If a party obtains a judgment in a country with which the UK has no reciprocal regime (e.g. the USA and most of Canada), it will have to bring a fresh action to enforce its rights here, relying on the common law. It was recently confirmed by the Supreme Court in Rubin v Eurofinance (see Weekly Update 39/12) that at common law a foreign judgment can only be enforced in England if the judgment debtor has been present in, or agreed to submit to the jurisdiction of, the foreign country. Of issue in this case before the Privy Council was whether an agreement to submit must be express, or whether it can also be implied.
There have been conflicting cases on this point and the textbook Dicey, Morris and Collins on the Conflict of Laws originally stated that a submission could be made implicitly, but later editions said that an agreement to submit must be express and could not be implied.
The Privy Council reviewed the relevant authority and found as follows:
- An agreement to submit need not be contractual. The real question is whether the judgment debtor consented in advance to the jurisdiction of the foreign court.
- Agreement or consent can be implied or inferred. There just has to be an actual agreement.
- English law implies terms either as a matter of fact (in order to give effect to the intention of the parties – such terms are not implied lightly, hence the need for necessity or business efficacy) or as a matter of law (and are implied into classes of contractual relationship as a necessary incident to that relationship eg the implication of an obligation of confidentiality in arbitration agreements).
- An agreement to submit to the foreign jurisdiction cannot be implied by eg the fact the contract was made in the foreign country or governed by the law of that country, or was to be performed there.
In the present case, there was no suggestion under the foreign law that there was a term implied by fact or by law that the debtor had consented to the jurisdiction of the foreign court.