Enforcement of Foreign Judgments 2019

ICLG

The International Comparative Legal Guide to: Enforcement of Foreign Judgments 2019

4th edition A practical cross-border insight into the enforcement of foreign judgments

Published by Global Legal Group, in association with CDR, with contributions from:

Advokatfirman Hammarskiöld & Co KLEYR GRASSO Allen & Gledhill (Myanmar) Co., Ltd. Konrad Partners Allen & Gledhill LLP Legance – Avvocati Associati Archipel Linklaters LLP Bär & Karrer Ltd. Matheson Bird & Bird Montanios & Montanios LLC Blake, Cassels & Graydon LLP Mori Hamada & Matsumoto Brain Trust International Law Firm N-Advogados & CM Advogados Covington & Burling LLP Osborne Clarke LLP CSL Chambers Prudhoe Caribbean Debarliev, Dameski and Kelesoska, Attorneys at Law Quevedo & Ponce Esenyel|Partners Lawyers & Consultants Rahmat Lim & Partners Fichte & Co Roberts & Shoda GANADO Advocates Van Oosten Schulz De Korte GASSER PARTNER Attorneys at Law Williams & Connolly LLP Herbert Smith Freehills Germany LLP Wolf Theiss Faludi Erős Attorneys-at-Law King & Wood Mallesons Wolf Theiss Rechtsanwälte GmbH & Co KG The International Comparative Legal Guide to: Enforcement of Foreign Judgments 2019

General Chapters: 1 Enforcement Against State Parties in England: A Creditor’s Long Journey Through Sovereign Immunity – Louise Freeman & Chiz Nwokonkor, Covington & Burling LLP 1

2 European Union – Stefaan Loosveld & Nino De Lathauwer, Linklaters LLP 7

3 International Enforcement Strategy – An Overview – Andrew Bartlett, Osborne Clarke LLP 12 Contributing Editors Louise Freeman and Chiz Nwokonkor, Country Question and Answer Chapters: Covington & Burling LLP 4 Angola N-Advogados & CM Advogados: Nuno Albuquerque & Sales Director Conceição Manita Ferreira 17 Florjan Osmani Account Director 5 Australia Bird & Bird: Sophie Dawson & Jarrad Parker 22 Oliver Smith 6 Austria Konrad Partners: Dr Christian W. Konrad & Philipp A. Peters 28 Sales Support Manager Toni Hayward 7 Belgium Linklaters LLP: Stefaan Loosveld & Nino De Lathauwer 35

Sub Editor 8 Canada Blake, Cassels & Graydon LLP: Erin Hoult & Josianne Rocca 40 Hollie Parker Senior Editors 9 China King & Wood Mallesons: Zhang Mei 46 Caroline Collingwood Rachel Williams 10 Cyprus Montanios & Montanios LLC: Yiannis Papapetrou 52

11 Ecuador Quevedo & Ponce: Alejandro Ponce Martínez & María Belén Merchán 58 CEO Dror Levy 12 England & Wales Covington & Burling LLP: Louise Freeman & Chiz Nwokonkor 63

Group Consulting Editor 13 France Archipel: Jacques-Alexandre Genet & Michaël Schlesinger 69 Alan Falach

14 Germany Herbert Smith Freehills Germany LLP: Catrice Gayer & Sören Flecks 74 Publisher Rory Smith 15 Hong Kong King & Wood Mallesons: Barbara Chiu & Crystal Luk 81 Published by Global Legal Group Ltd. 16 Hungary Wolf Theiss Faludi Erős Attorneys-at-Law: Artúr Tamási & Enikő Lukács 87 59 Tanner Street London SE1 3PL, UK 17 India CSL Chambers: Sumeet Lall & Sidhant Kapoor 92 Tel: +44 20 7367 0720 Fax: +44 20 7407 5255 18 Ireland Matheson: Julie Murphy-O’Connor & Gearóid Carey 97 Email: [email protected] URL: www.glgroup.co.uk 19 Italy Legance – Avvocati Associati: Daniele Geronzi & Stefano Parlatore 105 GLG Cover Design 20 Japan Mori Hamada & Matsumoto: Yuko Kanamaru & Yoshinori Tatsuno 111 F&F Studio Design 21 Liechtenstein GASSER PARTNER Attorneys at Law: Thomas Nigg & Domenik Vogt 116 GLG Cover Image Source iStockphoto 22 Luxembourg KLEYR GRASSO: Emilie Waty & Ella Schonckert 122 Printed by Ashford Colour Press Ltd 23 Macedonia Debarliev, Dameski and Kelesoska, Attorneys at Law: Ivan Debarliev & March 2019 Martina Angelkovic 127

Copyright © 2019 24 Malaysia Rahmat Lim & Partners: Jack Yow & Daphne Koo 132 Global Legal Group Ltd. All rights reserved 25 Malta GANADO Advocates: Antoine Cremona & Luisa Cassar Pullicino 138 No photocopying 26 Myanmar Allen & Gledhill (Myanmar) Co., Ltd.: Minn Naing Oo 142 ISBN 978-1-912509-61-4 ISSN 2397-1924 27 Netherlands Van Oosten Schulz De Korte: Jurjen de Korte 146

Strategic Partners 28 Nigeria Roberts & Shoda: Adeniyi Shoda & Abolanle Davies 150

29 Portugal N-Advogados & CM Advogados: Nuno Albuquerque & Filipa Braga Ferreira 157

30 Romania Wolf Theiss Rechtsanwälte GmbH & Co KG: Andreea Zvâc & Andreea Anton 163

31 Singapore Allen & Gledhill LLP: Tan Xeauwei & Melissa Mak 168

32 Spain King & Wood Mallesons: Alfredo Guerrero & Fernando Badenes 174

PEFC Certified 33 Sweden Advokatfirman Hammarskiöld & Co: Sandra Kaznova & Caroline Bogemyr 179

This product is from sustainably managed forests and 34 Switzerland Bär & Karrer Ltd.: Saverio Lembo & Aurélie Conrad Hari 185 controlled sources PEFC/16-33-254 www.pefc.org 35 Taiwan Brain Trust International Law Firm: Hung Ou Yang & Jia-Jun Fang 192

Continued Overleaf

Further copies of this book and others in the series can be ordered from the publisher. Please call +44 20 7367 0720

Disclaimer This publication is for general information purposes only. It does not purport to provide comprehensive full legal or other advice. Global Legal Group Ltd. and the contributors accept no responsibility for losses that may arise from reliance upon information contained in this publication. This publication is intended to give an indication of legal issues upon which you may need advice. Full legal advice should be taken from a qualified professional when dealing with specific situations.

WWW.ICLG.COM The International Comparative Legal Guide to: Enforcement of Foreign Judgments 2019

Country Question and Answer Chapters: 36 Turkey Esenyel|Partners Lawyers & Consultants: Selcuk Esenyel 196

37 Turks and Caicos Islands Prudhoe Caribbean: Willin Belliard & Tim Prudhoe 201

38 United Arab Emirates Fichte & Co: Alessandro Tricoli & Jasamin Fichte 205

39 USA Williams & Connolly LLP: John J. Buckley, Jr. & Ana C. Reyes 210

EDITORIAL

Welcome to the fourth edition of The International Comparative Legal Guide to: Enforcement of Foreign Judgments. This guide provides corporate counsel and international practitioners with a comprehensive worldwide legal analysis of the laws and regulations relating to the enforcement of foreign judgments. It is divided into two main sections: Three general chapters. These are designed to provide readers with a comprehensive overview of key issues affecting the enforcement of foreign judgments, particularly from the perspective of a multi-jurisdictional transaction. Country question and answer chapters. These provide a broad overview of common issues in the enforcement of foreign judgments in 36 jurisdictions. All chapters are written by leading lawyers and industry specialists, and we are extremely grateful for their excellent contributions. Special thanks are reserved for the contributing editors Louise Freeman and Chiz Nwokonkor of Covington & Burling LLP for their invaluable assistance. Global Legal Group hopes that you find this guide practical and interesting. The International Comparative Legal Guide series is also available online at www.iclg.com.

Alan Falach LL.M. Group Consulting Editor Global Legal Group [email protected] chapter 12 England & wales louise freeman

covington & Burling llP chiz nwokonkor

1 Country Finder Applicable Law/ Relevant Corresponding Statutory Regime Jurisdiction(s) Section Below Hague Convention on All Member States of See Chapter 2 and 1.1 Please set out the various regimes applicable to Choice of Court the EU (except question 5.1. recognising and enforcing judgments in your Agreements (Hague Denmark) and Mexico jurisdiction and the names of the countries to which Convention). and Singapore. such special regimes apply. Statutory Regimes Administration of Many Caribbean Section 3. Applicable Law/ Relevant Corresponding Justice Act 1920 countries/former Statutory Regime Jurisdiction(s) Section Below (“AJA”). British dominions EU Regime* including Bermuda, British Virgin Islands, EU Regulation All Member States of See Chapter 2. Cayman Islands; and 1215/2012 on the EU (except several African nations jurisdiction and the Denmark). including Ghana, recognition and Kenya, Nigeria, enforcement of Uganda, Tanzania, judgments in civil and Zambia and commercial matters Zimbabwe. Other (Brussels Recast principal countries Regulation) applicable include Republic of to legal proceedings Cyprus, Malta, New instituted on or after Zealand and Malaysia. 10 January 2015. Foreign Judgments Mainly countries in the Section 3. EU Regulation All Member States of See Chapter 2. (Reciprocal Commonwealth such 44/2001 on the EU. Enforcement) Act as Australia, Canada jurisdiction and the 1933 (“FJA”). (except Quebec), recognition and India, Guernsey, enforcement of Jersey, Isle of Man, judgments in civil and Israel, Pakistan, commercial matters Suriname and Tonga. (Brussels Regulation) applicable to General Regime judgments given in English common law Countries to which Section 2. legal proceedings regime. none of the above instituted before 10 specific January 2015. statutes/regulations Convention on Iceland, Norway and See Chapter 2. apply including USA, jurisdiction and the Switzerland. China (including Hong enforcement of Kong), Russia and Brazil. judgments in civil and commercial matters signed in Lugano on *Please see chapter 2 for further information on the EU recognition 30 October 2007 and enforcement regime. (Lugano Convention).

iclg to: EnforcEmEnt of forEign judgmEnts 2019 www.iclg.com 63 © Published and reproduced with kind permission by Global Legal Group Ltd, London 64 England & wales injunctions, arenotenforceable. including orders, interim and judgments non-money law, common party.injured an to two these under Accordingly at as well as Acts, payment of a sum of money in respect of compensation or damages given or made by a court in any civil or criminal proceedings for the similar a has FJA The order 11,or section judgment at a definition as judgment a defining payable. is money of sum any whereby any means “judgment” that provides judgment or order given or made 12) by a court in any civil proceedings, section (at AJA The orders, includinginjunctions. interim and judgments non-money scope their from preclude not do expenses. therefore or instruments costs These of determination called, including be a decree, order,may decision or judgment writ of execution a as well as whatever the judgment tribunal or any court a means by given “judgment” that stipulate all 2(a)) Article (at Regulation Recast Brussels Brussels the the and 32) 32), Article (at Regulation Article (at Convention Lugano the Similarly, court. or a writ of control, and a determination of costs by an officer of the execution of writ a decision, order,a an decree, a includes England 74.2(c) CPR called. be in enforcement of context the in “judgment” foreign a that provides may it whatever tribunal, or court a by given judgment any be to considered is judgment law,a English In Whatconstitutesa‘judgment’ capableofrecognition England&wales 2.2 in Part74oftheEnglishCivilProcedureRules(“CPR”). out set is judgments foreign such of enforcement for procedure The law. and EU special the of scope statutory regimes listed above are dealt with under the English common outside fall which Wales and England in judgments foreign of enforcement and recognition The Absentanyapplicablespecialregime,whatisthe 2.1 covington &BurlingllP © Published andreproduced withkindpermission byGlobalLegal GroupLtd,London www.iclg.com was given was judgment the whom against person the b) the at was, given was judgment the whom against person the a) taken tomeanoneofthefollowing: is which jurisdiction, competent of court a by rendered been have to enforced be to judgment the require also rules law common The the pending proceedings enforcement outcome ofthatappeal. on stay a grant to likely are courts English the jurisdiction, that in appeal of subject the is fresh proceedings in that foreign jurisdiction. If a foreign judgment and binding final, where it would be have precluded the unsuccessful party from bringing must it law, conclusive. A common foreign judgment is only considered final and binding at enforced and recognised be to judgment foreign a for order in above, noted As Whatrequirements (informandsubstance)musta 2.3 GeneralRegime 2 would berecognisedandenforcedinyour legal frameworkunderwhichaforeignjudgment court; claimant, or counterclaimed, in the proceedings in the foreign country; foreign the in present instituted, were proceedings the time foreign judgmentsatisfyinordertoberecognised jurisdiction? and enforceableinyourjurisdiction? and enforcementinyourjurisdiction? iclg to:EnforcEmEnt offorEignjudgmEnts 2019 f h aad ie cmeln a at t py h sm f money of sum the pay to ordered bytheforeigncourt. party a compelling i.e. award, the of execution the for required is and recognition follows Enforcement The claimant must also file and serve “particulars of claim” on the on claim” of “particulars serve and file also must claimant The claim. other any for would one as Form) Claim a issuing (by claim new a commence must claimant) (the enforcement seeking party the law, common at judgment a enforce and recognise to order In Brieflyexplaintheprocedureforrecognising and 2.6 proceedings ( within claims defending other in judgment foreign the of findings the on as relying or England such reasons, several for judgment that of recognition seek may party however,a court; English the of enforced for the reason that the assets fall outside of the jurisdiction rem in not all recognised judgments are enforced. For example, a judgment circumscribed territorially all foreign judgments enforced by English courts are recognised, but own Therefore, courts. English its the of medium the without of jurisdiction outside operate cannot court foreign a of judgment a that reason the for made is distinction Before a judgment can be enforced, it must first be recognised. The Isthereadifferencebetweenrecognitionand 2.5 jurisdiction. is not the most convenient forum if there is no real connection to (CPR the Wales or England 3.1(10)). with Direction Practice Amay,court however,it that conclude connection to of need degree any a without establish law common at enforcement on of decide questions to jurisdiction have Wales and England of courts The What(ifany)connectiontothejurisdictionisrequired 2.4 xsec o ohr biain i cnucin ih hs o a of from enforcementunderthecommonlaw. those with the conjunction Therefore, in judgment foreign a exclude necessarily not does payment monetary money. obligations of other sum of specified existence a pay to obligation the an constitute not do which judgment foreign the enforce of parts other any can disregarding judgment, it foreign the in out i.e. set obligations payment proceedings, enforcement the of for judgment foreign purposes a of parts sever can court English The can be recognised but cannot be enforced under Engl payment into court or a declaration/dismissal specificof a for courts order foreign from interim obtained judgments injunctions, that example, for means, for taxes, fines or penalties) can be enforced unde definitefinaljudgmentsOnlysumapayment for of the person against whom the judgment was given had, before d) submitted given was judgment the whom against person the c) enforcement ofjudgments?Ifso,whatarethelegal for yourcourtstoacceptjurisdictionrecognition h sbet atr f h poedns t sbi t the to submit to proceedings, the jurisdiction ofthatcourtorthecourtscountry. of matter subject the of respect in agreed, proceedings, the of commencement the the merits);or on arguments such with conjunction in brought be only can jurisdiction to challenge law,a local under where merits the proceedings (which will not include submitting arguments on to the jurisdiction of that court by voluntarily appearing in the enforcing aforeignjudgmentinyour jurisdiction. effects ofrecognitionandenforcementrespectively? and enforcementofaforeignjudgment? gis a ast usd o Egad n Wls ant be cannot Wales and England of outside asset an against res judicata ). r common law. This claim/counterclaim ish common law. of money(saveof performance, ad other and s covington & Burling llP England & wales judgment debtor, setting out the circumstances of the foreign the national legal framework through the supra-national legislative judgment. Service may need to be effected outside the jurisdiction authority of the EU (in the form of binding regulations enacted by if the judgment debtor is not resident within the jurisdiction, which the European Parliament or treaties to which the UK is a party), or may require permission to serve the proceedings out of the are given effect through the enactment of national legislation. The jurisdiction, further complicating and/or delaying the process. Once Cross-Border Insolvency Regulations 2006 (SI 2006/1030), the service is effected, the process is then usually expedited by the Civil Aviation Act 1982, Carriage of Goods by Road Act 1965, claimant applying for summary judgment (under CPR Part 24), on Shipping Act 1995, etc. are such examples. grounds that the judgment debtor has no real prospect of success as evidenced by the foreign judgment. The effect of applying for 2.9 What is your court’s approach to recognition and summary judgment is that the process of enforcing the foreign enforcement of a foreign judgment when there is: (a) a judgment is expedited and simplified. conflicting local judgment between the parties Note, however, the issues highlighted below at question 2.7, point d) relating to the same issue; or (b) local proceedings pending between the parties? in relation to the enforcement of foreign judgments given in default England & wales and against defendants that have not expressly submitted to the jurisdiction of the foreign court, which may affect the amenability of Under common law, the defendant is entitled to challenge the enforcement action to summary judgment. recognition and enforcement of a judgment on the basis that a previous conflicting English judgment exists which has been conclusive in deciding the issues between the parties. The principle 2.7 On what grounds can recognition/enforcement of a of res judicata would apply here, pursuant to which the matter judgment be challenged? When can such a challenge already decided would be resolved in favour of the previous English be made? judgment, in the interest of judicial certainty. If proceedings are ongoing in an English court between the parties at Recognition and enforcement under the common law regime may the time when one of the parties seeks recognition or enforcement of be challenged by the defendant on the following grounds: a foreign judgment on the same issue(s), the English court is likely a) the foreign judgment is not final and conclusive. A final to stay the English proceedings until the judgment creditor’s claim judgment is one that is final in the court in which the for recognition and enforcement has been determined. The judgment was made and may not be re-adjudicated by the principle of res judicata is applied by the English court equally in same court; cases where the issue has already been decided by a competent court b) the foreign court did not have jurisdiction over the parties. A in a foreign jurisdiction. foreign judgment is only enforceable if the foreign court had jurisdiction according to English principles of private international law. It is not sufficient if the foreign court had 2.10 What is your court’s approach to recognition and jurisdiction according to its own legal rules; enforcement of a foreign judgment when there is a c) the judgment is contrary to the public policy of England; conflicting local law or prior judgment on the same or a similar issue, but between different parties? d) the foreign judgment offends the principles of natural justice or substantial justice enshrined in the English legal system; for example, if the defendant was not given due notice of the Generally, the basis for challenging enforcement under common law original proceedings (with the result that judgment was will not include an investigation of the merits of the claim/award obtained in default) or was not given a fair opportunity to be being enforced. A foreign judgment may not therefore be heard; challenged on the grounds that the foreign court was manifestly e) the judgment was fraudulently obtained; wrong on the merits of the case or misapplied the relevant law. f) recognition of the foreign judgment would result in the However, if the foreign court’s judgment conflicts with an existing contravention of the Human Rights Act 1998; English law or if the foreign judgment is irreconcilable with an English judgment on the same issues, then the court may refuse to g) the dispute in question should be submitted to the determination of the courts of another country; recognise the foreign judgment on grounds that its recognition and enforcement would be contrary to public policy. h) the judgment imposes a fine or a penalty upon the judgment debtor; and i) there exists a previous final and conclusive judgment of a 2.11 What is your court’s approach to recognition and competent foreign or English court with sufficient enforcement of a foreign judgment that purports to jurisdiction that conflicts with the judgment that is being apply the law of your country? sought to be enforced. These challenges can be made by the defendant in the proceedings A judgment of a foreign court purporting to apply English law would issued for the recognition or enforcement of the judgment. These be treated the same as any other foreign judgment. A foreign judgment grounds can be relied upon in the evidence submitted by the is not open to challenge on the ground that it misapplies English law. judgment debtor resisting the claimant’s summary judgment application under CPR Part 24 or employed as defences to 2.12 Are there any differences in the rules and procedure recognition and enforcement. of recognition and enforcement between the various states/regions/provinces in your country? Please explain. 2.8 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? The United Kingdom does not constitute a legal union, as the laws of England and Wales differ from those of Scotland and Northern Ireland. Enforcement of foreign judgments in Scotland and There are several specific regimes pertaining to enforcement of Northern Ireland are subject to their domestic jurisdictional and judgments on specific subject matters such as shipping, aviation, procedural rules, which are not addressed here. intellectual property, etc. These regimes are either incorporated into iclg to: EnforcEmEnt of forEign judgmEnts 2019 www.iclg.com 65 © Published and reproduced with kind permission by Global Legal Group Ltd, London 66 England & wales last judgment. the of date the from runs time proceedings, appeal been have there If enforced. be six to sought judgment final the of within date the from years accept registered be must to judgments foreign FJA, discretion the Under the retains court registrations afterthelapseofstipulatedperiod. English enforced, the be to sought although judgment final the of date the from year the Under one within registered be must judgment foreign the AJA, according toitsownrules. jurisdiction had court foreign sufficientthe not that is It principles. law English to according dispute in issues relevant the and parties the over jurisdiction had have should court foreign the that require the registered, be to judgment foreign AJAthe for order In FJAand being formallyservedintimeordertosucceedonthisdefence. to opposed as proceedings the of aware made not was it that show to have would defendant The unenforceable. judgment foreign the render not will service in irregularity procedural mere a However,FJA. and AJA the under refused be may judgment foreign the of defend the action is a ground on which recognition and enforcement Failure to serve proceedings on the defendant in order to enable it to and penalties andtaxes). final than (other covers money of sum only a of payment regime) for judgments conclusive law common the (like FJA The judgment shouldbeenforcedinEngland. the English court in its discretion finds it just and convenient that the case, the of circumstances the all in if, England in registered be can AJAthe by covered countries Commonwealth of courts ‘superior’ All judgments for the payment of a sum of money obtained from the With referencetoeachofthespecificregimessetout 3.1 England&wales judgment foreign the at of sought toberecognisedandenforced. date judgment the from foreign years a six is enforce law to common claim a commence to period limitation the Limitation 1980, the Act of 24(1) section to Pursuant Whatistherelevantlimitationperiodtorecogniseand 2.13 the judgmentinquestionandtherearenooutstandingappeals. granted that court the in final are they as long as Ireland, Northern and Scotland of courts by granted been have they if enforcement and relief As such, there are no types of judgment excluded from recognition and 1982. Act Judgments and and injunctive Jurisdiction England Civil the in under Wales (including enforceable and recognisable relief are declarations), non-monetary and monetary both granting judgments, Irish Northern and Scottish All covington &BurlingllP © Published andreproduced withkindpermission byGlobalLegal GroupLtd,London www.iclg.com in registered be England beforetheycanbeenforced. to judgments foreign require FJA and AJA The With reference toeachofthespecificregimessetout 3.2 Special Enforcement Regimes Applicable 3 recognised andenforceableundertherespective substance) mustthejudgmentsatisfyinordertobe in question1.1,whatrequirements(informand to Judgments from Certain Countries the differencebetweenlegaleffect ofrecognition between recognitionandenforcement? Ifso,whatis in question1.1,doestheregimespecify adifference enforce aforeignjudgment? and enforcement? regime? iclg to:EnforcEmEnt offorEignjudgmEnts 2019 jurisdiction isnotrequired. directed by the court. Permission to serve the registration out the of the of any by as or personally,2006, Companies Act the under permitted service of methods it delivering by debtor judgment the on served be must order the court, English the by granted been has judgment foreign the register to permission granting order an Once enforceability must be made under CPR Part 23 using the opposition to the application. An application adeclaration of enforceability upon the considerat out in question 3.4 below, the foreign court may be Where the application for enforcement is challenged and confirm that it can be enforced by execution in FJA m a the is judgment the that underspecify also must evidence registration of case the In claimed. the foreign judgment remains unsatisfied, and the a specify the grounds for enforcement, the amount in witnes written and registration for application The in statement witness support oftheapplicationinformsetoutCPRPart74.4. a and public) notary a by certified be must is enforcement and recognition sought, an English translation (if necessary) of the judgment (which which of judgment the of copy the to notice authenticated an file must without creditor judgment debtor.The judgment made be may and Court High the at be made must registration for application the FJA, and AJA the Under With referencetoeachofthespecificregimessetout 3.3 )te or gatn te uget ce wtot uidcin jurisdiction. without acted judgment the granting court the a) foreign the of registration the judgment onthefollowinggrounds: challenge can debtor judgment the order, registration a of receipt upon FJA, and AJA the Under to court the by ordered preserve thepropertyofjudgmentdebtor. measures than other period, that of end the before taken be will enforcement of measures no that and made set registration aside, the period within which such an application or appeal the may be have to apply to debtor judgment the of right the specify will judgment the registers which order registration The With referencetoeachofthespecificregimessetout 3.4 therefore become available to the judgment creditor England. The methods of enforcement described at q judgmentbroughtawas itrespectifor inas it of enforcementproceandjudgmentEnglish an aseffect Engl in the registration, has registered of date the been from asjudgment, has judgment foreign a Once English lawprinciples. with accordance in as well as rules, and system legal own its with accordance in issues, and parties the over jurisdiction had having judgment the granted that court the and money of sum specified a register must court the FJA, judgments that fulfil certain criteria, such as the judgment being for the in specified powers the Under a retains court and convenienttoenforce. English the just finds it that judgments AJA, foreign register to the power discretionary under above, stated As in question1.1,brieflyexplaintheprocedurefor law principles; The foreign court must have jurisdiction according to English enforcement ofajudgmentbechallengedunderthe in question1.1,onwhatgroundscanrecognition/ recognising andenforcingaforeignjudgment. special regime?Whencansuchachallengebemade? for the declaration of iginallyobtained in required to provide ionof the merits of the state of origin. on the grounds set upon registration. mount of interest uestion 4.1 below ae oc and force same respect of which s evidence must evidence s Form N244. oney judgment oney edings can be canedings te written the , n, that and, covington & Burling llP England & wales b) the defendant was not served with proceedings in accordance Pursuant to CPR 74.9(1), if the defendant has made an application to with the rules of the foreign court and did not appear in the set aside an order registering a foreign judgment, no steps can be proceedings; taken to enforce the judgment until the application has been decided. c) the judgment was obtained fraudulently; d) the enforcement of the judgment would be contrary to public policy; 5 Other Matters e) the judgment imposes a fine or a penalty on the defendant; f) the judgment is not final and conclusive. The existence of a 5.1 Have there been any noteworthy recent (in the last 12 pending appeal can either defeat the enforcement action or, months) legal developments in your jurisdiction more likely, lead to a stay of the enforcement action pending relevant to the recognition and enforcement of foreign determination of the appeal; judgments? Please provide a brief description. g) the judgment has been wholly enforced in the jurisdiction of

the foreign court; and In June 2016, the UK voted to leave the EU. The UK’s exit from the England & wales h) there exists a previous final and conclusive judgment of a EU is likely to occur on 29 March 2019. At the time of this competent foreign or English court with sufficient publication going to print, it is uncertain whether the UK will exit on jurisdiction that conflicts with the judgment that is being the terms outlined in the draft Withdrawal Agreement approved by sought to be enforced. the UK Cabinet in November 2018. The application to challenge registration must be made within the If the Withdrawal Agreement is approved by the UK Parliament, the time specified in the registration order. The court may extend that Brussels Recast Regulation will continue to apply to legal period. proceedings commenced before the end of the transition period (which is currently scheduled to end on 31 December 2020). 4 Enforcement According to Article 67(1) of the Withdrawal Agreement, the Brussels Recast Regulation will also apply to related proceedings that are commenced after the conclusion of the transition period, for 4.1 Once a foreign judgment is recognised and enforced, example, those that arise from the same cause of action, or involve what are the general methods of enforcement the same parties. available to a judgment creditor? In the event the Withdrawal Bill is not passed and the UK exits on a so-called ‘no-deal’ basis, there would be no agreed EU framework Once a judgment is recognised/registered, a judgment creditor has for ongoing civil judicial cooperation between the UK and EU available to it the same methods and options to enforce that judgment or award against assets within England as it would if the countries. Neither the Brussels Recast Regulation nor the Lugano original judgment had been made in England. Under the AJA and Convention would apply to the UK. However, it would be possible FJA, enforcement proceedings cannot commence until the for the UK to seek to accede to the Lugano Convention, and this registration order has been served on the judgment debtor and the appears to be the intention of the UK Government. specified time limit for the judgment debtor to challenge the In addition, the UK Government has issued guidance confirming it registration has expired. intends to re-join the 2005 Hague Convention on Choice of Court Potential methods of enforcement available to judgment creditors Agreements in its own right by 1 April 2019. The Convention include but are not limited to: would then apply between the UK and the other contracting states, including all EU Member States, where there is an exclusive a) Charging order – Such an order would confer upon the judgment creditor an interest over the property (land, goods, jurisdiction clause in favour of one of the contracting states which securities, etc.) of the judgment debtor within the jurisdiction. was concluded after the Convention entered into force for that state. b) Order for Sale – An order to sell the assets of the judgment debtor subject to a Charging Order. 5.2 Are there any particular tips you would give, or critical c) Receivership order – This allows for the appointment of a issues that you would flag, to clients seeking to court-appointed receiver who would help gather and recognise and enforce a foreign judgment in your ascertain the judgment debtor’s assets in order to facilitate jurisdiction? payment of judgment debts. d) Third-party debt order – This allows the judgment creditor to Owing to the variety of regimes discussed above, it is particularly collect on the debts owed to the judgment debtor. Note: this important for clients seeking to enforce a foreign judgment in order cannot be made against future or foreign debts. England to consider first which of the many regimes in England e) Writ of control or warrant of control – This allows the would apply, in order to determine the procedural route to be taken judgment creditor to take possession of the judgment debtor’s to achieve enforcement. goods to sell at auction or trade in satisfaction of the debt. It is important to note that when determining whether the foreign f) Attachment of earnings order – The judgment creditor may court had competent jurisdiction, the English courts will make this seek an order compelling an employer to deduct from an employee’s salary (who is the judgment debtor) the sums determination according to the rules of English private international necessary to pay the judgment creditor. law. The fact that the foreign court had jurisdiction according to its own law is not determinative. Pursuant to section 25 of the Civil Jurisdiction and Judgments Act 1982, the English court can also grant provisional/interim measures There is a particular risk in enforcing default judgments (i.e. a such as freezing injunctions in support of enforcement of foreign judgment in which the defendant has not appeared) because they judgments pending enforcement proceedings in England. Such inevitably raise the question of whether the foreign court had provisional measures are ordinarily granted only in circumstances jurisdiction in the first place and whether the parties did, in fact, where it would be expedient to do so and there is a sufficient submit to the jurisdiction of that court. This is because, under jurisdictional link to England; for example, if the assets are located English law, there is no concept of implied submission to in England or the defendant resides in England. jurisdiction in personam, which means that the defendant must have iclg to: EnforcEmEnt of forEign judgmEnts 2019 www.iclg.com 67 © Published and reproduced with kind permission by Global Legal Group Ltd, London 68 England & wales oigo uln l England&wales the if even to defence a as immunity sovereign waived expressly has State the awards, unless transactions, enforcement commercial and to of relate judgments proceedings underlying respect foreign in of defence proceedings a as immunity sovereign Argentina in decision Court Supreme 1978 Act Immunity State the of s.3(1) of purposes the not qualify as “ do State a against judgment foreign a enforcing of purpose the for because proceedings commenced in England by a judgment creditor Immunity Sovereign Through Journey Long Creditor’s “ see [Please 1, State. Chapter a against judgment foreign a of enforcement English law recognises sovereign immunity as a valid defence to the for ajudgment order in court foreign the of jurisdiction the to submitted expressly covington &BurlingllP © Published andreproduced withkindpermission byGlobalLegal GroupLtd,London www.iclg.com one i 11, h fr hs oe hn 5 lwes n fie i Biig Busl, odn LsAgls Nw ok Sn rnic, Seoul, Francisco, San York, New Angeles, Los London, Brussels, Beijing, in offices in lawyers Shanghai, SiliconValley, 850 and Washington. than more has disputes. and firm deals, the problems, business 1919, complex in most Founded their navigate clients helps LLP Burling & Covington world, regulated increasingly an In Top 20casesof2014. by the competition significant damages action, which was named as a “standout” in competition matter parties cartel represents rubber synthetic pioneering the including proceedings, litigation also Freeman Ms. rating credit and agencies. managers, asset groups, corporate Derivatives international banks, and investment of behalf Swaps on disputes (ISDA)-related International Association and disputes asset management claims, misrepresentation and negligence claims, includes mis-selling sector services financial the in experience Freeman’s Ms. is advice dynamic strategic, her invaluable. multiple where markets, involve jurisdictions, cases financial her and challenging of including parties Most industries, navigate sciences. of life to and range technology clients a in helps situations Freeman Ms. partners”, Dispute by Described European and Litigation Commercial Resolution PracticeGroups. firm’s the chairs co- and disputes, commercial complex on focuses Freeman Louise FT ([2011] UKSC 31) confirms that a State is able to raise to able is State a that confirms 31) UKSC ([2011] ’s Innovative Lawyers 2015 nocmn Aant tt Pris n nln: A England: in Parties State Against Enforcement proceedings relating to a commercial transaction for in personam h Lgl 500 Legal The R:www.cov.com URL: [email protected] +442070672000 Email: Tel: United Kingdom London WC2R1BH 265 Strand Covington &BurlingLLP Louise Freeman tobeenforcedbyanEnglishcourt. s oe f odns ot effective most London’s of “one as M Cptl t v eulc of Republic v Ltd Capital NML and listed as one of The Lawyer ”. The UK UK The ”. ] hs is This ”]. iclg to:EnforcEmEnt offorEignjudgmEnts 2019 ’s ebr tts ad in (and enforced States be Member to continue will courts English the of judgments recognise and apply clearly drafted jurisdiction clauses and, and that of judgments, we anticipate that the English Courts will continue to enforcement and recognition for framework the to changes some in Finally, while the UK’s departure from the EU will inevitably result there are a restrictions on the type of assets available for enforcement. State, if the against judgment even a enforce Furthermore, to able is creditor judgment defence. immunity to sovereign seeking a creditor defeat judgment the to available ammunition little to enforcement proceedings is made particularly difficult, as there is against a State which has not expressly waived immunity in relation this of light In interpretation of the State Immunity Act 1978, enforcing judgments case). that of facts the on had it (as enforcement as theserviceregimeisalsolikelytofallawayuponBrexit. include provision for service to on overseas parties within Europe in prudent contracts, be also may It overcome. to steps procedural Act andotherregulatoryframeworks. training to senior executives on cross-border risk under the UK Bribery for compliance delivers assessments and jurisdictions and sectors numerous in clients risk Ms. and investigations disputes. conducts derivatives also Nwokonkor Court Commercial landmark 2014’s of disputes financial complex two in clients representing to including instructions recent with litigation, extends practice Nwokonkor’s Ms. acquisitions/joint venturesandotheraspectsofinternationaltrade. transfer,technology around compliance controls export and sanctions to relation in corporates high-profile of number a for acts Nwokonkor portfolio money laundering as well as involves fraud and international a asset tracing. corruption, Ms. and practice bribery sanctions, with economic Her of areas the in Council advising regimes. Security sanctions UN several the encompassing to assigned junior a diplomat been previously having trade lawyer, and investigations litigator and controls commercial experienced an is Nwokonkor Chiz ie versa vice R:www.cov.com URL: [email protected] +442070672000 Email: Tel: United Kingdom London WC2R1BH 265 Strand Covington &BurlingLLP Chiz Nwokonkor , let ehp wt additional with perhaps albeit ), Current titles in the ICLG series include:

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