This paper is authored by Gourav Asati, fourth-year student at
Institute of Law, Nirma University, Ahmedabad.
ABSTRACT:
India is one of the many nations to ratify mainstream International Treaties governing copious aspect of law and policy globally, it acknowledges fundamental principles which provides enforceability to the International Law as against the idea of Austin who proposed that key aspect of law as the command of the sovereign backed by sanctions for violation is massing in the regime of International Law. Indeed, Austin was suggesting a lack of binding authority which shall be construed as a core foundation in law, moral sanctions are bare of any use when seen through the lens of commandment similar has been the case with the much-debated dispute of South-China Sea. Apart from the verdict of ICC & ICJ enforcement of judgements from reciprocating territories in domestic matters is another major issue to be addressed.
Indigenously the Code of Civil Procedure (1908) is the legislation to validate enforcement of foreign judgements in India, conditions provided under Section 13 of the Code must be adhered to preceding a foreign judgement, the presumptions of Section 14 give a favorable position to the competency of foreign concerned with ruling however India is not a party to the Hague Convention on the recognition and enforcement of foreign judgments. And hence the present article discussing premier issue pertaining to the enforceability of foreign judgements in India it also deals with relevant case laws, a period of limitation, execution and the extent of judicial recognition in the underlying situation.
INTRODUCTION:
The applicability of international law varies with each nation, but certain laws can be found to be common across the globe. The dictum “a court of competent jurisdiction shall adjudicate in a legal issue arising between the parties to satisfy the impugned claim” is primarily considered as the reason for the enforcement of a foreign judgement in India. Countries have adopted mechanism in the respective judicial system to resolve matters involving foreign judgement, it cannot be termed as the act of courtesy to friendly nations rather an integrated effort to facilitate order of justice, equity and good conscience. The Indian legal system has released a variety of orders and rulings that are highly affected by legislation from other nations. The Court cited the United States Supreme Court's ruling in Kovacs v. Cooper [1]in upholding press freedom. The Supreme Court relied on the United States cases of Furman v. Georgia[2] and Proffitt v. Florida [3]in upholding the death penalty. In cases where there is a conflict of laws, judges conduct a comparative analysis of the laws of different countries in order to draw a successful decision. Piggott defined a foreign judgment in England as a Judgment, Decree, Order or other adjudication pronounced and made by a court whose jurisdiction does not extend to the territories governed by the laws of England. An important aspect of a foreign judgement is its recognition and enforcement which are used are often used synonymously, in bare terms enforcement implies compulsory execution while recognition is subject to certain limits and conditions of the country with a foreign jurisdiction.[4] In Hilton v. Guyot,[5] the United States Supreme Court introduced the concept of reciprocity concerning international decisions, essentially dismissing the vested-right theory's duty, and English law has followed suit. The sources of law which provide validity to the enforcement of the foreign judgment in India can be broadly categorized into three-part including various bilateral & multilateral treaties signed by India and other international conventions, second part constitutes the legislations enacted by the government specifically the Code of Civil Procedure (1908), and third in the form of judicial precedents.
BILATERAL & MULTILATERAL TREATIES:
It is necessary to interpret international law to include those cross-border legal institutions which influence, or attempt to effect, the conduct of states and non-state actors. It removes the arbitrariness of current international law and treaty, as well as the well-known shortcomings of our definition of customary international law. Even though the decision of the international court and various other tribunals are not binding on states that are not parties to the dispute, they construct a kind of quasi-precedent that has a huge impact on all aspects of states' obligations.[6] This lack of enforceability promotes countries to opt for bilateral and multilateral treaties instead of ratifying international conventions, such treaties are more efficient than conventions when it comes to binding nature because each country owes the same obligation. Due to the restricted structure of a bilateral treaty complete collaboration of the treaty's members is necessary to meet the objectives, reservation of any kind is suppressed at times.
India is a party to various treaties with reciprocating countries notified under the Code of Civil Procedure, 1908 for recognition and enforcement of foreign judgements, it follows the customary principles of international and domestic law to sign a treaty. Treaties relating to foreign judgement follows the foundational rule of res judicata and doctrine of obligation which are discussed in the latter part of the article. So far India has signed treaties with the United Kingdom, Singapore, Hong Kong, Bangladesh, Fiji, Singapore, Trinidad and Tobago, Aden, Papua New Guinea, the Cook Island and the Trust Territories of Western Samoa in this domain to minimize legal ambiguity. Scholars have long claimed that international war events are exceptionally unusual in countries, much rarer than one would anticipate considering the scale of the world and its extensive international travel, commerce, and financial activities.[7]
The Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters was first concluded on 1st February 1971 with an object to develop common laws for the recognition and enforcement of disputes in different nations. The convention has been regarded as a milestone in catering for the international dispute, the second time the convention was brought into action on 02 July 2019 when it was adopted countries though India is not a signatory. It formulates a simple procedure for enforcement of a foreign judgment with lucid scope for insolvency, intellectual property, arbitration and other civil disputes. The convention provides room for nations to choose not to apply the judgement with reasons for refusal. It shows a cost-effective path in legal cases which will improve the effectiveness and feasibility of foreign judgment, as parties would be able to assert decisions in foreign courts more freely.
CPC ON FOREIGN JUDGEMENTS:
It is recognized under Section 44 A of r/w. Section 13 the Code of Civil Procedure, 1908. A foreign decree is executed as par with the decree passed by the district court along with a certificate of the respective superior court providing scope and limits of execution.[8] The premise of Section 13 and 14 endorse the rule of res judicata which essentially governs the area of private international law whereby a judgement delivered by a reciprocating foreign court could be enforced between the same parties in India because the issue before the present court has already been judged on merits by another court with the effective release of a final decree concerning rights or privy on all the points in the original case. The Supreme Court ruled in Brijlal Ramjidas v. Govindram Gordhandas Seksaria[9] that Section 13 applies not only to "Judgment," but also to "any matter thereby specifically adjudicated upon." The term 'any' suggests that the judge's adjudicative parts are all similarly definitive. The Supreme Court recently clarified in Bank of Baroda v Kotak Mahindra[10] a case concerning a reciprocating territory's judgement, that the limitation date would be decided by the statute of limitations in the country where the judgement was given.
If the decree-holder uses step-in assistance to execute the decree in the country where the judgement was given and the decree is not entirely satisfied, the decree-holder can file a petition for execution in India within three years of the conclusion of the execution proceedings in that country. The foreign judgements are found to be conclusive concerning any subsisting between the parties except for the grounds have given under Section 13 of CPC it includes lack of jurisdiction, without merit, opposed to natural justice, obtained employing fraud, repudiation of international or India laws.[11] The Supreme Court held in Satya v. Teja Singh [12]that the judgement and decree were obtained through deceit and thus inconclusive because the appellant deceived the international court as to it having jurisdiction over the case, even if it may not have had jurisdiction. The Karnataka High Court held in Duggamma v Ganeshayya[13] that the law on the conclusiveness of a foreign judgement only applies to matters specifically adjudicated upon. Manifestly, however, any issue heard and ultimately resolved by a foreign court is not definitive between the parties.
The true test for evaluating if a verdict was made on the merits or not is whether it was rendered as a matter of nature, because of the defendant's actions, or as a result of a consideration of the validity or falsity of the plaintiff's argument. The Punjab & Haryana High Court held in Gurdas Mann v. Mohinder Singh Brar[14] that an ex-parte judgement and declaration that did not indicate that the appellant had led proof to prove his point well before Trial was not applicable under Section 13(b) of the CPC because it has not been passed on the merits of the complaint. After all, it was not passed on the merits of the claim.
The foreign territory is divided into parts reciprocating and non-reciprocating, the former means those nations notified by the Central Government forming bilateral or multilateral treaties governing enforcement of the foreign judgement, Section 44 A of CPC stipulates those judgements of such reciprocating territories can be brought before the district court for execution. The non-reciprocating territories do not directly indulge in international treaties with the Government of India hence for the execution of a judgement suit can be filed before the court of first instance holding adequate territorial and pecuniary jurisdiction. The only way to impose a foreign decision issued by a non-reciprocating country's court is to file a new claim in India, where the foreign declaration is merely a piece of evidence of compelling merit. As a result, the judgement debtor will claim res judicata and have the suit held at the preliminary level.
JURISDICTION AND OBLIGATION:
The Private International Law favors the only jurisdiction on the other hand competence of a court is of less significance because the legislature provides certain powers to the court concerning the foreign cause of action.[15] It is a known fact that Private International Law is purely based on the Common Law System and its precedents. The difference between jurisdiction and competence is more effectively seen where the state is partitioned into sub-states, each region having a different court of general jurisdiction. The India courts can never confer their jurisdiction upon or remove it from a foreign court therefore it must be understood that a foreign court derives validity from native laws of India but not from international law. Precisely a domestic court verifies the foreign judgment in their terms, a prerequisite for conceding regional extension to the res judicata impact of the unaccustomed ruling.[16] In Private International Law, a foreign court's decision will not be recognized in India because it has authority in the international context. However, it merely recognizes the court's geographical authority over the subject-matter and claimant. The court of this country does not deem its expertise or authority to be relevant in any way.
It shall be noted that the establishments of international law cannot be embraced indiscriminately if it violates the Indian law, dispute should be decided without compromising the Indian law and public policy. These are rules of substantive law instead of being solely procedural. It is the substance of a judgment should obey principles of natural justice having due regard to the impartial decision, fairness, equity and good faith. The Supreme Court held in Lalji Raja & Sons v. Firm Hansraj Nathuram[17] that just because the suit was decreed ex-parte, despite the defendants being issued with a summons, did not mean that the judgement was unfair. The court must have applied the fundamental rule of reasonability providing an adequate chance of representation to both the parties, a predisposed and prejudiced judgement with inconsistency in appointed authority would amount to null and void.
As discussed previously, a foreign judgment is indisputable which will act as a res judicata between parties to the case. It is a well-settled principle of law that a foreign judgment can be analysed according to the circumstances and laws of the land. The court's competence to extend res judicata is decided exclusively by Indian law; moreover, the foreign tribunal's competence must pass a concurrent test of competence based on both the rules of the state in which it resides and international law. In observing whether a judgment of a foreign court is a final verdict or not the India courts shall have more contented with the decision itself and not the rationale behind judgement. The courts cannot allow a retrial of the issues since conclusiveness is the sensible outcome of a foreign judgment it imposes an obligation on the party to comply with the judgment and vest a right in favor of the other party to be benefited through enforcement of the judgement. Sometimes it is known as the doctrine of obligation in the common law system which stated that the foreign court had competency and jurisdiction to adjudicate therefore the right created shall be recognized by the court at the place of enforcement. Jurisdiction of a foreign court can be accepted on the following grounds in India:
i- The person belongs to a foreign country that delivered the judgement.
ii- The person was a resident of a foreign country while the cause of action arises, and the order of summons was delivered to his name.
iii- The person voluntary admits or brings the case before the foreign court to decide the case on merits and intends to obtain the final verdict.
iv- The person marks voluntary presence after summoning issued on his/her name.
v- The person obliges to an agreement person submits himself/herself to the foreign court which delivered the judgement.
CONCLUSION:
The implementation of international law entails a desire to analyse the structure so it can grow further and more consistently serve as a cooperation mechanism. Enforceability of a foreign judgment is relatively based on the principle of res judicata and doctrine of obligation, however, scholars are divided on the view weather res judicata is based on a presumption that the judge decides the matter conclusively leaving no space for further questioning. But both must have contended with the state policy framework lest it should fail to affect because, in the end, it is domestic legislation that acknowledges enforceability of a foreign judgement. Whenever a defendant makes a claim and then abandons it during the proceedings of a case, and the decree or judgement of that lawsuit means the claim was not approved by the judge, the court must be considered to already have expressly heard in court against it. The Code of Civil Procedure is the ultimate source for seeking enforcement of a foreign decision on India territory, however with its limitation, therefore, it depicts a picture where the foreign court shall abide by the competency of jurisdiction along with the principle of natural justice without bypassing Indian Law.
[1] 336 U.S. 77 (1949)
[2] 408 U.S. 238 (1972).
[3] 428 U.S. 242 (1976).
[4] Nussbaum, Arthur. “Jurisdiction and Foreign Judgments.” Columbia Law Review, vol. 41, no. 2, 1941, pp. 221–238. JSTOR, www.jstor.org/stable/1117296.
[5] 159 U.S. 113 (1895).
[6] Andrew T. Guzman. (2009). Rethinking International Law as Law. Proceedings of the Annual Meeting (American Society of International Law), 103, 155-157. http://www.jstor.org/stable/10.5305/procannmeetasil.103.1.0155
[7] Nussbaum, Arthur. “Jurisdiction and Foreign Judgments.” Columbia Law Review, vol. 41, no. 2, 1941, pp. 221–238. JSTOR, www.jstor.org/stable/1117296.
[8] Section 44 A, CPC.
[9] AIR 1947PC 192 (194)
[10] Civil Appeal 2175 of 2020.
[11] Section 13, CPC.
[12] AIR 1975 SC 105.
[13] AIR 1965 Kant 97.
[14] AIR 1993 P&H 92.
[15] Nussbaum, Arthur. “Jurisdiction and Foreign Judgments.” Columbia Law Review, vol. 41, no. 2, 1941, pp. 221–238. JSTOR, www.jstor.org/stable/1117296.
[16] Nussbaum, Arthur. “Jurisdiction and Foreign Judgments.” Columbia Law Review, vol. 41, no. 2, 1941, pp. 221–238. JSTOR, www.jstor.org/stable/1117296.
[17] AIR 1971 SC 974 at p. 977
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