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In law, the enforcement of foreign judgments is the recognition and enforcement in one
jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. J ...
of
judgments Judgement (or US spelling judgment) is also known as ''adjudication'', which means the evaluation of evidence to make a decision. Judgement is also the ability to make considered decisions. The term has at least five distinct uses. Aristotl ...
rendered in another ("foreign") jurisdiction. Foreign judgments may be recognized based on
bilateral Bilateral may refer to any concept including two sides, in particular: *Bilateria, bilateral animals *Bilateralism, the political and cultural relations between two states *Bilateral, occurring on both sides of an organism ( Anatomical terms of l ...
or multilateral
treaties A treaty is a formal, legally binding written agreement between actors in international law. It is usually made by and between sovereign states, but can include international organizations, individuals, business entities, and other legal pers ...
or understandings, or unilaterally without an express international agreement.


Definition of terms

The "recognition" of a foreign judgment occurs when the
court A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in acco ...
of one country or jurisdiction accepts a judicial decision made by the courts of another "foreign" country or jurisdiction, and issues a judgment in substantially identical terms without rehearing the substance of the original lawsuit. In English law, there is a clear distinction between recognition of foreign judgments, and enforcement of foreign judgments. Recognition means treating the claim as having been determined in favour of one of the litigating parties. This is an acknowledgment of foreign competence and of the settling of a dispute, known as
res judicata ''Res judicata'' (RJ) or ''res iudicata'', also known as claim preclusion, is the Latin term for "a matter decided" and refers to either of two concepts in both civil law and common law legal systems: a case in which there has been a final jud ...
. Enforcement, by contrast, is the implementation of the judgment. In American legal terminology, a "foreign" judgment means a judgment from another state in the United States or from a foreign country. To differentiate between the two, more precise terminology used is "foreign-country judgment" (for judgments from another country) and "foreign sister-state judgment" (from a different state within the United States). Once a foreign judgment is recognized, the
party A party is a gathering of people who have been invited by a host for the purposes of socializing, conversation, recreation, or as part of a festival or other commemoration or celebration of a special occasion. A party will often featu ...
who was successful in the original case can then seek its enforcement in the recognizing country. If the foreign judgment is a money judgment and the debtor has assets in the recognizing jurisdiction, the judgment creditor has access to all the enforcement remedies as if the case had originated in the recognizing country, e.g.
garnishment Garnishment is a legal process for collecting a monetary judgment on behalf of a plaintiff from a defendant. Garnishment allows the plaintiff (the "garnishor") to take the money or property of the debtor from the person or institution that holds t ...
, judicial sale, etc. If some other form of judgment was obtained, e.g. affecting
status Status (Latin plural: ''statūs''), is a state, condition, or situation, and may refer to: * Status (law) ** City status ** Legal status, in law ** Political status, in international law ** Small entity status, in patent law ** Status confere ...
, granting injunctive relief, etc., the recognizing court will make whatever orders are appropriate to make the original judgment effective. Foreign judgments may be recognized either unilaterally or based on principles of
comity In law, comity is "a practice among different political entities (as countries, states, or courts of different jurisdictions)" involving the " mutual recognition of legislative, executive, and judicial acts." Etymology Comity derives from th ...
, i.e. mutual deference between courts in different countries. In English courts, the basis of the enforcement of foreign judgments is not comity, but the doctrine of obligation. Between two different States in the United States, enforcement is generally required under the
Full Faith and Credit Clause Article IV, Section 1 of the United States Constitution, the Full Faith and Credit Clause, addresses the duty that states within the United States have to respect the "public acts, records, and judicial proceedings of every other state." Acco ...
(Article IV, Section 1) of the U.S. Constitution, which compels a State to give effect to another State's judgment as if it were local. This usually requires some sort of an abbreviated application on notice, or docketing. Between one State in the United States, and a foreign country, e.g. Canada, the prevailing concept is
comity In law, comity is "a practice among different political entities (as countries, states, or courts of different jurisdictions)" involving the " mutual recognition of legislative, executive, and judicial acts." Etymology Comity derives from th ...
. The Court in the United States, in most cases, will unilaterally enforce the foreign judgment, without proof of diplomatic reciprocity, either under judge-made law or under specific statutes. Recognition will generally be denied if the judgment is substantively incompatible with basic legal principles in the recognizing country. For example, U.S. courts, in accordance with the Securing the Protection of our Enduring and Established Constitutional Heritage Act, are prohibited from recognizing or enforcing foreign libel judgments against any
United States person The term United States person or US person is used in various contexts in US laws and regulations with different meanings. It can refer to natural persons or other entities. Data collection and intelligence The term "US person" is used in the c ...
unless the foreign country in which the judgement was made protects freedom of speech to at least the same degree as the United States and the foreign court's conduct of the case in which the judgement was reached respected the
due process Due process of law is application by state of all legal rules and principles pertaining to the case so all legal rights that are owed to the person are respected. Due process balances the power of law of the land and protects the individual per ...
guarantees of the U.S. Constitution to the same extent as a U.S. court would have.


Exercise of jurisdiction in recognition cases

If the country that issued the judgment and the country where recognition is sought are not parties to the Hague Convention on Foreign Judgments in Civil and Commercial Matters (as of December 2017, only ratified by
Albania Albania ( ; sq, Shqipëri or ), or , also or . officially the Republic of Albania ( sq, Republika e Shqipërisë), is a country in Southeastern Europe. It is located on the Adriatic and Ionian Seas within the Mediterranean Sea and share ...
,
Cyprus Cyprus ; tr, Kıbrıs (), officially the Republic of Cyprus,, , lit: Republic of Cyprus is an island country located south of the Anatolian Peninsula in the eastern Mediterranean Sea. Its continental position is disputed; while it is ...
,
Kuwait Kuwait (; ar, الكويت ', or ), officially the State of Kuwait ( ar, دولة الكويت '), is a country in Western Asia. It is situated in the northern edge of Eastern Arabia at the tip of the Persian Gulf, bordering Iraq to Iraq–Ku ...
, the
Netherlands ) , anthem = ( en, "William of Nassau") , image_map = , map_caption = , subdivision_type = Sovereign state , subdivision_name = Kingdom of the Netherlands , established_title = Before independence , established_date = Spanish Netherl ...
and
Portugal Portugal, officially the Portuguese Republic ( pt, República Portuguesa, links=yes ), is a country whose mainland is located on the Iberian Peninsula of Southwestern Europe, and whose territory also includes the Atlantic archipelagos of th ...
), the
Brussels regime The Brussels Regime is a set of rules regulating which courts have jurisdiction in legal disputes of a civil or commercial nature between individuals resident in different member states of the European Union (EU) and the European Free Trade As ...
(all European Union countries, as well as Iceland, Norway and Switzerland) or a similar treaty or convention providing for the routine of registration and enforcement between states, the courts of most states will accept
jurisdiction Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels. J ...
to hear cases for the recognition and enforcement of judgments awarded by the courts of another state if the
defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one jurisd ...
or relevant assets are physically located within their territorial boundaries. Whether recognition will be given is determined by the
lex fori In conflict of laws, the term ''lex loci'' (Latin for "the law of the place") is a shorthand version of the choice of law rules that determine the '' lex causae'' (the laws chosen to decide a case).''Black's Law Dictionary'' abridged Sixth Edition ( ...
, i.e. the domestic
law Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
of the court where recognition is sought, and the principles of
comity In law, comity is "a practice among different political entities (as countries, states, or courts of different jurisdictions)" involving the " mutual recognition of legislative, executive, and judicial acts." Etymology Comity derives from th ...
. The following issues are considered: *Whether the foreign court properly accepted personal jurisdiction over the
defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one jurisd ...
; *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 In English law, natural justice is technical terminology for the rule against bias (''nemo iudex in causa sua'') and the right to a fair hearing ('' audi alteram partem''). While the term ''natural justice'' is often retained as a general c ...
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 In law, fraud is intentional deception to secure unfair or unlawful gain, or to deprive a victim of a legal right. Fraud can violate civil law (e.g., a fraud victim may sue the fraud perpetrator to avoid the fraud or recover monetary compen ...
; and *Whether the judgment offends the
public policy Public policy is an institutionalized proposal or a decided set of elements like laws, regulations, guidelines, and actions to solve or address relevant and real-world problems, guided by a conception and often implemented by programs. Public ...
of the local state. There is a general reluctance to enforce foreign judgments which involve multiple or punitive
damages At common law, damages are a remedy in the form of a monetary award to be paid to a claimant as compensation for loss or injury. To warrant the award, the claimant must show that a breach of duty has caused foreseeable loss. To be recognised at ...
. 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 Sovereignty is the defining authority within individual consciousness, social construct, or territory. Sovereignty entails hierarchy within the state, as well as external autonomy for states. In any state, sovereignty is assigned to the perso ...
. Consequently, it can be difficult to persuade some courts to enforce some U.S. judgments. The
Hague choice of court convention The Hague choice of court convention, formally the Convention of 30 June 2005 on Choice of Court Agreements, is an international treaty concluded within the Hague Conference on Private International Law. It was concluded in 2005, and entered into ...
provides for the recognition of judgement given by the court chosen by the parties in civil and commercial cases in all other parties to the convention. The convention has, as of 2013, not entered into force. Regarding maintenance obligations, the
Hague Maintenance Convention The Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, also referred to as the Hague Maintenance Convention or the Hague Child Support Convention is a multilateral treaty governing the enforcem ...
(in force between Albania, Bosnia and Herzegovina, and Norway) provides for recognition of all kinds of maintenance-related judgements (including child support).


Enforcement of foreign judgments in the United States

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. A local version of the Uniform Foreign Money Judgments Recognition Act applies in most states, for example in California, 13 U.L.A. 149 (1986). A judgment rendered in a "sister" state or a territory of the U.S. is also referred to as a "foreign judgment". 48 states, the District of Columbia, the
Northern Mariana Islands The Northern Mariana Islands, officially the Commonwealth of the Northern Mariana Islands (CNMI; ch, Sankattan Siha Na Islas Mariånas; cal, Commonwealth Téél Falúw kka Efáng llól Marianas), is an unincorporated territory and commonw ...
, and the U.S. Virgin Islands have adopted the Uniform Enforcement of Foreign Judgments Act (UEFJA), 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 along with an affidavit stating certain things. The only U.S. states which have not adopted the Uniform Enforcement of Foreign Judgments Act are California and Vermont. New York State and Connecticut are two of a small minority of U.S. jurisdictions that do not simply allow a judgment creditor to file a foreign judgment from a sister state if the judgment was obtained by default (meaning the other side never showed up for to contest its entry in the other state by, for example, defending himself at trial) or the judgment was obtained by confession (meaning the other side signed paperwork allowing a judgment to be entered against him). Instead, a party wishing to domesticate the foreign default judgment or foreign judgment obtained by confession must bring another action in New York State "on the judgment" where the relief sought is to have the foreign judgment domesticated in New York State. Moreover, a quicker "motion-action" procedure is available in New York where the owner of the foreign default judgment/judgment by confession files a summons and notice of motion for summary judgment in lieu of complaint. 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 Article IV, Section 1 of the United States Constitution, the Full Faith and Credit Clause, addresses the duty that states within the United States have to respect the "public acts, records, and judicial proceedings of every other state." Acco ...
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. To solve the problem of
libel tourism Libel tourism is a term, first coined by Geoffrey Robertson, to describe forum shopping for libel suits. It particularly refers to the practice of pursuing a case in England and Wales, in preference to other jurisdictions, such as the United State ...
, the
SPEECH Act In the philosophy of language and linguistics, speech act is something expressed by an individual that not only presents information but performs an action as well. For example, the phrase "I would like the kimchi; could you please pass it to me? ...
makes foreign
libel Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defi ...
judgments unenforceable in U.S. courts, unless those judgments are compliant with the U.S. First Amendment. The act was passed by the
111th United States Congress The 111th United States Congress was a meeting of the legislative branch of the United States federal government from January 3, 2009, until January 3, 2011. It began during the last weeks of the George W. Bush administration, with th ...
and signed into law by President
Barack Obama Barack Hussein Obama II ( ; born August 4, 1961) is an American politician who served as the 44th president of the United States from 2009 to 2017. A member of the Democratic Party (United States), Democratic Party, Obama was the first Af ...
.


Exceptions

A state may not enforce a foreign-country judgment in the following cases: * The judgment was not rendered by an impartial tribunal under 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; * The judgment seeks to enforce the revenue and taxation laws of a foreign jurisdiction; * The judgement was obtained through an illegal transaction; * The judgement is not conclusive.


Recognition and enforcement in England and Wales

In
England and Wales England and Wales () is one of the three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. The substantive law of the jurisdiction is En ...
, three avenues of enforcement methods and recognition rules exist: * Statutory registration of foreign judgments regarding
European Union The European Union (EU) is a supranational union, supranational political union, political and economic union of Member state of the European Union, member states that are located primarily in Europe, Europe. The union has a total area of ...
Member State A member state is a state that is a member of an international organization or of a federation or confederation. Since the World Trade Organization (WTO) and the International Monetary Fund (IMF) include some members that are not sovereign state ...
s through Brussels Recast Regulation. * Statutory application of foreign states which are party to bilateral
treaties A treaty is a formal, legally binding written agreement between actors in international law. It is usually made by and between sovereign states, but can include international organizations, individuals, business entities, and other legal pers ...
. * Common law rules for foreign states which do not fall into the above categories.
Judgment Judgement (or US spelling judgment) is also known as ''adjudication'', which means the evaluation of evidence to make a decision. Judgement is also the ability to make considered decisions. The term has at least five distinct uses. Aristotle s ...
s operating
in personam ''In personam'' is a Latin phrase meaning "against a particular person". In a lawsuit in which the case is against a specific individual, that person must be served with a summons and complaint (E&W known as Particulars of Claim (CPR 1999) to give ...
, such as those not relating to
in rem ''In rem'' jurisdiction ("power about or against 'the thing) is a legal term describing the power a court may exercise over property (either real or personal) or a "status" against a person over whom the court does not have ''in personam'' jurisd ...
property rights, are only recognised as effective against particular parties, the material question becomes whether the judgment debtor is bound to abide to the judgment. It is recognised as binding on and against the party against whom it was given only if it was delivered by a court which, according to English law, was competent to deliver a judgment. Jurisdictional rules with regard to the foreign court are irrelevant. It is thus crucial for the court to determine whether the adjudicating court's own standards for recognition are satisfied by the facts; the adjudicating court must be satisfied not that the foreign court bears jurisdiction under its own rules, but whether, in the eyes of the English court, the foreign court has an 'international jurisdiction' competence. Once the court has been satisfied that it is right to recognise a foreign judgment as settled, known as ''
res judicata ''Res judicata'' (RJ) or ''res iudicata'', also known as claim preclusion, is the Latin term for "a matter decided" and refers to either of two concepts in both civil law and common law legal systems: a case in which there has been a final jud ...
'', the party may then seek to enforce the foreign judgment. In order for a judgment to be considered ''res judicata'', it must be final and conclusive in the court which pronounced it. Enforcement, as will be seen, is about collecting a debt. To be enforceable, a judgment must be recognised and must be a judgment for a fixed sum of money. In England and Wales, only money judgments with settled amounts are capable of being enforceable. English courts do not enforce foreign judgments, and a judgment creditor must bring a cause of action under English law and use the recognised foreign judgment to serve as conclusive evidence of an outstanding debt. The judgment must be on the merits, as held in ''The Sennar No 2
985 Year 985 ( CMLXXXV) was a common year starting on Thursday (link will display the full calendar) of the Julian calendar. Events By place Europe * Summer – Henry II (the Wrangler) is restored as duke of Bavaria by Empress Theoph ...
1 WLR 490''. There are two purposes for effecting recognition of a foreign judgment. Firstly, if a party defeats a foreign case, he may seek recognition of that decision to estop a party from bringing another action against him in England. By contrast, should a party succeed in a foreign action, he may seek to enforce the action in England. The judgment creditor need not have to succeed at every point within the foreign action. It had previously been the case that if the foreign claimant had been partially successful, he was entitled to sue on the cause in action again within England. Section 34 of the Civil Jurisdiction Judgment Act 1982 was subsequently passed by parliament to remove the right to sue a second time. A court's judgment is an exercise of
sovereign ''Sovereign'' is a title which can be applied to the highest leader in various categories. The word is borrowed from Old French , which is ultimately derived from the Latin , meaning 'above'. The roles of a sovereign vary from monarch, ruler or ...
power; it is this principle that underpins the English position that no foreign judgment will have an effect in England and, conversely, that the English courts cannot expect an English judgment to have any effect abroad. Exceptions to the limitation on foreign judgments are set out through parliament. The Brussels Recast Regulation operates as the primary procedural scheme relating to foreign judgments, their recognition and enforcement. Recognition is automatic between member states, barring exceptions set out in Chapter III of the regulation. This is consistent with the EU principles of a single economic market where courts and government departments can be trusted to get things right. Under the common law, recognition is limited to a certain set of criteria. As adjudication is considered a sovereign act, the common law has developed the concept of
comity In law, comity is "a practice among different political entities (as countries, states, or courts of different jurisdictions)" involving the " mutual recognition of legislative, executive, and judicial acts." Etymology Comity derives from th ...
to determine circumstances where recognition and enforcement acknowledged and respected the foreign sovereign act sufficiently to enforce it domestically. This was pioneered in '' Hilton v Guyot''. A judgment may therefore be reduced to four components: *The foreign judgment has no force, as a judgment, outside the place it was given because adjudication is an act of sovereign power; *Comity favours giving effect to foreign judgments and the question then is as to which foreign judgments ought to be recognised; *If the parties have had a full and proper trial before a reasonable court, the judgment is accepted at face value as res judicata; *If the law of the court which has adjudicated would not accept an equivalent judgment at face value, it will not enjoy reciprocity.Adrian Briggs, ''The Principle of Comity in Private International Law'', Chapter IV: "Comity in the Enforcement of judgments", Volume 354, Brill, 145–156 Reciprocity is not the central tenet of recognition, but rather it is suggested that it is the doctrine of obligation. This sits at the apex of an interplay between sovereignty, comity, consent, and reciprocity. Accepting reciprocity would allow foreign judgments to shape the English common law. By contrast, '' Adams v Cape Industries plc'' specifically rejected comity as the basis for recognition or non-recognition of judgments because it was insufficiently hard-edged for the demands. However, comity remains valuable for examining the doctrine of recognition insofar as it underpins the principle that a domestic court cannot examine the substantive validity of the foreign court's action – as it cannot claim to hold more competence – nor does it pretend that it must enforce the foreign court's decision. Comity for the sovereignty of courts is insufficient for enforcing recognition because does not consistently determine a stringent enough rule for when sovereignty is to be accepted as a proper application onto the parties and when it is not recognised on the grounds that the parties ought not to be bound. The Canadian approach, set forth in '' Beals v Saldanha'', was one of a more open enforcement of foreign judgments by enforcing the foreign judgment if the foreign jurisdiction can be determined (by the Canadian court) as being the natural forum for the resolution of the dispute, or that there was a real and substantial connection between the foreign jurisdiction and the dispute. This is a substantial deviation from the English approach, and one that, in the English context, would bring forth more problems than it would solve. By contrast, the doctrine of obligation, engaged between the two adjudicating parties, underpins the English approach. It focuses on the action of the defendant, whereas the Canadian approach does not focus on the defendant's action.


Common law recognition rules

The first of two broad bases for recognition within the Common law rules in England and Wales is set forth in '' Adams v Cape Industries plc''. Where a party was present within the territory of the adjudicating court when proceedings instituted, the court will bind the party to the decision of the court so long as the adjudications are recognised as conclusive. The question of whether the judgment will be ''enforced'' will be a separate matter. Secondly, if a party is shown to have agreed with his opponent, by word or action, to abide by the judgment of the court, private agreement is sufficient for recognising the substance of the judgment as ''res judicata''. Only English judgments are recognised in England, if the foreign court is competent, under English rules, and there is no defence to recognition, then the foreign judgment will be recognised and enforced. If a wants to use the foreign judgment as a sword, then he will need to bring new proceedings in English common law using the foreign judgment as evidence to his claim. The rules cannot and do not distinguish foreign courts with a reputation for excellence and foreign courts with less rigorous standards. Under the common law rules, the English court will not recognise judgments unless they are held to be final in their court of origin. This means that the matter cannot be reopened by the court which made the ruling. The matter may be subject to an ordinary appeal, but that will not be determined as a court reopening a matter. An interlocutory matter may be recognised if it represents the final word of the court on the point in issue. A difficulty arises in relation to default judgments which will often be liable to re-opening in the court in which they were entered. English courts form the basis of recognition on: *Presence; meaning that the defendant was present in the foreign jurisdiction when proceedings began; or *Submission; that the defendant to a foreign adjudication submitted to accept the foreign court's adjudication. Nationality is no longer credible reasoning for recognition of foreign judgments.


=Present when proceedings were begun

= The first category of recognition is where the defendant was present when proceedings began. Two primary definitions exist: one relating to individuals, the second to corporations. Academic criticism has extended from the use of presence rather than residence; however, residence on the date of when proceedings were begun creates uncertainty. It is difficult to determine whether a party who spends two years aboard is resident there. However, authority suggests that residence without presence at the material time would still suffice if the relevant time was at the service of process representing the start of legal proceedings. The leading authority within is ''
Adams v Cape Industries ''Adams v Cape Industries plc'' 990Ch 433 is a UK company law case on separate legal personality and limited liability of shareholders. The case also addressed long-standing issues under the English conflict of laws as to when a company would b ...
'', setting out that presence, as distinct from residence is necessary. With regard to individuals, the court has held that it will mean that the defendant must be within the jurisdiction of a court when the proceedings were instituted, meaning service or notice that proceedings had begun. Presence at the time of the trial is not used as a defendant could simply leave the jurisdiction upon becoming aware. By contrast, in ''Adams v Cape'' the question of whether a company was present was to analogise from the reasoning of human beings. The court must be either able to determine presence as (a) servants of the corporation carrying on its business from a fixed place maintained by the corporation, or (b) a representative of the corporation carrying on the business of the corporation from a fixed place. Either of these criteria will determine the company is present. This is designed to prevent the argument that the company is present wherever a company officer or director is present. If the representative/servant has the power to bind the corporation into a contract without seeking approval from other entities abroad, presence will be determined. The difficulty of determining presence of a company derives primarily because it is difficult to apply to the margins. Travelling salesmen certainly operate in jurisdictions on behalf of companies, enjoying the benefit of economic markets, and under the current criteria would not be considered "present". The U.S. model operates on the assumption that the conclusion of any contract will bind the corporation in that jurisdiction. Further, the common law's ignorance as to the content of the judgment itself. This was seen notably in ''Adams v Cape'' itself. The effect of corporate presence is that any claim relating whatsoever can be brought against the corporation, regardless of the work the corporation conducts within the jurisdiction.


=Not present but agreed to accept the adjudication of the foreign court

= The second criterion where a party may be subject to a foreign judgment recognised in England is where the defendant has accepted the foreign court. This is consistent with the English court's approach to a choice of jurisdiction clause: a judgment will be denied recognition at common law if the adjudicating court failed to give effect to a choice of court clause or arbitration agreement. A party will not sufficiently submit to a jurisdiction by simply agreeing to a contract in a foreign jurisdiction. If, for example, parties 'A' and 'B' agreed to be bound to a contract which included the terms "this contract shall be governed by the law of England and Wales and the English courts shall have exclusive jurisdiction to decide matters arising from the contract", both parties will be unable to commence proceedings in New York, even if the New York court considers the exclusive jurisdiction clause to be invalid. If 'A' brings proceedings, the English court will not recognise the judgment of a New York court regardless of whether 'B' attends the foreign jurisdiction to contest the jurisdiction of the New York court. Section 33 of the
Civil Jurisdiction and Judgments Act 1982 The Civil Jurisdiction and Judgments Act 1982 (c.27) is an Act of the Parliament of the United Kingdom, which was passed to implement the Brussels Convention of 1968 into British law. As well as governing whether the Courts of England and Wales, ...
altered the previous common law approach. It provided a defence to attending a foreign court for the purposes of challenging the jurisdiction of the court. There is considerable academic debate as to whether, after the foreign court determines jurisdiction, party 'B' can continue to forward a defence so long as he contests jurisdiction at every opportunity. In doing so, the defendant may well have the opportunity to enjoy two attempts at defending the action, first seeking to defend the action abroad, and secondly operating with the confidence that they will be protected by Section 33 of the 1982 Act.


=Defences to English recognition

= Should a defendant seek to defend against recognition of a foreign judgment, several defences exist which might prevent the English court from recognising the action. The primary gateway for defending recognition in the English courts is that of fraud, which is said to unravel all foreign judgments. A judgment will be denied recognition as ''res judicata'' and there can therefore be no question of its enforcement if any of the defences allowed by English international private law are made out. The English court does not review the merits of the foreign judgment. One cannot claim that the foreign court failed to consider facts. It is also not possible to argue that the foreign court reached the wrong decision on the facts. The court is further not concerned with the competence of the issuing court. Six possible defences exist: *Disregard of arbitration or choice of court agreements *Lack of local jurisdiction *Fraud *Breach of procedural fairness *
Public policy Public policy is an institutionalized proposal or a decided set of elements like laws, regulations, guidelines, and actions to solve or address relevant and real-world problems, guided by a conception and often implemented by programs. Public ...
*Prior English judgment


Common law enforcement

The only foreign judgment which can be enforced in England is a money judgment for which a party will sue on the debt. Should a foreign court apply specific performance, a party may sue in England on the same cause of action as the foreign judgment and use the foreign judgment on the merits to seek a similar order from the English courts. It is the obligation, not the judgment, that is enforced. Only final judgments for fixed sums of money can be enforced. A foreign country court has jurisdiction to give a judgment ''in personam'' in four cases. ''Murthy v Sivajothi'' 9931 WLR 467 upheld the recognition of ''res judicata''.


Bilateral treaties

Two parliamentary acts enforce jurisdictional rules. In particular, these apply to
Commonwealth A commonwealth is a traditional English term for a political community founded for the common good. Historically, it has been synonymous with "republic". The noun "commonwealth", meaning "public welfare, general good or advantage", dates from the ...
matters and operate close to the current common law. The first is the Administration of Justice Act 1920 where Part II applies to former colonial jurisdictions such as New Zealand, Nigeria, and Singapore. If the judgment is still subject to an appeal in the ordinary, it cannot be registered. The second parliamentary statute which allows for enforcement and recognition is the Foreign Judgments (Reciprocal Enforcement) Act 1933, which enforces civil and commercial matters from designated courts in countries with bilateral agreements, such as Canada. Instead of it being necessary to commence original proceedings by service, the statutes allow the judgement creditor, the party seeking to enforce a foreign jurisdiction, to merely register the judgment for direct enforcement. This produces the same effect as if the foreign action had been an English judgment. Respondents may apply to set aside the registration as specified by the statutory instruments.


Brussels Recast Regulation

Succeeding the Brussels I Regulation, the Brussels Recast Regulation allocates jurisdiction between member states using Chapters I and II of the regime. Chapter III of the Recast Regulation implements articles relating to the automatic recognition and enforcement of Member State judgments. Except in very limited circumstances, it is not possible to claim that the court should not have adjudicated because it misinterpreted the rules on jurisdiction within Brussels. This is because jurisdiction rules are the same in all member states under the regulation. If the defendant thought that the foreign court was wrong, it should have, and could have, challenged jurisdiction at the first instance.


Enforcement of foreign arbitration awards in the U.S.

Arbitration awards enjoy the protection of special treaties. The U.S. is a signatory to international conventions regulating the enforcement of arbitration awards, including the
Convention on the Recognition and Enforcement of Foreign Arbitral Awards The Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly 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 ...
(often referred to as the "New York Convention"), and the Inter-American Convention on International Commercial Arbitration, 14 I.L.M. 336 (1975). Ratified treaties in the U.S. are considered the "supreme law of the land".


References

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External links


NY CPLR Article 53The enforcement of foreign judgments in France
Conflict of laws Judicial remedies Bankruptcy Legal procedure