EXCLUSION OF FOREIGN LAW

There are five (5) grounds upon which the courts would refuse to enforce a foreign law.
These are when the law involves the following:

1. Foreign Revenue law (Government of India v Taylor, Exception: Re Emery

Investment Trust)
2. Foreign Penal Law (Banco de Viscaya v Don Alfonso, Huntington v Attrill, A-G of
New Zealand v Ortiz)
3. Other Foreign Public Law
4. Foreign Expropriation Legislation (Anglo- Iranian Oil Co Ltd v Jaffrate)
5. Contrary to Public Policy ( Regazzoni v Sethia)

Foreign Revenue Law

A foreign revenue law is a law requiring a non-contractual payment of money to the state
or some department or sub-division thereof. It includes income tax, capital gains tax,
customs duty, death duties, local rates or council taxes, compulsory contributions to a
state insurance scheme and a profits levy.

Ref: Government of India v Taylor

Facts: A company incorporated in England, but carrying on business in India, sold its
assets and undertaking in India to the Indian Government, remitted the proceeds to
England and went into voluntary liquidation in England. The Indian Government
submitted a proof of debt in the liquidation for unpaid income tax and capital gains tax.

Held: The proof must be rejected because English courts would not enforce the tax laws
of a foreign country, even though it was a country within the British Commonwealth.

Exception

Courts would enforce tax laws of other friendly countries on grounds that refusing to
enforce such revenue laws would lead to aiding an illegality.

Ref: Re Emery Investment Trust

Facts: A husband living in South America bought American shares and registered them
in his wife’s name in New York in order to avoid a New York withholding tax to which
he, but not his wife, would be liable. They intended to share any profit equally, but the
husband’s failure to disclose this fact to the authorities in New York was a breach of the
taxing statute. The wife later sold the shares.

Held: The husband could not recover his share of the proceeds of sale. To rebut the
presumption of advancement in his wife’s favour (arising from the purchase in her name),
he would have to rely on an illegally concealed agreement, and the court would not lend
its assistance to the carrying out of an agreement designed to breach the revenue laws of a
friendly country.

NOTE: Guidelines on how to determine a tax / revenue legislation given by

Professor Briggs on Page 40 of his book

Foreign Penal Law

A penal law is a criminal law imposing a penalty recoverable at the instance of the state
or of an official duly authorized to prosecute on its behalf.

Ref: Huntington v Attrill

Facts: The defendant, a director of a company incorporated and carrying on business in

the state of New York signed a certificate, which falsely stated that the company’s shares
were fully paid up. He thereby made himself personally liable under a New York statute
for all the company’s debts. Relying on the statute, the plaintiff obtained judgment
against him in New York for a debt owed by the company, but in enforcement
proceedings in Ontario, the defendant pleaded that the statute was penal and therefore
unenforceable outside New York.

Held: The statute was not penal within the meaning of the relevant private international
law rule, which must be interpreted and applied according to the forums own views. It set
up a private remedy, whereas ‘a proceeding, in order to come within the scope of the rule,
must be in the nature of a suit in favour of the state whose law has been infringed

Ref: Banco de Viscaya v Don Alfonso

Facts: The recently deposed King of Spain sued an English Bank to recover securities,
which had been purchased with his own money and deposited with the Bank to be held to
the order of a Spanish bank as his agent. Decrees of the Spanish Republic had declared
that the ex-King was a traitor and outlaw, that his property was forfeited to the Republic
and that all bankers holding such property should hand it to the Republic. The Spanish
bank intervened in the action to claim the securities on the Republic’s behalf.

Held: The claim failed because the decrees were ‘penal’ in nature and would therefore
not be enforced directly or indirectly in an English court.

Contrast: Court of appeal ruling in A-G of New Zealand v Ortiz

Ref: A-G of New Zealand v Ortiz

Facts: The A-G of New Zealand brought an action to restrain the sale in London of a
Maori carving, an ‘historic article’, and asked the court to order that it should be returned
to New Zealand. It had been illegally exported from New Zealand in violation of local
legislation, which provided for the forfeiture to the Crown of historic articles, which
were, or were sought to be, illegally exported from New Zealand. The Court at first
instance thought inter alia that the legislation was not penal and therefore enforceable in
England. However on appeal,

Held: Court of Appeal held inter alia that the legislation was penal. (This decision was
not contested on appeal in the House of Lords, which also did not comment of the
opinions expressed by the Court of Appeal regarding the penal nature of the New Zealand
statute)

Exception: When the crime is a crime against humanity (International Law)

Other Foreign Public Laws

Other Foreign Public Laws would not be enforced if they involve an exercise of a foreign
government of its authority over property outside its territory.

Ref: A-G of New Zealand v Ortiz

Ref: Williams and Humbert v W & H Trade Marks

Facts: whereas the Spanish State compulsorily acquired all the shares in a Spanish
company, it did not make any attempt to change ownership of the shares in its wholly
owned English subsidiary. In an action over the ‘Dry Sack’ sherry trade mark which,
initially, was owned by the plaintiff company, who then assigned it to the Jersey
company which was incorporated to hold and exploit trade marks and which in turn
licensed it back to the plaintiff English company, the plaintiffs contended that the Jersey
company’s grant of the license on terms that it would be summarily terminated if, inter
alia, part of the share capital of the Spanish company were expropriated was ultra vires
Williams and Humbert as involving a gratuitous disposition of its assets made for the
benefit not of itself, but of the directors of the Jersey company; or an unauthorized
reduction of its capital; and in any event, void and unenforceable. The defendants relied
on the defence of the Spanish expropriation law being a foreign penal law, which ought
not to be recognized or enforced in England.

Held: Giving judgment for the plaintiffs, the foreign expropriatory decree was not a
penal law; the English courts would recognize the acquisition of property by the foreign
state when the property was in the state at the time of expropriatory decree was made
with the proviso that the decree was not discriminatory or penal; and with regard to the
English company, the expropriating decree did not have the effect of obtaining assets for
the state of Spain.

Ref: Luther v Sagor

Facts: In 1918, the revolutionary soviet government passed a decree vesting assets of
sawmill businesses in Russia in the state, without any compensation being paid to the
owners. Timber belonging to the plaintiff, a Russian company, was seized under the
decree, sold to the defendant, an English firm, and imported into England in 1920. In
1921, the British Government recognized the Soviet Government de facto.

Held: The plaintiff could not recover the timber from the defendant even though the
nationalization decree conflicted with English notions of just acquisition of a property.

Ref: Anglo-Inranian Oil Co Ltd v Jaffrate (The Rosemary)

Facts: The Government of Iran passed an oil nationalization law, which, although
general in its terms, had the sole purpose and effect of expropriating without
compensation an oil concession in Iran which it had granted some years earlier to an
English company and promised not to annul. A year later, the company brought an action
in detinue in respect of a cargo of crude oil, which had been taken from the concession
since its expropriation and was on board a ship lying in Aden.

Held: The action would succeed. The validity of the nationalization law could be brought
into question because the company against which it operated was not a subject of Iran. It
should be refused recognition because, on principles of international law, expropriation
without compensation was invalid.

Foreign Expropriatoy Legislation

Ref: Williams and Humbert v W & H Trade Marks

Ref: Anglo-Inranian Oil Co Ltd v Jaffrate (The Rosemary)

Ref: Luther v Sagor

Ref: Helbert Wagg & Co Ltd

Contrary to Public Policy

Ref: Gray v Formosa

Facts: A Roman Catholic Maltese domiciled in England married a domiciled English

woman in a civil ceremony in England. Later he left her and returned to Malta where he
re-acquired a Maltese domicile of choice. A Maltese court refused to enforce against him
a maintenance order, which the wife had obtained in England because it declared the
marriage void on his petition on the ground that the canon law formalities prescribed for
Roman Catholics under Maltese law had not been complied with. The wife then brought
divorce proceedings for desertion.

Held: The Maltese nullity decree should be refused recognition on the ground that it
offended against English notion of substantial justice (public policy). It was ‘flagrantly
unjust’ to treat the wife as a ‘mere concubine’ and her children as bastards when the
marriage ceremony was valid under the lex loci celebrationis.

Ref: Re Fuld’s Estate (No. 3)

Facts: On the death of a testator domiciled in Germany, three codicils executed by him
were challenged on the grounds, inter alia, that he lacked testamentary capacity on
account of illness and that he did not ‘know and approve’ of their contents.

Held: See Judgment at page 698

Ref: Helbert Wagg & Co Ltd

The case of the agreement between German company and English company for the
former to repay loan owed latter in sterling. German Government moratorium changed all
that.

Held: Inter alia, The German moratorium law, being a genuine exchange control measure
enacted bona fide to protect the German economy in a time of stress, should not be
refused recognition on grounds of public policy, even though it confiscated private
property (including property of foreigners) without providing compensation
 RECOGNITION AND ENFORCEMENT OF FOREIGN JUDGMENT

The type of judgment envisaged here is a judgment that imposes a liability on a party
usually to pay money in satisfaction of a judgment debt. Judgments of foreign court do
not have automatic force of law in other countries such as Ghana. The main reason
assigned for this phenomenon is The Sovereignty Principle – Each state is sovereign
thus judgment given by the court of that sovereign have effect only on the state
citizenship.

However, there are reasons why judgments of other states should be recognized and
enforced

1) Public Interest - Litigation is very expensive. Thus it is in the public interest

(Monetary considerations) that disputes dealt with in another jurisdiction is not
repeated in other jurisdictions

2) Principle of comity – The law of nations required the courts of one country to
assist those of any other.

3) The new principle of Comity – Where a foreign court has properly and
appropriately exercised jurisdiction, then a judgment given should be recognized
and enforced by all. (This is based on justice, fairness and consideration).

4) The doctrine of Obligation – If courts of a foreign state imposes obligation to pay

money, then court of a foreign jurisdiction are bound to enforce it (Godard v
Gray)

Ref: Godard v Gray

Facts: The plaintiffs, French merchants, brought an action in France against the
defendants, English ship owners, for breach of as charter party governed by English law.
The defendants entered a defense but the court awarded damages against them. The
record of the judgment showed that the court, in purporting to construe the charter party
according to English law, had made an error of English law, which affected the amount
of damages.

Held: The plaintiffs could nevertheless enforce the judgment by action against the
defendants in England. As the French court had jurisdiction in the case, its judgment
created a binding obligation, which was not negatived merely by showing that it had
made an error of law, even an error of English law appearing on the face of the record.

Terminologies

Recognition of foreign judgment – This means that you treat the claim, which has been
adjudicated as having been determined once and for all (RES JUDICATA against the
defendant). This means in effect that the losing party is estopped. Recognition is
important because WITHOUT RECOGNITION THERE CAN BE NO
ENFORCEMENT. Note however that while a court must recognize every foreign
judgment, which it enforces, it need not enforce every foreign judgment it recognizes.

Enforcement – This means getting what is due from the judgment.

In Ghana, Recognition and Enforcement are dealt with in two ways; (a) Method under
Common Law and (b) Statutory procedure

Method under Common Law

The following conditions have to be fulfilled for recognition and enforcement of

judgment in Ghana under Common law.

(a) The judgment must be the final and conclusive judgment of a court that has
international jurisdiction

Note that court means any judicial tribunal. However the decision of an administrative
body or arbitral tribunal is not a court under this condition.

What do we mean by judgment should be be final?

This means that judgment may not be re opened in the court, which made the ruling even
if the case is appealable.

In Ghana, there are some courts that have been given the power to review their own
judgments.

Can decisions of these courts be said to be final?

Under section 99 (1) of the Courts Act, 1993, Act 459 as amended “appeal” is defined to
include any proceeding by way of discharging or setting aside a judgment or an
application for a new trial or a stay of execution.

From the above definition of “appeal”, in Ghana reviews can be said to be appeals if the
reviews are meant to either discharge or set aside a judgment. But if the review
constitutes or leads to an order for a new trial then it does not fall under the definition of
courts envisaged here.

Can an Interlocutory judgment be said to be final?

An Interlocutory judgment may be final if it is a judgment on jurisdiction even though it

is appealable. That is, if a court rules in an interlocutory application that it doesn’t have
jurisdiction, the judgment is final
What do we mean by judgment should be conclusive?

This means the courts own settled conclusion on the merits of the case adjudicated.

What do we mean by court should have International jurisdiction?

A court is said in this sense to have international jurisdiction if the parties submitted to
the jurisdiction of the foreign court.

Ways of submission

1. As a claimant or Plaintiff
2. By contract
3. By voluntary appearance
4. By presence in jurisdiction when proceeding was instituted
5. Residence
6. Reciprocity – A foreign court would assume jurisdiction if it assumes the same
jurisdiction as itself
7. When there is real and substantial connection to the dispute – The test is the
question of whether the judgment debtor has a strong or weak link with the
country where the judgment is given so that he or she would be obliged to satisfy
the debt. If the link is weak, there is no international jurisdiction. If the link is
strong, there is international jurisdiction because the other party would be obliged
to satisfy the judgment debt

Note that judgment would be enforceable if the court, which grants the judgment properly
and appropriately, exercised jurisdiction.

Ref: Emmanuel v Symon

Facts: While residing in Western Australia, the defendant entered into a partnership
formed to work a mine in western Australia, which the partnership owned. He later left
western Australia and settled in England. In the course of Western Australian
proceedings for dissolution of the partnership, the plaintiffs who were the other partners
obtained a default judgment against the defendant for his share of the partnership debts.
They sought to enforce the judgment in England, arguing that the Western Australian
court had jurisdiction over the defendant by virtue of (1) his participation in the
partnership or (2) his share in the partnership land, or both.

Held: Neither of these was a sufficient basis of jurisdiction to render the judgment
enforceable in England. “In actions in personam there are five cases in which the courts
of this country will enforce a foreign judgment: (1) Where the defendant is a subject of
the foreign country in which the judgment has been obtained; (2) where he is resident in
the foreign country when the action begun; (3) Where the defendant in the character of
the plaintiff has selected the forum in which he is afterwards sued; (4) Where he has
voluntarily appeared and (5) Where he has contracted to submit himself to the forum in
which the judgment was obtained.

Ref: Re Dulles’s Settlement (No. 2)

Facts: Proceedings begun on behalf of an infant against his father who was resident in te
USA included a claim for the infant’s maintenance. The father was legally represented in
court and he contested the court’s jurisdiction. Did this representation constitute
submission to the jurisdiction?

Held: “I cannot see how anyone can fairly say that a man has voluntarily submitted to the
jurisdiction of a court, when he has all the time been vigorously protesting that it had no
jurisdiction. If he does nothing and lets judgment go against him in default of appearance,
he clearly does not submit to the jurisdiction. What difference in principle does it make,
if he does not merely do nothing, but actually goes to the court and protests that it has no
jurisdiction? I can see no distinction at all.

Defenses

1) If the judgment was given in violation of arbitration or choice of law of agreement

2) Argue that the court, which heard the case, had no jurisdiction to do so

3) Argue that there was fraud by fraudulently letting the court believe that it had
jurisdiction

4) Absence of natural or substantial justice

Ref: Pemberton v Hughes

Facts: A husband domiciled in Florida obtained a divorce there on the ground of his
wife’s ‘violent and ungovernable temper’. By mistake, the time allowed for the wife’s
appearance was only nine days after issue of process instead of ten days required by the
rules of the court.

Held: Even if this irregularity made the divorce void in Florida, it was still valid in
England. ‘If a judgment is pronounced by a foreign court over persons within its
jurisdiction and in a matter with which it is competent to deal, English courts never
investigate the propriety of the proceedings … unless they offend English views of
substantial justice.

Ref: Adams v Cape Industries Plc

5) Judgment given contrary to public policy

6) Case was res judicata. That is if the judgment is consistent with an earlier
Ghanaian judgment or a foreign judgment here in Ghana, then there is no jurisdiction