Tetley (2002) introduction to conflict of laws 5
RECOGNITION OF FOREIGN JUDGMENTS
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RECOGNITION OF FOREIGN JUDGMENTSRecognition can be described as the process whereby a local court decides if the choice of law and the choice of jurisdiction, which resulted in a foreign judgment, were validly made. Basic PrinciplesA foreign judgment alone has no effect because of the principle of territorial sovereignty. A forum judgment alone has no effect in a local forum; something more is required. It is only by international conventions on recognition and enforcement that complete uniformity can be expected bilateral & multilateral conventions; UNCITRAL Model Law; NY Convention. Full faith & credit principle in the US, Australia and Canada in Canada, the relevant case is Morguard Investments Ltd. v. De Savoye. Under the common law, a judgment that is recognized may not necessarily be enforced: a foreign in personam judgment dismissing a claim or counterclaim, a decree of divorce or a judgment declaring the status of a person or the title to a thing, is not ordinarily capable of enforcement, but only of recognition. Similarly, most in rem judgments do not require enforcement but only recognition. The court which rendered the judgment must have had international jurisdiction, ie, jurisdiction in the international sense, and not merely in the domestic sense of the foreign court. There must have been a real and substantial connection between the jurisdiction and the defendant, in order to provide the foreign court with international jurisdiction. For judgments in personam: Voluntary physical presence of the defendant in the foreign jurisdiction at the time proceedings are instituted (ie. when the writ is served), even if temporary is necessary, but residence is even better. At times, property in the jurisdiction has been held to provide the presence but this is doubtful today. For corporations, a permanent business address an agreement to accept the jurisdiction ‘Submission’ = an agreement to accept the jurisdiction of a foreign court or a valid jurisdiction clause in the contract under dispute to which the defendant subjected himself, is sufficient as well. Appearance solely to contest jurisdiction is not submission. For judgments in rem: When a res is situated in a foreign jurisdiction, there is usually no question that the foreign court has international jurisdiction in the rem action. Procedure:Recognition and enforcement can be implemented by a direct action or by a defense to a suit or by a cross-defense. The foreign judgment must be ‘final and conclusive’ (what this means differs according to matter and jurisdiction – example: foreign decrees for specific performance or injunction are not enforceable at common law). Brussels Convention 1968 doesn’t apply this principle systematically. The forum court decides whether there is international jurisdiction, using its own rules of recognition. Finality and conclusiveness, however, are determined by the law of the court which rendered it. Non-merger: a foreign judgment does not extinguish the original cause of action at common law. A plaintiff who obtains a second judgment in a local forum by suing on the original cause of action may then sue on the more advantageous of the two judgments in the forum of a third jurisdiction, so as to collect higher damages. Rule still applied in Canada and in the US, now abolished in the UK. Rule doesn’t apply if judgment gave reason to defendant or if the judgment has been satisfied. Full Faith & CreditFound in US and Australian constitutions, seen as an early justification for inter-state recognition of judgments, has been reduced in importance by recent statues. Developed in Canada through case law. an American term Morguard Investment v. De Savoye 1990 3 S.C.R. 1077Facts: Pt. were mortgagees (bank) of lands in Alberta, the defendant was the mortgagor (he who took out the mortgage) originally residing in Alberta. He moved to BC and has not resided or carried on business in Alberta since then. The mortgages fell into default and the plaintiff brought action in Alberta. Service was effected in accordance with rules for service ex juris of the Alberta Court. Defendant never appeared nor did he file a defense. Plaintiff eventually sold the properties and attempted to claim the difference between the value of property and the amount owing on the mortgages in BC Court. Issue: What is the recognition to be given by the courts in one province to a judgment of the courts in another province in a personal action brought in the latter province at a time when the defendant did not live there? Holding: Courts in one province should give “full faith and credit” to the judgments given by a court in another province or a territory, so long as the court has properly, or appropriately, exercised jurisdiction in the action. Ratio: Comity is based not simply on respect for a foreign sovereign, but on convenience and even necessity. The Canadian judicial structure is so arranged that any concern about differential quality of justice among the provinces can have no real foundation. All courts are subject to final review by Supreme Court of Canada. It is anarchic and unfair that a person should be able to avoid legal obligations arising in one province simply by moving to another province. If it is reasonable to support the exercise of jurisdiction in one province, it is reasonable that the judgment be recognized in other provinces. There is a mortgage on a property in Alberta and both parties resided there. Mortgage fell into default and the mortgagor moved to BC but was sued in Alberta. Issue: Will the judgment in Alberta be recognized in BC? Court said yes, there is comity and they must recognize the judgment of another province This is an approval of BC Court recognizing Alberta judgment – 1) full faith and credit, 2) order and fairness, 3) real and substantial connection Hunt v. T & N Plc., 1993 SCC Appellant suffered from cancer which he alleged was contracted form exposure to asbestos fiuber when working in BC. Sued respondents in BC – the respondents were Quebec companies. Issue: Should BC demand documents?
SCC recognized the right of a BC Provincial Court to judge the constitutionality of a Quebec blocking stature in respect of interprovincial matters Beals v. Saldanha, 2003 SCC considered to be an unfair decision by many appellants (resident in Ontario) sold a vacant lot to respondents in Florida dispute arose and respondents sued in Florida appellants filed a defense but they never defended their amendments and they were held to not defend the action – they were filed in default and there was a jury trial to fix the damages jury awarded $250,000 in damages The appellants were advised by an Ontario lawyer that the judgment could not be enforced in Ontario, they took no steps to have the judgment set aside or to appeal it in Florida the damages were not paid and an action was started in Ontario to enforce the Florida judgment SCC held that the judgment could be recognized court said that real and substantial connection test should be applied to the recognition and enforcement of foreign judgments the defense of natural justice is restricted to the form of the foreign procedure and to due process, and does not relate to the merits of the case judgment was 6-3 Lebel (dissent) said that real and substantial connection test should be modified significantly when looking at foreign judgments outside the Canadian Federation – we should really look at the additional hardship imposed on the defendant who is required to litigate in a foreign country Iaccobucci and Binnie dissent for different reasons from above – they rely on natural justice and public order to refused the real and substantial connection test (they think public order would overcome this) real and substantial test applied by a Quebec court of a foreign judgment
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