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PRIL Text chapter 6.pdf

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Chapter 6 of Winston Anderson's text on Private International Law based on Commonwealth Caribbean jurisdictions.
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  Foreign Judgments   205 6 Foreign Judgments INTRODUCTION  A question that frequently arises in private international law concerns whether a judgment given in a foreign country may be recognised andenforced in the forum. In the absence of appropriate internationalagreements and corresponding incorporating legislation, 1  the theory of territorial sovereignty forbids any direct operation of judgments renderedin a foreign state. 2  Nonetheless, pursuant to the fundamental objective of furthering the ends of justice, common law countries have, for well over200 years, permitted the recognition and enforcement of foreign judgmentsthat satisfied certain conditions. 3  Examination of these conditions is of utmost importance to the practical effect of the foreign judgment but beforetheir consideration several preliminary points must be made.First, recognition and enforcement are not synonymous. Recognitionalone may be sought when, for example, a successful foreign defendant wants to stop the plaintiff from trying the same cause of action again in a Caribbean forum. In this type of case, the foreign judgment is raised as a defence, a shield, or a kind of estoppel that prevents the plaintiff frompursuing proceedings in the forum. No question of enforcement arises. By contrast, enforcement of a judgment necessarily implies its recognition, as where the Caribbean forum authorises the successful foreign plaintiff totake the necessary steps to satisfy the judgment debt out of local assets of   206ELEMENTS OF PRIVATE INTERNATIONAL LAW  the defendant. In these circumstances the foreign judgment is being usedas a sword.Secondly, occasionally where the foreign judgment is being used as a shield, and almost invariably where it is being wielded as a sword, the law seeks to further the ends of justice by protecting rights acquired underforeign law where it is just to do so. The actual mechanism used for suchprotection has been the subject of debate. Essentially, the choice has beenseen as being between requiring the foreign judgment creditor to bring a fresh action in the Caribbean forum, as contrasted with finding a moredirect way of enforcing the foreign award.Thirdly, although there is some overlap, the law maintains an importantdistinction between foreign personal judgments, and other foreign judgments. A foreign personal judgment is a judgment or order given ormade by a court in civil proceedings, or a judgment or order given or madeby a court in criminal proceedings for the payment of a sum of money inrespect of compensation or damages to an injured party. 4 This judgment in personam  creates an obligation binding upon the persons to the litigation,and is traditionally contrasted with a judgment in rem,  which normally has the effect of creating status that is binding upon third parties. Theforeign personal judgment determines a claim based upon the law of non-familial obligations and will normally be for a sum of money or injunctiverelief. It does not include a judgment given in connection with a matrimonialmatter, administration of estates of deceased persons, bankruptcy, winding up of companies, lunacy or guardianship of infants, or admiralty actions.This chapter is primarily concerned with the rules relating to therecognition and enforcement of foreign personal judgments. The treatmentof foreign judgments of a specialised nature is dealt with as appropriate inother chapters, and foreign matrimonial decrees are considered elsewhere. 5 Fourthly, foreign judgments may be entitled to recognition andenforcement under one of five distinctive legal regimes. The first andhistorically most important is the common law. Common law rules are,potentially, applicable to all foreign judgments, whether given in anotherCaribbean country, Commonwealth countries, United States, Europe, orelsewhere. Enforcement at common law may proceed even in the presenceof a statutory regime on enforcement of foreign judgments, or if that regimedoes not apply to the foreign judgment. 6  Recognition and enforcement atcommon law involves bringing an ordinary action in a Caribbean court,pleading and proving the foreign judgment, and seeking entry in theCaribbean court of a judgment similar to that given in the foreign forum.  Foreign Judgments   207 Proceeding at common law is assisted by the rules of civil procedure thatenable a claimant to apply for summary judgment under Rules of theSupreme Court Order 14, or its equivalent, on the basis of the foreign judgment.The other four regimes are statutory or treaty-based and allow application to a Caribbean court for an order that a foreign judgment beregistered for enforcement. There are no special statutory rules governing mere recognition. With a few modifications, the first two legislativeframeworks are virtual codifications of the common law and the distinctionbetween them lies mainly in the nature of the relationship between theCaribbean forum and the foreign country in which the judgment was given.The first statutory regime is based upon the Administration of Justice Act1920 of the United Kingdom. 7  It applies to judgments given in the UnitedKingdom and to judgments given in other Commonwealth countries to which the statute has been specially extended for this purpose. The secondstatutory scheme reflects the Foreign Judgments (Reciprocal Enforcement) Act 1933 of the United Kingdom 8  and governs recognition and enforcementof judgments rendered in any foreign country to which the statute hasbeen extended. The third scheme applies to enforcement in Member statesof the Caribbean Community by virtue of the recent establishment of theCaribbean Court of Justice. 9  The fourth statutory regime is applicable toenforcement in the Member States of the Organisation of Eastern CaribbeanStates in relation to judgments given by the Supreme Court of EasternCaribbean States. 10  The fifth and final preliminary point to be made concerns the non-merger of the srcinal cause of action with the enforcement action. In theinterest of bringing finality to litigation there is a rule in purely domesticlitigation debarring a plaintiff who obtains judgment against a defendantfrom again litigating that cause of action. 11  Considerations of double jeopardy could also arise. This rule does not apply in the case of foreign judgments. At common law, a foreign court is not regarded as a court of record and it therefore follows that there is no merger of the foreign andforum actions even though based upon the same cause.Cogent criticism 12  led to the reversal of the common law by legislationin England, 13  but not, as a general rule, in the Caribbean. 14  Accordingly, a plaintiff who was successful in a foreign court normally still has the choiceof either litigating in the Caribbean based on the foreign judgment, orbringing an action in the Caribbean against the defendant based on thesrcinal cause of action. However, as we shall see, under some of the  208ELEMENTS OF PRIVATE INTERNATIONAL LAW  legislative arrangements for enforcement, a judgment that is capable of being registered cannot be enforced by other means. PHILOSOPHICAL BASIS FOR RECOGNITION ANDENFORCEMENT There is widespread acknowledgment that the society of nations will work better if some foreign judgments are taken to create rights that are recognisedand can be directly enforced in countries where the defendant or his assetsare to be found. 15  However, consensus on practical convenience, by itself,does nothing to explain the philosophical basis for such recognition andenforcement, and the cases give virtually no guidance on this vital question. Comity  In the eighteenth century justification was advanced based upon the idea of comity  16  but it is now well accepted that comity is a rather vague conceptand is more appropriate to the relations between sovereigns. 17  Moreover,common law recognition and enforcement was never based upon anindividual nation-to-nation relationship. Caribbean courts have neverthought it necessary to investigate what reciprocal rights of enforcementare conceded by the foreign country, or to limit their exercise of jurisdictionto that which they would recognise in others. Obligation  Accordingly, the nineteenth century witnessed the eclipse of comity by the doctrine of obligation. Obligation to fulfil the judgment of the foreigncourt is related to sovereignty. From the earliest cases, a foreigner whochose to create an establishment within the territory of a sovereign wastaken to owe, in exchange for personal safety and well-being, a personalduty to respect the sovereign’s laws as enforced by sovereign’s courts. Thisconcept may be reasonably applied to a person who establishes a long-term residence in the foreign country. In the case of transient passage,however, allegiance may be too strong a fare. Tacit consent to abide by therights and obligations stemming from the local law administered in theforeign court (including the local rules on private international law) appearsa more plausible basis. 18 In Schibsby v Westenholtz  19  Blackburn J identified the rationale of obligation as ‘the true principle on which the judgments of foreign tribunals
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