An unclear order would potentially require extensive litigation about the meaning of the foreign order, particularly where the orders would be ‘based on rules with which the court is not familiar’.185 It would require the domestic court to second-guess the intention of the foreign court and could expose the defendant to additional obligations.186 Such a requirement is therefore consistent with judicial resources concerns and comity.
Second, Pro Swing held that the foreign order should be clear about whether it was intended to apply outside the jurisdiction in which it was made.187 Like Mareva orders, which do not always apply to a defendant’s foreign assets, not all non-monetary orders will be intended to regulate a defendant’s behaviour extra-territorially. In Pro Swing, the majority considered that the injunction issued by the Ohio court prohibiting Elta from purchasing and selling equipment in breach of the Trident trademark applied only to its behaviour in the US, and not in Canada. This was because the trademark was protected only in the US; the Ohio court could not have intended the order to apply outside the scope of Pro Swing’s trademark protection.188
Enforcing a foreign judgment creates problems in the domestic forum, including the expenditure of judicial resources, the need to interpret the foreign law, and potential conflicts with domestic sovereignty. The Pro Swing majority noted that courts ‘tend to find solutions to limit spheres of conflict’; the principle of territoriality provides such a solution.189 Further, if the foreign court did not intend for the order to operate extraterritorially, then comity does not require its enforcement, nor is there an abuse of process. Accordingly, imposing this requirement would be consistent with the policies underlying enforcement.
Finally, Pro Swing held that the proceedings should be sufficiently connected to the local forum. The Court argued that the domestic court should consider whether the harm that the plaintiff is likely to suffer as a result of non-enforcement is enough to warrant the involvement of the domestic court and the expenditure of its judicial resources.190 On the other hand, Pitel argues that such an approach is too parochial — if the foreign court considered it necessary to make an order with extraterritorial effect, and the plaintiff is seeking to enforce that judgment in the local court, this should be sufficient to warrant enforcement.191
The test proposed in Pro Swing, however, has the significant advantage of preventing Australian courts from being used as a global policeman. For example, a foreign judgment may order the performance of a contract in Ruritania. However, the plaintiff may not be able to enforce the judgment in Ruritanian courts, for example, because Ruritanian courts do not enforce non-monetary judgments or because the defendant does not have assets or presence in Ruritania.