The central question in Rubin v Eurofinance SA,  UKSC 46, was whether the English courts ought to recognise the order or judgment of a foreign court to set aside transactions determined to be preferential or to have been at an undervalue, in circumstances where the defendant in the foreign proceedings was not present in the foreign jurisdiction or had not voluntarily submitted to its courts. By a majority of 4 to 1, the United Kingdom Supreme Court has concluded that the traditional requirements at common law and under UK legislation on the recognition of foreign judgments – which would allow enforcement of a foreign judgment only where the defendant is present in or has attorned to the foreign jurisdiction – should not be relaxed in order to facilitate international insolvencies.
The majority of the court expressly declined to follow the broader rule which has been adopted in Canada, which permits enforcement where there is a ‘real and substantial connection’ between the defendant and the foreign jurisdiction, whether or not the defendant was present there when proceedings were instituted or voluntarily submitted to its jurisdiction. Lord Collins was blunt: except in matrimonial proceedings, ‘reciprocity has not played a part in the recognition and enforcement of foreign judgments at common law’, and to go the Canadian route would be ‘a radical departure from substantially settled law’. Where this leaves us is that a Canadian court could enforce the insolvency order of an English court (which is what happened in Re Cavell Insurance Co (2006) OR (3d) 500 (CA), cited in the UKSC judgment), but an English court would not be able to enforce a Canadian one. So much for comity?