ENFORCING FOREIGN NON-MONEY JUDGMENTS: AN EXAMINATION OF SOME RECENT DEVELOPMENTS IN CANADA AND BEYOND

Richard Frimpong Oppong

ABSTRACT

A fundamental rule of the common law is that the courts cannot enforce a foreign in personam judgment that is not for the payment of a fixed sum of money. The implication of this rule is that a party must bring a fresh action for similar relief in the forum in which the party seeks enforcement. Currently, the Supreme Court of Canada is considering a case involving application of the rule. This paper examines the continued applicability of this rule in light of the current demands of international litigation. This paper also provides an account of legislative reforms and interventions in the area. Given the limited scope of these interventions, the paper advocates a judicial abrogation of the rule prohibiting enforcement of foreign non-money judgments.

A. INTRODUCTION
There is a “quiet revolution” occuring in Canada. It is in the area of private international law. It began with the Supreme Court of Canada’s decision in Morgaurd Investments Ltd. v. De Savoye. No area of the subject—enforcement of judgments, jurisdiction, or choice-of-law—has been left untouched. This revolution has been propelled by two factors: a domestic constitutional imperative to create a single Canadian state, and an international pragmatic desire to adapt the rules of private international law to meet the challenges of globalisation. The approach of the “revolutionaries,” however, has not been entirely consistent. While the court argued for flexibility in Morguard as regards the enforcement of judgments, it turned to certainty and predictability as regards choice-of-law in Tolofson. These developments are significant for the common law world. They demand a re-thinking of centuries-old common law rules. Each new case presents its own challenges. Recently, Canadian courts have cast doubt on the common law rule that a foreign in personam judgment must be for a fixed, definite, or ascertainable sum of money before it can be enforced. Put differently, the courts can only enforce foreign money judgments. Presently before the Supreme Court of Canada is the case Pro Swing Inc. v. ELTA Golf Inc. At issue in this case is whether the court can enforce a foreign non-money judgment. The outcome of the case will have important implications for the development of the law on the enforcement of foreign judgments in Canada, and indeed the entire common law world. It will either affirm the centuries-old legal rule or consign it to the dustbin of legal history. 

This paper examines the continued application of the rule against the enforcement of non-money judgments in modern times. Part B provides a historical account of the origin of the rule. It examines the claim that there existed an equitable jurisdiction to enforce all foreign judgments and concludes with an account of how the rule spread to the common law world. Part C discusses two recent Canadian decisions calling for a re-examination of the rule. It assesses the rule in light of current trends in international commercial litigation. It also provides a comparative survey of national and international (U.K., Australia, New Zealand, Singapore, Canada, Commonwealth Africa, U.S., Hague Conference, and the European Union) responses to the issue. These responses have been statute and convention-based. Part D discusses “life” after the abrogation of the rule by exposing potential areas of concern. It suggests solutions to these concerns and provides the conclusion for the paper.

It is important at the outset to distinguish recognition from enforcement of foreign judgments. Although the two terms are sometimes used interchangeably, they have different meanings in private international law. Recognition occurs when the court, for any purpose, treats a right acquired under a foreign judgment as existing. Enforcement, on the other hand, suggests that a party will be accorded the relief to which the foreign judgment entitles him. Recognition thus precedes enforcement. Enforcing a foreign judgment means that steps will be taken by the court to secure compliance with the obligation evinced by the foreign judgment. In other words, the domestic court lends its enforcement processes to the benefit of the party for whom a relief was granted in the foreign court. Where necessary, securing enforcement may involve the use of public coercive force. Enforcing a foreign judgment at common law also implies allowing a party to bring an action on the judgment. He may even apply for summary judgment, which is an expedited means of enforcement. He need not re-litigate the cause. These important procedural advantages are not available to a litigant with a foreign non-money judgment. 

B. THE RULE AGAINST ENFORCEMENT OF FOREIGN NON-MONEY JUDGMENTS AND ITS ORIGIN
It is a fundamental principle of private international law that to be enforceable, a foreign in personam judgment must be for a fixed, definite, or ascertainable sum of money. The reason given for the rule is that, historically, the proper action for the enforcement of a foreign judgment was an action in assumpsit. This action, which was brought in the courts of law, required that a sum certain in money be owed to the plaintiff. Assumpsit was the remedy used to recover on a simple contract for a sum certain. As Lord Ellenborough noted in Sadler v. Robins, the case reputed to have firmly established the rule, “the law implies a promise to pay a definite, not an indefinite sum.” The common law operated on the principle that the foreign judgment created an implied promise and obligation to pay the judgment sum. Thus, in Russell v. Smyth it was held that when a competent court has adjudicated a certain sum to be due, a legal obligation arises to pay that sum, and an action of debt to enforce the judgment may be maintained.

The implication of this rule is that a foreign in personam judgment that commands a party to do or refrain from doing an act or is merely declaratory is unenforceable. Among these judgments are orders for specific performance, restitution of chattel, transfer of title, discovery, injunctions, and declarations. A party cannot bring an action on these judgments in a foreign court. He has to institute a fresh action requesting similar relief and adduce fresh evidence outside the foreign judgment. In other words, unlike a foreign judgment creditor, such a party cannot rely solely on the foreign judgment. He must re-litigate the whole cause. Consequently, what is in issue in these discussions is not only whether the domestic court can or will make an order similar to that of the foreign court, but also whether a party may be allowed to rely solely and without more on the foreign judgment for relief.

In addition to the historical foundations of the rule in the common law forms of action, there might have been practical and policy reasons for insisting on it. It may be difficult, and possibly costly, for the domestic court to make the assessments necessitated by a foreign judgment ordering a party to do an act. This is because the domestic court may not be seized of the facts upon which the foreign court made the order. As regards money judgments, the common law avoided this difficulty by refusing to investigate the propriety of the proceedings in the foreign court. In contrast, a court enforcing a foreign specific order may have to assess the scope of the order in case of vagueness. For example, it may have to decide whether the order was meant to have an extra-territorial reach. It may also have to assess the potential effect of the order on third parties and thus the need to limit its reach. By not enforcing non-money judgments, the common law avoided the need to address these difficult questions.
While the common law restricted itself to enforcing foreign money judgments, there existed an equitable jurisdiction to enforce foreign non-money judgments. This equitable jurisdiction existed side by side with the common law jurisdiction until the Judicature Act, 1873, merged the administration of equity and law. The following cases, discussed chronologically, support the existence of this jurisdiction.
In Morgan's Case, the Court of Chancery held as potentially enforceable a decree issued in a Welsh court requiring the payment of a legacy. The Lord Chancellor held that “the bill having stated the will, and all the proceedings in Wales … for the recovery of the legacy, an original independent decree might be had in this court for the legacy ....” He, however, declined to “absolutely determine” the issue until full hearing of the cause. In Houlditch v. Marquis of Donegal, the creditors of Marquis obtained orders against him in the English Court of Chancery, appointing a receiver and enjoining him from collecting rent from his Irish lands. When they sought to enforce the judgment in Court of Chancery in Ireland, the court held that it had no jurisdiction to enforce the English orders. The House of Lords overturned this decision. It was held that the plaintiffs had an action on the order in the Court of Chancery in Ireland, just as a judgment-creditor has an action in debt, and that the order could be executed with the aid of the Irish court. In the words of the Lord Chancellor, “[w]hat he wants is a receiver, and that which protects the appointment of a receiver…. That is the material part, and to that I am of opinion he is entitled.” In Henderson v. Henderson, Lord Denman C.J. held that “[t]he decrees of foreign Courts of Equity may indeed, in some instances, be enforceable no where but in Courts of Equity, because they may involve collateral and provisional matters to which a Court of Law can give no effect….” Finally, in Paul v. Roy John Romilly M.R. emphatically stated: “I have no doubt that this Court [of Chancery] has jurisdiction to enforce a foreign judgment….”
However, these cases are questionable authority for the existence of equitable jurisdiction in modern times. As far back as 1888, the equitable principle they supposedly stood for was missed by the Lord Chancellor in Re Dundee and Suburban Ry. Co. The court held that there is no authority under which an order of a Scottish court that is not a judgment for debt, damages, or expenses can be enrolled in the High Court of Justice in England. It is significant that although this decision came after the fusion of law and equity, it was decided at the Chancery Division of the High Court. However, no reference was made, either by counsel or the Court, to any of the decisions affirming the jurisdiction of the court of equity to enforce foreign non-money judgments. Additionally, it appears that even where equity decided to enforce a foreign judgment, it operated on different principles than the common law did. As the Lord Chancellor noted, a foreign judgment “might be the ground of proceedings in Chancery, as a foreign judgment may be the ground of an action of assumpsit … [but] it may be met by contrary evidence, and the subject matter of the judgment is liable to be inquired into.” At common law, the court will not investigate the propriety of the proceedings in the foreign court. The common law “steers clear of an inquiry into the merits of the case upon the facts found: for whatever constituted a defence in that Court ought to have been pleaded there.” It is also debatable whether the relationship that existed between the legal systems of England, Wales, Ireland, and Scotland at the time of these decisions could properly be characterised as similar to that which exists between modern day sovereign states. 
The U.K. spread its law relating to the enforcement of foreign judgments to its colonies. The common law scheme for the enforcement of foreign judgments, which was introduced to the colonial territories, developed in the early part of the nineteenth century. Statutory registration schemes for the enforcement of judgments were subsequently added to the common law scheme. These statutory schemes, which often operated on the basis of reciprocity, provided a means for registering the foreign judgment. Registration was meant to provide an expedited means for enforcement of judgments. Reciprocity was meant to encourage other countries to adopt similar schemes. These statutory schemes did not purport to abolish the common law. The common law and statutory schemes co-exist, even to this day, in most Commonwealth countries. A notable characteristic of both schemes was that they applied to only foreign money judgments. As demonstrated in Part D, it is only recently that some Commonwealth countries are attempting to do away with this limitation. 
C THE CALL FOR RE-EXAMINATION
I SOME RECENT CANADIAN DECISIONS
In recent times, doubt has been cast on the continued application of the rule restricting the enforcement of foreign judgments to only those for the payment of money. It has even been suggested that the rule “has been abrogated.” Others have called for its “re-examination.” These pronouncements have been influenced by the flexible approach to the enforcement of foreign judgments advocated in Morguard. 

In Morguard, lenders had brought foreclosure proceedings in respect of a mortgage loan secured on land in Alberta. The debtor formally lived in Alberta but was now resident in British Columbia. Although the defendant was served with process in British Columbia, he took no steps to defend the action. He appeared to have acted on the belief that the judgment was not going to be binding on him in British Columbia. As the common law stood at the time, for a foreign in personam judgment to be binding, the foreign court must have assumed jurisdiction by virtue of (a) the defendant’s presence within the jurisdiction at the time the action was commenced, or (b) his submission to the jurisdiction of the court by taking part in the proceedings. By staying in British Columbia and not participating in the proceedings, neither requirement was met. The debtor’s interest in the land was foreclosed. The land was sold, but the amount realized was less than the amount owed. The lenders therefore obtained default judgment from the Alberta court against the debtor and brought an action on the judgment in British Columbia to enforce it. 

Contrary to the defendant’s belief, the British Columbia Court of Appeal decided that the common law had to change. The Court reasoned that since it would have assumed jurisdiction in similar circumstances, reciprocity of judicial practice demanded that it enforce the judgment. Dissatisfied with this ruling, the defendant appealed to the Supreme Court of Canada. The Supreme Court of Canada thought that the reciprocity principle was too narrow. The Supreme Court of Canada examined the historical context within which the common law rules concerning enforcement of foreign judgments developed. It noted how comity should inform principles of private international law. It noted further that “the rules of private international law are grounded in the need in modern times to facilitate the flow of wealth, skills and people across state lines in a fair and orderly manner.” Specific to the Canadian federal structure, the court noted how the rules of private international law should fulfill or enhance the intention of the Constitution of Canada to create a single country. The court accordingly held that “the courts in one province should give full faith and credit … to the judgments given by a court in another province or a territory, so long as that court has properly, or appropriately, exercised jurisdiction in the action.” For a court to properly exercise jurisdiction, there must be a “real and substantial” connection between the action and the province where the suit was brought. Since it was determined that the Alberta foreclosure action met this real and substantial connection test, the lenders could sue in British Columbia on their default judgment to recover the deficiency for the British Columbia resident debtor. This test is flexible. It enjoins the enforcing court to assess all the circumstances under which the foreign court assumed jurisdiction. The test has been extended to international judgments and has been variously received in other jurisdictions outside Canada. It is in the shadows of Morguard that some Canadian courts have called for a re-examination of the rule limiting the enforcement of foreign in personam judgments only to those for the payment of money. 

In Pro Swing, the plaintiff, an Ohio corporation, brought an action in the U.S. against the defendant, an Ontario corporation, for various intellectual property rights violations and unfair competition practices. A United States District Court of the Northern District of Ohio ordered consent decree enjoined the defendant from further violations. In 2002, the plaintiff learned that the defendant was violating the decree. It instituted proceedings in the U.S. to enforce the consent decree and sought compensation for damages. Although the defendant was served, it did not respond. The U.S. court found the defendant to be in contempt, enjoined it from further violations, and ordered it to account to the plaintiff. The plaintiff sought to enforce these orders in Ontario. 

It is important to note that Pro Swing arose at a time when the Canadian courts had, generally, adopted a very flexible attitude towards the enforcement of judgments coming from both within and without Canadian provinces. Notwithstanding this, there was no decision to the effect that the rule against the enforcement of foreign non-money judgments had been abrogated with respect to international judgments. Also, there existed no Canadian or provincial legislation allowing for the enforcement of in personam non-money judgments from other provinces. There was, however, one decision suggesting that Morguard had abrogated the rule, at least as regards judgments from other Canadian provinces. This decision was Uniforet, discussed below. Another case, Barrick Gold Corp. v. Lopehandia, appeared to have been decided on the assumption that such enforcement was possible. In Barrick Gold, the Ontario Court of Appeal, after noting concerns about the enforceability of in personam injunctive reliefs against out-of-province residents, granted an injunction against a British Columbia resident in the hope that the British Columbia courts would enforce it. As the rules existed at the time, an injunction, being a non-money judgment, was not enforceable in British Columbia.
 
 It is against this background that Pro Swing was decided. The trial court held that Morguard did not purport to change the law relating to the requirement that to be enforceable, a foreign judgment must be for a fixed sum. As the judge rightly noted, this requirement was not at issue in Morguard. The judge was nonetheless persuaded that the rule may be relaxed or removed depending on the circumstances of each case. Indeed, as regards judgments from other Canadian provinces, he noted, “the requirement is of questionable utility.” After taking into account the fact that the consent decree was signed by the parties and reflected a settlement between them, that by its terms it was intended to have extra-territorial application, and that the underlying factual matrix was set out in the settlement agreement, the judge held the consent decree and the order to account enforceable. On appeal, the Ontario Court of Appeal found that the decree and order were too uncertain to be enforceable and thus refused to enforce them. The Court of Appeal’s decision, however, cast doubt on the propriety of restricting enforcement to only foreign money judgements. In the words of the court, “the time is ripe for a re-examination of the rules governing the recognition and enforcement of foreign non-money judgments.” To the court, such a re-examination will be in accordance with the need to accommodate “the flow of wealth, skills and people across state lines.” 

In Uniforet, the plaintiff carried on business in Quebec. The defendant operated in British Columbia. The plaintiff entered into a contract with the defendant, and the parties agreed that disputes arising under the contract would be subject to arbitration. In 1996, a dispute arose and it was sent to arbitration. The arbitral panel ordered the defendant to grant the plaintiff access to make photocopies of its books and records. The Superior Court of Quebec subsequently confirmed the arbitral award. The defendant refused to comply with the award and the plaintiff sought its enforcement in the British Columbia Supreme Court. The defendant argued that the judgment of the Quebec court could not be enforced in British Columbia since it was not for a fixed sum of money. The court refused to enforce the judgment on the ground that it was not final and conclusive as it was uncertain in its terms. The court, however, held that the rule that a foreign judgment must be for a sum certain before it can be enforced “has been abrogated” by the Morguard decision. 

However, Uniforet should be approached cautiously as authority for the abrogation of the rule against enforcement of foreign non-money judgments. The Uniforet decision related to the enforcement of a judgment from another Canadian province; thus, the statement regarding the abrogation of the rule might have been compelled by the constitutional imperative to grant “full faith and credit” to judgments from other provinces. Uniforet, unlike Pro Swing, did not relate to an international judgment. Consequently, the extent to which it may be extended to international judgments was not addressed.

Canadian writers have added their voice to the call for a re-examination of the rule against enforcement of foreign non-money judgments. Castel and Walker write:
For all the policy reasons favouring the enforcement of foreign judgments, it is suggested that courts should be willing to consider foreign judgments granting relief other than for specific sums of money to determine whether they are capable of giving effect to those judgments in a way that reflects the intentions of the issuing court and that is fair to the parties.

Ullrich argues that “[t]here is good reason to expect that our judiciary will also recognize that modern global commerce demands the enforcement of a panoply of remedies beyond simply monetary judgments.” However, not all Canadian writers wholly support this position.

One cannot expect unanimity for such a move. As shown below, there are compelling reasons for it. However, there are problems and difficulties that will come with the enforcement of non-money judgments. First, an equivalent non-money relief may not be available in the enforcing forum. In other words, there may be no existing mechanism for enforcing the foreign non-money judgment since it is unknown to the enforcing jurisdiction. This gives rise to the question: How can a court enforce a relief unknown to it or which could not have been available to the plaintiff in similar circumstances had the plaintiff first sued in the enforcing forum? This problem may be overcome by the rule that a party who seeks enforcement of a foreign judgment is bound by the enforcement mechanisms in the enforcing forum. That person cannot claim privileged treatment. That said, comity and the dictates of justice may require granting a remedy that, at least substantively, fulfils the object sought by the non-money order. 

In G v. Caledonian Newspapers Ltd., the petitioners obtained an injunction from the High Court of England against the disclosure of their identity and that of their children. They sought an interim interdict in Scotland replicating the terms of the English injunction relying on section 27(1)(c) of the Civil Jurisdiction and Judgment Act 1982. This Act allows for the enforcement of non-money judgments from courts of the United Kingdom. Both counsel and the court agreed that no substantive remedy comparable to that given effect by the terms of the English injunction would in the circumstances have been available under the law of Scotland. In granting the petition, Lord Marnoch held that “in the exercise of comity” the court should lend its aid by granting an order in terms similar to the English one. 

Second, the enforcing court may have to determine whether the judgment was intended to have extraterritorial effect. Non-money judgments are often more invasive with respect to individual rights than money judgments. The scope of their application may be at issue. The need to determine their scope and applicability may suggest a need to investigate, to some extent, the underlying facts. This does not, however, imply that the court must re-open the whole case or make the judgment creditor re-litigate the cause afresh. Although the common law courts have traditionally been reluctant to go into the merits of the case when enforcing a money judgment, sometimes they find it is in the interest of justice to do so. The same case can be made for non-money judgments. 

Finally, enforcing non-money judgments may require some level of oversight responsibility or supervision by the court to ensure compliance. This entails costs and use of public funds. But that is true for all judicial decisions. It is important to note that when a court decides to enforce a foreign judgment, the judgment becomes that of the enforcing court and it ceases to be foreign. Thus, any difficulties with the foreign judgment have to be resolved at the time of the decision to enforce. Where the circumstances of a particular case merit it, the court may decline to enforce the foreign judgment. Subsequent difficulties will not be peculiar to the foreign judgment as it ceases to be a foreign judgment when the court decides to enforce it. Indeed, the cost implications of enforcing foreign non-money judgments may be exaggerated. Plaintiffs could be made to bear the cost of enforcement. Cases of individuals seeking to enforce foreign non-money judgments are rare, a fact reflected in the paucity of decided cases. This, however, does not provide an excuse for neglecting to develop this area of the law. The present demands of international litigation make development of this area of the law imperative.

II THE RULE AGAINST ENFORCEMENT OF NON-MONEY JUDGMENTS AND CURRENT TRENDS IN INTERNATIONAL LITIGATION
In discussing the need to re-examine the rule against the enforcement of non-money judgments, it is important to appreciate the perspective from which one is arguing. An action for the enforcement of a foreign judgment should not be seen solely as a relationship between two courts or states. Neither is it simply a matter of international judicial cooperation. The interest of the foreign plaintiff should not be ignored. While arguments about extra-territoriality and potential asymmetries in cost between the enforcement of money and non-money judgments may be important, equally relevant is the need to ensure that individuals have a speedy and efficient way of enforcing foreign judgments. The litigant is interested in “prompt, certain and effective enforcement of judgments” and not technicalities. Allowing him to bring an action on the foreign judgment rather than forcing him to re-litigate the cause afresh promotes this objective. 

In discussing the continued application of the rule, it should also not be assumed that foreign judgments are always held by “foreigners.” It is not impossible to conceive of a citizen or resident seeking to enforce a foreign judgment in his own country. A citizen or resident may, for various procedural and substantive reasons (such as limitation periods, anticipated remedies, cost, and availability of witnesses), sue in a foreign court but seek to enforce that judgment in his own country. Thus, we are not developing rules only for “foreigners” but potentially for “ourselves.” This suggests that we must have a broader outlook and avoid being too nationalistic or protective in our examination of the continued application of the rule against enforcement of foreign non-money judgments. 

The fundamental principle advocated here is that an individual should be able to enjoy the benefits of the “remedy upon a just obligation … irrespective of the state of its origin” or the type of judgment. He cannot, of course, claim better treatment; he must be content with the enforcement processes available in the forum for similar domestic judgments. But his judgment should not be denied enforcement solely on the ground that it is not for money. Private international law cannot be oblivious to the dictates of human rights law. A litigant can argue a denial of the right of access to justice in an action for the enforcement of foreign judgments. It can be argued that the right of access to justice would be illusory if a country’s legal system allowed final, binding judicial decisions from a foreign court to be inoperative to the detriment of one party. This detriment includes potential cost and delay in enforcement, which will ensue if the individual is made to re-litigate the cause. It is suggested that it will not be long before this restrictive rule is challenged as being in violation of this right. Such a situation may arise where, for example, a foreign non-money judgment obtained by a citizen or resident is denied enforcement in his own country because of this restrictive common law rule.

Modern-day international commercial litigation suggests a need for the re-assessment of the rule restricting the enforcement of in personam foreign judgments to those for a sum of money. The emergence of new reliefs, hitherto unknown to the common law, and their frequent deployment to serve the cause of justice, has become a common feature of modern international commercial litigation. Provisional and protective reliefs like the Mareva injunction, the Anton Piller order, the anti-suit injunction, and negative declarations are examples of such reliefs. These reliefs have benefits for the individual litigant and, indeed, society as a whole. They preserve the status quo, ensuring that a party does not dissipate his assets to defeat a prospective judgment and generally prevent him from taking actions to defeat the course of justice. They may also be tactically deployed to the beneficial end of achieving a settlement. Such a settlement, from a public policy perspective, is good for society as it reduces judicial workload. Additionally, and especially in this electronic age, time is of the essence in these reliefs. International cooperation in their enforcement is sometimes necessary. The ability of a party to bring an action for the enforcement of these judgments will be a great boost to securing these benefits. A similar case can be made for other substantive reliefs that are not money judgments, such as orders to transfer shares, permanent injunctions, orders for the restitution of chattel, and specific performance generally.

The restriction of enforcement to monetary judgments undermines the fundamental public policy objective of ensuring that there is an end to litigation. This objective must have both domestic and international appeal. As Story notes, “[t]here is nothing more hurtful to society, than that lawsuits be perpetual.” To force a party to re-litigate a cause that has already been judicially determined entails a waste of judicial resources. It also amounts to a promotion of litigation at a time when we aim to reduce both judicial workload and litigation. It is revealing to note that while this restrictive rule applies when a plaintiff seeks enforcement of the foreign judgment, no such restriction is imposed when a defendant relies on a foreign judgment as giving rise to an estoppel. It may be argued that enforcement entails the use of the enforcement processes of the court; hence the need for the money requirement to limit the number of enforceable judgments to conserve judicial resources. Recognising a foreign judgment as giving rise to an estoppel, on the other hand, does not entail much use of judicial resources; thus, there is no need to exclude enforcement on the basis of the type of judgment. This argument, however, ignores the fact that the fundamental objective of both parties in these two instances is the same: to secure the advantage of the foreign judgment. Equal treatment of both parties is necessary to avoid potential injustice. 

To argue that the fundamental objective of both parties (i.e. a plaintiff seeking enforcement and a defendant pleading estoppel) is the same is not to ignore the fact that their positions are different with respect to the litigation before the foreign court. The plaintiff in the foreign court chooses the forum for the litigation with certain substantive and procedural advantages that will inure to him in mind. These advantages include the cost of litigation, the amount of damages or character of relief potentially available, the possibility of a jury trial, and the effect of limitation periods. The defendant, on the other hand, might not have appeared to litigate or was even unaware of the litigation. The defendant is “forced” to litigate. Thus, their level of participation and control over the litigation in the foreign court differs. A party against whom an estoppel is pleaded “has had his day” in the foreign court; therefore, an estoppel is seldom found on a default judgment. This may not be the case with a defendant against whom the foreign plaintiff, now judgment creditor, seeks to enforce the foreign judgment. 

These differences call for caution in extending the court’s treatment of estoppel to that of enforcing foreign non-money judgments. But the differences do not support an outright refusal to enforce foreign non-money judgments. One of the fundamental objectives of private international law is the protection of rights acquired under a foreign system of law: “the desire to do justice in cases involving legally relevant foreign elements is often advanced as the most important objective of any system of conflict of laws.” The subject should be seen as providing rules that allow acts in another sovereign’s territory to be taken into account in order to avoid potential injustice to the individual. It is severely unjust to be forced to re-litigate a matter already adjudicated upon by a competent authority. This injustice becomes more apparent in cases where the foreign court properly exercised jurisdiction over the losing party who now seeks shelter under the common law by arguing that the judgment is not enforceable simply because it was not for a sum of money.

The Supreme Court of Canada’s redefinition of comity in terms of justice, necessity, and convenience provides a framework for assessing which foreign judgments should be recognised and enforced. It suggests a case-by-case assessment to determine which foreign judgments should be enforced. The current demands of international litigation call for a re-assessment of the blanket and restrictive common law rules, which date back to times very different from ours. The common law rule allowing for the enforcement of only money judgments developed at a time when international mobility was limited, judicial reliefs were highly localised, and international judicial cooperation was minimal. All these cannot be said of our present world. Globalisation has made the movement of people, capital, and services across international boundaries the norm. With this has come the need for protection of rights. Although the courts are slow to grant reliefs with extra-territorial reach, they have become part of the international litigation landscape. There are also trends towards international judicial cooperation. All these suggest a need to be flexible in our treatment of foreign judgments. 

The Supreme Court of Canada traces the common law’s restrictive approach towards the recognition of foreign judgments to nineteenth century ideas of territoriality and sovereignty. To the court, modern rules of private international law should be grounded in the need to facilitate the inter-state flow of wealth, skills, and people in a fair and orderly manner. It is a welcome sign that since Morguard, the attitude of Canadian courts toward foreign judgments has been “strikingly liberalised.” It remains to be seen whether this attitude will ultimately be extended to foreign non-money judgements.

The need to relax the old common law rules on the enforcement of foreign judgements to meet present global challenges has been recognised in another case. In United States of America v. Ivey, the Ontario defendant corporation was the parent company of a Michigan corporation, which was in the business of waste disposal. The Michigan corporation went into bankruptcy and the U.S. Environmental Protection Agency (E.P.A.), pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act 1980, 42 U.S.C. § 9601 et seq (1980), undertook to clean up the site. The United States then brought an action in a U.S. District Court against the corporation pursuant to the Act for reimbursement of the cost of remedial measures undertaken by the E.P.A. The action was not defended, and judgment was granted against the defendant. The United States subsequently brought an action in Ontario to enforce the judgment. The defendant argued inter alia that the judgment was based on penal, revenue, or other public law of a foreign state and was hence unenforceable. The Court rejected this argument and held that the U.S. environmental legislation was not a penal or revenue statute and was thus not caught by the exception against enforcement. The Court noted that “[t]he public law exception to the enforceability of foreign judgments rests … on a shaky doctrinal foundation”; that since many jurisdictions have adopted similar statutes, “[i]nternational comity supports the mutual enforcement of such similar statutory regimes”; and that “[i]t is no extension of U.S. sovereign jurisdiction to enforce its domestic judgments against those legally accountable for an environmental mess in the United States….” 

These pronouncements cast doubt on the foundations of the exception. More important for our purposes, it introduces a functional and flexible approach to the application of the exception and could be extended to the treatment of foreign non-money judgments. This flexible and functional approach is especially revealed in the lower court’s emphasis on the need for accountability, the inadequacy of common law remedies for environmental harm, and concurrent practice among states. The case affirms and reflects the need to adopt a more flexible approach to the enforcement of foreign judgments. A doctrinaire approach will not do. Certain foreign judicial orders may be so important for the protection of private or public rights that to deny their enforcement will amount to injustice. In the instant case, the lower court noted, “[i]n an area of law dealing with such obvious and significant trans-border issues, it is particularly appropriate for the forum court to give full faith and credit to the laws and judgments of neighbouring states.” Significantly, there is no suggestion in this dictum that some judgments require separate treatment.

New challenges such as electronic commerce, internet activities, trans-boundary environmental harm, and intellectual property rights violations all demand global solutions and cooperation. Money judgments are often inadequate remedies in these areas. Injunctions are often a better remedy, as in the case of a threatened intellectual property right violation or environmental damage. A reformed law on the enforcement of non-money judgments would be a useful tool in meeting these challenges. It would make the set of foreign in personam judgments entitled to enforcement “complete.” It would allow for an expeditious and cost-effective way of enforcing these judgments. Re-litigation involves time and cost. Time is usually of the essence in meeting these challenges.

III LEGISLATORS TAKE THE LEAD
Traditionally, the reform of private international law has been the preserve of judges and “eccentric professors.” Increasingly, however, legislators have taken up the cause of reforming the rules of private international law, albeit upon recommendation from academics and judges. The law on the enforcement of foreign non-money judgments is one such area. On the national and international scenes there are various efforts to make provision for the enforcement of foreign non-money judgments. 

In the U.K., where the rule originated and subsequently spread to the colonial territories, the Civil Jurisdiction and Judgments Act 1982 provides for the reciprocal enforcement of judgments from signatories to the Brussels Regulation on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters. Section 4(1) makes provision for the enforcement of judgments (money and non-money) from E.U. states. Section 18(1)(b) provides for the enforcement of non-money judgments from other parts of the U.K. The fact that the operation of the rule has been reduced in scope in the U.K. is significant for the common law world. Indeed, other commonwealth countries appear to have taken a cue from this. 

In Australia, the Foreign Judgments Act 1991 provides for the enforcement of non-money judgments. Section 5(6) of the Act provides:
If the Governor-General is satisfied that, in the event of the benefits conferred by this Part being applied to all or some non-money judgments given in the courts of a country in relation to which this Part extends, substantial reciprocity of treatment will be assured in relation to the enforcement in that country of all or some non-money judgments given in Australian courts, the regulations may provide that this Part applies to such non-money judgments, given in the courts of that country, as prescribed.

Although no such regulation has been made in Australia, it is an important development in the common law world. It represents an attempt to bring the law on the enforcement of judgments in line with current realities. It is significant that, unlike similar statutes in other “federal” states, it applies to judgments from other sovereign countries. Founded on reciprocity, it is an invitation to other countries to take a second look at their enforcement regimes to secure this benefit. In New Zealand, s. 3B of the Reciprocal Enforcement of Judgments Act 1934 contains provisions similar to the Australian legislation above. Hopefully other common law countries will see the need for reform in this area of the law and will take up this challenge. 

In Canada, the Uniform Law Conference of Canada adopted the Uniform Enforcement of Canadian Decrees Act in 1997. This Act provides a mechanism for the enforcement of non-monetary judgments in Canada with very limited defenses. The Act deals with only inter-provincial judgments and does not extend to judgments from foreign countries. The Act is, however, significant, for although Canada is a federal state, the common law rule against the enforcement of non-money judgment applies as between provinces. The Act was influenced by the Supreme Court’s ruling that
the courts in one province should give full faith and credit, to use the language of the United States Constitution, to the judgments given by a court in another province or a territory, so long as that court has properly, or appropriately, exercised jurisdiction in the action.

Although the Act is currently not in force in any province, some provinces have passed legislation based on the Act with a view to bringing it into force. It represents an important first step towards the enforcement of foreign non-money judgments in Canada. Indeed, a recent Saskatchewan legislation, although not yet in force, makes provision for the enforcement of non-money judgments. Unlike other statutory schemes for the enforcement of judgments, this legislation is not based on reciprocity. Therefore, it is potentially available for the enforcement of all foreign judgments irrespective of origin.

In Singapore, a recent proposal by the Law Reform Committee advocates for a scheme for the registration of non-money judgments. In the Committee’s view, the “growing practical importance of non-money judgments in the modern enforcement of international debts is such that it would be wrong and unrealistic to continue to exclude them from the enforcement by registration scheme.” Registration under the proposed scheme is not as of right. The court must be satisfied that it is just and convenient to enforce the non-money judgment. Additionally, the scheme is based on reciprocity. Notwithstanding these limitations, it adds to the mounting evidence of an increasing recognition of the importance of enforcing non-money foreign judgments.

In Africa, it appears that not many Commonwealth countries have taken notice of this trend towards a statutory scheme for the enforcement of non-money judgments. Existing legislation is still limited to the enforcement of money judgments. However, South Africa is currently discussing the possibility of enforcing foreign non-money judgments. A sound foreign judgment enforcement regime is increasingly being recognised as an essential tool for the promotion of international trade and investment. It is suggested that, consistent with current trends, subsequent reforms by African Commonwealth countries of their law on the enforcement of foreign judgments should take account of these new developments. The recent Commonwealth Ministerial Meeting in Accra, Ghana, recommended that Commonwealth countries reform their laws on the recognition and enforcement of foreign judgments to meet current development needs. In Africa, this need for reform of private international law is even more imperative as the continent moves closer towards economic integration with a potential increase in trans-boundary relationships and concomitant disputes.

In the U.S., the American Law Institute has also proposed enforcing foreign “declaratory judgments, injunctions and other comparable orders.” However, it leaves their recognition and enforcement to the discretion of the court. In 1998, the U.S. Supreme Court held that injunctions were within the scope of “judicial proceedings” as defined by the full faith and credit clause of the U.S. Constitution. Significantly, the court found “no reason why the preclusive effects of an adjudication … should differ depending solely upon the type of relief sought….” The American Law Institute’s draft statute extends the logic of this ruling to international injunction judgments. Indeed, as far back as 1971, the authors of the American Restatement (Second) of Conflict of Laws had advocated that the principle of international comity should not be limited to foreign money judgments. They anticipated that 
a decree rendered in a foreign nation which orders or enjoins the doing of an act will be enforced in this country provided that such enforcement is necessary to effectuate the decree and will not impose an undue burden upon the American court and provided further that in the view of the American court the decree is consistent with fundamental principles of justice and of good morals. 

The approach of the American Law Institute’s draft statute provides an interesting contrast to some of the schemes outlined above. Unlike the approach adopted in Australia and New Zealand and proposed in Singapore, where the executive makes a prior determination of which country’s non-money judgments will be enforced on the basis of reciprocity, the U.S. approach allows the judge to exercise discretion on a case-by-case basis. Because it is not founded on reciprocity, the U.S. approach may be beneficial to many more international litigants.

Among members of the European Union, the Brussels 1 Regulation regulates the enforcement of judgments in civil and commercial matters. Article 32 of the Brussels 1 Regulation defines a judgment as “any judgment given by a court or tribunal of a Member State whatever the judgment may be called…” It is not limited to the enforcement of only money judgments. Under art. 38 of the Brussels 1 Regulation, such a judgment is enforceable upon application of any interested party. In a recent decision of the Swiss Federal Supreme Court, it was held that an English worldwide freezing order could be enforced in Switzerland, although in this instance the court found the order not specific enough in its terms for enforcement. This shows that it is possible to enforce non-money judgments when there is judicial will.

The Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters adopted by the Hague Conference on Private International Law also makes provision for the enforcement of non-money judgments. Article 2 provides that the convention applies to “all decisions by the courts of Contracting states….” This brings within the scope of the convention reliefs in the form of specific performance and final injunctions. Although the convention excludes from its scope provisional and protective measures such as freezing orders, the Anton Piller order, and other interlocutory reliefs, it allows contracting states to conclude Supplementary Agreements to apply the convention to provisional and protective measures and regulate the enforcement of judgments other than those which order the payment of a sum of money. Unfortunately, the convention has not been popular. Only four states—Cyprus, the Netherlands, Portugal, and Kuwait—have ratified the convention. It nonetheless represents an affirmation of the need to make provision for the enforcement of non-money judgments at the international level.

While the above represents welcome efforts to abrogate the rule against the enforcement of non-money judgments, the basis of these schemes in the doctrine of reciprocity or contractual arrangements among states means that judgments from only few countries may benefit from them. This makes the case for a judicial decision abrogating the rule a compelling one, but at the same time challenging. A judicial decision not founded on reciprocity means judgments emanating from all countries can be enforced without any prior restraints. Such a judicial decision will also be a precedent, with persuasive authority, in the common law world. Unlike foreign legislation, a foreign judicial decision can easily be accommodated in adjudicating similar cases in another forum. The challenge for the judiciary, however, may be to overcome the argument that since the legislature has already “occupied that field,” the most appropriate course to take is judicial restraint. In other words, the abrogation of the rule should be the preserve of the legislature. The potential limited scope of any legislative intervention, however, makes a judicial one preferable. Indeed, historically the judiciary has been at the forefront of the development of private international law. It will be unfortunate if they abandon or delegate this role. The recent decisions of the Canadian courts, the reasons advanced above for a re-examination of the rule, and current legislative interventions provide useful material for a groundbreaking judicial decision on this point in the common law world.

D LIFE AFTER THE RULE: PREVENTING ABUSE
A liberal approach towards the enforcement of non-money foreign judgments requires adequate protective mechanisms for parties in the place where the judgment is delivered. This is necessary to prevent potential injustice to the defendant. Notice and adequate time to prepare and present one’s case are both paramount considerations. 

For example, in Denilauler v. SNC Couchet Frères, Denilauler’s creditors obtained a freezing order against him from a French court. He was not summoned to attend these proceedings. The order purported to freeze his bank account in Frankfurt. The creditors sought to enforce the order in Germany. The German court made a reference to the European Court of Justice (E.C.J.) on the issue of whether such provisional and protective measures issued without notice to the defendant are enforceable under the Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters [Brussels Convention]. The E.C.J. held that such orders were not within the scope of the enforcement regime of the Brussels Convention since they do not afford protection to the rights of the defendant. 

Another example is EMI Records Ltd. v. Modern Music, in which a German court had granted an injunction restraining the appellant from passing to third parties, reproducing, or distributing a musical recording. This injunction was made ex parte without prior notice or service on the appellant. The respondent registered the judgment in England, where the appellant operated relying on section 4 of the Civil Jurisdiction and Judgments Act 1982. The appellant appealed to set the registration aside on grounds of want of notice. The court set aside the registration. It reasoned that the absence of notice of the German proceeding rendered the judgment outside the scope of the Brussels Convention’s enforcement regime.

The requirement of notice may sometimes defeat the purpose of these orders, especially where the “surprise effect” is desired. A Mareva injunction or an Anton Piller order may lose its efficacy if notice is given to the defendant. However, when enforcement outside the forum is contemplated, it is suggested that as equitable reliefs, they should be caught by the maxim “he who seeks equity must do equity.” This is especially so when the judgment can, in light of what is being proposed here, be enforced in a foreign court. This will allow for all potential problems with the judgment to be resolved in the foreign court. Alternatively, the plaintiff may sue in the forum where the assets are located.

Substantive and procedural concerns for the protection of defendants’ interests in foreign courts have followed the Morguard decision, which liberalised the jurisdictional rules for the enforcement of foreign money judgments. So grave is this concern that a “residual” defence to the enforcement of foreign judgments is being advocated in unusual situations. The concerns for the protection of the interests of defendants are legitimate but do not support an outright denial of enforcement of all foreign non-money judgments. A case-by-case assessment is more apposite.

Given the potentially invasive character of non-money orders, there is also the need to protect the interests of third parties who can be indirectly affected by the enforcement of the order. For example, courts issuing worldwide reliefs are often careful to include a clause for the protection of the rights of third parties. This is because they might not have been represented in the original trial and may also be subject to an existing relationship, contractual or otherwise, with the defendant that may expose them to liability if the order is enforced. The case of banks enforcing freezing orders is a case in point. Additionally, enforcing a non-money judgment may also involve an illegitimate interference with rights of third parties with no existing relationship with the parties to the previous litigation. The onus should be on the foreign court to ensure that the terms of its judgment are clear and its scope certain. Any doubt in this regard should be resolved in favour of the defendant in the enforcing court. Enforcing a foreign non-money judgment may also be contrary to the laws of the enforcing state. In such a case, the court should be able to decline enforcement.

Apart from the personal invasiveness of non-money judgments, their enforcement may also raise concerns about their extra-territorial character. These concerns can be met with the argument that all foreign judgments, money or non-money, do not have any direct force, nor can they pretend to have such force unless and until they are recognised and enforced by a local court in the enforcing country: “The effectiveness of such orders for these purposes can only derive from their recognition and enforcement by the local courts….” In the enforcement proceedings, the foreign judgment is only evidence, albeit the sole evidence founding the cause, and it is difficult to see how an evidential fact can be said to infringe the principle of territoriality. The advantage to the plaintiff is that he can rely on the judgment and thus save the time and cost of re-litigating the matter afresh.

Another difficulty likely to arise in the enforcement of non-money judgments is that of finality and conclusiveness. At common law, a foreign judgment must be final and conclusive before it can be enforced. The absence of finality and conclusiveness is more likely to affect pre-judgment non-money orders, like the Mareva injunctions and Anton Piller order, than final non-money judgments such as decrees for specific performance, transfer of title, or restitution of chattel. These pre-judgment reliefs are meant to facilitate the adjudicatory process. They are as important as the final judgment. The fact that they can be varied or set aside should not of itself present a bar to enforcement. This is especially so when at the date enforcement is sought that judgment is still enforceable in the foreign court as it is. Indeed, the equitable jurisdiction to enforce foreign judgments existed partly because they “may involve collateral and provisional matters to which a Court of Law can give no effect….” The enforcing court may, however, exercise its discretion not to enforce it.

2 Conclusion
This paper has examined the common law rule that a court cannot enforce a foreign non-money judgment. It has shown that the origin of the rule is found in the old common law forms of action and that the continued application of the rule is inconsistent with modern demands. While there will be difficulties in enforcing foreign non-money judgments, it has been suggested that these difficulties do not merit an outright denial of enforcement to all such judgments. A case-by-case assessment is advocated. Although there have been legislative attempts at reform, the reforms are too narrow in the scope of their application. The fact that they are founded on reciprocity means that only judgments from designated countries may benefit. It is suggested that a judicial decision abrogating the rule and removing the requirement for reciprocity may be more appropriate. Such a decision will provide the foundation for reform through case law in other common law countries. Whether the courts will take up this challenge remains to be seen. But whatever the outcome of Pro Swing in the Supreme Court of Canada, its effect is likely to reverberate throughout the common law world. We anxiously await the Justices!