Jurisdiction and Enforcement of

Foreign Judgements
 JURISDICTION:
INTERNATIONAL TRADE
 Overview
• Settlement of disputes in municipal/national courts
• Jurisdiction in civil cases (NOT Criminal)
• Immunities of states from the jurisdiction of municipal
courts
• Choosing the governing law
• Refusal to exercise jurisdiction
• Opposition to the exercise of jurisdiction
• Recognition of foreign judgments
 Settlement of Disputes in
Municipal/National Courts
• Under International Law, the jurisdiction of municipal
courts to try an international dispute is limited.
• The ability of a party to escape the jurisdiction of a court
is known as immunity.
• Natural and juridical persons have few immunities
from the powers of a municipal powers.
• State agencies that carry out commercial activities
(such as national airlines or national shipping lines)
are now commonly treated as having no immunity.
(engaging in business-like activities)
 Jurisdiction in Civil Cases
In civil suits, municipal courts can extend their jurisdiction
over disputes between parties who appear within the
territory of the forum state.
• Such jurisdiction is based on either in personam or in rem
principles.
 Jurisdiction over Persons
In personam jurisdiction is the power of a court to
decide matters relating to a natural or juridical person
physically present within the forum state.
Consent to personal jurisdiction can come about in any of the
following ways:
◦ By the individual appearing in court after a suit has commenced,
◦ By a party agreeing to the personal jurisdiction of a particular
court in a forum selection clause contained in the contract, or
◦ By a party appointing an agent within a state to receive service
of process on his behalf.

Foreign entities are amenable to jurisdiction of another

state’s municipal courts only if:
They are recognized in law as juridical persons, and
They give their consent.
 Bumper Development Corp. Ltd. v. Commissioner of
Police of the Metropolis and Others
•In 1976, an Indian labourer named Ramamoorthi , who lived near the site of a ruined
Hindu Temple, was excavating sand when his spade struck a metal objects.
•The object was part of a series of bronze Hindu idols from the Chola period.
•Ramamoorthi realized that he had discovered something of value, and he sold one of
the idol, Pathur Nata, to a dealer in religious object.
•At about the time that these sales were occurring, state officials in Tamil Nadu
learned of them and began criminal investigations.
•In June 1982, Bumper purchased in good faith a Siva Nataraja from a dealer named
Sherrier, who had produced a false provenance of the idol for the purpose of making
the sale.
•Bumper then sent the idol to the British Museum for appraisal and conservation.
While at the museum, it was seized by the London Metropolitan police in compliance
with the British government’s policy of returning stolen religious artefacts to their
owner.
 Continued...
•Bumper then brought the suit against the commissioner of police and two of his
officers seeking return of the Siva Nataraja.
•At the trial, the Union of India, the state of Tamil Nadu and the temple itself
intervened in the case as they claimed that the Siva Nataraja was one and the same as
the Pathur Nataraja.
•Ian Kennedy J held that the evidence of Ramamoorthi’s exploits as well as expert
metallurgical, geological, and entomological evidence, proved that the Pathur Nataraja
and Siva Nataraja were one and the same.
•The judge also held that the temple at Pathur had superior title to the Nataraja and they
were entitled to possession of the idol.
•The Court of Appeal uphold Kennedy J’s decision.
•It then held that the law of state of Tamil Nadu regarded the temple at Pathur as a
juridical entity that possessed the right to sue and be sued and to own and possess
property.
•If other countries recognize an institution (such as a church or a temple) as a juridical
entity, it is proper for the English courts to accept them as parties is suits brought
before them.
 Shell v. R. W. Sturge, Ltd.
•Plaintiffs, investor in the Society of Lloyd’s, brought this diversity action against the
defendants seeking to rescind their investment contracts under Ohio securities law.
•Defendants filed a motion to dismiss for improper venue on the grounds that forum
selection clauses in the investment contracts gave exclusive jurisdiction to the English
courts.
•The District Court granted the motion to dismiss and plaintiffs, now appealed,
arguing that the forum selection clauses deprive them of their substantive rights under
the Ohio securities law and that Ohio public policy outweighs the policies served by
enforcing the forum selection forums.
•It was held that a forum selection clause in an international agreement should be
enforced unless the plaintiffs can clearly show that (1) enforcement would be
unreasonable or unjust or (2) the clause was invalid for such reasons as fraud and
overreaching.
•Forum selection clauses are presumed to be valid because the provide for orderliness
and predictability.
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 Jurisdiction over Property (In Rem)
• In rem jurisdiction is the power of a court to determine the
ownership rights of persons as to property located within
the forum state.
• For example, the ownership of real property would be
determined by an in rem proceeding, as would the
ownership of personal property physically within the state
(such as a ship arrested in a port within the forum state).
 Immunities of States from the Jurisdiction
of Municipal Courts
• Sovereign states are immune from the jurisdiction of
foreign courts:
• When they engage in activities anywhere in the world that are
unique to sovereigns, and
• When they act officially within their own territory.
• The first condition comes under the rubric of sovereign or
state immunity, the second under the title of act of state.
 Sovereign or State Immunity
• It is a doctrine that domestic courts must decline to hear
cases against foreign sovereigns out of deference to their
roles as sovereigns.
• Foreign sovereigns today include all of the officials of
government.
 Scope of Sovereign Immunity
Absolute sovereign immunity.
◦ The traditional rule (in effect until the 1950s).
◦ A state is absolutely immune and cannot be brought before a foreign court no
matter what activities it is involved in or what injuries it may cause.
◦ States need immunity when they are only involved in tax collection, law
enforcement, and national defense.
Restrictive sovereign immunity.
◦ Prevalent rule in world today.
◦ A state is immune from suit in cases involving injuries that are the result of
its governmental actions.
◦ A state is not immune when the injuries result from a purely commercial or
nongovernmental activity.
Effect of waiver of sovereign immunity by a state:
◦ Waivers by states are valid.
◦ Waivers may be:
1. An express waiver at the time the suit is brought.
2. A waiver made in advance in a contract clause.
3. An implicit waiver made by bringing or participating in a suit.
◦ The waiver must be knowingly made.
 Abbott v. Republic of South Africa

• The plaintiff, Abbott, a foreign national who had been fired from her
job at the South African Embassy in Madrid, Spain, won a judgment
granting her compensation for back salary.
• The plaintiff sought to execute the judgment against Embassy
properties, including its local bank accounts.
• South Africa appealed and an intermediate court held that its bank
accounts were absolutely immune from execution.
• It dismissed the plaintiff’s request for the enforcement of her
judgment and she appealed.
• The Supreme Court granted her appeal, holding that South Africa
did not enjoy immunity from jurisdiction in the proceedings, and
remanded the case to the Labour Court for a decision on the merits.
• In 1990, the plaintiff obtained a judgment in her favour, but on
appeal the High Court of Madrid held that South Africa was entitled
to absolute immunity from execution.
• Plaintiff then brought this appeal in the Constitutional Court
challenging that decision.
Continued...
ISSUE: Can a court enforce a judgment against property
belonging to a foreign state?
•The Vienna Convention on Diplomatic Relations and the
Vienna Convention on Consular Relations provide immunity
for foreign state property used for governmental activities but
not for property used for commercial activities.
•The Constitutional Court ordered that the proceedings be
reopened before the Labour Court in order that enforcement
measures be pursued against any other assets of the defendant
state not subject to immunity from execution.
 Act of State Doctrine
• It is a doctrine that the act of a government within the
boundaries of its own territory is not subject to judicial
scrutiny in a foreign municipal court.
• A municipal court will decline to hear a dispute based on
such acts if to do so would interfere with the conduct of
the forum state’s foreign policy.
• Case: International Association of Machinists and
Aerospace Workers v. OPEC
REGINA V. BARTLE (EX PARTE PINOCHET)
• Spain seeks to extradite former Chilean President Pinochet to stand
trial for crimes of torture, murder, and the unexplained
disappearances of Spanish citizens committed (mainly) in Chile.
• Issue:
• Did Pinochet commit extraditable crimes?
• Is Pinochet immune from trial for committing those crimes?
 Choosing the Governing Law
Reasons municipal courts apply laws other than their own:
1. Fairness: Individuals take actions in a particular place. To later
have a court in another country apply different laws would
discourage international exchanges of all kinds.
2. Comity: Because each state has an interest in protecting the
rights of its subjects, and only by respecting the interests of
foreign subjects can a state expect similar treatment for its
subjects in other states.
3. This is a sui generis juridical right.

Courts use “choice of law” or “conflict of law” rules to determine if

they should apply their own laws or the laws of another state in
settling civil disputes.
• This involves a two-step procedure:
If the parties to a dispute have agreed to the application of the
laws of a particular country, the court should apply those
laws.
 Continued...
◦ If the parties have not agreed as to which laws should
apply (either expressly or impliedly), then the court should
determine for itself which laws it should apply by:
1. Following statutory dictates.
2. Determining which state has the most significant
relationship with the dispute.
3. In a few jurisdictions: Determining which state has
the greatest interest in the outcome of the case.
 Agreement of the Parties
•Most commonly arises in contract cases.
•The parties may agree in advance as to what law should
apply in a “choice of law clause.”
Validity of these clauses:
1. Valid if freely entered into.
◦ No requirement of a factual connection with the
country whose legal system they have adopted.
2. The agreement of the parties can be made in
statements to a court.
3. The intent of the parties may be inferred.
 Statutory Choice of Law Provisions
Statutory choice of law provisions are commonly found in civil law
countries in:
1. Statutory codes (most commonly).
2. International treaties (occasionally).
Common basis of these provisions is that a court is to apply the law of
the state where the rights of the parties to a suit vested (vesting of
rights doctrine)
Rules for determining vesting.
1. The general case: The law of the place where the act occurred
shall govern.
2. Rules for special cases relate to the subject matter of the case.
In order to determine the governing law, the courts will apply
a three-step test:
1.The law the parties are expressly designate,
2.The law the parties impliedly designate, or
3.The law which the transaction has its closest and most
real connection will apply
Bank of India v. Gobindram Naraindas
Sadhwani and Others.
Mr. & Mrs. Gobindram Sadhwani (G), residents of Hong Kong, had acted as guarantors of
a line of credit of 230 million yen that the Bank of India had provided Sadhwanis (Japan)
Ltd. (SJL).
The Bank was an Indian corporation with branches in Japan and Hong Kong. SJL was a
Japanese firm managed by Mr. G’s brother, Mr. Kishinchand Sadhwani (K).
It had drawn bills of exchange on corporations in Sri Lanka and Nigeria (run by other
brothers).
The bills were dishonored and the Bank sought payment from Mr. K as a guarantor.
Mr. K told the Bank it would have to pursue the Hong Kong guarantors, Mr. & Mrs. G.
Although the Bank had given Mr. & Mrs. G a release, it eventually brought suit against
them anyway.
Mr. & Mrs. G. then argued that the law governing their guarantee contract was Japanese
law and that Japanese law excused them from liability because the Bank had released
them as guarantors.
The Bank argued that either Indian or Hong Kong law should apply.
Issue: What law governs the guarantee contract?
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 Government Interest
Courts will make no choice of law unless asked to do so by the parties.
In such a case, they will apply the law of their own state.
If asked to make a choice of law, courts will look to see which state
has a legitimate interest in determining the outcome of the dispute.
If only the forum state has an interest, it will apply the forum state’s
law.
If both the forum state and another state or states have some legitimate
interest, then the forum’s laws should be applied, since the court
obviously understands those interests better.
If two states other than the forum state have legitimate
interests, then the court may:
1. Dismiss the case if the state in which the court is located can
use the doctrine of forum non conveniens.
2. Apply whichever law it feels is the sounder.
3. Apply the law that is most like that of the forum state.
 Reyno v. Piper Aircraft Company
In 1976, a small aircraft, owned and operated by Scottish companies,
crashed in Scotland, killing the Scottish pilot and passengers.
The aircraft was manufactured in Pennsylvania by Piper Aircraft (P),
and the propellers in Ohio by Hartzell Propeller (H).
Reyno, who became the administratrix for the decedent’s heirs, began
a wrongful death suit in California against P and H. At P and H’s
request, the case was moved to a US federal court, where the
proceeding against H was quashed.
Then, at P’s request, the case was moved to a federal court in
Pennsylvania. Both P and H then asked that the case be dismissed.
They argued that Scottish law should apply, and that under Scottish
law the plaintiff had no standing and no right to bring a wrongful death
suit under a theory of strict liability.
Issue: Should California, Pennsylvania, or Scottish law be applied?
https://www.casebriefs.com/blog/law/civil-procedure/civil-procedure-
keyed-to-friedenthal/venue-transfer-and-forum-non-conveniens-civil-
procedure-keyed-to-friedenthal-civil-procedure-law/piper-aircraft-co-
v-reyno-3/
 Refusal to Exercise Jurisdiction
Forum non conveniens – a court may refuse to exercise
its power to hear a case where it is either inconvenient
or unfair to do so.
Factors the court will consider are:
1. Private interests of the parties (i.e., the ease and cost of
access to documents and witnesses).
2. Public interest factors (i.e., the interests of the forum state,
the burden on the courts, and the notion of judicial comity).
Case: Jorge Luis Machua Gonzalez et al. v. Chrysler
Corporation et al.
 Canada Malting v. Paterson Steamships, Ltd.

After a collision between two vessels in American waters,

the Canadian owners of cargo lost in the accident sued the
Canadian owners of one of the vessels in federal district
court.
They did so in large part because US liability rules
provided more favourable substantive law than the
Canadian rules.
The district court dismissed on grounds of forum non
conveniens, and the Supreme Court affirmed that dismissal.
 Opposition to the Exercise of Jurisdiction
When a litigant brings suit in a foreign court, it sometimes
happens that the litigant’s home country is opposed to him
doing so.
The device the home country uses is known as an anti-suit
injunction.
Anti-suit injunction is an injunction issued by a litigant’s
home country forbidding the litigant from proceeding with
a suit in a foreign court.
 Airbus Industries G.I.E. v. Patel
• Four UK citizens were killed and four were injured when an
Airbus A-320 plane crashed in India.
• They, or their representatives, joined a suit in a Texas court
against Airbus Industries brought by the representatives of
three Americans killed in the crash.
• Airbus Industry then obtained a judgment from an Indian
court forbidding any injured parties from bringing suit in any
court except the Indian court.
• Airbus Industries then obtained an antisuit injunction from
the English High Court forbidding the UK citizens or their
representatives from proceeding with the suit in Texas.
• The UK citizens/representatives appealed.
• Issue: When should an anti-suit injunction be granted?
 Proving Foreign Law
Once a municipal court has decided that it is to
apply the law of a foreign state, it must determine
what that law is.
The presumption are:
1. Courts are held to know the law that applies in their
own state.
2. Courts are held to know the rules of international law.
3. Courts are assumed not to know the law of foreign
states.
The parties must prove foreign law as a fact.
 Recognition of Foreign Judgments
•Judgments awarded by a municipal court are generally enforced with little difficulty
in the forum state.
•When the court awards a judgment against a foreign defendant, the defendant may
have few assets in the forum state; or, if the defendant is itself a foreign state, many of
its assets may be immune from execution.
•As a consequence, a victorious plaintiff will often be forced to take the judgment
aboard for enforcement.
•When asked to convert a foreign judgment into an enforceable local judgment, a court
will hold a hearing and, if it believes the request is justified, issue an appropriate
order.
•Common consideration is that did the foreign court have jurisdiction before handing
down its judgment?
•Other considerations depend on the country e.g. in the Netherlands, a foreign
judgment will not be recognized unless the state is a party to a treaty requiring the
Dutch courts to do so.
 Recognition of Foreign Judgments in Malaysia
Reciprocal Enforcement of Judgments Act 1958 (“REJA”).
•Before a foreign judgment can be enforceable, it has to be registered.
•The registration of foreign judgments is only possible if the judgment was given by a
Superior Court from a country listed in the First Schedule of the REJA.
• Those countries include the United Kingdom, Singapore, New Zealand and
India.
•To register a foreign judgment under the REJA, the judgment creditor has to apply
for the same within six years after the date of the foreign judgment.
•Any foreign judgment coming under the REJA shall be registered unless it has been
wholly satisfied, or it could not be enforced by execution in the country of the
original Court.
•If the judgment is not from a country listed in the First Schedule to the REJA, the
only method of enforcement at common law, is by securing a Malaysian judgment.
• This involves suing on the judgment in the local Courts as an action in debt.
Summary judgment procedures may be used to expedite the process.
Summary Judgement
After the defendant has given notice of his intention to
defend the claim, and if there appears to be no arguable
defence to the action and no triable issues, the plaintiff may
apply to the Court for summary judgment. This application
is made by Summons supported by an affidavit verifying the
facts of the claim and deposing to a belief that there is no
arguable defence and that there are no triable issues
These summary procedures may take between 6–12 months
from the commencement of the action to complete, which is
considerably quicker than a full trial. Even if the application
fails, the plaintiff would still be entitled to proceed with its
claim in a full trial.
Tutorial Discussion
https://www.casebriefs.com/blog/law/civil-procedure/civil-procedure-
keyed-to-friedenthal/venue-transfer-and-forum-non-conveniens-civil-
procedure-keyed-to-friedenthal-civil-procedure-law/piper-aircraft-co-v-
reyno-3/ (Reyno V Piper Aircraft Company)

http://ohmydocs.com/Admin/paperDataDownload.asp?idx=697
(Bank of India v. Gobindram Naraindas Sadhwani and Others.)