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Report No. 65

V. Problem of Recognition of Foreign Judgments

1.22. Problem of recognition-essential nature.-

In order that the problem of recognition may suitably dealt with in the light of the general observations made above, it is desirable to put the problem in a proper perspective. The problem of recognition is in its essence, one of attributing validity to a foreign judicial act. We shall have occasion to deal also with extra-judicial divorces obtained in foreign countries but, principally, the matter will be discussed with reference to judicial determinations of foreign courts.

The problem is not totally new, and the issues that arise for our discussion are also not unknown. But it may be stated that because of the increase in mobility of individuals, and because of the variety of legal systems which an individual may encounter by reason of his crossing the boundaries of his State, the frequency of the issues arising has increased in modern times.

1.23. History of recognition of judgments-civil law.-

Even in the civil law system1 with its many independent territorial units, the problem of recognition of foreign judgments has been of comparatively recent origin.

(a) The classical Roman practice of freely executing Roman judgments anywhere within the provinces of the realm,2 in apparently carried over into the ideological entity of the Christian Empire of the Middle Ages. The fact that there existed in the Middle Ages among the Christian Peoples a Jus commune resting upon Roman Law, made the enforcement of judgments appear as a very natural precept of justice and of mutual assistance3 This practice is fortified by the natural and international law concepts of the 16th and 17th centuries.4

(b) Even when the rise of the dogma of sovereignty5 came to arouse misgivings concerning the recognition of foreign judgments, respect for the susceptibilities of the foreign sovereign continued, to preclude re-examination of his decrees based on his accepted "jurisdiction". "To undertake to examine the justice of a definitive sentence, is to attack the jurisdiction of him who has passed it". This is what Vattel Wrote.6-7

Only with the later growth of nationalism was this attitude of international courtesy (often rationalised by references to tacit agreement or concert), turned into a "bars comity", which left to each state complete freedom in scrutinising the findings of foreign courts.

1. Bhrenswieg Conflict of Laws, (1962), p. 16.

2. Digest, De re judicata, 42, 1, 15, 1 (Ulpianus).

3. Moni Das Internationale - Zivil prozessecht aut Grundder - Theurie Casetagobung and Praxix, (1906) 13, cited by Bhrenswieg Conflict of Laws, (1962), p. 16.

4. See Nussbaum A Concise History of the Law of Nations, (1947), p. 69.

5. Nussbaum A Concise History of the Law of Nations, (1947), p. 56.

6. Vattel Law of Nations or Principles of the Law of Nature - Applied to the Conduct and Affairs of Nations and Sovereigns, (tranal, 1760) Vol. 1, 148 (Book II, Chapter VII, section 84) cited by Bhrenswieg, (1962), p. 16.

7. Vattel, cited by Bhrenswieg Conflict of Laws, (1962), p. 16.

1.24. Effect of the approach in the nature of "comity".-

The last mentioned attitude (theory of comity-i.e., discretion) is reflected, in present-day European law and its derivatives, where nearly all divergent opinions and attitudes have survived, ranging from a flat denial or recognition by insistence upon a trial de novo: through a law granting recognition on condition of reciprocity to a nearly unconditional enforcement of foreign judgments.1

French attitude to foreign judgments2 has been traced back to Article 121 of the so-called Code Michant, an Ordinance of 1629, which provided that any foreign judgment recovered against French citizens may be litigated anew.3

(a) Jonhson Foreign Judgments in Quebec, (1975) 35 Can Bar Rev 911;

(b) Bhrenswieg Conflict of Laws, (1962), p. 17.

1. (a) Lorenson The Enforcement of American Judgments Abroad, (1919) 20 Yale LJ 188;

(b) Kennedy Recognition of judgments in Personne - The meaning of Reciprocity, (1957) 35 Can B Rev 123.

2. Cf. Hilton v. Gnyot, (1895) 159 US 173.

3. see-

1.25. Problem a human one.-

The problems of conflict of jurisdiction, particularly in relation to matrimonial matters, is essentially a human one. Whatever the law, whatever the theology, whatever the social order, the same kind of problem arises between human, beings of opposite sexes at all times and in all countries. "Human beings make the problems law-makers adumbrate the rules applicable to the problems: lawyers are merely the technicians trying, not always successfully, to apply the rules to the solution of their clients' immediate difficulties, so it was and so it will ever be."1

1. Cf. Joseph Jackson Review of William Hay's Lectures on Marriage, (1969) 85 LQR 291.

1.26. Problem of conflict inherent in co-existence of various legal orders.-

The problem of conflict is inherent in the co-existence of more than one legal order. So long as the courts of two or more States may claim jurisdiction over the same case and the laws are different, the problem of conflict is bound to arise. In dealing with this problem, the court of the country concerned has to determine which law is to be applied, i.e., its own law or the law of any other country. Where the matter is res intera, the inquiry is as to which system of law should be applied. Where, however, there is already a judgment of a foreign court, this inquiry must be supplemented by an inquiry as to whether the foreign judgment should be recognised; and, if so, to what extent and in what respects and subject to what conditions-substantive or procedural.

1.27. In a Linton v. Guderian, AIR 1929 Cal 599 (601). Raukin C.J. made the following observations which lucidly bring out this aspect:

"It is manifest that, so long as the matrimonial law of different countries vary widely, as they do, it is necessary that for every marriage there should be ascertainable forum for the purpose of adjudicating upon the question of divorce. All countries do not take the same view of international law. But the view of international law which obtains in England in these Courts is that the power to grant divorce rests with the Court of the country in which the parties are domiciled at the date of the petition. Other countries may take different views of international law in that respect. But it is well settled now that that is the view upon which the English law proceeds and that view, for all purposes of this Court, is the law without exception or qualification by the command of the legislator."

1.28. Complexity of the problem.-

Besides being inherent in the co-existence of legal orders, the problem of conflict is a complex one, as is illustrated by Breen's case. The question before Karminski, J., in Breen v. Breen, 1964 Probate 144, was whether an Irish court would recognise an English decree of divorce.1 Under Article 41, section 3(3), of the 1937 Constitution of Ireland: "No person whose marriage has been dissolved under the civil law of any other state but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within the jurisdiction during the life-time of the other party to the marriage so dissolved."

This provision was invoked by the wife petitioner, who sought annulment of her marriage with the respondent at a registrar's office in Dublin in 1953, on the ground that her husband's former wife, when he married in 1944, was still alive. The husband stated that his previous marriage had been dissolved by the High Court, he being domiciled in England at all material times. The wife's reply to that was that English decree was not recognised by the law in Eire, and consequently the marriage in 1953 was bigamous. Karminski, J., observed, in the course of his judgment, that there was no question here of any difficulty in the form of the marriage ceremony under Irish law, and it had not been suggested that either the wife or the registrar who performed the ceremony was deceived in any way as to the status of the husband.

The wife was well aware of the husband's earlier marriage and of its dissolution in England, and the husband was described in the marriage certificate as "divorced". His Lordship recalled that a difference of opinion on the point in question had been expressed by Maguire, C.J., and Moore J., in the Irish Supreme Court in Mayo-Perrott v. Marto-Perrott, 1958 IR 336. The former was of opinion that sub-section (3) said as plainly as it could be said that a marriage dissolved under the law of another state remained in the eyes of the law of Eire a subsisting valid marriage.

The latter, while recognising that the Cireachtas could pass a law that no dissolution of marriage, wherever effected even where the parties were domiciled in the country of the court pronouncing the decree, was to be effective to dissolve the pre-existing marriage, was of opinion that it had not done so, and the law existing when the constitution was passed was that a divorce effected by a foreign court, of persons domiciled within its jurisdiction, was valid in Eire. Karminski, J., thought it was highly unlikely that the constitution intended, without clear words, to reverse a practically universal rule of private international law.

He could find nothing in Article 41 to suggest that the courts, in the absence of further legislation, were entitled to do, otherwise than regard as valid and effectual a divorce granted by the courts of a foreign country where the parties were domiciled. Accordingly, he found that the law of Eire recognised the validity of the decree of dissolution pronounced by the English court dissolving the marriage between the husband and his first wife, and also recognised the validity of the marriage celebrated in Eire between him and the petitioner. The wife's petition was dismissed accordingly.

1. See note, "Conflict of Laws-Recognition of English Divorce", in (1961) 232 Law Times 15 (16).

1.29. To cite one more example of the complexity of the matter in Mayfield v. Mayfield, (1969) 2 WLN 1002 the husband, a domiciled Englishman, had brought proceedings for divorce in Germany where his wife, a German national, was resident. After the German court had granted him a divorce, he brought a petition in the English courts for a declaration that the German decree was valid and should be recognised in English law. We are not concerned with the actual decision in the case, but the case is mentioned here to illustrate how occasion may arise for obtaining a declaration.

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