What is Recognition and Enforcement of Foreign Judgments? Part 1

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Recognition and enforcement of foreign judgments is one of the three parts of conflict of laws, besides choice of jurisdiction and choice of law, all treated under private international law. According to Professor Agbede[1], Private international law is the department of law which arises from the fact that there are in the world different territorial jurisdictions possessing different laws. Its purpose is to protect and ensure the peaceful intercourse of private persons in different countries. He went on to add that it is the department of law that comes into play whenever an issue before the court contains a foreign element[2]

PROPELLING THEORIES FOR RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENT

The recognition and enforcement of foreign judgments is a relatively young topic. In antiquity, local law was applied to foreigners and foreign judgments were denied any force beyond their territories. By contrast, under the ius commune, no clear difference was made between foreign and local judgments; foreign judgments were freely recognized and enforced. This liberal attitude changed with the rise of sovereignty. A duty to enforce foreign judgments was rejected as an undue restraint of sovereignty. In France, Art. 121 Code Michaud (1629) denied foreign sovereigns’ judgments all effects; other European countries adopted similarly restrictive positions.

Once ideas of sovereignty limited the authority of judgments to State boundaries, the recognition of foreign judgments between sovereign States had to be based on new principles. Dutch authors, in particular Voet and Huber, developed two such principles that are still relevant today. The first of these principles is comity, defined much later by the United States Supreme Court in a decision denying recognition to a French judgment as

neither a matter of absolute obligation on the one hand nor of mere courtesy and good will… it is the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another…[3]

The other principle is reciprocity, the idea that States will and should grant others recognition of judicial decisions only if, and to the extent that, their own decisions would be recognized. This requirement can create an unwelcome situation in which each country waits for the other to act first; it is problematic also because it punishes private litigants for the omissions of States. The main justification for reciprocity is that it can be used to persuade other countries to enter into conventions. Both comity and reciprocity are principles not of duty but of prudence and politeness. It is polite, as between sovereigns, to treat the judgments of foreign countries with respect and deference, and to enforce them. Moreover, it is prudent to enforce the judgments of foreign sovereigns in the hope that foreign sovereigns would enforce one’s own judgments.

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A competing theory, especially influential in the common law, focuses less on the public relations of comity or duty between states and more on private law relations between the parties.  As stated by the English House of Lords in 1870, what is enforced is not a foreign judgment as such but the obligation it produces:

The judgment of a court of competent jurisdiction over the defendant imposes a duty or obligation on him to pay the sum for which judgment is given, which the courts in this country are bound to enforce[4]

A parallel theory explains that what is enforced is not the judgment but the vested right it creates. The vested rights theory has since fallen out of favor for choice of law, but these approaches retain force for foreign judgments, though often tacitly or as fictions.

SOURCES OF RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENT

Some countries find these theories unsatisfactory nevertheless and find a safe way by entering into treaties or bilateral or multilateral agreement of how judgment of one country will be enforced in the other.

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The legal regime of recognition and enforcement of foreign judgment vary from country to country. The following are the determining legal basis for such enforcement:

  • Domestic law

Some countries have stringent domestic laws that sets out conditions upon which a foreign judgment may be enforced.

  • General International law

This is not really a strict source because at the heart of international law lies the issue of territorial sovereignty which another state would not want to offend. However, one finds some nations having subscribed to some international laws, impliedly acceding to the enforcement of such judgment. This is one issue presently facing the ECOWAS states.

  • Bilateral treaties

This has certain advantages such as shifting the basis of enforcement from an unsure ground like comity to legal rules, it provides a firm basis for reciprocity and expand the scope of recognizable judgment

  • Multilateral treaties

This may be global enforcement conventions or regional instruments or conventions on specific substantive subject matter.

DIFFERENCE BETWEEN RECOGNITION AND ENFORCEMENT

According to mayss[5], this simply means that the court will take note of the result of the judgment. The phrase ‘take note’ with due respect, seem deficient. Therefore, we resort to the definition provided by Blacks Law Dictionary[6] which defines recognition to mean:

  1. Confirmation that an act done by another person was authorized.
  2. The formal admission that a person, entity or thing has a particular status; especially a nation’s act in formally acknowledging the existence of another nation or national government.

The above definition seem more appropriate in the light of the fact that a court that will enforce the judgment of another country will ensure that the judgment complies with certain conditions such as the court being of competent jurisdiction as we would later discuss. Therefore, recognition is the act of ensuring the judgment to be enforced is good on all fours and meets with certain set standard which may be in the enforcing country’s domestic laws or in the signed treaty, if it is treaty-oriented. That been said, recognition precedes enforcement.

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According to Blacks Law Dictionary[7], enforcement is the act or process of compelling the compliance with a law, mandate, command, decree or agreement.

This implies that once the decision of the foreign court is recognized, it then becomes enforceable.

 

There are however certain notable differences between recognition and enforcement as observed by Professor Agbede[8] thus :

  • All enforceable judgments must satisfy the condition for recognition though not all recognizable judgments are enforceable.
  • Recognition of foreign judgment is governed by common law rules while enforcement is governed by statute.
  • Many foreign judgments fall outside the scope of the statute governing enforcement leaving the judgment creditor with the option of suing on the foreign judgment if it is recognizable.
  • Every foreign judgment requires recognition, whereas some judgments such as divorce decree require no enforcement.

 

[1] Agbede, I.O,: Themes on Conflict of Laws Shaneson, Ibadan, 1st ed. 1989. P.1

[2] Ibid. p.2

[3] Hilton v Guyot 159. US 113

[4] Schibsby v Westenholz (1870)  LR 6 QB 155

[5] Mayss, A.J.: conflict of laws Cavendish Publishing Ltd, London, 2nd ed. 1997. p.65

[6] 8th ed. p.1299

[7] Ibid. p.569

[8] Agbede, I.O,: Themes on Conflict of Laws Shaneson, Ibadan, 1st ed. 1989.

 

Written by: Ganiyu Ajibola Bello. LL.B, BL. DRS. LL.M 

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One thought on “What is Recognition and Enforcement of Foreign Judgments? Part 1

  • April 24, 2017 at 5:43 pm
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