INTERNATIONAL LAW: CONFLICT OF LAWS: FAMILY LAW PART-1

A foreign judgment does not have any direct effect in England, but it can be recognised and enforced under various systems of rules, depending on its country of origin. Enforcement involves the successful party seeking to execute the judgment in England, using normal English methods of execution. Recognition is a lesser step and involves the English court accepting that a foreign court decided on a claim or issue and not permitting it to be re-litigated. This can be relied on as a defence to a claim on the same or connected facts. The rules for enforcement and recognition of foreign judgments depends on the state in which the judgment was given:

Common law: judgments from all states not covered by the regimes below, including from major states such as the USA, China and Russia;

Part II of the Administration of Justice Act 1920 (1920 Act): judgments from a large number of Commonwealth countries and British overseas territories;

Part I Foreign Judgments (Reciprocal Enforcement) Act 1933 (1933 Act): judgments from other major Commonwealth countries, the Channel Islands, the Isle of Man and some other countries;

Regulation 44/2001 (Brussels Regulation): judgments from EU member states, and the identical Lugano Convention for judgments from EEA states (Iceland, Norway and Switzerland);

Part II of the Civil Jurisdiction and Judgments Act 1982 (1982 Act): judgements from other parts of the UK.

COMMON LAW

At common law, a foreign judgment will be enforced and/or recognised in England if it satisfies the following criteria:;

  • the judgment is for a debt or definite sum of money;
  • the judgment is final and conclusive on the merits;
  • the court which gave the judgment had jurisdiction over the defendant, as viewed by English rules of the conflict of laws;
  • the judgment cannot be impeached on the grounds of fraud, public policy or breach of natural justice.

Judgment for a debt: The judgment must be for a definite sum which has been ascertained by the foreign court, including judgments for debts, assessed damages and costs. If the judgment is for some other relief, such as an injunction or specific performance, it cannot be enforced in England, but may be relied on to create a res judicata or issue estoppel on the underlying issues. The English court will not enforce foreign penal or revenue judgments, that is judgments which order sums payable to the state rather than a private claimant. In a criminal case in which the defendant is ordered to pay compensation, the English court will sever the criminal decision and enforce the judgment for compensation.

Final and conclusive: The judgment must be "final and conclusive" on the merits, so that it creates a res judicata between the parties: Nouvion v Freeman (1889) 15 App. Cas. 1. It must conclusively determine the existence of the debt and not be subject to revision or setting aside by the court which gave it. A default judgment may be final and conclusive, if the foreign law considers it final unless subsequently varied; but not if it can be revised when it is enforced. A right of appeal to a higher court does not affect the finality of the judgment; a judgment is final even if an appeal against it is pending, but the English court would usually stay enforcement to wait for the appeal.

Jurisdiction of the foreign court: For a foreign judgment to be capable of enforcement or recognition, the foreign court must have had jurisdiction in personam over the defendant, from the perspective of English conflict of laws rules. That the foreign court had jurisdiction under its own law is irrelevant if this does not satisfy English rules. Jurisdiction is established in any of the following cases:-

  • the person against whom the judgment is made was present in the foreign country at the time of the proceedings;
  • the person was a claimant or brought a counterclaim in the foreign proceedings;
  • the person appeared in the foreign court;
  • the person agreed to submit to the jurisdiction of the foreign court.

Presence: Presence can be permanent or temporary, even a brief visit to the country: Carrick v Hancock (1895) 12 TLR 59, but it must be voluntary and not induced by force or fraud. Companies are present in a foreign country if they have a fixed place of business or representative carrying on business, for more than a minimal time: Adams v Cape Industries Plc [1990] Ch. 433.

Claimant or counterclaimant: A party who brings a claim or counterclaim in a foreign court submits to its jurisdiction and must accept the judgment should it go against him.

Appearance: A defendant who appears in a foreign court and participates in a case on the merits accepts the court's jurisdiction. Under s.33 of the 1982 Act a defendant is not regarded as having submitted to the jurisdiction if he only appears to (a) contest jurisdiction, (b) ask for a dismissal or stay of proceedings because the dispute must be submitted to arbitration or to the courts of another country, or (c) protect or obtain the release of property seized or threatened in the proceedings. If after doing one of those things, the defendant goes on to contest the merits, he will have submitted to the jurisdiction. Steps taken by a defendant which would not be regarded by the foreign court as a submission to the jurisdiction will not be regarded as such by the English court: Adams v Cape Industries Plc [1990] Ch. 433 at 461 per Scott J. Even if the foreign court would regard steps taken by a defendant as a submission, it is still open to the English court to find there was no submission for English conflict of laws rules: AES Ust-Kamenogorsk Hydropower Plant LLP v Ust-Kamenogorsk Hydropower Plant JSC [2011] EWCA Civ 647; [2012] 1 W.L.R. 920. So long as the defendant is obviously (and probably with rational grounds) disputing jurisdiction, but also takes steps on the merits, he will not be treated as having submitted to the jurisdiction.

Jurisdiction agreement: If the parties have agreed a contract providing that all disputes shall be referred to the exclusive jurisdiction of the courts of a particular country, those courts along will have jurisdiction. Such agreements must be express and cannot be implied. They can be established by an agreement to accept service at a specified address. Jurisdiction is not established by the fact that the parties chose the law of that country to apply to their agreement, nor for the fact that the cause of action arose in that country.

Jurisdiction not established: Jurisdiction is not established by any of the following matters, although some are relied on by foreign courts: (a) the defendant's possession of property in the foreign country, (b) the defendant's presence in the country when the cause of action arose, (c) the defendant being a national of the country, (d) the defendant being domiciled (but not present or resident) in the country, (e) reciprocity with the courts of the foreign country, (f) a real and substantial connection between the case and the foreign country. Jurisdiction is also not established if the defendant is present in the foreign country but the proceedings are brought in breach of a jurisdiction agreement in favour of the courts of another country (unless the defendant submits or brings a counterclaim).

Jurisdiction in rem: A foreign court has jurisdiction to give a judgment on movable or immovable property situated in the country at the time of the proceedings. However, the foreign court does not have jurisdiction to determine the title to or possession of immovable property situated outside that country. (There may be exceptions to this rule, based on the equivalent rule limiting English jurisdiction, such as where there is a contract or equity between the parties, but none have yet been formulated in case law: Dicey, Morris & Collins at para.14-114.)

Defences: An action to recognise or enforce a foreign judgment can be defended on the grounds that the above criteria are not met. There are also specific free-standing defences: where the judgment can be impeached for fraud, where its enforcement or recognition would be contrary to public policy, or where the proceedings in which it was given were contrary to natural justice.

Fraud: A foreign judgment can be impeached for fraud committed either by the successful party, or by the court which gave the judgment. Fraud includes bribing witnesses or the judge, or giving perjured or forged evidence. It can conceivably also be fraud by the court in receiving a bribe from a third party to give judgment in favour of a particular party to the case, although this can also be considered as a breach of natural justice.

English domestic judgments can only be set aside for fraud with evidence discovered after the trial and which could not reasonably have been discovered earlier. In contrast, foreign judgments can be impeached for fraud without any newly discovered evidence, even if fraud could have been alleged in the foreign proceedings, or even if it was alleged and rejected in those proceedings: Abouloff v Oppenheimer & Co (1882) 10 Q.B.D. 295. Doubts were expressed about this decision in subsequent cases and in Commonwealth authorities, but it was applied by the Court of Appeal in Jet Holdings Inc v Patel [1990] 1 Q.B. 335 and by the House of Lords in Owens Bank Ltd v Bracco [1992] 2 A.C. 443 (a decision on the equivalent rule in the 1920 Act).

Public policy: The cases decided under this head do not offer a consistent set of principles for what is covered by public policy, but it includes the following. In principle it will be contrary to public policy to recognise a judgment obtained in disobedience to an injunction not to proceed with the case in a foreign court: AK Investment CJSC v Kyrgyz Mobil Tel Ltd [2011] UKPC 7; [2012] 1 W.L.R. 1804 at para.121. Res judicata is a principle of public policy, so that a foreign judgment will not be recognised if it inconsistent with an earlier decision of the English court in proceedings between the same parties or their privies: Vervaeke v Smith [1983] 1 A.C. 145, ED&F Man (Sugar) Ltd v Haryanto (No.2) [1991] 1 Lloyd's Rep. 429. It has not been decided whether to enforce a judgment which is exemplary, punitive or manifestly excessive is contrary to public policy.