Module 3

Foreign
Judgments
3.1. Recognition & Enforcement
3.2. Position at Common Law
3.3. International Conventions
3.4. Enforcement of foreign judgements in civil and
commercial matters in India
 How can a judgment be recognized and enforced
in another State?
• Where a court has decided that it has jurisdiction and has decided a dispute according to
the applicable law, further questions may arise as to whether and how that decision can be
recognized and enforced in another State.
• Such questions will frequently arise where the defendant against whom a judgment has
been ordered is located in another State or has assets located in another State.
• There are two sets of courts involved in such situations:
• The court that made the judgment (The Court of Origin)
• The court of the State that is requested to recognize or enforce the judgment of the court of origin
(Court of Addressed)
• Then, It becomes a matter for addressed court as to whether it will recognise or enforce a
judgment (The court of Origin)
• On basis of Reciprocation.
• This is the foundation upon which recognition and enforcement is based.
 How can a judgment be recognized and enforced in another
State? Theories
• Law of Comity Theory:
• No judgment can be recognised unless there is Reciprocity.
• In such cases defendant has not having many defences except want of
jurisdiction(demerit).
• Law of obligation theory: Blackburn J
• Judgement of a competent court over the defendant imposes a duty on the other country
to enforce the judgment.
• Doctrine of harmony: Von Bar
• Judgment is lex specialis a law regulating one single case. To maintain harmony of COL and
foreign judgments, courts in forum country should be decided in accordance with the
municipal law.
• Foreign judgments are to be rendered in accordance with the Conflicts of law rules –
Pivet
• It reduces number of enforceable judgments below reasonable limit.
How can a judgment be recognized and enforced
in another State? Theories
• Theory of Acquired Rights: Wolf
• As soon as the plaintiff appears in a court on the basis of foreign judgments, the
court presumes that it has acquired a right, though the defendant is free to rebut
the presumption.
• Theory of Vested Rights: Dicey and Beale
• Municipal court enforces a foreign judgment as if it enforces a right created under
the municipal law and not the one created by the foreign law. In simple when
Municipal court enforces foreign judgment it is necessary that the foreign court
should have jurisdiction not under the foreign law but under the municipal law of
country enforcing the judgment.
• And the defences available to the defendant against the foreign judgment are
the defences recognised under the Municipal law and not under the foreign law.
• In India Theory of comity and Theory of Obligation has been following.
 Recognition And Enforcement Of Judgments At
Common Law: Defences

• Foreign judgment obtained by fraud.

• Debtor denied natural justice.
• Matter of enforcement of foreign penal law, revenue law or other
governmental interest.
• Enforcement contrary to Forum’s Public Policy.
 Convention on Recognition and
Enforcement of Foreign Judgments in Civil
or Commercial Matters
 Applicability

Inclusion Exclusion
• This Convention shall apply to the recognition • It shall not extend in particular to revenue,
and enforcement of judgments in civil or customs or administrative matters.
commercial matters.
• This Convention shall apply to the recognition
and enforcement in one Contracting State of a
judgment given by a court of another
Contracting State.
 Exclusion areas

• The Convention does not apply to certain matters such as the status and
legal capacity of natural persons, maintenance obligations, family law
matters, wills and succession, insolvency, carriage of passengers and
goods, transboundary marine pollution, liability for nuclear damage,
validity of legal persons or associations, entries in public registers,
defamation, privacy, intellectual property, armed forces, law enforcement
activities, anti-trust matters, and sovereign debt restructuring through
unilateral state measures. These matters are subject to the jurisdiction of
the State of origin.
 Non Applicability

• For the arbitration and related proceedings.

• A judgment is not excluded from the scope of this Convention by the mere
fact that a State, including a government, a governmental agency or any
person acting for a State, was a party to the proceedings.
• Shall not affect privileges and immunities of States or of international
organisations, in respect of themselves and of their property.
 General Provisions Art 4

• A court's judgment from a Contracting State (State of origin) must be recognized and enforced in
another Contracting State (requested State), with refusals based on specific grounds.
• The merits of the judgment are not reviewed in the requested State, and recognition or enforcement
can be postponed or refused if the judgment is under review or if the review period has not expired.
 Basis for Recognition Art 5
• (1)if recognition or enforcement of the decision is manifestly incompatible with the public
policy of the State addressed or if the decision resulted from proceedings incompatible
with the requirements of due process of law or if, in the circumstances, either party had
no adequate opportunity fairly to present his case;
• (2) if the decision was obtained by fraud in the procedural sense;
• (3) if proceedings between the same parties, based on the same facts and having the
same purpose -
• a) are pending before a court of the State addressed and those proceedings were the first
to be instituted, or
• b) have resulted in a decision by a court of the State addressed, or
• c) have resulted in a decision by a court of another State which would be entitled to
recognition and enforcement under the law of the State addressed.
 Grounds for Refusal Art 7

• Article 7 of the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil
or Commercial Matters (Hague Convention 2019) outlines the grounds on which recognition or
enforcement of a foreign judgment can be refused:
• Inconsistent judgment: The judgment is inconsistent with a previous judgment between the same
parties on the same subject matter
• Service: The judgment debtor was not notified in time to defend themselves
• Fraud: The judgment was obtained through fraud
• Public policy: The judgment would be incompatible with the public policy of the requested state
• Procedural fairness: The proceedings that led to the judgment were not fair
 Grounds for Refusal Art 7
• Other provisions of the Hague Convention include:
• A judgment can only be recognized if it is valid in the state of origin and can
only be enforced if it is enforceable in the state of origin
• The merits of the judgment cannot be reviewed in the requested state.
• Recognition or enforcement can be postponed or refused if the judgment is
being reviewed in the state of origin
• A refusal to recognize or enforce a judgment does not prevent a subsequent
application
• The Hague Convention applies to civil and commercial matters, but not to
matters relating to taxes, customs, or administration
 Documents required under Art 12

• According to the Hague Convention on the Recognition and Enforcement of Foreign Judgments, the
documents required under Article 12 are:
• A complete and certified copy of the judgment
• Any documents that establish the judgment's effect or enforceability in the state of origin
• A certificate from the state of origin court that the judicial settlement is enforceable in the same way
as a judgment in the state of origin
• A document from the state of origin court that relates to the judgment and is in the form
recommended by the Hague Conference on Private International Law
• Art 17 allows contracting states to declare that they can refuse to recognize or enforce a judgment
from another contracting state if the dispute has no international element.
• This can happen if both parties were residents of the requested state, and the relationship between
the parties and other elements of the dispute were only connected to the requested state.
 Jurisdictional requirement Article 5

• There are some familiar concepts here relating to residency, consent to jurisdiction, place of performance of a contractual
obligation and jurisdiction
• By way of example, a judgment will be eligible if:
• the person against whom recognition is sought was habitually resident in the state of origin, was the claimant in the
proceedings in the state of origin or consented to the jurisdiction of the courts of the state of origin during the course of
the proceedings agreements (relating to residency). ;
• the judgment ruled on a contractual obligation and the court that gave the judgment was in the state of the place of
performance of that obligation (contractual obligation); or
• the judgment was from a court “designated in an agreement…other than an exclusive choice of court agreement”
(consent to jurisdiction)
• Exclusive choice of court agreements are out of scope as these are covered by the Hague Convention on Choice of Court
Agreements.
 When can recognition or enforcement be
refused?
• there was improper notice of the proceedings,
• where the judgment was obtained by fraud or
• where recognition or enforcement would be manifestly incompatible with
public policy.
• if the proceedings in the state of origin were contrary to an agreement to
determine disputes in a different jurisdiction or,
• in certain cases, if the judgment is inconsistent with another judgment.
 Consequences of Signing the Judgment
Convention
• The Judgments Convention must benefit to commercial parties involved in cross-
border business:
• It provides a simple route to recognition and enforcement without a merits
review and subject to only limited grounds for refusal.
• It has the potential to harmonise to a significant extent for parties looking at
enforcement risk across multiple jurisdictions.
• the checks and balances that are built in to the Judgments Convention should
mitigate to a significant extent any concerns that might arise regarding the
enforcement of penal judgments or those given in the absence of due process.
 Recognition of
foreign judgements in
India
 Introduction

• Foreign judgments are recognized as per bilateral or multilateral treaties or

conventions.
• This recognition happens when the court of one country accepts a judicial
decision made by the courts of another foreign country, and issues a
judgment in alike terms without rehearing the matter of the original
lawsuit.
• The original judgment will only be denied if that judgment is not consistent
with the basic fundamental principles of the recognizing country.

21
 Principle of conclusiveness of Foreign Judgment
•Under Sec. 13 of the Code, a foreign judgment shall be conclusive as to any
matter thereof directly adjudicated upon between the same parties.
•Thus, a foreign judgement shall be considered as conclusive in the following
6 cases:
1. When the Foreign Judgement has been issued by a court with competent
jurisdiction,
2. When the Foreign Judgement is based on merits.
3. When the Foreign Judgement is not against Indian or International Law.
4. When the Foreign Judgement is not opposed to the principles of natural justice.
5. When the Foreign Judgement has not been obtained by fraudulent means
6. When the Foreign Judgement is in breach of Indian Law.
When the Foreign Judgement has been issued by a
court with competent jurisdiction
Gurdyal Singh v. Rajah of Faridkot,1895
• A person “A” filed a suit in the court of the native state of Faridkot against a former employee “B” for
misappropriation of a particular sum of money belonging to “A”.
• B was a domicile of another native state Jhind. B had travelled to Faridkot in 1869 to work under A
but left Fardikot in 1874 and returned to Jhind.
• The present suit was brought by A against B in 1879 when B was neither residing in or was a domicile
of Faridkot and B did not appear at the hearing of the suit in Fardikot and an ex parte decree was
passed by the court at Faridkot against B.
• When A filed a suit in a court in British occupied Indian territory, the court refused to enforce the
decree passed by the court at Fardikot on the ground that the court at Fardikot had no jurisdiction to
adjudicate the suit.
• The mere fact that the alleged embezzlement took place in Faridkot would not grant jurisdiction to
the court at Fardikot.
• Neither was B residing in nor was he a domicile of Faridkot at the time that the adverse decree was
passed. Thus, taking into consideration the rules of Private International Law, the court at Faridkot
lacked jurisdiction and the decree so passed would be null and void.
 When a Foreign Judgements are not passed on
merits of the case
• A judgement is said to have been issued on merits if the judge, post the
conduct of a fair hearing, allowing both parties to represent their case and
scrutinising the evidence, rules in favour of a party to the dispute.
• Thus, in certain cases such as when a suit is dismissed due to the plaintiff
failing to appear in court, such judgements are not considered to be
judgements made on the basis of the merits of the case.
• Lalji Raja &Sons v Firm Hansraj Nathuram, (1971)
• a judgement passed by a court ex parte will not lead to it automatically
being considered to not be based on merits of the case

Presentation title 24
When a Foreign Judgement is Against Indian or
International Law
• Narasimha Rao v. Venkata Lakshmi 1991, when a foreign
judgement is delivered based on grounds which are inconsistent,
unrecognised or in transgression of Indian or International law, it will
not be considered conclusive and shall not be enforceable in India.
“The rules of private international law in this country (India) are not codified and are scattered in
different enactments such as the Civil Procedure Code, the Contract Act, the Indian
Succession Act, the Indian Divorce Act, the Special Marriage Act, etc. In addition, some rules
have also been evolved by judicial decisions. In matters of status or legal capacity of natural
persons, matrimonial disputes, custody of children, adoption, testamentary and in-testate
succession etc. the problem in this country is complicated by the fact that there exist different
personal laws and no uniform rule can be laid down for all citizens. The distinction between
matters which concern personal and family affairs and those which concern commercial
relationships, civil wrongs etc. is well recognized in other countries and legal systems. The law
in the former area tends to be primarily determined and influenced by social, moral and
religious considerations, and public policy plays a special and important role in shaping it…”
 4. When a Foreign Judgement is Passed in Direct
Contravention of the Principles of Natural
Justice

• A judgement which has been passed in ignorance of/in violation of the

principles of natural justice will be regarded as being null and void and the
trial shall be considered to be “coram non judice”.

Presentation title 26
 When a Foreign Judgement is Procured
via Fraud

Satya v. Teja Singh 1974,

the husband was able to divorce his wife by misleading the
court stating that he was an American citizen even though
he was not. The Supreme Court of India recognising that the
husband had defrauded the foreign court held that the
decree of divorce would not be enforceable and was null and
void.
6.When the Foreign Judgment is in breach
of Indian Law.
• When a foreign judgement is predicated upon a violation of Indian
law, it would not be enforceable in India.
• It is imprudent for any nation – state to adopt blindly the rules of
Private International Law. Each and every case that is adjudicated by
the courts in the Republic of India must be done in accordance with
Indian law and must not go against Indian public policy.
 Direct Execution of Foreign Judgments

• In England, there are reciprocal agreements for such direct execution of

foreign judgments.
• Like Judgment Extortion Act 1868, In England, in view of PIL, Scotland,
Ireland are considered to be foreign countries, but under the said act, the
jdugments rendered by the superior court of England, Scotland and Ireland
have been directly enforceable in any part of UK. This is applicable later in
Inferior courts also.
• Applicable to any debts damages or costs.
 Enforcement of Foreign Judgments
• Recognition and enforcement have different legal effects. Recognition of a
foreign judgment can act only as res judicata and is a requirement for
enforcement.
• However, it must be enforced by a separate legal process as provided in
Section 44A of the Code of Civil Procedure for reciprocating territories, or
by filing a civil suit if the foreign judgment was not issued in a reciprocating
territory.
 Reciprocating Countries
• What are Reciprocating countries?
• Any country or territory outside of India that the Central Government declares to be a reciprocating territory
by means of a notification in the Official Gazette is referred to as a "Reciprocating territory" for the purposes of
this section, and "Superior Courts" in respect to such territory. Till now there are only 12 countries which are
mentioned as Reciprocating countries/territories with U.A.E. being the latest to join in 2020.
A list of all the Reciprocating countries are:
• United Kingdom
• Trinidad & Tobago
• Hong Kong (Special Administrative Region)
• Aden
• Fiji
• Papua and New Guinea
• Bangladesh
• Singapore
• Federation of Malaya
• New Zealand
• The Cook Islands and the Trust Territories of Western Samoa
• United Arab Emirates
Execution of the Foreign Decree:

A judgment given by a foreign reciprocating country is executed in the same way as if it has been
passed by the Indian courts only. The application is needed to be filed under sec. 44A, Order XXI
Rule 10 read with sec 151 of CPC. The format of the application for the same is given under Order
XXI Rule 11 of CPC.
•
The Code of Civil Procedure, 1908 laid down the procedure for the execution of a foreign decree in
India. Sec 2(5) defines "foreign Court" as a Court situated outside India and not established by the
authority of the Central Government, Sec 2(6) defines "foreign judgment" and says that it means a
judgment that has been given by a foreign Court.

Presentation title 32
 Conditions for Execution of Foreign Decree

• Whereas Section 44A of the code enables the foreign judgment to be executed in
India and provides certain conditions for the execution of the foreign decree:
• Must be of a Reciprocating country
• Must be of a superior court.
• Must be conclusive/final.
• Does not fall under any of the exceptions mentioned under sec.13 of CPC.
• According to Sect 44A a decree means any decree or judgment of such court under which a sum of
money is payable not being a sum payable in respect of taxes or other charges of a like nature or in
respect of fine or penalty and it does not include an arbitration award even in such an award is
enforceable as judgment or decree.
 Conditions for Execution of Foreign Decree

• Section 45 of the Code of Civil Procedure (CPC) 1908 allows courts to send decrees for execution to
courts in foreign territories:
• Foreign territory
• A location outside of India's legal jurisdiction, including neighbouring countries and distant continents.
• Conditions
• The decree must be from an Indian court, and the Central Government must have established the
transferee court in the foreign territory. The State Government must also declare that this section applies
to the foreign court by notification in the Official Gazette.
 The formal process for recognition and
enforcement

• The decree holder must file an application for execution of the

foreign judgment or decree in the competent Indian court. A
certified copy of the decree and a certificate from the superior
court of the foreign country stating the amount, if any, that has
been satisfied under the decree must also be submitted.
• Following
the application, the executing court will call on the
judgment debtor to show cause against execution of the decree.
• Atthis stage, the judgment debtor has the right to object to
enforcement on the ground that the judgment offends any of the
conditions specified in Section 13 of the Code of Civil Procedure,
1908.
Enforcement of Judgement is Passed by a Court of
Non- Reciprocating Territory?
• Foreign decree ORIGINATED from non-reciprocating States cannot be directly executed.
• Only a domestic decree which has been passed by an Indian Court of competent jurisdiction
which is based on a suit based on the foreign decree is enforceable.
• This decree is obtained only when the decree holder can show to the Indian court that the
foreign decree satisfies the test as laid down in S. 13 of the CPC.
• A suit on a foreign decree must be filed within 3 years from the date when the foreign decree
was passed.
• Marine Geotechnics LLC v/s Coastal Marine Construction & Engineering Ltd.,2014
• The Bombay High Court held that when a foreign court from a territory which is not a
reciprocating territory passes a decree, the person who has obtained such a decree must file a
suit on the foreign judgement or the original cause of action or both in a court in India
possessing competent jurisdiction.

36
 Rationale
• Section 13 makes no distinction between judgments of reciprocating territory and non-
reciprocating territories.
• That distinction comes only in Section 44A, an independent provision that says that a
decree of a court in a reciprocating state may be put into execution in India.
• (M.V. Al Quamar v Tsavliris Salvage (International) Ltd. & Ors., AIR 2000 SC 2826) A decree
from a non-reciprocating state cannot be so executed, however such Decrees of
both reciprocating and non-reciprocating territories must satisfy the tests of Section
13. (Raj Rajendra Sardar Maloji Marsingh Rao Shitole vs Sri Shankar Saran and Ors.
• The reciprocating territories enjoy greater privilege regarding execution of decrees of their
superior Courts in our country than by the non-reciprocating territories.