Anwar et al v. Fairfield Greenwich Limited et al
Filing
1048
DECLARATION of Professor Jonathan Harris in Support re: #775 FIRST MOTION to Certify Class.. Document filed by AXA Private Management, Harel Insurance Company Ltd., Harel Insurance Company, Ltd., Pacific West Health Medical Center Inc. Employees Retirement Trust(On behalf of Itself), Pacific West Health Medical Center Inc. Employees Retirement Trust(on Behalf of All Others Similarly Situated), Pacific West Health Medical Center, Inc. Employee's Retirement Trust, Securities & Investment Company Bahrain, St. Stephen's School. (Attachments: #1 Exhibit 1 through 3, #2 Exhibit 4 Part 1, #3 Exhibit 4 Part 2, #4 Exhibit 5, #5 Exhibit 6, #6 Exhibit 7 and 8, #7 Exhibit 9 through 11, #8 Exhibit 12 through 14, #9 Exhibit 15 through 21, #10 Exhibit 22 and 23, #11 Exhibit 24, #12 Exhibit 25 through 27, #13 Exhibit 28 through 32, #14 Exhibit 33, #15 Exhibit 34, #16 Exhibit 35, #17 Exhibit 36, #18 Exhibit 37 through 39, #19 Exhibit 40, #20 Exhibit 41 Part 1, #21 Exhibit 41 Part 2, #22 Exhibit 42 through 51, #23 Exhibit 52 through 65, #24 Exhibit 66 through 70, #25 Exhibit 71 through 74, #26 Exhibit 75 through 77, #27 Exhibit 78 through 81, #28 Exhibit 82, #29 Exhibit 83 Part 1, #30 Exhibit 83 Part 2, #31 Exhibit 84 and 85, #32 Exhibit 86 Part 1, #33 Exhibit 86 Part 2, #34 Exhibit 87 through 90, #35 Exhibit 91 Part 1, #36 Exhibit 91 Part 2, #37 Exhibit 92 through 103, #38 Exhibit 104 through 106, #39 Exhibit 107 and 108, #40 Exhibit 109 through 113)(Barrett, David)
EXHIBIT 9
I
I
THE
ENGLISH
REPORTS
VOLUME
EXCHEQUER
eLIII
DIVISION
IX
~i
CONTAINING
MEESON
W. GREEN
STEVENS
AND
WELSBY,
TO
16
& SON, LIMITED, EDINBURGH
& SONS,
LIMITED,
LONDON
LAW
PUBLISHERS
1915
l
]3
, lUi
262
WILLIAMS
V. JONES
express and implied contracts. Where the right of action is grounded upon a specific
distinct contract, requiring the assent of both parties, and one of them is incapable of
assenting, in such a case there can be no binding contract; but in many cases the law '
does not require an actual agreement between the parties, but implies a contract from
the circumstances; in fact, the law itself makes the contract for the parties. Thus,
in actions for money had and received to the plaintiff's use, or money paid by him to
the defendant's use, the action may lie against the defendant, even thongh he may
have protested against such a contract. So, a tradesman who supplies a drunken
man with necessaries may recover the price of them if the party keeps them when he
becomes sober, although a count for goods bargained and sold would fail. In this '
case, the defendant is still liable for the consideration for his indorsement, although
the indorsement itself can give the plaintiff no title.
'
PARKE, B. With respect to the authorities cited for the plaintiff, in which courts
of equity have refused to relieve parties against contracts made by them when in
a state of intoxication, those authorities may possibly have reference to a case of "
partial drunkenness. But where the party, when he enters into the contract, is in '
such a state of drunkenness as not to know what he is doing, and particularly when ,
it appears that this was known to the other party, the contract is void altogether, and:
he cannot be compelled to perform it. A person who takes an obligation from another
under such circumstances is guilty of actual fraud. The modern decisions have
qualified the old doctrine, that a man shall not be allowed to allege his own lunacy or
intoxication; and total drunkenness is now held to be a defence: Yates v, Boea (2 Stra. ;
1104), Cole v. Robins (Bull. N. P. 172), Cooke v, Clayworth. The [627] averment in ,
this plea, that the defendant indorsed the bill, means merely that he wrote his name'.
upon it; then the plea goes on to state, as matter of avoidance, that the act of so'
writing his name is not obligatory on him, because he was in fact non compos mentis•
when he did it. The plaintiff contends, that this defence might be given in evidence
,
under a plea denying the indorsement; but that is not so; because we have already
held, that indorsement means, in the first instance, the mere act of writing the name
upon the bill.
ALDE~SON, A party, even in a state of complete drunkenness, may be liablein.
B.
cases where the contract is necessary for his preservation-as in the case of a supply
of actual necessaries; so also, where he keeps the goods when he is sober. The'
ground of his liability there is, that an implied contract to pay for the goods arises:
from his conduct when he is sober; although I doubt much whether, if he repudiated
the contract when sober, any action could be maintained upon it. Here the actionis
necessarily broughtupon the contract itself; and when it is shewn that the contract
by indorsement was made when the defendant was in such a state of drunkenness th~,
he did not know what he was doing, and especially when it appears that the plaintif:
knew it, I cannot doubt that the contract, is void altogether. It is just the same,
as if the defendant had written his name upon the bill in his sleep, in a state of
somnam bulism.
Leave to the plaintiff to amend, on payment of costs, by
demurrer and taking issue, otherwise
Judgment for the defendant.
[628] WILLIAMS JONES. Jan. 22, 1845.-An action of debt lies upon a ju
V.
ment of a county court. And the declaration need not state that the defenda
resided within the jurisdiction of the county court, or was liable to be summon:
to that court for the debt; it is enough to state that the plaintiff levied his plai,
in the county court for a cause of action arising within its jurisdiction.
[So C. 2 D. & L. 680; 14 L. J. Ex. 145. Applied, Godard v. Gray, 1870, L.
6 Q. B. 148; Schibsby V. Westenholtz, ibid. 159; Harris V. Taylor, [1915] 2 K.
591. Dictum considered, Nououm v, Freeman, 1889, 15 A. C. 8; Emanuel V. S
[1908] 1 K. B. 310. Referred to, Rousillon v, Rousillon, 1880, 14 Ch. D. 37
Abouloff v. Oppenheimer, 1882, 10 Q. B. D. 300.J
'
Debt on a judgment of the county court of Carnarvonshire. The declarati
stated, that the plaintiff, on &c., at a county court of the sheriff of the county;,
Carnarvon, to wit, John Price, Esq., then sheriff of the said county, held at ,
cou
of '
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atte
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ation is
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,
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lSS
M.
&:
W.
629.
WILLIAMS
263
V. JON"~S
county hall in Oarnarvon, in and for the said county, and within the jurisdiction
of the said court, before D. E. D. and J. R, the free suitors of the said court,
came, according to the custom of the said court, by Wm. Lloyd Roberts, his
attorney, and then and there, according to the custom of the said court, levied his
plaint against the defendant in a plea of debt, for 11. 19s. lId., for a certain cause of
action arising to the plaintiff within the jurisdiction of the said court; and such
proceedings were thereupon had, that afterwards, to wit, on &c., at the county court,
to wit, the sixth county court of the said sheriff, held in and for the said county, and
[ within the jurisdiction of the said court, before D. E. D. and J. R., the free suitors of
the said court, the plaintiff, by the consideration and judgment of the said court,
recovered against the defendant £1 for his said debt, and also 101. 4s. 4d., which in
and by the said court, and before the said last-mentioned suitors, were then adjudged
to the plaintiff, with his assent, for his damages, &c.
Special demurrer, assigning for causes (inter alia), that in law no action lies upon
the judgment of an inferior court not of record; and that it is not stated in the
declaration that the defendant was a resident within the said county of Carnarvon,
or within the jurisdiction of the said court, or that he had been duly summoned to
the said Oourt. Joinder in demurrer.
Pearson, in support of the demurrer.
First, an action is not maintainable upon
the judgment of an inferior court not of record. An action will no doubt lie upon
the [629] decree of a colonial court: Henley v. Soper (8 B. & C. 16; 2 Man. & Ry.
, 153); or upon an Irish judgment: Harris v. Saunders (4 B. & O. 411); but it never
has been expressly decided that any action, still less that an action of debt, will lie
upon the judgment of an inferior court not of record. In Emerson v. Lashley (2
H. Bl. 248), it was held that an action of assumpsit would not lie in a superior COUl't,
to recover costs ordered to be paid by arule of an inferior court, in the course of a
suit there. But even if assumpsit would be maintainable, it; is submitted that debt
is not. The law on this subject is stated in Oom. Dig., "Debt," (A. 2), and 3 Bla,
Comm. 160. The principle is, that in the case of a court of record, the judgment
becomes a debt of record, on which a new action may be brought; but it is otherwise
in the case of a court which has no records.
, Secondly, the declaration in this case is defective, for not stating that the defendant was resident within the county of Oarnarvon, or that he was liable to be
. summoned to the county court for this debt. In the case of an inferior court, the
" jurisdiction must clearly appear on the face of the record, and none will be intended:
. Com. Dig., "Oounty," (C, 8), Sollers V. Lawrence (Willes, 416), Ladbroke V. James
: (id. 199). Thus in an action of debt upon the judgment of the London Oourt of Con;;,. cience, it was held that it must be proved (and if necessary to be proved, it must
s
';also be alleged), that the defendant, at the time of the judgment obtained, resided
, within the jurisdiction of the court: Coore v. Keneday (3 Esp. 280). [Pollock, O. B.
". In the case of Welsh v. T1'oyte (2 H. Bl. 29), it is said by Rooke, Serjt., arguendo
:, that" it was a rule of law that no suit Could be brought in a county court, unless
i both the defendants
resided, and the subject matter arose, within its jurisdic.'tion," for which he refers to the 2nd Inst. 229. In Prdchard. V. McGill (2 M. & W.
:':380), however, [630] it was determined that it is not necessary, in order to give a
county court jurisdiction, that the plaintiff should reside within the county.]
In
~B1'iscoe Stephens (2 Bing., 213; 9 Moo. 413), the defendant pleaded to a declaration
V.
"in indebitatus assumpsit, a verdict and judgment previously given in his favour, and
, still in force, in an inferior court at Ludlow, for the same cause of action, without
'sbewing that the cause of action arose within the jurisdiction of that court. The
.'plaintiff replied, that, at the time he levied his plaint in the inferior court, and from
,thence till judgment was obtained in that plaint, both himself and the-plaintiff were
residing out of the jurisdiction of that court, and that the cause of action arose out of
.'~ jurisdiction; and on special demurrer, the replication was held good. He referred
also to Read V. Pope (1 O. M. & R. 302), Rider V. Edwa1"ds (3 Man. & Gr. 202;
';3 Scott, N. R. 456), Moravia V. Sloper (Willes, 30), and Oa1pente1" V. Thornton (3 B .
.. 'Ald. 52),
'~ Welsby, contra. First, an action of debt is maintainable on every contract in fact
_ in law; and a contract or obligation in law arises out of the judgment of a court of
mpetent jurisdiction between the same parties, whether it be a superior or an
• erial' court, and whether a court of record or not of record; the only difference
f
264
WILLIAMS
'0. JONES
13 M. &; W. 631.
being in the mode of proof of the judgment. There certainly is no direct affirmative
authority that debt will lie on the judgment of a county court, but the proposition
has been taken for granted in many cases, where other objections have been taken,
but the objection that an action of debt could not be sustained has never been
adverted to. Thus, in Herbert v, Cook (Willes, 37, n.), which was an action of debt on
a judgment in a hundred court, the declaration stating that the plaintiff levied his
plaint in the court below, for a cause of action arising within the jurisdiction of that
court, and that such [631] proceedings were thereupon had, that the plaintiff recovered
&c.; the defendant pleaded, that the cause of action arose at .a place out of the
jurisdiction of that court; and the Court, on demurrer, gave judgment for the defendant on the sufficiency of the plea. So, in Read v. Pope, the declaration, in debt on a
judgment of a county court, was demurred to generally, and held bad, for not alleging
that the cause of action arose within its jurisdiction; but the obvious objection that
no action lay was never thought of. A similar observation applies to Jones v. JO'fIR,S
(5 M. & W. 523), where the ground of demurrer was that the declaration did not
state the names of the suitors. Emerson v. Lashley is no authority to the contrary;
there the action was in assumpsit, not in debt, and was brought to recover interlocutory costs given in the court below, and which was a court of record. In
Corrigal v. The London and Blackwall Railway Co.(5 Man. & Gr. 241; 6 Scott, N. R.
241), where it was objected, amongst other things, that an action of debt would not
lie upon an inquisition taken before the sheriff, under a railway act, the Court held
the action maintainable.
Secondly, the declaration, which states that the cause of action arose within the
jurisdiction of the county court, is sufficient in form. In the note (2) to Pitt v. Knight
(1 Saund. 91 a.), where the cases are collected, it is said expressly, that in pleading
the judgments even of inferior courts, whether of record or not, it is now held not
to be necessary to set out the cause of action, or that the defendant became indebted
within the jurisdiction of the court ; but it is sufficient to say, that at a certain court
&c., held at &c., A. B. levied his plaint against C. D., in a certain plea of trespass on
the case, or debt, &c., for a cause of action arising within the jurisdiction of the
court, and thereupon such proceedings were had, that afterwards, &c., it was considered by the said Court, that the said A. B. should recover against the [632] said
C. D.," &c. This was expressly decided in Rowland v. Veale (Cowp. 20), as to a plea
of justification by process out of an inferior court; which is recognised by Buller, J.,
in Belk v. Broadbent (3 T.·R. 185). Coote v. Keneday is quite distinguishable, because
that was the case of a court established by statute (39 & 40 Geo. 3, c. civ.), which'
expressly limits its jurisdiction to cases where the defendant is liable to be summoned.
to that court. But the county court is an ancient common law court, of the extent.
of whose jurisdiction the superior courts will take notice. If the defendant be not:
in fact resident within the jurisdiction, or has not been served with the process, that
may form a ground, as matter of practice, for setting aside the proceedings against.:
him; but, in declaring upon the judgment, it is enough to state in general terms,.•
that the cause of action arose within the jurisdiction, and any objection as to the nonresidence of the party should come by way of defence from the other side: Herber'
v. Coole. In Briscoe v. Stephens, the plea omitted to state that the cause of action did
arise within the jurisdiction, and the replication also shewed that it did not.
.
Pearson, in reply. The general objection was not taken in Herbert v. Cook, or the.
other cases cited for the same purpose. [Alderson, B. The force of Mr. Welsby's
argument is merely this, that those were actions in which other objections were made,
while this, which lay on the very surface, might have been made, and was not.]
Pritchard v. M'Gill applies only to the residence of the plaintiff and not of th.
defendant.
'
POLLOCK, B. It appea.rs to me that our judgment must be for the plaintift';
C.
There are two questions for our consideration: first, whether an action of debt '.
lie upon [633] the judgment of an inferior court not of record; secondly, wbethe
enough is stated on this declaration to shew that the court below had jurisdiction;
As to the first point, Mr. Pearson appeared almost to concede that assumpsit woul.
lie; and if so, debt will certainly lie also. And there are cases where actions of deb·
have been brought, as, for instance, Coore v. Keneday, and Herbert v. Cook, where n.·
objection of this kind was taken, but in which it cannot be doubted that it woul
have been taken if it could have been supported. It is plain that, on principle, ,
II
WATSON
~mative.
iosition .
taken,
r been.
lebt on ;
ied his of that
loveroo
of the
defen- .
bt on a
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'. Jones
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Itrary;
. inter.
d. In
N.R.
ild not
rt held
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Knight
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lass on
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o said
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ler, J.,
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e nonlerbert
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or the
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not.]
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It will
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ction.
iVould
debt
re no
vould
Ie, an
V. BOYES
~65
:; action of debt will lie upon the judgment of a competent court, whether of record
.; or not of record; where a party bas recovered a sum of money by the judgment of
, a court of competent jurisdiction, a debt is created, which may be enforced by an
: action of debt in the superior courts. Secondly, as to the sheriff's want of authority
, to try the case, on the ground of its not being averred that the defendant resided
within the jurisdiction, or was summoned to appear, I think such averments were not
necessary; if the facts were so, the allegations to that effect ought to come from the
defendant by way of defence.
•.
PARKE,B. The principle on which this action is founded is, that, where a court
'of competent jurisdiction has adjudicated a certain sum to be due from one person to
another, a legal obligation arises to pay that sum, on which an action of debt to enforce
the judgment may be maintained.
It is in this way that the judgments of. foreign
and colonial courts are supported and enforced, and the same rule applies to inferior
courts in this country, and applies equally whether they be courts of record or not .
That the present objection has not been taken in similar cases heretofore may not
be a very strong argument, and yet is entitled to considerable weight, when it is
considered how obvious the objection is. These observa-[634}tions
apply to the
nature of the remedy generally, and not to the mode of enforcing it. Then, secondly,
, the precedents shew, that it is not necessary to state more than that the cause of
action arose within the jurisdiction of the county court; and that it need not be
averred in the declaration that the defendant resided within the limits of the jurisdiction. Where applications are made to the superior courts to stay the proceedings,
on the ground that the action ought to have been brought in. the county court, it
must be shewn that the defendant is amenable to the county court, and therefore it
must be stated, on such an application, that he is resident within its jurisdiction.
But I think that, in declaring upon the judgment, more need not be stated than that
the cause of action arose witbin the jurisdiction of the court. With regard to the
position of Rooke, Serjt., in Welsh v. T1"oyte, that no suit could be brought in a county
court, unless the defendant resided within its jurisdiction, it is enough to say that
that position is not borne out by the authority in the 2 Inst. 229, which is cited in
support of it.
ALDERSON, . I am of the same opinion. The principle, that an action of debt
B
may be brought upon a judgment of an inferior court, applies equally to courts of
record and not of record, and cannot be limited by the consideration, that, in the
case of a judgment of a court not of record, you are thereby giving a more extensive
remedy against the defendant, because that would apply to both descriptions of
,judgments.
There is no foundation for a distinction between the cases. 'I'he true
.. rinciple is, that where a court of competent jurisdiction adjudges a sum of money
p
. to be paid, an obligation to pay it is created thereby, and an action of debt may
~therefore be brought upon such judgment.
This is the principle on which actions
: on foreign judgments are supported.
As to the [635] second point, it is quite
. sufficient, according to the authorities, to allege, as has been done here, that the
. cause of action arose within the jurisdiction of the county court; the particulars of
-the extent of its jurisdiction need not be stated.
Where it is a court which has been
; created by statute or charter, it may be otherwise; but the county court is an ancient
j jurisdiction, known to the common law. It is not necessary, therefore, to allege
"that the defendant was resident within its jurisdiction; the defendant may shew that
; by plea, if the fact were so. If an action were brought upon the judgment of a
-:fpreigncourt, the defendant would be bound to allege, that he did not reside within
:the jurisdiction of the court. \
Judgment for the plaintiff .
,.:~ .
i:WATSON
AND OTHERS, Assignees of Fawcett, a Bankrupt v. BOYES AND ANOTHER.
:
Jan. 23, 1845.-In
trover, the issue on the plea of not guilty having been found
'.
for the defendant, and three other issues for the plaintiff, the defendant signed
judgment on the issue found for him, and taxed his costs, but without carrying
in the judgment roll; and having obtained the Master's allocatur, the amount
was paid by the plaintiff. About a year afterwards, the plaintiff's attorney applied
to the Master to tax the issues found for him, but the Master declined to do so,
whereupon he obtained a judge's order requiring the defendant's attorney to enter
Ex. Drv, IX.-9*
EXHIBIT 10
v ."
Cheshire and North's
Private International Law
Thirteenth edition
Sir Peter North, CBE, QC, MA, DCl, FBA
Principal of Jesus College, Oxford, formerly Law Commissioner for England
and Wales, Vice-Chancellor, University of Oxford; Honorary Bencher of the
Inner Temple; Membre de I'Institut de Droit International
and
J.J. Fawcett us, PHD
Solicitor, Professor of Law, University of Nottingham
Butterworths
London, Edinburgh, Dublin
1999
514
Part III
Jurisdiction, foreign judgments and awards
The Court of Justice held that, once a judgment which is enforceable under
the Convention has been obtained in one Contracting State, the party who has
obtained the judgment in his favour is prevented from bringing a new action before
a court in another Contracting State for a judgment in the same terms. The Court
came to this conclusion because it foresaw a number of problems that could arise
if bringing a new action was allowed. First, it could involve the courts of another
Contracting State going into the substance of the dispute when this is a matter
for the courts of the Contracting State in which the original judgment was given.P
Second, if a judgment is given in the second Contracting State which conflicts
with that given in the first, it means that the court in the second has failed in its
duty to recognise the first judgment. 14 Third, the lis pendens provisions under the
Convention show the general desire to avoid having two sets of proceedings and
two judgments in respect of the same cause of action." Fourth, allowing a new
action could result in a creditor possessing two orders for enforcement in respect
of the same debt.
On the facts of the case, whilst there were two sets of proceedings there were
not two inconsistent judgments, since the Dutch court recognised the Belgian
judgment. The Court of Justice was therefore reacting more against potential
problems than actual ones and, by forcing the parties to use the enforcement
procedure under the Convention, imposed greater expense upon the parties than
would have been the case if the plaintiff had been allowed to bring fresh
proceedings in the Netherlands.
The effect of the decision in De Wolfis that a judgment given in a Contracting
State which is enforceable under the Convention creates what in English law is
regarded as an estoppel from the moment that it has been given." The facts of
De Wolf only concerned the situation where the estoppel principle prevents the
claimant, having obtained a judgment in his favour, from obtaining another
judgment against the same defendant in new proceedings involving the same cause
of action and subject matter in a different Contracting State. However, this
principle applies equally to prevent a claimant who has lost his action from
obtaining a judgment against the same defendant in new proceedings in a different
Contracting State.'? Where, for the purposes of Article 21, the parties, cause of
action and subject matter are the same, a foreign judgment will be recognised as
binding between all those parties.P
13
14
15
16
17
18
See Art 29 and Art 34, para 3.
See Art 26, discussed supra, pp 488-489.
See Art 21, discussed supra, pp 251-256.
See supra, p 435 et seq and s 34 of the 1982 Act.
Berkeley Administration Inc v McClelland [1995] I L Pr 201, CA.
Ibid at 211 (per DILLON LJ). A foreign judgment which is recognised under Art 26 may also
lead to an issue estoppel, provided that the normal requirements at common law for this
(supra, pp 437-440) are satisfied: Berkeley Administration Inc v McClelland [1996] I L Pr
772 at 787(per Sir Richard SCOITV-C), CA; see also Boss Group Ltd v Boss France SA [1997]
1 WLR 351 at 359; Briggs and Rees, pp 326-328.
Chapter
0)
FOR
(i) Th,
jurisdic
America
The basi
recognir:
Contract
for defer
to natura
the use 0
Contract
Article 4
a French
jurisdicti
against a
recognise
Frome
of iudgrm
is where t
a defend a
State to a
Conventi
Contracti
the defem
these two
Contractu
recognise,
afterthouj
(ii) Arti,
Article 59
(ie a non-:
judgments
where the j
specified it
19 Von Mel
Nadelma
at p 238:
pp 117-1
Trindale
20 Supra, PI
1 See Art 2
stage will
2 Supra, P
3 See the Je
4 For an a"
Contracti
Simmond:
Conflict (
419.
5 For the OJ
564
Part IV
The law of obligations
factors (dealt with under Article 4). The inference that the parties intended English
law to govern can seemingly only be challenged by a conflicting inference, ie by
evidence showing a real intention that French law should govern. It is possible
though to take a robust view that such an inference can be drawn from the factual
connections with France.
This was the approach adopted by MANCE] in Egon Oldendor!f u Liberia
Corpn, 16In this case the plaintiffs were German, the defendants Japanese, and
the contract provided for arbitration in London. It was argued that the arbitration
clause was a minor factor and that other factors pointed objectively to Japanese
law. Not only were the defendants Japanese but also a1apanese ship broker acted
as intermediary between the parties, and the ships chartered were to be delivered
and redelivered inJapan. MANCE] rejected this argument, saying that these matters
were inadequate to lead him to conclude that the parties intended London
arbitration under Japanese law,17and held that there was a good arguable case
for the purposes of service out of the jurisdiction that English law governed. Thus,
although it is possible to draw a conflicting inference from objective factors, it
seems that the circumstances where it will be right to do so may be relatively
rare. Once it had been decided that there was jurisdiction, the issue arose of
whether English law did in fact govern. CLARKE
J held that it did.18Having agreed
a "neutral forum", the reasonable inference is that the parties intended that forum
to apply a "neutral" law, namely English law. In the circumstances, the arbitration
clause was a strong indication of the parties' intention to choose English law.
CLARKE]hought that the approach towards arbitration clauses under Article 3
t
was little or any different from that at common law,19 and at common law
inferences were drawn from factual connections.
(e) Consent to choice There can be a dispute as to whether one of the parties
has consented to the choice. Article 3(4) provides that issues in relation to the
validity and existence of consent are determined in accordance with the special
rules in the Convention relating to material validity (Article 8), formal validity
(Article 9) and incapacity (Article 11). These provisions will be discussed later in
this chapter. Article 3(4) has been criticised.20 The effect of it appears to be that
one party can choose the law to govern the issue of consent to choice. If there is
no valid consent to the choice, presumably the applicable law must be determined
under the rules on the applicable law in the absence of choics.!
f
',
...
(ii) The applicable law in the absence of choice
In a surprising number of cases the parties fail to choose the applicable law. This
may be because they have contracted without first consulting lawyers, or they
cannot agree on the applicable law. The determination of the applicable law in
the absence of choice is dealt with under Article 4, which consists of three main
16 [1995J 2 Lloyd's Rep 64.
17 Ibid at 69.
18 Egon Oldendorff v Liberia Corpn (1996) 1 Lloyd's Rep 380 (CLARKE
J).
19 The result would have been the same under the proper law of the contract in a three country
case like this. See Compania Naviera Micro SA v Shipley International Inc, The Parouth
[1982J 2 Lloyd's Rep 351, CA. Compare Compagnie d'Armement Maritime SA v Cie
Tunisienne de Navigation SA [1971) AC 572, HL, treated as a two country case.
20 See Cavers (1975) 48 So Cal L Rev 603 at 609; Nadelmann (1976) 24 Am J Comp Law 1,
8-9; Kaye, pp 168-170; cf Morse, op cit, at 119.
1
Art 4. Cf the 1985 Hague Convention on the law applicable to contracts for the international
sale of goods, Art 10(1) which spells this out.
EXHIBIT 11
Westlaw,
(1883-84) L.R. 13 Q.B.D. 302
(1883-84) L.R. 13 Q.B.D. 302 (1883-84) L.R. 13 Q.B.D. 302
(Cite as: (1883-84) L.R. 13 Q.B.D. 302)
c
there is a wide difference between the judgment of an
English Court and the judgment of a foreign Court:
an action *303 upon an English judgment is based
upon a debt of record, but a foreign judgment creates
only a liability of inferior degree.
*302 Grant v Easton
Court of Appeal
M.R.
Page 1
Brett, Baggallay, and Bowen
1884 Dec. 12
Practice-Writ
specially indorse-Leave
to enter
Final Judgment-Foreign
Judgment-Rules
of the
Supreme Court, 1883, Order III., r. 6-Order XIV
In an action upon a foreign judgment in which the
writ of summons has been specially indorsed under
Order XIV, the plaintiff may obtain an order empowering him to sign final judgment.
Hodsoll v. Baxter (E. B. & E. 884) followed.
THE plaintiff, who resided in Egypt, had obtained
against the defendant a judgment dated the 2nd of
July, 1883, in Her Britannic Majesty's Vice-Consular
Court at Cairo. The defendant resided in England.
The plaintiff then commenced in the High Court of
Justice an action founded upon the judgment obtained
in the Vice-Consular Court at Cairo, and an order
was made at chambers by a master, empowering the
plaintiff to enter judgment summarily. This order was
affirmed on appeal by the judge sitting at chambers,
and afterwards by the Queen's Bench Division. The
defendant then appealed to this Court.
Rolland, for the defendant. It is contended that leave
to enter final judgment summarily cannot be given
where the plaintiff sues upon a foreign judgment.
Judgment is obtained under Rules of the Supreme
Court, 1883, Order XIV, when the writ of summons
has been specially indorsed under Order III., rule 6;
but that does not apply to a foreign judgment, which
is not a debt or liquidated demand in money payable
upon "a contract express, or implied." The remedy
being summary, ought not to be extended. The
Judges in the Queen's Bench Division felt themselves
bound by the judgment of the Exchequer Chamber in
Hodsoll v. Baxter], ; but in that case the plaintiff sued
upon a judgment of the Court of Queen's Bench, and
Petheram, Q.c., and Henry, for the plaintiff, were
not called upon to argue.
BRETT, M.R.
The words used in Rules of the Supreme Court,
1883, Order III., rule 6, are the same as those contained in the Common Law Procedure Act, 1852 (15
& 16 Vict. c. 76), s. 25; the words of the rule are in
fact a copy of the words of the statute; the rule and
the statute, therefore, must have the same effect.
Hodsoll v. Baxterz which was cited during the argument, was decided upon the Common Law Procedure
Act, 1852, s. 25, and therefore ought to be treated as
a decision upon Order III., rule 6. As the Exchequer
Chamber was a Court of co-ordinate jurisdiction with
our own, the judgment is binding upon us, and we
must hold that the order giving leave to sign final
judgment under Order XIV was right. But if no authority had existed, I should have come to the same
conclusion. An action on a judgment has been treated
as an action of debt. It has been suggested, however,
that a difference exists between English and foreign
judgments, but in the present case the question is,
whether the defendant can shew any defence to the
claim made against him. Upon principle what difference can there be between an English and a foreign
judgment in this respect? An action upon a foreign
judgment may be treated as an action in either debt or
assumpsit: the liability of the defendant arises upon
the implied contract to pay the amount of the foreign
judgment.
BAGGALLA Y and BOWEN, L.JJ.
, concurredAppeal dismissed. (J. E. H.)
© 2011 Thomson Reuters.
(1883-84) L.R. 13 Q.B.D. 302
(1883-84) L.R. 13 Q.B.D. 302 (1883-84) L.R. 13 Q.B.D. 302
(Cite as: (1883-84) L.R. 13 Q.B.D. 302)
1. E. B. &E. 884.
I. E. B. & E. 884.
END OF DOCUMENT
© 2011 Thomson Reuters.
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