Foreign judgments may be recognized based on bilateral or multilateral treaties or understandings, or unilaterally without an express international agreement.
The "recognition" of a foreign judgment occurs when the court of one country or jurisdiction accepts a judicial decision made by the courts of another "foreign" country or jurisdiction, and issues a judgment in substantially identical terms without rehearing the substance of the original lawsuit.
Foreign judgments may be recognized either unilaterally or based on principles of comity, i.e. mutual deference between courts in different countries.
Recognition will generally be denied if the judgment is substantively incompatible with basic legal principles in the recognizing country.
For example, U.S. courts, in accordance with the Securing the Protection of our Enduring and Established Constitutional Heritage Act, are prohibited from recognizing or enforcing foreign libel judgments against any United States person unless the foreign country in which the judgement was made protects freedom of speech to at least the same degree as the United States and the foreign court's conduct of the case in which the judgement was reached respected the due process guarantees of the U.S. Constitution to the same extent as a U.S. court would have.
If the country that issued the judgment and the country where recognition is sought are not parties to the Hague Convention on Foreign Judgments in Civil and Commercial Matters (as of December 2017, only ratified by Albania, Cyprus, Kuwait, the Netherlands and Portugal ),[3] the Brussels regime (all European Union countries, as well as Iceland, Norway and Switzerland)[4] or a similar treaty or convention providing for the routine of registration and enforcement between states, the courts of most states will accept jurisdiction to hear cases for the recognition and enforcement of judgments awarded by the courts of another state if the defendant or relevant assets are physically located within their territorial boundaries.
The following issues are considered: There is a general reluctance to enforce foreign judgments which involve multiple or punitive damages.[why?]
A local version of the Uniform Foreign Money Judgments Recognition Act applies in most states, for example in California, 13 U.L.A.
Moreover, a quicker "motion-action" procedure is available in New York where the owner of the foreign default judgment/judgment by confession files a summons and notice of motion for summary judgment in lieu of complaint.
First, foreign judgments will only be enforced in Canada if they stem from a final and conclusive decision.
The foreign court's jurisdiction is not assessed by its own rules but by tests specific to Canadian recognition and enforcement.
The third and now most common test, real and substantial connection, was recognized in the Supreme Court of Canada's 1990 decision Morguard Investments Ltd v De Savoye.
[18] The test for proving the defendant's submission to the foreign court consists of two separate branches: attornment and agreement.
The real and substantial connection doctrine has subsequently become the dominant test for whether Canadian courts recognize and enforce foreign judgments.
However, these defences strictly concern whether the order shall be enforced, and are not about the merits of the case the judgment originated from.
[29] Foreign judgments created by laws that violate the fundamental morals underlying Canada's legal system will not be enforced.
This would include laws that confiscate property based on religious or racial grounds, as well as a foreign court that has been proven to be corrupt.
[30][31] However, the mere fact that foreign policies produce outcomes that are different from Canada’s is not in itself a reason to deny enforcement.
It had previously been the case that if the foreign claimant had been partially successful, he was entitled to sue on the cause in action again within England.
Section 34 of the Civil Jurisdiction Judgment Act 1982 was subsequently passed by parliament to remove the right to sue a second time.
The Brussels Recast Regulation operates as the primary procedural scheme relating to foreign judgments, their recognition and enforcement.
This is consistent with the EU principles of a single economic market where courts and government departments can be trusted to get things right.
A judgment may therefore be reduced to four components: Reciprocity is not the central tenet of recognition, but rather it is suggested that it is the doctrine of obligation.
By contrast, Adams v Cape Industries plc specifically rejected comity as the basis for recognition or non-recognition of judgments because it was insufficiently hard-edged for the demands.
The first of two broad bases for recognition within the Common law rules in England and Wales is set forth in Adams v Cape Industries plc.
A difficulty arises in relation to default judgments which will often be liable to re-opening in the court in which they were entered.
[55] If the representative/servant has the power to bind the corporation into a contract without seeking approval from other entities abroad, presence will be determined.
Travelling salesmen certainly operate in jurisdictions on behalf of companies, enjoying the benefit of economic markets, and under the current criteria would not be considered "present".
The first is the Administration of Justice Act 1920 where Part II applies to former colonial jurisdictions such as New Zealand, Nigeria, and Singapore.
Chapter III of the Recast Regulation implements articles relating to the automatic recognition and enforcement of Member State judgments.