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Jurisdiction and Enforcement of Foreign Judgements
Jurisdiction and Enforcement of Foreign Judgements
Jurisdiction and Enforcement of Foreign Judgements
Foreign Judgements
JURISDICTION:
INTERNATIONAL TRADE
Overview
• Settlement of disputes in municipal/national courts
• Jurisdiction in civil cases (NOT Criminal)
• Immunities of states from the jurisdiction of municipal
courts
• Choosing the governing law
• Refusal to exercise jurisdiction
• Opposition to the exercise of jurisdiction
• Recognition of foreign judgments
Settlement of Disputes in
Municipal/National Courts
• Under International Law, the jurisdiction of municipal
courts to try an international dispute is limited.
• The ability of a party to escape the jurisdiction of a court
is known as immunity.
• Natural and juridical persons have few immunities
from the powers of a municipal powers.
• State agencies that carry out commercial activities
(such as national airlines or national shipping lines)
are now commonly treated as having no immunity.
(engaging in business-like activities)
Jurisdiction in Civil Cases
In civil suits, municipal courts can extend their jurisdiction
over disputes between parties who appear within the
territory of the forum state.
• Such jurisdiction is based on either in personam or in rem
principles.
Jurisdiction over Persons
In personam jurisdiction is the power of a court to
decide matters relating to a natural or juridical person
physically present within the forum state.
Consent to personal jurisdiction can come about in any of the
following ways:
◦ By the individual appearing in court after a suit has commenced,
◦ By a party agreeing to the personal jurisdiction of a particular
court in a forum selection clause contained in the contract, or
◦ By a party appointing an agent within a state to receive service
of process on his behalf.
• The plaintiff, Abbott, a foreign national who had been fired from her
job at the South African Embassy in Madrid, Spain, won a judgment
granting her compensation for back salary.
• The plaintiff sought to execute the judgment against Embassy
properties, including its local bank accounts.
• South Africa appealed and an intermediate court held that its bank
accounts were absolutely immune from execution.
• It dismissed the plaintiff’s request for the enforcement of her
judgment and she appealed.
• The Supreme Court granted her appeal, holding that South Africa
did not enjoy immunity from jurisdiction in the proceedings, and
remanded the case to the Labour Court for a decision on the merits.
• In 1990, the plaintiff obtained a judgment in her favour, but on
appeal the High Court of Madrid held that South Africa was entitled
to absolute immunity from execution.
• Plaintiff then brought this appeal in the Constitutional Court
challenging that decision.
Continued...
ISSUE: Can a court enforce a judgment against property
belonging to a foreign state?
•The Vienna Convention on Diplomatic Relations and the
Vienna Convention on Consular Relations provide immunity
for foreign state property used for governmental activities but
not for property used for commercial activities.
•The Constitutional Court ordered that the proceedings be
reopened before the Labour Court in order that enforcement
measures be pursued against any other assets of the defendant
state not subject to immunity from execution.
Act of State Doctrine
• It is a doctrine that the act of a government within the
boundaries of its own territory is not subject to judicial
scrutiny in a foreign municipal court.
• A municipal court will decline to hear a dispute based on
such acts if to do so would interfere with the conduct of
the forum state’s foreign policy.
• Case: International Association of Machinists and
Aerospace Workers v. OPEC
REGINA V. BARTLE (EX PARTE PINOCHET)
• Spain seeks to extradite former Chilean President Pinochet to stand
trial for crimes of torture, murder, and the unexplained
disappearances of Spanish citizens committed (mainly) in Chile.
• Issue:
• Did Pinochet commit extraditable crimes?
• Is Pinochet immune from trial for committing those crimes?
Choosing the Governing Law
Reasons municipal courts apply laws other than their own:
1. Fairness: Individuals take actions in a particular place. To later
have a court in another country apply different laws would
discourage international exchanges of all kinds.
2. Comity: Because each state has an interest in protecting the
rights of its subjects, and only by respecting the interests of
foreign subjects can a state expect similar treatment for its
subjects in other states.
3. This is a sui generis juridical right.
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(Bank of India v. Gobindram Naraindas Sadhwani and Others.)