Report No. 65

VI. Some Aspects of Recognition

1.30. Recognition and enforcement.-

For understanding the effect of recognition, it is desirable to refer to a few theoretical aspects thereof. A foreign judgment may be recognised by being enforced (immediately or upon suit), or by being treated as "res judicata".1

Recognition of a judgment, by treating it as res judicata, may consist of: (a) refusal to re-try the original cause of action at the instance of the plaintiff, by virtue of its merger in the foreign judgment for the plaintiff: (he can pray only for execution); (b) refusal to re-try the original cause of action at the instance of the plaintiff, by virtue of a bar established by the foreign judgment; (c) refusal by virtue of a collateral estoppel2 to re-try questions of fact or law litigated in the suit which has resulted in the foreign judgment; and (d) acceptance of a status declared by the foreign judgment.

Refusal under (a) and (b) above is based on that aspect of res judicata which is often described as "merger". Refusal under (c) relates, not to the entire cause of action, but to the re-litigation of particular questions. While categories (a), (b) and

(c) are operative only between the parties and their privies, category (d) applies in relation lo strangers as well.

1. See Scott Collateral Estoppel by Judgment, (1942) Harvard Law Review 1.

2. Note, (1948) 57 Yale LJ 339.