Foreign judgments/
awards
-Amrita Bogati
Topics
• Actionability of foreign judgments/ awards
• Conclusiveness of foreign judgments / awards
• Defense
Actionability of foreign
judgments / awards
• Recognition and enforcement of foreign judgments
is one of the three parts of conflict of laws, besides
jurisdiction and choice of law.
• There are some conditions to be fulfilled so that the
foreign judgments may be actionable:
a. Jurisdiction
b. Valid final on merits
c. Procedural requirements
d. Public policy and international and natural justice
a. Jurisdiction
• Recognition of a foreign judgment requires that the
rendering court had jurisdiction. It is well
established rule that no foreign judgment can be
enforced or recognized which has been pronounced
by a court having no jurisdiction in the cause.
• The competency of the foreign court is determined
by the rules of private international law and not by
rules of the law of the forum or by the law of the
country where the foreign court is situated.
• English law classifies judgments into two heads:
judgments in personam and judgments in rem.
Judgments in personam
• As per the obligation theory, since the foreign
judgment imposes an obligation upon the
defendant, therefore it is enforceable elsewhere.
But if no obligation is imposed then he is not
bound.
• The jurisdiction in personal action depends upon
the presence of the defendant within the
jurisdiction.
Mallappa Yellappa vs
Raghavendra Sham Rao,
ILR 1938
• The foreign court may have jurisdiction if the defendant:
i. Subject of the foreign country;
ii. Resident in the foreign country while action has begun
against him;
iii. Served with process while temporary present within the
foreign country;
iv. If the defendant in his character as plaintiff in the foreign
action has selected the forum where the judgment was
given against him;
v. Has voluntarily appeared before the foreign court;
vi. Has contracted to submit to the jurisdiction of the foreign
court.
Judgments in rem
• The judgments in rem are not confined to tangibles;
they include intangibles also.
• A judgment in rem is a judgment under:
i. Possession or property in a thing is adjudicated
to a person
ii. The sale of a thing
iii. The status
iv. Property is ordered to be sold by way of
administration in bankruptcy or death..
• The foreign court has jurisdiction in action n rem even if
the defendant is neither a resident of the foreign country
nor has submitted to the jurisdiction of its courts.
• In the city of Mecca case, a collision had occurred on the
high seas between Spanish ship and British ship. The
owners of Spanish ship obtained a judgment against the
British ship which was then lying in Lisbon from
Portuguese court. The ship returned to England before the
judgment was satisfied. The owners of Portuguese ship
filed an action in English court on the basis of Portuguese
judgment. The action was allowed by the English court.
b. Valid final on merits
• Both domestic law and conventions usually require
judgments to be valid, final, and on the merits, even
though these requirements are not always spelled out. (i)
Validity is determined for this purpose by the law of the
rendering court's State. (ii) Finality means that judgments
are usually not recognizable until no ordinary appeals can
be launched against them. (iii) Finally, judgments must
usually be on the merits. This excludes, in particular, mere
procedural decisions, which are usually not recognized,
because each country's courts usually follow that country's
own rules of procedure and will therefore not be bound by
another court's decision on its own procedural rules.
c. Procedural requirements
• The duty to recognize foreign judgments is usually excluded
where fundamental procedural principles were violated in
the rendering court. If the defendant's human rights or
sovereignty rights were violated in the original proceedings,
recognition of the ensuing judgment can constitute a new
violation of international law.
• The most important procedural requirements for
recognition are that the defendant had adequate notice,
was properly served, and had an opportunity to be heard in
court (→ Fair Trial, Right to, International Protection).
• If the judgment was based on fraud or abuse of process,
recognition will usually be denied. However, a party may be
precluded from invoking this defence in enforcement
proceedings if it had a chance to use them to void the
judgment in the rendering State.
• A broader defence is that the decision was rendered under a
judicial system that is generally not fair. This defence raises
problems regarding sovereign equality insofar as it invites
judges to render judgments over entire foreign systems.
Consequently, it is used only sparingly.
• Other procedural defences are rare. French courts long denied
recognition to judgments based on a law other thanthat which
would have been applicable under French choice-of-law rules;
the French Cour de Cassation abolished this requirement in
2007 (MX v Avianca).
d. Public policy and international and natural justice
• One important foundation of the law of recognition
and enforcement is that the requested court will
not normally review the foreign judgment either
under its own law or some other law.
• In consequence, foreign judgments are recognized
even when a domestic court would have decided
differently. However, there are limits to this liberal
approach: all legal systems and virtually all more
recent conventions allow States to deny recognition
to foreign judgments that violate the enforcing
State's public policy.
Thank you
