JURISDICTION AND MONEY JUDGMENTS RENDERED
ABROAD. ANGLO-AMERICAN AND FRENCH
PRACTICE COMPARED
J. G. Castel*
I. GENERAL PRINCIPLES
One of the fundamental principles of private international law is that to give
foreign effect to a domestic money judgment, the court rendering such judgment
must have had jurisdiction.’ The practical difficulty lies in the determination
of such jurisdiction, What rules must the court of the forum apply to decide
whether the original court had jurisdiction to render the judgment?
The term “jurisdiction” has been used in many different ways: it has been
to the jurisdiction of the courts of one state in
employed with reference
general or to one of the courts of a particular state, and also in discussing the
subject matter and the locality. These two concepts are present in the terms
“‘competent jurisdiction” and “proper court.” A court of competent jurisdiction
is a court which, in accordance with the principles maintained by Anglo-
American jurisprudence, has the right to adjudicate upon a given matter. A
proper court is a court which is authorized by the law of the country to which
it belongs, or under whose authority it acts, to adjudicate upon a given matter.2
In France a similar distinction exists between “competence g~n~rale” and
“comptence sp6ciale. ‘ 3 A foreign court has “competence g~n~rale” if accord-
ing to the principles maintained by French jurisprudence, it has the right to
adjudicate upon a given matter; and “competence spciale” if it is competent
according to its own law, to adjudicate upon a given matter.
The diversity among the systems arises in part from the fact that each
country evaluates the jurisdiction of a foreign court according to its own
standards. As was said in the case of Sirdar Gurdyal Singh v. Rajah of
Faridkote,4 the law qf a foreign country cannot bind the whole world, it is
strictly territorial in its operation.
*Faculty of Law, McGill University. Secretary Rapporteur of
the Reciprocal
Enforcement of Foreign Judgments Committee of the International Law Association.
lReed v. Allen, 38 N.Y.S. 2nd 970; Schibsby v. Westenholz (1870), L.R. 6 QB. 155;
Belly Enright Lumber Co. v. Gardner et al, 14 Ind. 385, 7 N.E. 523.
2 Dicey, Conflict of Laws (6th ed.) rule 64.
SBartin, De la coinpdtence des tribunaux itrangers comine condition de l’ixquatur
d’un Iugentent itranger. Journal du droit international hereafter cited Clunet, (1904),
5, 902; (1905), 59, 815; (1906), 27, 995: Etudes sur les effets internationaux des ijge-
inents, Paris, (1907) ; Principes de droit international privi, I, s. 206, p. 550; Pillet,
Principes de droit international pfriv
(1903), II, 694.
411894] A.C. 670; Buchanan v. Rucker (1808), 9 East 192.
No. 2 ]
JURISDICTION AND MONEY JUDGMENTS
Many points of view are involved in any analysis of this problem of juris-
diction. The enforcing court may determine the question of jurisdiction accord-
ing to its own law, (this is an application stricto sensa of the lex fori doctrine)
or according to the law of the country where the judgment was rendered, or
consider both.5
The common law followed in the Anglo-American countries requires, to
establish jurisdiction in personam, that there be a direct relationship between
law of the foreign court, whose money judgment is put in
the municipal
question, and the person against whom it was rendered. In other words, there
must be a close connection between the court and the parties, and it must
exist at the time the action is commenced. 6 Sometimes, however, the issue
is complicated by particular statutes concerning jurisdiction, which have en-
larged the authority of the court. At common law, the courts have often as-
sumed that the rules of jurisdiction concerning internal and external purposes
were the same, taking the position that what the court does itself the foreign
court can do; on the other hand, when the jurisdiction of an English or
American court is enlarged by some statutory enactment, there has been a
reluctance to apply such a rule on a reciprocal basis and extend by analogy the
jurisdiction of the foreign court.7 However in Travers v. Holley the English
courts have abandoned this view and held that a foreign judgment granted on
a jurisdictional basis similar to that on which the forum will act will be en-
forced in England.8
In the United States a statute enlarging the jurisdiction of a court will be
invalid if it fails to conform to constitutional limitations on the scope of its
jurisdiction. If, however, the statute has been held valid under the due process
clause, a judgment rendered by a sister state in accordance with such statute
will be given full faith and credit in another state of the Union. Although the
tendency has been constantly to narrow the differences between the effect-
iveness of judgments of sister states and judgments of foreign countries, it is
doubtfull that in such instance effect would be given to a foreign judgment
handed down under similar foreign statutes, and it is better to consider that
the former point of view still represents the state of the law where foreign
judgments are concerned.
In France the principle that the jurisdiction is properly territorial has been
in
carried to an extreme
certain instances, to the French courts. Bartin has been the leader of this
5For a general survey of the different systems followed in the world see Lorenzen,
through the attribution of exclusive
jurisdiction,
Enforcement of American Judgments Abroad (1919-20), 29 Yale L.J., 269.
6Sirdar Gurdyal Siugh v. Rajah of Faridkote, [1894] A.C. 670; Hess v. Pawloski
(1927), 274 U.S. 352; Restatement, Conflict of Laws, s. 84; Doherty & Co. v. Goodman
(1935), 294 U.S. 623.
7Schibsby v. Westenholz (1870), L.R. 6 Q.B. 155, Emanuel v. Symon, [1908] 1 K.B.
302; Murray v. Strong, 2 Alaska 517; McEwan v. Zimmer, 38 Mich. 765.
8[1953] 2 All. E.R. 794 (C.A.)
McGILL LAW JOURNAL
[Vol. 4
method of analyzing the concept of jurisdiction and has introduced a further
distinction between “competence g~nrale” and “comp&ence sp6ciale.” He
added to these two terms the words direct and indirect. His idea finds a
parallel in the distinction between the internal and the external rules of juris-
the French
diction. Bartin noted that the Civil Code states clearly when
tribunals are directly competent and that these rules are exclusive of any foreign
court; this he terms “comp6tence g6nrale directe”. 9 On the other hand, where
the Code does not give direct competence to the French tribunals, indirectly a
foreign court will be competent and this is the “comp~tence g6n~rale indirecte”.
This would be a logical system respecting French sovereignty when a French
tribunal is directly competent according to the lex fori.
Instead of ascertaining
the competence of the foreign court
(when the
in the light of the conflict rules of the
French courts are not competent)
country whose courts rendered the decision, the French courts supported by
the
legal doctrine have undertaken to determine this question by applying
domestic French rules of civil procedure and characterization. For instance, a
United States citizen requests the enforcement in France of a judgment obtained in
Canada against a British defendant. No problem of “competence g6nfrale directe”
of the French court is involved, rather a problem of “comp6tence g~n6rale in-
directe”. In other words, was the Canadian court competent? How can that
be decided? Will the Canadian conflict rules be considered? The French
courts will apply to the Canadian court the French domestic law of internal
jurisdiction and, if by application of these rules the Canadian court is con-
sidered competent, then the requirement of jurisdiction will be fulfilled. This
brings into the picture the distinction between conflict of laws and conflict of
jurisdictions, with the result that when different foreign courts may be com-
petent, the French rule of conflict of jurisdictions, i.e., domestic procedural rules,
will control and determine the issue.
This interpretation of private international law has its origin in articles 14
and 15 of the Civil Code giving French courts jurisdiction where a French
citizen is involved. These articles are true conflict rules and cannot be inter-
nationalized like the Anglo-American rules; they can only be compared with
the German conception of “exclusivsiitze” or “statut d’autonomie”Y Here lies the
laws and conflict of jurisdictions.
essential distinction between conflict of
As the competence of the foreign tribunal is determined by the domestic rules
of jurisdiction, the legislative competence and the jurisdictional competence
have the same structure and have resulted in splitting private international
9See note 3. In the U.S.A. see sec. 45 of the N.Y. Surrogate’s Court Act which re-
serves exclusive competence for the local court where the decedent was a resident of
the county. A foreign decree violative of this exclusive competence will not be recognized.
Matter of Lamborn, 168 Misc. 504, 6 NYS 2nd 192 (1938) affd. 280 N.Y. 504, 19 N.E.
(1939). The common law concept of “local” as distinguished from “trans-
2d 917
itory” actions is very similar to Bartin’s competence “g6n6rale directe et indirecte”.
‘ORiezler, Internationales Zivilprozessenrecht, (1949).
No. 2]
JURISDICTION AVD MONEY JUDGMENTS
155
law into conflict of laws and conflict of jurisdictions. This division is adopted
by Professor Niboyet in his treatise and recognized by Professor Batiffol and
Professor Lerebourgs Pigeonni~re. 11
Assuming that the administration of justice is a public service, it seems
that the French legislator should not make laws for matters which do not
come within the scope of his powers. Consequently, he should not attempt to
determine directly the competence of the foreign court. For instance in the
field of criminal law, the French legislator does not make laws punishing acts
which are not recognized as unlawful in France. However, in the field of
private international law and more specially in the case of the recognition and
enforcement of foreign money judgments, it becomes necessary to have guiding
principles or rules, in order to determine the competence of the foreign court.
These rules are unilateral conflict rules, because each country determines for
itself the effect to be given in its territory to foreign money judgments, but
fails to provide for the effect to be given to its judgments abroad. The uni-
lateral rule is the technique of the Civil Code and advocated by Westlake in
his treatise. It seems to me that this approach does not differ from that
followed in the case of true conflict of laws rules. Furthermore, it is difficult
to imagine how the French legislator could object to the effect given-to French
judgments in foreign countries, or to the effect given to foreign judgments
in the place where they are rendered.
Professor Batiffol
in his treatise points out that rules of conflict of
jurisdictions are material and in opposition to true conflict of law rules. They
do not designate which laws will apply in determining the competence of the
foreign court; on the contrary, they directly ascertain the competence of the
foreign court which rendered the judgment. There is, thus, a strong similar-
ity in the techniques followed by both the Anglo-American and the French
courts.
is
incapable of creating bilateral conflict
Two further reasons support, in France, the distinction made between
conflict of laws rules and conflict of jurisdictions rules: First, the hybrid character
of French rules of jurisdiction. This is evidenced by a combination of an
international criterion found in the citizenship of one of the parties, a criterion
rules, and a municipal
which
criterion, the domestic rules of jurisdiction. Secondly, the fact that rules of
conflict of jurisdictions may be superseded by the will of the parties which
can always renounce the privileges of nationality. This treatment of the rules
of conflict of jurisdictions in the French system leads to the conclusion that,
contrary to conflict of laws rules which are imperative and of public policy,
conflict of jurisdictions rules are essentially supplementary. 12 However, once
“Niboyet, Traiti de droit international privi franrais, (1938-50), vol. VI; Lere-
bourgs Pigeonnire, Pricis de droit international privg (5th ed., 1952) ; Batiffol, Traiti
Wi~mentaire de droit international Prhv
12 “Suppltoires”; see Francescakis, Travaux du comnit franrais de droit inte ,ational
(1949), s. 681.
privz
(1946), p. 144.
McGILL LAW JOURNAL
[Vol. 4
it is admitted that there is a basic similarity of structure between the rules of
conflict of laws and the rules of conflict of jurisdictions, it is easy to under-
stand that rules for the determination of competent
jurisdiction are also
conflict rules.
As a consequence of the parallelism between “comp6tence directe” and “in-
directe”, and considering that a country cannot apply any other conflict rules than
its own, it is logical to hold that a foreign money judgment will be recognized
in France only if the foreign court was competent according to the French
rules of conflict, even where a French tribunal was not competent.
This doctrine has been rejected by Professors Niboyet and Batiffol as
being too narrow and extreme.’ 3 They take the position that only the “com-
p6tence g6n6rale directe” should be respected, because there the power in the
French court to consider the case stems directly from French legislation. In
the case where there is no grant of jurisdiction to a French court, the juris-
diction of a foreign court should be determined according to the principles of
private international
in the country where the decision was
rendered.
law in force
It should be noted that the distinction between conflict of laws and conflict
of jurisdictions renders them independent of each other, and therefore the fact
that the law of X country is applicable does not mean that the tribunal of X
country is competent, and vice-versa. It will always be necessary for the French
Court to determine whether the foreign court, considered to be competent, applied
the proper law.
The Anglo-American system is more realistic, as it is based primarily on the
physical power theory rather than on sovereignty.’ 4 The international juris-
diction is the only one recognized by Anglo-American courts and it is ir-
relevant whether or not the foreign court is entitled, under its municipal law
of procedure or conflict of laws rules, to adjudicate upon the issue. Professor
Schmitthoff’ 5 points out that as the recognition of a foreign judgment
in
England depends upon the international and not the local competence of the
foreign court, the task of the English court is greatly simplified when it has
to decide whether the judgment should be recognized or not. The English
court will decide the question of jurisdiction exclusively on the basis of settled
rules of English private international law. It results that a foreign judgment
13Niboyet, op. cit., VI, s. 1956; Batiffol, op. cit., s. 755.
‘ 4Re Indiana Transport Co., 244 U.S. 456 per Holmes 457 (1917).
13 English Conflict of Laws, 2d. ed., p. 421. In the U.S.A. California courts for in-
stance, test the jurisdiction of the foreign court only from the viewpoint of American
law, DuQuesnay v. Henderson, 24 Cal. App. (2d) 11, 74 P. 2d 294 (1938); Kegley v.
Kegley, 16 Cal. App. 2d 216, 60 P. 2d 482; People v. Harlow, 9 Cal. App. 2d 643, 50 P.
2d 1052 (1935) ; Ryder v. Ryder, 2 Cal. App. 2d 426, 37 P. 2d 1069 (1937). This in spite
of C.C.P. 1915 which provides that the court of the foreign country must have jurisdic-
tion according to the laws of such country.
N,,o. 2 ]
JURISDICTION AND MONEY JUDGMENTS
may have a wider effect internationally than locally.1 If the theory of physical
power does not explain the whole subject matter of jurisdiction, yet it is
clear, and produces results which are consistent with public policy and the
protection of the parties.
The direct determination of the jurisdiction of foreign courts by applica-
tion of domestic rules of private international law is similar to the French
in technique and in opposition to Niboyet’s views. Both systems
approach
apply their own rules in order to determine the jurisdiction of the foreign
court. The English court will say that if the defendant was a resident of X
country, the court of X country was competent, while a French court will reach
the same result (assuming that it is not directly competent) by application of
its domestic rules of procedure.
The essence of the distinction between the Anglo-American and the French
doctrine of jurisdiction lies in the fact that, in the French system due to a
lack of true rules of conflicts, there has been a projection of the domestic law
in the field of private international law, thereby creating a difficult question of
interpretation and characterization; whereas, in the Anglo-American system
the enforcing courts do not try to impose upon foreign courts their own
the foreign court is
internal rules, but directly determine in which cases
competent without any reference to the internal rules. The Anglo-American
courts do not necessarily test the jurisdiction of the foreign courts by standards
set up for themselves in similar circumstances, for sometimes they will not
enforce a foreign judgment based on the same rule of jurisdiction.’ 7
To conclude, it must be emphasized that where recognition or enforcement
of a foreign money judgment is sought, it is not the jurisdiction of the foreign
courts which has to be determined by the forum. The forum can never confer
jurisdiction upon or take it away from a foreign court. The court derives its
jurisdiction from its domestic law only. W”‘hat the enforcing court actually does
amounts to testing, in its own terms, a requirement for granting territorial
extension to the foreign judgment.
II. THE COMPETENCE OF FOREIGN COURTS TO RENDER A MONEY JUDGMENT
IN ACTIONS IN PERSONAM
THE ANGLo-AMERICAN LAW.
Every enforcing court may be asked to determine whether or not the original
court had the right to summon the defendant and thus bind him by its judg-
ment. It must be clear that the jurisdiction of the foreign court extends over
the parties,’ 8 although in the case of a decree or judgment rendered by a court
1OPemberton v. Hughes, [1899] C.A. 1 Ch. 781; Nussbaum, Jurisdiction and Foreign
Judgments (1941), 41 Col. L. Rev. 221.
17Lindley M.R. in Pemberton v. Hughes, [1899] C.A. 1 Ch. 781.
lsDuQuesnay v. Henderson, 74 P. 2d, 294, 24 Cal. App. 2d 11 (1938) ; Rovazchick
v. Howard Saving Inst., 194 A. 185, 118 NJ. Law 606; Martens v. Martens, 31 N.E. 2d
21 cGILL LAW JOURNAL
[Vol. 4
of general jurisdiction, no inquiry will be made as to the correctness of the
venue.19
The international jurisdiction of foreign courts in actions in personam is
based, in the Anglo-American system, on the principles of presence and sub-
mission. A foreign money judgment which is void for want of jurisdiction will
not be given effect at all.20
English and American courts do not generally inquire into the local juris-
diction of the court under municipal law, although in certain cases they have
examined the pertinent statutes setting up the foreign court to determine
whether it had jurisdiction over the general subject matter, but have not
pursued the investigation further.21 The general attitude is that when the
foreign court took jurisdiction over the subject matter and the parties, the
court knew its own jurisdiction and properly assumed it.2 2 As English courts
do not sit as courts of appeal in respect to foreign judgments, the local com-
petence of the foreign court to deal with the subject matter before it, is de-
termined by the rules prevailing in the foreign country.2 Thus the only juris-
diction which really matters is the international jurisdiction of the foreign
court. Where the foreign state had jurisdiction according to the standard set
by the lex fori, all the interests of the forum are safeguarded.
Most legal writers have been accustomed to cite the dicta of Lord Justice
Buckley in Emanuel v. Sy3non2 4 as representing the Anglo-American 25 rules
concerning jurisdiction in actions in personam. These dicta are a revision of
the earlier doctrine expressed by Justice Fry in Roussilon v. Rousillon,2″ and
will be followed in this article.
489, 284 N.Y. 363 reversing 20 N.Y.S. 2d 206, 260 App. Div. 300, rearg. den 33 N.E.
2d 542, 285 N.Y. 607; People v. Harlow, 50 P. 2d 1052, 9 Cal. App. 2d 643; In Thorn
v. Salnonson, 137 Kan. 441, it was held that a judgment rendered in a foreign court
without jurisdiction could be attacked
in either a direct or collateral proceedings;
Bissel v. Briggs, 9 Mass. 562 (1813) ; Baio v. Mangnano, 9 N.Y.S. 2d 276, 526 App.
Div. 831, reversing 6 N.Y.S. 2d 763, 169 Mfisc. 1555 reqrg. den. 10 N.Y.S. 2d 276, 256
App. Div. 930 (1939).
1ODuQuesnay v. Henderson, 74 P 2d 294 Cal. App. 2d 11; Reed v. Allen, 38 N.Y.S.
2d 970; Caruso v. Caruso, 148 A 882, 106 N.J. Eq. 130 (1930).
02 1n re Vanderborght, 91 N.E. 2d 47 (1954) ; Banco Minero v. Ross, 172 SW. 711,
106 Tex 522; Rankin v. Goddard, 54 Me. 28; McEwan v. Zinmer, 38 Mich. 765;
Smith v. Grady, 68 Wisc. 215; Cie Port Rio Janeiro v. Mead Morrison Mfg., 19 F.
2d 163 (1927); Boihin v. Talcott, 102 F. Supp. 979 (1951).
21See Vanquelin v. Bouard (1863), 15 C.B.N.S. 341; Pemberton v. Hughes, [1899]
C.A. 1 Ch. 781; Bater v. Bater, [1906] P. 209.
2 2 Penuberton v. Hughes, [1899] C.A. I Ch. 781 per Lindley M.R.; Farrell v. Farrell,
(1911), 127 N.Y.S. 764, 142 App. Div. 605, rev. 98 N.E. 857, 205 N.Y. 450; Caruso v.
Caruso, 106 N.J. Eq. 130, 148 A. 882 (1930).
2 3 Pemberton v. Hughes, [1899] C.A. 1 Ch. 781.
24[1908] 1 K.B. 302.
2 5 See Restatement, Conflict of Laws s. 77, Title B, (Jurisdiction over individuals),
26(1880), 42 L.T. Rep. 679, 14 Ch. Div. 351.
No. 2 ]
JURISDICTION AND MONEY JUDGMENTS
According to Lord Buckley a foreign court is deemed of competent juris-
diction with regard to any action in personam in the following situations:
(1) Where the defendant at the time of the judgment was a citizen or subject of
the foreign country rendering the judgment.
(2) Where the defendant at the time of the commencement of the action was a
resident of, or domiciled in the foreign country rendering the judgment.
(3) Where the litigant voluntarily has submitted himself to the jurisdiction of the
courts of the foreign country rendering the judgment.
(a) Where the defendant in the character of a plaintiff or counter-claimant
selected the forum wherein he is afterwards sued,
(b) Where the defendant voluntarily has appeared,
(c) Where the defendant voluntarily has contracted or consented to submit
himself to the forum wherein the judgment was obtained.27
In passing, it should be noted that ownership, by the defendant, of real
estate within the jurisdiction wherein the cause of action arose is no longer
considered by the courts as a basis of personal jurisdiction over him s
(1) Allegiance
Where the defendant was at the time of the judgment a citizen or subject of the
foreign country rendering the judgment.
International jurisdiction based on allegiance has been recognized by Anglo-
American authorities, but the matter is not yet settled definitely in either
England or the United States.2 9 As was pointed out by Dicey”0 and Read31
there is no clear-cut decision supporting the view that the defendant is bound
where he is a subject of the foreign country but was never a resident there
and never submitted to the jurisdiction. Douglas v. Forres 2 is cited as the
foundation of the doctrine of jurisdiction based upon citizenship. Later, in
Schibsbv v. IWestenhol 3 3 it was said that a subject of the foreign state owes
permanent allegiance to that state in the exercise of its functions, including
those of the judiciary. On the other hand, in the Faridkote case, Lord Selborne
declared that while territorial jurisdiction generally attaches upon all persons so
long as they are either permanently or temporarily resident within the ter-
27See Dicey, op. cit. rule 68; Read, Recognition and Enforcement of Foreign Judge-
inents in the Common Law Units of the British Commonwealth, (1938), Ch. V.
28See Emanuel v. Symon, [19081 1 K.B. 302 which represents the correct view in
the English courts; Sirdar Gurdyal Singh v. Rajah of Faridkote, [1894] A.C. 670;
Dicey, op. cit., rule 69; Story, Commentaries on the Conflict of Laws (8th ed., 1883),
s. 549; Black, A Treatise on the Law of Judgments (2d ed.. 1902) 837; Piggott,
Foreign Judgments, (2d ed.) pp. 136 and 145; Read, op. cit., p. 186.
29Douglas v. Forrest (1828), 4 Bing. 686; Hall v. Williams, 23 Mass. 232; Dicey
op. cit., rule 68; Westlake, A Treatise on Private International Law, (5th ed.) 401;
Piggott, Foreign Judgment and Jurisdiction (3rd ed., 1903) pt I, 243; Freeman, On
Judginents 5th ed. 1925) ss. 1376, 1377 and ss. 1483-1487.
3ODicey uses the word “semble” relating to jurisdiction based on allegiance, op. cit.,
rule 68.
310p. cit., ch. V, p. 151.
32(1828), 4 Bing 686.
33(1870), L.R. 6 Q.B. 155; Gibson & Co. Ltd. v. Gibson, [1913] 3 KB 379.
McGILL LAW JOURNAL
[Vol. 4
ritory, it does not follow them when they have withdrawn from the territory.
He also said that no territorial legislation can grant jurisdiction which any
foreign court ought to recognize against foreigners who owe neither allegiance
to the iegislating power.3 4 Prima facie, unqualified personal
nor obedience
allegiance appears to be an exception to the territorial limitation of jurisdiction.
The problem has been obscured by the fact that at common law jurisdiction
is actually acquired by personal service upon the defendant, whereas in the
French system service upon the defendant is merely a means of informing him
that an action is pending. Service is considered in France as a purely procedural
matter, and is deemed sufficient if it satisfies the law of the state in which the
original action was brought. The question exists, however, whether an English
or an American court will recognize the jurisdiction of the foreign court over
the defendant, when such jurisdiction is based solely on citizenship of the
defendant regardless of the mode of service.
English courts and a few authors appear to favour the view that allegiance
is a sufficient ground of jurisdiction, because a subject is bound by the com-
mands of his sovereign, and in consequence thereof by the judgments of his
sovereign’s courts. 35 But, it does not seem that American courts would be
disposed to consider as valid, a money judgment rendered in a foreign country,
where the jurisdiction of the court was based on allegiance only and service
of process was at the time impossible. 36 The Restatement3 7 specifically states
that a nation can exercise through its courts jurisdiction over its nationals
although neither present nor domiciled within the country, provided that the
defendant has a reasonable opportunity to be heard.
In fact American courts often have refused to recognize jurisdiction based
on citizenship only. In Smith v. Grady,3 s a WYisconsin court refused to re-
cognize a judgment recovered in a Canadian court against a Canadian citizen
where process was served in accordance with the Canadian rules. In Grubel
v. Nassauer, a New York court refused to recognize a judgment of a Bavarian
34[1894] A.C. 670; See also Rousillon v. Roussilon, (1880), 14 Ch. D 351 per Justice
Fry; Harris v. Taylor, [1915] 2 K.B. 580; Emanuel v. Synon, [19081 1 K.B. 302;
General Steam Navigation v. Guillon (1843), 11 1 & W 877; Forsyth v. Forsyth, (1948]
P. 125.
35Dicey, op. cit., pp. 405-406.
3GSee note 33; “The doctrine of allegiance as basis for jurisdiction is inapplicable to
British territory, for allegiance is owed by every subject to the British Crown.” The
fact that a man was born in the Colony does not make him a subject of the colony so
as to make him bound by a judgment given in his absence. Dicey, op. cit., p. 356, Turn-
bull v. Walker (1892), 67 L.T. 767.
3″Restatement Conflict of Laws, s. 80.
3s68 Wis. 215; liVard v. Boyce (1897), 152 N.Y. 191; Shepard v. Wright, 59 How.
Pr. 512 (where a personal judgment rendered in Canada against a resident of New
York would not be enforced against him in N.Y. though he was a citizen of Canada
unless he had been served with process in Canada or voluntarily appeared.)
39210 N.Y. 149, 103 N.E. 1113; Cf. Kerr v. Tagliaza, 168 N.Y.S. 697.
No. 21
JURISDICTION AND MONEY JUDGMEXTS
court, the jurisdiction of which was based upon citizenship. (The defendant
was domiciled in New York but had not lost his Bavarian citizenship.) How-
ever, this decision cannot be considered as clearly rejecting citizenship as a
basis for jurisdiction as the court refused to recognize the Bavarian decree
on the basis of Pennover v. Neff,40 where it was held that process from the
tribumal of one state cannot run in another state and summon the parties there
domiciled to leave its territory and respond to the proceedings against them.
The refusal to recognize the foreign judgment seems to have been made with-
out regard for the citizenship of the defendant. It was based solely upon the
absence of personal service, because, as the court pointed out, a judgment for
money recovered in one sister-state without personal service of process on the
defendant cannot be enforced within another sister-state, and it would be un-
reasonable to accord greater respect to a foreign judgment than to the judg-
ment of a sister-state. Whether or not full approval can be given to the reason-
ing of the court, there can be little doubt that the decision is consistent with
the common law doctrine conferring jurisdiction over the non-resident defendant
only when personally served.
If citizenship is to be recognized as a basis for jurisdiction, the enforcing
courts should always determine whether the defendant had an opportunity
to defend himself, and whether he had been properly served in the foreign
country. Jurisdiction based upon citizenship alone would offend the Anglo-
American views of natural justice.41 Allegiance 42 does not appear to be a
practical basis for jurisdiction in the British Commonwealth or in the United
States, and in other federal states, where so many different systems of law are
applied. It is a concept which does not conform with modern life. There are
the foreign
judgment on
the ground that
4095 U.S. 714 (there can be no jurisdiction based on allegiance in the national sense by
the states of the Union). Some states of the U.S.A. recognize the right of a state to
render a personal judgment upon constructive or substituted service of process: see
Freeman, op. cit., ss. 1376-1377. In general, public proclamations, posting up notices
cannot confer jurisdiction over a foreigner who is not a resident and did not appear
whether he has had notice or not. Story, op. cit., p. 546.
it offended substantial
411t seems to me that in Grubel v. Nassauer, the court could have refused to re-
cognize
justice,
because the mode of service did not give the defendant an opportunity to be heard;
note that he had repudiated his German citizenship by becoming a U.S. citizen. Cor-
porations also owe allegiance to the foreign country where incorporated. However a
shareholder is not automatically, by virtue of such membership, subject to the jurisdic-
tion of that state; Copin v. Adamson, [1875] 1 Ex. D. (CA) 17; Emanuel v. Symon,
[1908] 1 K.B. 302;Service of process outside the jurisdiction of the court over the non-
resident stockholder defendant in a corporation of the foreign country rendering the
judgment does not confer jurisdiction over him: see Pope v. Heckscher, 194 N.E. 53,
226 N.Y. 114, 97 A.L.R. 687; contra: Clarkson v. Moir, 201 P 476, 53 Cal. App. 775
(1921).
42See also Dicey, op. cit., p. 357; Cheshire, Private International Law, (3d ed.) 789;
Read, op. cit., 153.
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now in the world so many refugees or displaced persons that it would be a great
injustice if the forum were to enforce judgments rendered against these people
based solely on citizenship, which in certain countries remains in spite of the
acquisition of a new nationality. In view of the poor support given to this
principle by the Anglo-American courts, it is submitted that allegiance should
not be recognized as sufficient to give jurisdiction to a foreign court to render
a foreign money judgment. 43
(2) Presence, Residence, Domicile
‘Where the defendant was at the time of the commencement of the action resident
or domiciled within the country rendering the judgment.
Physical Presence
The first situation to be considered is where the defendant is within the
territorial limits of a country under such circumstances as to owe temporary
allegiance to it. Anglo American courts held that in such a case the foreign
court has jurisdiction over him.44 It is unnecessary to show that the defendant
was ordinarily or even
temporarily resident in the foreign country. It is
sufficient if it appears that at the commencement of the proceedings, he was
physically present therein, whether on a visit or merely in the course of his
travels through the country, and it is immaterial to show that very soon after-
wards he left the territorial area of the foreign jurisdiction. 45 Failing such
proof, the foreign tribunal has no jurisdiction over any person not a subject of
the foreign state.46 This principle of presence is not based on political al-
legiance as such, but on allegiance within the limits of territorial jurisdiction.
This represents a compromise between the conflicting notions of territoriality
43Foreign judgments (Reciprocal Enforcement) Act 1933; contra: Smith, Personal
Jurisdiction (1953), 2 Int. & Comp. Law Quart., pp. 510 and 531.
441t is no defense to an action on a foreign judgment that the defendant was served
with process in the action while transiently sojourning in that country and that such
service was so made and timed as to embarass him and to obtain an unjust advantage
by preventing him from having a fair opportunity to make his defence except at the cost
of prolonging indefinitely his stay abroad, Fisher Brown Co. v. Fielding, 67 Conn. 91.
45Carrick v. Hancock (1895), 12 T.L.R. 59 per Lord Russell C.J. at p. 60 “The
jurisdiction of a court was based upon the principle of territorial dominion and that all
persons within any territorial dominion owe their allegiance to its sovereign power,
and obedience to all its laws and to the lawful jurisdiction of its courts. In his opinion
that duty of allegiance was correlative to the protection given by a state to any person
within its territory.” Schmitthoff, The English Conflict of Laws, (3d ed., 195,t), p.
422.
46Buchanan v. Rucker (1808), 9 East 192, per Lord Ellenborough at p. 194; Cowan
v. Stewart (1816), 1 Stark 525; Schibsby v. Westenholc (1870), L.R. 6 Q.B. 155 per
Blackburn, J, pp. 160, 163; Emanuel v. Symon, [1908] 1 K.B. 302 where the defendant
was not resident in the colony at the material date; Phillips v. Batho, [1913] 3 K.B.
25 per Scrutton, J. pp. 29-30; Faridkote case, [1894] A.C. 670 at p. 683.
No. 2]
JURISDICTION AND MONEY JUDGMENTS
and nationality. 47 It is an allegiance owed to the sovereign by all persons
temporarily present in its territory.48
If a non-resident is brought into the state by force or by fraud on the part
of the plaintiff or where the defendant came only as a witness, the foreign
court will not validly acquire jurisdiction over him.40 Of course the defendant
must be personally served within the state or country, but if the statute author-
izes a different mode of service it will be recognized if the method is one reason-
ably calculated to give him knowledge of the action and if he has had an
opportunity to be heard.
There has been considerable criticism of jurisdiction over a defendant
arising from temporary presence within the state, on the ground that the
possibility of occasional hardship to the plaintiff’s cause is thought insufficient
to justify the adoption of rules depriving the defendant of the power to defend
on the merits at his own place of residence. 50 It is submitted, however, that
this rule should be retained as long as the defendant was personally served
and had an opportunity to be heard.
Residence
Residence of a defendant in a foreign country also gives the courts juris-
diction over him, 5′ although it is sometimes difficult to distinguish residence
from mere presence. For instance, Dicey maintains that residence in the strict
meaning of the term is not necessary – mere presence is enough. Residence
means nothing more than such presence of the defendant as makes it possible
to serve him with a writ or other process by which the action is commenced.
Thus residence for purposes of jurisdiction in the case of foreign judgments
equals physical presence.
However, it seems possible to distinguish the concept of mere physical
presence in the country from that of residence, on the ground that, service
beyond the jurisdiction will be good in the case of residence, but not in the
case of mere presence. In the latter situation, the defendant must be served
within the jurisdiction. 52
47Schmitthoff, op. cit., p. 423.
48Forbes v. Simons (1914), 7 W.W.R., pp. 97, 98.
49Restatement, Conflict of Laws, s 78 d. and e.
ToProceedings of the 16th Annual Mlfeeting of the Conference of Commissioners on
Uniformity of Legislation in Canada (1933), 83; Jurisdiction in Personal Actions (1929),
23 Ill. L. Rev. 427. Cheshire, op. cit., p. 781.
51Enanuel v. Syinon, [1908] 1 KB 302, 309; Schibsby v. Westenhols (1870), L.R.
6 Q.B. 155; General Steam Nay. Co. v. Guillou (1843), 11 M & W 877, at p. 894.
52Read, op. cit., p. 156; Dicey, op. cit., p. 410; Foote, A Concise Treatise on Private
International Lazu, (5th ed. 1925) 367, but see Buchanan v. Ruckner, 9 East 192 and
(Substituted service) and Moore v.
Becquet v. McCarthy, (1831)
Phillips, 10 Pa. Co Ct. R. 552.
2 B & Ad. 951
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In the case of a corporation, residence means the carrying on of some busi-
ness at a definite place.53 It is enough to show that the defendant maintained
a public office in the foreign state, though not physically present, on the theory
that such an action constitutes a kind of constructive residence.r 4
In my opinion, residence is certainly the most realistic test of jurisdiction.
It meets the criticisms raised against mere physical presence and is easier to
ascertain than domicile. However, if residence means mere physical presence,
the concept should be revised in order to determine its implications.
5 3 Littauer Glove Co. v. F. W. Millington, 44 T.L.R. 746; The Act of 1933 provides
that the foreign court shall be deemed to have jurisdiction if the defendant had an
office or place of business in the foreign country and the proceedings were in respect of
(a) (v); Dicey,
a transaction effected through or at that office or place, Section 4 (2)
in personam concerning corporations:
op. cit., p. 355 Jurisdiction of foreign courts
Cahill, Jurisdiction over Foreign Corporations (1917), 30 Harv. L. Rev. 676; Fead,
Jurisdiction over Foreign Corporations (1926), 24 Mich. L. Rev. 633; Scott, Jurisdic-
lion over Non-Rresidents Doing Business Within a State (1919), 32 Harv. L. Rev.
871, 60 Am. L. Rev. 415. Restatement, Conflicts of Laws s. 89; Sugden, The Enforcement
of Foreign Judgments against Corporations (1928), 72 Sol. J. 603. Substantial period
of time: Haggin v. Coniptoir d’Escompte de Paris, (1889), 23 Q.B.D. 519; at a
lixed place of business: Saccharin Corporation Linitcd v. Chemische Fabrick von
Heyden Atkiengesellschaft, [1911] 2 K.B. 516; as to agent carrying business see Allison
v. Independent Press Cable Association of Australia Limited (1911), 28 T.L.R. 128. To
carry on business within a state a foreign corporation must perform a series of similar acts
for profit (Restatement, s. 167). This is as variance with the rule stated in s. 84 which
provides that an individual subjects himself to the jurisdiction of a court of the state in
also Restatement, s. 92. In all these cases it is a question
which he does a single act –
of fact: City Finance Co. Ltd. v. Matthew Harvey & Co. Ltd. (1915), 21 Com. L.R.
55 per J. Isaacs. Generally the fact that a corporation carries on business through its
(see Restatement, s.
agent in the foreign law district gives jurisdiction in personam
91). As to the working out of a satisfactory rule concerning jurisdiction over corpora-
tions see: Read, op. cit. pp. 177-186; and Scott, Jurisdiction over non-resident motorists
(1926) 39 Harv. L.R. 563, 60 Am. L. Rev. 403. Beale, Foreign corporations; Ferrier,
jurisdiction over foreign corporations (1933), 17 Minn. Law Rev. 380. For latest develop-
in our Federal
ments see Sobeloff, Jurisdiction of State Courts over non-residents
System (1958) 43 Cornell L.Q. 196 and Second Restatement of the Law of Conflict of
(Tent. Draft No. 3, 1956) ; Piggott, Foreign Judgments, (2d ed.), p.
Laws see 84 (i)
152. As to the effect of the ceasing of doing business, see Restatement, s. 93; As to part-
nerships and other unincorporaated associations, see Restatement, s. 86; Australasian
Temperance & General Mutual Life Assurance Society v. Howe (1922), 31 Com. L.R.
290, 334. Service on agent, see Smith, Personal Jurisdiction (1953), 2 Int. & Comp. Law.
Q. 510, 532.
(1837),
aiDon v. Lippman
5 Cl. & Fin. I per Lord Broughham; The doing of
certain acts within the territory of a court may be the basis of personal jurisdiction:
Hess v. Pawloski, 274 U.S. 352 (1927); Hood v. Guaranty Trust Co., 270 N.Y. 17.
(1936) ; Doherty & Co. v. Goodman, 294 U.S. 623; Vuchter v. PiLzutti, 276 U.S. 13
(1928). But the making of isolated contracts does not create constructive residence and
therefore does not justify assumption of personal jurisdiction: Ross v. Ostrander, 79
N.Y.S. 2d 206; Flexner v. Farson, 248 U.S. 289 (1919).
JURISDICTTON AND MONEY JUDGMENTS
No. 2]
Domicile
English and American courts assert jurisdiction in personam over a de-
fendant domiciled within the country.55 Dicey believed that domicile was not a
sufficient ground for the jurisdiction of a foreign court,56 because only dicta
supported this theory. 57 Dean Read, however, disagrees with Dicey on the
iround that Douglas v. Forrest upheld domicile rather than nationality as a
basis for jurisdiction.5″
In the United States, the predominant view is that domicile within a state
or country is a sufficient basis for jurisdiction over an individual. 59 The Re-
statement states that “a state can exercise through its courts jurisdiction over
an individual domiciled within the state although he is not present within the
state”.60 This domiciliary doctrine of jurisdiction seems satisfactory since
everyone must have a domicile. There will always be one country where a
debtor may be sued.
Although domicile, as a ground for jurisdiction is superior to allegiance, it
is not fully adequate due to the great difficulty of ascertaining its existence. Dean
Read 6 suggests that if domicile were to be adopted as a ground for jurisdic-
tion, it should be accompanied by residence or presence. Under these circum-
stances why not reject domicile altogether and make residence the sole test of
compelled submission to the jurisdiction of the foreign court?
To sum up, a foreign money judgment will be enforceable in the Anglo-
American courts only if it was pronounced against a resident or person
domiciled in the foreign state at the time the writ of summons was served
there. Recently a somewhat broader interpretation has been given to this rule,
where a statute permits the courts to summon residents or dimiciliaries beyond
its territorial jurisdiction by extraterritorial service.62 This type of service has
been held valid, where it gave the defendant a reasonable opportunity to be
5 5Order XI r 1 (c) ; Dicey, op. cit., rule 68; Restatement, s. 79.
563d ed. p. 401.
57 laffer v. Williams (1908), 25 T.L.R. 12; Gibson & Co. v. Gibson, [1913] 3 KB.
(1892), 67
379; Emanuel v. Symon, [1908] 1 KB. (C.A.) 302; Turnbull v. Walker
L.T. 767.
584 Bing. 686 (1828), Beale, The Jurisdiction of Courts over Foreigners (1913),
26 Harv. Law Rev. 283, 296.
59Henderson v. Staniford, (1870) 105 Mass. 504; Hunt v. Hunt., 72 N.Y. 217.
6ORestatement, Conflict of Laws, s. 79.
610p. cit., 160; The Foreign Judgments (Reciprocal Enforcement) Act, (1933), does
not mention domicile as basis for jurisdiction.
621n England, Order XI r 1 provides that leave for service will be given whenever
any relief is sought against any person domiciled or ordinary resident within the juris-
diction. This includes residents of England, aliens as well as British, and all subjects
who are not domiciled or ordinary residents in aiy other part of the world. Some
states of the U.S.A. have statutes permitting service out of the jurisdiction. N.Y.
C.P. s 438
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[Vol. 4
heard.63 On the other hand extraterritorial service of process on a non-resident
or one without domicile within the jurisdiction of the foreign court is not re-
cognized by Anglo-American courts.6 4 This applies to public proclamations
and the-posting up of notices. 65
As was said by Mr. Justice Blackburn in Schibsby v. Westenholz,6 6 a foreign
country having exclusive jurisdiction within the limits of its own territory,
is restricted only by considerations of suitability in setting up its regulations
concerning the presence or absence of any circumstances or preliminary re-
quirements in the definition of the terms on which its courts may assume
jurisdiction. The general principle that no country can pass laws to bind an-
other country renders inoperative any laws providing for constructive service
of process emanating from the tribunal of one state upon persons domiciled in
the territory of another state, unless such persons are bound to the enacting
country by domicile or by residence.
Service by publication has been held good upon a showing that the defendant
had elected domicile,67 or that he had a business agent”” in the country where
the judgment was rendered. If, however, the judgment was obtained through
fraudulent representation as to residence, or domicile, it may be attacked by
any person whose material interests are affected.6 9
It is submitted that a foreign judgement should be binding upon the de-
fendant if at the time of the suit, 1) he was freely present within the law
district of the court or he resided within the law district; and in the case of a
corporation, it was at that time engaged in substantial business in that law
district, 2) and the defendant was personally served with process.
(3) Where the litigant voluntarily has submitted himself to the jurisdiction
of the courts.
a) Where the defendant in the character of a plaintiff counterclaimant has select-
ed the forum in which he is afterwards sued.
63A default judgment entered in Great Britain against defendants who were personally
served in New York pursuant to rules of English courts was held good because the
defendants were domiciled and resident in England: Rhodesian General Finance Trading
Trust v. MacQuisten, 11 N.Y. 2d 476, 170 Misc. 996 (1939).
64McEvan v. Zimmer, 38 Mich. 765; Murray v. Strong, 2 Alaska 517; Wilson v.
Gibson, 259 SW 491, 214 Mo. App. (1924).
65Ross v. Ostrander, 79 N.Y.S. 2d 706; 192 Misc. 149 (1948) ; Story, op. cit., s. 546;
Buchanan v. Rucker (1808), 9 East 192; Pope v. Heckecher, 194 N.E. 53, 226 N.Y. 114,
97 A.L.R. 687; Schneider v. Woodworth, 1 Mass. 41.
66(1870), L.R. 6 Q.B. 155, 160.
67Vallee v. Dumergue (1849), 4 Exch. 290; Traders Trust Co. v. Davidson, 146
Minn. 224; Copin v. Adamson (1875), 1 Ex. D. 17; Bank of Australasia v. Nias
(1851), 16 Q.B. 717; Bank of Australasia v. Harding, (1850), 9 C.B. 661; Feyerick v.
Hubbard (1902), 71 L.J. KB. 509.
68Hilton v. Guyot, 159 U.S. 113 (1895).
69Christopher v. Christopher, 31 S.E. 2d 818.
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JURISDICTION AND MONEY JUDGMENTS
If in the capacity of plaintiff, a person selected the tribunal of a foreign
country as the one where he would bring suit, he cannot afterwards complain
that such forum had no jurisdiction to pronounce the judgment against him. 70
He is deemed to have submitted to its jurisdiction 7 1 and decision or any set-
off, counterclaim, or cross action which may be brought against him during
the course of the action. The rule applies whether or not the defendant in the
cross action, 7 2 was resident in the country where as plaintiff he originally brought
the action. This does not mean that a reluctant claimant in interpleader pro-
ceedings must submit to a counterclain by the original plaintiff, which is in
fact an additional claim, nor need the plaintiff submit to a cross action which
could not have been made the subject of a counterclaim. It is understood that
in the case where the action is brought in the name of the plaintiff without his
authorization, he is not deemed to have subjected himself to the jurisdiction
of the foreign court. 73
b) Voluntary appearance
It is also well established that a person who voluntarily appears as a de-
fendant submits himself to the judgment of the foreign court.74 This may occur
in different ways: 1) the defendant may appear and plead to the merits with-
out protesting lack of jurisdiction; 2) he may appear and although protesting
to the jurisdiction, plead to the merits;75 or 3) he may appear for the sole
purpose of contesting jurisdiction.76 Having in mind these different situations,
it is necessary to determine what type of acts amount to a voluntary appearance.
70Dictum in Schibsby v. Westenholz, Blackburn J., (1870), L.R. 6 Q.B. 155, 161;
General Steam Navigation Co. v. Guillou, (1843), 11 M. & W. 877, 894; Any other
rule would be contrary to the principle of res judicata. A plaintiff who has chosen his
court cannot say that a judgment on appeal from that court was rendered without juris-
diction, Sultan of Johore v. Abubaken, [1952] A.C. 318; Similarly a submission taking
the form of an application by the defendant to set aside an ex parte judgment gives
jurisdiction to an appelate court to restore that judgment after it has been set aside,
thought the judgment restored would not, for the defendant’s intervention, have had any
international force. Guiard v. deClermont, [1914] 3 K.B. 145.
jurisdiction
71See Dicey, op. cit., rule 68 comment; In the United States, see Restatement,
in personam over a
s. 83 a, b and c. A foreign court may have
foreign corporation when it has brought an action as plaintiff; Henriques v. Dutch
West India Co., 2 Ld. Raym. 1532, 1 Str. 612 (1729).
72Eschger Co. v. Morrison Kekevich & Co. (1890), 6 T.L.R. 145.
73Restatement, s. 83, d.
74Ibid. s. 82; Harris v. Taylor, [1915] 2 K.B. 580.
75Richardson v. Allen (1916), 28 D.L.R. 134.
76Harris v. Taylor, [1915] 2 IKB. 580 (C.A.) per Buckley L.J. pp. 587, 588; Bois-
siere Co. v. Brockner Co. (1889), 6 T.L.R. 85 per Cave J. at pp. 85, 86; A similar
rule as to the prevalence of conduct over accompanying protests or reservation in words
attains in the law of estoppel by representation; Bower, Law of Estoppel by Represent-
ation (1923), ss. 132, 135 and s. 145 where no estoppel can be founded on involuntary
statements or acts.
McGILL LAW JOURNAL
[Vol. 4
In Voinet v. Barett7
the jurisdiction, his appearance
7 it was held that an appearance, unless made under
duress, pressure, or compulsion, is an election to submit to the jurisdiction
from which the process has been issued and constitutes voluntary appearance.
Some decisions have gone to the extent of holding that where the defendant
is deemed
appears only to protest against
voluntary.78 In other .words, if the defendant takes the chance of a judgment
in his favour, he is bound. 79 Statutes may permit protest to the jurisdiction
without making such protest a general appearance, 0 a proceeding sometimes
known as a special appearance. The Restatement says “By the law of most
states an appearance entered by the defendant solely for the purpose of ob-
jecting that the court has no jurisdiction over him does not subject him to the
jurisdiction of the court.’8 A special appearance and motion appear to con-
stitute a request that the court advise whether the defendant must answer or
suffer a valid default judgment; it is a submission to the issue of ultimate
jurisdiction which will enable the court to give a valid judgment on the
merits.
The court has, by the special appearance, limited jurisdiction to determine
the ultimate jurisdiction, and its determination becomes res judicata between
the parties. Therefore, where the ultimate jurisdiction is in dispute, the limited
jurisdiction to try this issue will be based solely on the special appearance,
and the court may render the original judgment with a motion to dismiss or
to vacate a judgment for lack of jurisdiction. The motion to vacate having
received a full hearing, the decision should be binding on the parties8 2 in the
77(1885), 55 Q.B. 39.
7SBoissiere v. Brockner (1889), 6 T.L.R. 85; Harris v. Taylor, [1915] 2 K.B. 580;
Guiard v. de Clermont, [1914] 3 K.B. 145; Molony v. Gibbons (1810), 2 Camp 502.
79Schibsby v. Westenholz (1870), L.R. 6 Q.B. 155, per Blackburn J. at p. 162. See
Banco Minero v. Ross, Tex. Civ. App., (1911), 138 S.W. 224, 106 Tex. 522; Cruz v.
O’Bolle, 197 Fed. 824; Gilbert v. Burstine, 255 N.Y. 348.
80The Foreign Judgments (Reciprocal Enforcement) Act, (1933), does not permit
registration of a foreign judgment in England if the defendant appeared in the original
foreign court under protest.
8iS. 82 comment a; special appearance to deny jurisdiction not amounting to a consent
to jurisdiction: German Bank v. American Fire Ins. Co., 83 Ia 491 (1891); Gray v.
Hawes, 8 Cal. 562 (1857). The same rules apply in the case of a foreign corporation:
see Restatement, s. 88 – England: De Dulles’ Settlement, [1951] 1 Ch. 842.
28(1927-28), 41 Harv. L. Rev. 1055; Thomas v. Virden, 160 Fed. 418; Hope v.
Shevill, 137 App. Div. 86, 122 N.Y.S. 127 (1910) affd sub nom, Hope v. Seaman, 204
N.Y. 563 (1912) ; Freeman, op. cit., s. 667; In Baldwin v. Iowa State Traveling Men’s
Assoc., 238 U.S. 522 (1931) a voluntary appearance in the original suit to litigate the
question of jurisdiction was taken as a submission to the jurisdiction of the court for
this purpose and the determination was held res judicata. If in an action on a judgment,
there is a finding by the second court of the first court’s jurisdiction, it is res judicata
so long as the defendant appeared voluntarily in the second suit: Dogge v. Baxter,
69 Colo. 122 (1917); an extension of this principle to judgments of foreign countries
would have desirable effects. See re the St. Nazaire Co. Ltd. ex parte European, 36 L.T.
358 37 L.T. 52.
No. 2]
JURISDICTION AND MONEY JUDGMENTS
into the
second state and relieve its courts from the burden of inquiring
jurisdiction of the original court. Having passed upon the question of juris-
diction and having decided the case upon the merits, the defendant not
satisfied with the adjudication of such defence would have to appeal in the
original state and not attack collaterally the judgment in the state where the
judgment is sought to be enforced. The only difficulty with this solution would
arise where different systems of law are involved with each system having
its own conception of competent jurisdiction.83 This view also fails to distin-
guish between international jurisdiction and local jurisdiction, which is often
wider.
Where a couirt is bound by its own law to uphold its jurisdiction it should
be open to a defendant to enter a protest to its jurisdiction internationally, and
defend on the merits, without being bound in other countries by an adverse
though the plaintiff, having
decision
chosen his court, should be bound even internationally by failing on the merits.
This seems to be the best approach.
(unless his protest was unjustified)
Some states have statutes providing that an appearance by a defendant for
the sole purpose of objecting to the jurisdiction of the court shall subject him
to its jurisdiction for all purposes. This solution has also been followed by
some courts in the absence of such statutes.84 Other courts have held that,
in the absence of a statute making the filing of an answer an appearance, a
party not properly served with process, so as to give jurisdiction over his
person, does not waive the obligation or confer jurisdiction on the foreign
court by answering over and going to trial on the merits after his objection
to the jurisdiction has been overruled.8 5
In a case where a statute does not recognize the special appearance and
gives to any appearance the full effect of a general appearance, it may be
questioned whether a special appearance, after the judgment has been rendered,
could operate retroactively so as to validate a judgment void for want of
jurisdiction. According to one opinion, a judgment is a procedural abstract
which can be ratified by the subsequent appearance of the defendant, but a com-
pletely divergent view holds that a void judgment is no judgment at all, and
therefore it is impossible to validate something which does not exist. Some
83Piggott, op. cit., (2nd ed.), p. 160. But it has been held that an adjudication of a
foreign court on the question of its jurisdiction is not conclusive: Hyde v. Scott, 133
N.Y.S. 904 (1912).
84Restatement, s. 82a; Jones v. Jones; 108 N.Y. 415 (1888) ; Harris v. Taylor, [19151
2 K.B. 580 which is a very good illustration of the proposition that where by statute the
appearance is only general and the defendant knowing it deliberately entered an ap-
pearance, he cannot be deemed to have entered special appearance only; Boissiere Co. v.
Brockner Co. (1889), 6 T.L.R. 85.
85Harkness v. Hyde, 98 U.S. 476
(1878); Steamship v. Tuginam, 106 U.S. 118
(1882), contra McCidlough v. Railway Mail Assoc., 225 Pa. 118 (1909); Tallack v
Tallack, [1927] P. 211; Re Dulles Settlement Trust, [1951] 2 All E.R. 72.
McGILL LAW JOURNAL
[Vol. 4
courts have recognized the possibility of conferring back jurisdiction, 0 where-
as other courts have rejected it.8s
Where the defendant appears, motivated by a desire to protect his property
within the dominion of the foreign court, and challenges the jurisdiction of the
foreign court to seize or attach it, it has been held that this was not a voluntary
appearance,88 because it occurred under what amounted to duress and com-
pulsion. The defendant is compelled to appear in an effort to prevent the sale of
his property already seized, when at international law the foreign court could not
have had jurisdiction in personam over him by the mere fact that his property
lay within the territory of the foreign country.8 9
On the other hand, it has been held that the appearance
is voluntary
where the defendant, animated by fear, appears for the purpose of protecting
property on which execution may be levied or seized pursuant to an action
in personam pending against him, and the property is actually within the
territory of the foreign country.90 It is also considered a voluntary appearance
where the defendant, though having no property at the time the foreign action
was commenced within the dominion of the foreign court, carries on business
there and appears in the action brought against him, because he fears that a
judgment rendered against him might be made effective, should he later bring
property into the foreign state.9 1
Where a defendant is sued in a foreign court and is not already subject to
its jurisdiction in personam in the international sense, his wisest course of
action according to Dean Read,
is to do nothing until he is sued on the resulting foreign default judgment in the
court of his own law district. He may lose his property, if any, situated in the
territory of the foreign court, but he may be able to resist the execution of the
foreign judgment against his property located elsewhere; whereas if he does any-
thing that amounts to a voluntary appearance in the foreign action, according to
the law of that court, he will likely be held to have consented to its jurisdiction
and will lose that power of resistance. He should not even enter a protest against
the jurisdiction before judgment in the foreign court, unless he can do so without
entering a general appearance according to its procedural law, although probably
he can later-safely appear and move to set the judgment aside in the foreign court
providing he is careful to make no further move, such
for want of jurisdiction –
as to contest an appeal from the decision on his motion. Possibly he may with
impunity appear in a foreign action and protest the jurisdiction if property owned
by him has been seized by the foreign court as basis for its jurisdiction, and it is
(1808): Guiard v. De
86Barnett v. Holyoke Mutual Fire Ins. Co., 78 Kan. 630
Clermont, [1914] 3 K.B. 145.
87Godfrey v. Valentine, 39 Minn. 336 (1888) ; Read, op. cit., pp. 169-170.
8 SDe Cosse Brissac v. Rathbone (1861), 6 M & W 301; Voinet v. Barrett (1885),
55 L.J. Q.B. 39; Duflos v. Burlingham (1876), 34 L.T. 688; Schibsby v. Wesenholz
(1870), L.R. Q.B. 155, per Blackburn, J. at p. 162; Guiard v. De Clermont, [1914]
3 KB. 145.
8 9 Read, op. cit., p. 163.
9 0 Voinet v. Barrett (1885), 55 L.J. Q.B. 39, De Cosse Brissac v. Rathbone (1861), 6
M. & W. 301; Hilton v. Guyot, 159 U.S. 113, (1895), contra, Duflos v. Burlingham
(1876), 34 L.T. 688.
9 1 Voinet v. Barrett (1885), 55 L.J. Q.B. (C.A.) 39. As to the distinction between
Voinet v. Barrett and De Cosse Brissac v. Rathbone, see Read, op. cit., p. 163.
No. 2 ]
JURISDICTION AND MONEY JUDGMENTS
still barely possible that in certain circumstances his appearance to save his property
which has been seized in execution under the foreign judgment would be held to be
involuntary.9 2
I fully agree with this statement. To treat a special appearance as a general
appearance denies the defendant an opportunity to be heard, and may in-
directly deprive him of property without due process of law.
Sometimes, by virtue of the appearance, the jurisdiction of the court will
not only attach to claims stated in the original complaint but also to claims
stated by the plaintiff in his amended complaint.9 3
As respects the form of appearance, it need not be made in person; it can
be made by an attorney, counsellor, or solicitor, and will be considered valid94
if the person actually appearing has been properly and duly authorized.9 ,
While proof of the appearance may be made by the plaintiff, usually the
burden of proof lies on the defendant to show that he did not voluntarily
appear. As the foreign judgment is presumed to be valid, an insufficient nega-
tion of appearance will be fatal to the defendant’s cause.9 6
In general, a defendant who cannot be harmed by the foreign court, submits
by merely contesting the jurisdiction. A defendant whose property is
in
jeopardy may contest the jurisdiction, but submits if he does any more, while
a defendant whose property has already been seized may, without submitting,
contest on the merits, but not counterclaim.
It is proposed that the following persons be bound by the foreign decision:
the plaintiff and the defendant who counterclaimed under any circumstances
or defended on the merits (unless to protect property already seized). In all
these situations, it is clear that the parties intended to submit the merits of the
case to the foreign jurisdiction.9 7
(c) Where the defendant has voluntarily contracted and consented to submit himself
to the formm wherein the judgment was obtained.
92Read, op. cit., p. 170, Westlake, op. cit. (7th ed.), p. 404.
93Restatement, s. 82 d.
94Cruz v. O’Boyle, 197 F 824 (Pa. 1912); A statement in a record that a party
appeared by attorney is prima facie evidence of that fact and of his authority to act:
Capling v. Herman, 17 Mich. 524.
95Molony v. Gibbons, 2 Camp 502; Bergerem v. Marsh (1921), 91 L.J. K.B. 80;
McMullen v. Ritchie (C.C.) 41 Fed. 502. Effect of appearance of unauthorized at-
torney: Restatement, s. 82 e;
96Presumption of jurisdiction: Ritchie v. McMullen, 159 U.S. 235; Thorn v. Salmon-
son, 37 Kan 441; Wilson v. Gibson, 259 S.W. 491, 214 Mo. App. 219 (1924). As to
proof of appearance: Russell v. Smith (1842), 9 M & W 810 per Lord Abinger at pp.
817-818; Parke B. at p. 819; Alderson B at 820; where the fact of appearance is not
established the foreign judgment is held not to operate as res judicata: Schibsby v.
Westenholz (1870), L.R. 6 Q.B. 115 where the non-appearance of the defendant was
admitted (per Blackburn, J. at pp. 156, 162) ; Rousillon v. Roussilon (1880), 14 Ch. D.
351; Turnbull v. Walker (1892), 67 L.T. 767 per Wright, J. at p. 769.
97A person cannot fight the issue and at the same time preserve the right to say,
if the worst comes to the worst, that the court has no jurisdiction to decide against him.
Re Dulle’s Settlement, [1951] 1 Ch. 842.
McGILL LAW JOURNAL
[Vol. 4
When a contract is entered into a foreign country, it is generally assumed
that the law of the foreign country will apply to its validity and interpretation
but this does not necessarily mean that the parties intended that disputes
arising under such contract are to be litigated in the courts of that country,98
even where it is to be performed there.99 On the other hand, a person’s corpor-
ation or partnership, though not otherwise subject to the jurisdiction of the
foreign court, may contract beforehand to be bound by the decision of the
foreign tribunal or by the doing of certain acts or words give consent to such
an exercise of jurisdiction with respect to a particular action, or generally,
with respect to actions afterwards brought. 0 0
The contract in respect to which the jurisdiction of the foreign court is
asserted may be express or implied. 11 For example, where the articles of
association or statute of incorporation of a foreign corporation expressly
provide that a shareholder is amenable to the jurisdiction of the courts of the
country where the corporation was created in any action concerning the rights
or obligations of such shareholder, the fact that he becomes a shareholder in
the foreign corporation and subscribed to the articles of incorporation has been
held to amount to a submission to such jurisdiction. 12 Merely becoming a share-
holder in a foreign corporation, however, does not amount to a contract to
9 8Sirdar Gurdyal Singh v. Rajah of Faridkote, [1894] A.C. 670.
9 9Ibid., refuting Schibsby v. Westenholz; Lord Alverston concurs in Emanuel v.
Symon [1908] 1 KB. 302 in the critique of Lord Blackburn: “When Copin v. Adam-
son was heard on appeal in the Court of Appeals, Lord Cairns decided the case upon
the first point, namely, that there had been an express contract to submit to the foreign
jurisdiction . . . to make a person who is not subject of nor domiciled nor resident in
the foreign country amenable to the jurisdiction of that country there must be some-
thing more than a mere contract made or mere possession of property in the foreign
country.”
1ssCopin v. Adamson
(1875), 1 Ex. D. (C.A.) 17; Law v. Garrett (1878), 8 Ch.
D. (C.A.) 26; Restatement, s. 81, comment b; Freyerick v. Hubbard (1902), 71 L.J.
(K.B.), 509 per Walton at pp. 510-512.
71 L.J.
1O’Express, Hart & Son Ltd. v. Furness Withy & Co. Ltd (1904), 37 N.S.R. 74;
(K.B.) 509; Grover Baker Sewing Mach.
Feyerick v. Hubbard (1902),
Co. v. Radcliffe, 137 U.S. 287; Law v. Garrett (1878), 8 Ch. D. (C.A.) 26; Implied:
Bank of Australasia v. Harding (1850), 9 C.B. 661; Bank of Australasia v. Nias
(1851), 16 Q.B. 717; Allen v. Standard Trust Co., [1920] 3 W.W.R. 990; Mecus v.
Thellusson (1853), 8 Ex. 638; Ridson Iron & Locomotive Works v. Furness, [1906]
1 K.B. (C.A.) 49; Valli v. Dumergue (1849), 4 Ex. 290; Jurisdiction on basis of
contract. Egley v. T. B. Bennet & Co., 196 Ind. 50, 139 N.E. 385. It was held in Dicey,
op. cit., p. 360, that under the Head “contract to submit” may be brought cases in which
from the nature of the contract, e.g., possibly under peculiar circumstances an agreement
with regard to foreign land, it may be presumed that the parties intended to submit to
the jurisdiction of the particular courts, viz., the courts of the country where the land is
situated.”
1 2 Copin v. Adamson (1875), 1 Ex. D. (C.A.) 17; Jones v. Turner, 248 Mich. 403.
INo. 2]1
JURISDICTION AND MONEY JUDGMENTS
submit to the jurisdiction of the foreign court’ 0 3 where the constitution of
such corporation or partnership does not provide expressly for such a sub-
mission. 10 4 It should be noted that the contract in itself, or consent to the
exercise of jurisdiction by the foreign court, does not cause the foreign court
automatically to apply the foreign law.1 5
Sometimes statutes provide for the submission of the shareholders to the
jurisdiction of the courts where the corporation was created, and this has been
held to be a sufficient justification even if there is nothing in the articles of
incorporation or the subscription agreement.’ 0 6 The appointment of a resident
agent to carry on the business of a corporation or partnership and to bring or
defend suits with respect to it, amounts to consent to be sued there. A judg-
ment against the shareholders or partners upon service on the agent binds them
and is valid extraterritorially. 10 7
Dean Read comments as follows upon the problem of consent:
… a contract to submit to the jurisdiction in personam of a foreign court must be
either express or necessarily implied from the facts; it cannot arise by implication
3Etanuel v. Symon, [1908] 1 K.B. 302, where it was held that in a partnership,
membership alone was not an implied contract to submit to the jurisdiction of the courts
of the colony in which the first carried on business (per Lord Alverstone C.J. pp. 307,
309 and Kennedy L.J. at pp. 313-314); In Copin v. Adamson (court below)
(1874)
L.R. 9 Ex. 345 pp. 355-356. A second replication which did not set up the agreement
but relied rolely on the fact that the defendant was a member of the “socift” was held
bad on a demurrer; there being no cross appeal on this point, the C.A. did not deal with
it; the mere fact that a defendant is a shareholder in the foreign company is not neces-
sarily a decisive argument for submitting him to the jurisdiction of the foreign state.
There must be evidence to show that he expressly contracted to submit to the jurisdic-
tion of the foreign court;
‘0 4Bank of China, Japan & The Straits v. Morse, 168 N.Y. 458, 56 L.R.A. 139, 85
Am. St. Rep. 676.
1O5Copin v. Adamson (1874), L.R. 9 Ex. 345 affirmed (1875), 1 Ex. D 17, But see
Empire Universal Films Ltd., v. Rank, [1947] O.R. 775 (Can.).
10GScott, Jurisdiction over Non-resident Motorists (1926), 60 Am. L. Rev. 415;
Boivin v. Talcott, 102 F Supp. 979 (1951) ; Bank of Australasia v. Harding (1850),
9 C.B. 661; Bank of Australasia v. Nias (1851), 16 Q.B. 717; Copin v. Adamson,
(1875), 1 Ex. D (C.A.) 17; Also there exist some statutes which create a contractual
relationship between certain persons within the boundaries of the state; Risdon Iron &
Locomotive Works v. Furness, [1905] 1 K.B. 304, [1906] 1 K.B. 49.
07Tharsis Sulphur Co. v. La Socigti des Mitaux (1889), 58 L.J. Q.B. 435; Bank of
Australasia v. Harding (1850) 9 Q.B. 661: The defendant, an Englishman residing in
England, was a member of an Australian company. An Australian Act enabled the
chairman of the company to sue and be sued for the company and provided that he was
to be taken as an agent for the members of the company. A judgment against the
chairman was held good against the defendant, the Australian court having jurisdic-
tion even if the defendant did not have notice of the proceedings against the chairman;
Bank of Ausiralasia v. Nias (1851), 16 Q.B. 717; Restatement, s. 91 c, Smith, Personal
Jurisdiction (1953), 2 Int. & Comp. L.Q. 510, 532.
McGILL LAW JOURNAL
[Vol. 4
of law. Consent must be actual; it is not sufficient to attribute a fictitious consent
to a person based on the general provisions of a foreign system of law. 108
It is also possible to have conditional consent under certain circumstances. 0D
A waiver or acceptance of service of process in an action, though given
by a defendant outside the state, may confer jurisdiction over him when the
waiver or acceptance of service of process can be construed as an express con-
sent to the exercise of jurisdiction of the foreign court.110
If there is a contract not to revoke, consent is irrevocable; whereas in the
case of a gratuitous consent, it may be revoked at any time before action is
brought.’ A contract to waive the natural right to notification of the court’s
intention to try the dispute will be valid, provided that specified means are
employed to bring it to the party’s notice.’1 2 It is also valid to contract to be
bound by substituted service. The danger in the case of a contract to submit
is that the defendant is generally forced to enter into the contract. Since the
foreign judgment is not open to an inquiry into the merits of the case, great
injustice may result to the defendant.
A foreign court should be deemed of competent jurisdiction only if the
defendant specifically agreed to submit to it and he has had actual notice of
the suit by personal or substituted service of process. Under no circumstances
should such an agreement be implied. Once the court has jurisdiction over a
party, the jurisdiction will continue throughout the proceedings.
IllI. REcIPRocITY IN JURISDICTION
The great principle which emerges from the analysis of the problem of juris-
diction in the Anglo-American system, is that the enforcing court tests the
power of a foreign court according to its own conflict rules. It results
that the forum may, and often does, discriminate against a foreign court, by
assuming jurisdiction on a larger scale than is conceded to it.
10 SRead, op. cit., p. 176; Beale, The Jurisdiction of Courts over Foreigners (1913),
26 Harv. L. Rev. 283; See notes, Read, Consent as a Basis of Jurisdiction in Personamn
of a Foreign Court, [1931] 1 D.L.R. 1; Restatement, s. 81, comment a, and s. 90;
The principle of consent has been carried to the extent of recognizing as valid a
foreign judgment rendered upon service by registered mail, Feyerick v. Hubbard,
(1902), 71 L.J. (K.B.) 509; In the absence of any contract, a non-resident stockholder
not a party to the proceedings is not bound by an order for the payment of the amount
due on his stock: Bank of China & Japan & The Straits v. Morse, 169 N.Y. 458; but
see Clarkson v. Moir, 201 P 476, 53 Cal. App. 775 (1921). A party may contract that
actual notice of proceedings against him in a foreign court need not be given him in
order to render him amenable to the jurisdiction of that court, Valli v. Dumergue,
(1849), 4 Exc. 290.
10 DRestatement, s. 81, comment d.
1lOIbid., s. 81, comment c.
“‘Ibid., s. 81, comment e, f and g.
112 Selection of an address from which process served there is forwarded; Valli v.
Dumergue (1849), 4 Ex. 290.
No. 2]
JURISDICTION AND MONEY JUDGMENTS
A comparative examination of the rules determining
the competence of
Anglo-American and foreign courts to entertain actions in personam illustrates
the validity of this statement. Does this mean that the forum should extend
the jurisdictional basis of foreign courts? In other words, should Anglo-Amer-
ican courts recognize a foreign money judgment which is founded upon a
jurisdictional basis similar to that exercised by them.
Let us take the case of England and compare the competence of the English
courts and that of foreign courts as recognized by the forum.
COMPETENCE OF THE ENGLISH COURTS
1-Where the defendant was present in
the jurisdiction when the action be-
gan.
2-Where the defendant voluntarily sub-
jurisdiction of the
mitted to the
court.
3-Where the court is empowered to
order the service of the writ (or of
notice thereof) out of the jurisdic-
tion. (Order 11, Rules of the ,Su-
preme Court)
4-Special statutory grounds.
5-In certain instances where the de-
fendant was domiciled in the juris-
diction when the action began.
COMPETENCE OF FOREIGN COURTS
A) Where the defendant is a subjcct of
the foreign country in which the
judgment was obtained.
B) Where he was resident or present
in the foreign country where the
action began.
C) Where the defendant in the char-
acter of plaintiff has selected the
forum in which he is afterwards
sued.
D) Where be has voluntarily appeared.
E) Where he has contracted to submit
himself to the forum in which the
judgment was obtained.
It appears that nos. 3, 4 and 5 are instances of assumed jurisdiction of the
English courts which do not find their equivalent on the foreign side. With
regard to nos. 3 and 4, is it possible to say that the statutory jurisdiction of
the English courts is of purely local character and cannot claim international
recognition on a reciprocal basis?
There does not seem to be any compelling reason against recognizing a
jurisdiction which the forum itself claims. In Travers v. Holley”1 3 it was de-
clared that what entitles an English court to assume jurisdiction should be
equally effective in the case of a foreign court. “Where there is in substance
reciprocity “it would be contrary to principle and inconsistent with comity
if the courts of England would refuse to recognize a jurisdiction which mutatis
mutandis they claim for themselves.” Reciprocity is designed to enlarge the
grounds upon which English courts will recognize the jurisdiction of foreign
courts. Here the court recognized a foreign divorce decree upon the principle
that it had been granted by a court using a special statutory basis of jurisdic-
tion comparable to that now possessed by statute by the courts of the forum.
This decision does not however substitute a new basis for the recognition
of foreign judgments. The already existing grounds of jurisdiction of the
foreign courts recognized by English courts are not superseded. The English
rules for the recognition of the jurisdiction of foreign courts are only extend-
ed to cover grounds similar to those resorted to in domestic cases. It may thus
“:3[1953] P. 246; [1953] 2 All E.R. 794 (CA),
(1954), 17 M.L.R. 79, 471. See also
Dunne v. Saban, [1954] 3 W.L.R. 980, (1955), 18 M.L.R. 177.
McGILL LAW JOURNAL
[Vol. 4
happen that the English courts will concede to the foreign courts a wider
jurisdiction than they themselves claim. For instance, in the synopsis
(a)
“allegiance”, htalough not a domestic jurisdictional basis, will be left untouched.
Of course in all these cases there may be concurrent jurisdiction. For in-
stance, X, a national of state A, may be domiciled in state B and resident in
state C. A decision of the courts of any of these states A B, or C, will be
entitled to recognition in England. No particular grounds of jurisdiction has
precedence over the other. This avoids possible clashes among the recognized
grounds of jurisdiction.
What would be the attitude of the Anglo-American courts, in the field of
foreign money judgments where the substantial basis of jurisdiction is the
defendant’s presence or submission, if under the law of the foreign state, pro-
ceedings were brought against the defendant on some other basis? Would an
English court for instance recognize a foreign judgment against an absent
defendant granted on a basis similar to one of those mentioned in Order 11
of the Rules of the Supreme Court? By this order English courts have as
forum conveniens a limited discretionary power to allow the service of pro-
ceedings instituted in England against a person or company not ordinarily
domiciled or resident in the United Kingdom. Thus, English courts are deemed
to have jurisdiction wherever: 1-The whole subject matter of the action is
land situated within the United Kingdom or is in respect of any act, deed, will,
contract, obligation or liability affecting such land or, 2-The action is for the
administration of personal estate of any deceased person, who, at the time of
his death, was domiciled within the jurisdiction, or for the execution of the
trusts of any written instrument of which the person to be served is a trustee,
which ought to be executed according to the law of England, or, 3-The action
is one brought against a defendant not domiciled or ordinarily resident
in
Scotland, to enforce, rescind, dissolve, annul or otherwise affect a contract or
to recover damages or other relief for, or in respect of the breach of a contract
a) made within the jurisdiction or b) made by or through an agent trading or
residing out of the jurisdiction or c) by its terms or by implication to be
governed by English law, 4-Any person out of the jurisdiction is a necessary
or proper party to an action properly brought against some other person duly
served within the jurisdiction, 6-The action is brought under the Carriage
by Air Act of 1932.
It seems that English courts could concede to the courts of foreign countries
the same rights of jurisdiction which they claim for themselves under Order
11 and other statutes so long as the foreign legislation involved does not differ
in substance and spirit from its English equivalent. 114 This view is supported
by the remarks of Denning L.J. in Re Dulles”r, in his analysis of Harris v.
Taylor.”1 6 The learned judge said:
114Dicey, op. cit., p. 352.
115[1951] Ch. 842, 851.
116[1915] 2 KB. 580.
No. 21
JURISDICTION AND MONEY JUDGMENTS
177
Those rules correspond with the English rules for service out of the jurisdiction
contained in Order 11; and I do not doubt that our courts would recognize a judg-
ment properly obtained in the Manx courts for a tort committed there, whether the
defendant voluntarily submitted to the jurisdiction or not; just as we would expect
the Manx courts in a converse case to recognize a judgment obtained in our courts
against a resident of the Isle of Man, on his being properly served out of our juris-
diction for a tort committed there. 1 7
The opposition to this view has generally been along the lines of the often
quoted remark of Lord Ellenborough: “Can the Island of Tobago pass a law
to bind rights of the whole world? Would the world submit to such an as-
sumed jurisdiction?” The traditional approach of the courts has been that
the power of the foreign jurisdiction to legislate or exercise judicial control
over persons outside its own territorial limits is in direct conflict with the
principle of territoriality. All jurisdiction
territorial and extra
territorium jus dicenti impune non paretur.”18 Thus one may wonder whether
Travers v. Holley is a sound decision, especially where English courts are
given discretionary powers to issue writs or notices for service out of the
jurisdiction. Should one condone a progressive abandonment of the common
law rule that proceedings in personam are against only those persons who are
within the territorial limits of our courts? Such an attitude would appear to be
in direct conflict with common-law principles of due process and natural
justice, especially where it results in recognizing jurisdiction based solely on
a service of a writ or notice served out of the jurisdiction.119
is properly
It has been suggested by Dr. Kennedy’ 20 that an extension of the grounds
of jurisdiction of foreign courts on the basis of reciprocity is a sound principle
in federal states, especially in the field of torts. He says:
At common law, an action could not be brought against an absent defendant for a
tort committed within the jurisdiction. When the rule was changed domestically, it
was not thought until recent reciprocity discussions that a judgment in such action
would have validity abroad. 1 ‘
Today with the development and rapidity of transportation it may be desirable
that the courts of the place where the tort was committed and where probably
most of the witnesses are located should have jurisdiction, and that any judg-
ment arising from the new jurisdiction should be enforceable everywhere,
especially in view of the fact that most of -these claims are defended by in-
surance companies with little hardship on a foreign defendant. This author
“1T See also Wedley v. Quist, [1953] 4 D.L.R. 620.
118 Sirdar Gurdyal Singh v. The Rajah of Faridkote, [1894] AC 670, 683.
1190r based upon a writ served on the registrar or superintendent of motor vehicles
or secretary of state. See Boivin v. Talcott, 102 F Supp. 979 (1951) ; Scott, Jurisdiction
over non-resident motorists (1926), 60 Am. L. Rev. 415.
the recognition of foreign judgments (1954), 32 Can. Bar Rev.
359, 379; also Recognition of Judgments in personam; The meaning of Reciprocity
(1957), 35 Can. Bar Rev. 123. Reciprocity has been adopted by the Royal Commission
on Marriage and Divorce, Cmd 9678. See Mann (1958), 21 Mod L. Rev. 1 passim.
12OReciprocity i;
121Boivin v. Talcott, 102 F Supp. 979 (1951).
McGILL LAW JOURNAL
[Vol. 4
also maintains that in the field of contract the present area of Order 11 is
very reasonable and could easily be extended to foreign courts. 122 It seems that
besides statutory grounds of jurisdiction the rule could also be extended to
cover common-law grounds of jurisdiction.
As jurisdiction has always been the most important obstacle to recognition
of foreign judgments, there is not doubt that the principle of jurisdictional
reciprocity can be an excellent method for facilitating the recognition and
enforcement of foreign judgments in the forum. This rule should certainly be
followed in federal states where statutory as well as common law jurisdictional
principles are not substantially different. It may even result in an indirect
unification of rules of jurisdiction without the usual obstacles and inconven-
iences of a direct unification. To adhere strictly to the principles enunciated
almost fifty years ago in Emanuel v. Symon”23 is certainly a sign of back-
wardness and not in the tradition of the Anglo-American system. Whether the
rule should be extended to true foreign judgments is a more delicate question.
The writer agrees with Dean Griswold,’2 4 that it is not likely that American
courts will go so far, when judgments of foreign countries are involved, as
rules of fairness to the defendant, natural justice and due process under the
constitution are too fundamental tenets of the common law to be displaced
by the doctrine of reciprocity, without further safeguard and definition of
the principles involved in Travers v. Holley. It is submitted, however, that
the basic principle is sound and that it may be conducive to a better system of
recognition and enforcement of foreign money judgments.
Jurisdiction on the basis of reciprocity should be recognized so long as the
defendant has had an opportunity to be heard and defend the suit. With these
safeguards a great improvement could take place with no infringement of basic
principles of natural justice and due process. It must be noted that Dicey 125
and Cheshire126 had already indirectly advocated the doctrine of reciprocity of
jurisdiction. For these authors jurisdiction in personam of the English courts
rests on general principles of effectiveness as well as submission. Conversely,
they claim that the courts of any country are considered by English lav to
have jurisdiction over any matter with regard to which they can give effective
judgment. Later this theory found support in a dictum of Lord Merrivale in
Tallack v. Tallack.127 The majority of legal authors have, however, rejected
12 2Contracts made within the jurisdiction; contracts made by or through an agent
trading or residing within the jurisdiction on behalf of principal trading or residing
out of the jurisdiction; contracts which by their terms or by implication are to be
governed by English law; contracts wherever made in respect of which breach is com-
mitted within the jurisdiction.
]T1908] 1 K.B. 302.
‘
124 The Reciprocal Recognition of Divorce Decrees (1954), 67 Harv. L. Rev. 823.
1250p. cit., p. 22.
1264th ed., pp. 101-4.
127[1927] P. 211.
No. 2]
JURISDICTION AND MONEY JUDGMENTS
this view.128 They maintain that the jurisdiction of English courts is not based
upon considerations of the actual or probable effect of their decisions. This is
shown by the fact that the jurisdiction of English courts has been greatly
enlarged without regard to the possibility of enforcing their decisions. Also a
judgment may lose its effectiveness during the course of time.
It is interesting to note that reciprocity of jurisdiction is adhered to by the
French courts in a very different way. Once a French court has determined
that it was not exclusively competent under its rules to deal with the particular
case, it will recognize the jurisdiction of the foreign court only if it were based
on grounds similar to the ones found in the French domestic law. In other
words, rules of jurisdiction of the foreign court are deemed similar to those
is based in
of the French domestic courts. Thus, if personal jurisdiction
France on nationality or domicile, a foreign judgment based on domicile or
nationality will be recognized there so long as. the domicile was not French
or the plaintiff or the defendant was not a Frenchman. This is not true re-
ciprocity. Actually the French court does not pay any respect to the foreign
rules of jurisdiction. It does not recognize the foreign jurisdiction when
imposes its
similar to the French jurisdiction. The French court directly
jurisdictional rules on the foreign court irrespective of reciprocity. The ini-
tiative comes from the French court, while in the Holley case it came from the
foreign court. Thus, under French rules, jurisdiction may not exist according to
the law of the foreign court, while by application of the principles of Travers v.
Holley the foreign court will always have jurisdiction according to its own law.
Here foreign domestic jurisdiction is equivalent to international jurisdiction and
English domestic jurisdiction. The French rule, by equaling foreign jurisdiction
to domestic jurisdiction may restrict such foreign jurisdiction, while under
Travers v. Holley it can only be extended. The explanation for the French rule
lies in the fact that the French courts have not devised special conflict of jurisdic-
tion rules, they have only applied their domestic rules to foreign courts, so that
in certain cases the foreign rules are similar to the domestic ones and reciprocity
seems to exist.
IV.
COMPETENCE OF THE FOREIGN COURT IN ACTIONS IN PERSONAm:
THE FRENCH LAW
In France a foreign money judgment must also have been rendered by a
foreign court possessing international jurisdiction determined from the stand-
point of French law. The basic French rules of jurisdiction relating to do-
mestic causes of action are found in articles 59 and 420 of the Code of Civil
Procedure. 2 9 In practice these rules have been extended by the courts to
128Schmitthoff, op. cit., p. 425; Smith, Personal Jurisdiction (1953), 2 Int. and Comp.
L.Q. 510, 523-4; but see Graveson, The Conflict of Laws, (3d ed., 1955), p. 465 and
Kennedy, note 120.
129 Code de Procedure Civile, Livre II Tit. II Art. 59 (Des Ajournements) Article
420; Livre II Tit. XXV (Procedure devant les Tribunaux de Commerce).
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foreign causes of action, 130 by establishing a parallelism between domestic and
international rules of jurisdiction. 131 It follows that where the French domestic
rules of jurisdiction hold that only a French court can be competent, no
foreign court is competent. 132 On the other hand, where the competence of the
French court is a facultative one, the problem will relate to the validity of
the waiver of such competence. 133 Also, where according to French domestic
rules of jurisdiction several foreign or French courts could have been com-
petent, the problem is to determine whether the foreign court was one of those
designated as a forum by French law.13 4
First to be considered is the case where according to French domestic
rules of jurisdiction a French court is competent on an exclusive or non-
exclusive basis. A French court has exclusive competence in the following
situations:
a) Cases where a public law of France is involved, 135
b) Cases involving a French law of police,’ 3 6
c) Actions pertaining to immovable property where the immovable property
d) Suits against estates where the immovable property is located in France.138
e) Actions in partition where the property to be divided is in France,’30
f) Actions pertaining to movables located in France (i.e., action in recovery of
located in France, 13 7
is
chattels),140
country of incorporation,141
g) Certain suits relating to partnerships or corporations must be brought in the
h) Actions where insurance is involved,142
i) Actions involving the carrying of goods by sea under the law of April 2, 1936,
Article 10 which declares competent the tribunal of the place of destination,’ 43
j) Suits regarding alimony,’ 44
k) Suits involving collision.’ 45
13oPillet, op. cit., t. II, n 694; Niboyet, op. cit., t. VI, vol. 1, n 1804.
‘3 lBartin, Etudes sur les effets internationaux des jugements, (Paris, 1907); Prin-
cipes de droit international privi, I s 206, p. 550 et seq.
13 2Lyon, 2 juillet 1931, Clunet 1932 p. 673
13 3Articles 14 and 15 of the Civil Code.
‘3 4Article 59 para. 12 of the Code of Civil Procedure. In general see Francescakis,
Competence 6trangre et jugement 6tranger, Revue de droit international priv6, here-
after cited Revue, 1953, 1.
‘3 5 See Req. 27 mars 1922, Revue 1924, p. 401.
“36As to article 1382 of the Civil Code see Req. 15 juin 1909, Revue 1911 p. 339.
13TArticle 59, para. 5 Code of Civil Procedure.
‘ 3 8Article 59, para. 6 Code of Civil Procedure; Art. 59, para. 8 Code of Civil
Procedure, and Art. 110 of the Civil Code.
‘3 9 See Niboyet, op. cit., VI, vol. 1 s. 1838.
14 0Req. 15 juin 1909, Revue 1911 p. 339.
‘ 4’Art. 59 para. 5: Suits between partners or stockholders, or between them and the
manager or directors, winding up proceedings and matters incidental thereto.
142Article 3 of the law of 13 juillet 1930.
143Law 2 avril 1936 art. 10; the tribunal of the port of destination of the goods is
competent.
144Alimony, art. 59 para. 3 Code of Civil Procedure.
145 Art. 405 in fine, Code of Commerce; The tribunal of the country where the
collision took place or the place where the ship came after the collision is competent.
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JURISDICTION AND MONEY JUDGMENTS
Where according to these rules a French court has exclusive competence, it
follows that the foreign court which rendered the money judgment is not
competent and therefore the French judge will refuse to enforce it.
The second situation to be considered is where, as a matter of law, a French
court is exclusively competent, although this competence may be waived by
the parties. The first case for consideration is where the jurisdiction of the French
courts is affected by the character of the parties.
a) The French courts claim jurisdiction in all cases where the plaintiff is a French
citizen.
This claim arises from article 14 of the Civil Code which reads as follows:
An alien, even not residing in France, may be summoned before the French courts.
for the fulfillment of obligations contracted by him in France with a Frenchman;
he may be called before the French courts for obligations contracted by him in a
foreign country toward French people.
This rule, contrary to the principle actor sequitur forumn rei, originated in Roman
law where competence was based on the for originis for the benefit of the
Roman party.140 The privilege of article 14 belongs exclusively to the French-
man, but it includes those partnerships and corporations which owe allegiance
to France. The mere fact that these corporations or partnerships are incorpor-
ated or organized in France does not make them French, but if they are
controlled by French citizens, they are entitled to the benefit of article 14.147
The article applies to every foreigner unless barred from operation by a treaty
provision.’ 48
In spite of the text of the article which mentions “obligations”, it applies
to any cause of action arising out of any transactions between a Frenchman
and a foreigner. 149 However, it does not apply to actions in ren where the
immovable is located in a foreign country or to actions in partition and in
ejectment because, as a judgment rendered in France would be without effect
abroad, there is no need to burden the French courts with such unproductive
suits.’ 50
The creation by article 14 of this privilege of jurisdiction in favor of French
citizens may be waived either at the time of contracting or subsequently without
140 Savigny, Traiti de droit romain, VIII, s 352; As to ancient law: Emerigon,
C. IV, s VIII: “Le Franais peut faire assigner par devant les tribunaux du royaume
l’tranger contre qui il veut former quelque action …autrement l’6tranger pourrait
a son avantage sucer le sang et la moelle des Francais et puis les payer en monnaie de
faillite.” Bodin, Ripublique (1577),
I, part I, p. 70.
’47See Niboyet, Cours de droit international privi franfais, (2 ed.) p. 236 s 262,
la notion de contr6le. The nationality of stockholders and directors, determines that
of the company.
‘ 48 See Trib. Seine, 20 avril 1932, Revue 1932, p. 680; See treaty with Belgium, 8
juillet 1899.
149Cass. Req. 13 d&. 1938, Revue 1939, p. 299.
150 Cass. Civ. 5 juillet 1933, Revue 1934, p. 166.
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adherence to any particular formality. This waiver is a pure question of fact,
and the court need determine only the intention of the parties.’ 5 ‘ The question
of intention is important and the courts examine it with much care. For ex-
ample, an election of domicile in a foreign country by a Frenchman may
amount to a waiver.1 52 It is implied where the Frenchman submitted to the
jurisdiction of the court of another country by instituting suit therein. On the
other hand, the Frenchman may have wished to obtain a condemnation in the
foreign court, planning to bring a new suit in France to secure another judgment,
thus providing him with double security.’-
It should be noted that the willingness of French courts to admit the
legality of a valid waiver of article 14 arises from the fact that the fundamental
question is one of venue, the court’s authority being determined on a geo-
graphic and not on a political basis. In French domestic law venue is facult-
ative, and therefore it is always possible to waive it before trial. In the case
of article 14, the exclusive competence of French courts is offered to the
Frenchman; if he waived this privilege at any time during the trial in the
foreign country, the French courts would only inquire into the validity of the
waiver.’5 4 The proper court in which to bring the action for the party
invoking article 14 is the one selected by the plaintiff and not as usual the court
of the defendant’s domicile? 55
No exequatur will be granted to a foreign money judgment in favour of a
French plaintiff unless proof of waiver of article 14 is adduced.’5 6
b) The French courts also claim jurisdiction in suits against French citizens.
Article 15 of the French Civil Code provides:
A Frenchman may be called before a French court for obligations contracted by
him, in a foreign country, even toward an alien.157
This article completes article 14. It is intended to protect both a French
defendant and a foreigner who has a French debtor. It may be invoked by a
plaintiff, foreign or French, or by a French defendant.158 Jurisdiction exists
151See Lachau, De l’exicution des jugements atrangers (1889), pp. 50-51; Cass. Req.
13 fivrier 1882 D 1882. 1. 129. Use of the word “pourra”: may.
394.
op. cit., s 754.
‘ 52Cass. Civ. 24 aofit 1869, S. 70. 1. 201.
‘5 3Rouen 19 juillet 1842, S. 1842. 2. 389; Lyon 1 juin 1872. S. 1872. 2. 174; Batiffol,
154No necessity to renounce the privilege of art. 14 in linine litis.
155 Cass. Req. 4 mars 1924, Revue 1924, p. 562.
1’5Trib. Lyon 19 janv. 1923, Revue 1924, p. 392; Lyon 2 juillet 1931, Clunet 1932
p. 673; Cass. Civ. 2 mai 1928, S. 1928. 1. 281, D. 1929. 1. 50; It is to be noted that all
questions connected with the principal action are to be considered as covered by the
waiver of art .14. Ex: subsequent action concerning costs and fees, see Paris, 11 mai
1925, Revue 1927, p. 256; Aix 18 avril 1955, Clunet 1956, 682 restrictive interpretation
of article 14).
‘ 5 7As to ancient law see Guyot, Ripertoire, Souveraineti, Par Garat, (ed. of 1875, p.
1S8 See Niboyet, Cours de droit international privi franfais, (2nd ed.), ss. 685 and 686.
See also Cass Civ. 19 F ,. 1952, R. 1953, 806; Seine 13 d&e. 1955. Clunet 1956, 688.
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JURISDICTION AND MONEY JUDGMENTS
although only one of the defendants is a French citizen. 159 Article 15 also
deals with venue, and a valid waiver may take place.160 This is a question
of fact;’61 and as article 15 is in the interest of both the French defendant
and the foreign plaintiff, the waiver must be bilateral.162 However, the parties
need not waive together or by a written agreement. If only one party has waived,
the other party still has the benefit of the article and will be able to invoke it
later.163 The waiver may take place at any time during the trial before the
foreign court. The mere fact that the plaintiff brought the action in the foreign
country does not amount to a presumption of waiver.’ 64 There must be certainty
as to the will of waiving party.’1 5
This peculiar and unreasonable aspect of French law is of interest only
when the foreigner or the Frenchman has some property in France. If the
debtor does not own anything in France, it is unproductive to secure a judg-
ment based on either article, as such a ground of jurisdiction never will be
recognized abroad, and the French plaintiff will have nothing to show for his
expenditure of time and money.
‘ 50Cass Req. 26 d&e. 1899, 27 Clunet 335; S. 1901. 1. 30.
160See Niboyet, Cours de droit international privi franeais, (2d ed.), s. 688.
‘ 61Cass Civ. 2 mai 1928, S. 1928. 1. 281, D 1929. 1. 50; Cass Civ. 14 mars 1883, S. 83. 1,
259; Cass. Civ. 1 fgvrier 1955, Clunet 1956, 684; Cass. Req. 28 mars 1922, S. 1924. 1. 75.
Cass. 4 Fgvrier 1955, Revue 1955. 327. Possibility of waiver by contract or agree-
ment or express convention. Its validity will be appreciated according to the law of
the place of contracting: Cass. Req. 23 janv. 1923, S. 1924. 1. 73 note Niboyet; also
clauses confining jurisdiction to a particular court have been held valid; Cass. Civ. 29
fgv. 1888, Gazette du Palais. 1888. 1. 470; Cass. Civ. 13 mars 1889, Gazette du Palais, 89.
I. 581; An election of domicile in case of corporations binds the stockholders but
not the bondholders Civ. 24 aofit 1869, S. 70. 201; except if the election of domicile
juin 1932,
clause is in
D.P. 1935. I. 25, S. 1932. I. 286. No waiver is held to have taken place by a mere
agreement that the law of the contract will be the foreign law: Trib. commerce du
Havre 15 avril 1913, Gazette du Palais 1913. 2. 208; but it was held in a case, that a tariff
of railway charges being the law of the parties, it amounted to a waiver, Civ. 13
aofit 1879, S. 188. 1. 225.
the bulletin of subscription to the bonds, Cass. Req. 20
t62Niboyet, Cours de droit international priv
’63 Paris 24 mars 1911, S. 1912. 2. 51.
164,No necessity to waive Art. 15 in lintine litis: Cass. Civ. 2 mai 1928. S. 1928. 1.
281; bringing an action in the foreign country Cass. Civ. 14 f6vrier 1837. D.P. 37. 1.
100; rebuttable presumption: Cass. Req. 27 dcembre 1852, S. 53. 1. 94; Cass. Req. 1
juillet 1896, D.P. 97. 1. 12; Douai 3 avril 1848. D.P. 1848. 2. 187.
frangais, (2d ed.), s 688. 1.
’65 The court must find “une intention formelle” to waive, Cass. Req. 9 dcembre
1878. S. 1879. 1. 401, no presumption of waiver; But once the waiver is formal,
the person cannot invoke art. 15 later. Compare with English and American law: If
the French defendant appeared in the foreign country to protect his property there, he is
not deemed to have waived the privilege of arts. 15 or 14 because he acted under
pressure and necessity, Paris 9 juillet 1884, G.P. 84. 2. 328; The waiver is valid
only if the party acted freely and not under the pressure of circumstances; Cass. Req.
24 f~v. 1846, D.P. 46. 1. 153; Cass. Req. 11 d&e. 1860. S. 61. 1. 331 ; Cass. Civ. 8 oct. 1940,
D.C. 42. 1. 153; S. 1941. 1. 81.
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Article 15 has been interpreted with great rigidity. In every case where
no valid waiver had taken place, and a decision was rendered against its
provisions, the foreign court is considered to have been without jurisdiction.1 00
Jurisdiction of French courts is also based on article 59.1 of the Code of
Civil Procedure which embodies the old axiom actor sequitur forum rei. This
article states that the defendant is to be sued at his domicile. 1 7 This is a
fundamental rule in the civil law and if the defendant was domiciled in
France at the time the action was brought against him in the foreign country,
only a French court could have had jurisdiction and the foreign court lacked
it.168 This rule applies only where according to the French law the com-
petence of the court in the particular action rests upon domicile. Jurisdiction
based on the domicile of the defendant is not imperative, and the parties may
contract or agree to bring the action in another place.1 60 In certain instances,
article 59 or article 420 designates several courts which might be competent.170
If the plaintiff, having the choice between these different courts, selected a
foreign court, his selection is completely valid, and the French courts will re-
cognize the foreign decision except in the cases where articles 14 or 15 may
apply.’ 71
The following test can be used, within the framework of the French domestic
law concerning jurisdiction, when a foreign judgment is sought to be enforced:
1) Did the French court have exclusive jurisdiction? If so, then the foreign court
did not have jurisdiction.
2) Was it a case of exclusive jurisdiction based on either article 14 or article 15?
If so, another question arises: Have these articles been waived by the parties?
If not, then the foreign court did not have jurisdiction.
3) Where either a French or a foreign court could have been competent, the
question is whether the foreign court was one of the possible competent tribunals.
If not, then the foreign court lacked jurisdiction.
66Cass. Civ. 2 mai 1928, S. 1928. 1. 281; Paris 15 dec. 1948, Revue 1949, p. 113.
1
167Art. 59 para. 1: In personal actions the defendant is to be summoned before the
court of his domicile; if he does not have one, before the court of his residence.
‘ 68Seine 11 mai 1928, Revue 1929 p. 287; Cass. Req. 5 mai 1937, Revue 1938, p. 91.
169Paris 24 mai 1939, Gaz. Trib. 11 juillet 1939; as to election of domicile see art.
59 para. 11 of the Code of Civil Procedure; and art. 111 of the Civil Code.
170Art. 50 para. 12: in the case of tort the plaintiff has the choice between the
tribunal of the defendant’s domicile or the tribunal of the place where the tort oc-
curred; see also art. 59 para. 3 in the case of alimony and art. 59 para. 5 in the case
of mixed actions (which are both real and personal) where a choice is left between
the domicile of the defendant or the situs of the property: Article 420 of the Code of
Civil Procedure: In commercial transactions the plaintiff may bring his suit at the
defendant’s domicile or before the court of the district in which the promise was made
or the goods were to be delivered or before the court of the district where the payment
was to be made.
171Montpellier 29 mars 1891, Clunet 1893 p. 404; Paris 1 mars 1917, Clunet 1917 p.
1405; Some decisions have held that art. 420 of the Code of Civil Procedure contains
strict rules of domestic jurisdiction and does not apply to international jurisdiction:
Paris 27 f~vrier 1930, Revue 1930, p. 288.
No. 2]
JURISDICTION AND MONEY JUDGMENTS
4) Where the domicile of the defendant was in France, the question of the validity
of the foreign judgment will depend upon an agreement of the parties to bring
the action before the foreign court.17 2
Where, according to French rules of domestic jurisdiction, no French court
was directly competent, the doctrine and jurisprudence have still applied them
in determining the competence of foreign courts.’78
Bartin, who favored this view, asserted that the problem of foreign judgments
being one of efficacy of rights, the French courts are free to apply the rules they
think convenient in determining the competent foreign court. This is a normal
consequence of his parallel system expressed by “comptence directe” and “com-
petence indirecte”. He says that in a given country one cannot apply other
rules of conflicts than the rules in force therein, because there is no interna-
tional authority to decide which rules must apply where the French rules do not
apply directly.’ 74 French courts, therefore, will assume that the domestic
rules of jurisdiction are applied by foreign courts in determining their juris-
diction. Some decisions have gone so far as to apply articles 14 and 15 to
them.175
Dean Batiffol however, believes that this doctrine is not as inflexible as in
the case where a French court is directly competent, and that French rules
of jurisdiction should operate only to assist the enforcing judge in the de-
termination of the competence of the foreign court. The French judge could
even follow the foreign rules to determine the jurisdiction of the foreign court;
but where a conflict arises between two foreign judgments, both valid accord-
ing to the foreign rules of conflicts, the French judge should decide which
7 2 1n other words where the French tribunal is not directly competent according to
1
its domestic rules, there must be a foreign court competent. Other cases exist where
the French courts will assume jurisdiction: 1) see art. 15 of the loi sur les accidents
(industrial accidents), 2) “connexity”:. if a litigation pending before a
de travail
foreign court is connex to a trial also pending before a French court, the latter one can
take cognizance of the whole: Cass. Req. 15 juin 1909, Revue 1911, p. 339; also in the
case of suretyship art. 59 para. 10 and art. 181 of the Code of Civil Procedure. The
surety may be called before the tribunal which has cognizance of the action against the
principal even if the surety is not domiciled within the jurisdiction of the court: Cass.
Civ. 15 janv. 1878, S. 1878. 1. 308; Seine 14 mai 1923, Clunet 1934, p. 1068; Where there
are several defendants, art. 59 para. 2 of the Code of Civil Procedure, provides that
the tribunal competent towards one of the defendants may take cognizance of the
action concerning all of the defendants even not domiciled within the jurisdiction of the
court, Cass. Req. 26 dec. 1899, S. 1901. 1. 30. In all these instances the rules of domestic
jurisdiction have been applied to foreign courts.
‘7Pillet, op. cit., II, 694 and 698; Lerebours-Pigeonni6re, op. cit., (Se ed.), 304;
Cass 9 mai 1900, S 1901. 1. 186; Paris 27 Fev. 1930, D. 1930.2.11; Seine 18 dec. 1931,
Clunet 1932, p. 680; Paris 29 oct. 1937, Nouvelle revue de droit int. privi, (1937), p.
778; Paris 8 janv. 1932, Clunet 1932, p. 948; Cass. Req. 6 janv. 1941, S. 1941. 1, 24.
174Bartin, Etudes sur les effets internationaux des jugements (1907), p. 1 et seq.;
Principes I s 208; Robin, Annuaire de linstitut de droit international, Vol. 30, p. 182
et seq.
175 Cass. Civ. 9 mai 1900, S 1901, 1, 186; Seine 23 dec. 1924, D.P. 1927. 2. 21.
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foreign judgment is valid by application of the French rules of conflict of
jurisdictions.176
Professor Niboyet also disagrees with Bartin and thinks that where the
French sovereignty is not directly involved (i.e., where no French court is
directly competent), the French judge should not apply the domestic rules of
jurisdiction to decide which foreign tribunal is competent. He states that the
essential element is for a foreign court to have declared itself competent (ac-
cording to its own rules of international jurisdiction)
to hear the case and
enter a decision; there is no need, he feels, to place obstacles in the way of
executing the foreign judgment in France so long as there has been no viola-
tion of French sovereignty.1 7 7 The best solution would seem to formulate true
conflict of jurisdictions rules to be applied by French courts when testing the
jurisdiction of the foreign court.
V: THE PROPER COURT IN ANGLO-AMERICAN AND FRENCH LAW.
Is a judgment valid where it is pronounced by a foreign tribunal which is a
court of competent jurisdiction but not a proper court? The problem con-
sidered here is one of intraterritorial competence. It involves the determina-
tion of which foreign court under its own laws has the power to adjudicate in a
given matter. This is generally referred to as jurisdiction ratione nmateriae and
ratione loci.1 78 Once it has been established that according to the rules of conflicts
of the forum the foreign court had jurisdiction over the parties, should there be
an inquiry into the jurisdiction of the foreign court under its municipal law?
It seems that the answer should definitely be in the negative. Where the foreign
court had international jurisdiction according to the standard set by the enforcing
court all the interests of that forum are safeguarded. Also it is assumed that the
foreign court knew its own jurisdiction and exercised it properly.
Great confusion exists, however, over this doubtful requirement that the
foreign court be a proper court. To clarify this matter it is necessary to inquire
into the meaning of the phrase “jurisdiction over the subject matter” which
is often found in the decisions. In Pemberton v. Hughes79 it was stated that
the significant jurisdiction involves competence over the subject matter and
over the defendant. What is meant by jurisdiction over the subject matter?
Freeman states that if a foreign judgment is to be sustained, it must be render-
ed by a regularly established tribunal exercising the jurisdiction conferred
-70Batiffol, op. cit., 755; Paris 12 mai 1874, Clunet 1875. 188.
l77Niboyet, op. cit., VI vol. 2 p. 108 s 1956, where he cites in support of his view,
art. 134, 1 of the project for remodelling the Civil Code, Revue 1950 p. 124, art. 134 ….
. whether the
A court may grant an exequatur only after, .
foreign court which rendered judgment had jurisdiction under the rules applicable in
its own country . . !’
. having verified: .
.
.
‘ 78Dicey, op. cit., rule 64, comment 1.
179[1899] C.A. 1 Ch. 781.
No. 2]
JURISDICTION AND MONEY JUDGMENTS
upon it by the laws of the creating state 18 0 In Hunt v. Hunt’8′ the New York
Court of Appeal stated that the foreign court’s jurisdiction over the subject
matter will be inquired into, and “jurisdiction over the subject matter” was
defined as the power lawfully conferred to deal with the general subject in-
volved in the action. Thus, it is generally held that in the case of a divorce,
nullity decree, or action in rem the jurisdiction of the foreign court over the
subject matter is essential before the foreign judgment can be enforced,’ 8 2
but this does not seem to mean that in practice there is any closer examination.
This is clearly indicated in Pemberton v. Hughes which is generally cited for
the proposition that an English court will not inquire into the irregularities of
procedure of the foreign court, even though their effect was to render the
decree of dissolution of marriage a nullity under the local law. In this case
Lindley, Master of the Rolls, said:
It sounds paradoxical to say that a decree of a foreign court should be regarded
here as more efficacious or with more respect than it is entitled to in the country
in which it was pronounced. But this paradox disappears when the principles on
which English courts act in regarding or disregarding foreign judgment are borne
in mind. If a judgment is pronounced by a foreign court over persons within its
jurisdiction, and in a matter with which it is competent to deal, English courts
never investigate the propriety of the proceedings in the foreign court, unless they
offend against English views of substantial justice. Where there is no offence to
such substantial justice, English courts will simply examine the finality of the judg-
ment and the jurisdiction of the court in this sense and to this extent, namely, its
competence to entertain the type of case which it did deal with and its com-
petence to require the defendant to appear before it.
The jurisdiction which alone is important in these matters is the competence
of the court in an international sense: i.e., its territorial competence over the subject
matter and over the defendant. Its competence or jurisdiction in any other sense is
not regarded as material b’ the courts of this country.183
These words show that the foreign court must have been competent to entertain
the type of action which it dealt with.
On the other hand, we have a statement of Dicey 8 4 to the effect that the
validity of a foreign judgment is not necessarily affected by the fact that the
court which pronounces the judgment is not a proper court. This author
supports his views on Vanquelin v. Bouard.185 In this case, it was pleaded to
a declaration on a judgment proceeding from a French commercial court for
18OFreeman, op. cit., (5th ed. 1925), s. 1500.
181Hunt v. Hunt, 28 Am. Rep. 129 (1878), 72 N.Y. 27, error dismissed 24 L Ed.
1109 (1879); Bissel v. Briggs, 9 Mass. 462 (1813); Farrel v. Farrel, 127 N.Y.S. 764,
142 App. Div. 605 reversed 98 N.E. 857, 205 N.Y. 450. The Supreme Court has in-
dicated in Pennoyer v. Neff, 95 U.S. 717 (1878) that a judgment of a court of a state
which is not competent by its law to exercise jurisdiction, violates due process of law
and is invalid in the state of rendition; see Restatement, s. 429.
182Divorce: Pemberton v. Hughes, [1899] 1 Ch. 781; Bater v. Bater, [1906] P 209;
nullity decree: Papadopoulos v. Papadopoulos, [1930] P 55; in rem: Castrique v. imrie,
(1870), L.R. 4 R.L. 414.
183Pemberton v. Hughes, [1899] 1 Ch. 781.
‘8 4Dicey, op. cit., p. 389; Westlake, op. cit., p. 398.
185Vanquelin v. Bouard (1863), 15 C.B. (N.S.) 341.
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the amount of certain bills, that this court was not a proper court according
to the French rules of procedure, because the defendant was not a trader when
he accepted the bills, and because the bills falsely purported to be drawn at a
place where in fact they were not drawn and where the defendant did not
have his domicile. The plea was held bad on demurrer. Chief Justice Earl said,
Iam of the opinion that the judgment of the foreign court is valid if the court has
jurisdiction over the subject matter of the action and it seems to me upon his plea
that the court of the tribunal of commerce had jurisdiction over the person and
over the subject matter of the suit in which the judgment was obtained .. .and
that if it were a matter of defense that the defendant was not a trader and not
resident within the jurisdiction of the court, it was a matter which ought to have
been set up by way of defence, in that court and cannot avail the defendant in an
action upon the judgment here.
Thus, although the court reaffirms the principle that the foreign court must
have jurisdiction over the matter (ratione materiae), it does not mean that
the foreign court must be competent ratione loci.
The confusion arises from the fact that the authors have not distinguished
between the competence of the foreign court over the subject matter and the
characterization of the subject matter. Let us take the case of a decision in-
volving a commercial transaction which was brought before a French court.
Under the present rules an English court will determine whether the com-
mercial court of Paris has competence ratione nateriae over commercial trans-
actions, but it will not inquire into the nature of the particular transaction.
Thus, if the French court took cognizance of the case by qualifying it a com-
mercial transaction, the English court will not inquire into the correctness of
this qualification. It will only determine whether the commercial court of
Paris had jurisdiction over the subject matter, e.g., commercial transactions.
If the defendant wanted to raise the question of the nature of the transaction
involved it should have done so directly before the French commercial court
of Paris or on appeal. This seems to be the correct interpretation of Vanquelin
v. Bouard, where the allegation that the tribunal of commerce had no proper
jurisdiction over commercial transaction was rightly dismissed. The nature
of the transaction was a matter to be determined by the French court only.
This was pointed out by the court when it said “that if it were a matter of
defence that the defendant was not a trader and-not resident within the juris-
diction of the court, it was a matter which ought to have been set up by way
of defence in that court”.
In practice, as the editors of Dicey point out, “the confusion of authority on
the point is of less importance than would at first appear because it will norm-
ally be assumed that a court is a proper court.” 188 It can be concluded that in
the case of foreign judgments in personam the validity of the judgment de-
pends upon possession by the court pronouncing it not only of international but
also of local competence ratione materiae. Therefore, the court may examine
‘8 6Dicey, op. cit., p. 389; Cheshire, op. cit., p. 806.
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JURISDICTION AND MONEY JUDGMENTS
the statutory background of the foreign court in order to determine whether it
has been given jurisdiction over the general subject matter of the action, but
not further. This amounts only to a control over the foreign court by an in-
quiry whether it exceeded the jurisdiction conferred upon it by municipal law.
It is then possible to draw a distinction between judgments which are irregular
in the foreign country but capable of creating rights until set aside, and judg-
ments which are null because their rendition is beyond the power of the foreign
court. Pemberton v. Hughes and Vanquelin v. Bouard seem to belong to the
first category, although in the former case the court assumed the Florida
judgment to be void.
So long as the foreign judgment is rendered by a court having jurisdiction
over the subject matter it should be recognized by the Anglo-American courts,
even if the venue is not correct, because Anglo-American courts are not courts
of appeal of foreign decisions. If the foreign judgment had been declared void
where it was rendered it should not be recognized. A court cannot recognize
that which does not exist at law. This line of reasoning involves the basic dis-
tinction between incorrect use of an existing power and the usurpation of a non-
existing power.1 17
In the United States the situation is complicated by constitutional provisions
which may prevent the recognition of a foreign judgment where the lack of
intraterritorial jurisdiction, according to the foreign law, rendered the original
decision invalid. Collateral attack against judgments because of alleged lack of
intraterritorial jurisdiction has been allowed on a large scale where service of
process upon the defendant was defective.188 This view is gradually being
abandoned and today, aside from cases of original invalidity of foreign judg-
ments, international jurisdiction and intraterritorial competence under foreign
law are deemed irrelevant. 189 Thus the practice is quite similar to that pre-
vailing in England; and the rule seems to be that where a foreign court pos-
sesses jurisdiction over the parties and the subject matter, in other words, has
an existing power of jurisdiction, the enforcing court will not inquire into the
correctness of the use of that power, unless the proceedings are contrary to
English or American views of substantial justice.190 Is this a sound view?
It is submitted that it is sufficient if the foreign court has international
jurisdiction according to the standard set by the enforcing court. Jurisdiction
over the subject matter or venue are matters to be raised on appeal in the
8 7 0n the general subject of the discussion see: Lush, Effect of Want of Jurisdiction,
(1936-37), 10 Australian Law J. 10; Westlake, op. cit., pp. 398 and 319; Cheschire,
op. cit., p. 806.
1
188See note 4. Pennoyer v. Neff, 95 U.S. 717 (1878).
189Caruso v. Caruso, 106 N.J. Eq. 130, 148 A. 882 (1930),
lack of competence
ratione loci.
19OPemberton v. Hughes, [1899] 1 Ch. 781; Vanquelin v. Bouard (1863), 15 C.B.
(N.S.) 341; Hunt v. Hunt, 28 Am. Rep. 129 (1878), 24 L. Ed. 1109 (1879); also see
Ellis v. McHenry, (1871) L.R. 6 C.P. 228.
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foreign state. An inquiry into this question would amount to reopening the
merits of the case. By what law are the Anglo-American courts to determine
the intraterritorial competence of the foreign court? A resort to local law would
be unrealistic, while a resort to the foreign law would necessitate the presence
of experts to prove the foreign rules of procedure which might in certain cases
be extremely intricate. Dean Read does not seem to share this view. In 1956,
at the Conference of Commissioners on uniformity of legislation in Canada he
stated that a foreign money judgment rendered in a court which had no juris-
diction in the local sense, that is no competence to adjudicate on the cause of
action or concerning the person of the defendant, should be treated as a nullity
although it has international jurisdiction. The foreign court must have juris-
diction under its own law and under the conflict rules of the enforcing court.
He suggested that section 3 of the Reciprocal Enforcement of Judgments Act
be rephrased as follows:
(3) No order for registration shall be made if it is shown by the judgment debtor
to the court to which application for registration is made that,
(a) the original court acted either
(i) without jurisdiction under the conflict of laws rules of the court to
which application is made, or
(ii) without authority under the law of the original court to adjudicate
concerning the cause of action or subject matter that resulted in the
alleged judgment or concerning the person of the alleged judgment
debtor.
This is the solution adopted in France, although it is often held that a com-
petent foreign court, not a proper one under the standards of its domestic
jurisprudence, may have its judgments recognized in France, if the parties did
not attack the validity of the judgment through an appeal.’ 0 ‘ The French court
will determine whether, according to the foreign law, there is a valid and
enforceable decision in the foreign country.’192 This is quite different from the
English view in Pemberton v. Hughes, where the court assuming the divorce
to be void under Florida law, held that it should be treated as valid under
law since the tests applied to foreign judgments under that law
English
were satisfied in this case. When a problem of characterization appears in the
determination of the proper court, the French judge will apply the foreign rule
of solution -,f conflicts.’ 93
191 Cass. Req. 27 avril 1870, S. 1871.1.91; Cass. Req. 20 nov. 1894, S. 1894.1.445;
Chambery 13 aofit 1900, S. 1903. 2. 305; Cass. Civ. 4 avril 1906, S. 1907. 1. 341; Seine
26 f6v. 1919, Revue 1921 p. 68; Seine 11 mai 1928, Revue 1929 p. 267; Cass. Civ. 1931
19 janv. Revue 1931 p. 517; Cass. Civ. 20 D6ec. 1937, S. 1938, 1, 126; Trib. Besan~on
23 juillet 1937, Revue 1939 p. 149; Cass. Req. 27 avril 1810, S. 71. 1. 91; Cass. Civ. 20
dec. 1937, S. 1937. 1. 126; compitence ratione materiae: Cass. Civ. 4 avril 1906. Clunet 1906
791; ratione loci: Besangon, 20 nov. 1889, G.P. 89, 2, 665; Cass. Req. 16 mars 1932, S.
33. 1.33.
192Cass. Req. 16 mars 1932, S. 1933. 1. 33.
‘ 93 See Niboyet, op. cit., III, s. 967.
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JURISDICTION AND MONEY JUDGMENTS
191
The determination by the French courts of the proper foreign court has
been challenged by some French writers. 194 Res judicata is advanced by these
authors as the basis for refusing the right to make such an inquiry, thus
approving the Anglo-American doctrine that the enforcing court is not a court
of appeal of the foreign country. This view has been rejected by Perroud 95
who observes that it would disregard the French doctrine which does not con-
sider the foreign judgment as res judicata until it has been made executory by
the courts. It is submitted, however, that if it is an admitted principle that
the judge has a duty to inquire into the competence of the foreign court, in
order to protect French sovereignty, he should leave to the defendant in the
foreign country the question of challenging the proper court by way of appeal.
If the foreign judgment were final and rendered by a court of competent juris-
diction, according to French rules it should be recognized and enforced. The
requirement of finality will insure that the parties had ample opportunity to
challenge the intraterritorial competence of the foreign court.
CONCLUSIONS
a) Comparison of the Legal Systems.
It is now possible to define jurisdiction as the power of the state to create
interests which under the principles of Anglo-American or French law will
be recognized as valid in other states.196 In spite of this agreement on the
essential nature of jurisdiction, there is a profound variance between the Anglo-
American and French systems, which is expressed in the particular theories
concerning the jurisdiction of their respective courts.
In the Anglo-American system, the doctrine relating to the jurisdiction of
foreign courts limit the exercise of their power to those persons physically
present within their dominion. The ability of the foreign law to create rights
through judicial process is generally considered to coincide in extent with the
territorial application of such law. The doctrine that the law is territorial is
fundamental in the Anglo-American system, and from this principle the concept
has evolved that if a foreign judgment has been granted in a foreign country
according to the lex fori, it will be recognized in England or in the United
States. This differs from the French approach in the sense that the foreign
judgment is not reified to the extent that its recognition amounts to giving
effect to it proprio vigore, as it is when an exequatur is granted. It only
amounts to assisting the successful party in the foreign country, by allowing
him to use the judicial machinery of the forum to reviendicate a foreign judg-
ment which under the territoriality doctrine was designed to have effect only
194Bartin, Principes, I, s. 209; Pillet, op. cit., II pp. 649 and 656.
‘ 9 5Perroud, Rep. de droit int., D cisions judiciaires RIrang~res, s. 111; agree Batiffol,
op. cit., (1954), s. 756.
’96jurisdiction in the international sense can also be defined as the extent to which
foreign countries may create rights through their courts and have those rights re-
cognized abroad.
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where it was rendered. The recognition of foreign judgments is necessary from
an economic point of view, but too wide a recognition would be dangerous
and leave the door open to decisions emanating from unreliable foreign tribunals;
therefore, the territoriality doctrine acts as a limiting force, by prescribing the
conditions upon which a foreign jugment will be recognized as an operative
fact.
Conditions of recognition are embodied in the rules of law which de-
termine when foreign courts have jurisdiction, The essence of the capacity
to exercise jurisdiction lies in the relationship between the territory of the
foreign country and the defendant. In other words, jurisdiction depends on the
existence, at the time when the foreign action was commenced, of a bond be-
tween the person of the defendant and the foreign court sufficient to justify
the creation of a right which will be recognized by the law of the forum. This
is the basic Anglo-American doctrine which recognize that a court of a foreign
country has jurisdiction to adjudicate the rights of a defendant who was pre-
sent in the foreign country at the time the action was commenced and
therefore could be served with a writ of summons. It has its foundation in the
physical-power common law theory of jurisdiction, 917 which has been, as in
the case of the French law of jurisdiction, projected into the international
field. The early cases concerning international jurisdiction have been decided
on the basis of the common law rules of procedure. 98
jurisdiction is also based upon a wider conception than mere physical power,
since submission of the defendant to a court which otherwise is not competent
is recognized by Anglo-American and French courts. Voluntary appearance
does not necessarily involve any physical power or relationship between the
defendant and the foreign forum. 99 Moreover, it is possible to submit to the
jurisdiction, without being present, by consent, express or implied, as in con-
tractual submission. But, if, in all these cases, the relation is not purely physical,
it must nevertheless be durable 200 and direct.201 Furthermore it is difficult to
maintain that domicile and nationality are purely physical relations. 202
‘ 97Holmes: “The Foundation of Jurisdiction is Physical power.” McDonald v. Mabee,
243 U.S. 90 (1916); Hess v. Pawloski, 274 U.S. 352 (1927); Procedural due process
and jurisdiction: See opinion of Stone, C.J. as to what constitutes physical power:
International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed.
95 (1945); see also Tallack v. Tallack, [1927] P. 211.
198As to the physical power theory, see Dodd, Jurisdiction in Personal Actions,
(1929), 23 III. L. Rev. p. 427.
19 9Doherty v. Goodman, 294 U.S. 623 (1935).
20ODodd, Jurisdiction in personal actions (1929), 23 Ill. L. Rev. 427-441; Carrying
on business must be for a reasonable period of time.
’20’Ownership of property within the territory of the foreign state is insufficient for
jurisdiction in personam over the owner; and a foreign corporation must be directly
carrying on business in the foreign country to found jurisdiction in personam over it:
see The Holstein (1936), 155 L.T. 466; see also Pennoyer v. Neff, 95 U.S. 714 (1878).
202Grubel v. Nassauer, 210 N.Y. 149, 103, N.E. 1113; Dicey, op. cit., p. 362.
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JURISDICTION AND MONEY JUDGMENTS
On the basis of these considerations, it has been asserted that there has been
some shifting of the basis of jurisdiction recognized in the Anglo-American
system. Evolving from the physical power theory based on the common law,
decisions have been rendered recognizing jurisdiction, which by virtue of a
statute was assumed over persons who were abroad and thus not within the
power of the court, as in the case of extraterritorial service of process over
residents. 2
03 This culminated in Travers v. HolleyP0 4 where the English courts
conceded
to the foreign courts the same rights of jurisdiction which they
claimed for themselves by virtue of local statutes. As a result, it is not always
necessary to enter the foreign country to consent effectively to the jurisdiction
of its courts, and complete absence of physical power over a national or
domiciled person, of or in, the foreign country does not destroy the jurisdiction
of the foreign court; a contrario, it is to be noted that mere physical power
does not, in itself, confer jurisdiction in the case of temporary presence or
occasional business by a foreign corporation.
It was stated by Dean Read that if the primary basis of jurisdiction is phys-
ical power there are also secondary considerations of reason, expediency, and
fairness involved in it. This author believes that there has been a transition
from the physical force theory of jurisdiction to the theory of reason, as ex-
pressed by his observation that “recognition by the common law that a valid
foreign judgment conclusively establishes that a right has been created by the
judicial process made that change logically inevitable, because the judicial
process, of creating rights as distinguished from the executive function of en-
forcing them involves not an exercise of physical power at all, but of the
intellectual process of making a decision.” 20 ,5
French rules of jurisdiction laid down for domestic causes of action, and
extended by the courts to foreign causes of action, emphasize the domicile of
the defendant or of the plaintiff as a proper forum, without considering any
aspect of the physical power theory, except as a matter of convenience in order
to avoid costs of litigation. However, this aspect of the French rules of juris-
diction is secondary because French legal theorists have elaborated a group of
exceptional rules within a frame of reference which conceives jurisdiction as
an exclusive national system. Thus, in most instances, the jurisdiction of French
courts is vitally affected by the nationality of the parties to the suit, and the
legal as well as political relations are the dominant factors to the detriment of
either the physical relation or the reasonableness or effectiveness doctrines.
The French approach to the problem of jurisdiction should certainly not be com-
mended. As has been demonstrated earlier, it is the logical consequence of the
application of the principle of sovereignty which in the French system is not
equivalent to territoriality. Sovereignty does not stop at the boundary.
203Ross, The Shifting Basis of Jurisdiction, (1933), 17 Minn. L. Rev. 146.
204[1953] P. 246.
205Read, op. cit., Ch. VII.
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Another fundamental difference between the rules prevailing in France and
in Anglo-American countries arises from the fact that under Anglo-American
law, personal service-within the state will confer jurisdiction, although the
defendant is not domiciled within the state and the cause of action did not
arise there and has no connection therewith; whereas under French law mere
personal service of process within the state does not confer jurisdiction. 20 6
To a certain extent these differences are immaterial because the function of
the courts in each country is to protect and to give effect to rights which by
operation of law have become settled. If, therefore, each country through its
own system of procedure strives to put into practice such principles and
achieves the same results, the methods by which they are reached are less im-
portant than the results achieved.
On the other hand, a lawyer wants to have a full knowledge of the precise
methods to be used to give effect to foreign judgments, because each case
depends, to a great extent, upon the ability to employ the legal system of a
particular state to achieve justice within the existing patterns of procedure.
No legal right exists by nature. In the field of private international law, espec-
ially with regard to the jurisdiction of foreign courts, the forum should apply its
own conflict rules, or as in France, whatever law is considered proper to give
effect to what it believes socially and economically desirable, without regard
to the attitude of the foreign courts. In other words, jurisdiction should be
tested exclusively according to the principles in force in the forum. Both the
Anglo-American and the civil law systems agree on this point. It is in the
application of this rule that they differ.
b) Possible solutions
(i) At the international level
Attempts to elaborate an internationally satisfactory system of jurisdiction
have never met with success. The continental internationalist school of the
19th century thought that internatibnal law could compulsorily regulate judicial
jurisdiction among the states”T This theory never had any following in
common law countries and has been gradually abandoned. Of course inter-
national law imposes upon municipal jurisdiction well-known limitations in
respect to foreign states; but beyond this it would be difficult to find in inter-
national law further limitations upon jurisdictional sovereignty. Perhaps the
recognition of a foreign judgment would be granted more readily where the
assumption of judicial power by the foreign tribunal is in accord with inter-
2OJurisdiction of the French courts even in personal action is never based upon
personal service on the defendant; but for the validity of a judgment it is necessary
that the defendant should have been properly cited. De Lapradelle et Niboyet, Ripertoire
de Droit International, (1929), vol. 5, Dicisions judiciaires gtrangtres, pp. 404 et seq.
207(1889), 2 von Bar, Theorie und Praxis des Int. Privatrechts, s. 416.
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JURISDICTION AND MONEY JUDGMENTS
national equity. This, however, is a matter of sentiment rather than law and
cannot be seriously considered.
Private unification or bilateral treaties may be a good device to bring about
a better system of international jurisdiction. Many attempts have been made in
that direction, the most noteworthy being the Bustamente Code.2 08 This code,
which was adopted by numerous South American civil law countries, provides
in article 423 that every civil or commercial judgment rendered in one of the
contracting states shall have force and may be executed in the others if, among
other conditions, the judge or the court which rendered it had competence to
take recognizance of the matter and to pass judgment upon it in accordance
with the following rules:
318-The judge competent in the first place to take cognizance of suits arising
from the exercise of civil and commercial actions of all kinds shall be the one to
whom the litigants expressly or impliedly submit themselves, provided that one of
them at least is a national of the contracting state to which the judge belongs or
has his domicile therein….
319-The submission can be made only to a judge having ordinary jurisdiction
to take cognizance of a similar class of cases in the same degree.
320.-In no case shall the parties be able to submit themselves expressly or im-
pliedly for relief to any judge or court other than that to whom is subordinated
according to local laws the one who took cognizance of the suit in the first
instance.
321-By express submission shall be understood the submission made by the
interested parties in clearly and conclusively renouncing their own courts and un-
mistakeably designating the judge to whom they submit themselves.
322-Implied submission shall be understood to have been made by the plaintiff
from the fact of applying to the judge in filing the complaint and by the defendant
from the fact of his having, after entering his appearance in the suit, filed any
plea, unless it is for the purpose of denying jurisdiction. No submission can be
implied when the suit is proceeded with as in default.
These articles are substantially in agreement with Anglo-American practice,
and their adoption by civil-law countries shows that the principle of submission is
as strong in that system as in the common-law system.. On the other hand,
resort to physical presence, domicile or allegiance is only treated in the Code
as a subsidiary rule. Articles 323, 330, 331 and 332 provide that:
323-Outside the cases of express or implied submission without prejudice to
local laws to the contrary the judge competent for hearing personal causes shall
be the one of the place where the obligation is to be performed and in the absence
thereof the one of the domicile or nationality of the defendants and subsidiarily
that of their residence.
330-In respect to acts of voluntary jurisdiction, saving also the case of sub-
mission without prejudice to local laws to the contrary, the competent judge shall
be the one of the place where the person instituting it has or has had his domicile
or, if none, his residence.
331-Respecting acts of voluntary jurisdiction in commercial matters, apart from
the case of submission without prejudice to local laws to the contrary, the com-
petent judge shall be the one of the place where the obligation should be performed
or in the absence thereof the one of the place where the event giving rise to them
occurred.
332-Within each contracting state the preferable competence of several judges
shall be in conformity with their national law.
208(1928), 86 League of Nations Treaty Series p. 111.
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It seems that the provisions of this Code blend harmoniously the juris-
dictional principles of the common law and civil law. However, they are not
sufficiently clear or progressive to attract world-wide acceptance.
Recently the United Nations produced a draft convention on the recovery
abroad of claims for maintenance 20 9 In article 3 of this draft it is provided that
the courts competent to issue maintenance orders for the purpose of this con-
vention shall be:
a-The courts of the country in which the obligor was resident when the proceed-
ings were instituted,
b-The court to the jurisdiction of which the obligor submitted, either by agreement
or by voluntarily appearing in the proceedings, except where such appearance
was solely for the purpose of contesting the jurisdiction of the court.
This draft is in conformity with Anglo-American practice and represents
what would term the minimum requirements of jurisdiction. It must be noted
that there is no reference to the principles of allegiance or domicile.
If we turn our attention towards bilateral treaties which are at the present
time in force between civil-law and common-law countries, we find the very
successful English Foreign Judgment (Reciprocal Enforcement) Act, 1933,210
which has been applied to France and Belgium. Section 4 of this Act provides
that on an application made by any party against whom a registered judgment
may be enforced, the registration of the judgment shall be set aside if the
registering court is satisfied that the courts of the country of the original court
had not jurisdiction in the circumstances of the case. This is the reaffirmance
of the basic principle that jurisdiction is to be determined by the law of the
forum.
Section 4 (2) states that, for the purpose of the Act, the courts of the
country of the original court shall be deemed to have had jurisdiction in the
case of a judgment given in an action in personam:
(i)
(iv)
(v)
(ii)
(iii)
if the judgment debtor being a defendant in the original court submitted to
the jurisdiction of that court by voluntarily appearing in the proceedings otherwise
than for the purpose of protecting, or obtaining the release of property seized or of
contesting the jurisdiction of that court; or
if the judgment debtor was plaintiff in, or counterclaimed in the proceed-
ings in the original court; or
if the judgment debtor, being a defendant in the original court had before
the commencement of the proceedings agreed in respect of the subject matter of the
proceedings, to submit to the jurisdiction of that court or of the country of that
court; or
if the judgment debtor, being a defendant in the original court was at the
time when the proceedings were instituted resident in, or being a body corporate
had its principal place of business in the country of that court; or
if the judgment debtor, being a defendant in the original court, had an
office or place of business in the country of that court and the proceedings in that
court where in respect of a transaction effected through or at that office or place;
It is significant that for the purpose of this Act a foreign court is deemed to
have had jurisdiction if the defendant was resident in the country of that
209E/AC 39/1 (1952).
21023 & 24 Geo. V c. 13.
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JURISDICTION AND MONEY JUDGMENTS
197
court at the time when the action began, while domicile or allegiance is not
mentioned at all. On the other hahd, mere presence of the defendant in the
foreign country when the obligation, in respect of which the action is brought,
was incurred in that country, is not sufficient to give jurisdiction to the courts
of that country. Submission is the second great principle adhered to by the
Act: Submission of the plaintiff if he selected the foreign court, or submission
of the defendant if he voluntarily appeared otherwise than for the purpose of
contesting jurisdiction or to save property threatened by seizure or already
seized. The Act also recognizes the validity of a contract to submit to the
jurisdiction of the foreign court. So far this Act contains the most reasonable
approach to the problem of jurisdiction.
(ii)-Unification in federal states.
In the United States there have been some attempts to unify the various
practices for enforcing foreign judgments in the different states of the Union.
We find the Uniform Support of Dependants Act and also the most important
Uniform Enforcement of Foreign Judgments Act.3l – In the latter Act no
attempt is made to lay down the rules for the determination of the com-
petence of the foreign court. It is merely stated in article 8 that any defence
which under the law of the enforcing state may be asserted by the defendant
in an action on the foreign judgment may be presented by appropriate plead-
ings. The common-law rules thus remain in full force and may vary from
state to state.
In Canada the Reciprocal Enforcement of Judgments Act is a duplicate of
the English Foreign Judgments (Reciprocal Enforcement) Act 1933, while
the Uniform Foreign Judgments Act contains only a codification of the rules
found in Emanuel v. Symon by listing the cases in which a foreign court has
jurisdiction.
(iii)-Projects in France
In France there has also been an attempt to codify the rules of jurisdiction
recognized by French courts.212 Article 136 of the draft of the Commission
for the Reform of the Civil Code provides that a court may enforce a foreign
judgment only after, either on its own motion or upon the request of the
defendant, it has verified that:
Jurisdiction over the litigation did not belong to a French court.
211(1948), Handbook of the National Conference of Comm. on Uniform State Law,
78.
212[1949-50] Travaux de la Commission de Riforme du Code Civil (1951), 801; La
Codification du Droit International Privi (1956), p. 19 et seq. and p. 224 et seq.;
(1952), 1 Am. J. of
Nadelman & von Mehren, Codification of French Conflicts Law
Comp. Law 404 at 426.
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[Vol. 4
This paragraph seems to be improperly drafted as it would prevent the enforce-
ment of a judgment where the international competence of the French courts
exists on a non-exclusive basis. For instance, where there are two defendants
to the original action, one domiciled in France and one abroad, the courts of
the domicile of each party are competent to decide the controversy. However,
according to article 136 a judgment rendered by the court of the foreign
domicile of one of the defendants could not be recognized in France since a
French court was also competent by virtue of the French domicile of the other
defendant. This is reinforced by the last paragraph of article 136.1, which
provides that:
The jurisdiction of a foreign court over a person secondarily obligated based solely
on jurisdiction over the principal debtor, as well as jurisdiction of a foreign court
over a defendant based solely on jurisdiction over one of the other defendants, and
jurisdiction of a foreign court based solely upon the connection of the proceeding
with other litigation, does not deprive the French court of jurisdiction over those
parties as to which they would otherwise have jurisdiction.
In other words, there is an exclusive competence for some parties and not for
others, a situation which calls for redrafting, as it does not represent the
present status of French law.
Article 136 also provides that where no French court was competent the
foreign courts which rendered the judgment “must have jurisdiction under
the rules applicable in its own country”. This rule, introduced by Niboyet and
approved by Batiffol, is contrary to the present jurisprudence which tests the
international competence of the foreign court according to French rules of
conflicts. It is supposed to facilitate the enforcement of foreign judgments in
France without endangering French sovereignty, since no domestic court is
exclusively competent. I find this innovation unrealistic as, a priori, the foreign
court must have had jurisdiction according to its own law. An inquiry into
that jurisdiction appears to me superfluous especially if French courts in-
terpret the foreign law according to their own views. The enforcing court must
not act as a court of appeal for the foreign decision. As I have stated before,
the best solution is to apply the conflict rules of the enforcing court to the
determination of the international competence of the foreign court. This re-
quires the formulation of true conflict of jurisdictions rules and not a mere
extension of the French domestic rules.
An inquiry as to whether the foreign court is a proper one (internal or
special competence) should also be rejected.
The solution proposed by the draft presents some difficulties where a French
court is requested to enforce two conflicting foreign money judgments render-
ed by courts competent under their own law. What criterium will the French
court adopt in selecting one of the judgments? To solve this problem it would
seem necessary to include a subsidiary rule in article 136 providing for the
application of French rules of conflict of jurisdictions in the case of conflicting
judgments. Article 136, paragraph two, would then read as follows:
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JURISDICTION AND MONEY JUDGMENTS
The court must verify: Whether the foreign court which rendered judgment had
jurisdiction under the rules applicable in its own country except in the case where
two conflicting judgments are sought to be enforced.
Actually I would prefer to see article 136 drafted in the following manner:
The court must verify: Whether the foreign court which rendered the judgment had
international jurisdiction under French rules of private international law.
Chapter V of the draft (articles 114-132) enumerates the cases in which
French courts are directly competent on an exclusive or non-exclusive basis.
Section I deals with jurisdiction on the subject matter of the litigation.
Articles 114 to 116 which restate the present law enumerate the cases in which
French courts have jurisdiction on a non-exclusive basis. The text of article
114 is not clear when it states that:
French courts have jurisdiction: In proceedings involving rights in personam, if the
domicile or, in the absence of dotiicile in France, the residence of the defendant is
in France, or if the plaintiff proves either that no foreign court has jurisdiction or
that none is accessible.
Jurisdiction is given to French courts where a defendant is resident in
France. Does this mean that jurisdiction can exist only in the absence of
domicile in France or abroad? It seems that the drafters intended to adopt the
latter solution which is that followed by the courts. Therefore it would be
better to eliminate the words “in the absence of a domicile in France”.
Atticle 115 also needs to be clarified when it states that:
Unless there has been an election of domicile in favor of another French or foreign
court, the following proceedings may be brought by the plaintiff before the French
courts.
This provision deals with the waiver of permissive competence of French
courts when there has been an election of domicile. Strictly speaking there
cannot be an election of domicile in favor of another court, especially a French
one since this article refers to international jurisdiction only. The article should
read as follows:
Unless there has been an election of domicile in a foreign country ….
Where French courts have jurisdiction pursuant to the provisions of article
115, venue is determined by the rules of domestic law. Domicile is also de-
termined by French law.
Article 117 deals with the exclusive jurisdiction of French courts. To a
certain extent the draft goes too far. Exclusive jurisdiction is justified in the
case of rights in rem and fonds de commerce located in France, but it is
abusive in the case of moveable property. Jurisdiction in the case of moveables
located in France should be permissive only, by virtue of the rule mobilia sequitur
personam. This is the present French jurisprudence. In the case of corporations,
it is possible to argue that French courts should have exclusive jurisdiction if
the transaction which is the subject of the litigation was concluded in France.
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As for insurance it is reasonable to grant French courts exclusive jurisdic-
tion if the damaged immoveable which is insured is located in France. On
the other hand, the jurisdiction of French courts should be permissive in
the case of personal injuries, if the injury occurred in France. Why force two
American tourists to sue in France for damages occurring out of an accident
which has taken place there; or if a Frenchman has been hurt, why should the
French courts refuse to recognize a judgment rendered in the United States
against an American insurance company?
The last paragraph of article 117 provides that French courts have ex-
clusive jurisdiction whenever a French police law or a French rule of public
policy is to be applied. The drafters should specify whether this means any
action based on a French law of police or an action based on French law, where
the proper foreign law has been set aside by the application of French notions
of public policy. Article 118 deals with venue in the case where a French court
has exclusive jurisdiction.
It must be noted here that the distinction between the exclusive and non-
exclusive jurisdiction of French courts is only of interest in the case of re-
cognition and enforcement of foreign judgments; yet article 136 is silent on
this point, a defect which should be remedied.
Sections II and III of the draft show the impact of political considerations
on conflict problems. Section II (Articles 121-126) develops the rules already
stated in articles 14 and 15 of the Civil Code which give a French citizen the
privilege of pleading before a French court either as a plaintiff or as a defendant.
These rules, which are also extended to corporations controlled by French
citizens, seems to be completely useless since in all cases they can be set aside
by the parties.
Article 126 states that the fact that all parties are of foreign nationality is
not alone sufficient for a refusal by the French courts to take jurisdiction.
This provision is out of place here as it is implied in article 34 which provides
that:
An alien has in France the same rights as French nationals with the exception of
political rights and rights which are expressly withheld by law.
The whole impression given by the draft is that it is a consolidation of the
already existing law as expounded by the courts. One finds here a common-
law process which has ultimately resulted in codification. The only innovation,
and one must admit that it is of importance, is that the “competence g~n6rale
indirecte” must be tested by the law of the foreign court rather than by that
of the forum.
c) -Proposals
There is no doubt that the establishment of a general principle for determin-
ing the cases in which the court of the forum must regard the foreign court
as having jurisdiction over the person of the defendant is the most important
JURISDICTION AND MONEY JUDGMENTS
No. 21
and the most difficult element in the whole problem of foreign judgments.
There is no international rule of jurisdiction. Each system has developed its
owni rules for the jurisdiction of its courts and does not want to modify them,
as they are deemed to be best adapted to the needs of the nation, The result is
that the courts of one system frequently claim jurisdiction over persons whom
the courts of a second system consider to be within their jurisdiction. For
instance, the courts of country A claim jurisdiction over a person who is
primarily within the jurisdiction of country B on the ground of nationality or
domicile which the courts of country B do not consider sufficient to create
jurisdiction. In such cases it is equally difficult for the courts of the first
system to abandon the jurisdiction based on nationality as for the courts of
the second system to agree to enforce judgments based on such jurisdiction.
At the present time, in view of the great diversity of legal systems, it does
not seem possible to establish universal rules of jurisdiction. However, pro-
gress is not impossible, and the Foreign Judgments (Reciprocal Enforcement)
Act 1933, stands as a proof of the great results which can be achieved through
the use of bilateral treaties. In such treaties it is possible to define the minimum
of grounds on which a court’s jurisdiction must be based in order to give its
judgments claim to recognition abroad. The introduction of a provision for
reciprocal recognition of jurisdiction would also greatly facilitate the recogni-
tion of foreign judgments. To alter the jurisdictional principles in force in one
country may produce great disturbance, as it is difficult to separate one legal
institution from another or one rule of procedure from another, without en-
dangering the whole structure. Changes in this field may cause internal cona-
flicts which may outweigh in importance the comparatively small advantages
which most countries would secure from obtaining execution of the judgments
of their courts in foreign countries. Thus a positive enumeration of the cir-
cumstances in which a foreign court is deemed competent according to the
law of the forum appears to be the best solution. It still preserves the French
distinction between “coml6tence directe” and “indirecte”, since all the French
courts need to determine are the cases in which a foreign court is competent,
impliedly reserving for themselves competence in other cases.
The only obstacle to unification in this field between the French and the
Anglo-American systems is the preeminence given to nationality in the civil
law. However, if nationality is treated on an equal basis with domicile, res-
idence etc., possibilities of agreement are numerous. The fact that allegiance,
as a gronnd of jurisdiction, can be waived is another proof that this is not
really an insuperable obstacle. Presence and submission are still today the two
basic principles which should be resorted to in any logical unified jurisdictional
system. Perhaps submission could be the common denominator for the French
and Anglo-American rules of jurisdiction, since even under the strict French
system, jurisdiction based on nationality can be waived by the parties who can
select the forum which they want. Of course there is still the problem of the
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[Vol. 4
exclusive jurisdiction of the French courts, but after all this is not different
from the Anglo-American system. In both systems the national courts have
exclusive jurisdiction in certain cases, as for instance in the case of land situated
within their territory or patents delivered by the state.
To sum up, there appear to be, as far as principles are concerned, several
different possibilities:
1-The forum may test the jurisdiction of the foreign court according to the conflict
rules of the forum.
2-The forum may test the jurisdiction of the foreign court according to the rules
in force in the foreign law district.
3-There may be a double examination: the foreign court must have jurisdiction
according to the conflict rules of the forum and according to its own rules.
4-The forum may apply its own domestic rules of procedure to determine whether
it were directly and exclusively competent to deal with the original cause of
action. If the answer be positive, then the foreign court did not have jurisdic-
tion. If on the other hand the forum were not directly and exclusively com-
petent, it may apply tests 1, 2 or 3, or apply the domestic rules of the forum in
order to determine the competence of the foreign court.
5-Finally in cases 1, 2, 3 & 4, the forum may determine which foreign court was
competent ratione materiae and ratione loci (e.g. whether the foreign court
were the proper court).
In my opinion solution 1 is the best one.
Once it is admitted that the enforcing court will test the jurisdiction of the
foreign court exclusively on the basis of its settled conflict rules, it still remains
to be determined what these rules should be. It seems to me that they should
be based on physical power, submission and reciprocity. As to the latter principle
there is no reason why the forum should not recognize a jurisdiction which it
itself claims. However, this principle should be accompanied by the rule that
the defendant be given notice of the suit and have an opportunity to be heard.
As far as a concrete proposal is concerned, serious consideration has been
(Reciprocal Enforcement) Act 1933, as a
given to the Foreign Judgments
model draft, especially in view of the fact that it has operated satisfactorily
between civil law and common law countries. However, in view of the changing
conditions in this world, certain modifications of its rules have been deemed
necessary. These modifications are the result of the discussion which has
taken place in this article.
PROPOSAL
It is proposed that the courts of a foreign state acquire jurisdiction to
deliver judgment against a party in actions in personam:
I_.
1-Where he was present within the foreign state at the time when the proceedings
were instituted, otherwise than by force or by fraud; or
instituted; or
2-Where he resided in the foreign state at the time when the proceedings were
3-In the case of a corporation where it has its principal place of business in the
foreign state or is engaged in substantial business in its dominions and the pro-
ceedings in that court were in respect of a transaction effected there; or
No. 2]
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203
4-Where he expressly contracted to submit to the particular foreign court; or
5-Where he was the plaintiff in the foreign suit; or
6-Where as a defendant he counterclaimed in any circumstances; or
7-Where he voluntarily appeared
in the proceedings otherwise
than for the
purpose of protecting property already seized; or
8-Where the foreign court exercised jurisdiction under circumstances similar to
those in which the courts of the forum assume jurisdiction; or
9-Where the original jurisdiction of the foreign court is for some other reason
recognized by the law of the forum.
And: II
1-The courts of the forum will not inquire whether the foreign court is the proper
2-Jurisdiction once acquired will persist until the final decision of the dispute is
court under its own law.
reached.
