SVKM’S

NMIMS SCHOOL OF LAW

A PROJECT SUBMITTED ON:

ROLE OF JUDICIAL DECISIONS AS A SOURCE OF PUBLIC
INTERNATIONAL LAW
IN COMPLIANCE TO PARTIAL FULFILLMENT OF THE MARKING
SCHEME, FOR TRIMESTER IX OF 2017-2018, IN THE SUBJECT OF PUBLIC
INTERNATIONAL LAW
SUBMITTED TO FACULTY:
PROF. UNNI RAMACHANDRAN
FOR EVALUATION
SUBMITTED BY:
KARAN SHARMA (A043)
B.A., LL.B. (HONS.)

RECEIVED BY: ____________________________

ON DATE: __________ TIME: _________

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 BASIS OF RECOGNITION OF FOREIGN JUDGMENTS – ENGLISH POSITION

ABSTRACT

The application of a law is generally limited within the territory where the particular law has
been enacted. This led to conflict of laws, as for instance if a person has obtained a judgment
against the wrongdoer say in France but the wrongdoer meanwhile secretly shifts its assets in
England then the person would have no remedy at all. However, Private International Law
has now reversed the situation and framed rules on this behalf whereby a judgment of foreign
court can be enforced in England. This article aims at analyzing the rules and procedures
enacted for the said purpose and further analyze those as judgments which have been
recognized and enforced by the English Courts and their procedures. The article further aims
at analyzing the enforcement of US judgments in the English courts as there being no treaty
or convention between the two for the same.

RECOGNITION AND ENFORCEMENT OF JUDGMENTS

The law pertaining to the recognition and enforcement of foreign judgments which then forms
the basis of recognition of these judgments can be found in different sources some of which are
the treaties, statutes and the common law. The procedure for the enforcement of a foreign
judgment is thus well defined & the most important ground which is to be considered for the
enforcement of the same is the country itself. In order to enforce a judgment the country of origin
can either be:1

 A country which is the member of EU and/or a signatory to the Brussles Regulation or

Lugano Convention.
 A signatory with the UK to other bi-lateral conventions which are given effect by the
Administration of Justice Act & the Foreign Judgments Act.
 One where there are no reciprocal rights of enforcement with the UK & the common law
of the enforcing country.

1
http://www.pannone.com/sites/default/files/Enforcement%20of%20English%20Judgments%20Abroad%20and%20
Foreign%20Judgments%20in%20England%20and%20Wales_E.pdf

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Thus it is necessary to understand the applicability of these Rules & Conventions before a person
can file for enforcement of foreign judgment in England2.

European Enforcement Order

In order to put forth a straightforward, quicker and cheaper mechanism for enforcement of
judgment the European legislation has created the EEO. For enforcing the same the concerned
person has to obtain an EEO certificate from the court of origin. The effect of certification is that
it can be enforced in the other country as if it were a judgment of that country.

The Brussels Regulation

To benefits under this Regulation can be availed by those who cannot enforce the judgment
under the EEO and the regulation is applicable to all the EU members. It applies proceedings
which are generally civil and commercial. However, court orders in matters of bankruptcy,
insolvency and criminal matters are not covered within the ambit of these regulations. The
Regulation further does not apply to arbitration proceedings.

The Lugano Convention

The Convention contains the same provisions as has been framed under the Brussles Regulations
& governs the enforcement of judgments between Iceland, Switzerland and Norway and all the
pre – 2004 EU States.

Other bilateral enforcement arrangements

These arrangements can be put into force when there is an enforcement issue & the same is not
covered by either of the Conventions or Regulations or the EEO procedure. In such
circumstances the person who wishes to enforce the judgment in England can rely on the
enforcement procedure as has been laid down under Administration of Justice Act, 1920 & the
Foreign Judgments Act, 1933. Commonwealth countries and Crown State are covered within the
scope of this Act.

2
https://www.out-law.com/topics/dispute-resolution-and-litigation/enforcement/enforcing-foreign-judgments-in-
england-and-wales/

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Enforcement under Common Law

Where there are no reciprocal agreements between the EU countries, the law of the enforcing
country alone will apply which means that the person who wishes to enforce the order has to
start fresh proceedings in that country. This in turn consumes lots of time and money & the case
again has to be fought on merits.

A judgment which is so intended to be enforced in an English Court has to first register and for
the same the judgment itself or a certified copy has to be submitted and if required the same has
to be translated into English if the same is in a different language along with an affidavit to that
support the same.

Enforcement of Penal Judgments

Though in the ordinary course, the judgments of foreign courts are accepted and enforced by in
the English courts yet there is an exception when it comes to those judgments which are penal or
revenue based and the same forms an essential part of conflict of laws. The rule was further
explained by Lord Watson in in Huntington v Attrill3

"The rule has its foundation in the well-recognized principle that crimes, including in that
term all breaches of public law punishable by pecuniary mulct, or otherwise, at the
instance of the State Government, or of someone representing the public, are local in this
sense, that they are only cognizable and punishable in the country where they were
committed.4"

Estoppel

There can be situations in law where for example a party has obtained a judgment in a foreign
court but is of the belief that the same if would have been obtained in an English Court would be
more beneficial to the party, there applies the rule of estoppel. The rationale behind the same is
to prohibit the judgment receiver from exploiting the provisions of law and to avoid double
application of a judgment so as to safeguard the interest of the person against whom the
judgment has been obtained. The basis of this principle is that the English court recognizes the

3
[1893] AC 150
4
http://www.mondaq.com/uk/x/84790/Arbitration+Dispute+Resolution/Enforcement+Of+Foreign+Judgements+In+
England

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validity of a foreign judgment in respect of a claim or cause of action as between the same
parties. Similarly, if the party was unsuccessful in the foreign court and wanted to try again in
England, the defendant would claim that the case is res judicata.

Limitation period

Another important aspect to be considered while filing an application for enforcement of a

foreign judgment is the limitation period which has been provided for in the rules, regulations &
conventions framed for the specified purposes. An application is to be made within 12 months of
the date of the judgment, though it is at the discretion of the courts to entertain applications after
the expiry of 12 months.

ENFORCING US JUDGMENTS IN ENGLAND

An interesting example can be of the US judgments and their enforceability in UK. The two
despite of having close connections do not have a treaty or a convention to that effect, however
the same shall be governed by the principles of English common law. The US judgment will be
viewed as a contract debt between the parties and it has to be noted that it is the debt which will
be enforceable and not the judgment and the same can be done by way of initiating new
proceedings. There is a set of criteria laid down and the same must be examined before enforcing
a judgment of the US in UK. Accordingly there are six important factors to be considered5:

1. Jurisdiction

Jurisdiction is important when it comes to enforcing a judgment in the English court. Therefore,
it is important for the English courts to satisfy that the judgment debtor was either present in the
US when the proceedings were commenced or entered in appearance in the US proceedings or
otherwise had expressly submitted to the jurisdiction of the US court.

5
https://unitedkingdom.taylorwessing.com/uploads/tx_siruplawyermanagement/Enforcing_US_judgments_in_UK.p
df

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 2. Judgment for a definite sum

The judgment obtained must be for a definite and ascertainable sum to be enforced in England.
Thus it has to be noted that only a judgment in which the final costs are mentioned will be
enforceable and declaratory judgment to that effect would not be enforceable. Further the courts
will not entertain judgments relating to foreign or revenue directly or indirectly.

3. Final and conclusive judgment

Another important factor before filing for the enforcement of foreign judgment in England is the
finality and the conclusiveness of the judgment. The existence of a debt is thus of primary
importance and the same shall be heard by and finally decided and concluded by the US court. If
the criteria is fulfilled then the judgment debtor can commence proceedings in the English court
to enforce the judgment which has been passed in his favor. Since finality and conclusiveness are
key factors for enforcing the same, if there exists a situation where the US proceedings may be
subjected to appeals in the higher court then the English courts are at a liberty to stay the
proceedings until the disposal of the appeal.

4. Fraud

If the judgment has been obtained by fraud and the issue is put before an English court then the
same would not be recognized and enforced in England. It is that situation wherein the English
courts will consider re-examining the issues in the case for which fraud has been alleged upon by
the concerned party and the same will be looked upon despite of them being considered by the
US court.

5. Public Policy

If the judgment so obtained appears to be in contravention to the public policy, then the same
shall not be enforced in England. For instance, punitive damages are not awarded and only the
basic damages are provided for. However, on account of there being similarities between laws of
both the countries it is rare for a US judgment to offend and go against the principles of UK.

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 6. Natural or substantial justice

Natural justice in any legal system is the key aspect for determining and reaching a conclusion.
Similarly, if the English courts are of the belief that the proceedings in US were conducted so as
to offend the principles of natural justice then the same would not be enforceable. This is one of
the most common defence which is raised by the person against whom the judgment is made
enforceable. The English court will then consider the case on merits except for in a situation
where the proceedings were conducted in accordance with the laws of the relevant US court.

The most common defence which is raised is of lack of notice and there a judgment debtor must
be in a position to the demonstrate the same as the burden of proof now is on the judgment
debtor to prove that the judgment was not obtained by violating natural justice.

CONCLUSION

On an analysis of the rules and procedures framed for the enforcement of foreign judgments in
English courts it can be said that the same is a smooth process and does ensure justice to the
parties. While framing the rules and procedures in this regards, the framers further have taken
care of all the possible situations for which there existed a probability. It can be said that there
are well defined rules and regulations laid down for the enforcement of foreign judgments and
the judgment debtor can in either ways get the judgment enforced. As for instance, if the same
does not fulfill the criteria laid down under the EEO, the judgment debtor if a member of the EU
can abide by the Brussles Regulation or the Lugano Convention and get the judgment enforced
in the English Court.

To conclude it can further be said that treaties and conventions form the basis for recognition of
judgments in the English courts. The actual problem arises in cases where there is no treaty or
convention between the two countries but the order has to be made enforceable in England. It
can be said that the English courts have not adopted a rigid approach for the same and have laid
down six important elements to on the fulfillment of which a judgment can be enforced despite
of there being not treaty, convention or bi-lateral arrangement between the two. One of the most
interesting examples is of the US; there exists not treaty or convention for enforcement of US
judgments in UK yet they are made enforceable if not opposed to natural justice or public policy

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and other similar grounds. It can be rightly inferred that rules and procedures framed in this
behalf thus expedite the facilitation of justice.

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