurisdiction of State A where he:

1. voluntarily took part in proceedings;

2. took part in proceedings as claimant; or

3. consented to jurisdiction of State A.

1. Voluntary Submission

1. No ‘implied submission’

   if D submits to one set of proceedings brought by C in State A, does not mean he automatically submits to related proceedings brought by C in same court in State A.

   For D to impliedly submit to later proceedings, must be some connection between two claims.

   i.e. so that they are effectively ‘one unit of litigation’

   Adams v Cape Industries [1990]

2. Law of Foreign Court

   State A has higher threshold

   if State A does not characterise D’s conduct as amounting to appearance, English court will not regard it as submission

   Adams v Cape Industries [1990]

   State A has lower threshold

   even if State A regards D as having submitted, this irrelevant if this does not amount to submission in English law

   Akai v People’s Insurance [1998]

3. Exceptions in CJJA 1982

   If D appears in proceedings in State A, does not mean he has submitted to proceedings if one of exceptions in CJJA 1982 applies.

   Section 33(1): D not regarded as having submitted to jurisdiction of State A if he only appeared in proceedings to either:

1. Contest jurisdiction of court

2. Ask court to dismiss or stay proceedings on grounds that dispute should be submitted to another country/arbitration

3. Protect or obtain the release of property threatened with seizure

   Where D’s primary defence to State A proceedings is that State A lacks jurisdiction, D does not submit provided he does not in a way inconsistent with this

   Marc Rich [1992]

   However even if D first argues that State A lacks jurisdiction, submits if he later files second defence which argues case on merits

• Marc Rich [1992]

2. Took Part as Claimant

   D submitted to proceedings in State A where he instigated proceedings in State A as C.

3. Consented to Jurisdiction

   D submitted to proceedings in State A where he consented to State A’s jurisdiction.

   Such consent normally shown by e.g. jurisdiction clause in contract.

Irrelevant Factors

Grounds for when a foreign judgment will be recognised determined exclusively by English law

Buchanan v Rucker [1808]

Thus when deciding if foreign court has...