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British Institute of International and Comparative Law

Which Foreign Judgments Should We Recognise Today?


Author(s): Adrian Briggs
Source: The International and Comparative Law Quarterly, Vol. 36, No. 2 (Apr., 1987), pp. 240259
Published by: Cambridge University Press on behalf of the British Institute of International
and Comparative Law
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WHICH FOREIGN JUDGMENTS SHOULD WE


RECOGNISE TODAY?
ADRIANBRIGGS*
FORover a century the rules of English law on the recognition and
enforcement of foreign judgments have developed in a rather curious
way. Whilst the rules governing the taking of jurisdiction are seen by
students and textbook writers as being the sensible beginning of a conflict of laws syllabus, the recognition of foreign judgments has by universal tradition come at the end of the course. For this reason conflicts
lawyers have grown up to see these as two separate and distinct
branches of the law, with little in common but much between them: the
"in between" part being the rules on choice of law.
This is puzzling and has no rational justification. Additionally, the
result of separating the rules on jurisdiction and judgments is that
developments in legal thought which should apply to both are in danger
of being applied only to one of these branches. The case for reuniting
the two areas is a strong one. After all, the doctrine on recognition
begins with the search for a foreign court which had jurisdiction "in the
international sense". Might this not suggest the closeness of their relationship? And if so, certain conclusions can be drawn about the common law rules for the recognition of judgments which would not
otherwise be possible. In the course of the analysis it will be necessary to
pay some attention to the relevant provisions of the Brussels Convention on Jurisdiction and Judgments in Civil Matters (the "Brussels Convention").
I.

THE ORTHODOX HISTORY

MODERN
English doctrine really begins with the contemporaneous cases
of Godard v. Grey1 and Schibsby v. Westenholz.2 For present purposes
the second is the more instructive case. In it two Danish nationals made
a contract, probably in London. The plaintiff was resident in France; the
defendant in England. The plaintiff brought an action in France against
the defendant. To do so, he availed himself, as was his right, of the pro*
Fellow, St Edmund Hall, Oxford. This article is based on a paper given at the Cambridge meeting of the British Branch of the International Law Association, at Magdalene
College on 3 May 1986.
1. (1870) L.R. 6 Q.B. 139.
2. (1870) L.R. 6 Q.B. 155.

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vision of the Civil Code which allowed him to sue the defendant. Article
14 provided that3 a foreigner may be sued in France in respect of contracts made with a Frenchman, even if the foreigner were not resident in
France; and Sirey's note 424 provided that this right extended to a
foreigner who had a business establishment in France. There was therefore a right to sue the defendant under domestic law, which in no sense
depended upon the discretion of the French court. Provisions for service
out of the jurisdiction were haphazard: the summons was forwarded to
the Procureur Imperial who, as a matter of courtesy rather than obligation, forwarded it to the French Consulate in London. Even so, the
defendant did not appear and suffered judgment against him by default.
In due course the plaintiff attempted to enforce the judgment in England.
He failed. The judges of the Court of Queen's Bench were obviously
uneasy about the enforcement-or even recognition-of foreign default
judgments. After all, Westenholz had some knowledge of the proceedings in France; but he might have had none, and it was the more
unthinkable that a foreign judgment against a defendant who knew
nothing about it should be enforceable in England. The court not considering that any line should be drawn between these two categories,
Schibsby had to lose. In the eyes of the judges, the French provisions for
taking jurisdiction over absent defendants were no more respectable
than the practice in Tobago of nailing the writ to the courthouse door.5
Neither process gave the foreign court jurisdiction in the international
sense, whatever local law might say.
The court had been pressed with the argument that as English law had
provisions-perhaps even similar provisions6-for service out of the
jurisdiction, the judgment of a French court founded in this way should
be recognised and enforced in England. But Blackburn J rejected the
argument, and in broad terms at that. He said7:
We think that if the principle upon which foreign judgments were
enforced was that which is loosely called "comity", we could hardly
declineto enforcea Frenchjudgmentgivenin Franceagainsta residentof
Great Britainunder circumstanceshardly,if at all, distinguishablefrom
3. "L'etranger meme non residant en France pourra etre cite devant les tribunaux
franqais, pour l'execution des obligations par lui contract6es en France avec un franqais; il
pourra etre traduit devant les tribunaux de France pour les obligations par lui contract6es
en pays etranger envers des francais."
4. "Un etranger qui a une maison de commerce 6tabli6 et patente en France, peut,
aussi bien qu'un francais, assigner un autre 6tranger devant un tribunal francais."
5. Buchanan v. Rucker (1809) 9 East 192.
6. Though not really so very similar. The French provisions availed a plaintiff as of
right, whilst the Common Law Procedure Act 1852 provisions gave the court a discretion
to allow service out and therefore a discretion whether to summon.
7. (1870) L.R. 6 Q.B. 155, 159.

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those under which we, mutatismutandis,might give judgmentagainsta


residentin France;but it is quite differentif the principleis that whichwe
have just laid down.
The doctrine "just laid down" was the doctrine of obligation, which had
just been articulated in Godard v. Grey. Under this it had been held that
if there should be a sufficient connection between the defendant and the
forum of judgment, an English court would see him as obliged to obey
the judgment. This doctrine of obligation was applied as the allegedly
universal principle in this area, and was given as the reason for refusing
to recognise Schibsby's French judgment in an English enforcement
action. Westenholz was not sufficiently connected to France to be seen
as obliged.
Accordingly Schibsby v. Westenholz became the leading authority
against the role of "comity" in this area, however "comity" might be
defined. Perhaps what Blackburn J really intended to repudiate was the
application of a doctrine of reciprocity; the approach that says we will
recognise your judgment because it was founded upon a jurisdiction
which we claim for ourselves. "Comity", after all, is more a species of
politeness than a legal principle. And it is this, the exclusion of a doctrine of reciprocity, which bears re-examination today. Particularly so in
the light of the fact that the Brussels Convention contains a code for the
taking of jurisdiction and the recognition of judgments which can clearly
be seen to accept and apply a doctrine of reciprocity to judgments within
its terms.
Since Schibsby, little happened. Apart from some very minor tinkering with the common law rules in section 33 of the Civil Jurisdiction and
Judgments Act 1982, which overrules the meaning of "submission" propounded in Henry v. Geoprosco,8 the law simply developed the doctrine
of obligation. That is to say, there was analysis of the strength of connection between the defendant and the forum of judgment. The question was whether residence, presence, nationality and domicile (for
example) were enough to oblige the defendant to obey a court's judgment. No development took place outside these boundaries, and even
within them the method of development was highly odd, and surprisingly uncertain. Whilst all were agreed-and Schibsby had decidedthat even if a defendant did not submit to the jurisdiction of the court,
the fact that it was the court of the defendant's residence led to his being
obliged to obey the judgment, what was the position for a defendant
who was (merely) present? Or a non-resident national? Or an absent
domiciliary? Or someone who simply traded there? On each point there
was, and presumably still is, doubt. Concerning presence, Carrick v.
8. [1976] Q.B. 726.

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Hancock9said it was sufficient,but Dicey and Morris10expressedgrave


doubts about it. On nationality,Rousillonv. Rousillon,ll Emanuelv.
Symon12and Harrisv. Taylor13said it was sufficient;this time Dicey and
Morris had no doubt that they were wrong.14On domicile there was
sparseauthorityin its support15;but Dicey and Morrisagaindeniedit in
no uncertain terms.16On the consequence of trading in the foreign
country,both the cases and Dicey and Morrisexpressedthe view that it
did sufficefor the creationof the obligationbut, in doing so, Littauerv.
draw fine lines between types
Millington17and Vogel v. Kohnstamm18
and levels of tradein this context.19
That there should be such doubt is no real surprise,for each of these
conceptsmay representa very strongor very weak link with the country
in question. One has only to recall those people whose long-forgotten
domicileof originhas revived, and comparethem with the Englishman
temporarilyworkingabroad,to see the varyingstrengthof a domiciliary
connection. The nationalof a countrywho has exiled himself from his
homelandshows how weak a nationalitylink may be. It is hard to lay
down a rule for all domiciliarylinks, or all nationalities;and to a lesser
degree the same may be said of presenceas a link. The hypotheticalairline traveller unexpectedlydiverted to Paris is admittedlypresent in
France, but how muchless so than the man who spendsthree monthsa
year on holidaythere.
It must now be clear that the law shouldnot be regardedas clear and
settled. Fifteen years ago it mighthave made sense to arguefor reform
along the lines of examiningthe connectionbetween the defendantand
the foreignforumon an individualcase by case basis, ratherthan seeking to establisha rule to applyto all cases of "presence".Perhaps"did
the defendanthave a real and substantialconnectionwith the forumof
judgment?"would have done the trick. After all, the searchwas for an
9. (1895) 12 T.L.R. 59.
10. Dicey and Morris, The Conflict of Laws (10th ed.), pp.1052-1053. See also Forbes
v. Simmons (1914) 20 D.L.R. 100.
11. (1880) 14 Ch.D. 351.
12. [1908] 1 K.B. 302.
13. [1915] 2 K.B. 580.
14. Op. cit supra n.10, at pp.1055-1056. But it suffices for the recognition of foreign
decrees of divorce: Recognition of Divorces and Legal Separations Act 1971, s.3.
15. Dicta in Turnbull v. Walker (1892) 67 L.T. 769; Emanuel v. Symon, Gibson v. Gibson [1913] 3 K.B. 379.
16. Op. cit. supra n.10, at p. 1056.
17. (1928) 44 T.L.R. 746.
18. [1973] Q.B. 133.
19. The question is apparently whether the defendant is engaged in some carrying on of
business at a definite and reasonably permanent place (Littauer v. Millington, supra n. 17).
It is not enough to have a representative of the corporation merely there, or enough to
have there a representative who may elicit orders but has no authority to make contracts
on the company's behalf (Vogel v. Kohnstamm, supra n.18).

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English obligation, and this kind of methodology has a long and respectable English pedigree. But today this should not be the preferred solution, even if it would be an improvement on the present state of the law.
Instead, we should return to Schibsby v. Westenholz to look again at
what Blackburn J really said.
II.

SCHIBSBY REASSESSED

IF we look at what Blackburn J said, the proposition he asserts is this:


that a defendant over whom jurisdiction is asserted only by means of
invoking local powers to sue absent defendants, and who does not submit to the jurisdiction of the court, is not liable to have that foreign
judgment enforced against him in England. The judge also admitted
that an American court would be equally likely to refuse to enforce an
English judgment founded upon a similar jurisdictional ground. On the
other hand, those resident in the foreign country of judgment are
liable20 to have judgments of that foreign court enforced against them
here21; and such an English judgment would be enforceable overseas.
Blackburn J was therefore making a distinction between two types of
English, and in consequence two types of foreign, jurisdiction. It may be
proper to call them common law jurisdiction and extended jurisdiction;
regular and special jurisdiction; internationally recognised and merely
domestically recognised jurisdiction.
It is not a new distinction, but it lies at the heart of the judgment in
Schibsby. That case did not reject any application of the principles of
comity or reciprocity, but merely their undiscriminating application to
all the possible bases of jurisdiction available to an English court. Reciprocity was to be applied to foreign judgments based on something very
similar to the common law jurisdictional basis of presence and service;
and it led to recognition. But it did not go beyond this point to be
applied to judgments based upon extended, non-common law, jurisdiction: such English judgments were not recognised abroad, neither
would similar foreign ones be recognised here. There was to be no reciprocity based on foreign versions of what is now R.S.C. Order XI, rule
1. The result is that where we claim jurisdiction at common law, we
regard such rules as making a foreign court competent "in the international sense", so as to make its judgments presumptively recognisable
here. Where we take jurisdiction, but not according to common law
principles, we do not, mutatis mutandis, recognise a foreign court as
20. According to Schibsby v. Westenholz (1870) L.R. 6 Q.B. 155, 161.
21. Unless, of course, any of the recognised defences to recognition or enforcement
applies. See on this Dicey and Morris, op. cit. supra n.10, Rules 185-189.

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being competentin the internationalsense. So far from denyingthe relevance of the doctrine of reciprocity,Schibsbyv. Westenholzcan be
seen as a rathersubtle applicationof it. So subtle, indeed, that it has
long been hidden.
One factorwhichcontributedto the misunderstanding
that arose concerns the nature of the English and French rules for service out. In
Schibsby,the provisionof the Civil Code relied on to foundjurisdiction
was availableas of rightto the plaintiff,and he could invoke the jurisdiction of the Frenchcourtwithoutmore. On the other hand, the English rules for service out at the time, as today, were restricted and
discretionary;and the courts exercised their discretionsparinglyand
only when the action sought to be broughthad a clear connectionwith
England.22Consequently,to arguethat a Frenchjudgmentfoundedon
Article 14 shouldbe enforcedbecauseof reciprocitywith the provisions
of the Common Law ProcedureAct 1852 would not have been easy.
Article 14 jurisdictionwas substantiallydifferentfrom 1852Act jurisdiction, even if the particularcase mighthave fittedwithinsection 19 of the
1852Act. The facts were not well chosen for the applicationof the reciprocityruleswith a view to recognitionof the foreignjudgment;and the
width of BlackburnJ's language seems to have prevented the subsequentreopeningof the argument.
III.

SUBSEQUENT DEVELOPMENT

the courtssettled to the task of decidinghow strongthe conINSTEAD,

nection between the defendantand the foreign court needed to be for


him to be "obliged" to obey its judgment;and the limited statutory
reform of the law was largely a codification(in all but name)24of the
common law in the ForeignJudgments(ReciprocalEnforcement)Act
1933.25Those few suggestionsmade which seemed to suggest a move
22. Common Law Procedure Act 1852, ss.18, 19, confined service out to cases where a
cause of action arose within the jurisdiction, or a contract made within the jurisdiction
(and as things were then understood, governed by English law) was broken. Accordingly
there was no real need to have a separate statement that there should be service out only if
it were a proper case for it, as it would probably be otiose. But as the heads under which
service out was permitted were expanded, it became necessary expressly to confine service
out to cases where it was proper to order it (as the present R.S.C. Ord. XI, r.4(2) does).
23. The contract had not been made in the foreign country, but the cause of actionbreach of contract arising from allegedly short delivery-probably did arise within it.
24. For the complicated relationship between the common law, the report of the
Foreign Judgments (Reciprocal Enforcement) Committee and the Act, see Black-Clawson International Ltd v. Papierwerke Waldhof-Aschaffenburg AG [1975] A.C. 591; Henry
v. Geoprosco [1976] Q.B. 726.
25. The scheme under the Act was extended to judgments of courts in Austria, Belgium, France, Israel, Italy, the Netherlands, Norway, West Germany, Pakistan, Bangladesh, India, Australian Capital Territory, Jersey, Guernsey, Isle of Man.

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away from the doctrine of obligation as outlined above were not much
favoured. The most notable attempt to break the mould was made,
inevitably perhaps, by Denning LJ in Re Dulles (No.2).26 He there suggested that in a tort case the judgment of the court of the locus delicti
should be recognised here. It was only obiter, but he supported it in two
ways. The first was by appeal to precedent, saying that in Harris v. Taylor27 the same view had been expressed. This is, however, not easy to
defend. The second was by reference to the service out provisions of
R.S.C. Order XI, rule 1, which would, mutatis mutandis, have been
applicable on such facts; and the application of the doctrine of reciprocity to this. We allow service out in such cases so, it is argued, we should
recognise the consequent competence of the foreign court. Not surprisingly, this attracted hostile comment. In Henry v. Geoprosco28where an
argument based on reciprocity with Order XI would equally have been
available in aid of an Albertan judgment, Roskill LJ said that to have
accepted it would have been "quite unprecedented". And surely he was
right. Simple uncritical reciprocity with the bases of jurisdiction in
Order XI, rule 1, would indeed be going too far. Dicey and Morris
agrees.29
However, we can disentangle two objections to Denning LJ's statement. First, the traditional search had been for a connection between a
defendant and a forum, but Denning LJ had suggested a connection
between a cause of action and a forum. This was seen as radical, and it
was admittedly unprecedented. Second, he seemed prepared to argue
for reciprocity with Order XI, rule 1. But this was an unrealistic proposition. The grounds listed in rule 1 are themselves many and wide, but
when it actually comes to obtaining leave to serve out they are substantially narrowed by rule 4(2), which provides that service out is not to be
permitted "unless it shall be made sufficiently to appear to the Court
that the case is a proper one for service out . . . ". In substance, therefore, English jurisdictional rules in service out cases are not those listed
in rule 1, and reciprocity with rule 1 alone would be reciprocity with
jurisdictional rules substantially wider than those we claim for ourselves. That this cannot be acceptable is clear.
If Denning LJ thought that we should recognise the jurisdictional
competence of the courts of the locus delicti just because of reciprocity
with Order XI, rule 1-and that is what he appears to say-he was
indeed on thin ice. Indeed, in Henry v. Geoprosco, where service out of
Alberta had been allowed on the basis of there being a contract made in
Alberta, the recognition and enforcement of the judgment based on
26.
27.
28.
29.

[1951] Ch. 842.


[1915] 2 K.B. 580.
[1976] Q.B. 726.
Op. cit. supra n.10, at p.1056.

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reciprocity with Order XI, rule l(l)(f)(i), was so unthinkable that the
point was not even argued. However, if Denning LJ's intent was that the
court of the locus delicti was the proper and sensible forum for litigation
over a tort, and that the judgment should be recognised for that reason,
the case changes its complexion. For whilst the ice was thin in 1951, it
has thickened up tremendously in the last twelve years. It may now support the argument that, however may be the defendant's connection
with the foreign court, the cause of action may itself be sufficiently connected with the foreign court for the foreign judgment to be enforced
here.
When? and which court? Presumably when the connection between
the cause of action and the foreign court is strong enough; when an English court sees the foreign one as being that in which the action should be
tried; when the foreign court is the one best placed to analyse the evidence and reach a conclusion. Perhaps when the foreign court is in
favour of trial when an English court would have been prepared to stay
English proceedings; when it is the natural forum for the trial of the dispute.
The argument so far has come to this. When it comes to recognising
foreign judgments, in cases where the defendant has not submitted to
the jurisdiction of the foreign court the judgment will be recognised on
grounds which are approximately reciprocal with the domestic jurisdictional rules of the common law. That is to say, that the defendant was
there present or resident. But a foreign judgment will not be recognised
on the basis of reciprocity with R.S.C. Order XI, rule 1. If this be so, the
common law rules on recognition do in fact base themselves, if inexactly, on the idea of reciprocity with common law jurisdiction. And the
question which then has to be asked is this: what is the effect on the
rules for the recognition of foreign judgments of the changing rules for
the taking of jurisdiction at common law?
IV.

THE NEW JURISDICTIONAL RULES

IN recent years the view that whenever an English court has jurisdiction
after the defendant has been served with a writ, the defendant has an
almost irresistible obligation to appear to defend the merits of the cause,
has been rejected. The view that he must do so unless he can show an
equitable right not to be made to do so-such right being founded upon
the oppressive or vexatious conduct of the plaintiff-no longer represents the law. The rejection of the St Pierre30approach by a series of
House of Lords cases commencing with The Atlantic Star31and ending
30. St Pierre v. South American Stores (Gath & Chaves) Ltd [1936] 1 K.B. 382.
31. [1974] A.C. 436.

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with Spiliada v. Cansulex,32 and the admission by Lord Goff in that last
case33 that we now have our own doctrine of forum non conveniens,
allows one to argue that we have a new basis for the taking of jurisdiction at common law. That is to say that, having taken jurisdiction, an
English court retains it if the defendant is prepared to accept it, and also
if he contests its propriety but cannot show another court as being the
natural forum for trial of the dispute. In other words, the court hears the
merits of the case where the defendant submits to its jurisdiction, and
where England is not shown not to be the natural forum for the trial.34
But if neither of these conditions is satisfied, the chances are that the
case will be stayed and heard in another forum. Though it may not have
been put in quite these words, the reason is simply that in such a case
England is not an internationally proper forum for the action to be tried
in. So, for example, if proceedings in respect of a Scottish tort35were to
be commenced in London, and the defendant sought a stay of proceedings showing the natural forum to be Scotland, the English action would
be stayed: MacShannon v. Rockware Glass36 is a clear example.
Because the defendant did not wish the trial to be in England, and could
show Scotland to be the natural forum, the action was stayed. Since that
time, MacShannon has been seen to illustrate a general rule to the effect
that the place of the tort is almost always the natural forum for the trial
of a tort issue: The Albaforth37 and The Forum Craftsman38 accept the
point. Indeed, the number of cases being decided by an application of
the new rules-most of them reported by Lloyd's but disregarded by the
Official Series and All England reports-has grown enormously. When
issues relating to jurisdiction are raised the argument usually turns to an
identification of the natural forum.
If this were to be related to the rules for the recognition of foreign
judgments, the argument would be as follows. As we now claim and
retain jurisdiction on grounds approximating to submission or the fact
that England is the natural forum, we should in like manner adapt our
view of what constitutes jurisdiction "in the international sense" when
32. [1986] 3 All E.R. 843. The House concurred with the opinion of Lord Goff.
33. Idem, p.853. For accounts of the development see (1983) 3 Legal Studies 74; [1984]
L.M.C.L.Q. 227; (1986) 35 ICLQ 374; [1985] L.M.C.L.Q. 360. Others have also taken
the same view: cf. (1985) 101 L.Q.R. 48.
34. If the defendant shows the natural forum to be elsewhere, the English action will be
stayed unless the plaintiff can show that great injustice will be done to him thereby.
35. By which is meant one occurring in Scotland, and in which the plaintiff and defendant were resident in Scotland.
36. [1978] A.C. 795.
37. Cordoba Shipping Co. Ltd v. National State Bank, Elizabeth, N.J. [1984] 1 Lloyd's
Rep. 90.
38. [1985] 1 Lloyd's Rep. 291; accepting the general point but denying its application to
a case where a tort was committed on a ship in port about to set sail.

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we are called upon to recognisea foreignjudgment.Thatis, we should39


recognisejudgmentsof a forumto whosejurisdictionthe defendantsubmitted, or whichwas in any event the naturalforumfor the actionto be
prosecuted in. Whether the judgments of other fora should also be
recognisedcan be left on one side for the moment.
It is clear that this would not force us to recognisejudgmentsbased
solely on considerationsof reciprocitywith OrderXI, rule 1. We should
still not recognisea judgmentof the courtof the place where a contract
was made (even thoughthat does appearin rule 1)40 or, for that matter,
refuse to recognisethe judgmentsof the courtof the plaintiff'splace of
business (just because that does not). But if the foreign court were in
our eyes the naturalforum,we should-and we now do-see it as jurisdictionally competent in the internationalsense; and we should act
accordingly.
So would it even be relevantthat the foreigncourthad takenjurisdiction by allowing(or consequentupon) its equivalentof serviceout of the
jurisdiction?It is submittedthat the answershouldbe "no", andthatfor
two reasons.The firstis that if the foreignforumis the naturalforumfor
the trial of the action,41it surelyremainsso whatevermay be the procedureit adoptsfor the takingof jurisdictiondomestically?The position
of a defendantwho is sued in that forumis adequatelyguardedby the
Englishrules on defences to recognitionand enforcement:if the defendant had inadequatenotice of the institutionof the proceedings,or suffered any other kind of proceduraldisadvantagewhich would make
recognition a breach of naturaljustice, we should not recognise the
judgment. Perhaps more important,we now admit that the power of
English courts to authoriseservice out of the jurisdictionis concerned
with findingwhetherEnglandwould be the naturalforumfor the litigation. In times past, decisionson the meaningof R.S.C. OrderXI, rule
4(2), had concernedthemselvesin a slightlyunspecificway withwhether
the case was a properone in whichto give leave to serve out (given that
the plaintiff had establisheda good arguablecase on the merits). But
recently, in Amin Rasheed v. Kuwait Insurance Co.42 and Spiliada v.

Cansulex,43the House of Lords has now said that in interpretingrule


4(2) the courtmusttake into accountpreciselythose same factorsas are
39. Again, unless any of the admitted defences to recognition of the judgment of a
court competent in our eyes applies.
40. Ord. XI, r.l(1)(d)(i).
41. It is clear that the modern rules on jurisdiction concern themselves with a search
for the natural forum for a trial of the dispute arising between the parties. It is not a
search for the natural forum for any and every dispute between the parties, or (in terms)
a search for the natural forum for the defendant to be sued in. See (1985) 101 L.Q.R.
48 for a similar opinion.
42. [1984] A.C. 50.
43. [1986] 3 All E.R. 843.

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relevant to motions for a stay of English proceedings on the ground of


forum non conveniens. Admittedly in Amin Rasheed the House said that
in cases on service out the analogy with motions for stays should not be
pressed too far-an observation loyally repeated by the Court of Appeal
in Spiliada-it seemed that even so this was a cautious rather than a
reasoned view. After all, it would today be odd to summon a defendant
to England if England were not the natural forum for the trial. As a distinguished commentator44 has pointed out, it would be even stranger if
the law were such that a defendant could be summoned to London and
could then successfully move the court for a stay on the ground that
England was not the natural forum.45 It was, therefore, no surprise that
the House of Lords in Spiliada took the view that Order XI motions and
motions for stays should be decided according to the same principles,
rejecting the doubts expressed in Amin Rasheed.
If this can be accepted, nothing need turn on whether the foreign
court took jurisdiction on the basis of service out or the like: this will be
most advantageous in cases where the foreign method of citation does
not easily correspond to the English. All we need do is to ask whether
the foreign court was the natural forum for the plaintiff to prosecute this
cause of action against the defendant; naturally the burden of proving
that will lie on the plaintiff seeking recognition of the judgment. The
view that the reason for recognising some foreign judgments, at least, is
reciprocity can be safely asserted once it is clear what are the English
domestic rules upon which reciprocity is based.
V. POSSIBLEOBJECTIONSTO THE NEW APPROACH

THEREare a number of arguments which could be deployed against a


recognition of the rules in this form. They include:
(a) that the "natural forum" is an undesirable concept in itself;
44. Carterin (1984)55 B.Y.I.L. 111,350.
45. In summary,the new ruleson jurisdictioncome to this:if the defendantis present
(a fortioriif he is resident)withinthe jurisdiction,the courttakesjurisdictionunlessthe
defendantcan show Englandis not, but a foreigncourtis, the naturalforumfor the hearing of the dispute.Thatis to say, if the proprietyof the Englishforumis uncontested,well
and good. But, if it is contested, althoughthe burdenof proof lies on the defendantto
showthat Englandis not the naturalforum,if Englandis not the case will not be heard.
For serviceout cases, once the plaintiffhasshownthatthe issuecomeswithinone of the
headsof r.1, it is his job to showthatEnglandis the naturalforumand, broadlyspeaking,
serviceout will be orderedif it is. The resultis thatas betweenresidentsandnon-residents
(or, more accurately,those presentandnot present)the ruleis thatcontestedjurisdiction
will be taken only if Englandis the naturalforum;the burdenof proof lyingon resident
defendantswho argue that it is not, and on plaintiffsseeking to summonnon-resident
defendantsto show thatit is.

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(b) that the theory behind the recognitionof foreign judgments


should still be that the defendantis obliged to obey the judgment in particularcases;
(c) that the parallelis not appropriate,becausethe courthas a discretionin motionsfor stays, but is in principleboundto recognise judgmentsfallingwithinthe recognitionrules;
(d) that it is odd that the developmentof a doctrinedesignedto
narrowthe cases in which an Englishcourt will take jurisdiction should be used to widen the bases of recognition of
foreignjudgments;
(e) the decision as to the naturalness(or otherwise)of a foreign
forum should be taken by the court havingjurisdiction,and
not by an Englishcourt at some laterstage; and
(f) uncertaintyand unpredictability.
This represents a formidablelist, but before looking at the issues it
raises let us recall that the basic reason for recognisinga foreign judgment is on the groundthat it was given in the naturalforum:if it is to
that forumthat an Englishcourtwould have been happyto see the trial
go, that at least raises a very strongpresumptionthat the judgmentof
that court should be recognised here. With that, we may assess the
points listed above.
First, one commentator46at least has objected that the "natural
forum"is an "alien and semi-mysticalnotion", and that it is misguided
to seek it in the same way as the properlaw of the contractis sought.
But there is little substancein such comments.Foreignversionsof the
naturalforum are alien and may be semi-mystical,but English law is
surely not incapableof havingviews on where a trial should rationally
take place. Rules as to venue are part of our history and they largely
depended on deciding where the cause of action belonged. Modern
rules as to where a disputein privateinternationallaw should be tried
are part of the law appliedin the courtstoday. It may be a young doctrine, but it is an Englishdoctrine,growingwith speed. Thatit shouldbe
equallyappliedto the recognitionof foreignjudgmentsis surelynot too
radical.
Second, it can be arguedthat the basis of the law is the defendant's
obligation to obey the judgment, and it is the connection between
defendant and court that is important. Historically this cannot be
denied; but the reasons for the developmentof the doctrine of obligation are ratherdistantfrom the presentproblem.In Godardv. Gray
the court was concernedto meet the argumentof the defendant-who
had submittedto the jurisdictionof the Frenchcourt-that where the
46. Carter, op. cit. supra n.44, at p.355.

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foreign court had patently misapplied the (English) lex causae, its judgment would not be recognised in England. The court, no doubt mindful
of the difficulties that would follow if the argument were accepted,
simply said that as the defendant had submitted to the jurisdiction of the
French court he was obliged to obey its judgment; and whilst certain factors might lead the court to deny the existence of the obligation in particular cases, this factor did not. It was never doubted that the court was
one of competent jurisdiction, and so the case is not very informative on
the rules which might lead to the defendant's "obligation" in cases of
non-submission. In Schibsby v. Westenholz the case would, according to
the views then predominant, have had little to do with the (French)
court in which the default judgment was obtained: the contract was
made in England47;the defendant, who was resident in England, seems
never to have set foot in France; the contract had little enough to do
with France (it was the place of delivery of the goods only), and the
defendant had even less. On any view of what obliges a non-submitting
defendant to obey the judgment of the court, there were no sufficient
grounds for the obligation here. Even if it is admitted that the court
thought that a connection between the defendant and the foreign court
was what gave (or did not give) rise to an obligation, there is no express
rejection of the view that this connection can be found in what the
defendant did, rather than where he resides. That is to say, that if the
defendant does something which gives rise to a claim for civil redress, he
is bound to obey the judgment of the natural forum for the trial of the
dispute. His conduct identifies, or helps identify, the court to which he
should be obliged, rather than the fact of his subsequent residence.
There is no essential change resulting from this: something still identifies the natural forum, and it is to this which the defendant is obliged to
defer (subject, of course, to the usual defences). The concept of an obligation created, and therefore adaptable, according to English law is
retained; in consequence there is no great difficulty in seeing the obligation as arising in this different way.
The third objection has little substance in it. It may be that the
parallel is inexact, because the courts do have a discretion whether to
stay actions, and to tie recognition to a doctrine of obligation is to tie it
to something different in kind. But in truth, under the doctrine of obligation however it is understood there is a large element of judicial discretion, particularly in the application of the recognised defences to an
application for recognition. Even that, though, is not a point which
needs to be made. For if English law has decided that an English court47. The court does not expressly say what the proper law of the contract was; at that
time the idea that the law governing a contract's validity was that of the place of its making
was still current. Accordingly this was an English contract in which the defendant was an
English resident.

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or a foreign court-was jurisdictionally proper for the trial of the action,


it should surely be necessary to show no more? Surely the fact that the
rules are discretionary or mandatory is neither here nor there? Or that
they operate in discretionary form in one place or mandatory form in
another? It is their substance that matters, not the manner of their application.
The fourth objection is far more substantial. If it were true to say that
the doctrine of forum non conveniens was developed with a view to narrowing the effective width of the jurisdictional rule-that whoever is
served with a writ is more or less bound to appear and defend the
merits-it is at first sight odd that it should be appropriated with a view
to widening the rules on recognition. One answer might be that the
appearance is only odd if the changes are seen against the background of
what went before. If, instead, the rules are seen as a statement of when
a court should, in an international case, be seen as jurisdictionally competent, it surely does not matter much if they supersede unduly wide
(jurisdictional) or unduly narrow (recognition) rules. Neither for that
matter is it clear that the effect of the change proposed here would
widen the recognition rules. They might as easily lead to a denial of recognition of a court of the foreign residence of the defendant as to the
new recognition of the judgment of the natural forum in which the
defendant is not resident and to which he has not submitted. If a defendant is sued in the country of his residence, and has done something
which we are able to characterise as non-submission (i.e. he has made
such protest to the taking of jurisdiction by the foreign court as in all the
circumstances, and having regard to the procedural rules of that foreign
court, he could reasonably have made), there is every reason for us to
hold that the foreign court was not jurisdictionally competent in the
international sense. After all, residence in England without more does
not invariably mean that an English court will hear a case; the same
standard of jurisdictional propriety can be applied without difficulty to
the recognition of foreign judgments.
Neither, turning to the fifth point, will this objection become entangled with the doctrine of estoppel. It has recently48been reiterated that
the doctrine of issue estoppel can be applied to final and conclusive
determinations of the merits of a case. But the fact that, in the context
of an attempt to have recognised a foreign judgment, a foreign forum
has decided it was jurisdictionally competent does not prevent arising
the quite distinct issue whether in English eyes it was jurisdictionally
48. The House of Lords in DSV Silo und VerwaltungsgesellschaftmbH v. Sennar (The
Sennar) [1985] 2 All E.R. 104, held that the decision of a Dutch court on whether it had
jurisdiction in a particular case estopped the plaintiff from raising the same issue in subsequent English proceedings.

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competent in the international sense.49 The main question would simply


concern whether the defendant could be said to have submitted to the
jurisdiction of the foreign forum; and the provisions of sections 32 and
33 of the Civil Jurisdiction and Judgments Act 1982 would guide a court
towards an answer.
On these points, then, the argument that a doctrine designed to narrow domestic jurisdictional rules can hardly be used to widen international ones can, it is submitted, be answered. It does not much matter
whether the old law is extended or restricted if it is now to be placed on
a more rational footing. It is not sensible to say that the decision on the
naturalness of a forum is one that the foreign forum should take,
because the determination should be made for the purposes of an English obligation; in any event the foreign court may have no concept of
naturalness or otherwise to operate.
Finally, it can be argued that to restate the law on this basis would
lead to uncertainty and unpredictability. In a practical or commercial
context this is no small point of academic theory. Perhaps there are two
levels of difficulty here. The first may be that in any case it may not be
clear where the natural forum for an action is, and that to have the recognition of foreign judgments depend upon isolating the natural forum
will be undesirable. But it is important to keep the uncertainty argument
within its proper framework. It will be of relevance only if the defendant
has not submitted to the jurisdiction of the foreign forum and, so far as
the plaintiff suing in a foreign court is concerned, it seems unlikely that
the plaintiff chose his foreign forum with an eye to subsequent recognition of the judgment in England. But if the plaintiff then tries to have
the judgment recognised (and perhaps enforced) in England, it is not,
perhaps, intolerable for him to have to show that he sued the defendant
in the natural forum in respect of his cause of action. In answer to the
allegation that it will not be easy to identify the natural forum, that is,
the forum with which this particular dispute has its closest and most real
connection, there is little to be said except that the determination of the
natural forum causes surprisingly little difficulty in cases on staying
actions; and the identification of the proper law of the contract (which
has very similar methodology) does not prove to be too uncertain to be
workable.
The more acute difficulty will concern the defendant against whom an
action is brought in a foreign country. Let us suppose a manufacturer of
light bulbs in England exports some of his products to Canada, and
through a succession of sales one of them ends up in California, where it
49. Though, of course, if the foreign court has found facts which would be relevant to
the determination by an English court of jurisdictional competence, estoppel might well
operate on these; in a way similar to what actually happened in The Sennar, supra n.48.

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255

explodes and injuresa local resident. Supposetoo that the Californian


sues the English manufacturerin California.At present the manufacturercan "cock a snook" at the Californianproceedingsjust so long as
he does not have a place of businessthere and does not anticipatetrading there in the future.Being non-residentin Californiahis choice not to
submitwill be decisive. But if it shouldbe thoughtthat an Englishcourt
would consider California the natural forum for the litigation, the
defendantmustdecidewhetherto riskappearingin Californiato defend
the case, for if he does not do so it mightyet be possiblefor the default
judgmentto achieve recognitionin England.This would make the position of the defendantvery difficult,and it is admittedthat a difficulty
would have been created which does not arise under the law as it is
today. Yet there are pointsto be madewhichanswerthe objection. One
is that it will not in practice be hard to identify which is the natural
forumfor the litigationin question;there is no reasonto suppose, once
the novelty has wornoff, that professionaladviserswouldbe less able to
identifythis than, say, the properlaw of the contract.Moreimportantis
to pause to considerwhethersuch solicitudefor the defendantis really
the issue which should dominate our thoughts. In the example of the
Californianaction, if we were to deny recognitionto the Californian
judgmenteven if Californiawere the naturalforumfor the litigation,we
would not prevent the Californianaction from proceeding. Consequently, the defendant's decision whether to appear to defend the
merits will have to reflect the fact that if he suffersjudgment against
him, it will be perilousfor him ever to move assetsthere. But at least on
the presentstate of the law, his Englishassets are safe. This is desirable
until we ask where that leaves the plaintiff.He has sued in the court to
which an Englishcourt may well have sent the action to be tried had it
been commencedin London and the defendanthad moved for a stay,50
and is then told that a judgmentobtainedin that courtis not entitledto
recognitionhere. If the plaintiffhas sued in what he later satisfiesan
Englishcourtwas the naturalforumfor the action,whatsubstantialjustificationcan there be for denyinghim recognitionof his judgment?It
can only be because we consider that the plaintiff has to pursue his
defendantto the countrywhere he, the defendant,consentsto be sued
or is currentlyresident.This seems odd, andloadsthe scalesin favourof
an elusive defendant.If we considerthe plaintiffhas a legitimateinterest to be protectedas well, it is submittedthatthe rulesas proposedhere
protect it. Should it go against the grain to recognise the foreign
(default)judgment,there are alwaysthe defencesto recognitionto protect the legitimateinterestof the defendantwho had no opportunityto
50. The fact that the defendant may not in such circumstances have asked for a stay
does not affect the fact that the foreign court may be the natural forum.

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appear, or received inadequate notice of proceedings, or against whom


for some other
the judgment was procured by fraud, or-probably-if
reason its recognition would be contrary to public policy.51 If the result
of this is that the defendant would feel obliged to appear to defend the
action in the forum which is the natural one for this litigation, this would
not be an intolerable imposition, and would protect the legitimate interests of the plaintiff. And it should also be remembered that if the
defendant appears in a non-natural forum because he fears that his
assets may be in jeopardy if he does not, he will not be taken to have
submitted to the jurisdiction of the foreign court, and will not be liable
to have the judgment recognised against him on that ground.52
None of the objections which could be made to the reformulation
contended for here is particularly convincing, neither do they cumulatively amount to much. What the reformulation would do is strike a new
and rational balance between the legitimate interests of plaintiff and
defendant, and realign in a welcome way the rules on the taking and
recognising of jurisdiction in international cases.
VI.

FURTHER POINTS

IT is important to remember that the new rules will lead to recognition


of judgments in cases where the defendant has not submitted to the jurisdiction of the foreign court but, in some sense, should not be able to
escape its jurisdiction by choosing not to submit. If he submits to its
jurisdiction there can be no reason (the usual defences apart) not to recognise it. Where would that leave the recognition of judgments of the
court of the defendant's residence? It was said earlier that the fact that a
defendant is resident in England does not by itself ensure that an English court will determine the merits of the case: it may stay it. On the
other hand it could be argued that residence in a particular country-the
defendant's voluntary establishment in that country-should lead to
the same consequences as submission: after all, it does not take too
much imagination to see this as akin to submission. There is perhaps no
clear answer to this question, and to take either view (i.e. that residence
is not decisive, or that residence equates with submission) is quite tenable. No view is put forward, though submission or the natural forum
would be more in line with modern rules on jurisdiction.
The analogy of the Brussels Convention, however, would suggest that
residence itself should be sufficient to establish the competence of the
51. Or contrary to statute: such as a judgment falling within the provisions of the Protection of Trading Interests Act 1980.
52. Civil Jurisdiction and Judgments Act 1982, s.33(1)(c). It is not clear whether this
extends to cover appearance to protect property which is not yet in jeopardy but which
might at some future time be threatened if judgment is given against the defendant.

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foreign court; and if it is thoughtthat there should not be needless dissimilaritybetween the two sets of rules, that shouldlead us to conclude
that judgmentsof the courtof residenceshouldbe recognised.If all this
were to be accepted the common law and the Conventionwould be
strikinglysimilar.Under the Convention,whenjudgmentsfall withinits
scope they will, unless another court has exclusive jurisdiction,53be
recognisedif they are judgmentsof the defendant's"domicile".54The
Act55 defines domicile for the purposes of the Convention in terms
whichadd up to residenceof more thanmerelytransitoryquality:it may
be surmisedthat few seen as resident under the common law will not
satisfythe definitionof "domicile"in section41. In addition,a courthas
jurisdictionif the defendantsubmitsto it56;or if in a numberof casesthe
foreign court is the naturalforum for the action. The methodologyin
the identificationof the naturalforumis ratherdifferentfrom the common law way-Articles 5 and 6 list cases and identifycourtswhichhave
(additional)jurisdiction,ratherthan simplyestablishinga generalprinciple. Thus, for example, the courtsof the place where the contractual
obligation was to be performed,or the courts of the place where the
allegedly delictual act occurredor damagewas done have jurisdiction
underthe Convention.57Whilstthe resultantset of rulesdiffersin detail
from the proposedcommonlaw restatement,the two wouldbe remarkably similar:underthe Conventionthe defendantis liableto have recognised and enforcedagainsthim judgmentsof the courtsof his residence,
of the courts to which he submitted, and those of some naturalfora.
Such differencesas exist are of detail ratherthan basics:and even the
defences to recognitionin Article 27 are similarto those whichexist at
common law. If the restatementof the common law has the effect of
bringingit close to the rules under the Convention,this would surely
only be desirable.
VII.

CONCLUSIONS

THEargumentsmade above are in one sense limitedin their scope; they

come down to sayingthat the judgmentof a foreigncourtwhichwas the


53. Under Art.16.
54. Art.2.
55. Sections 41-46.
56. Art.18 uses the language of entering an appearance and not solely to contest the
jurisdiction. The Court of Justice has interpreted this to mean that a defendant who contests the jurisdiction and enters a plea as to the merits because required to do so by foreign
procedural rules does not fall within Art.18: Cases 150/80 [1981] E.C.R. 1671 (Elefanten
Schuh GmbH v. Jacqmain) and 27/81 [1981] E.C.R. 2431 (Rohr v. Ossberger).
57. It has been said that this approach of listing the grounds of additional jurisdiction
rather than simply asserting that the courts of the natural forum have jurisdiction was
adopted to reflect the degree of interpretative freedom thought appropriate to be left to
continental judges.

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natural forum for the action should be one which an English court will
recognise, and that the reasons for this are to be found in the recent
development of the doctrine of forum non conveniens. But this in turn
suggests a far more profound change in the subject as a whole, which is
that the primacy of choice of law as the intellectual issue in conflicts has
been, if not dethroned, at least shaken by the realisation that there is
another tenable approach to the subject. This is that there is a right
place for cases to be heard, and the isolation of that place is what matters most. In other words, jurisdiction rather than choice of law is the
more important issue. This does not mean-even though some gloomily
prognosticate that it will58-that private international law will be
"reduced" to sending cases to a court in which the domestic lex fori will
invariably apply. If parties whose dispute has little or nothing to do with
England wish to have the benefits of trial in an English court, well and
good. No rational system of private international law would deny them
their choice, and in such a case the choice of an appropriate law to govern their dispute (always assuming they do not both consent to the application of English law) is the main task facing the court. But if there
should not be this shared willingness to accept trial in England, what
then? The answer is not that we will continue to hear the action but will
apply choice of law rules designed as far as possible to minimise the
effect of the forum being an English one. Instead, there is today a basic
and wise presumption that a case should be tried where a case belongs if
the parties cannot agree to accept trial in England. And a case belongs
in its natural forum (and with the consequences for recognition of
foreign judgments that that implies).
The reasons for the new approach are two, even though the judges
may not always be aware of them. First, there is now a realisation that in
1987 the number of countries in which litigation may "belong" but in
whose courts the quality of the judicial process would make us uneasy is
small. Were not classical choice of law rules developed at, and is not the
perception of conflicts as a subject largely concerned with choice of law
traceable to, a time when there were thought to be far fewer reliable
judicial systems overseas? And should it not now be admitted that the
conditions which shaped the classical framework of the subject do not
obtain today? Thus, the stages in a conflicts case today should be to ask:
1. Do the parties consent to trial in an English court? If so, what
choice of law rule do we apply?
2. If not, where does this litigation most naturally belong?
3. If not in England, are there any strong reasons for not letting
58. Carter, op. cit. supra n.44, at pp.111-112 is such a notable prognosticator. See also
idem, pp.354-355 for unenthusiastic references to the natural forum.

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the case be settled there?If none, the case shouldbe stayed;if


there are, the court should proceed to identifythe applicable
choice of law rule.
When the issue of the recognition of a foreign judgment arises we
shouldask (if the partiesdid not agreeon it) wherethe case shouldmost
naturallyhave been tried, and then, if the case was indeed tried there,
whether there are any strong reasons for not recognisingthe court's
judgment?It representsin total an elegant and rationalsystem which
works well today and, far from being a matterfor regret, the fact that
the world'slegal systemsare such that it can now be adoptedis surelya
matterfor joy.
The second reason for welcomingthe change of emphasisis this. It
always was hard to accept the dogma that the purpose and effect of
choice of law rules, and of conceptualtools like renvoi,characterisation
and like, is to produce a result in a conflictscase which reducesto the
minimum the effect of the forum being English. What we say we
believe, outwardlyif not inwardly,is that an Englishcourtwill produce
the result which is the same as a foreign court would, or at any rate
should, produce. Is it necessary to do more than acknowledge the
unrealityof that? It is surely preferableto admit that there is a place
where a trial should take place, and that the rationalthing in cases of
doubt is to allow it to be tried there. This has the effect of raisingthe
question of the proper jurisdictionfor the trial to the level of prime
importance,and should also providethe spurfor the re-examinationof
the rules on the recognitionof foreign judgmentswhich has been describedabove.