Huntington v. Attrill

The rule that foreign penal laws are not enforced would be worth little if the foreign State could decide for itself what counts as penal. This case gives the answer: the forum decides.

This course cites the case for the principle and does not set out its facts. The question was whether the foreign law relied on was penal.

Foreign penal laws are not enforced, and the forum decides for itself whether the law is penal.

Step one — place the rule. Three classes of foreign law are excluded — revenue, penal, and laws offending fundamental policy.

Step two — see why the forum must classify. Classification is a characterisation question, and characterisation is for the lex fori. If the foreign State's own label governed, no State would call its law penal when it wanted it enforced, and the exclusion would be defeated by drafting.

Step three — identify what makes a law penal. The concern is with laws that vindicate the authority of the State — a punishment exacted by the State for a public wrong — as against laws that give a private party a remedy. The distinction is the same one that underlies the revenue exclusion, where tax gathering is described as a matter not of contract but of authority and administration as between the State and those within its jurisdiction.

It opens: Which foreign laws will the forum refuse to apply? — as the second of the three classes.

Give the trio in order with their cases. Revenue: Government of India v. Taylor. Penal: this case, with Banco de Vizcaya v. Don Alfonso as an instance where the foreign law was held penal. Fundamental policy: the narrow test that the principle offended must be so sacrosanct as to require maintenance at all costs without exception. And the frame for all three, Dynamit Actien Gesellschaft v. Rio Tinto Zinc: it is not the foreign law but the forum's own law to which effect is given.

Use the who-decides point beyond this head. It is the same principle that gives the forum the initial characterisation and the meaning of connecting factors, and that lets the forum say what counts as procedure — a power abused in Leroux v. Brown. The pattern of the whole subject is that the forum controls the classifications.

Note where a penal law still matters. Exclusion is not the same as non-recognition: a penal or revenue law is still recognised for other purposes, so a contract made to defraud a foreign revenue will not be enforced. And under s. 44A of the Code, a decree for a fine or penalty, or for taxes or charges of a like nature, is outside the definition of a decree altogether.

It does not decide whether the foreign law in any later case is penal; it decides who asks the question.