Assignment on :Rule of the court of bangladesh regarding the jurisdiction in a case pertaining to foreign elements and enforcement of foreign judgment
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Assignment on :Rule of the court of bangladesh regarding the jurisdiction in a case pertaining to foreign elements and enforcement of foreign judgment

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Private International Law, Assignment On:Rule of the court of bangladesh regarding the jurisdiction in a case pertaining to foreign elements and enforcement of foreign judgment, SAYEF AMIN......

Private International Law, Assignment On:Rule of the court of bangladesh regarding the jurisdiction in a case pertaining to foreign elements and enforcement of foreign judgment, SAYEF AMIN +8801924122222

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  • 1. Table of Contents: SL No. Subject 01. Introduction 02. Definition of terms 03. Exercise of jurisdiction in recognition cases 04. Enforcement of foreign judgments in the U.S 05. Exceptions 06. The effectiveness of foreign enforcement as compared to U.S. enforcement action 07. Foreign Sovereign Immunity 08. Foreign Sovereign Compulsion 09. Describe to Code of Civil Procedure, 1908, Bangladesh, Under Section-16,17,18,19,20 and 44A 10. Forum Selection: a) Types of Jurisdiction b) Limitations on the Subject Matter of the Action c) Limitations on the Parties to the Action 11. Service in juris 12. In Foreign case of Individuals 13. In Foreign case of Company 1
  • 2. 14. Service ex juris 15. Attornment/Submission 16. Action ability of Foreign Judgments 17. Proper International Jurisdiction 18. In Rem Judgment 19. Enforcement of Foreign Judgments 20. Methods of Enforcement 21. Reciprocal Enforcement of Judgments 22. Defence to Reciprocal Enforcement of Judgments 23. Opinion 24. Conclusion Introduction: English courts for the purpose of recognition and enforcement of foreign judgment is not concerned with the internal law of country of origin. In Buchanan v ruckers6 it was held that competence of original court over the person against whom judgment is given is not important, the question is whether- as a matter of English law- the original court is to be regarded as a court of competent jurisdiction in the private international law sense. It is 2
  • 3. clear that English courts will look in their internal law to conclude whether foreign court is jurisdictionally competent. So relevant thing in the eyes of English court would be whether the connection between the country of origin and the person against whom judgment is invoked is sufficient to create an obligation which English court would recognize and enforce. In Emanuel v Symon7 it was proposed that, in actions in personam there are five cases in which court of England will enforce a foreign judgment. 1) where the defendant is subject to foreign country in which the judgment is obtained; 2) where he was resident in foreign country when the action began; 3) where defendant in the character of plaintiff has selected the forum in which he was afterward was sued; 4) where he was voluntarily appeared; 5) where he has contracted to submit himself to the forum in which the judgment is obtained. According to me first case would not give rise to issue of jurisdiction. Such views were also expressed in case of Buchanan v Rucker. Point no 2, boils down the question where defendant has sufficient territorial connection between party and country whose court has given judgment and whether it is sufficient to create any responsibility in terms of English court. Definition of terms: 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. 3
  • 4. In American legal terminology, a "foreign" judgment means a judgment from another state in the United States or from a foreign country. To differentiate between the two, more precise terminology used is "foreign- country judgment" (for judgments from another country) and "foreign sister- state judgment" (from a different state within the United States). Once a foreign judgment is recognized, the party who was successful in the original case can then seek its "enforcement" in the recognizing country. If the foreign judgment is a money judgment and the debtor has assets in the recognizing jurisdiction, the judgment creditor has access to all the enforcement remedies as if the case had originated in the recognizing country, e.g. garnishment, judicial sale, etc. If some other form of judgment was obtained, e.g. affecting status, granting injunctive relief, etc., the recognizing court will make whatever orders are appropriate to make the original judgment effective. Foreign judgments may be recognized either unilaterally or based on principles of comity, i.e. mutual deference between courts in different countries. Between two different States in the United States, enforcement is generally required under the "Full Faith and Credit Clause" (Article IV, Section 1) of the U.S. Constitution, which compels a State to give another State's Judgment an effect as if it were local. This usually requires some sort of an abbreviated application on notice, or docketing. Between one State in the United States, and a foreign country, Canada, for example, the prevailing concept is comity. The Court in the United States, in most cases, will 4
  • 5. unilaterally enforce the foreign judgment, without proof of diplomatic reciprocity, either under judge-made law or under specific statutes. Recognition will be generally denied if the judgment is substantively incompatible with basic legal principles in the recognizing country. For example, US courts now, in accordance with the August 2010 Speech Act, not permit enforcement of foreign libel judgments in cases (e.g. based on libel) unless the foreign country protects free speech to the same extent as the U.S. Constitution does in the First Amendment, etc. Exercise of jurisdiction in recognition cases: 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 (presently only ratified by Albania, Cyprus, Kuwait, the Netherlands and Portugal ), the Brussels regime (all European Union countries, as well as Iceland, Norway and Switzerland) 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. Whether recognition will be given is determined by the lex fori, i.e. the domestic law of the court where recognition is sought, and the principles of comity. The following issues are considered: • Whether the foreign court properly accepted personal jurisdiction over the defendant; 5
  • 6. • Whether the defendant was properly served with notice of the proceedings and given a reasonable opportunity to be heard which raises general principles of natural justice and will frequently be judged by international standards (hence, the rules for service on a non-resident defendant outside the jurisdiction must match general standards and the fact that the first instance court's rules were followed will be irrelevant if the international view is that the local system is unjust); • Whether the proceedings were tainted with fraud; and • Whether the judgment offends the public policy of the local state. There is a general reluctance to enforce foreign judgments which involve multiple or punitive damages. In this context, it is noted that the U.S. is not a signatory to any treaty or convention and there are no proposals for this position to change. When it comes to seeking the enforcement of U.S. judgments in foreign courts, many states are uncomfortable with the amount of money damages awarded by U.S. courts which consistently exceed the compensation available in those states. Further, the fact that the U.S. courts sometimes claim extraterritorial jurisdiction offends other states' conceptions of sovereignty. Consequently, it can be difficult to persuade some courts to enforce some U.S. judgments. The Hague choice of court convention provides for the recognition of judgment given by the court chosen by the parties in civil and commercial cases in all other parties to the convention. The convention has as of 2013 not entered into force. Regarding maintenance obligations, the Hague Maintenance Convention (in force between Albania, Bosnia and Herzegovina and Norway), provides for 6
  • 7. recognition of all kinds of maintenance related judgments (including child support). Enforcement of foreign judgments in the U.S: If the time to appeal in the court of origin has lapsed, and the judgment has become final, the holder of a foreign judgment, decree or order may file suit before a competent court in the U.S. which will determine whether to give effect to the foreign judgment. A local version of the Uniform Foreign Money Judgments Recognition Act applies in most states, for example in California. 13 U.L.A. 149 (1986). A judgment rendered in a "sister" state or a territory of the U.S. is also referred to as a "foreign judgment." 47 states, the District of Columbia, Northern Mariana Islands and the Virgin Islands have adopted the Uniform Enforcement of Foreign Judgments Act, 13 U.L.A. 261 (1986), which requires the states and the territories to give effect to the judgments of other states and territories, if an exemplified copy of the foreign judgment is registered with the clerk of a court of competent jurisdiction along with an affidavit stating certain things. The only U.S. states which have not adopted the Uniform Enforcement of Foreign Judgments Act are California, Massachusetts and Vermont. Legislation was introduced in Massachusetts in 2012 to adopt the Uniform Enforcement of Foreign Judgments Act. New York State and Connecticut are two of a small minority of U.S. jurisdictions that does not simply allow a judgment creditor to file a foreign judgment from a sister state if the judgment was obtained by default (meaning the other side never showed up for to contest its entry in the other 7
  • 8. state by, for example, defending himself at trial) or the judgment was obtained by confession (meaning the other side signed paperwork allowing a judgment to be entered against him). Instead, a party wishing to domesticate the foreign default judgment or foreign judgment obtained by confession must bring another action in New York State "on the judgment" where the relief sought is to have the foreign judgment domesticated in New York State. 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. When seeking to enforce a judgment in or from a state that has not adopted the Uniform Act, the holder of the judgment files a suit known as a "domestication" action. Since the full faith and credit clause of the U.S. constitution requires that states honor the judgments of other states, the domestication of a judgment from another state is generally a formality, even in the absence of the expedited procedure under the UEFJA. Exceptions: A state may not enforce a foreign-country judgment in the following cases: • The judgment was not rendered by an impartial tribunals under procedures compatible with the requirements of due process of law; 8
  • 9. • The foreign court did not have personal jurisdiction over the defendant; • The foreign court did not have jurisdiction over the subject matter; • The defendant did not receive notice of the proceedings in sufficient time to enable him to defend; • The judgment was obtained by fraud; • The judgment is repugnant to the public policy of the state where enforcement is sought; • The judgment conflicts with another final and conclusive judgment; • The proceeding in the foreign court was contrary to an agreement between the parties under which the dispute was to be settled; • In the case of jurisdiction based only on personal service, the foreign court was an inconvenient forum for the trial; or • The judgment seeks to enforce the revenue and taxation laws of a foreign jurisdiction The effectiveness of foreign enforcement as compared to U.S. enforcement action: The relative weight that each factor should be given depends on the facts and circumstances of each case. With respect to the factor concerning conflict with foreign law, the Supreme Court made clear in Hartford Fire that no conflict exists for purposes of an international comity analysis in the courts if the person subject to regulation by two states can comply with the laws of both. Bearing this in mind, the Agencies first ask what laws or policies of the arguably interested foreign jurisdictions are implicated by the conduct in question. There may be no actual conflict between the antitrust enforcement 9
  • 10. interests of the United States and the laws or policies of a foreign sovereign. This is increasingly true as more countries adopt antitrust or competition laws that are compatible with those of the United States. In these cases, the anticompetitive conduct in question may also be prohibited under the pertinent foreign laws, and thus the possible conflict would relate to enforcement practices or remedy. If the laws or policies of a foreign nation are neutral, it is again possible for the parties in question to comply with the U.S. prohibition without violating foreign law. The Agencies also take full account of comity factors beyond whether there is a conflict with foreign law. In deciding whether or not to challenge an alleged antitrust violation, the Agencies would, as part of a comity analysis, consider whether one country encourages a certain course of conduct, leaves parties free to choose among different strategies, or prohibits some of those strategies. In addition, the Agencies take into account the effect of their enforcement activities on related enforcement activities of a foreign antitrust authority. For example, the Agencies would consider whether their activities would interfere with or reinforce the objectives of the foreign proceeding, including any remedies contemplated or obtained by the foreign antitrust authority. The Agencies also will consider whether the objectives sought to be obtained by the assertion of U.S. law would be achieved in a particular instance by foreign enforcement. In lieu of bringing an enforcement action, the Agencies may consult with interested foreign sovereigns through appropriate diplomatic channels to attempt to eliminate anticompetitive effects in the United States. In cases where the United States decides to prosecute an antitrust action, such a decision represents a determination by 10
  • 11. the Executive Branch that the importance of antitrust enforcement outweighs any relevant foreign policy concerns. The Department does not believe that it is the role of the courts to "second-guess the executive branch's judgment as to the proper role of comity concerns under these circumstances.” To date, no Commission cases have presented the issue of the degree of deference that courts should give to the Commission's comity decisions.78 It is important also to note that in disputes between private parties, many courts are willing to undertake a comity analysis. Foreign Sovereign Immunity: The scope of immunity of a foreign government or its agencies and instrumentalities (hereinafter foreign government) from the jurisdiction of the U.S. courts for all causes of action, including antitrust, is governed by the Foreign Sovereign Immunities Act of 1976 ("FSIA"). Subject to the treaties in place at the time of FSIA's enactment, a foreign government is immune from suit except where designated in the FSIA. Under the FSIA, a U.S. court has jurisdiction if the foreign government has: a. waived its immunity explicitly or by implication, b. engaged in commercial activity as described in the statute, c. expropriated property in violation of international law, d. acquired rights to U.S. property, e. Committed certain torts within the United States, or agreed to arbitration of a dispute. 11
  • 12. The commercial activities exception is a frequently invoked exception to sovereign immunity under the FSIA. Under the FSIA, a foreign government is not immune in any case: in which the action is based upon a commercial activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States. "Commercial activity of the foreign state" is not defined in the FSIA, but is to be determined by the "nature of the course of conduct or particular transaction or act, rather than by reference to its purpose." In attempting to differentiate commercial from sovereign activity, courts have considered whether the conduct being challenged is customarily performed for profit87 and whether the conduct is of a type that only a sovereign government can perform. As a practical matter, most activities of foreign government-owned corporations operating in the commercial marketplace will be subject to U.S. antitrust laws to the same extent as the activities of foreign privately-owned firms. The commercial activity also must have a substantial nexus with the United States before a foreign government is subject to suit. The FSIA sets out three different standards for meeting this requirement. First, the challenged conduct by the foreign government may occur in the United States. Alternatively, the challenged commercial activity may entail an act performed in the United States in connection with a commercial activity of the foreign government elsewhere. Or, finally, the challenged commercial 12
  • 13. activity of a foreign government outside of the United States may produce a direct effect within the United States, Foreign Sovereign Compulsion: Although U.S. antitrust jurisdiction extends to conduct and parties in foreign countries whose actions have the required effects on U.S. commerce, as discussed above, those parties may find themselves subject to conflicting requirements from the other country (or countries) where they are located. Under Hartford Fire, if it is possible for the party to comply both with the foreign law and the U.S. antitrust laws, the existence of the foreign law does not provide any legal excuse for actions that do not comply with U.S. law. However, a direct conflict may arise when the facts demonstrate that the foreign sovereign has compelled the very conduct that the U.S. antitrust law prohibits. In these circumstances, at least one court has recognized a defense under the U.S. antitrust laws, and the Agencies will also recognize it. There are two rationales underlying the defense of foreign sovereign compulsion. First, Congress enacted the U.S. antitrust laws against the background of well recognized principles of international law and comity among nations, pursuant to which U.S. authorities give due deference to the official acts of foreign governments. A defense for actions taken under the circumstances spelled out below serves to accommodate two equal sovereigns. Second, important considerations of fairness to the defendant require some mechanism that provides a predictable rule of decision for those seeking to conform their behavior to all pertinent laws. Because of the limited scope of the defense, the Agencies will refrain from enforcement actions on the 13
  • 14. ground of foreign sovereign compulsion only when certain criteria are satisfied. First, the foreign government must have compelled the anticompetitive conduct under circumstances in which a refusal to comply with the foreign government's command would give rise to the imposition of penal or other severe sanctions. As a general matter, the Agencies regard the foreign government's formal representation that refusal to comply with its command would have such a result as being sufficient to establish that the conduct in question has been compelled, as long as that representation contains sufficient detail to enable the Agencies to see precisely how the compulsion would be accomplished under local law.94 Foreign government measures short of compulsion do not suffice for this defense, although they can be relevant in a comity analysis. Second, although there can be no strict territorial test for this defense, the defense normally applies only when the foreign government compels conduct which can be accomplished entirely within its own territory. If the compelled conduct occurs in the United States, the Agencies will not recognize the defense.95 For example, no defense arises when a foreign government requires the U.S. subsidiaries of several firms to organize a cartel in the United States to fix the price at which products would be sold in the United States, or when it requires its firms to fix mandatory resale prices for their U.S. distributors to use in the United States. Third, with reference to the discussion of foreign sovereign immunity, the order must come from the foreign government acting in its governmental capacity. The defense does not arise from conduct that would fall within the FSIA commercial activity exception.♣  http://www.justice.gov/atr/public/guidelines/internat.htm 14
  • 15. According to Code of Civil Procedure, 1908, Bangladesh: Suits to be instituted where subject-matter situate: 16. Subject to the pecuniary or other limitations prescribed by any law, suits- (a) for the recovery of immovable property with or without rent or profits, (b) for the partition of immovable property, (c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property, (d) for the determination of any other right to or interest in immovable property, (e) for compensation for wrong to immovable property, (f) for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate, or, in the case of suits referred to in clause (c), at the place where the cause of action has wholly or partly arisen: Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or, in the case of suits referred to in clause (c), at the place where the cause of action has wholly or partly arisen, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain. Explanation.-In this section "property' means property situate in Bangladesh. 15
  • 16. Suits for immovable property situate within jurisdiction of different Courts: 17. Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate: Provided that, in respect of the value of the subject-matter of the suit, the entire claim is cognizable by such Court Place of institution of suit where local limits of jurisdiction of Courts are uncertain: 18. (1) Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more Courts any immovable property is situate, any one of those Courts may, if satisfied that there is ground for the alleged uncertainly, record a statement to that effect and thereupon proceed to entertain and dispose of any suit relating to that property, and its decree in the suit shall have the same effect as if the property were situate within the local limits of its jurisdiction: Provided that the suit is one with respect to which the Court is competent as regards the nature and value of the suit to exercise jurisdiction. (2) Where a statement has not been recorded under sub-section (1), and an objection is taken before an appellate or revisional Court that a decree or order in a suit relating to such property was made by a Court not having jurisdiction where the property is situate, the appellate or revisional Court shall not allow the objection unless in its opinion there was, at the time of the institution of the suit, no reasonable ground for uncertainly as to the 16
  • 17. Court having jurisdiction with respect thereto and there has been a consequent failure of justice. Suits for compensation for wrongs to person or movables: 19. Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts. Others suits to be instituted where defendants reside or cause of action arises: 20. −Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction. (a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually or voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually or voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. Explanation I.-Where a person has a permanent dwelling at one place and also a temporary residence at another place, he shall be deemed to reside at 17
  • 18. both places in respect of any cause of action arising at the place where he has such temporary residence. Explanation II.-A Corporation shall be deemed to carry on business at its sole or principal office in Bangladesh or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place. Illustrations: (a) A is a tradesman in Dhaka. B carries on business in Chittagong. B, by his agent in Dhaka, buys goods of A and requests A to deliver them to the Bangladesh Biman. A delivers the goods accordingly in Dhaka. A may sue B for the price of the goods either in Dhaka, where the cause of action has arisen, or in Chittagong, where B carries on business. Execution of decrees passed by Courts in the United Kingdom and other reciprocating territory: 44A. (1) Where a certified copy of a decree of any of the superior Courts of any reciprocating territory has been filed in a District Court, the decree may be executed in Bangladesh as if it had been passed by the District Court. (2) Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment. 18
  • 19. (3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13. Explanation .- "Reciprocating territory" means any country or territory as the Government may, from time to time, by notification in the official Gazette, declare to be reciprocating territory for the purposes of this section; and "Superior Courts", with reference to any such territory, means such Courts as may be specified in the said notification. Forum Selection: Forum selection is the process by which an appropriate jurisdiction is selected to entertain a particular action. Where counsel commences an action in Ontario, he or she would likely argue that despite the existence of one or more foreign elements in the case, the Ontario court should assume jurisdiction over the matter, as it is the proper forum. Whether or not Ontario is in fact the proper forum depends on the subject matter of the Litigation, the parties, and whether counsel can satisfy the court that Ontario has a “real and substantial connection” to the action. Insurers must be aware of the implications of forum selection as it may considerably alter the economic reality of defending an insured in a foreign jurisdiction. a) Types of Jurisdiction: 19
  • 20. Courts can have either in rem or in personam jurisdiction. In rem jurisdiction is jurisdiction over a particular “thing”, which means that the court affects the rights or interests of everyone else over a specific object. This in turn means that the object must be located within the territory of the court that is affecting it. In personam jurisdiction, on the other hand, allows a court to impose personal liability or obligation on a particular individual. As will be discussed later in the paper, this jurisdiction may potentially be exercised over individuals outside the court’s jurisdiction. Nevertheless, in asserting jurisdiction, counsel should first determine if the court possess in rem or in personam jurisdiction. Once that is determined, counsel should then note the limitations on the subject matter and parties to the action. b) Limitations on the Subject Matter of the Action: Counsel must be aware that Canadian courts have no jurisdiction to enforce a foreign penal, revenue or public law. Additionally, Canadian courts are also barred from asserting in rem jurisdiction over a foreign object, or awarding damages for trespass to a foreign object. c) Limitations on the Parties to the Action: Counsel must also be aware that Canadian courts cannot entertain an action against a foreign state, sovereign, as well as head of a foreign state, pursuant to the State Immunity Act1. Exceptions to these limitations involve commercial activity by the foreign state, death and personal injury, Maritime Law, property in Canada and violation of human rights. Interestingly, however, a foreign state or sovereign may assert a claim in Canadian courts 20
  • 21. as plaintiffs. Moreover, diplomats and consuls are also immune as defendants in Canadian courts, pursuant to the Foreign Missions and International Organizations Act3. International organizations and enemy states also cannot be sued in Canadian courts. However, jurisdiction can be asserted over any of these parties if immunity is waived. d) Asserting Jurisdiction: Once it is determined that jurisdiction over a party can be asserted in an Ontario court, counsel must decide how to assert it. There are three ways to assert jurisdiction: Counsel may either serve the party in juris, which means that the party is served pursuant to the Rules of Civil Procedure for service within Ontario, or counsel may serve the party exjuris, pursuant to Rule 17 of the Rules of Civil Procedure, for service outside Ontario. The third method of asserting jurisdiction over a particular party requires that the party attornment or submit to the Ontario court by, for example, defending the action. 1) Service in juris: i) Individuals: Service in juris requires the party over whom jurisdiction is being asserted to be present in Ontario at the time of service. The debate over whether jurisdiction can be asserted by service in juris on a person simply passing through Ontario, rather than residing in Ontario, is outside the scope of this paper. Suffice it to say that the former type of service is more controversial and may raise difficulties for counsel in asserting jurisdiction over that individual. In the same vein, jurisdiction asserted over a person induced by 21
  • 22. fraud or physical force to enter Ontario for the purpose of serving him or her in juris might be set aside as an abuse of process. In Foreign case of Individuals: The residence of defendant within foreign country is more than sufficient to establish a connection with foreign country. The matter of concern is whether a mere presence of defendant in foreign country for a limited time will create a territorial connection. According to me a person who happens to be within any country generally owes obedience to law of that country. “By making himself present he contracts into network of obligation, created by local law and local courts” Mere presences for short time will create an obligation on person. This view has been expressed in Carrick vs. Hancock. In above case proceeding was started in Sweden and defendant was served with the document instituting the proceeding during short visit to Sweden. Defendant took part in proceeding and so it was justified for English to enforce the judgment on the basis of defendant submission, but view expressed by Lord Russell was noteworthy. Lord Russell expressed that: “the jurisdiction was based on territorial dominion, and that all persons with in any territorial dominion owe their allegiance to its sovereign power and obedience to all its law and to the lawful jurisdiction of its courts.” The court of appeal held in Adams vs. Cape Industries Plc that, in absence of submission the jurisdiction of the foreign court depends upon the physical presence of person in the country at the time of commencing proceedings. Further it was expressed that presence must be voluntarily and not by force. It may be difficult to ascertain presence of person in case involving cross border e-commerce. For a instance, if a seller is present in England 22
  • 23. advertises good on the internet which accessible anywhere in world and sells and delivers good on order to buyers in foreign countries, then it cannot be assumed that seller is present in that foreign country. So on the basis of above cases we can conclude that physical presence of person must be there in country where proceeding took place and such presence must be voluntarily. But in England the jurisdiction of English court can be stayed in case of mere presence by English court by invoking doctrine of forum non convenient in England. Court has discretion to stay proceeding on above grounds. So according to me it is rightly suggested that, it would be rational to determine competence of foreign court in the private international law sense by the application of a test based on the appropriateness of the foreign forum, rather than on factors such as mere presence or residence. ii) Corporations: Counsel should note that service in juris over foreign corporations could be accomplished pursuant to Rule 16.02(1)(c) of the Rules of Civil Procedure. In case of corporation or company: To determine presence of company in a country is more difficult than in a case of individual. For determining presence of company in foreign country English courts have considered two situation direct presence of company and indirect presence of company where company carries out its business through representative. Direct presence of company can be felt easily where company carries out business at definite or permanent place in a country.16Indirect presence poses more difficulty. Situation becomes worst where company carries out business through representative. In ascertaining whether company is present in country through representative court gives 23
  • 24. consideration to all facts and circumstances of case such as whether representative is empowered to conclude contracts on behalf of company or not and many more. The question of presence of company in a foreign country was subjected to review by the court of appeal in case of Adams v cape industries plc. It was held that English court would treat corporation established under the law of country as present in the another countries jurisdiction only if Such company has been established on his own expense and carries business of original company in that country from such fixed place for more than minimum period of time has carried its own business through its servants or agents. A representative of the overseas corporation has for more than a minimal period of time been carrying overseas corporation business from some fixed place of business. 2) Service ex juris: Where jurisdiction is asserted over a party residing outside Ontario, Rule 17 of the Rules of Civil Procedure states that service of an originating process can be made ex juris on that party, provided that there is a “real and substantial connection” between the subject matter of the action or the defendant, and Ontario. Rule 17.02 lists the categories of appropriate subject matter for which service ex juris will be permitted. Counsel should also be aware that the court has discretion to validate service, pursuant to Rule 17.06(3), even if the subject matter of the action does not fall within the enumerated categories listed in Rule 17.02. However, it should also be noted that a motion could be brought, pursuant to Rule 17.06(1), to set aside service ex juris. 3) Attornment/Submission: 24
  • 25. Jurisdiction may also be asserted over a party where that party attorns or submits to the jurisdiction of a particular court. For example, by defending a claim against him in Florida, a Canadian citizen has attorned to the jurisdiction of the Florida court. By defending the foreign action, the Canadian citizen essentially recognized the jurisdiction that the Florida court asserted over him. Once that is done, the Canadian citizen must not ignore the foreign court’s proceedings against him or her. However, counsel must also be acutely aware that advising a client to ignore a foreign court’s attempt to assert jurisdiction over it in the first place, may result in judgment against that client, as well as expose counsel to a claim for negligence based on erroneous legal advice. This was the case in the Beals v. Saldonha case, which is discussed in more detail below. Moreover, insurers must decide whether they should attorn and defend their insured in foreign jurisdictions, or whether they should not attorn and try to thwart any attempt to enforce a foreign judgment obtained against their insured. While it may be more cost effective to try and block the enforcement of the foreign judgment rather than defend the action, insurers must decide whether they should take that risk, given the trend in Canadian courts to encourage reciprocity and international comity. In addition, insurers must also keep in mind that the risk of enforcement is vastly greater where a judgment obtained in one Canadian province is sought to be enforced in another province. e) “Real and Substantial Connection” Test The key test that must be satisfied in order to assert jurisdiction, particularly where ex juris service is made, is the “real and substantial connection” test, 25
  • 26. which was articulated by the Supreme Court of Canada in Morguard Investments Ltd. v. De Savoye and in Hunt v. T & N plc The Ontario Court of Appeal recently elaborated on this test in Muscutt v. Courcelles. It set out the factors to be considered in applying this test. These factors, which are not intended to be exhaustive, include the connection between the forum and the plaintiff’s claim, the connection between the forum and the defendant, unfairness to the defendant in assuming jurisdiction, unfairness to the plaintiff in not assuming jurisdiction, the involvement of other parties to the suit, the court’s willingness to recognize and enforce extra-provincial judgment rendered on the same jurisdictional basis, whether the case is inter provincial or international in nature, comity and the standards of jurisdiction, recognition and enforcement prevailing elsewhere. In its most elemental form, this test is the bedrock of any claim that attempts to assert jurisdiction where foreign elements are involved. Counsel must apply this test to the specific facts of each individual case in order to satisfy an Ontario court that it should assume jurisdiction over a proceeding containing one or more foreign elements. Recognition and Enforcement: Once judgment has been rendered in a foreign court, there are certain requirements that must be met before Canadian courts can enforce it domestically. Counsel would be well advised to be aware of the various enforcement mechanisms available and how they maybe utilized. a) Action ability of Foreign Judgments: A foreign judgment is, by its very nature, foreign, and as such, its enforcement depends on whether and to what extent the domestic forum will make it actionable. That said, Canadian courts would only enforce foreign judgments if the foreign court that issued the judgment had jurisdiction, in 26
  • 27. the international sense, to make that judgment. Counsel should be aware that it is irrelevant whether the foreign court assumed jurisdiction properly under its own domestic law(s). The foreign court must have had a real and substantial connection to the subject matter, or parties to the action. 1. Proper International Jurisdiction: i) In Personam Judgment: Where a foreign court issues a judgment in an action in personam, the international jurisdiction of the foreign court must have been based on either the presence or submission of the defendant(s), or the existence of a real and substantial connection between the foreign court and the subject of the proceeding, or the defendant(s). ii) In Rem Judgment: Canadian courts also recognize that foreign courts have exclusive jurisdiction to issue a judgment in an action in rem over objects situated within their territorial jurisdiction. 2. Final and Conclusive Judgment for a Definite Sum of Money: Furthermore, to be enforced in Canada, the foreign judgment must be final and conclusive, and if it is an in personam judgment, it must be for a definite sum of money. 3. Sufficient Certainty: 27
  • 28. With respect to foreign non-monetary judgments, the Ontario Court of Appeal has recently held in Pro Swing Inc. v. Elta Gold Inc. that “a foreign judgment would have to be sufficiently certain in its terms that the Ontario courts could enforce the judgment without having to interpret its terms or vary it.”21 Therefore, when considering whether to bring a subrogation claim in a foreign jurisdiction against a Canadian resident for a property loss, insurers would be well advised to ensure that the foreign judgment is sufficiently certain on its own terms without an Ontario court having to interpret or vary those terms. b) Enforcement of Foreign Judgments: Once a foreign pecuniary judgment is recognized by a Canadian court, its enforcement is determined by the lex loci (procedural law) of the domestic forum. As a consequence, a domestic court may not provide the same or similar remedies to a creditor that the foreign court would have provided. 1) Methods of Enforcement: In seeking to enforce the foreign judgment, a creditor can chose to disregard the foreign judgment and sue on the original cause of action, or sue on the foreign judgment itself, or register the judgment under special domestic legislation, if it exists, such as the Ontario Reciprocal Enforcement of Judgments Act:. 2) Ontario’s Reciprocal Enforcement of Judgments: Registering a foreign judgment under the Ontario Reciprocal Enforcement of Judgments Act enables a creditor to register the judgment with a domestic court within six years after the date of the judgment. Once registered, the judgment can be enforced like any other domestic judgment, except where 28
  • 29. the foreign judgment has been registered Ex parte. Moreover, upon being provided with notice of registration, the judgment debtor has one month to petition to have the registration set aside on any of the grounds listed under the Act. c) Defences to Recognition and Enforcement of Foreign Judgments: Counsel should be aware that there are three primary defences to the recognition and enforcement of foreign judgments, as articulated by the Supreme Court of Canada in Beals v. Saldanha, which include judgments obtained by fraud, failure of natural justice and judgments that are contrary to public policy. In Beals, Canadian vendors sold a vacant lot in Florida to U.S. purchasers. A dispute arose and the purchasers sued in Florida. The Canadian vendors filed a defence but did not defend subsequent amendments to the action, which, according to Florida law, amounted to a failure to defend the action. The Canadian vendors were noted in default and judgment was rendered against them for$260,000. Their legal counsel in Canada advised them that the judgment could not be enforced in Ontario. Consequently, they took no steps to set the judgment aside or appeal it. The amount grew to $800,000 CDN. The U.S. purchasers sought to enforce their Florida judgment in Ontario. The Ontario trial judge dismissed the enforcement action on the ground that the judgment was obtained fraudulently. However, the Ontario Court of Appeal allowed the purchaser’s appeal. The Supreme Court of Canada dismissed the Canadians’ appeal and enforced the Florida judgment.The majority held that there are three possible defences to the recognition and enforcement of foreign judgments: fraud, natural justice, and public policy. 1) Fraud 29
  • 30. With respect to the fraud defence, the court held that the merits of a foreign judgment can be challenged only where the allegations of fraud are new, and not the subject f prior adjudication. In other words, the fraud alleged must not have been known at the time the judgment was obtained. Furthermore, the burden of demonstrating that the facts supporting the allegation of fraud could not have been discovered by the exercise of due diligence prior to the foreign judgment having been obtained lies on the person raising the defence of fraud. 2) Natural Justice: With respect to the natural justice defence, the court held that this defence is restricted to the form of foreign procedure and due process. It does not relate to the merits of the case. If the foreign procedure does not accord with Canada’s concept of natural justice, i.e. prior notice, the foreign judgment will not be recognized. The court also held that negligent advice does not constitute a bar to the enforcement of foreign judgments. 3) Public Policy: With respect to the public policy defence, the court held that foreign judgments that are contrary to the Canadian concept of justice and “our view of basic morality” would not be recognized. However, the court also stated that large monetary judgments are not, in The selves, contrary to the Canadian concept of justice and basic morality. Opinion: According to me residence must be considered while determining jurisdiction of foreign court. Reason for that, if temporary presence is 30
  • 31. acceptable basis for determining jurisdiction, then I think there seems no reason why not residence of person in the country should considered which determines more significant link with the country. At least when defendant’s residence is accompanied by presence must be accepted while determining jurisdiction of foreign court. I think court made mistake in Adam v Cape industries plc to determine relevant territorial jurisdiction. In above case question was whether plaintiff has to establish that defendant was present particularly in Texas or else presence anywhere in United States was sufficient. The court concluded that presence in somewhere in U.S. is enough to give jurisdiction. Reason given by the court for such finding was that there is distinction between state and federal matters and there is national jurisdiction in federal matters under the law of the United States. For an instance a judgment given by Texas court against English resident who carries business in Japan has no basis for recognition in England. Same is with regard to English resident carrying on business in Chicago. “The fact that Chicago is in U.S. does not make Texas any the less a foreign court for a resident in Illinois than if Chicago were in France.” If you investigate matter you will find that statutory provisions exist for the registration of federal court judgments of a state court-in the sense that it is regarded as a foreign court judgment for the enforcement purpose, but on the contrary court appeal thought that there is no national jurisdiction in the federal matter. In Canada a judgment granted by the another province is entitled to recognition and enforcement provided a judgment granting court has acted carefully and with due care and in appropriate manner and given judgment has “a real and substantial connection with the action”.39 The supreme court 31
  • 32. of Canada in beals v saldhanha has extended this approach to the recognition and enforcement at common law of judgments decided outside Canada.40 I think Canadian approach should be applied by the English court while determining the jurisdiction of the foreign court. This will solve the problem which English court faced in case of federal states (which is made of different law districts). It is rightly said that such approach is “the need in modern times to facilitate the flow of wealth, skills and people across the state lines in fair and orderly manner.”41 The threat to protect the innocent defendant who has been subjected to the injustice abroad can be removed by redeveloping the natural justice and public policy defences. 32
  • 33. Conclusion: The common law on the recognition and enforcement of foreign judgments was designed and constructed in the England of a century ago. Most English jurisprudence since then has pleased itself with confirming the continuing validity of old truths. But still the common laws choice of law has worked best till now. But the judgment of Supreme Court of Canada in Beals v. Saldanha provides opportunity us to develop the law by measured steps, and with a greater sensitivity. It is true that applying Canadian approach as whole would harm the interest of innocent defendant but it can be possible to protect innocent defendant by re-examining and developing the rules on natural justice and public policy defences. The need of modern business community and further development in wealth and prosperity of state cannot be also ignored against such harm. 33