Dr. Adeline Chong
Singapore Management University
University of Ghent
When considering whether to recognise and enforce a foreign judgment, should the domestic court accord the foreign court international jurisdiction on the basis that the judgment debtor was domiciled there?
An analysis of the approach taken by courts in the Republic of South Africa.
Anthony Kennedy / Andrew Moran
BPP Law School / Serle Court, London
The Roman-Dutch common law of the Republic of South Africa states that a foreign judgment is not directly enforceable in that jurisdiction.
For a foreign judgment to be recognised and enforced in the Republic of South Africa (‘RSA’), it must be shown, inter alia, that the foreign court which pronounced the judgment had jurisdiction to do so (i.e. that it had “international jurisdiction”). In addition to the established bases of international jurisdiction (residence, submission and presence), it has been held that where, at the time of commencement of the proceedings, the judgment debtor was domiciled within the state in which the foreign court exercised jurisdiction, that foreign court has international jurisdiction according to the common law of the RSA. This position, different to that presently adopted by the English common law but likely to be followed in other Southern African Roman-Dutch law jurisdictions, has been criticised.
Prof. Gerry Maher
University of Edinburgh
This paper will focus on the approach taken by the common law of the UK legal systems to the recognition and enforcement of external judgments. Two factors justify this particular focus. The first is the uncertainty in the post—Brexit era of the UK making any agreement with the EU which would apply a modified or bespoke version of the Brussels I bis Regulation on the enforcement of judgments. The second is the difficulty of predicting the success of the 2018 Draft Hague Conference Convention on the Recognition and Enforcement of Foreign Judgments, both in terms of consensus on a final draft of the Convention and the likely geographical scope of its ratification and accession.
The consequence is that in the UK common law procedures for recognition and enforcement will be increasingly resorted to for some time to come.