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

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
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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
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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.
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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
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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;
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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
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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
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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;
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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
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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
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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.
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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
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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
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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
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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.
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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
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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
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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.
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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:
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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
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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
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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
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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
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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,
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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
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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:
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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
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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
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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
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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
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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.
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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