Lloyd's Maritime and Commercial Law Quarterly
RECOGNITION OF FOREIGN JUDGMENTS AND CROSS-BORDER INSOLVENCIES
Adeline Chong*
In the joined appeals of Rubin v Eurofinance and New Cap Reinsurance v Grant, the Supreme Court held that, first, the traditional rules on recognition and enforcement of foreign judgments applied to judgments in insolvency proceedings and, secondly, the act of lodging proof in foreign insolvency proceedings by a creditor meant that he had submitted to the jurisdiction of the supervising court. This article considers these decisions and suggests that the ruling in Rubin is sound, while that in New Cap is unfounded. Further, assuming instead that the law is ripe for reform, this article considers what might be appropriate recognition and enforcement rules for judgments in insolvency proceedings.
A. Introduction
Dicey, Morris, and Collins’ Rule 431 identifies four situations in which a foreign judgment in personam is entitled to recognition and enforcement at common law: where the judgment debtor (i) was present in the foreign country at the time the proceedings were instituted; (ii) was a claimant or counterclaimed in the foreign proceedings; (iii) submitted to the jurisdiction of the foreign court by voluntarily appearing in the proceedings; or (iv) agreed, prior to the commencement of the proceedings, to submit to the jurisdiction of that court in respect of the subject matter of the proceedings. These four alternative criteria give the foreign court international jurisdiction in our eyes. The issue which arose in
* Associate Professor of Law, Singapore Management University. I have benefited from discussions with Professor Adrian Briggs on the issues canvassed in this article; he also commented on a previous draft. I would like to record my thanks to him, and to the anonymous referee. All errors remain my own. I gratefully acknowledge funding support from the Office of Research, Singapore Management University. All websites were accessed on 20 Jan 2014.
The following abbreviations are used:
Brussels I Regulation: Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters [2001] OJ L12/1;
Brussels I Regulation (Recast): Regulation (EU) No 1215/2012 of 12 December 2012 [2012] OJ L 351/1
(which will apply from 10 Jan 2015);
Dicey, Morris and Collins: L Collins (gen. ed.), Dicey, Morris and Collins: The Conflict of Laws, 15th edn (Sweet & Maxwell, London, 2012);
Insolvency Regulation: Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings [2000] OJ L160/1;
UNICTRAL Model Law: UNICTRAL Model Law on Cross-Border Insolvency (1997).
1. Dicey, Morris and Collins, [14R.054]
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