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This week the United Kingdom ratified the HCCH 2019 Judgments Convention. The Convention will enter into force for the United Kingdom on 1 July 2025. For more information, see the status table here.

The United Kingdom has made only one declaration so far:

27-06-2024
The United Kingdom declares, in accordance with Article 25, that the Convention shall extend to England and Wales only, and that it may at any time submit other declarations or modify this declaration in accordance with Article 30 of the Convention.

For the full notification, click here.

For the HCCH news item, click here.

 

Jacco Bomhoff (Law Department of the London School of Economics and Political Science) has made available on SSRN a paper on Cold-War Private International Law that was published also as a LSE Legal Studies Working Papers (Paper No 16/2024). The abstract reads as follows: This paper explores the character of Private International Law, or the […]

Vesna Lazić (Associate Professor at Utrecht University and Senior Researcher at T.M.C. Asser Institute in The Hague) and the late Peter Mankowski (formerly Professor at the Faculty of Law, University of Hamburg, Germany) published  in 2023 a book titled ‘The Brussels I-bis Regulation: Interpretation and Implementation’. The book is a part of the JUDGTRUST Project […]

I. Introduction

In a previous post, I reported and commented on a decision rendered by the Abu Dhabi Supreme Court (hereinafter “ADSC”) in which the Court addressed the issue of the applicability of the Abu Dhabi Civil Marriage Law (Law No. 14/2021 of 7 November 2021 as subsequently amended) and its Procedural Regulation (Resolution No. 8/2022 of 1 February 2022) to foreign Muslims. In that case (Appeal No. 245/2024 of 29 April 2024), the ADSC overturned the lower courts’ decision, which had admitted jurisdiction in a divorce case and declared the dissolution of the marriage in application of the Civil Marriage Law and its Procedural Regulation. According to the ADSC, the lower courts erred in their decision since “it was judicially established…that [the parties] were Muslim”.

Soon after, a similar issue was addressed in a case brought before the Abu Dhabi Civil Family Court (hereinafter “ADCFC”). However, in its Judgment No. 86/2024 of 17 May 2024, the ADCFC took the opposite position by considering that the Civil Marriage Law applies “even if one or both parties are Muslims” as long as “the parties belong to a country that does not primarily apply Islamic Sharia in personal status”. Although the decision is rendered by a first instance court and is likely to be appealed to higher courts, and potentially overturned, the facts of the case and the ADCFC’s ruling provide interesting elements for further legal analysis and debate. This case also offers a valuable opportunity to introduce some aspects of the UAE/Abu Dhabi legal system of international jurisdiction in divorce matters.   

 

II. Facts

The case involves a no-divorce and joint custody claim brought before the ADCFC by X (husband, a British citizen) against Y (wife, an Australian citizen) under the Abu Dhabi Civil Marriage Law. X and Y were married in Australia in 2019. The action was introduced on 19 March 2024.

Before the ADCFC, Y argued that the case should be dismissed because a previous judgment had been rendered on 28 December 2023 by the same court (ADCFC) on the same matter between the same parties.

Y also contested the jurisdiction of the ADCFC on three grounds:

1. The ADCFC lacked territorial jurisdiction, as Y resides and works in Dubai, has no connection with Abu Dhabi and X presented a sham lease contract of an appartement located in Abu Dhabi in order to establish the jurisdiction of Abu Dhabi courts. (In its judgment, the ADFCF refers to the contract dated 7 December 2023).
2. The ADCFC lacked subject-matter jurisdiction, as the parties are Muslims
3. He ADCFC lacked international jurisdiction, as the parties had agreed in a pre-nuptial agreement to confer jurisdiction to the English courts[1] over any dispute arising from the marriage.

Alternatively, Y requested the dismissal or the stay of the proceeding on the ground that a divorce case was pending before the English courts.

III.  The Ruling

Based on the following grounds, the ADCFC rejected all the arguments raised by Y, assumed jurisdiction over the case, declared the dissolution of the marriage, and awarded joint custody to the parents:[2]

Regarding Y’s plea to dismiss the case on the ground that a prior ruling of the ADCFC had been rendered on the matter, a review of the ruling revealed that the case had been dismissed on of jurisdictional grounds, therefore, the ruling was procedural and did not have res judicata effect.

Regarding the challenges to the court’s jurisdiction – whether subject matter, territorial, or international – [since] there is no divorce judgment from X’s country (the UK) and X has been resident in Abu Dhabi, as evidenced by the submitted lease contract which shows that X rented an appartement located in the Emirate, Abu Dahbi courts have jurisdiction.[3] Accordingly, the dispute falls under the Abu Dhabi Law on Civil Marriage even if one or both parties are Muslims, since the States to which the parties belong do not primarily apply Islamic Sharia in personal status matters according to Article 5 of the 2022 Procedural Regulation (though X has insisted in his memorandums that he was not a Muslim.)

Furthermore, regarding the request to stay the proceeding until a decision in the case pending before the English courts is rendered, since the court has determined that it has jurisdiction on the ground that X’s residence in Abu Dhabi, the request should be rejected.

IV. Comments

Two main issues deserve to be particularly highlighted here. The first concerns the applicability of the Civil Marriage Law and its Procedural Regulation. The second concerns the jurisdiction of the ADCFC.

1. The applicability of the Civil Marriage Law to foreign Muslims

The case commented on here has been widely hailed as “significant”, “landmark” and even “historical” judgment because it confirmed the applicability of the Civil Marriage Law to disputes involving foreign Muslims.[4] However, it is important to note that this is not the first case in which the ADCFC has ruled in this manner. This is particularly the case in the court’s judgment No. 267/2023 of 12 December 2023. The judgment was later confirmed by the Abu Dhabi Court of Appeal’s ruling No. 31/2024 of 29 January 2024 but subsequently overturned by the aforementioned ADSC’s decision reported here.[5] It is worth recalling that, in this particular case, the ADSC clearly stated that the Civil Marriage Law does not apply to foreign Muslims irrespective of their origins. However, as suggested in this case’s note, there are serious doubts about the correctness of the Supreme Court’s interpretation and application the Civil Marriage Law and its Procedural Regulation.

From this perspective, by ruling as it did, the ADCFC gives the impression that it maintains its position in direct opposition to the ADSC. However, one should not lose sight of the fact that Abu Dhabi (and the UAE in general) operates under a civil law system where the doctrine of “precedents” is not recognized.[6] Thus, the decision of the Supreme Court can serve as persuasive authority that lower courts may consider in their judgments, but it is not binding on subsequent similar cases.[7] In any case, by affirming that Civil Marriage Law also applies even if one or both parties are Muslims as long as they belong to a country whose personal status law is not primarily based on Islamic Sharia, the ADCFC has demonstrated its willingness to interpret and apply the Civil Marriage Law in a manner consistent with its intended purpose.[8]

Nonetheless, since the ADFCF’s decision is only a first-instance judgment, it remains to be seen whether an appeal will be lodged against it. If an appeal is filed, and the case finds its way to the Supreme Court, it will be, indeed, interesting to see whether the ADSC will be willing to reconsider its stance on this issue.

2. The jurisdiction of the ADCFC

i. The jurisdictional challenges. Before the ADCFC, Y raised two jurisdictional challenges, aside from contesting the court’s subject-matter jurisdiction on the ground of the non-applicability of the Civil Marriage Law due to the parties’ Muslim faith.

The first challenge pertained to what was mistakenly referred to as “territorial jurisdiction” (ikhtisas makani). In fact, the issue concerned interstate jurisdiction, given that both Abu Dhabi and Dubai have their autonomous judicial systems, independent from each other and other court systems available in the UAE federation.[9]

The second challenge concerned international jurisdiction, and that by arguing that English courts, as the court chosen by the parties in any dispute arising from their marriage, were competent.

ii. Rules of international jurisdiction in divorce matters. The relevant rules that are potentially applicable in divorce cases are found is several legislative acts. These include, as detailed in the table below:

(i) the 2022 Federal Act on Civil Procedure (FACP)

(ii) the 2005 Federal Act on Personal Status (FAPS) and

(iii) the 2021 Abu Dhabi Law on Civil Marriage

(iv) the 2022 Procedural Regulation

As the table shows, the potentially applicable provisions exhibit a high degree of redundancy, complexity and occasional inconsistencies, making them difficult to clearly articulate.

The 2022 FACP[10]

The 2005 FAPS The 2021 Civil Marriage Law

The 2022 Procedural Regulation

General rules

Article 19

Article 5 Article 17bis provisio, first sentence

Article 4 para. 1

Disputes other than in rem rights over immovable located abroad

The defendant’s UAE nationality

Disputes relating to personal status matters:

The defendant’s UAE nationality

Disputes over personal status matter of persons covered by the Civil Marriage Law

The defendant’s UAE nationality

Disputes relating to the personal status of the persons covered by the Civil Marriage Law

(without indicating the procedural status of the parties)

(Nationality is not explicitly mentioned but implied)

Domicile or residence in the UAE of the foreign defendant

Domicile, residence, or place of work in the UAE of the foreign defendant

Domicile, residence, or place of work in Abu Dhabi of the foreign defendant

Domicile, residence, current or former place of work in Abu Dhabi

Property (assets) object of the dispute is located in the UAE

Special rules

Article 20

Article 6

Article 17bis provisio, in fine

Article 4 para. 2

Actions brought against foreign defendants who do not have domicile or residence in the UAE

Actions relating to personal status matter brought against foreign defendants who do not have domicile, residence or place of work in the UAE Actions relating to personal status matter (without specification) brought against foreign defendants who do not have domicile, residence or place of work in the UAE

Actions (without specification) brought against foreign defendants who do not have domicile, residence of place of work in the Abu Dhabi or do not have a known domicile or residence abroad

Article 20(4)

(category not specified)

When the action is brought by a wife having domicile in the UAE against her husband who used to have a domicile therein No equivalent provision No equivalent provision Article 4 para. 2 (5)

(category not specified)

When the wife is the plaintiff and has domicile, place of work or residence in Abu Dhabi

(but without specifying that it is brought against her husband)

No equivalent provision

Article 6 (2)

Actions relating to resolution, annulment of marriage, talaq-divorce[11] or tatliq[12]–divorce

If the action is brought by a wife who is a UAE national, or who previously held UAE nationality, but lost it,

–> when the wife has domicile or residence in the UAE Article 17bis (2)

Actions relating to resolution, annulment of marriage or divorce

If the action is brought by a wife who is a UAE national, or who previously held UAE nationality, but lost it,

–> when the wife has domicile or residence in Abu Dhabi

Article 4 para. 2 (2)

Actions relating to civil divorce and its consequences

When any of the spouses has residence, place of work or domicile in Abu Dhabi

If the action is brought by a (foreign) wife who has a domicile or residence in the UAE and the action is brought against husband who had domicile, residence or place of work in the UAE,

–> when:

·   The husband abandons his wife and establishes his domicile, residence and place of work abroad

·   The husband is deported from the UAE

Article 20 (6)

Actions relating to personal status

When the plaintiff is a UAE national or a foreigner who has domicile in the UAE:

· If the defendant does not have a known domicile abroad or,

· When UAE law is the applicable law to the dispute

Article 6 (5)

Actions relating personal status

When the plaintiff is a UAE national or a foreigner who has domicile, residence or place of work in the UAE:

·   If the defendant does not have a known domicile or residence abroad, or

·    When UAE law is the applicable law to the dispute

Article 17bis (4)

Actions concerning one the personal status matters governed by the [Civil Marriage] Law

When the plaintiff is a UAE national or a foreigner who has domicile, residence or place of work in Abu Dhabi, if:

· The defendant does not have a known domicile or residence abroad

Article 4 para. 2 (7)

(no reference to the category of the dispute)

When the plaintiff has domicile, residence or place of work in Abu Dhabi:

·  If the defendant does not have a known domicile abroad, or

·  When UAE law is the applicable law to the dispute

iii. The plaintiff’s residence as ground of international jurisdiction. In its judgment, the ADCFC has, interestingly, addressed the three challenges above raised by Y as if they were of the same nature. The court justified its jurisdiction (territorial/interstate, subject-matter and international) based on the fact that X (the plaintiff) had a place of residence in Abu Dhabi on the basis of a copy of a lease contract of an appartement located in Abu Dhabi that X submitted to the court.

The legal basis for asserting jurisdiction on the residence of the plaintiff in Abu Dhabi is found in particular in Article 4 of the 2022 Procedural Regulation.[13] Two important remarks can be made here.

a) First, one of the remarkable aspects of Article 4 of the 2022 Procedural Regulation is that it stands distinct from similar provisions found in other federal and local regulations. Indeed, in comparison with the other applicable rules, Article 4 para. 1 of the Procedural Regulation grants jurisdiction to the ADFCF in cases involving persons covered by the Civil Marriage Law simply on the basis of their residence, or even their current or a former place of work in Abu Dhabi, regardless of their procedural status (i.e. plaintiffs or defendants). Paragraph 2 dealing specifically with divorce action, allows jurisdiction to be based on the residence of one of the spouses in Abu Dhabi even when the other spouse – the foreign defendant – has no domicile, residence or place of work in Abu Dhabi (or does not have a known domicile or residence abroad).

b) Second, the case discussed here shows that the jurisdiction of the ADCFC was based on the plaintiff’s simple residence in Abu Dhabi without any other additional specifications (e.g. permanent residence, habitual residence, primary residence, secondary residence etc.). According to the ADCFC’s judgment, residence was established on the basis of a lease contract showing address in Abu Dhabi, which was concluded slightly over three months before the action is filed with the ADCFC. This undoubtedly raises concerns about the risk of forum shopping. This is more so if Y’s arguments appear to be true that the lease contract was a sham entered into solely to manipulate the jurisdiction of the ADFCF. The fact that the ADCFC had in a prior case rejected the action between the same parties on jurisdictional grounds, only 18 days before the X rented his appartement in Abu Dhabi, adds to the suspicion.

V. Concluding Remarks:

The ADCFC’s judgment presents other interesting aspects. These include the fact that Y: (i) invoked a choice of court agreement in favor of English courts; and (ii) raised the issue of lis pendens based on the pending divorce proceeding before English courts.

Regarding (i), it is generally accepted in the UAE that choice of court agreement in general, including in civil and commercial matters are null and void. In this respect, case law, based on explicit provision in the 2022 FACP (Article 23), is rather consistent.[14]

Regarding (ii), UAE courts have generally refused to take into account lis pendens considering their jurisdiction as a matter of public policy, that if established, cannot be declined on the ground that the same case is pending before a foreign court (see, e.g., UAE Federal Supreme Court, Appeal No. 183//21 of 18 March 2001).

————————————————————–

[1] The judgment, in its both English and Arabic versions, used the terms “British courts (al-mahakim al-britaniyya). Although it is not technically incorrect to refer to “British courts” in a broad and informal sense, it is more accurate to refer to the specific courts within the various legal systems of the United Kingdom. Each system – English and Welsh law, Scottish law, and Northern Irish law – operates independently with its own courts. For this reason, it seems more appropriate here to refer to “English courts” instead, as it is most likely that these are the courts agreed upon by the parties.

[2] Although the judgment was rendered in both Arabic and English, the English version of the text was not relied upon due to its insufficient quality. This is merely an extensive summary of the decision and not a full translation.

[3] The decision refers here only to territorial jurisdiction (al-ikhtisas al-makani), however the general context of the judgment indicate that the court was also referring to subject matter and international jurisdictions.

[4] This was made on different online platforms which shared information about this case.

[5] The reference of the ADCFC’s judgment and the Court of Appeal’s ruling are mentioned in the ADSC’s decision which provides a brief summary of both cases.

[6] Except for the common law enclaves of Dubai International Financial Center (DIFC) and Abu Dhabi Global Market (ADGM).

[7] Cf. on the legal system of the UAE in general, Essam Al Tamimi, Practical Guide to Litigation and Arbitration in the United Arab Emirates (Kluwer Law International, 2002) 5, 15.

[8] See Civil Marriage Law and Its Effects in the Emirate of Abu Dhabi (Q & A) (Publication of Abu Dhabi Judicial Department, 2023).

[9] For an overview, see the information provided by the Government Portal here.

[10] It should be noted that, although the FACP, which was initially enacted in 1992 (Federal Law No. 11/1992), was replaced by a new Act of 2022 (2022 Federal Act on Civil Procedure), rules of international jurisdiction have remained untouched. This missed opportunity could have been used to bring some order to the regulation of international jurisdiction in family law matters.

[11] Talaq here refers to the dissolution of marriage by the unilateral declaration of will by the husband.

[12] Tatliq refers to judicial divorce (usually requested by the wife) based on the admitted grounds of divorce.

[13] It should be noted that although Article 4 is titled “Territorial Jurisdiction of the Court”, it actually deals with international jurisdiction, as the rules included therein concerns cases brought against a foreign who has no domicile, residence or place of work in Abu Dhabi or has no known domicile or residence abroad.

[14] Cf. Béligh Elbalti, “Perspective of Arab Countries,” in M. Weller et al. (eds.), The 2019 HCCH Judgments Convention – Cornerstones, Prospects, Outlook (Hart, 2023), p. 188. On the validity of choice of court agreements in Bahrain, see my comments here.

The Australian Institute of International Affairs (AIIA) and the Australian Branch of the International Law Association (ILA (AB)) are pleased to present the Peter Nygh Hague Conference Internship.

The award will support a post – graduate student or graduate of an Australian law school to undertake an internship with The Hague Conference on Private International Law (The Hague Conference) in the Netherlands by providing funds to cover the cost of travel to the Netherlands and a contribution towards living expenses. Applications for the 2025 Nygh Internship are now open, and close on 31 July 2024. Please see below for more information about the award and how to apply.

***

The Internship

The award will provide a post-graduate student or graduate with the opportunity to work with some of the leading private international law practitioners in the world. With over 80 members (including the European Union) representing all major regions and legal systems, The Hague Conference is a global intergovernmental organisation. A melting pot of different legal traditions, The Hague Conference aims for the ‘progressive unification’ of the various State private international law rules. The work of The Hague Conference involves finding internationally agreed approaches to jurisdiction of courts, applicable law and the recognition and enforcement of judgments. This is achieved through the development and servicing of multilateral legal conventions which respond to global needs in the areas of international commercial law and banking, international civil procedure, international protection of children, international family and family property relations, international legal co-operation and litigation as well as international judicial and administrative co-operation. Activities of The Hague Conference are coordinated by a multinational Secretariat – the Permanent Bureau – located in The Hague. The Conference’s working languages are English and French. The successful intern will work for 5 to 6 months under the direction of the Secretariat assisting with research, translation and preparation of meetings in accordance with the needs of the lawyers of the Permanent Bureau.

The Hon Dr Peter Nygh AM

The Peter Nygh Hague Conference Internship has been established in memory of the late Hon Dr Peter Nygh AM, a leading international lawyer and former judge of the Family Court of Australia. Dr Nygh began his 25 year association with The Hague Conference as a member of Australia’s first delegation in 1975. During this time, Dr Nygh helped to draft the Convention on the Celebration and Recognition of the Validity of Marriages as well as the Convention on the Law Applicable to Matrimonial Property Regimes, work which contributed to his appointment to the Family Court of Australia. After his retirement from the bench, Dr Nygh returned to The Hague Conference and between 1994 and his death in 2002 he contributed in many ways, including serving as a co-rapporteur on The Hague ‘judgments project’ from 1996 and representing Australia in the negotiations that led to the Convention on the Protection of Children. In his later years Dr Nygh spent extended periods in The Hague without remuneration or payment of his expenses, yet his work did not go unrecognised. He was awarded the Centenary Medal by the Australian Government as well as the Order of Australia, partly in recognition of his outstanding and longstanding contribution to private international law, and in particular his representation of Australia at The Hague Conference.

 

On Tuesday, July 2, 2024, the Hamburg Max Planck Institute will host its 46th monthly virtual workshop Current Research in Private International Law at 2:00 pm – 3:30 pm (CEST). Maggie Gardner (Cornell Law School) will speak, in English, about the topic

Beyond the Presumption Against Extraterritoriality

For the last decade, the debate over prescriptive jurisdiction in the United States has been monopolized by the Supreme Court’s rejuvenated presumption against extraterritoriality. Under this framework, U.S. courts interpreting federal statutes must ask (1) whether the statute expresses clear congressional intent to reach extraterritorial conduct, and if not, (2) whether the statute is nonetheless being applied domestically because its “focus” occurred in the United States. But even the Court’s presumption-with-teeth cannot answer all questions of prescriptive jurisdiction in a world of concurrent jurisdiction and economic interdependency. Are there limits on the applicability of U.S. statutes that do rebut the presumption at step one? At step two, does some need for balancing of sovereign interests remain–and is that balancing subsumed within the step two inquiry, or is it a distinct doctrine of international comity? This survey of lower federal court decisions shows that U.S. courts are continuing to engage in contextual balancing despite the rule-like framework of the modern presumption against extraterritoriality, but also that the “focus” test may be encouraging judges to identify a more limited and relevant set of factors to consider. What emerges is a multi-factor analysis that is statute-specific but still responsive to the circumstances of individual cases, in which the presumption serves only as an initial sorting rule. This project distills and defends this updated approach as more feasible for judges to apply, more faithful to congressional intent, and sufficiently capable of addressing international comity concerns without the need for an additional, free-standing comity doctrine.

The presentation will be followed by an open discussion. All are welcome. More information and sign-up here.

If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.

Articles 14 and 15 of the French Civil Code establish the jurisdiction of French courts where either the plaintiff or the defendant is a French national. The provisions date back to the original Napoleonic Code. Although Articles 14 and 15 refer to obligations, the French supreme court for private and criminal matters (Cour de cassation) […]

The Max Planck Institute for Social Anthropology in Halle, Germany, is hiring four docotoral students in the context of its project on “Cultural and Religious Diversity under State Law across Europe” (CUREDI). Two of the positions will be part of the research group on “Transformations in Private Law: Culture, Climate, and Technology” lead by Mareike Schmidt.

Specifically, the institute is looking for researchers interested in the following four topics:

• Asylum Law;
• Private Law;
• Law and Religion; and
• Procedural Justice.

The deadline for applications is 1 August 2024; more information is available here.

This post was prepared by Tess Bens from University of Vienna. Burkhard Hess and his team at the University of Vienna have finalised an updated version of the Position Paper on the Reform on the Brussels Ibis Regulation of the association. Establishment of the EAPIL Working Group The Brussels Ibis Reform project leading up the […]

Introduction

As one of the most complex and fiercely contested recent investment disputes, the Indian Satellite Saga originated from India’s annulment of an agreement for leasing S-band electromagnetic spectrum on two satellites (Satellite Agreement) to Devas Multimedia Private Ltd. (Devas). The Saga involved multiple international arbitrations and domestic litigations. In 2022, the Supreme Court of India made a judgment (SCI Judgment) to wind up Devas. Devas and its foreign investors allege the SCI Judgment is a retaliatory measure against them for enforcing arbitration awards.

Since 2023, courts worldwide, including those in Australia, Canada, Germany, Mauritius, the Netherlands, Singapore, Switzerland, and the US, rendered decisions regarding whether to recognize the SCI Judgment and to allow it as a defence against the enforcement of arbitration awards.[1] This Insight analyzes these courts’ judgments and reflects on the decentralized judgment/award recognition and enforcement system for addressing alleged state retaliation measures.

 

Investment Disputes and Alleged Retaliatory Measures

Devas was an Indian telecommunications company with investors from Germany and Mauritius. Antrix Corporation Ltd. (Antrix) was under the direct control of the Department of Space of India. In 2005, Antrix concluded the Satellite Agreement with Devas but unilaterally terminated it in 2011 on the ground of force majeure because the Government of India decided not to provide orbital slots in S-band for commercial activities.[2]

Consequently, Devas initiated a commercial arbitration seated in India before an International Chamber of Commerce (ICC) Tribunal against Antrix.[3] The ICC Tribunal rejected Antrix’s force majeure argument and awarded damages to Devas, reasoning that the Chairman of Antrix failed to do everything in his power to ensure that the Satellite Agreement would remain on track.[4] Devas’s investors from Mauritius and Germany also brought UNCITRAL investment arbitrations against India separately in the CC/Devas (1)[5] and DT[6] arbitrations. Both tribunals rejected, at least in part, India’s defense that it had annulled the Satellite Agreement to protect essential security interests.[7]

The three arbitration tribunals rendered billion-dollar awards in favor of Devas and its investors.[8] Devas and its investors have started to enforce these awards against Indian assets abroad. Devas also entrusted its related US company, Devas Multimedia America Inc., with collecting debts arising from the ICC award.

Meanwhile, the Indian Central Bureau of Investigation filed a First Information Report against Devas and the officers of Devas and Antrix for corruption in 2015.[9] Antrix initiated proceedings to wind up Devas in 2021 at India’s National Company Law Tribunal (NCLT). Devas appealed to the National Company Law Appellate Tribunal (NCLAT) and the Supreme Court of India. The Supreme Court upheld the judgments of NCLT and NCLAT to liquidate Devas due to fraudulent activities, including Devas improperly enticing Antrix into the Satellite Agreement.[10] The fraud also involved collusion between Devas, Antrix, and Indian government officials.[11]

The shareholders of Devas were found to be fully aware of the fraud.[12] Notably, Devas and one of its shareholders, namely Devas Employees Mauritius Private Limited, were fully represented in the SCI proceedings. Devas’s other shareholders did not participate in the SCI proceedings.

As a consequence of the SCI Judgment, under its authority at the seat of the ICC arbitration, the High Court of Delhi set aside the ICC award.[13] Devas and its investors initiated the CC/Devas (2) investment arbitration against India alleging the latter’s retaliation for the enforcement of the ICC award.[14] Upon India’s request, the Supreme Court of Mauritius issued an interim anti-arbitration injunction.[15] India also sought to set aside the DT and CC/Devas (1) awards in their respective seats in Switzerland and the Netherlands.

Devas or its investors have sought to enforce the ICC, DT, and CC/Devas (1) awards in approximately 6 different countries.[16]

 

Recognize or not?

In the award-setting-aside proceedings and the award-enforcement proceedings, a critically important defense for India is the finding of fraud in the SCI Judgment.

To determine whether to recognize the SCI Judgment, the focal points are: whether foreign enforcement courts can exercise jurisdiction over India and whether the SCI Judgment should create res judicata effects in these courts. The varying approaches taken show how enforcement jurisdictions can independently decide whether retaliation existed and how to address it based on their laws.

 

Sovereign Immunity of India

When deciding whether to enforce the CC/Devas (1) award, both the Australian Federal Court and the Superior Court of the Province of Quebec in Canada held that India waived its sovereign immunity by ratifying the 1958 New York Convention because of the “clear and unequivocal submission” in Article 3 of the Convention.[17]

When enforcing the DT award, the Higher Regional Court of Berlin held that India did not enjoy sovereign immunity because according to the German Code of Civil Procedure, India’s liability came from Antrix’s commercial activities, and it was thus irrelevant that the Satellite Agreement was revoked partially due to national security concerns.[18] Taking another path, the US District Court for the District of Columbia held that it had jurisdiction over India based on the arbitration exception to sovereign immunity, which requires “the existence of an arbitration agreement, an arbitration award, and a treaty governing the award.”[19] In discussing the last requirement, the court mentioned the membership of the US and Switzerland (the seat of arbitration), rather than India’s membership in the 1958 New York Convention[20] as the Australian Federal Court and the Superior Court of the Province of Quebec had. When rejecting the enforcement of the ICC award, the US Court of Appeals for the Ninth Circuit held that a minimum contacts analysis should be satisfied.[21]

Notably, the Australian Federal Court did not consider the legality of investment under the applicable bilateral investment treaty and the validity of the arbitration agreement because, when determining sovereign immunity, Devas needed only to provide prima facie evidence that a valid arbitration agreement existed.[22] The US District Court for the District of Columbia reached the same conclusion for a different reason: because the legality of investment was an arbitrability issue falling under the merits, not a jurisdictional matter.

 

Res Judicata

This issue can be analyzed from four aspects:

Preclusion effects of other tribunals’ decisions: India was not successful in setting aside the CC/Devas (1) Award on Merits at the Hague Court of Appeal, which found that India did not sufficiently substantiate the accusations of fraud.[23] After the SCI Judgment was rendered, India asked the Hague District Court to set aside the Award on Quantum.[24] An important factor for the District Court in rejecting India’s request was that the Hague Court of Appeal had already rejected India’s assertions of fraud in the setting aside proceedings concerning the Award on Merits, and despite some new evidence, the fraud allegations in the request to set aside the Award on Quantum were virtually identical.[25] Therefore, the Hague District Court found that the SCI Judgment should not be recognized because of the res judicata effect of the earlier judgment of the Hague Court of Appeal.[26] In an action to enforce the DT arbitration, the Court of Appeal in Singapore similarly declined to consider the SCI Judgment’s fraud findings because the Swiss Federal Supreme Court at the seat of the arbitration had dismissed the setting-aside application and affirmed the DT arbitration tribunal’s jurisdiction and the validity of the award.[27] Further, based on the competence-competence doctrine, the US District Court for the District of Columbia considered itself precluded from second-guessing the DT arbitrators’ findings about arbitrability.[28]

Timing: In rejecting the revision proceedings against the DT final award, the Swiss Federal Supreme Court found that India’s fraud allegation based on the SCI Judgment was time-barred.[29] This was because the 90-day limitation period to request the revision of the DT final award started to run when India obtained “sufficiently certain knowledge” of fraud even before the SCI Judgment was issued.[30] Like the Hague District Court, the Swiss Federal Supreme Court held that the SCI Judgment did not provide new evidence of fraud because the Supreme Court of India did not conduct its own fact-finding investigation.

The (un)due process of the Supreme Court of India is also hotly debated. In 2023, the Hague District Court declared the request of Devas Multimedia America Inc. to enforce the ICC award on behalf of Devas inadmissible, after a liquidator appointed under the SCI Judgment instructed the company not to act as an agent of Devas in enforcement efforts.[32] The Hague District Court found no evidence showing that the SCI failed to act independently and impartially.[33] In contrast, when deciding to enforce the DT award, the Singapore International Commercial Court expressed reservations about the proceedings at the SCI, finding that they had been carried out based on summary evidence without oral evidence or the cross-examination of witness;[34] and the same view was shared by the Higher Regional Court of Berlin.[35]

Divergence of parties is a significant barrier to extending the res judicata effects of the SCI Judgment against Devas to its investors. At the Superior Court of the Province of Quebec, India relied on the SCI Judgment arguing that its consent to arbitration was induced by fraud. The Court held that the SCI Judgment could prove only that Devas was liquidated and addressed a different question from that in the enforcement proceeding, because it did not rule on the validity of the CC/Devas (1) arbitration agreement, and the Devas investors were precluded from participating in the liquidation proceeding.[36] Similarly, the Singapore International Commercial Court held that the fraud finding in the SCI Judgment should not be binding on Devas’s investor, Deutsche Telekom, because it was not a party to the proceedings at the Supreme Court of India.[37]

 

Decentralized System to Address States’ Retaliatory Measures

As the Indian Satellite Saga demonstrates, private international law and international investment law use a decentralized judgment/award recognition and enforcement system to address alleged states’ retaliatory measures against foreign investors.

In terms of practical lessons, one is that fraud allegations should be argued as early as possible in the award-rendering proceedings, rather than waiting for the enforcement proceedings. Notably, India raised fraud late without reasonable justifications, so the claim was rejected by the arbitration tribunals.[38] Although some enforcement courts may allow parties to re-argue a fraud claim that has been fully litigated by a judgment/award-rendering tribunals, the Saga shows that saving these claims for the enforcement proceedings is risky because not every court will allow this practice.

More broadly, although the decentralized system produces inconsistent results, it also has an overlooked benefit of resilience when addressing state retaliatory measures, as it has no choke points and can function regardless of political tensions. This system, although sacrificing consensus and consistency, promotes democracy because each state has its voice. In contrast, some international systems to resolve alleged state retaliatory measures are centralized based on consensus. The centralized systems are supposed to bring authority, consistency, and certainty. However, the malfunction of one choke point can effectively dismantle the whole system. For example, although the WTO can authorize its members to retaliate against another member that continuously adopts non-compliance measures,  the “WTO consensus” system enables one member to dismantle the WTO Appellate Body.[39] Another example is the United Nations Security Council, where the “veto privilege” and political tensions among its standing members have impeded international efforts to resolve the Gaza war.[40] The inconsistent outcomes reached over the course of the Indian Satellite Saga should thus be understood in light of the benefits of decentralization and resilience.

* Author: Jie (Jeanne) Huang, Associate Professor, the University of Sydney School of Law, Jeanne.huang@sydney.edu.au. This is a cross-posting from the American Society of International Law Insights.

[1] Devas Multimedia Private Ltd., v. Antrix Corporation Ltd. & Anr., Civil Appeal No. 5906 of 2021 (India) [hereinafter SCI Judgment].

[2] Id., ¶ 3.11.

[3] Devas Multimedia Private Limited v. Antrix Corporation Limited (Final Award) ICC Case No. 18051/CYK (Sept. 14, 2015).

[4] ICC Case No. 18051/CYK, ¶¶ 230-236, 312.

[5] CC/Devas (Mauritius) Ltd., Devas Employees Mauritius Private Limited, and Telcom Devas Mauritius Limited v. the Republic of India, Case No. 2013-09, UNCITRAL, Award on Quantum (Perm. Ct. Arb. 2020) (“CC/Devas (1)”).

[6] Deutsche Telekom AG v. India, Case No. 2014-10, UNCITRAL, Final Award (Perm. Ct. Arb. 2020) (“DT Arbitration”).

[7] CC/Devas (1) Award on Jurisdiction and Merits (July 25, 2016), ¶¶ 354-361, 371-73; DT Interim Award (Dec. 13, 2017), ¶¶ 280-286.

[8] Approximately USD 562.5 million (ICC), USD 93.3 million (DT), USD 111 million (CC/Devas (1)), plus interest and costs.

[9] SCI Judgment, ¶ 3.13.

[10] SCI Judgment, ¶ 12.8 (vi).

[11] Id. ¶ 12.8 (xii).

[12] Id. ¶ 12.8 (xv).

[13] Devas Employees Mauritius Pvt. Ltd. v. Antrix, High Court of Delhi at New Delhi, 2023: DHC: 1933-DB.

[14] CC/Devas v. India (2), Case No. 2022-34 (Perm. Ct. Arb. 2022) (“CC/Devas (2)”).

[15] India v. CC/Devas (Mauritius) Ltd., SC/COM/WRT/000010/2023, Sup. Ct. Mauritius.

[16] See CC/Devas v. India (I) on Jus Mundi at https://jusmundi.com/en/document/decision/fr-cc-devas-mauritius-ltd-devas-employees-mauritius-private-limited-and-telcom-devas-mauritius-limited-v-republic-of-india-arret-de-la-cour-dappel-de-paris-22-11819-tuesday-13th-february-2024.

[17] CC/Devas (Mauritius) Ltd. v. India, 2022 QCCS 4786, ¶¶ 161 & 167; CCDM Holdings, LLC v. India (No. 3) [2023] FCA 1266, ¶¶ 35, 38, 45, and 51.

[18] Lisa Bohmer, German Court Grants Application for Partial Enforcement of Deutsche Telekom v India Award, as Neither Fraud Allegations Nor BIT’s Unique Wording on Enforcement Sway the Judges, Investment Arb. Rep. (Feb. 9, 2023), https://www.iareporter.com/articles/german-court-grants-application-for-partial-enforcement-of-deutsche-telekom-v-india-award-as-neither-fraud-allegations-nor-bits-unique-wording-on-enforcement-sway-the-judges/.

[19] Deutsche Telekom AG v. India, Civil Case No. 21-1070 (RJL), Memorandum Opinion (Mar. 27, 2024), at 6.

[20] Id.

[21] Devas Multimedia Private Ltd v Antrix Corp. Ltd., No. 20-36024 (9th Cir. 2023), ¶ 1.

[22] CCDM Holdings, supra note 17, ¶ 44.

[23] India’s set-aside application against the CC/Devas (1) Award on Merits was rejected by the District Court of the Hague on November 14, 2018 (ECLI:NL:RBDHA:2018:15532), the Hague Court of Appeal on February 16, 2021 (ECLI:NL:GHDHA:2021:180), and the Dutch Supreme Court on February 3, 2023 (ECLI:NL:HR:2023:139).

[24] India v. CC/Devas (Mauritius) Ltd. (C/09/615682/HA ZA 21-674), October 25, 2023 issued by the District Court of the Hague.

[25] Id. ¶¶ 4.16, 4.19, and 4.20.

[26] Id. ¶ 4.09.

[27] India v. Deutsche Telekom AG, [2023] SGCA(I) 10, ¶¶ 142-178; 2023 SGHC(I) 7, ¶¶ 136-155.

[28] Deutsche Telekom AG v. India, Civil Case No. 21-1070 (RJL), Memorandum Opinion (Mar. 27, 2024).

[29] Swiss Bundesgericht Tribunal Fédéral (4A_184/2022), Urteil vom 8. März 2023.S.

[30] Lisa Bohmer, Swiss Federal Tribunal Decides that Revision Proceedings Are not Available against Interim Award that Withstood Set-aside Request, while Finding that Request for Revision on Final Award is Time-Barred and Not Based on New Evidence, Investment Arb. Rep. https://www.iareporter.com/articles/analysis-swiss-federal-tribunal-decides-that-revision-proceedings-are-not-available-against-interim-award-that-withstood-set-aside-request-while-finding-that-request-for-revision-of-final-award-is-t/.

[31] Id. India v. CC/Devas (Mauritius) Ltd., supra note 24, ¶ 4.20.

[32] Order issued by Judge H.J. Vetter at the Hague District Court (July 18, 2023), https://www.iareporter.com/articles/dutch-court-declares-request-for-enforcement-of-devas-antrix-icc-award-inadmissible/.

[33] Id.

[34] India v. Deutsche Telekom, [2023] SGHC(I) 7, paras¶¶ 126-134.

[35] Bohmer, supra note 18.

[36] CC/Devas (Mauritius) Ltd. v. India, supra note 17, ¶¶ 210-215.

[37] Deutsche Telekom, “would be the victim, rather than a perpetrator” in the alleged fraud, Deutsche Telekom AG v The Republic of India, [2023] SGHC(I) 7, ¶¶ 87 and 123.

[38] Prabhash Ranjan, Corruption and Investment Treaty Arbitration in India, in Corruption and Illegality in Asian Investment Arbitration 235, 248 (Nobumichi Teramura, et al. eds., 2024).

[39] Chad Bown & Joost Pauwelyn, The Law, Economics and Politics of Retaliation in WTO Dispute Settlement 21-86 (2010).

[40] Press Release, United Nations, Security Council passes resolution demanding “an immediate ceasefire” during Ramadan, https://news.un.org/en/story/2024/03/1147931?_gl=1*1y7ggfh*_ga*MTYxNDY2ODE4Ni4xNzA5NzczMDA4*_ga_TK9BQL5X7Z*MTcxMTQxMzkxNS4xLjAuMTcxMTQxMzkxNS4wLjAuMA.

 

 

 

The authors of this post are Leon Theimer (Humboldt University of Berlin) and Nicolas Dewitte (Humboldt University of Berlin). Introduction From 6 to 8 June, around 100 members of the EAPIL gathered in the captivatingly charming city of Wrocław in Poland for the 2024 EAPIL conference on ‘Private International Law and Global Crises’. Over the […]

Solomon Okorley Ph.D, University of Johannesburg, and affiliated with the Research Centre for Private International Law in Emerging Countries at the University of Johannesburg.

Introduction

South Africa is one of the most developed countries on the African continent and a key country in the Southern African Development Community (SADC) and the BRICS (Brazil, Russia, India, China, and South Africa) economic bloc. Its status in private international law on the African continent is evinced as the country on the African continent where two vital instruments of private international law were adopted: the Convention on International Interests in Mobile Equipment (Cape Town Convention) and the Mining, Agricultural and Construction Protocol (MAC Protocol). It is also a member of the Hague Conference of Private International Law. Thus, development in its private international is likely to significantly impact the neighboring countries in the SADC region and the continent.

 

In the recent case of Lindsey and Others v Conteh (774/2022) 2024 (3) SA 68 (SCA), the South African Supreme Court of Appeal dismissed an appeal for the recognition and enforcement of a Californian judgment. The South African Supreme Court of Appeal held that “The California Court Orders do not constitute a liquid document evidencing an unconditional acknowledgment of indebtedness, in a fixed sum of money. The appeal must accordingly fail” (para 35).

This case is significant because the case addresses the recognition and enforcement of foreign judgment in South Africa and matters concerning provisional sentence. It is, therefore, a case that other SADC countries and common law jurisdictions would find helpful when recognizing and enforcing foreign judgments, especially under the common law regime.

 

Facts

The case outlined below concerns the recognition and enforcement of a Californian foreign judgment in South Africa. The brief facts of the case is as follows: The sixth appellant, African Wireless Incorporated (AWI), is a corporation registered in terms of the laws of the State of Delaware in the United States of America; and the first to fifth appellants are the shareholders of AWI. The respondent is a businessman and citizen of the United States of America and now resides in South Africa. The appellants filed a suit against Mr Conteh, the respondent. The basis of the suit was that the respondent had transferred some shares of AWI to companies belonging to him without the requisite permission of AWI.

Consequently, the appellants obtained a judgment by default. Further, the Californian Superior Court ordered the respondent to turn over the shares to the appellants. The court also placed a value upon the shares ‘for bond purposes only’. The appellants then brought an ex parte application, which inter alia sought to convert the earlier court order to a monetary judgment. However, the application was dismissed.

 

The case before the High Court

The appellants argued that the foreign default judgment and the post-judgment enforcement orders collectively constituted a final and binding money judgment. They further argued that, by operation of law, the judgment was enforceable in the same manner as a “money judgment for the value of the shares”. This is because it had been converted into a liquid and executable money judgment under California law. Therefore, its nonpayment entitled them to seek a provisional sentence. However, the respondent contended that the foreign judgment was not a money judgment; hence, it was not a liquid document. He averred that what was before the courts was merely a judgment for the delivery of shares.

 

The ruling of the High Court

According to the High Court, ‘the judgment does not constitute prima facie proof of a debt enforceable by provisional sentence’, as it did not comprise a liquid document. The court determined that extrinsic evidence on Californian law was necessary to prove that the order to turn over the shares had been converted into a debt in monetary terms, thus constituting a money judgment. The court concluded that the need to resort to such extrinsic evidence was inconsistent with South African courts’ usual strict adherence to the requirements for granting a provisional sentence. Dissatisfied with this ruling, the plaintiffs appealed to the Supreme Court of Appeal.

 

Summary of the Judgment of the Supreme Court of Appeal

The Supreme Court of Appeal extolled the importance of recognizing and enforcing foreign judgment ‘in a world of ever greater international commerce’ (para 26). It reechoed its previous statement in Richman v Ben-Tovim 2007 (2) SA 283 (SCA), where it stated that “it is now well established that the exigencies of international trade and commerce require ‘. . . that final foreign judgments be recognised as far as is reasonably possible in our courts, and that effect be given thereto’” (para 25). The court stated that a court judgment serves as prima facie evidence of a debt owed and constitutes an acknowledgment of the indebtedness for the amount specified in the judgment.

The central issue in this case was whether a series of orders and two writs, granted by the Superior Court of California in the State of California, United States of America, cumulatively constituted a liquid document that can be enforced through provisional sentence in South Africa. Thus, the Supreme Court of Appeal was invited to determine the true nature of the Californian court orders in relation to the granting of a provisional sentence.

The appellants argued that the foreign judgment, when read cumulatively, constitutes a liquid document despite the initial judgment being for the turnover of shares. According to them, because a monetary value was ascribed to the shares and a writ of execution for the monetary value of the shares was issued, it is sufficient to enable them to secure a provisional sentence.

The court referred to the seminal case of Jones v Krok 1995 (1) SA 677 (A) to set out the conditions to be met for the recognition and enforcement of a foreign judgment, namely: ‘(i) that the court which pronounced the judgment had jurisdiction to entertain the case according to the principles recognised by our law with reference to the jurisdiction of foreign courts (sometimes referred to as “international jurisdiction or competence”)? (ii) that the judgment is final and conclusive in its effect and has not become superannuated? (iii) that the recognition and enforcement of the judgment by our courts would not be contrary to public policy? (iv) that the judgment was not obtained by fraudulent means? (v) that the judgment does not involve the enforcement of a penal or revenue law of the foreign state? and (vi) that enforcement of the judgment is not precluded by the provisions of the Protection of Businesses Act 99 of 1978, as amended…’. In this case, the parties did not seek to qualify these requirements (para 27).

According to the court, a provisional sentence is a “summary remedy” that allows a judgment creditor with a liquid document to obtain relief quickly without initiating a trial action (para 19). The liquid document relied upon by the judgment creditor “must be a written instrument signed by the defendant acknowledging indebtedness unconditionally for a fixed amount of money,” and the judgment debt  “must be fixed, definitive, sounding in money,” which is “evident on the face of the document” (para 21). Thus, the judgment creditor must satisfy the court that the foreign judgment satisfies these conditions in order to succeed under the proceedings for a provisional sentence. Under the proceedings for provisional sentence, the need for extrinsic evidence nullifies the liquidity requirement. However, over time, there has been a shift away from the strict application of the principle of “the document must speak for itself” towards the need for “greater flexibility as to what evidence extrinsic to the foreign judgment itself may be permissible” (para 22).

The Supreme Court of Appeal stated that the judgment debt contained in the California Court Orders was for the possession of property. That is, the respondent should turn over the shares to AWI. Although the California court determined the value of those shares, it did not order Mr Conteh to pay an amount; it only required the respondent to deliver up specified shares. On this issue, the Court of Appeal of the State of California had already held that the appellants ‘were not entitled to an actual money judgment in the default judgment proceedings’ (para 11).

The SCA further made two observations on the relevant provisions of California law. First, court orders for the possession of property cannot be immediately enforced as a money judgment upon issuance. Some steps need to be followed: “The levying officer must have failed to take custody of the property; made demand of the judgment debtor, if the debtor can be located; the levying officer must then make a return that the property cannot be obtained” (para 31). It is only when these steps have been followed that the judgment for the possession of property will be enforced ‘in the same manner’ (para 31) as a money judgment. Secondly, the Supreme Court of Appeal emphasized that although the relevant provisions of Californian law allow for the enforcement of the Californian Court Orders ‘in the same manner’ as a money judgment, it does not render the court orders to be a money judgment (para 31).

On why a court order that can be enforced as a money judgment under Californian laws should not be recognised and enforced by a South African court, the Supreme Court of Appeal stated that it “is a matter of sovereignty” (para 33). South African courts are not simply instruments for enforcing California court orders. In addition, the summons by the appellants was for a provisional sentence and did not request a South African court to implement the enforcement procedures of Californian law (para 34).

Most crucially, the court stated that because the cause of action set out in the summons was based on a foreign judgment that is not a money judgment, the provisional sentence cannot be granted (para 35). Also, the California courts did not constitute a liquid document for a fixed sum of money. Thus, the Supreme Court of Appeal dismissed the case, but on a ground different from that of the high court. The Supreme Court of Appeal reasoned that it was not the recourse of the appellants to extrinsic evidence that rendered provisional sentence unavailable to them. Instead, the foreign judgment they relied upon is not a money judgment, hence not a liquid document (para 36). Consequently, the appeal was dismissed.

 

Comment

This is a case where the judgment creditors sought the assistance of the South African courts to recognize and enforce the California court orders. It was a typical case of recognition and enforcement of foreign judgments. However, the foreign judgment fell short of the requirements to be satisfied when recognizing and enforcing judgment sounding in money. One of the recognized procedures for recognizing and enforcing foreign judgment in South Africa is by way of provisional sentence. When making this application for a provisional sentence, the judgment creditor should be armed with a liquid document. As a requirement, the judgment in question needs to be a money judgment. However, in this instant case, according to the Supreme Court of Appeal, the California Court Orders do not constitute a liquid document: the judgment obtained in the Californian courts was not a money judgment. Consequently, according to both the High Court and the Supreme Court of Appeal, because this ‘necessary’ requirement has not been met, the foreign judgment cannot be enforced by way of a provisional sentence.

In most common law legal systems, when recognizing and enforcing a foreign judgment, one of the requirements is that the judgment should be a fixed sum of money. Although it is not stated clearly in SADC countries, it is implicit in the procedure for enforcing foreign judgments through provisional sentence summons, which are summons on liquid documents (para 21). In this case, the South African court upheld this requirement and did not recognize the Californian court orders, which did not constitute a liquid document. Although a monetary value had been placed on the shares the respondent had to transfer, it was not deemed a money judgment. Thus, the fact that a foreign court order can be converted into a monetary value does not change the nature of the judgment into a monetary value. For a judgment to qualify as a fixed sum of money, it needs to be shown clearly in the foreign judgment that the judgment debtor is required to pay a specific sum of money. In the words of the court, the debt must be “fixed, definitive, sounding in money and evident on the face of the document relied upon” (para 21). Without that, it does not qualify as a monetary judgment and cannot be recognized and enforced. The California judgment was not a money judgment. Thus, it was not recognized and enforced by way of provisional sentence. It is submitted that the Supreme Court of Appeal was right to dismiss the appeal on this ground. This decision by the Supreme Court of Appeal will be of great importance to Southern African courts, which are influenced by the jurisprudence of South African courts (Standic BV v Petroholland Holding (Pty) Ltd (A 289-2012) [2020] NAHCMD 197).

 

This judgment also shows the clinging of South Africa’s court to the common law theory of obligation (para 18). Per the theory of obligation, a foreign judgment can be recognized and enforced by initiating a new action for the judgment debt. The rationale is that the foreign judgment imposes an obligation on the individual against whom the judgment was rendered to pay the judgment debt. The claim to pay the judgment debt is separate from the original cause of action that led to the judgment in the foreign jurisdiction. The judgment obtained in this new suit, not the original foreign court judgment, is enforceable as a judgment in the domestic courts. However, one should not be quick to pin this theoretical basis on South Africa’s legal regime. This is because, in other cases of recognition and enforcement of foreign judgment that have come before the South African courts, such as Richman v Ben-Tovim (para 4) and the Government of Zimbabwe v Fick 2013 (5) SA 325 (CC) (para 56-57), other bases such as comity and reciprocity have been mentioned to be the basis for enforcing a foreign judgment. One should thus be guided by the counsel of Booysen J in Laconian Maritime Enterprises Ltd v Agromar Lineas1986 (3) SA 509 (D), where she observed rightly that trying to search for a theoretical basis was “a most interesting and somewhat frustrating exercise to attempt to pin it down” (Laconian Maritime Enterprises Ltd v Agromar Lineas 1986 (3) SA 509 (D) 513). The court thus observed that the concern should be on the applicable legal regime (that is, whether common law regime or the statutory regime) and the stipulated conditions for the recognition and enforcement of foreign judgment (Laconian Maritime Enterprises Ltd v Agromar Lineas 1986 (3) 509 (D) 516).

 

Another aspect of this case concerns recognizing and enforcing non-monetary foreign judgments. It is submitted that the practice where only judgments sounding in money are recognized and enforced is problematic and does not reflect recent developments in the field of recognition and enforcement of foreign judgment. A foreign judgment, beyond the requirement for the payment of a specific sum of money, might also require that the judgment debtor perform an act that includes the transfer of shares (like in this instant case) or delivery of property. There is a need for development in South Africa’s legal regime to enable it to recognize and enforce non-monetary foreign judgments.

Current legislative developments in the arena of recognition and enforcement of foreign judgments allow for the recognition and enforcement of non-monetary judgments. For instance, the 2019 Hague Judgments Convention allows for recognizing and enforcing non-monetary judgments. According to the Garcimartín-Saumier Report, recognition and enforcement of foreign judgment “includes money and non-money judgments, judgments given by default.. and judgments in collective actions” (para 95). Further, the Report adds that “Judgments that order the debtor to perform or refrain from performing a specific act, such as an injunction or an order for specific performance of a contract (final non-monetary or non-money judgments) fall within the scope of the Convention”. Also, the Commonwealth Model Law on Recognition and Enforcement of Foreign Judgment of 2018 allows for the recognition and enforcement of non-monetary judgments (Art 2). Even before these legislative innovations, the Supreme Court of Canada, in the case of Pro Swing Inc v Elta Golf Inc ((2007) 273 DLR (4th) 663), had already held that the traditional common law rule that limits enforcement to fixed sum judgments should be revised to allow for the enforcement on non-monetary judgments. Also, common law countries such as Australia and New Zealand have all, by legislation, done away with the fixed sum of money restriction (Australia: Section 5(6) of Foreign Judgments Act 1991; New Zealand: Section 3B of Reciprocal Enforcement of Judgments Act 1934).

These represent current developments in the law, and thus, the courts in South Africa, as part of their responsibility to develop the common law (section 8(3) of South Africa’s 1996 constitution), should incorporate this innovation in order to develop the common law in this regard the next time they are seised with a case which requires them to recognize and enforce a non-monetary foreign judgment.

Suppose South Africa’s legal regime recognizes and enforces non-monetary foreign judgments; the court might have reached a different conclusion rather than outright dismissing the case and the appeal. In that situation, the California court order, which required the respondent to transfer shares to AWI, would have been capable of being recognized and enforced by the South African court. After the recognition and possible enforcement of the order to transfer the shares, the court would subsequently be invited to determine how to handle the monetary value placed on the shares to be transferred. However, such an opportunity was missed because South African courts do not recognize and enforce non-monetary judgments.

 

The fist issue of 2024 of the Rivista di diritto internazionale privato e processuale (RDIPP) is out. Along with recent case law and materials, it features six contributions. Francesco Salerno, Il contributo degli studiosi italiani ai corsi de L’Aja di diritto internazionale privato [The Contribution of Italian Scholars to the Teaching of Private International Law […]

The second edition International Commercial Contracts – Contract Terms, Applicable Law and Arbitration, authored by Giuditta Cordero-Moss (University of Oslo), is out. The book is published by Cambridge University Press. Any practising lawyer and student working with international commercial contracts faces standardised contracts and international arbitration as mechanisms for dispute settlement. Transnational rules may be […]

Professor Matthias Lehmann, Chair of Private International and Comparative Law at the University of Vienna, seeks two highly skilled and ambitious research fellows from 1 October 2024 (“prae-docs”). Post-docs can also apply; in this case, the two positions would be merged into one. The first position is available in the area of private international law […]

Professor Matthias Lehmann, Chair of Private International and Comparative Law at the University of Vienna, seeks two highly skilled and ambitious research fellows from 1 October 2024 (“prae-docs”). Post-docs can also apply; in this case, the procedure would be restarted and the two positions would be merged into one.

The first position is available in the area of private international law and international dispute resolution (further details here). The second position is available in the area of international banking and financial law (further details here). The candidate should have some knowledge in the respective area. A post-doc should have knowledge in either area.

Applicants hold a master’s degree in law from any jurisdiction and possess an excellent command of English; a basic knowledge of German is welcome, but not necessary. Knowledge of other languages and advanced IT skills are desirable qualities that may be taken into consideration.

Successful candidates will be given the opportunity to complete a PhD or conduct post-doctoral research in accordance with the Faculty’s regulations. Other responsibilities include supporting Professor Lehmann in his work at the Chair and independent teaching, including coaching moot courts.

The positions involve 30 hours per week, of which 10 hours are set aside for the individual PhD project, and are remunerated according to the salary scale of the University of Vienna (c. 2.680 € gross per month, rising to 3.180 € after 3 years – paid out 14 times (!) per year). Contracts are for an initial term of one year during which there is a termination option for both sides, afterwards it is to be extended to a full four years.

Applications (including a cover letter in German or English, a CV, and relevant diploma) should be submitted via the University of Vienna’s Job Centre portal (https://jobs.univie.ac.at/) no later than 28 June 2024. Please include reference number 2449 for the specialisation in private international law and/or reference number 2499 for the specialisation in international business law. Questions about the positions and the application process can be addressed to Mrs Diana Dejakum at service.rechtsvergleichung@univie.ac.at.

The Spanish Yearbook of International Law (SYbIL), edited by the Asociación Española de Profesores de Derecho Internacional y Relaciones Internacionales (AEPDIRI), is calling for papers on topics of public and private international law for its forthcoming volume. Aware of the paramount importance of international practice, the Spanish Yearbook of International Law publishes contributions from active academics […]

The author of this post is Manuel Penades Fons, Reader in International Commercial Law at the Dickson Poon School of Law at King’s College London, United Kingdom. Introduction In Oilchart the CJEU needs to decide whether a creditor can commence proceedings in an EU Member State against a party which is already subject to insolvency […]

In this blog post, I respond to a recent critique by Dr. Cosmas Emeziem of a blog post co-authored by Dr. Abubakri Yekini and myself. Our post celebrated the elevation of Justice H.A.O. Abiru to the Nigerian Supreme Court and highlighted its significance for the development of Nigerian conflict of laws.

Dr. Emeziem argues that institutional expertise should be prioritised over individual expertise. He states, “[I]t is essential to stay focused on institutional capacities, expertise and competence and how to enhance them—instead of individualized expertise, which, though important, are weak foundations for enduring legal evolution and a reliable PIL regime.” He concludes that: “Thus, the idea that “an expert in conflict of laws is now at the Supreme Court after a long time”  is potentially misleading—especially for persons, businesses, and investors who may not know the inner workings of complex legal systems such as Nigeria.”

Yekini and I in our blog post , clearly stated: “Nevertheless, this is not to suggest that Justice Abiru’s expertise is limited to conflict of laws, nor that other Nigerian judges do not possess expertise in conflict of laws. The point being made is that his Lordship’s prominence as a judicial expert in conflict of laws in Nigeria is noteworthy.” [emphasis added]. The work of a judge is challenging, and academics should recognize and celebrate their expertise.

Celebrating judicial expertise is beneficial. For instance, Dr. Mayela Celis on 24 November 2021 in one blog post praised the appointment of Justice Loretta Ortiz Ahlf – a private international law expert – to the Mexican Supreme Court. Celis concluded in her blog post that: “This appointment will certainly further the knowledge of Private International Law and Human Rights at the Mexican Supreme Court.”

It is common for judges to specialize in certain legal fields, especially at the appellate level. This specialization enables them to provide leading judgments in relevant cases. This is particularly true in common law jurisdictions, where judges are known for their individual attributes and often provide separate decisions, which can result in a diverse range of opinions even within the same case. For example, in the English case of Boys v Chaplin, the House of Lords was unable to provide a coherent ratio decidendi due to differing opinions regarding the law applicable to torts when applying English law to heads of damages.

In Sonnar (Nig) Ltd v Partenreedri MS Norwind (1987) 4 NWLR 520 at 544 Oputa JSC of the Nigerian Supreme Court, although concurring, expressed a separate view that as a matter of public policy, Nigerian courts “should not be too eager to divest themselves of jurisdiction conferred on them by the Constitution and by other laws simply because parties in their private contracts chose a foreign forum.” Many other Nigerian judges have since followed this individual approach taken by Oputa JSC, despite the majority of the Nigerian Supreme Court in Sonnar unanimously, and repeatedly in Nika Fishing Company Ltd v Lavina Corporation (2008) 16 NWLR 509, and Conoil Plc v Vitol SA (2018) 9 NWLR 463, expressing preference for the enforcement of a foreign jurisdiction clause, except where strong cause is advanced to the contrary. In this context, the influence of an individual judge in decision-making in conflict of laws cannot be undermined.

In England, former United Kingdom Supreme Court Judges like Lord Collins and Lord Mance are renowned for their expertise in conflict of laws. Indeed, Lord Collins’ academic prowess in conflict of laws is internationally renowned, as he is one of the chief editors of the leading common law text on the subject. Nevertheless, this is not to suggest that judges who are not specialists in conflict of laws cannot make significant contributions to the subject. For instance, Lord Goff, known for his expertise in unjust enrichment, significantly contributed to the principle of forum non conveniens, delivering the leading judgment in the seminal case of Spiliada Maritime Corp v. Cansulex Ltd. The point being made is that judges’ specialization in a subject significantly enhances the quality of judicial decisions, a fact that scholars should celebrate.

The rise of international commercial courts in Asia and the Middle East, which resemble arbitral tribunals, underscores the importance of individual judicial expertise. These courts, including those in Hong Kong, Singapore, Dubai, Qatar, Kazakhstan, and Abu Dhabi attract top foreign judicial experts to preside over and decide cases, thereby instilling confidence in international commercial parties (Bookman 2021; Antonopoulou, 2023). For instance, Lord Collins a former non-permanent Member of the Hong Kong Court of Final Appeal, delivered the leading judgment in the significant cross-border matter of Ryder Industries Ltd v Chan Shui Woo, with the agreement of all other judges on the panel.

Yekini and I stated in our blog post, that Justice Abiru’s “dissenting opinion in Niger Aluminium Manufacturing Co. Ltd v Union Bank (2015) LPELR-26010(CA) 32-36 highlights his commitment to addressing conflict of laws situations even when the majority view falls short.” If the bench in the conflict of laws case where Justice Abiru dissented had been conversant with private international principles in Nigeria, a different outcome might have been reached. This is crucial in the context of the numerous per incuriam decisions by Nigerian appellate courts, which hold that in inter-state matters, a State High Court can only assume jurisdiction over a cause of action that arose within its territory, regardless of whether the defendant is present and/or willing to submit to the court’s jurisdiction (Okoli and Oppong, Yekini, and Bamodu) . The key point is that having more specialists in conflict of laws in Nigerian courts will significantly enhance the quality of justice delivery in cross-border issues.

In conclusion, while Justice H.A.O. Abiru is not the entire Nigerian Supreme Court for conflict of laws, there is nothing wrong with emphasizing and celebrating his specialization in this field. Therefore, I stand by my co-authored blog post and will continue to highlight such expertise.

 

I. Introduction

The decision presented in this post was rendered in the context of a case previously reported here. All of the comments I made there, particularly regarding the possibility of enforcing a foreign enforcement judgment and other related issues, remain particularly relevant. However, as I have learned more about the procedural history preceding the decisions of the Dubai Supreme Court (“DSC”), which was not available to me when I posted my previous comment, greater emphasis will be placed on the general factual background of the case. The decision presented here raises a number of fundamental questions related to the proper understanding of foreign legal concepts and procedures and how they should be integrated within the framework of domestic law. Therefore, it deserves special attention.

I would like to thank Ed Morgan (Toronto, ON Canada) who, at the time when my previous comment was posted, brought to my attention the text of the Ontario judgment whose enforcement was sought in Dubai in the present case.

 

II. Facts:

 1. Background (based on the outline provided by the DSC’s decisions)

 X (appellant) obtained a judgment in the United States against Y (appellee), which then sought to enforce it in Canada (Ontario) via a motion for summary judgment. After the Ontario court ordered enforcement of the American judgment, X sought enforcement of the Canadian judgment in Dubai by filing an application with the Execution Court of the Dubai Court of First Instance.

 

2. First Appeal: DSC, Appeal No. 1556 of 16 January 2024

The lower courts in Dubai admitted the enforceability of the Canadian judgment. Unsatisfied, Y appealed to the DSC. The DSC admitted the appeal and overturned the appealed decision, remanding the case for further review.

According to the DSC, the arguments raised by Y to resist the enforcement of the Canadian judgment – i.e. that the Court of Appeal erred in not addressing his argument that the foreign judgment was a “summary judgment [hukm musta’jil][i] declaring enforceable a rehabilitation order (hukm rad i’tibar)[ii] and an obligation to pay a sum of money rendered in the United States of America that cannot be enforced in the country [Dubai]” – was a sound argument that, if true, might change the outcome of the case.

 

3. Second Appeal: DSC, Appeal No. 392/2024 of 4 June 2024

The case was sent back before the court of remand, which, in light of the decision of the DSC, decided to overturn the order declaring enforceable the Ontario judgment. Subsequently, X appealed to the DSC.

Before the DSC, X challenged the remand court’s decision arguing that (i) the rules governing the enforcement of foreign judgments do not differentiate by types or nature of foreign judgments; (ii) that under Canadian law, “summary judgment” means a “substantive judgment on the merits”; and that (iii) Y actively participated in the proceedings and the lack of a full trial did not violate Y’s rights of defense.

 

III. The Ruling

The DSC admitted the appeal and confirmed the order declaring enforceable the Canadian judgment.

After stating the general principles governing the enforcement of foreign judgments in the UAE and recalling some general principles of legal interpretation (such as the prohibition of personal interpretation in the presence of an absolutely unambiguous text, and the principle that legal provisions expressed in broad terms should not be interpreted restrictively), the DSC ruled as follows (all quotations inside the text below are added by the author):

“[it appears from the wording of the applicable legal provision[iii] that] exequatur decrees are not limited to “judgments” (ahkam) rendered in foreign countries but extends to foreign “orders” (awamir) provided that they meet the requirements for their enforcement. Furthermore, the [applicable legal provision][iv] has been put in broad terms (‘aman wa mutlaqan), encompassing all “judgments” (ahkam) and “orders” (awamir) rendered in a foreign country without specifying their type (naw’) or nature (wasf) as long as the other requirements for their enforcement are satisfied. Moreover, there is no evidence that any other legal text pertaining to the same subject specifies limitations on the aforementioned [the applicable legal provision]. To the contrary, and unlike the situation [under the previously applicable rules],[v] the Legislator has expanded the concept of enforceable titles (al-sanadat al-tanfidhiyya),[vi] which now includes criminal judgments involving restitution (radd), compensations (ta’widhat), fines (gharamat) and other civil rights (huquq madaniyyah). […]

Given this, and considering that the appealed decision overturned the exequatur decree of the judgment in question on the ground that the [Canadian] judgment, which recognized a judgment from the United States, was a “summary judgment” (hukm musta’jil) enforceable only in the rendering State, despite the broad wording of [the applicable provisions],[vii] which covers all judgments (kul al-ahkam) rendered in a foreign State without specifying their type (naw’) or nature (wasf) provided that the other requirements are met. In the absence of any other specification by any other legal text pertaining to the same subject, the interpretation made by the appealed decision restricts the generality of [the applicable rules] and limits its scope [thereby] introducing a different rule not stipulated therein.

Moreover, the appealed decision did not clarify the basis for its conclusion that the [foreign] judgment was a “summary judgment” (hukm musta’jil) enforceable only in the rendering State. [This is more so], especially since the submitted documents on the Canadian civil procedure law and the Regulation No. 194 on [the Rules of Civil Procedure] show that Canadian law recognizes the system of “Summary judgment”[viii] for issuing judgments through expedited procedures, and that the [foreign] judgment was indeed rendered following expedited procedures after Y’s participation by submitting rebuttal memoranda and hearing of the witnesses.[…]

Considering the foregoing, and upon reviewing the [Canadian] judgment… rendered in favor of the appellant as officially authenticated, it is established that the parties (X and Y) appeared before the [Canadian] court, [where] Y presented his arguments … and the witnesses were heard. Based on these proceedings [before the Canadian court], the court decided to issue the aforementioned “summary judgment” (al-hukm al-musta’jil) whose enforcement is sought in [this] country. [In addition, the appellant presented] an officially authenticated certificate attesting the legal authority (hujjiyat) [and the finality][ix] of the [Canadian] judgment. Therefore, the requirements stipulated [in the applicable provisions][x] for its enforcement have been satisfied. In addition, it has not been established that the courts [of the UAE] have exclusive jurisdiction over the dispute subject of the foreign judgment, nor that the [foreign] judgment is [rendered] in violation of the law of the State of origin or the public policy [in the UAE], or that it is inconsistent with a judgment issued by the UAE courts. Therefore, the [Canadian] judgment is valid as a an “enforceable title” (sanad tanfidhi) based on which execution can be pursued.

 

IV Comments

 The decision presented here has both positive and negative aspects. On the positive side, the DSC provides a welcome clarification regarding the meaning of “foreign judgment” for the purposes of recognition and enforcement. In this respect, the DSC aligns itself with the general principle that “foreign judgments” are entitled to enforcement regardless of their designation, as long as they qualify as a “substantive judgment on the merits”. This principle has numerous explicit endorsements in international conventions dealing with the recognition and enforcement of foreign judgments[xi] and is widely recognized in national laws and practices.[xii]

However, the DSC’s understanding of the Canadian proceedings and the nature of the summary judgment granted by the Canadian court, as well as its attempt to align common law concepts with those of UAE law are rather questionable. In this respect, the DSC’s decision shows a degree of remarkable confusion in the using the appropriate legal terminology and understanding fundamental legal concepts. These include (i) the treatment of foreign summary enforcement judgments as ordinary “enforceable titles” (sanadat tanfidhiyya – titres exécutoires) under domestic law including domestic judgments rendered in criminal matters; (ii) the assimilation between summary judgment in common law jurisdictions and hukm musta’jil (“summary interlocutory proceedings order” – “jugement en référé”); and (iii) the confusion between summary judgment based on substantive legal issues and summary judgment to enforce foreign judgments.

For the sake of brevity, only the third point will be addressed here for its relevant importance. However, before doing so, some light should be shed on the proceedings before the Canadian court.

 

1. The proceedings before the Canadian Court and the nature of the Canadian Judgment

The unfamiliarity with DSC with the proceedings in Canada and underlying facts is rather surprising for two reasons: i) the proceedings were initiated by the American government in the context of a bilateral cooperation in criminal matters; and ii) the Canadian proceedings was a proceeding to enforce a foreign judgment rendered in criminal matters and was not simply a proceeding dealing with substantive legal issues. Therefore, a detailed review of the proceedings before the Ontario is necessary to better understand the peculiarities of the case commented here.

i) Proceedings in the context of mutual cooperation in criminal matters. The case originated in Ontario-Canada as a motion brought by the United States of America represented by the Department of Justice as plaintiff for summary judgment to recognize and enforce a “Restitution Order”[xiii] made against Y (defendant). The Restitution Order was part of Y’s sentence in the USA for securities fraud and money laundering. It “included terms as to payment and listed the victims and amounts to which they were entitled under the order” [para. 16].

The general procedural context of the Canadian judgment is of utmost relevance. Indeed, the USA sought the enforcement of the Restitution Order on the basis of the Mutual Legal Assistance in Criminal Matters Act. The Act, as it describes itself, aims “to provide for the implementation of treaties for mutual legal assistance in criminal matters”. According to the Ontario Court, The Act is a “Canadian domestic legislation enacted to meet Canada’s treaty obligations for reciprocal enforcement in criminal matters” [para. 6]. These treaty obligations are based on the Canada-USA Treaty on Mutual Legal Assistance in Criminal Matters of 1990 [para. 6].

This is why, before the Canadian Court, one of the main questions [para. 25] was whether the “Restitution Order” could be regarded as “fine” within the meaning of the Act [para. 26]. If this is the case, then the Restitution Order could be enforced as a “pecuniary penalty determined by a court of criminal jurisdiction” in the meaning of article 9 of the Act.

On the basis of a “broad, purposive interpretation of “fine” … aligned with Canada’s” international obligation under the Treaty, the Ontario court considered that “proceeds of crimes, restitution to the victims of crime and the collection of fines imposed as a sentence in a criminal prosecution” can be regarded as “fine” for the purpose of the case [para. 30]. In addition, the court characterized the restitution order as “a pecuniary penalty determined by a court of criminal jurisdiction” [para. 35], and also described it as an “order made to repay the individual members of the public who were encouraged to purchase stock at an inflated price by virtue the criminal activity” [para. 39]. The court ultimately, concluded that “the Restitution Order made against [Y] is a “fine” within the meaning of… the Act” [para. 41].

From a conflicts of laws perspective, the question of whether the “Restitution Order” is of a penal nature is crucial. Indeed, it is generally accepted that penal judgments are not eligible to recognition and enforcement. However, nothing prevents derogating from this principle by concluding international conventions or enforcing the civil law component of foreign judgments rendered by criminal courts in criminal proceedings, which orders the payment of civil compensation.[xiv]

Interestingly, before the Canadian court, Y argued that the “Restitution Order” made against him was not a “fine” because it was a “compensatory-type” order [para. 27]. However, it is clear that it was an attempt to exclude the enforcement of Restitution Order from the scope of application of the Mutual Legal Assistance in Criminal Matters Act. In any event, despite the crucial theoretical and practical importance of the issue, this is not the place to discuss whether the “Restitution Order” was penal or civil in nature. What matters here is the nature of the proceeding brought before the Canadian court which is a summary proceeding to recognize and enforce a foreign judgment. This leads us to the next point.

ii) Nature of the Canadian judgment. It is clear from the very beginning of the case that the USA did not bring an action on the merits but sought “an order for summary judgment recognizing and enforcing a judgment a Restitution Order made against [Y] as part of his sentence in [the USA] for securities fraud and money laundering” [para. 1]. Therefore, the case was about a motion for a summary judgment to enforce a foreign judgment. In this respect, one of the interesting aspects of the case is that Y also relied on the enforcement of foreign judgments framework and raised, inter alia, “a defence of public policy” at common law [para. 79] citing Beals v, Saldanha (2003), a leading Canadian Supreme Court judgment on the recognition and enforcement of foreign judgments in civil and commercial matters.[xv] The court however dismissed the argument considering that there was “no genuine issue for trial on the question of a public policy defence against the enforcement in Canada of the Restitution Order” [para. 82].

Accordingly, if one puts aside the question of enforceability of foreign penal judgments, it is clear that the Canadian judgment was a judgment declaring enforceable a foreign judgment. The very conclusion of the Canadian court makes it even clearer when the court granted USA’s motion for summary judgment by ordering the enforcement in Canada of the Restitution Order [para. 84]. Accordingly, as discussed in my previous comment on this case, and taking into account the nature of the Canadian judgment, it can be safely said that the Canadian enforcement judgment cannot be eligible to recognition and enforcement elsewhere based on the adage “exequatur sur exequatur ne vaut”.

 

2. No… a summary judgment to enforce a foreign judgment is not a summary judgment based on substantive legal issues!

It is widely known that the procedural aspects of the enforcement of foreign judgments largely differ across the globe. However, it is fair to say that there are, at least, two main models (although other enforcement modalities do also exist). Generally speaking, civil law jurisdictions adopt the so-called “exequatur” proceeding the main purpose of which is to confer executory power to the foreign judgment and transforms it into a local “enforceable title”. On the other hand, in common law jurisdictions, and in the absence of applicable special regimes, the enforcement of foreign judgments is carried out by initiating a new and original action brought before local court on the foreign judgment.[xvi] The purpose of this action is to obtain an enforceable local judgment that, while recognizing and enforcing the foreign judgment, is rendered as if it were a judgment originally issued by the local court.[xvii] Both procedures result in similar outcome:[xviii] what has been decided by the foreign court will be granted effect in the form. However, technically, in civil law jurisdiction it is the foreign judgment itself that is permitted to be enforced in the forum,[xix] while in common law jurisdictions, it is the local judgement alone which is enforceable in the forum.[xx]

Such an enforcement in common law jurisdictions is usually carried out by way of summary judgment procedure.[xxi] However, this procedure should not be confused with the standard summary judgment procedure used to resolve disputes on the merits within an ongoing case. In fact, it is a distinct process aimed specifically at recognizing and enforcing foreign judgments,[xxii] which is the functionally equivalent counterpart in common law jurisdictions to the exequatur procedure.

This is precisely the confusion that the DSC encountered. The Court regarded the Canadian summary judgment as “a civil substantive judgment on the merits”, although it was not. Therefore, – and as already explained – the summary judgment rendered in result of this proceeding cannot be regarded as “foreign judgment” eligible for recognition and enforcement abroad in application of  the principle “exequatur sur exequatur ne vaut”.

 

 

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[i] In my previous post, I translated the term “hukm musta’jil” as “summary judgment to highlight the nature of the Canadian procedure. However, from the purpose of UAE law, I think it is better that this word be translated as “summary interlocutory judgment – jugement en référé”. This being said, for the purpose of this post the terms “summary judgment” will be used to highlight the terminological confusion committed by the DSC.

[ii] In my previous post, I was misled by the inappropriate terminology used in the DSC’s decision which referred to this American order as “Rehabilitation order” (hukm rad i’tibar). The term “rehabilitation order” is maintained here as this is the term used by the DSC.

[iii] The DSC made reference to article 85 of Cabinet Resolution No. 57/2018 on the Executive Regulations of Law No. 11/1992 on Civil Procedure Act (hereafter “2018 Executive Regulation”), which was subsequently replaced by article 222 of New Federal Act on Civil Procedure (Legislative Decree No. 42/2022 of 3 October 2022) (hereafter “New 2022 FACP”).

[iv] Ibid.

[v] The DSC referred the former Federal Act on Civil Procedure of 1992 (Federal Act No. 11/1992 of 24 February 1992)

[vi] The DSC referred to article 75(2) of the 2018 Executive Regulation as subsequently supplanted by article 212(2) of the New 2022 FACP.

[vii] Supra n (3).

[viii] In the original. Italic added.

[ix] In the words of the DSC, the foreign judgment “was not subject to appeal”.

[x] Supra n (3).

[xi] See Article 3(1)(b) of the HCCH 2019 Judgments Convention; article 4(1) of the HCCH 2005 Choice of Court Convention; article 25(a) of the 1983 Riyadh Convention.

[xii] See eg. the Japanese Supreme Court Judgment of 28 April 1998 defining foreign judgment as “a final judgment rendered by a foreign court on private law relations… regardless of the name, procedure, or form of judgment” “[e]ven if the judgment is called a decision or order”.

[xiii] Supra n (2).

[xiv] On UAE law on this issue, see my previous post here and the authorities cited therein.

[xv] On this case see, Janet Walker, “Beals v. Saldanha: Striking the Comity Balance Anew” 5 Canadian International Lawyer (2002) 28; idem, “The Great Canadian Comity Experiment Continues” 120 LQR (2004) 365; Stephen G.A. Pitel, “Enforcement of Foreign Judgments: Where Morguard Stand After Beals” 40 Canadian Business Law Journal (2004) 189.

[xvi] Trevor C. Hartley, International Commercial Litigation (3rd ed. 2020) 435.

[xvii] Adrian Briggs, “Recognition of Foreign Judgments: A Matter of Obligation” 129 LQR (2013) 89.

[xviii] Briggs, ibid.

[xix] Peter Hay, Advance Introduction to Private International Law and Procedure (2018) 110.

[xx] Briggs, supra n (17).

[xxi] Adeline Chong, Asian Principles for the Recognition and Enforcement of Foreign Judgments (2021)13.

[xxii] Cf. Hartley, supra n (16) 435 pointing out that “Procedurally, therefore, a new action is brought; in substance, however, the foreign judgment in recognized and enforced” (italic in the original).