Contratto ImpresaEuropa - Cedam

DIBATTITI 627
certainly not be enforceable if payable to a state authority ( 43 ). However,
penal damages which are awarded to a private individual should not be
caught by this exclusion ( 44 ). In any event, if it is possible to sever the
compensatory part of a judgment, that alone may be enforced ( 45 ).
The judgment must also not order the payment of multiple damages.
The Protection of Trading Interests Act of 1980 is particularly concerned
with certain types of orders made in the courts of the United States. It
provides that where a judgment is « for an amount arrived at by . . . multiplying
» the sum assessed as compensation, it shall not be enforced ( 46 ). If
the defendant has already paid the multiple, he may reclaim it in an English
court ( 47 ).
(F) Defences to recognition and enforcement
Assuming that these various requirements are satisfied, the foreign
judgment meets the basic requirements for recognition and enforcement
in England. If so, then one needs to consider the possibility that a defence
to recognition and enforcement of the judgment exists.
It should be noted that it is no defence to the recognition of a foreign
judgment that the judge overseas made an error of law ( 48 ). This serves a
strong public interest in ensuring that matters cannot readily be reopened
in England. Nor is it a defence that the foreign court lacked jurisdiction
by the procedural law of that State: even if it is alleged that the
particular court which heard the case in the State of origin lacked jurisdiction,
this will be irrelevant, unless the error made the judgment null and
void in that State ( 49 ).
However, a number of valid defences exist to the recognition of enforcement
of foreign judgments, including that the judgment: was procured
by fraud; is contrary to natural justice; is contrary to English public
policy; was obtained in breach of a jurisdiction or arbitration clause; or is
inconsistent with an English judgment, or with a prior foreign judgment
entitled to recognition in England. Of these defences, two are particularly
( 43 ) Huntington vs. Attrill [1893] AC 150.
( 44 ) SA Consortium General Textiles vs. Sun & Sand Agencies Ltd [1978] QB 279.
( 45 ) Raulin vs. Fisher [1911] KB 93.
( 46 ) Section 5.
( 47 ) Section 6. See also Lewis vs. Eliades (No.2) [2003] EWCA Civ 1758, [2004] 1 WLR
692; Neuhaus, Power to Reverse Foreign Judgments: The British Clawback Statute Under International
Law, (1981) 81 Colum L Rev 1097, pp. 1102-1103.
( 48 ) Godard vs. Gray (1870) LR 6 QB 288.
( 49 ) Vanqueilin vs. Brouard (1863) 15 CBNS 341; Pemberton vs. Hughes [1899] 1 Ch. 781.