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Rough Draft of World Legal System


Dr. Ram Manohar Lohiya National Law University, Lucknow

A Rough Draft submitted for the Project in the
B.A. LLB (Hons.) (VIIIth Semester) Course in World Legal System

On the topic-
Enforcement Of Foreign Decree: Comparison Between Common
Law And Continental Law Countries

Sudhir Kumar Singh Mr. Shashank Shekhar
Roll No. 138 Assistant Professor (Law)
B.A. LLB (Hons.) Dr. RMLNLU
VIIIth Sem. Sec. B

Rough Draft of World Legal System



The aim of this project is to study and analyse the enforcement of foreign laws and decrees
passed under them in common law countries and continental law countries. Also, to analyze
the difference in enforcement of foreign decrees in the different legal systems, how do they
differ in recognition of judgments given by foreign courts.

The method of research adopted for the purpose of the project shall be doctrinal research
generally known as arm-chair research; however analytical and critical approach shall be
adopted in particular for understanding the approach towards enforcement and recognition of
foreign decrees.

1. Introduction

2. Enforcement Of Foreign Decree In India
3. Enforcement Of Foreign Decree In The Uk
4. Enforcement Of Foreign Decree In France
5. Enforcement Of Foreign Decree In Germany
6. Enforcement Of Foreign Decree In Italy
7. Conclusion
8. Bibliography
Rough Draft of World Legal System


Brief Introduction
English courts have recognised and enforced foreign judgments from the 17
onwards. It was at one time supposed that the basis of this enforcement was to be found in the
doctrine of comity. English judges believed that the law of nations required the courts of one
country to assist those of any other, and they feared that if foreign judgments were not
enforced in England, English judgments would not be enforced abroad.
But later this theory
was superseded by what was called the doctrine of obligation, which was stated by Parke B in
Russell v. Smyth
and approved by Blackburn J. in Godard v. Gray
The emerging legal issues on jurisdiction as regards transactions over the internet can
hardly ignore the legal aspects involved in the execution/enforcement of foreign decrees.
Even after exercise of jurisdiction, the Courts may be unable to help the plaintiff in getting
relief in case the local laws of the country concerned have certain restrictions for the
execution/enforcement of foreign judgments or decrees in the country.
With the advent of globalisation and with India poised as a major international and global
player in the world economy, it is apposite to consider the law concerning enforcement of
foreign judgments in India. This is primarily enshrined in Section 13

of the Code of Civil
Procedure, 1908, which is a rather slender section; despite its brevity in terms of the statute,
it has been subjected to the judicial scrutiny of various High Courts and the Supreme Court of
India, through a tapestry of significant case law. The subject of the present article falls within
the ambit of what is considered in law as the doctrine of conflict of laws or what has often
been described as Private International Law.
A trenchant exposition of this subject has been eloquently summarised by J H C Morris, in
his classical treatise, The Conflict of Laws
in the following terms: The conflict of laws is
that part of the private law of a particular country which deals with cases having a foreign
element. Foreign element simply means a contact with some system of law other than that of
the forum, that is the country whose courts are seized of the case. The Code of Civil
Procedure, as its name suggests, governs all aspects of civil procedure. It is therefore
somewhat surprising to find this law ensconced in an otherwise elaborate statute concerning

See Roach v. Garvan, (1748) 1 Ves.Sen. 157, 159
(1842) 9 M. & W. 810
(1870) L.R. 6 Q.B.
Morris: The Conflict of Laws: 5th Edition by David McClean, 2000, London, Sweet and Maxwell page 2
Rough Draft of World Legal System


procedural law. The Supreme Court of India has held in Sardar Maloji Nar Singh Rao vs.
Sankar Saran,
that the rules laid down in Section 13 are rules of substantive law and not
merely of procedure.
Under Indian Law, execution of decrees, whether foreign or domestic, is governed by the
provisions of the Code of Civil Procedure, 1908 (CPC) (as amended from time to time).

Under the Indian law there are two ways of getting a foreign judgement enforced. Firstly, by
filing an Execution Petition under Section 44A of the CPC (in case the conditions specified
therein are fulfilled) and secondly, by filing a suit upon the foreign judgement/decree.
Under S. 44A of the CPC, a decree of any of the Superior Courts of any reciprocating
territory are executable as a decree passed by the domestic Court. Therefore in case the
decree does not pertain to a reciprocating territory or a superior Court of a reciprocating
territory, as notified by the Central Government in the Official Gazette, the decree is not
directly executable in India. In case the decree pertains to a country which is not a
reciprocating territory then a fresh suit
will have to be filed in India on the basis of such a
decree or judgment, which may be construed as a cause of action for the said suit. In the fresh
suit, the said decree will be treated as another piece of evidence against the defendant
Mode of Enforcement of Foreign Judgments
A foreign judgment which is conclusive under Section 13 of the Code of Civil Procedure,
1908, can be enforced in India by:
1. instituting a suit on such judgment; or
2. by instituting execution proceedings.
A foreign judgment may be enforced by instituting a suit on such foreign judgment. The
general principle of law is that any decision by a foreign court, tribunal or quasi-judicial
authority is not enforceable by a country, unless such decision is embodied in a decree of a

Sardar Maloji Nar Singh Rao vs. Sankar Saran AIR 1962 SC 1737 (at page 1741)
In the present paper only enforcement of foreign decrees is discussed.
Refer Moloji Nar Singh Rao v. Shankar Saran, AIR 1962 SC 1737 at p. 1748 para 14. Also see I & G
Investment Trust v. Raja of Khalikote, AIR 1952 Cal. 508 at 523 para 38.
Rough Draft of World Legal System


court of that country.
A suit on a foreign judgment must be filed within a period of three
years from the date of the judgment.

Execution Proceedings
A foreign judgment may also be enforced by proceedings in execution in certain specified
cases mentioned in Section 44-A of the Code of Civil Procedure, 1908. The case
of M.V.A.L. Quamar vs. Tsavliris Salvage (International) Ltd. and others
provides a
fascinating insight concerning the interpretation of Section 44A of the Code of Civil
Procedure, 1908 and contains an excellent overview of this very significant aspect of
enforcement of foreign judgments.
Enforcement of Foreign Awards
Indias global exposure in international arbitration is well-known. Ever since the enactment
of the Arbitration and Conciliation Act, 1996, there has been a surge in international
commercial arbitration. It is noteworthy that the Arbitration and Conciliation Act, 1996,is
based on what is popularly known as the UNCITRAL model. [The United Nations
Commission on International Trade Law (UNCITRAL) adopted the Model Law on
International Commercial Arbitration in 1985]. With foreign direct investment flowing into
India surely and steadily, international commercial arbitration with an India-centric focus is
gaining momentum. In this context, the question of the enforcement of foreign awards has
formed the subject of intense judicial debate. It is interesting to observe that the Legislature in
its wisdom has consciously chosen to statutorily incorporate international covenants into
domestic law. These are contained in Part II of the Arbitration and Conciliation Act,
1996 and include Chapter I, being the New York Convention Awards, and Chapter II, being
the Geneva Convention Awards.
Foreign judgments may be enforced in the UK in one of three different ways, as follows:-
1. (1)European Judgments - Judgments of foreign States signatories to the Judgments
Regulation 2000 (which replaced the Brussels Convention on jurisdiction and the

[1964] 4 SCR 19
Badat and Company vs. East India Trading Company (1964) 4 SCR 19; Roshanlal vs. Mohan Singh, (1975)
4 SCC 628
[ 2000] 8 SCC 278
Rough Draft of World Legal System


enforcement of judgments in civil and commercial matters of 1968 for all EU
countries save for Denmark) and the Lugano Convention which applies to EFTA
2. (2)Judgments of Commonwealth States and States with which the UK has a bilateral
Treaty; and
3. (3)Judgments from courts of foreign States with which there is no treaty.
Once the judgment is registered, or declared enforceable, it is treated for the purposes of
English law as equivalent to a High Court judgment.


1. Class Action Judgment Enforcement in Italy: Procedural Due Process Requirements;
Dreyfuss, Richard H., 10 Tul. J. Int'l & Comp. L. 5 (2002)
2., viewed on 16

October, 2011
3., viewed on 16

October, 2011
4. James C. Regan, The Enforcement of Foreign Judgments in France under the
Nouveau Code de Procdure Civile, 4 B.C. Int'l & Comp. L. Rev. 149 (1981)