RECOGNITION AND ENFORCEMENT OF

FOREIGN JUDGMENTS

Introduction
In law, the enforcement of foreign judgments is the recognition and enforcement in

one jurisdiction of judgments rendered in a foreign jurisdiction. The enforcement of

foreign judgments is often regulated by bilateral treaty or multilateral international

convention, but is practiced unilaterally in some jurisdictions. This is an area of growing

importance. For the private citizen enjoying the right to travel more freely between states,

the development of the internet and e-commerce in an increasingly globalized set of

markets means that individuals routinely buy goods, incur debts and suffer loss and injury

across state borders. For consumer groups, human rights advocates, intellectual property

rights holders, and multinational corporations, the continuing reliance on a fragmented

system of territorial boundaries for establishing jurisdiction is presenting a new range of

problems that can only be resolved by harmonizing laws and standardizing remedies.

The recognition of a foreign judgment must be distinguished form its enforcement.

While a court must recognize every foreign judgment it enforces, it need nit enforce

certain kinds of foreign judgments; they can only be recognized. The examples are a

foreign judgment, dismissing a claim (without ordering costs of the defendant), foreign

decree of divorce, or a foreign decree of nullity of marriage. Judgment which are

declaratory in nature or which determines the status of persons, generally speaking need

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recognition in the courts of other countries. Circumstances under which foreign

judgments will be recognized are approximately the same as those under which they will

be enforced. Hence, it is not necessary to consider the recognition and enforcement

separately.

Definitions

The "recognition" of a foreign judgment occurs when the court of one state accepts a

judicial decision made by the courts of another state as in rem and so precludes the

relitigation of a claim on the same facts on the ground of res judicata and/or collateral

estoppel. Once the judgment is recognized, the party who was successful in the original

case can then seek its "enforcement". If it had been a money judgment and the debtor has

assets in the second jurisdiction, the judgment creditor has access to all the enforcement

remedies as if the case had originated in that second state. If some other form of

judgment was obtained, e.g. affecting status, granting injunctive relief, etc., the second

court will make whatever orders are appropriate to make the first judgment effective. In

doing so, the states are relying on the principle of reciprocity which requires equal

respect shown to judgments made by two different sets of courts, i.e. the courts of both

states must treat the judgments as equally binding and enforceable in the two

jurisdictions.

In general, between foreign countries, foreign judgments are enforced based on

reciprocity or participation in a treaty. Between two different States in the United States,

enforcement is based on "full faith and credit", a Constitutional concept which compels a

State to give another State's Judgment an effect as if it were local. This usually requires

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some sort of an abbreviated application on notice, or docketing. Between one State in the

United States, and a foreign country, Canada, for example, the prevailing concept is

Comity. The Court in the United States, in most cases, will unilaterally enforce the

foreign judgment, without proof of diplomatic reciprocity. Note that some exceptions

apply.

Res Judicata

Res judicata or res iudicata  is the Latin term for "a matter [already] judged", and may

refer to two things: in both civil law and common law legal systems, a case in which

there has been a final judgment and is no longer subject to appeal; and the term is also

used to refer to the legal doctrine meant to bar (or preclude) continued litigation of such

cases between the same parties, which is different between the two legal systems. In this

latter usage, the term is synonymous with "preclusion".

In the case of Res Judicata, the matter cannot be raised again, either in the same court or

in a different court. A court will use Res Judicata to deny reconsideration of a matter.

The legal concept of Res Judicata arose as a method of preventing injustice to the parties

of a case supposedly finished, but perhaps mostly to avoid unnecessary waste of

resources in the court system. Res judicata does not merely prevent future judgments

from contradicting earlier ones, but also prevents litigants from multiplying judgments,

so a prevailing plaintiff could not recover damages from the defendant twice for the same

injury.

The principle of RJ may be used either by a judge or a defendant.

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In the case of Shaw Vs. Gould1Once a final judgment has been handed down in a lawsuit,

subsequent judges who are confronted with a suit that is identical to or substantially the

same as the earlier one will apply the res judicata doctrine to preserve the effect of the

first judgment.

A defendant in a lawsuit may use RJ as defense. The general rule is that a plaintiff who

prosecuted an action against a defendant and obtained a valid final judgment is not able

to initiate another action vs. the same defendant where:

 the claim is based on the same transaction that was at issue in the first action;

 the plaintiff seeks a different remedy, or further remedy, than what was obtained

in the first action;

 the claim is of such nature as could have been joined in the first action

Once a bankruptcy plan is confirmed in court action, the plan is binding on all parties

involved. Any question regarding the plan which could have been raised may be barred

by RJ

The Seventh Amendment to the United States Constitution provides that no fact having

been tried by a jury shall be otherwise re-examinable in any court of the United States or

of any state than according to the rules of law.

For RJ to be binding, several factors must be met:

 identity in the thing at suit;

 identity of the cause at suit;

 identity of the parties to the action;

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  identity in the designation of the parties involved;

 whether the judgment was final;

 whether the parties were given full and fair opportunity to be heard on the issue.

Regarding designation of the parties involved, a person may be involved in an action

while filling a given office (e.g. as the agent of another), and may subsequently initiate

the same action in a differing capacity (e.g. as his own agent). In that case RJ would not

be available as a defense unless the defendant could show that the differing designations

were not legitimate and sufficient. Res judicata includes two related concepts: claim

preclusion and issue preclusion (also called collateral estoppel or issue estoppel), though

sometimes res judicata is used more narrowly to mean only claim preclusion.

It is often difficult to determine which, if either, of these concepts apply to later lawsuits

that are seemingly related, because many causes of action can apply to the same factual

situation and vice versa. The scope of an earlier judgment is probably the most difficult

question that judges must resolve in applying res judicata. Sometimes merely part of the

action will be affected. For example, a single claim may be struck from a complaint, or a

single factual issue may be removed from reconsideration in the new trial.

Res judicata is intended to strike a balance between competing interests. On one hand, it

assures an efficient judicial system 

A US Supreme Court Justice explained the need for this legal precept as follows:

Federal courts have traditionally adhered to the related doctrines of res judicata (claim

preclusion) and collateral estoppel (issue preclusion). Under RJ, a final judgment on the

merits of an action precludes the parties . . . from re-litigating issues that were or could

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have been raised in that action. Under collateral estoppel, once a court has decided an

issue of fact or law necessary to its judgment, that decision may preclude re-litigation of

the issue in a suit on a different cause of action involving a party to the first cause. As this

court and other courts have often recognized, res judicata and collateral estoppel relieve

parties of the costs and vexation of multiple lawsuits, conserve judicial resources, and by

preventing inconsistent decisions, encourage reliance on a judication.

Res judicata does not restrict the appeals process, which is considered a linear extension

of the same lawsuit as the suit travels up (and back down) the appellate court ladder.

Appeals are considered the appropriate manner by which to challenge a judgment rather

than trying to start a new trial. Once the appeals process is exhausted or waived, res

judicata will apply even to a judgment that is contrary to law.

In addition, in matters involving due process, cases that appear to be res judicata may be

re-litigated. An example would be the establishment of a right to counsel. People who

have had liberty taken away (i.e., imprisoned) may be allowed to be re-tried with a

counselor as a matter of fairness. When a subsequent court fails to apply res judicata and

renders a contradictory verdict on the same claim or issue, if a third court is faced with

the same case, it will likely apply a "last in time" rule, giving effect only to the later

judgment, even though the result came out differently the second time. This situation is

not unheard of, as it is typically the responsibility of the parties to the suit to bring the

earlier case to the judge's attention, and the judge must decide how broadly to apply it, or

whether to recognize it in the first place in the case of Americana Fabrics, Inc. v. L & L

Textiles, Inc2.,

2
754 F.2d 1524, 1529-30 (9th Cir. 1985).

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Conventions

If the relevant states are not parties to the Hague Convention on Foreign Judgments in

Civil and Commercial Matters (which, presently, only Cyprus, Kuwait,

the Netherlands and Portugal have ratified), the EC Council Regulation on Jurisdiction

and the Enforcement of Judgments in Civil and Commercial Matters  or a similar treaty

or convention providing for the routine of registration and enforcement between states,

the courts of most states will accept jurisdiction to hear cases for the recognition and

enforcement of judgments awarded by the courts of another state if the defendant or

relevant assets are physically located within their territorial boundaries. Whether

recognition will be given is determined by the lex fori, i.e. the domestic law of the local

court and the principles of comity. The following issues are considered:

 Whether the foreign court properly accepted personal jurisdiction over

the defendant;

 Whether the defendant was properly served with notice of the proceedings and

given a reasonable opportunity to be heard which raises general principles

of natural justice and will frequently be judged by international standards (hence,

the rules for service on a non-resident defendant outside the jurisdiction must

match general standards and the fact that the first instance court's rules were

followed will be irrelevant if the international view is that the local system is

unjust);

 Whether the proceedings were tainted with fraud; and

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  Whether the judgment offends the public policy of the local state.

The Hague Conference on Private International Law (or HCCH, for Hague

Conference/Conférence de la Haye) is the preeminent organisation in the area of private

international law.

HCCH was formed in 1893 to "work for the progressive unification of the rules of private

international law". It has pursued this goal by creating and assisting in the

implementation of multilateral conventions promoting theharmonisation of conflict of

laws principles in diverse subject matters within private international law. Sixty-eight

nations are currently members of the Hague Conference, including China, Russia, the

United States, and all member states of the European Union (the European Union itself is

also a member of the Conference, so the total number of members is listed as 69 on the

HCCH's website).

The 20th Diplomatic Session of the Conference, held from 14 to 28 June 2005, saw two

major developments:

 The statute of the Conference was amended (for the first time in over 50 years) to

expand the possibility of membership to Regional Economic Integration

Organisations such as the European Union;

 The Conference concluded and opened for ratification the Hague Convention on

Choice of Court Agreements, a project which had been in negotiation for nearly

15 years. States applying this instrument agree to recognize and enforce decisions

reached by courts of another signatory state if the dispute was governed by a valid

choice of court agreement concluded between the parties to the dispute.

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In July 2006 Switzerland and the United States jointly signed the Hague Securities

Convention, providing legal certainty to modern forms of holding and

transferring securities. This marked an important step in the development of the new legal

infrastructure needed to match modern systems for the holding, transfer, andpledge of

securities.

Most securities are presently held, transferred and pledged by electronic entries to

accounts with clearing and settlement systems and other intermediaries, rather than

directly in physical form or directly by issuers. The global financial market, which for

the OECD countries alone has a volume of more than $2 billion US each day, is in need

of a legal regime that deals effectively with this new reality. There is broad agreement in

the financial world that the traditional legal rules, based on physical transfers and direct

holdings, are too diverse, out-dated, and inadequate. The result is legal uncertainty,

increased risk, and higher costs for global clearing and settlement, with repercussions at

all levels of the global financial market.

The Hague Securities Convention ensures that there is a clear and certain answer to

questions such as which law governs the determination of the legal nature of the rights

resulting from a credit of securities to a securities account, the steps required for a

transfer or pledge of securities to such accounts to be enforceable among the parties and

third parties, and the steps required to realise a pledge of securities credited to such

accounts.

The European Commission at the same time concluded that "adoption of the Convention

would be in the best interest of the Community" and recommended that the Convention

"be signed after or with at least two of its main trading partners, the USA included."

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The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, also

known as the New York Convention, was adopted by a United Nations diplomatic

conference on 10 June 1958 and entered into force on 7 June 1959. The Convention

requires courts of contracting states to give effect to private agreements to arbitrate and to

recognize and enforce arbitration awards made in other contracting states. Widely

considered the foundational instrument for international arbitration, it applies to

arbitrations which are not considered as domestic awards in the state where recognition

and enforcement is sought. Though other international conventions apply to the cross-

border enforcement of arbitration awards, the New York Convention is by far the most

important.

In 1953, the International Chamber of Commerce (ICC) produced the first draft

Convention on the Recognition and Enforcement of International Arbitral Awards to

the United Nations Economic and Social Council. With slight modifications, the Council

submitted the convention to the International Conference in the Spring of 1958. The

Conference was chaired by Willem Schurmann, the Dutch Permanent Representative to

the United Nations and Oscar Schachter, a leading figure in international law who later

taught at Columbia Law School and the Columbia School of International and Public

Affairs, and served as the President of the American Society of International Law.

International arbitration is an increasingly popular means of alternative dispute

resolution for cross-border commercial transactions. The primary advantage of

international arbitration over court litigation is enforceability: an international arbitration

award is enforceable in most countries in the world. Other advantages of international

arbitration include the ability to select a neutral forum to resolve disputes, that arbitration

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awards are final and not ordinarily subject to appeal, the ability to choose flexible

procedures for the arbitration, and confidentiality.

Once a dispute between parties is settled, the winning party needs to collect the award or

judgment. Unless the assets of the losing party are located in the country where the court

judgment was rendered, the winning party needs to obtain a court judgment in the

jurisdiction where the other party resides or where its assets are located. Unless there is a

treaty on recognition of court judgments between the country where the judgment is

rendered and the country where the winning party seeks to collect, the winning party will

be unable to use the court judgment to collect.

Countries which have adopted the New York Convention have agreed to recognize and

enforce international arbitration awards. As of October 1, 2009, there are 144 signatories

which have adopted the New York Convention: 142 of the 192 United Nations Member

States, the Cook Islands (a New Zealand dependent territory), and the Holy See have

adopted the New York Convention. Only 50 U.N. Member States andTaiwan have not

yet adopted the New York Convention. A number of British dependent territories have

not yet had the Convention extended to them by Order-in-Council.

Under the Convention, an arbitration award issued in any other state can generally be

freely enforced in any other contracting state (save that some contracting states may elect

to enforce only awards from other contracting states - the "reciprocity" reservation), only

subject to certain, limited defenses. These defenses are:

1. a party to the arbitration agreement was, under the law applicable to him, under

some incapacity;

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 2. the arbitration agreement was not valid under its governing law;

3. a party was not given proper notice of the appointment of the arbitrator or of the

arbitration proceedings, or was otherwise unable to present its case;

4. the award deals with an issue not contemplated by or not falling within the terms

of the submission to arbitration, or contains matters beyond the scope of the

arbitration (subject to the proviso that an award which contains decisions on such

matters may be enforced to the extent that it contains decisions on matters

submitted to arbitration which can be separated from those matters not so

submitted);

5. the composition of the arbitral tribunal was not in accordance with the agreement

of the parties or, failing such agreement, with the law of the place where the

hearing took place (the "lex loci arbitri");

6. the award has not yet become binding upon the parties, or has been set aside or

suspended by a competent authority, either in the country where the arbitration

took place, or pursuant to the law of the arbitration agreement;

7. the subject matter of the award was not capable of resolution by arbitration; or

8. enforcement would be contrary to "public policy".

Under American law, the recognition of foreign arbitral awards is governed by chapter 2

of the Federal Arbitration Act.

In 2007, proposed legislation was introduced before Congress to authorize the Court of

International Trade to adjudicate the recognition under the New York Convention of

foreign arbitral awards.

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There is a general reluctance to enforce foreign judgments which involve multiple or

punitive damages. In this context, it is noted that the U.S. is not a signatory to any treaty

or convention and there are no proposals for this position to change. When it comes to

seeking the enforcement of U.S. judgments in foreign courts, many states are

uncomfortable with the amount of money damages awarded by U.S. courts which

consistently exceed the compensation available in those states. Further, the fact that the

U.S. courts sometimes claim extraterritorial jurisdiction offends other states' conceptions

of sovereignty. Consequently, it can be difficult to persuade some courts to enforce some

U.S. judgments.

The Basis of Recognition of Foreign Judgment

The basis of recognition and enforcement of foreign judgment was the Principe of

comity. English judges in the older cases believed that the law of nations required the

courts of one country to assist the court of other countries. It would appear that they

feared that if foreign judgments were not enforced in England, English judgments were

not enforced abroad. Comity is an inadequate basis, an uncertain ground and gives rise to

difficulties. It means that if judgments of English courts are not enforced in a country,

the judgments emanating from the country should be denied enforcement in England

irrespective of other considerations. Again, if the judgments of English courts are

enforced in a country, in the principle of comity, the judgments from that country should

necessarily be enforced in English courts and there would be no scope for any defence

against those judgments except possibly the want of jurisdiction. To carry enforcements

of foreign judgments to such lengths is obviously against the elementary notions of

justice.

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Fortunately, the theory of comity no longer holds the field. It has been replaced by a

more defensible principle,” the doctrine of obligation”. According to this doctrine of

obligation, when a foreign court of competent jurisdiction has adjudicated a certain sum

to be due form one person to another, the liability to pay that sum becomes a legal

obligation. This legal obligation can be reinforced in England by an action before the

proper court. According to Baron Parke “where a court of competent jurisdiction has

adjudicated a certain sum of money to be due from one person to another, a legal

obligation arises to pay that sum on which an action of debt to enforce the judgment may

be maintained. It is in this way that the judgments of foreign and colonial courts are

supported and enforced. In the case of William Vs. Jones 3, it was laid down that “Once

the foreign judgment is proved, the burden lied on the defendant to show why he should

not perform that obligation. The foreign judgment in other words, invests the creditor

with a new right and imposes on the debtor a new obligation.

The doctrine of obligation has tow merits when compared with the principle of comity.

First, the question of reciprocity is completely eliminated. In the case of Bremer Vs

Freeman4, if A is under a legal obligation to B by virtue of a foreign judgment, it is not

necessary to examine how a judgment of an English Court is treated in that Foreign

Country. An obligation, once recognized by English law must be enforced irrespective of

the substantive rules of law under which it has been created. Secondly there is no

difficulty in prescribing the defences available against a foreign judgment. Existence of

an obligation being the basis of liability, any ground which negatives the obligation can

be pleaded in defence.

3
1845, 13 M & W 633
4
1915,1 Ch572

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No Merger of Cause of Action in a Foreign Judgment

It is a basic rule of English internal law that a plaintiff who has obtained a judgment

against the defendant is barred from suing again in the original cause of action. The

original cause of action merged in the judgment and thus becomes extinguished. But this

domestic theory of merger is not applicable to foreign judgments. A foreign judgment

unlike an English judgment does not extinguish the original cause of action. As the

foreign judgment does not result in merger of the original cause of action, the plaintiff is

entitled to sue on the original cause of action. In fact, he has an option; he may either sue

in the basis original of the foreign judgment or resort to the original cause of action.

In the case of Re Martin 5, if A has obtained a foreign judgment against B for debt, A may

either sue B in England in the foreign judgment or he may bring an action against B in

England on the debt in which case the foreign judgment can be used only as evidence of

the debt.

There is neither sound basis nor any substantial justification for making this distinction

between English judgments and foreign judgments. There was the old position that a

foreign judgment was not a denial and conclusive adjudication but was only a piece of

evidence of the rights and liabilities of the parties. The original cause of action though

res judicata in the foreign country was still alive in the eyes if the English law and could

be re – examined on merits. It was this consideration which mainly influenced the judges

in the old English cases in taking foreign judgments out of the purview of the doctrine of

merger.
5
1900 P & W 211

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In the case of Godard Vs Gray6a foreign judgment given by a competent court is

conclusive and final and cannot be re – examined in England on merits. In spite of this,

the rule of non – merger continued to survive in England and it has now become an

illogical anomaly.

In the case of Carl Zeisses Vs. Rayner & Keeler 7 the doctrine of merger was

characterized as an “illogical survival” and regarded its continued existence as

“precarious”.

Enforcement of Foreign Judgment in the U.K.

The common law principle is that a foreign judgment though creating an obligation that is

actionable in England cannot be directly enforced in England by direct execution. It is

necessary to bring a new action England by direct execution. It is necessary to bring a

new action ion England on the Foreign Judgment. But when such an action is brought

ion England, the plaintiff can apply for summary judgment in the basis that the defendant

has no defence to the claim and if this application is successful the defendant will not be

allowed to plead at all. The simplicity of the procedure and the fact that the defences to

an action on foreign judgments have been confined to narrow limits, make foreign

judgments easily enforceable in England. In theory, however it is the English judgment

obtained on the basis of the foreign judgment) that is executed or enforced in England. In

short, therefore, at common law a foreign judgment can be enforced in England only on

6
1870, LR 6 QB 139
7
1967 I AC 895

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directly and not by direct execution. The enforcement is through medium of an English

judgment.

The above common law doctrine that foreign judgment can be enforced only by

institution of fresh legal proceedings in England is subject to certain statutory exceptions.

Under some statutes, a foreign judgment under which a sum of money is payable may be

enforced directly (without a medium of an English Judgment) by the process of

registration:

The most important of these statutes are: -

1. The Judgments Extension Act, 1868

2. The Administration of Justice Act, 1920

3. The Foreign Judgment (reciprocal enforcement) Act, 1933.

Enforcement of Foreign Judgment under the Indian Law

In Indian Law, foreign judgment are recognized and enforced under the provisions of the

Civil Procedure Code. Section 13 of the Civil Procedure Code [provides that if certain

17
conditions are satisfied, “a foreign judgment shall be conclusive as to any matter thereby

directly adjudicated upon between the same parties or between parties under whom they

or any of them claim litigating under the same title”. In view of this statutory provision,

it is not necessary to enquire about the basis of enforcement of foreign judgment in India,

although Indian judges following English decisions have refereed to both the comity and

obligation doctrines.

Except in certain specified cases (section 44 and 44 A) foreign judgment cannot be

enforced by direct execution in India. It can be enforced only by the institution of a suit

upon the judgment, as in England.

Before independence, judgments of the court in the Indian native States were considered

as foreign judgments in British India and consequently could be enforced in British India

only by a suit on the judgment. Section 44 of the Code provided that Government of

India may be notification in the official gazette declare that a decree of any civil or

revenue court of any Indian State might be executed in British India as if it has been

passed by the courts in British India. From 1951, the Civil Procedure Code has been

extended to all the state of the Indian Union and by virtue of the clause (3) of Article 261

the Constitution of India, final judgments and orders passed by civil courts established in

any part of the territory of India shall be capable of execution any where within the

territory of India. Consequently, Section 43 and 44 have been modified by the

Amendment Act of 1951. The modified Sections 43 and 44 provide for direct execution

of decrees and orders of civil and revenue courts situated in any part of India which the

provisions of Civil Procedure Code do not apply. Section 45 provides for the direct

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execution of decrees of Indian courts on territories outside India by courts established

buy the authority of the Central Government.

Section 44 A related to the reciprocal enforcement of judgment given by courts in foreign

countries. This section has been modeled on the analogous provision on the Foreign

Judgments (Reciprocal Enforcement) Act referred to above. Under Section 44 A decrees

of the Superior Courts of the United Kingdom and other foreign countries with which

India has reciprocal arrangements are enforceable in India as if they are decrees of the

Indian courts. The foreign countries with which India has reciprocal arrangements for

direct execution of decrees is called reciprocating territory. “Reciprocating territory”:

means any Country or territory for the purposes of this section; and “Superior Court”

with reference to any such territory means such Courts as may be specified in the said

notification.

Jurisdiction of Foreign Courts

The foreign court should have has jurisdiction in the international sense. The most

fundamental of all requirements for the recognition and enforcement of foreign

judgments (whether at common law or under the statutes) is that the foreign court

should have had jurisdiction according to the rules of English Private International

Law. According to Cheshire, “the first and over riding essential for the

effectiveness of a foreign judgment is England is that the adjudicating court should

have had jurisdiction in the international sense over the defendant”., it is not

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enough if the foreign court has jurisdiction according to the system of law under

which it sits; it is necessary that the foreign court is a court of competent

jurisdiction in the International sense, that it according to the principles of Private

International Law.

In the case of Sardar Gurdyal Singh Vs. The Rajah of Faridkote 8, the rajah of

Faridkote obtained two exparte judgments for a huge sum of money from a civil

court at Faridkote against the applicant. The appellant who had been the treasurer

to the Rajah left Faridkote five years before the suits were instituted in the civil

court and had never returned to that state again. Subsequently the Rajah brought

an action against the appellant on these judgments before a court at Lahore where

the appellant in these judgments before a court at Lahore where the appellant on

these judgments before a court at Lahore where the appellant at the home was

resident. Lahore was a part of British India and Faridkote was an Indian State with

independent jurisdiction. Therefore, the suit before the Lahore Court was an action

on foreign judgment. It was held by the Privy Council that the action before the

Lahore must fail because the civil court at Faridkote has no jurisdiction on any

recognized principle of international law against a man who had left the territory

and had not submitted to the jurisdiction of the court.

The competence of the foreign court is judged in the tests that are applicable to

decide whether an English court can exercise jurisdiction and ion this regard it is

necessary to consider judgment on personal and judgment in rem separately.

8
1984 A.C. 670

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Judgment in Personam: -

In English law personal jurisdiction depends upon the rights of a court to summon

the defendant and the right is exercisable only against those who are present in

England (apart form the exceptional cases where by virtue of statutory provisions

the court is empowered to exclusive jurisdiction against absent defendants). So if

the defendant is absent from country has no business in that country, the general

principle according to English law is that the defendant is not subject to the

jurisdiction of any court there, unless he voluntarily submits himself to this

jurisdiction. The position therefore is that for personal jurisdiction in international

sense either of the following two conditions must exist:

(i) Defendant’s presence in the foreign country or

(ii) His voluntary submission to the jurisdiction of foreign court.

RESIDENCE OR PRESENCE: -

It is natural for the plaintiff to sue in the country where the4 defendant resides and

it is well settled that residence in the foreign country is sufficient to confer

jurisdiction to the foreign court. But the question whether mere presence, however

temporary would be sufficient is not free from doubt. It is argued that a person who

is present within the territory of a State becomes subject to the laws of the state and

consequently to the jurisdiction of its courts and the length of his presence is

immaterial. Moreover, it is a settled principle of English Law that temporary

presence of the Defendant in England is sufficient to confer jurisdiction to the

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English Court and the same yardstick should be used to determine the jurisdictional

competency if the foreign court. In the case of Carrick Vs. Hancock 9 where a

domiciled English man which he was on a short visit to Sweden was served with the

writ of summons of a Swedish Court. Later an action on the judgment of the

Swedish Court was brought in England. It was held that the Swedish court could

exercise Jurisdiction over him despite his mere temporary presence in Sweden

(although the ruling is very definite in the point, the actual decision can be equally

be supported in the ground of submission to the jurisdiction because defendant

appeared in the court ion answer to summons and was represented throughout the

proceedings.

But there is also the view that casual presence as distanced from residence is not a

desirable basis of jurisdiction if the cause of action arose outside the foreign country

concerned. The reason is that in such cases, the court is not in a favorable position

to deal intelligently either with the facts or with the law.

In the case of Re Duke Wellington 10, in the case of the artificial person like a

corporation, neither residence nor presence has any real meaning: the only practical

test is whether it is carrying on business in the foreign country. We may say that the

transaction of business corresponds to physical presence in the case of artificial

persons. According to Cheshire:” In the eyes if English law, a corporation is not

amenable to the jurisdiction of a foreign court unless at the time of the

commencement of the action, substantial business was being carried on by it at some

definite and more or less permanent place in the country of trial”.

9
(1895, 12 T.L.R. 59)
10
1947, 2 All E.R. 843)

22
SUBMISSION OF THE DEFENDANT TO THE FOREIGN COURT:

It is a clear principle of Private International Law that if a person voluntarily

submits to the jurisdiction of a foreign court, the judgment of that court will be

regarded as one rendered by a court of competent jurisdiction. Submission can take

place in various ways. The most obvious case is where a person invokes the

jurisdiction of the foreign court as the plaintiff. He, then undoubtedly tenders

himself liable to a judgment in respect of counter claim or a cross – action or cases.

With regard to the defendant he many voluntarily appear in court and plead on

merits. This is clearly submission to the jurisdictions of the Court. This is so even if

he questions the jurisdiction of the court along with contesting the plaintiff’s case on

merits. In the case of S.A. Consortium Vs. Sun and Sand 11, if a defendant before a

foreign court prefers an appeal from a judgment obtained by the plaintiff from the

foreign court it will amount to voluntary submission. But if defendant appears

before the court only to question its jurisdiction, can he be taken to have submitted

to the jurisdiction? Can such appearance be regarded as voluntary? For example, if

the defendant has properties in the foreign country where he is sued, he is faced

with a dilemma. If he takes no part in the proceedings, a judgment obtained against

him cab be executed and his properties become liable to be seized. On the other

hand if he appears in court simply to question the jurisdiction of the court and if

this qualified appearance constitutes submission, the judgment is liable to be

11
(1978) 2 All ER 339

23
enforced in England also by an action on the judgment. Thus by adopting the latter

of course he is making his assets in England also liable to seizure.

In regard to the above matter, the older cases have made a distinction in what may

be called property cases, that is of the defendant’s property has already been seized

by the foreign court, an appearance to protest against jurisdiction is not voluntary.

But of he enters appearance to save his property (which will be liable to seizure if

judgment is given against him,) then his appearance is treated as voluntary.

It is now generally accepted that there is no merit in the above distinction and an

appearance merely to contest, the jurisdiction of the court will not appoint to

submission. In the case of Re Dulles Settlements 12 it was held that “it cannot be said

with some assurance that to protest is not necessarily to submit”. We may

therefore, sat that an appearance merely to contest the jurisdiction of the Court is

not voluntary and cannot be taken as submission to the jurisdiction.

NATIONALITY AS A GROUND OF JURISDICTION: -

In the case of Emmanuel Vs. Symons 13, a question arose i.e. “ is there any other

ground of jurisdictional competency other than the two mentioned presence and

submission?”

In action in personam there are five cases in which the Courts will enforce a foreign

judgment: -

12
1951 2 All E.R. 69)
13
(1908) K.B. 202

24
 1. Where the defendant is a subject of the foreign country ion which the

judgment has be obtained

2. Where he was resident in the foreign country when the action began

3. Where the defendant on the character of plaintiff has selected the forum ion

which he is afterward sued

4. Where he has voluntarily appeared

5. Where he was contracted to submit himself to the forum in which the

judgment was obtained

Of these the laser four covered by the grounds of presence and submission. The

first one, the fact that the defendant is the national of the concerned foreign

country is a sufficient jurisdictional ground is a doubtful proposition. There is

no direct English authority on this point.

Judgments in Rem

A judgment in rem is a judgment of a court of competent jurisdiction determining

the status of a person or a thing. It binds all persons claiming an interest ion the

subject matter of the judgment, while a judgment in personam brings only the

parties to the case. A judgment in rem looks beyond the individual rights of the

parties, but a judgment in personam is directly solely to the rights of the parties. It

is a well established principle of the Private International Law that a judgment

pronounced by a court of competent jurisdiction is an action in rem is accorded

25
universal recognition although the defendant is neither a resident of the foreign

country nor has submitted to the jurisdiction of its courts.

Finality of the Foreign Judgment: -

The second condition for the recognition and enforcement of foreign judgment is

that it should be a final adjunction i.e., it should amount to res judicata by the law

of the country where it was given. If the foreign judgment can be altered on later

proceedings between the same parties in the Court, it is not enforceable by action in

England. Thus provisional judgment or preliminary decrees given by the foreign

courts are not enforceable as they are not final.

The requirement of finality does not mean that there should be no right of appeal.

It only means that the judgment must be final in the particular country in which it

is pronounced. Therefore, the fact that the foreign judgment is likely to be reversed

in appeal or even the fact that an appeal is actually pending in the foreign country is

not a bar to an action in England. But is cases where an appeal is pending, the

English courts have the equitable jurisdiction to stay the action, and this is usually

exercised.

In the case of the judgment in personam, it is a condition for enforceability in

England that the judgment must be for a dived sum. The obligation to pay under a

foreign judgment can arise only in the case of a definite sum. So in the case of

actions in personam the foreign court should finally and definitely determine the

26
amount to be paid; otherwise an action on the foreign judgment is not maintainable

in England.

In the case of Sadler Vs. Robins14, a Court in Jamaica decreed that the defendant

should pay to the plaintiff a particular sum after deducting the full costs expended

by the defendant, the determination of which was left to an official of the court. It

was held that until the costs were finally determined, an action would not lie in

England as the sum under the Jamaican judgment was indefinite.

Conclusiveness of a Foreign Judgment: -

The question to be considered there is how far a foreign judgment can be impeached

before an English court on merits? It is now established beyond any doubt that the

foreign judgment given by a court of competent jurisdiction cannot be reopened in

England on merits. The English court is not entitled to investigate the propriety of the

proceedings in the foreign courts. If a party is not satisfied with the decision of the

foreign court, his proper course is to take appellate proceedings in the forum of the

judgment. It is not for the English Court to sit as a court of appeal against a foreign

judgment pronounced by a competent court.

The Effect of Mistake on Foreign Judgment: -

14
1808, Camp 253)

27
Following the above principle, it has become established that a foreign judgment is not

liable to be impeached in England in the ground that the foreign court was mistaken as to

the facts of the case or as to the foreign law applicable to the case.

In the case of Cammel Vs. Swell15many questions arose. They are: -

What if foreign court has committed a clear mistake as to the English Law when trying to

apply a rule of English Law?

If the foreign judgment has been founded on a mistaken motion of English law, should it

be still treated as conclusive?

The answer to this was that even an obvious mistake as to English law does not constitute

a bar to the enforcement of the judgment in England. Thus “the doctrine of foreign

judgment cannot be impeached as to merits has been carried to its logical conclusion.”

In the case of Godard Vs. Gray 16, the Plaintiffs (French men) sued the Defendants

(English men) in France on a contract, the proper law of which was English law. The

contract contained a clause: the penalty for the non – performance of this agreement,

estimated amount of freight”. The effect of such a clause in the English law is not to fix

the amount of damages exactly, but to leave the damages to be assessed according to the

actual loss suffered. But the French court mistakenly believing that the clause should be

taken in the natural sense fixed the damages payable by the defendant at the exact amount

of freight. When an action was instituted in England on the French judgment, the

defendants pleaded this mistaken view of English law as a defence.

15
1858 3 H & N 617)
16
1870 L.R. 6Q B139

28
The plea was rejected by the court. It was held that there can be no difference between a

mistaken as to English law and any other mistake. The remarkable result therefore is that

an English court may be compelled to enforce a foreign judgment solely based in a

complete error of English law.

The Position in Indian Law

The Indian Law under the civil Procedure Code cannot be said to be the same with

regard to the doctrine that a foreign judgment cannot be impeached in merits.

Clause (d) of section 13 of the civil Procedure code lays down that a foreign

judgment shall not be conclusive to it has not been given in the merits of the case.

Indian courts are competent not to enforce a foreign judgment, if it is not given ion

merits. This means that a foreign judgment can be examined to ascertain whether it

has been given on merit or not. In the case of Babu Nemi Chand Vs. Y.V. Rao 17, it

has been held that a decree passed without recording any evidence is not a judgment

in merit. In the case of D.T. Kaymer Vs. P. Viswanathan 18, a suit was filed against

the defendant in England and he duly entered appearance to answer the claim made

against him. When certain interrogatories were served on him, he refused to

answer them and on this defence was struck off and judgment was passed against

17
AIR 1948 Mad 448
18
1916 P.C. 121

29
him by the English court. When this judgment was sought to be enforced in India,

the defendant pleaded that the judgment was not on merits and hence was not

enforceable. The Privy Council held that the merits of the case were not

investigated and the judgment was not on merits.

In the case of Neelkanth Vs Vidya 19, it may be noted, however, that the enquiry is

only to see whether the foreign judgment has been given on the merits if the case. It

does not mean the Indian Court can reopen the whole case and examine the

correctness or otherwise of the decisions arrived at by the foreign court.

In the case of Mallappa Vs. Raghavendra20, “it was not open to this court trying the

suit on a foreign judgment to decide whether the decision of the foreign court was

right or not. The duty of the court was merely to see that the foreign court had

applied its mind to the facts and to the law”.

Enforcement of Foreign Judgments in the U.S.

If the time to appeal in the court of origin has lapsed, and the judgment has become final,

the holder of a foreign judgment, decree or order may file suit before a competent court

in the U.S. which will determine whether to give effect to the foreign judgment. The local

version of the Uniform Foreign Money Judgments Recognition Act applies in most

states, 13 U.L.A. 149 (1986).

Arbitration awards enjoy the protection of special treaties. The U.S. is a signatory to

international conventions regulating the enforcement of arbitration awards, viz,

19
1930 AC 138
20
1938 Bom 173

30
the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 21 UST

2517; TIAS 6997; 330 UNTS 3, and the Inter-American Convention on International

Commercial Arbitration, 14 I.L.M. 336 (1975). Ratified treaties in the U.S. are

considered "supreme law of the land".

A judgment rendered in a "sister" state or a territory of the U.S. is also referred to a

"foreign judgment". 47 states, the District of Columbia and the Virgin Islands have

adopted the Uniform Enforcement of Foreign Judgments Act, 13 U.L.A. 261 (1986),

which requires the states and the territories to give effect to the judgments of other states

and territories, if an exemplified copy of the foreign judgment is registered with the clerk

of a court of competent jurisdiction. California adopted the UFMJR Act in 1967. In New

York, a claimant may file a motion in lieu of complaint based on the foreign judgment,

properly authenticated, and served upon the adversary in advance.

The only U.S. states which have not adopted the Act are Indiana, Massachusetts and

Vermont. When seeking to enforce a judgment in or from a state that has not adopted the

Uniform Act, the holder of the judgment files a suit known as a "domestication" action.

Since the full faith and credit clause of the U.S. constitution requires that states honor the

judgments of other states, the domestication of a judgment from another state is generally

a formality, even in the absence of the expedited procedure under the UEFJA.

Exceptions

A state may not enforce a foreign judgment on the following grounds:

31
  The judgment was rendered in the absence of impartial tribunals or procedures

compatible with the requirements of due process of law;

 The foreign court did not have personal jurisdiction over the defendant;

 The foreign court did not have jurisdiction over the subject matter;

 The defendant did not receive notice of the proceedings in sufficient time to

enable him to defend;

 The judgment was obtained by fraud;

 The judgment is repugnant to the public policy of the state where enforcement is

sought;

 The judgment conflicts with another final and conclusive judgment;

 The proceeding in the foreign court was contrary to an agreement between the

parties under which the dispute was to be settled;

 In the case of jurisdiction based only on personal service, the foreign court was an

inconvenient forum for the trial; or

 The judgment seeks to enforce the revenue and taxation laws of a foreign

jurisdiction.

Defences available to an Action on a Foreign Judgment: -

When the action is brought on a foreign judgment, the defendant can escape liability

pleading any one of the following defences. These are a part from the plea of lack of

jurisdiction, that the judgment has been obtained by fraud, or that it is contrary to natural

justice or that it is repugnant to the public policy as understood in England.

LACK OF JURISDICTION

32
The most usual defence to an action on foreign judgment is that the foreign court had no

jurisdiction ion the international sense, i.e. according to the rules of English Private

International Law.

FOREIGN JUDGMENT OBTAINED BY FRAUD

Fraud is an extrinsic, collateral act; which vitiates the most solemn proceedings of the

Courts of Justice. It is settled that a foreign judgment, like any other judgment, can be

impeached for fraud. Therefore, it is a good defence to an action for the enforcement of

foreign judgment that the foreign judgment was itself was obtained by fraud. Such fraud

may take various forms. It may go to the very root of the international jurisdiction of the

foreign court as in cases of collusion between the parties to the proceedings (parties to a

divorce proceeding making a false statement that they were domiciled within the

jurisdiction of the foreign court). The fraud may be in the part of the successful party as

when he suppresses evidence or produces fake evidence, and misleads the court, it is true

that one cannot impeach a foreign judgment in alleging that the court was mistaken as to

facts or law. But one can allege that the court was misled because mistake and trickery

are essentially different. The fraud sometimes may be in the part of the court itself as

where it is interested in the subject matter if the suit or it had been bribed by one of the

parties. When there is fraud on the part of the foreign court itself, it is not only a case of

fraud, but also a case of denial of natural justice.

The difficult question in this area is whether in order to prove fraud the foreign judgment

could be reopened on merits. Foreign judgments are undoubtedly impeachable for fraud,

but it is a settled principle that foreign judgments cannot be reopened in merits. These

33
two principles are likely to come into conflict when fraud is sought to be clearly

established. In this situation it has been clearly laid down in more than one decision of

the court of Appeal that the principle of conclusiveness of foreign judgment will have to

give way when an allegation of fraud necessitates the reopening of the case. It is not

necessary to prove new facts to substantiate the plea of fraud in an action on foreign

judgment. An allegation of fraud can be sustained before English Court on the same facts

and evidence placed at the original trial in the foreign court. This of course, involves a

reopening of the case on merits in the English court.

In the case of Abouloff Vs Oppenheinmer 21 an action was brought on a Russian judgment

which ordered the defendant to return certain goods or pay their value. The defendant’s

main case before the Russian Court was that the allegation of the plaintiff was false as the

plaintiff herself was in possession of the goods; but judgment was given in favor of the

plaintiff. Before the English Court, one defence was that the Russian judgment was

obtained by fraud, in that the plaintiff had falsely represented to the Russian Court that

the defendant was on possession of the goods while as a matter of fact the goods were in

possession of the plaintiff. The plaintiff contended that the above plea was one which

was raised before the Russian Court which the Russian Court could and did in fact

consider and to examine it once again would mean the reopening of the case on merits.

Overruling this contention, Lord Escher said: “I will assume that in the suit in the Russian

Court the plaintiff’s fraud was alleged by the defendants and that they gave evidence in

support of the charge. I will assume even that the defendants give the very same

evidence which they propose to adduce in this action; nevertheless the defendants will

21
1882, 10 QBD 295

34
not be debarred at the trial of this action from making the same charge of fraud and from

adducing the same evidence in support of it”.

In the case of Vadala Vs. Lawes22, a simple point was raised that whether an allegation of

fraud fully investigated by the foreign court could once again be investigated by the

English Court, when an action is brought before it on the foreign judgment. In this case

the plaintiff sued the defendant before an Italian Court for the non – payment of certain

bills of exchange. The principle defence was that the bills though purported to be

ordinary commercial bills, were given in gambling transactions without the defendant’s

authority. This defence was tried on merits and found against by the Italian court.

In action on the Italian judgment before the English court, the defence was fraud, fraud

consorting in the fact that the plaintiff induced the foreign court to come to a wrong

conclusion by adducing false evidence. The court of Appeal unanimously held that the

English Court could re – examine the matter although no evidence was adduced and

9rdered a new trial for finding our whether the bills were given for genuine mercantile

dealings of for gambling transaction.

“if the fraud upon the foreign court consists of the fact that the plaintiff had induced that

court by fraud to come to a wrong conclusion, one can reopen the whole case even

although one will have in this court to go into the very facts which were investigated and

which were in issue in the foreign court. The fraud practices on the court, or alleged to

have been practiced in the court, or alleged to have been practiced in the court, was

misleading of the court by evidence known by the plaintiff to be false”.

22
1890, 25 QBD 310

35
According to Cheshire, the effect of the decisions is that the doctrine as to the

conclusiveness of foreign judgments is materially and moist illogically prejudiced.

In the case of Sankaran Govindan Vs Lakshmi Bharathi 23, the administrators of Dr,

Krishnan’s estate raised the question whether Dr. Krishnan died domiciled in England by

proceedings before the High Court in England and on the strength of affidavits and oral

evidence adduced the High Court came to the conclusion that

Dr. Krishnan died domiciled the England. In District Court and the High Court of

Kerala, this finding of the English Court was challenged on the ground of fraud. The

contention was that the English Court was misled by adducing gales evidence. The

Kerala High Court found that the decision of the English Court was opposed upon it by

evidence which was known to be false buy the party adducing it. On appeal this finding

of the High Court was reversed by the Supreme Court. After referring to the two above

cases, Justice Matthew J, said that he was not prepared to accept a position which would

permit a retrial of an issue already determined by a foreign court under the guise of

alleging fraud. That the foreign judgment was obtained by trickery or false evidence

should be established not by the same evidence adduced ion the foreign court, but by new

evidence not known to the parties at the time of the former trial. Otherwise, it will

simply be making a mockery of the doctrine of conclusiveness of foreign judgments are

re – establishing the discredited view that a foreign judgments is only prima facie

evidence of a debt and can be re – examined on merits.

23
AIR 1974 SC1764

36
FOREIGN JUDGMENTS CONTRATRY TO THE PUBLIC POLICY OF ENGLISH

LAW: -

An action on a foreign judgment cannot be sustained in England of the judgment is

contrary to the principles pf English Policy or if the judgment was given in a proceeding

of penal or revenue nature, cases where enforcement or foreign judgments have been

successfully prevented by the plea of violation of public policy are extremely rare. In the

case of Re Mac Cartney24, a Maltese judgment ordered a person to pay to his illegitimate

daughter perpetual maintenance (i.e. without any time limit such as during her minority).

This judgment was sought to be enforced by an action on England. It was held that no

action on Maltese judgment lay in England because the general recognition of permanent

rights of illegitimate children as recognized on Malta was contrary to the established

policy of England.

FOREIGN JUDGMENT CONTRARY TO NATURAL JUSTICE

At common law an action on a foreign judgment can be defended on the ground that the

proceedings of the foreign court were opposed to natural justice. But it is extremely

difficult to indicate the cases in which the contravention is of such nature as to justify a

refusal of enforcement. The proceedings are not contrary to natural justice merely

because the judgment is manifestly wrong. Also the proceedings cannot be said to be

opposed to natural justice merely because the court admitted evidence which is

inadmissible in England or did not admit evidence which is admissible in England.

24
1921 1CH 522

37
When applied to foreign judgments, the expression “contrary to natural justice” relates

merely to alleged “irregularities in the procedure adopted by the adjudicating court and

has nothing to do with the merits of case.

It is not enough that the proceedings are in accordance with the practice of the foreign
25
court. In the case of Crawley Vs Issacs aptly quoted that “If proceedings be in

accordance with the practice of the foreign court, but that practice is not in accordance

with justice, the court will not allow itself to be concluded by them”.

If the Defendant has been deprived of an opportunity to present his side of the case it is

clearly a violation of natural justice because the maxim audi alteram partem is deemed to

be of universal and not merely of domestic application.

The maxim applies in the case of exercise jurisdiction over absent defendants. But care

should be taken not to confuse absence of jurisdiction form violation of natural justice. If

the mode of citation or summoning the defendant is manifestly insufficient as judges by

any civilized standard, the procedure can be regarded as contrary to natural justice. There

may be case where though the litigant was present at the proceeding he was unfairly

prejudiced in the presentation of the case before the court. This can amount to a violation

of natural justice. For instance, if the party was totally denied the right to argue the case

though he was present in court, clearly a violation of natural justice is involved.

Defences to Foreign Judgment under Indian Law: -

25
1867 16 LT 529

38
According to Section 13 of the Civil Procedure Code, the following defences are

available against the enforcement of foreign judgment in India, that : -

1. the judgment has not been pronounced by a Court of competent jurisdiction

2. it has not been on the merits of the case

3. it appears on the face of proceedings to be founded on an incorrect view of

international law or a refusal to recognize the law of India in cases were it is

applicable

4. the proceedings in which it was obtained are opposed to natural justice

5. it has been obtained by fraud

6. it sustains a claim founded on a breach of any law in force in India.

Conclusion: -

It is thus clear that owing to the principle of territorial sovereignty, judgment delivered by

a court in one country cannot be executed or put it into operation directly in another

country, in the absence of an inter – state agreement to the effect. It follows that a

judgment given by French Court cannot be directly executed in England by an English

Court. Nonetheless, English courts have long recognized and enforced foreign judgments

with certain defined limits. Such recognition and enforcement is essential if one of the

prime objectives of Private International Law, namely the protection of rights acquired

under the foreign system of law, is to be attained in any substantial measure. Today, mist

of the commonwealth countries including India and the United States of America give

39
recognition to foreign judgment. Continental system if law also recognizes foreign

judgments mainly it appears, on the basis of reciprocity.

40