CHAPTER XLVI.

FOREIGN JUDGMENTS.

DCCCCXXVIII. IN this chapter it is proposed to consider the effect, both which ought to be and which is, given by the tribunals of one State to judgments delivered by the tribunals of another State; that is, the practice of Comity respecting Foreign Judgments (a). The subject, regarded from an English point of view, would have been properly treated, in the former chapter, under the category of evidence; but regarded more generally, and with reference to foreign jurisprudence, it seems to require a separate and distinct consideration.

(a) Donelli, Comm. lib. xxii. c. v. De exceptione rei judicate, quibus, adversos quos, quâ de re, competat.

Felix, s. 319.

Klüber (Europäisches Völkerrecht, § 59) considers that a foreign judgment ought to be executed by other States on the ground of its being a convention between the parties, or an arbitration submitted to by them.

Pinheiro Ferreira treats it as the result of a tacit contract on the part of the foreigner, to be bound by the law of the State in which he resides. Notes sur Vattel, p. 303.

Massé, Droit Comm. liv. ii. tit. ii. num. 800, is also of this opinion -quasi contrahitur in judicio.

Generally on the exceptio rei judicatæ, cf. Savigny, K. R. v. ss. 216, 231, 235, 249; vi. ss. 281, 295.

Merlin, Rép. Jugement, VI. VII. bis, VIII. Q. de Dr. Jugement, XIV.

Pothier, Tr. des Obl. partie iv. c. iii. s. 3, nos. 851 et seq.

Bar, 125. Das Endurtheil, seine verbindliche Kraft und Vollstreckung.

Wharton, chapter x.

[Smith, Leading Cases, vol. ii., Notes to Duchess of Kingston's Case (pp. 868 et seq. Edit. 1887).

Foreign Judgments, by F. T. Pigott. Edit. 1884.]

DCCCCXXIX. The authority of a judgment in time of peace is derived exclusively from the civil law of the territory in which it is given; it cannot, therefore, according to strict principles of international Law, have effect or operation in a foreign territory. But international Comity, "usu exigente et humanis necessitatibus," speaks another language, and a foreign judgment is generally, in some shape or other, and with more or less restriction, upholden and executed by all states.

DCCCCXXX. Both from the jurisprudence and the positive enactments of states upon this subject, the general axiom may be deduced-that no state allows a foreign judgment to be executed within its territory, except under the authority and by the order of its own tribunal. But the practice of states is various upon this subordinate point-namely, whether the foreign judgment shall be executed at the simple request of a party (simple demande ou requête) or the formal requisition (commission rogatoire) of the foreign tribunal; or whether the permission to execute it shall be delayed until the domestic tribunal has examined, more or less, the grounds upon which the foreign tribunal founded its decision (b).

DCCCCXXXI. It follows, from the principles laid down in the early part of this volume, that no state will recognize or allow to be executed a foreign judgment which contains any provisions or order contrary to the public morals or public policy of the realm in which execution of it is sought (c). The French tribunals have furnished a strong illustration of this principle; the Cour de Paris having decided [at a time when divorce was not allowed in France] that it was unlawful to permit the execution in France of a Swiss judgment of divorce be

(b) Pardessus, t. iv. No. 1483.

Revue Etrangère, t. iii. p. 127, &c. (Aubry).

Felix, s. 320.

(c) Vide suprà, § xviii.

[Rousillon v. Rousillon, L. R. 14 Ch. D. p. 351.1

tween Swiss parties, although the execution was only requested to enforce the payment of costs awarded against one of the parties, and although by a treaty between (d) France and Switzerland it was expressly provided that definitive judgments in civil causes should, after they had been legalized by the competent authority, be executed in France (e).

DCCCCXXXII. It seems a clear proposition of reason and Law that the foreign judgment when recognized must be interpreted and considered, as to its effects, according to the Law of the state in which it was pronounced; Savigny and Fœlix are in complete accordance upon this not unimportant point (f).

DCCCCXXXIII. In order to understand the reasoning of foreign jurists on this subject, it is necessary to bear in mind the distinction between two effects ascribable to a foreign judgment.

i. It may be pleaded as an exceptio rei judicatæ, or, as it is said in England, a plea in bar.

ii. It may be given effect to and executed in the same manner as a domestic judgment (g).

DCCCCXXXIV. The great majority of states (h) give

(d) July 18, 1828, [later treaty June 15, 1863; Décret, Oct. 19, 1869. Roger et Sorel, Lois Usuelles, edit. 1888, p. 1120.]

(e) Falix, s. 321, note a.

(f) Savigny, R. R. viii. s. 373, B.

Fœlix, s. 324.

(g) "De tout ce qui précède, il résulte que les jugements étrangers, alors même qu'ils n'ont pas été déclarés exécutoires par un tribunal français, font foi, jusqu'à preuve contraire, des faits qu'ils énoncent ou qu'ils constatent, et qu'ils ont l'autorité de la chose jugée.”— Massé, liv. ii. tit. ii. num. 800 in fine.

See, too, Martens, liv. iii. § 94 : he says, when-1, the tribunal is competent; 2, the foreigner has been duly heard; 3, the cause duly and definitively decided—“ il ne peut point appartenir à une puissance étrangère d'admettre chez elle un second procès sur la même cause, et celui qui l'intenterait peut dans tous les pays être repoussé par exceptio rei judicata que la sentence ait porté contre un sujet né dans le pays, ou contre un domicilié.”

(h) Falix, s. 327, s. 328.

effect to a foreign judgment in all cases in which the following conditions have been fulfilled :—

(i.) The tribunal which pronounced the judgment must have been competent, according to the law of the state to which it belonged, to decide upon the matter adjudicated upon (i).

(ii.) The tribunal must be duly seised or possessed of the subject of its decision. The jurisdiction of it must be properly founded. It is not competent to a tribunal to cite before it a person who belongs neither by birth, nor domicil, nor temporary residence, to the state from which it derives its jurisdiction, unless he have property, or has incurred some obligation within the limits of the state, concerning which there is a litigation before this tribunal ().

(iii.) The foreigner who was a party to the suit must have been fairly heard before the tribunal according to the laws of the state, and on an equality in every respect, including the right of appeal, with a native subject.

(iv.) The tribunal must have decided upon the very subject-matter which it is attempted to litigate upon. It must have decided definitively and either in the last resort (en dernier ressort), or, which is the same thing, without any appeal prosecuted from its decision to the superior courts of the state in which it was pronounced (k).

When these conditions are united, the exceptio rei judicatæ ought to be in all, and is in most, states admitted as a complete bar to a second litigation upon the subject so adjudicated upon.

DCCCCXXXV. To these four conditions some states

Merlin, Rép. Jugement, VI.-VIII.

Bynkershoek de Foro Leg. c. ii. ; Forum Competens, origo et natura, Subjectio duplex-1, rei; 2, personæ.

(i) Felix, ss. 321, 327.

(j) Vallée v. Dumergue, 4 Exchequer Rep. p. 290.

[(k) See on this point a curious case, Re Henderson, Nouvion v. Freeman, L. R. 37 Ch. D. p. 244.]

add another, namely, that of Reciprocity. In them it is absolutely necessary for the validity of the plea exceptio rei judicatæ, in the case of a foreign judgment, that the state whose tribunal has pronounced it should itself admit the validity of the like plea in its own tribunals.

[Reciprocity is demanded by many, if not by the majority, of the continental states, before they will carry into execution the judgment of a foreign tribunal.

In Germany, foreign judgments are recognized, and execution is given, except in the following cases :

i. If the judgment has not yet acquired final legal validity (Rechtskraft) in its own country.

ii. If the recognition or execution would violate some public law of the German Empire.

iii. If the foreign court was, according to German Law, not of competent jurisdiction.

iv. If the defendant is a German debtor and has not been cited either personally in the foreign country, or in German form in German territory.

v. If reciprocity is not guaranteed in the foreign country (1).

In the Austro-Hungarian monarchy reciprocity is an essential condition to the execution of foreign judgments.

Spain will enforce foreign judgments where reciprocity is practised, or there is a treaty on the subject (U).

In Portugal foreign judgments are enforceable by the higher courts, but are subject to examination on the merits and to revision (m).

[(7) German Code of Civil Procedure, §§ 660, 661.

See a decision of the Imperial Court (Entscheidungen des Reichsgericht in Civilsachen, vii. 406) on an English judgment, wherein it was holden that the present practice of English courts with regard to foreign judgments does not constitute such guaranteed reciprocity as is required by the German law. Cited in full in Pigott on Foreign Judgments, chap. xiii. pp. 470 474.

Gillespie's translation of Bar's International Law, Note Z, on §§ 125, 126 (p. 587 of edit. 1883).

(1) See Spanish Code of Civil Procedure, §§ 922-926.

(m) Portuguese Code of Civil Procedure, §§ 39, 1087-1091.]