Recognition and Enforcement of Foreign Judgements

A PROJECT SUBMITTED TO THE FULFILMENT OF ASSIGNMENT IN

Private International Law

Submitted by – Ankit Raj

Enrollment No. –A46011119012

Submitted to –

Ashutosh Kumar

(Assistant Professor)

(Amity University, Patna)

I should like to place on record a special thanks to Prof. Ashutosh Kumar, Assistant Professor,
Faculty of law, for his personal care timely suggestion and his creative guidance in this project
and with whose help the practical realization of this project has been possible.

Some printing errors might have done, which are deeply regretted. I would be grateful to receive
Comments and suggestion to further improve my project report in future.
Introduction

In this era of globalization, Private International Laws have become a necessity. The need for
Private International Laws arises when there is a foreign geographical connection with the case,
or there is some presence of the foreign element. This foreign element can be anything ranging
from a contract between two parties of a different nationality to a tort committed with foreign
influence. In such cases, the concept of Private International Laws is also called ‘Conflict of
Laws’. In such cases, the court undertaking the case has to apply the principles of private
international laws along with the domestic laws. Almost all the nations have well-codified laws
and a system of conflict of laws. For understanding, let us see this way that the world is divided
into different territorial units, with each unit being governed by its specific laws considering
contracts, sales of goods, torts, etc. A person who belongs to one such territorial unit may travel
to another unit and get engaged in the contract. When he comes back and an issue regarding
contract arises, then the court with jurisdiction has to apply international private laws along with
domestic laws.

Private International Laws

Private international laws can be loosely defined as a branch of national law, which is
administered by the court of the particular nation or land in the cases which have the presence of
any foreign element.

Basis and Doctrine of Comity

The basis or Foundation of Private international laws arises out of the need of internationally
compatible legislations. It has also been suggested that the Private International Laws are based
on the Doctrine of Comity. The doctrine of comity refers to mutual understanding between
various states, comity is nothing but the accepted rules which are mutually acceptable by
different states and apply the same with cooperation, giving ease to each other.

One of the finest examples of recognition of comity is Section 11 of the Foreign Marriages Act,
1969. Through this Act, permission has been given to Indian diplomatic officers and consular
officers to conduct marriages of persons (out of which should be an Indian Citizen) in a foreign
land. It also provides that no such marriage which is prohibited in that particular country cannot
be conducted. As per the Joint Committee of parliament, this rule was enacted to remove any
problem of incoherency with International laws and comity of nations. Doing so serves another
purpose, as desired by the parliament, marriages under this Act are more internationally
acceptable.

Before we head onto recognition and enforcement of foreign judgments it is important to

 Lex Loci Celebrationis

This rule governs the formal validity of the marriage, the meaning of lex loci
celebrationis is ‘Law of the place where the marriage takes place’.

 Lex Domicili

Lex Domicili governs the capacity and validity of the marriage of two parties. Lex
domicili, which means the law of the domicile, at the time of death of a person also helps
in the succession of movable property.

 Lex Situs

Lex situs help in governing the matters related to the transfer of movable property. Lex
situs which means the law of the place, not only helps in the succession of the movable
property but also helps in transfer of immovable property.

 Lex Fori

Lex Fori or Law of forum helps in the governance of the law of procedure.

 Lex Loci Deliciti

As the name suggests it means the law of the place where the damage occurred, this rule
concerns the commission of a tort. This is one of the important traditional rules.

 Proper Law of Contract

Contractibility or say the contracts between different parties regarding different issues are
concerned with applicable law also called proper law of contract.

Recognition and Enforcement of Foreign Judgements

Code of Civil Procedure 1908, talks about recognition of foreign judgments. It is present
in Section 13 and Section 44A therefore it is necessary to analyse these sections. Apart from this,
it is necessary to know that Article 101 of the Limitation Act, 1963 mentions that a suit on
foreign judgment should be filed within 3 years from the judgment’s date.

Section 13, Code of Civil Procedure

This section deals with foreign judgments and mentions the instances where foreign judgments
will not be conclusive. Foreign judgments shall be conclusive in various instances with the
following exceptions:
  The foreign judgment will not be conclusive if the maintainability is questionable when
the judgment is given by a court which does not have competent jurisdiction over the
matter.

 The foreign judgment will not be conclusive in case, the decision of the court was not
based on the merits of the case.

 If the case was undertaken and the decision was taken based either on the
misinterpretation or incorrect view of international law then also the foreign judgment
will not be conclusive.

 If it is found that proceedings did not consider the Indian laws applicable in that
particular case, then the foreign judgment will not be considered conclusive.

 For a foreign judgment to be conclusive it should be made sure that judgment does not go
against the spirit of Natural Justice. In such cases where the judgment goes against the
Spirit of Natural Justice then the judgment will not be considered as conclusive.

 The two other cases, where the judgment will not be considered as conclusive, are first: if
the judgment has been obtained by fraud, and second: if the judgment has been given
breaches any of the present Indian laws.

Section 44A

Section 44A deals with the execution of judicial decrees of courts of reciprocating territories.
Before we further delve into the section, it is important to understand about the reciprocating
territories. Reciprocating territories are those countries or territories outside India which have
been considered officially by a gazette as reciprocating territories for the purpose of this section
i.e. 44A. The courts of these territories whose decrease would be admissible are called Superior
Courts. The section apart from defining the reciprocating territories also define the meaning of
Decrees: This is referred to any judicial order or judgment by the superior courts, in very simple
language.

The key points of section 44A are as follows:

 Whenever a certified copy of a decree from superior courts, established in the

 Along with a certified copy of the decree, a certificate which mentions the extent to
which satisfaction or adjustment of the decree has been given. The certificate should be a
conclusive proof which mentions adjustment and satisfaction.

 While executing decrees as per the mentioned procedure the court must not let it violate
the clauses mentioned under Section 13 of Code of Civil Procedure, 1908.
Case Laws

Judgements of the Supreme Courts and High courts play an important role in giving a clear
finishing and proper interpretation of various laws. Similarly in this case to the Supreme Court
has given certain quality judgments regarding the issue of the recognition and enforcement of
foreign judgments. I will discuss one such important issue enunciated by the Supreme Court in
one of its judgments.

Relying on the ratio of the judgment of the case of International Woollen Mills vs Standard Wool
(UK) (2001 5 SCC 265) the Supreme Court in one of the recent judgments has mentioned
Section 13 Civil Procedure Code and Section 44A Civil Procedure Code while deciding the case
of Alcon Electronics Private Limited vs Celem SA and another (2017 2 SCC 253). In this case,
the Supreme Court ruled out that the judgment of English Court, which was being enforced in
India, is a judgment which is wholly based on the merit of the cases. The Supreme Court noted
down that in order to respect the principles of comity of the nations, which is the foundation of
Private International Law, the court must admit/accept the judgment of the English court which
has decided the matter on the basis of merit.

Even if the decision is an interlocutory order the judgment shall be given due weight age, the
only exception where such judgments cannot be accepted is when the judgments are in violation
of Section 13 of Civil Procedure Code. Therefore on this basis, the court considered the
judgment to be conclusive. Mentioning section 44A of the Civil Procedure Code, the court also
mentioned that execution of decrees of reciprocating territories is permissible and England is a
reciprocating territory, which means that decrees passed by English Courts are admissible
according to section 44A (if decrees do not violate section 13 of Civil Procedure Code).
Conclusion

Private International law has become a necessity in this era of Globalization. Nations are
connected with one another. It is now evident how nations work for economic prosperity through
economic cooperation. In such pursuit of material wealth, it becomes very obvious that there will
be clashes between parties engaging in the contract, not only in the contract but also other legal
issues may arise. For such issues, it becomes necessary to take help of Private international law.

As discussed in various statutes of Indian Laws have taken into consideration the need for the
comity of the nations, which forms the foundation basis of Private International Laws. Various
countries follow the traditional rule, whereas few members of the European Union follow
Unified Private International Laws. There are various benefits that arise out of the use of Unified
Private International Laws. The law-makers and legislators should focus on rectifying the
discrepancies and the incoherency within the domestic law, in order to pave the way for a much
larger system of the Unified Private International Laws.
References

 Foreign Marriages Act, 1969

 The Limitation Act, 1963

 Arbitration and Conciliation Act of 1986

  International Woollen Mills vs Standard Wool (UK) (2001 5 SCC 265)

  Alcon Electronics Private Limited vs Celem SA and another (2017 2 SCC 253)