1 - Introduction

Summary

Due to the operation of territorial sovereignty, a foreign decision has no extraterritorial reach unless and until it is given effect by an enforcing court (on behalf of the enforcing State). Although many enforcing courts regularly recognise or enforce foreign decisions, this state practice is not considered specific enough to create binding rules of customary international law mandating enforcement or recognition.¹ This is so despite recurrent arguments that giving effect to foreign decisions ought to be considered a matter of customary international law.² Absent treaty or supranational commitments, recognition and enforcement is then solely a matter for national law, as foreign decisions have no independent legal effect without being deferred to or incorporated by some way into the enforcing State. In the extreme, national law can insist that if disputants want to progress amatter, they must retry it within the confines of the enforcing State’s jurisdiction. Such an exercise of sovereignty is not problematic in and of itself. It has value in the overall coherence of a system of entitlements premised upon municipal law, allowing for the preservation of the values and interests of the sovereign (as represented by the devolution of legal power to the enforcing court).³ Exercise of sovereignty in this way at the enforcement stage also provides an ultimate check on what might otherwise be an unbridled or inappropriate forum or dispute resolution mechanism selection on the part of claimants.⁴