made against his and his family's life in
relation to the proceedings. Although Ben
maintains his innocence and intends to
defend the litigation, he decides to leave
Country A with his family.
Before the trial, the plaintiff in Country
A applies to an Australian state court to
freeze both Ben and his wife's assets in that
state of Australia under the rules of that
state's courts. As a result, Ben has limited
funds to defend the action.
Ben attempts to defend the action
through lawyers in Country A who file a
defense, but is not allowed to plead his
substantial and off-setting counterclaim
which would be allowed in an Australian
court. In addition, as technology is limited
and unreliable, Ben faces significant
hurdles giving proper instructions and
evidentiary material to his lawyers in
Country A, as there is no mechanism in
Country A's laws to enable him to give
evidence remotely, and he is unable
to prove the threats on his life to the
satisfaction of the Country A's court. The
end result is that Country A's court issues
final judgment against him without proper
consideration of his defense.
The plaintiff company is now able to
register this judgment in Australia and
applies to the court in Australia for it
to be registered under the FJA. As Ben
cannot positively raise evidence of case-
specific fraud or establish a ground to set
aside the judgment, the Australian court
is required to register the judgment and
enforce it against his assets.
Public Policy
the judgment set aside on the basis of, but
not limited to, fraud and public policy.
difficult and rarely made out.
courts will not set aside registration of
a foreign judgment from a list country's
Courts on the basis of public policy,
merely because:
the matter differently;
systemic corruption or fraud but the
evidence falls short of being directly
related to that particular case or
judgment; or
Australia.
not able to be set aside on the basis of
lack of the foreign court's jurisdiction in
circumstances where a judgment debtor
voluntarily submitted to the foreign courts
jurisdiction by engaging in the proceedings
(beyond contesting the jurisdiction),
resided in the foreign country at the time
the proceedings commenced or where the
transaction relating to the proceedings
occurred through or at an office or place of
business that the judgment debtor had in
the country of that court.
judgments and inclusion in the FJR list
is based on the notion of substantial
reciprocity, which is the key principle
underpinning the legal mechanisms for
global trade. The fact that the judgment
by one of Australia's superior courts would
also be recognized in a FJR listed country
is the reciprocal benefit to Australia.
However, a significant and often
unconsidered consequence of reciprocity,
is that a country like Australia may not be
getting a "fair trade" with countries who
rate poorly on corruption indexes, whose
governments do not or cannot adequately
fund robust legal systems and the
technology and infrastructure required to
deliver substantive justice or procedural
fairness or judicial consistency.
incentivises multinational corporations
who perceive an advantage litigating in
a foreign country against a party with
Australian assets, to avoid what might be
a higher degree of scrutiny or difficulty
in the Australian courts, and then seek
enforcement of those judgments in
Australia against domestic assets.
well before its commencement, plaintiffs
and defendants require expert advice
concerning both the court system in
which the proceedings are commenced
and the regime of the country in which
the defendant has assets available for
enforcement (in this article, Australia).
The advice needs to address, among other
issues, whether to submit to or oppose
foreign jurisdiction, which defences to
raise, when and in which jurisdiction to
make any counterclaim as well as when
and how to contest the registration of any
judgment.
enforcement regime is selective to
Commonwealth countries and notably
excludes Australia's top trading partners
China, United States, Thailand and
Indonesia. If Australia expects to grow
global trade, it will need to widen the
number of countries whose judgments
are recognized. Doing so should require
strict assessment of whether those
country's courts offer minimum standards
of procedural fairness and substantive
justice as those concepts are understood,
and protected, in Australian law.
Until substantial reform can be
undertaken, the Australian government
needs to update the regulations which list
recognised Courts and judgments under
the FJR.
Australia is actively involved in, and
a supporter of the "judgments project"
and the Special Commission created by
the Hague Conference on International
Public Law which seeks to develop
an international treaty for universal
recognition of civil and commercial
foreign judgments. If Australia ratifies
the treaty, Australia's laws will change
significantly.
www.globalintegrity.org
reports.weforum.org/global-competitiveness-
3 Jenton Overseas Investment Pty Ltd v Townsing [2008] V