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Lecture Notes On CHAPTER 5 Recognition and Enforcement of Foreign Judgments II

The document discusses jurisdiction agreements, which specify the court that will hear disputes between parties in a contract. It covers choosing jurisdictions based on convenience and legal systems, as well as types of jurisdiction clauses. It also outlines the criteria and defenses for recognition and enforcement of foreign judgments under common law.

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deb.wns.grace
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6 views

Lecture Notes On CHAPTER 5 Recognition and Enforcement of Foreign Judgments II

The document discusses jurisdiction agreements, which specify the court that will hear disputes between parties in a contract. It covers choosing jurisdictions based on convenience and legal systems, as well as types of jurisdiction clauses. It also outlines the criteria and defenses for recognition and enforcement of foreign judgments under common law.

Uploaded by

deb.wns.grace
Copyright
© © All Rights Reserved
Available Formats
Download as PDF, TXT or read online on Scribd
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Lecture Notes on Recognition and Enforcement of Foreign Judgments II

Introduction to Jurisdiction Agreements


Jurisdiction Agreements(also known as choice of court agreements) are critical components of
contracts that specify which court will hear disputes between the parties. They can be made as
part of a contract or after a dispute arises.

Key Points:
- Importance: These agreements prevent the need for parties to travel long distances for
litigation, saving time and money.
- Function: They ensure certainty and efficiency by pre-determining the legal venue for disputes.
- Inclusion: Parties must include a clause specifying the jurisdiction to avoid defaulting to
international law rules, which could lead to increased costs and delays.

Choosing Jurisdiction:
- Convenience: Parties prefer jurisdictions close to home to reduce travel and logistical burdens.
- Preferred Judicial System: Different legal systems offer varying advantages, depending on
whether a party is a defendant or claimant.
- Enforcement: The choice of jurisdiction impacts the ease of enforcing judgments, especially
where the defendant's assets are located.

Types of Jurisdiction Clauses


Exclusive Jurisdiction Clauses:
- Limit disputes to one jurisdiction, providing certainty about where litigation will occur.
- Protect parties by making it less likely for another court to accept jurisdiction.

Non-Exclusive Jurisdiction Clauses:


- Allow disputes to be heard in a specified jurisdiction but do not exclude other jurisdictions.
- Offer flexibility but risk parallel proceedings in different jurisdictions.

Suitability:
- Exclusive Clauses: Often preferred by sellers to avoid uncertain foreign courts.
- Non-Exclusive Clauses: Often preferred by buyers for the flexibility to sue in multiple
jurisdictions where the seller has assets.

Recognition and Enforcement under Common Law


Recognition Criteria:
- A judgment must be final and conclusive from a court with 'international jurisdiction' as per
English private international law.
- Recognition is not limited to superior courts; any judicial tribunal's decision can suffice.
- Exceptions: Arbitral tribunal awards and administrative body decisions are not recognized.

Defenses to Recognition:
1. Disregard of Arbitration or Choice of Court Agreement: Judgments breaching these
agreements are not recognized.
2. Lack of Local Jurisdiction: If a foreign court lacked jurisdiction under its own law, recognition
may be challenged.
3. Fraud: Judgments obtained by fraud are not recognized as fraud invalidates obligations
derived from them.
4. Breach of Procedural Fairness: Judgments from proceedings lacking natural justice
standards (e.g., insufficient notification, representation, or hearing) are not recognized.
5. Public Policy: Judgments offensive to English public policy or human rights are not
recognized.
6. Prior English Judgment: Judgments conflicting with earlier English or recognized foreign
judgments are not recognized.

Enforcement of Foreign Judgments


General Principles
- Only final and conclusive money judgments are enforceable in England.
- Enforcement is based on the obligation created by the judgment, not the judgment itself.
- Judgments that are subject to review by the original court are not considered final.
- Judgments for non-money orders (e.g., injunctions, specific performance) are not directly
enforceable but may be recognized for their underlying claim merits.

Specific Requirements
- The judgment must be for a fixed sum of money. Variable judgments are not final and thus not
enforceable.
- If a judgment is final regarding liability but reviewable regarding damages, the liability aspect
may be recognized as res judicata.

Implications
- Non-money judgments can be recognized as res judicata, allowing English courts to order
appropriate remedies based on the established merits of the case.

Summary
Understanding jurisdiction agreements and the recognition and enforcement of foreign
judgments is essential in international legal practice. These mechanisms ensure that disputes
are resolved efficiently and judgments are respected across borders. By pre-determining
jurisdiction and understanding the criteria for recognition and enforcement, parties can navigate
international disputes with greater certainty and protection.

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