24/05/2023

Rethinking the obligation theory: new chapter on the enforcement of overseas judgments

Joshua Folkard has co-written a chapter in Landmark Cases in Private International Law, published this month, on the recognition and enforcement of foreign judgments in England and Wales, with a particular focus on the 19th-century decisions in Godard v Gray [1870-71] LR 6 QB 139 and Schibsby v Westenholz [1870-71] LR 6 QB 155.

Co-written with Ian Bergson of Fountain Court, the chapter considers the influence of these cases on the jurisprudence of a set of Commonwealth and other countries, and analyses the extent to which the ‘obligation theory’ espoused in them can properly explain current English conflicts of law principles on the enforcement of foreign judgments.

The chapter argues that the obligation theory widely considered to have been established in the Godard and Schibsby cases struggles to explain the present law on the recognition and enforcement of foreign judgments. It is only through an understanding of the basis for enforcement of foreign judgments that application of the common law rules in cases outside the established cases of presence / residence and submission can properly be approached. The authors also raise the question of whether the established principle of presence should be replaced with residence, were the obligation theory still to be considered as providing the basis for enforcement.

In support of its conclusion, the chapter pulls together the comparative position on recognition / enforcement of foreign judgments in Canada, Ireland, Hong Kong, Singapore, New Zealand and Australia, which it is hoped will be a valuable resource for practitioners dealing with cases in this area.

Landmark Cases in Private International Law is edited by William Day and Louise Merrett, and published by Hart.