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1、FOREIGN JUDGMENTS CONSTRAINTS IN ECONOMIC DEVELOPMENTPurpose of paperIn our interconnected world commerce is increasingly conducted not only across national borders but between parties from mutually alien languages, culture, political and legal systems and over substantial physical distances that gr
2、eatly hamper their capacity to enforce legal rights against each other if the need arises. It is critical in ensuring reliability and integrity of international commerce that both parties are able to readily and cost effectively enforce their legal rights. The purpose of this paper is to review the
3、effectiveness of the mechanisms presently available for: the enforcement in Australia of foreign judgments for the payment of money; and the enforcement of the judgments of Australian courts in foreign jurisdictionsSystems and processes that facilitate the prompt and cost effective exercise of legal
4、 rights across national boundaries are important to the economic development of Australia.Internationally in the area of e-commerce alone trade has grown from virtually zero to in excess of US$1trillion per annum in the last 15 years. About 85% of these transactions are B2B commerce (i.e. between bu
5、sinesses) and the remaining 15% consumer transactions.1 These issues are explored in detail in a paper “Consumers as International Traders: Some Potential Information Issues for Consumer Protection Regulators” by David K Round and Jeremy Tustin* Centre for Regulation and Market Analysis, University
6、of South Australia Paper presented at International Trade Law Conference, Attorney-Generals Department, Canberra, 23 September 2004CHART 1- GROWTH IN TOTAL TRADE 1990 2009In the last 20 years the total value of Australian trade as more than trebled.CHART 2 - AUSTRALIAS MAJOR TRADING PARTNERS Our tra
7、de is increasingly dominated by countries within the Asian region.CHART 3- E-COMMERCE AS CONTRIBUTOR TO GROWTH IN TRADEAustralia is amongst the top one third of countries worldwide whose businesses engage in internet commerce. Importantly as at 2006 almost half Australian businesses reported placing
8、 orders via the internet. Whilst we do not know how many of those transactions were with businesses located overseas, to the extent that they were Australian business were exposed in the event of default by the other party in its contractual obligations. The proportion of businesses which reported p
9、lacing orders via the Internet or web for any goods or services during the year ended 30 June 2006 was 37%, an increase of 4 percentage points from the previous year. The incidence of this business practice continues to increase. The proportion of businesses reporting receipt of orders via the Inter
10、net or web increased from 12% in 2004-05 to 21% in 2005-06. The value of Internet income associated with the receipt of orders grew by approximately 40% from $40 billion in 2004-05 to $57 billion in 2005-06. Australian Bureau of Statistics Report 8129.0 - Business Use of Information Technology, 2005
11、-06The substantial growth in international transactions between Australian small-medium business and individual consumers and foreign parties highlights the need for simple and cost effective processes by which all Australian businesses and consumers can readily and effectively enforce their legal r
12、ights in international dealings. Ibid, page 20Overview of history of recognition of judgments across foreign jurisdictions; State judgments are recognised in other States pursuant to s 118 of the Constitution. s 185 of the Evidence Act 1995 (Cth).International Arbitration Act 1974I should note at th
13、e outset that under the International Arbitration Act 1974 (Cth)and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards to which Australia is a party Adopted in 1958 by the United Nations Conference on International Commercial Arbitration at its twenty-fourth meeting awards
14、made by arbitrators pursuant to arbitration agreement may be enforced in the courts of the Australian States and Territories. Section 8 International Arbitration Act 1974 (Cth)Of its nature arbitration occurs only with the consent of the parties to the dispute.The focus of this paper is on dispute d
15、etermination through the Court process which can be pursued without the consent of the other party(ies) and for that reason enforcement of arbitral awards is not a subject of this paper. Common law enforcementHistorically within common law countries it has been possible to obtain a judgment in a sec
16、ond jurisdiction by “suing on the judgment” obtained in the first jurisdiction. I refer to that method in this paper as “common law proceedings” and “common law enforcement”.In Williams v Jones (1845) 13M&W 628, 634 153ER 262, 265 AldersonB defined the legal principle:The true principle is, that where a court of competent jurisdiction adjudges a sum of money to
