Recognition & Enforcement of Judgments Under English Modern Rules 1

TOPIC: RECOGNITION AND ENFORCEMENT OF

JUDGMENTS UNDER ENGLISH MODERN RULES

SUBJECT: PRIVATE INTERNATIONAL

LAW

PROJECT WORK
SUBMITTED TO: P.P.RAO

CHANAKYA NATIONAL LAW

UNIVERSITY
SUBMITTED BY:
JYOTSANA SINGH, 1328
9TH SEMESTER
 Recognition & Enforcement of Judgments Under English Modern Rules 2

ACKNOWLEDGEMNT

Though only my name appears on the cover of this research project, a great many other people
have contributed to its production.

First of all i would like to thank god almighty, whose blessings helped me in completing the
project. I take this opportunity to express my profound
pro gratitude to Sir P.P.Rao,
P.P.R faculty of
Private International Law, Chanakya National Law University for her exemplary guidance,
monitoring and constant encouragement throughout the course of this thesis. The blessing, help
and guidance given by her time to time, carried me in the long way of the making of this project.
I am also indebted to many friends who have helped me stay stable through this period. Their
support and care helped me overcome setbacks and stay focused on my project work. I greatly
value their friendship.
Most importantly, none of this would have been possible without the constant concern,
co support
and strength given by my family members during this research work. I would like to express my
heart-felt
felt gratitude to my family.
Jyotsana Singh
9th semester
1328
 Recognition & Enforcement of Judgments Under English Modern Rules 3

TABLE OF INDEX

AIMS AND OBJECTIVES………..……………………………………………4

SOURCES OF DATA……………..….…………………………………………..4

SCOPEANDLIMITATIONS………………..……………………………………4

RESEARCH METHODOLOGY…...…………………………………………….4

I. INTRODUCTION…………….………….….……………………………………5

II. FOREIGN JUDGEMENTS IN THE HOUSE OF LORDS ..……….…..………...7

..……….

III. 1968 BRUSSELS CONVENTION AND 1988 LUGANO CONVENTION….....9

CONVENTION CONVENTION….

IV. JUDICIAL PROCEEDINGS……….………………….……………………….....1

PROCEEDINGS ……………………….....13

V. CONCLUSION…………………………………………………………………....15

BIBLIOGRAPHY…………………………………………………………………16
 Recognition & Enforcement of Judgments Under English Modern Rules 4

I. INTRODUCTION

The role and character of Private International Law has changed tremendously over the past
decades. With the steady increase of global and regional inter-connectedness the practical
significance of the discipline has grown. Equally, so has the number of legislative activities on
the national, international and, most importantly, the European level.

In reality, how foreign law is established, and whether it must be established at all, are central
issues in private international law. Whether litigants are free to ignore the foreign elements in a
dispute goes to the heart of the conflicts process, and without effective means to establish foreign
law the very purpose of that process is subverted. Such issues give rise to particular problems in
English law. It is often unclear whether the rules for choice of law are mandatory, and whether
the application of foreign law is therefore required. The cost and uncertainty of establishing
foreign law may also affect how cases are argued and decided, and may discourage litigants from
suing at all. The first point to note is that the residence, nationality, domicile or presence of the
person bringing the claim is not directly relevant to the question of jurisdiction. In fact, it is quite
possible (although unusual) for the claim to progress all the way through to trial and judgment
without the claimant setting foot in England.

The first question the English court will ask is, whether it has jurisdiction over the proposed
defendant. Looking at the rules that apply to a defendant who is not resident in the UK, an EU
state, or in Switzerland, Iceland or Norway, these may of course be the rules that apply when the
UK leaves the EU.

The basic rule is that the English court has jurisdiction over a non-resident, non-EU defendant if
either:

(1) the defendant can be served with court papers within England and Wales or

(2) all the claims against the defendant fall within at least one of the categories of dispute over
which the court is prepared to assert jurisdiction. Whether the court will actually exercise that
jurisdiction depends on the factors mentioned below.
 Recognition & Enforcement of Judgments Under English Modern Rules 5

What to expect if jurisdiction is disputed?

Bringing a claim before the English courts with a substantial foreign (non-EU) element is quite
possible, but does require a number of hurdles to be carefully overcome. Permission to serve
may need to be obtained, service on the defendant in another country must be correctly executed,
and any challenge by the defendant dealt with. If the claim involves multiple defendants, a
mixture of contract and tort, or questions of foreign law, a dispute over jurisdiction can be
lengthy and complex. It is, though, a preliminary hearing and a full consideration of the merits
and evidence in the case will not be needed. The court will make its decision according to which
party has ‘the better of the argument’. Once the issue is decided and any appeal dealt with, the
parties can focus on resolution of the actual dispute.

AIMS AND OBJECTIVE:

 To study the requisite for recognition of judgments under English Modern rules..
 To understand the working of English Courts in the matter containing foreign element..
 To study the conventions and articles regulating the application and behavior.

HYPOTHESIS:
Foreign judgments and foreign laws have been used by the Law Lords in the House of Lords as a
comparative aid for the interpretation of English law with increasing regularity, both in a
supplementary manner as well as substantively. It has been noted that the Commonwealth’s past
has meant that the House of Lords is more accustomed and open to the use of comparative law
than other jurisdictions.

RESEARCH METHODOLOGY:
The researcher in her research work has adopted the doctrinal methodology of research.
 Recognition & Enforcement of Judgments Under English Modern Rules 6

SOURCES OF DATA:
For doing the research work various sources has been used. Researcher in the research work has
relied upon the sources like many books, Law Reports, Journals, online sources.

SCOPES AND LIMITATIONS:

Due to scarcity of enough time, the project is based on information derived from other sources,
and very less aspects of practically derived facts and knowledge could be incorporated.
 Recognition & Enforcement of Judgments Under English Modern Rules 7

II. FOREIGN JUDGEMENTS IN THE HOUSE OF LORDS

The use of comparative law in England is neither unfamiliar nor insignificant. The legal system
of the country itself has been described as straddling two worlds: “it has one foot in the ius
commune novum with the legal systems of Continental Europe and the other in the ‘unity of
common law’ with the legal systems in the Commonwealth and the USA,” as well as having a
mixed jurisdiction within the United Kingdom with Scotland.

Foreign judgments and foreign laws have been used by the Law Lords in the House of Lords as a
comparative aid to the interpretation of English law with increasing regularity, both in a
supplementary manner as well as substantively. It has been noted that the Commonwealth’s past
has meant that the House of Lords is more accustomed and open to the use of comparative law
than other jurisdictions.

The incorporation of the European Convention on Human Rights into the national law of the
United Kingdom by the Human Rights Act 1998 placed the UK in a different legal climate. The
directly enforceable rights provided for in the Human Rights Act apply not only to the UK, but
also to a number of other countries, as well as having certain parallels with the Constitution of
the United States. Certain scholars have noted that the explosion of human rights legislation and
treaties has led to a “trans-judicial dialogue on human rights that has blurred the distinction
between comparative constitutional law and international law.”1

It should be noted that the English courts are required by law to take into account decisions of
the European Court of Justice2 and organs of the European Convention on Human Rights.3 Even
prior to the incorporation of these legal obligations, however, the House of Lords had been
utilizing comparative methods from other jurisdictions. In White et al., the Law Lords took a
comparative law approach, with Lord Nicholas noting in the first paragraph of his opinion that
“courts in other jurisdictions had reached opposite conclusions.”4 The judgment in this case

1
Karen Knop, Here and There: International Law in the Domestic Courts, 32 N.Y.U. J. INT’L L. & Pol. 501 (2001).
2
European Communities Act 1972, c. 68 § 3
3
Human Rights Act 1998, c. 42, § 2(1)
4
White et al. v. Jones et al, [1995] 2 AC 207
 Recognition & Enforcement of Judgments Under English Modern Rules 8

referred to cases from New Zealand, Australia, the United States, and Germany. During the trial
the Law Lords were referred to over forty cases of English and foreign law. Lord Steyn
expressly acknowledged that due to the complexity of the case he also referred to academic
writings on foreign law to aid him in his judgment, stating: “such material, properly used, can
sometimes help to give one a better insight into the substantive arguments.” Additionally, during
his opinion Lord Goff expressed reservations over using comparative practices between
Germany’s civil system and England’s common law traditions, but noted that the use of not only
cases but comparative writings aided him, stating:

The House of Lords has, where relevant, used decisions from foreign courts in these cases to
compare how the rights have been interpreted. This applies for not only the European
Convention on Human Rights, but also for a number of other international treaties. For example,
in A v. Secretary of State, foreign cases were used throughout the opinions of the Law Lords,
which was considering the use of evidence that may have been obtained by torture. It noted how
the Torture Convention had been implemented into the law of France, Canada, the Netherlands,
Germany, and the United States.5

During this case, numerous foreign decisions were referred to three from the Supreme Court of
the United States, twelve from the Supreme Courts of six other countries, and others from
international courts and tribunals. Some commentators have noted that the use of so many
foreign cases was a “conscious attempt to put the practice of the UK within a global context and
to upgrade the common law to modern international standards.”6 In fact, the approach of Lord
Bingham was highly commended by an article in the Law Society Gazette, which provided:

Lord Bingham has performed brilliantly in the job for which he was specifically selected in
defiance of the principle of “buggin’s turn”, which would have given it to another. He has
stitched the Human Rights Act into the fabric of our domestic law and, in doing so, aligned our
jurisprudence with that of an emerging global approach. The breadth of the approach of the
House of Lords under his leadership throws into stark relief the decline of its US equivalent, this

5
A et al. v. Secretary of State, [2005] UKHL 71 [35].
6
Roger Smith, Rights and Wrongs: A Hard Act to Follow, L. SOC’Y GAZETTE 105.40(1) (2008)
 Recognition & Enforcement of Judgments Under English Modern Rules 9

was a conscious attempt to put the practice of the UK within a global context and to upgrade the
common law to modern international standards.

In another case, heard by the House of Lords in 2002, Lord Bingham noted at the beginning of
his opinion his apparent favor towards the use of comparative law in achieving a fair and just
outcome that served the ends of justice:

This survey shows, as would be expected, that though the problem underlying the cases such as
the present is universal. But most jurisdictions would, it seems, afford a remedy to the plaintiff.
Development of the law in this country cannot of course depend on a head-count of decisions
and codes adopted in other countries around the world, often against a background of different
rules and traditions.

The law must be developed coherently, in accordance with principle, so as to serve, even-
handedly, the ends of justice. If, however, a decision is given in this country which offends
one’s basic sense of justice, and if consideration of international sources suggests that a different
and more acceptable decision would be given in most other jurisdictions, whatever their legal
tradition, this must prompt anxious review of the decision in question. In a shrinking world there
must be some virtue in uniformity of outcome whatever the diversity of approach in reaching
that outcome.7

The opinions of the Law Lords in this case included substantive references to a number of
foreign cases and materials from a significant number of different jurisdictions, with different
legal systems.

Cases were referred to and discussed from the common law countries of Australia, New Zealand,
Canada, and the United States; from Scotland, a mixed jurisdiction; and from civil law
jurisdictions, including France, Germany, the Netherlands, Greece, Spain, and Norway; and the
opinions also included references to Roman law. Indeed, it has been noted that the use of
German legal materials in this case was: “a ‘difficult’ book even for German lawyers to
use,” and that it was not counsel that requested the use of foreign law in this instance, but the

7
Fairchild v. Glenhaven Funeral Services Ltd. and others; Fox v. Spousal (Midlands) Ltd.; Matthews v. Associated
Portland Cement Manufacturers (1978) Ltd. and others, [2002] UKHL 22 [34].
 Recognition & Enforcement of Judgments Under English Modern Rules 10

Law Lords themselves, who requested to be “addressed on the solutions adopted by civilian law
systems, thus ‘forcing’ Counsel to extend their research and argument beyond the traditional
consideration of Commonwealth and American authority.”

The value that comparative law can bring English law through the use of foreign cases has been
observed many times in the House of Lords, with the Law Lords on different occasions noting
that England can learn much from legal developments in other jurisdictions.
 Recognition & Enforcement of Judgments Under English Modern Rules 11

III. 1968 BRUSSELS CONVENTION AND 1988 LUGANO CONVENTION.

The 1968 Brussels Convention (Brussels Convention) regulates “the recognition and
enforcement of foreign judgments” among all members of the European Union (EU), including
the United Kingdom. The 1988 Lugano Convention (Lugano Convention) created a “parallel
regime” among members of the European Free Trade Association (EFTA), as well as certain
members of the EU. 8

In Lee & Edwards, it was held that because of England’s dual membership, a situation may
arise where the registration of a judgment from another Contracting State within an English court
may trigger simultaneous application under both Conventions. If such a conflict should arise,
Article 54B of the Convention of 16 September 1988 on Jurisdiction and the Enforcement of
Judgments in Civil and Commercial Matters hereinafter the Lugano Convention provides:

(a) The Lugano Convention shall not prejudice the application of the Brussels Convention by
[EU] States; but

(b) The Lugano Convention will prevail where:

 the defendant is domiciled in an EFTA State or an EFTA State has exclusive jurisdiction
under Action 16 or 17; or
 ‘lis pendens’ or related proceedings are instituted in both an [EU] and an EFTA State.

The purpose underlying both Conventions is to prescribe a uniform regime for jurisdiction and
the enforcement of judgments in the courts of contracting states. The United Kingdom is a
contracting state under both Conventions. The Brussels Convention became enforceable within
the United Kingdom on January 1, 1987, pursuant to the Civil Jurisdiction and Judgment Act
1982. The Civil Jurisdiction and Judgments Act 1991 amended the 1982 Act to bring the Lugano
Convention into force within the United Kingdom as of May 1, 1992. The enforcement
procedures established by the Conventions are far more streamlined than those existing under the
earlier English scheme. This radical departure was due in part to a communal desire among
8
C o n v e n t i o n on jurisdiction and the enforcement of judgments in civil and commercial matters
https://curia.europa.eu/common/recdoc/convention/en/c-textes/lug-idx.htm
 Recognition & Enforcement of Judgments Under English Modern Rules 12

Contracting States to facilitate the ‘free movement’ of judgments. The result is a regime that
favors liberal enforcement by lowering the threshold for recognition and limiting the judgment
debtor's arsenal of defenses to enforcement. Consistent with this approach, the general rule
regarding foreign judgment recognition is that a judgment rendered within a contracting state,
‘shall be recognized in the other Contracting States without any special procedure being
required’ regardless of the domicile of the parties.9

Furthermore, enforcement must be granted where the judgment is enforceable under the laws of
the contracting state in which it was given.’ The term ‘judgment’ is broadly defined to include
“any judgment given by a court or tribunal of a Contracting State, whatever the judgment may be
called, including a decree, order, decision or writ of execution, as well as the determination of
costs or expenses by an officer or the court”.

Moreover, unlike the American scheme, the jurisdictional competency of the original court is
generally not subject to review. Article 29 also provides, under no circumstances may a foreign
judgment be reviewed as to its substance. Once a judgment has been recognized under either
Convention, enforcement proceedings may begin. Similar to the earlier statutory regime, the
procedure for foreign judgment enforcement under the Conventions is by way of registration.
The Conventions’ judgment-friendly approach to foreign judgment recognition and enforcement
is a slight departure from English common law.

By lowering the threshold necessary to find recognition, the Conventions would serve the dual
purposes of enhancing “the worth and enforceability” of foreign judgments and affording ‘legal
certainty’ among contracting states. 10

9
The European Free Trade Association (EFTA) was established by a Convention signed in Stockholm on 4 January
1960, https://www.efta.int/Legal-Text/EFTA-Convention-1152.
10
Ibid.
 Recognition & Enforcement of Judgments Under English Modern Rules 13

IV. JUDICIAL PROCEEDINGS

English Court examines approach to interpretation of foreign law:

In the English High Court rejected a challenge to an award based on a lack of jurisdiction on the
part of the Tribunal. The challenge was brought under Section 67 of the Arbitration Act 1996,
which applies to all London seated arbitrations.11

Although the claim concerned the investment protection legislation of Kyrgyzstan, and the
application of Kyrgyz law, the Court’s ruling is instructive in the process that the English courts
will follow in interpreting the meaning of foreign laws in general (including investment/investor
protection legislation).

The English Court of Appeal in Re Harrods, (An Unwelcome Interpretation of the Brussels
Convention)
The defendant in this case argued that the English Proceedings should be stayed because
Argentina was the most appropriate forum for the trial of the action. He also claimed that article
2 of the convention did not have wide mandatory effect where the only conflict was between the
courts of a convention country and the courts of a non-convention country. A fundamental
distinction was drawn between cases where the alternative forum was in a contracting state as the
convention was intended and designed to regulate relations only between conventions countries
the court held that it retained its discretion under section 49 of the 1982 act to stay or dismiss the
actions on the ground of forum non conveniences where the more appropriate forum was in a
non contracting state. This decision has been widely criticized having misinterpreted the
convention and for creating uncertainty in the law.12

In an article in the International and Comparative Law Quarterly, T. Koopmans expressed his
opinion that the twenty-first century may become the era of comparative methods, opining that:

11
The Kyrgyz Republic v (1) Stans Energy Corporation and (2) Kutisay Mining LLC [2017] EWHC 2539 (Comm)
12
Re Harrods.
 Recognition & Enforcement of Judgments Under English Modern Rules 14

As we share so many difficult problems of society, and as we live closer and closer together on
the planet, we seem bound to look at one another’s approaches and views. By doing so we may
find interesting things but we may also find ways to cope with the tremendous legal challenges
that seem to be in store for us.

Finally, the English court must be satisfied that the rendering court possessed competent
jurisdiction over the defendant prior to the English domestication of a foreign judgment. In
determining whether personal jurisdiction exists, the controlling issue is not whether the English
court would have claimed jurisdiction in the particular case. Rather, jurisdiction will generally
exist only if the judgment debtor either was subject to the jurisdiction of the rendering foreign
court at the time proceedings were initiated; or otherwise submitted to the jurisdiction of the
foreign court.
 Recognition & Enforcement of Judgments Under English Modern Rules 15

V. CONCLUSION

The provisions of the conventions apply to any judgment given by a court or tribunal of
contracting state, regardless of whether or not the defendant is domiciled in a contracting state,
including injunctions, specific performance, writs of executions, etc and provided that the
judgment was not made ex parte.

A judgment given in a contracting state must be recognized in all other contracting state without
any special procedures required. In relation to enforcement, however, such a judgment must be
enforced in another contracting state when on the application of any interested party, it has been
declared enforceable there.

The procedure for enforcement of judgment in the UK is a two stage process. First the plaintiff
makes an ex parte application for an order of enforcement. At this stage, the defendant does not
have the right to be heard. Secondly, once the judgment is authorized, notice of registration is
served on the defendant who has right to appeal.

Art. 27 and 28 of the Brussals convention provide for a number of defenses, if any of them is
established, then the judgment will not be recognized, as recognition is prerequisite for
enforcement. Article 34 expressly states that these defenses apply equally to enforcement. A
defendant may raise one or more seven defenses, such as public policy, non-reconciliation, lack
of jurisdiction etc. A further four defenses may be invoked where the judgment is sought to be
enforced within EFTA states.

A judgment rendered in one part of the UK may be enforced in another part if it meets the
requirements of section 18 of the 1982 Act. Enforcement can only be made by the way of
registration under schedule 6 of the Act( for money judgment) or Schedule 7(for non-money
judgments). Section 18 initially defines Judgment in a wide manner and then gives a detailed list
of the judgment it does not cover. Section 19 applies in relation to recognition of judgments
within the UK.
 Recognition & Enforcement of Judgments Under English Modern Rules 16

BIBLIOGRAPHY

 Foreign Law in English Courts:Pleading, Proof, and Choice of Law By RichardFentiman

 University of Pennsylvania, Law Review and American Law Register, Volume 83,
 1935.
 Beagle, Cases On Conflict Of Laws (1902) 501, Summary, vol. I; I Treatise On
 Conflict Of Laws (1916).
 STORY, CONFLICT OF LAWS (8th ed. 1883).
 The Restatement by Prof. Beagle.
 Dennis J. Tuchler, A Short Summary of American Conflicts Law: Choice of Law, 37
 St. Louis U. L.J. 391 (1993).
 Silberman, L. (2017). "(American) Conflict of laws revolution". In Encyclopedia of
 Private International Law. Cheltenham, UK: Edward Elgar Publishing Limited. doi:
https://doi.org/10.4337/9781782547235.A.10
References:

 https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1757&context=sulr
 https://www.lexology.com/library/detail.aspx?g=f04681c3-2624-42d3-a8b1-
f1b22e9f808b
 https://www.britannica.com/topic/conflict-of-laws/Choice-of-law
 https://www.loc.gov/law/help/domestic-judgment/englandandwales.php