Private Law Theory

ABSTRACT
This chapter considers the recognition and enforcement of foreign judgments, and specifically the ‘obligation theory’ underpinning the common law rules which clearly emerged in the nineteenth century in the twin cases of Godard v Gray and Schibsby v Westenholz. The chapter is structured as follows: (I) we first address the decisions in Godard and Schibsby and the obligation theory itself; (II) we then put the domestic common law in context and consider developments in other jurisdictions (including most notably Canada), which have diverged from the English approach; (III) we argue that the obligation theory struggles to explain the current positive law of England and Wales; and (IV) we draw the threads together by way of conclusion and draw on our survey of the foreign jurisprudence to reinforce our conclusions on Godard and Schibsby.

Folkard, Joshua and Bergson, Ian, Landmark Cases in Private International Law: Godard v Gray and Schibsby v Westenholz (1870) (May 1, 2023) in Landmark Cases in Private International Law, William Day and Louise Merrett eds, 87-108, 2023; Faculty of Laws University College London Law Research Paper 01/2024.