Foreign Judgments at Common Law: Rethinking the Enforcement Rules

Dalhousie Law Journal, Vol. 28, p. 163, 2005

36 Pages Posted: 27 Sep 2009 Last revised: 8 Oct 2009

See all articles by Tanya J. Monestier

Tanya J. Monestier

Roger Williams University School of Law

Date Written: September 27, 2005

Abstract

England and Canada have adopted divergent approaches to the enforcement of foreign civil and commercial judgments. An English court will only enforce a foreign judgment where the defendant submitted to the jurisdiction of the foreign court, or was present in the foreign jurisdiction when served with process. This position, while protecting domestic defendants, is outdated and does little to further the objectives underpinning judgment enforcement. Canadian courts, by contrast, have been far more liberal than their English counterparts, enforcing foreign judgments in cases where there is a “real and substantial connection” between the dispute and the judgment forum. While this approach fully advances the objectives of judgment enforcement, it leaves Canadian defendants exposed to the perils and uncertainties of international litigation. An alternative to either of these positions would be to adopt a variant of the ‘real and substantial connection’ test to govern the issue of foreign judgment recognition at common law. Under this framework, questions of how fair it is to require a domestic defendant to litigate in a foreign forum would be encapsulated within the jurisdictional inquiry itself. The judgment court would only be perceived as jurisdictionally competent (and its judgment therefore enforceable) when, considering the totality of the circumstances and the additional burdens imposed by international litigation, it is fair and reasonable to expect the defendant to litigate the claim in the foreign jurisdiction. This test underscores the fact that enforceability concerns are not the same domestically as they are internationally, and that a test which is to promote the freer movement of judgments must also encompass minimum fairness safeguards.

Suggested Citation

Monestier, Tanya J., Foreign Judgments at Common Law: Rethinking the Enforcement Rules (September 27, 2005). Dalhousie Law Journal, Vol. 28, p. 163, 2005. Available at SSRN: https://ssrn.com/abstract=1479254

Tanya J. Monestier (Contact Author)

Roger Williams University School of Law ( email )

10 Metacom Avenue
Bristol, RI 02809
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
257
rank
116,729
Abstract Views
896
PlumX Metrics
!

Under construction: SSRN citations will be offline until July when we will launch a brand new and improved citations service, check here for more details.

For more information