¹ De Grey, C.J., in Duchess of Kingston's Case (1776) 2 Sm. L.C. (13th ed., 1929) 644, 651.Google Scholar

For an “international” illustration cf. U.S. (Lehigh Valley R.R. Co.) v. Germany (1933), Report of American Commissioner, p. 63.

² Advising the Lords, in R. v. Saddlers Co. (1863) 10 H.L.C. 404, 431. He referred to Philipson v. Earl of Egremont (1844) 6 Q.B. 587; Ld Bandon v. Becher (1835) 3 CI. & F. 479; Shedden v. Patrick (1854) 1 Macq. Sc. App. 535. (Quoted by Gordon, D.M., “Fraud or New Evidence as Grounds for Actions to set aside Judgments”, (1961) 77 L.Q.R. 358, 363.Google Scholar)

³ “Many loose declarations can be found in the books that common law courts and their suitors could treat fraudulent judgments as void and contest their having legal effect. But these declarations were only true in a very restricted sense.” D. M. Gordon, Ibid.

⁴ As to an alleged distinction between perjury of the party himself and perjury of his witnessess, see Jacobson v. Frachon (1928) 138 L.T. 386, esp. 391 (Ld Hanworth M. R.) and 394 (Atkin L. J.).

⁵ See Ingster v. Langfuss (1959) 13 P.D. 449; Gordon, op. cit., esp. at 376–77, 551–52, 557.

⁶ Gordon, op. cit., p. 377 note 11.

⁷ Gordon, op. cit., p. 533 and note 29.

⁸ Cf. 3 Pomeroy's Equity Jurisprudence (5th ed., 1941), § 919a, p. 605; § 919b, p. 608.

In Ingster v. Langfuss, supra, Mr. Justice Sussmann expresses (at 455) preference for the distinction between “intrinsic” and “extrinsic” fraud over that between fraud against a party and fraud upon the court. He emphasizes, however, that the jurisdiction to review, being equitable, should not be forced into a formula. (The terminology is not entirely satisfactory. Cf. Gordon, op. cit., at 381.)

⁹ De Grey, C. J., in Duchess of Kingston's case, supra, at 651.Google Scholar

¹⁰ I avoid saying that he cannot relitigate “the merits” of the case. That expression might be inaccurate, because the very same issue or issues can be relitigated provided this is not done on the very same evidence.

Atkin L. J.'s dictum, “I am quite clear that it would not be a defence to a foreign judgment to prove that the court proceeded on the evidence of one of the parties and that the evidence could subsequently be shown to have been perjured evidence, that would be attacking the decision on its merits” (Jacobson v. Frachon, supra, at 394) appears to run counter to authority. See infra, esp. nn. 14, 15.

¹¹ Pico v. Cohn, 91 Col. 129, quoted in Hughes v. United States Borax Co. (1923) F. 24, 31, and by Mr. JusticeSussmann, in Ingster v. Langfuss, supra, at 454–55.Google Scholar

¹² Abouloff v. Oppenheimer (1882) 10 Q.B.D. 295. Abouloff stresses, more than once, its concern with a fraudulent party who wishes to “take advantage of his own wrong” (Ld Coleridge C. J., at 300). See also at 301, 303, 304.

While Abouloff turns upon a demurrer, i.e. in effect upon an admitted fraud (see argument of counsel for defendants at 298; and cf. Gordon, op. cit., at 554 and Cheshire, , Private International Law (6th ed., 1961) at 672, note 1)Google Scholar, and is a case in which the defendant waives any estoppel to the benefit of which he may be entitled, this consideration does not appear to restrict the generality of its scope. The case is far from decided on a narrow pleading point. The judgments develop substantive themes. It is emphasized that a foreign judgment creates an obligation (Ld Coleridge C. J., at 300; Brett L. J., at 305). This lays the foundation for application of the proposition that “anything which negatives the existence of that legal obligation, or excuses the defendant from the performance of it, must form a good defence to the action” (per Blackburn, J., in Godard v. Gray (1870) L.R. 6 Q.B. 139, 148–49).Google Scholar

The Lords Justices may have been feeling their way toward the idea that “an obligation” (a right of the kind which arises out of contract or tort) is evidently not of itself a judicial decree and cannot be as fully the source of res judicata as is a local judgment.

Again, it is emphasized that “[w]ith regard to an action brought upon a foreign judgment, the whole doctrine as to fraud is English, and is to be applied in an action purely English” (Brett L. J., at 305). This presumably is intended to convey that, in seeking now to create an obligation under the lex fori, the effect which the fraudulent adjudication might have within the country of origin is not decisive.

See also pp. 206–07, post.

¹³ Vadala v. Lowes (1890) 25 Q.B.D. 310.

¹⁴ Brett, L. J., in Abouloff, supra, at 306.Google Scholar

¹⁵ “If all the facts from which the fraud is to be inferred had been before the foreign court, and that court did not infer fraud from them, and if an English court was called upon to give effect to the judgment obtained by the person who perpetrated the fraud, I should be prepared to hold that the foreign judgment could not be enforced in the English court.” (Baggallay L. J., at 304.) Cf. also Ld Coleridge C. J., at 302–03 and Brett L. J., at 306.

It is perhaps even more striking that the judgment-debtor is allowed to avail himself, for the first time in the enforcement proceedings, of evidence already known to him at the time of the foreign action and which he had not then used: Syal v. Heyward [1948] 2 K.B. 443, esp. 448, 449.

¹⁶ In Ingster v. Langfuss, supra, Mr. Justice Sussmann says, however, obiter (at 456), with reference to Syal v. Heyward, supra: “I am not now expressing any opinion on the other questions there dealt with, such as the question whether there is or is not in this respect a difference between the enforcement of a foreign judgment and that of a local one…”.

¹⁷ A foreign judgment is anomalous in that it is the successful plaintiff, the judgment-creditor, who initiates the second suit. Where, in a domestic judgment, the unsuccesful party sues for a review, his opponent (the successful party) has an opportunity to preclude a substantive re-examination by applying to stay the new proceedings as being vexatious or frivolous or as raising matter covered by res judicata.

¹⁸ In American law it should be borne in mind that when the foreign judgment is that of a sister state, fraud must be allowed such effect as it has in the state of rendition—not so with a non-American judgment. In the latter case it is arguable that a foreign judgment could only be impeached for “extrinsic” fraud. (See Reese, Willis L. M., “The Status in this Country of Judgments Rendered Abroad”, (1950) 50 Col. L. Rev. 783 at 793, 794.CrossRefGoogle Scholar) But the opposite view also finds support. Thus Ehrenzweig, , A Treatise on the Conflict of Laws (1962) p. 199Google Scholar, says: “…the defense [of fraud in procurement] should perhaps not be limited to extrinsic fraud, as it is in the case of sister state judgments. And there may be good reason for permitting the re-litigation of an assertion of fraud even where this assertion has been passed upon by the rendering court of a foreign nation.”

¹⁹ Cf. Courts Law, 1957, ss. 18(1), 28(3).

²⁰ See Law on Recognition and Enforcement of Foreign Judgments, 1958, ss. 3(1), 3(4), 6(3). Recognition, as distinct from enforcement, may perhaps be extended in accordance with the “paradoxical” doctrine described hereafter: see s. 11 of the Law.

²¹ Under the Foreign Judgments (Reciprocal Enforcement) Act, 1933 (s. 2(1) proviso (b) )—a judgment “should not be registered if at the date of the application…it could not be enforced by execution in the country of the original court”. It appears, however, that such a judgment is recognizable in England: ss. 8 (2) (a) (iii), 8 (3).

There were also some common-law voices in this direction. See, for example, Plummer v. Woodburne (1825) 4 B. & C. 625; 4 Phillimore, , Commentaries upon International Law (3rd ed., 1889) 579.Google Scholar

In Godard v. Gray (1870) L.R. 6 Q.B. 139, 149, Blackburn J. said: “It must be open…to the defendant to show that the Court which pronounced the judgment had not jurisdiction to pronounce it,…because they exceeded the jurisdiction given to them by the foreign law…”. (Italics added.) And see Castrique v. Imrie (1870) L.R. 4 H.L. 414, 429, 430; Bater v. Bater [1906] P. 209; Papadopoulos v. Papadopoulos [1930] P. 55, 65–66, 69.

Furthermore, it may perhaps be argued that an absolutely null foreign judgment is not “final” in the country in which it is pronounced (because it is not there treated as res judicata—such treatment being the test of “finality”) and for this reason is not worthy of recognition. Cf. Nouvion v. Freeman (1889) 15 App. Cas. 1; Re Macartney [1921] 1 Ch. 522.

²² Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters (The Hague, April 1966), Art. 4: “In addition, to be enforceable in the State addressed, a decision must be enforceable in the State of origin.”

²³ Reese, op. cit.

²⁴ Nussbaum, , Principles of Private International Law (1943) p. 243.Google Scholar

²⁵ Leflar, , The Law of Conflict of Laws (1959), p. 144.Google Scholar

²⁶ Ehrenzweig, op. cit., p. 17 note 9. And in this case, as he mentions, an extranational judgment would be shown “greater ‘kindness’“than would the judgment of a sister state.

²⁷ In an inter-American setting, regard should be had to the following considerations: (a) the Constitution does not require that a judgment be allowed more faith and credit than it enjoys in the state of rendition; (b) (at least in some circumstances) recognition of a void judgment may be violative of due process.

See Restatement of the Law of Conflict of Laws (1934) § 429(d); Thompson v. Whitman (1874) 18 Wall. 457.

²⁸ Assuming we are content to start with Vanquelin v. Bouard (1863) 15 C.B. (N.S.) 341.

²⁹ i.e. a country to which the judgment-debtor was linked by some “minimal contact” which the forum considers sufficient, such as that he resided in that country or had consented in advance to litigate in it.

³⁰ Lindley, M. R., in Pemberton v. Hughes [1899] 1 Ch. 781, 791.Google Scholar

³¹ Lindley, M. R., ubi supra at 792Google Scholar: “The defendants' contention is based upon the assumption that an irregularity in procedure of a foreign court…is a matter which the courts of this country are bound to recognize if such irregularity involves nullity of sentence. No authority can be found for any such proposition…”. (Italics added.)

³² Merker v. Merker [1962] 3 All E.R. 928, 936.

³³ Abouloff v. Oppenheimer, supra, at 305, 306.

³⁴ Vadala v. Lawes, supra, at 316.

In Syal v. Heyward, supra, Cohen L. J., in delivering the judgment of the Court of Appeal, said (at 447) with reference to the above passage: “It is unnecessary for us on this appeal to consider how far those observations go.”

³⁵ See Abouloff v. Oppenheimer, supra. Ld Coleridge C. J. said (at 302): “The English courts are not either re-trying or even re-discussing any question which was or could have been submitted to the determination of the Russian courts.” Brett L. J. said (at 307): “…the issue in the Russian courts would be whether the defendants were wrongfully detaining the goods of the plaintiff…but in the present action…the only issue is whether the judgment of the Russian courts was obtained by the fraud of the plaintiff….The issues in the two actions are not the same; and therefore the defendants are not estopped from setting up in this action the same evidence that was adduced at the trial of the action in the Russian courts.”

³⁶ Vadala v. Lawes, supra, at 317.

³⁷ Does the epithet “technical” do justice to a legitimate plea of estoppel by res judicata?

³⁸ Read, Recognition and Enforcement of Foreign Judgments (1938) p. 279.

³⁹ Cf. Vanquelin v. Bouard, supra: Erie C. J., at 368; Keating J., at 374.

The general proposition is that at least courts of general jurisdiction are clothed by the legislature with authority to determine the limits of their own competence, so that a decision upholding competence has the force of res judicata. See Rubinsky v. The Competent Authority (1958) 12 P.D. 1668 (Agranat J.).

⁴⁰ The explanations are evidently interconnected.

⁴¹ Cf. Pemberton v. Hughes, supra: Lindley M. R., at 790 and esp. Rigby L. J. at 794; Vanquelin v. Bouard, supra, per Keating J., at 374. Cf. Batiffol, , Droit International Privé (3rd ed., 1959), p. 846.Google Scholar

⁴² Lindley, M. R., in Pemberton v. Hughes, supra, at 790.Google Scholar

⁴³ Cf. Batiffol, , Aspects Philosophiques du Droit International Privé (1956), p. 115.Google Scholar Batiffol distinguishes, in the application of foreign law, between the “imperative” and the “rational” aspects.

⁴⁴ See n. 12, above.

⁴⁵ Supra. Counsel's argument is at 787.

⁴⁶ Ibid.

⁴⁷ p. 201, above.

⁴⁸ See, for example, Brandwein v. Director of Central Prison (1956) 10 P.D. 617, 630–36 (Agranat J.).

⁴⁹ n. 22, above.