My article on the Privy Council's decision on enforcement of foreign judgments at common law in Vizcaya Partners Ltd v Picard [2016] FICR1; [2016] UKPC 5 has been published in the Singapore Law Society's JusNewSG newsletter here.
One of the grounds for enforcing a foreign judgment at common law is that the debtor submitted to the jurisdiction of the foreign court. There has long been debate on whether that submission must be express or can be implied from circumstances such as the debtor being a shareholder in a foreign company or a member of a foreign partnership; the contract having been made or performed in the foreign country or governed by the law of the foreign country; or as a result of the contract being governed by the foreign law giving the foreign court jurisdiction under its own law.
The Privy Council said at [56] that the real question is whether the judgment debtor consented in advance to the jurisdiction of the foreign court. A contractual agreement to consent to the jurisdiction of a foreign court must be actual, and may be implied or inferred. It does not have to be contractual in nature.
Their Lordships said at [58] that, because there must be an actual agreement to submit to the jurisdiction, the agreement or contractual term cannot be implied or inferred from such facts mentioned above.
This approach will probably influence enforcement of judgments under statute as well, such as the Singapore Reciprocal Enforcement of Commonwealth Judgments Act(Cap 264) and the Reciprocal Enforcement of Foreign Judgments Act (Cap 265), the Australian Foreign Judgments Act 1991 (Cth), and perhaps the Hague Convention on Choice of Court Agreements.
Read the full head note here: [2016] FICR1
