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Enforcement of Foreign Judgments 2019 Enforcement of Foreign Judgments 2019 GETTING THROUGH THE DEAL Enforcement of Foreign Judgments Enforcement of Foreign Judgments of Foreign Enforcement Contributing editor Patrick Doris 2019 2019 © Law Business Research 2018 Enforcement of Foreign Judgments 2019 Contributing editor Patrick Doris Gibson, Dunn & Crutcher UK LLP Reproduced with permission from Law Business Research Ltd This article was first published in September 2018 For further information please contact [email protected] Publisher Law The information provided in this publication is Tom Barnes general and may not apply in a specific situation. [email protected] Business Legal advice should always be sought before taking Research any legal action based on the information provided. Subscriptions This information is not intended to create, nor does James Spearing Published by receipt of it constitute, a lawyer–client relationship. [email protected] Law Business Research Ltd The publishers and authors accept no responsibility 87 Lancaster Road for any acts or omissions contained herein. The Senior business development managers London, W11 1QQ, UK information provided was verified between July and Adam Sargent Tel: +44 20 3780 4147 August 2018. Be advised that this is a developing [email protected] Fax: +44 20 7229 6910 area. Dan White © Law Business Research Ltd 2018 [email protected] No photocopying without a CLA licence. Printed and distributed by First published 2012 Encompass Print Solutions Eighth edition Tel: 0844 2480 112 ISBN 978-1-78915-019-3 © Law Business Research 2018 Gibson, Dunn & Crutcher UK LLP UNITED KINGDOM United Kingdom Patrick Doris, Rebecca Sambrook and Helen Elmer Gibson, Dunn & Crutcher UK LLP 1 Treaties of the EU/EEA instruments as obtaining a declaration of enforceabil- Is your country party to any bilateral or multilateral treaties ity). This process is known as exequatur. A defendant may object on the following grounds: for the reciprocal recognition and enforcement of foreign • the original court lacked jurisdiction to hear the matter (the judgments? What is the country’s approach to entering into Brussels I Regulation contains detailed provisions in that regard); these treaties and what, if any, amendments or reservations • recognition and enforcement would be manifestly contrary to UK has your country made to such treaties? public policy; The law pertaining to recognition and enforcement of foreign judg- • the defendant was not served with proceedings in time to enable it ments in the United Kingdom can be found in a number of different to prepare a proper defence; or sources, including treaties, statutes and the common law. The applica- • conflicting judgments exist in the United Kingdom or other mem- tion of the law depends primarily on the jurisdiction whose courts have ber states. issued the foreign judgment (‘original’ judgment or court), as well as the date of issue and subject matter of the foreign proceedings. Further However, the Recast Regulation has abolished this procedure; and arti- details on non-treaty sources of law can be found in question 3. The cle 39 of the Recast Regulation provides that a judgment that has been United Kingdom comprises three separate court systems in England given in a member state and is enforceable in that member state shall and Wales, Scotland and Northern Ireland. While the treaty obligations be enforceable in other member states without the need for a declara- and the key relevant statutes apply equally to all three jurisdictions, the tion of enforceability. As described more fully in questions 9, 19 and common law and applicable procedure may vary. This chapter focuses 20, an application can be made for the courts of the relevant member primarily on the law and procedure of England and Wales. state to refuse enforcement by the party against which enforcement is sought as follows: • if the enforcement would be manifestly contrary to UK public Recognition and enforcement of judgments policy; The United Kingdom is party to treaty-based schemes for the enforce- • if the defendant was not served with proceedings in time to enable ment of judgments as a member of the European Union (EU) and the it to prepare a proper defence; or European Economic Area (EEA). • conflicting judgments exist in the United Kingdom or other mem- The Recast Brussels Regulation (EU) No. 1215/2012 (Recast ber states. Regulation), which reformed Regulation (EC) No. 44/2001 (Brussels I Regulation), provides for the speedy and simplified enforcement of Insofar as matters within the scope of the Recast Regulation and the judgments obtained in the courts of one EU/EEA member state in Brussels I Regulation are concerned, they supersede the Brussels all other member states. The Recast Regulation came into force on Convention on Jurisdiction and Enforcement of Judgments in Civil 10 January 2015 and applies to any case brought on or after that date and Commercial Matters 1968. This is also true for the following mem- (Brussels I will continue to apply to any case that was brought prior to 10 ber states: Austria, Belgium, Bulgaria, the Czech Republic, Denmark, January 2015). The Recast Regulation (and, as applicable, the Brussels Estonia, Finland, France, Germany, Greece, Cyprus, Hungary, Italy, I Regulation) applies to orders of courts and tribunals of any nature in Latvia, Lithuania, Luxembourg, Malta, the Netherlands, Poland, civil and commercial matters, with the exception that it specifically Portugal, Ireland, Romania, Slovakia, Slovenia, Spain and Sweden. excludes revenue, customs and administrative law matters; although The two Regulations also supersede a number of bilateral enforcement in a recent judgment in Pula Parking d.o.o. v Tederahn (Case C-551/15), treaties that the United Kingdom had previously entered into with the Court of Justice of the European Union (CJEU) held that where a other member states. The Brussels Convention 1968 continues to apply company owned by a public authority is exercising its functions inde- between a limited number of territories and EU member states. The pendently of the public authority that owns it, the relationship between Lugano Convention on Jurisdiction and the Enforcement of Judgments the parties to a dispute may be one in private law. Proceedings between in Civil and Commercial Matters 2007 (in force since 2010 and replac- these parties will come within the definition of civil and commercial ing the previous Lugano Convention of 1988) applies to enforcement of matters. The Recast Regulation also does not apply to orders pertain- judgments given in Iceland, Norway and Switzerland on substantially ing to matrimonial relationships, wills, succession, bankruptcy, social similar terms to the Brussels I Regulation. security or arbitration. Judicial decisions on the Recast Regulation and The European system also includes three procedures aimed at the Brussels I Regulation by the CJEU are binding on member states. simplifying and speeding up the process and reducing the cost of Under both the Recast Regulation and the Brussels I Regulation the recognition and enforcement. Where these procedures are used, the default rule on jurisdiction applies, meaning that if a defendant is resulting judgments can be enforced without the need for further reg- domiciled in an EU member state such as the United Kingdom, it must istration in other member states. be sued in the United Kingdom unless the claim falls into one of the Where a judgment for a specific sum of money has been obtained exceptions listed in the instrument. For example, in tort actions the in uncontested proceedings – meaning that the debtor has admitted defendant may be sued where the harmful event took place and in con- to liability, failed to object or failed to appear – the judgment can be tract cases the jurisdiction where the contract is to be performed. certified by the issuing court under Regulation (EC) No. 805/2004 Judgments covered by the Brussels I Regulation first need to be (European Enforcement Order (EEO) Regulation). The certified judg- registered in the part of the United Kingdom (England and Wales, ment can then be recognised and enforced in other member states with Scotland or Northern Ireland) in which enforcement will be sought, by little possibility of the defendant opposing its enforcement, except in way of an application for registration (registration is referred to in many www.gettingthedealthrough.com 93 © Law Business Research 2018 UNITED KINGDOM Gibson, Dunn & Crutcher UK LLP the case of conflicting judgments. The EEO Regulation applies to with shipping, aircraft, railway rolling stock or goods used for com- judgments given after 21 January 2005 and requires that certain mini- mercial purposes; policy holders carrying on businesses over a certain mum procedural standards be met prior to certification. The EEO size; or contracts of insurance between parties domiciled in the same Regulation’s application is limited to contracts concluded between contracting state and conferring jurisdiction on that state, where if the certain classes of parties; the CJEU has previously held that the EEO harmful event occurred abroad. This reflects the special provisions Regulation does not apply to contracts between two persons who are in relation to insurance, which are set out in articles 15 and 16 of the not engaged in commercial or professional activities (see Vapenik v Recast Regulation. Thurner (Case C-508/12) [2013] CJEU)). Under the CJJA 1982 there is a simple procedure for the recognition As an alternative, where a civil or commercial claim does not exceed of judgments arising from Hague Convention 2005 states. Judgments €5,000, excluding interest, expenses and disbursements, cross-border will be registered for enforcement if they are enforceable or effective claims may be brought under the simplified procedure laid down in in their country of origin. The party against which judgment is sought Regulation (EC) No. 861/2007 (European Small Claims Procedure, is not entitled to make submissions on an application for registration as amended by Regulation (EU) No.
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