Recognition and enforcement of foreign judgments in respect of international commercial contracts : a comparison of the position in South Africa and under the Brussels IBIS Regulation.

Abstract : Judgments in favour of judgment creditors are handed down on a daily basis all over the world. However, enforceability of a foreign judgment is an issue in our modern world. This is especially true if parties involved in the matter are not from the same country and/or where the assets against which enforcement is sought are in a foreign jurisdiction. Two questions which arise are that “why should an enforcing sovereign jurisdiction give effect to a foreign order?” and “under what conditions should such foreign judgments be enforced?”. This work will evaluate rules relating to recognition and enforcement of foreign judgment in South Africa and under the Brussels Ibis Regulation. The work will compare rules or principles pertaining to recognition and enforcement of foreign judgment in South Africa and under the Brussels Ibis Regulation. The basis of this evaluation is to determine which of the two system offers the best prospects for the regulation of issues on the recognition and enforcement of foreign judgments in today’s world where countries and regions seek to achieve harmonization of laws to meet the challenge of international trade and commerce. To achieve this goal, the study investigated procedures that a judgment creditor has to go through in an effort to have a judgment recognized and enforced under both Brussels Ibis Regulation and South African law. Following a critical look at both the Brussels Ibis Regulation and South African law in the field of recognition and enforcement of foreign judgments, this study argues that the Brussels Ibis Regulation’s approach is to be preferred to the South African regime of enforcement because it erects fewer jurisdictional barriers. In this respect, it is recommended that lawmakers consider adapting their system of recognition and enforcement in a manner which reduces existing hurdles in order to advance the interest of cross-border trade and commerce.LL.M. (International Commercial Law