Introduction

The issue of enforcing a foreign judgment arises when a plaintiff, such as Adriano, seeks to sue a
defendant, Paulo, in a jurisdiction outside their own. The central question is whether Adriano can
enforce a judgment obtained in a foreign court or if he must initiate fresh proceedings in the
defendant's jurisdiction. This matter hinges on the principles of international law, comity, and the
specific legal frameworks governing the recognition and enforcement of foreign judgments. The
enforceability of foreign judgments depends on various factors, including jurisdictional competence,
reciprocity between jurisdictions, and adherence to public policy. This legal advice will explore the
relevant considerations in detail, provide clarity on Adriano's options, and offer practical steps to
address the issue, supported by case law and legal principles.

Legal Advice

1. Recognition and Enforcement of Foreign Judgments

For Adriano to enforce a foreign judgment against Paulo, the judgment must first be recognized by
the courts in the jurisdiction where enforcement is sought. The recognition and enforcement of
foreign judgments are governed by:
Domestic Laws : Many countries have specific statutes or common law principles that outline the
conditions under which foreign judgments can be enforced. For example, in the United States, the
Uniform Foreign-Country Money Judgments Recognition Act provides a framework for enforcing
foreign judgments1
.
International Treaties : Some jurisdictions are party to international treaties or conventions that
facilitate the enforcement of foreign judgments. Examples include the Hague Convention on the
Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (2019) and the
Brussels I Regulation (recast) in the European Union.2

In the absence of a treaty, enforcement depends on the principle of comity, where courts recognize
foreign judgments as a matter of mutual respect and cooperation between jurisdictions.3

2. Jurisdictional Requirements
A key factor in enforcing a foreign judgment is whether the foreign court had proper jurisdiction
over Paulo. Courts in the enforcing jurisdiction will assess whether:
- Paulo voluntarily submitted to the jurisdiction of the foreign court (e.g., by agreeing to a forum
selection clause in a contract).
- Paulo was domiciled, resident, or had sufficient ties to the foreign jurisdiction (e.g., conducting
business or owning assets there).
- The foreign court's exercise of jurisdiction was consistent with the principles of fairness and due
process.

If the foreign court lacked jurisdiction, the judgment will likely not be enforceable. For example, in
Dallah Real Estate and Tourism Holding Company v. The Ministry of Religious Affairs, Government of
Pakistan* [2010] UKSC 46, the UK Supreme Court refused to enforce an arbitration award because
the defendant had not consented to the jurisdiction of the arbitral tribunal.4

1
- New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958)
2
Hague Conference on Private International Law. (2019). Hague Convention on the Recognition and
Enforcement of Foreign Judgments in Civil or Commercial Matters.
3
Ibid
3. Finality and Conclusiveness of the Judgment
The foreign judgment must be final and conclusive in the jurisdiction where it was issued. This
means that the judgment must not be subject to appeal or further review. Interim or provisional
orders are generally not enforceable.

4. Public Policy Considerations

Even if the foreign judgment meets jurisdictional and procedural requirements, it may still be
unenforceable if it violates the public policy of the enforcing jurisdiction. For example:
- Judgments obtained through fraud or corruption.
- Judgments that conflict with fundamental principles of justice or human rights.
- Judgments that are punitive or penal in nature (e.g., excessive damages awards).

In *Yukos Capital S.A.R.L. v. OJSC Rosneft Oil Company* [2012] EWCA Civ 855, the English Court of
Appeal emphasized that public policy considerations play a significant role in determining the
enforceability of foreign judgments.5

5. Reciprocity
Some jurisdictions require reciprocity for the enforcement of foreign judgments. This means that
the foreign jurisdiction must also recognize and enforce judgments from the enforcing jurisdiction.
For example, in India, the enforcement of foreign judgments is governed by the principle of
reciprocity under Section 44A of the Civil Procedure Code.6

6. Instituting Fresh Proceedings

If the foreign judgment is not enforceable, Adriano may need to initiate fresh proceedings in the
jurisdiction where Paulo resides or holds assets. This could involve re-litigating the matter, which may
be time-consuming and costly. However, in some cases, the foreign judgment may be used as
evidence in the new proceedings to support Adriano's claim.7

7. Practical Steps for Adriano

- Determine Enforceability : Adriano should consult legal experts in both the foreign jurisdiction
and the jurisdiction where enforcement is sought to assess whether the judgment meets the
necessary criteria8.
- Check for Treaties or Agreements : Adriano should determine whether the two jurisdictions have
a reciprocal enforcement agreement or are parties to an international treaty.
- Gather Documentation : Adriano should ensure that all relevant documentation, including the
foreign judgment, evidence of jurisdiction, and proof of service, is properly prepared and translated
(if necessary).9

Consider Alternative Dispute Resolution : If enforcement is unlikely, Adriano may explore alternative
dispute resolution mechanisms, such as arbitration, which often have more streamlined enforcement
procedures under the New York Convention.

4
Dallah Real Estate and Tourism Holding Company v. The Ministry of Religious Affairs, Government of
Pakistan[2010] UKSC 46, the UK Supreme Court
5
Yukos Capital S.A.R.L. v. OJSC Rosneft Oil Company* [2012] EWCA Civ 855, the English Court
6
Section 44A of the Civil Procedure Code.
7
Briggs, A. (2013). The Conflict of Laws. 3rd Edition. Oxford University Press

8
Ibid
9
Ibid
 Conclusion
Adriano's ability to enforce a foreign judgment against Paulo depends on several factors, including
the foreign court's jurisdiction, the finality of the judgment, and the public policy of the enforcing
jurisdiction. If the judgment is not enforceable, Adriano may need to initiate fresh proceedings in the
appropriate forum. To navigate this complex area of law, Adriano should seek legal advice in both
jurisdictions and consider practical steps to maximize the chances of successful enforcement. The
principles of comity, reciprocity, and fairness underpin the recognition and enforcement of foreign
judgments, and these principles must be carefully balanced in each case.
Bibliography
- *Dallah Real Estate and Tourism Holding Company v. The Ministry of Religious Affairs, Government
of Pakistan* [2010] UKSC 46.
- *Yukos Capital S.A.R.L. v. OJSC Rosneft Oil Company* [2012] EWCA Civ 855.
- Hague Conference on Private International Law. (2019). *Hague Convention on the Recognition and
Enforcement of Foreign Judgments in Civil or Commercial Matters*.
- Uniform Foreign-Country Money Judgments Recognition Act (United States).
- Civil Procedure Code, Section 44A (India).
- Dicey, Morris & Collins. (2012). *The Conflict of Laws*. 15th Edition. Sweet & Maxwell.
- Briggs, A. (2013). *The Conflict of Laws*. 3rd Edition. Oxford University Press.
- New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958).
-Hague Conference on Private International Law. (2019). Hague
Convention on the Recognition and Enforcement of Foreign Judgments in
Civil or Commercial Matters.
-Dicey, Morris & Collins. (2012). The Conflict of Laws. 15th Edition. Sweet
& Maxwell.
-Briggs, A. (2013). The Conflict of Laws. 3rd Edition. Oxford University
Press