The concept of recognition and enforcement of foreign judgement under various conventions by Johnson Yesaya.

INTRODUCTION

Foreign judgment is the judgment of the foreign court[1]. And a “Foreign Court” Means a Court situated outside of the country and being not established by the authority of the Government to which such judgment is being enforced[2]. For the foreign judgment to be valid, the foreign court rendering such judgment must be competent to try such a suit, not only as regards to pecuniary limits of its jurisdiction and the subject matter of its suit but also with reference to its territorial jurisdiction and the competence of the jurisdiction of the foreign court is to be judged not by territorial law of the foreign state but by the rule of private international law[3].

Foreign judgment is a judgment with foreign element which is enforced by another court differ from that gives a decision, and it operate outside its jurisdiction.

Recognition of a foreign judgment occurs when the court of one jurisdiction accepts a judicial decision made by the courts of another foreign country or jurisdiction and issues a judgment in substantially identical terms without rehearing the substance of original lawsuit[4]. Thus, once a foreign judgment is recognized, the party who was successful in the original case or suit can then seek its enforcement in the recognizing country. For-example if the foreign judgment is a money judgment and the debtor has properties in the recognizing jurisdiction; the judgment creditor has access to all the enforcement remedies as if the case had originated in the recognizing country e.g. Judicial sale, attachment of assets to judgement, garnishment etc. And if some other form of judgment was obtained such as that affecting status granting injustice relief etc. the recognizing court will make whatever orders which are appropriate to make the original judgment effective[5].

Enforcement of foreign judgment. Foreign judgment is enforceable in most common law countries including Tanzania on the same grounds and in the same circumstance in which they are enforceable in England under common Law[6]. Decision of the foreign court can only be enforced by proceedings in execution. Execution of foreign judgment in an alien state take place in the same manner as it is executed in original jurisdiction of the judgment. To enforce foreign judgment, a decree holder required to register such decree before judicial system of recognizing country where judgment will take effect.

Dowans V. Tanesco[7] is among the well known case in Tanzania which laid fundamental principles and grounds on enforcement of  foreign arbitral awards in Tanzania. The original case was filed by DOWANS before international chamber of commerce seeking damages from TANESCO on illegal termination of contract. A tribunal ruled in favor of plaintiff who later filed application before High Court of Tanzania for recognition and execution of decree entered by I.C.C. A High Court of Tanzania entered a ruling with same effect as a decree of I.C.C.

An aggrieved defendant lodged an appeal before court of appeal of Tanzania to challenge the legality of arbitral award on ground that it was obtained in fraud. TANESCO lost the case as court of appeal upheld the decision of High Court[8].

High Court allowed ICC decree to take effect in Tanzania on grounds set by section 17 of Arbitration Act[9] which list a number of grounds to put in account before recognition and enforcement of foreign award. In order for the foreign award to be enforceable, it must;

- have been made in pursuance of an agreement for arbitration which was valid under the law by which it was governed;

- have been made by the tribunal provided for in the agreement or constituted in manner agreed upon by the parties;

- have been made in conformity with the law governing the arbitration procedure;

- have become final in the country in which it was made; and

- have been in respect of a matter which may lawfully be referred to arbitration under the law of Tanzania, and its enforcement must not be contrary to the public policy or the law of Tanzania.

In addition, Arbitration Act[10]of United Republic of Tanzania incorporated Geneva convention and protocol to its own provisions which means, it recognize and enforce awards from alien state within scope of Geneva convention and protocol.

CONVENTIONS ON RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENT

The Hague convention on the recognition and enforcement of foreign judgements in civil or commercial matters[11] (The Judgment Convention). Requires Contracting States to recognize and enforce judgments given in civil or commercial matters in other Contracting States, and is intended to operate as an instrument to the Hague Convention on Choice of Court Agreements[12]Recognition and enforcement of foreign judgments do not apply to all kind of judgments, is subjected to a scope or limit.

The Judgment Convention covers wide scope on Recognition and enforcement of foreign judgments, as per the convention, judgment is “any decision on the merits given by a court”, including both money and non-money judgments and costs rulings (where the underlying decision falls within the scope of the Judgments Convention).A party who is a holder of any judgment within scope of judgments convention, he/she is entitled to enforce such judgment to any country which is a signatory of the judgments convention[13].

Not all civil and commercial judgments falls within scope of judgments convention, matters relating to insolvency, the validity of companies and the decisions of their organs, intellectual property, privacy and certain antitrust matters are not subject to recognition and enforcement. Also, Arbitration and related proceedings and Judgments for damages that do not compensate a party for actual loss (eg judgments for exemplary or punitive damages) are exempted from recognition and enforcement under The Judgments Convention[14]

The foreign  judgment will only be subjected to recognition abroad if it has effect in the jurisdiction in which it was given (the state of origin) and will only be enforced abroad if it is enforceable in the state of origin and not otherwise.

The Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention[15])agreed by states in United Nations diplomatic conference on 10 June 1958 in New York and entered into force on 7 June 1959. The Convention requires courts of contracting states to recognize and enforce arbitral awards from alien arbitral bodies or arbitrators[16]. Widely considered the foundational instrument for international arbitration, it applies to arbitrations that are not considered as domestic awards in the state where recognition and enforcement is sought[17].

As per paragraph 1 of Article 1 of this convention, foreign arbitral award is an award made in the territory of a State other than the State where recognition and enforcement are sought, such award might be made by a private arbitrator (s) or made by arbitral body. The convention want all signatories of the convention to recognize and enforce arbitration award from foreign country in compliance to private international law.

Paragraph 3 of Article 1 gives  freedom to contracting states to choose mode of implementing the provisions of the convention which conform to their domestic law, states may choose to set in addition, other requirements for recognition and enforcement of foreign awards.

The convention on jurisdiction and the enforcement of judgment in civil and commercial matter (in EU EFTA relation)[18]. This convention applies to civil and commercial matters whatever the nature of the court or tribunal[19], it is limited to matters relating to revenue, customs or administrative matters. The convention do not also apply to the status or legal capacity of natural persons, rights in property arising out of a matrimonial, relationship, wills and succession; bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings ;social security and arbitration.

As per the above convention, judgments and  awards which fall within scope of Article 1 of this convention are subject to recognition and enforcement. But judgments which are not within scope of this convention as seen above, are not subject to recognition and enforcement in recognizing country.

The Geneva Convention  on The Execution of Foreign Arbitral Awards[20].Article 1 of the convention provides that,

“In the territories of any High Contracting Party to which the present Convention applies, an arbitral award made in pursuance of an agreement whether relating to existing or future differences (hereinafter called " a submission to arbitration ") covered by the Protocol on Arbitration Clauses[21], shall be recognized as binding and shall be enforced in accordance with the rules of the procedure of the territory where the award is relied upon, provided that the said award has been made in a territory of one of the High Contracting Parties to which the present Convention applies and between persons who are subject to the jurisdiction of one of the High Contracting Parties”.

This convention established ground for execution of foreign arbitral award in another jurisdiction but among high contracting parties to the agreement. All arbitral awards covered by Protocol on Arbitration Clauses are subject to recognition and enforcement among member states of these conventions.

Multilateral Investment Guarantee Agency (MIGA) convention[22]. This convention intends to  strengthen international cooperation for economic development and to foster the contribution to such development of foreign investment in general and private foreign investment. MIGA convention encourage the flow of investments for productive purposes among member countries, and in particular to developing member countries, thus supplementing the activities of the International Bank for Reconstruction and Development (hereinafter referred to as the Bank), the International Finance Corporation and other international development finance institutions.

In Recognition and enforcement of foreign judgment, MIGA convention under Article 56 and 57 of the convention, and Article 4 of Annex II of the convention particularly sub-Article j of Article 4 of Annex II requires member states or parties in dispute whatever the case might be, recognize and enforce awards of tribunals in their local territories.

Sub-Article J of Article 4 Annex II of the convention provides the contents of above paragraph as follow;

“Each member shall recognize an award rendered pursuant to this Article as binding and enforceable within its territories as if it were a final judgment of a court in that member. Execution of the award shall be governed by the laws concerning the execution of judgments in force in the State in whose territories such execution is sought and shall not derogate from the law in force relating to immunity from execution”.

CONCLUSION

Conventions are international instruments which establish obligations and sanctions in failure to perform obligation set in agreement by states. For a state to become part of international agreements need to sign and ratify a convention, but other states depends to their mode of reception of conventions, international laws automatically form part of domestic laws. Sanctions on breach of international instruments include economic embargoes/ barriers, termination of diplomatic relation between states and forceful military invasion which rarely happens.

 

REFERENCE

Statutes

The Civil Procedure Code Cap 33 RE 2002

The Reciprocal Enforcement of Foreign Judgment Act Cap 8 RE 2010

The Arbitration Act Cap 15

Books & journals

Garner, B.A. (2004).Black’s Law Dictionary, 8th Ed. New York: West Publishing Company.

Morris,J(2009) Conflict of Laws 7thThomson Reuters (Legal) Ltd Publisher, London UK

Noronha F.E. (2010) Private International Law in India; Adequacy of principles in comparisonwith common law

Piggott, F, T. (1879). Foreign Judgments: Their Effect in the English Courts, Vol.1.Oxford:Stevens and Sons

Online sources

https://www.tanzanianweb.co.tz/2019/02/the-principles-of-arbitration-used-in.html?m=1

https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2699&context=faculty_scholarship

https://uncitral.un.org/en/texts/arbitration/conventions/foreign_arbitral_awards

https://practiceguides.chambers.com/tanzania/63-a-judgment-given-by-a-foreign-court

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[1]https://iclg.com/practice-areas/enforcement-of-foreign-judgments-laws-and-regulations/tanzania

[2]Civil Procedure Code, Cap 33 R:E 2019, Section 3

[3] Ibid

[4]https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2699&context=faculty_scholarship

[5]https://practiceguides.chambers.com/tanzania/63-a-judgment-given-by-a-foreign-court

[6] Y. Narrasimha Rao Vs Y. VenkataLakshim (1991) 3 sec 451

[7]Civil Application No 8 of 2011.

[8]https://www.tanzanianweb.co.tz/2019/02/the-principles-of-arbitration-used-in.html?m=1

[9]Cap 15

[10] Ibid

[11]July 02, 2019.

[12]2005

[13]https://www.allenovery.com/en-gb/global/news-and-insights/publications/new-hague-convention-on-enforcement-of-foreign-judgments

[14] Ibid

[15] 1958

[16]https://en.m.wikipedia.org/wiki/Convention_on_the_Recognition_and_Enforcement_of_Foreign_Arbitral_Awards

[17]https://uncitral.un.org/en/texts/arbitration/conventions/foreign_arbitral_awards

[18]Lugano convention of 16 September 1988

[19] Article 1

[20] Of 1927

[21] September 24, 1923

[22]1985