Recognition and Enforcement of Foreign Judgments
| Author | Stephen G.A. Pitel; Nicholas S. Rafferty |
| Pages | 162-206 |
CHAPTER
8
RECOGNITION
AND
ENFORCEMENT
OF
FOREIGN
JUDGMENTS
A.
INTRODUCTION
The
third
central
question
in
the
conflict
of
laws
is
whether
a
court
will
recognize
and
enforce
a
decision
of
a
court
in
another
jurisdiction.
The
previous
three
chapters
have
focused
on
the
first
central
question,
that
of
jurisdiction.
So
it
may
seem
odd
to
now
take
up
the
third
question
rather
than
the
second.
However,
as
will
be
developed,
there
are
strong
connections
between
the
question
of
jurisdiction
and
the
question
of
recognition
and
enforcement.
They
have
more
in
common
with
each
other
than
either
does
with
the
second
central
question,
choice
of
law.
As
a
result,
it
makes
sense
to
examine
these
topics
in
this
order.
Under
the
principle
of
territorial
sovereignty,
the
judgment
of
a
court
has
effect
only
inside
the
territory
within
which
the
court
is
lo
cated.
Consider
an
Ontario
court
order
requiring
a
defendant
to
pay
money.
The
plaintiff
is
entitled
to
enforce
that
order
against
the
de
fendant
in
Ontario.
For
example,
the
defendant
’
s
assets
in
Ontario
can
be
seized
by
the
sheriff
and
sold,
and
the
proceeds
paid
to
the
plaintiff.
This
makes
eminent
sense;
the
order
would
be
of
little
value
otherwise.
But
that
same
order
cannot
simply
be
applied
in
the
same
way
to
the
de
fendant
’
s
assets
outside
Ontario.
If
the
defendant
has
assets
in
Alberta
or
New
York,
the
plaintiff
cannot
present
the
Ontario
order
to
the
local
sheriff
in
the
foreign
jurisdiction
and
expect
him
or
her
to
act
on
it.
The
Ontario
order
is
not
operative
beyond
Ontario
’
s
borders.
Modern
commerce
makes
it
imperative
that
these
territorial
limita
tions
are
overcome.
While
a
defendant
may
have
sufficient
assets
to
satis
162
Recognition
and
Enforcement
of
Foreign
Judgments
163
fy
a
plaintiffs
claim,
those
assets
may
be
spread
across
several
different
jurisdictions.
It
would
be
very
inefficient
to
require
the
plaintiff
to
bring
separate
substantive
proceedings
against
the
defendant
in
each
such
juris
diction.
In
addition,
it
is
increasingly
easy
for
certain
types
of
assets
to
be
moved
across
borders.
Even
if
the
defendant
has
sufficient
assets
in
the
forum
where
the
dispute
is
to
be
resolved,
there
is
often
no
guarantee
those
assets
will
remain
there
at
the
conclusion
of
the
litigation.
It
is
there
fore
important
that
the
eventual
judgment
be
useful
outside
the
forum.
Similar
considerations
arise
for
injunctive
relief.
If
the
plaintiff
seeks
an
injunction
against
a
defendant
who
is
not
present
in
the
forum
and
who
has
no
assets
there,
then
the
injunction
could
end
up
being
of
little
value.
The
plaintiff
will
not
be
able,
in
the
forum,
to
enforce
the
injunction
against
either
the
person
or
the
assets
of
the
defendant.
As
with
money
judgments,
it
is
important
to
consider
whether
the
judg
ment
could
become
enforceable
beyond
the
forum.
The
main
way
the
limitations
of
territorial
sovereignty
have
been
overcome
is
through
jurisdictions
accepting
that
when
certain
condi
tions
are
satisfied
they
will
recognize
and
enforce
the
judgment
of
a
foreign
court.
This
is
a
sovereignty
compromise:
a
foreign
court
’
s
order
ends
up
having
an
extraterritorial
effect,
but
each
jurisdiction
gets
to
establish
its
own
conditions
for
when
this
will
occur.
At
the
outset
we
should
distinguish
between
recognition
and
en
forcement,
even
though
the
two
terms
are
often
loosely
used
inter
changeably.
Recognition
is
the
first
step:
it
is
the
process
by
which
the
court
accepts
the
validity
of
the
decision
on
its
merits
and
that
it
has
resolved
the
issue
between
the
parties.
Enforcement
is
the
second
step:
it
involves
lending
assistance
to
a
party
to
follow
through
on
the
judgment.
The
seizure
and
sale
process,
for
example,
is
an
enforcement
mechanism.
A
decision
must
be
recognized
before
it
can
be
enforced.
However,
not
all
decisions
need
to
be
enforced:
recognition
is
often
enough.
Sometimes
the
defendant
might
pay
the
plaintiff
once
the
de
cision
is
recognized
in
a
jurisdiction
where
he
or
she
has
assets,
so
the
plaintiff
does
not
need
to
move
on
to
enforcement.
In
quite
a
different
type
of
case,
the
defendant
might
be
seeking
to
have
the
court
recog
nize
a
foreign
judgment
in
which
the
plaintiff
’
s
claim
was
dismissed.
The
defendant
seeks
to
use
this
earlier
judgment
as
the
basis
for
a
de
fence
of
res
judicata
or
issue
estoppel.
If
the
court
recognizes
the
for
eign
judgment,
the
defendant
does
not
need
to
have
it
enforced:
he
or
she
simply
relies
on
it
in
support
of
these
defences.
1
1
See,
for
example,
Armoyan
v
Armoyan,
at
para
355.
See
also
the
use
made
of
a
foreign
judgment
by
the
plaintiff
in
Monteiro
v
Toronto
Dominion
Bank
(2008),
89
OR
(3d)
565
(CA).
164
CONFLICT
OF
LAWS
B.
THE
TEST
FOR
RECOGNITION
AND
ENFORCEMENT
The
common
law
gives
the
plaintiff
who
has
obtained
a
foreign
judg
ment
two
options.
First,
the
plaintiff
can
bring
an
action
on
the
foreign
judgment.
While
this
is
a
separate
action,
requiring
all
the
procedural
steps
of
an
action,
it
is
based
not
on
the
original
claim
the
plaintiff
had
pursued
against
the
defendant
but
rather
on
the
obligation
created
by
the
foreign
judgment,
typically
a
debt
obligation.
2
This
remains
the
standard
common
law
method
for
having
a
foreign
judgment
recog
nized
and
enforced.
3
The
enforcement
proceedings
typically
follow
an
accelerated
procedure
available
for
cases
where
facts
are
not
in
dispute,
such
as
an
application
or
a
motion
for
summary
judgment.
4
The
second
option
is
for
the
plaintiff
to
bring
an
action
on
the
ori
ginal
cause
of
action.
This
has
nothing
to
do
with
recognition
and
en
forcement
of
the
foreign
judgment.
Rather,
the
plaintiff
simply
sues
the
defendant
again
on
the
same
cause
of
action.
The
doctrine
of
merger
pro
vides
that
once
a
plaintiff
has
been
successful
in
an
action
against
the
de
fendant,
the
original
cause
of
action
merges
into
the
resulting
judgment.
It
prevents
the
plaintiff
from
suing
the
defendant
again.
But
the
doctrine
of
merger
does
not
apply
to
foreign
judgments,
so
that
it
is
always
open
for
the
successful
plaintiff
to
re-litigate
the
original
case
in
a
different
forum.
Although
available,
this
option
is
very
unpopular.
It
raises
limit
ation-period
problems,
is
time-consuming
and
expensive,
and
raises
the
possibility
of
inconsistent
results
on
the
same
underlying
facts.
In
an
action
on
a
foreign
judgment,
the
test
for
whether
a
court
will
recognize
and
enforce
the
foreign
judgment
has
three
requirements.
First,
the
judgment
must
be
final.
Second,
the
court
granting
the
judg
ment
must
have
had
jurisdiction
on
a
particular
basis.
This
sometimes
called
jurisdiction
in
the
international
sense
or
jurisdictional
compe
tence.
Third,
for
enforcement,
the
judgment
must
be
for
a
fixed
sum
of
money
and
not
a
tax
or
penalty
or
must
be
a
non-monetary
judgment
the
court
is
willing
to
enforce.
Each
of
these
requirements
will
be
fur
ther
explained,
after
a
brief
discussion
of
the
issue
of
jurisdiction.
2
See
Schibsby
v
Westenholz
(1870),
LR
6
QB
155.
3
Nouvion
v
Freeman
(1889),
15
App
Cas
1
(HL)
[Nouvion],
relying
on
Williams
v
Jones
(1845),
13
M
&
W
628
at
633.
4
In
Ontario,
see
Rules
of
Civil
Procedure,
RRO
1990,
Reg
194,
rr
14.05
and
20
[Ontario
Rules].
While
some
cases
may
be
sufficiently
complex
that
a
summary
process
is
not
appropriate,
the
suggestion,
seen
in
decisions
such
as
Noel
et
As-
sociés,
SENCRL
v
Sincennes,
3770,
that
as
a
matter
of
law
recognition
and
enforcement
must
be
by
way
of
action
and
not
application
cannot
be
correct.
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