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Chapter

Cover Clarkson & Hill's Conflict of Laws

1. Introduction  

Jonathan Hill

This introductory chapter begins by explaining the nature of the subject known as conflict of laws or private international law, which deals with cases before the English court which have connections with foreign countries. The foreign elements in the case may be events which have taken place in a foreign country or countries, or they may be the foreign domicile, residence, or place of business of the parties. In short, any case involving a foreign element raises potential conflict of laws issues. The conflict of laws is concerned with the following three questions: jurisdiction; choice of law; and the recognition and enforcement of foreign judgments. The remainder of the chapter discusses the various stages of proceedings which raise conflict of laws issues.

Chapter

Cover Clarkson & Hill's Conflict of Laws

3. Foreign judgments  

Jonathan Hill

This chapter deals with the recognition of enforcement of foreign judgments by English courts. The crucial question is not whether foreign judgments should be recognised and enforced in England but which judgments should be recognised and enforced. There are, broadly speaking, two theories. The first is the theory of obligation, which is premised on the notion that if the original court assumed jurisdiction on a proper basis the court's judgment should prima facie be regarded as creating an obligation between the parties to the foreign proceedings which the English court ought to recognise and, where appropriate, enforce. The alternative theory is based on the idea of reciprocity: the courts of country X should recognise and enforce the judgments of country Y if, mutatis mutandis, the courts of country Y recognise and enforce the judgments of country X. Whichever theory is adopted, the recognition and enforcement of foreign judgments is limited by a range of defences which may be invoked by the party wishing to resist the judgment in question. It would be unrealistic to expect the English court to give effect to a foreign judgment which conflicts with fundamental notions of justice and fairness. So, the recognition and enforcement of foreign judgments is a two-stage process: Are the basic conditions for recognition or enforcement satisfied? If so, is there a defence by reason of which the foreign judgment should nevertheless not be recognised or enforced? The remainder of the chapter discusses the recognition and enforcement at common law; statutory regimes based on the common law; recognition and enforcement under the Brussels I Recast; and United Kingdom judgments.