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RECENT DEVELOPMENTS 
Bachchan v. India Abroad Publications Inc. : NoN-REcooNmoN 
OF ENGLISH LIBEL JUDGMENTS IN NEW YORK 
On January 31, 1990, India Abroad Publications Incorporated (India 
Abroad), a New York news wire service, transmitted a story to newspapers in 
India regarding the activities of Ajitabh Bachchan.' Copies of these newspapers 
were later distributed in the United Kingdom. The story reported that Swiss 
authorities had frozen a bank account, belonging to Bachchan, that had been used 
to pay commissions to a Swedish anns company. The anns company had 
previously been charged with paying kickbacks to obtain large munitions 
contracts from the Indian government. Several publications in India and 
elsewhere had previously reported Bachchan's alleged involvement in the 
scandal. Bachchan denied that he was the holder of the bank account in question 
and stated that neither he nor any member of his family had any connection with 
the munitions contract. India Abroad did not publish an apology as Bachchan 
requested, although it reported that a Swedish newspaper had apologized and 
paid Bachchan a settlement for publishing the story. Bachchan brought an action 
for libel against India Abroad in the High Court of Justice in London, England. 
The High Court awarded damages, which Bachchan sought to obtain in an 
enforcement action in the courts of New York against the newspaper's assets in 
that state. The Supreme Court of New York County held that the judgment was 
repugnant to the public policy of New York because it had been rendered 
without the safeguards for freedom of the press and speech required by the 
United States Constitution2 and the Constitution of the State of New York.> 
The court therefore exercised its discretion under Section 5304(b)(4) of New 
York's Civil Practice Law and Rules to refuse to recognize the English money-
judgment. Bachchan v. India Abroad Publications Inc., 585 N.Y.S.2d 661 (Sup. 
Ct. 1992). 
In Hilton v. Guyot,' the United States Supreme Court established the 
I. Bachchan was a friend of Rajiv Oandhl, the late prime minister of India, and is the brother and 
manager of a movie star and fonner member of ParliamenL 
2. U.S. CoNST. amend. I. 
3. N.Y. CoNST. art. I, I 8. 
4. 1S9 U.S. 113 (189S). 
279 
280 TUUNE J. OF INT'L &: COMPARATIVE LAW [Vol. 1: 279 
principle that, absent any "special n:ason"' for denial of eni:o~m~nt, the ~nitcd 
States should afford comity to the judgments of other nations tnbunals. The 
Court defined comity as 
the recognition which one nation allows within its territory to the 
legislative, executive or judicial acts of another nation, having due 
regard both to international duty and convenience, and to the 
rights of its own citizens or of other persons who are under the 
protection of its laws.7 
Billon became the basis for the Unifonn Foreign Money-Judgment Recognition 
Act (Unifonn Recognition Act}, upon which most states, including New York, 
patterned their foreign money-judgment recognition statutes.' Decisions after the 
completion of the Unifonn Recognition Act continued to grant recognition in 
most circumstances, and courts usually declined to recognize a foreign judgment 
only for lack of procedural safeguards or on strong public policy grounds.9 
Both federal and state courts have held that state conflict-of-law rules 
govern the treatment of foreign judgments.10 The law of recognition and 
enforcement of foreign judgments has developed primarily through the common 
law. Several states, including New York, have adopted a form of the Uniform 
Recognition Act in response to Hilton and to the decisions of their own courts. 
The Unifonn Recognition Act was created to codify the existing common law 
S. The Hillan Court"s •special reasons" for denying enforcement of foreign judgments were: (I) lack 
of personal or subject matter jurisdiction; (2) lack of proper notice of the proceedings to the 
~fendanl; (3) failure to conduct impartial or civiliud proceedings; (4) fraud in procuring the 
judgment; (S) lack of finality of the foreign judgment; and (6) contravention of the public policy of 
the state in which enforcement ii being sought. Id. at 202-03. 
6. Id. at 202-03. 
7. Id. at 163-64. 
8. UNIP. FoREION MONEY-JUDGMENTS Rl!cooNlTlON ACT H 1- 11 , 13 U.L.A. 263-75 (1986) 
{hertinafter Uniform &cognition Aci). 
9: Stt Tahan_v. Hodpon, 662 P.2d 862, 866 (D.C. Cir. 1981) (explaining that a foreign judgment 
V10latea American public policy if it is •repugnant to fundamental notions of what is fair and just•). 
10. If ~ foreign judgment is baaed upon ilaues which relate to a federal quest.ion, then the 
appropn.at.e fedenl law would apply. However, the U.S. Supreme Court has not considered whether 
fedenl or state law ahould apply to the recognition of foreign judgments Stt Robert 8 . von Mehren 
.t. Michatl E.. Pattenon. &cognition and Enfarctmtnt of Fartlgn Coun.try Judgments In the Unlttd 
SlalU, 6 I.Aw .t. PoL"Y INT"L Bus. 37, 39 (1974). 
1993] RECENT DEVEWPMENTS 281 
principles of recognition, rather than to enact new rules. 11 Section 4(a) of the 
act enumerates the circumstances in which denial of a foreign money-judgment 
is mandatory, and Section 4(b) lists the circumstances under which it is within 
a court's discretion to deny recognition.'2 
Section 5304 of New York's recognition statute (New York Recognition 
Act) 13 is identical to Section 4 of the Uniform Recognition Act, except that lack 
of subject matter jurisdiction is not grounds for mandatory denial in New York; 
rather, it is placed in the permissive denial section (§5304(b)). The New York 
Recognition Act provides that foreign money-judgments that are final, 
conclusive, and enforceable where rendered are enforceable in New York with 
the same full faith and credit as j udgments granted by sister states.•• However, 
a foreign judgment will not be recognized where the procedures of the foreign 
court are incompatible with constitutional due process or where the foreign court 
11. Su Commissioners' Prefatory Note to the Unifonn Foreign Money-Judgment Recognition Act, 
98 U.LA (1967). 
12. Uniform Recognition Act, supra note 8, § 4. Section 4 stales: 
(a) A foreign judgment is not conclusive if: 
(I) the judgment was rendered under a system which does not 
provide impartial tribunals or procedures compatible with the 
requirements of due process of law; 
(2) the foreign court did not have personal jurisdiction over the 
defendant; or 
(3) the foreign court did not have jurisdiction over the subject 
matter. 
(b) A foreign judgment need not be recognized if: 
(I) the defendant in the proceedings in the foreign court did not 
receive notice of the proceedings in sufficient time to enable 
him lo defend; 
(2) the judgment was obtained by fraud; 
(3) the cause of action on which the j udgment is based is 
repugnant to the public policy of this state; 
( 4) the judgment conflicts with another final and conclusive 
judgment; 
(S) the judgment in the foreign court was contrary to an agreement 
between the parties under which the dispute in question was to 
be settled otherwise than by proceedings in that court; or 
(6) in the case of jurisdiction based only on personal service, the 
foreign court was a seriously inconvenient forum for the trial 
of the action. 
13. N.Y. Clv. PRAc. L & R. H S301-09 (McKinney 1978). 
14. Id. I S303. 
282 TULANE J. OF INT'L &: COMPARATIVE LAW [Vol. 1: 279 
had no jurisdiction over the defendant." Additionally, New York "need not" 
recognize foreign judgments if "the cause of action on which the judgment is 
based is repugnant to the public policy of [New York]."16 
In New York, a foreign proceeding is repugnant to public policy if it was 
conducted in a manner, or based on a cause of action," that is so contrary to 
the laws of the recognizing forum that recognition or enforcement of the 
judgment would seriously offend New York's notions of fairness or sound 
policy. Courts generally do not "deny recognition on public policy grounds 
merely because the law or practice of the foreign country differs, even if 
markedly, from that of the recognizing forum."" If the difference in law is 
fimdamental19 and affects an important state interest, however, the courts may 
decline to enforce the judgment. 20 
The libel law of England differs significantly from that of the United 
States. "Under English law, any published statement which adversely affects a 
person's reputation, or the respect in which that person is held, is prima facie 
defamatory,#'21 and malice is then inferred.22 An English libel plaintiff need 
only establish that the words complained of refer to him, were published by the 
defendant, and bear a defamatory meaning." A plaintiff need not prove the 
falsity of the statement, fault on the part of the defendant, or an intentional or 
negligent disregard of proper journalistic standards.24 A defendant, however, 
15. Id. f 5304(a)(1·2). 
16. Id. f 5304(b)(4) (referring to the "public policy test") . 
17. The New York Recognition Act, N.Y. Ctv. PRAc. L. &. R. t 5304(b)(4), and the Unifonn 
Recognition Act, supra note 8, f 4(b)(3), provide that a foreign money judgment need not be 
enf~ if "the cause of action on which the judgment is based is repugnant to the public policy of 
this ltale. • This focus upon the cause of action is nanower in scope than most court decisions 
applying the public policy test. 
18. VonMehren &. Pattenon,s11pra note 10, at 61 ; su International Firearms Co. v. Kingston Trust 
Qi., 189 N.Y.S.2d 911 (1959). 
19. Ackemwm v. Levine, 788 F.2d 830, 841 (2nd Cir. 1986) (citing Tahan, 662 F.2d at 866); 
Somportex Lid. v · Philadelphia Oiewing Own Corp., 453 P.2d 435, 443 (3rd Cir. 1971 ), cert. dtnltd, 
405 U.S. 1017 (1972). 
20. Su van Mehren & Pattenon, supra note 10, at 63; Nace, 11tt P11bUc Polley Exctprlon ro tht 
kcognJllon of Fortlgn Jlldgmtnu, 22 V AND. 1. TkANSNAT'L L 969, 994 (1989). 
21. Bachchan, 585 N.Y.S.2d at 663. 
22. Darby v. Ouseley, 156 P.ng. Rep. 1093, 1096 (Ex. Ch. 1856). 
23. Bachchan, 585 N.Y.S.2d at 663. 
24. ~t Btntrally LoaD HAILsHAM, H.wseuav's LAws OP ENoUND t 28(1)-(5) (4th ed. 1979). 
1993] RECENT DEVEWPMENTS 283 
may justify his words only by proving their truth.u Fwthcnnore, English libel 
law does not distinguish between public figures and private persons.» 
To establish a prima facie case for libel in the United States, on the other 
hand, a plaintiff bears the burden of proving: (1) a false and defamatory 
statement concerning the plaintiff; (2) a publication of the statement; (3) fault 
on the part of the defendant; and (4) a "special hann" of a pecuniary nature or 
some other actionable harm.17 The Supreme Court in Philadelphia Newspapus 
v. Hepps,2' held that statements involving a matter of public concern or 
intcrest,19 require even a private figure plaintiff to show the falsity of the 
statement. The Court believed that "[t]o do otherwise could only result in a 
deterrence of speech which the Constitution makes free. #)I) In Hepps, the 
Supreme Court rejected the American common law rule, the current rule in 
England, "that the defendant must bear the burden of proving truth. "'1 In its 
place, the Court imposed the present "constitutional requirement that the plaintiff 
bear the burden of showing falsity, as well as fault, before recovering 
damages. #ll 
Also at odds with the English law is the distinction in Hepps between 
public and private plaintiffs, which requires courts to determine whether the 
plaintiff is a public or private figure in order to determine the applicable burden 
of proof.>' Under United States law, a public figure must prove, in addition to 
the basic clements of libel, that the defendant published the defamatory statement 
with "'actual malice' - that is, with knowledge that it was false or with reckless 
disregard of whether it was false or not.")< A private figure docs not have to 
prove knowledge of falsity or reckless disregard of the truth on the part of the 
2.5. Cooper v. Wakely, 173 Eng. Rep. 1148 (1828). 
26. Bachchan, .58.5 N.Y.S .2d 11 663. 
27. Set genua//y RE.sTATEMENT (SECOND) OF TORTS f .5.58 (1976). 
28. 47.5 U.S. 767 (1986). 
29. A statement is of "public concern• if the convnunity 11 large would corwider it importlnl. Su, 
e.g., Picke.ring v. Board of Education, 391 U.S . .563, .561 (1961). 
30. Htpps, 47.5 U.S. 11 777. 
31. Id. 11 776. 
32. Id. 
33. Id. 11 77.5. 
34. New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). The S11Uivan test was ext.ended 
to include "public figures• in Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967). 
284 TUUNE J. OF INTL&: COMPARATIVE U W [Vol. 1: 279 
defendant." 
In the noted case, the Supreme Court of New York County applied New 
y orlc • s limitations on libel actions to bar the enforcement of Bachchan 's foreign 
judgment. The court first noted the grounds for non-recognition of a foreign 
judgment as provided in the New York Recognition Act.36 Applying the facts 
of the case to the appropriate provisions of the New York Recognition Act, the 
court found that Bachchan's claim contained none of the characteristics that 
trigger mandatory denial of enforcement under the Act.» The court then sought 
to ascertain whether the •cause of action on which the judgment [was] based 
[was] repugnant to the public policy of [New York); 31 in order to determine 
whether the court possessed discretion to deny enforcement.)9 Bachchan argued 
that the reference in the New York Recognition Act to "causes of action; 40 
rather than to judgments, limited the court's power to deny recognition to those 
causes of action that are not available in New York. A libel cause of action is 
an actionable tort in New York and a court should therefore enforce the 
judgment without determining whether the defendant's actions would be culpable 
under New York Jaw. The court rejected this reasoning, however, finding "it 
doubtful whether this court has discretion to enforce the judgment if the action 
in which it was rendered failed to comport with the constitutional standards for 
adjudicating libel claims: 41 The court further stated that "if .. . the public 
policy to which the foreign judgment is repugnant is embodied in the First 
Amendment to the United States Constitution or the free speech guaranty of the 
Constitution of this State, the refusal to recognize the judgment should be, and 
it is deemed to be, constitutionally mandatory."41 Therefore, if the libel Jaw in 
England did not offer the free speech protections granted by the United States 
Constitution, the denial of recognition of English libel judgments would 
effectively become mandatory.43 
JS. Gertz v. Robert Welch, Inc., 41S U.S. 323 (1974). 
36. N.Y. av. Puc. L & R. t S304 (McKinney 197S). 
37. Bachchan, SSS N.Y.S.2d at 662; N.Y. CJv. PRAc. L & R. f S304(a). 
3S. N.Y. av. PRAc. L & R. f S304(bX4). 
39. Bachchan, SSS N.Y.S.2d at 662. 
40. N.Y. CJv. Puc. L & R. I S304(bX4). 
41. Baclichan, SSS N.Y.S.2d at 662. This finding is in acc:ordance with the decisions of other 
courts. ~t von Mehren & Patt.enon, supra note 10, at 61. 
42. Bachchan, SSS N.Y.S.2d at 662. 
43. Id. 
1993) RECENT DEVEWPMENTS 285 
The court then examined the libel law applied by the High Court of 
Justice in London to determine #whether its provisions [met] the safeguards for 
the press which have been enunciated by the courts of (the United States].# .. 
It was unnecessary to detennine whether the plaintiff was a public or private 
figure under New York law." Instead, the court compared the procedures of 
the English Court with the constitutionally mandated procedures employed by the 
United States Supreme Court and the courts of New York in suits by private 
persons complaining of press reports on matters of public concem.46 
English law places the burden of proving the truth of an allegedly libelous 
statement on the defendant.0 The only burden that a plaintiff must carry in an 
English libel action is proving that the defendant published a statement, bearing 
a defamatory meaning, that referred to the plaintiff;" unlike an American libel 
plaintiff, an English libel plaintiff must prove only falsity or fault.49 
India Abroad's article was of public concern because of its relation to an 
international scandal.'° Therefore, under United States law, Bachchan would 
have had to show the falsity of the statement or the defendant's fault in 
publishing it - actual malice.' 1 Emphasizing the differences between placement 
of the burden of proof in England and America, the court concluded that English 
law did not require Bachchan to prove India Abroad's fault or the falsity of its 
statement, and therefore the English court did not safeguard the freedoms of 
speech and press as would be required in New York by the United States 
Constitution and the Constitution of the State of New York. Preserving the 
rights of free speech and press is a fundamental public policy, and the court 
therefore deemed Bachchan's judgment to be unenforceable in New York as 
contrary to New York public policy.n 
lltrough its decision in Bachchan, the court effectively created a 
mandatory ground for denial of a foreign money-judgment in New York that is 
not stated in the New York Recognition Act. The court added violation of First 
44. Id. 
45. Id. (noting that English coUJ1s do no1 distinguish between public or private figures). 
46. Id. at 663. 
47. Id. 
48. Id. 
49. Id. 
50. Id. al 664. 
51. SulUvon, 376 U.S . al 280. 
52. H~pps, 475 U.S. al 776. 
286 TUUNE J. OF INTL & COMPA.RA11VE UW [Vol. 1: 279 
Amendment values to the mandatory denial category of the New York 
Recognition Act, which had previously been reserved for procedures violating the 
due process clause. SJ Essentially, the court determined that the placement of the 
burden of proof in English libel suits is so seriously repugnant to New York's 
notions of fairness and sound policy that Bachchan 's libel judgment should not 
be enforced in New York. The court thereby effectively held that English libel 
judgments are pu se unenforceable in New Yorlc.54 This determination may be 
reasonable, but the court did not consider any of the cases in which courts 
granted recognition, even where the laws or procedures of the foreign country 
differed significantly from those of the United States." Furthermore, by 
rendering English libel judgments per se unenforceable, the court precluded the 
enforcement of future libel awards, in which enforcement might not be repugnant 
to the public policy of New Y orlc. 
The court in the noted case may have based its decision upon a policy 
that the United States may not want to require. State court determination of 
comity and policy with respect to the decisions of foreign courts may adversely 
affect the foreign policy and foreign relations of the United States, and therefore 
federal statutory preemption of the law of recognition of foreign judgments may 
be desirable. Centralized control of recognition would remove many of the 
inconsistencies presently involved in the application of the laws of the states 
severally, and this, in tum, would facilitate a more uniform foreign policy with 
respect to the law of recognition." In addition, a uniform federal recognition 
law would ensure that state decisions would comport with federal policy toward 
foreign tribunals and foreign states. 
S3. N.Y. CJv. Puc. L &: R. f S304(a). 
S4. Bachchan, SSS N.Y.S.2d at 662. 
STEVEN S. HEINRICHS 
SS. Su Hlbon, IS9 U.S. 113; Acurmonn, 788 P.2d 830; Somporttx, 4S3 F .2d 43S. 
S6. Stt Noce, IUcognllton of Foreign CoMlllry JiulgmtlllS - A Cast for Ftdtra//UJt/on 22 TEx. INl"L 
LI. 331 (1987). ' 


Bachchan v. India Abroad Publications Inc.: Non-Recognition of English Libel Judgments in New York

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