Under English law, the recognition and enforcement of foreign judgments is complicated by the fact that there is a wide variety of different sets of rules dealing with this topic. A basic distinction can be made though between recognition and enforcement under the EC/EFTA rules, and recognition and enforcement under the traditional English rules. Both systems will be examined in this chapter. We will also, briefly, turn our attention to the special rules that exist in relation to supranational or semi-supranational intellectual property rights. It is submitted as a preliminary comment that intellectual property related cases give rise to few special problems as regards recognition and enforcement of foreign judgments, hence the relative brevity of this chapter.
HOW PROBLEMS ARISE IN INTELLECTUAL PROPERTY CASES
The first set of problems arises out of the territorial and exclusive nature of intellectual property rights and their close link with competition law. The country that grants the intellectual property right typically also deals with its validity. However, there might be occasions where a foreign court, for example in infringement proceedings, has determined the validity of a foreign intellectual property right. Will an English court recognise the foreign judgment and authorise its enforcement in such a situation? And is it only the validity point that creates these problems? Arguably, a territorial right applies only in the country that granted it and maybe its infringement should exclusively be dealt with by the courts of the granting country. Would that mean that a foreign judgment would not be recognised and enforced even if it deals only with the infringement issue? Would any other solution offend against public policy?
A second set of problems surrounds the recognition and enforcement of foreign interim orders. Should an English court recognise and enforce such an order which was, for example, granted by a Dutch court in a case of alleged infringement of Dutch, English and French parallel patents? The Dutch court may have taken jurisdiction to grant an extraterritorial interim order on a basis which is not readily accepted by the English courts. Does that influence the decision at the recognition and enforcement stage?