The prevalence of ‘jurisdiction’ in the recognition and enforcement of foreign civil and commercial judgments in India and South Africa: a comparative analysis

Abstract

ABSTRACT The determination of the ‘international jurisdiction’ of the court of origin remains the backbone of the law on the recognition and enforcement of foreign judgments in civil and commercial matters in India and South Africa. Thus, a foreign judgment is ineffective in these jurisdictions unless the court of origin was competent according to the principles of private international law. The grounds to determine the ‘international jurisdiction’ of the foreign court are narrow and primarily rest on the ‘allegiance’ of the judgment-debtor towards the State of origin. This paper demonstrates how the rules to ascertain the competency of the foreign forum in these BRICS jurisdictions impede the free movement of judgments and prevent access to justice. The paper accordingly suggests plausible new approaches to overcome these shortcomings.