Recognition and enforcement of foreign judgments in the absence of the debtor and his assets within the jurisdiction: reversing the burden of proof

Abstract

The article examines the recognition and enforcement of foreign judgments in the absence of the defendant and his assets within the jurisdiction. While at first sight a seemingly futile tactic, it opens a whole array of potential benefits to the judgment creditor. Under English law, to enforce a foreign judgment in the absence of the debtor and his assets, the judgment creditor needs to establish a reasonable prospect of legitimate benefit arising from the enforcement. The article challenges this view and argues that the position in English law is needlessly onerous: the burden should be on the judgment debtor to establish that the enforcement of the foreign judgment is an abuse of process. The paper also draws analogies to other legal regimes, both in the UK and outside.