Lecture Notes on Recognition and Enforcement of Foreign Judgments I

Introduction

Key Concepts:
- The enforceability of a judgment is crucial in deciding where to sue.
- A judgment is valuable only if it can be enforced against the defendant's assets.
- Judgments can be enforced not just in the state where they were issued but also in other
states.

Enforcement in English Courts:

- English courts treat foreign judgments as debts, allowing for summary judgment.
- Once paid, the debt is discharged.
- The decision of a foreign court is not revisited even if the English court would have decided
differently.

Recognition of Foreign Judgments:

- Useful for declaratory judgments that cannot be enforced.
- Recognized judgments indicate the debt has been discharged if already paid.
- Parties are bound by recognized judgments if they meet the relevant regime’s requirements.

Effects of Foreign Judgments (UK Law):

1. Res Judicata: Prevents re-litigation of the same dispute.
- All potential issues related to the dispute are considered decided, even if not raised.
2. Cause of Action Estoppel: Prevents re-litigation of the same claim.
3. Issue Estoppel: Prevents re-litigation of specific issues decided by the foreign court.

Theories of Recognition and Enforcement

Comity and Reciprocity:

- Early views: Recognition was based on mutual respect and reciprocity among sovereign
states.

Theory of Obligation:
- The debtor is seen as having a duty to the creditor based on a competent court’s judgment.
- This view justifies treating the foreign court’s decision as conclusive, barring any defense.

Canadian Perspective:
- Emphasizes comity, recognizing judicial acts of other sovereigns due to international duty and
convenience.

Adams v Cape Industries Plc (1990):

- Justified recognition using both obligation and comity.
- Stressed territorial jurisdiction, where a foreign court’s jurisdiction over an individual depends
on their presence or consent.

Recognition and Enforcement Principles

General Principle:
- Foreign judgments have no direct effect in England as foreign judges lack authority in England.
- Enforcement requires recognition through legislative or judicial avenues.

Public Interest:
- Ensures parties abide by judgments and prevents re-litigation of disputes already adjudicated.

Forum Shopping

Definition and Perception:

- Forum Shopping: Choosing a court thought to provide the most favorable judgment.
- Has negative connotations when used to gain unfair advantage in an unconnected jurisdiction.

Jurisdictional Decisions:
- Courts determine if they have personal and subject matter jurisdiction.
- Forum Non Conveniens: Courts may transfer cases to more appropriate venues.

Factors in Choosing Forum:

- Convenience for defendants and witnesses.
- Favorable laws and judicial systems.

Actions for Change of Venue:

- Petitioning for Rejection: Seeking transfer to a more convenient forum.
- Injunctions: Seeking to stop proceedings in one court in favor of another.

Natural or Proper Forum (Forum Conveniens)

Determining the Best Venue:

- Courts identify the natural forum based on the strongest connection to the dispute.
- Factors include party residence, business location, dispute nature, event location, and
governing law.

Real and Substantial Connection:

- Courts consider where the case has its most substantial connections, such as witness
locations and event sites.

Lis Alibi Pendens:

- Principle to avoid contradictory judgments by recognizing one set of proceedings over another.
Rules:
1. Res Judicata: A decided case cannot be re-litigated.
2. Lis Alibi Pendens: A second court will not take jurisdiction if a dispute is already pending
elsewhere.

Forum Non Conveniens in Practice

Case Examples:
1. Yap Shirley Kathreyn v Tan Peng Quee [2011] SGHC:
- Issue:Stay of proceedings in Singapore for a partnership dispute.
- Decision: Granted stay favoring Malaysian courts based on partnership location and witness
convenience.

2. AQD v AQE [2011] SGHC:

- Issue: Determining jurisdiction for divorce proceedings between Singapore and England.
- Decision: England was chosen based on planned relocation and connection of assets.

Summary

Understanding the principles and practices of recognizing and enforcing foreign judgments is
crucial in private international law. Jurisdiction agreements, the choice of forum, and the
application of doctrines like res judicata and forum non conveniens ensure that international
disputes are handled efficiently and fairly, respecting the judicial decisions across borders.