Recognition and Enforcement of Foreign Judgments - The Common Law's Jurisdiction Requirement

Abstract

A judgment will be enforced or recognised in other nations or states only if the court that issued the judgment had “jurisdiction in the international sense”. For recognition or enforcement of a judgment in personam, the foreign court must have had jurisdiction over the party against whom the judgment is to be enforced or otherwise applied. This is governed by the conflict of laws doctrine of the court where recognition or enforcement is sought. The law on what is a basis for jurisdictional “competence” is one of the most important elements of conflict of laws. The rules set forth in successive editions of Dicey’s Conflict of Laws treatise have long guided courts in England and most other countries in which common law doctrines govern recognition of foreign judgments. However, the rules in the Dicey treatise are intended to state contemporary English law, as altered by judicial decisions and legislation. They do not necessarily state the common law as interpreted in other countries, from which many of the relevant judicial decisions originate, and they omit bases of jurisdiction that have been accepted in some cases. Drawing on case law and authoritative writing from across the common law world, this article provides a comprehensive examination of the law of jurisdiction in the recognition and enforcement of in personam foreign judgments, with specific identification of both established and debatable grounds for jurisdiction and how they have been applied.