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Rule and Reason in the Common Law of Foreign Judgments
Published online by Cambridge University Press: 09 June 2015
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Two tenets are central to the Common Law rules for enforcement and recognition of foreign judgments. The first is that, subject to public policy, the enforcing court does not review the substance of the decision; in other words, mistake is no defence. The second is that, apart from ensuring that the judgment was not obtained by fraud or through a breach of the requirements of natural justice, the prime consideration for enforcement is whether the foreign court was competent to issue the judgment; in other words, whether it had jurisdiction.
These two tenets are eminently reasonable. A foreign judgment is after all both a judgment—like a local judgment, and foreign—like a right acquired under a foreign law. The validity of local judgments and of foreign unadjudicated rights depends on jurisdiction: local judgments depend on adjudicatory jurisdiction (often defined in the rules of service); foreign rights—on legislative or prescriptive jurisdiction (the jurisdiction of a system to regulate the situation substantively, as defined in choice-of-law rules). It thus seems appropriate to require jurisdiction of foreign judgments too. Local judgments, once final, are never subject to review, and can be attacked on the grounds that they were obtained by fraud only exceptionally. Rights acquired under a foreign law cannot be refused enforcement because of their substance and are subject only to the public policy exception. It thus seems appropriate to immunise foreign judgments from substantive review too. Foreign judgments—adjudicated rights—are of course different from foreign unadjudicated rights in that they are the product of a process. So, as in the case of local judgments, it should nonetheless be possible, in limited circumstances, to examine whether the process was tainted by fraud. So too, they differ from local judgments in that the process from which they emerge is not a local one; it cannot be relied upon in the same way as locally controlled and institutionalised procedures. It thus seems reasonable that, while prevented from reviewing the substance of a foreign decision, the court should be permitted to require of it a minimal level of procedural justice.
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References
1. The E.E.C. Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, 27 September 1968, E.C. Bulletin 1969 No. 2 (entered into force 1 February 1973), for example, has introduced an entirely different scheme of enforcement to English law. It has not, however, eclipsed the Common Law rules, even in the United Kingdom. These continue to apply to the many judgments which are not subject to the Convention—because they were issued by countries not party to it or because they do not fulfil its conditions or because it makes no provision for them. Similarly, in other Common Law countries, there has been no comprehensive legislation that replaces the Common Law rules.
2. A. V. Dicey & J.H.C. Morris, The Conflict of Laws, 12th ed. by L. Collins et al. (London: Sweet & Maxwell, 1993) at Rule 41; Henderson v. Henderson (1844) 6 Q.B. 288; see also Ferguson v. Manon (1840), L.J. 9 Q.B. 146 (N.S.).
3. Dent v. Smith (1869), L.R. 4 Q.B. 414 at 416; Ferdinand Wagner v. Laubscher Bros. & Co., [1970] 2 Q.B. 313 at 318.
4. Bank of Australasia v. Nias (1851), 16 Q.B. 717.
5. Godard v. Gray (1870), L.R. 6 Q.B. 139; Castrique v. lmrie (1870), L.R. 4 H.L. 414.
6. Henderson v. Henderson (1844) 6 Q.B. 288 at 298; Ellis v. M’Henry (1871), L.R. 6 C.P. 228; Dallai v. Bank Mellat (1985), [1986] Q.B. 441; Israel Discount Bank v. Hadjipateras (1983), [1984] 1 W.L.R. 137 (C.A.). It has even been held that the court will not hear evidence that could not have been adduced at the foreign trial (De Cosse Brissac v. Rathbone (1861), 6 H. & N. 301).
7. A foreign judgment can, of course, be denied enforcement on the basis of the public policy exception. The general view seems to be that this exception should be used, here as in choice-of-law, sparingly. See, for example, Dicey & Morris, supra note 2 at Rule 2, Comment, in general, and more explicitly on p. 754 with respect to divorce judgments; G.C. Cheshire & P.M. North, Private International Law 12th ed. by North & Fawcett (London: Butterworth’s, 1992) at 128ff.
8. Abouloff v. Oppenheimer (1882) 10 Q.B.D. 295; Vadala v. Lowes (1890) 25 Q.B.D. 310; Syal v. Heyward [1948] 2 Q.B. 443. The rule has recently been confirmed in Jet Holdings Inc. v. Patel [1990] 1 Q.B. 335 and Owens Bank Ltd. v. Bracco [1992] 2 All E.R. 127 (C.A.), aff’d [1992] 2 W.L.R. 621 (H.L.) despite nearly unanimous academic criticism (see for example H.E. Read, Recognition and Enforcement of Foreign Judgments in Harvard Studies in the Conflict of Laws, vol. 2 (Cambridge, MA: Harvard University Press, 1938) at 273ff; J.G.Collier, “Fraud Still Unravels Foreign Judgments” (1992) 51 Cambridge L.J. 441; Cheshire & North, supra note 7 at 380.
Dicey and Morris point out that the special fraud rule might apply in judgments in rem as between the direct parties to the action (supra note 2 at 509). But they suggest that judgments in personam may be the only ones subject to the rule. In any case, in judgments concerning status, fraud will only be effective if it produces procedural injustice (as occurred in Macalpine v. Macalpine (1957), [1958] P. 35) or if it causes the court to have no jurisdiction (as occurred in Middleton v.Middleton (1965), [1967] P. 62 and Bonaparte v. Bonaparte, [1892] P. 402. Fraud with respect to the substance of the matter, on its own, is no plea against recognising a foreign divorce (Bater v. Bater, [1906] P. 209).
9. Adams v. Cape Industries Pic (1989), [1990] Ch. 433 (C.A.), where a judgment given in default of defendant’s appearance, for a sum claimed as damages but not proven, was refused enforcement as being substantively unfair, changing the traditional view that this defence is restricted to matters of procedural fairness, see Cheshire & North, supra note 7 at 386.
10. Dicey & Morris, supra note 2 at 473; Cheshire & North, supra note 7 at 348.
11. Adams v. Cape Industries Pic (1989), [1990] Ch. 433 at 518 (C.A.) confirmed that it is sufficient for the requirement of residence that the defendant was present in the state only temporarily to receive summons. It is still not clear whether his presence at the time of summons is required if he is a permanent resident there. Presence at the time the cause of action was bom is strongly held not to be sufficient, even, presumably, if he resided there at the time, if he is no longer present or a resident at the time of service (Sirdar Gurdyal Singh v. Rajah ofFaridkote, [1894] A.C. 670 at 684 (H.L.), rejecting the view expressed in Schibsby v. Westenholz (1870), L.R. 6 Q.B. 154 at 161, that such a link might be sufficient.) Submission must be voluntary and explicit (Vogel v. R. & A. Kohnstamm Ltd. (1971), [1973] Q.B. 133; Dicey & Morris, supra note 2 at Rule 36; Cheshire & North, supra note 7 at 35 Iff). Consequently, just as performing a tort or a contractual act in the country of judgment is not sufficient to constitute residence, it will not suffice to constitute submission, although, curiously, protesting that the court has no jurisdiction, will (Harris v. Taylor, [1915] 2 K.B. 580 (C.A.), confirmed in Henry v. Geoprosco International Ltd. (1975), [1976] Q.B. 726 (C.A.)).
12. Castrique v. Imrie (1870), L.R. 4 H.L. 414. For the interesting question, what is a judgment in rem for the purposes of this jurisdictional rule, see infra at note 15.
13. Indyka v. Indyka (1967), [1969] 1 A.C. 33 (H.L.), dealing with foreign divorce judgments. The position with respect to adoption orders, is less clear (see Dicey & Morris, supra note 2 at Rule 108(3) and Cheshire & North, supra note 7 at 767). In the case of divorce judgments, which affect the status of more than one person, this rule permits any country with a significant connection to either of the parties to issue the judgment. Although the rule in Indyka was revoked by the Recognition of Divorces and Separations Act, 1971 (U.K.), 1971, c. 53 and is of barely any significance in England, it is still law in countries such as Canada, Australia and Israel, where the Common Law rules continue to govern and statute has not yet intervened to change them.
14. A foreign judgment ordering X to return the property will not be enforceable at Common Law since only judgments ordering payment of a sum of money are enforceable by action. But such a judgment can, of course, be recognised for the purposes of res judicata and, there again, appropriate classification of the judgment is necessary in order to identify the relevant rule of jurisdiction.
15. A judgment in rem is “a judgment… determining the status of a person or thing (as distinct from the particular interest in it of a party to the litigation); and such a judgment is conclusive evidence for and against all persons whether parties, privies or strangers of the matter actually decided” (Cheshire & North, supra note 7 at 362). Such a judgment “settles the destiny of the res itself ‘and binds all persons claiming an interest in the property inconsistent with the judgment even though pronounced in their absence’;…”(ibid. at 363). By contrast, a judgment in personam, “although it may concern a res, merely determines the rights of the litigants inter se to the res” (ibid.). See also their definitions of the various types of jurisdiction, where again they include actions for possession of tangible property in the category of actions in personam. See for a similar approach E. Sykes and M. Pryles, Australian Private International Law 3rd ed. (North Ryde, N.S.W.: Law Book Co., 1991) at 20-21,116-17. Cheshire and North further reveal this preference in their discussion of foreign judgments relating to land situated outside the state in which the foreign judgment was given and binding only the parties to the judgment. They regard these as a problematic type of judgment in personam (ibid, at 363). Land of course raises special problems. (It is interesting that they do not discuss the question whether such a judgment dealing with land in a third country, neither that of the issuing forum nor England, would be recognised). It would seem, however, that at least such judgments relating to movable property would be regarded as ordinary judgments in personam for the purposes of the rule of jurisdiction.
16. A judgment in rem “directly creates and vests rights of ownership concerning a thing in the successful party,” while a judgment in personam is designed “to establish a claim against some particular person or persons, imposing an obligation on him or them to pay money or do a specific act…” (Read, supra note 8 at 133). The definition does continue, “although the claim may concern the right to or possession of a thing.” Nonetheless, on the same page, Read stresses that a judgment inter partes with respect to property will be recognised only if it was issued in the situs. The Restatement (Second) of Judgments (1980) vol. 1, ch. 2 at para. 6 takes the same view. See also A.A. Ehrenzweig, A Treatise on the Conflict of Laws (St. Paul, MN: West Publishing Co., 1962) at 79-82, where he discusses the distinction between types of actions and also concludes that the distinction should turn on what the judgment does rather than on whom it binds. Nonetheless, this view may not extend to foreign judgments since, curiously, he regards Fall v. Eastin 215 U.S. 1 (1909) as a judgment which should be recognised as between the parties to the action, even though it dealt with rights in property outside the issuing forum. Perhaps he was influenced by the Full Faith and Credit clause of the U.S. Constitution.
Dicey’s position on this question is not unambiguous. On the one hand, his definition of judgments in rem includes judgments “whereunder…(l) possession or property in a thing is adjudged to a person.” So too he regards reliance on a judgment relating to property as reliance on a transfer. Consequently, he would seem to require that judgments relating to property be given only in the situs—the country whose law is authorised to affect the rights in local property. This would seem to follow also from his general emphasis on effectiveness. On the other hand, he stresses how few judgments in rem there are and, while he defines jurisdiction in personam positively as “an action brought against a person to compel him to do a particular thing, e.g. the payment of a debt or of damages for breach of contract or for tort, or the specific performance of a contract; or to compel him not to do something, e.g. when an injunction is sought…,” he defines it negatively as “any action which is not an Admiralty action in rem, a probate action, or an administration action” (Dicey & Morris, supra note 2 at 270), from which it appears that property judgments binding only the direct parties would be regarded as judgments in personam.
17. Note the consequences of the different basis of classification in the case of judgments which have more than one element, such as a judgment which determines that Khas a better right to property than X, orders X to return the property to Y, and orders him to pay Y damages for its unlawful detention. Classification according to the binding scope of the judgment will enable us to recognise or refuse to recognise the judgment in its entirety, on the basis of the residence and submission test appropriate to judgments in personam. The approach which classifies the judgment according to what it does would require us to apply different jurisdictional tests to the different parts of the judgment, and could produce inconsistent results. Thus, for example, if the judgment was issued in the situs, the property determination would be recognised; but if the defendant neither resided there nor submitted to the jurisdiction of the situs, the obligation to pay damages would not be enforced. Conversely, if the judgment were issued in the country of X’s residence, which was not the situs of the property in question, the obligation to pay damages would be enforced while the property right underlying it would not be recognised. Phillips v. Batho (1912), [1913] 3 K.B. 25 suggests that it is enough if the foreign court had jurisdiction over the principal issue, and it should not be required also for the “incidental” issue. Simons v. Simons [1939] K.B. 490 suggests further that jurisdiction over the “incidental” issue is not sufficient if the foreign court had no jurisdiction over the principal issue. These cases both deal with judgments in status to which in personam orders were attached. The property cases are slightly different, both because, unlike judgments in status, the property determination binds only the parties and not “the whole world,” and because it is not always as clear in such cases which part of the judgment is the principal issue and which the “incidental.”
18. Pemberton v. Hughes, [1899] 1 Ch. 781 (C.A.); Vanquelin v. Bouard (1863), 15 C.B. (N.S.) 341; Merker v. Merker (1962), [1963] P. 283. Cheshire and North argue that to enforce a judgment without jurisdiction is “inconsistent with principle”, supra note 7 at 369). It is hardly surprising that there are decisions in which the invalidity of the foreign judgment lacking jurisdiction was considered reason enough not to enforce it (Papadopoulos v. Papadopoulos (1929), [1930] P. 55, Adams v. Adams (1970), [1971] P. 188. Nonetheless, the leading cases suggesting that jurisdiction under foreign law is not required have never been overruled.
19. Schibsby v. Westenholz (1870), L.R. 6 Q.B. 155.
20. The Domicile and Matrimonial Proceedings Act, 1973 (U.K.) 1973, c.45, Part O recognises only domicile and habitual residence, in contrast with the “significant connection” anticipated in Indyka, supra note 13. The breadth of jurisdiction accorded in matters of status as compared with the narrow scope of jurisdiction in obligations is quite the reverse of English adjudicatory jurisdiction which, even after all the statutory expansions in divorce jurisdiction, is broader in the field of obligations. These rules produce a situation in which any foreign country to which only one member of a couple has a significant relationship is empowered to issue a divorce judgment—which is virtually immune from review, while only the country in which the defendant resides (or is present for summons) or to whose jurisdiction he expressly submits, can impose an obligation on him, and that obligation will be more exposed to review. In other words, it will sometimes be easier to find a country with jurisdiction to change a person’s status than one which will be empowered to impose an obligation, and foreign obligations in general are less easy to enforce or recognise in England than foreign statuses.
21. As happened, for example, in Merker v. Merker (1962), [1963] P. 283.
22. As in the cases of Abouloff v. Oppenheimer & Co. (1882), 10 Q.B. 295 (C.A.) and Adams v.Cape Industries Pic (1989), [1990] Ch. 433 (C.A.).
23. See Order 11 r. 1 (l)(f). When the tort is committed in England against an English plaintiff, and the defendant is out of England at the time proceedings are instituted, English courts will probably regard themselves as the most natural forum for deciding the case and exercise their jurisdiction to serve out (see J.J. Fawcett, “Trial in England or Abroad: The Underlying Policy Considerations” (1989) 9 Oxford J. of Legal Stud. 205 and A. Briggs, “Which Foreign Judgments Should We Recognise Today?” (1987) 361.C.L.Q. 240).
24. See Briggs, ibid, and see criticism of Machado v. Fontes, [1897] 2 Q.B. 231 (C.A.) in Boys v. Chaplin (1967), [1968] 2 Q.B. 1 (C.A.), aff’d [1971] A.C. 356 (H.L.) on the basis that England was not an appropriate forum for the action.
25. A.N. Sack, “Conflicts of Laws in the History of the English Law” in A. Reppy, ed., Law: A Century of Progress 1835-1935, vol. 2 (New York: New York University Press, 1937) 342.
26. Some such matters were litigated in England—in what ultimately became the Admiralty courts, or in ecclesiastical courts (Sack, ibid, at 349-50). Status for example was almost exclusively in the jurisdiction of the ecclesiastical courts. There were, however, comparatively few constitutive judicial powers since divorce was barely available. The secular courts did deal with matters of status incidentally. So too, they might decide on the formal validity of a marriage that took place in England (see Scrimshire v. Scrimshire (1752), 161 E.R. 782—an early case in which the choice rule subjecting the formal validity of marriage to the lex loci celebrationis was applied—for the lingering view that the locus celebrationis was the appropriate forum for deciding on the formal validity of a marriage).
27. See Sack, supra note 25 at 379ff. See also R. Graveson, “Choice of Law and Choice of Jurisdiction in the English Conflict of Laws” (1951) 28 Brit.Y.B.Int’l.L. 273.
28. Sack, ibid, at 384.
29. It might seem that the use of an identical link for English adjudicatory jurisdiction, English prescriptive jurisdiction and foreign adjudicatory jurisdiction in this early period, when English courts had no jurisdiction over foreign cases and did not apply foreign law, is insignificant, that in this period there was no “choice-of-law” and that the identity of the three links can teach us nothing with respect to a period in which foreign law is applied. Similarly, it might be argued, that once English courts applied foreign law, the identity between the decisive link for jurisdiction and the decisive link for choice-of-law was broken, since English courts did hear cases to which English law did not apply. These two objections can be overcome, it seems to me, if one remembers that the existence of choice-of-law does not depend on the application of foreign law. It is a method of delineating the outer scope of a particular law. The fact that in the early period this delineation went hand in hand with the delineation of the scope of adjudicatory jurisdiction does not make it any less an issue of choice-of-law. On the contrary, the rules of adjudicatory jurisdiction were derived from the rules determining the scope of the law; English courts had no jurisdiction over foreign cases because these were not subject to foreign law. The identity of the two types of jurisdiction makes it rather an issue of unilateral choice-of-law, or unilateral rules delineating the scope only of local laws and local jurisdiction. The willingness to recognise foreign judgments involved a bilateralisation of these linked concepts of adjudicatory and legislative or prescriptive jurisdiction. Implicit in the limit on English jurisdiction was an admission and recognition of the jurisdiction residing in a foreign sovereign. In other words, the willingness to recognise foreign judgments and later to apply foreign law does not signify the birth of choice-of-law. It merely signifies a change in the meaning of choice-of-law rules—from unilateral to multilateral rules on both types of jurisdiction. The earlier period is thus sufficiently similar to the modern period for it to be instructive. Similarly, the willingness to take adjudicatory jurisdiction over a case not subject to English law does not denote a split between the governing perception of the scope of adjudicatory jurisdiction and that of prescriptive jurisdiction; the traditional links of place of contracting, place of commission of tort, domicile, situs, still define the scope of English adjudicatory and prescriptive jurisdiction. It merely denotes the birth of a new, declaratory jurisdiction—the jurisdiction to recognise a situation appropriately created in a court in the authorised system, and later in the law of that system, independent of adjudication.
30. See infra. In Aboulqff v. Oppenheimer & Co. (1882), 10 Q.B. 295 (C.A.) foreign judgments are explicitly said to be the same as local judgments for the purposes of the defence of fraud.
31. Pemberton v. Hughes, [1899] 1 Ch. 781 at 793 (C.A.); Vanquelin v. Bouard (1863), 15 C.B. (N.S.) 341 at 368-69; Merker v. Merker (1962), [1963] P. 283 at 297.
32. As recognised by some, see supra note 18, although, curiously this has not been linked to the independent requirement of res judicata. Even the three major precedents for the rule that foreign jurisdiction is not a condition of enforcement do not seem to require that a foreign judgment be enforced even if it is void for lack of jurisdiction. In Vanquelin v. Bouard, it was never argued that the absence of jurisdiction had any effect on the judgment in the foreign law. In Pemberton v. Hughes, Lindley J. stressed that he was not persuaded by the evidence that the judgment was invalid in Florida, implying that had it been, he would have considered the argument. Only in Merker v. Merker, did the court recognise the judgment even though it was quite clear that it was a nullity in its country of origin. But the special circumstances of that case go a long way towards explaining why the court was willing to do so. The English judge found, unlike the foreign court, that the original marriage was valid. Refusal to recognise the void nullity judgment might have caused “grave inconvenience and injustice” (at p.301), since the husband might have remarried in reliance on the judgment, and his marriage would then be considered bigamous in England. In the absence of such special circumstances, there is no indication that a judgment void for lack of jurisdiction would be enforced.
33. A.V. Levontin, “Two Paradoxes in the Recognition of Foreign Judgments” (1967) 2 Israel L. Rev. 197. The argument is expressly limited to judgments in personam. It is striking, however, that of the three precedents for this rule, two of them dealt with judgments in matters of personal status.
34. By contrast with the lively discussion of this issue in French literature (see for example D. Holleaux, Compétence du juge étranger et reconnaissance des jugements (Paris: 1970). Two notable exceptions are R.Graveson, supra note 27 and M. Pryles, “The Basis of Adjudicatory Competence in Private International Law” (1972) 211.C.L.Q. 61. A.V. Levontin also discusses the need to coordinate the rule of international jurisdiction with the choice-of-law rule in “Foreign Judgments and Foreign Status in Israel” (1954) 3 Am. J. Comp. L. 199.
35. See for example R. Graveson, ibid, who states the principle and refers to Castrique v. Imrie (1870), L.R. 4 H.L. 414 and other cases which deal with mistake.
36. A.T. von Mehren, “Recognition and Enforcement of Foreign Judgments—General Theory and the Role of Jurisdictional Requirements” (1980-11) 167 Rec. des Cours at 52-54.
37. Dicey & Morris, supra note 2 at 488.
38. See A. Briggs, supra note 23 and “Foreign Judgments: More Surprises” (1992) 108 L.Q. Rev. 549. See also Morguard Investments Ltd, v. de Savoye (1990) D.L.R. (4th) 256, where the Canadian Supreme Court enforced a foreign default judgment (from a sister-state) despite the fact that the defendant was served outside the jurisdiction because it found that the forum was appropriate. This case has been followed, and applied in the international context too. See, for example Clarke v. Lo Bianco (1991), 84 D.L.R. (4th) 244 (B.C.S.C); McMickle v. Van Straaten (1992), 93 D.L.R. (4th) 74; Moses v. Shore Boat Builders Ltd. (1993), 106 D.L.R. (4th) 654 (B.C.C.A.); Webb v. Hooper (1994), 7 W.W.R. 324 (Alta.Q.B.).
The view that comity “requires” that foreign judgments be recognised whenever an English court would have taken jurisdiction in the same circumstances is also hardly necessary. Comity, even in the sense of reciprocity, does not require such treatment. It can quite easily, if not more easily, mean that one country will recognise judgments from another country in all those cases in which the foreign country will recognise hers, as is usually the case in modern conventions dealing with enforcement of foreign judgments. That is to say, the reciprocity requires “equal” or “national” treatment only with respect to “international” jurisdiction. See for example the E.E.C. Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, supra note 1.
39. For an extreme version of the view, see D. Holleaux, Compétence du juge étranger et reconnaissance des jugements, (Paris: 1970), who recommends rescinding the requirement of jurisdiction altogether. Francescakis, reviewing this book, is willing to relax it in order to check simply if the foreign court was a forum conveniens (1972) 61 Rev. crit. 529.
40. See for example Sirdar Gurdyal Singh v. Rajah ofFaridkote, [1894] A.C. 670 (H.L.).
41. A.V. Levontin, “Appearing under Protest to the Jurisdiction of a Foreign Court” (1968) 6 Melbourne U.L.Rev. 1 at 2.
42. One reason for saying that a prior connection should be required for foreign judgments might be that a foreign judgment is treated as an obligation. This, interestingly enough, suggests that the relevant contact ought to be legislative or prescriptive jurisdiction rather than adjudicatory jurisdiction. But if this were the case, foreign judgment jurisdiction would be exhausted, determined exclusively, by the rules of prescriptive jurisdiction—the rules of choice-of-law. Even if prescriptive jurisdiction is relevant, as I shall suggest infra, making it an exclusive test of enforceability would drastically and unjustifiably reduce the number of available fora.
43. See, for example, A.T. von Mehren, supra note 36 at 21-24.
44. The rule that fraud can be raised as a defence to a foreign judgment even when this requires interfering with a final judgment—considering evidence that was or could have been adduced at trial—is attributed to Abouloffv. Oppenheimer & Co. (1882), 10 Q.B. 295 (C.A.). From a strictly legal point of view, it has often been pointed out that this decision cannot serve as a precedent for the anomalous rule on fraud, since the demurrer of the plaintiff rendered it unnecessary to decide the legal question whether the defendant should be permitted to raise in defence an argument that had already been decided. As a result, the speeches of the Law Lords on this point were obiter dicta (see D.M.Gordon, “Fraud or New Evidence as Grounds for Actions to Set Aside Judgments” (1961) 77 L.Q. Rev. 358,533 at 554). Courts in the Commonwealth have recognised both that the rule is unreasonable and that it has no legal basis, and have freed themselves from it, making fraud available against foreign judgments only as against local judgments (Jacobs v. Beaver (1908), 17 O.L.R. 496 (Ont.C.A.); Woodruff v. McLennan (1887), 14 O.A.R. 242; Hollender v. Ffoulkes (1894), 26 O.R. 61 (Ont.H.C); Manolopoulos v. Pnaiffe, [1930] 2 D.L.R. 169 (N.S.S.C.) in Canada. Keele v. Findley (1991) 21 N.S.W.L.R. 444, in Australia). English courts have, almost reluctantly it seems, regarded themselves as bound by it (Vadala v. Lawes (1890), 25 Q.B. 310 (C.A.) and Owens Bank Ltd. v. Bracco (1991), [1992] 2 W.L.R. 127 (C.A.), [1992] 2 W.L.R. 621 (H.L.). The Israeli Supreme Court has also begun to move away from the rule (C.A. 490/88 Basilious vAdila, 44 Pisqei Din (4) 397.)
45. Abouloff v. Oppenheimer & Co., ibid, at 302, 303, and at 306-07.
46. See for example, Read, supra note 8 at 273ff., Cheshire & North, supra note 7 at 378ff, and Canadian, Australian and Israeli cases mentioned supra note 44.
47. A.V. Levontin, supra note 33.
48. Dicey and Morris have sought to explain the absence of the fraud defence in judgments in rem by suggesting that foreign judgments in rem are recognised not as judgments but rather as “new situations” or as the result of assignments (Dicey & Morris, supra note 2 at 495-96), in which fraud is never relevant. The argument surely applies to status judgments too. This suggestion does not, however, solve the problem. Not least because this would surely require that the existence of the new title or status be determined by the law authorised to create it—in other words, according to the choice-of-law rule—and not by the jurisdictional rules for foreign judgments (which as we have seen are not dependent upon prescriptive jurisdiction). More importantly, the fact that they are subjected exclusively to the rules for foreign judgments suggests that it is precisely their magisterial aspect which makes them definitive, since it can only be by virtue of the judgment, as opposed to the authorised law, that the new title or status has been acquired, in which case there can be little reason to distinguish judgments in rem from judgments in personam in this context.
49. A. Briggs, supra note 38.
50. The trial court judge made a valiant effort to fit the case into the scheme of procedural due process without explicitly disapproving of the foreign procedure itself, arguing that the foreign judge had not followed the prescribed procedure and thereby denied the defendants the opportunity to be heard (Adams v. Cape Industries Pic. (1989), [1990] Ch. 433 at 496 (C.A.)). As the judges in the Court of Appeal pointed out, if that were the case, any procedural mistake could be understood as affecting procedural fairness—a position which the doctrine of mistake rules out. It is difficult to read the judgment other than as a criticism of the foreign substantive and procedural law.
51. The criticism has focused on the location of the review rather than on its existence (“The conclusion … is no doubt correct” write Cheshire & North, supra note 7 at 386.) It has been argued for example that a more appropriate category for the defence would be public policy (ibid.) This argument then approves of the broadened exposure of the substance of the judgment to review, and is willing to countenance a broadening of the public policy category in order to accommodate it. This, notwithstanding implicit criticism of the court for using public policy where it might have been expected that they would be reluctant to do so in Joyce v. Joyce (1978), [1979] Farn. 93, where the court criticised the procedure and substantive law of a friendly country. This case also suggests that the court is increasingly willing to enter into a discussion of the merits of the judgment. For a similar trend towards refusing enforcement to judgments which result from legal rules different from those of the enforcing system, see the American cases Abdullah v. Sheridan Square Press Inc. No. 93, Civ. 2515, [1994] W.L. 419847 at 1194 (S.D.N. Y); Bachchan v. India Abroad Publications Inc., 154 Misc, 2d 228, 585 N.Y.S. 2d, 661 (Sup. Ct. 1992); Matusevitch v. Telnikoff, Civil Action No 94-1151 RMU (DDC) 1995 (Lexis 1352), in which American courts of first instance refused to enforce English decisions holding defendants liable in libel cases for statements which would have been protected in the U.S.A. under the First Amendment to the Constitution.
52. Note that even when a jurisdictional rule is designed to guarantee the availability of a forum, it does not necessarily need to exclude all other fora. Only in the very rare cases in which it is designed to guarantee the forum exclusive jurisdiction (as for example if the forum wishes to guarantee that a local mandatory law will always apply in a particular set of circumstances), will the existence of local jurisdiction of itself mean that no other forum will be recognised as appropriate.
53. [1953] P. 246; [1953] 2 All E.R. 794.
54. The restriction of this insight to judgments in rem (see for example Dicey & Morris, supra note 2 at 487-88; In re Trepca Mines Ltd, [1960] 1 W.L.R. 1273 at 1281-82 (C.A.)) is puzzling. If the rule in Travers v. Holley, supra note 53 had been enunciated when the Common Law accepted that one and only one law—one and only one forum—was competent in matters of personal status, that of the domicile, the argument would have some force; but it was found necessary to enunciate the rule precisely when the jurisdiction of English courts had been broadened (see infra.). Recognising the “reciprocity” principle in such a situation undermines universality and uniformity since it permits more than one state to affect a person’s status without coordinating their views. If “reciprocity” can be countenanced in a field like status, where universality and uniformity are valued, there seems no reason to reject it in other areas of law, where in any case these qualities are less important.
Interestingly enough, the principle of reciprocity is neither consistently applied within the in rem category nor consistently avoided beyond it. This is demonstrated first by the problem of classification suggested above. If a judgment between two parties declaring that the property belongs to A is subject to the rule for in rem judgments the reciprocity principle is effectively prevented because most states, including England have far broader rules of adjudicatory jurisdiction. If, by contrast, they are subject to the in personam rules, the reciprocity principle has been extended beyond the in rem category. So too, the rules for foreign judgments in personam against corporations are taken directly from the rules of adjudicatory jurisdiction (see Dicey & Morris, supra note 2 at 478).
55. Supra note 8.
56. Le Mesurier v. Le Mesurier (1895), A.C. 517 (P.C.).
57. Armitage v. A. G, [1906] P. 135.
58. Travers v. Holley, supra note 53.
59. Indyka v. Indyka, [1967] 2 All E.R. 689, (1967), [1969] 1 A.C. 33 (H.L.). It is interesting to note, by contrast with the situation in obligations where domestic jurisdiction is viewed quite naturally as being broader than that of foreign courts, that as a result of this case, the divorce jurisdiction accorded to foreign courts was conceived of as broader than that accorded by common law or by statute to English courts.
60. It is possible that the present situation is simply one stage in a larger development, in which the rule of adjudicatory jurisdiction and the choice-of-law rule will “catch up” and subject matters of status to laws and courts other than those of the domicile, if they have significant connections with the propositus, as in the foreign judgment rule.
61. Adams v. Cape Industries Pic. (1989), [1990] Ch. 433 (C.A.).
62. See E.M. Dodd Jr., “Jurisdiction in Personal Actions” (1929) 23 111. L. Rev. 427. See also A. Briggs, supra note 23, who links the two types of jurisdiction, but argues that only the Common Law rules of competence and appropriateness can serve as a model for foreign judgment jurisdiction, and excludes any rules based on statute law, such as the situations provided for in Order 11.
63. Harris v. Taylor, [1915] 2 K.B. 580. This rule was confirmed in Henry v. Geoprosco International Ltd. (1975), [1976] Q.B. 726 (C.A.), and legislation was required in order to abrogate it. This rule is different from the domestic rule (see Cheshire & North, supra note 7 at 189).
64. By contrast, if it has no significance, and if indeed fleeting presence is sufficient, the link required for foreign jurisdiction is the same as that required for local jurisdiction under the Common Law.
65. Starting with Schibsby v. Westenholz (1870), L.R. 6 Q.B. 155, just 18 years after the introduction of the possibility to apply for leave to serve summons out of the jurisdiction in the Common Law Procedure Act in 1852. It is interesting that the decision mentions the place of contracting and the place of residence as potential jurisdictional links. These are links which first became available as a basis for service outside the jurisdiction in the Act of 1852. Although the judges explicitly rejected the idea that this Act might serve as a formal basis for defining the jurisdiction of foreign courts, as a new approach to jurisdictional competence, it must have seemed a natural—if not the only—source of inspiration for determining what factors would create an obligation to obey a foreign court.
66. The Common Law rules (now embodied in statute) are presented in Cheshire & North, Private International Law, 11th ed. (London: Butterworth’s, 1987) at 188.
67. Littauer Glove Corporation v. F.W. Millington (1928), 44 Times L.Reports 746.
68. Can support for the proposition that all the heads of jurisdiction in the case of foreign judgments are cases of submission be found in Dicey’s comment (supra note 2 at 313) that jurisdiction of foreign courts over corporations is discussed in the category of submission rather than in the category of residence is a matter of convenience rather than principle?
69. As suggested by both J.J. Fawcett, supra note 23, and A. Briggs, supra note 23 and again in supra note 38.
70. Understanding the requirement of residence as a critical response to the link of fleeting presence depends to some extent on two assumptions: 1) that fleeting presence is not sufficient in foreign judgments, and 2) that presence is not required of residents. The second issue was left open in Adams v. Cape Industries Pic. The first issue was treated in obiter dicta and the traditional assumption that fleeting presence is sufficient was confirmed. There is still however no clear precedent on this question and there is a significant body of scholarly opinion against it (see for example Cheshire & North, supra note 7 at 184, A. Briggs, supra note 23.
71. For the effect of the role played by the jury in such cases on rules of jurisdiction see Sack, supra note 25 at 357ff.
72. Common Law Procedure Act, 1852 (U.K.), 15 & 16 Vict., c. 76.
73. In accordance with the then prevalent vested rights theory. Sack depicts the early recognition and enforcement of foreign judgments as a declaratory act (supra note 25 at 384). O. Kahn-Freund has pointed out the tendency to apply lex fori whenever the court is engaged in a constitutive act. Apart from the obvious example of English divorce jurisdiction and law, he brings the example of torts—where the Common Law choice rule required actionability under the lex fori—where the traditional view has been that it is not the act which produces the right to damages but rather the judgment (The Growth of Internationalism in English Private International Law (Jerusalem: Magnes Press, 1960) at 64). The idea that obligations merge in their judgments would extend this view to all obligations.
74. Nor did it affect the identity of foreign constitutive adjudicatory authority with its prescriptive authority, nor even the identity of these two with their English counterparts whose multilateralisation were their source.
75. And indeed, prescriptive and adjudicatory jurisdiction were now distinguished by the fact that the relevant moment for adjudicatory jurisdiction, once the substantive link was no longer required, became service or the time of submission, whereas for local prescriptive jurisdiction, it was the time of judgment when the obligation merged in a constitutive judgment. For foreign prescriptive jurisdiction, it was the time at which the right, whose existence was merely to be recognised, vested.
76. Williams v. Jones (1845), 13 M. & W. 628 at 633-34; In re May (1885), 28 Ch. 516 at 518.
77. Russell v. Smyth (1842), 9 M. & W. 810. It is interesting to note that the parallel development in choice-of-law theory—vested rights theory—which began at roughly the same time, would have suggested a declaratory theory of enforcement not only of foreign law but also of foreign judgments. It did not, however, manage to influence foreign judgments theory before it was itself incorporated into the varieties of local law theory which all gave the forum a constitutive role with respect to foreign rights of all kinds. It is, however, possible that this development confused the issue and made it appear as if foreign judgments were a totally separate issue from foreign unadjudicated rights, making it seem appropriate for foreign judgments to abandon prescriptive jurisdiction.
78. Just as, in the twentieth century, applying local law to foreigners in matters of status split the original link between adjudicatory and legislative or prescriptive authority.
79. These factors actually make it less of an obstacle to fulfil a compatibility requirement. The logic of the compatibility requirement means only that overt conflict between what our conflict rules would require or permit and the result reached by the foreign court be avoided. Any non-conflicting situation would be acceptable. Since the choice rules in obligations are very flexible to start with, this minimal requirement should not be difficult to achieve.
80. Dicey mentions that in the case of movables, other jurisdictions might be competent to issue a judgment in rem. But the only example he brings is a judgment in succession from the domicile of the deceased with respect to movables in another country, which should be recognised in England, see Dicey & Morris, supra note 2 at 498.
81. Except in the case of land because of the rule in British South Africa Company v. Companhia de Moçambique, [1893] A.C. 602 (H.L.) which effectively removed cases involving foreign land from English courts.
82. Williams v. Jones (1845), 13 M & W 628.
83. Russell v. Smyth (1842), 9 M. & W. 810.
84. Boswell v. Coaks (No 2) (1894), 6 R. 167, 86 L.T. 365, see D.M. Gordon, supra note 44 for a discussion of the development of the rule.
85. See Abouloffv.. Oppenheimer & Co. (1882), 10 Q.B. 295 (H.L.) and Vadala v. Lawes (1890), 25 Q.B. 310, in both of which the assumption is clear that local and foreign judgments are to be treated alike with respect to fraud. See also the discussion of these cases in Keele v. Findley (1990), 21 N.S.W.L.R. 444.