3. Foreign judgments

Abstract

This chapter deals with the recognition of enforcement of foreign judgments by English courts. The crucial question is not whether foreign judgments should be recognised and enforced in England but which judgments should be recognised and enforced. There are, broadly speaking, two theories. The first is the theory of obligation, which is premised on the notion that if the original court assumed jurisdiction on a proper basis the court's judgment should prima facie be regarded as creating an obligation between the parties to the foreign proceedings which the English court ought to recognise and, where appropriate, enforce. The alternative theory is based on the idea of reciprocity: the courts of country X should recognise and enforce the judgments of country Y if, mutatis mutandis, the courts of country Y recognise and enforce the judgments of country X. Whichever theory is adopted, the recognition and enforcement of foreign judgments is limited by a range of defences which may be invoked by the party wishing to resist the judgment in question. It would be unrealistic to expect the English court to give effect to a foreign judgment which conflicts with fundamental notions of justice and fairness. So, the recognition and enforcement of foreign judgments is a two-stage process: Are the basic conditions for recognition or enforcement satisfied? If so, is there a defence by reason of which the foreign judgment should nevertheless not be recognised or enforced? The remainder of the chapter discusses the recognition and enforcement at common law; statutory regimes based on the common law; recognition and enforcement under the Brussels I Recast; and United Kingdom judgments.