Juxta-Positioning the Effectiveness of the Common Law and Council Regulation (EC) No. 44/2001 (the Regulation) on the Recognition and Enforcement of Foreign Judgments in the United Kingdom (UK)

Abstract

Under the principle of territorial sovereignty, a judgment delivered in one country cannot be enforced in another country, unless there is an international agreement to that effect. The common law, under some specified circumstances, permits the enforcement of foreign judgments within certain parameters. Under the doctrine of obligation, where a foreign court of competent jurisdiction has adjudicated that a sum of money is due from one person to another, the liability to pay that sum becomes a legal obligation that may be enforced in the UK by an action of debt, thus Russell v Smith. The doctrine of obligation came under intense criticism due to the fact that it failed to reveal the policy considerations underpinning the rules on recognition and enforcement of foreign judgments in the UK. The Brussels I Regulation on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters was introduced as a result of the shortfalls of the common law. In light of the above, this study was undertaken, in order to unearth the effectiveness or otherwise of the enforcement of foreign judgments under the common law, the Administration of Justice Act 1920, and the Brussels I Regulation (the Regulation) in the UK. The paper argues that enforcement under the Regulation is less complicated and accords the claimant much wider options of instituting enforcement proceedings in an enhanced forum (all Contracting State parties) than the common law and the Administration of Justice Act 1920.

Keywords: Common Law, Enforcement, Foreign Judgments, Jurisdiction, Fraud, Defences, Arbitration, European Convention on Human Rights, Administration of Justice Act 1920, Civil Jurisdiction and Judgments Act 1982, Brussels I Regulation