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A CONFLICT OF COMITY IN THE ENFORCEMENT OF JUDGMENTS

Lloyd's Maritime and Commercial Law Quarterly

A CONFLICT OF COMITY IN THE ENFORCEMENT OF JUDGMENTS

Adrian Briggs*

SAS Institute v World Programming
Courts which have given judgment are rarely gruntled to hear that the judgment debtor has failed to pay; they are usually willing to make post-judgment orders to help the judgment creditor. It has always been so; but today there is a palpable sense that the power to grant post-judgment relief is part of what makes a forum attractive in an increasingly competitive world. Of course, where a foreign judgment qualifies for judicial recognition and enforcement in a particular place, measures of enforcement can be obtained directly from the courts of that state. But where the judgment does not or will not meet the requirements for enforcement as a foreign judgment, the original court, and the judgment creditor, will be left to act alone. The question which has arisen most acutely, and which will surely arise again soon, is whether the courts of any other country may interfere with enforcement orders made by the original court: that is to say, restraining, by injunction if need be, the implementation of the original court’s enforcement orders. To ask it another way: is there a right to be not enforced against; and, if there is, how does it arise? The answer is: it all depends.
The parties in SAS Institute Inc v World Programming Ltd 1 have been litigating for a decade: the bare essentials are as follows. SAS sued WPL: in England,2 where it was unsuccessful, and, at about the same time, in North Carolina, where it succeeded on a claim which bore more than a passing resemblance to the one which failed in England.3 SAS sued to enforce the North Carolina judgment in England, but failed on grounds which included res judicata and abuse of process,4 public policy5 and the fact that its judgment was for multiple damages:6 indeed, it was ordered to repay some of the sums it had obtained by enforcing the judgment overseas.7 SAS then tried something different.

2

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