Modul

e3
Foreign
Judgme
1. Recognition & Enforcement
2. Position at Common Law

nts
3. International Conventions
4. Enforcement of foreign judgements in
civil and
commercial matters in India
 How can a judgment be recognized
and enforced in another
• Where a court has
State?
decided that it has jurisdiction and has decided a
dispute according to the applicable law, further questions may arise as to
whether and how that decision can be recognized and enforced in
another State.
• Such questions will frequently arise where the defendant against
whom a judgment has been ordered is located in another State
or has assets located in another State.
• There are two sets of courts involved in such situations:
• The court that made the judgment (The Court of Origin)
• The court of the State that is requested to recognize or enforce the
judgment of the court of origin
(Court of Addressed)
• Then, It becomes a matter for addressed court as to whether it will
recognise or enforce a
judgment (The court of Origin)
• On basis of Reciprocation.
 How can a judgment be recognized and
enforced in another State?
Theories
• Law of Comity Theory:
• No judgment can be recognised unless there is Reciprocity.
• In such cases defendant has not having many defences
except want of jurisdiction(demerit).
• Law of obligation theory: Blackburn J
• Judgement of a competent court over the defendant
imposes a duty on the other country
to enforce the judgment.
• Doctrine of harmony: Von Bar
• Judgment is lex specialis a law regulating one single case. To maintain
harmony of COL and foreign judgments, courts in forum country
should be decided in accordance with the municipal law.
• Foreign judgments are to be rendered in accordance with the
Conflicts of law rules –
Pivet
• It reduces number of enforceable judgments below reasonable limit.
 How can a judgment be recognized
and enforced in another
State?
• Theory of Acquired Theories
Rights: Wolf
• As soon as the plaintiff appears in a court on the basis of foreign
judgments, the court presumes that it has acquired a right, though
the defendant is free to rebut the presumption.
• Theory of Vested Rights: Dicey and Beale
• Municipal court enforces a foreign judgment as if it enforces a right
created under the municipal law and not the one created by the
foreign law. In simple when Municipal court enforces foreign
judgment it is necessary that the foreign court should have
jurisdiction not under the foreign law but under the municipal law
of country enforcing the judgment.
• And the defences available to the defendant against the
foreign judgment are the defences recognised under the
Municipal law and not under the foreign law.
• In India Theory of comity and Theory of Obligation has been
following.
 Recognition And Enforcement Of
Judgments At Common Law:
Defences
• Foreign judgment obtained by fraud.
• Debtor denied natural justice.
• Matter of enforcement of foreign penal law,
revenue law or other governmental interest.
• Enforcement contrary to Forum’s Public Policy.
 Convention on Recognition and
Enforcement of Foreign Judgments in Civil
or Commercial Matters
Applicability
Inclusion Exclusion
• This Convention shall apply to the • It shall not extend in particular to
recognition and enforcement of revenue,
judgments in civil or commercial customs or administrative
matters. matters.
• This Convention shall apply to the
recognition and enforcement in one
Contracting State of a judgment
given by a court of another
Contracting State.
 Exclusion areas

• The Convention does not apply to certain matters such as the

status and legal capacity of natural persons, maintenance
obligations, family law matters, wills and succession,
insolvency, carriage of passengers and goods, transboundary
marine pollution, liability for nuclear damage, validity of
legal persons or associations, entries in public registers,
defamation, privacy, intellectual property, armed forces, law
enforcement activities, anti-trust matters, and sovereign debt
restructuring through unilateral state measures. These matters
are subject to the jurisdiction of the State of origin.
 Non Applicability

• For the arbitration and related proceedings.

• A judgment is not excluded from the scope of this
Convention by the mere fact that a State, including a
government, a governmental agency or any person acting
for a State, was a party to the proceedings.
• Shall not affect privileges and immunities of States or of
international organisations, in respect of themselves and
of their property.
 General Provisions Art 4

•A court's judgment from a Contracting State (State of origin) must be recognized and enforced
in another Contracting State (requested State), with refusals based on specific grounds.
• The merits of the judgment are not reviewed in the requested State, and recognition or
enforcement
can be postponed or refused if the judgment is under review or if the review period has not
expired.
 Basis for Recognition Art 5
• if recognition or enforcement of the decision is manifestly incompatible with the public
(1)
policy of the State addressed or if the decision resulted from proceedings incompatible
with the requirements of due process of law or if, in the circumstances, either party had
no adequate opportunity fairly to present his case;
• (2)if the decision was obtained by fraud in the procedural sense;
• (3) if proceedings between the same parties, based on the same facts and having the
same purpose -
• a) are pending before a court of the State addressed and those proceedings were the first
to be instituted, or
• b) have resulted in a decision by a court of the State addressed, or
• c) have resulted in a decision by a court of another State which would be entitled to
recognition and enforcement under the law of the State addressed.
 Grounds for Refusal
Art 7
•Article 7 of the Hague Convention on the Recognition and Enforcement of Foreign Judgments in
Civil or Commercial Matters (Hague Convention 2019) outlines the grounds on which recognition or
enforcement of a foreign judgment can be refused:
 Inconsistent judgment: The judgment is inconsistent with a previous judgment between the same
parties on the same subject matter
 Service: The judgment debtor was not notified in time to defend themselves
 Fraud: The judgment was obtained through fraud
 Public policy: The judgment would be incompatible with the public policy of the requested state
 Procedural fairness: The proceedings that led to the judgment were not fair
 Grounds for Refusal
• Other provisionsArt 7
of the Hague Convention include:

A judgment can only be recognized if it is valid in the state of origin and can
only be enforced if it is enforceable in the state of origin

The merits of the judgment cannot be reviewed in the requested state.

Recognition or enforcement can be postponed or refused if the judgment is
being reviewed in the state of origin

A refusal to recognize or enforce a judgment does not prevent a subsequent
application
•The Hague Convention applies to civil and commercial matters, but not
to matters relating to taxes, customs, or administration
 Documents required under Art 12

•According to the Hague Convention on the Recognition and Enforcement of Foreign Judgments,
the documents required under Article 12 are:
 A complete and certified copy of the judgment
 Any documents that establish the judgment's effect or enforceability in the state of origin
 A certificate from the state of origin court that the judicial settlement is enforceable in the same way
as a judgment in the state of origin
 A document from the state of origin court that relates to the judgment and is in the form
recommended by the Hague Conference on Private International Law
• Art 17 allows contracting states to declare that they can refuse to recognize or enforce a judgment
from another contracting state if the dispute has no international element.
•This can happen if both parties were residents of the requested state, and the relationship
between the parties and other elements of the dispute were only connected to the requested state.
 Jurisdictional requirement Article 5

• There are some familiar concepts here relating to residency, consent to jurisdiction, place of
performance of a contractual obligation and jurisdiction
• By way of example, a judgment will be eligible if:
• the person against whom recognition is sought was habitually resident in the state of origin, was
the claimant in the proceedings in the state of origin or consented to the jurisdiction of the courts
of the state of origin during the course of the proceedings agreements (relating to
residency). ;
• the judgment ruled on a contractual obligation and the court that gave the judgment was in
the state of the place of performance of that obligation (contractual obligation); or
• the judgment was from a court “designated in an agreement…other than an exclusive choice
of court agreement”
(consent to jurisdiction)
• Exclusive choice of court agreements are out of scope as these are covered by the Hague
Convention on Choice of Court
Agreements.
 When can recognition or
enforcement be
refused?
• there was improper notice of the proceedings,
• where the judgment was obtained by fraud or
• where recognition or enforcement would be manifestly
incompatible with public policy.
• if the proceedings in the state of origin were contrary
to an agreement to determine disputes in a different
jurisdiction or,
• in certain cases, if the judgment is inconsistent with
another judgment.
 Consequences of Signing the
Judgment Convention
• The Judgments Convention must benefit to commercial parties
involved in cross- border business:
• It provides a simple route to recognition and
enforcement without a merits review and subject to only
limited grounds for refusal.
• It has the potential to harmonise to a significant extent for
parties looking at enforcement risk across multiple jurisdictions.
• the checks and balances that are built in to the Judgments
Convention should mitigate to a significant extent any
concerns that might arise regarding the enforcement of penal
judgments or those given in the absence of due process.
 Recognitio
n of foreign
judgements in
India
 Introduction

• Foreign judgments are recognized as per bilateral or multilateral treaties or

conventions.
• This recognition happens when the court of one country accepts a judicial
decision made by the courts of another foreign country, and issues a
judgment in alike terms without rehearing the matter of the original
lawsuit.
• The original judgment will only be denied if that judgment is not
consistent
with the basic fundamental principles of the recognizing country.
2
1
 Principle of conclusiveness of
Foreign Judgment
•Under Sec. 13 of the Code, a foreign judgment shall be
conclusive as to any
matter thereof directly adjudicated upon between the
same parties.
• Thus, a foreign judgement shall be considered as
conclusive in the following 6 cases:
1. When the Foreign Judgement has been issued by a court
with competent
jurisdiction,
2. When the Foreign Judgement is based on merits.
3. When the Foreign Judgement is not against Indian or
International Law.
4. When the Foreign Judgement is not opposed to the principles of
natural justice.
5. When the Foreign Judgement has not been obtained by
When the Foreign Judgement has
been issued by a court with
competent jurisdiction
Gurdyal Singh v. Rajah of Faridkot,1895
• A person “A” filed a suit in the court of the native state of Faridkot against a
former employee “B” for misappropriation of a particular sum of money belonging
to “A”.
• B was a domicile of another native state Jhind. B had travelled to Faridkot in
1869 to work under A but left Fardikot in 1874 and returned to Jhind.
• The present suit was brought by A against B in 1879 when B was neither residing
in or was a domicile of Faridkot and B did not appear at the hearing of the suit in
Fardikot and an ex parte decree was passed by the court at Faridkot against B.
• When A filed a suit in a court in British occupied Indian territory, the court refused
to enforce the decree passed by the court at Fardikot on the ground that the
court at Fardikot had no jurisdiction to adjudicate the suit.
• The mere fact that the alleged embezzlement took place in Faridkot would not
grant jurisdiction to the court at Fardikot.
• Neither was B residing in nor was he a domicile of Faridkot at the time that
the adverse decree was passed. Thus, taking into consideration the rules of
Private International Law, the court at Faridkot lacked jurisdiction and the decree
so passed would be null and void.
 When a Foreign Judgements are
not passed on merits of the case
• A judgement is said to have been issued on merits if the judge, post the
conduct of a fair hearing, allowing both parties to represent their case and
scrutinising the evidence, rules in favour of a party to the dispute.
• Thus, in certain cases such as when a suit is dismissed due to the plaintiff
failing to appear in court, such judgements are not considered to be
judgements made on the basis of the merits of the case.
• Lalji Raja &Sons v Firm Hansraj Nathuram, (1971)
• a judgement passed by a court ex parte will not lead to it automatically
being considered to not be based on merits of the case

Presentation 2
title 4
When a Foreign Judgement is
Against Indian or International Law
• Narasimha Rao v. Venkata Lakshmi 1991,
when a foreign judgement is delivered based
on grounds which are inconsistent, unrecognised or
in transgression of Indian or International law, it will
not be considered conclusive and shall not be
enforceable in India.
“The rules of private international law in this country (India) are not codified
and are scattered in different enactments such as the Civil Procedure
Code, the Contract Act, the Indian Succession Act, the Indian Divorce
Act, the Special Marriage Act, etc. In addition, some rules have also been
evolved by judicial decisions. In matters of status or legal capacity of
natural persons, matrimonial disputes, custody of children, adoption,
testamentary and in-testate succession etc. the problem in this country is
complicated by the fact that there exist different personal laws and no
uniform rule can be laid down for all citizens. The distinction between
matters which concern personal and family affairs and those which
concern commercial relationships, civil wrongs etc. is well recognized in
other countries and legal systems. The law in the former area tends to be
primarily determined and influenced by social, moral and religious
 4. When a Foreign Judgement is
Passed in Direct Contravention of
the Principles of Natural Justice

• A judgement which has been passed in ignorance of/in

violation of the principles of natural justice will be regarded
as being null and void and the trial shall be considered to
be “coram non judice”.

Presentation 2
title 6
 When a Foreign Judgement is
Procured via Fraud

Satya v. Teja Singh 1974,

the husband was able to divorce his wife by
misleading the court stating that he was an
American citizen even though he was not. The
Supreme Court of India recognising that the
husband had defrauded the foreign court
held that the decree of divorce would not be
enforceable and was null and void.
 6.When the Foreign Judgment
is in breach
ofisIndian
• When a foreign judgement predicatedLaw.
upon a
violation of Indian law, it would not be enforceable in
India.
• Itis imprudent for any nation – state to adopt blindly
the rules of Private International Law. Each and every
case that is adjudicated by the courts in the Republic of
India must be done in accordance with Indian law and
must not go against Indian public policy.
 Direct Execution of Foreign
Judgments
• In England, there are reciprocal agreements for such direct execution of
foreign judgments.
• Like Judgment Extortion Act 1868, In England, in view of PIL, Scotland,
Ireland are considered to be foreign countries, but under the said act, the
jdugments rendered by the superior court of England, Scotland and Ireland
have been directly enforceable in any part of UK. This is applicable later in
Inferior courts also.
• Applicable to any debts damages or costs.
 Enforcement of Foreign
Judgments
• Recognition and enforcement have different legal effects.
Recognition of a foreign judgment can act only as res
judicata and is a requirement for enforcement.
• However, it must be enforced by a separate legal process
as provided in Section 44A of the Code of Civil Procedure for
reciprocating territories, or by filing a civil suit if the foreign
judgment was not issued in a reciprocating territory.
 Reciprocating
Countries
• What are Reciprocating countries?
•Any country or territory outside of India that the Central Government declares to be a reciprocating
territory by means of a notification in the Official Gazette is referred to as a "Reciprocating territory" for the
purposes of this section, and "Superior Courts" in respect to such territory. Till now there are only 12 countries
which are mentioned as Reciprocating countries/territories with U.A.E. being the latest to join in 2020.
A list of all the Reciprocating countries are:
•
• United Kingdom
• Trinidad & Tobago
• Hong Kong (Special Administrative Region)
• Aden
• Fiji
• Papua and New Guinea
• Bangladesh
• Singapore
• Federation of Malaya
• New Zealand
• The Cook Islands and the Trust Territories of Western Samoa
United Arab Emirates
Execution of the Foreign Decree:

A judgment given by a foreign reciprocating country is executed in the same way as if it has been
passed by the Indian courts only. The application is needed to be filed under sec. 44A, Order XXI
Rule 10 read with sec 151 of CPC. The format of the application for the same is given under Order
XXI Rule 11 of CPC.

•
The Code of Civil Procedure, 1908 laid dow n the procedure for the execution of a foreign decree
in India. Sec 2(5) defines "foreign Court" as a Court situated outside India and not established by the
authority of the Central Government, Sec 2(6) defines "foreign judgment" and says that it means a
judgment that has been given by a foreign Court.

Presentation 3
title 2
 Conditions for Execution of Foreign
Decree

•Whereas Section 44A of the code enables the foreign judgment to be executed
in India and provides certain conditions for the execution of the foreign decree:
• Must be of a Reciprocating country
• Must be of a superior court.
• Must be conclusive/final.
• Does not fall under any of the exceptions mentioned under sec.13 of CPC.
•According to Sect 44A a decree means any decree or judgment of such court under which a sum
of money is payable not being a sum payable in respect of taxes or other charges of a like nature or
in respect of fine or penalty and it does not include an arbitration award even in such an award
is enforceable as judgment or decree.
 Conditions for Execution of Foreign
Decree

•Section 45 of the Code of Civil Procedure (CPC) 1908 allows courts to send decrees for execution
to courts in foreign territories:
 Foreign territory
• A location outside of India's legal jurisdiction, including neighbouring countries and distant
continents.
 Conditions
•The decree must be from an Indian court, and the Central Government must have established the
transferee court in the foreign territory. The State Government must also declare that this section applies
to the foreign court by notification in the Official Gazette.
 The formal process for recognition and
enforcement

•The decree holder must file an application for execution of the

foreign judgment or decree in the competent Indian court. A
certified copy of the decree and a certificate from the superior
court of the foreign country stating the amount, if any, that has
been satisfied under the decree must also be submitted.
•Following the application, the executing court will call on the
judgment debtor to show cause against execution of the decree.
•At this stage, the judgment debtor has the right to object to
enforcement on the ground that the judgment offends any of the
conditions specified in Section 13 of the Code of Civil Procedure,
1908.
Enforcement of Judgement is Passed
by a Court of Non- Reciprocating
Territory?
• Foreign decree ORIGINATED from non-reciprocating States cannot be directly
executed.
• Only a domestic decree which has been passed by an Indian Court of
competent jurisdiction
which is based on a suit based on the foreign decree is enforceable.
• This decree is obtained only when the decree holder can show to the
Indian court that the
foreign decree satisfies the test as laid down in S. 13 of the CPC.
•A suit on a foreign decree must be filed within 3 years from the date
when the foreign decree was passed.
• Marine Geotechnics LLC v/s Coastal Marine Construction & Engineering Ltd.,2014
• The Bombay High Court held that when a foreign court from a
territory which is not a reciprocating territory passes a decree, the
person who has obtained such a decree must file a suit on 3 the
foreign judgement or the original cause of action or both 6in a
court in India possessing competent jurisdiction.
 Rationa
le
• Section 13 makes no distinction between judgments of reciprocating
territory and non- reciprocating territories.
• That distinction comes only in Section 44A, an independent provision
that says that a decree of a court in a reciprocating state may be
put into execution in India.
• (M.V. Al Quamar v Tsavliris Salvage (International) Ltd. & Ors., AIR 2000 SC
2826) A decree from a non-reciprocating state cannot be so
executed, however such Decrees of both reciprocating and non-
reciprocating territories must satisfy the tests of Section
13. (Raj Rajendra Sardar Maloji Marsingh Rao Shitole vs Sri Shankar Saran
and Ors.
• The reciprocating territories enjoy greater privilege regarding execution
of decrees of their
superior Courts in our country than by the non-reciprocating territories.