World Legal System Sud RD

8/12/2019 World Legal System Sud RD

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Rough raft of World Legal System

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Dr. Ram Manohar Lohiya National Law University, Lucknow

A Rough Draft submitted for the Project in the

B.A. LLB (Hons.) (VIIIth Semester) Course in World Legal System

On the topic-

Enforcement Of Foreign Decree: Comparison Between Common

Law And Continental Law Countries

SUBMITTED BY SUBMITTED TO

Sudhir Kumar Singh Mr. Shashank Shekhar

Roll No. 138 Assistant Professor (Law)B.A. LLB (Hons.) Dr. RMLNLU

VIIIth Sem. Sec. B


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AIM

The aim of this project is to study and analyse the enforcement of foreign laws and decrees

passed under them in common law countries and continental law countries. Also, to analyze

the difference in enforcement of foreign decrees in the different legal systems, how do they

differ in recognition of judgments given by foreign courts.

RESEARCH METHODOLOGY

The method of research adopted for the purpose of the project shall be doctrinal research

generally known as arm-chair research; however analytical and critical approach shall be

adopted in particular for understanding the approach towards enforcement and recognition of

foreign decrees.

TENTATIVE CHAPTERIZATION

1. Introduction

2. Enforcement Of Foreign Decree In India

3. Enforcement Of Foreign Decree In The Uk

4. Enforcement Of Foreign Decree In France5. Enforcement Of Foreign Decree In Germany

6. Enforcement Of Foreign Decree In Italy

7. Conclusion

8. Bibliography


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Brief Introduction

English courts have recognised and enforced foreign judgments from the 17 th Century

onwards. It was at one time supposed that the basis of this enforcement was to be found in the

doctrine of comity. English judges believed that the law of nations required the courts of one

country to assist those of any other, and they feared that if foreign judgments were not

enforced in England, English judgments would not be enforced abroad.1But later this theory

was superseded by what was called the doctrine of obligation, which was stated by Parke B in

Russell v. Smyth2and approved by Blackburn J. in Godard v. Gray3.

The emerging legal issues on jurisdiction as regards transactions over the internet can

hardly ignore the legal aspects involved in the execution/enforcement of foreign decrees.

Even after exercise of jurisdiction, the Courts may be unable to help the plaintiff in getting

relief in case the local laws of the country concerned have certain restrictions for the

execution/enforcement of foreign judgments or decrees in the country.

With the advent of globalisation and with India poised as a major international and global

player in the world economy, it is apposite to consider the law concerning enforcement of

foreign judgments in India. This is primarily enshrined in Section 13 of the Code of Civil

Procedure, 1908, which is a rather slender section; despite its brevity in terms of the statute,

it has been subjected to the judicial scrutiny of various High Courts and the Supreme Court of

India, through a tapestry of significant case law. The subject of the present article falls within

the ambit of what is considered in law as the doctrine of conflict of laws or what has often

been described as Private International Law.

A trenchant exposition of this subject has been eloquently summarised by J H C Morris, in

his classical treatise, The Conflict of Laws4

in the following terms: The conflict of laws is

that part of the private law of a particular country which deals with cases having a foreign

element. Foreign element simply means a contact with some system of law other than thatof

the forum, that is the country whose courts are seized of the case. The Code of Civil

Procedure, as its name suggests, governs all aspects of civil procedure. It is therefore

somewhat surprising to find this law ensconced in an otherwise elaborate statute concerning

1SeeRoach v. Garvan,(1748) 1 Ves.Sen. 157, 159

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(1842) 9 M. & W. 8103(1870) L.R. 6 Q.B.

4Morris: The Conflict of Laws: 5th Edition by David McClean, 2000, London, Sweet and Maxwell page 2


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procedural law. The Supreme Court of India has held in Sardar Maloji Nar Singh Rao vs.

Sankar Saran,5 that the rules laid down in Section 13 are rules of substantive law and not

merely of procedure.

ENFORCEMENT OF A FOREIGN DECREE IN INDIA

Under Indian Law, execution of decrees, whether foreign or domestic, is governed by the

provisions of the Code of Civil Procedure, 1908 (CPC) (as amended from time to time).6

Under the Indian law there are two ways of getting a foreign judgement enforced. Firstly, by

filing an Execution Petition under Section 44A of the CPC (in case the conditions specified

therein are fulfilled) and secondly, by filing a suit upon the foreign judgement/decree.

Under S. 44A of the CPC, a decree of any of the Superior Courts of any reciprocating

territory are executable as a decree passed by the domestic Court. Therefore in case the

decree does not pertain to a reciprocating territory or a superior Court of a reciprocating

territory, as notified by the Central Government in the Official Gazette, the decree is not

directly executable in India. In case the decree pertains to a country which is not a

reciprocating territory then a fresh suit7will have to be filed in India on the basis of such a

decree or judgment, which may be construed as a cause of action for the said suit. In the fresh

suit, the said decree will be treated as another piece of evidence against the defendant

Mode of Enforcement of Foreign Judgments

A foreign judgment which is conclusive under Section 13 of the Code of Civil Procedure,

1908,can be enforced in India by:

1. instituting a suit on such judgment; or

2.by instituting execution proceedings.

A foreign judgment may be enforced by instituting a suit on such foreign judgment. The

general principle of law is that any decision by a foreign court, tribunal or quasi-judicial

authority is not enforceable by a country, unless such decision is embodied in a decree of a

5Sardar Maloji Nar Singh Rao vs. Sankar Saran AIR 1962 SC 1737 (at page 1741)

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In the present paper only enforcement of foreign decrees is discussed.7 Refer Moloji Nar Singh Rao v. Shankar Saran, AIR 1962 SC 1737 at p. 1748 para 14. Also see I & G

Investment Trust v. Raja of Khalikote, AIR 1952 Cal. 508 at 523 para 38.


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court of that country.8A suit on a foreign judgment must be filed within a period of three

years from the date of the judgment.9

Execution Proceedings

A foreign judgment may also be enforced by proceedings in execution in certain specified

cases mentioned in Section 44-A of the Code of Civil Procedure, 1908. The case

of M.V.A.L. Quamar vs. Tsavliris Salvage (International) Ltd. and others10provides a

fascinating insight concerning the interpretation of Section 44A of the Code of Civil

Procedure, 1908and contains an excellent overview of this very significant aspect of

enforcement of foreign judgments.

Enforcement of Foreign Awards

Indias global exposure in international arbitration is well-known. Ever since the enactment

of the Arbitration and Conciliation Act, 1996, there has been a surge in international

commercial arbitration. It is noteworthy that the Arbitration and Concil iation Act, 1996,is

based on what is popularly known as the UNCITRAL model. [The United Nations

Commission on International Trade Law (UNCITRAL) adopted the Model Law on

International Commercial Arbitration in 1985]. With foreign direct investment flowing into

India surely and steadily, international commercial arbitration with an India-centric focus is

gaining momentum. In this context, the question of the enforcement of foreign awards has

formed the subject of intense judicial debate. It is interesting to observe that the Legislature in

its wisdom has consciously chosen to statutorily incorporate international covenants into

domestic law. These are contained in Part II of the Arbitration and Concil iation Act,

1996and include Chapter I, being the New York Conventi on Awards, and Chapter II, being

the Geneva Conventi on Awards.

ENFORCEMENT OF A FOREIGN DECREE IN THE UK

Foreign judgments may be enforced in the UK in one of three different ways, as follows:-

1. (1)European Judgments - Judgments of foreign States signatories to the JudgmentsRegulation 2000 (which replaced the Brussels Convention on jurisdiction and the

8[1964] 4 SCR 19

9

Badat and Company vs. East India Trading Company (1964) 4 SCR 19;Roshanlal vs. Mohan Singh, (1975)4 SCC 62810

[ 2000] 8 SCC 278


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enforcement of judgments in civil and commercial matters of 1968 for all EU

countries save for Denmark) and the Lugano Convention which applies to EFTA

countries;

2. (2)Judgments of Commonwealth States and States with which the UK has a bilateralTreaty; and

3. (3)Judgments from courts of foreign States with which there is no treaty.Once the judgment is registered, or declared enforceable, it is treated for the purposes of

English law as equivalent to a High Court judgment.

BIBLIOGRAPHY

1. Class Action Judgment Enforcement in Italy: Procedural Due Process Requirements;Dreyfuss, Richard H., 10 Tul. J. Int'l & Comp. L. 5 (2002)

2. http://www.loble.co.uk/Enforcement_of_Foreign_Judgments.html,viewed on 16thOctober, 2011

3. http://www.filodiritto.com/index.php?azione=visualizza&iddoc=459,viewed on 16thOctober, 2011

4. James C. Regan, The Enforcement of Foreign Judgments in France under theNouveau Code de Procdure Civile, 4 B.C. Int'l & Comp. L. Rev. 149 (1981)
http://www.loble.co.uk/Enforcement_of_Foreign_Judgments.htmlhttp://www.loble.co.uk/Enforcement_of_Foreign_Judgments.htmlhttp://www.filodiritto.com/index.php?azione=visualizza&iddoc=459http://www.filodiritto.com/index.php?azione=visualizza&iddoc=459http://www.filodiritto.com/index.php?azione=visualizza&iddoc=459http://www.loble.co.uk/Enforcement_of_Foreign_Judgments.html

World Legal System Sud RD

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