EC Council Regulation 44/2001 on the Recognition and Enforcement of Judgments often referred to as the Brussels Convention is designed to “facilitate the free movement of judgments” within the European Community “by providing for a simple and rapid enforcement procedure. ” In general Council Regulation 44/2001 provides for the automatic recognition of any civil judgment given in one Member State by all other Member States. In the automatic recognition of what is essentially a foreign judgment it is not necessary for any formal proceedings to be conducted unless the recognition is challenged.
Enforcement of judgments are to be subject to a successful application for a declaration of enforceability and that declaration is entirely up to the substantive law of the Member State in which the declaration is requested. A judgment may not be recognized if it is contrary to the public policy of the member State in which recognition is applied for. If a defendant was not served with notice of the initiating proceedings within a reasonable time to allow for a defence, the judgment will not be recognized.
Likewise if the judgment contradicts a judgment between the same parties rendered in the jurisdiction where recognition is sought it will not be recognized. Likewise if the judgment contradicts a judgment rendered in another Member State or another competent jurisdiction which involves the same action and the same parties the judgment will not be recognised. A judgment is enforceable once it has been declared enforceable. Both orders of enforceability and recognition can be appealed.
As a result of Council Regulation (EC) 44/2001 the British Parliament enacted the Civil Jurisdiction and Judgments Order 2001 which amend the Civil Jurisdiction and Judgments Act 1982. At English common law the circumstances in which an English court will recognize and/or enforce a foreign judgment are wider than those of Council Regulation (EC) 44/2001 Articles 33 and 34. Under Articles 33 of the EC Regulation a judgment is recognizable without more once it has been rendered in a Member State.
Unlike article 34 of the EC Regulation 44/2001, English common law provides a more specific approach to the conditions attached to the recognition and enforcement of foreign judgments. By and large, however, the conditions are essentially the same as those provided for under Article 34 of EC Regulation 44/2001. For instance English common law will recognize and enforce a foreign judgment it the judgment is final and for a specific sum and not a penal fine.
Article 34 (2) of the EC Regulation 44/2001will likewise not permit recognition of a default judgment which appears to be consistent with English ideology that the judgment is final and specific. Noticeably absent from the EC Regulation is the requirement that the judgment be for a specific sum or that it is not for a penal fine. The conclusion therefore is that EC Regulation permits the recognition and enforcement of foreign judgments if the judgment is not for a specific sum and is for a penal fine.
At English Common Law the English Courts will not recognize or enforce a judgment if it was obtained by fraudulent means or by misrepresentation. While the EC Regulation 44/2001 is silent on fraud and misrepresentation it can be assumed that the mere fact that the recognition/enforcement of a judgment can be challenged by way of appeal leaves open the possibility that it can be challenged on the ground that the judgment was obtained by fraud or misrepresentation.
However, Article 36 of EC Regulation 44/2001 makes it difficult to raise the issue of fraud or misrepresentation because it would require some measure of review of the judgment. Article 36 provides that: “Under no circumstances may a foreign judgment be reviewed as to its substance. ” Under English Common Law a foreign judgment may not be enforced or recognised if it is contrary to the principles of natural justice of public policy in England. This proviso is in part virtually identical to Article 34(1) of Council Regulation (EC) 44/2001 which provides that a judgment will not be recognised if it is:
“… manifestly contrary to public policy in the Member State in which recognition is sought. ” Article 34 which provide the list of circumstances in which a foreign judgment will not be recognized does not mention the rules of natural justice. Moreover, there is nothing in the language of Article 34 that could be interpreted as guarding against the recognition and enforcement of judgments that are contrary to the principles of natural justice.
However, it may be inferred that such grounds exist by virtue of the European Convention on Human Rights which are applicable to all Member States. Again English courts required that the foreign judgment was rendered by a court that had jurisdiction to determine the matter before it will recognise or enforce a foreign judgment. Article 35 (3) of Regulation 44/2001 provides that: “… the jurisdiction of the Member Sate of origin may not be reviewed.
The test of public policy referred to in point 1 of Article 34 may not be applied to the rules relating to jurisdiction. ” In other words unlike English Common Law, under Regulation 44/2001 it is impossible to challenge the jurisdiction of a Member State from which the judgment originates. When one considers the grounds upon which a foreign court can assume jurisdiction over a matter according to English Common Law, the position taken by Regulation 44/2001 is not unreasonable.
According to the Court of Appeal in Adams v Cape Industries Plc  CH 433 a court will have jurisdiction over a matter if either of the parties have a presence, regardless of how fleeting, in the court rendering the judgment. The spirit and intent of the Treaty Establishing the European Community is to allow for the free movement of goods and people. In keeping with the open market mandate, Council Regulation (EC) 44/2001 has as its goal the free movement of judgments as a facilitator of free enterprise in a free and open European market.
The opening paragraph of EC Regulation 44/2001 provides as follows: “The Community has set itself the objective of maintaining and developing an area of freedom, security and justice, in which the free movement of persons is ensured. In order to establish progressively such an area, the Community should adopt, amongst other things, the measures relating to judicial cooperation in civil matters which are necessary for the sound operation of the internal market. ”
It therefore follows that a judgment rendered in one Member State should be capable of recognition and enforcement in another Member State. At English Common Law the judiciary subscribes to the idealogy that a judgment obtained by lawful means should generally be enforceable outside of the jurisdiction in which it was obtained. According to Blackburn J in Schibsby v Westenolz (1870), English courts operate on principle. Once a judgment is entered against a defendant by a “court of competent jurisdiction” imposing upon him or her an “obligation…
to pay” a particular sum, English courts are bound to enforce the judgment. In Panos Eliades Panix Promotions Ltd et al v Lennox Lewis  EWCA Civ 1758, the Court of Appeal ruled that once a foreign judgment was obtained in conformity with the English conflict of law rules, unless the judgment could be impeached on the grounds of fraud, public policy or natural justice infringements, the judgment was enforceable at Common Law.
In the final analysis the enforcement and recognition of foreign judgments under Council Regulation 44/2001 and at English Common Law are no different in principle. Under English Common Law conflict of law rules require that the court issuing the judgment have jurisdiction over the matter in order for the judgment to be recognized and enforced in England. Under Council Regulation 44/2001 recognition and enforcement of EC judgments are confined to EC Member States, a collection of States already subject to the jurisdiction of the European Court.
It therefore follows that the enforcement of judgments in England at Common Law is in principle no different from the enforcement ambit under Council Regulation 44/2001. While the exceptions are different in that English Common Law is far more specific, both regimes recognize that jurisdiction alone is not the only determining factor for the enforcement and recognition of foreign. Fairness to both parties and the interest of justice is the underlying guiding principle.
Adams v Cape Industries Plc  CH 433 Civil Jurisdiction and Judgments Order 2001 Council Regulation (EC) 44/2001 Huntington v. Attrill  AC 150 (CA) Maronier v Larmer  1 All ER 225 (CA) Panos Eliades Panix Promotions Ltd et al v Lennox Lewis  EWCA Civ 1758 (CA) Schibsby v Westenholz (1870) L. R. 6 Q. B. 155 (HL) Treaty Establishing the European Community