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Contempt Orders and Judicial “Attachment” of Equitable Property – Jurisdiction, Recognition or Choice of Law?

Tan Yock Lin

(2017) 29 SAcLJ 401

This article argues that a foreign contempt order is ordinarily not a judicial act and, therefore, not a fit subject for recognition by the domestic court as a final and conclusive judgment. It is an exercise of enforcement jurisdiction giving rise to concerns of extraterritoriality. Such orders are to be dealt with not in terms of abstention from exercising jurisdiction in cases which involve an attack on the validity of an act of a foreign nation state. They involve a different question of jurisdiction, the denial of jurisdiction to make orders absent reasonable connection. Concerns of non justiciability may also exist and doctrines of act of state may also be relevant. In particular, a contempt sanction purporting to affect the contemnor’s beneficial interest in property may also implicate choice of law considerations, calling for the domestic court’s exercise of jurisdiction to protect pre-existing rights accrued under the domestic lex fori as well as those derived by imputation or ascription from applicable law.