ICLG The International Comparative Legal Guide to: Enforcement of Foreign Judgments 2018
3rd Edition A practical cross-border insight into the enforcement of foreign judgments
Published by Global Legal Group, with contributions from:
Allen & Gledhill (Myanmar) Co., Ltd. Jafa & Javali, Advocates Allen & Gledhill LLP Jones Day Archipel Konrad & Partners Bär & Karrer Ltd. Legance – Avvocati Associati Blake, Cassels & Graydon LLP Lex Navicus Concordia Boga & Associates Linklaters LLP Bonn Steichen & Partners Matheson Brain Trust International Law Firm MinterEllison Chuo Sogo Law Office, P. C. Montanios & Montanios LLC Covington & Burling LLP N-Advogados & CM Advogados Pinheiro Neto Advogados Esenyel|Partners Lawyers & Consultants Polenak Law Firm Fichte & Co Rahmat Lim & Partners Gall Simonsen Vogt Wiig GASSER PARTNER Attorneys at Law Stek Gürlich & Co. TripleOKlaw Advocates LLP Herbert Smith Freehills Germany LLP Williams & Connolly LLP Herbert Smith Freehills South Africa LLP The International Comparative Legal Guide to: Enforcement of Foreign Judgments 2018
General Chapters:
1 Beyond Brexit: Recognition and Enforcement of Judgments between the UK and the EU – Louise Freeman & Chiz Nwokonkor, Covington & Burling LLP 1
2 European Union – Sébastien Champagne & Vanessa Foncke, Jones Day 6
Contributing Editors Country Question and Answer Chapters: Louise Freeman and Chiz Nwokonkor, 3 Albania Boga & Associates: Gerhard Velaj & Eno Muja 12 Covington & Burling LLP 4 Angola N-Advogados & CM Advogados: Nuno Albuquerque & Sales Director Conceição Manita Ferreira 16 Florjan Osmani Account Director 5 Australia MinterEllison: Beverley Newbold & Tamlyn Mills 21 Oliver Smith 6 Austria Konrad & Partners: Dr. Christian W. Konrad & Philipp A. Peters 27 Sales Support Manager Toni Hayward 7 Belgium Linklaters LLP: Joost Verlinden & Nino De Lathauwer 34
Sub Editor 8 Brazil Pinheiro Neto Advogados: Renato Stephan Grion & Jane Simmons Guilherme Piccardi de Andrade Silva 40 Senior Editors Suzie Levy 9 Canada Blake, Cassels & Graydon LLP: Erin Hoult & Daniel Styler 47 Caroline Collingwood 10 China Linklaters LLP: Justin Tang 53 Chief Operating Officer Dror Levy 11 Cyprus Montanios & Montanios LLC: Yiannis Papapetrou 58 Group Consulting Editor Alan Falach 12 Czech Republic Gürlich & Co.: Richard Gürlich & Kamila Janoušková 64 Publisher 13 England & Wales Covington & Burling LLP: Louise Freeman & Chiz Nwokonkor 69 Rory Smith 14 France Archipel: Jacques-Alexandre Genet & Michaël Schlesinger 75 Published by Global Legal Group Ltd. 15 Germany Herbert Smith Freehills Germany LLP: Catrice Gayer & Sören Flecks 81 59 Tanner Street London SE1 3PL, UK 16 Hong Kong Gall: Nick Gall & Lydia Mak 88 Tel: +44 20 7367 0720 17 India Jafa & Javali, Advocates: Kirit S. Javali 93 Fax: +44 20 7407 5255 Email: [email protected] 18 Ireland Matheson: Julie Murphy-O’Connor & Gearóid Carey 98 URL: www.glgroup.co.uk 19 Italy Legance – Avvocati Associati: Daniele Geronzi & Stefano Parlatore 105 GLG Cover Design F&F Studio Design 20 Japan Chuo Sogo Law Office, P. C.: Masahiro Nakatsukasa 111 GLG Cover Image Source 21 Kenya TripleOKlaw Advocates LLP: John M. Ohaga & Gloria Mwika 116 iStockphoto 22 Kosovo Boga & Associates: Sokol Elmazaj & Delvina Nallbani 121 Printed by Stephens & George 23 Liechtenstein GASSER PARTNER Attorneys at Law: Thomas Nigg & Domenik Vogt 126 Print Group March 2018 24 Luxembourg Bonn Steichen & Partners: Fabio Trevisan & Laure-Hélène Gaicio-Fievez 132 Copyright © 2018 Global Legal Group Ltd. 25 Macedonia Polenak Law Firm: Tatjana Popovski Buloski & Aleksandar Dimic 137 All rights reserved No photocopying 26 Malaysia Rahmat Lim & Partners: Jack Yow & Daphne Koo 141
ISBN 978-1-911367-99-4 27 Myanmar Allen & Gledhill (Myanmar) Co., Ltd.: Minn Naing Oo 147 ISSN 2397-1924 28 Netherlands Stek: Gerben Smit & Max Hetterscheidt 151
Strategic Partners 29 Norway Simonsen Vogt Wiig: Tage Brigt A. Skoghøy & Ørjan Salvesen Haukaas 156
30 Portugal N-Advogados & CM Advogados: Nuno Albuquerque & Filipa Braga Ferreira 161
31 Russia Lex Navicus Concordia: Konstantin Krasnokutskiy & Alexey Drobyshev 167
32 Singapore Allen & Gledhill LLP: Tan Xeauwei & Melissa Mak 174
33 South Africa Herbert Smith Freehills South Africa LLP: Jonathan Ripley-Evans & Fiorella Noriega Del Valle 180
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 2018
34 Switzerland Bär & Karrer Ltd.: Saverio Lembo & Aurélie Conrad Hari 187
35 Taiwan Brain Trust International Law Firm: Hung Ou Yang & Jia-Jun Fang 194
36 Turkey Esenyel|Partners Lawyers & Consultants: Selcuk S. Esenyel 198
37 United Arab Emirates Fichte & Co: Alessandro Tricoli & Jasamin Fichte 203
38 USA Williams & Connolly LLP: John J. Buckley, Jr. & Ana C. Reyes 208
EDITORIAL
Welcome to the third 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: Two general chapters. These chapters 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 1
Beyond Brexit:
Recognition and Enforcement of Louise Freeman Judgments between the UK and the EU
Covington & Burling LLP Chiz Nwokonkor
The mechanism for recognising and enforcing judgments after EU Member State, wishing to enforce it in another, simply to provide the UK’s departure from the EU is an important aspect of the the competent enforcement authority with a copy of the judgment negotiations around a future agreement between the UK and the and a standard form certificate and it can then begin the enforcement EU. The outcome of these discussions could have a material impact process. Further, the Brussels Recast Regulation provides that if the on the availability of effective legal redress on a cross-border basis judgment being enforced contains measures which are not known for UK and EU citizens. The framework the parties arrive at will in the Member State of enforcement, the enforcing court can adapt have consequences for the enforcement of English judgments in EU them to a measure known to that Member State (Article 54). Member State courts, as well as for the enforcement of judgments There is a high bar for refusal of recognition and enforcement of EU Member State courts in England. If these processes were to under the Brussels Recast Regulation, which means that in general, become slower, more complicated and more expensive, this could a judgment creditor can be reasonably confident of enforcing a have a detrimental effect upon cross-border commerce, as well as judgment delivered in one Member State against an opponent in consumer redress and interpersonal relationships that rely upon a another. legal framework that can take effect throughout Europe. This system therefore currently allows free movement of Member Continued uncertainty as to the future enforcement of judgments State judgments within the EU. It will, however, fall away in into and out of the UK is, naturally, unsatisfactory for business and respect of the enforcement of English1 judgments in EU Member consumers alike. Fortunately, both sides appear to recognise the State courts, as well as for the enforcement of judgments of EU value of maintaining a system whereby judgments and orders can be Member State courts in England, once the UK leaves the EU. As recognised and enforced easily across borders notwithstanding the it is based on reciprocity, it is not a system that can be reinstated or UK’s departure, and there are indications that going forward, cross- replicated unilaterally by the UK, which will have to find another border enforcement of judgments will continue to be conducted in means to replace it (see below). an orderly and efficient manner.
Brussels Regulation2 Current Framework This predecessor instrument to the Brussels Recast Regulation It is important to briefly consider the current regime, before looking continues to apply to the enforcement of judgments of courts in the at what the future may hold. The principal elements of the current EU given in proceedings commenced before 10 January 20153 (and European enforcement framework are summarised below and therefore has a long “tail” of relevance). This regulation provides detailed further in Chapter 2. for a more involved enforcement procedure than that under the Brussels Recast Regulation. Specifically, the courts of the enforcing Brussels Recast Regulation State must first declare the judgment to be enforceable. Procedures for doing so differ from State to State and are governed by local law. As an EU Member State, the UK currently benefits from (and is Post-Brexit, the Brussels Regulation will also fall away in respect of obliged to comply with) the enforcement mechanisms under Council the enforcement of English judgments in EU Member State courts, Regulation 1215/2012 on Jurisdiction and the Recognition and as well as for the enforcement of judgments of EU Member State Enforcement of Judgments in Civil and Commercial Matters (the courts in England. “Brussels Recast Regulation”). The Brussels Recast Regulation seeks to give effect to the overarching principle that, once a Brussels Convention judgment is obtained in any Member State court, it must be readily recognised and enforced throughout the Union. This Convention on civil jurisdiction and enforcement of judgments Under this instrument, a judgment creditor can go to the enforcement was acceded by the UK in 1978 and took effect under English law by authority in another Member State (for example, where the debtor way of the Civil Jurisdiction and Judgment Act 1982. Although this has assets) without any intermediary procedure being required, has been largely superseded by the two Brussels Regulations, it still to enforce his judgment. Article 42(1) of the Brussels Recast applies to the enforcement in England and Wales of judgments from Regulation requires the beneficiary of a judgment delivered in one Gibraltar and certain dependent territories of EU Member States.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 1 Covington & Burling LLP Beyond Brexit
It will not fall away as a result of Brexit and may in fact acquire judicial cooperation on a reciprocal basis, which reflects greater significance post-Brexit – see below. closely the substantive principles of cooperation under the current EU framework”. ■ The UK also responded to the transitional arrangements to 2007 Lugano Convention apply on its exit, stating that the existing EU rules should continue to apply to judicial decisions given before the The 2007 Lugano Convention on Jurisdiction and the Enforcement of withdrawal date and also decisions given after the withdrawal Judgments in Civil and Commercial Matters applies to the enforcement date in proceedings which were instituted before that date. of judgments as between EU Member States and the EFTA (European This is a broader proposed continued application of current Free Trade Association) States of Iceland, Norway, and Switzerland. EU rules than proposed in the EU position paper (which only It is modelled on the Brussels Regulation and therefore extends the proposed continued application to judgments given before Brussels regime for jurisdiction and judgments to those States. The the withdrawal date). UK is not an individual State party to the Convention, but is a party The outcome of the withdrawal stage of the negotiations (at the time by virtue of its membership of the EU. of writing, prior to any Withdrawal Agreement being prepared) is This will therefore also fall away in respect of the enforcement the Joint Report from the negotiators of the European Union and 6 of English judgments in EFTA State courts, as well as for the the UK Government . This report does not give any clear indication enforcement of judgments of EFTA State courts in England, once as to the likely conclusion on enforcement of judgments, merely the UK leaves the EU. recording a general intention to work something out later: “On cooperation in civil and commercial matters there is a need to provide legal certainty and clarity… There was also agreement to Negotiating Positions provide legal certainty as to the circumstances under which Union law on jurisdiction, recognition and enforcement of judgements will Both the EU and the UK have an interest in finding an effective continue to apply, and that judicial cooperation procedures should solution to protect post-Brexit judgment creditors seeking to enforce be finalised”. a domestic judgment either from courts in the EU against assets in the UK or vice versa and this has been reflected in negotiations to date. The European Commission’s Task Force for the Preparation and Alternative Models Conduct of the Negotiations with the United Kingdom under Article 50 Treaty of the European Union, published a position paper on Whilst it is useful for legal practitioners and other interested parties 12 July 2017 on the subject of “Judicial Cooperation in Civil and to have sight of these early proposals, the end result is entirely a Commercial Matters”. In this brief document, the Commission matter for negotiation and so remains uncertain. It is therefore outlined its intention that the Withdrawal Agreement should important to be aware of, and prepared for, the various possible address the respective positions in relation to the Brussels Recast outcomes, which we consider below. Regulation and the Brussels Regulation. In addition, it made clear that the mechanisms applicable on recognition and enforcement Option 1: The UK concludes an entirely bespoke agreement of judicial decisions on the withdrawal date should continue to govern all judicial decisions given before the withdrawal date. This The UK is likely to seek to negotiate a new multilateral agreement to paper offers no substance as to what arrangements should apply effect reciprocal enforcement with the EU27. Any such agreement prospectively, since any such arrangements will form part of phase would likely seek to remove the jurisdiction of the Court of two of the negotiations, alongside negotiation of any free trade Justice of the European Union (“CJEU”) going forward. The UK agreement. Government’s stated position is that, when the UK leaves the EU, In its response, published in August 20174, the UK Government there will be an end to the direct jurisdiction of the CJEU, and that was slightly more explicit in its tone and substance. The paper was the English courts will not be required to consider the jurisprudence published as one of a series of “Future Partnership” documents, of the CJEU after Brexit. That being said, it is envisaged under the which are described as a series of papers setting out key issues draft UK Withdrawal Bill that EU case law from before the UK’s that form part of the Government’s vision for the future deep and departure will form part of the law in the UK. In addition, the Bill special partnership between the UK and the EU (so, looking beyond provides that any question as to the meaning of EU-derived law will the withdrawal date, unlike the European Commission’s position be determined in the UK’s courts by reference to the CJEU’s case paper). In summary, this document indicates the following: law as it exists at the point of the UK’s departure. ■ The UK will seek to continue to participate in the Lugano Whilst an entirely bespoke agreement would be a desirable option Convention in relation to enforcement vis-à-vis those EFTA from the UK’s perspective, it would seem challenging to achieve States to which it applies. If the UK were to become a an agreement on an entirely new basis within the period currently member of EFTA, it could join the Lugano Convention as of envisaged and where the status of the CJEU is likely to be contentious. right. If not, the UK would need the unanimous consent of the other parties to the Convention, including the EU5. ■ In the absence of a separate agreement with the EU, the Option 2: Remain bound by Brussels Recast Regulation Lugano Convention could then also govern enforcement with the concurrence of the EU with a bespoke bilateral between the UK and the EU. agreement ■ Whilst no specific proposals are put forward in relation to enforcement between the UK and the EU, the paper suggests This option would require a treaty to be agreed between the EU and that the UK will endeavour to secure a separate agreement the UK, which would provide that the UK continues to be treated as with the EU that more closely mirrors the Brussels Recast a Member State for the purposes of the Brussels Recast Regulation. Regulation model, stating: A similar approach was adopted for the benefit of Denmark, “The UK will therefore seek an agreement with the EU which is not bound by the Brussels Recast Regulation by virtue that allows for close and comprehensive cross-border civil of its Maastricht Treaty opt out provisions. Denmark has a treaty
2 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Covington & Burling LLP Beyond Brexit
in place7 with the EU, which makes provision for Denmark to be bound by the Brussels Recast Regulation as a matter of international Option 5: Withdrawal with no agreement on enforcement – English Common Law law and to all revisions to the Regulation. Under this agreement, Denmark must accept the jurisdiction of the CJEU to interpret the agreement and the Danish courts are obliged to refer questions on It seems the EU may be considering this scenario, at least as a the agreement’s interpretation to the CJEU8. negotiating tactic. In the recent Notice to Stakeholders published by the European Commission11, it states that as of the withdrawal Following this precedent would be very helpful from the perspective date “judgments issued in the United Kingdom are no longer of legal certainty and continuity. However, the negotiating parties recognised and enforced in EU Member States under the rules of would need to reach a compromise on what role, if any, the CJEU the EU instruments in the area of civil and commercial law...”. This would play in such an arrangement given the UK’s Brexit policy on document only envisages a role for national law in this regard, and the CJEU. makes no reference to the possibility of continuing reciprocity under any of the models or pre-existing agreements discussed above. Option 3: Join the Lugano Convention independently In this case, it is likely that the current rules (principally under the Brussels Recast Regulation) would apply to judgments given As discussed above, this is currently envisaged by the UK, but before the withdrawal date and possibly to those delivered after primarily as it applies to civil judicial cooperation with Switzerland, that date in proceedings commenced before withdrawal. At the Norway and Iceland. Whilst the UK could, in principle, join the date of withdrawal, the near-automatic reciprocity afforded by that Lugano Convention with a view to that convention also governing Regulation would cease: the Brussels Recast Regulation would no enforcement of judgments between the UK and the EU, there are longer apply and the courts of England and Wales would revert to difficulties with, and disadvantages to, this. First, the process of the application of common law rules of recognition and enforcement joining the Lugano Convention is complex: the UK must either (for details of the common law rules, refer to chapter 13). It should re-join EFTA or apply to join as a non-member and then obtain also be noted that the grounds for refusing to recognise a foreign the consent of all signatories, including the EU27. Should the judgment under common law are wider than those under the UK successfully join, however, as the Lugano Convention is Brussels Recast Regulation, and fresh legal proceedings would have modelled on the Brussels Regulation, it would be a credible basis to be commenced to enforce a judgment. Whilst these requirements for enforcement in future. The enforcement regime has, however, would in most cases be met by judgments from EU27 courts, the been significantly enhanced since the enactment of the Brussels enforcement process would likely lengthen and become more costly. Regulation and the Lugano Convention, by operation of the Brussels Enforcement of English judgments across the EU would be subject Recast Regulation, and so the enforcement procedure would lack to the national laws of each Member State, which vary widely the ease of enforcing a judgment provided by the Brussels Recast and may prove more cumbersome than the streamlined procedure Regulation. under the Brussels Recast Regulation. Nevertheless, those courts It should also be noted that the Lugano Convention requires non- ultimately are likely to enforce English judgments. EU Member States to “pay due account to” decisions of the CJEU9, which would again likely be controversial. Option 5b: Withdrawal with no agreement on enforcement – Brussels Convention Option 4: Join the Hague Convention on Choice of Court Agreements 2005 Some commentators have suggested that, as the UK is currently a signatory to the Brussels Convention (since it was never repealed), It is open to the UK to become a party to the Hague Convention that could be utilised to support an enforcement action in Europe. in its own right, once it ceases to apply to the UK by virtue of its This possibility is also envisaged by the European Parliament12, EU membership, upon Brexit. This can be done unilaterally and which notes that although there is some disagreement as to whether does not require the consent of the EU or other contracting States. a third State can remain a Brussels Convention State, there are Indeed, it is the UK Government’s stated policy to become a party persuasive arguments in favour of this Convention’s revival to the Hague Convention in its own right, upon Brexit. The value within the UK’s territory. If the Brussels Convention does apply of the Hague Convention in this context is that it requires any (which is subject to some debate and is not considered in the UK judgment granted by a court designated in an exclusive choice of Government’s position paper) and although more unwieldy than the court agreement to be recognised and enforced in other contracting Brussels Recast Regulation, it could be a helpful basis for reciprocal States. enforcement with those members of the EU27 that had ratified the However, the impact of the Hague is limited, as only judgments Brussels Convention prior to the Brussels Regulation coming into resulting from exclusive jurisdiction clauses are recognised effect, namely: Belgium, Germany, France, Denmark, Ireland, Italy, and enforced. Moreover, it is unlikely to apply to “asymmetric” Luxembourg and the Netherlands. jurisdiction agreements. Moreover, like Lugano, the Hague Convention does not benefit from the expedited procedure in Brussels Recast. Some Practical Conclusions It should also be noted that the Hague Convention will only apply 1. It is clear that the EU27 and the UK Government will continue to exclusive jurisdiction agreements that are concluded after the to carefully examine the potential routes to reciprocal Convention “comes into force” in the UK10. It is unclear in the case enforcement. It would seem that, given the range of options of the UK whether this would be the date the Convention came into available to the parties, some form of reciprocal agreement force as a result of the UK’s membership of the EU, or whether on future enforcement of judgments is likely. Even if this it would be the date on which the UK joins in its own right. The is not achieved, and England falls back on the common law former is the preferred and logical answer and one which the UK position, English judgments would be very likely to continue to be enforced in the EU and EU Member State court Government is, we understand, seeking to achieve. judgments would be very likely to continue to be enforced
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 3 Covington & Burling LLP Beyond Brexit
in England, albeit by way of more complex procedures. As 3. Article 66(2) the Brussels Recast Regulation. such, choices of courts in England or the EU27 that may need 4. Providing a cross-border civil judicial cooperation framework, to be enforced post-Brexit seem to remain safe choices. published 22 August 2017, HM Government. 2. Parties to such contracts will nonetheless want to consider the 5. Lugano Convention, Article 72(3). options open to them. 6. Joint report on progress during phase 1 of negotiations under 3. It is advisable that commercial parties ensure, going forward, Article 50 TEU on the UK’s orderly withdrawal from the EU, that choice of court clauses make the choice exclusive and not published 8 December 2017, HM Government. asymmetric, so that such agreements should be enforceable 7. Agreement between the European Community and the through the Hague Convention process (which the UK can Kingdom of Denmark on jurisdiction and the recognition and join without the need for agreement by the EU27). enforcement of judgments in civil and commercial matters 4. If parties remain nervous about choice of court clauses [2005]. post-Brexit, they could choose arbitration, which will be 8. Ibid, Article 6. unaffected by Brexit. 9. Lugano Convention, Protocol 2, Article 1(1). 10. Hague Convention 2005, Article 16. Endnotes 11. European Commission Directorate-General for Justice and Consumers: Notice to Stakeholders Withdrawal of the United 1. We focus on the impact of Brexit on enforcement of English Kingdom and EU Rules in the Field of Civil Justice and judgments (encompassing Welsh judgments for these Private International Law, 21 November 2017. purposes) in this article, but similar issues will arise in respect of Scottish and Northern Irish judgments. 12. Directorate General for Internal Policies: Policy Department A – Economic and Scientific Policy, Legal Implications of 2. Council Regulation (EC) No 44/2001 on jurisdiction and Brexit, August 2017. the recognition and enforcement of judgments in civil and commercial matters.
4 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Covington & Burling LLP Beyond Brexit
Louise Freeman Chiz Nwokonkor Covington & Burling LLP Covington & Burling LLP 265 Strand 265 Strand London WC2R 1BH London WC2R 1BH United Kingdom United Kingdom
Tel: +44 20 7067 2000 Tel: +44 20 7067 2000 Email: [email protected] Email: [email protected] URL: www.cov.com URL: www.cov.com
Louise Freeman focuses on complex commercial disputes, and co- Chiz Nwokonkor is an experienced commercial litigator and trade chairs the firm’s Commercial Litigation Practice Group. controls and investigations lawyer, having previously been a junior diplomat assigned to the UN Security Council with a portfolio Described by The Legal 500 as “one of London’s most effective encompassing several sanctions regimes. Her practice involves partners”, Ms. Freeman helps clients to navigate challenging situations advising in the areas of economic sanctions, bribery and corruption, in a range of industries, including financial markets, technology and life money laundering, as well as fraud and international asset tracing. Ms. sciences. Most of her cases involve multiple parties and jurisdictions, Nwokonkor acts for a number of high-profile corporates in relation to where her strategic, dynamic advice is invaluable. sanctions and export controls compliance around technology transfer, Ms. Freeman’s experience in the financial services sector includes acquisitions/joint ventures and other aspects of international trade. mis-selling claims, negligence and misrepresentation claims, asset Ms. Nwokonkor’s practice extends to complex financial disputes management disputes and International Swaps and Derivatives litigation, with recent instructions including representing clients in Association (ISDA)-related disputes on behalf of investment banks, two of 2014’s landmark Commercial Court derivatives disputes. Ms. international corporate groups, asset managers, and credit rating Nwokonkor also conducts investigations and risk assessments for agencies. clients in numerous sectors and jurisdictions and delivers compliance Ms. Freeman also represents parties in significant competition litigation training to senior executives on cross-border risk under the UK Bribery proceedings, including the pioneering synthetic rubber cartel damages Act and other regulatory frameworks. action, which was named as a “standout” competition matter by the FT’s Innovative Lawyers 2015 and listed as one of The Lawyer’s Top 20 Cases of 2014.
In an increasingly regulated world, Covington & Burling LLP helps clients navigate their most complex business problems, deals, and disputes. Founded in 1919, the firm has more than 1,000 lawyers in offices in Beijing, Brussels, Dubai, Johannesburg, London, Los Angeles, New York, San Francisco, Seoul, Shanghai, Silicon Valley, and Washington.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 5 Chapter 2
European Union Sébastien Champagne
Jones Day Vanessa Foncke
1 Overview of European Recognition and Enforcement Instruments
Instrument Relevant Jurisdiction(s) Application Ratione Materiae Application Ratione Temporis Recast Brussels I Civil and commercial matters, irrespective of the nature of the court or tribunal. Excluded subject matters: ■ revenue, customs or administrative Regulation (EU) matters, liability of the State for acts No. 1215/2012 of and omissions in the exercise of State 12 December 2012 authority; and on jurisdiction and All EU Member States, Legal proceedings instituted on or after ■ the status or legal capacity of natural the recognition and except Denmark. 10 January 2015. persons, rights in property arising out of enforcement of judgments matrimonial or analogous relationships, in civil and commercial bankruptcy and analogous proceedings, matters. social security, arbitration, maintenance obligations from a family relationship, parentage, marriage or affinity, wills and succession including maintenance obligations arising by reason of death. Brussels I ■ All EU Member Council Regulation States (Denmark, via (EC) No. 44/2001 of the Agreement of 19 See Recast Brussels I above, except that 22 December 2000 liability of the State for acts and omissions October 2005 with Legal proceedings instituted before 10 on jurisdiction and in the exercise of State authority and the EU which is a January 2015 and after 1 March 2002 the recognition and maintenance obligations from a family verbatim adoption of (and after 1 July 2007 for Denmark). enforcement of judgments Brussels I). relationship, parentage, marriage or affinity in civil and commercial are not explicitly excluded subject matters. matters. ■ Switzerland, Norway and Iceland. (Revised) Lugano Convention Recognition and enforcement proceedings of judgments rendered in: Convention on jurisdiction ■ Denmark or Norway in the EU and and the recognition and vice versa instituted on or after 1 enforcement of judgments ■ All EU Member January 2010; in civil and commercial States. ■ Switzerland in the EU and vice versa See Brussels I above. matters of 30 October ■ Switzerland, Norway instituted as of 1 January 2011; and 2007 (replacing the and Iceland. ■ Iceland in the EU and vice versa preceding Convention of instituted as of 1 May 2011. 16 September 1988). For cases arising before those dates of entry into force, the Lugano Convention of 1988 continues to apply.
6 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Jones Day European Union
Instrument Relevant Jurisdiction(s) Application Ratione Materiae Application Ratione Temporis ESC Regulation Cross-border (i.e., at least one of the parties is domiciled or resides in a Member State other than the Member State of the seized court or tribunal) civil and commercial claims irrespective of the nature of the Regulation (EC) No. court or tribunal that do not exceed the 861/2007 of 11 July Legal proceedings instituted on or after 1 amount of €2,000 (and €5,000 as of 14 July 2007 establishing January 2009. 2017), excluding interest, expenses and a European Small All EU Member States, The amendments by Regulation (EU) disbursements. Claims Procedure (as except Denmark. 2015/2421 will enter into force on 14 amended by Regulation Excluded subject matters: July 2017 (also see section 3 below). (EU) 2015/2421 of 16 ■ see Recast Brussels I above; and December 2015). ■ employment law, tenancies of immovable property (except for actions on monetary claims) and violations of privacy and rights relating to personality, including defamation. EOP Regulation Cross-border (i.e., at least one of the parties is domiciled or resides in a Member State other than the Member State of the seized court or tribunal) civil and commercial uncontested pecuniary claims, irrespective of the nature of the court or tribunal. Regulation (EC) No. 1896/2006 of 12 Excluded subject matters: December 2006 creating ■ revenue, customs or administrative Legal proceedings instituted on or after a European order for matters, liability of the State for acts 12 December 2008. payment procedure (as and omissions in the exercise of State All EU Member States, The amendments by Regulation (EU) amended by Commission authority; except Denmark. 2015/5421 will enter into force on 14 Regulation (EU) No. ■ rights in property arising out of July 2017 (also see section 3 below). 936/2012 of 4 October matrimonial relationships, wills and 2012 and by Regulation succession, bankruptcy and analogous (EU) 2015/2421 of 16 proceedings, social security; and December 2015). ■ claims arising from non-contractual obligations, unless (i) they have been the subject of an agreement between the parties or there has been an admission of debt, or (ii) they relate to liquidated debts arising from joint ownership of property. EEO Regulation Uncontested civil or commercial claims, irrespective of the nature of the court or tribunal. “Uncontested” is defined as the debtor of the claim having: a) expressly admitted or settled the claim with the court’s approval or concluded before the court; b) never objected to the claim in the course of the court proceedings, in compliance with the relevant procedural requirements under the laws of the Member State in which the judgment was given; Regulation (EC) No. c) never appeared or been represented at court 805/2004 of 21 April with respect to the disputed claim even Judgments, court settlements and All EU Member States, 2004 creating a European though having initially objected to it, if authentic instruments established on or except Denmark. Enforcement Order for such conduct amounts to a tacit admission after 21 October 2005. uncontested claims. of the claims or the facts alleged by the creditor under the laws of the Member State in which the judgment was given; or d) expressly agreed to the claim in an authentic instrument. Excluded subject matters: ■ revenue, customs or administrative matters, liability of the State for acts and omissions in the exercise of State authority; and ■ the status or legal capacity of natural persons, rights in property arising out of matrimonial relationships, wills and succession, bankruptcy or analogous proceedings, social security or arbitration.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 7 Jones Day European Union
Instrument Relevant Jurisdiction(s) Application Ratione Materiae Application Ratione Temporis Hague Convention The recognition and enforcement of judgments, where the State in which the judgment was rendered is a party to the Hague Convention and its courts are the competent court pursuant to an exclusive choice of court agreement. Excluded subject matters: ■ All EU Member ■ exclusive choice of court agreements with States, except for a consumer or relating to employment Denmark. contracts; ■ Mexico. ■ the status and legal capacity of natural ■ Singapore. persons, maintenance obligations, various Convention of 30 June other family law matters, wills and ■ China, the United 2005 on Choice of Court succession, insolvency and analogous (1 October 2016 for Singapore.) States, Montenegro Agreements. matters, the carriage of passengers and and Ukraine have goods, several maritime matters, anti-trust signed, but not yet matters, liability for nuclear damage, claims ratified, the Hague for personal injury, tort or delict claims for Convention. tangible property damage not arising from a contractual relationship, rights in rem in and tenancies of immovable property, validity, nullity or dissolution of legal persons or their decisions, validity and infringement of IP rights (except copyright and related rights) and validity of entries in public registers; and ■ arbitration and related proceedings.
NY Convention Convention of 10 June The recognition and enforcement of arbitral 1958 on the Recognition All countries signatory awards rendered in another State than the one Entry into force on 7 June 1959. and Enforcement of to the Convention. where recognition or enforcement is sought. Foreign Arbitral Awards.
The legal effect of the (de plano) recognition of a judgment is that, 2 EU Recognition and Enforcement further to the (de plano) recognition, the foreign judgment will Instruments obtain the same binding force as any judgment recognised in the country of origin. The exact nature and scope of such binding force will thus be determined by the law of the country of origin where the 2.1 What requirements (in form and substance) must the judgment satisfy in order to be recognised and judgment was rendered. enforceable under the respective instrument? As concerns the enforcement of foreign judgments, Brussels I and the Lugano Convention require that an exequatur be obtained The judgment must fall within the scope of application of the prior to being able to actually enforce the judgment at stake (also instrument at stake as set out in section 1 above. referred to as “registering a judgment” or obtaining a “declaration Under no circumstances may a foreign judgment of another Member of enforceability”) (Articles 38 Brussels I and Lugano Convention). State be reviewed as to its substance (see Article 52 Recast Brussels Once the exequatur procedure has been successfully completed, I, Articles 36 and 45(2) Brussels I and Lugano Convention, Article the judgment will be enforced in the Member State in which 22(2) ESC Regulation, Article 21(2) EEO Regulation, Article 22(3) enforcement is sought in the same way as any judgment rendered EOP Regulation and Article 8(2) of the Hague Convention). in that respective Member State. The actual enforcement of the judgment remains a pure domestic law matter. Recast Brussels I has abandoned the need to obtain an exequatur 2.2 With reference to each of the specific instruments set out in section 1, does it specify a difference between prior to the actual enforcement of a judgment. Therefore, a judgment recognition and enforcement? If so, what is the rendered in a Member State which is enforceable in that respective difference between the legal effect of recognition and Member State, is enforceable in any other Member State without the enforcement? need for an exequatur (Article 39 Recast Brussels I). Pursuant to Article 20(1) of the ESC Regulation, Article 5 of the Pursuant to all but one of the European instruments set out in section EEO Regulation and Article 19 of the EOP Regulation judgments 1, judgments rendered in an EU Member State are recognised in are enforceable as such, without the need for a prior exequatur (as is other Member States without any need for separate recognition the case for judgments under Recast Brussels I). proceedings (so-called de plano recognition; see Article 36 Recast By declaring a judgment enforceable, a national court grants the Brussels I, Articles 33(1) Brussels I and Lugano Convention, Article same value to that foreign judgment as a domestic enforceable 20(1) ESC Regulation, Article 5 EEO Regulation and Article 19 judgment. Consequently, upon obtaining an exequatur, the creditor EOP Regulation). The Hague Convention still requires creditors can subsequently enforce the judgment, for instance, by using the to formally apply for recognition of judgments within its field of coercive measures that are available in the Member State in which application (see Chapter 3 of the Hague Convention). enforcement is sought.
8 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Jones Day European Union
using a standard Form D, as attached to Annex IV of the ESC 2.3 The procedure for recognising and enforcing a foreign Regulation (Article 20 (2)). Upon receiving this certificate, the judgment party seeking enforcement shall provide said certificate together with a copy of the judgment to the competent enforcement a) Recast Brussels I authorities of the Member State in which enforcement is sought, As explained in question 2.2 above, Recast Brussels I and if necessary, also a duly certified translation of the certificate continues the tradition of de plano recognition of foreign into the language of the Member State in which enforcement is judgments and, in addition, no longer requires an exequatur. sought (Article 21 (2)). Once more, the enforcement procedure as such is governed by the law of the Member State in which The actual enforcement is not governed by Recast Brussels enforcement is sought (Article 21 (1)). I, but by the law of the Member State where execution of the judgment is sought. Since an exequatur no longer e) EOP Regulation needs to be obtained, the creditor can instruct directly the Under the EOP Regulation, a European Order for Payment local competent authority (e.g., a bailiff) responsible for (“EOP”) which has become enforceable in the Member State proceeding with the execution as such. The applicant has to in which the judgment was rendered, shall be recognised provide two documents to the competent authority, namely and enforced in other Member States without the need for (i) a copy of the judgment sought to be enforced, and (ii) an exequatur and without any possibility of challenging its a certificate delivered by the court of origin (i.e., the court recognition (Article 19). The party seeking enforcement where the judgment was originally rendered) confirming the needs to send a copy of the EOP, and if necessary a duly enforceable measures (Articles 37(1) and 42(1)). If deemed certified translation of the EOP into the language ofthe necessary, a translation of the aforementioned certificate and Member State in which enforcement is sought, to the relevant of the judgment sought to be enforced by a qualified translator enforcement authorities of that Member State (Article 21 may also be required (Articles 37(2), 42(3), 43 (2) and 57). (2)). Again, enforcement takes place in accordance with the b) Brussels I and the Lugano Convention national rules and procedures of the Member State where the EOP is being enforced (Article 21 (1)). Pursuant to Brussels I and the Lugano Convention, the party seeking enforcement of a foreign judgment must apply f) Hague Convention for an exequatur with the court or competent authority in Finally, under the Hague Convention, the recognition and the Member State of enforcement listed in Annexes II to enforcement procedure is governed by the law of the state Brussels I and the Lugano Convention. The party applying of enforcement unless the Hague Convention provides for an exequatur must produce (i) a copy of the judgment otherwise. The documents to be produced in the framework (Articles 53(1) Brussels I and Lugano Convention), and (ii) of these procedures are more elaborate than the documents a certificate delivered by the court of origin (i.e., the court required in the EU Regulations described above. More where the judgment was originally rendered) confirming the specifically, the party seeking recognition or enforcement enforceable measures (Articles 53(2) Brussels I and Lugano must produce the following set of documents (Article 13): Convention). If deemed necessary, a certified translation of i) a complete and certified copy of the judgment; the aforementioned documents will have to be produced as well (Articles 55 (2) Brussels I and Lugano Convention). The ii) either the exclusive choice of court agreement, a certified actual procedure of applying for an exequatur is governed by copy thereof, or any other evidence of its existence; the law of the Member State in which enforcement is sought iii) if the judgment was given by default, the original (Articles 40(1) Brussels I and Lugano Convention). or a certified copy of a document establishing that c) EEO Regulation the document which instituted the proceedings or an equivalent document was notified to the defaulting party; When seeking to obtain a European Enforcement Order (“EEO”) under the EEO Regulation, an application has to be iv) any documents necessary to establish that the judgment filed with the court that rendered the judgment. The court will has effect or, where applicable, is enforceable in the State consider first whether the judgment is eligible pursuant to the of origin; conditions set forth in Article 6 of the EEO Regulation, which v) in case of a judicial settlement: a certificate of a court of mainly requires that the judgment is enforceable in the Member the State of origin that the judicial settlement, or a part of State of origin, the concerned claim is uncontested (as defined in it, is enforceable in the same manner as a judgment in the section 1 above) and the judgment was rendered in the Member State of origin; State of the debtor’s domicile. If so, the court will provide the vi) any other documents that the court deems necessary if creditor with (i) a sealed copy of the judgment, and (ii) an EEO certain conditions are not met; certificate. Upon receiving those two documents, the creditor vii) an application for recognition or enforcement may be can send a copy of those documents, and, if necessary, a duly accompanied by a document, issued by a court (including certified translation of the certificate into the language of the an officer of the court) of the State of origin, in the form Member State of enforcement to the competent enforcement recommended and published by the Hague Conference on authorities of the Member State in which enforcement is sought Private International Law; and (Article 20 (2)). As referenced in section 1, an exequatur is not required under the EEO Regulation in order to obtain viii) if necessary, a certified translation of the documents enforcement. The recognition of the EEO cannot be challenged listed above. under this procedure (Article 5). Finally, the enforcement procedure as such is also governed by the law of the Member 2.4 Grounds on which recognition/enforcement of a State in question (Article 20 (1)). judgment can be challenged and when d) ESC Regulation The procedure under the ESC Regulation is very similar to Pursuant to Articles 45–46 of Recast Brussels I, recognition and the procedure pursuant to the EEO Regulation. An exequatur enforcement shall be refused, upon the opposing party’s application is not needed in order to obtain enforcement and it is not (so not ex officio), if: possible to challenge the recognition of the judgment (Article 20 (1)). The party seeking enforcement shall request the a) the recognition or enforcement is manifestly contrary to court or tribunal to issue a certificate – at no extra cost – by public policy (understood as “international” public policy);
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 9 Jones Day European Union
b) the defendant was not served with the document that ii) was notified to the defendant in the State of enforcement in a instituted the proceedings in sufficient time and in such a way manner that is incompatible with fundamental principles of as to enable him or her to arrange for his or her defence; the State of enforcement concerning service of documents; c) the judgment is irreconcilable with a judgment given in a d) the judgment was obtained by fraud in connection with a dispute between the same parties; matter of procedure; d) the judgment is irreconcilable with an earlier judgment given e) recognition or enforcement would be manifestly incompatible in another EU or non-EU Member State involving the same with the public policy of the State of enforcement; cause of action and the same parties; or f) the judgment is inconsistent with a judgment given in the e) the judgment conflicts with specific provisions of Recast State of enforcement in a dispute between the same parties; or Brussels I on jurisdiction in matters relating to insurance, g) the judgment is inconsistent with an earlier judgment given in consumer contracts or individual employment contracts or on another State between the same parties on the same cause of exclusive jurisdiction (Articles 10–24). action, provided that the earlier judgment fulfils the conditions Under Brussels I and the Lugano Convention (Articles 34–35), necessary for its recognition in the State of enforcement. recognition shall be refused based on the above-referenced grounds (except for ground (e) as far as employment contracts are concerned). 2.5 The impact on the recognition and enforcement of a Pursuant to Article 43(5) Brussels I, an appeal against the exequatur foreign judgment when in the State of enforcement has to be lodged within one month of service thereof. The time there is: (a) a conflicting local judgment between period will be two months if the party against whom enforcement is the parties relating to the same issue; (b) an appeal sought is domiciled in another Member State than that in which the pending between the parties; or (c) a conflicting local law exequatur was given (see also Article 43(5) Lugano Convention). This appeal procedure has disappeared under Recast Brussels I a) See question 2.4 above, where a conflicting local judgment because, as mentioned, the exequatur procedure has been abandoned can be a ground for refusal of recognition or enforcement. as a requirement for enforcement of foreign judgments. b) If an appeal is pending in the courts of the jurisdiction of An EOP and judgments rendered in a Member State in the ESC origin, under Brussels I and the Lugano Convention, courts procedure or certified as an EOO are recognised and enforced in of the Member State in which recognition of a judgment the other Member States without exequatur (Article 20(1) ESC is sought to have the discretion to grant a stay pending Regulation, Article 5 EEO Regulation and Article 19 EOP Regulation). resolution of the appeal (Articles 37 and 46). The same Furthermore, under the ESC Regulation, the EEO Regulation and the applies to Recast Brussels I (Articles 38 and 51), as well as EOP Regulation, the existence of an irreconcilable judgment in the to the EEO Regulation (Article 23 (c)), the ESC Regulation same cause of action and between the same parties provides a ground (Article 23(c)) and the EOP Regulation (Article 23 (c)). for challenging enforcement as long as the irreconcilability was not c) National courts can only refuse recognition and enforcement and could not be raised as an objection during the proceedings where on the grounds referred to above in question 2.4. Hence, the judgment was given (Article 22(1) ESC Regulation, Article 21(1) conflicting local laws can only be a ground for refusing recognition or enforcement of foreign judgments if, for EEO Regulation and Article 22(1) EOP Regulation). Under the EOP example, local law violates public policy. In that respect Regulation, enforcement shall also be refused if and to the extent the concept of ‘public policy’ is not to be considered from a that the defendant has paid the claimant the amount awarded in the purely domestic point of view, but is more limited and to be EOP (Article 22(2) EOP Regulation). Furthermore, an opposition interpreted as international public policy. can be lodged against the EOP in accordance with Articles 16–17 of the EOP Regulation. Similarly, an application for rectification or withdrawal can be filed under Article 10 of the EEO Regulation and 2.6 The relevant limitation period to recognise and enforce a foreign judgment an application for review can be filed under Article 19 of the EEO Regulation and Article 18 of the ESC Regulation (note also that Article 18 was amended as of 14 July 2017 by Regulation (EU) 2015/2414). The question on the relevant limitation period is typically a question Whether an appeal is available against a judgment rendered in the of substantive domestic law. The European instruments referred to ESC Procedure will depend on the procedural law of each Member in section 1 do not provide for limitation periods for the recognition State (Article 17 ESC Regulation), but the judgment is enforceable and enforcement of foreign judgments. Judgments must generally notwithstanding any appeal (Article 15 ESC Regulation). still be enforceable in the State in which they were given in order to be enforced in EU Member States (Article 39 Recast Brussels I, Finally, under Article 9 of the Hague Convention, recognition or Articles 38(1) Brussels I and the Lugano Convention, Article 6(1) enforcement may be refused if: (a) EEO Regulation, Article 19 EOP Regulation, Article 20(1) ESC a) the choice of court agreement was null and void under the law Regulation and Article 8(3) Hague Convention). In other words, of the State of the chosen court, unless that court determined a judgment can only be enforced to the extent that the statute of that the agreement was valid; limitation has not yet expired. b) a party did not have the proper capacity to conclude the agreement under the law of the State of enforcement; c) the document which instituted the proceedings or an equivalent 3 Conclusion document, including the essential elements of the claim; i) was not notified to the defendant in sufficient time and in Noteworthy recent (in the last 12 months) legal such a way as to enable him to arrange for his defence, developments in the EU relevant to the recognition and unless the defendant entered an appearance and presented enforcement of foreign judgments his case without contesting notification in the court of origin, provided that the law of the State of origin permitted notification to be contested; or On 13 April 2016, the Council of the European Union authorised
10 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Jones Day European Union
negotiations on a Convention on the recognition and enforcement is a general consensus between the negotiators that relevant EU law of judgments in civil and commercial matters (the “Judgments should continue to apply with regards to judgments rendered before Convention”) in the framework of the Hague Conference on Private the final withdrawal date. It remains unclear, however, whether EU International Law. Several meetings of the Special Commission law should continue to govern the recognition and enforcement of took place in 2016 and 2017 and successive draft Judgments judgments rendered after that withdrawal date, but in proceedings Conventions were prepared. The next meeting of the Special that were ongoing on that date. There is currently disagreement as Commission is likely to take place mid-2018. The future Judgments to whether a choice of court clause concluded before the withdrawal Convention is intended to be a complementary Convention to the date should trigger the application of EU law on recognition and (Choice of Court) Hague Convention. enforcement of judgments in litigation after that date. More Further to the vote on Brexit, the United Kingdom (UK) and the generally, the UK seems willing to continue participating to the European Union initiated negotiations, inter alia, in relation to the Lugano Convention. Finally, given that the UK ratified the 1958 recognition and enforcement of judgments. It appears from the 8 New York Convention, there should be no significant change in the December 2017 communication from the EU Commission that there recognition and enforcement of arbitral awards after Brexit.
Sébastien Champagne Vanessa Foncke Jones Day Jones Day Regentschapsstraat 4 Regentschapsstraat 4 1000 Brussels 1000 Brussels Belgium Belgium
Tel: +32 2 645 14 11 Tel: +32 2 645 14 11 Email: [email protected] Email: [email protected] URL: www.jonesday.com URL: www.jonesday.com
Sébastien Champagne is a partner in the Global Dispute practice of Vanessa Foncke is a partner in the Global Dispute practice of Jones Day’s Brussels Office. He focuses on domestic and cross- Jones Day’s Brussels Office. She practises in all aspects of dispute border litigation, representing clients in complex commercial disputes, resolution and contract negotiations. Her experience covers the such as contractual, regulatory and competition disputes. representation of Belgian and foreign clients in a broad range of contractual and commercial disputes in all stages of court and He represents major national and international corporations in pretrial administrative proceedings, and she also conducts internal compliance negotiations and in litigation before judicial and administrative courts. investigations. Ms. Foncke also has extensive experience in domestic His clients are active in various sectors, including the telecom, industrial and international commercial arbitration both as counsel and arbitrator. equipment, transportation, and IT industries. He is also experienced in the drafting and negotiation of commercial and telecom-related Vanessa is a member of the board of administration and of the agreements. executive committee of CEPANI, the Belgian institution for arbitration and mediation. She is ranked as a “Next generation lawyer” in The Sébastien is regularly active in arbitration as counsel or arbitrator. He Legal 500 EMEA: Dispute Resolution (2017) and as a “Future Leader” is also a deputy judge at the French speaking Commercial Court of in Who’s Who Legal: Arbitration (2018). Brussels. Vanessa is a graduate of Ghent University (J.D. magna cum laude) Sébastien is a graduate of the Catholic University of Louvain, Belgium and Columbia University (LL.M. James Kent Scholar; Fulbright (J.D. 1993) and New York University (M.C.J. 1994). He is a member Scholar; B.A.E.F. Honorary Fellow). She is a member of the Flemish of the French-speaking section of the Brussels Bar. He is annually section of the Brussels Bar. endorsed for dispute resolution in Chambers and The Legal 500.
Established in 1989, Jones Day’s Brussels Office advises clients on a wide range of regulatory, corporate/commercial, litigation and arbitration, tax, international trade, and labour law issues relevant to corporations doing business in Belgium, the EU, and worldwide. Our team of over 50 lawyers are qualified in major jurisdictions in Europe and worldwide. Strategically located at the centre of the European Union, the Brussels Office is part of Jones Day’s network of 10 European offices, including two offices opening in recent years in Amsterdam and Düsseldorf. Jones Day is a global law firm with 44 offices in major centres of business and finance throughout the world. Its unique governance system fosters an unparalleled level of integration and contributes to its perennial ranking as among the best in the world in client service. Jones Day provides significant legal representation for almost half of The Fortune 500, Fortune Global 500, and FT Global 500.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 11 Chapter 3
Albania Gerhard Velaj
Boga & Associates Eno Muja
with the Hague Convention on the recognition and enforcement of 1 Country Finder foreign judgments in civil and commercial matters. Nevertheless, when there is a special agreement for the purpose of recognition and 1.1 Please set out the various regimes applicable enforcement of foreign judgments between the Republic of Albania to recognising and enforcing judgments in your and the foreign country, the agreement prevails. jurisdiction and the names of the countries to which These articles also provide the basic procedural steps to be followed on such special regimes apply. the procedure of recognition and enforcement of the foreign judgment.
Applicable Law/ Relevant Corresponding 2.2 What constitutes a ‘judgment’ capable of recognition Statutory Regime Jurisdiction(s) Section Below and enforcement in your jurisdiction? The Hague Convention on the recognition and All countries A foreign judgment should comply with the following criteria to be enforcement of signatory to the Section 3. recognised and enforced in Albania: foreign judgments in Convention. (i) the foreign court has jurisdiction to resolve the dispute; civil and commercial matters, 1971. (ii) the defendant/respondent has been duly notified in case the foreign court has ruled in absence of the defendant; The European All countries Convention on signatory to the Section 3. (iii) the same case among the same parties has not been judged in Human Rights, 1950. Convention. Albania; The Hague (iv) action has not been filed with an Albanian court prior to the Convention on All countries foreign judgment becoming final and enforceable; the recognition of signatory to the Section 3. divorces and legal Convention. (v) the foreign judgment has become final in compliance with the separations, 1970. respective country legislation; and The Hague (vi) the said judgment complies with the basic principles of the Convention on the Albanian legislation (article 394 of ACCP). recognition and All countries enforcement of signatory to the Section 3. decisions relating Convention. 2.3 What requirements (in form and substance) must a to maintenance foreign judgment satisfy in order to be recognised obligations, 1973. and enforceable in your jurisdiction? Law No. 8116, dated 29.3.1996 The foreign judgment should be submitted in an original, or certified “Albanian Code of Republic of Albania. Section 2. true copy accompanied by a statement/certificate issued by the foreign Civil Procedure”, as amended. court that the decision is final. The foreign judgment should be translated into Albanian and should be apostilled/legalised in compliance with The Hague Convention 2 General Regime of 05.10.1961 “For Abolishing the Requirement of Legalization for Foreign Public Documents” (article 396 of ACCP).
2.1 Absent any applicable special regime, what is the legal 2.4 What (if any) connection to the jurisdiction is required framework under which a foreign judgment would be for your courts to accept jurisdiction for recognition recognised and enforced in your jurisdiction? and enforcement of a foreign judgment?
Law No. 8116, dated 29.3.1996 “Albanian Code of Civil Procedure”, The Albanian courts accept jurisdiction when the party that must (“ACCP”) as amended, articles 393–399, provide the general legal fulfil the obligations as per the foreign judgment and/or the assets framework under which a foreign judgment could be recognised over which the judgment can be enforced are located in Albania. and enforced in Albanian jurisdiction. These provisions are in line
12 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Boga & Associates Albania
2.5 Is there a difference between recognition and 2.9 What is your court’s approach to recognition and enforcement of judgments? If so, what are the legal enforcement of a foreign judgment when there is: (a) a effects of recognition and enforcement respectively? conflicting local judgment between the parties relating to the same issue; or (b) local proceedings pending Albanian law distinguishes between recognition and enforcement between the parties? of judgments. According to article 394 of ACCP, when the same case among the Recognition is intended to introduce into the Albanian legal order the same parties has been judged in Albania or is pending before the situation established by a foreign judgment. If a foreign judgment is Albanian court prior to the foreign judgment becoming final and recognised, it has a res judicata effect, therefore, Albanian courts are
enforceable, the Court of Appeal may reject the recognition of the Albania bound by it and are barred from hearing a claim on the same subject foreign judgment. matter between the same parties. The foreign judgment acquires the same legal force and effects as an Albanian judgment, providing full access to the available enforcement measures under Albanian law. 2.10 What is your court’s approach to recognition and In this regard, enforcement allows a party to take concrete steps to enforcement of a foreign judgment when there is a execute the decision in the Albanian territory. conflicting local law or prior judgment on the same or a similar issue, but between different parties? Article 510/c of the ACCP provides that the recognition decisions on foreign judgments are considered as executive titles and the In virtue of article 394 of ACCP, a foreign judgment may not be Court of Appeal issues the enforcement order with the recognition recognised in Albanian law when it conflicts the basic principles of decision. In this regard, recognition and enforcement are closely the Albanian legislation. linked, as foreign judgments can only be declared enforceable, and executed if the conditions for the recognition of foreign judgments The law does not provide any impediments for recognition of foreign set out in article 394 of ACCP are met. judgments on the same or a similar case between different parties.
2.6 Briefly explain the procedure for recognising and 2.11 What is your court’s approach to recognition and enforcing a foreign judgment in your jurisdiction. enforcement of a foreign judgment that purports to apply the law of your country?
The request on recognition and enforcement of a foreign judgment The law does not provide any impediments for recognition of such should be submitted to the Court of Appeal. The request might foreign judgments. also be submitted by diplomatic means where it is permitted by international agreement and on a reciprocity basis. The Court of Appeal does not make a new evaluation of the merits 2.12 Are there any differences in the rules and procedure of the case but examines only if the foreign judgment complies with of recognition and enforcement between the various states/regions/provinces in your country? Please the criteria indicated in question 2.2 above. explain. The decision of the Court of Appeal for recognition of a foreign judgment is then enforced through the bailiff upon request of the There are not any differences in rules and procedure of recognition interested party. and enforcement between various regions in Albania. The same procedure and rules apply. 2.7 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge 2.13 What is the relevant limitation period to recognise and be made? enforce a foreign judgment?
The recognition/enforcement of a foreign judgment can be The Albanian law does not provide for a limitation period. challenged when such judgment does not comply with the criteria indicated in questions 2.2 and 2.3 above. Based on our experience, the recognition procedure before the Court of Appeal may last approximately three to four months. In case of The challenge can be made during the procedure of recognition recourse to the Supreme Court, the procedure might last up to three before the Court of Appeal. years. The enforcement procedure with the bailiff normally takes up to 2.8 What, if any, is the relevant legal framework applicable six months. to recognising and enforcing foreign judgments relating to specific subject matters? 3 Special Enforcement Regimes Applicable The ACCP does not elaborate on specific subject matters, but gives to Judgments from Certain Countries the overall principles on which the recognition and enforcement of foreign judgments can be done. 3.1 With reference to each of the specific regimes set Nevertheless, certain multilateral conventions to which Albania out in question 1.1, what requirements (in form and is a party, including those listed at question 1.1 above, contain substance) must the judgment satisfy in order to be specific subject matter provisions as to recognition/enforcement. recognised and enforceable under the respective These conventions complement recognition/enforcement regimes in regime? specific subject matters. The foreign judgment should comply with the criteria indicated in questions 2.2 and 2.3 above to be recognised and enforced in Albania.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 13 Boga & Associates Albania
The procedure begins upon filing with the bailiff the request for the 3.2 With reference to each of the specific regimes set out enforcement of the foreign judgment. The bailiff notifies the debtor in question 1.1, does the regime specify a difference to voluntarily execute the judgment within a period which can vary between recognition and enforcement? If so, what is from five to 10 days. the difference between the legal effect of recognition and enforcement? In case the debtor does not execute the judgment, the bailiff starts the compulsory enforcement. As explained in question 2.5 above, recognition is intended to For the enforcement of monetary obligations, the bailiff will seize introduce into the Albanian legal order the situation established by the bank accounts and movable/immovable properties of the debtor a foreign judgment. The foreign judgment acquires the same legal for debt.
Albania force and effects as an Albanian judgment, providing full access The movable and immovable properties of the debtor can be sold by to the available enforcement procedures under the Albanian law. the bailiff through public auctions. The enforcement relates to the compulsory execution of foreign judgments after they have been recognised. The European Convention on Human Rights provides for an 5 Other Matters exception from the above general rule. The convention provides that the High Contracting Parties undertake to abide by the final judgment 5.1 Have there been any noteworthy recent (in the last of the European Court of Human Rights in any case to which they are 12 months) legal developments in your jurisdiction parties. In this regard, there is not any need for prior recognition of relevant to the recognition and enforcement of foreign the judgment, considering that the parties have agreed to abide by the judgments? Please provide a brief description. decisions of the European Court of Human Rights. There have been no legal developments in Albanian jurisdiction 3.3 With reference to each of the specific regimes set in the last 12 months to the provisions regarding recognition and out in question 1.1, briefly explain the procedure for enforcement of foreign judgments. recognising and enforcing a foreign judgment.
5.2 Are there any particular tips you would give, or Please refer to our answer in question 2.6 above. critical issues that you would flag, to clients seeking to recognise and enforce a foreign judgment in your jurisdiction? 3.4 With reference to each of the specific regimes set out in question 1.1, on what grounds can recognition/ enforcement of a judgment be challenged under the The recognition procedure of a foreign judgment in Albania is not special regime? When can such a challenge be made? lengthy and complicated. The court tends to proceed quickly in this regard. Please refer to our answer in question 2.7 above. It is hard to predict the outcome and the duration of the enforcement process, because various factors would have an impact. The enforcement depends on whether the bailiff will find assets of the 4 Enforcement debtor to execute. On the other hand, the debtor can challenge with the court the bailiff actions and this would cause the delay of 4.1 Once a foreign judgment is recognised and enforced, the enforcement proceedings. It is therefore important to closely what are the general methods of enforcement monitor the enforcement process, both to ensure its formal validity available to a judgment creditor? and to prevent undue delays.
The procedures for the enforcement of a foreign judgment are provided by the ACCP.
14 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Boga & Associates Albania
Gerhard Velaj Eno Muja Boga & Associates Boga & Associates 40/3 Ibrahim Rugova Str. 40/3 Ibrahim Rugova Str. Tirana 1019 Tirana 1019 Albania Albania
Tel: +355 4 2251 050 Tel: +355 4 2251 050 Email: [email protected] Email: [email protected] URL: www.bogalaw.com URL: www.bogalaw.com Albania Gerhard is a Partner at Boga & Associates, which he joined in 2000. Eno is an Associate at Boga & Associates. His core practice area is litigation and alternative dispute resolution His main areas of practice include IP Law, Data Protection, Labour overarching a wide range of business issues in Albania. Law, as well as assistance to clients on different business law aspects. He has previously worked as a private practice lawyer. Gerhard acts as representative of international clients in courts of all levels, in cases related mainly to banking and finance, real estate, Eno graduated in Law at the University of Tirana and obtained a Master taxation, competition, intellectual property and all sorts of other of Science degree focused on Private Law in 2014. He has been a commercial/corporate disputes. member of the Albanian National Chamber of Advocates since 2016. Additionally, he performed in a number of legal due diligences Eno is fluent in English, Italian, and French. regarding real estate development issues, property disputes, banking issues, intellectual property, etc. Gerhard is fluent in English and Italian.
Boga & Associates, established in 1994, has emerged as one of the premier law firms in Albania, earning a reputation for providing the highest quality of legal, tax and accounting services to its clients. The firm also operates in Kosovo (Pristina) offering a full range of services. Until May 2007, the firm was a member firm of KPMG International and the Senior Partner/Managing Partner, Mr. Genc Boga, was also the Senior Partner/Managing Partner of KPMG Albania. The firm’s particularity is linked to the multidisciplinary services it provides to its clients, through an uncompromising commitment to excellence. Apart from the widely consolidated legal practice, the firm also offers the highest standards of expertise in tax and accounting services, with keen sensitivity to the rapid changes in the Albanian and Kosovo business environment. The firm delivers services to leading clients in major industries, banks and financial institutions, as well as to companies engaged in insurance, construction, energy and utilities, entertainment and media, mining, oil and gas, professional services, real estate, technology, telecommunications, tourism, transport, infrastructure and consumer goods. The firm is continuously ranked as a “top tier firm” by The Legal 500, by Chambers and Partners for Corporate/Commercial, Dispute Resolution, Projects, Intellectual Property, Real Estate, as well as by IFLR in Financial and Corporate Law. The firm is praised by clients and peers as a “law firm with high-calibre expertise”, “the market-leading practice”, with “a unique legal know-how ”, distinguished “among the elite in Albania” and described as “accessible, responsive and wise”.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 15 Chapter 4
Angola Nuno Albuquerque
N-Advogados & CM Advogados Conceição Manita Ferreira
■ the judgment has to be authentic; 1 Country Finder ■ the judgment has to be final in accordance with the law of the country in which it was issued; 1.1 Please set out the various regimes applicable ■ it has to come from a foreign court whose jurisdiction has not to recognising and enforcing judgments in your been provoked in violation of the law and is not subject to the jurisdiction and the names of the countries to which exclusive jurisdiction of the Angolan courts; such special regimes apply. ■ the exception of lis pendens or res judicata cannot be invoked with reason in case it affects the Angolan courts, except if it Applicable Law/ Relevant Corresponding was the foreign court that prevented the jurisdiction; Statutory Regime Jurisdiction(s) Section Below ■ the defendant has been regularly summoned for the action, All countries to under the law of the country of the court of origin, and that in which none of the Angolan Civil the proceeding the adversarial principles and the equality of below specific Section 2. Procedure Code. the parties has been observed; and statutes/regulations apply. ■ it does not contain a decision whose recognition leads to a result manifestly incompatible with the principles of the New York international public order of the Angolan State. Convention: New York Convention on the All signatory 2.3 What requirements (in form and substance) must a Section 3. Recognition and countries. foreign judgment satisfy in order to be recognised Enforcement of and enforceable in your jurisdiction? Foreign Arbitral Awards of 10 June 1958. For a foreign judgment to be recognised and enforced in Angola, it has to pass through a formal recognition process called “exequatur”. To begin this process, the party must first file a claim that should 2 General Regime be accompanied by the original or a certified copy of the following documents: ■ The foreign judgment duly legalised or apostilled. 2.1 Absent any applicable special regime, what is the ■ The date when the decision was rendered in default. legal framework under which a foreign judgment would be recognised and enforced in your ■ A document verifying that the defendant was notified with a jurisdiction? summoning order. ■ A document attesting that the ruling is final and enforceable Besides the regulations and conventions stated in question 1.1, in the country of origin. in the Angolan legal regime, the recognition and enforcement of ■ Translations of the documents. foreign judgments is provided in the Angolan Civil Procedure Code ■ Proof of power of attorney. (Código do Processo Civil ), Book III, Special Forms of Procedure, In addition, the following legal requirements are required in the Chapter XII, The Foreign Judgment Review, article 1094 et seq., and Angolan legal order, stated in article 1096 of the Civil Procedure supplemented by relevant case law on the numerous matters on which Code: the codes remain silent. Angola is a civil law country, which means ■ That there is no doubt regarding the authenticity of the that case law is not binding but is highly persuasive on lower courts. document containing the judgment or the intelligence of the decision. 2.2 What constitutes a ‘judgment’ capable of recognition ■ That the judgment has become final in accordance with the and enforcement in your jurisdiction? law of the country in which it was issued. ■ That the judgment comes from a foreign court whose As stated in article 1096 of the Civil Procedure Code, a judgment jurisdiction has not been provoked as a consequence of fraud capable of recognition and enforcement under the Angolan and is not a matter with the exclusive competence of the jurisdiction has to fulfil the following requirements: Angolan courts.
16 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 N-Advogados & CM Advogados Angola
■ That the exception of lis pendens or res judicata cannot ■ If any matter arises from the statement of defence that be invoked to question the jurisdiction of the Angolan deserves a response from the claimant, a written response court, except if it was a foreign court which prevented the (resposta) may be made. jurisdiction. ■ Once the written statements are complete, the parties and the ■ That the defendant has been regularly summoned for the Public Ministry have 10 days each to plead before a trial and action, under the law of the country of the court of origin, and decision. that in the proceedings the adversarial principles and equality ■ The decision can be subject to appeal, if the award does not of the parties has been observed. comply with paragraphs c), f) and g) of article 1096 of the ■ That the judgment does not contain a decision whose recognition Civil Procedure Code. leads to a result manifestly incompatible with the principles of To enforce the judgment, the creditor must summon the other party the international public order of the Angolan State. Angola before the court of the opposing party’s domicile or the court of the place where the enforcement is contemplated. 2.4 What (if any) connection to the jurisdiction is required The decision will be made by a single judge, after the exchange of for your courts to accept jurisdiction for recognition written submissions and a hearing. The parties must be represented and enforcement of a foreign judgment? by a lawyer. The claim is to be accompanied by: a copy of the decision; proof of power of attorney; and other documents that are A connection to the jurisdiction of the foreign judgment is not required. considered relevant to the enforcement proceedings. The bailiff proceeds with the enforcement, rendering an order stating the 2.5 Is there a difference between recognition and affected parties and the subject matter of the enforcement, as well enforcement of judgments? If so, what are the legal as the investigation and research measures aimed to localise the effects of recognition and enforcement respectively? assets of the judgment debtor. Finally, once the assets have been identified, they will be allocated to the creditor. Notifications are Angolan law distinguishes between recognition and enforcement of performed by bailiffs. Please note that, in case of opposition to the judgments. enforcement of the foreign judgment, the ruling deciding on such On one hand, recognition is the process that gives, in Angola, the opposition can be subject to further appeal. In case of dismissal same effects that the judgment has in the State where it was produced of the enforcement without opposition, it is also possible to appeal (the State in which enforcement is petitioned by any of the parties). such decision before the Appeal Court. This happens by introducing into the Angolan jurisdiction the same situation that was established in the legal order of the State of origin. 2.7 On what grounds can recognition/enforcement of a On the other hand, enforcement means that a judgment can be judgment be challenged? When can such a challenge executed before an Angolan court, allowing the party to act be made? coercively against the debtor in Angola. The Angolan courts do not review the merits of the judgment, since In practice, creditors seeking to recover a claim in Angola will seek the process of recognition and enforcement is thought to focus on an enforcement order (termed an “exequatur”). the formal requirements. If the formal requirements are fulfilled, the The request for review is filed at the Supreme Court. Once the judgment will be recognised/enforced. Therefore, the judgment can exequatur is granted, the enforcement may be filed in the first only be challenged if it does not comply with the formal requirements. instance court as if it were a domestic award. In this case, a decision should not be granted if it leads to a result that is manifestly incompatible with the international public policy 2.6 Briefly explain the procedure for recognising and principles of the Angolan State – principles that derive from a enforcing a foreign judgment in your jurisdiction. complex of rules, inspired by political, moral and economic factors which are accepted by a number of nations as an expression of an The exequatur procedure, as described in question 2.3, will take identical civilisation and culture and which are therefore embodied place at the Chamber of Civil and Administrative of the Supreme in the legal order of a number of States with which Angola has legal Court (Tribunal Supremo) which, according to article 1095 of the affinities, in line with the Constitution. Therefore, the judgment Civil Procedure Code, is the competent court in Angola to deal with can also be challenged if it is incompatible with international public this kind of process. policy or if it was procured by fraud. Regarding arbitral awards, Article III of the New York Convention prescribes that the procedure for recognition and enforcement of 2.8 What, if any, is the relevant legal framework applicable foreign arbitral judgments follows the same procedure as judicial to recognising and enforcing foreign judgments judgments as stated in the Civil Procedure Code. relating to specific subject matters? The Angolan system of recognition of foreign judgments is a formal system in which the court limits its activity to the verification of The legal framework for the recognition and enforcement of foreign the compliance of the judgment with the form requisites (regularity judgments normally applies to all subject matters. requirements). As an exception to the above, foreign judgments rendered on public To recognise a foreign judgment, in accordance with articles 1094 to matters, i.e. through which the government of a foreign country 1102 of the Civil Procedure Code, the main steps are the following: relies upon its sovereign prerogatives (typically tax and criminal ■ The claim ( petição inicial). judgments), cannot be recognised and enforced in Angola. ■ After the presentation of the claim at Court, the Court will Also, as an exception, we can point to the New York Convention, make a preliminary analysis of the claim, to check it obeys mentioned in question 1.1, to which Angola is a party, that contains the legal requisites for the process to proceed. specific provisions as to the recognition and enforcement of arbitral ■ If the claim obeys the conditions, the defendant is cited to awards. present its statement of defence (contestação).
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 17 N-Advogados & CM Advogados Angola
2.9 What is your court’s approach to recognition and 3 Special Enforcement Regimes Applicable enforcement of a foreign judgment when there is: (a) a to Judgments from Certain Countries conflicting local judgment between the parties relating to the same issue; or (b) local proceedings pending between the parties? 3.1 With reference to each of the specific regimes set out in question 1.1, what requirements (in form and As stated above in question 2.7, the Angolan courts only make a substance) must the judgment satisfy in order to be recognised and enforceable under the respective formal revision of foreign judgments. regime? Thus, courts cannot appreciate the merits of the judgment, so if the Angola judgment complies with the formal requirements stated in article The convention mentioned in question 1.1 – NY Convention 1096 of the Civil Procedure Code, the judgment must be recognised, of 1958 is applicable to any arbitral awards that fall within the unless it is against Angolan international public order principles. description of its Article I. A foreign judgment is not recognised and declared enforceable if This Convention has the purpose of providing a form of proceedings Angolan court proceedings are pending before the proceedings on whose purpose is to confer validity and enforceability to a foreign which the judgment is based are finalised. By contrast, proceedings arbitral award within a specific legal order. pending before foreign courts are irrelevant. It also prescribes the enforcement of foreign arbitral judgments. However, the execution can only begin after the judgment has become 2.10 What is your court’s approach to recognition and valid and effective; in other words, after having been duly recognised. enforcement of a foreign judgment when there is a In order to obtain recognition and enforcement, the party shall conflicting local law or prior judgment on the same or a similar issue, but between different parties? supply the duly authenticated original award or a duly certified copy, the original arbitration agreement or a duly certified copy. As said above, in Angola there is no review of the merits of the Also, if the said award or agreement is not made in the official judgment. This means that Angolan courts generally do not review language of the country in which the award is enforced, the party whether the judgment complies with Angolan or foreign substantive applying for recognition and enforcement of the award shall law. The existence of a conflicting local law or prior judgment translate these documents into such language, which shall be an between different parties is not relevant, unless it would lead to an official or sworn translation. incompatibility with international public policy rules, since Angola is a civil law country and does not use the precedent principle. 3.2 With reference to each of the specific regimes set out in question 1.1, does the regime specify a difference between recognition and enforcement? If so, what is 2.11 What is your court’s approach to recognition and the difference between the legal effect of recognition enforcement of a foreign judgment that purports to and enforcement? apply the law of your country?
Angolan courts cannot review the merits of a foreign judgment, The New York Convention provides for automatic recognition of even if the foreign court incorrectly applied the law. The revision foreign judgments, which has the same effects and limitations as will be limited to verifying whether any of the conclusions or the described under the general regime. procedure led to a breach of public policy rules. Therefore, there is no particular approach to the recognition and enforcement of a 3.3 With reference to each of the specific regimes set foreign judgment that purports to apply Angolan law. out in question 1.1, briefly explain the procedure for recognising and enforcing a foreign judgment.
2.12 Are there any differences in the rules and procedure The convention provide simplified proceedings to obtain enforcement of recognition and enforcement between the various states/regions/provinces in your country? Please of a foreign judgment. The creditor must summon the other party explain. before the Court. The claimant must provide a copy of the foreign judgment together Angolan law applies to the whole of Angola’s territory. There are no with a translation, a copy of the notification of the decision to the specific local laws regarding this matter. debtor and a certificate from the foreign court certifying that no appeal was filed. 2.13 What is the relevant limitation period to recognise and enforce a foreign judgment? 3.4 With reference to each of the specific regimes set out in question 1.1, on what grounds can recognition/ There is no specific provision regarding the limitation period to enforcement of a judgment be challenged under the enforce a foreign judgment. However, claims that have been special regime? When can such a challenge be made? declared final and absolute are time-barred after 30 years. According to the convention listed in question 1.1, enforcement can be challenged if the form requirements are not fulfilled.
18 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 N-Advogados & CM Advogados Angola
Recognition and enforcement of foreign arbitral awards can enforcement of the foreign judgment, the frozen assets will be be refused on the grounds set out in Article V of the New York transferred to the creditor. Convention. These include: Attachments may be executed on movable or immovable assets, ■ lack of a valid arbitration agreement; whether tangible or intangible, including real estate, bank accounts, ■ violations of the right to be heard; claims, dividends, royalties, vehicles, etc. ■ excess of authority; The debtor can challenge enforcement measures. The case must be ■ irregularities in the constitution of the arbitral tribunal or the filed before court, where the parties file briefs and appear in court. proceedings; The judgment confirming or lifting the attachments can be appealed. ■ lack of a final and binding award; Angola ■ lack of objective arbitrability; and 5 Other Matters ■ violation of public policy. Beyond these grounds, no further review of the award is possible. In 5.1 Have there been any noteworthy recent (in the last particular, there is no review of the merits of the judgment. 12 months) legal developments in your jurisdiction Also, recognition and enforcement will be denied if the judgment relevant to the recognition and enforcement of foreign conflicts with Angolan international public policy rules. judgments? Please provide a brief description.
Not that we are aware of. 4 Enforcement
5.2 Are there any particular tips you would give, or 4.1 Once a foreign judgment is recognised and enforced, critical issues that you would flag, to clients seeking what are the general methods of enforcement to recognise and enforce a foreign judgment in your available to a judgment creditor? jurisdiction?
A judgment creditor can proceed with the enforcement of a Creditors are aware of the fact that enforcement proceedings in judgment, with interim enforcement measures on the basis of a Angola are often slow. For example, in some cases, notifications foreign judgment even before beginning recognition/enforcement can be an extremely slow phase of the process, especially when the court proceedings in Angola, requesting the seizure of assets of the debtor is domiciled abroad. debtor when there is a threat to the recovery of the values in debt. In addition, all enforcement-related acts are performed by bailiffs. Such a threat will result from evidence that the debtor is likely to Angolan bailiffs are court workers which perform execution acts. disappear or becomes bankrupt. The interim attachment will be Also, it is important to meet, at the outset, all the legal requirements executed by a bailiff without prior notice to the debtor and without set out in the relevant regulation (including any minor procedural the need for a court order. The assets will automatically be frozen requirements as to the translation of the ruling into the official upon service to the asset-holder, be it the debtor itself or a third language of the State where the judgment is enforced) in order to party. The attachment must then be notified to the debtor within avoid relevant delays in the processing of the case. Although in eight days and is subject to judicial review. Unless the court principle these proceedings should be relatively straightforward, orders the attachments to be lifted, the assets will remain frozen depending upon the particularities of the case and the specific legal for the duration of the enforcement procedure. If the court orders framework applicable, they can become more complex to solve.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 19 N-Advogados & CM Advogados Angola
Nuno Albuquerque Conceição Manita Ferreira N-Advogados & CM Advogados N-Advogados & CM Advogados Rua Bernardo Sequeira, 78, 1st Floor Rua Domingos do Ó, N.º 61 4715–671 Braga 1º Andar, escritório N.º 13 Portugal Edifício Acácias Place Benguela Tel: +351 253 609 310 / 330 Angola +244 926 227 178 / 928 391 751 Email: [email protected] Tel: +244 222 735 332 URL: www.nadv.pt Email: [email protected] URL: www.nadv.pt Angola Born on July 19, 1964, in Angola. Nuno has a law degree from the Born on February 16, 1959. Conceição is member no. 559 of the University of Coimbra (1988). Nuno has been inscribed in the Portugal Angolan Bar Association. Conceição is graduated in Law by Agostinho Bar Association as a lawyer since 1990, in Angola’s Bar Association Neto University (2005), and has a Master’s Degree in Legal and since 2008 and in Paris’ Bar Association since 2014. He is an Economic Sciences, by the same University. She also has a course in insolvency administrator, and has been inscribed in the official list of Social Research and Economic Analysis; in Emergency and Disaster insolvency administrators since 1995. Nuno has been the executive Management; and in Basic Financial Management and Control for director of CAAL – the Angolan arbitration centre for litigation since Managers. From 1983 to 1999 she was in the UNHCR; from 1995 2012. He is a certified mediator of public and private mediation at to 1999 as Representative for Middle and Lower Juba Regions in ICFML, Catholic University, Oporto, as of 2014. He has been an Somalia. From 2005 to 2011 she worked at RGT Law Firm, Luanda, arbitrator for CAAD – Administrative Arbitration Centre and also for as Executive Director/Head of Labour/Family Law Departments. In TAD – Sports Arbitral Court (where he is also Vice-President) since 2007 she worked in the UNHCR, Luanda, as National Protection 2015. In 2016, he was also appointed as an arbitrator at the Arbitration Officer. She is currently a Consultant, Mediator and Lawyer, Head Centre for Property and Real Estate. Nuno is the founding partner and main partner of CM Advogados. of N-Advogados – Nuno Albuquerque, Deolinda Ribas, Sociedade De Advogados, R.L. (N-Advogados & CM Advogados), with over 20 years of experience.
N-Advogados & CM Advogados is a global law firm qualified to support individuals and companies, State entities and Economic Groups. With 20 years of experience and professional practice, in both public and private law, litigation and commercial law, N-Advogados & CM Advogados has a set of professionals and technical methods based in solid values of rigour, excellency and dedication to its clients. N-Advogados & CM Advogados has been developing an internationalisation project through the implementation of offices in other countries, as in France and in the Community of Portuguese Language Countries (Angola and Mozambique), as well as to establish a network of partnerships in some of the main international markets, such as Brazil, Spain, England, Turkey and Israel. N-Advogados & CM Advogados seats its actuation in values such as excellence, independence, professionalism, quality of legal services and competence of its lawyers and collaborators, with respect to the ethical and deontological rules. *** CM Advogados is one of Angola’s leading law firms and a key reference in the country’s legal sector, coupled with strong international partnerships. CM Advogados is a global law firm qualified to provide first-class legal services to individuals, companies, Governments and economic groups in critical and complex aspects of its activities. With more than 25 years of experience and professional legal practice, public and private law and litigation, CM Advogados has a team of professionals acting through solid values of independence, rigorousness, excellence, quality and total dedication and focus on its Clients. CM Advogados has a set of specialised lawyers and consultants, able to respond effectively to the problems presented by those who demand us. Using new technologies allows us to address cases of high complexity and large volumes of documents quickly and effectively. Internally, all documentation is subject to digital computer processing, allowing fast access.
20 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Chapter 5
Australia Beverley Newbold
MinterEllison Tamlyn Mills
1 Country Finder 2.2 What constitutes a ‘judgment’ capable of recognition and enforcement in your jurisdiction?
1.1 Please set out the various regimes applicable to recognising and enforcing judgments in your Statutory Regime jurisdiction and the names of the countries to which Final and interlocutory orders in civil proceedings and the payment such special regimes apply. of compensation or damages to an injured party in criminal proceedings are considered capable of recognition and enforcement Applicable Law/ Relevant Corresponding under the statutory regime, as most awards are made during Statutory Regime Jurisdiction(s) Section Below arbitration proceedings. Trans-Tasman Common Law Proceedings Act 2010 New Zealand. Section 3. (Cth). To be considered a judgment capable of recognition and enforcement at common law, the determination must impose a personal obligation on the defendant and satisfy a number of conditions (set out below under question 2.3). 2 General Regime
2.3 What requirements (in form and substance) must a 2.1 Absent any applicable special regime, what is the foreign judgment satisfy in order to be recognised legal framework under which a foreign judgment and enforceable in your jurisdiction? would be recognised and enforced in your jurisdiction? Statutory Regime In order to be recognised and enforced under the FJA, a judgment Statutory Regime must be: There is a statutory regime for the recognition and enforcement of ■ for payment of a sum of money; and certain foreign judgments in Australia under the Foreign Judgments Act 1991 (Cth) (the FJA). The FJA provides a national regime for ■ final and conclusive. the recognition and enforcement of foreign judgments in Australia, A judgment can still be considered ‘final and conclusive’ if it is avoiding the need to bring a common law action. a default judgment or if it is subject to an appeal. However, the The statutory regime applies on the basis of substantial reciprocity Australian court may stay enforcement of the judgment if it is to the judgments of the superior courts (and specified inferior courts) satisfied that the judgment debtor has appealed or intends to appeal of the jurisdictions specified in the Foreign Judgments Regulations (expeditiously) against the judgment. No provision currently exists 1992 (Cth). The statutory regime currently applies to the following for the enforcement of non-money judgments under the FJA from jurisdictions: Alberta, Bahamas, British Columbia, British Virgin the courts of any country. Islands, Cayman Islands, Dominica, Falkland Islands, Fiji, France, A foreign judgment cannot be registered if, at the date of the Germany, Gibraltar, Grenada, Hong Kong, Israel, Italy, Japan, Korea, application: Malawi, Manitoba, Montserrat, Papua New Guinea, Poland, St. ■ it has been wholly satisfied; or Helena, St. Kitts and Nevis, St. Vincent and the Grenadines, Seychelles, ■ it could not be enforced in the country in which it was made. Singapore, Solomon Islands, Sri Lanka, Switzerland, Taiwan, Tonga, With the exception of New Zealand tax matters, the FJA does not Tuvalu, United Kingdom and Western Samoa. There are some notable generally apply to amounts payable in respect of taxes, fines or other omissions from the scope of the FJA, including the USA, China and penalties. Although judgments obtained in Papua New Guinea for India. Accordingly, it is necessary to consider both the statutory the recovery of income tax are registerable in themselves, sums due regime and the enforcement of foreign judgments at common law. by way of penalty or interest are not. Common Law An authenticated copy of the judgment and, if the judgment is not in Where the FJA does not apply, foreign judgments in Australia must English, a certified translation, are required to be provided with an be enforced under the common law principles for the enforcement application for registration under the FJA. of foreign judgments.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 21 MinterEllison Australia
Common Law Common Law To be recognised and enforced at common law: For a foreign judgment to be recognised and enforced at common ■ the foreign court must have exercised an ‘international’ law, the court must have jurisdiction over the defendant, either at jurisdiction that Australian courts recognise; common law, under the Service and Execution Process Act 1992 ■ the judgment must be final and conclusive; (Cth), or by the court’s own rules. The requisite jurisdiction will therefore generally only exist if: the defendant is present in the ■ the parties must be the same; and forum; the defendant has submitted to the jurisdiction of the forum; ■ the judgment must be for a fixed sum (although certain non- or the court is otherwise an appropriate forum given the subject money judgments may be enforceable in equity). matter of the case. Jurisdiction
Australia The question of jurisdiction is not determined by reference to the 2.5 Is there a difference between recognition and rules of the foreign court. The question is whether the foreign court enforcement of judgments? If so, what are the legal exercised a jurisdiction recognised under the Australian conflict of effects of recognition and enforcement respectively? laws rules. Traditionally, the jurisdiction of the foreign court over the judgment Statutory Regime debtor can arise by the presence or residence of the judgment debtor The FJA provides for enforcement by registration. Registration is in the foreign jurisdiction (for example, where the defendant was akin to recognition. Once registered, a foreign judgment can be personally served with the originating process while physically enforced in the same way as a judgment of the relevant Australian present in the jurisdiction) or by the voluntary submission of the court. defendant to that jurisdiction (for example, by appearing as a party Common Law in the proceedings or consenting to jurisdiction through a contractual clause). The foreign judgment must be made a judgment of a local Australian court as a prerequisite to enforcement. A judgment creditor seeking However, section 11 of the FJA, which applies to enforcement enforcement of a foreign judgment at common law must commence actions brought at common law, provides that a foreign court does fresh proceedings in an Australian court for the judgment debt. not have jurisdiction merely because the judgment debtor appeared The judgment of the Australian court in those proceedings is then or participated in proceedings to the extent necessary: enforceable in the same way as any other Australian judgment. ■ for seizure in the proceedings; ■ to protect or obtain the release of property seized or threatened; 2.6 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. ■ contest the jurisdiction of the court; or ■ invite the court in its discretion not to exercise its jurisdiction Statutory Regime in the proceedings. A judgment creditor who has obtained a judgment from a relevant Final and Conclusive court in a country to which the FJA applies can apply to the Supreme The key test for finality is whether the foreign court treats the Court of any Australian State or Territory for registration of the judgment as res judicata of the disputed issues. The existence or judgment (the Federal Court of Australia has jurisdiction in respect availability of an appeal does not affect the finality of a foreign of New Zealand Commerce Act proceedings). Once registered, the judgment although the Australian court may stay enforcement of the foreign judgment has the same force and effect as a judgment of the judgment pending the outcome of the foreign court appeal. local court and can be enforced in the same way, including in other Identity of the Parties Australian States and Territories. The parties to the enforcement proceedings must be the same as The rules for each State and Territory court prescribe the formal those in the foreign judgment. Where a foreign judgment is made requirements for an application for registration and the evidence that against several defendants, enforcement proceedings may be must be filed in support. This means the procedure for recognition brought against any or all of them in an Australian court. and enforcement varies between Australian jurisdictions. Type of Judgments that May be Enforced A judgment creditor can recover the reasonable costs of registration The enforcement of foreign judgments at common law is only and any interest due under the law of the original court up to the available for judgments for the payment of a fixed or readily date of registration. calculable sum of money. However, enforcement of certain non- An application for registration can be made ex parte, as there is no money judgments may be available in equity (see, for example, requirement to give notice to the judgment debtor under the FJA or White v Verkouille (1990) 2 Qd R 191; Davis v Turning Properties any of the applicable court rules. Pty Ltd (2005) 222 ALR 676; Independent Trustee Services Ltd v If the requirements of the FJA are satisfied, the court must order that Morris (2010) 79 NSWLR 425). the judgment be registered. The judgment creditor is then required to serve a notice of registration on the judgment debtor. The notice 2.4 What (if any) connection to the jurisdiction is required of registration must state the right of the judgment debtor to apply for your courts to accept jurisdiction for recognition for an order setting aside the registration and the deadline for such and enforcement of a foreign judgment? an application. During the period within which the judgment debtor may apply to set aside registration, the judgment creditor Statutory Regime cannot enforce the judgment. Evidence of service of the notice of There is no requirement for a Supreme Court of a State or Territory registration is required before the judgment creditor can take steps to have jurisdiction over a defendant to recognise and enforce a to enforce the judgment. foreign judgment.
22 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 MinterEllison Australia
Common Law If registration is set aside solely on the basis that it was not enforceable To enforce a foreign judgment at common law, the judgment creditor in the country of the original court at the date of the application for must bring a fresh action in the appropriate Australian court. registration, the judgment creditor can apply for re-registration if and when the judgment becomes enforceable in that country. There are two bases for a common law action to enforce a foreign judgment. First, the judgment creditor can sue for the judgment Common Law amount as a debt in an Australian court. Alternatively, or in addition, A final and conclusive money judgment made by a court having the judgment creditor may bring an action in an Australian court on jurisdiction recognised by the Australian courts is prima facie the original cause of action for which judgment was obtained in the entitled to enforcement in Australia. A judgment debtor cannot foreign court. The judgment creditor can then rely on the foreign raise in proceedings for the recognition and enforcement of a judgment as creating an estoppel which prevents the judgment foreign judgment in Australia a defence that was, or could have been Australia debtor from raising any defence which was or could have been raised, in the foreign proceedings. Accordingly, there are limited raised in the foreign proceedings. grounds on which a judgment debtor can resist the recognition and The court rules applicable in the jurisdiction in which the common enforcement of a foreign judgment at common law. law proceedings are commenced will apply to the proceeding. There are four recognised defences in a common law action to enforce a foreign judgment: 2.7 On what grounds can recognition/enforcement of a ■ the foreign judgment was obtained by fraud; judgment be challenged? When can such a challenge ■ the foreign judgment is contrary to public policy; be made? ■ the foreign court acted contrary to natural justice; and ■ the foreign judgment is penal or a judgment for a revenue debt Statutory Regime (although the unenforceable part of an award of damages may After a foreign judgment has been registered, the judgment debtor be severed from the enforceable part if it is practical to do so). can apply to the Supreme Court in which the judgment was These defences must be raised by the judgment debtor in the registered to have the registration set aside. The court in which the common law action seeking recognition and enforcement of the foreign judgment is registered must specify the period within which foreign judgment. such an application can be made. If the judgment debtor can satisfy the court of one of the following 2.8 What, if any, is the relevant legal framework applicable matters, the court has no discretion and must set aside registration to recognising and enforcing foreign judgments of the judgment: relating to specific subject matters? ■ the judgment is not, or has ceased to be, a judgment to which the FJA applies; Enforcement of foreign judgments at common law and under the FJA ■ the judgment was registered for an amount greater than the is limited to judgments for the payment of a liquidated sum. There may amount payable under it at the date of registration; be specific rules for the recognition and enforcement of judgments in ■ the judgment was registered in contravention of the FJA; rem, being judgments that affect the status of a person or property, ■ the courts of the country of the original court had no for example, under bankruptcy, corporations or family law provisions. jurisdiction in the case; The Foreign Proceedings (Excess of Jurisdiction) Act 1984 (Cth) ■ if the judgment debtor was the defendant in the proceedings applies specifically to anti-trust proceedings in foreign courts and in the original court, that the judgment debtor did not receive gives the Australian Attorney-General discretionary powers which notice of the proceedings in the original court in sufficient can prevent the recognition and enforcement of foreign judgments time to enable the judgment debtor to defend the proceedings in relation to anti-trust matters in Australia in whole or part. and did not appear; ■ the judgment was obtained by fraud; 2.9 What is your court’s approach to recognition and ■ the judgment has been reversed on appeal or otherwise set enforcement of a foreign judgment when there is: (a) a aside in the courts of the country of the original court; conflicting local judgment between the parties relating ■ the rights under the judgment are not vested in the person by to the same issue; or (b) local proceedings pending whom the application for registration was made; between the parties? ■ the judgment has been discharged; ■ the judgment has been wholly satisfied; or Statutory Regime ■ enforcement of the judgment would be contrary to public (a) The court has the discretion to set aside the registration of a policy. foreign judgment if the matter in dispute has been the subject of a final and conclusive judgment by another court having Section 7(3) of the FJA sets out when the foreign court is deemed jurisdiction in the matter (section 7(2)(b) of the FJA). This to have jurisdiction. provision is not limited to conflicting local judgments of If the judgment debtor can satisfy the court that the matter in dispute Australian courts. in the proceedings in the original court had, before the date of the (b) A judgment to which the FJA applies, or would have applied judgment in the original court, already been the subject of a final and if it were a money judgment, must be recognised in any conclusive judgment by another court having jurisdiction, the court Australian court as conclusive between the parties to it in all has a discretion whether to set aside registration of the judgment. proceedings founded on the same cause of action and may be relied on by way of defence or counter-claim in any such If registration is set aside on the basis that the judgment was proceedings (section 12(1) of the FJA). This applies whether or registered for an amount greater than the amount payable under it not the foreign judgment is, or can be, registered under the FJA, at the date of registration, the judgment creditor can apply for re- but does not apply where registration of a judgment has been set registration. aside or could be set aside on any of the following grounds:
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 23 MinterEllison Australia
■ the courts of the country of the original court had no jurisdiction in the case; 2.11 What is your court’s approach to recognition and enforcement of a foreign judgment that purports to ■ if the judgment debtor was the defendant in the proceedings apply the law of your country? in the original court, that the judgment debtor did not receive notice of the proceedings in the original court in sufficient time to enable the judgment debtor to defend the No special rules apply where a foreign judgment purports to proceedings and did not appear; apply Australian law. Because Australian courts will not refuse ■ the judgment was obtained by fraud; recognition and enforcement of a foreign judgment based on an error on the merits, the fact that a foreign court has applied Australian ■ the judgment has been reversed on appeal or otherwise set aside in the courts of the country of the original court; or law is not a basis for refusing recognition and enforcement of the judgment even if an Australian court would have reached a different Australia ■ enforcement of the judgment would be contrary to public policy. result. If there is a conflicting domestic court judgment between parties relating to the same issue, it would likely be regarded as contrary to 2.12 Are there any differences in the rules and procedure public policy to enforce the foreign judgment. of recognition and enforcement between the various states/regions/provinces in your country? Please Common Law explain. (a) If there is a conflict between a foreign judgment and an earlier judgment of an Australian court on the same matter The FJA provides a national regime for the recognition and and between the same parties, the local judgment will be enforcement of the foreign judgments to which it applies. However, preferred. the Act leaves the court rules of Australia’s State and Territory Supreme (b) A foreign judgment which has been satisfied can be relied on Courts free to prescribe the formal requirements for an application as creating a cause of action estoppel in any local Australian for registration and the matters to be proved on an application for proceedings pending in relation to the same parties on the registration. This means that the rules and procedure for recognition same cause of action. For a foreign judgment to be relied and enforcement do vary between Australian States and Territories. on as a bar to local proceedings, the parties must be identical and the causes of action and heads of damage recoverable the Similarly, at common law the doctrine of precedent means that same. However, it is not necessary that the applicable law decisions of the courts in one State or Territory are not binding be the same or that the foreign proceedings were instituted on the courts of another State or Territory. This has the potential before the local proceedings commenced. to lead to divergence in the common law principles applicable to A foreign judgment can also be relied on by way of issue estoppel the enforcement of foreign judgments between jurisdictions in the to prevent the reopening of an issue that has been previously absence of binding High Court (Australia’s highest court) authority. litigated between the same parties. For an issue estoppel to arise, the following requirements must be met: 2.13 What is the relevant limitation period to recognise and ■ the same question has been decided; enforce a foreign judgment? ■ the decision was final; and ■ the parties to the decision were the same as the parties to the Statutory Regime proceeding in which the estoppel is raised. The limitation period for an application for registration of a foreign However, an Australian court will be cautious in applying the judgment under the FJA is six years from the date of judgment or, if doctrine of issue estoppel where the issue in question was not fully the judgment has been appealed, the date of the last judgment in the litigated or considered by the foreign court. appeal proceedings (section 6(1) of the FJA). Common Law 2.10 What is your court’s approach to recognition and The limitation period for a common law action to enforce a foreign enforcement of a foreign judgment when there is a judgment is determined by the relevant State and Territory law conflicting local law or prior judgment on the same or relating to limitation periods. a similar issue, but between different parties?
Conflicting local law or prior judgment on the same or similar 3 Special Enforcement Regimes Applicable issue between different parties is not a basis on which registration to Judgments from Certain Countries of a foreign judgment can be set aside under the FJA. Australian courts have applied the principle enunciated by Justice Blackburn in Godard v Gray (1870) LR 6 QB 139 that a foreign judgment cannot 3.1 With reference to each of the specific regimes set be refused recognition and enforcement on the basis that the foreign out in question 1.1, what requirements (in form and substance) must the judgment satisfy in order to be court mistook either the facts or the law. recognised and enforceable under the respective Accordingly, the fact that an Australian court would have decided regime? the case differently is not grounds for refusing recognition and enforcement at common law. Of course, recognition and The Trans-Tasman Proceedings Act 2010 (Cth) deals with the enforcement will be refused if it would be contrary to Australian recognition and enforcement in Australia of specified judgments of public policy but this is a narrow defence which only applies to New Zealand courts and tribunals. cases involving fundamental questions of moral and ethical policy, To be enforceable under the Act, a New Zealand judgment must be fairness of procedure and illegality. a ‘registrable NZ judgment’ (see section 66). In general terms, a judgment must be final and conclusive and be:
24 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 MinterEllison Australia
■ given in a civil proceeding by a New Zealand court; ■ the court is satisfied that enforcement of the judgment would ■ given in a civil proceeding by a New Zealand tribunal prescribed be contrary to public policy; by the Trans-Tasman Proceedings Regulation 2012 (Cth); ■ the judgment was registered in contravention of the Act; or ■ given in a criminal proceeding by a New Zealand court and (i) ■ for judgments relating to immovable property or judgments wholly consist of a requirement to pay an injured party a sum given in rem in relation to movable property, if the property of money by way of compensation, damages or reparation, or was not situated in New Zealand at the time of the proceeding. (ii) wholly consist of an imposition of a regulatory criminal An application to set aside registration must be made within 30 days fine and meet the conditions prescribed in the Regulation; or after the judgment debtor is given notice of registration. ■ registered in a New Zealand court under the Reciprocal Enforcements of Judgments Act 1934 (New Zealand). A New Zealand judgment can only be enforced in Australia if it is capable of being enforced in New Zealand. The Act also applies to certain proceedings in the High Court of Australia New Zealand arising under the Commerce Act 1986 (New Zealand) and certain orders for the payment of expenses to witnesses (see 4 Enforcement section 66(1)(e) and section 85(2)). Specific types of judgments are excluded from the operation of the 4.1 Once a foreign judgment is recognised and enforced, Act, for example, orders under proceeds of crime legislation or what are the general methods of enforcement orders relating to guardianship or child welfare (see section 66(2)). available to a judgment creditor? An authenticated copy of the New Zealand judgment must be filed at the relevant Australian court with an application for registration. For the purposes of enforcement, once a foreign judgment is registered pursuant to the FJA or becomes a judgment of the local court in a common law action, the judgment has the same force and 3.2 With reference to each of the specific regimes set out in question 1.1, does the regime specify a difference effect as a local judgment and may be enforced in the same way. between recognition and enforcement? If so, what is Each State or Territory’s court rules provide a statutory regime for the difference between the legal effect of recognition the enforcement of judgments. Generally, to enforce a judgment in and enforcement? Australia, the judgment creditor must make an application to the court for enforcement. In some jurisdictions, this is known as an The Trans-Tasman Proceedings Act provides a regime for the application for an enforcement warrant or an enforcement order. registration of New Zealand judgments in an Australian court. Enforcement orders able to be made include: Once registered, the judgment has the same force as an Australian (a) an order for the seizure and sale of real and personal property judgment and can be enforced as if the judgment had been given by in which the judgment debtor has an interest; an Australian court. (b) a garnishee order; (c) an instalment order authorising the satisfaction of the 3.3 With reference to each of the specific regimes set judgment debt in instalment payments; out in question 1.1, briefly explain the procedure for (d) a charging order against the judgment debtor’s interest in any recognising and enforcing a foreign judgment. stocks, shares, bonds, debentures, etc.; (e) money in court and stop orders; A judgment creditor seeking to enforce a New Zealand judgment under the Trans-Tasman Proceedings Act must make an application (f) an order appointing a receiver; for registration in the form required by the Trans-Tasman (g) committal of the judgment debtor; or Proceedings Regulation 2012. (h) sequestration of the judgment debtor’s property. An Australian court must, on an application under section 67 of the Act, register the New Zealand judgment. The judgment creditor 5 Other Matters must then serve a notice of registration within 15 working days after registration. An application for registration must be made within six years after 5.1 Have there been any noteworthy recent (in the last the day the judgment was given or the day of the last judgment in 12 months) legal developments in your jurisdiction any appeal proceedings. relevant to the recognition and enforcement of foreign judgments? Please provide a brief description. A registered New Zealand judgment can be enforced in Australia as soon as notice of registration is given. The judgment creditor does In Resorts World at Sentosa Pty Ltd v Kok (2016) WASC 96, an not need to wait until the period for applying to set aside registration application was made in the Supreme Court of Western Australia has expired. However, if notice of registration has not been given, to set aside the registration of a judgment made by the High Court the judgment creditor cannot take steps to enforce the judgment for of the Republic of Singapore on the ground that the judgment a period of 45 working days. was contrary to public policy. The registered judgment related to monies owing under a credit facility provided to the defendant 3.4 With reference to each of the specific regimes set out for the purposes of gaming at Sentosa Casino. In support of the in question 1.1, on what grounds can recognition/ application, the judgment debtor relied on the fact that the provision enforcement of a judgment be challenged under the of credit for gaming in Western Australia was prohibited. special regime? When can such a challenge be made? The judgment debtor’s application was unsuccessful. The fact of the prohibition was not seen to undermine the Singaporean judgment Registration of a New Zealand judgment under the Trans-Tasman as it did not embody a universal principle; it was merely enacted Proceedings Act must be set aside if:
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 25 MinterEllison Australia
to reflect the legislature’s approach to gambling. While Master Sanderson noted that the provision of credit for gambling might be 5.2 Are there any particular tips you would give, or considered as morally and ethically wrong by some citizens, he held critical issues that you would flag, to clients seeking to recognise and enforce a foreign judgment in your that Singapore was entitled to make its own decision on the question jurisdiction? of whether or not such credit could be provided.
Clients seeking to recognise and enforce a foreign judgment or award in Australia should be aware of the distinction between the statutory regime, the common law regime and any special regimes for the enforcement of non-money judgments and ensure that they take steps under the appropriate regime. Clients should Australia also consider the appropriate State or Territory in which to seek recognition and enforcement and make sure they are familiar with the particular rules and procedures that apply in that jurisdiction. Failure to comply with applicable procedural rules, for example, service of a notice of registration in the correct form, can result in enforcement of a foreign judgment being refused.
Beverley Newbold Tamlyn Mills MinterEllison MinterEllison Level 40 Governor Macquarie Tower Level 40 Governor Macquarie Tower 1 Farrer Place 1 Farrer Place Sydney Sydney Australia Australia
Tel: +61 2 9921 4894 Tel: +61 2 9921 4398 Email: [email protected] Email: [email protected] URL: www.minterellison.com URL: www.minterellison.com
Beverley Newbold is a Partner at MinterEllison Sydney. She is Tamlyn Mills is Senior Associate at MinterEllison Sydney. She is a recognised litigator and dispute resolution specialist dealing in an experienced commercial litigator who has acted in complex and international and large domestic corporate disputes, class actions, and large scale litigation in the Federal Court of Australia, the Queensland regulatory and compliance investigations. Supreme Court and the New South Wales Supreme Court for both public and private sector clients across a range of industry sectors, Beverley’s major proceedings include representing Qantas in Federal including energy and resources, construction, property, agriculture, Court proceedings against Rolls Royce over the headline Airbus A380 health and government. In addition to court proceedings, Tamlyn engine failure. In the class action space, Beverley has also defended also has experience advising clients on various alternative dispute a number of shareholder class actions brought against, among others: resolution processes, including mediation, arbitration and expert Billabong; Bellamy’s; and the directors of the MFS group and Kagara determination. Limited (in liq), involving allegations of allegedly misleading market guidance and non-compliance with the provisions of the Corporations Tamlyn specialises in arbitration, alternative dispute resolution and Act relating to financial statements. international disputes. She was awarded a Master of Laws with Distinction from the London School of Economics and Political Science Beverley brings significant cross-border disputes experience to her in 2013 where her studies focused on international commercial practice, including international arbitrations, drawing upon several arbitration, international dispute resolution and ADR. Tamlyn is a years’ experience with the top-five global firm, Freshfields, in London. member of the MinterEllison Trade Law Group and International She has a Masters of Law in International Business Regulation, Dispute Resolution Group. Litigation and Arbitration from New York University.
MinterEllison is one of the largest full-service law firms in the Asia Pacific region. With more than 200 partners and 700 legal staff working throughout Australia and in Hong Kong, The People’s Republic of China, Mongolia, New Zealand and the UK, MinterEllison supports leading industry and government clients, delivering practical, commercial solutions and helping clients achieve successful business outcomes. Our focus is multi-disciplinary and industry-focused. Our lawyers work across industry sectors, specialist legal areas and offices to add value – offering clients the benefits of their industry knowledge, business acumen and global experience.
26 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Chapter 6
Austria Dr. Christian W. Konrad
Konrad & Partners Philipp A. Peters
1 Country Finder Applicable Law/ Relevant Corresponding Statutory Regime Jurisdiction(s) Section Below Convention on the 1.1 Please set out the various regimes applicable Recognition of Decisions Relating All parties to the to recognising and enforcing judgments in your Section 2. jurisdiction and the names of the countries to which to the Validity of Convention. Marriages of 8 such special regimes apply. September 1967. European Convention Turkey and The Applicable Law/ Relevant Corresponding on Recognition and Netherlands (to Statutory Regime Jurisdiction(s) Section Below Enforcement of the extent that this Domestic provisions: Decisions concerning Convention is not Section 2. Custody of Children superseded by special All jurisdictions (to and on Restoration of regimes such as EU the extent that AEA Austrian Enforcement Custody of Children. Regulations). provisions are not Sections 2 and 5. Act (AEA). superseded by special Multilateral conventions on the carriage of passengers and goods: regimes). CMR, CIM, All jurisdictions (to CIV, COTIF the extent that IC and Multilateral Austrian Insolvency All parties to the provisions are not Sections 2 and 3. Convention on the Sections 2 and 3. Code (IC). Conventions. superseded by special Registration of regimes). Invalid Navigation Vessels. All jurisdictions (to Law on Non- the extent that ALNM Bilateral treaties and Austrian regulations on the enforcement of Contentious Matters provisions are not Sections 2 and 3. executory titles: (ALNM). superseded by special Belgium, British regimes). Columbia, Finland, Multilateral conventions on litigation and arbitration: France, Germany, Israel, Italy, Bilateral treaties and Convention of 1 Liechtenstein, Austrian regulations March 1954 on civil All parties to the Luxembourg, the Sections 2 and 3. Section 2. regarding individual procedure (Hague Convention. Netherlands, Norway, countries. Convention of 1954). Spain, Sweden, Convention on Switzerland, Tunisia, Jurisdiction and Turkey and the the Enforcement of United Kingdom. Iceland, Norway and Judgments in Civil Sections 2 and 3. Switzerland. and Commercial Matters (Lugano Convention). 2 General Regime Convention on the Recognition and Enforcement of 2.1 Absent any applicable special regime, what is the All parties to the Foreign Arbitral Sections 2 and 3. legal framework under which a foreign judgment Conventions. Awards of New York would be recognised and enforced in your 1958 (New York jurisdiction? Convention 1958). Multilateral conventions on family matters and the civil status of The general regime governing the recognition and enforcement of individuals: foreign judgments in Austria is enshrined in Sections 403 et seqq. Hague Conventions of the Austrian Enforcement Act (AEA). Pursuant to Section 416(1) on matters of family All parties to the AEA, these provisions apply to foreign executory titles to the extent law and civil status Sections 2 and 3. Conventions. of 1958, 1961, 1980, that they are not superseded by international treaties or the law of 1996, 2000 and 2007. the European Union.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 27 Konrad & Partners Austria
the title may not be subject to any further challenge or appellate 2.2 What constitutes a ‘judgment’ capable of recognition proceedings suspending enforceability in its country of origin. The and enforcement in your jurisdiction? fulfilment of this requirement must be confirmed by the authority which has rendered the title. The scope of application of the aforementioned domestic provisions The party seeking leave for enforcement must submit the original is not confined to foreign judgments. It extends to all foreign writ of execution or a copy issued by the same authority which executory titles. Foreign executory titles are defined in Section 403 rendered the foreign title. Furthermore, a full certified translation of AEA as documents and deeds drawn up abroad. Documents and the writ of execution must be submitted. deeds issued by Austrian authorities abroad or by agents of such authorities are considered domestic. Notably, foreign executory Even if all preconditions as enshrined in Sections 406 and 407 Austria titles need not be of the same nature as any Austrian domestic AEA are fulfilled, a foreign executory title may not be declared executory title as enumerated in Section 1 AEA, i.e., need not fit into enforceable if there are any grounds for refusal as enumerated in any of the categories specifically known to Austrian law, in order to Section 409 AEA. These grounds are discussed in more detail in be capable of recognition and enforcement. They must, however, be answer to question 2.7. regarded as executory titles in their jurisdictions of origin. This broad definition encompasses all foreign judgments, orders, 2.4 What (if any) connection to the jurisdiction is required interim measures, court settlements, public deeds, as well as for your courts to accept jurisdiction for recognition declarations of commitment issued by a foreign notary public, and and enforcement of a foreign judgment? arbitral awards issued by arbitral tribunals having their seat abroad. With respect to foreign executory titles, Section 409 AEA provides The term “judgments” includes partial judgments, judgments by for the jurisdiction of the district courts. In particular, the creditor default and complementary judgments. has to request leave for enforcement from the court at the seat or domicile of the debtor. However, where the creditor prefers to 2.3 What requirements (in form and substance) must a combine its request for leave for enforcement with a request for foreign judgment satisfy in order to be recognised enforcement authorisation, Section 409 AEA effectively allows to and enforceable in your jurisdiction? choose between the district court at the seat or domicile of the debtor and the district court within whose territorial jurisdiction the assets To be granted leave for enforcement, i.e., to be declared enforceable of interest for the purpose of enforcement are located. in Austria, pursuant to Section 406 AEA, foreign executory titles must satisfy the following basic conditions. 2.5 Is there a difference between recognition and Firstly, they must be enforceable in their jurisdiction of origin. enforcement of judgments? If so, what are the legal Notably, their enforceability may precede their entry into legal force, effects of recognition and enforcement respectively? which means that an (provisionally) enforceable foreign executory title may be enforced in Austria while still being subject to appellate Under the rules of the AEA, the enforcement of a foreign writ of proceedings in its jurisdiction of origin. execution is contingent upon the application and issuance of a Secondly, to be enforceable in Austria, such foreign executory titles declaration of enforceability. By means of this procedure it can be must be sufficiently specific,i.e ., the content of their orders must be avoided that different courts decide differently on whether to grant determinable without any further normative assessment. Such is the the execution on the basis of a foreign title. Once the declaration of case, for example, with an executory title providing for payment in enforceability has become effective, the writ of execution is declared foreign currency. enforceable once and for all. It is to be noted that such application Moreover, an international treaty or domestic regulation must of enforceability can be submitted together with an actual motion expressly stipulate the principle of reciprocity with respect to the for enforcement. enforcement of executory titles between the state of origin of the relevant foreign executory title and Austria. Notably, Austrian 2.6 Briefly explain the procedure for recognising and enforcement courts are not authorised to assess the actual practice enforcing a foreign judgment in your jurisdiction. of enforcing executory titles in the particular state. Reciprocity must therefore be warranted by international treaty and/or domestic A party seeking enforcement of a foreign executory title first has regulations and not just by factual practice. The requirement of to request leave for enforcement from the competent court (see reciprocity, however, does not apply to executory titles regarding a the answer to question 2.4 for information regarding the territorial person’s civil or marital status. jurisdiction of the district courts). The party may combine such Section 407 AEA provides for additional requirements. Notably, request with a request for an enforcement authorisation. Where this its scope of application is different from Section 406 AEA, as it is the case, the court will decide on both issues simultaneously. is confined to judgments, awards, settlements and public deeds. The court will examine the aforementioned grounds for granting Executory titles falling within the scope of application of this leave for enforcement (see the answer to question 2.3) as well as the provision must originate in a state whose authorities would be grounds for refusing enforcement in ex parte proceedings and will competent to issue such documents and deeds not just within decide based only on documents, i.e., without conducting a hearing their jurisdiction, but also under the Austrian law on international or else involving the debtor. This procedure was designed to grant jurisdiction. Furthermore, they must stem from proceedings in the creditor the advantage of surprising enforcement access. which the document initiating action (e.g., the claim or the request Both parties may raise an appeal against the district court’s order for arbitration) has been served upon the party opposing the on the request for leave for enforcement. Since the first instance enforceability of the executory title in Austria (i.e., the defendant). proceedings are conducted without the debtor being granted the right The opposing party must thus have been put in a position to make to be heard, Section 411(2) no. 2 allows for the debtor to introduce use of its procedural rights before the executory title has been new facts in the course of such appeal proceedings. Notably, the rendered. Finally, Section 407 establishes the requirement that debtor is required to raise all grounds for refusing the creditor’s
28 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Konrad & Partners Austria
requests already with its appeal. Any grounds not invoked in the decisions on adoption. Foreign decisions on certain matrimonial appeal will be precluded with the exception of grounds that the matters related to the validity, persistence and end of marriage debtor could not be aware of. The competent regional court will hear are recognised and enforced in Austria in accordance with Sections the appeal in inter partes proceedings. Generally, an appeal may be 97 to 100 ALNM. Similarly, Sections 112 to 116 relate to foreign filed within four weeks from the day the decision on the request decisions on parental custody and the parental right of access to the for leave for enforcement is served upon the debtor personally or child. Sections 131a to 131g ALNM govern the recognition and at his habitual residence. If, however, the debtor’s seat or habitual enforcement of foreign decisions on the protection of vulnerable residence is not in Austria and the appellate proceeding is their first adults and their property. It should be noted that the provisions of chance to participate in the proceedings, this time period amounts the ALNM apply only to the extent that they are not superseded by to eight weeks. This does not, however, affect the time period for international treaties or EU legislation. In addition, Section 213 of the the creditor’s reply to the appeal, which will not exceed four weeks. Insolvency Code (IC) applies to the recognition of foreign insolvency Austria As discussed above, leave for enforcement as well as an enforcement proceedings and the decisions made within their framework. Notably, authorisation may be ordered by an Austrian enforcement court the wordings of all of these legal provisions refer to “foreign decisions” regardless of whether the respective executory title is subject to as their object. This term is narrower than that of “documents and appellate proceedings in its jurisdiction of origin. Therefore, the debtor deeds”, the one used in the AEA. Finally, Section 614 ACCP of the may request the respective enforcement court of second instance to Austrian Code of Civil Procedure (ACCP) governs the recognition stay the appellate proceedings until the executory title becomes final and enforcement of arbitral awards (though referring further on to and binding in the jurisdiction in which it has been rendered. During the AEA as well as to international treaties and instruments of EU such a stay of the proceedings, the creditor may have the debtor’s assets law). All these domestic provisions are leges speciales with respect seized but not liquidated. The Austrian enforcement court may order to Sections 403 et seqq. AEA and thus they supersede the general the creditor to provide security for any such permitted enforcement framework of the AEA. measure the creditor takes during the stay. Pursuant to Section 416 AEA, European law and international Section 414(1) AEA allows for the creditor to request the Austrian treaties also supersede Sections 403 et seqq. AEA to the extent that enforcement court to set aside or amend the leave for enforcement if they govern the recognition and enforcement of executory titles the executory title has been set aside or amended in its jurisdiction differently. This is relevant for the Hague Conventions of 1954, of origin. The creditor may also combine this request with a request 1958, 1961, 1980, 1996, 2000 and 2007. to stop or limit the enforcement measures. The same applies for the following multilateral treaties to which The regional court’s decision on the appeal may, in turn, be brought Austria has become a party: before the Austrian Supreme Court. Notably, however, the Austrian ■ Convention on the Contract for the International Carriage of Supreme Court’s review is limited to points of law and only to Goods by Road (CMR) of 19 May 1956. issues of material importance to the uniformity, the certainty or the ■ Convention on the Recognition and Enforcement of Foreign development of the Austrian legal order. Arbitral Awards of New York 1958 (New York Convention). ■ International Convention Concerning the Carriage of Passengers (CIM ). 2.7 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge ■ International Convention Concerning the Carriage of be made? Passengers and Luggage by Rail (CIV ). ■ Multilateral Convention on the Registration of Invalid There are distinct grounds for challenging the declaration of Navigation Vessels concluded at Geneva on 25 January 1965. enforceability (or recognition) of the executory title under Austrian ■ Convention Concerning International Carriage by Rail law (Section 408 AEA): (COTIF ). The debtor may challenge the declaration of enforceability, where ■ Convention on the Recognition of Decisions Relating to the (i) any of the preconditions for the declaration of enforceability have Validity of Marriages of 8 September 1967. Austria, the Netherlands and Turkey are members to this treaty. not been met, (ii) the debtor was not provided with an opportunity to participate in the initial (foreign) proceedings resulting in the ■ European Convention on Recognition and Enforcement of title, due to procedural irregularities, (iii) the declaration would Decisions concerning Custody of Children and on Restoration of Custody of Children. result in the enforcement of an action which is not admissible or not enforceable under Austrian law (for example, the enforcement In addition, Austria has concluded a number of bilateral treaties of an action constituting a criminal offence under Austrian law), governing the recognition and enforcement of foreign executory and (iv) recognition or enforcement would effectively violate the titles; namely with: Belgium; Finland; France; Germany; Israel; fundamental principles of Austrian law (ordre public). Italy; Liechtenstein; Luxembourg; the Netherlands; Norway; Sweden; Switzerland; Spain; Tunisia; Turkey; and the United Kingdom. An Austrian domestic regulation governs the recognition and enforcement 2.8 What, if any, is the relevant legal framework applicable of judicial decisions and arbitral awards given in the Canadian province to recognising and enforcing foreign judgments relating to specific subject matters? of British Columbia. Many of these treaties, i.e. those concluded with countries which are nowadays Member States of the European Union, have been superseded by EU law. With a view to specific subject matters, Sections 403 et seqq. AEA are often superseded by specific domestic provisions as well as by In 1960, Austria signed a bilateral treaty on the enforcement of international treaty law and European legislation. commercial arbitration awards with Yugoslavia, which Austria continues to consider applicable with respect to Serbia, Montenegro, For example, Sections 91a to 91d of the Law on Non-Contentious Kosovo, the Former Yugoslav Republic of Macedonia, Croatia and Matters (ALNM) govern the recognition and enforcement of foreign Slovenia.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 29 Konrad & Partners Austria
The AEA is a federal law enacted by the National Council, and it 2.9 What is your court’s approach to recognition and applies equally in all nine regional states. enforcement of a foreign judgment when there is: (a) a conflicting local judgment between the parties relating to the same issue; or (b) local proceedings pending 2.13 What is the relevant limitation period to recognise and between the parties? enforce a foreign judgment?
Sections 91a (2) no. 3 and 97(2) no. 3 ALNM apply to foreign In general, a recognised and enforceable foreign executory title decisions, respectively, on adoption and on matrimonial matters has the same legal effects as a domestic executory title. However, related to the validity, persistence, and end of marriage. Within contrary to the approach typically taken in common law jurisdictions,
Austria their scope of application, they provide that Austrian authorities in Austria, limitation periods are an issue of substantive and not shall refuse to recognise a decision that is irreconcilable with an procedural law and thus the limitation period of the executory earlier Austrian decision or with another foreign decision fulfilling title is governed by the law applicable to the merits of a dispute. the preconditions for recognition in Austria that has been issued Thus, the law governing the limitation period of the executory title prior to the decision for which enforcement is sought. may be foreign. Pursuant to Section 1478 of the Austrian Civil Similarly, Section 113(1) no. 3 ALNM governs the recognition Code (ACC), where Austrian law is applicable, judgments may of foreign decisions on parental responsibilities and provides that be enforced within 30 years from the date on which the judgment it shall be refused if such a decision is irreconcilable with a later became final and binding. Austrian decision or a later foreign decision if such decision fulfils the preconditions for recognition in Austria. 3 Special Enforcement Regimes Applicable Bilateral treaties typically provide that recognition of a foreign to Judgments from Certain Countries executory title may be refused because of a pending domestic proceeding on same subject matter, e.g., Article 5 no. 3 of the bilateral treaty between Austria and Israel and Article 4 no. 2 of the 3.1 With reference to each of the specific regimes set respective treaty with Tunisia. out in question 1.1, what requirements (in form and substance) must the judgment satisfy in order to be The AEA itself does not address the circumstance of an earlier recognised and enforceable under the respective executory title as a separate ground for rejecting the creditor’s regime? request for leave for enforcement. Section 240 IC provides that effects of insolvency proceedings 2.10 What is your court’s approach to recognition and opened abroad shall be recognised in Austria, if the centre of enforcement of a foreign judgment when there is a main interests of the debtor is situated in that foreign state, if the conflicting local law or prior judgment on the same or insolvency proceedings are similar to insolvency proceedings in a similar issue, but between different parties? Austria (in particular, if Austrian creditors are treated equally with creditors from the state where the proceedings are taking place) and A conflict with Austrian law does not in itself constitute a ground if none of the grounds for rejecting recognition applies. for refusing the recognition or enforcement of a foreign executory With respect to the matters governed by the ALNM, the preconditions title unless it amounts to a breach of the fundamental principles for recognising a foreign decision on adoption or on matrimonial of substantive or procedural Austrian law. This is a common matters related to the validity, persistence, and end of marriage are provision. It is expressly stipulated in Section 408 no. 3 AEA, in satisfied where the foreign decision has entered into legal force in Article 45(1)(a) of the Brussels I recast Regulation, Articles 22(a) its state of origin. Also, the party requesting recognition must have and 23(a) of the Brussels II Regulation, Article 34 no. 1 of the legal interest in the recognition. Foreign judicial decisions, foreign Lugano Convention as well as in many of Austria’s bilateral treaties court settlements and foreign public deeds on parental custody may on the recognition and enforcement of executory titles. only be recognised and granted a leave for enforcement in Austria if they are enforceable in the jurisdiction of their origin and no 2.11 What is your court’s approach to recognition and ground for rejecting their enforceability in Austria exists. Pursuant enforcement of a foreign judgment that purports to to Sections 131b(1) and 131e(2) ALNM, the preconditions for the apply the law of your country? recognition and enforcement of a measure for the protection of vulnerable adults and their property under the ALNM are governed Foreign executory titles applying Austrian law are enforceable by the Hague Convention of 2000. in Austria under the general conditions applicable to all foreign Under the Lugano Convention, if an executory title is enforceable in executory titles as set forth above. the state of its origin and if none of the grounds for rejection apply, it shall be declared enforceable also in the state where enforcement 2.12 Are there any differences in the rules and procedure is sought. The New York Convention obliges the contracting states of recognition and enforcement between the various to recognise and enforce arbitral awards, provided that none of the states/regions/provinces in your country? Please grounds enumerated in Article V of the convention applies. explain. Typically, Austria’s bilateral treaties on recognition and enforcement provide that executory titles shall be recognised and/or enforced Austria is a federal republic consisting of nine regional states where three conditions are fulfilled, namely: (i) the executory title (Bundesländer) each having a parliament competent to pass laws does not violate Austria’s public policy; (ii) the debtor has been within the scope of subject matters that the Federal Constitution granted the right to be heard; and (iii) there is no proceeding on the Law prescribes. The remaining subject matters are regulated by the same subject matter pending before a court in the country where Austrian federal parliament, the National Council. recognition and/or enforcement is sought.
30 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Konrad & Partners Austria
CMR, CIM, CIV, and COTIF do not provide for any substantive law Some treaties, e.g. the Lugano Convention, expressly govern the regarding the recognition and enforcement of the relevant executory documentation that a party seeking enforcement has to furnish. titles. Therefore, they only supersede Section 403 AEA but Sections The Lugano Convention requires a judgment – falling into the 404 et seqq. AEA remain applicable. scope of the Lugano Convention – to be provided in an original or an authentic copy and the standard form of Annex V satisfying the requirements of Article 54 of the Lugano Convention or other 3.2 With reference to each of the specific regimes set out in question 1.1, does the regime specify a difference documents providing the enforceability in the state of origin. between recognition and enforcement? If so, what is With respect to the recognition and enforcement of arbitral awards, the difference between the legal effect of recognition Article III of the New York Convention provides that the procedural and enforcement?
rules of the enforcing state shall apply. While Article IV(1) of the Austria Convention requires the creditor to furnish both an authenticated The bilateral and multilateral conventions listed in answer to question original award (or a certified copy thereof) and the original arbitration 1.1 typically distinguish between recognition and enforcement (see, agreement (or a certified copy thereof), Section 614(2) ACCP does e.g., Articles 32 et seqq. of the Lugano Convention). They do not not require the creditor to furnish the arbitration agreement unless convey to the terms “recognition” and “enforcement” a meaning the enforcement court specifically requests it. In accordance with that differs from their meaning under Austrian law as discussed in Article VII(1) of the New York Convention, the Austrian provision, answer to question 2.5. being more liberal, supersedes the more restrictive one in the New York Convention. 3.3 With reference to each of the specific regimes set out in question 1.1, briefly explain the procedure for 3.4 With reference to each of the specific regimes set out recognising and enforcing a foreign judgment. in question 1.1, on what grounds can recognition/ enforcement of a judgment be challenged under the With respect to adoption and also with respect to certain matrimonial special regime? When can such a challenge be made? matters related to the validity, persistence, and end of marriage, Sections 91b and 98 ALNM provide that a party requesting the With respect to foreign insolvency proceedings, their effects may recognition of a foreign decision has to furnish: (i) the original not be recognised if domestic insolvency proceedings have already decision or a copy issued by the same authority accompanied by been opened or if interim measures have already been ordered a certified translation thereof; (ii) a proof that the decision has in Austria. Also, the recognition may be refused if this would entered into legal force in its jurisdiction of origin; and (iii) where contradict Austrian public policy. the decision was given in the absence of the opponent, evidence that Pursuant to Section 91a(2), Section 97(2) and 131b(4) ALNM, the the opponent either agreed to the proceedings to be conducted in his recognition of decisions related to adoption, certain matrimonial or her absence or that he or she was at least served the document matters related to the validity, persistence and end of marriage, or the by which the proceedings were commenced. An appeal against protection of vulnerable adults and their property may be refused if the recognition must be filed within one month unless the habitual this would be manifestly irreconcilable with Austrian public policy residence of the opponent is abroad in which case the time period (and where adoptions are concerned, with the child’s well-being), if is two months. the parties have not been granted the right to be heard, if the decision With respect to matters of parental responsibility, under Section irreconcilably contradicts a previous Austrian decision or a previous 114 ALNM the request for recognition of a foreign decision must foreign decision which fulfils the preconditions for recognition in be accompanied by: (i) the respective decision and a translation Austria; and where the authority that has given the decision would thereof; (ii) a document showing that it has entered into legal force not have been competent to decide the matter if Austrian rules on in its jurisdiction of origin; and (iii) proof that it was served. Again, international jurisdiction had been applicable. With respect to where the decision resulted from proceedings in the absence of the adoptions, in particular, Section 91a(3) ALNM further provides opponent, the party seeking recognition must show that the opponent that recognition may be refused if a person’s approval rights under was served the document with which the foreign proceedings were the applicable law have been breached. The same grounds also commenced or that the opponent agreed to the proceedings in his apply with respect to the enforcement of foreign decisions on the or her absence. An appeal must be filed within one or two months protection of vulnerable adults and their property. depending on whether the habitual residence of the opponent is The grounds for refusing recognition as laid down in Section 113 abroad or not. ALNM mirror the grounds under Section 91a ALNM with the Section 131c ALNM provides for a similar procedure for the exception that the foreign decision may not be recognised due to recognition of foreign decisions on the protection of individuals an irreconcilable contradiction with an Austrian or a recognisable and on the protection of vulnerable adults and their property. With foreign decision that was given after (not prior to) the decision to respect to enforcement, in addition, the applicant has to furnish be recognised. proof that the decision is enforceable in the state of its origin. The grounds for refusing recognition and/or enforcement of foreign The bilateral and multilateral treaties listed in answer to question executory titles as laid down in bilateral and multilateral treaties 1.1 typically provide that the enforcement proceedings shall be may differ significantly. Typically, a foreign executory title will not governed by the law of the state where enforcement is sought, with be recognised if it (manifestly) contradicts public policy of the state the exception of individual procedural matters governed by the where recognition and/or enforcement is sought (see, e.g., Article respective treaty (see, e.g., Article 18(1) COTIF, Article 28 of the 34 no. 1 of the Lugano Convention, Article 22(a) of the Hague Hague Convention of 1996, Article 27 of the Hague Convention Convention of 2007). Another common ground for rejecting a of 2000, Article 12(1) of the bilateral treaty between Austria and request for recognition and/or enforcement is a conflicting domestic Israel). decision (see, e.g., Article 34(4) of the Lugano Convention, Article
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 31 Konrad & Partners Austria
5 no. 3 of the bilateral treaty between Austria and Israel). An appeal enforcement of foreign executory titles from their previous position against the decision recognising a foreign decision or declaring it in the first part of the law (the former Section 79et seqq. AEA) to the enforceable is to be raised within one month (see, e.g., Article 43 third part (Sections 403 et seqq. AEA). With very few exceptions, no. 5 of the Lugano Convention) or 30 days (see, e.g., Article 23(6) the new provisions largely mirror the old ones. of the Hague Convention of 2007). On 6 June 2017, the Austrian Supreme Court handed down a decision (3 Ob 32/17b) finding that a delayed service of documents 4 Enforcement does not amount to a breach of the right to be heard. Rather, where the Brussels I recast Regulation is applicable, whether the right to be heard was granted or not depends on whether, considering
Austria 4.1 Once a foreign judgment is recognised and enforced, the particular circumstances, the debtor has had enough time to what are the general methods of enforcement prepare his or her appeal. Furthermore, the Supreme Court held available to a judgment creditor? that any submissions filed by the debtor before the first decision on enforceability shall be ignored. As explained above in answer to With respect to immovable property, there are three types of question 2.6, the proceedings to obtain leave for enforcement are ex enforcement measures, namely: compulsory mortgage; compulsory parte in a first step, and the debtor is only subsequently, through his administration with the goal to generate revenue to satisfy the claim; or her appeal, granted the right to be heard. and compulsory sale of the immovable asset. The creditor may apply for each of these measures or for a combination of them. 5.2 Are there any particular tips you would give, or As far as enforcement against movable property is concerned, critical issues that you would flag, to clients seeking Austrian law distinguishes between attachment of receivables, to recognise and enforce a foreign judgment in your attachment of tangible and moveable objects, attachment of claims jurisdiction? for delivery against third-party debtors and attachment of other property rights (such as trademarks, patents, copyrights, licences, Undergoing the recognition and enforcement procedure may only and shares). result in payment if the debtor owns assets of sufficient value. However, The creditor may request the attachment of receivables owed to the publicly available information regarding this issue is scarce. debtor by third parties. Austrian law does not allow the attachment The Austrian land register does not permit a search by a specific of certain specific receivables such as nursing allowance, rent aid, person’s name but only by specific property. Therefore, it would family allowance, and scholarships. Other receivables may only be only provide useful information as to the registered immovable attached to a certain extent or only under specific conditions in order assets owned by a debtor if such assets have already been identified. to guarantee that the debtor’s income stays above the subsistence However, once a foreign executory title has become enforceable in minimum. Austria, an attorney representing the creditor is entitled to request Finally, the enforcement court may compel the debtor to perform or information as to whether the debtor owns such assets or not and to refrain from specific actions. identify them. The website of Austria’s Patent Office offers freely available information as to national and European patents, trademarks, 5 Other Matters designs, and protections. Austria’s commercial register lists each business entity’s shareholders 5.1 Have there been any noteworthy recent (in the last and its management. The database is searchable by company name. 12 months) legal developments in your jurisdiction Creditors may request additional information from service providers relevant to the recognition and enforcement of foreign such as “Kreditschutzverband 1870”, “Creditreform” and “Compass judgments? Please provide a brief description. Gruppe”. They provide information about a person’s or a company’s creditworthiness and annual accounts. Where possible, they provide The 2016 amendment of the AEA entered into force on 2 January information on shares in (other) companies or even on bank accounts. 2017, relocating the domestic provisions on the recognition and
32 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Konrad & Partners Austria
Dr. Christian W. Konrad Philipp A. Peters Konrad & Partners Konrad & Partners Rotenturmstrasse 13 Rotenturmstrasse 13 1010 Vienna 1010 Vienna Austria Austria
Tel: +43 1 512 95 00 Tel: +43 1 512 95 00 Email: [email protected] Email: [email protected] URL: www.konrad-partners.com URL: www.konrad-partners.com Austria Dr. Christian W. Konrad is the founding partner of Konrad & Partners. Philipp A. Peters is an Austrian Rechtsanwalt and partner at Konrad He is an Austrian Rechtsanwalt, a solicitor of England and Wales, & Partners. He acts both as counsel and arbitrator in international ad and admitted as Euroadvokat in the Czech and Slovak Republics. hoc and institutional arbitration proceedings. He regularly represents He has represented international organisations and businesses in clients in disputes involving international delivery and supply contracts, a broad range of arbitration and litigation disputes. The disputes complex engineering and construction projects and joint ventures, in involved long-term energy contracts, complex construction contracts, particular in the area of industrial engineering. Furthermore, he advises concession agreements, entitlement to natural resources, immunity clients in relation to the preparation and drafting of international project from jurisdiction, infrastructure projects, as well as mergers and and delivery contracts, on the growing impact of data protection and acquisitions. He regularly advises clients on the protection of their data privacy laws, and on the legal structuring of commercial projects. investments and on the enforcement of arbitral awards and court He regularly lectures about his fields of expertise, in particular on judgments. Dr. Konrad frequently acts as arbitrator, is a fellow of issues of international arbitration, international contract law and the Chartered Institute of Arbitrators and a member of the panels of international sales law. Mr. Peters is a member of the advisory board various arbitration institutions worldwide. Dr. Konrad serves as Vice- and former chairman of the Young Austrian Arbitration. President of the Kosovo Permanent Tribunal of Arbitration.
Konrad & Partners is a highly specialised law firm providing comprehensive legal services in the area of dispute resolution, with a particular focus on international commercial and investment arbitration. It has offices in Vienna, Prague, Bratislava, Skopje and London. The lawyers of Konrad & Partners serve both as advocates and as arbitrators in ad hoc and institutional proceedings, are qualified in multiple jurisdictions and have extensive expertise in handling high-profile arbitration cases before a wide range of international bodies.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 33 Chapter 7
Belgium Joost Verlinden
Linklaters LLP Nino De Lathauwer
1 Country Finder 2.2 What constitutes a ‘judgment’ capable of recognition and enforcement in your jurisdiction?
1.1 Please set out the various regimes applicable to recognising and enforcing judgments in your In accordance with Article 22, §3, 1° CPIL, for the purposes of the jurisdiction and the names of the countries to which CPIL, a judgment is to be understood as a decision stemming from such special regimes apply. a state authority exercising judicial power, i.e. the competence to decide over a dispute in a binding manner. Any such decision is apt to be recognised or declared enforceable, whatever the name of the Applicable Law/ Relevant Corresponding Statutory Regime Jurisdiction(s) Section Below decision and whatever the nature of the authority that has rendered it, be it a body belonging to the judiciary, administration or other state Belgian Code of Private International All foreign division. Foreign arbitral decisions or decisions stemming from an Section 2. Law of 16 July 2004 jurisdictions. international authority fall outside the scope of the recognition and (“CPIL”). enforceability regime of the CPIL.
2.3 What requirements (in form and substance) must a 2 General Regime foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction?
2.1 Absent any applicable special regime, what is the In accordance with Article 25, §1, 4° CPIL, the foreign judgment needs legal framework under which a foreign judgment to be final, meaning that no ordinary recourses are left available (see would be recognised and enforced in your jurisdiction? also the grounds for refusal, question 2.7 below). Further to Article 24, §1, 3° CPIL, the foreign judgment also needs to be enforceable in its country of origin, be it that, with a view to obtaining a declaration The general regime of recognition and enforceability of foreign of enforceability, this may be provisional as per Article 23, §4 CPIL. judgments is laid down in the Belgian Code of Private International Law of 16 July 2004 (“CPIL”) and pertains to the entire field of civil and commercial matters. The CPIL provides for a regime of 2.4 What (if any) connection to the jurisdiction is required recognition and enforceability by default, subject to the application for your courts to accept jurisdiction for recognition of international treaties, European legislation or more specific rules and enforcement of a foreign judgment? of Belgian law (Article 2 CPIL). The general rules are to be found in Chapter I, Section 6, in particular Articles 22 to 25 and 30 CPIL. No connection to Belgium is required for courts to accept jurisdiction The CPIL entered into force on 1 October 2004. Foreign judgments for the recognition and enforcement of a foreign judgment. rendered as of 1 October 2004 are hence subject to the CPIL enforcement and recognition regime, regardless of when the action 2.5 Is there a difference between recognition and that has led to the foreign judgment was instituted (Article 126, enforcement of judgments? If so, what are the legal §2 CPIL). The CPIL, however, also extends the benefit of the effects of recognition and enforcement respectively? recognition and enforcement regime to foreign judgments rendered prior to the date of entry into force (Article 126, §2 CPIL). Such The notion of recognition indeed differs from the notion of foreign judgments may hence be recognised under either the prior enforcement. Recognition is to be understood as the conferral of regime or the current regime of the CPIL. binding force to a foreign judgment (Article 22, §3, 2° CPIL). It is The CPIL is applicable to all foreign judgments pertaining to civil the acknowledgment of the legal situation established by the foreign and commercial matters, regardless of their country of origin. judgment. Enforcement is the forced execution of a judgment. In the framework of the CPIL, enforcement of a foreign judgment will have to be preceded by a declaration of enforceability (commonly
34 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Linklaters LLP Belgium
called exequatur). The exequatur is the conferral of the same force 3) Enforceability attached to a national enforceable judgment, giving access to the In order to be able to enforce a foreign judgment in Belgium, available national execution measures. For the purposes of clarity, the foreign judgment needs to be first declared enforceable via the CPIL does not provide for execution measures, only for rules on preliminary declaratory proceedings (Article 22, §1 CPIL). As a enforceability. general rule, the application for declaration of enforceability needs to be brought before the court of first instance (Article 23, §1 CPIL). 2.6 Briefly explain the procedure for recognising and Territorial jurisdiction is determined via a cascade system. The enforcing a foreign judgment in your jurisdiction. application is to be brought before: (i) the court of the domicile or habitual residence of the defendant; and (ii) in the absence thereof, 1) Preliminary formality: legalisation
the court of the place of execution. If this were not possible, Belgium Before a foreign judgment can be produced in Belgium, it needs to then the application is to be brought before: (iii) the court of the be legalised (Article 30, §1 CPIL). It must be noted that legalisation requesting party’s domicile or habitual residence; and (iv) in the only confirms the authenticity of the signature, the capacity in which absence thereof, before the court of Brussels (Article 23, §2 CPIL). the signatory of the document has acted and, as the case may be, the The application for declaration of enforceability is to be instituted identity of the seal or stamp on the document. Legalisation does not on the basis of a unilateral petition (ex parte procedure) and imply recognition. conducted in accordance with Articles 1025 to 1034 CCP relating Legalisation is a two-step process. First, the foreign judgment needs to proceedings via unilateral petition (Article 23, §3 CPIL). A to be legalised in the country of origin by virtue of its laws and by lawyer is required to intervene in order to sign the unilateral petition intervention of its competent authorities. Next, the foreign judgment (Article 1026, 5° CCP). The requesting party is obliged to choose a needs to be legalised by the Belgian authorities in accordance domicile for the purposes of the procedure in the judicial district of with Belgian law. Article 30, §2 CPIL designates the competent the competent court (Article 23, §3 CPIL). authorities for Belgium via a cascade system. Legalisation is done The proceedings may be instituted by any interested party and, in by: (i) a Belgian diplomatic or consular official accredited in the the case of matters pertaining to the status of physical persons, also state where the judgment has been rendered; (ii) in the absence by the public prosecution (Article 22, §2 CPIL). thereof, a diplomatic or consular official of the foreign state who In accordance with Article 24 CPIL, the requesting party needs upholds the interests of Belgium in that state; and (iii) in the absence to submit the following documents when filing an application for thereof, the Minister of Foreign Affairs. declaration of enforceability: It must be noted that several international treaties (e.g., the Apostille (i) a certified copy of the decision, which according to the laws Convention of 5 October 1961) and European instruments (e.g., the of the state where it has been rendered, meets the conditions Brussels Ibis Regulation) include an abolishment or attenuation of required for the authenticity thereof; the requirement of preliminary legalisation. (ii) in the case of a decision rendered by default, the original 2) Recognition or a certified copy of the document establishing that the Article 22, §1 CPIL provides for an automatic recognition of a document by which the proceedings were instituted, or an equivalent document, was served or brought to the notice of foreign judgment without there being a need to conduct proceedings. the defaulting party in accordance with the laws of the state Hence, a foreign judgment may be presented to administrative where the decision has been rendered; and authorities without any preliminary procedure being required. It (iii) any document on the basis of which it can be established that, must be noted, however, that recognition, while being automatically according to the laws of the state where the decision has been awarded, is precarious and subject to compatibility with the grounds rendered, the decision is enforceable and has been served or for refusal (see question 2.7 below). brought to notice. A foreign judgment may also be recognised in the Belgian legal In the absence of the production of the required documents, the court order in two other ways, either via a declaratory procedure for the may either set a time period for the production thereof, or decide to sole purpose of recognition (Article 22, §1 CPIL) or incidentally accept equivalent documents. The court may also decide to exempt via a decision in the framework of an ongoing procedure (Article the requesting party from the production of those documents if it 22, §2 CPIL). deems itself to be sufficiently informed (Article 24, §2 CPIL). Declaratory proceedings aimed at obtaining recognition are to be The court may hear the requesting and intervening parties (Article conducted in accordance with the procedural rules for declaratory 1028 CCP). The court has to deliver its judgment within a short proceedings aimed at obtaining a declaration of enforceability timeframe, without this period being further defined (Article 23, §3 (Article 22, §2 CPIL; see further in this subsection under CPIL). enforceability). The proceedings may be instituted by any interested A foreign judgment in regard of which an ordinary recourse has been party and, in the case of matters pertaining to the status of physical made or is still available, can be enforced provisionally (Article 23, persons, also by the public prosecution. §4 CPIL). The judge may make the enforcement subject to the The incidental issue of recognition will be dealt with by the Belgian provision of a guarantee (Article 23, §4 CPIL). court for which the case is pending in which the issue has been The requesting party, or as the case may be, an intervening party, brought up (Article 22, §1 CPIL). may appeal the decision before the court of appeals within one The party invoking the recognition of a foreign judgment needs month after notification of the decision (Article 1031 CCP). A third to produce the same documents as needed to be produced in the party may oppose the decision within one month after formal service framework of proceedings aimed at obtaining a declaration of of the decision before the court of first instance that has rendered the enforceability (see further in this subsection under enforceability). decision (Article 1033, 1034, and 1125 CCP). Appeal will again be A foreign judgment may be recognised in whole or in part.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 35 Linklaters LLP Belgium
possible before the court of appeals after the court of first instance judge dealing with a request for recognition or for declaration for which the opposition is brought has rendered its decision. A of enforceability has an obligation to examine whether an limited appeal against a judgment of the court of appeals is available ordinary recourse is still available in the country of origin before the Supreme Court. If opposition is made against a judgment of the foreign judgment. It is not for the applicant to adduce of the court of appeals, then the only recourse available is the limited the necessary evidence in that regard. By virtue of Article 23, §4 CPIL, a foreign judgment in regard of which an appeal before the Supreme Court. ordinary recourse has been made or is still available, can The decision of the Belgian court with regard to enforceability in spite of this refusal ground be enforced provisionally. A of a foreign judgment will itself be provisionally enforceable provisionally enforceable judgment may hence be declared notwithstanding appeal, unless stated otherwise (Article 1029 CCP). enforceable despite not being final. However, during the period for filing an appeal against a decision 5) Incompatibility with a Belgian decision or a preceding Belgium granting the enforceability and, upon filing, until the appeal has foreign decision that can be recognised in Belgium (Article been dealt with, the requesting party can only take conservatory 25, §1, 5° CPIL). measures with regard to the assets of the party against which the The notion of decision is broader than the notion of judgment enforcement action is directed (Article 23, §5 CPIL). The decision and, therefore, applies to other rulings with binding force such granting enforceability bears leave to take such measures (Article as Belgian arbitral awards or foreign arbitral awards that can 23, § 5 CPIL). According to recent case law, once a judgment has be recognised in Belgium. For incompatibility with a foreign been rendered upon opposition against the ex parte judgment, the judgment to imply refusal, said foreign judgment needs to restriction included in Article 23, §5 CPIL does no longer apply predate the judgment for which recognition or enforceability is sought. In contrast, incompatibility with a Belgian decision such that the judgment creditor can take other execution measures implies refusal regardless of whether rendered before or after as well. the foreign judgment. A foreign judgment may be declared enforceable in whole or in part. 6) Institution of foreign legal action post institution of Belgian legal action is still pending and involving the same parties and cause of action (Article 25, §1, 6° CPIL). 2.7 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge 7) Violation of exclusive jurisdiction of the Belgian courts be made? (Article 25, §1, 7° CPIL). The CPIL only provides for one ground of exclusive Article 25, §1 CPIL provides for eight mandatory general grounds jurisdiction in Article 6. Article 6 CPIL confers exclusive for refusal of recognition and enforceability of a foreign judgment: jurisdiction to the Belgian courts in the event of an exclusive forum clause in favour of Belgium. The refusal ground 1) Manifest incompatibility with private international law may also apply in relation to exclusive jurisdiction grounds public order (Article 25, §1, 1° CPIL). included in other legislative instruments (e.g., the Brussels Private international law public order is a notion that is Ibis Regulation). narrower than the domestic public order and refers to the 8) Jurisdiction of the foreign courts exclusively vested on the principles that are essential for the moral, political and presence of the defendant or on the presence of assets that economic order of Belgium. The courts must consider the have no direct connection with the dispute pending in the actual consequences of a recognition or enforceability of the state of those foreign courts (Article 25, §1, 8° CPIL). foreign judgment, assess their severity, and take into account the manner in which the case is connected to the Belgian legal This refusal ground is meant to tackle the excessiveness of order. When they appreciate the severity of the consequences a foreign court’s claim for jurisdiction. For the purposes of the recognition or the declaration of enforceability, the of this refusal ground, presence implies the absence of any courts should have regard to the concrete circumstances of sustained connection with the foreign territory and is hence the case. to be distinguished from notions such as domicile or habitual residence. 2) Violation of the rights of defence (Article 25, §1, 2° CPIL). Article 25, §1, 9° CPIL refers to the supplementary grounds The notion of rights of defence in the meaning of this ground of refusal included in the Sections of the CPIL related to for refusal does not include every right or rule which a party specific subject matters (see question 2.8 below). is entitled to invoke under Belgian procedural law, yet rather pertains to its fundamental principles. It has to be assessed Article 25, §2 CPIL makes clear that the Belgian courts whether the parties actually had the possibility before the cannot review the foreign judgment on its merits. foreign court to put forward their arguments in a setting that complies with the essence of due process according to 2.8 What, if any, is the relevant legal framework applicable Belgian law. to recognising and enforcing foreign judgments 3) Sole intention to evade the application of the laws of the state relating to specific subject matters? designated by the CPIL in a matter in which parties cannot freely dispose of their rights (Article 25, §1, 3° CPIL). The CPIL provides for diverging rules on the recognition and This refusal ground is directed towards the recourse to the enforceability of foreign judgments relating to specific subject judicial system of a foreign state if the sole purpose for said matters, i.e.: recourse was law evasion. The scope of the refusal ground is, however, limited to matters in which parties cannot freely ■ name (Chapter II, Section 2, Article 39); dispose of their rights, which is to be construed broadly (e.g., ■ repudiation (Chapter III, Section 5, Article 57); mandatory rules for the protection of contracting parties). ■ adoption (Chapter V, Section 2, Article 72); 4) Susceptibility to ordinary recourse of the foreign judgment ■ intellectual property (Chapter VIII, Section 3, Article 95); (Article 25, §1, 4° CPIL). ■ legal entities (Chapter X, Article 115); and What is understood by ordinary recourse is to be determined ■ insolvency (Chapter XI, Article 121). in accordance with the laws of the country of origin. The
36 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Linklaters LLP Belgium
2.9 What is your court’s approach to recognition and 3 Special Enforcement Regimes Applicable enforcement of a foreign judgment when there is: (a) a to Judgments from Certain Countries conflicting local judgment between the parties relating to the same issue; or (b) local proceedings pending between the parties? 3.1 With reference to each of the specific regimes set out in question 1.1, what requirements (in form and Such incompatibilities may give rise to refusal of recognition and substance) must the judgment satisfy in order to be recognised and enforceable under the respective enforceability in the event that Article 25, §1, 5° or 6° CPIL applies regime? (see question 2.7 above).
Belgium does not have specific national enforcement regimes Belgium 2.10 What is your court’s approach to recognition and applicable to judgments from certain countries. It must, however, enforcement of a foreign judgment when there is a be noted that Belgium is a party to several bilateral and multilateral conflicting local law or prior judgment on the same or treaties (e.g., the CMR Convention of 19 May 1956; the Convention a similar issue, but between different parties? of 30 June 2005 on Choice of Court Agreements) and subject to several European instruments (e.g., the Brussels Ibis Regulation, Incompatibility with local law does not constitute a ground for the Insolvency Regulation) including rules on recognition and refusal in the framework of the CPIL, unless it would constitute enforcement of foreign judgments, which will prevail over the an incompatibility with private international law public order (see application of the CPIL. question 2.7 above for a discussion on Article 25, §1, 1° CPIL). Incompatibility with a prior judgment may constitute a ground for 3.2 With reference to each of the specific regimes set out refusal as per Article 25, §1, 5° CPIL (see question 2.7 above), in question 1.1, does the regime specify a difference regardless of whether the same or different parties are involved. between recognition and enforcement? If so, what is the difference between the legal effect of recognition and enforcement? 2.11 What is your court’s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? This is not applicable in Belgium – please refer to question 3.1 above. There is no particular approach if a foreign judgment purports to apply the laws of Belgium. It can, however, be expected that a court will have 3.3 With reference to each of the specific regimes set a closer look at the content of the foreign judgment, yet this should, in out in question 1.1, briefly explain the procedure for principle, have no influence on recognition and enforceability. The recognising and enforcing a foreign judgment. foreign judgment is not to be reviewed on the merits. This is not applicable in Belgium – please refer to question 3.1 2.12 Are there any differences in the rules and procedure above. of recognition and enforcement between the various states/regions/provinces in your country? Please 3.4 With reference to each of the specific regimes set out explain. in question 1.1, on what grounds can recognition/ enforcement of a judgment be challenged under the There are no differences. Private international law constitutes federal special regime? When can such a challenge be made? legislation, applicable nationwide. This is not applicable in Belgium – please refer to question 3.1 2.13 What is the relevant limitation period to recognise and above. enforce a foreign judgment? 4 Enforcement The CPIL does not provide for a limitation period in view of recognition and enforceability. It must, however, be noted that a precondition for the recognition and enforceability of a foreign 4.1 Once a foreign judgment is recognised and enforced, judgment is that this judgment is enforceable in its country of origin, what are the general methods of enforcement which is to be assessed in accordance with the laws of the country available to a judgment creditor? of origin. Furthermore, Belgian law does provide for a limitation period with regard to the legal application aimed at the execution The enforcement may, for example, comprise attachment of movable of a Belgian judgment (actio iudicati). Said application will be and immovable assets, third-party attachment, garnishment of bank time-barred after 10 years as of the date of the Belgian judgment accounts and earnings. (Article 2262bis, §1 of the Belgian Civil Code). Said time bar will probably also apply to the legal application aimed at the execution of a Belgian judgment declaring a foreign judgment enforceable.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 37 Linklaters LLP Belgium
5 Other Matters 5.2 Are there any particular tips you would give, or critical issues that you would flag, to clients seeking to recognise and enforce a foreign judgment in your 5.1 Have there been any noteworthy recent (in the last jurisdiction? 12 months) legal developments in your jurisdiction relevant to the recognition and enforcement of foreign judgments? Please provide a brief description. The CPIL provides for a swift regime of recognition and enforceability. It must, however, be emphasised that automatic recognition as referred to above only constitutes a presumed recognition (see The Ghent Court of Appeals (25 April 2017) has recently ruled that if, question 2.6 above). There is still an obligation for any authority after having obtained a declaration of enforceability in first instance,
Belgium confronted with a foreign judgment to assess whether any of the the requesting party proceeds to execute the foreign judgment, refusal grounds referred to above constitutes an impediment to knowing that an extraordinary recourse has been lodged against it, he recognition. In order to obtain legal certainty, a requesting party is, or she will remain liable for the costs of the execution in Belgium in therefore, advised to seek recognition via court intervention. case that extraordinary recourse eventually results in the annulment of the foreign judgment in whole or in part and consequently in the In Belgium, a conservatory attachment can rather easily be obtained setting aside of the declaration of enforceability on appeal. provided that there is an element of urgency involved. In principle, the attachments judge is required to intervene. If, however, it is sought on the basis of a judgment, conservatory attachment can be performed without prior intervention of the attachments judge (Article 1414 CCP). The rule also applies to foreign judgments without there being a need to first procure a declaration of enforceability. This equivalence ensues from the system of automatic recognition as referred under question 2.6 above. If conservatory attachment has been performed without prior leave of the attachments judge, opposition before said judge is available as recourse. As referred to above under question 2.6, it must be noted that a decision granting enforceability bears leave to take certain conservatory measures (Article 23, §5 CPIL). Hence, in that particular case, the urgency requirement does not apply.
38 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Linklaters LLP Belgium
Joost Verlinden Nino De Lathauwer Linklaters LLP Linklaters LLP Brederodestraat 13 Brederodestraat 13 Brussels, 1000 Brussels, 1000 Belgium Belgium
Tel: +32 2 501 94 56 Tel: +32 2 501 91 28 Email: [email protected] Email: [email protected] URL: www.linklaters.com URL: www.linklaters.com Belgium Joost Verlinden specialises in domestic and cross-border litigation and Nino De Lathauwer has been an associate in the dispute resolution national and international arbitration. He has significant experience department of Linklaters Brussels since 2013, having joined the in all forms of commercial litigation: accountants’ liability; banking firm after acquiring a Master’s degree in law from KU Leuven (the litigation; construction cases; contractual disputes; corporate Catholic University of Leuven) and an advanced Master’s in financial litigation (including post-acquisition claims and shareholder disputes); techniques at ESSEC Business School. His main fields of focus insolvency disputes; product liability; sovereign debt issues; and white- include contractual disputes, corporate litigation, arbitration, post- collar crime. He represents clients before all Belgian courts and acts acquisition claims, insolvency and white-collar crime, both domestic as counsel and arbitrator in CEPANI, Belgian Federation of Diamond and cross-border. Bourses, ICC, SCC, UNCITRAL and ad hoc arbitrations. Nino has also published in the area of civil procedure. Joost is the author of numerous articles on arbitration, class actions, civil procedure, corporate litigation, insolvency law and product liability. He is constantly recommended as a leading attorney for dispute resolution in Belgium by Chambers and by The Legal 500. He has been a litigation partner since 1998.
Linklaters is a leading global law firm, supporting clients in achieving their strategies wherever they do business. We use our expertise and resources to help clients pursue opportunities and manage risk across emerging and developed markets around the world. Our global approach and commitment to excellence ensure the highest standards of quality and service across all our relationships. We build lasting relationships to support clients as they adjust to changes in their markets and the regulatory landscape. We bring discipline, teamwork and agility to help our clients navigate important business challenges successfully. Our focus is on consistently delivering integrated, global solutions, built on our strong local capability. Although we are organised across three divisions, advising our clients invariably involves more than one division and jurisdiction. This is why we take a team-driven, collaborative approach to all that we do for our clients.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 39 Chapter 8
Brazil Renato Stephan Grion
Pinheiro Neto Advogados Guilherme Piccardi de Andrade Silva
Applicable Law/ Corresponding 1 Country Finder Relevant Jurisdiction(s) Statutory Regime Section Below United Nations 1.1 Please set out the various regimes applicable Convention on the to recognising and enforcing judgments in your Recognition and jurisdiction and the names of the countries to which Enforcement of Foreign Arbitral such special regimes apply. Awards 1958 – New All signatory countries to Section 3. York Convention the Convention. Applicable Law/ Corresponding (Legislative Decree Relevant Jurisdiction(s) Statutory Regime Section Below No. 52, dated 25 April 2002 and Las Leñas Protocol Decree No. 4,311, on Jurisdictional dated 23 June 2002). Cooperation and Assistance in Civil, The MERCOSUL Commercial, Labor Accord on and Administrative International Matters (Legislative Commercial Brazil, Argentina, Decree No. 55, dated Arbitration – Buenos Paraguay, Uruguay, Section 3. Brazil, Argentina, 19 April 1995, Decree Aires Convention Section 3. Bolivia and Chile. Paraguay and Uruguay. No. 2,067, dated 12 1998 (Legislative November 1996, Decree No. 265, dated Legislative Decree 29 December 2000 No. 1,021, dated 24 and Decree No. 4,719, November 2005 and dated 4 June 2003). Decree No. 6,891, Brazil, Peru, Uruguay, dated 2 July 2009). Panama, Ecuador, OAS Inter-American Havana Convention Mexico, El Salvador, Convention on on International Guatemala, Nicaragua, International Private Law 1928 Bolivia, Venezuela, Commercial – Bustamante Code Colombia, Honduras, Section 3. Arbitration 1975 – (Decree No. 18,871, Costa Rica, Chile, All signatory countries to Panama Convention Section 3. dated 13 August Argentina, Paraguay, the Convention. (Legislative Decree 1929). Haiti, Dominican No. 90, dated 6 June Republic, United States 1995 and Decree No. of America and Cuba. 1,902, dated 9 May Brazil’s Federal 1996). Constitution (article Brazil. Section 2. OAS Inter-American 105, item I, letter i). Convention on the Law of Introduction Extraterritorial to the Norms of Validity of Foreign the Brazilian Law Brazil. Section 2. Judgments and – Decree-Law Arbitral Awards No. 4,657, dated 4 All signatory countries to 1979 – Montevideo Section 3. September 1942. the Convention. Convention Brazilian Code of (Legislative Decree Civil Procedure No. 93, dated 20 June 2015 – Federal Law 1995 and Decree No. 13,105, dated Brazil. Section 2. No. 2,411, dated 2 16 March 2015 December 1997). (effective as from 18 March 2016).
40 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Pinheiro Neto Advogados Brazil
Applicable Law/ Corresponding (b) as regards an arbitral award, it is necessary that the parties Relevant Jurisdiction(s) Statutory Regime Section Below involved in the arbitral proceedings were legally capable Brazilian Arbitration of entering into arbitral agreements/clauses and the matter Law 1996 – Federal examined by the arbitral tribunal was indeed arbitrable under Law No. 9,307, dated Brazilian Law; 23 September 1996 (as Brazil. Section 2. (c) defendants must have been duly served and processed and amended by Federal been given the opportunity to present their case, or, in case Law No. 13,129, dated a default judgment occurs, it must be evidenced that it was 26 May 2015). carried out lawfully; Internal Rules of the (d) the content of the decision must not violate Brazil’s public
Brazilian Superior Brazil. Section 2. Brazil Court of Justice. policy, national sovereignty or the dignity of the human person; (e) there must be no conflict between the decision to be recognised and a previous final domestic decision on the 2 General Regime same matter and involving the same parties (please refer to question 2.9 below for further details);
2.1 Absent any applicable special regime, what is the legal (f) the decision must be valid, lawful and enforceable in the framework under which a foreign judgment would be jurisdiction where it was rendered (as a rule, the Brazilian recognised and enforced in your jurisdiction? Superior Court of Justice only ratifies foreign decisions that became res judicata; however, said Court has precedents granting exequatur to rogatory letters issued by foreign Brazil’s legal framework on the recognition and enforcement of foreign authorities based on interim decisions, as discussed in judgments and foreign arbitral awards comprises (i) Brazil’s Federal question 2.2 above); Constitution (article 105, item I, letter i), (ii) the Law of Introduction (g) an original or certified copy of the foreign judgment to to the Norms of the Brazilian Law – Decree-Law No. 4,657, dated be recognised must be presented together with a sworn 4 September 1942, (iii) the Brazilian Code of Civil Procedure 2015 translation and must have been previously authenticated – Federal Law No. 13,105, dated 16 March 2015, (iv) the Brazilian by the competent Brazilian consular authority (unless Arbitration Law 1996 – Federal Law No. 9,307, dated 23 September such formality is dispensed by international treaties); if it 1996 (as amended by Federal Law No. 13,129, dated 26 May 2015), is a foreign arbitral award, the original or a certified copy and (v) the Internal Rules of the Brazilian Superior Court of Justice. of the arbitration agreement should be presented as well, accompanied by a sworn translation; and (h) the foreign judgment or foreign arbitral award must, in 2.2 What constitutes a ‘judgment’ capable of recognition principle, be sufficiently reasoned. and enforcement in your jurisdiction?
Notwithstanding the fact that Brazilian law does not set forth a 2.4 What (if any) connection to the jurisdiction is required single and exact description or definition of what constitutes a for your courts to accept jurisdiction for recognition “judgment” capable of recognition and enforcement in Brazil, the and enforcement of a foreign judgment? general rule in Brazil is that any final decisions rendered by foreign judicial authorities, as well as non-judicial decisions that hold a As a rule, there is no connection requirement under Brazilian jurisdictional nature, will be subject to recognition and enforcement law in order for the Brazilian Superior Court of Justice to accept by Brazilian judicial authorities. jurisdiction to recognise a foreign judgment or foreign arbitral award. Under exceptional circumstances, the Brazilian Superior In practice, this means that the following “foreign judgments” will Court of Justice may inquire as to the interest of the creditor of the be subject to recognition and enforcement by Brazilian judicial judgment in having it recognised and enforced in Brazil, especially authorities: (i) foreign judgments (i.e., final decisions rendered as to whether the debtor of the award is domiciled in Brazil or there by foreign judicial authorities); (ii) foreign judicial interlocutory are any obligations to be enforced in this jurisdiction. decisions (which will generally be enforced through the rendering of an exequatur by the Brazilian Superior Court of Justice, through a rogatory letter); (iii) foreign arbitral awards, partial or final 2.5 Is there a difference between recognition and (i.e., arbitral awards rendered outside of Brazil); and (iv) foreign enforcement of judgments? If so, what are the legal arbitral interlocutory decisions (i.e., arbitral interlocutory decisions effects of recognition and enforcement respectively? rendered in arbitrations seated outside of Brazil, which will in principle – much like the foreign judicial interlocutory decisions – Yes, recognition and enforcement are different concepts under be executed through the rendering of an exequatur by the Brazilian Brazilian law. In general terms, recognition may be defined as Superior Court of Justice, through a rogatory letter). the admission and acknowledgment as to the existence, validity and enforceability of the relevant foreign decision by Brazil’s judicial authority responsible for such ratifications (i.e., the 2.3 What requirements (in form and substance) must a Brazilian Superior Court of Justice). The recognition of a foreign foreign judgment satisfy in order to be recognised judgment has the effect of legally transforming said decision into an and enforceable in your jurisdiction? enforceable decision within the Brazilian territory. In its turn, the enforcement of foreign judgments or awards may be defined as the In Brazil, the basic formal and substantive requirements for the process through which an interested party puts in force (enforces) recognition and enforcement of foreign judgments or foreign the provisions contained in the – previously recognised – foreign arbitral awards are: judgment or award. (a) judgments or arbitral awards must have been rendered by a state court or arbitral tribunal that held jurisdiction over the Considering the above, it is unlikely that a judgment creditor would matter, according to the law of the jurisdiction of origin; be interested in solely seeking the recognition of the relevant
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 41 Pinheiro Neto Advogados Brazil
foreign decision, without carrying out its subsequent enforcement. Once the recognition is granted by the Superior Court of Justice, the Notwithstanding, once the Brazilian Superior Court of Justice foreign judgment becomes res judicata in Brazil, and the interested recognises a foreign judgment, it technically starts producing its party may present a request for enforcement before the competent effects in Brazil immediately, without the need for subsequent Brazilian Federal Courts. enforcement proceedings. In that sense, and especially when it It is possible for the Brazilian Superior Court of Justice to recognise comes to declaratory awards, it is possible that interested parties only a part of the judgment in matter. This may occur either could solely pursue the recognition of the judgment. because the Court understands that only a part of the judgment is recognisable, or because the parties, for any given reason, requested 2.6 Briefly explain the procedure for recognising and the recognition of only part of the decision.
Brazil enforcing a foreign judgment in your jurisdiction. 2.7 On what grounds can recognition/enforcement of a The recognition and enforcement of foreign judgments in Brazil judgment be challenged? When can such a challenge commences with the interested party presenting a recognition request be made? (in the form of a petition/application in writing) to the Brazilian Superior Court of Justice, and providing the necessary documents to Formal and substantive oppositions may be presented with the demonstrate the fulfilment of the formal and substantive requirements purpose of challenging requests for recognition of foreign decisions for ratification. in Brazil. These oppositions may be presented before the Superior Recognition requests filed before the Brazilian Superior Court of Court of Justice during the recognition proceedings. Justice must be accompanied by the following documents: The main grounds for opposing recognition consist in alleging that: (i) the original or a certified copy of the judgment to be (a) the process was not duly served on the defendant; recognised; (b) the decision in matter was issued by an incompetent state (ii) for the recognition of arbitral awards, also the original or a court or arbitral tribunal; certified copy of the arbitral agreement; and (c) the decision in matter fails to fulfil the requirements for it to (iii) any other documents necessary to demonstrate the fulfilment be considered valid, lawful and enforceable in its jurisdiction of the formal and substantive requirements for recognition. of origin; As a rule, documents presented in recognition proceedings must (d) the interested party failed to observe the procedural (a) be accompanied by a sworn translation of their content into requirements and/or provide the necessary documents for the Portuguese, and (b) have been previously authenticated by the recognition proceeding; competent Brazilian consular authority. (e) the decision did not become res judicata and/or is not, for any After the filing of the recognition request, the President of the Court given reason, enforceable in its jurisdiction of origin; and/or may demand that the interested party presents additional documents (f) the decision in matter violates Brazil’s public policy, its and/or amend its initial application. Should the Court interpret national sovereignty or the dignity of the human person. that the documents presented by the plaintiff are sufficient and the Concerning arbitral awards, certain specific defences may also be request is formally adequate, it will determine that service of process presented, such as: be effected on the defendant, who will then have the opportunity to (a) the parties lacked capacity to enter into/sign arbitral agreements/ present its response. clauses; If the defendant assents to the recognition request, the President of (b) the arbitration agreement/clause that led the parties to the Court himself or herself decides the case. Should the defendant arbitration is invalid according to the law of the jurisdiction in oppose the request, the case is remitted to the Superior Court of which the proceedings were seated and the award was rendered; Justice’s Special Court (composed of the most senior Justices of (c) one or some of the parties was/were not given the opportunity the Court). During the course of the proceedings, the Court may to participate in the selection of arbitrators or in other relevant determine the plaintiff and defendant to provide, respectively, a aspects of the proceedings and/or did not have the chance to reply and a rebuttal, as well as any additional documents it may present its case; deem necessary. In addition, the Federal Public Prosecutors’ (d) the arbitral proceedings are, for any given reason, invalid under Office will be summoned to present an opinion on the case. After the law of the jurisdiction where the award was rendered; these developments, the Superior Court of Justice’s Special Court (e) the arbitral award is, for any given reason, not binding and/ proceeds to render its final decision on the case. or enforceable in the jurisdiction where it was rendered (for example, when the award has been set aside or suspended by The length of the proceedings may vary considerably, depending state courts of the jurisdiction of origin); on whether the opposite party agrees with the recognition request (f) the award settles disputes related to matters that are not or opposes it, thus increasing the procedure’s complexity. A time arbitrable according to Brazilian law (which admits arbitration estimate for the Brazilian Superior Court of Justice to recognise only for the resolution of conflicts involving disposable a foreign judgment or a foreign arbitral award may vary, on patrimonial rights); and/or average, between six months (when the defendant does not oppose (g) the arbitral award violates Brazil’s public policy, its national the recognition request) to three-and-a-half years. On average, sovereignty or the dignity of the human person. recognition proceedings before the Brazilian Superior Court of Justice tend to last around 30 (thirty) months. 2.8 What, if any, is the relevant legal framework applicable In the instance whereby a final decision is against recognising a to recognising and enforcing foreign judgments foreign judgment or foreign arbitral award rendered by the Superior relating to specific subject matters? Court of Justice, the parties involved may present, in very specific circumstances, an extraordinary appeal, directing the case to the In Brazil, there are no particular legal provisions applicable for Federal Supreme Court of Brazil. the recognition and enforcement of foreign judgments or arbitral awards related to specific subject matters.
42 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Pinheiro Neto Advogados Brazil
enforcement of a foreign judgment is the same as the one applicable 2.9 What is your court’s approach to recognition and to the filing of the procedure in which the state court or arbitral enforcement of a foreign judgment when there is: (a) a tribunal rendered the relevant decision; and (b) during the course of conflicting local judgment between the parties relating recognition proceedings, limitation periods should remain suspended. to the same issue; or (b) local proceedings pending between the parties? 3 Special Enforcement Regimes Applicable In Brazil, there is no lis pendens between domestic and foreign to Judgments from Certain Countries proceedings. Therefore, the first decision (domestic or foreign) to become res judicata in Brazil will be enforceable in the country, and subsequent judgments on the matter are considered not enforceable. 3.1 With reference to each of the specific regimes set Brazil For these purposes, a foreign judgment may only be considered res out in question 1.1, what requirements (in form and judicata within the Brazilian territory when the corresponding decision substance) must the judgment satisfy in order to be of recognition granted by the Brazilian Superior Court of Justice recognised and enforceable under the respective becomes final and not subject to appeal (also, therefore, res judicata). regime?
■ Las Leñas Protocol. Judgments must: (a) adequately 2.10 What is your court’s approach to recognition and meet the formal requirements provided by the law of their enforcement of a foreign judgment when there is a jurisdiction of origin; (b) have been duly translated into the conflicting local law or prior judgment on the same or language of the jurisdiction where they are to be recognised a similar issue, but between different parties? and enforced; (c) have been rendered by a competent state court or arbitral tribunal; (d) have been rendered in a As a rule, the Brazilian Superior Court of Justice does not review the proceeding where service of process was duly provided merits of the judgment or arbitral award. Therefore, the recognition and the defendant had the opportunity to present its case; of foreign judgments in Brazil depends solely on the fulfilment of (e) be enforceable in their jurisdiction of origin; and (f) not violate public order principles of the jurisdiction in which the necessary legal requirements (see question 2.3 above). recognition/enforcement is sought. One relevant factor pertaining to this topic is that Brazilian law ■ Panama Convention. Arbitral awards that are not appealable establishes that Brazilian courts hold exclusive jurisdiction over according to the applicable law shall have the force of a final certain subject matters. Therefore, any foreign judgment that judgment. decides on such matters is unrecognisable and unenforceable within ■ Inter-American Convention on the Extraterritorial Validity the Brazilian jurisdiction. of Foreign Judgments and Arbitral Awards (Montevideo Convention). Judgments must: (a) fulfil the formal 2.11 What is your court’s approach to recognition and requirements to be considered authentic in the jurisdiction of enforcement of a foreign judgment that purports to origin; (b) have been officially translated into the language of apply the law of your country? the jurisdiction where they are to be recognised/enforced; (c) have been legalised under the law of the jurisdiction where they are to be recognised/enforced; (d) have been rendered The Brazilian Superior Court of Justice does not review the merits by a competent state court or arbitral tribunal; (e) have of the judgment or arbitral award. Therefore, the recognition of been rendered in a proceeding in which the plaintiff was foreign judgments in Brazil depends solely on the fulfilment of the duly summoned or subpoenaed; (f) have been rendered in necessary legal requirements (see question 2.3 above). a proceeding in which the parties had the chance to present One relevant factor pertaining to this topic is that Brazilian law their case; (g) be final or have become res judicata in the establishes that Brazilian courts hold exclusive jurisdiction over jurisdiction of origin; and (h) not be contrary to principles of public order of the jurisdiction where they are to be certain subject matters. Therefore, any foreign judgment that recognised/enforced. decides on such matters is unrecognisable and unenforceable within the Brazilian jurisdiction. ■ New York Convention. Arbitral awards must be preceded by a valid arbitration clause or arbitration agreement, which must have been made in writing. 2.12 Are there any differences in the rules and procedure ■ The MERCOSUL Accord on International Commercial of recognition and enforcement between the various Arbitration. Arbitral awards must be given in writing, be states/regions/provinces in your country? Please reasoned and completely decide the controversy. Arbitral explain. awards shall contain: (a) date and place where they were rendered; (b) the grounds that support their conclusions; There are no differences in the rules and procedure of recognition (c) a decision that encompasses all matters submitted by the and enforcement between states/regions/provinces in Brazil. parties; and (d) information on the arbitration’s expenses. ■ Havana Convention (Bustamante Code). Judgments rendered in one of the signatory jurisdictions may be 2.13 What is the relevant limitation period to recognise and executed in the others provided that: (a) they were rendered enforce a foreign judgment? by a competent authority; (b) parties were duly notified to participate in the proceedings; (c) they do not violate the Although this issue is still not settled under Brazilian law, some public policy or public laws of the jurisdiction in which scholars are of the opinion that: (a) the limitation period for the recognition/execution is sought; (d) they are enforceable
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 43 Pinheiro Neto Advogados Brazil
in their jurisdiction of origin; (e) they are duly translated ■ The MERCOSUL Accord on International Commercial into the language of the jurisdiction in which recognition/ Arbitration. In what regards procedure for the recognition/ enforcement is sought; and (f) they fulfil the authenticity enforcement of awards, the document refers to the rules requirements set out by the laws of the jurisdictions involved. provided by other international conventions. ■ Havana Convention (Bustamante Code). The interested party should present its request for recognition/enforcement 3.2 With reference to each of the specific regimes set out in question 1.1, does the regime specify a difference before the competent state court. The opposing party and between recognition and enforcement? If so, what is prosecuting attorney are heard within a term of 20 (twenty) the difference between the legal effect of recognition days (through rogatory letters, if necessary), after which the and enforcement? court renders its ruling on the case. If recognition is granted, Brazil its execution is carried out as if it were a domestic judgment. ■ Las Leñas Protocol. There is no explicit differentiation between recognition and enforcement, but it is possible to 3.4 With reference to each of the specific regimes set out argue that such distinction is implicit. in question 1.1, on what grounds can recognition/ ■ Panama Convention. There is no explicit differentiation enforcement of a judgment be challenged under the between recognition and enforcement, but it is possible to special regime? When can such a challenge be made? argue that such distinction is implicit. ■ Inter-American Convention on the Extraterritorial Validity ■ Las Leñas Protocol. The defendant may challenge of Foreign Judgments and Arbitral Awards (Montevideo recognition/enforcement if, in the jurisdiction where the Convention). There is no explicit differentiation between decision is to be recognised/enforced, (a) a previous decision recognition and enforcement, but it is possible to argue that was rendered, involving the same parties, facts and object, such distinction is implicit. thus being incompatible with the judgment to be recognised/ enforced, or (b) there is a pending procedure involving the ■ New York Convention. There is no explicit differentiation same parties, facts and object. between recognition and enforcement, but it is possible to argue that such distinction is implicit. ■ Panama Convention. Recognition/enforcement may be challenged on the grounds that: (a) the arbitral agreement ■ The MERCOSUL Accord on International Commercial is invalid and/or parties lacked capacity for signing it; (b) Arbitration. There is no explicit differentiation between the defendant was not duly notified of the proceedings, of recognition and enforcement. the appointment of arbitrators or in any way was denied ■ Havana Convention (Bustamante Code). There is no the opportunity to present its case; (c) the award decides on explicit differentiation between recognition and enforcement. matters not comprised in the scope of the arbitral agreement; (d) the arbitral proceeding – and/or the constitution of the arbitral tribunal – was carried out in a way that is 3.3 With reference to each of the specific regimes set incompatible with the terms of the arbitral agreement; (e) the out in question 1.1, briefly explain the procedure for relevant decision is not binding or has been suspended or set recognising and enforcing a foreign judgment. aside in the jurisdiction of origin; (f) the subject matter of the dispute is not arbitrable under the law of the jurisdiction ■ Las Leñas Protocol. Proceedings for the recognition and in which the decision is to be recognised/enforced; or (g) enforcement of foreign judgments are disciplined by the law the recognition/enforcement of the relevant decision would of the jurisdiction where such decision is to be recognised and violate the public order of the jurisdiction in which it is to be enforced. Recognition and enforcement required by judicial recognised/enforced. authorities are to be carried out through rogatory letters and between central authorities designated by each signatory state. ■ Inter-American Convention on the Extraterritorial Validity of Foreign Judgments and Arbitral Awards (Montevideo ■ Panama Convention. Provides that the recognition/ Convention). Recognition/enforcement may be challenged enforcement of arbitral awards should be carried out in the same based on the non-fulfilment of any of the requisites described manner as judgments rendered by state courts, according to in question 3.1 above. the law of the jurisdiction where they are to be recognised/ enforced. ■ New York Convention. Recognition/enforcement may be challenged on the same grounds provided by the Panama ■ Inter-American Convention on the Extraterritorial Validity Convention, referred to above. of Foreign Judgments and Arbitral Awards (Montevideo Convention). Proceedings for recognition/enforcement, ■ The MERCOSUL Accord on International Commercial including discussions related to jurisdiction, must be governed Arbitration. Regarding the procedure for the recognition/ by the law of the jurisdiction in which the decision is to be enforcement of awards, the document refers to the rules recognised/enforced. provided by other international conventions. ■ New York Convention. Proceedings for the recognition/ ■ Havana Convention (Bustamante Code). Recognition/ enforcement of arbitral awards must be carried out in enforcement may be challenged based on the non-fulfilment accordance with the applicable rules of procedure laid out of any of the requisites described in question 3.1 above. within the jurisdiction in which recognition/enforcement is sought. Conditions, fees and charges may not be substantially more onerous in comparison with the recognition/enforcement 4 Enforcement of domestic awards. The interested party should supply, when presenting its request for recognition, (a) the arbitral 4.1 Once a foreign judgment is recognised and enforced, award (in its original version or a certified copy thereof), what are the general methods of enforcement (b) the arbitral agreement/clause (in its original version or available to a judgment creditor? a certified copy thereof), and (c) if necessary, translations of said documents into the official language of the jurisdiction in which the award is to be recognised/enforced. Under Brazilian law, enforcement proceedings can only start after
44 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Pinheiro Neto Advogados Brazil
the recognition of the foreign decision is granted by the Brazilian (a) the concession of interim relief and/or provisional enforcement Superior Court of Justice. The following list provides examples of in the context of recognition proceedings (article 961, §3); and some of the characteristics that may be found during the process of (b) the enforcement of foreign decisions – including interlocutory enforcement of a duly recognised foreign judgment: decisions – ordering the fulfilment of urgent measures (article (a) imposition of fines in case the defendant fails to pay the debt 962). after service of process is completed and/or refuses to present information related to assets that could serve for the payment 5.2 Are there any particular tips you would give, or of the debt; critical issues that you would flag, to clients seeking (b) attachment of the defendant’s assets, according to a to recognise and enforce a foreign judgment in your
preferential order stipulated by Brazilian procedural law; jurisdiction? Brazil (c) online attachment of the defendant’s funds; and (d) in very specific – and extraordinary – circumstances, Critical issues and red flags may vary significantly from case to case. disregarding of the corporate entity and redirection of the Notwithstanding, certain points of attention may be considered enforcement proceedings towards the defendant’s shareholders. commonplace when it comes to the recognition of foreign judgments It is relevant to mention that, in certain specific circumstances, parties in Brazil: interested in the recognition of foreign judgments and arbitral awards ■ seeking assistance and advice from Brazilian counsel may file requests for interim relief during the course of recognition when the foreign judicial or arbitral proceedings are still proceedings. Generally, such a request is granted when the interested ongoing can help guarantee the future success of subsequent recognition proceedings and the actual enforcement of the party is able to demonstrate: (i) the probability (i.e., plausibility) of its decision in Brazil; right(s); and (ii) that there is a concrete risk of damage to said right(s) or to the practical result of the proceedings at hand. ■ parties interested in recognising and enforcing foreign judgments in Brazil should be aware that recognition proceedings might vary significantly in length and complexity, 5 Other Matters depending on each specific case; ■ parties should keep in mind that, in Brazil: (a) recognition proceedings are centralised in one single judicial authority, 5.1 Have there been any noteworthy recent (in the last as opposed to the decentralised model adopted in other 12 months) legal developments in your jurisdiction jurisdictions; and (b) contested recognition proceedings relevant to the recognition and enforcement of foreign – i.e., recognition proceedings in which the responding judgments? Please provide a brief description. party presents an objection to the recognition request – are adjudicated by the Brazilian Superior Court of Justice’s In the last 12 months, there were no relevant legal developments Special Court (as opposed to non-contested proceedings, related to the recognition and enforcement of foreign judgments and which are subject to a simpler procedure and adjudicated foreign arbitral awards in Brazil. directly by the President of the Court); and ■ plaintiffs should be aware that, in recognition proceedings Still, it is relevant to note that, on 18 March 2016, a new Code of carried out in Brazil, respondents who fail to appear or Civil Procedure – Federal Law No. 13,105, dated 16 March 2015 – present an answer will be represented by a member of the entered into force in Brazil, bringing about significant changes to Brazilian Federal Public Defenders’ Office, and an objection the Brazilian civil procedure system and important improvements raised by such representative will suffice for the recognition related to the recognition and enforcement of foreign judgments proceedings to be classified as contested. (articles 960 to 965). Among these relevant developments, it is worth mentioning the enactment of specific provisions pertaining to:
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 45 Pinheiro Neto Advogados Brazil
Renato Stephan Grion Guilherme Piccardi de Andrade Silva Pinheiro Neto Advogados Pinheiro Neto Advogados Rua Hungria, 1100 Rua Hungria, 1100 01455–906 01455–906 São Paulo – SP São Paulo – SP Brazil Brazil
Tel: +55 11 3247 8965 Tel: +55 11 3247 8451 Email: [email protected] Email: [email protected] URL: www.pinheironeto.com.br URL: www.pinheironeto.com.br Brazil
Renato Stephan Grion is a partner at Pinheiro Neto Advogados, based Guilherme Piccardi de Andrade Silva is an associate at Pinheiro Neto in São Paulo. Mr. Grion concentrates his practice on commercial Advogados. He holds a degree in Law from the Pontifical Catholic disputes before international and domestic arbitral tribunals, as well University of São Paulo (Pontifícia Universidade Católica de São as on commercial mediations. He handles arbitration and mediation Paulo – PUC/SP) and focuses his practice on arbitration, civil and cases before virtually every major institution, including the ICC and commercial litigation, mediation and international law. other leading arbitration and mediation centres in Brazil and abroad. He also represents Brazilian and international clients in litigation in Brazil involving disputes over the enforcement of arbitral awards and arbitration agreements, as well as other transnational disputes.
Pinheiro Neto Advogados is a Brazilian, independent, full-service firm specialising in multi-disciplinary deals and in translating the Brazilian legal environment for the benefit of local and foreign clients. Founded in 1942, Pinheiro Neto Advogados was one of the first Brazilian law firms to serve foreign clients as well as the first Brazilian law firm to specialise in corporate clients. With clients in almost 60 countries, the firm was recognised in 2014 by the Brazilian government as the number one exporter of legal services from Brazil. The firm has grown organically, and developed a distinctive, tight-knit culture, with a low associate-to-partner ratio. Its unique, democratic governance structure promotes transparency and consensus-building among the partners. With a focus on innovation, the firm has kept its competitive edge throughout the years, and is widely hailed as an institution of the Brazilian legal market. In order to maintain its status as a valued strategic partner to its clients, the firm invests heavily in professional development, not only through strong on-the-job training, but also by means of the highly structured Pinheiro Neto Professional Development Program, the first of its kind in Brazil. In addition, our lawyers can take advantage of the largest and most complete private legal library in Brazil. The firm advises and represents both local and international clients in a broad range of sectors, including automotive, banking and financial services, construction and materials, energy and natural resources, environment and waste management, health care, oil and gas, real estate and technology.
46 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Chapter 9
Canada Erin Hoult
Blake, Cassels & Graydon LLP Daniel Styler
1 Country Finder Applicable Law/ Relevant Corresponding Statutory Regime Jurisdiction(s) Section Below All Canadian 1.1 Please set out the various regimes applicable Reciprocal provinces and Enforcement of territories with the to recognising and enforcing judgments in your Section 2. jurisdiction and the names of the countries to which Judgments Act, RSNL exception of Québec. such special regimes apply. 1990, c R-4. Australia; and the United Kingdom. Canada-United Applicable Law/ Relevant Corresponding Kingdom Civil Statutory Regime Jurisdiction(s) Section Below and Commercial Reciprocal Judgments Enforcement of Convention Act, Judgments (U.K.) United Kingdom. Section 3. RSC 1985, c C-30 Act, RSO 1990, c (implementing the R.6. Convention Between Canada and the Reciprocal All Canadian United Kingdom United Kingdom. Section 2. Enforcement of provinces and Section 2. of Great Britain Judgments Act, RSO territories with the and Northern 1990, c R.5. exception of Québec. Ireland Providing All Canadian for the Reciprocal provinces and Recognition and territories with the Enforcement of exception of Québec. Judgments in Civil Court Order Australia; Austria; and Commercial Enforcement Act, Germany; United Section 3. Matters). RSBC 1996, c 78. Kingdom; and International the United States Conventions United Kingdom. Section 2. (Alaska, California, Implementation Act, Colorado, Idaho, RSA 2000, C I-6. Oregon, Washington). The Canada-United All Canadian Kingdom Judgments United Kingdom. Section 2. provinces and Enforcement Act, SS Reciprocal territories with the 1988-89, c C-0.1. Enforcement of exception of Québec. Section 3. The Canada-United Judgments Act, RSA Australia; and Kingdom Judgments 2000, c R-6. United Kingdom. Section 2. the United States Enforcement Act, (Idaho, Montana, CCSM, c J21. Washington). Reciprocal The Reciprocal Australia; and Recognition and Enforcement of the United States Section 3. Enforcement of Judgments Act, (Washington, Idaho). Judgments in Civil United Kingdom. Section 2. CCSM, c J20. and Commercial The Enforcement of Matters, RSNB 2016, Foreign Judgments All foreign c 109. Section 3. Act, SS 2005, c jurisdictions. Canada and United E-9.121. Kingdom Reciprocal Recognition and All Canadian United Kingdom. Section 2. Reciprocal provinces and Enforcement of Enforcement of territories with the Judgments Act, RSNS Section 2. Judgments Act, exception of Québec. 1989, c 52. RSPEI 1988, c R-6. United States (Washington).
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 47 Blake, Cassels & Graydon LLP Canada
Applicable Law/ Relevant Corresponding Statutory Regime Jurisdiction(s) Section Below 2.4 What (if any) connection to the jurisdiction is required for your courts to accept jurisdiction for recognition Canada-United and enforcement of a foreign judgment? Kingdom Judgments United Kingdom. Section 2. Recognition Act, RSPEI 1988, c C-1. For a Canadian court to have jurisdiction over an action to recognise Canada and the and enforce a foreign judgment, the foreign court must have had United Kingdom jurisdiction, either on the basis of a real and substantial connection Reciprocal to the defendant or with the subject matter of the dispute, or on Recognition and United Kingdom. Section 2. another traditional basis for jurisdiction, such as the presence or Enforcement of Canada Judgments Act, RSNL consent of the defendant. There is no need for a “real and substantial 1990, c C-3. connection” between either the subject matter of the foreign dispute The Enforcement or the judgment debtor, and the province in which recognition and of Judgments enforcement is sought (Chevron Corp. v. Yaiguaje, [2015] SCC 42). France. Section 2. Conventions Act, CCSM, c E117. Civil Code of Québec, 2.5 Is there a difference between recognition and All foreign chapter CCQ-1991, Section 2. enforcement of judgments? If so, what are the legal jurisdictions. Articles 3155-3163. effects of recognition and enforcement respectively?
Recognition of a foreign judgment differs from enforcement of a 2 General Regime foreign judgment. Recognition is the process by which a Canadian court of competent jurisdiction determines whether a foreign judgment will be recognised or “affirmed” in its jurisdiction. 2.1 Absent any applicable special regime, what is the legal Enforcement is the process by which a party may collect on a framework under which a foreign judgment would be judgment through various methods (see question 4.1). A foreign recognised and enforced in your jurisdiction? judgment must be recognised before it can be enforced. The difference between recognition and enforcement is illustrated Absent any applicable special regime, a foreign judgment would be where a defendant faces an attempt by the plaintiff to re-litigate the recognised and enforced under common law in all Canadian provinces same issues from a foreign action in a domestic forum and wishes to excluding Québec, which operates under a civil law regime. assert the defence of res judicata. In that case, the defendant would need the court in that domestic forum to recognise, but not enforce, 2.2 What constitutes a ‘judgment’ capable of recognition the foreign judgment. and enforcement in your jurisdiction? 2.6 Briefly explain the procedure for recognising and To be capable of recognition and enforcement, a foreign judgment enforcing a foreign judgment in your jurisdiction. must have been issued by a court of competent jurisdiction according to Canadian conflict of laws rules. Further, the foreign Canadian federal legislation allows a foreign judgment to be proven judgment must be final and conclusive in the original jurisdiction, by an exemplification or certified copy purporting to be under the and must be for a debt or definite sum of money or, if not a monetary seal of the issuing court or under the hand or seal of the issuing judgment, must be sufficiently clear and specific and of a nature that judge, coroner or court stenographer. The authenticity of the seal or the principle of comity requires the Canadian court to enforce it. signature need not be proven (Canada Evidence Act, RSC, 1985, c C-5, section 23(1)). The provincial evidence statutes contain similar 2.3 What requirements (in form and substance) must a provisions, but restrict their application to the courts of Canada, foreign judgment satisfy in order to be recognised Great Britain and the United States. and enforceable in your jurisdiction? Otherwise, an action on a foreign judgment is often commenced by a statement of claim for the amount of the judgment, and can Historically, only foreign money judgments were enforceable in be pursued by way of a motion for summary judgment. Judgment Canada. However, in 2006, the Supreme Court of Canada held that debtors should give due attention to the basic requirements for courts have jurisdiction to enforce foreign judgments providing non- recognition and enforcement (see questions 2.2 and 2.3). monetary awards (Pro Swing Inc. v. Elta Gold Inc., [2006] 2 SCR 612). Foreign judgments must be clear and specific. Specificity is linked to the ability to remedy non-performance with contempt of 2.7 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge court proceedings. The territorial scope of injunctive relief must be be made? specific and clear to be enforced. While a foreign judgment must be conclusive and final before it can Recognition/enforcement of a foreign judgment may be challenged be enforced, a Canadian court may recognise and enforce interlocutory on the following grounds: (a) the issuing court lacked jurisdiction; orders that meet the underlying objectives of the requirement of (b) fraud; (c) denial of natural justice; and/or (d) public policy. finality. If the foreign court retains the power to vary or otherwise To establish an absence of jurisdiction, a defendant must negate all modify or recall its own judgment, the judgment is not final and is of the grounds that might give the foreign court jurisdiction. Any thus not enforceable. In addition, a judgment that is not final and foreign judgment is presumed to issue from a court with jurisdiction conclusive on the merits in the foreign jurisdiction is not enforceable. until the contrary is shown. Although the fact that a foreign appeal is pending is not determinative of finality, a Canadian court can grant a stay of the recognition action A foreign judgment is conclusive on its merits and cannot be pending the appeal. challenged domestically on the basis of an error in fact or law.
48 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Blake, Cassels & Graydon LLP Canada
However, a foreign judgment is not enforceable if it was obtained complies with the requirements for recognition and enforcement. by fraud on the part of the party seeking to enforce it. The alleged As such, a foreign judgment may be recognised and enforced fraud must be clearly made out, and must be at the foundation of the by a Canadian court, provided the foreign judgment is final and impugned decision. Fraud going to jurisdiction can always be raised conclusive, there are no issues with jurisdiction and there are no before a domestic court to challenge a foreign judgment. The merits defences raised with respect to fraud, denial of natural justice or of a foreign judgment can be challenged for fraud only where the public policy (see questions 2.2, 2.3 and 2.7). allegations are new and not the subject of prior adjudication. The domestic court can refuse to recognise a foreign judgment where 2.11 What is your court’s approach to recognition and material facts not previously discoverable arise that potentially enforcement of a foreign judgment that purports to challenge the evidence that was before the foreign court. apply the law of your country? Canada The courts may decline to enforce a foreign judgment if the proceedings in the foreign court were a denial of natural justice, i.e., There is no specific guidance regarding the approach of Canadian contrary to the defendant’s right to notice and right to be heard. The courts to recognition and enforcement of a foreign judgment that defence of natural justice requires that the party seeking to impugn the purports to apply Canadian law. While it may be subject to greater judgment prove on the civil standard that the foreign proceedings were scrutiny, the foreign judgment in question would generally be contrary to Canadian notions of fundamental justice. The defence is subject to the same requirements applied to all foreign judgments restricted to the form of the foreign procedure and to due process. (see questions 2.2 and 2.3). The onus of proof in advancing the defence rests upon the defendant.
The defence of public policy prevents the enforcement of a foreign 2.12 Are there any differences in the rules and procedure judgment contrary to the Canadian concept of justice and depends of recognition and enforcement between the various on whether a foreign law is contrary to the Canadian view of basic states/regions/provinces in your country? Please morality. The defence has a narrow application. To determine explain. whether the enforcement of a foreign judgment would be contrary to public policy, consideration must be given to the historical and factual While the common law facilitates a degree of uniformity across context of the proceedings that led to the granting of the judgment. Canada, each Canadian province has authority to pass legislation that governs recognition of foreign judgments in that province. Although there is considerable overlap in the law among the provinces, there are 2.8 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments also significant differences. For example, the limitation periods for relating to specific subject matters? bringing an action for recognition of a foreign judgment vary across the provinces (see question 2.13 and section 3). Canadian courts will not enforce foreign judgments relating to public law, taxes, penal or quasi-criminal matters. 2.13 What is the relevant limitation period to recognise and In addition, recognition and enforcement of certain types of foreign enforce a foreign judgment? judgments may be subject to particular legislative frameworks. For example, legislation governing interjurisdictional support orders Under Canadian case law, a foreign judgment is treated as a contract provides a mechanism for obtaining, enforcing or varying a support debt, and not as a domestic judgment, for the purpose of determining order in a reciprocating jurisdiction. the limitation period that applies to the commencement of an action for recognition.
2.9 What is your court’s approach to recognition and An action for recognition of a foreign judgment must be commenced enforcement of a foreign judgment when there is: (a) a within the limitation period for contract debts under the statute conflicting local judgment between the parties relating applicable in the province in which the judgment creditor seeks to to the same issue; or (b) local proceedings pending enforce the judgment. This period generally ranges from two to 10 between the parties? years, beginning from the time that the judgment creditor under the foreign judgment discovered, using reasonable diligence, that the A Canadian court will not recognise or enforce a foreign judgment judgment debtor possessed assets in Canada. unless it is final and conclusive. Where there is a conflicting local judgment between the parties or there are local proceedings pending between the parties such that the judgment is not final and 3 Special Enforcement Regimes Applicable conclusive, a foreign judgment will not be recognised or enforced in to Judgments from Certain Countries Canada (see question 2.3).
Where a foreign judgment that is sought to be recognised conflicts 3.1 With reference to each of the specific regimes set with a prior judgment involving the same parties, and each judgment out in question 1.1, what requirements (in form and was pronounced by a court of competent jurisdiction and is final and substance) must the judgment satisfy in order to be conclusive, the general rule is that the first-in-time judgment must recognised and enforceable under the respective be given preference over the later-in-time judgment. regime?
Reciprocal Enforcement of Judgments (U.K.) Act (Ontario): 2.10 What is your court’s approach to recognition and Where a judgment has been given by a court of a reciprocating enforcement of a foreign judgment when there is a conflicting local law or prior judgment on the same or jurisdiction, the judgment creditor may apply to a court of the a similar issue, but between different parties? other reciprocating jurisdiction at any time within a period of six years after the date of the judgment (or, where there have been Based on the principles outlined above, Canadian courts will proceedings by way of appeal against the judgment, after the date of examine the foreign judgment in question to determine whether it the last judgment given in those proceedings) to have the judgment
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 49 Blake, Cassels & Graydon LLP Canada
registered, and on any such application the registering court will registered. An order for registration may generally be made without order the judgment to be registered. notice, but the application must be accompanied by a certificate Court Order Enforcement Act (British Columbia): If a judgment issued from the original court and under its seal and signed by has been given in a court in a reciprocating state, the judgment a judge or the clerk of that court. The certificate must be in the creditor may apply to have the judgment registered in the registering prescribed form and must set out the particulars as to the matters court unless the time for enforcement has expired in the reciprocating mentioned in it. If a judgment is registered, the judgment, from state or 10 years have expired after the date the judgment became the date of the registration, is of the same effect as if it had been a enforceable in the reciprocating state. judgment given originally in the registering court. The Reciprocal Enforcement of Judgments Act (Manitoba): The Reciprocal Enforcement of Judgments Act (Manitoba): The application for registration must be accompanied by a certificate Canada Where a judgment has been given in a court in a reciprocating state, the judgment creditor may apply to the registering court within six issued from the original court and under its seal and signed by a judge years after the date of the judgment to have the judgment registered thereof or the clerk thereof. The certificate must be in the prescribed in the registering court. On such application, the registering court form and must set forth the particulars as to the matters therein may order the judgment to be registered. An order for registration mentioned. Where a judgment is registered, the judgment, from the may generally be made ex parte. date of registration, is of the same force and effect as if it had been a judgment given or entered originally in the registering court. Reciprocal Enforcement of Judgments Act (Alberta): The requirements are identical to those under The Reciprocal Reciprocal Enforcement of Judgments Act (Alberta): The Enforcement of Judgments Act (Manitoba). requirements are identical to those under The Reciprocal Enforcement of Judgments Act (Manitoba). Although the above is representative of the legislation enacted in other Canadian provinces, please consult the relevant province’s Although the above is representative of the legislation enacted in legislation for particulars. See also questions 2.2, 2.3, 2.7 and 3.4, other Canadian provinces, please consult the relevant province’s particularly with respect to the grounds on which the recognition legislation for particulars. See also question 2.6. and enforcement of a judgment can be challenged. 3.4 With reference to each of the specific regimes set out in question 1.1, on what grounds can recognition/ 3.2 With reference to each of the specific regimes set out enforcement of a judgment be challenged under the in question 1.1, does the regime specify a difference special regime? When can such a challenge be made? between recognition and enforcement? If so, what is the difference between the legal effect of recognition and enforcement? Reciprocal Enforcement of Judgments (U.K.) Act (Ontario): Registration of a judgment shall be refused or set aside if: Reciprocal Enforcement of Judgments (U.K.) Act (Ontario): No. (a) the judgment has been satisfied; Court Order Enforcement Act (British Columbia): No. (b) the judgment is not enforceable in the territory of origin; The Reciprocal Enforcement of Judgments Act (Manitoba): No. (c) the original court is not regarded by the registering court as having jurisdiction; Reciprocal Enforcement of Judgments Act (Alberta): No. (d) the judgment was obtained by fraud; The Enforcement of Foreign Judgments Act (Saskatchewan): (e) enforcement of the judgment would be contrary to public While there is a distinction made between the concepts of recognition policy in the territory of the registering court; and enforcement, the same rules that determine whether a foreign judgment is unenforceable also apply in determining whether a foreign (f) the judgment is a judgment of a country or territory other than the territory of origin which has been registered in the judgment is binding on the parties (i.e. whether it is recognised). original court or has become enforceable in the territory of Although the above is representative of the legislation enacted in origin in the same manner as a judgment of that court; or other Canadian provinces, please consult the relevant province’s (g) in the view of the registering court the judgment debtor either legislation for particulars. See also question 2.5. is entitled to immunity from the jurisdiction of that court or was entitled to immunity in the original court and did not submit to its jurisdiction. 3.3 With reference to each of the specific regimes set out in question 1.1, briefly explain the procedure for Registration of a judgment may be set aside if: recognising and enforcing a foreign judgment. (a) the judgment debtor, being the defendant in the original proceedings, either was not served with the process of the Reciprocal Enforcement of Judgments (U.K.) Act (Ontario): The original court or did not receive notice of those proceedings application for registration must be made within a period of six years in sufficient time to enable him to defend the proceedings after the date of the judgment. The practice and procedure governing and, in either case, did not appear; registration (including notice to the judgment debtor and applications to (b) another judgment has been given by a court having jurisdiction set registration aside) shall be governed by the law of the registering court. in the matter in dispute prior to the date of judgment in the The registering court may require that an application for registration be original court; or accompanied by: (a) the judgment of the original court or a certified (c) the judgment is not final or an appeal is pending or the copy thereof; (b) a certified translation of the judgment, if given in a judgment debtor is entitled to appeal or to apply for leave to language other than the language of the territory of the registering court; appeal against the judgment in the territory of origin. (c) proof of the notice given to the defendant in the original proceedings, Court Order Enforcement Act (British Columbia): No order for unless this appears from the judgment; and (d) particulars of such other registration will be made if the court to which the application for matters as may be required by the rules of the registering court. registration is made is satisfied that: Court Order Enforcement Act (British Columbia): On application (a) the original court acted either without jurisdiction or without for registration, the Supreme Court may order that the judgment be authority;
50 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Blake, Cassels & Graydon LLP Canada
(b) the judgment debtor did not voluntarily appear or otherwise sale of real or personal property, garnishment of debts payable to submit during the proceedings to the jurisdiction of that the judgment debtor or an order for the appointment of an equitable court; receiver. In addition, the procedural rules in Canadian provinces (c) the judgment debtor was not duly served with the process of provide for the examination under oath of a judgment debtor with the original court and did not appear; respect to matters relating to the enforcement of a judgment. (d) the judgment was obtained by fraud; (e) an appeal is pending or the time in which an appeal may be taken has not expired; 5 Other Matters (f) the judgment was for a cause of action that for reasons of public policy or for some similar reason would not have been 5.1 Have there been any noteworthy recent (in the last Canada entertained by the registering court; or 12 months) legal developments in your jurisdiction (g) the judgment debtor would have a good defence if an action relevant to the recognition and enforcement of foreign were brought on the judgment. judgments? Please provide a brief description. The Reciprocal Enforcement of Judgments Act (Manitoba): The grounds on which a foreign judgment can be challenged are identical This answer is not applicable at the time of publication. to those under the Court Order Enforcement Act (British Columbia). Reciprocal Enforcement of Judgments Act (Alberta): The grounds 5.2 Are there any particular tips you would give, or on which a foreign judgment can be challenged are identical to those critical issues that you would flag, to clients seeking under the Court Order Enforcement Act (British Columbia). to recognise and enforce a foreign judgment in your jurisdiction? Although the above is representative of the legislation enacted in other Canadian provinces, please consult the relevant province’s Clients seeking to recognise and enforce a foreign judgment in legislation for particulars. See also question 2.7. Canada should be mindful of the applicable limitation periods. In most Canadian provinces, a client has two years from the discovery 4 Enforcement of a claim before an action is statute-barred. In this context, discoverability generally refers to the time at which the judgment creditor ought reasonably to have known that a legal proceeding 4.1 Once a foreign judgment is recognised and enforced, was warranted (see question 2.13), but clients should be aware of what are the general methods of enforcement provincial differences. available to a judgment creditor? In addition, clients should be cognisant that while the interest and costs portion of an award in a foreign judgment may be enforced, Once recognised, a foreign judgment is enforceable in the same enforcement is not available upon an interlocutory and collateral manner as a domestic judgment. For example, depending on the order for costs made by a foreign court. factual context, enforcement may be effected through seizure and
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 51 Blake, Cassels & Graydon LLP Canada
Erin Hoult Daniel Styler Blake, Cassels & Graydon LLP Blake, Cassels & Graydon LLP 199 Bay Street, Suite 4000 199 Bay Street, Suite 4000 Commerce Court West Commerce Court West Toronto, ON M5L 1A9 Toronto, ON M5L 1A9 Canada Canada
Tel: +1 416 863 4011 Tel: +1 416 863 2430 Email: [email protected] Email: [email protected] URL: www.blakes.com URL: www.blakes.com Canada Erin’s practice focuses on complex commercial litigation, including Daniel has a diverse civil and commercial litigation practice. He has infrastructure and procurement disputes, white collar crime, and appeared as counsel at all levels of courts in Ontario, and at the regulatory defence. Erin’s experience includes advising and acting for Federal Court of Canada. He also regularly provides pro bono legal clients in business disputes, defence of regulatory charges, internal services at the Small Claims Court in Toronto. investigations, constitutional law matters, class actions, contract and Daniel’s experience includes advising and acting for clients in negligence cases, and defamation actions. Erin also has extensive employment and labour-related litigation matters, constitutional law experience addressing complex questions of conflict of laws in matters, contract disputes, class actions, internal investigations, and litigation and transactions involving cross-border issues. other matters related to white collar crime. Daniel first joined Blakes Erin has appeared as counsel at all levels of courts in Ontario, at the as a summer law student and later completed his articles with the Supreme Court of Canada, and the Federal Court of Canada, as well Firm, where he worked on a variety of litigation, tax, and employment as before arbitration panels and administrative tribunals. and labour matters.
Blake, Cassels & Graydon LLP is one of Canada’s leading business law firms, representing many of Canada’s most prominent corporations, as well as international clients doing business in Canada. With offices in Montréal, Ottawa, Toronto, Calgary and Vancouver, and internationally in New York, London, Bahrain, Beijing (and associated offices in Al-Khobar, Riyadh and Shanghai), the firm’s strength across industry sectors and propensity to transfer knowledge and expertise between offices and practices is a key strength. Blakes’ national litigation and dispute resolution practice is one of the largest and most successful in Canada, representing Canadian and international clients on complex litigation in virtually every forum. The firm’s approach to litigation focuses on understanding clients, exploring all methods of dispute resolution and litigating when appropriate. Blakes’ litigators also work to help reduce litigation risk and the group has an extensive background in domestic and international commercial arbitration, and mediation. For more information on our firm and our Litigation & Dispute Resolution Group, visit www.blakes.com.
52 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Chapter 10
China
Linklaters LLP Justin Tang
1 Country Finder 2 General Regime
1.1 Please set out the various regimes applicable 2.1 Absent any applicable special regime, what is the to recognising and enforcing judgments in your legal framework under which a foreign judgment jurisdiction and the names of the countries to which would be recognised and enforced in your such special regimes apply. jurisdiction?
Applicable Law/ Relevant Corresponding There are two broad regimes for the recognition and enforcement of Statutory Regime Jurisdiction(s) Section Below foreign judgments in Mainland China. Jurisdictions which have Article 281 of the CPL allows for the recognition and enforcement Civil Procedure Law no bilateral treaties or Section 2. (“CPL”). of foreign judgments either in accordance with specific international conventions with China. treaties with the jurisdiction in question or under the principle of Jurisdictions which reciprocity. As of January 2018, China has concluded such bilateral CPL and bilateral have concluded bilateral Section 2. treaties with approximately 36 countries. treaties. treaties or conventions with China. Judgments from Hong Kong, Macau and Taiwan can be recognised Arrangement and enforced in Mainland China under reciprocal enforcement on Reciprocal arrangements which China entered into with Hong Kong, Macau Recognition and and Taiwan in 1998, 2006 and 2006, respectively. The recognition Enforcement of and enforcement of Hong Kong, Macau and Taiwan judgments are Judgments in Civil and Commercial subject to judicial interpretations issued by the Supreme People’s Matters by the Courts Court (“SPC”). of the Mainland and of the Hong Hong Kong. Section 3. Kong Special 2.2 What constitutes a ‘judgment’ capable of recognition Administrative and enforcement in your jurisdiction? Region Pursuant to Choice of Court Agreements between Certain bilateral agreements have set out the definition of a foreign Parties Concerned judgment capable of being recognised and enforced in Mainland (“Hong Kong China: Arrangement”). 1. under Article 2 of the Hong Kong Arrangement, a “judgment” Arrangement between must be a legally effective judgment made by the Court of the Mainland and Final Appeal, the Court of Appeal and the Court of First the Macau Special Instance of the High Court and the District Court and includes Administrative Region on the Mutual any judgment, order and allocatur; Macau. Section 3. Recognition and 2. under Article 2 of the Macau Arrangement, a “judgment” Enforcement of Civil includes any judgment, verdict, ruling on settlement and Commercial confirmation or decision of a judge; and Judgments (“Macau Arrangement”). 3. under Article 2 of the Taiwan Provisions, a “civil judgment” includes any effective civil judgment, ruling, settlement Provisions of the transcript, mediation transcript or payment order issued by Supreme People’s Court on Recognition courts of Taiwan. and Enforcement Taiwan. Section 3. Other than those specifically provided in the bilateral treaties, a of Civil Judgments Chinese court would adopt a broad interpretation of the definition Issued by Courts in of a “judgment”. Generally speaking, to be eligible for recognition Taiwan (“Taiwan Provisions”). and enforcement in Mainland China, the foreign judgment has to be a final and conclusive determination of the substantive issues
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 53 Linklaters LLP China
involved in the dispute in question. Interlocutory judgments and 4. If, after a Chinese court has issued an enforcement notice, interim assets preservation orders do not constitute a final and the respondent fails to satisfy the judgment, the Chinese conclusive determination. court enforcement officers can take immediate, compulsory enforcement actions against the judgment debtor’s assets in Mainland China. 2.3 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? 2.7 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? To be eligible for recognition and enforcement in Mainland China,
China the foreign judgment must be final and conclusive as to its legal effects (Article 281, CPL). The grounds for refusing recognition or enforcement of a foreign judgment are set out in the CPL and the bilateral treaties entered In addition, it is a condition for recognition and enforcement under into by China. In summary, a Chinese court may refuse to enforce a most bilateral treaties concluded by China that the foreign judgment foreign judgment if it is of the view that: must be given by a foreign court which has jurisdiction over the case 1. the foreign judgment is contrary to the fundamental principles to which the judgment relates, and that the defendant against whom of Chinese law or the sovereignty, national security or public the foreign judgment is given had proper notice of the proceedings. interests of China; 2. the foreign judgment is not final as to its legal effects; 2.4 What (if any) connection to the jurisdiction is required 3. the foreign judgment was given by a foreign court which did for your courts to accept jurisdiction for recognition not have jurisdiction over the case; and enforcement of a foreign judgment? 4. the defendant against whom the foreign judgment was given did not have proper notice of the proceedings in the foreign According to Article 282 of the CPL, a Chinese court will accept court; jurisdiction for recognition and enforcement of a foreign judgment 5. the foreign judgment relates to a subject matter in respect of if (i) there is a specific international or bilateral treaty concluded which a Chinese court has rendered a judgment or recognised with China, or (ii) the principle of reciprocity exists. a judgment rendered by a third country; or Other than the CPL, there are no other provisions specifying the 6. the limitation period of two years for applying for enforcement connection required before a Chinese court will accept jurisdiction of a foreign judgment (unless otherwise specified in applicable for recognition and enforcement of a foreign judgment. Having said bilateral treaties) has expired. that, in the limited number of reported decisions on recognition and enforcement of foreign judgments in the PRC based on the principle 2.8 What, if any, is the relevant legal framework applicable of reciprocity, there are, in all cases, some Chinese connections, e.g. to recognising and enforcing foreign judgments the defendants are domiciled, or have their places of incorporation, relating to specific subject matters? in Mainland China. The recognition of foreign divorce judgments in Mainland China 2.5 Is there a difference between recognition and is governed by the SPC’s Provisions on the Procedure of Chinese enforcement of judgments? If so, what are the legal Citizens’ Application for Recognising and Enforcing Foreign effects of recognition and enforcement respectively? Divorce Judgments.
Recognition and enforcement of foreign judgments are two distinct, 2.9 What is your court’s approach to recognition and separate concepts under Chinese law. Under Article 546 of the enforcement of a foreign judgment when there is: (a) a SPC’s Interpretations on Application of the Civil Procedure Law conflicting local judgment between the parties relating (“SPC Interpretations”), a judgment creditor may apply to a to the same issue; or (b) local proceedings pending Chinese court for both recognition and enforcement of a foreign between the parties? judgment or, alternatively, for recognition only. Certain bilateral treaties entered into by China provide that a Chinese court may refuse recognition or enforcement of a foreign 2.6 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. judgment if: 1. it has rendered a judgment on the same subject matter Generally speaking, an application for recognition (and enforcement) between the same parties; of a foreign judgment may be made to a Chinese court by the party 2. there are ongoing proceedings in Mainland China on the in whose favour the foreign judgment was given and the steps to be same subject matter between the same parties; or taken include: 3. it has recognised a judgment rendered by a third country on 1. The applicant applies to a Chinese court for recognition (and the same subject matter. enforcement) of a foreign judgment. The application shall include the original or a certified true copy of the foreign 2.10 What is your court’s approach to recognition and judgment in question and, if not in Chinese, its Chinese enforcement of a foreign judgment when there is a translation. conflicting local law or prior judgment on the same or 2. The Chinese court will serve the application on the respondent a similar issue, but between different parties? and then examine the application (with or without a full oral hearing). Under a number of bilateral treaties, a foreign judgment will not be 3. If the Chinese court decides to recognise and enforce the recognised or enforced by a Chinese court if the Chinese court has foreign judgment, it will issue a decision and serve an rendered a judgment on the same subject matter between the same enforcement notice on the judgment debtor. parties. There is no provision which expressly permits a Chinese
54 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Linklaters LLP China
court to refuse recognition or enforcement of a foreign judgment in 3. the commercial contract to which the judgment relates must cases where the Chinese court has rendered a prior judgment on a provide for the exclusive jurisdiction of the Hong Kong similar subject matter but between different parties. courts. Under Article 282 of the CPL, a foreign judgment will not be The recognition and enforcement of Macau judgments in Mainland recognisable or enforceable in Mainland China if its recognition or China are governed by the Macau Arrangement which requires that, enforcement contravenes the fundamental principles of Chinese law. for a Macau judgment to be recognised and enforced, it must be given in a civil or commercial case, including labour disputes. To be enforceable in Mainland China, a Macau judgment must also be 2.11 What is your court’s approach to recognition and legally effective and for the payment of a sum of money (Article 3, enforcement of a foreign judgment that purports to
Macau Arrangement). China apply the law of your country? Taiwan judgments are recognisable and enforceable in Mainland There are no provisions in the CPL or the bilateral treaties entered China pursuant to the Taiwan Provisions. Under Article 2 of the into by China that expressly govern this scenario. The recognition Taiwan Provisions, for a Taiwan judgment to be recognised and and enforcement of such foreign judgments would be subject to the enforced in Mainland China, it must be civil in nature and legally same process and principles set out above. effective. This extends to, for example, judgments or orders given by a court in Taiwan for payment of civil damages in criminal cases.
2.12 Are there any differences in the rules and procedure of recognition and enforcement between the various 3.2 With reference to each of the specific regimes set out states/regions/provinces in your country? Please in question 1.1, does the regime specify a difference explain. between recognition and enforcement? If so, what is the difference between the legal effect of recognition and enforcement? There are no material differences between the rules and procedures of different provinces in Mainland China in relation to the recognition and enforcement of foreign judgments. Neither the Hong Kong Arrangement nor the Macau Arrangement specifies any difference between recognition and enforcement of However, although Hong Kong and Macau are special administrative Hong Kong/Macau judgments in Mainland China. regions under the sovereignty of China, their legal systems and procedures are different from those of Mainland China. Hong Kong Under the Taiwan Provisions, there is a requirement that an applicant and Macau judgments can be recognised and enforced in Mainland must apply either for recognition of a Taiwan judgment prior to China in accordance with the Hong Kong Arrangement and Macau seeking enforcement thereof, or alternatively for both recognition and Arrangement, respectively. enforcement in the same application (Article 3, Taiwan Provisions).
3.3 With reference to each of the specific regimes set 2.13 What is the relevant limitation period to recognise and out in question 1.1, briefly explain the procedure for enforce a foreign judgment? recognising and enforcing a foreign judgment.
Under Article 239 of the CPL and Article 547 of the SPC An application under the Hong Kong Arrangement for recognition Interpretations, the limitation period for applying for enforcement and enforcement of a Hong Kong judgment shall be filed with the of a foreign judgment is two years. However, a different limitation Intermediate People’s Court at the place where the judgment debtor period may be prescribed under certain bilateral treaties. is domiciled or ordinarily resident, or where the judgment debtor’s If the Applicant only applies for recognition (but not enforcement) properties are located (Article 4, Hong Kong Arrangement). of a foreign judgment in Mainland China, the two-year limitation When making the application, the applicant must produce the period for enforcement will start to run from the date on which the following documents (Articles 6 and 7, Hong Kong Arrangement): recognition decision of a Chinese court becomes effective (Article 547, SPC Interpretations). 1. a written application; 2. a copy of the judgment sealed by the Hong Kong court which gave the judgment and a Chinese translation thereof (if 3 Special Enforcement Regimes Applicable applicable); to Judgments from Certain Countries 3. a certificate issued by the Hong Kong court confirming that the judgment is final and enforceable; and 4. the applicant’s identification documents. 3.1 With reference to each of the specific regimes set out in question 1.1, what requirements (in form and The Macau Arrangement provides for similar requirements and substance) must the judgment satisfy in order to be procedure with respect to an application for recognition and recognised and enforceable under the respective enforcement of a Macau judgment in Mainland China. regime? Under the Taiwan Provisions, an application for recognition and enforcement of a Taiwan judgment in Mainland China must be Hong Kong judgments can be recognised and enforced in lodged with the Intermediate People’s Court either at the place Mainland China in accordance with the Hong Kong Arrangement. where the judgment creditor or judgment debtor is domiciled or Under Article 1 of the Hong Kong Arrangement, the conditions for ordinarily resident or where the judgment debtor’s properties are recognition and enforcement are: located (Article 4, Taiwan Provisions). Such an application must 1. the Hong Kong judgment must be in relation to a commercial be filed within two years after the expiry of the period specified contract entered into after 1 August 2008; for the performance of the Taiwan judgment and must include the 2. the Hong Kong judgment must require the payment of a following documents (Articles 7 and 9, Taiwan Provisions): sum of money in a civil or commercial case and be final and enforceable; and
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 55 Linklaters LLP China
1. a written application; Pursuant to the Taiwan Provisions, a Chinese court can refuse 2. the original copy of the Taiwan judgment or its certified true recognition and enforcement of a Taiwan judgment on one or more copy; of the following grounds (Article 15, Taiwan Provisions): 3. documentary proof that the Taiwan judgment is true and 1. the Taiwan judgment relates to a subject matter in respect of legally effective; and which the Chinese courts have exclusive jurisdiction; 4. for default judgments, documentary proof that the party against 2. the parties to the Taiwan judgment have entered into an whom the Taiwan judgment was given had been summoned by effective arbitration agreement over the dispute to which the the Taiwan court. judgment relates and there is no circumstance under which the jurisdiction conferred under the arbitration agreement has been waived; China 3.4 With reference to each of the specific regimes set out 3. a judgment has been rendered on the same dispute by a in question 1.1, on what grounds can recognition/ Chinese court in Mainland China; enforcement of a judgment be challenged under the special regime? When can such a challenge be made? 4. a judgment has been rendered by a court in Hong Kong, Macau or a foreign country on the same dispute and that judgment has been recognised or acknowledged by the The grounds for refusing recognition and enforcement of a Hong Kong Chinese court; judgment are set out in Article 9 of the Hong Kong Arrangement, which include: 5. for default judgments, the party again to whom the Taiwan judgment was given had not been summoned or was not 1. the choice of court agreement which provides for the properly represented in the Taiwan court proceedings; and exclusive jurisdiction of the Hong Kong courts is invalid under Hong Kong law; 6. the recognition of the Taiwan judgment is contrary to the principles of Chinese law including the “One China” 2. the Hong Kong judgment relates to a subject matter in respect principle or the social or public interests of Mainland China. of which the Chinese courts have exclusive jurisdiction under Chinese law; A challenge to recognition and/or enforcement of a foreign judgment in Mainland China (including a court judgment from Hong Kong, 3. the Hong Kong judgment has been wholly satisfied; Macau and Taiwan) can be made at any time after the application 4. the Hong Kong judgment has been obtained by fraud; for recognition (and enforcement) has been served on the judgment 5. a judgment or arbitral award has been rendered on the same debtor by a Chinese court. cause of action between the parties by a Chinese court, a foreign court or an arbitral tribunal, and the judgment or arbitral award has been recognised or enforced by the Chinese 4 Enforcement court where enforcement of the Hong Kong judgment is sought; 6. the party who was absent from the court hearing(s) and 4.1 Once a foreign judgment is recognised and enforced, against whom the Hong Kong judgment was given had not what are the general methods of enforcement been summoned according to Hong Kong law; available to a judgment creditor? 7. the party against which the Hong Kong judgment was given had been summoned according to Hong Kong law but had not If a Chinese court accepts an application for recognition and been given proper time to defend the proceedings; and enforcement of a foreign judgment in Mainland China, it can order 8. the Chinese court considers that the enforcement of the Hong any of the following: Kong judgment is contrary to the social or public interests of 1. an enquiry into the assets of the judgment debtor in Mainland Mainland China. China by: (i) compelling the judgment debtor to disclose its Under the Macau Arrangement, a Macau judgment may be refused assets; (ii) making enquiries with the relevant authorities or recognition and enforcement in Mainland China if: organisations for information concerning the judgment debtor’s assets; and/or (iii) ordering a search of the residence or office 1. the Macau judgment relates to a subject matter in respect premises of the judgment debtor and any other places where its of which the Chinese courts have exclusive jurisdiction assets might be kept (Articles 242 and 248, CPL and Article 34, according to Chinese law; the SPC’s Interpretations on Questions regarding Application of 2. there is ongoing litigation in the Chinese courts commenced the Enforcement Procedure under the Civil Procedure Law); prior to the issuance of the Macau judgment and the Chinese 2. sealing up, seizure, freezing or appropriation of the assets of courts have jurisdiction over that litigation; the judgment debtor (Articles 242, 244 and 245, CPL); 3. a judgment or arbitral award has been rendered on the same 3. sale of the judgment debtor’s assets through auction (Articles matter by a court or an arbitral tribunal, and that judgment 242, 244 and 247, CPL); or arbitral award has been recognised or enforced by the Chinese court where enforcement of the Macau judgment is 4. compulsory eviction of the judgment debtor from building or sought; land (Article 250, CPL); 4. the party against whom the Macau judgment was given had 5. transfer of licences or certificates conferring rights on the not been summoned or was not properly represented in the judgment debtor (Article 251, CPL); Macau court proceedings; 6. imposition of restrictions on the judgment debtor by, for 5. the Macau judgment has not become legally effective or example, informing the relevant government departments to its enforcement has been stayed for retrial under the law of restrict the judgment debtor from leaving Mainland China Macau; or and recording the judgment debtor’s failure to perform its obligations under the judgment in the credit reference system 6. the enforcement of the Macau judgment is contrary to the maintained by the People’s Bank of China (Articles 255, principles of Chinese law or the social or public interests of CPL); and Mainland China. 7. a media announcement of the judgment debtor’s failure to (Article 11, Macau Arrangement.) perform its obligations under the judgment (Article 255, CPL).
56 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Linklaters LLP China
5 Other Matters 5.2 Are there any particular tips you would give, or critical issues that you would flag, to clients seeking to recognise and enforce a foreign judgment in your 5.1 Have there been any noteworthy recent (in the last jurisdiction? 12 months) legal developments in your jurisdiction relevant to the recognition and enforcement of foreign judgments? Please provide a brief description. No, there are no critical issues that need to be flagged.
On 30 June 2017, the Wuhan Intermediate People’s Court issued a
decision which recognised and enforced a civil judgment rendered China by the Superior Court of Los Angeles County, California, the United Justin Tang States. It was the first reported decision in which a Chinese court Linklaters LLP 10/F, Alexandra House recognised and enforced a US judgment on the basis of reciprocity 18 Chater Road, Central between China and the United States (otherwise than pursuant Hong Kong to a bilateral treaty for mutual recognition and enforcement of China judgments). This decision indicates the Chinese courts’ increased Tel: +852 2901 5147 preparedness to recognise and enforce judgments from other Email: [email protected] jurisdictions, and in particular those in which the domestic courts URL: www.linklaters.com have previously enforced judgments from Chinese courts. Further, China signed the Hague Convention on Choice of Justin is a Partner in the Dispute Resolution department in Asia. Court Agreements on 12 September 2017 (the “Convention”), He has broad commercial and arbitration experience and regularly advises many of the global corporations and state-owned enterprises which, amongst others, affords reciprocity in the recognition and on their most complex and significant cross-border commercial enforcement of civil and commercial judgments of the courts of the disputes, arbitrations and regulatory investigations, with a particular Member States to the Convention. Whilst the Convention still needs focus on China-related disputes. to be ratified by the National People’s Congress of China before it His recent experience includes acting for an international forestry becomes effective in Mainland China, it is expected to increase the company in London-seated ICC arbitrations against Chinese attractiveness of court litigation as a dispute resolution mechanism counterparties and related enforcement proceedings; a global investment bank in London court proceedings against Chinese for international parties (especially those from the Convention counterparties involving pledged assets in China; the administrators signatories) conducting business with Chinese counterparties if and of the estate of a high-net-worth individuals in parallel proceedings in when the Convention is ratified. Hong Kong and the PRC involving RMB10 billion breach of contract claims; a group of lenders in a syndicated loan for the recovery from Chinese counterparties of a loan worth over US$500m; and a Hong Kong-listed bank in high-profile unfair prejudice proceedings before the Hong Kong courts.
As a global law firm, we support our clients in achieving their strategies wherever they do business. We draw on our expertise and resources to help them to pursue opportunities and manage risk across industries and markets around the world. Technical skill, commercial experience and outstanding service are underpinned by a single management structure across the firm to help build valuable and lasting client relationships. We now have around 350 lawyers based in the key Asian centres of Beijing, Shanghai, Hong Kong, Tokyo, Seoul, Singapore and Bangkok. As part of our integrated alliance with Australian law firm Allens, we also support clients actively in Australia, Vietnam and Mongolia. To further enhance the integrated nature of our alliance, we have also formed an association with Widyawan & Partners (a leading Indonesian law firm) to provide clients with a full-service Indonesian law capability. In addition, we have a best-friend relationship with Indian law firm Talwar Thakore & Associates (TT&A). We work closely with these firms to provide seamless advice to clients as a single team.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 57 Chapter 11
Cyprus
Montanios & Montanios LLC Yiannis Papapetrou
1 Country Finder Applicable Law/ Relevant Corresponding Statutory Regime Jurisdiction(s) Section Below Convention of 1.1 Please set out the various regimes applicable 01/02/1971 on the to recognising and enforcing judgments in your Recognition and All Member States of Enforcement of the EU (apart from jurisdiction and the names of the countries to which Please see Chapter 2. Foreign Judgments in Denmark), Mexico such special regimes apply. Civil and Commercial and Singapore. Matters (the “Hague Applicable Law/ Relevant Corresponding Convention”). Statutory Regime Jurisdiction(s) Section Below Countries with which Regulation (EU) Cyprus has concluded or is connected with No 1215/2012 on The Judgments an agreement for jurisdiction and of Foreign Courts mutual recognition the recognition and (Recognition, and enforcement of enforcement of All countries within Registration and Please see Chapter 2. judicial decisions, judgments in civil the EU. Enforcement by those being: Belarus; and commercial Convention) Law Section 3. Bulgaria; China; matters (recast) of 2000 (Law Czech Republic; (the “Brussels I 121(I)/2000) and Egypt; Georgia; Regulation (recast)”). the relevant bilateral Greece; Hungary; treaty in relation to Council Regulation Poland; Russia; each country. (EC) No 44/2001 Serbia; Slovakia; of 22/12/2000 on Slovenia; Syria; and jurisdiction and All countries within Ukraine. the recognition and Please see Chapter 2. the EU. enforcement of The Certain Judgments of Courts judgments in civil Judgments of superior of Commonwealth and commercial courts of the United Section 3. Countries (Reciprocal matters. Kingdom. Enforcement Law), Convention on Cap. 10. jurisdiction and the recognition and Civil Procedure enforcement of (Reciprocal New South Wales and Switzerland, Norway Section 3. judgments in civil Please see Chapter 2. Enforcement) Law, Grenada. and Iceland. and commercial Cap. 7. matters of 30 October All countries to 2007 (the “Lugano which none of the Common law. Section 2. Convention”). above specific laws/ Regulation (EC) regulations. No 805/2004 creating a European Enforcement Order for uncontested 2 General Regime claims, Regulation (EC) No 1896/2006 All countries within (as amended) creating 2.1 Absent any applicable special regime, what is the legal the EU (excluding Please see Chapter 2. a European order for Denmark). framework under which a foreign judgment would be payment procedure recognised and enforced in your jurisdiction? and Regulation (EC) No 861/2007 (as amended) A foreign judgment can be recognised and enforced in Cyprus establishing a through different procedural mechanisms, depending mainly on European Small the nationality of the court which gave the judgment. The main Claims Procedure. instruments are set out below:
58 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Montanios & Montanios LLC Cyprus
2.1.1 Enforcement of EU Judgments (c) Enforcement under common law In brief, judgments from the courts of countries of the European If none of the special regimes above apply, it may be possible Union (and judgments from Switzerland, Norway and Iceland) to bring an action at common law or raise a counterclaim on can be recognised and enforced under the different specific EU the foreign judgment. If a foreign judgment is enforceable regulations on the matter, the main regulation now being the Brussels under the Brussels I Regulation (recast) or another statute, it may not be enforced by a common law action on the I Regulation (recast). Under the Brussels I Regulation (recast), a judgment. judgment given in an EU Member State (including Denmark) which is enforceable in that State is enforceable in Cyprus without any declaration of enforceability being required. The predecessor of 2.2 What constitutes a ‘judgment’ capable of recognition and enforcement in your jurisdiction?
Brussels I Regulation (recast), i.e. Regulation No 44/2001 continues Cyprus to apply to judgments given in legal proceedings instituted, to authentic instruments formally drawn up or registered and to court In order for a foreign judgment to be enforced by a claim at common settlements approved or concluded before 10/01/2015. law, the judgment must be final and conclusive and be capable of Under Regulation 805/2004, a regime was established for European being enforced by execution in the country of the original court. enforcement orders for claims which are uncontested by debtors. A judgment which is res judicata between the parties is final and The European enforcement order is a certificate which enables conclusive, but a judgment which is liable to be varied or amended judgments, court settlements and authentic instruments on by the foreign court is not considered final and conclusive. A uncontested claims to be recognised and enforced automatically judgment can be final and conclusive even if an appeal is pending in another Member State, without any intermediate proceedings. before a higher court of the foreign country. In such a case it is Regulation 805/2004 applies in civil and commercial matters. It likely that the Cypriot court would set conditions for the purpose does not, in particular, cover revenue, customs or administrative of safeguarding the right of appeal. However, where execution matters. It is applicable in all Member States with the exception of a judgment is stayed for any period pending an appeal or for of Denmark. any other reason, no recognition and enforcement can be sought until the expiration of that period. A judgment issued by default Although the majority of foreign judgments which are recognised of appearance can be considered final and conclusive even if the and enforced in Cyprus are from other Member States of the judgment debtor could apply to have it set aside. European Union, details on the applicable regime are not analysed here as they are dealt with in the EU chapter in this guide. Moreover, the judgment must be for a definite sum of money or for a debt. A sum is sufficiently certain for this purpose if it can 2.1.2 Enforcement of non-EU Judgments be ascertained by a simple arithmetical process. The judgment (a) Enforcement of a foreign judgment using the Foreign could also be an order for costs. If the foreign judgment orders the Courts (Recognition, Registration and Enforcement by judgment debtor to specifically perform something, such judgment Convention) Law of 2000 (Law 121 (I)/2000) is not enforceable although it may be res judicata. Likewise, if a Cyprus has entered into bilateral treaties with a number foreign judgment is for a number of remedies, the judgment creditor of countries on legal assistance on various matters which may seek, if he wishes so, recognition and enforcement of part of it. provide, inter alia, for the recognition and enforcement of judgments given in the courts of the contracting states. Further, the foreign judgment must have been issued by a court Under these, a judgment creditor may apply in Cyprus for which had jurisdiction to give judgment. the recognition and enforcement of the foreign judgment using the Foreign Courts (Recognition, Registration and Enforcement by Convention) Law of 2000 (Law 121 2.3 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised (I)/2000). Cyprus has concluded such bilateral treaties with and enforceable in your jurisdiction? Belarus, Bulgaria, China, Czech Republic, Egypt, Georgia, Greece, Hungary, Poland, Russia, Serbia, Slovakia, Slovenia, Syria and Ukraine. See answer to question 2.2 above. (b) Enforcement under the Certain Judgments of Courts of Commonwealth Countries (Reciprocal Enforcement) 2.4 What (if any) connection to the jurisdiction is required Law, Cap. 10 for your courts to accept jurisdiction for recognition The Certain Judgments of Courts of Commonwealth and enforcement of a foreign judgment? Countries (Reciprocal Enforcement) Law Cap. 10, as amended, which is based on the English Foreign Judgments For a common law claim on a foreign judgment to be entertained, (Reciprocal Enforcement) Act 1933, applies only to the Cypriot court must have jurisdiction over the judgment debtor. judgments of superior courts of the United Kingdom. Since The writ of summons must be served upon the judgment debtor in the accession of Cyprus to the European Union in 2004 and Cyprus or leave must be obtained for service out of jurisdiction. the use of the Brussels Regulations for the recognition and enforcement of judgment of the courts of the United Kingdom, Cap. 10 is used less frequently. In a recent judgment of a 2.5 Is there a difference between recognition and first instance court, it was accepted that Cap. 10 could be enforcement of judgments? If so, what are the legal used to recognise and enforce a judgment from a court of the effects of recognition and enforcement respectively? British Virgin Islands which was accepted as forming part of an overseas territory of the United Kingdom (and as such There is a difference between recognition and enforcement of have not acceded to the European Union (judgment dated 16 judgments. A foreign judgment has no direct operation in Cyprus until October 2015 in Application No 281/2015 [unreported])). Following the referendum in the UK for the country to leave this has been recognised. Once it is recognised, it has the same status the EU, this legislation may be more relevant in the future as a Cypriot judgment and measures can be taken for its enforcement. unless, of course, a specific arrangement is reached on the There are cases where the foreign judgment may be incapable of matter between the EU and the UK (possibly along similar enforcement; for example, where the judgment dismisses a claim lines to the Lugano Convention). or counterclaim or is a declaratory judgment. In such cases, a
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 59 Montanios & Montanios LLC Cyprus
judgment creditor need only seek its recognition. In certain cases, matters. These include Regulation (EC) No 1346/2000 on a judgment creditor may choose only to seek the recognition of the Insolvency proceedings, Regulation 2201/2003 on jurisdiction foreign judgment and refrain from taking any enforcement measures and the recognition and enforcement of judgments in matrimonial if, for example, the purpose of recognition is merely to defend a matters and the matters of parental responsibility and Regulation claim in Cyprus on the same or connected matter. 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. 2.6 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. Furthermore, in relation to matrimonial matters, Cyprus ratified the Hague Convention of 25 October 1980 on the Civil Aspects of
Cyprus At common law, a foreign judgment may be enforced by bringing an International Child Abduction by Law 11(III)/1994 and the Hague action on the basis of the foreign judgment. The action commences Convention of 19 October 1996 on Jurisdiction, Applicable Law, by a writ of summons which must be served on the judgment Recognition, Enforcement and Co-operation in Respect of Parental debtor. The case proceeds like any other ordinary action against Responsibility and Measures for the Protection of Children (hereinafter a defendant. However, the judgment creditor may then apply for the 1996 Child Protection Convention) by Law 24(III)/2004. summary judgment on the ground that there is no defence to the Cyprus is also a signatory to the following multilateral conventions action. A summary judgment will be issued unless the judgment relating to the recognition and enforcement of foreign judgments: debtor can satisfy the court that there is an issue in dispute which (a) the Convention on the Recognition and Enforcement of needs to be tried. An example of an issue which may be raised by Foreign Judgments in Civil and Commercial Matters and a judgment debtor opposing the application for summary judgment Supplementary Protocol (Hague Convention) thereto; the could be that the foreign judgment was obtained by fraud. Convention has no practical effect as Cyprus has not signed any Supplementary Agreement with any Contracting State; (b) the Convention on the Recovery Abroad of Maintenance 2.7 On what grounds can recognition/enforcement of a (Ratification); judgment be challenged? When can such a challenge be made? (c) the European Convention on the Recognition and Enforcement of Foreign Arbitral Awards; and The only defence under the common law that would be open to the (d) the European Convention on the Recognition and defendant in such an action would be that the foreign judgment was: Enforcement of Certain International Aspects of Bankruptcy. (a) not final and conclusive (see question 2.2 above); Foreign arbitral awards can be enforced in Cyprus by virtue of the (b) issued by a court which had no competent jurisdiction; the issue provisions stated in the International Commercial Arbitration Law on whether the foreign court had international jurisdiction will No 101/1987 and the New York Convention on the Recognition and be decided on the basis of the Cypriot conflict of laws rules; Enforcement of Foreign Arbitral Awards of 1958 which was ratified (c) given by fraud; it is immaterial if the fraud was by the court by Law No 84/1979. or the judgment creditor; (d) contrary to the public policy of Cyprus; it would be contrary 2.9 What is your court’s approach to recognition and to public policy, for example, to recognise a foreign judgment enforcement of a foreign judgment when there is: (a) a which conflicts with the prior decision of a Cypriot court in conflicting local judgment between the parties relating an action between the same parties; and to the same issue; or (b) local proceedings pending (e) given in proceedings which were opposed to the principles of between the parties? natural justice; if a judgment is pronounced by a foreign court of competent jurisdiction, Cypriot courts would not investigate (a) A foreign judgment will not be recognised and enforced if the propriety of the proceedings in the foreign court, unless there is a conflicting Cypriot judgment on the same issue they offend Cypriot views of substantial justice. Whether the between the same parties on the basis that this will be against foreign proceedings violate substantial justice in the view of the the principle of res judicata and therefore contrary to the Cypriot court, would depend on the nature of the proceedings public policy of Cyprus. under consideration. For example, a foreign judgment which is (b) A foreign judgment may be recognised and enforced in Cyprus wrong on the merits is not impeachable on this ground nor if the even if there are proceedings pending between the parties foreign court admitted evidence which would be inadmissible before a Cypriot court. The judgment creditor may wish to raise before the Cypriot courts. The principles of natural justice the foreign judgment as a defence to the ongoing proceedings would of course involve a right of the judgment debtor to be before the Cypriot court, provided the foreign judgment is final given notice of the foreign proceedings and that having been conclusive on the merits in favour of the defendant/judgment given this notice, the judgment debtor was given the opportunity creditor. Depending on the circumstances, the matter may be of substantially presenting their case before the foreign court. raised as either a cause of action estoppel or an issue estoppel. The judgment debtor will need to enter an appearance in the action It is immaterial that the foreign proceedings upon which the and file a defence raising any of the above issues as a defence. foreign judgment was issued were in the form of an action in personam, but the Cypriot proceedings are in the form of It should be noted that in case there are two competing foreign an admiralty claim in rem. Both proceedings are considered judgments by courts of competent jurisdiction which are final and as between the same parties from the moment the Admiralty conclusive, the earlier in time will prevail. Court is seized with jurisdiction.
2.8 What, if any, is the relevant legal framework applicable 2.10 What is your court’s approach to recognition and to recognising and enforcing foreign judgments enforcement of a foreign judgment when there is a relating to specific subject matters? conflicting local law or prior judgment on the same or a similar issue, but between different parties? There are particular regulations of the European Union which apply to different subject matters, such as matrimonial and insolvency If a foreign judgment is in conflict with Cypriot law or a prior
60 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Montanios & Montanios LLC Cyprus
judgment on the same or a similar issue but between different (Rat. Law 10/1997), Russia (Rat. Law 172/1986), Serbia (Rat. Law parties, recognition and enforcement could potentially be denied 179/1986 and Law 34(ΙΙΙ)/2001), Slovakia (Rat. Law 68/1982), for reasons of public policy. Whether public policy reasons will be Slovenia (Rat. Law 179/1986), Syria (Rat. Law 160/1986, 13/1997) applied or not will, of course depend on the particular circumstances and Ukraine (Rat. Law 172/1986 and 8/2005). of a case. It should be noted, however, that the public policy defence Further, the judgment must be enforceable in the country in which it is to operate only in exceptional circumstances. A mere difference has been given. The word “judgment” includes, in this context, any between the substantive law of the foreign court and that of Cyprus enforceable interim or temporary order or decree. Further, either would not suffice to deny the recognition and enforcement of the the judgment debtor/respondent or the judgment creditor/applicant foreign judgment. must be resident in Cyprus for it to be possible to apply for the
recognition and enforcement of a foreign judgment. Cyprus 2.11 What is your court’s approach to recognition and Under the Certain Judgments of Courts of Commonwealth Countries enforcement of a foreign judgment that purports to (Reciprocal Enforcement) Law Cap. 10, as amended, which is apply the law of your country? based on the English Foreign Judgments (Reciprocal Enforcement) Act 1933 and which, so far, has been extended to apply only to If the foreign court had jurisdiction to issue a judgment and all other judgments of superior courts of the United Kingdom, a judgment requirements are met, such a foreign judgment could be recognised creditor who has obtained a judgment may apply to the district court and enforced in Cyprus. The foreign judgment cannot be re- in the district of Cyprus in which the judgment debtor or any of examined by the Cypriot courts on the merits provided of course the judgment debtors resides or in which any property to which a that the foreign court had jurisdiction to try the case on the basis of judgment relates is situated for its recognition and enforcement. the Cypriot private international law rules. This would even be the The judgment creditor may apply at any time within six years after case if it appeared that the foreign court made an obvious mistake on the date of the judgment or, where there have been proceedings Cypriot law which was evident on the face of the judgment. by way of appeal against the judgment, after the date of the last judgment given in those proceedings. The judgment must be final 2.12 Are there any differences in the rules and procedure and conclusive as between the parties and there must be payable of recognition and enforcement between the various thereunder a sum of money, not being a sum payable in respect of states/regions/provinces in your country? Please taxes or other charges of a like nature or in respect of a fine or other explain. penalty. The application to recognise and enforce the judgment under this Law must be accompanied by an affidavit which should There are no differences in the rules and procedure of recognition exhibit a certified copy of the judgment together with a certified and enforcement between the various districts in the Republic of Greek translation. Cyprus. Lastly, the registration of judgments may also be affected under the provisions of the Civil Procedure (Reciprocal Enforcement) Law, 2.13 What is the relevant limitation period to recognise and Cap. 7 which has been extended only to New South Wales and enforce a foreign judgment? Grenada.
The relevant limitation period for an action on a foreign judgment 3.2 With reference to each of the specific regimes set out at common law would be, according to the Limitation Law of in question 1.1, does the regime specify a difference 2012 (Law 66(I)/2012), 15 years from the date when the judgment between recognition and enforcement? If so, what is became final. the difference between the legal effect of recognition and enforcement? For any foreign judgments issued before 31/12/2015, the time for the purposes of limitation starts running on 01/01/2016. As mentioned in question 2.3 above, only once a foreign judgment is put on the same footing as a Cypriot judgment can measures be 3 Special Enforcement Regimes Applicable taken for its enforcement. If the judgment creditor so wishes, an to Judgments from Certain Countries application under the Foreign Courts (Recognition, Registration and Enforcement by Convention) Law of 2000 (Law 121(I)/2000) can be made only for the recognition of the judgment without the need 3.1 With reference to each of the specific regimes set to request simultaneous enforcement. out in question 1.1, what requirements (in form and substance) must the judgment satisfy in order to be recognised and enforceable under the respective 3.3 With reference to each of the specific regimes set regime? out in question 1.1, briefly explain the procedure for recognising and enforcing a foreign judgment. In order to be recognised and enforced, a foreign judgment must, for the purposes of the Foreign Courts (Recognition, Registration For recognition and enforcement under the Foreign Courts and Enforcement by Convention) Law of 2000 (Law 121 (I)/2000), (Recognition, Registration and Enforcement by Convention) Law have been given by a court of a country with which the Republic of 2000 (Law 121 (I)/2000), an application by summons (that is of Cyprus has concluded a treaty of mutual recognition and with notice to the judgment debtor) accompanied by an affidavit enforcement of judgments and arbitration awards. As mentioned must be filed at the relevant court of the district where the judgment in question 2.1 above, such treaties have been entered into with debtor resides or, in case the judgment debtor resides out of Cyprus, Belarus (Rat. Law 172/1986), Bulgaria (Rat. Law 18/1984), China at the court of the district where the judgment creditor resides. Each (Rat. Law 19/1995), Czech Republic (Rat. Law 68/1982), Egypt bilateral treaty sets out the different documentation that needs to (Rat. Law 32/1992 and 14/1996), Georgia (Rat. Law 172/1986), accompany the application. For example, for judgments from the Greece (Rat. Law 55/1984), Hungary (Rat. Law 7/1983), Poland Russian courts, the application should be accompanied by: (a) the
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 61 Montanios & Montanios LLC Cyprus
original or certified copies of the judgment, together with a certificate 3. by sequestration of immovable property; to the effect that it is final and enforceable, unless this is evidence 4. by attachment of property; and from the judgment itself; (b) a document certifying that the party 5. by examining the judgment debtor in respect of his financial against whom the judgment was given had been duly notified and in situation and issuing an order to pay the judgment debt in sufficient time; and (c) a certified translation of all documentation. monthly instalments. The application will be fixed for hearing not later than four weeks Although strictly speaking not an enforcement method, if the from the date of its filing and the judgment debtor must be served with judgment debtor is unable to pay their debt, the judgment creditor a copy of the application and supporting affidavit without delay. If the may wish to initiate liquidation or bankruptcy proceedings. judgment debtor is not resident in Cyprus, no leave of the court to serve It should be noted that it has been held by the Cypriot courts that the
Cyprus the application out of jurisdiction is required. If the judgment debtor enforcement of a foreign judgment in Cyprus is governed by Cypriot wishes to oppose the application, a written opposition supported by law as the lex fori and not by the law of the country of origin of the an affidavit can be filed at least two days before the hearing date. In foreign judgment. Therefore, if the foreign judgment provides for a cases where, in the proceedings of the foreign court, there was no method of enforcement of the judgment, this would not be followed counterparty, the procedure for recognising and enforcing the foreign if such a method is not recognised under Cypriot law. judgment commences with an ex parte application (that is without notice) supported by an affidavit. 5 Other Matters 3.4 With reference to each of the specific regimes set out in question 1.1, on what grounds can recognition/ 5.1 Have there been any noteworthy recent (in the last enforcement of a judgment be challenged under the 12 months) legal developments in your jurisdiction special regime? When can such a challenge be made? relevant to the recognition and enforcement of foreign judgments? Please provide a brief description. The judgment debtor can oppose the recognition and enforcement of the foreign judgment only on the grounds that the court does not In a recent decision of the District Court of Larnaca (Decision date have jurisdiction or that the foreign judgment has been satisfied or 19 September 2017 in Application No 3/2016), the judge set aside a on the ground that some other particular prerequisite in the relevant previous order of the Court recognising for enforcement purposes, bilateral treaty has not been satisfied. The facts in support of the in the context of Brussels I Regulation, a judgment of the English opposition can be proved by affidavit or by oral evidence at any time High Court on the basis that its recognition would be contrary to during the recognition and enforcement proceedings. Furthermore, the public policy of Cyprus. The Court held that the Plaintiffs in it has been held by the Cypriot courts that the court has the inherent the English action had no right to sue the defendant as they had power to consider if a judgment satisfies the requirements for assigned their rights under the relevant contracts to another party. recognition and enforcement even if this was not raised by the Further, the Court held that the recognition order should also be set judgment debtor in their opposition. aside for public policy reasons due to the fact that the Cypriot Courts had exclusive jurisdiction on the matter as the issue concerned 4 Enforcement immovable property in Cyprus.
5.2 Are there any particular tips you would give, or 4.1 Once a foreign judgment is recognised and enforced, critical issues that you would flag, to clients seeking what are the general methods of enforcement to recognise and enforce a foreign judgment in your available to a judgment creditor? jurisdiction?
Once a foreign judgment is recognised, all methods for execution It is important that care is taken to present the necessary would be available as if it was a judgment issued by a Cypriot court. documentation to the court and, where this is required (for example, The most common methods of execution of a foreign judgment in a number of bilateral treaties and where enforcement of arbitral would be the following: awards is sought under the New York Arbitration Convention), that 1. by seizure and sale of movable property; correctly certified documents are produced, as failure to do so can 2. by sale of or making the judgment a charge on immovable lead to the dismissal by the court of an application for recognition property; and enforcement.
62 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Montanios & Montanios LLC Cyprus
Yiannis Papapetrou Montanios & Montanios LLC Diagoras House, 16 Pantelis Catelaris Street 1097 Nicosia Cyprus
Tel: +357 2266 0766 Email: [email protected] URL: www.montanioslaw.com.cy Cyprus Yiannis Papapetrou read law at the University of Warwick, England and was awarded an LL.B. Honours Degree in 2000. He was called to the Bar of England and Wales by the Honourable Society of Lincoln’s Inn in 2001 after completing the Bar Vocational Course with BPP Law School in London. In 2002, he obtained an LL.M. Degree in Maritime Law from King’s College, University of London. Yiannis joined Montanios & Montanios LLC in 2002 as a trainee advocate and was admitted to the Cyprus Bar in 2003. He became a partner of the firm in 2014 and practises in its Litigation and Dispute Resolution Department. Yiannis has experience of advising clients and correspondents on a wide range of contentious matters, particularly those with a multijurisdictional element and with particular emphasis on commercial, maritime and admiralty law. Yiannis also has experience in the area of international arbitration and corporate insolvency. Yiannis is also a licensed insolvency practitioner. Throughout his career, Yiannis has represented clients before the Supreme Court and the District Courts of Cyprus. Yiannis has acted as an expert on Cypriot law in a number of proceedings held in courts of other jurisdictions.
Montanios & Montanios (“M&M”) is one of the oldest law firms in Cyprus with an international practice. Over the last 65 years, it has acted for a wide spectrum of Cypriot and overseas clients, both corporate and private. It has been involved in a great number of local and international shipping, corporate, finance and commercial transactions and has represented litigation clients before all Cypriot Courts. The firm was founded in 1951 by the late Michael Montanios, a barrister-at-law of the Middle Temple (London), in the port city of Famagusta. In 1966, Eric Montanios joined the law practice of his father, which was then registered as a partnership under the name of “Montanios & Montanios – Advocates & Legal Consultants”. From 1951 to 15 August 1974, when the Turkish army of invasion occupied the city of Famagusta, the chambers of the firm were situated in Famagusta. As from 1 September 1974, the practice was relocated to Limassol, and in 1979, the partners decided to set up the firm’s head chambers in the capital city of Nicosia, whilst continuing the operation of the Limassol office. In 2010, following the amendment of the Advocates Law, the M&M partnership was incorporated as an LLC.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 63 Chapter 12
Czech Republic Richard Gürlich
Gürlich & Co. Kamila Janoušková
Cooperation in Criminal Matters, as amended (hereinafter referred 1 Country Finder to as the “IJCCM”).
1.1 Please set out the various regimes applicable 2.2 What constitutes a ‘judgment’ capable of recognition to recognising and enforcing judgments in your and enforcement in your jurisdiction? jurisdiction and the names of the countries to which such special regimes apply. Judgments capable of recognition and enforcement are decisions of the courts of another state and decisions of foreign state authorities Applicable Law/ Relevant Corresponding on the rights and obligations which, in accordance with their Statutory Regime Jurisdiction(s) Section Below private law nature, have been the subject of judgments in the Czech Private law matters; Republic, as well as foreign court judgments and foreign notarial Act No. 91/2012 applies to all and other authentic instruments in these matters, if they have become Sb., on Private jurisdictions unless Section 2. International Law, as relevant international legally valid under the authority of the relevant foreign authority. amended. or European law provides otherwise. 2.3 What requirements (in form and substance) must a Criminal law Act No. 104/2013 foreign judgment satisfy in order to be recognised matters; applies to all Sb., on International and enforceable in your jurisdiction? jurisdictions unless Judicial Cooperation Section 2. relevant international in Criminal Matters, law provides There are no special requirements regarding the form or substance as amended. otherwise. of foreign judgments in order to be recognised and enforced in the The European Union Czech Republic. (related issues are not Judgments or other decisions of foreign authorities as well as foreign discussed in detail within this chapter) judicial settlements and foreign notary or other public documents and international may be effective in the Czech Republic if they have come into agreements bind their International legal force (which has been confirmed by the appropriate foreign parties and therefore agreements and law authority) and if they have been recognised by the Czech public limit their jurisdiction Section 3. of the European to them (besides authorities (please see question 2.7 for decisions which cannot be Union. members of the EU, recognised). the Czech Republic has concluded other relevant treaties, 2.4 What (if any) connection to the jurisdiction is required for example, with for your courts to accept jurisdiction for recognition Tunisia). and enforcement of a foreign judgment?
No special connection with jurisdiction is required to recognise 2 General Regime and execute a foreign judgment; the procedure is described in more detail in question 2.6.
2.1 Absent any applicable special regime, what is the legal framework under which a foreign judgment would be 2.5 Is there a difference between recognition and recognised and enforced in your jurisdiction? enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively?
The fundamental legal framework in private law matters is provided Recognition and enforcement usually represent separate phases; for by Act No. 91/2012 Sb., on Private International Law, as amended however, sometimes the limitation between them is not exactly clear (hereinafter referred to as the “PIL”). (for example, in property matters the public authorities sometimes The fundamental legal framework in criminal law matters is take the foreign decision into account which represents both the provided for by Act No. 104/2013 Sb., on International Judicial recognition and enforcement).
64 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Gürlich & Co. Czech Republic
Nevertheless, recognition of a judgment is a process during which the Provided the court refuses to recognise the judgment, an appeal may court or other administrative body examines if the foreign judgment be filed within 15 days. satisfies conditions in order to be effective in the Czech Republic. Enforcement of the judgment may also be challenged within 15 Enforcement of a judgment is also a process, resulting in the coercion days, provided there are grounds indicating the enforcement should of a person having a debt or other obligation to fulfil such a debt not be ordered (for example, if a debt is already paid off), new or obligation as it stems from an enforceable judgment, provided evidence or statements may be claimed. it is not carried out voluntarily. This process usually follows the In criminal matters, the judgment cannot be recognised on the recognition which is a kind of prerequisite for it. following grounds: a) the requirements for recognition were not fulfilled, those 2.6 Briefly explain the procedure for recognising and being: enforcing a foreign judgment in your jurisdiction. i. an international agreement safeguards the procedure or
reciprocity is guaranteed; Czech Republic Foreign judgments in private matters are recognised on the basis ii. the punishable act fulfils the requirements for a criminal of a special “recognition” judgment. Such a judgment is delivered offence according to the applicable Czech legislation; by district courts, i.e. the general court of the party which proposes iii. the judgment was issued in proceedings which respected the recognition or in whose district any fact which is significant for human rights and basic freedoms; recognition has occurred or could occur, provided the conditions iv. the punishable act is not solely of a political or military for recognition are met (please see question 2.7 for further details). nature; According to PIL, the recognition of a foreign judgment regulating v. the limitation period for enforcement of such punishment property matters is not announced by means of such a special has not expired yet; judgment. The recognition is represented by the fact that the Czech vi. there were no previous proceedings conducted in the public authorities take the judgment into account as if it was their Czech Republic in the same matter which resulted in own decision. the delivery of a judgment or otherwise a termination of In criminal matters, proceedings are initiated based on a proposal by proceedings, unless the decision is null and void; the Ministry of Justice or on request of a foreign country to detain vii. the Czech Republic did not recognise a decision of another a person, against whom the judgment is issued, in custody. The country in the same matter; recognition proceedings take place before regional courts. If all viii. the offender is held liable for criminal offences in the of the requirements necessary to recognise a foreign judgment are Czech Republic; fulfilled (please see question 2.7 for further details), the court issues ix. the offender is a citizen of the Czech Republic (exceptions a judgment on recognition. In certain cases, the court is allowed to apply); and adjust the penalty in accordance with Czech law. x. the person does not enjoy immunities or is not excluded Please see question 4.1 for further details about the enforcement from the jurisdiction of public authorities; procedure. b) the offender against whom the judgment was issued died or was declared dead; or c) it is obvious that enforcement of the foreign judgment would 2.7 On what grounds can recognition/enforcement of a be impossible, especially if the offender’s stay is unknown. judgment be challenged? When can such a challenge be made? A decision on recognition may be challenged by an appeal within three days. Enforcement of an effective judgment cannot be In private matters, it is not possible to recognise a final foreign contested any further. judgment, if: a) the matter is subject to the exclusive jurisdiction of the Czech 2.8 What, if any, is the relevant legal framework applicable courts, or if the proceedings could not have been carried out by to recognising and enforcing foreign judgments any foreign authority provided that the provisions concerning relating to specific subject matters? the jurisdiction of the Czech courts have been applied in the foreign jurisdiction, unless the participant against whom the Except for the above-mentioned, there are several separate areas judgment is made has voluntarily submitted the case to the regulated by PIL which are governed by special provisions, such as the jurisdiction of such foreign authority; judgment on limitation of legal capacity and guardianship (recognised b) there are ongoing proceedings before a Czech court with without any further proceedings), the judgment on a person declared regard to the same legal matter, which were commenced prior dead or missing (recognised without any further proceedings), etc. to the proceedings abroad; In criminal matters, IJCCM makes special provisions, for example, c) the matter has already been decided before a Czech court and a valid judgment was issued by a Czech court, or if a valid foreign on recognition of judgments on compensatory measures for judgment has already been recognised in the Czech Republic; imprisonment, monetary sanctions, seizure of assets, suspended sentence, etc. The particular punishment may be modified in order d) a participant in the proceedings, with regard to whom the judgment is to be recognised, was not allowed by procedures to comply with the Czech system. of a foreign authority to participate in the proceedings before this foreign authority, especially if no summons or the motion to commence the proceedings was delivered to the participant; e) such recognition would clearly contravene public order; or f) reciprocity has not been guaranteed (not required if Czech citizens or Czech legal entities are not concerned by the foreign judgment).
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 65 Gürlich & Co. Czech Republic
2.9 What is your court’s approach to recognition and 2.13 What is the relevant limitation period to recognise and enforcement of a foreign judgment when there is: (a) a enforce a foreign judgment? conflicting local judgment between the parties relating to the same issue; or (b) local proceedings pending The statute of limitation is governed by the same provisions as the between the parties? particular right or crime in question. There is no special limitation period regarding bringing an action to declare a judgment recognised Private matters: and enforceable. a) PIL states that if a Czech court has already issued a valid With regard to private law, the length of the limitation period is judgment about the same legal relations or if the valid judgment of the body of a third state has already been usually three years. Different rules may apply in cases expressly recognised in the Czech Republic, it is not possible to stipulated by the applicable legislation. recognise a final and conclusive foreign judgment.
Czech Republic The limitation period usually begins from the date on which the b) If there are ongoing proceedings before a Czech court with right could be exercised for the first time. A right may be exercised regard to the same legal relations and if said proceedings for the first time once the entitled person becomes aware ofthe commenced prior to the proceedings abroad, it is not possible circumstances or when he or she should and could have learnt about to recognise a final and conclusive foreign judgment. them. Criminal matters: With regard to criminal law matters, the limitation period depends a) If a Czech court has already issued a valid judgment about on the particular crime or the punishment given. the same legal matter or if the valid judgment of the body of a third state has already been recognised in the Czech Republic, it is not possible to recognise a final and conclusive 3 Special Enforcement Regimes Applicable foreign judgment. to Judgments from Certain Countries b) Previous proceedings in the same matter (terminated even without delivery of a judgment) create an obstacle causing an inability of a court to recognise the judgment; however, 3.1 With reference to each of the specific regimes set ongoing proceedings do not limit the recognition. out in question 1.1, what requirements (in form and substance) must the judgment satisfy in order to be recognised and enforceable under the respective 2.10 What is your court’s approach to recognition and regime? enforcement of a foreign judgment when there is a conflicting local law or prior judgment on the same or According to PIL, there are three regimes governing recognition of a similar issue, but between different parties? foreign judgments: a) Section 14 of PIL sets forth the basic regulation for The only limitation to recognition of such judgment is a clear recognition of foreign judgments. For further information, contravention of public order; similar decisions concerning different please see section 2 of this chapter. parties do not create an obstacle. b) Section 17 (and the following) of PIL provides regulation for PIL states that the provisions of any foreign body of laws which are proceedings on recognition of foreign judgments which (on supposed to be used based on provisions of PIL cannot be applied the basis of the EU legislation or an international agreement) if the effects of any such application would clearly contravene require a declaration of ability in order to be enforced in the Czech public order. It is also not possible to recognise any foreign Czech Republic. judgments, foreign court settlements, foreign notary or other public c) Finally, there is a third group of judgments which are documents or foreign arbitration judgments or to implement any automatically recognised and enforceable, i.e. directly, procedural acts requested from abroad or to recognise any legal without any declaration or decision issued by the Czech matters or facts which have arisen abroad or according to a foreign authorities (such as a European Enforcement Order, etc.). body of laws on the same grounds, i.e. if they contravene the public Special regimes set forth by international agreements may be order. applied, too. For example, the International Agreement on Legal Aid with Tunisia (40/1981 Coll.) may be applied. Judgments or 2.11 What is your court’s approach to recognition and other decisions by Tunisia are recognised, provided they fulfil the enforcement of a foreign judgment that purports to requirements set out in the Agreement, i.e. if they concern private apply the law of your country? law matters (commercial, civil, family or personal status matters), criminal law matters or if they represent an amicable solution of a The Czech courts do not examine the content, i.e. interpretation of dispute reached before Tunisian public authorities and are able to be the Czech law by a foreign court provided the judgment fulfils the recognised and enforced in the Czech Republic (please see question requirements to be recognised and does not contravene the public 3.4 for further details). order. Please see questions 2.7 and 2.10 for further details. 3.2 With reference to each of the specific regimes set out 2.12 Are there any differences in the rules and procedure in question 1.1, does the regime specify a difference of recognition and enforcement between the various between recognition and enforcement? If so, what is states/regions/provinces in your country? Please the difference between the legal effect of recognition explain. and enforcement?
No, there are no states/regions/provinces with a different set of rules. No; the definition for legal relationships with, for example, Tunisia, is the same as described in question 2.5.
66 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Gürlich & Co. Czech Republic
A judgment imposing a monetary payment may be enforced by 3.3 With reference to each of the specific regimes set various means, especially by seizure of property, mandatory out in question 1.1, briefly explain the procedure for deductions from wage, sale of movable or immovable assets or recognising and enforcing a foreign judgment. forced administration of a business. Enforcement of a judgment imposing an obligation other than A request for recognition of a decision issued in Tunisia may be monetary payment depends on the nature of the imposed obligation. filed by the parties to a dispute to the public authority of the Czech It can be carried out especially by means of compelled provision of Republic having relevant jurisdiction, or to the public authority works or other performances. which delivered the decision in question in the first instance. The request must be accompanied with a verified copy of the decision, Enforcement of judgments in criminal matters is carried out confirmation of legal force and enforceability, confirmation that the especially under provisions of Act No. 141/1961 Sb., Criminal person in whose absence the decision was delivered was properly Procedure Code, as amended, and other relevant legislation and and timely summoned and verified translation of all the documents, depends on the nature of the particular punishment. The particular Czech Republic including the request itself. court having jurisdiction over the matter in question safeguards the enforcement (for example, sets the conditions of payment for A request for enforcement may be filed together with the request monetary punishments or sets the place, time or manner in which for recognition. the punishment will be carried out). In order for the process to be successfully completed, the public authority reviews only whether all the formal requirements for the request have been fulfilled and whether there are no obstacles 5 Other Matters to recognise and enforce the decision (please see question 3.4 for further details). 5.1 Have there been any noteworthy recent (in the last 12 months) legal developments in your jurisdiction 3.4 With reference to each of the specific regimes set out relevant to the recognition and enforcement of foreign in question 1.1, on what grounds can recognition/ judgments? Please provide a brief description. enforcement of a judgment be challenged under the special regime? When can such a challenge be made? There was no significant legal development relevant to the recognition and enforcement of foreign judgments in the last 12 In private matters, it is possible to recognise a final Tunisian decision months. The amendment of relevant acts according to the Regulation only if: (EU) No. 650/2012 of the European Parliament and of the Council a) the decision was issued by a public authority having relevant on jurisdiction, applicable law, recognition and enforcement of jurisdiction; decisions and acceptance and enforcement of authentic instruments b) the decision has legal force and it is enforceable according to in matters of succession on creation of European Certificate the Czech legal order; of Succession, was made in 2016. The European Certificate c) recognition or enforcement shall not impair sovereignty, of Succession and the proceedings related to its issuance were safety, public order or other basic rules of the legal order of regulated. The Regulation is directly effective; however, the Czech the Czech Republic; legislation was amended to ensure legal certainty and regulate some d) the Czech Republic did not issue a decision on the same issue related issues (such as procedure, fees, etc.). having legal force; and Following the recent legal changes in the Czech substantial private e) the person against whom the decision is issued attended the law (its whole recodification), it is inevitable that the new Civil court hearing, or if not, the person was properly and timely Procedure Code will also be adopted. The timeframe for such summoned (public notice is not regarded as a proper and amendment is, however, not yet certain. timely summons).
5.2 Are there any particular tips you would give, or 4 Enforcement critical issues that you would flag, to clients seeking to recognise and enforce a foreign judgment in your jurisdiction? 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement As both the process of recognition and enforcement before Czech available to a judgment creditor? courts may be very time-consuming, we would definitely recommend the client to start the process of recognition as soon as possible. Enforcement of judgments in private matters is generally regulated In the same way, having time management in mind with regard by Act No. 99/1963 Sb., Civil Procedure Code, as amended, and to enforcement proceedings, using the services of bailiffs may be Act No. 120/2001, on the Bailiffs and Enforcement Procedure, recommended over the enforcement procedures carried out by the as amended. On the basis of these, either a court or a bailiff may court as these may be considerably slower because the courts deal enforce a judgment. Enforcement is ordered by a special decision. with a broader agenda.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 67 Gürlich & Co. Czech Republic
Richard Gürlich Kamila Janoušková Gürlich & Co Gürlich & Co Politických vězňů 19, 110 00 Politických vězňů 19, 110 00 Prague 1 Prague 1 Czech Republic Czech Republic
Tel: +420 222 101 591 Tel: +420 222 101 591 Email: [email protected] Email: [email protected] URL: www.akrg.cz URL: www.akrg.cz
Richard Gürlich is the managing partner and founder of Gürlich & Co. Kamila Janoušková is an associate at Gürlich & Co. She graduated He is a graduate of the Law Faculty of Charles University in Prague. from the Law Faculty of Charles University in Prague. She is the Czech Republic He is a member of the Czech Bar Association and the International member of the Czech Bar Association. Her expertise includes Association for Contract & Commercial Management (“IACCM”). commercial law and business corporations, bankruptcy, civil law, civil procedure and real estate law. Richard has extensive experience in public procurement in the European Union, corporate law and business transactions, and his expertise also includes legal matters relating to real estate (i.e. the arrangement of developer projects, property transfers, lease and sublease agreements, etc.) and labour law. Richard Gürlich was awarded “Best Lawyer” of the year by ICFM Leading Lawyer 500 in 2016 and by LegalComprehensive in 2017.
Gürlich & Co. is a developed law firm with expertise in various branches of law. The firm’s main specialties include public procurement in the European Union, intellectual property, real estate, corporate and business law. Our law firm also organises seminars and lectures on the issues of intellectual property, public procurement and on the Civil Code. Our law firm is a member of the Association of European Lawyers (“AEL”) and as such we are part of an extensive network of independent law firms who work together on cross-border transactions and multi-jurisdictional casework. We have been the winners of many prestigious awards in various areas of Law since 2010. As for the newer ones, in 2017 we were awarded “The Best Law Firm” of the year by LegalComprehensive Golden Global Awards and Law and Real Estate Law Firm of the year in 2017 by Corporate INTL Magazine. We provide legal services in both Czech and English.
68 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Chapter 13
England & Wales Louise Freeman
Covington & Burling LLP Chiz Nwokonkor
1 Country Finder Applicable Law/ Relevant Corresponding Statutory Regime Jurisdiction(s) Section Below All Member Hague Convention States of the EU 1.1 Please set out the various regimes applicable on Choice of Court (except Denmark) See Sections 2 and 5. to recognising and enforcing judgments in your Agreements (Hague and Mexico and jurisdiction and the names of the countries to which Convention). Singapore. such special regimes apply. Statutory Regimes Many Caribbean Applicable Law/ Relevant Corresponding countries/former Statutory Regime Jurisdiction(s) Section Below British dominions EU Regime* including Bermuda, British Virgin Islands, EU Regulation Cayman Islands; 1215/2012 on and several African jurisdiction and Administration of nations including the recognition and Justice Act 1920 Ghana, Kenya, See Section 3. enforcement of (“AJA”). Nigeria, Uganda, judgments in civil All Member States Tanzania, Zambia and and commercial of the EU (except See Section 2. Zimbabwe. Other matters (Brussels Denmark). principal countries Recast Regulation) include Republic applicable to legal of Cyprus, Malta, proceedings instituted New Zealand and on or after 10 January Malaysia. 2015. Mainly countries in EU Regulation the Commonwealth 44/2001 on such as Australia, jurisdiction and Foreign Judgments Canada (except the recognition and (Reciprocal Quebec), India, See Section 3. enforcement of Enforcement) Act Guernsey, Jersey, judgments in civil 1933 (“FJA”). Isle of Man, Israel, and commercial All Member States of See Section 2. Pakistan, Suriname matters (Brussels the EU. and Tonga. Regulation) applicable to General Regime judgments given in Countries to which legal proceedings none of the above instituted before 10 specific statutes/ January 2015. English common law regulations apply See Section 2. Convention on regime. including USA, jurisdiction and China (including the enforcement of Hong Kong), Russia judgments in civil and Brazil. Iceland, Norway and and commercial See Section 2. Switzerland. matters signed *Please see Section 2 for further information on the EU recognition in Lugano on 30 and enforcement regime. October 2007 (Lugano Convention).
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 69 Covington & Burling LLP England & Wales
c) the person against whom the judgment was given submitted 2 General Regime to the jurisdiction of that court by voluntarily appearing in the proceedings (which will not include submitting arguments on the merits where under local law, a challenge to jurisdiction 2.1 Absent any applicable special regime, what is the legal can only be brought in conjunction with such arguments on framework under which a foreign judgment would be the merits); or recognised and enforced in your jurisdiction? d) the person against whom the judgment was given had, before the commencement of the proceedings, agreed, in respect The recognition and enforcement of foreign judgments in England of the subject matter of the proceedings, to submit to the and Wales which fall outside the scope of the special EU and jurisdiction of that court or of the courts of that country. statutory regimes listed above are dealt with under English common law. Only final judgments for payment of a definite sum ofmoney (save for taxes, fines or penalties) can be enforced under common The procedure for enforcement of such foreign judgments is set out law. This means, for example, that injunctions, interim orders England & Wales in Part 74 of the English Civil Procedure Rules (“CPR”). and other judgments obtained from foreign courts for specific performance, payment into court or a declaration/dismissal of a 2.2 What constitutes a ‘judgment’ capable of recognition claim/counterclaim can be recognised but cannot be enforced under and enforcement in your jurisdiction? English common law. The English court can sever parts of a foreign judgment for the In English law, a judgment is considered to be any judgment given purposes of enforcement proceedings, i.e. it can enforce the payment by a court or tribunal, whatever it may be called. CPR 74.2(c) obligations set out in the foreign judgment, disregarding any other provides that a foreign “judgment” in the context of enforcement in parts of the foreign judgment which do not constitute an obligation England includes a decree, an order, a decision, a writ of execution to pay a specified sum of money. Therefore, the existence of other or a writ of control, and a determination of costs by an officer of obligations in conjunction with those of a monetary payment does the court. not necessarily exclude a foreign judgment from enforcement under Similarly, the Lugano Convention (at Article 32), the Brussels the common law. Regulation (at Article 32) and the Brussels Recast Regulation (at Article 2(a)) all stipulate that “judgment” means any judgment 2.4 What (if any) connection to the jurisdiction is required given by a court or tribunal whatever a judgment may be called, for your courts to accept jurisdiction for recognition including a decree, order, decision or writ of execution as well as and enforcement of a foreign judgment? the determination of costs or expenses. These instruments therefore do not preclude from their scope non-money judgments and interim The courts of England and Wales have jurisdiction to decide on orders, including injunctions. questions of enforcement at common law without any need to The AJA (at section 12) provides that “judgment” means any establish a degree of connection with England or Wales (CPR judgment or order given or made by a court in any civil proceedings, Practice Direction 3.1(10)). A court may, however, conclude that whereby any sum of money is payable. The FJA has a similar it is not the most convenient forum if there is no real connection to definition at section 11, defining a judgment as a judgment or order the jurisdiction. given or made by a court in any civil or criminal proceedings for the payment of a sum of money in respect of compensation or damages 2.5 Is there a difference between recognition and to an injured party. Accordingly under these two Acts, as well as at enforcement of judgments? If so, what are the legal common law, non-money judgments and interim orders, including effects of recognition and enforcement respectively? injunctions, are not enforceable. Before a judgment can be enforced it must first be recognised. 2.3 What requirements (in form and substance) must a The distinction is made for the reason that a judgment of a foreign foreign judgment satisfy in order to be recognised court cannot operate outside of its own territorially circumscribed and enforceable in your jurisdiction? jurisdiction without the medium of the English courts. Therefore, all foreign judgments enforced by English courts are recognised but As noted above, in order for a foreign judgment to be recognised and not all recognised judgments are enforced. For example, a judgment enforced at common law, it must be final, binding and conclusive. in rem against an asset outside of England and Wales cannot be A foreign judgment is only considered final and binding where it enforced for the reason that the assets fall outside of the jurisdiction would have precluded the unsuccessful party from bringing fresh of the English court; however, a party may seek recognition of proceedings in that foreign jurisdiction. If a foreign judgment is the that judgment for several reasons, such as defending claims within subject of appeal in that jurisdiction, the English courts are likely England or relying on the findings of the foreign judgment in other to grant a stay on enforcement proceedings pending the outcome proceedings (res judicata). of that appeal. Enforcement follows recognition and is required for the execution The common law rules also require the judgment to be enforced to of the award, i.e. compelling a party to pay the sum of money have been rendered by a court of competent jurisdiction, which is ordered by the foreign court. taken to mean one of the following: a) the person against whom the judgment was given was, at the 2.6 Briefly explain the procedure for recognising and time the proceedings were instituted, present in the foreign enforcing a foreign judgment in your jurisdiction. country; b) the person against whom the judgment was given was In order to recognise and enforce a judgment at common law, the claimant, or counterclaimed, in the proceedings in the foreign party seeking enforcement (the claimant) must commence a new court; claim (by issuing a Claim Form) as one would for any other claim.
70 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Covington & Burling LLP England & Wales
The claimant must also file and serve “particulars of claim” on intellectual property, etc. These regimes are either incorporated into the 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, the European Parliament or treaties to which the UK is a party), which may require permission to serve the proceedings out of the or are given effect through the enactment of national legislation. jurisdiction, further complicating and/or delaying the process. Once The Cross-Border Insolvency Regulations 2006 (SI 2006/1030), service is effected, the process is then usually expedited by the 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. the 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 relating
Note, however, the issues highlighted below at question 2.7 d) in to the same issue; or (b) local proceedings pending England & Wales relation to the enforcement of foreign judgments given in default between the parties? and against defendants that have not expressly submitted to the jurisdiction of the foreign court, which may affect the amenability Under common law, the defendant is entitled to challenge of 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. Recognition and enforcement under the common law regime may If proceedings are ongoing in an English court between the parties be challenged by the defendant on the following grounds: at the time when one of the parties seeks recognition or enforcement of a foreign judgment on the same issue(s), the English court is a) the foreign judgment is not final and conclusive. A final judgment is one that is final in the court in which the judgment likely to stay the English proceedings until the judgment creditor’s was made and may not be re-adjudicated by the same court; claim for recognition and enforcement has been determined. The principle of res judicata is applied by the English court equally in b) the foreign court did not have jurisdiction over the parties. A foreign judgment is only enforceable if the foreign court cases where the issue has already been decided by a competent court had jurisdiction according to English principles of private in a foreign jurisdiction. international law. It is not sufficient if the foreign court had jurisdiction according to its own legal rules; 2.10 What is your court’s approach to recognition and c) the judgment is contrary to the public policy of England; enforcement of a foreign judgment when there is a d) the foreign judgment offends the principles of natural justice conflicting local law or prior judgment on the same or or substantial justice enshrined in the English legal system; a similar issue, but between different parties? for example, if the defendant was not given due notice of the original proceedings (with the result that judgment was Generally, the basis for challenging enforcement under common law obtained in default) or was not given a fair opportunity to be will not include an investigation of the merits of the claim/award heard; being enforced. A foreign judgment may not therefore be challenged e) the judgment was fraudulently obtained; on the grounds that the foreign court was manifestly wrong on the f) recognition of the foreign judgment would result in the merits of the case or misapplied the relevant law. However, if the contravention of the Human Rights Act 1998; foreign court’s judgment conflicts with an existing English law or if g) the dispute in question should be submitted to the the foreign judgment is irreconcilable with an English judgment on determination of the courts of another country; the same issues, then the court may refuse to recognise the foreign h) the judgment imposes a fine or a penalty upon the judgment judgment on grounds that its recognition and enforcement would be debtor; and contrary to public policy. i) there exists a previous final and conclusive judgment of a competent foreign or English court with sufficient jurisdiction 2.11 What is your court’s approach to recognition and that conflicts with the judgment that is being sought tobe enforcement of a foreign judgment that purports to enforced. apply the law of your country? These challenges can be made by the defendant in the proceedings issued for the recognition or enforcement of the judgment. These A judgment of a foreign court purporting to apply English law grounds can be relied upon in the evidence submitted by the judgment would be treated the same as any other foreign judgment. A foreign debtor resisting the claimant’s summary judgment application judgment is not open to challenge on the ground that it misapplies under CPR Part 24 or employed as defences to recognition and English law. enforcement.
2.12 Are there any differences in the rules and procedure 2.8 What, if any, is the relevant legal framework applicable of recognition and enforcement between the various to recognising and enforcing foreign judgments states/regions/provinces in your country? Please relating to specific subject matters? explain.
There are several specific regimes pertaining to enforcement of The United Kingdom does not constitute a legal union, as the laws judgments on specific subject matters such as shipping, aviation, of England and Wales differ from those of Scotland and Northern
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 71 Covington & Burling LLP England & Wales
Ireland. Enforcement of foreign judgments in Scotland and Northern Ireland are subject to their domestic jurisdictional and procedural 3.2 With reference to each of the specific regimes set out rules, which are not addressed here. in question 1.1, does the regime specify a difference between recognition and enforcement? If so, what is All Scottish and Northern Irish judgments, granting both the difference between the legal effect of recognition monetary and non-monetary relief (including injunctive relief and enforcement? and declarations) are recognisable and enforceable in England and Wales under the Civil Jurisdiction and Judgments Act 1982. As The AJA and FJA require foreign judgments to be registered in such, there are no types of judgment excluded from recognition and England before they can be enforced. enforcement if they have been granted by courts of Scotland and As stated above, under the AJA, the English court retains a Northern Ireland, as long as they are final in the court that granted discretionary power to register foreign judgments that it finds just the judgment in question and there are no outstanding appeals. and convenient to enforce.
England & Wales Under the powers specified in the FJA, the court must register 2.13 What is the relevant limitation period to recognise and judgments that fulfil certain criteria, such as the judgment being for enforce a foreign judgment? a specified sum of money and the court that granted the judgment having had jurisdiction over the parties and issues, in accordance Pursuant to section 24(1) of the Limitation Act 1980, the limitation with its own legal system and rules, as well as in accordance with period to commence a claim to enforce a foreign judgment at English law principles. common law is six years from the date of the foreign judgment Once a foreign judgment has been registered in England, that sought to be recognised and enforced. judgment, as from the date of registration, has the same force and effect as an English judgment and enforcement proceedings can be 3 Special Enforcement Regimes Applicable brought in respect of it as if it was a judgment originally obtained in to Judgments from Certain Countries England. The methods of enforcement described at question 4.1 below therefore become available to the judgment creditor upon registration.
3.1 With reference to each of the specific regimes set 3.3 With reference to each of the specific regimes set out in question 1.1, what requirements (in form and out in question 1.1, briefly explain the procedure for substance) must the judgment satisfy in order to be recognising and enforcing a foreign judgment. recognised and enforceable under the respective regime? Under the AJA and FJA, the application for registration must be All judgments for the payment of a sum of money obtained from the made at the High Court and may be made without notice to the ‘superior’ courts of Commonwealth countries covered by the AJA judgment debtor. The judgment creditor must file an authenticated can be registered in England if, in all the circumstances of the case, copy of the judgment of which recognition and enforcement is the English court in its discretion finds it just and convenient that the sought, an English translation (if necessary) of the judgment (which judgment should be enforced in England. must be certified by a notary public) and a witness statement in support of the application in the form set out in CPR Part 74.4. The FJA (like the common law regime) only covers final and conclusive judgments for payment of a sum of money (other than The application for registration and written witness evidence must penalties and taxes). specify the grounds for enforcement, the amount in respect of which the foreign judgment remains unsatisfied, and the amount of interest Failure to serve proceedings on the defendant in order to enable it to claimed. In the case of registration under the FJA, the written defend the action is a ground on which recognition and enforcement evidence must also specify that the judgment is a money judgment of the foreign judgment may be refused under the AJA and FJA. and confirm that it can be enforced by execution in the state of origin. However, a mere procedural irregularity in service will not render the foreign judgment unenforceable. The defendant would have to Where the application for enforcement is challenged on the grounds set show that it was not made aware of the proceedings as opposed to out in question 3.4 below, the foreign court may be required to provide being formally served in time in order to succeed on this defence. a declaration of enforceability upon the consideration of the merits of the opposition to the application. An application for the declaration In order for the foreign judgment to be registered, the AJA and FJA of enforceability must be made under CPR Part 23 using Form N244. require that the foreign court should have had jurisdiction over the parties and the relevant issues in dispute according to English law Once an order granting permission to register the foreign judgment principles. It is not sufficient that the foreign court had jurisdiction has been granted by the English court, the order must be served according to its own rules. on the judgment debtor by delivering it personally, by any of the methods of service permitted under the Companies Act 2006, or as Under the AJA, the foreign judgment must be registered within directed by the court. Permission to serve the registration out of the one year from the date of the final judgment sought to be enforced, jurisdiction is not required. although the English court retains the discretion to accept registrations after the lapse of the stipulated period. Under the FJA, foreign judgments must be registered within six 3.4 With reference to each of the specific regimes set out in question 1.1, on what grounds can recognition/ years from the date of the final judgment sought to be enforced. If enforcement of a judgment be challenged under the there have been appeal proceedings, time runs from the date of the special regime? When can such a challenge be made? last judgment. The registration order which registers the judgment will specify the right of the judgment debtor to apply to have the registration set
72 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Covington & Burling LLP England & Wales
aside, the period within which such an application or appeal may f) Attachment of earnings order – The judgment creditor may be made and that no measures of enforcement will be taken before seek an order compelling an employer to deduct from an the end of that period, other than measures ordered by the court to employee’s salary (who is the judgment debtor) the sums preserve the property of the judgment debtor. necessary to pay the judgment creditor. Under the AJA and FJA, upon receipt of a registration order, the Pursuant to section 25 of the Civil Jurisdiction and Judgments Act judgment debtor can challenge the registration of the foreign 1982, the English court can also grant provisional/interim measures judgment on the following grounds: such as freezing injunctions in support of enforcement of foreign judgments pending enforcement proceedings in England. Such a) the court granting the judgment acted without jurisdiction. The foreign court must have jurisdiction according to English provisional measures are ordinarily granted only in circumstances law principles; where it would be expedient to do so and there is a sufficient jurisdictional link to England; for example, if the assets are located b) the defendant was not served with proceedings in accordance with the rules of the foreign court and did not appear in the in England or the defendant resides in England. proceedings; Pursuant to CPR 74.9(1), if the defendant has made an application England & Wales c) the judgment was obtained fraudulently; to set aside an order registering a foreign judgment, no steps can be d) the enforcement of the judgment would be contrary to public taken to enforce the judgment until the application has been decided. policy; e) the judgment imposes a fine or a penalty on the defendant; 5 Other Matters f) the judgment is not final and conclusive. The existence of a pending appeal can either defeat the enforcement action or, more likely, lead to a stay of the enforcement action pending 5.1 Have there been any noteworthy recent (in the last determination of the appeal; 12 months) legal developments in your jurisdiction g) the judgment has been wholly enforced in the jurisdiction of relevant to the recognition and enforcement of foreign the foreign court; and judgments? Please provide a brief description. h) there exists a previous final and conclusive judgment of a competent foreign or English court with sufficient jurisdiction In June 2016, the UK voted to leave the EU. The UK’s exit from the that conflicts with the judgment that is being sought tobe EU is likely to occur in March 2019. At the time of this publication enforced. going to print, there is no clarity or certainty regarding the terms of the UK’s exit from the EU. However, it seems certain that the The application to challenge registration must be made within the UK’s legal framework for enforcement of judgments will change as time specified in the registration order. The court may extend that a result. This is considered further in chapter 1. period.
5.2 Are there any particular tips you would give, or 4 Enforcement critical issues that you would flag, to clients seeking to recognise and enforce a foreign judgment in your jurisdiction? 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? Owing to the variety of regimes discussed above, it is particularly important for clients seeking to enforce a foreign judgment in England to consider first which of the many regimes in England Once a judgment is recognised/registered, a judgment creditor has would apply, in order to determine the procedural route to be taken available to it the same methods and options to enforce that judgment to achieve enforcement. or award against assets within England as it would if the original judgment had been made in England. Under the AJA and FJA, It is important to note that when determining whether the foreign enforcement proceedings cannot commence until the registration court had competent jurisdiction, the English courts will make this order has been served on the judgment debtor and the specified time determination according to the rules of English private international limit for the judgment debtor to challenge the registration has expired. law. The fact that the foreign court had jurisdiction according to its own law is not determinative. Potential methods of enforcement available to judgment creditors include but are not limited to: There is a particular risk in enforcing default judgments (i.e. a) Charging order – Such an order would confer upon the a judgment in which the defendant has not appeared) because judgment creditor an interest over the property (land, goods, they inevitably raise the question of whether the foreign court securities, etc.) of the judgment debtor within the jurisdiction. had jurisdiction in the first place and whether the parties did, b) Order for sale – An order to sell the assets of the judgment in fact, submit to the jurisdiction of that court. This is because, debtor subject to a Charging Order. under English law, there is no concept of implied submission to jurisdiction in personam, which means that the defendant must have c) Receivership order – This allows for the appointment of a court-appointed receiver who would help gather and ascertain expressly submitted to the jurisdiction of the foreign court in order the judgment debtor’s assets in order to facilitate payment of for a judgment in personam to be enforced by an English court. judgment debts. English law recognises sovereign immunity as a valid defence d) Third-party debt order – This allows the judgment creditor to to the enforcement of a foreign judgment against a State. This collect on the debts owed to the judgment debtor. Note: this is because proceedings commenced in England by a judgment order cannot be made against future or foreign debts. creditor for the purpose of enforcing a foreign judgment against e) Writ of control or warrant of control – This allows the a State do not qualify as “proceedings relating to a commercial judgment creditor to take possession of the judgment debtor’s transaction for the purposes of s.3(1) of the State Immunity Act goods to sell at auction or trade in satisfaction of the debt.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 73 Covington & Burling LLP England & Wales
1978”. The UK Supreme Court decision in NML Capital Ltd interpretation of the State Immunity Act 1978, enforcing judgments v Republic of Argentina ([2011] UKSC 31) confirms that a State against a State which has not expressly waived immunity in relation is able to raise sovereign immunity as a defence in respect of to enforcement proceedings is made particularly difficult as there enforcement proceedings of foreign judgments and awards, even if is little ammunition available to the judgment creditor seeking the underlying proceedings relate to commercial transactions unless to defeat a sovereign immunity defence. Furthermore, even if a the State has expressly waived sovereign immunity as a defence to judgment creditor is able to enforce a judgment against the State, enforcement (as it had on the facts of that case). In light of this there are restrictions on the type of assets available for enforcement.
Louise Freeman Chiz Nwokonkor Covington & Burling LLP Covington & Burling LLP England & Wales 265 Strand 265 Strand London WC2R 1BH London WC2R 1BH United Kingdom United Kingdom
Tel: +44 20 7067 2000 Tel: +44 20 7067 2000 Email: [email protected] Email: [email protected] URL: www.cov.com URL: www.cov.com
Louise Freeman focuses on complex commercial disputes, and co- Chiz Nwokonkor is an experienced commercial litigator and trade chairs the firm’s Commercial Litigation Practice Group. controls and investigations lawyer, having previously been a junior diplomat assigned to the UN Security Council with a portfolio Described by The Legal 500 as “one of London’s most effective encompassing several sanctions regimes. Her practice involves partners”, Ms. Freeman helps clients to navigate challenging situations advising in the areas of economic sanctions, bribery and corruption, in a range of industries, including financial markets, technology and life money laundering as well as fraud and international asset tracing. Ms. sciences. Most of her cases involve multiple parties and jurisdictions, Nwokonkor acts for a number of high-profile corporates in relation to where her strategic, dynamic advice is invaluable. sanctions and export controls compliance around technology transfer, Ms. Freeman’s experience in the financial services sector includes acquisitions/joint ventures and other aspects of international trade. mis-selling claims, negligence and misrepresentation claims, asset Ms. Nwokonkor’s practice extends to complex financial disputes management disputes and International Swaps and Derivatives litigation, with recent instructions including representing clients in Association (ISDA)-related disputes on behalf of investment banks, two of 2014’s landmark Commercial Court derivatives disputes. Ms. international corporate groups, asset managers, and credit rating Nwokonkor also conducts investigations and risk assessments for agencies. clients in numerous sectors and jurisdictions and delivers compliance Ms. Freeman also represents parties in significant competition litigation training to senior executives on cross-border risk under the UK Bribery proceedings, including the pioneering synthetic rubber cartel damages Act and other regulatory frameworks. action, which was named as a “standout” competition matter by the FT’s Innovative Lawyers 2015 and listed as one of The Lawyer ’s Top 20 Cases of 2014.
In an increasingly regulated world, Covington & Burling LLP helps clients navigate their most complex business problems, deals, and disputes. Founded in 1919, the firm has more than 850 lawyers in offices in Beijing, Brussels, London, Los Angeles, New York, San Francisco, Seoul, Shanghai, Silicon Valley, and Washington.
74 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Chapter 14
France Jacques-Alexandre Genet
Archipel Michaël Schlesinger
1 Country Finder 2 General Regime
1.1 Please set out the various regimes applicable 2.1 Absent any applicable special regime, what is the legal to recognising and enforcing judgments in your framework under which a foreign judgment would be jurisdiction and the names of the countries to which recognised and enforced in your jurisdiction? such special regimes apply. Subject to special regimes set out by EU regulations and bilateral or Applicable Law/ Relevant Corresponding multilateral conventions, the legal framework under which a foreign Statutory Regime Jurisdiction(s) Section Below judgment may be recognised and enforced in France is the French French Code of Code of civil procedure and the French Code of civil enforcement civil procedure, procedures, supplemented by the relevant case law regarding the French Code of All jurisdictions for numerous matters in which the codes remain silent. In a civil law civil enforcement which no EU or bilateral Section 2. jurisdiction like France, case law, whilst not being formally binding, procedures and conventions apply. corresponding case is highly persuasive on lower courts. law. State parties to 2.2 What constitutes a ‘judgment’ capable of recognition multilateral conventions and enforcement in your jurisdiction? including the Hague Convention of 30 June 2005 on Choice of For the purposes of EU Regulations, ‘judgment’ means any judgment Courts Agreements; given by a court or tribunal of a Member State, whatever the judgment the Convention on may be called, including a decree, order, decision or writ of execution, the Contract for the Multilateral International Carriage as well as a decision on the determination of costs or expenses by an Section 2. conventions. of Goods by Road officer of the court. This includes provisional, (including protective) of 19 May 1956; the measures ordered by a court or tribunal which, by virtue of these Convention concerning Regulations, has jurisdiction as to the substance of the matter. Hence, International Carriage for instance, an ex parte worldwide freezing order issued abroad may by Rail of 9 May 1980; and the Convention on be enforced in France after prior notice to the defendant. Third-Party Liability In France, any decision whatsoever from a foreign judge may qualify in the Field of Nuclear as a ‘judgment’ capable of recognition and enforcement in France Liability of 29 July 1960. if it has consequences on individuals or legal entities, assets, rights Algeria, Argentina, or liabilities. This includes both contentious and non-contentious Benin, Bosnia- proceedings. Herzegovina, Brazil, Burkina Faso, Rulings from foreign non-judicial authorities (e.g. administrative, Cameroon, Central religious, etc.) may also qualify as ‘judgment’ if they are issued by African Republic, a public authority in charge of a matter which, in France, would fall Chad, China, Congo Bilateral (Brazzaville), Djibouti, under the jurisdiction of a court or tribunal. conventions on Egypt, Gabon, Ivory Section 3. mutual judicial Coast, Laos, Macedonia, assistance. Madagascar, Mali, 2.3 What requirements (in form and substance) must a Mauritania, Morocco, foreign judgment satisfy in order to be recognised Mongolia, Montenegro, and enforceable in your jurisdiction? Niger, Senegal, Serbia, Togo, Tunisia, To be recognised and enforced in France, a foreign decision must United Arab Emirates, Uruguay, and Vietnam. qualify as a court judgment and be enforceable in its jurisdiction of origin, according to the law of that jurisdiction. It does not need to be final, and foreign judgments that are enforceable despite being subject to appeal can be recognised in France.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 75 Archipel France
The foreign judgment must have been rendered by a court having abroad, unless provided otherwise by special conventions on jurisdiction over the dispute. A foreign court is deemed to have international service, a special procedure applies. The bailiff must jurisdiction if it has tangible links with the dispute and if the matter hand over the act to be served to the public prosecutor who, in turn, does not fall under the exclusive jurisdiction of French courts. will transfer it through the Ministry of Justice and the Ministry of Additional requirements such as compliance with due process, Foreign Affairs to the relevant authority in the recipient’s country. It proper appearance in court, etc., are considered part of French is recommended practice to supervise the service process. The appeal public policy. As such, they are addressed in question 2.7 below. period is running only as of the effective reception to the recipient.
2.4 What (if any) connection to the jurisdiction is required 2.7 On what grounds can recognition/enforcement of a France for your courts to accept jurisdiction for recognition judgment be challenged? When can such a challenge and enforcement of a foreign judgment? be made?
French law does not require any specific connection to France to accept A foreign judgment may only be challenged on the grounds that: jurisdiction for recognition and enforcement of a foreign judgment. (i) It does not meet the conditions set out in question 2.3 above. (ii) The judgment is incompatible with French international public policy. 2.5 Is there a difference between recognition and enforcement of judgments? If so, what are the legal Under international public policy, French courts exercise more effects of recognition and enforcement respectively? restraint, and show greater deference to foreign courts than under domestic public policy. Examples of international public policy French law distinguishes between the recognition and enforcement requirements are: proper service to the defendant; reasonable time of judgments. afforded to the parties during the foreign proceedings; equality Recognition is intended to introduce the situation established of arms in the course of the proceedings; and independence and by a foreign judgment into the French legal order. Most foreign impartiality of the foreign court. judgments are recognised in France without the need for a court The court also looks at whether the effects of the foreign judgment judgment. However, a party may wish to seek recognition to secure breaches French international public policy. For example, French a formal acknowledgment of its rights. For instance, a party can courts consider punitive damages to be compatible with French request recognition to prevent a claim already judged in a foreign international public policy only if they are not disproportionate to the court from being made in France; or, on the contrary, to support a actual harm suffered. As a result, and as an example, damages for new claim made in France on the basis of the legal situation created disgorgement of profit would most likely not be enforced in France. by a foreign judgment. (iii) The judgment was procured by fraud. Enforcement carries greater effect in that it allows a party to take (iv) The judgment conflicts with another judgment (as to which coercive steps against the debtor on the French territory. The see question 2.10 below). foreign judgment acquires the same legal force and effects as a A challenge is made during the enforcement proceedings before French judgment, providing full access to the available enforcement the court of first instance (see above, question 2.6) or during any measures under French law. proceedings in which the foreign judgment is relied upon. In practice, creditors seeking to recover a claim in France (other In some cases, it is appropriate to make a pre-emptive action to than by setting it off with a debt towards the opposing party) will declare a foreign judgment unenforceable in France, at the request of seek an enforcement order (named an exequatur). any interested party. In commercial settings, this is more commonly the case when seeking to prevent a foreign judgment liquidating a 2.6 Briefly explain the procedure for recognising and company from having effects in France. enforcing a foreign judgment in your jurisdiction. French courts may not review the merits of the judgment. They especially cannot review whether the foreign court applied the To obtain an enforcement order, the judgment creditor must correct law (according to its own private international law rules) to summon the opposing party before a court of first instance (tribunal the merits of the dispute. de grande instance). The request may be brought before the court of the opposing party’s domicile (art. 42 of the Code of civil procedure) 2.8 What, if any, is the relevant legal framework applicable or the court of the place where the enforcement is contemplated. to recognising and enforcing foreign judgments The ruling will be made by a single judge (art. R. 212–8 of the relating to specific subject matters? Code for judicial organisation) following the exchange of written submissions and a hearing. The procedure will typically take six Regulations for the recognition and enforcement of foreign months to a year. Parties must be represented by a lawyer registered judgments normally apply to all subject matters. with the local bar association. If the main counsel is not registered As an exception to the above: with the appropriate court of first instance, the latter normally associates with a local lawyer. The requesting party must provide ■ Foreign judgments rendered on public matters, i.e. through a copy of the foreign judgment together with a translation if the which the government of a foreign country relies upon its sovereign prerogatives (typically tax and criminal judgments), judgment is not issued in French. A sworn translation is not required cannot be recognised and enforced in France. However, unless the translation provided by the requesting party is disputed. severable parts of foreign criminal judgments ordering The enforcement decision may be appealed within one month of monetary compensation may be enforced in France. being notified by one party to the other (or three months for parties ■ Certain multilateral conventions to which France is a party, domiciled abroad). Usually, service is made by the prevailing party. including those listed at question 1.1 above, contain specific Service is carried out by bailiffs (huissiers de justice) when the subject matter provisions as to recognition/enforcement. Except recipient is domiciled in France. When the recipient is domiciled for The Hague Convention on Choice of Courts Agreements
76 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Archipel France
which is intended to apply to all commercial matters, these multilateral conventions complement recognition/enforcement 2.13 What is the relevant limitation period to recognise and regimes in very specific subject matters, such as international enforce a foreign judgment? transport and nuclear liability. ■ The enforcement of arbitral awards falls under a separate There is no specific provision regarding the limitation period to enforce regime and foreign judgments recognising arbitral awards a foreign judgment. Since French courts can only enforce foreign cannot be enforced in France. judgments that are enforceable in their country of origin (see above question 2.2), the limitation period to recognise or enforce a foreign judgment could depend on the law applicable to the foreign judgment 2.9 What is your court’s approach to recognition and enforcement of a foreign judgment when there is: (a) a in its country of origin. However, the matter cannot be considered France conflicting local judgment between the parties relating legally settled. French law provides for a 10-year limitation period to the same issue; or (b) local proceedings pending applicable to all enforcement orders (i.e. including foreign judgments) between the parties? rendered after 23 June 2006. Enforcement orders rendered before such date are time-barred after 30 years and in any event on 23 June 2016. Recognition/enforcement may be denied in case of incompatibility with a prior conflicting judgment. Two judgments are deemed incompatible when their legal consequences exclude each other. 3 Special Enforcement Regimes Applicable Any incompatibility between two foreign judgments is settled in to Judgments from Certain Countries accordance with the prior tempore rule, i.e. the judgment rendered first is deemed to prevail. An incompatibility between a foreign 3.1 With reference to each of the specific regimes set judgment (which has not yet been recognised in France) and a out in question 1.1, what requirements (in form and French judgment is always settled in favour of the French judgment, substance) must the judgment satisfy in order to be even if the French judgment is subsequent. recognised and enforceable under the respective regime? To prevent a French judgment from prevailing over a prior foreign judgment, a party can apply for recognition in France so as to be able to rely on the foreign judgment’s res judicata effect. All bilateral conventions set out in question 1.1 above require a final and binding foreign judgment in the country of origin before being When local proceedings are pending in France, the recognition/ recognised and enforced in the country. enforcement of the foreign judgment may still be sought separately. However, two related proceedings will then be pending before a In addition, under all bilateral conventions (save the one between French court, making it likely that the cases will be joined or that France and Mali that refers to the above-described French general one case will be stayed pending the result of the other. regime) the foreign judgment must have been rendered by a court of competent jurisdiction according to French private international law rules. Bilateral conventions entered into with Egypt, Tunisia, 2.10 What is your court’s approach to recognition and the United Arab Emirates and Uruguay provide specific rules enforcement of a foreign judgment when there is a to determine whether the foreign court had jurisdiction over the conflicting local law or prior judgment on the same or dispute. Other conventions simply refer to the private international a similar issue, but between different parties? law rules of the signatory state in which enforcement is sought.
The existence of a conflicting local law or prior judgment between Bilateral conventions also require that the defendant must have been different parties is irrelevant, unless it would amount to an properly summoned. incompatibility with French international public policy rules. Other conditions of substance are set out in question 3.4 below.
2.11 What is your court’s approach to recognition and 3.2 With reference to each of the specific regimes set out enforcement of a foreign judgment that purports to in question 1.1, does the regime specify a difference apply the law of your country? between recognition and enforcement? If so, what is the difference between the legal effect of recognition and enforcement? French courts cannot review the merits of a foreign judgment, even if the foreign court incorrectly applied French law. There is therefore no particular approach to the recognition and enforcement All bilateral conventions provide for the automatic recognition of of a foreign judgment that purports to apply French law. foreign judgments, which has the same effects and limitations as described under the general regime at question 2.5 above.
2.12 Are there any differences in the rules and procedure of recognition and enforcement between the various 3.3 With reference to each of the specific regimes set states/regions/provinces in your country? Please out in question 1.1, briefly explain the procedure for explain. recognising and enforcing a foreign judgment.
Private international law rules apply to all French territory. This Bilateral conventions provide simplified proceedings to obtain includes all territorial subdivisions, i.e. continental France, Overseas enforcement of a foreign judgment. The judgment creditor must Departments and Regions (Départements et régions d’outre-mer), summon the opposing party before the President of the Court of first Overseas Provinces (Collectivités d’outre-mer) and New Caledonia. instance (tribunal de grande instance) through fast-track proceedings For historical reasons, special rules apply to the attachments in (référé). The procedure is primarily oral but, in practice, parties three districts in Eastern France: the départements of Bas-Rhin, often also file written submissions. The procedure will normally take Haut-Rhin and Moselle. This has no bearing on the enforcement approximately six months. proceedings themselves but will affect subsequent attachments.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 77 Archipel France
Whilst parties do not necessarily need to be represented by locally categories: real estate; bank accounts; claims; dividends; royalties; registered lawyers, the assistance of a French-qualified lawyer is vehicles of different types (cars, coaches, aircraft, boats, etc.); art; recommended. and movables stored in bank safes, etc. The French Code of civil The claimant must provide: (i) an original copy of the foreign enforcement procedures provides specific attachment rules for each judgment together with, if applicable, its simple translation (a sworn category. translation is required only in case the quality of the translation is French law provides for various options to judgment creditors to challenged); (ii) a copy of the service of the decision to the debtor; identify their debtor’s assets. (iii) a certificate from the foreign court clerk stating that no appeal All bank accounts opened in France, and the names of their holders, was filed; and (iv) if applicable, a copy of the initial summons if the are registered in the FICOBA database, which is accessible to
France decision was rendered in absentia. judgment creditors through their bailiffs. The enforcement order may be appealed within one month of its The identity of land owners and a copy of the deeds of the sale/ service (or three months for parties domiciled abroad). mortgage are registered at local land registries. Garnishees/third-party debtors are compelled to disclose, upon 3.4 With reference to each of the specific regimes set out service of an attachment order, all their financial commitments to in question 1.1, on what grounds can recognition/ the debtor and to provide supporting documentation. enforcement of a judgment be challenged under the special regime? When can such a challenge be made? In any case, a judgment creditor can proceed with the final attachment at the debtor’s premises or in the hands of a garnishee. According to all bilateral conventions listed above – again with Attachments carried out in France are deemed to include all assets the exception of the one between France and Mali, which refers to located in France – which include, in some circumstances, receivables the above-described general regime – enforcement may be refused against foreign branches (not subsidiaries) of French entities. if the conditions of the form set out in question 3.1 above are not In case of sophisticated debtors, the judgment creditor may seek fulfilled. In addition, recognition/enforcement will be denied if the injunctive reliefs against third parties or the debtor himself and may judgment conflicts with French international public policy rules, or even, in some circumstances, be authorised to carry out searches if a judgment is incompatible with another judgment rendered, or with the assistance of a bailiff, in a similar way as under, e.g. the to be rendered, whether in France or elsewhere between the same English Norwich Pharmacal or discovery orders. parties, on the same grounds and for the same purpose. French law also provides a variety of tools to enforce a foreign There is no review of the choice of law by the foreign court except judgment against proxies. The creditor may, for instance, challenge for judgments rendered in Brazil, the Central African Republic, the fraudulent disposal of an asset by the debtor to escape payment Chad, Djibouti, Gabon and Senegal, for which the French courts obligations (action paulienne). He can also pierce the corporate will apply French private international law rules to determine veil by establishing the fictitious nature of the corporate entity whether the foreign court applied the appropriate law. (simulation). For judgments rendered in Mongolia, the United Arab Emirates and A debtor may challenge enforcement measures within one month of Vietnam, recognition/enforcement cannot be refused on the ground service (or three months if the debtor is domiciled abroad). The case that the foreign judge has applied its own private international rules must be filed before an enforcement judge ( juge de l’exécution) if the chosen law leads to the same result on the merits as would who generally rules within three to six months, after the parties have been the case by applying the law applicable under French have had the chance to file written briefs and appear in court. The conflict of law rules. judgment can be appealed.
4 Enforcement 5 Other Matters
4.1 Once a foreign judgment is recognised and enforced, 5.1 Have there been any noteworthy recent (in the last what are the general methods of enforcement 12 months) legal developments in your jurisdiction available to a judgment creditor? relevant to the recognition and enforcement of foreign judgments? Please provide a brief description. In France, a judgment creditor can carry out interim enforcement measures on the basis of a foreign judgment even before beginning In 2018, the French Cour de cassation (supreme court for civil and recognition/enforcement court proceedings in France, provided commercial matters) reversed, for the second time in a few years, its that it can rely on the existence of a “threat to the recovery of its own position on enforcement against diplomatic assets. claim”. In practice, such a threat will result from evidence that On 28 September 2011, the Cour de cassation had restricted the debtor is likely to disappear or become insolvent. The interim enforcement against sovereign entities by requiring that waivers attachment will be executed by a bailiff without prior notice to the of sovereign immunity be both expressly made and specific as debtor and without the need for a court order. The targeted asset will to the type of asset to be attached. In practice, this effectively automatically be frozen upon service to the asset holder, be it the rendered most (if not all) existing contractual waivers of immunity debtor itself or a third party. The attachment must then be notified to meaningless. the debtor within eight days and is subject to judicial review. Then, on 13 May 2015, the Cour de cassation reversed its previous Unless a court orders the attachments lifted, the assets will remain decision, holding that waivers of sovereign immunity could be valid frozen for the duration of the enforcement procedure. If the court if expressly made, thereby eliminating the requirement introduced orders an enforcement of the foreign judgment, the frozen assets in 2011 that they also be specific. will be transferred to the creditor. The French Parliament then intervened on 9 December 2016 with Attachments may be executed on movable or immovable assets, a new act requiring waivers to be express and specific. This act whether tangible or intangible, including the following specific
78 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Archipel France
also subjects enforcement steps against foreign state to prior judicial be extremely lengthy when it comes to service to debtors domiciled authorisation. These provisions have been applicable since 11 abroad (as they often are), and even more so when the debtor is a December 2016. foreign State (see above question 2.4). It is therefore important to As a result, on 10 January 2018, the Cour de cassation chose closely monitor the service process with the relevant authorities, both to reverse its position once again and apply its 2011 decision, to ensure its formal validity and to prevent undue delays. effectively making the 2016 Act retroactively applicable to cases In addition, all enforcement-related acts are performed by predating its entry into force. bailiffs (huissiers de justice). French bailiffs are hired by the This revolving case law on sovereign immunity from execution is parties themselves rather than appointed by the court. Because limited to the attachment of diplomatic assets. For other state assets French bailiffs have jurisdiction over a limited geographical area, used for sovereign purposes (other than diplomatic) or used for enforcement attempts in France can imply having to commission France commercial purposes, the 2015 decision remains applicable. several bailiffs depending on the location of the assets. Not all bailiffs may be familiar with enforcing foreign judgments. Retaining the services of a competent local bailiff experienced in 5.2 Are there any particular tips you would give, or critical issues that you would flag, to clients seeking foreign judgment enforcement is a key part to enforcing in France to recognise and enforce a foreign judgment in your and enhances the likelihood of effective collection. jurisdiction?
Judgment creditors should bear in mind that enforcement proceedings in France are often slowed down by service processes. These can
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 79 Archipel France
Jacques-Alexandre Genet Michaël Schlesinger Archipel Archipel 92, rue Jouffroy d’Abbans 92, rue Jouffroy d’Abbans 75017 Paris 75017 Paris France France
Tel: +33 1 40 54 51 00 Tel: +33 1 40 54 51 00 Email: [email protected] Email: [email protected] URL: www.archipel-law.com URL: www.archipel-law.com France Jacques-Alexandre Genet is a partner of Archipel specialising in Michaël Schlesinger is a French lawyer specialising in complex international business law and international litigation. He is a leading litigation matters with an international aspect. He joined Archipel in player in sovereign debt recovery, international enforcement, asset 2012 and concentrates his practice on enforcement and recovery tracing and interim measures. He advises international corporations procedures, especially in the context of fraud or in disputes involving on issues arising from doing business in France, the Middle East and sovereign entities. Before joining the firm, Michaël clerked for a judge Africa (including international sales contracts, distributorship/agency at the Versailles Court of Appeal and trained with a third-party funder agreements, OHADA law, etc.). He is a graduate of Sciences-Po Paris specialised in international arbitration and claims collection. He holds and University Paris 10 (Nanterre–La Défense). Jacques-Alexandre a postgraduate degree in private international law and business is a member of EMTA (Emerging Markets Trade Association), CFA law from the University Paris 1 (Panthéon–Sorbonne). Michaël is (the French Arbitration Committee), Juris Défi (a network of business a member of the board of directors of the Association of Lawyers lawyers) and the Arbitration Council of the French-Arab Chamber Practicing Civil and Enforcement Proceedings (AAPPE). of Commerce (CCFA). He regularly speaks on enforcement and sovereign immunities issues. He is listed in Who’s Who Legal as a leading practitioner in Asset Recovery.
Archipel is a boutique law firm serving the cross-border needs of corporate and private clients. The team comprises 10 lawyers based in Paris and Geneva and operates worldwide for the recovery of claims on behalf of a wide range of international debt holders, with a particular focus on sovereign debt and fraud matters (in Paris) and arbitration (in Geneva). The firm also provides advice to clients on all aspects of corporate life, foreign investments and the negotiation of international contracts.
80 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Chapter 15
Germany Catrice Gayer
Herbert Smith Freehills Germany LLP Sören Flecks
Applicable Law/ Corresponding 1 Country Finder Relevant Jurisdiction(s) Statutory Regime Section Below Hague Convention 1.1 Please set out the various regimes applicable on the Recognition to recognising and enforcing judgments in your and Enforcement of jurisdiction and the names of the countries to which Decisions Relating to Maintenance Countries signatory to the such special regimes apply. Section 3. Obligations of Convention. 2 October 1973 In this article, the authors will mainly address commercial and civil (“Hague Convention matters. Germany has entered into a number of multilateral and on Maintenance bilateral treaties. The treaties listed under Section 1 are mentioned Obligations”). by way of example and the list is not exhaustive. Bilateral Treaties Treaty between the Applicable Law/ Corresponding Relevant Jurisdiction(s) Federal Republic of Statutory Regime Section Below Germany and the Multilateral Conventions State of Israel on the Mutual Recognition Lugano Convention and Enforcement of Israel. Section 3. on Jurisdiction and Judicial Decisions in the Recognition Civil and Commercial and Enforcement of EU Member States and Matters (“Treaty Judgments in Civil Norway, Iceland and Section 3. between Germany and Commercial Switzerland. and Israel”). Matters of 30 October 2007 (“Lugano The Treaty of 19 Convention”). July 1966 between Germany and Tunisia Hague Convention on on Legal Protection, Civil Procedure of 1 Countries signatory to the Legal Assistance, March 1954 (“Hague Section 3. Convention. and the Recognition Convention on Civil and Enforcement Procedure”). of Foreign Judicial Tunisia. Section 3. Albania, Armenia, Decisions in Civil Austria, Belarus, Belgium, and Commercial Croatia, Cyprus, Czech Matters and on Republic, Denmark, Commercial Estonia, Finland, France, Arbitration (“Treaty Georgia, Germany, Greece, between Germany Hungary, Iran (Islamic and Tunisia”). Republic of), Ireland, Domestic Law Italy, Jordan, Kyrgyzstan, Convention on the Latvia, Lebanon, All countries to which Code of Civil none of the aforementioned Contract for the Lithuania, Luxembourg, Section 2. International Carriage the former Yugoslav Procedure. treaties applies or no Section 3. of Goods by Road Republic of Macedonia, bilateral treaty exists. of 19 May 1956 Malta, Republic of All countries to which (“CMR”). Moldova, Netherlands, none of the aforementioned Norway, Poland, Portugal, Insolvency Act. treaties applies or no Section 2. Romania, Russian specific bilateral treaty Federation, Slovakia, exists. Slovenia, Spain, Sweden, Switzerland, Tunisia, Act on Proceedings All countries to which Turkey, Turkmenistan, in Family Matters none of the aforementioned United Kingdom of Great and in Matters of treaties applies or no Section 2. Britain and Northern Non-contentious specific bilateral treaty Ireland, Uzbekistan. Jurisdiction. exists.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 81 Herbert Smith Freehills Germany LLP Germany
the same parties dealing with the same subject matter in dispute 2 General Regime (sect. 13 Court Constitution Act, (Gerichtsverfassungsgesetz “GVG”)). Likewise: German proceedings that have become 2.1 Absent any applicable special regime, what is the pending prior to, and are irreconcilable with foreign proceedings, legal framework under which a foreign judgment take precedence; (iv) foreign judgments are denied recognition and would be recognised and enforced in your enforcement if their enforcement violates public policy (sect. 328 I jurisdiction? No. 4 ZPO); and (v) lastly, foreign judgments are denied recognition and enforcement if reciprocity is not granted by the state in which Under German law, the recognition of foreign judgments is the foreign judgment was rendered. A German court has to assess governed in particular by sect. 328 German Code of Civil Procedure the actual recognition and enforcement practice of the state vis-à-
Germany (Zivilprozessordnung (“ZPO”)) and the enforcement by sect. 722, vis judgments issued in Germany under similar circumstances (sect. 723 ZPO. 328 I No. 5 ZPO). The grounds for refusal listed in sect. 328 I No. 5 ZPO are exhaustive. 2.2 What constitutes a ‘judgment’ capable of recognition and enforcement in your jurisdiction? 2.4 What (if any) connection to the jurisdiction is required for your courts to accept jurisdiction for recognition The term “decision” in sect. 328 I ZPO is defined as any type of and enforcement of a foreign judgment? final binding decision issued by a foreign court in civil matters which may include commercial, labour and employment as well as German courts assume the local and subject matter jurisdiction if the competition law matters. In order to classify a foreign judgment as a following requirements are met: decision in civil matters, a German court assesses the subject matter ■ According to sect. 722 II ZPO, the foreign judgment creditor of the foreign judgment. German courts base this assessment on has to sue at the place where the defendant is located in the German lex fori, and therefore on the legal notion of the subject Germany. Alternatively, the lawsuit may be brought in the matter in dispute (Streitgegenstandslehre). The name, function or district of the court where the defendant’s assets lie. type attributed to a foreign body under its own laws is not relevant ■ The subject matter jurisdiction is assessed on the basis of for this assessment. the amount in dispute in the enforcement proceedings. The Judgments in family matters are not decisions in civil matters and district courts (Amtsgericht) are competent (sect. 23 No. 1 are not within the scope of sect. 328 ZPO. These judgments are GVG) unless the amount in dispute exceeds EUR 5,000,00. recognised and enforced according to the Act on Proceedings in In the latter case, the regional court (Landgericht) has subject matter jurisdiction (sect. 23 No. 1, 71 I GVG). Family Matters and in Matters of Non-contentious Jurisdiction (Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit (“FamFG”)), sect. 2.5 Is there a difference between recognition and 107 et seqq. FamFG. enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? Judgments must be, in principle, distinguished from court settlements and enforceable public deeds (Urkunden). The latter German law distinguishes between recognition (sect. 328 ZPO) and two generally do not constitute decisions for the purposes of sect. enforcement (sect. 722, 723 ZPO). 328 ZPO unless the foreign court reviews and controls the legality of such acts. Recognition Further, interim measures and court orders on the taking or securing Recognition of a foreign judgment is granted automatically, thus of evidence are not final binding decisions either. ipso iure. The exact scope of the legal effects of recognition in Germany is in dispute. The majority of scholars argue that a foreign judgment will have the same legal effects as in the foreign 2.3 What requirements (in form and substance) must a jurisdiction. Therefore, every public authority, notary or court in foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? Germany has to respect and act according to the effects of the foreign judgment without any prior procedure of recognition. However, a foreign judgment cannot have more effects than German judgments According to sect. 723 II ZPO in connection with sect. 328 I ZPO in Germany. a foreign judgment is recognised and enforced unless the following substantive requirements are not met: (i) the foreign courts must Enforcement have been internationally competent to decide the dispute (sect. 328 Enforcement means the compulsory execution of a decision by I No. 1 ZPO). The plaintiff in enforcement proceedings has the means of German enforcement measures. The enforcement of burden of proof that the foreign court had international jurisdiction. a foreign judgment in Germany is only admissible if a German This requirement is fulfilled if the foreign court would have had court has issued an enforcement judgment in favour of the foreign jurisdiction to hear the matter if it had applied German procedural judgment creditor (exequatur proceedings). This enforcement law. The German courts have to ascertain this requirement ex judgment will serve as a basis for the compulsory execution in officio; (ii) the defendant in the enforcement proceedings must Germany if the foreign judgment debtor does not fulfil the judgment. have been duly and timely notified of the foreign court proceedings brought against him as to enable him to properly defend his case 2.6 Briefly explain the procedure for recognising and (sect. 328 I No. 2 ZPO). The defendant is precluded from invoking enforcing a foreign judgment in your jurisdiction. procedural mistakes of the foreign court proceedings in the enforcement proceedings if the defendant has not raised respective As recognition of a foreign judgment is granted ipso iure (see objections in the foreign court proceedings; (iii) according to sect. above at question 2.5), the ZPO does not stipulate any recognition 328 INo. 3 ZPO, a foreign judgment may be denied recognition and procedure. Any party may file a positive or negative declaratory enforcement if it is irreconcilable with a German judgment between action (Feststellungsklage) (sect. 256 I ZPO) with the competent
82 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Herbert Smith Freehills Germany LLP Germany
court and request it to declare that the foreign judgment meets (or does not meet) the requirements set out in sect. 328 I ZPO. 2.8 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments The ZPO does not stipulate a specific enforcement procedure either. relating to specific subject matters? The general procedural rules of the ZPO apply. The foreign judgment creditor has to bring a lawsuit against the foreign judgment debtor For insolvency matters, the German Insolvency Act before the competent German courts (sect. 253 et seqq. ZPO). After (Insolvenzordnung (“InsO”)) applies: sect. 343 I InsO stipulates that the court has notified the judgment debtor of the lawsuit followed foreign insolvency proceedings are recognised in Germany unless by potentially one or two rounds of submissions, the court may hold the foreign court does not have jurisdiction according to German an oral hearing (sect. 128 I ZPO). The verdict declaring the foreign procedural law or the recognition would violate public policy. judgment enforceable is rendered according to the general rules of Furthermore, according to sect. 353 I InsO in connection with sects. the ZPO applicable to all other verdicts (sect. 300 I ZPO). Germany 722, 723 ZPO enforcement of a judgment in insolvency matters The requirements, which the plaintiff has to fulfil in order to have will be granted if the requirements of sect. 328 I ZPO are complied his foreign judgment declared enforceable, are stipulated in sect. with (see above at question 2.3). Contrary to the enforcement 722, 723 ZPO (see above at question 2.3). of judgments in civil matters, the term “decision” in insolvency When filing its application, the plaintiff has to supply a duly certified matters also encompasses decisions by an administrative authority copy of the foreign judgment. Additionally, a German court may if the latter is the competent authority to hear insolvency matters in request to supply an authentication of the foreign judgment by that country. a consular officer as a foreign judgment – contrary to German As set out above, recognition and enforcement of decisions in judgments – is not deemed to be authentic (sect. 438 I ZPO). If the family matters are governed by sects. 107–110 FamFG and not country where the foreign judgment was rendered is a contractual by the ZPO. Family matters covered by the FamFG include, inter party to the Hague Convention on Abolishing the Requirement of alia, matrimonial and parental matters, guardianship, adoption Legislation for Foreign Public Documents of 1961, the plaintiff has and inheritance. As regards the recognition of foreign judgments to request the respective foreign competent authority to issue an in family matters, the FamFG draws the following distinction: apostille and supply the German court therewith. foreign decisions in matrimonial matters (divorce, legal separation, German courts can also order the plaintiff to supply a certified annulment of marriage, etc.) are not recognised ipso iure. They are translation of the judgment. Therefore, it is advisable that the only recognised if the competent authority (Landesjustizverwaltung) plaintiff submits a translation – at least of the operative part of the determines that the requirements of recognition are fulfilled (sect. judgment – with the application of enforcement. 107 FamFG). Other foreign judgments in family matters are The defendant can initiate an appeal on fact and legal issues against recognised ipso iure (sect. 108 FamFG) unless the requirements an enforcement judgment (Berufung; sect. 511 et seqq. ZPO) before set out in sect. 109 I, IV FamFG are met. These requirements are the higher regional court (Oberlandesgericht (“OLG”)). Further, largely identical to those set out in sect. 328 I ZPO (see above at the defendant can file an appeal on points of law (Revision, sect. question 2.3). Likewise, enforcement of a foreign judgment can be 542 et seqq. ZPO) before the German federal supreme court denied if these requirements are met (sect. 110 I FamFG). (Bundesgerichtshof (“BGH”)). 2.9 What is your court’s approach to recognition and enforcement of a foreign judgment when there is: (a) a 2.7 On what grounds can recognition/enforcement of a conflicting local judgment between the parties relating judgment be challenged? When can such a challenge to the same issue; or (b) local proceedings pending be made? between the parties?
Grounds to challenge a foreign judgment are narrow and exhaustively a) A local judgment always takes absolute priority over a foreign stipulated in sect. 328 I ZPO (see above at question 2.3). Sect. 328 judgment dealing with the same matter in dispute and given I ZPO stipulates several procedural and one substantive ground: between the same parties regardless of whether the foreign the violation of public policy. Such a violation requires that the judgment was issued prior to the local judgment (see above at enforcement of a judgment is obviously irreconcilable with question 2.3). fundamental principles of German law, especially with fundamental b) Likewise, local proceedings which have become pending rights. However, the prohibition of révision au fond applies: prior to a foreign judgment take precedent over that foreign German courts cannot re-examine the merits of the case. Further, judgment (see above at question 2.3). German courts interpret violations of public policy restrictively. Examples of violations of public policy are: (i) punitive damages if 2.10 What is your court’s approach to recognition and the amount of damages awarded in a foreign judgment excessively enforcement of a foreign judgment when there is a outweighs the compensating function which damages have under conflicting local law or prior judgment on the same or German law; or (ii) judgments obtained by fraud. Contrary thereto, a similar issue, but between different parties? pre-trial discovery – a non-existing feature in German court proceedings – and the absence of written grounds in a judgment or There is no révision au fond of a foreign judgment (sect. 723 I ZPO). a party’s exclusion from proceedings due to a contempt of court are Only in cases in which the enforcement of a foreign judgment would not necessarily violations of public policy. violate a conflicting local law which qualifies as ordre public, Further, the defendant can invoke substantive grounds in enforcement would be denied. enforcement proceedings if these grounds have arisen after the Similarly, a prior local judgment between different parties and being foreign judgment was rendered. Such grounds may include the contrary to the judgment sought to be enforced is not a ground to defendant’s compliance with the judgment (e.g. payment) or refuse enforcement as the requirements of sect. 328 I No. 2 are the plaintiff’s assignment of the claim – underlying the foreign not fulfilled (identity of the parties of the foreign and the local judgment – to a third party. judgment). Furthermore, contrary to common law systems, the principle of stare decisis does not exist in Germany.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 83 Herbert Smith Freehills Germany LLP Germany
grounds to refuse enforcement are comparable to those listed in sect. 2.11 What is your court’s approach to recognition and 328 I ZPO. Also, the prohibition of the révision au fond applies enforcement of a foreign judgment that purports to (Art. 45 II). apply the law of your country? Hague Convention on Civil Procedure As stated under question 2.7, there is no révision au fond. Except Orders for court costs and expenses shall be declared enforceable for violations of public policy, a German court does not assess without a hearing (Art. 19 I). The party seeking enforcement must whether a foreign court applies German substantive law correctly. provide (i) a copy of the judgment fulfilling the conditions required for its authenticity, (ii) proof of the force of res judicata of the underlying judgment, and (iii) a certified copy of the operative part of the judgment 2.12 Are there any differences in the rules and procedure in the language of the authority where enforcement is sought, or in any Germany of recognition and enforcement between the various states/regions/provinces in your country? Please other language agreed between the states, or a translation in one of the explain. languages certified by a consular officer or sworn translator. Hague Convention on Maintenance Obligations The ZPO and GVG apply in all 16 German states. The states do To the extent applicable, a judgment is recognised or enforced in not have any regulatory power to pass laws that would deviate from another contracting state if the judgment has force of res judicata federal procedural law and thus the ZPO. and was rendered by an authority having jurisdiction (Art. 4 in connection with Art. 7 and 8). 2.13 What is the relevant limitation period to recognise and A party seeking recognition or enforcement of a judgment shall furnish enforce a foreign judgment? the following documents (Art. 17): (i) a complete and true copy of the judgment; (ii) any document necessary to prove that the decision is German law does not provide for a statute of limitations period to no longer subject to ordinary forms of review in the state of origin; initiate legal actions to obtain an enforcement judgment. However, and (iii) a certified translation of the aforementioned documents. sect. 197 I No. 3 German Civil Code (Bürgerliches Gesetzbuch Furthermore, recognition and enforcement of a judgment rendered by (“BGB”)) stipulates that claims which have been declared final by default may only be recognised or enforced if the defaulting party was way of judgment, court settlement or arbitral award become time- notified of the institution of the court proceedings (Art. 6). barred after 30 years. CMR A specific procedure regarding recognition does not exist. 3 Special Enforcement Regimes Applicable An enforceable judgment rendered under the CMR is also to Judgments from Certain Countries enforceable in any other contracting state, if the formal requirements for enforcement set out by the enforcement country are met (Art. 31 III). As a corollary, a judgment rendered under the CMR may be 3.1 With reference to each of the specific regimes set enforced in Germany if the requirements of sects. 722, 723 ZPO out in question 1.1, what requirements (in form and are fulfilled. substance) must the judgment satisfy in order to be recognised and enforceable under the respective New York Convention on the Recognition and Enforcement of regime? Foreign Arbitral Awards of 1958 (“NYC”) It is by far the most important multilateral agreement regarding the Multilateral Conventions recognition and enforcement of foreign awards in Germany. State Lugano Convention court judgments are not within the scope of the NYC (Art. 1 II). The rules of recognition and enforcement of foreign judgments Bilateral Conventions under the Lugano Convention apply (i) in civil and commercial Treaty between Germany and Israel matters, and (ii) if a German court has to enforce a foreign judgment Final decisions in civil and commercial matters rendered in Israel issued in one of the EFTA states (Iceland, Switzerland and Norway). are automatically recognised in Germany (Arts. 3 and 9 I). The The Lugano Convention is aligned with the Brussels I Regulation of Treaty between Germany and Israel stipulates various grounds 2001 (Council Regulation (EC) No. 44/2001 of 22 December 2000). based on which recognition may be refused. These grounds are, Accordingly, foreign judgments are ipso iure, and thus automatically among others, set out in Art. 5, which largely resemble the grounds recognised without any special procedure required (Art. 33 I). in sect. 328 I ZPO. The enforcement procedure itself under the Lugano Convention is Decisions are enforceable in Germany if they are enforceable in different from the one under the ZPO (see above at question 2.6) Israel and recognisable in Germany (Art. 10). as it comprises two stages: in the first stage, the foreign judgment Treaty between Germany and Tunisia creditor has to apply to the competent court for the judgment to be declared enforceable. Upon completion of certain formalities Judgments in all civil matters, excluding matters mentioned in stipulated in the Lugano Convention (Arts. 53, 54 and 55), the court Art. 28 (e.g. matrimonial, maintenance matters, insolvency), are has to declare the judgment enforceable (Art. 41). In this first stage recognised automatically if they are final and binding (Art. 27). of the enforcement proceedings – and contrary to the German ZPO – Recognition may only be denied based on one of the grounds listed the court will not assess whether any grounds to refuse enforcement in Art. 29 I, II (Art. 33). (Arts. 34 and 35) are fulfilled and the foreign judgment debtor will Likewise, a foreign judgment has to be declared enforceable by a not be heard (Art. 41). The debtor will only be informed that the court of the country where enforcement is sought (Art. 34). The judgment was declared enforceable. judgment creditor has to prove by way of certified documents the Only in the second stage can the foreign judgment debtor appeal the following requirements set out in Art. 38: (i) a certified copy of the decision of enforceability within one month and invoke the grounds decision sought to be enforced; (ii) proof that the decision is final to refuse enforcement listed in Arts. 34 and 35 (Art. 45 I). The and binding; (iii) proof that the decision would be enforceable in
84 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Herbert Smith Freehills Germany LLP Germany
Tunisia; (iv) the defendant was duly notified of the proceedings brought against him in Tunisia; and (v) a certified translation of the 3.4 With reference to each of the specific regimes set out aforementioned documents. in question 1.1, on what grounds can recognition/ enforcement of a judgment be challenged under the special regime? When can such a challenge be made? 3.2 With reference to each of the specific regimes set out in question 1.1, does the regime specify a difference Except for the Hague Convention on Civil Procedure and the between recognition and enforcement? If so, what is Hague Convention on Maintenance Obligations, all treaties listed the difference between the legal effect of recognition under section 1 set out grounds for refusal of enforcement (Arts. and enforcement? 34 and 35 (Art. 45 I) Lugano Convention, Art. 5 and Art. 10 Treaty between Germany and Israel and Arts. 29, 30 and 39 Treaty between The Lugano Convention, the Treaty between Germany and Israel Germany Germany and Tunisia). The grounds are largely comparable to the and the one between Germany and Tunisia all distinguish between grounds set out in sect. 328 I ZPO (see above at question 2.3) and recognition and enforcement of a foreign judgment. However, these typically are: (i) the enforcement would violate public policy; (ii) treaties ascribe the same effect to recognition and enforcement as the court that has given the foreign judgment lacked jurisdiction under German procedural law. over the dispute; (iii) a lack of due notification of the foreign court The Hague Convention on Civil Procedure does not address proceedings; (iv) the judgment is incompatible with a pending questions of recognition of cost orders, but only governs their dispute between the same parties in the state where the enforcement enforcement. is sought; (v) the judgment is incompatible with an earlier judgment The Hague Convention on Maintenance Obligations itself does not given in Germany between the same parties and regarding the same distinguish between recognition and enforcement. Recognition matter in dispute; or (vi) the operative part of the foreign judgment and enforcement of a decision shall be governed by the law of the has already been fulfilled. enforcement state (Art. 13). Therefore, recognition and enforcement under the Convention have the same effects as under German procedural law. 4 Enforcement
3.3 With reference to each of the specific regimes set 4.1 Once a foreign judgment is recognised and enforced, out in question 1.1, briefly explain the procedure for what are the general methods of enforcement recognising and enforcing a foreign judgment. available to a judgment creditor?
Lugano Convention Prior to selecting a specific enforcement measure, the judgment The procedure is set out above at question 3.1. creditor must officially serve the judgment debtor with a copy of the judgment certifying its enforceability (Klausel). Hague Convention on Civil Procedure The measures of enforcement available to a judgment creditor The request to have a cost order declared enforceable has to be done under German law depend on the nature of the judgment as well through diplomatic channels (Art. 18 I). Up until today, Germany as the nature of the assets of the judgment debtor in Germany. has not ratified the Hague Convention on the International Access to They comprise the following: (i) seizure of movable assets by way Justice of 25 October 1980 which would facilitate this cumbersome of a bailiff (sect. 803 et seqq. ZPO); (ii) seizure of claims/bank procedure. accounts by way of a court order (sect. 828 et seqq. ZPO); (iii) A decision on the enforceability is subject to subsequent appeal by seizure of immovable assets by way of foreclosure, registry of a the losing party (Art. 19 I). force mortgage, or compulsory administration (sect. 866 I ZPO); or Hague Convention on Maintenance Obligations (iv) measures to obtain restitution of specific things and to forcibly obtain certain actions or omissions (sect. 883 et seqq. ZPO). Recognition and enforcement of the foreign judgment is governed by the law of the enforcement state (see above at question 3.2). Therefore, sects. 722 and 723 ZPO apply (see above at questions 5 Other Matters 2.4 and 2.6). Treaty between Germany and Israel 5.1 Have there been any noteworthy recent (in the last Judgments are recognised automatically without any specific 12 months) legal developments in your jurisdiction procedure. A party may only bring a declaratory action to refuse relevant to the recognition and enforcement of foreign recognition, Art. 9 II. judgments? Please provide a brief description. Enforcement is governed by German law unless the Treaty provides otherwise (Art. 11). Consequently, the judgment creditor has to In a recent decision, the BGH confirmed that German courts apply initiate the enforcement proceeding with the competent regional court the violation of ordre public very restrictively (BGH, decision (Landgericht) in Germany where the debtor has its seat or where of 22 June 2017 – IX ZB 61/16). The BGH confirmed its long- enforcement is sought (Art. 14 I). A German court does not look into standing case law that it does not qualify as a violation of the ordre merits of the judgment (Art. 16). However, the defendant may raise public if a German court – based on mandatory German law – had substantive objections against the underlying claim if these objections decided differently to a foreign court. It is only decisive where the have arisen after the judgment was given (Art. 16 II). result of the foreign court’s decision – based on its own law – is in Treaty between Germany and Tunisia such strong conflict with the considerations of justice enshrined in German law that this result is intolerable. Accordingly, in the case The judgment creditor has to bring an action before the German at hand, the BGH confirmed the lower German courts’ decisions that regional court where the judgment debtor has its seat or where the the enforcement of a judgment in which an Italian court had awarded enforcement shall take place (Art. 37). both restitution of legal costs and liquidated damages to a defendant
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 85 Herbert Smith Freehills Germany LLP Germany
would not violate public policy. The Italian court of appeal held that statement could not be substantiated by official statements by the the plaintiff’s action was brought in bad faith as the Italian courts Russian Ministry of Justice. Second, an expert gave testimony: manifestly lacked international jurisdiction. Therefore, it awarded the applicable rules for enforcement were not clear as to whether – based on a provision of the Italian civil code of procedure – the a comparable German judgment would be enforced. Further, defendant damages. The German courts correctly classified the Russian scholars are also divided on this question. Lastly, the expert damages awarded under the Italian provision not as punitive, but could not exclude the possibility that Russian courts would deny as liquidated damages. While the former violate the ordre public, enforcement of a comparable German judgment. Accordingly, the the latter do not. The courts held that the purpose of the awarded higher regional court of Hamburg held that the proof of reciprocity damages was – contrary to punitive damages – not to penalise the was not made. plaintiff, but to compensate the opposing party’s damages even if
Germany these could not be calculated. 5.2 Are there any particular tips you would give, or In July 2017, the regional higher court of Hamburg denied the critical issues that you would flag, to clients seeking declaration of enforcement of a Russian judgment (OLG Hamburg, to recognise and enforce a foreign judgment in your judgment of 13 July 2017 – 6 U 152/11). The OLG held that, jurisdiction? contrary to sect. 328 I No. 5 ZPO, German judgments were not reciprocally recognised and enforced in Russia. The principle of Judgments quickly exceed a value of EUR 5,000. In these cases, the reciprocity requires that recognition and enforcement of a German regional higher courts are competent to decide on the enforcement judgment does not face significantly higher difficulties than the of the foreign judgment. Under German law it is mandatory for recognition and enforcement of a Russian judgment in Germany. clients to be represented by counsel in proceedings pending with The regional higher court confirmed that the plaintiff has the burden the regional courts. Therefore, foreign judgment creditors need to prove that the requirement of reciprocity is met. The bar is usually to retain counsel. Contrary to the general rule of court fees being not set too high. This case, however, shows the difficulties if a set dependent on the amount of the dispute, court costs for exequatur of circumstances is at stake which is unknown to the jurisdiction proceedings amount to EUR 240. It has to be noted, though, that having issued the judgment. The plaintiff adduced several means fees for counsel may indeed be higher as they do not depend either of evidence: first, the court having given the judgment tobe on the amount of dispute or on pre-agreed hourly rates. It should enforced made a statement. It purported that it would enforce a be noted that, contrary to other jurisdictions, contingency fees are comparable judgment being rendered in Germany. However, this prohibited under German law.
86 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Herbert Smith Freehills Germany LLP Germany
Catrice Gayer Sören Flecks Herbert Smith Freehills Germany LLP Herbert Smith Freehills Germany LLP Breite Str. 29–31 Breite Str. 29–31 40213 Düsseldorf 40213 Düsseldorf Germany Germany
Tel: +49 211 975 59136 Tel: +49 211 975 59136 Email: [email protected] Email: [email protected] URL: www.herbertsmithfreehills.com URL: www.herbertsmithfreehills.com
Catrice Gayer regularly acts as counsel and arbitrator in international Sören Flecks is an associate in Herbert Smith Freehills’ disputes Germany and national arbitration cases. Her particular fields of industry are practice, based in Düsseldorf specialising in international arbitration. energy/infrastructure, IP and antitrust (including FRAND), commercial He also advises domestic and international clients in litigation, (agency, trade, distribution, licence), and corporate disputes. including out-of-court settlements, and mediation. He has a special focus on infrastructure/construction, energy, post M&A disputes and She also acts as (co-)counsel in enforcement proceedings of awards investor-state arbitration. and foreign judgments before German courts and abroad. Her track record also includes the representation of national and foreign clients Sören completed his legal traineeship with the regional court of in civil and commercial disputes before the regional courts. Cologne with a stage at the German General Consulate in Cape Town, South Africa, and received a Master of Laws degree from New Catrice Gayer is recognised for her dispute resolution work in York University, School of Law in 2014. Prior to joining Herbert Smith leading directories. She has been recommended as a Rising Star Freehills in 2017, Sören worked for an arbitration boutique firm in (Commercial Arbitration) in Expert Guides and is ranked in Who’s Who Cologne, Germany. Legal’s Future Leaders in Arbitration. She is an appointed member of the ICC Commission on Commercial Law and Practice. Further, she is a regional chair of the DIS40, a co- chair of the Young CEAC and a member of the Executive Committee of the AIJA. Catrice Gayer regularly publishes on international litigation, arbitration and corporate matters. She is fluent in English, French and German.
Herbert Smith Freehills is one of the world’s leading law firms. We advise many of the biggest and most ambitious organisations across all major regions of the globe. Our clients trust us with their most important transactions, disputes and projects because of our ability to cut through complexity and mitigate risk. With 27 offices spanning Africa, Asia, Australia, Europe, the Middle East and the US, we offer local insight and seamless cross-border service in all major regions. Positioned to support the major trade flows, we help the world’s top companies thrive in the global economy. With a multi-disciplinary global disputes team of world-leading sector specialists and regional experts, we provide commercial insight and legal advice. Bringing together litigators, arbitrators, mediators, advocacy experts, regulatory specialists, and investigators, whatever the challenge or opportunity, we partner with our clients every step in the process.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 87 Chapter 16
Hong Kong Nick Gall
Gall Lydia Mak
or order given or made by a court in any criminal proceedings for the 1 Country Finder payment of a sum of money in respect of compensation or damages to an injured party. However, it does not include overseas judgments 1.1 Please set out the various regimes applicable given in breach of agreement for the settlement of disputes. to recognising and enforcing judgments in your Under common law, there is no specific definition of a ‘judgment’ jurisdiction and the names of the countries to which in relation to the recognition and enforcement of a foreign judgment such special regimes apply. in Hong Kong. However, the definition of ‘judgment’ in the High Court Ordinance includes decrees. Applicable Law/ Relevant Corresponding Statutory Regime Jurisdiction(s) Section Below 2.3 What requirements (in form and substance) must a Australia foreign judgment satisfy in order to be recognised Austria and enforceable in your jurisdiction? Belgium Bermuda The requirements that a foreign judgment must satisfy in order to be Brunei recognised and enforced in Hong Kong depends on whether any of France the relevant ordinance in Hong Kong apply. Foreign Judgments (Reciprocal Germany Recognition under the Ordinance Enforcement) India Sections 2 and 3 For a foreign judgment to be recognised under the Ordinance: Ordinance (Cap. 319) Israel (the “Ordinance”) 1. the judgment must be from a superior court – i.e., a court with Italy unlimited jurisdiction in civil and criminal matters; Malaysia 2. the recognition application must be made within six years of The Netherlands the date of the original judgment; New Zealand 3. the judgment must not have been wholly satisfied; Singapore 4. if the judgment has been satisfied in part as at the date of Sri Lanka registration, the judgment shall be registered only in respect of the balance remaining payable at that date; 5. the judgment must be enforceable by execution in the country 2 General Regime of the original court; 6. the judgment is final and conclusive between the parties; and 7. the judgment is for a sum of money. 2.1 Absent any applicable special regime, what is the legal framework under which a foreign judgment Recognition under common law would be recognised and enforced in your For a foreign judgment that may not be registered under the Ordinance, jurisdiction? recognition of the foreign judgment can be effected under the common law if: Absent applicable special regimes set out in various ordinances in 1. the judgment is final and conclusive upon the merits of the Hong Kong, the common law applies as the legal framework under claim in the foreign jurisdiction; and which a foreign judgment would be recognised and enforced in 2. the judgment is for a fixed sum of money. Hong Kong. Enforcement of Judgments in Hong Kong Once a registered foreign judgment or a local Hong Kong judgment 2.2 What constitutes a ‘judgment’ capable of recognition and enforcement in your jurisdiction? has been obtained, it can be enforced in Hong Kong. For the procedure for enforcement, see question 2.5 below. Under the Ordinance, a ‘judgment’ means: (i) a judgment or order given or made by a court in any civil proceedings; or (ii) a judgment
88 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Gall Hong Kong
3. If a judgment (default or otherwise) is obtained, the judgment 2.4 What (if any) connection to the jurisdiction is required creditor may proceed with the enforcement of the judgment for your courts to accept jurisdiction for recognition in the same way as any Hong Kong judgment. and enforcement of a foreign judgment? Enforcement of Judgment
As long as the foreign judgment meets the requirements for Where a foreign judgment has been successfully registered under the recognition under either the Ordinance or common law, then it can Ordinance or sued upon under common law, it can then be enforced be recognised and enforced in Hong Kong. in Hong Kong. The method of enforcement will vary depend on the type of enforcement desired. For example, the judgment may be enforced by garnishee proceedings. 2.5 Is there a difference between recognition and The process is as follows: enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? 1. The judgment creditor issues an ex parte summons supported Hong Kong by an affidavit stating certain information, including the identity of the garnishee (e.g. a bank) in Hong Kong and that Yes, there is a difference between the recognition and enforcement the garnishee is indebted to the judgment debtor. of judgments. 2. At the hearing of the garnishee order to show cause, an order In the context of the Ordinance, recognition means that a foreign nisi will generally be made specifying a further hearing date judgment is given the same force and effect as if the foreign to allow for the garnishee to attend. judgment were a judgment of the Hong Kong courts. 3. At the further hearing, the Court may grant a garnishee order In the context of the common law, the foreign judgment is recognised absolute if the garnishee does not attend or does not dispute only to the extent that it is for the payment of a liquidated sum of liability to the judgment debtor. money on which judgment can be given directly by the Hong Kong courts. 2.7 On what grounds can recognition/enforcement of a The practical effect of recognition is that the foreign judgment judgment be challenged? When can such a challenge becomes enforceable in Hong Kong. It does not automatically be made? lead to enforcement of the same foreign judgment and a judgment creditor must take additional steps for enforcement. For example, a The grounds for challenging the recognition of a judgment differ judgment creditor holding a recognised foreign judgment may seek depending on the method of recognition of the foreign judgment. to enforce that judgment by applying for a garnishee order to attach Grounds for Challenging recognition of a Foreign Judgment under funds belonging to the judgment debtor (such as funds in a bank the Ordinance account) and have those funds paid to the judgment creditor. A judgment debtor can apply to set aside a foreign judgment registered under the Ordinance on the following grounds: 2.6 Briefly explain the procedure for recognising and 1. the requirements for registration were not met; enforcing a foreign judgment in your jurisdiction. 2. the foreign court had no jurisdiction; 3. the judgment debtor did not receive notice of the foreign Procedure for Recognition under the Ordinance proceedings; A foreign judgment can be recognised under the Ordinance by the 4. the judgment was obtained by fraud; procedure below: 5. the enforcement of the foreign judgment is contrary to public 1. the judgment creditor of the foreign judgment applies ex policy in Hong Kong; or parte to the Court of First Instance of Hong Kong to register the foreign judgment, which should be supported by an 6. the rights under the judgment are not vested in the person by affidavit and a draft order setting out the basis upon which whom the application for registration was made. the requirements under the Ordinance are met (see question Grounds for Challenging Recognition of a Foreign Judgment under 2.3 above); common law 2. if the application and other documents are in order, the court Under common law, a judgment creditor seeking to recognise a will register the foreign judgment; foreign judgment can bring an action in Hong Kong to sue upon 3. the judgment creditor must serve the notice of registration on a foreign judgment. Accordingly, the judgment debtor need only the judgment debtor; defend the action brought in Hong Kong by the judgment creditor. 4. the judgment creditor may attempt to set the registration The grounds on which the judgment debtor may defend the action aside (the grounds are set out in question 2.7 below); and are as follows: 5. if the registration is not set aside within the specified time 1. the foreign court had no jurisdiction over the claim; (see question 2.7 below), the judgment creditor may proceed 2. the foreign judgment is not final and/or conclusive over the with the enforcement of the registered foreign judgment. merits of the claim; or Procedure for Recognition under the common law 3. the claim is not for a fixed sum of money. A foreign judgment that cannot be registered under the Ordinance Challenging the Enforcement of a Judgment can be recognised under the common law by the procedure below: If the judgment debtor successfully challenges the recognition of 1. The judgment creditor of the foreign judgment commences the foreign judgment, the foreign judgment would be rendered civil proceedings in Hong Kong by way of writ, which can be unenforceable in Hong Kong. On the contrary, if the judgment endorsed or include a statement of claim setting out the claim of a debt arising from the foreign judgment. debtor unsuccessfully challenges the recognition of the foreign judgment, the judgment debtor may appeal the decision and apply 2. The writ must then be served on the Defendant. If the for a stay of execution of the recognised foreign judgment. If a stay Defendant either (a) does not state its intention to defend within 14 days, or (b) provide a defence within 28 days, the of execution is not granted, the judgment debtor has no standing to Plaintiff can apply for a default judgment. challenge enforcement of the foreign judgment.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 89 Gall Hong Kong
2.8 What, if any, is the relevant legal framework applicable 2.13 What is the relevant limitation period to recognise and to recognising and enforcing foreign judgments enforce a foreign judgment? relating to specific subject matters? Under section 4(1) of the Ordinance, a judgment creditor has six years The following subject matters are governed by a different legal from the date of the foreign judgment to have it registered in the Court framework than that of the Ordinance and the common law: of First Instance in Hong Kong. The same limitation period applies ■ family law and insolvency matters under the Maintenance for recognition of a foreign judgment under common law. Orders (Reciprocal Enforcement) Ordinance (Cap. 188); ■ particular regimes relating to judgments in connection with the carriage of nuclear materials or oils under the Nuclear 3 Special Enforcement Regimes Applicable Hong Kong Material (Liability for Carriage) Ordinance (Cap. 479) and to Judgments from Certain Countries Merchant Shipping (Liability and Compensation for Oil Pollution) Ordinance (Cap. 414); 3.1 With reference to each of the specific regimes set ■ applications for assistance under the Mutual Legal Assistance out in question 1.1, what requirements (in form and in Criminal Matters Ordinance (Cap. 525); and substance) must the judgment satisfy in order to be ■ probate and letters of administration under the Probate and recognised and enforceable under the respective Administration Ordinance (Cap. 10). regime?
2.9 What is your court’s approach to recognition and See questions 2.3 and 2.5 above in relation to the requirements for enforcement of a foreign judgment when there is: (a) a recognition and enforcement of a foreign judgment. If a foreign conflicting local judgment between the parties relating judgment falls within the statutory regime and is from a country set to the same issue; or (b) local proceedings pending out in question 1.1 above, it must be registered under the Ordinance between the parties? and no other process can be invoked (including any common law process). The Hong Kong courts generally take a liberal approach to the The Arbitration Ordinance (Cap. 609) (the “Arbitration Ordinance”) recognition and enforcement of foreign judgments. in Hong Kong provides that any award made in any country Where there is a conflicting local judgment between the parties (including Hong Kong) can be enforced in Hong Kong as though it relating to the same issue, it is unlikely that a Hong Kong Court will were a judgment from the Hong Kong Court of First Instance (the consider the foreign judgment as final and conclusive whether for “HK Court”), provided that leave is obtained from the HK Court. recognition under the Ordinance or under common law. The party seeking leave to enforce must produce: Where there are local proceedings pending between the parties 1. An authenticated original award or a duly certified copy of it. concerning unrelated issues to that of the foreign judgment, there 2. The original arbitration agreement or a duly certified copy of it. is unlikely to be any effect on recognition of that foreign judgment in Hong Kong. 3. If the award or agreement is not in either Chinese or English, a translation of it in either language must be produced and certified by an official or sworn translator, or diplomatic or 2.10 What is your court’s approach to recognition and consular agent. enforcement of a foreign judgment when there is a conflicting local law or prior judgment on the same or a similar issue, but between different parties? 3.2 With reference to each of the specific regimes set out in question 1.1, does the regime specify a difference between recognition and enforcement? If so, what is Provided that a foreign judgment is final and conclusive, there is the difference between the legal effect of recognition unlikely to be any effect on the recognition and enforcement of that and enforcement? foreign judgment in Hong Kong when there is a conflicting local law or prior judgment on the same of a similar issue, but different parties. In respect of foreign judgments, the difference between recognition and enforcement is set out above at question 2.5. 2.11 What is your court’s approach to recognition and For arbitral awards, the Arbitration Ordinance makes no distinction enforcement of a foreign judgment that purports to between recognition and enforcement. apply the law of your country?
See question 2.10 above. The Hong Kong courts will not normally 3.3 With reference to each of the specific regimes set out in question 1.1, briefly explain the procedure for look at the underlying merits of the foreign judgment as long as all recognising and enforcing a foreign judgment. of the other requirements set out in question 2.6 are met. The procedure for recognising a foreign judgment is set out at 2.12 Are there any differences in the rules and procedure question 2.6 above. of recognition and enforcement between the various To enforce any arbitral award made in any country as though it were states/regions/provinces in your country? Please explain. a judgment from the HK Court, leave can be obtained from the HK Court by the following process: No. The laws of Hong Kong apply to Hong Kong generally. 1. Making an ex parte application with a supporting affidavit. The duty of full and frank disclosure applies.
90 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Gall Hong Kong
2. The affidavit should exhibit a certified copy of the Award and the Arbitration Agreement, together with a certified English 4 Enforcement translation if the Award and/or Arbitration Agreement are not in English, and briefly set out the factual background of the 4.1 Once a foreign judgment is recognised and enforced, arbitration and confirm that the award has not been complied what are the general methods of enforcement with. available to a judgment creditor? 3. While it is not a requirement to make a demand for payment before making an enforcement application, it is common Once the foreign judgment or arbitral award becomes a Hong Kong practice to do so. This can be done by a written demand for payment as soon as possible. Evidence of unsatisfied judgment, the normal enforcement routes become available to the demands for the sum owing under the award should be set Judgment Creditor. out in the affidavit. This can be done in several ways: by issuing a writ of execution Hong Kong 4. Once leave has been granted, the order must be served on the which directs the bailiff to seize and sell the Judgment Debtor’s other party who will have 14 days to contest the order and set goods to satisfy the judgment debt, by presentation of a petition it aside. The award cannot be enforced until the expiration of to wind up a judgment debtor company or to declare bankrupt this period. an individual Judgment Debtor; by Examination of the judgment 5. If the order is unopposed after 14 days, the HK Court may debtor (if company, then one of its officers) before a master by oral grant leave to allow enforcement of the arbitral award as if cross-examination; by garnishee proceedings; or by charging order. it were a judgment of the HK Court. The party seeking to enforce the arbitral award can then proceed to enforcement in the usual way (see questions 2.5 above and 4.1 below). 5 Other Matters
3.4 With reference to each of the specific regimes set out 5.1 Have there been any noteworthy recent (in the last in question 1.1, on what grounds can recognition/ 12 months) legal developments in your jurisdiction enforcement of a judgment be challenged under the relevant to the recognition and enforcement of foreign special regime? When can such a challenge be made? judgments? Please provide a brief description.
The grounds on which recognition and enforcement of a foreign In 2016, a Special Commission was established by the Hague judgment can be challenged are set out at question 2.7 above. Conference on Private International Law in 2016 to prepare a In relation to arbitral awards, the HK Court can refuse to grant leave draft Convention on the Recognition and Enforcement of Foreign to enforce an arbitral award under the Arbitration Ordinance if: Judgments, in order to enhance access to justice and facilitate cross- 1. A party to the arbitration agreement was under some border trade and investment by reducing costs and risks associated incapacity. with cross-border dealings. The Special Commission convened in 2. The arbitration agreement was not valid, either under the law, February 2017 and November 2017 to discuss the draft Convention parties subjected it or under the law of the country where it but it is yet to be finalised. was made. 3. The dispute related to matters not contemplated within the 5.2 Are there any particular tips you would give, or terms of arbitration or are beyond the scope of terms of critical issues that you would flag, to clients seeking arbitration. to recognise and enforce a foreign judgment in your 4. The arbitral procedure was contrary to what parties agreed or jurisdiction? the law where arbitration took place. 5. The award is not yet binding on parties or has been set aside ■ In straightforward cases, an application under common law or suspended by a competent authority. takes around six to 12 months. Under the Ordinance, the process takes around two to four months, if uncontested. (The above points being the “Grounds of Refusal”.) ■ Affidavits in support of recognition under the Ordinance It should be noted that the Arbitration Ordinance draws a subtle should include any prior challenges to jurisdiction and distinction between those awards made in a territory that is party to dismissal of the same. Similarly, if a party has submitted the New York Convention (a “Convention Award”) and those that to the jurisdiction of a foreign court or arbitral tribunal are not (a “Non-Convention Award”). without challenge, this should also be noted in the affidavit to For Convention Awards, the enforcement can only be refused on one strengthen the application. of the Grounds of Refusal set out above. The HK Court does not ■ If matters become contested, a judgment creditor may be well have residual discretion to refuse. advised to take out an additional application for security for costs or an order that interim payment be made in court to For Non-Convention Awards, the HK Court may refuse to grant safeguard the judgment creditor’s interests pending contested leave on any one of the Grounds of Refusal and is not bound to litigation in Hong Kong. enforce the Non-Convention Award. ■ Enforcement proceedings in arbitral awards are held in In short, the HK Court retains residual discretion for any reason to chambers (not open to the public). A judgment creditor may refuse leave to enforce a Non-Convention Award, whereas no such seek further anonymity and/or confidentiality by seeking discretion is retained for Convention Awards. orders that the arbitral award be kept sealed and confidential.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 91 Gall Hong Kong
Nick Gall Lydia Mak Gall Gall 3/F Dina House, Ruttonjee Centre 3/F Dina House, Ruttonjee Centre 11 Duddell Street, Central 11 Duddell Street, Central Hong Kong Hong Kong
Tel: +852 3405 7666 Tel: +852 3405 7626 Email: [email protected] Email: [email protected] URL: www.gallhk.com URL: www.gallhk.com
Nick is Senior Partner and Head of Litigation at Gall. He has acted Lydia has experience in a variety of commercial and civil litigation Hong Kong for publicly listed companies, senior employees, the Hong Kong matters, including contractual disputes, insolvency and fraud/asset Government, the US Government, major international banks and tracing, which often involve a cross-border element. She acts for corporations throughout the world. private, commercial and institutional clients through all stages of litigation, from pre-action up to trial. Nick has extensive experience in dealing with multi-jurisdictional fraud and international asset tracing litigation. His work often requires Lydia speaks English, Cantonese and Mandarin. making cross-border applications, freezing/gagging applications, urgent injunctive relief, the examination of senior executives/bank officers and recovery and enforcement proceedings generally. He also has extensive experience in forcing banks and financial institutions to provide information to assist in the tracing and recovery of funds and fending off vulture funds in respect of international sovereign debt recoveries. Nick is also regularly instructed to act in respect of investigations and charges arising out of the Independent Commission Against Corruption and other regulatory bodies in Hong Kong.
Gall is a leading independent Hong Kong law firm focusing primarily on dispute resolution. We specialise in handling highly complex disputes, many of which involve multi-jurisdictional litigation. Our partners all come from international firms and have practised in Hong Kong or overseas for many years. They have a wealth of experience in a wide variety of litigation, mediation and arbitration. We use a partner led, team-based approach to complex litigation, drawing upon the legal and linguistic skills of solicitors with different areas of expertise. Our core practice areas include: commercial litigation; fraud and asset tracing; employment disputes; insolvencies; obtaining emergency injunctive relief remedies; regulatory and criminal matters; family matters; and China- related matters. As an independent firm, we are regularly referred work by law firms in other countries. We have strong working relationships with major firms in the world’s leading jurisdictions and work with a large network of dispute resolution providers around the world. We are a key point of reference for law firms and companies that would otherwise have no representation in Hong Kong. Gall is also trusted by the Magic Circle and City firms to act for their clients where they are unable to act owing to conflicts of interest.
92 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Chapter 17
India
Jafa & Javali, Advocates Kirit S. Javali
1 Country Finder 2 General Regime
1.1 Please set out the various regimes applicable 2.1 Absent any applicable special regime, what is the to recognising and enforcing judgments in your legal framework under which a foreign judgment jurisdiction and the names of the countries to which would be recognised and enforced in your such special regimes apply. jurisdiction?
Applicable Law/ Relevant Corresponding The Code of Civil Procedure, 1908 (hereinafter referred to as Statutory Regime Jurisdiction(s) Section Below the “CPC”) governs the execution of decrees, whether foreign or domestic, in India. ■ Malaysia: High Court and Court of Appeal. 2.2 What constitutes a ‘judgment’ capable of recognition ■ Colony of Aden: and enforcement in your jurisdiction? Supreme Court of Aden. New Zealand and A judgment is followed by a decree which is its operating part. India has not ■ Cooks Island, Trust “Judgment” means the statement given by a judge of the grounds ratified any Territory of Western international treaty of a decree or order, in terms of Section 2(9) of the Civil Procedure Samoa: Supreme Code. Order 20, Rule 4(2) which says that a judgment: “Shall contain on the recognition Court of New and enforcement of Zealand. a concise statement of the case, the points for determination, the foreign judgments. decision thereon and the reasons for such decision”. This document India is not a ■ Burma: all civil and revenue courts. contains the contention of concerned parties, the facts of the case signatory to the Hague Convention ■ United Kingdom of and the controversy and in what manner it was settled. The process on Recognition Great Britain and of reasoning by which the court came to the ultimate conclusion and and Enforcement Northern Ireland: decreed the suit should be reflected clearly in the judgment. of Foreign House of Lords, Judgments in Civil Court of Appeal, As regards a foreign judgment or decree it should be conclusive as and Commercial High Court of to any matter adjudicated by it. The test for conclusiveness of a England, Court Explanation 1 Matters, 1971. of Sessions in to Section 44A foreign judgment or decree is laid down in Section 13 of the CPC Scotland, the High of India’s Civil as stated below. Such matters Court of Ireland, the Procedure Code. are dealt with in Court of Chancery. India under the ■ Colony of Fiji: 2.3 What requirements (in form and substance) must a provisions of the Supreme Court of foreign judgment satisfy in order to be recognised Civil Procedure Fiji. and enforceable in your jurisdiction? Code 1908 ■ Hong Kong (“CPC”). (The and Republic of A foreign judgment means a judgment of a foreign court, where Civil Procedure Singapore. foreign court refers to a court situated outside of India and not Code provides that ■ Trinidad and an Indian court may Tobago. established or continued by the authority of the Indian Government. enforce a foreign Foreign judgments which are issued by superior courts of a country ■ Papua New Guinea: judgment so long notified as reciprocating territory (which includes the United as it conforms to Supreme Court. certain conditions.) ■ Bangladesh: Kingdom and Singapore), and for a sum of money (money which is Supreme Court and not payable in respect of taxes or other similar charges) is payable Courts of District and may be enforced in India between the parties as a judgment of and subordinate judges. an Indian court. A foreign judgment or decree should be conclusive as to any matter adjudicated by it. The test for conclusiveness of a ■ Canada: Supreme Court of foreign judgment or decree is laid down in Section 13 of the CPC Ontario. which states that a foreign judgment shall be conclusive unless:
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 93 Jafa & Javali, Advocates India
a) it has not been pronounced by a court of competent jurisdiction; b) it has not been given on the merits of the case; 2.6 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. c) it appears, on the face of the proceedings, to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable; Foreign judgments under Indian law are classified into two broad categories based on the territory pronouncing the decree: d) the proceedings in which the judgment was obtained are opposed to natural justice; ■ Reciprocating territory. e) it has been obtained by fraud; or ■ Non-reciprocating territories. f) it sustains a claim founded on a breach of any law in force in A foreign judgment from a recognised court in a reciprocating India India. territory can be executed straightaway as per Section 44A and Order Thus, before enforcing a foreign judgment or decree, the party XXI, Rule 22 of the Code of Civil Procedure 1908 (“CPC”). enforcing it must ensure that the foreign judgment or decree passes the tests above. If the foreign judgment or decree fails any of these tests, it 2.7 On what grounds can recognition/enforcement of a will not be regarded as conclusive and hence not enforceable in India. judgment be challenged? When can such a challenge The Code presumes in favour of the competency of the jurisdiction be made? of the foreign court, unless proved to the contrary. The most common ground for challenging the enforceability of a The landmark judgment of Ramanathan Chettyar and Another foreign judgment in India is jurisdiction. For a foreign judgment v. Kalimuthu Pillay 18 Ind Cas 189 and Another elucidates the to be conclusive and enforceable, it must be rendered by a court of following circumstances in which the foreign court is said to have competent jurisdiction whose competence has been ascertained. In competent jurisdiction: addition, Section 13 of the CPC makes a foreign judgment obtained a) where the defendant is a subject of the country in which the by fraud unenforceable in India. judgment was passed; b) where the defendant is a resident of the country in which the action was commenced; 2.8 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments c) where the defendant has, in a previous case, filed a suit in the relating to specific subject matters? same forum; d) where the defendant has voluntarily appeared; and A foreign judgment or decree should be conclusive as to any matter e) where the defendant has contracted to submit himself to the adjudicated by it. Foreign enforcement orders/(pre-judgment) jurisdiction of the foreign court. attachment orders/awards are enforceable, if they satisfy the test and Recognition of a foreign judgment also depends upon the conditions conditions as stipulated Section 13 of the CPC. of reciprocity which are the foundation of international treaties governing the recognition and enforcement of foreign judgments in 2.9 What is your court’s approach to recognition and India. enforcement of a foreign judgment when there is: (a) a Execution/enforcement may be refused if the judgment debtor conflicting local judgment between the parties relating proves any of the conditions mentioned above. Once a foreign to the same issue; or (b) local proceedings pending judgment is held to be enforceable, it will be enforced in the same between the parties? manner as a decree of an Indian court. There is no provision under Indian law for the enforcement of interim orders of a foreign court. The principle of res judicata embodied in the Code prohibits a court of competent jurisdiction from trying a suit on a matter that has been substantially and finally decided in a prior suit between the same 2.4 What (if any) connection to the jurisdiction is required parties. Hence, a decree passed by a superior court of a foreign for your courts to accept jurisdiction for recognition and enforcement of a foreign judgment? country cannot be enforced in India if it contravenes an earlier conclusive judgment passed by a competent court in a suit between the same parties, as it is enforced as a domestic decree. As per Section 44A of the code, the competent court for the enforcement of a foreign judgment is the District Court, which has jurisdiction to entertain the matter in dispute or a high court, which 2.10 What is your court’s approach to recognition and exercises ordinary original civil jurisdiction on the subject matter enforcement of a foreign judgment when there is a of the dispute. conflicting local law or prior judgment on the same or a similar issue, but between different parties? In case of a judgment from a non-reciprocating territory, a civil suit on the foreign judgment must be filed before the competent court. Generally, the basis for challenging enforcement under common law will not include a determination of the merits of the claim/award 2.5 Is there a difference between recognition and being enforced. A foreign judgment may not therefore be challenged enforcement of judgments? If so, what are the legal on the grounds that the foreign court was manifestly wrong on effects of recognition and enforcement respectively? the merits of the case. However, if the foreign court’s judgment conflicts with an existing Indian law or if the foreign judgment is Yes. Recognition involves acceptance of a judicial decision by irreconcilable with an Indian judgment on the same issue, then the courts of a foreign jurisdiction. Enforcement envisages filing an court may refuse to recognise the foreign judgment on grounds that execution petition where a foreign judgment is from a reciprocating its recognition and enforcement would be contrary to public policy. territory under Section 44A of the Code (subject to fulfilment of conditions), or a suit where a foreign judgment is obtained from a non-reciprocating territory.
94 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Jafa & Javali, Advocates India
fulfilling the criteria. However, judgments of courts from non- 2.11 What is your court’s approach to recognition and reciprocating territories are enforceable only after filing a new civil enforcement of a foreign judgment that purports to suit in India, wherein the foreign judgment simply has evidentiary apply the law of your country? value.
The provisions and rules as prescribed by the Civil Procedure Code, 1908 on the recognition and enforcement of foreign judgments shall 3.3 With reference to each of the specific regimes set apply. The fact that the foreign judgment purports to apply Indian out in question 1.1, briefly explain the procedure for recognising and enforcing a foreign judgment. law does not transform it into a judgment of the local courts.
A foreign judgment must be passed by a court with competent India 2.12 Are there any differences in the rules and procedure jurisdiction otherwise the judgment is null and void. In the case of recognition and enforcement between the various of R.M.V. Vellachi Achi v. R.M.A. Ramanathan Chettiar [AIR 1973 states/regions/provinces in your country? Please Mad. 141], it was alleged by the respondent that since he was not a explain. subject of the foreign country, and that he had not submitted to the jurisdiction of the foreign court (the Singapore court), the decree No. The Act extends to the whole of India except to the State of could not be executed in India. The appellant, in his defence, stated Jammu and Kashmir. that the respondent was a partner of a firm which was doing business in Singapore and had instituted various suits in the Singapore courts. 2.13 What is the relevant limitation period to recognise and Therefore, the appellant argued, the respondent had accepted enforce a foreign judgment? the Singapore court’s jurisdiction. The court held that it was the firm which had accepted the jurisdiction of the foreign court and As per the provisions of the Code, foreign judgments from the respondent, in an individual capacity, had not accepted the reciprocating territories are executable in India as decrees passed jurisdiction. This was one of the reasons for which the Indian High by Indian District Courts. The Limitation Act, 1963 prescribes the Court held that the decree against the respondent was not executable. time limit for execution of a decree and for filing of a suit in the case The notice of proceedings and final orders to the defendant are of a foreign judgment. important parts of civil procedure in India. In the event that the As per the provisions of the statute of limitation, the following time defendant fails to appear in the foreign court, the foreign court must period is prescribed for the execution of decrees: three years in the decide the matter on the evidence produced by the plaintiff and the case of a decree granting a mandatory injunction commencing from judgment must not be in violation of the principles of natural justice. the date of the decree or where a date is fixed for performance; and 12 The court must examine that the defendant was served with notice years for execution of any other decree commencing from the date of the proceedings and was given an adequate opportunity to present when the decree becomes enforceable or where the decree directs the case. any payment of money or the delivery of any property to be made Where the foreign judgment is incompatible with public policy, it at a certain date or in a recurring period, when default in making the cannot be enforceable or executable in India. payment or delivery in respect of which execution is sought, takes Foreign judgments from a recognised court in a reciprocating place (provided that an application for the enforcement or execution territory are enforceable. of a decree granting a perpetual injunction shall not be subject to any period of limitation). Under the Code of Civil Procedure 1908 (“CPC”), Indian courts presume the production of any document to be a certified copy of a foreign judgment and that such a judgment was pronounced by a 3 Special Enforcement Regimes Applicable court with competent jurisdiction. The burden to prove the contrary, to Judgments from Certain Countries if any, lies upon the defendant.
3.1 With reference to each of the specific regimes set 3.4 With reference to each of the specific regimes set out out in question 1.1, what requirements (in form and in question 1.1, on what grounds can recognition/ substance) must the judgment satisfy in order to be enforcement of a judgment be challenged under the recognised and enforceable under the respective special regime? When can such a challenge be made? regime? Please see question 2.7. Please refer to question 2.2. However, in the case of a foreign judgment from a foreign court in a non-reciprocating territory, the judgment-holder has the option to file either a fresh civil action 4 Enforcement (suit) on that foreign decree or on the original cause of action, or both, in an Indian court of competent jurisdiction. 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? 3.2 With reference to each of the specific regimes set out in question 1.1, does the regime specify a difference between recognition and enforcement? If so, what is The Code of Civil Procedure 1908 (“CPC”) prescribes more than the difference between the legal effect of recognition one mode of execution of the decree. Therefore it is the judgment and enforcement? holder who has the option to choose a particular mode of executing and enforcing a judgment in his favour. Subject to the conditions In India, judgments obtained from superior courts of reciprocating and limitations prescribed, the court can order the execution of territories are directly enforceable under the Codes subject to the decree as sought by the judgment holder in its application for execution through the following methods:
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 95 Jafa & Javali, Advocates India
■ By the delivery of any property specifically decreed. However, the CPC does not permit direct enforcement of judgments ■ By the attachment, or by the attachment and sale, or by the from non-reciprocating territories without the filing of a new civil sale without attachment, of any property. suit in which the said judgment only has evidentiary value. ■ By the arrest and detention in prison of any person. ■ By the appointment of a receiver. 5 Other Matters ■ Otherwise, as the nature of the relief granted may require. A recognised foreign judgment can be enforced in India in two ways. 5.1 Have there been any noteworthy recent (in the last The Code by virtue of Section 44A of the CPC permits enforcement 12 months) legal developments in your jurisdiction
India of a judgment from a superior court of a reciprocating territory in the relevant to the recognition and enforcement of foreign same manner as a decree passed by a domestic district court. judgments? Please provide a brief description. A reciprocating territory is defined in Explanation I to Section 44A as: “Reciprocating territory” means any country or territory The Supreme Court of India in M/S Alcon Electronics Pvt. Ltd. v. outside India which the Central Government may, by notification Celem S.A. OF Fos 34320 Roujan, France & Another in Civil Appeal in the Official Gazette, declare to be a reciprocating territory for No. 10106 of 2016 held that the execution of an interlocutory order of the purposes of this Section, and “superior courts”, with reference an English Court pertaining to dismissal of challenge to its jurisdiction, to any such territory, means such courts as may be specified in the including orders for costs and interest thereon, to be maintainable said notification. in Indian Courts. It was further held that it is to the reciprocal A judgment from a court of a reciprocating territory can be directly advantage of the Courts of all nations to enforce foreign rights as far enforced in India by filing an execution application. Section 44A as practicable. To this end, broad recognition of substantive rights (1) of the CPC states that where a certified copy of a decree of any should not be defeated by some vague assumed limitations of the superior court of a reciprocating territory has been filed in a District Court. When substantive rights are so bound up in a foreign remedy, Court, the decree may be executed in India as if it had been passed the refusal to adopt the remedy would substantially deprive parties of by the District Court (meaning that the entire scheme of execution their rights. The necessity of maintaining the foreign rights outweighs of decrees, as laid down in Order 21 of the CPC, will be applicable). the practical difficulties involved in applying the foreign remedy. While filing the execution application the original certified copy of the decree along with a certificate from the superior court stating the 5.2 Are there any particular tips you would give, or extent to which the decree has been satisfied or adjusted has to be critical issues that you would flag, to clients seeking annexed to the application. to recognise and enforce a foreign judgment in your jurisdiction? Section 51 of the Code will then apply whereby the court may order measures such as attachment and sale of property or attachment Recognition and enforcement is accorded only to the judgments without sale, or the delivery of a specifically decreed property, and from the reciprocating territories with which India has signed in some cases arrest (if needed) in enforcement of a decree. reciprocal agreements only.
96 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Jafa & Javali, Advocates India
Kirit S. Javali Jafa & Javali, Advocates S-316, Panchsheel Park New Delhi -110017 India
Tel: +91 11 41641757 Email: [email protected] URL: www.jafajavali.net India
Mr. Kirit S. Javali, after completing his LL.B. (Hons) from the University of Leeds, U.K., was called to the Bar from Gray’s Inn in 1996. Thereafter, he underwent a stint of six months’ pupillage with Gray’s Inn Chambers under Dr. Phillip Baker, QC and also trained with the City law firm of TLT Solicitors in London, U.K. Upon his return to India, he worked with the Mumbai law firm of Crawford Bayley & Co. Amongst other firms, he is also a member of the Hon’ble Society of Gray’s Inn, General Council of the Bar of England & Wales, Bar Council of Delhi, India International Law Foundation Supreme Court Bar Association and the Delhi High Court Bar Association. Being the litigation unit head, Mr. Kirit S. Javali has also acted for Indian and multinational companies in various arbitration proceedings in India, including ICC international arbitration proceedings conducted in London, U.K. He regularly appears and argues matters in the Supreme Court of India, including various High Courts in the country. His other practice areas include banking, company and commercial laws, intellectual property rights, information technology and life sciences.
Jafa & Javali is a full-service New Delhi based law firm, established in 2003, having associated law offices in Bangalore, Mumbai and Chennai, India’s leading commercial centres. In recognition of the increasingly multinational character of today’s commercial transactions and negotiations, Jafa & Javali’s lawyers have actively, over the years, worked and interacted with leading international law firms and transnational overseas entities, which augment the firm’s capabilities in handling work and issues involving cross-border business operations. The firm places a special emphasis upon understanding its client’s commercial interests by providing practical solutions within the framework of applicable laws, policies and regulations in force. Some of the partners of Jafa & Javali hold formal overseas legal qualifications and regularly contribute articles to leading newspapers and journals, and lecture on a variety of current legal issues. In acknowledgment of Jafa & Javali’s very strong client service commitment, Jafa & Javali is rated by the Asia Pacific Legal 500 (www.legal500.com) as a recognised and competent law firm for Corporate/M&A, Banking, Finance and Capital Markets, Intellectual Property, Projects and Energy and Real Estate. Jafa & Javali has also been chosen as the winner of the Corporate Intl Magazine practice award for “Best Law Firm in India for Dispute Resolution work 2009”.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 97 Chapter 18
Ireland Julie Murphy-O’Connor
Matheson Gearóid Carey
1 Country Finder 2 General Regime
1.1 Please set out the various regimes applicable 2.1 Absent any applicable special regime, what is the to recognising and enforcing judgments in your legal framework under which a foreign judgment jurisdiction and the names of the countries to which would be recognised and enforced in your such special regimes apply. jurisdiction?
The general Common Law regime of the legal framework under Applicable Law/ Relevant Corresponding Statutory Regime Jurisdiction(s) Section Below which a foreign judgment, being civil or commercial (but not Judgments from all insolvency) judgments from all countries to which EU Regulation countries to which 1215/2012, EC Regulation 44/2001 or the Lugano Convention do EU Regulation not apply, which would be recognised and enforced in Ireland, is 1215/2012 and the set out below. For the purpose of this analysis, therefore, ‘foreign Lugano Convention Common Law. Section 2. judgments’ are judgments from countries other than EU/EFTA do not apply (i.e., all countries other Member States. than EU countries, Recognition and enforcement of a foreign judgment is pursued by Norway, Switzerland way of commencing fresh proceedings by way of an originating and Iceland). High Court summons. Any fresh proceedings commenced are EU Regulation required to be issued by the Central Office of the High Court and 1215/2012 (for relevant proceedings served on the defendant/judgment debtor. For non-EU and non- EU countries. Section 3. commenced on or Lugano Convention judgments, leave of the High Court must first be after 10 January obtained to issue and serve the proceedings out of the jurisdiction. 2015). Order 11, Rule 1(q) of the Rules of the Superior Courts identifies EC Regulation that such leave may be granted in cases brought to enforce any 44/2001 (for foreign judgment. relevant proceedings EU countries. Section 3. commenced before As addressed below, since recognition and enforcement of foreign 10 January 2015). judgments is permissible only in respect of money judgments, EU countries, a party seeking recognition and enforcement of a foreign money Lugano Convention. Norway, Switzerland Section 3. judgment may proceed by way of summary summons (which in and Iceland. domestic procedure is, inter alia, reserved for claims for a debt or New York liquidated sums). Convention on Arbitration awards Recognition and rendered in countries Section 3. Enforcement of which are signatories 2.2 What constitutes a ‘judgment’ capable of recognition Foreign Arbitral to the Convention. and enforcement in your jurisdiction? Awards 1958. EU countries where EC Regulation This depends on the applicable law or statutory regime. the claims are Section 3. 805/2004. uncontested. For enforcement pursuant to EU Regulation 1215/2012, EC Regulation 44/2001 and the Lugano Convention, those instruments themselves specify that they apply to judgments “whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as a decision on the determination of costs or expenses by an officer of the court”. Accordingly, what constitutes a judgment under those instruments is broad and includes orders or judgments in the nature of injunctions and costs determinations.
98 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Matheson Ireland
For enforcement at Common Law, what constitutes a judgment Although having assets in the jurisdiction is not a prerequisite to capable of recognition and enforcement is narrower. To be successfully obtaining an order for recognition and enforcement of enforceable at Common Law, the relevant judgment or order must a foreign judgment or foreign arbitral award, as a practical matter be final and conclusive from the court that pronounced it andit the potential applicant should be able to satisfy the Irish court that, must involve a monetary award. The monetary award must either if there are currently no assets in Ireland against which to enforce, be in a specified and definite amount or it must be capable of making an order for recognition and enforcement is not an exercise straightforward arithmetical calculation. in futility. They will, therefore, need to establish that the judgment debtor has, or is likely to have, assets within the jurisdiction against which to enforce the foreign judgment. Accordingly, some real 2.3 What requirements (in form and substance) must a connection – whether current or prospective – must be demonstrated
foreign judgment satisfy in order to be recognised Ireland and enforceable in your jurisdiction? if a party seeking enforcement is to avoid a successful jurisdictional challenge to the proceedings by the respondent(s). The relevant prerequisites to be met under Irish common law in order for a court to recognise and enforce a foreign judgment (being 2.5 Is there a difference between recognition and a judgment from a country other than an EU/EFTA Member State) enforcement of judgments? If so, what are the legal are: effects of recognition and enforcement respectively? (a) the foreign judgment must be for a definite sum and, therefore, only money judgments may be enforced. Moreover, Irish Recognition is the process of giving the same effect or status to the courts will not enforce foreign revenue, penal or other public judgment in the country where enforcement is sought as it has in the laws, whether directly or through the recognition of a foreign state where the judgment was given. Under Irish law, enforcement judgment; is typically understood as being made the subject of a process of (b) the foreign judgment must be final and conclusive, which execution. As a precursor to that, however, the judgment will need means that it must be final and unalterable by the court that to be recognised, such that recognition of a judgment is, save in very pronounced it. Even if an appeal is pending, the judgment limited circumstances, a precondition to enforcement. may still be considered final and conclusive unless the appeal has the effect of staying the judgment; and Since only foreign money judgments may be recognised and enforced in Ireland, it would be extremely unusual for recognition (c) the judgment against the defendant must be given by a court to be sought on its own as enforcement (execution) is typically the of competent jurisdiction. This means that the foreign court must have had “jurisdiction” under Irish conflict of law rules objective in pursuing the proceedings. to deliver the final and conclusive judgment in respect of which recognition and enforcement is sought. Submission 2.6 Briefly explain the procedure for recognising and to the jurisdiction of the foreign court by the defendant will enforcing a foreign judgment in your jurisdiction. usually arise by virtue of a prior agreement to that effect or by participation in the foreign proceedings, or through presence in the jurisdiction at the time of the proceedings. Assertion Where an application for leave to issue and serve the proceedings out of jurisdiction by a foreign court on the bases of nationality of the jurisdiction is required to be made to the High Court, this will or allegiance of the defendant, the domicile of the defendant, usually be done on an ex parte basis, grounded upon an affidavit. reciprocity, the cause of action accruing in the foreign country That affidavit will generally recite the history of the matter and or the possession of property by the defendant in the foreign will exhibit the documents referred to above at question 2.3. It will country may not of themselves be sufficient bases for the also usually aver to the fact that the judgment involved is a money Irish courts to accept that the foreign courts had jurisdiction. judgment, is final and conclusive, and was delivered by a court of For recognition and enforcement of foreign judgments, a verified/ competent jurisdiction and is enforceable in that jurisdiction. certified/sealed copy of the foreign judgment is required. Ifthe Once the (summary) summons has been issued and served, the foreign judgment is not in an official language of the State (i.e., next step for the plaintiff is to issue a motion seeking an order for English or Irish), it will need to be translated into either Irish or recognition/enforcement. That motion is also grounded on affidavit (more usually) English. If the foreign judgment has been obtained and it would also usually exhibit the documents referred to above in default, proof of service of the judgment on the defendant/ and make the same averments as would be made when seeking judgment debtor will also be required. leave to issue and serve the proceedings out of the jurisdiction. If the defendant/judgment debtor has not entered an appearance to the 2.4 What (if any) connection to the jurisdiction is required fresh Irish proceedings, the plaintiff will need to put evidence of for your courts to accept jurisdiction for recognition service of the originating summons and the motion before the court and enforcement of a foreign judgment? by way of affidavit.
An insufficient connection to the jurisdiction is not a basis upon 2.7 On what grounds can recognition/enforcement of a which to challenge jurisdiction where recognition and enforcement judgment be challenged? When can such a challenge is sought pursuant to EU Regulation 1215/2012, EC Regulation be made? 44/2001 and the Lugano Convention. The only grounds identified in those instruments for challenging recognition are summarised in Recognition/enforcement of a foreign judgment can be challenged question 3.4 below, and an insufficient connection to the jurisdiction on a number of grounds. The High Court has a discretion to refuse is not one of them. recognition and enforcement of a foreign judgment on the following For enforcement of judgments and arbitral awards at Common Law, bases: and subject to question 5.1 below, the recent case law states that a (a) fraud in procuring the foreign judgment (irrespective of potential applicant should be satisfied that there is a “solid practical whether fraud has been raised as a defence in the foreign benefit” to bringing the enforcement proceedings in Ireland. proceedings or not);
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 99 Matheson Ireland
(b) lack of jurisdiction (whether of the foreign court or the Irish where there is a conflicting local law or prior judgment on the court); same or similar issue, but between different parties. However, (c) it is contrary to Irish public policy; as a general principle, the Irish court has no power to revisit or (d) it is contrary to principles of natural justice (such as the right reconsider a judgment pronounced by a court which was competent to be given due notice of the proceedings, an opportunity to to exercise jurisdiction over the parties. That is a matter that should be heard by an impartial tribunal, etc.); and be determined locally. (e) where the judgment is inconsistent with an earlier judgment There is authority from other common law jurisdictions (which based on the same cause of action between the same parties would be persuasive before an Irish court) that foreign judgments (whether analysed on a res judicata or estoppel basis – see the premised on legal principles which are contrary to those applicable responses to questions 2.9 and 2.10 below).
Ireland in the jurisdiction where recognition and enforcement is sought are As a general principle, and on the basis of respect and comity still capable of being recognised and enforced. between international courts, the approach of the Irish court to A prior judgment on the same or similar issue involving different proceedings seeking recognition and enforcement is generally parties should not preclude an Irish court from recognising and positive. Challenges to proceedings seeking recognition and enforcing a foreign judgment. The fact that different parties are enforcement are rare and, since Irish authority is limited, it is not involved means that the criteria for: (i) res judicata; and (ii) cause possible to offer any real view on whether judgments from certain of action and issue estoppel which might otherwise be a basis for or specific countries are subject to greater scrutiny. refusing recognition and enforcement, are not capable of being met. Most challenges would be brought as a defence to the request for recognition and enforcement as part of the substantive case. 2.11 What is your court’s approach to recognition and However, it would be usual that a challenge to the jurisdiction of the enforcement of a foreign judgment that purports to Irish court would be raised as a preliminary issue. apply the law of your country?
2.8 What, if any, is the relevant legal framework applicable Although there is no specific authority which identifies the Irish to recognising and enforcing foreign judgments court’s approach to recognition and enforcement of a judgment relating to specific subject matters? which purports to apply Irish law, as a general principle, the Irish court is not entitled to investigate the propriety of proceedings before The legal framework relevant to the general regime is applicable in the foreign court and, if a party is dissatisfied with the outcome of all cases save as identified in section 3 below. Accordingly, there is those proceedings, its recourse is by way of appellate proceedings in no subject matter-specific legal framework. the forum of the judgment. Arising from that same general principle, the Irish court has no power to revisit or reconsider a judgment pronounced by a court which was competent to exercise jurisdiction 2.9 What is your court’s approach to recognition and enforcement of a foreign judgment when there is: (a) a over the parties. Moreover, there is old English authority (which conflicting local judgment between the parties relating is persuasive before the Irish courts) to the effect that an alleged to the same issue; or (b) local proceedings pending mistake as to English law as applied by the foreign forum does not between the parties? excuse a defendant from performing the obligations imposed upon it by the judgment. Accordingly, there should be no difference in There is no specific Irish authority which identifies the approach of the approach of the Irish court to recognition and enforcement of a the Irish court to recognition and enforcement of a foreign judgment foreign judgment that purports to apply Irish law such that it may in such circumstances. not be impeached as to its merits. However, a conflicting local judgment on the same or similar issue involving the same parties could (based on persuasive English 2.12 Are there any differences in the rules and procedure authority) be a basis on which recognition and enforcement might be of recognition and enforcement between the various refused, depending on which judgment has priority. In determining states/regions/provinces in your country? Please priority, it would appear from any other persuasive Common Law explain. authority that the judgment to be given priority is to be determined by reference to that which was first rendered. Accordingly, a Ireland does not have a federal or state court system with different conflicting local judgment should only be effective in precluding regimes, rules and procedures. Rather, the rules and procedures recognition and enforcement of a foreign judgment where the applicable in Ireland to the recognition and enforcement of foreign local judgment was first rendered. It follows, therefore, that the judgments are uniform. existence of pending local proceedings should have no effect on the recognition and enforcement of a foreign judgment which, on the 2.13 What is the relevant limitation period to recognise and basis of the “first in time” approach, has priority. enforce a foreign judgment?
2.10 What is your court’s approach to recognition and On the basis that the obligation to pay the original foreign judgment is enforcement of a foreign judgment when there is a treated as being analogous to a breach of contract claim, the limitation conflicting local law or prior judgment on the same or period for actions based on a foreign judgment may not be brought a similar issue, but between different parties? after the expiry of six years from the date on which the foreign judgment became enforceable in the jurisdiction where rendered. There is no specific authority which identifies the approach of the Irish court to recognition and enforcement of a foreign judgment
100 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Matheson Ireland
3 Special Enforcement Regimes Applicable 3.2 With reference to each of the specific regimes set out to Judgments from Certain Countries in question 1.1, does the regime specify a difference between recognition and enforcement? If so, what is the difference between the legal effect of recognition 3.1 With reference to each of the specific regimes set and enforcement? out in question 1.1, what requirements (in form and substance) must the judgment satisfy in order to be In practical terms, those regimes do not distinguish between recognised and enforceable under the respective recognition and enforcement by reference to the formal requirements regime? to be satisfied.
EU Regulation 1215/2012 came into effect on 10 January 2015 However, since: (i) judgments issued by EU or Lugano Convention Ireland and it applies to proceedings commenced on or after 10 January courts; or (ii) foreign arbitral awards rendered in countries signatories 2015, and to judgments given on or after that date. It replaces EC to the New York Convention both may involve rulings/reliefs which Regulation 44/2001 which continues to apply to earlier proceedings are not limited to money judgments, e.g. declaratory relief, there are and judgments. Both EU Regulation 1215/2015 and EC Regulation more likely to be instances where recognition is pursued separately 44/2001 apply to questions of jurisdiction and the recognition without the need to seek enforcement (i.e., execution). and enforcement of judgments in civil and commercial disputes, although certain matters remain outside the scope of the legislation, 3.3 With reference to each of the specific regimes set such as revenue, customs and administrative matters, as well as out in question 1.1, briefly explain the procedure for certain disputes relating to bankruptcy and insolvency, family law, recognising and enforcing a foreign judgment. social security, arbitration and succession. Under EU Regulation 1215/2012, no declaration of enforceability is For judgments issued by the courts of EU Member States on or required for the enforcement of an EU Member State judgment to before 10 January 2015, Regulation 1215/2012 provides that they which it applies. In order to pursue enforcement, an applicant will shall be enforceable without any declaration of enforceability being need a copy of the judgment which satisfies the conditions necessary required. Such a judgment can now be enforced in the Member to establish its authenticity and a certificate issued pursuant to Article State addressed as if it were a judgment given by the courts of that 53, certifying the judgment is enforceable, containing an extract of Member State. the judgment and information about the costs of the proceedings For judgments issued by Lugano Convention courts and for and the calculation of interest. A translation of the certificate may judgments from EU Member States in proceedings issued before be required by the competent enforcement authority in the Member 10 January 2015 (which are, therefore, subject to EC Regulation State where enforcement is to be pursued, but such authority may 44/2001), a declaration of enforceability must be obtained. The require translation of a judgment only if it cannot proceed without it. relevant requirements to make such an application are detailed in For the enforcement of an EU Member State judgment to which Order 42A of the Rules of the Superior Courts. Such applications EC Regulation 44/2001 applies, a declaration of enforceability are made ex parte to the Master of the High Court grounded on is required for the enforcement of such judgments, in respect of affidavit. Formally, the affidavit should exhibit: which an application must be made to the High Court (known as (i) the judgment which is sought to be enforced or a certified or the exequatur procedure). To pursue an application for enforcement otherwise duly authenticated copy thereof; of such a judgment, or a judgment to which the Lugano Convention (ii) if given in default, the original or certified copy of a document applies, an original, certified or otherwise authenticated written which establishes that the party in default was served with decision or order (which may need to be translated into Irish or, the document instituting the proceedings (or equivalent more usually, English) which is final and conclusive with regard to documents) in sufficient time to enable him to arrange his the subject matter of the dispute is required. Finality in that context defence; and means final by reference to the court which pronounced it. It does (iii) documents which establish that, according to the law of the not matter that it may be subject to an appeal, albeit that recognition state in which it has been given, the judgment is enforceable and enforcement proceedings may be stayed by the High Court in and has been served. the event that an appeal is lodged. If necessary, translations of those documents in Irish or (more For enforcement of foreign arbitral awards, the award must be in usually) English should also be exhibited. writing and be signed by the arbitrator or arbitrators. In arbitral The affidavit should also identify whether the judgment provides proceedings with more than one arbitrator, the signatures of the for payment of a sum of money, whether interest is recoverable (and majority of the tribunal will suffice, so long as the reason for any if so the basis on which it accrues), address details for the parties, omitted signature is set out. The award should also state its date and the grounds on which the right to enforce the judgment vests in the the place of arbitration. party making the application and, as necessary, a statement that the EC Regulation 805/2004 applies in civil and commercial matters to judgment has not been (fully) satisfied. judgments, court settlements and authentic instruments in uncontested For foreign arbitral awards to be recognised and enforced under claims for payment of a specific sum of money. The judgment creditor the New York Convention, the applicant shall furnish: (i) the duly is only required to present the competent enforcement authorities of authenticated original award or a duly certified copy thereof; and (ii) the Member State of enforcement with: (a) a copy of the judgment; (b) the original arbitration agreement pursuant to which the arbitration a copy of the European Enforcement order certificate; and (c) where was conducted or a duly certified copy thereof. If those documents necessary, a certified translation into a relevant official language. are not in an official language (i.e., Irish or English), the applicant shall produce the necessary translations, which translations should be certified by an official or sworn translator or by a diplomatic or consular officer.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 101 Matheson Ireland
For foreign arbitral awards to be recognised and enforced under (v) if the judgment conflicts with the jurisdictional principles the New York Convention, Order 56 of the Rules of the Superior applicable to claims involving insurance, consumer contracts, Courts dictates the procedure. An application for recognition and contracts of employment or cases where exclusive jurisdiction enforcement of a foreign arbitral award is commenced by way of is mandated. originating notice of motion which is to be returnable before the An appeal of the decision of the Master may be made within one President of the High Court or the judge nominated as the judge to month of the date of the enforcement order and must be on notice. If hear all arbitration-related matters. The originating notice of motion the enforcement order is refused, the applicant can appeal to the High is grounded on affidavit which should set out the basis on which the Court within five weeks from the date of the refusal of the order. court has jurisdiction to grant the relief sought and should exhibit For foreign arbitral awards, once the formal requirements identified the arbitral award and arbitration agreement (and translations
Ireland at question 3.1 above have been met, and the procedure referenced thereof), as referenced at question 3.1 above. If the respondent at question 3.3 above has been followed, the only grounds on wishes to challenge the application for recognition and enforcement which recognition and enforcement might be refused are those set of the award, they may put in a replying affidavit and the court may, out at Article V of the New York Convention and Article 35 of the if it deems it appropriate, make directions for the conduct of the UNCITRAL Model Law (which is applicable under Irish law pursuant proceedings prior to determining the application (which may involve to the Arbitration Act 2010). Article V of the New York Convention and further affidavits). The application will typically be determined at Article 35 of the UNCITRAL Model Law are essentially identical and a hearing on the basis of the affidavit evidence exchanged with the both provide that the grounds on which recognition and enforcement benefit of oral and, possibly, written legal submissions. of a foreign arbitral award might be refused are as follows: For EC Regulation 805/2004, if the underlying money claim is not (a) if a party to the arbitration agreement was under some contested by a debtor – such as where he has agreed to it or raised no incapacity, or if the arbitration agreement is not valid under objection – the creditor may, in addition to obtaining judgment from the law applicable to it or under the law of the country where the relevant EU Court, request that the judgment obtained be certified it was made; as a European Enforcement Order in the state of origin. Subject to (b) where the party against which the award was made was not meeting specified minimum procedural standards set out in Chapter given proper notice of the appointment of the tribunal or of III of the Regulation, a certificate will issue from the Member State the arbitral proceedings or was otherwise unable to present of origin which provides that the judgment shall be recognised and their case; enforced under the same conditions as a judgment handed down in (c) if the award deals with a dispute not contemplated by or not the Member State of enforcement. To pursue such enforcement, the falling within the terms of the submission to arbitration, or creditor simply submits the judgment, the European Enforcement if it contains decisions on matters beyond the scope of the Order certificate and any necessary translation to the competent submission to arbitration; enforcement authority in the Member State addressed. (d) if the composition of the tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, was not in accordance with the law of 3.4 With reference to each of the specific regimes set out the country where the arbitration took place; in question 1.1, on what grounds can recognition/ (e) if the award has not yet become binding on the parties or enforcement of a judgment be challenged under the has been set aside or suspended by a court of the country in special regime? When can such a challenge be made? which, or under the law of which, that award was made; and (f) if the court finds that (i) the subject matter of the dispute is For judgments from EU Member States, Regulation 1215/2015 not capable of settlement by arbitration under Irish law, or provides that such judgments shall be recognised without any special (ii) the recognition or enforcement of the award would be procedure being required and that they shall be enforceable without contrary to Irish public policy. any declaration of enforceability being required. However, Article There is, in addition, a preliminary question under Irish law as to 45 provides that recognition may be refused on a number of grounds whether the Irish courts have jurisdiction over the subject matter of (which are the same that apply under the Lugano Convention and the dispute where the parties have no direct connection with Ireland, EC Regulation 44/2001 for EU judgments in proceedings issued in which case it must be established that a “solid practical benefit” before 10 January 2015 (Articles 34 and 35 of both instruments arises to the applicant in seeking recognition and enforcement of the – see below)) and the applicant for refusal may also seek relief in foreign arbitral award in Ireland. relation to the enforcement being sought. Challenges are typically raised in seeking to defend an application For judgments subject to EC Regulation 44/2001 or the Lugano by the successful party in the arbitration to seek recognition and Convention, once the formal requirements as identified at question enforcement of the award. Since arbitration awards are creatures 3.1 above have been met, subject to specific exceptions in those of contract, under Irish law any application for recognition and instruments, the Master of the High Court has no jurisdiction to enforcement must be brought within six years of the rendering of refuse recognition of the judgment. Those exceptions are as follows: any such award. (i) where it is manifestly contrary to public policy in the state addressed; Under Article 21(2) of EC Regulation 805/2004, the judgment or its certification as a European Enforcement Order may not be (ii) where the judgment was given in default, if the defendant was reviewed as to their substance in the Member State of enforcement. not served with the document that instituted the proceedings or equivalent in sufficient time and in such a way was to Enforcement can only be refused by the Member State of enable him to arrange his defence; enforcement if the judgment certified is irreconcilable with an (iii) if the judgment is irreconcilable with a judgment given earlier judgment given in another state, provided that: between the same parties in the state addressed; (a) the earlier judgment involved the same cause of action and (iv) if the judgment is irreconcilable with an earlier judgment in was between the same parties; another state involving the same cause of action and same (b) the earlier judgment was given in the Member State of parties, so long as the earlier judgment fulfils the criteria for enforcement or fulfils the conditions necessary for its recognition in the state addressed; and recognition in the Member State of enforcement; and
102 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Matheson Ireland
(c) the irreconcilability was not and could not have been raised Appointment of a receiver by way of equitable execution as an objection in the court proceedings in the Member State does not give a judgment creditor any mortgage, lien, or of origin. charge over the assets to which he is appointed. If the receiver takes possession of the relevant assets, he does so not for the judgment creditor, but for the court, and an application for 4 Enforcement directions as to how to deal with the property is required to be made, for example, to sell the property and pay the proceeds over to the judgment creditor. 4.1 Once a foreign judgment is recognised and enforced, (f) Liquidation of an Irish-registered debtor company can also what are the general methods of enforcement be effective in securing payment. A judgment creditor can available to a judgment creditor?
petition the court for the appointment of a liquidator to wind Ireland up the judgment debtor company (if Irish) and to realise A judgment creditor, including one with a foreign judgment which the assets of the company for the benefit of its creditors. has been recognised and enforced, may exercise a number of options Directors of a liquidated Irish company could, if the liquidator to collect a judgment debt including the following: believes it appropriate, be subject to proceedings themselves (a) An Execution Order (or Order of Fieri Facias) orders the and could, in exceptional circumstances, be made personally seizure and sale of goods belonging to the judgment debtor liable for the debts of the debtor company. in Ireland by publicly appointed sheriffs. In reality, this is (g) A judgment creditor can also seek an order to obtain frequently ineffective. information from the judgment debtor about its assets. (b) A Judgment Mortgage may be registered against real property Applications under this procedure, known as discovery in aid in Ireland owned by the judgment debtor and will then operate of execution, are made on an ex parte basis. The Court may as if the judgment debtor had mortgaged the property to the order the attendance of the judgment debtor (or officers of a judgment creditor. If payment is not made, the judgment corporation) for oral examination and/or the provision by the creditor can force the sale of the property by court application judgment debtor of documentation prior to examination. This and can take the debt owed from the proceeds of the sale. is not effective where the judgment debtor is not domiciled or registered in Ireland. (c) A Charging Order may be obtained by the judgment creditor over any Irish Government stock, funds, annuities, or any stocks or shares in any public or private company in Ireland 5 Other Matters owned by the judgment debtor. An application to the Irish Courts may also be made to charge stock of an English- registered company carrying on business in Ireland. Where a 5.1 Have there been any noteworthy recent (in the last charging order is made, the relevant shares/securities “stand 12 months) legal developments in your jurisdiction charged” with the payment of the judgment debt, until the relevant to the recognition and enforcement of foreign debt has been repaid. Generally, the charging order will judgments? Please provide a brief description. provide that the chargee is entitled “to all such remedies as he would have been entitled to as if such charge had been made There is limited Irish case law relating to the recognition and in his favour by the judgment debtor”. A charging order will take effect subject to any prior ranking security in respect of enforcement of foreign judgments. The High Court decision of the relevant shares or securities. Once the charging order is Judge McDermott in Albaniabeg Ambient Sh.p.k. v. Enel SpA and made absolute and served on the debtor, the debtor may not Enelpower SpA [2016] IEHC 139 is a leading authority in relation to transfer or otherwise dispose of the shares. the circumstances in which the Irish Court can exercise its jurisdiction (d) Garnishee Orders may be sought where it appears that the to recognise and enforce (non-EU or non-EFTA) judgments. This debtor has no assets of his own but there is money due case confirmed that for the Irish courts to exercise jurisdiction over and owing to him from a third party based in Ireland (the proceedings which seek recognition and enforcement of a foreign “garnishee”). In those circumstances, the judgment creditor judgment, there must be a “solid practical benefit” to be obtained may seek to have that debt paid to him instead. The garnishee from the making of an order to that effect (analogous to existing must be within the jurisdiction, although a garnishee may Irish law relating to the enforcement of foreign arbitral awards). include a firm, any member of which is resident within the In order to demonstrate such benefit, a plaintiff/applicant will jurisdiction. Such a debt may include a credit balance on need to establish that the judgment debtor has, or is likely to have, the judgment debtor’s bank account. A judgment creditor assets within the jurisdiction against which to enforce the foreign can apply to Court, without notice to any other party, for a conditional order preventing the garnishee from repaying the judgment. Accordingly, the decision confirms the existence of a debt to the judgment debtor, pending a hearing, at which the jurisdictional hurdle that a party seeking to recognise and enforce a judgment debtor is entitled to attend to “show cause” as to foreign judgment may be faced with even prior to being allowed to why the order should not be made absolute. Once the order raise any defence of a substantive nature. The decision in Enel has is made final (i.e., an absolute garnishee order is granted) been appealed and the decision of the Court of Appeal is awaited. and upon service of the garnishee order on the garnishee, the garnishee is obliged to pay the debt owed to the judgment debtor directly to the judgment creditor. 5.2 Are there any particular tips you would give, or critical issues that you would flag, to clients seeking (e) A receiver by way of equitable execution may be appointed to recognise and enforce a foreign judgment in your over the judgment debtor’s Irish property. Equitable jurisdiction? execution is a mode of relief granted to the judgment creditor where the ordinary methods of execution are unavailable or unlikely to be effective and all other reasonable available Based on the High Court decision in Enel (as referenced above) and avenues to execute the judgment have been exhausted. analogous authority dealing with the enforcement of a foreign arbitral Future assets may be attached, in appropriate circumstances, award, prior to commencing proceedings seeking recognition and in this manner. In certain cases, a receiver may be appointed enforcement of a foreign judgment (or arbitral award) in Ireland, a by way of equitable execution even before judgment in potential applicant should be satisfied that there is a “solid practical order to prevent dissipation of assets pending a judgment. benefit” to bringing those proceedings in Ireland. Although having
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 103 Matheson Ireland
assets in the jurisdiction is not a prerequisite to successfully It should also be borne in mind that proceedings seeking recognition obtaining an order for recognition and enforcement of a foreign and enforcement of foreign judgments or awards, if challenged, can judgment, as a practical matter the potential applicant should be result in significant costs and further delay before a determination is able to satisfy the Irish court that, even if there are currently no reached. Furthermore, under Irish law, a determination in respect of assets in Ireland against which to enforce, making an order for the recognition and enforcement of a foreign judgment is subject to recognition and enforcement is not an exercise in futility. If there an automatic right of appeal to the Court of Appeal (and any further is no “solid practical benefit” to a plaintiff/applicant in obtaining an appeal can only be brought in limited circumstances). This potentially order for recognition and enforcement, the proceedings are likely can add further to the costs of such proceedings and to the time before to be susceptible to a jurisdictional challenge which, depending on an ultimate decision on recognition and enforcement is made. the extent of the benefit that can be established, is likely to succeed. Ireland
Julie Murphy-O’Connor Gearóid Carey Matheson Matheson 70 Sir John Rogerson’s Quay 70 Sir John Rogerson’s Quay Dublin 2 Dublin 2 Ireland Ireland
Tel: +353 1 232 2192 Tel: +353 1 232 2113 Email: [email protected] Email: [email protected] URL: www.matheson.com URL: www.matheson.com
Julie is a Partner at Matheson, practising in all aspects of contentious Gearóid is an Associate in the Commercial Litigation and Dispute and non-contentious restructuring, recovery and insolvency law Resolution Group at Matheson. He advises in relation to general matters and is an experienced litigator specialising in banking and commercial disputes, principally focusing on corporate disputes and financial services and shareholder disputes. Julie was a member other contractual claims, particularly bank-related claims. He has of Council of the Irish Society of Insolvency Practitioners from 2011 significant experience in relation to the enforcement of domestic, EU to 2014 during which time she acted as secretary and as chair of and foreign judgments and in relation to the enforcement of arbitral its educational committee. Julie is a regular contributor to Irish and awards. He is admitted as a solicitor in Ireland, Northern Ireland and international legal publications. She lectures on insolvency law and in England and Wales, having trained and qualified with a leading directors duties at the Law Society of Ireland and Dublin Solicitors Bar City of London law firm. Gearóid has worked as a tutor in lawat Association. She is co-author of the Law Society’s insolvency manual. University College, Cork and he also tutors in litigation on the Law She is a member of the Commercial Litigation Association of Ireland Society of Ireland professional practice courses. He has also worked and co-author of the Practitioner’s Guide to the Commercial Court in as a Judicial Assistant at the Court of Appeal, London. He has also Ireland. Julie is a non-executive director of Coillte Teoranta (Irish State published numerous articles in legal journals and texts. Gearóid is forestry company). She is ranked as one of Ireland’s top insolvency also the Irish correspondent for the International Law Office (ILO) lawyers by international legal directories. litigation newsletter. He is also a Member of the Chartered Institute of Arbitrators, the Irish Society of Insolvency Practitioners and Dublin Solicitors Bar Association, where he is also a member of the Commercial Law Committee.
Matheson is the law firm of choice for internationally-focused companies and financial institutions doing business in and from Ireland. It is a full- service law firm with more than 20 distinct practice areas whose clients include 27 of the world’s 50 largest banks and more than half of the Fortune 100 companies. We are headquartered in Dublin and also have offices in London, New York and Palo Alto. More than 600 people work across our four offices, including 74 partners and tax principals and over 350 legal and tax professionals. Our strength in depth is spread across more than 20 distinct practice areas, including asset management and investment funds, aviation and asset finance, banking and financial services, commercial litigation and dispute resolution, corporate, healthcare, corporate restructuring and insolvency, insurance, intellectual property, international business, structured finance and tax. This broad spread of expertise and legal know-how allows us to provide best-in-class advice to clients on all facets of the law.
104 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Chapter 19
Italy Daniele Geronzi
Legance – Avvocati Associati Stefano Parlatore
Applicable 1 Country Finder Corresponding Law/Statutory Relevant Jurisdiction(s) Section Below Regime 1.1 Please set out the various regimes applicable EU Regulation no. to recognising and enforcing judgments in your 1215/2012 governing the jurisdiction and the names of the countries to which recognition and enforcement of EU-judgments in Italy such special regimes apply. N/A; see the EU Regulation (please consider that the specific chapter on no. 1215/2012. present chapter would not EU regime. Applicable account for the EU regime Corresponding Law/Statutory Relevant Jurisdiction(s) which will be dealt with in Section Below Regime detail in the relevant EU chapter of this guide). Existing bilateral Argentina, Brazil, China, Conventions Egypt, Kuwait, Lebanon, Law no. All jurisdictions for Section 3. 218/1995; Italian which no EU, bilateral or on judicial Moldova, Morocco, Russia, Section 2. cooperation. Tunisia, Turkey. Code of Civil multilateral Convention is Procedure. in place. Among others, Italy is a party to: ■ the Hague Convention on Recognition and 2 General Regime Enforcement of Foreign Judgments in Civil and Commercial Matters 2005; 2.1 Absent any applicable special regime, what is the legal ■ the European Free Trade framework under which a foreign judgment would be Association Convention recognised and enforced in your jurisdiction? on Jurisdiction and Enforcement of Judgments in Civil and Commercial Absent any applicable special regime, recognition and enforcement Matters 2007 (Lugano of non-EU foreign judgments in Italy are governed by Law no. Convention); 218/1995 and the relevant provisions of the Italian Code of Civil Multilateral ■ the Hague Convention on Section 3. Procedure, as applied by the Italian Supreme Court. Conventions. Jurisdiction, Applicable Law, Recognition, Enforcement and Co- 2.2 What constitutes a ‘judgment’ capable of recognition operation in Respect of and enforcement in your jurisdiction? Parental Responsibility and Measures for the Protection of Children Within the Italian legal system, it can be considered a judgment if any 1980; foreign order issued in order to adjudicate a dispute in proceedings ■ the Convention concerning which, in consideration of their nature and subject, if carried out in Italy, International Carriage by would have resulted in a judgment, insofar as the order is made in a Rail 1980; and written form, is duly signed and issued by a recognised foreign judicial ■ the Convention on or public authority. In general, it can be considered as a judgment if it is the Contract for the an order which causes the ascertainment, establishment, modification International Carriage of Goods by Road 1956. or extinguishment of rights, capacities or interests.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 105 Legance – Avvocati Associati Italy
Italian judges would enforce judgments belonging to the following country of origin (including the capability to be enforced), provided categories: declaratory judgments, constitutory judgments, mandatory that these effects do not go beyond the effects of Italian judgments. judgments and prohibitory judgments; monetary and non-monetary While for some kind of judgments (e.g. declaratory judgments) judgments; orders for specific performance; default judgments; and recognition may suffice to satisfy the rights of the successful party, judgments issued without notice to the losing party (inaudita altera judgments which need to be enforced (through judicial enforcement) parte). shall go through the two-folded process of recognition proceedings Non-EU judgments may be recognised and enforced as long as they and enforcement proceedings. Indeed, the enforcement of a foreign are final and binding (i.e., they have conclusive effect and may no judgment always requires recognition. longer be challenged, nor amended). As far as non-EU judgments are concerned, absent any special Italy applicable regime, foreign judgments are automatically recognised 2.3 What requirements (in form and substance) must a in Italy pursuant to Articles 64 and 66 of Law no. 218/1995; however, foreign judgment satisfy in order to be recognised the automatic recognition does not suffice for foreign judgments and enforceable in your jurisdiction? to be enforceable. Therefore, when enforcement is needed, the interested party shall previously obtain the Court recognition order For a judgment to be recognised and enforced in Italy, it needs to of the foreign judgment within the ad hoc procedure before the be written and signed by the person who rendered it. It must also Court of Appeal of the place where enforcement is sought. specify the issuing authority. From a substantial point of view, according to Article 64 of Law no. 2.6 Briefly explain the procedure for recognising and 218/1995, a foreign judgment can be recognised and enforced in enforcing a foreign judgment in your jurisdiction. Italy if it complies with the following requirements: a) the issuing authority was competent to rule on the dispute Absent any applicable Convention, recognition proceedings of non- pursuant to the rules governing jurisdiction under Italian law; EU judgments are summary ordinary proceedings, governed by b) the defendant was properly served with the writ of summons Article 702-bis of the Italian Code of Civil Procedure. pursuant to the law of the place of origin and the fundamental The applicant shall file its petition before the Court of Appeal of rights of defence of the parties were complied with; the district of the place of enforcement. Along with the petition c) the parties appeared before the judging authority pursuant to the applicant shall file: (i) a certified copy of the judgment, duly the law of the place of origin or default of appearance was apostilled or legalised, as the case may be, in accordance with the regularly declared in accordance to that law; applicable Convention, treaty or law; (ii) a certificate rendered d) the judgment became final according to the law in force in the by the issuing authority confirming that the judgment is final and place of origin; binding between the parties; and (iii) a certified Italian translation of e) the judgment is not in conflict with any other final judgment both the judgment and the certificate. issued by an Italian court; Following receipt of the petition, the Court schedules the date of f) no proceedings are pending before an Italian court between the hearing for the parties’ appearance and discussion and grants the the same parties and on the same course of action, which defendant a term for submitting its defence in writing (at least 10 were initiated before the proceedings decided by the foreign days before the hearing). Under penalty of forfeiture, the defendant judgment; and shall raise at this stage any possible objection to the recognition. g) the judgment provisions do not violate Italian public policy principles. Usually, only one hearing takes place before the Court renders its decision. The Court is empowered to direct the proceedings in quite a flexible way with broad powers also in respect to potential 2.4 What (if any) connection to the jurisdiction is required evidentiary issues, but always in compliance with due process and for your courts to accept jurisdiction for recognition equitable treatment of all parties. and enforcement of a foreign judgment? The Court of Appeal’s decision declaring or denying the foreign Jurisdiction for the recognition and enforcement of foreign judgment that is recognised and enforceable can be challenged judgments is linked to the place within the territory of the Italian before the Supreme Court, on limited grounds, within 60 days from Republic where enforcement of the foreign judgment is sought. service of the relevant decision. Thus, the Court of Appeal of the district of enforcement is the court competent to decide upon recognition and enforcement of foreign 2.7 On what grounds can recognition/enforcement of a judgments. judgment be challenged? When can such a challenge be made?
2.5 Is there a difference between recognition and enforcement of judgments? If so, what are the legal Recognition of non-EU judgments can be challenged when the effects of recognition and enforcement respectively? judgment does not comply with one or more of the requirements for recognition set forth by Article 64 of Law no. 218/1995 (see Under Italian law, recognition and enforcement of foreign judgments question 2.3). have two different steps: recognition allows and acknowledges Recognition of non-EU judgment can be challenged: the foreign judgment within the Italian legal system, whereas (i) in the context of the ad hoc proceedings before the Court enforcement converts the right assessed by a favourable judgment of Appeal specifically devoted to recognition of foreign into the material and practical utility sought throughout the legal judgments. Indeed, the Court of Appeal can be resorted to either proceedings. According to authors, recognition confers to the foreign the successful party seeking a decision confirming recognition judgment the same effects as those the judgment is conferred to in the of the foreign judgment, or the losing party, seeking a decision denying recognition of the foreign judgment, when forced
106 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Legance – Avvocati Associati Italy
execution of the judgment is, respectively, sought or threatened (see Article 67, paragraph 1 of Law no. 218/1995); or 2.11 What is your court’s approach to recognition and (ii) within the Court proceedings in which the foreign judgment enforcement of a foreign judgment that purports to apply the law of your country? is invoked or relied on, when recognition is prejudicial to the outcome of said proceedings. This being the case, the assessment on recognition is effective only in relation to the Recognition and enforcement of foreign judgments in Italy never relevant proceedings (see Article 67, paragraph 3 of Law no. entail an evaluation on the merits of the concerned judgment (except 218/1995). for cases where recognition would amount to breaches of public policy principles). Accordingly, the law applied by the foreign
judgment, even if it is Italian law, has no specific relevance with Italy 2.8 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments respect to the recognition and enforcement process. relating to specific subject matters? 2.12 Are there any differences in the rules and procedure Foreign judgments relating to the capacity of persons, the existence of recognition and enforcement between the various of family relationships and personality rights are automatically states/regions/provinces in your country? Please effective in Italy if they are effective under the law of the State the explain. involved individuals are national of, provided that the decisions are not in contrast with Italian public policy principles and are rendered The rules and procedures governing recognition and enforcement in compliance with the fundamental rights of defence (see Article 65 as set by Law no. 218/1995 and the Italian Code of Civil Procedure of Law no. 218/1995). apply to the entire territory of the Italian Republic. With regard to voluntary jurisdiction judgments (i.e., rendered at the end of non-contentious proceedings, ruling over unopposed matters), 2.13 What is the relevant limitation period to recognise and in accordance with Article 66 of Law no. 218/1995, they shall be enforce a foreign judgment? recognised in Italy without any necessary further proceedings: (i) if they are effective under the law of the State the involved The interested party’s entitlement to obtain recognition is not subject persons are national of or if the issuing authority is considered to any limitation periods, since recognition of foreign judgments in to have jurisdiction on the matter pursuant to criteria Italy is considered a declaratory process, resulting in a declaratory corresponding to those in force under Italian law; and judgment which does not alter the pre-existing legal situation, solely (ii) provided that they do not contrast with Italian public assessing the existence of requirements for recognition. policy principles and are rendered in compliance with the The above does not necessarily hold true when it comes to the fundamental rights of defence. enforcement process. The relevant statute of the limitation period is governed by the lex causae applicable to the dispute, irrespective of 2.9 What is your court’s approach to recognition and the longer or shorter terms provided by the law of enforcement, that enforcement of a foreign judgment when there is: (a) a being Italian law. If the lex causae is Italian law, then the applicable conflicting local judgment between the parties relating limitation period would be 10 years from the issuing of the to the same issue; or (b) local proceedings pending judgment (Article 2953 of the Italian Civil Code). The expiration between the parties? of the relevant limitation period may only be invoked as a ground of challenging the enforcement proceedings. Absent any special applicable regime, a foreign judgment which is irreconcilable with any other final judgment rendered by an Italian Court may not be recognised in Italy (see Article 64(e) of Law no. 3 Special Enforcement Regimes Applicable 218/1995). to Judgments from Certain Countries Likewise, under Article 64(f) of Law no. 218/1995, foreign judgments may not be recognised in Italy, when Italian proceedings involving the same parties and the same object were initiated before 3.1 With reference to each of the specific regimes set out in question 1.1, what requirements (in form and the foreign proceedings and are still pending. On the other hand, substance) must the judgment satisfy in order to be when the foreign proceedings are commenced first, the Italian recognised and enforceable under the respective Court may stay the Italian proceedings if it deems that the judgment regime? resulting from the foreign proceedings would fulfil the requirements for recognition and, therefore, would be effective in the Italian legal As anticipated (see question 1.1), Italy is party to a large number of system (see Article 7 of Law no. 218/1995). multilateral and bilateral treaties. Within the present Section, we will analyse the main features differentiating the most relevant and 2.10 What is your court’s approach to recognition and frequently applied special regimes (please also refer to Section 2). enforcement of a foreign judgment when there is a The most relevant multilateral Convention is the Lugano Convention conflicting local law or prior judgment on the same or (and subsequent protocols), in force between all the European a similar issue, but between different parties? Union Member States (Denmark included), Iceland, Norway and Switzerland. It basically reproduces the Bruxelles regime (please The existence of a conflicting local law or prior judgment on the refer to the specific chapter of this guide concerning the EU same or a similar issue between parties other than those involved in regime). It is worth mentioning that the Lugano system requires the foreign judgment, is irrelevant for the purposes of recognition of its contracting states to take in due consideration the principles the foreign judgment. laid down by the case-law of each of the counterparties. To these purposes, it sets up an information exchange system, including a
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 107 Legance – Avvocati Associati Italy
common register to which all the contracting States have to transmit be governed by Italian law, under Article 19 of the Convention, the relevant judgments delivered by their courts pursuant to the consistently with what is common among special regimes. However, Lugano Convention. such Convention adds some peculiarities providing that: As far as bilateral Conventions are concerned, as a general remark, (i) if the defendant did not appear before the judicial authority of and consistently with the general regime, all applicable special origin and does not appear also before the recognising authority, regimes require the foreign judgment not to violate Italian public and the writ of summons was not served to him/her in person, policy principles and the minimum standards of due process. recognition of the foreign judgment can be challenged, even if the service of process was renewed (Article 20); and Likewise, almost all bilateral Conventions require the judgment to be final and binding in the country of origin as well. In this respect, (ii) the recognising judicial authority shall be entitled to Italy the Italy-Argentina Convention, which subjects recognition and reconsider the merits of the dispute in the cases listed under Article 21 of the Convention. enforcement of provisionally enforceable decisions to reciprocity conditions, is a noteworthy exception (see Article 22, par. 3). On the other hand, special regimes tend to identify the jurisdiction 3.4 With reference to each of the specific regimes set out of the involved judicial authorities on the basis of different criteria in question 1.1, on what grounds can recognition/ enforcement of a judgment be challenged under the than those set forth by Article 64 of Law no. 218/1995. By way of special regime? When can such a challenge be made? example, the issuing authority is considered to be competent to rule on recognition and enforcement: The grounds on which recognition/enforcement of foreign judgments (i) pursuant to the jurisdiction criteria specifically set by the may be challenged pursuant to the applicable special regimes are same Convention (see Article 22, par. 2 of the Italy-Argentina not sensibly different from those applying under the general regime. convention; Article 22 of the Italy-China bilateral Convention; Under the applicable bilateral Conventions, recognition may be Articles 1,2,3,4 and 5 of the Italy-Egypt Convention; Article 24 of the Italy-Russia convention); challenged if the foreign judgment does not comply with the following requirements: (ii) according to the general principles of international law and to the law of the country of origin (see Article 19, point 1 of the (i) it was issued by the competent authority (for the relevant Italy-Turkey Convention); or jurisdiction criteria, please refer to question 3.1 above); (iii) if the matter at stake is not subject to Italian exclusive (ii) the defendant was regularly summoned to court under the jurisdiction, pursuant to Italian law or another Convention Italy law of the proceedings of origin (applying to Argentinian, is a party to (see Article 18(a) of the Italy-Brazil Convention, Brazilian, Chinese, Russian judgments) or its default was Article 19(7) of the Italy-Turkey bilateral Convention and regularly declared (applying to Turkish judgments); Article 25(d) of the Italy-Russia bilateral Convention). (iii) the judgment is final and binding in the country of origin (applying to Brazilian, Chinese and Turkish judgments); as far as Argentina is concerned (for interim judgments, please 3.2 With reference to each of the specific regimes set out refer to question 3.1 above); in question 1.1, does the regime specify a difference between recognition and enforcement? If so, what is (iv) the same controversy between the same parties was not the difference between the legal effect of recognition considered and decided by an Italian judgment (applying to and enforcement? Argentinian, Brazilian, Turkish judgments) that is final and binding (applying to Chinese and Russian judgments); As far as the bilateral Conventions which Italy is a party to are (v) no proceedings are pending before an Italian Court between concerned, recognition and enforcement of foreign judgments the same parties and on the same controversy, which were initiated before the proceedings of origin (applying to amount to different activities, albeit this is not specifically mentioned Argentinian, Brazilian and Chinese judgments) or before the within said Conventions. The general distinction as set forth under request for recognition was filed (Russia) or served to the question 2.5 above shall apply. other party (Turkey); and (vi) recognition is not in contrast with public policy in Italy 3.3 With reference to each of the specific regimes set (applying to Argentinian, Brazilian, Chinese, Turkish and out in question 1.1, briefly explain the procedure for Russian judgments), sovereignty or public security (applying recognising and enforcing a foreign judgment. to Chinese and Russian judgments).
Pursuant to the large majority of the bilateral conventions Italy is a party to, the proceedings for recognition and enforcement of 4 Enforcement foreign judgments shall be governed by Italian law (see Article 25 of the Italy-Argentina bilateral Convention, Article 21 of the Italy- 4.1 Once a foreign judgment is recognised and enforced, Brazil bilateral convention, Article 25 of the Italy-China bilateral what are the general methods of enforcement convention, Article 23 of the Italy-Russia bilateral Convention, etc.). available to a judgment creditor? Therefore, the procedural aspects of recognition and enforcement are governed by the relevant provisions of Law 218/1995 and of the Once a foreign judgment is recognised and declared enforceable, Italian Code of Civil Procedure. No evaluation on the merits of the the ordinary rules governing enforcement apply (pursuant to Article foreign judgment is generally allowed to the recognising authority. 474 and ff. of the Italian Code of Civil Procedure). As far as the Italian-Turkey bilateral convention is concerned, the Before any enforcement proceedings may begin, the party seeking procedure for recognising and enforcing Turkish judgments shall enforcement shall issue a formal demand of payment to the losing
108 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Legance – Avvocati Associati Italy
party, asking it to abide by the decision within 10 days, after which enforced in Italy since they are not per se against Italian public policy. the judgment will be enforced. If the losing party fails to comply However, for their recognition to be granted, it must be checked that with the formal demand in due time, the judgment creditor must serve the law of the country of origin affords sufficient predictability of the the debtor (through a court bailiff) with the notice of attachment, cases in which punitive damages may be awarded and of the criteria triggering enforcement. Afterwards, the judgment creditor has 90 on the basis of which punitive damages are quantified. days to start the proper enforcement proceedings, under penalty of ineffectiveness of the attachment (which shall be served again). 5.2 Are there any particular tips you would give, or In general terms, monetary judgments can be enforced throughout: critical issues that you would flag, to clients seeking (i) attachment of the debtor’s movable assets; to recognise and enforce a foreign judgment in your jurisdiction? Italy (ii) attachment of the debtor’s movable assets under third parties’ availability or possession; Albeit not required by any specific legislative provision, Italian (iii) attachment of the debtor’s receivables toward third parties; and Courts usually expect any translation that is submitted before them (iv) attachment of the debtor’s immovable assets. in the context of proceedings for recognition and enforcement to Having regard to mandatory and prohibitory judgments, enforcement be certified and sworn. Nevertheless, the procedure to certify and is regulated by Article 612 and ff. of the Italian Code of Civil Procedure. swear a translation in Italy is a relatively simple one, it shall be Following service of the formal demand of execution of the judgment, performed before public officials (e.g. before Court clerks ora the interested party shall resort to the Italian Court of the place where public notary) and is subject to the payment of certain stamp duties. enforcement is sought to determine the modalities of enforcement. The debtor has the right to be heard in these proceedings. Acknowledgment
5 Other Matters The authors would like to thank Francesca Salerno for her invaluable assistance in the writing of this chapter. Francesca Salerno joined the Dispute Resolution and Restructuring and Insolvency departments of 5.1 Have there been any noteworthy recent (in the last Legance in October 2008. At Legance, Francesca Salerno deals mainly 12 months) legal developments in your jurisdiction with arbitration (both domestic and international, with experience on relevant to the recognition and enforcement of foreign ICC, CAM, LCIA and UNCITRAL arbitrations), enforcement of judgments? Please provide a brief description. foreign arbitral awards and foreign judgments, civil and commercial litigation (with a special focus on disputes involving construction The Supreme Court has recently overturned the – until then – contract), infrastructure and renewable energy, agency and distribution established case law whereby the recognition of foreign judgments contracts. Francesca Salerno also deals with debt recovery, insolvency awarding punitive damages was held to be contrary to public policy and bankruptcy matters, including cross-border insolvency and in Italy (decision rendered on the 5th of July 2017, no. 16601). bankruptcy litigation. According to the recent decision of the Supreme Court, judgments Tel: +39 02 8963071 / +39 06 9318271 Email: [email protected] awarding punitive damages may now legitimately be recognised and
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 109 Legance – Avvocati Associati Italy
Daniele Geronzi Stefano Parlatore Legance – Avvocati Associati Legance – Avvocati Associati Via Dante no. 7, Milan Via Dante no. 7, Milan Via San Nicola da Tolentino no. 67 Via San Nicola da Tolentino no. 67 Rome Rome Italy Italy
Tel: +39 02 8963071 Tel: +39 02 8963071 +39 06 9318271 +39 06 9318271 Email: [email protected] Email: [email protected]
Italy URL: www.legance.com URL: www.legance.com
Daniele Geronzi has over 15 years’ experience in advising primary Stefano Parlatore has been practising in litigation, insolvency national and international financial institutions and corporations and restructuring law for 20 years. He advises Italian and foreign on every aspect of litigation. He represents clients both in court companies in litigations and arbitrations, as well as in insolvency and in national and international arbitration. Daniele has gained procedures. Stefano has worked in the USA for an important law firm significant expertise in financial litigation, with reference to derivative in Wilmington, as a member of the litigation and arbitration department, transactions, on contentious matters against local entities and private and for the Delaware Supreme Court. He has extensive experience companies, and on cross-border (UK) litigation. Daniele has extensive in the extra-judicial phase, including conciliation procedures, and experience in bankruptcy and insolvency law, having advised banking the judicial phase concerning commercial, corporate and financial institutions, investment funds and multinational companies, with a matters. He represents and assists clients before ordinary courts, in focus on the aviation sector. He provides assistance with respect to proceedings relating to interim measures, before special authorities, ordinary, provisional and arbitration proceedings on energy matters including specialised branches for intellectual property matters, and and on EPC and O&M agreements, first demand guarantees and the Italian Data Protection Authority. He has developed experience performance bonds. He assisted a global, leading tobacco company in insolvency and restructuring matters advising several Italian and in the first Italian class action brought by smokers. Prior to joining foreign financial institutions and funds, active in distressed debt, Legance, Daniele worked for a leading international firm, in both their default portfolio trading, turnaround transactions, extraordinary London office and Rome office. In Rome, he headed the litigation and administration, bankruptcy, or in restructuring of debts. insolvency practices. He was admitted to the Italian Bar in 2001 and He is a Supreme Court barrister. is a Supreme Court barrister.
Legance is an independent law firm with offices in Milan, Rome, London and New York. Founded in 2007 by a group of partners who grew up in the same law firm, Legance celebrates its 10th anniversary, distinguishing itself as a point of reference for clients and institutions. Legance’s rapid growth is undisputed evidence of its strength in legal services, and its achievements are the result of a consistent strategy focused on creating value around the institutional nature of the firm. Legance, thanks to the constant attention to clients’ needs, and an unconventional approach, has positioned itself at the top of the national and international market. The name Legance evokes unity and excellence: these fundamental principles have been at the foundation of the law firm and have supported its standing. Legance, thanks to a strong international practice, can support clients from several different geographical areas, and organise and coordinate multi- jurisdictional teams.
110 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Chapter 20
Japan
Chuo Sogo Law Office, P. C. Masahiro Nakatsukasa
1 Country Finder 2.3 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction? 1.1 Please set out the various regimes applicable to recognising and enforcing judgments in your jurisdiction and the names of the countries to which Article 118 of the CCP governs the requirements for the recognition such special regimes apply. of foreign judgments. Whether the specified requirements are satisfied is determined by the court in a procedure to seeking enforcement of such foreign judgment under Article 24 of the CEA. Applicable Law/ Relevant Corresponding Statutory Regime Jurisdiction(s) Section Below The specific requirements under Article 118 are as follows: None. None. None. A final and binding judgment rendered by a foreign court shall be effective only where it meets all of the following requirements: (i) The jurisdiction of the foreign court is recognised under laws, 2 General Regime regulations, conventions or treaties. (ii) The defeated defendant has received a service (excluding a service by publication or any other service similar thereto) of 2.1 Absent any applicable special regime, what is the a summons or order necessary for the commencement of the legal framework under which a foreign judgment suit, or has appeared without receiving such service. would be recognised and enforced in your (iii) The content of the judgment and the court proceedings are jurisdiction? not contrary to public policy in Japan. (iv) A mutual guarantee exists. As a civil law country, Japan’s main source of law is legislation. The Code of Civil Procedure (“CCP”) and Civil Execution Act More particular details for certain requirements and definitions are (“CEA”) are the two most relevant laws for the enforcement of discussed below. foreign judgments. Judicial precedents are a secondary source of Final and Binding. The final and binding requirement requires laws used to construe the statutes. that the judgment be a final and binding judgment of a foreign Japan is not a party to any bilateral or multilateral treaties for the court. In other words, the judgment cannot be appealed based on reciprocal recognition and enforcement of foreign judgments, existing procedures in the foreign country of judgment. Although including the Hague Convention on Recognition and Enforcement not defined in the CCP, a “foreign court” is generally understood as of Foreign Judgments in Civil and Commercial Matters. being a juridical body in a foreign country authorised to exercise authority in disputes. A “judgment” refers to a determination in court proceedings involving a civil dispute between parties who are 2.2 What constitutes a ‘judgment’ capable of recognition each guaranteed the right to participate in and have their grievance and enforcement in your jurisdiction? heard. A summary judgment issued in adversarial proceedings may be considered a “judgment” under CCP Article 118. To be capable of recognition and enforcement, a foreign judgment Jurisdiction. Article 118(i) of the CCP requires that the foreign must satisfy the requirements of Article 118 of the CCP. Whether court’s jurisdiction be recognised under laws, regulations, these requirements are satisfied will be determined by the court conventions or treaties. However, it was only recently in 2012 that in an action for “execution judgment” under Article 24 of the Japanese courts became able to exercise international jurisdiction. CEA. Further, the CEA must issue an execution judgment for a Prior to this, there was no express provision in Japanese laws foreign judgment to be enforced. In essence, a foreign judgment’s granting Japanese courts international jurisdiction. Consequently, recognition and enforcement are determined simultaneously. this jurisdiction requirement was judged based on the rule of reason The final major requirement for recognition is that a foreign (Supreme Court, 28 April 1998, Heisei 6 (O) No. 1838). However, judgment (or order, such as an injunction) must be final, i.e. non- the CCP was amended in 2012 to expressly provide for the exercise appealable. of international jurisdiction by Japanese courts (CCP, Articles 3–2 to 3–12).
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 111 Chuo Sogo Law Office, P. C. Japan
Service Requirement. The service of process must be completed on ■ an action on a property right: if the subject matter of the claim the defendant (or in lieu, in case the defendant otherwise submits is located within Japan, or if the action is a claim for the to the jurisdiction of the court by appearing at the proceeding). To payment of monies, and seizable property of the defendant is be deemed complete, the service must commence with a summons located within Japan (except when the value of such property or order informing the defendant in an understandable manner that is extremely low); legal proceedings will commence against him or her and provide ■ an action against a person with an office or a business office, sufficient information to defend the action (Supreme Court, 28 April which is filed in connection with the business conducted 1998, Heisei 6 (O) No. 1838). Further, the service must comply at that person’s office or business office: if said office or business office is located within Japan; with any applicable conventions or treaties. ■ an action against a person that conducts business in Japan Japan No Contravention of Public Policy. Neither the contents of a foreign (that continually carries out transactions in Japan): if said judgment nor the foreign proceedings may contravene Japanese action involves the business that the person conducts in public policy requirements. In this context, the contents of the Japan; foreign judgment as well as the underlying facts upon which the ■ an action for a tort: if the place where the tort occurred is judgment is based may be examined to determine whether they are within Japan (except where the consequences of a wrongful consistent with the public policy of Japan (Tokyo District Court, act committed in a foreign country have arisen within Japan 6 September 1969, Showa 43 (Wa) No. 15158). For example, a but it would not ordinarily have been possible to foresee judgment ordering a payment of gambling debts would be contrary those consequences arising within Japan); and to the public policy in Japan, and for that reason could not be ■ an action related to real property: if the real property is enforced. located within Japan. Reciprocity. This requires that the foreign country where the foreign judgment was rendered will extend mutuality to Japanese 2.5 Is there a difference between recognition and judgments, so that judgments by Japanese courts will be recognised enforcement of judgments? If so, what are the legal and enforceable in that country under requirements substantially effects of recognition and enforcement respectively? similar to those under Article 118 of the CCP. Procedural Equivalence. As a public policy matter, Article 118(iii) A foreign judgment will be recognised if it meets the requirements of the CCP requires that due process be observed in the foreign set forth in Article 118 of the CCP discussed in question 2.3 above. proceedings. Accordingly, if a defendant’s rights of defence are No additional registration procedure is required. However, an not substantially guaranteed in foreign proceedings, a judgment execution judgment must be obtained for the enforcement of a rendered in those proceedings would not satisfy the public policy foreign judgment to be enforceable. In practice, the determination requirement and therefore could not be enforced. For example, as to whether the Article 118 requirements have been met will be foreign judgments from judicial systems lacking the principles determined simultaneously by the court adjudicating the action of an adversarial system, foreign judgments obtained by fraud or seeking an execution judgment. In short, the recognition of a wrongful conduct, and foreign judgments rendered through obvious foreign judgment will be adjudicated in the same process of seeking misconduct or corruption of the foreign judge are not likely to be its enforcement. consistent with Japan’s public policy and therefore an execution judgment would not be granted. 2.6 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. 2.4 What (if any) connection to the jurisdiction is required for your courts to accept jurisdiction for recognition A foreign judgment will be recognised if it satisfies the requirements and enforcement of a foreign judgment? stipulated in Article 118 of the CCP, and the satisfaction of these requirements will be adjudicated by the court in an action for Article 3–2 to 3–12 of the CCP provide for the exercise of “execution judgment” under Article 24 of the CEA. A claimant international jurisdiction by Japanese courts. In essence, the desiring to obtain an execution judgment to enforce a foreign Japanese courts have jurisdiction over the following actions (please judgment must file a suit against the obligor in the district court see the aforesaid Articles for details): having jurisdiction over the location of the obligor (as in ordinary ■ an action against a person domiciled or resident in Japan, or if civil cases). If the location cannot be determined, the district court they are unknown, was domiciled in Japan before the action having subject matter jurisdiction of the claim or the obligor’s was filed (unless the person has been domiciled in a foreign property will be the competent court. After obtaining an execution country after last being domiciled in Japan); judgment, the claimant can file a motion for compulsory execution ■ an action against a corporation or any other association or with the district court that has jurisdiction depending on the subject foundation whose principal office or business office is located matter, for example, the district court that has jurisdiction over the in Japan, or if they are unknown, whose representative or location of the property to be seized. other person principally in charge of its business is domiciled in Japan; 2.7 On what grounds can recognition/enforcement of a ■ an action on a claim for the performance of a contractual judgment be challenged? When can such a challenge obligation; on a claim involving a benevolent intervention be made? in another’s affairs that has been done, or unjust enrichment that has arisen, in connection with a contractual obligation; on a claim for damages due to non-performance of a A defendant is not entitled to raise substantive objections or contractual obligation; or on any other claim involving a challenges to liability or to the scope of an award or jurisdictions contractual obligation: if the contractually specified place for made in a foreign jurisdiction. To this point, the CEA states that “an performance of the obligation is within Japan, or if the law execution judgment shall be made without investigating whether or of the place adopted under the contract gives a place within not the judicial decision is appropriate” (CEA, article 24(2)). Japan as the place for performance of the obligation;
112 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Chuo Sogo Law Office, P. C. Japan
Nonetheless, where a claim has lapsed, become extinct, was discharged or otherwise revised after the foreign judgment was 2.10 What is your court’s approach to recognition and issued, the defendant can raise these defences in the proceedings enforcement of a foreign judgment when there is a conflicting local law or prior judgment on the same or seeking an execution judgment. a similar issue, but between different parties? With respect to the amount and the type of damages, the amount of damages awarded by a foreign court may be revised under the If a foreign judgment conflicts with a Japanese law, it would certainly public policy requirement of Article 118(iii) of the CCP for the sake be contrary to Japanese public policy. Accordingly, it will not be of consistency with Japanese public policy. recognised under Article 118 of the CCP. This would be the same Punitive damage awards offer an apt example. The Japanese Supreme if a foreign judgment conflicts with prior Japanese judgments on Court has held that foreign judgments based on a legal theory the same or a similar issue. Provided, however, the claimant could Japan that not been adopted in Japan does not automatically mean that challenge that such prior judgments have not yet been recognised as such foreign judgment violates Japan’s public policy requirement. public policy or there would be different prior judgments. However, if the foreign judgment is contrary to Japan’s basic rules or basic theory of law in Japan, such foreign judgment could be in 2.11 What is your court’s approach to recognition and violation of Japan’s public policy pursuant to Article 118(iii) of the enforcement of a foreign judgment that purports to CCP. (Supreme Court, 11 July 1997, Heisei 5 (O) No. 1762). In that apply the law of your country? case, the Supreme Court held that punitive damages awarded under California law could be deemed the equivalent of a penal charge Even if a foreign judgment purports to apply the Japanese laws, the under Japanese criminal laws which was against the basic rules or same rule applies under Article 118 of the CCP. basic theory of law in Japan, and therefore could only be partially enforced (i.e., without giving effect to the punitive damages award). 2.12 Are there any differences in the rules and procedure Finally, even though a court may not make an investigation of recognition and enforcement between the various concerning the appropriateness of a foreign judgment, the court states/regions/provinces in your country? Please may examine the foreign judgment for allegations of fraud in the explain. course of reviewing the public policy requirement of Article 118(iii) of the CCP in the proceedings for entry of an execution judgment. Japan does not have a federal legal system. This means that the Accordingly, if fraud upon the defendant is found, the request for an courts apply the same laws in a uniform manner throughout Japan. execution judgment will be denied. A foreign judgment will be recognised by any court in Japan if it satisfies the requirements listed in Article 118 of the CCP, and will 2.8 What, if any, is the relevant legal framework applicable be enforceable if an execution judgment with respect to the foreign to recognising and enforcing foreign judgments judgment is obtained pursuant to Article 24 of the CEA. relating to specific subject matters?
2.13 What is the relevant limitation period to recognise and Please see question 2.1 above. enforce a foreign judgment?
2.9 What is your court’s approach to recognition and Although there is no fixed statutory limitation for the enforcement enforcement of a foreign judgment when there is: (a) a of a foreign judgment, any rights established by a judgment of a conflicting local judgment between the parties relating Japanese court are subject to a limitation of 10 years (Civil Code, to the same issue; or (b) local proceedings pending Article 174–2) starting from the date the judgment becomes final between the parties? and binding (Civil Code, Article 157(2)). If the claimant seeks to enforce a foreign judgment more than 10 If the foreign judgment conflicts with a final judgment from a years after the foreign judgment became final and binding, and the Japanese court, the request for an execution judgment of the foreign execution judgment is granted by the Japanese court, the foreign judgment will not be granted. This is without regard to whether judgment would essentially enjoy stronger enforceability than a the foreign judgment was issued before or after the Japanese judgment originally issued by a Japanese court. It is likely that such judgment (Osaka District Court, 22 December 1977, Showa 50 a result would be contrary to the public policy requirement, and (Wa) No. 4257). In this case, the court took into consideration therefore unlikely to be considered enforceable. This would be true that recognising a foreign judgment that conflicts with a Japanese even in a case where the statutory limitation for the enforcement of judgment would upset the very basis of the rule of laws, and as such the foreign judgment in its original foreign jurisdiction was longer would be contrary to Japanese public policy. than 10 years. Please note that if the foreign judgment conflicts with another In the opposite situation, where an action for an execution judgment foreign judgment, there are two prevalent but different views. The was sought in respect of a foreign judgment that was beyond the first view is that the earlier judgment will be recognised over the expiration of the statutory limitation period in its original foreign subsequent judgment based on the principle of double jeopardy. jurisdiction, but which was not outside the Japanese limitation The second view is that the subsequent judgment will be recognised period of 10 years, the public policy requirement would probably over the prior judgment and given effect as though they were both not prevent the execution judgment being granted. That said, the domestic judgments. There is no case law clarifying or reconciling defendant in such action might argue that the foreign judgment had these two views and neither view is given more weight than the already become unenforceable in the foreign jurisdiction and, as a other. consequence, fails to meet the other requirements under Article 118 of the CCP.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 113 Chuo Sogo Law Office, P. C. Japan
A claim for specific performance (an order of a court requiring a 3 Special Enforcement Regimes Applicable party to perform a specific act) is treated as follows: to Judgments from Certain Countries ■ the claimant may request the court to order specific performance provided that the nature of the obligation is one that permits such enforcement (CEA, Articles 168 to 170); 3.1 With reference to each of the specific regimes set out in question 1.1, what requirements (in form and ■ if the nature of the obligation can be performed by a third substance) must the judgment satisfy in order to be party, the claimant may request the court to cause a third recognised and enforceable under the respective party to perform the obligation at the expense of the obligor regime? (CEA, Article 171); and
Japan ■ regardless of whether the obligation can be performed by a This is not applicable in Japan. third party, the claimant may request that the court demand that the obligor pay a reasonable amount of money to secure performance (CEA, article 172 to 173). 3.2 With reference to each of the specific regimes set out in question 1.1, does the regime specify a difference between recognition and enforcement? If so, what is 5 Other Matters the difference between the legal effect of recognition and enforcement? 5.1 Have there been any noteworthy recent (in the last This is not applicable in Japan. 12 months) legal developments in your jurisdiction relevant to the recognition and enforcement of foreign judgments? Please provide a brief description. 3.3 With reference to each of the specific regimes set out in question 1.1, briefly explain the procedure for On 29 January 2016, the Tokyo District Court admitted the execution recognising and enforcing a foreign judgment. judgment recognising the foreign judgment ordering child support rendered by the State of Illinois (Tokyo District Court, 29 January This is not applicable in Japan. 2017, Heisei .26 (Wa) No. 24637). The court held that the foreign judgment could not be deemed punitive damages against the party 3.4 With reference to each of the specific regimes set out who defaulted in the payment of the child support, but was simply in question 1.1, on what grounds can recognition/ an order to pay the child support, and accordingly was not contrary enforcement of a judgment be challenged under the to the Japanese public policy. special regime? When can such a challenge be made?
This is not applicable in Japan. 5.2 Are there any particular tips you would give, or critical issues that you would flag, to clients seeking to recognise and enforce a foreign judgment in your 4 Enforcement jurisdiction?
In Japan, the service requirement can create unexpected problems. 4.1 Once a foreign judgment is recognised and enforced, As discussed above, the service of process must be formal and what are the general methods of enforcement the contents of the summons or order must be understandable for available to a judgment creditor? the defendant. In addition, the Tokyo District Court has held that a Japanese translation must accompany a summons served on a After the claimant has obtained an execution judgment, the claimant Japanese defendant (Tokyo District Court, 26 March 1990, Showa can file a motion for compulsory execution with the district court 62 (Wa) No. 12503). Although this holding has been criticised as that has jurisdiction over the matter. The CEA permits a compulsory being unnecessary where the defendant completely understands execution for claims of unpaid money (CEA, section 2) and for a the language of the foreign jurisdiction, nonetheless, the failure to claim of delivery, surrender or eviction of real property or movables provide a translation of the summons or orders can cause a foreign (CEA, section 3). judgment to be deemed unenforceable, even if all other requirements have been met.
114 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Chuo Sogo Law Office, P. C. Japan
Masahiro Nakatsukasa Chuo Sogo Law Office, P. C. Kohda Bldg. 11th Floor, 2-10-2 Nishi-Tenma Kita-ku, Osaka, 530-0047 Japan
Tel: +81 6365 8111 / +81 3 3539 1877 Email: [email protected] URL: www.clo.jp Japan
Masahiro Nakatsukasa is a bilingual international attorney admitted in Japan and New York, with more than 24 years’ experience representing Japanese and foreign clients in a wide variety of transactions and litigations. He is well-known as one of the leading counsels in the areas of cross-border M&A and financial transactions in the Kansai area in Japan (comprised of Osaka, Kobe, and Kyoto). Mr. Nakatsukasa was selected for inclusion in the 5th to 8th editions of Best Lawyers in Japan in Banking and Finance Law (2014, 2015, 2016, and 2017) and Insolvency and Reorganization Law (2017). He served as a Vice-President of the Osaka Bar Association from 2015 to 2016. Mr. Nakatsukasa received an LL.B. from Kyoto University in 1994 and an LL.M. from the Northwestern University School of Law in 2005.
Chuo Sogo Law Office, P.C. is a domestic and international business law firm founded in 1968 with current offices in Osaka, Tokyo and Kyoto, Japan. Currently, we have 53 lawyers (five of whom are qualified in New York as well as Japan, and two foreign attorneys, each qualified in California). Chuo Sogo enjoys a particularly high reputation in the field of Banking and Finance Law (six attorneys have been seconded from the firm or have prior work experience at Japan’s Financial Services Agency). For 50 years, we have assisted clients ranging from large corporations to individuals – with complex litigation, mergers and acquisitions, corporate, tax, intellectual property, restructuring and other interdisciplinary matters. In addition to long- standing relationships with several top U.S. and British law firms, we maintain particularly active networks with law firms in the emerging markets of Southeast Asia (Singapore, Thailand, China, and Myanmar) and the Middle East (particularly Dubai and Iran).
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 115 Chapter 21
Kenya John M. Ohaga
TripleOKlaw Advocates LLP Gloria Mwika
1 Country Finder 2.2 What constitutes a ‘judgment’ capable of recognition and enforcement in your jurisdiction?
1.1 Please set out the various regimes applicable to recognising and enforcing judgments in your Answer not available at the time of publication. jurisdiction and the names of the countries to which such special regimes apply. 2.3 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised Applicable Law/ Relevant Corresponding and enforceable in your jurisdiction? Statutory Regime Jurisdiction(s) Section Below Australia, Malawi, Section 9 of the Civil Procedure Act stipulates that a foreign the Republic of judgment must be conclusive as to any matter directly adjudicated Rwanda, Seychelles, upon between the same parties or between the parties under whom Tanzania, Uganda, the United Kingdom they or any of them claim. Section 3(2) of the Foreign Judgments and Zambia. (Reciprocal Enforcement) Act stipulates that a foreign judgment Section 13 of the shall be deemed to be conclusive even if it is the subject of an appeal Foreign Judgments Act empowers the (Reciprocal or it may be subjected to an appeal in the foreign court. Minister (in charge Enforcement) Act, Sections 2 and 3. of such matters) to Section 9 of the Civil Procedure Act provides that the foreign Chapter 43 of the extend the application judgment shall be deemed as inconclusive where: laws of Kenya. of this Act to other a) it has not been pronounced by a court of competent countries that have made or will jurisdiction; make reciprocal b) it has not been given on the merits of the case; arrangements for c) it appears on the face of the proceedings to be founded on an the enforcement of incorrect view of international law or a refusal to recognise Kenyan judgments. the law of Kenya in which such law is applicable; d) the proceedings in the judgment obtained are opposed to the rules of natural justice; 2 General Regime e) it has been obtained by fraud; or f) it sustains a claim founded on a breach of any law in force in 2.1 Absent any applicable special regime, what is the Kenya. legal framework under which a foreign judgment would be recognised and enforced in your 2.4 What (if any) connection to the jurisdiction is required jurisdiction? for your courts to accept jurisdiction for recognition and enforcement of a foreign judgment? In the absence of a reciprocal enforcement arrangement, a foreign judgment is enforceable in Kenya as a claim in common law. The Answer not available at the time of publication. High Court would take into account the common law principles of the enforcement of foreign judgments and the provisions of section 9 of the Civil Procedure Act. The jurisdiction of the High Court is also 2.5 Is there a difference between recognition and exercised in compliance with Section 3 of the Judicature Act which enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? provides that the jurisdiction of the High Court of Kenya is exercised in conformity with the Constitution, all other written laws and subject to certain qualifications and the substance of common law. There is a difference between recognition and enforcement. The Foreign Judgments (Reciprocal Enforcement) Act makes this A party must file a plaint at the High Court providing a concise distinction by using the terms ‘registration’ and ‘execution’ of a statement of the nature of the claim, the amount of the judgment debt foreign judgment. Recognition precedes enforcement. Recognition accompanied by a verifying affidavit, a list of witnesses and a bundle of is when the foreign judgment is registered in the Kenyan courts in documents, key among them a certified copy of the foreign judgment.
116 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 TripleOKlaw Advocates LLP Kenya
the manner set out by the Act. When a judgment has been registered, f) the judgment materially disregards provisions of Kenyan law its execution shall be of the same force and effect as a judgment of which ought to have been taken into consideration; the High Court and the procedure applicable for enforcement of a g) the judgment debtor was not duly served with the proceedings local judgment shall be applied. of the foreign court to enable him to defend the proceedings in the foreign court; h) the judgment debtor did not receive sufficient notice of the 2.6 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. proceedings to enable him to defend the proceedings in the foreign court; i) the judgment having been taken on appeal in a court of the The Procedure is determined by the applicable legal regime. Where foreign country, has been reversed or otherwise set aside; the foreign judgment is from a designated country, the Foreign Kenya Judgments (Reciprocal Enforcement) Act sets out the procedure as j) the judgment debtor is a person who, under the principles of public international law, is entitled to immunity from the follows. jurisdiction of the High Court; Within six years of the date of the judgment, the Decree Holder k) the rights under the judgment are not vested in the person by may apply to the High Court to have the judgment registered. The whom the application for registration was made; and application for registration of the judgment is accompanied by a l) the enforcement of the judgment would be manifestly contrary certificate in the form set out in the schedule or to the same effect to public policy in Kenya. issued from the original court under seal and signed by a Registrar of the original court or authenticated by the affidavit. The affidavit The challenge ought to be made at the earliest possible time when states that the judgment remains unsatisfied, that at the date of the facts relied upon came into the knowledge of the applicant. the application, the judgment can be enforced by execution in the country of original court and where only certain provisions are to 2.8 What, if any, is the relevant legal framework applicable be registered, the said provisions are stated in the affidavit. Unless to recognising and enforcing foreign judgments otherwise ordered by the High Court, for judgments given by relating to specific subject matters? Superior Courts of a Commonwealth Country, the application for registration of the judgment must be accompanied by a certificate Section 3 of the Foreign Judgments (Reciprocal Enforcement) Act under seal and signed by a Judge or Registrar certifying that the outlines the judgments that apply to Kenya and those that do not. court is a Superior Court. The High Court may request for provision Section 3 specifies the judgments which the Act can enforce and of further evidence. Where the High Court is satisfied as to the those that cannot be enforced. For example, the Act applies with proof of matters required by the Foreign Judgments (Reciprocal respect to a judgment of a designated court in civil proceedings Enforcement) Act and any other rules of the Court, it may order under which a sum of money is made payable or an order for the that the judgment be registered. The High Court shall not register delivery of movable property is made. The Act, however, does a judgment that has been wholly satisfied or one that could not be not apply to a judgment which stipulates that the sum of money is enforced by execution in the country of the foreign court. payable or an item of movable property is deliverable in respect of Common Law taxes, fines or penalties. Where there is no reciprocal enforcement arrangement, the judgment is only capable of being enforced pursuant to the following 2.9 What is your court’s approach to recognition and procedure. enforcement of a foreign judgment when there is: (a) a A party files a plaint at the High Court providing a concise statement conflicting local judgment between the parties relating to the same issue; or (b) local proceedings pending of the nature of claim, the amount of the judgment debt, supported between the parties? by a verifying affidavit, a list of witnesses and a bundle of documents intended to be relied upon as well as a certified copy of the foreign a) The judgment can be set aside in accordance with Section judgment. 10(2) of the Foreign Judgments (Reciprocal Enforcement) Act which provides that judgments can be set aside if the 2.7 On what grounds can recognition/enforcement of a cause of action upon which the judgment was given had, judgment be challenged? When can such a challenge at the time of the application, been subject to a final and be made? conclusive judgment of a Kenyan court having jurisdiction to determine the matter. Recognition/enforcement of a judgment may be challenged on, inter b) Where there are local proceedings between the parties, the alia, the following grounds: High Court may stay the local proceedings upon establishing among other factors, regardless of whether the foreign a) it was not pronounced by a court of competent jurisdiction; judgment is final and conclusive. b) it was registered in contravention of the Foreign Judgments (Reciprocal Enforcement) Act; 2.10 What is your court’s approach to recognition and c) the foreign courts had no jurisdiction to hear and determine enforcement of a foreign judgment when there is a the dispute; conflicting local law or prior judgment on the same or d) the matter in relation to which the judgment was given, a similar issue, but between different parties? subsequent to the date of that judgment, and as a result of proceedings instituted prior to the institution of the proceedings A foreign judgment that is founded on an incorrect view or a in the foreign court, became the subject of a final and conclusive refusal to recognise the law of Kenya shall be set aside by the High judgment in a court in Kenya which is irreconcilable with the judgment of the foreign court; Court. The basis of this can be found under Section 9 of the Civil Procedure Act and Section 10 of the Foreign Judgments (Reciprocal e) the judgment was obtained by fraud; Enforcement) Act.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 117 TripleOKlaw Advocates LLP Kenya
a) has not been pronounced by a court of competent jurisdiction; 2.11 What is your court’s approach to recognition and b) has not been given on the merits of the case; enforcement of a foreign judgment that purports to apply the law of your country? c) appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of Kenya where such law is applicable; Where a foreign court has applied the law of Kenya in its judgment, the High Court will examine whether the application and interpretation d) where the proceedings in the judgment were obtained are opposed to the rules of natural justice; of the laws of Kenya was correctly made. Where it appears on the face of the proceedings that the judgment is founded on an incorrect e) has been obtained by fraud; or view or a refusal to appreciate the law of Kenya where it is applicable, f) where it sustains a claim founded on a breach of any law in Kenya the High Court would set aside such a decision. force in Kenya. Common Law 2.12 Are there any differences in the rules and procedure The common law principles on enforcement of foreign law of recognition and enforcement between the various judgments include: states/regions/provinces in your country? Please a) where a foreign court properly seized of jurisdiction directs explain. that a certain sum be due from one person to another, a legal obligation arises to pay that sum; No, there is uniform application of the law in Kenya. b) a foreign judgment obtained in circumstances that were contrary to principles of natural justice does not give rise to any obligation of obedience; and 2.13 What is the relevant limitation period to recognise and enforce a foreign judgment? c) if a foreign judgment is to be enforced against a corporation it must be shown that at the relevant time, the corporation Section 4(4) of the Limitation Act stipulates that an action for was carrying on business and it was doing so at a definite and to some reasonable extent, permanent place in the foreign enforcement of a foreign judgment must be brought in Kenya within country. twelve (12) years of the date of the judgment.
3.2 With reference to each of the specific regimes set out 3 Special Enforcement Regimes Applicable in question 1.1, does the regime specify a difference to Judgments from Certain Countries between recognition and enforcement? If so, what is the difference between the legal effect of recognition and enforcement? 3.1 With reference to each of the specific regimes set out in question 1.1, what requirements (in form and It is only the Foreign Judgments (Reciprocal Enforcement) Act substance) must the judgment satisfy in order to be which creates a distinction between recognition and enforcement of recognised and enforceable under the respective a foreign judgment. regime?
Foreign Judgment (Reciprocal Enforcement) Act 3.3 With reference to each of the specific regimes set out in question 1.1, briefly explain the procedure for This is applicable to the following: recognising and enforcing a foreign judgment. a) a judgment or order of a designated court in civil proceedings where there is a lump sum payment of money; Foreign Judgments (Reciprocal Enforcement) Act b) a judgment or order of a designated court where movable The Judgment Creditor makes an application to the High Court to have property is ordered to be delivered as part of a scheme for provision for or maintenance of a spouse or a former or reputed the judgment registered within six years of the date of the judgment. spouse or a child or any person who was the dependent of The application may be made without notice to the judgment debtor. another; The application for registration of the judgment is accompanied by c) a judgment or order made by a designated court in a criminal a certificate in the form set out in the schedule or to the same effect proceeding for compensation for injury caused; issued from the original court under seal and signed by a registrar d) a judgment made on appeal for the matters listed above; of the original court or authenticated by affidavit. The affidavit e) a judgment of a designated superior court for the costs of an states that the judgment remains unsatisfied, that at the date of appeal from a subordinate court whether or not it is a designated the application, the judgment can be enforced by execution in the court; country of original court and that where only certain provisions are f) an arbitration award that is enforceable in a designated country; or to be registered they are stated in the affidavit. g) interim payments to be made by a judgment debtor. For judgments delivered by a Superior Court of a Commonwealth Country, the application for registration of the judgment must be Civil Procedure Act, Chapter 21 of the laws of Kenya accompanied by a certificate under seal and signed by a Judge or The requirements set out under Section 9 of the Civil Procedure Act registrar certifying that the court is a Superior Court. apply to foreign judgments from both designated and non-designated If the above conditions have been fulfilled, the court registers the countries. As explained above, Section 9 of the Civil Procedure Act judgment and it is subject to the enforcement as a judgment of the provides that foreign judgments shall be final and conclusive and High Court of Kenya. shall be deemed as inconclusive where the judgment:
118 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 TripleOKlaw Advocates LLP Kenya
Common Law c) it appears on the face of the proceedings to be founded on an A party files a plaint at the High Court providing a concise statement incorrect view of international law or a refusal to recognise the law of Kenya where such law is applicable; of the nature of claim, the amount of judgment debt, supported by a verifying affidavit, list of witnesses and bundle of documents d) where the proceedings in the judgment obtained are opposed intended to be relied upon as well as a certified copy of the foreign to the rules of natural justice; judgment. e) the judgment has been obtained by fraud; or f) where the judgment sustains a claim founded on a breach of any law in force in Kenya. 3.4 With reference to each of the specific regimes set out in question 1.1, on what grounds can recognition/ The challenge ought to be made at the earliest possible time when enforcement of a judgment be challenged under the the facts relied upon came into the knowledge of the applicant. Kenya special regime? When can such a challenge be made?
Challenging of Judgments under the Foreign Judgments (Reciprocal 4 Enforcement Enforcement) Act Recognition/enforcement of a judgment may be challenged on, inter 4.1 Once a foreign judgment is recognised and enforced, alia, the following grounds: what are the general methods of enforcement a) it was not pronounced by a court of competent jurisdiction; available to a judgment creditor? b) it was registered in contravention of the Foreign Judgments (Reciprocal Enforcement) Act; A court may, upon application, order execution of a decree in several ways, including: ordering the delivery of any property to the decree- c) the foreign courts had no jurisdiction to hear and determine holder; ordering the attachment and sale of the property or sale of the the dispute; property without attachment; appointment of a receiver; a garnishee d) the matter in relation to which the judgment was given, order; attachment of debts or arrest; and detention of the judgment subsequent to the date of that judgment, and as a result of proceedings instituted prior to the institution of the proceedings debtor. in the foreign court, became the subject of a final and conclusive judgment in a court in Kenya which is irreconcilable with the judgment of the foreign court; 5 Other Matters e) the judgment was obtained by fraud; f) the judgment materially disregards provisions of Kenyan law 5.1 Have there been any noteworthy recent (in the last which ought to have been taken into consideration; 12 months) legal developments in your jurisdiction g) the judgment debtor was not duly served with the proceedings relevant to the recognition and enforcement of foreign judgments? Please provide a brief description. of the foreign court to enable him to defend the proceedings in the foreign court; h) the judgment debtor did not receive sufficient notice of the In the case of Jayesh Hasmukh Shah -vs- Navin Haria & Another, proceedings to enable him to defend the proceedings in the Civil Appeal No. 147 of 2009, the Court of Appeal held that the High foreign court; Court, pursuant to the provisions of section 3 of the Judicature Act i) the judgment having been taken on appeal in a court of the and its original and unlimited civil jurisdiction provided in Article foreign country, has been reversed or otherwise set aside; 165(3) of the Constitution had jurisdiction to determine any issue relating to enforceability of foreign judgments from non-designated j) the judgment debtor is a person who, under the principles of public international law, is entitled to immunity from the countries. The Appellant sought to enforce and execute in Kenya a jurisdiction of the High Court; judgment from Ethiopia that was not a designated country under the provisions of the Foreign Judgments (Reciprocal Enforcement) Act. k) the rights under the judgment are not vested in the person by whom the application for registration was made; and The decision was delivered on 12th February, 2016. l) the enforcement of the judgment would be manifestly contrary to public policy in Kenya. 5.2 Are there any particular tips you would give, or The challenge ought to be made at the earliest possible time when critical issues that you would flag, to clients seeking the facts relied upon came into the knowledge of the applicant. to recognise and enforce a foreign judgment in your jurisdiction? Grounds for Challenging Recognition/Enforcement of Foreign Judgments under Common Law and the Civil Procedure Act It is important that an applicant seeking enforcement of a foreign The grounds for challenging a judgment under Common Law are judgment in Kenya ensures that the foreign judgment is capable the following: of being enforced in the country where the judgment was made. a) the judgment has not been pronounced by a court of Equally important is that an action for enforcement of a foreign competent jurisdiction; judgment must be brought within twelve (12) years of the date of b) the judgment has not been given on the merits of the case; the judgment. Kenyan courts are quite hesitant to grant extensions of time to institute an action that has otherwise expired.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 119 TripleOKlaw Advocates LLP Kenya
John Ohaga Gloria Mwika TripleOKlaw Advocates LLP TripleOKlaw Advocates LLP 5th Floor, Block C, ACK Garden House 5th Floor, Block C, ACK Garden House 1st Ngong’ Avenue, Off Bishops Road 1st Ngong’ Avenue, Off Bishops Road PO Box 43170-00100, Nairobi PO Box 43170-00100, Nairobi Kenya Kenya
Tel: +254 02 0272 7171 Tel: +254 02 0272 7171 Email: [email protected] Email: [email protected] URL: www.tripleoklaw.com URL: www.tripleoklaw.com Kenya John Ohaga is the Managing Partner in the firm of TripleOKlaw LLP Gloria Mwika is an Associate in the firm of TripleOKlaw Advocates LLP. Advocates. He has more than 25 years’ post-qualification experience Gloria has been involved in diverse litigation and dispute resolution during which he has been involved in numerous complex litigation as processes in the field of commercial law, banking and regulatory well as high-value domestic and international arbitrations. He has compliance, receivership and liquidation of banking institutions, been recognised for his high-quality work and expertise in dispute competition law, retirement benefits, land law as well as sports resolution by The Legal 500, Chambers Global and Best Lawyers. law. She is part of a team that represents a wide range of local and John was declared the 2010, 2016 and 2017 winner of the International multinational clients and is frequently called upon to advise on client Law Office (ILO) Client Choice Awards for Kenya in the category exposure, dispute resolution options and strategy. of litigation (www.clientchoiceawards.com). He is an experienced litigator and has a particular passion for commercial litigation. He advises many leading companies listed on the Nairobi Securities Exchange as well numerous private companies in addition to some of Kenya’s largest state corporations. Moreover, he also has significant experience in other aspects of civil litigation including employment and labour disputes, landlord and tenant, public procurement, intellectual property and sports law among many others.
TripleOKlaw Advocates LLP is a leading Kenyan Law firm that provides a wide range of specialised legal services. We are known to provide efficient, effective and competent legal services in all aspects of commercial law including our top-notch litigation and dispute resolution practice. Our structure enables our lawyers to concentrate on their areas of expertise while training them to be flexible enough to undertake new and challenging work that may not be in their primary area of specialisation. In addition, our firm is a member of Meritas Law Firms Worldwide, an established global alliance of independent full-service law firms with a presence in 235 global markets. This enables us to navigate transnational legal issues with confidence.
120 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Chapter 22
Kosovo Sokol Elmazaj
Boga & Associates Delvina Nallbani
1 Country Finder 2.2 What constitutes a ‘judgment’ capable of recognition and enforcement in your jurisdiction?
1.1 Please set out the various regimes applicable to recognising and enforcing judgments in your A “judgment” capable of recognition and enforcement shall be jurisdiction and the names of the countries to which considered a final and enforceable decision under the law ofthe such special regimes apply. country in which it was taken as well as a settlement reached before a court. In addition, a decision of another authority which is equivalent to the court decision in the country where it was taken Applicable Law/ Relevant Corresponding Statutory Regime Jurisdiction(s) Section Below shall also be capable for recognition and enforcement. Law On Resolving In criminal matters, final judgments issued by courts of other States Conflict of Laws with against citizens or permanent residents of the Republic of Kosovo Applies to all Regulations of Other jurisdictions for may be recognised and enforced in the Republic of Kosovo, if Countries (“Official Section 2. judgments in civil the judgment contains types of sanctions foreseen by the Kosovo Law. Gazette of SFRY”), law matters. no. 43/82 and 72/82 – as amended. 2.3 What requirements (in form and substance) must a Law no. 04/l-213 Applies to all foreign judgment satisfy in order to be recognised On International jurisdictions for Section 2. and enforceable in your jurisdiction? Legal Cooperation in judgments in criminal Criminal Matters. law matters. In civil law matters, a request for recognition of the foreign judgment should be submitted to the General Section of the Basic Court where the defendant/debtor resides or is located. The applicant 2 General Regime should accompany his request for recognition with a confirmation of the competent foreign court or other authority that the decision is final and enforceable under the law of the country in which it was 2.1 Absent any applicable special regime, what is the legal framework under which a foreign judgment would be taken. In addition to the mentioned confirmation, the applicant must recognised and enforced in your jurisdiction? submit a declaration of enforceability of that decision under the law of the country in which it was taken. Kosovo has not yet adopted a law regarding the recognition and The request for recognition should be accompanied by the foreign enforcement of foreign judgments in civil law matters and old judgment in question and with a judicial translation of the decision Yugoslav law, namely the Law “On Resolving Conflict of Laws into one of the Kosovo official languages (i.e. Albanian and Serbian), with Regulations of Other Countries” (“Official Gazette of SFRY”, if it is in a foreign language. no. 43/82 and 72/82 – as amended) is still in force. In criminal matters, the procedure for recognition and enforcement Judgments in criminal law matters are recognised based on the Law may be initiated on the basis of a written request received by the on International Legal Cooperation in Criminal Matters (Law no. Ministry of Justice. The request should be accompanied by the 04/l-213). original or a certified copy of the foreign judgment and any other The enforcement of foreign judgments is carried out based on the relevant documents. If the foreign judgment is in a foreign language, provisions of the Law on Enforcement Procedure (Law no. 04/L-139 a judicial translation in one of the Kosovo official languages should as amended by the Law no. 05/L-118). also be submitted to court. The Law on Courts (Law no. 03/l-199 as amended by Law no. After reviewing the formal requirements of the request, the Ministry 04/L-171 and Law no. 05/L-032) establishes the jurisdiction of the of Justice shall transmit it, together with the supporting documents courts with regard to the recognition of foreign judgments and the received, to the competent court. The competent court to decide on provision of international legal assistance. the request for recognition and enforcement is the Basic Court in the territory where the sentenced person resides or is located. In case the residence or location of the person cannot be determined, the Basic Court of Pristina shall be competent.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 121 Boga & Associates Kosovo
■ if the Kosovo court or other authority has issued a final decision 2.4 What (if any) connection to the jurisdiction is required in the same matter or if Kosovo courts recognised another for your courts to accept jurisdiction for recognition foreign judicial judgment that was taken in the same matter; and enforcement of a foreign judgment? ■ is against the public order in Kosovo; ■ if there is no reciprocity, which is presumed unless proven Such a connection is not explicitly provided by law. In criminal otherwise (the lack of reciprocity is not an obstacle for matters, foreign judgments submitted for recognition and recognition of a foreign judgment made in a marital dispute enforcement should regard citizens or permanent residents of the and in a dispute to establish the paternity or maternity, as Republic of Kosovo. all in cases when the recognition of a foreign judgment is requested by a Kosovo citizen); or Kosovo 2.5 Is there a difference between recognition and ■ the foreign judgment is not final and enforceable. enforcement of judgments? If so, what are the legal In criminal matters, the court shall refuse the recognition and effects of recognition and enforcement respectively? enforcement of a foreign judgment in one of the following situations: ■ the enforcement would be contrary to the fundamental The process of recognition of the foreign judgments and the principles of the legal system of the Republic of Kosovo; enforcement of such judgments usually includes two individual ■ the offence for which the sentence was rendered is of a legal proceedings, namely the process of recognition and the political nature or military one; process of execution. The purpose of recognition of a foreign ■ there are substantial grounds to believe that the judgment judgment is to make such judgment equal to a judgment of a Kosovo was rendered on considerations of race, religion, nationality court, i.e. to produce legal effects in the Republic of Kosovo. In this or political opinion; regard, foreign judgments need to be recognised in the territory of ■ the offence on which the foreign judgment is based is already the Republic of Kosovo by the competent court before they can be subject to a final judgment or proceedings in the Republic of enforced. Once recognised by Kosovo courts, foreign judgments Kosovo; constitute enforcement titles based on which the applicant may ■ under national law, the enforcement of the sanction cannot be initiate the enforcement procedure. executed due to statutory limitation or the sanction has been pardoned; and 2.6 Briefly explain the procedure for recognising and ■ the judgment was rendered in absentia, unless the requesting enforcing a foreign judgment in your jurisdiction. State provides supporting information that, according to its law, the person was summoned or otherwise informed The applicant should submit a request to the competent court Basic personally via a competent representative, of the time and place of the proceedings which resulted in the judgment Court to recognise and declare enforceable the foreign judgment in rendered in absentia, or that the person has indicated to a the territory of the Republic of Kosovo. competent authority of the requesting State that he or she The foreign judgment, which has been recognised and declared does not contest the case, or did not request a retrial or enforceable within the territory of the Republic of Kosovo is filed an appeal. If the requesting State fails to provide the considered an enforcement document based on which the applicant supporting information, judgments rendered in absentia may may initiate the enforcement procedure. The enforcement procedure be recognised and enforced if the person has been provided is conducted by the court or private bailiff when the applicant files with the possibility to make an opposition to the judgment the enforcement proposal. and the person did not file an objection within 20 days. Upon the proposal of the applicant, the court or private bailiff issues an enforcement decision/order within seven days from the 2.8 What, if any, is the relevant legal framework applicable receipt of the proposal. The other party may object and appeal such to recognising and enforcing foreign judgments relating to specific subject matters? decision/order; and the enforcement is applied after the decision on enforcement becomes final (i.e. if the debtor does not object or after the procedure pursuant to the legal remedies, objection and appeal, Foreign judgments relating to personal status of a citizen of the is finished). country in which the judgment was taken shall not be subject to review by the Court regarding the exclusive jurisdiction of the Kosovo court or other State authority, regarding the contradiction 2.7 On what grounds can recognition/enforcement of a with the public order and regarding the reciprocity. judgment be challenged? When can such a challenge be made? If the foreign judgment relates to the personal status of a Kosovo citizen, such a judgment, in order to be recognised, is subject to In civil matters, the judgment can be challenged on procedural review of whether the applicant has submitted a declaration of aspects based on an objection submitted by the person against whom finality of that decision under the law of the country in which it was the decision is taken, such as: rendered and whether there is reciprocity. ■ the party against whom the decision was taken was not able to participate in proceedings because of the irregularity in 2.9 What is your court’s approach to recognition and proceedings, which include the failure to notify the party enforcement of a foreign judgment when there is: (a) a regarding the commencement of the proceedings; conflicting local judgment between the parties relating ■ if there is exclusive jurisdiction of the court or other State to the same issue; or (b) local proceedings pending body in Kosovo regarding the matter in question (this between the parties? does not apply in cases when the defendant is seeking the recognition of a court decision given in a marital dispute or if In civil matters, a foreign judgment shall not be recognised, if the the prosecutor is seeking, and the defendant does not oppose, Kosovo court or other authority has issued a final decision in the the exclusive jurisdiction of the court in Kosovo); same matter or if the Kosovo courts recognised another foreign
122 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Boga & Associates Kosovo
judicial judgment that was taken in the same matter. In case there are proceedings pending between parties before local courts, the 3 Special Enforcement Regimes Applicable court will suspend the procedure of recognition of the court until to Judgments from Certain Countries those local proceedings are completed. Likewise, in criminal matters, the court shall refuse the recognition 3.1 With reference to each of the specific regimes set and enforcement of a foreign judgment, if the offence on which the out in question 1.1, what requirements (in form and foreign judgment is based is already subject to a final judgment or substance) must the judgment satisfy in order to be proceedings in the Republic of Kosovo. recognised and enforceable under the respective regime?
2.10 What is your court’s approach to recognition and There is no such specific regime in Kosovo. Kosovo enforcement of a foreign judgment when there is a conflicting local law or prior judgment on the same or a similar issue, but between different parties? 3.2 With reference to each of the specific regimes set out in question 1.1, does the regime specify a difference In civil matters and criminal matters, a conflicting local law or between recognition and enforcement? If so, what is prior judgment on the same or a similar issue, but between different the difference between the legal effect of recognition and enforcement? parties, is not considered by law as a reason to challenge the recognition and enforcement of a foreign judgment, unless it regards The difference between recognition and enforcement is mentioned a violation of public interest. under question 2.5. However, if the sanction imposed by a foreign judgment in a criminal matter is not in accordance with Kosovo law, the Court may adapt the sanction only where that sanction exceeds the maximum 3.3 With reference to each of the specific regimes set punishment provided for similar offences under the Kosovo law. If out in question 1.1, briefly explain the procedure for recognising and enforcing a foreign judgment. the sanction imposed by the foreign court is less than the minimum which may be imposed under the Kosovo law, the court shall not be bound by the minimum provided by Kosovo law and shall impose a Please refer to question 2.3 above. sanction corresponding to the sanction imposed in the State in which the judgment was taken. 3.4 With reference to each of the specific regimes set out in question 1.1, on what grounds can recognition/ enforcement of a judgment be challenged under the 2.11 What is your court’s approach to recognition and special regime? When can such a challenge be made? enforcement of a foreign judgment that purports to apply the law of your country? Judgments can be challenged from formal aspects, during recognition and enforcement. The recognition process by the Kosovo court does not consider the merits of the foreign judgment, including the interpretation of Kosovo Law by foreign court or other authority, but rather 4 Enforcement procedural aspects required for recognition. However, if a foreign judgment is in contradiction with the fundamental principles of the legal system of the Republic of Kosovo, the court shall refuse the 4.1 Once a foreign judgment is recognised and enforced, recognition of such foreign judgment. what are the general methods of enforcement available to a judgment creditor?
2.12 Are there any differences in the rules and procedure Enforcement of judgments are carried out according to the of recognition and enforcement between the various provisions of the Enforcement Law by court or private bailiffs when states/regions/provinces in your country? Please explain. the applicant submits an enforcement proposal based on the foreign judgment. There are no such different rules. The available actions to enforce a judgment include collection of personal incomes and other permanent monetary incomes, blocking of monetary means held in the bank accounts, sale of movable and 2.13 What is the relevant limitation period to recognise and immovable property, etc. enforce a foreign judgment? The enforcement of personal accounts shall apply through their The limitation period should be assessed under the law governing sequestration and transfer. the foreign judgment. Kosovo law provides a 10-year limitation The enforcement of movable property includes the following period for all claims determined by a final court decision or by procedures: (i) registration, sequestration, and evaluation of the another relevant authority or through settlement before the court or movable property; (i) sale of the movable property; and (iii) settling another relevant authority including those for which a shorter period the credit from the amount obtained from sale of such items. is stipulated by the statute of limitations. However, periodic claims Enforcement of immovable property is conducted through the originating from such decisions or settlements and falling due in the following phases: (i) noting of enforcement in the public register future shall become statute-barred after three years. of immovable property; (ii) determining the value of immovable The limitation period shall be calculated from the first day after the property; (iii) sale of immovable property; and (iv) payment of the day the applicant held the right to demand the performance of the enforcement creditor from the amount of money obtained by the sale. obligation, unless stipulated otherwise by law for individual cases.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 123 Boga & Associates Kosovo
With regard to criminal matters, a person, for whom a request for recognition and enforcement of judgment has been submitted to 5 Other Matters the Ministry of Justice, may be arrested and placed in detention on remand in accordance with the Kosovo Criminal Procedural Code. 5.1 Have there been any noteworthy recent (in the last If a request for enforcement of a fine or confiscation of a sum of 12 months) legal developments in your jurisdiction money has been accepted, the court shall convert the amount into relevant to the recognition and enforcement of foreign judgments? Please provide a brief description. the currency in circulation in the Republic of Kosovo according to the exchange rate recorded by the central bank valid for the day when the judgment was issued. In doing so, the court shall fix the There have not been any noteworthy legal developments in Kosovo regarding the recognition and enforcement of foreign judgments.
Kosovo amount of the fine or the sum to be confiscated, which shall not exceed the maximum sum established by the national law for the The Law on International Private Law, which should replace the same criminal offence. Law “On Resolving Conflict of Laws with Regulations of Other Countries” (“Official Gazette of SFRY”, no. 43/82 and 72/82 – as When the request for enforcement concerns the confiscation of a amended), is being drafted under the supervision of the Ministry of particular item, the court may order the confiscation of that item Justice and should be presented to the public during 2018. only if the national law permits confiscation for the same criminal offence or if it allows for the imposition of a more severe sanction. If confiscation of a particular item is not possible, the court may 5.2 Are there any particular tips you would give, or instead decide to confiscate the monetary amount equal to the value critical issues that you would flag, to clients seeking of that item if the requesting State agrees. to recognise and enforce a foreign judgment in your jurisdiction?
Clients should try to meet all the formal aspects when submitting the request for recognition, in order to avoid delays in the process of recognition. It should also be noted that the process of enforcing judgments is time-consuming because of the legal remedies available to the parties. In this regard, the enforcement is applied after the legal remedy process is completed; i.e. after decision on enforcement becomes final.
124 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Boga & Associates Kosovo
Sokol Elmazaj Delvina Nallbani Boga & Associates Boga & Associates 27/5 Nene Tereza Str. 27/5 Nene Tereza Str. 10000 Pristina 10000 Pristina Kosovo Kosovo
Tel: +381 38 223 152 Tel: +381 38 223 152 Email: [email protected] Email: [email protected] URL: www.bogalaw.com URL: www.bogalaw.com Kosovo Sokol joined Boga and Associates in 1996. Delvina is a Senior Associate at Boga & Associates, which she joined in 2012. He is a Partner of the firm and Country Manager for Kosovo. Her practice is mainly focused on providing legal advice to clients on He has extensive expertise in corporate, mergers and acquisitions, a wide range of corporate, business and banking matters. She also project financing, privatisation, real estate projects, energy, provides assistance in advising investors on a number of transactions, telecommunication, and dispute resolution. He is continuously including mergers and acquisitions, and privatisations. involved in providing legal advice to numerous project-financing transactions, mainly on concessions and privatisations, with a focus Delvina graduated in Law at the University of Zagreb, and is a member on energy and infrastructure, both in Albania and Kosovo. of the Kosovo Bar Association Sokol also conducted a broad range of legal due diligences for She is fluent in Croatian and English. international clients considering to invest in Albania or Kosovo in the fields of industry, telecommunications, banking, real estate, etc. He is an authorised trademark attorney and has an expertise in trademark filing strategy and trademark prosecution, including IP and litigation issues. Sokol is continuously ranked as a Leading Lawyer in the well-known guides Chambers Global, Chambers & Partners and IFLR1000. Sokol graduated in Law at the University of Tirana in 1996 and is admitted to practise in Albania and Kosovo. He is also an arbiter listed in the roster of the American Chamber of Commerce of Kosovo. He is fluent in English and Italian.
Boga & Associates, established in 1994, has emerged as one of the premier law firms in Albania, earning a reputation for providing the highest quality of legal, tax and accounting services to its clients. The firm also operates in Kosovo (Pristina) offering a full range of services. Until May 2007, the firm was a member firm of KPMG International and the Senior Partner/Managing Partner, Mr. Genc Boga, was also the Senior Partner/Managing Partner of KPMG Albania. The firm’s particularity is linked to the multidisciplinary services it provides to its clients, through an uncompromising commitment to excellence. Apart from the widely consolidated legal practice, the firm also offers the highest standards of expertise in tax and accounting services, with keen sensitivity to the rapid changes in the Albanian and Kosovo business environment. The firm delivers services to leading clients in major industries, banks and financial institutions, as well as to companies engaged in insurance, construction, energy and utilities, entertainment and media, mining, oil and gas, professional services, real estate, technology, telecommunications, tourism, transport, infrastructure and consumer goods. The firm is continuously ranked as a “top tier firm” by The Legal 500, by Chambers and Partners for Corporate/Commercial, Dispute Resolution, Projects, Intellectual Property, Real Estate, as well as by IFLR in Financial and Corporate Law. The firm is praised by clients and peers as a “law firm with high-calibre expertise”, “the market-leading practice”, with “a unique legal know-how”, distinguished “among the elite in Albania” and described as “accessible, responsive and wise”.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 125 Chapter 23
Liechtenstein Thomas Nigg
GASSER PARTNER Attorneys at Law Domenik Vogt
1 Country Finder Applicable Law/ Relevant Corresponding Statutory Regime Jurisdiction(s) Section Below Andorra, Austria, 1.1 Please set out the various regimes applicable Belgium, Bulgaria, to recognising and enforcing judgments in your Cyprus, Czech jurisdiction and the names of the countries to which Republic, Denmark, Estonia, Finland, such special regimes apply. France, Germany, Greece, Hungary, The European Iceland, Ireland, Italy, Applicable Law/ Relevant Corresponding Convention of 20 Latvia, Liechtenstein, Statutory Regime Jurisdiction(s) Section Below May 1980 concerning Lithuania, the recognition and Treaty between Luxembourg, Section 3. enforcement of the Principality of Macedonia, decisions relating to Liechtenstein and the Malta, Moldova, Swiss Confederation custody rights for Liechtenstein and Montenegro, The on the recognition Section 3. children. Switzerland. Netherlands, Norway, and enforcement Poland, Portugal, of judgments and Romania, Serbia, arbitral awards dated Slovakia, Spain, 25 April 1968. Sweden, Switzerland, Treaty between Turkey, Ukraine, the Principality of United Kingdom. Liechtenstein and the New York Republic of Austria Convention on the All countries on the recognition Liechtenstein and Recognition and Section 3. signatory to the Section 3. and enforcement of Austria. Enforcement of Convention. judgments, arbitral Foreign Arbitral awards, settlements Awards 1958. and public deeds dated 5 July 1973. Austria, Belgium, The Hague China (Macao), Czech 2 General Regime Convention of Republic, Denmark, 15 April 1958 Finland, France, concerning the Germany, Hungary, recognition and 2.1 Absent any applicable special regime, what is the Italy, Liechtenstein, Section 3. enforcement of legal framework under which a foreign judgment The Netherlands, decisions relating would be recognised and enforced in your Norway, Portugal, to maintenance jurisdiction? Slovakia, Spain, obligations towards Suriname, Sweden, children. Switzerland, Turkey. The enforcement of judgments in civil law issues in Liechtenstein is exclusively based on the Liechtenstein Enforcement Act of 24 November 1971 (Exekutionsordnung, “EO”). According to Art. 52 EO, a formal recognition and enforcement of a foreign judgment in Liechtenstein is contingent upon reciprocity and thus generally not possible.
126 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 GASSER PARTNER Attorneys at Law Liechtenstein
However, decisions of foreign courts may be used as a basis for obligation, a lawsuit against that party may be brought at that place summary proceedings in accordance with the Civil Procedure Code (§ 43 JN). Liechtenstein courts further have jurisdiction over actions of 10 December 1912 (Zivilprozessordnung, “ZPO”). If a summary asserting a right in rem to an immovable property if the immovable court order is disputed, a specific procedure is instigated, the so- property is situated in Liechtenstein (§ 38 JN). Moreover, a venue called “Reinstitution Procedure” (Rechtsöffnungsverfahren), which may be established in Liechtenstein by way of a jurisdiction clause is regulated by the Act on the Protection of Rights of 9 February in a contract executed by both parties to the dispute (§ 53 JN). 1923 (Rechtssicherungsordnung, “RSO”). In most cases, this leads For a long time, Liechtenstein courts have been applying the rule of to an entirely new judging of the merits of the case in Liechtenstein. indication. According to this rule, Liechtenstein courts only have jurisdiction if a venue is established in Liechtenstein and if there is a 2.2 What constitutes a ‘judgment’ capable of recognition close connection between Liechtenstein and the case brought before and enforcement in your jurisdiction? the court. In the meantime, Liechtenstein courts have departed
from this rule and thus the necessity for a close connection between Liechtenstein As explained above, the scope of application of Art. 52 EO is Liechtenstein and the case brought before court has been eliminated. rather limited and therefore, the legal requirements for a judgment according to the RSO are dealt with in the following. 2.5 Is there a difference between recognition and To initiate the Reinstitution Procedure, a foreign public deed enforcement of judgments? If so, what are the legal is required. In particular, a foreign judgment or a private effects of recognition and enforcement respectively? acknowledgment of debt qualify as such. The foreign public deed must have been issued in accordance with the law of the country Liechtenstein law distinguishes between recognition and of origin. Furthermore, the creditor’s claim must be of a civil law enforcement of judgments. Recognition extends the effects of a nature and aimed at the payment or surrender of money or an article foreign judgment to the recognising country, whereas enforcement of property. Lastly, the foreign judgment must be final and legally denotes the execution of a judgment. binding and must not violate the ordre public. Recognition and enforcement are closely linked as a foreign judgment and may only be enforced if it has been recognised. If 2.3 What requirements (in form and substance) must a the requirements for recognition are met, the foreign judgment is foreign judgment satisfy in order to be recognised recognised automatically. By contrast, a foreign judgment does not and enforceable in your jurisdiction? become enforceable until it has been declared enforceable. Thus, if a foreign judgment is recognised in Liechtenstein, all of its effects According to Art. 52 of the EO, a foreign judgment may only be extend to Liechtenstein except for its enforceability. Depending on enforced in Liechtenstein if and to the extent that this is stipulated its nature and content, a foreign judgment only requires recognition in a treaty or if reciprocity is guaranteed by treaty or declaration or it may require recognition and enforcement. For instance, a of reciprocity. Therefore, in the absence of any applicable special declaratory can only be recognised, whereas a judgment granting regime, foreign judgments are principally not enforceable in performance additionally requires a declaration of enforceability. Liechtenstein. Although a formal recognition and thus, an enforcement of a foreign 2.6 Briefly explain the procedure for recognising and judgment, is therefore not possible in Liechtenstein, a successful enforcing a foreign judgment in your jurisdiction. plaintiff, who is a creditor on the basis of a foreign judgment, may achieve his goal by way of the Reinstitution Procedure. As already mentioned, foreign judgments may be rendered As explained above, a foreign public deed is required to initiate the enforceable in Liechtenstein by way of a special procedure which Reinstitution Procedure. Apart from the substantive requirements is divided into summary proceedings and the (normally) ensuing mentioned in question 2.2, the original foreign judgment or a Reinstitution Procedure. certified copy thereof has to be presented to court. Furthermore, Based on a foreign judgment, the creditor may apply for a payment if the foreign judgment is in a language other than German, a order (if the foreign judgment states the debtor’s obligation to pay a translation of the judgment has to be produced. certain amount of money or transfer fungible assets to the creditor) or a court order for a specific performance by the debtor (if the foreign judgment is of a declaratory nature or states the debtor’s 2.4 What (if any) connection to the jurisdiction is required for your courts to accept jurisdiction for recognition obligation to perform or not to perform certain acts). Such summary and enforcement of a foreign judgment? court orders have the quality of a Liechtenstein judgment and can therefore be enforced in Liechtenstein. As a result, although a The jurisdiction of Liechtenstein courts is stipulated in formal recognition of a foreign judgment is principally not possible the Liechtenstein Judicature Act dated 10 December 1912 in Liechtenstein, it can be converted into a Liechtenstein court order (Jurisdiktionsnorm, “JN”). The local jurisdiction of Liechtenstein which can be enforced in Liechtenstein. However, as summary courts also establishes their international jurisdiction. Pursuant to court orders are issued without the opposing party being heard, the § 30 JN, the Princely Court of Justice shall have jurisdiction if the debtor can raise an objection and thus nullify the court order by defendant is domiciled in Liechtenstein (“general forum”). simple notice to the court. In addition, there are several forums which constitute special If the summary court order is nullified upon an objection by the jurisdictions in favour of a Liechtenstein court. For example, a debtor, the creditor may, in turn, demand that the court set aside the venue may be established in Liechtenstein if the foreign defendant debtor’s objection and reinstitute the creditor’s summary court order. has assets in Liechtenstein (§ 50 para. 1 JN). Liechtenstein courts Such an application for reinstitution (Rechtsöffnungsgesuch) can be may have jurisdiction over a foreign-based company if either its regarded as a regular claim and leads to a court procedure, which permanent representation or its entities in charge of management is, however, simplified and structured as a very speedy summary are residents of Liechtenstein (§ 50 para. 3 JN). If a party has procedure. The court must schedule a hearing, at the latest, five chosen a special location in Liechtenstein for the performance of an days after receipt of the application for reinstitution.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 127 GASSER PARTNER Attorneys at Law Liechtenstein
The Reinstitution Procedure is purely based on enforcement law. status of a person whose birth, marriage or civil union was certified Thus, the court does not evaluate and decide whether the claim as in a domestic register, shall be registered accordingly in the civil such does exist. Instead, the court decides whether it is correct register upon approval of the government or, in further instances, and lawful to enforce this claim in Liechtenstein. In the course of the board of appeal. the Reinstitution Procedure, the debtor is also heard and thus has However, an approval may only be granted if the foreign decision or a first chance to oppose the claim raised by the creditor based on deed has been issued by the competent authority in accordance with formal arguments (e.g. lack of agreements on enforcement and the law of the country of origin. acknowledgment, violation of the debtor’s right to be heard in the If the birth, marriage or civil union was registered in a foreign civil foreign procedure, lack of the foreign court’s competence to hear register, the changes regarding the civil status, citizenship, name or the case) and substantive arguments (e.g. ordre public). The debtor marital status as well as the corrections of birth, death, marriage may furnish evidence by providing deeds or through the testimony or civil union registrations may be registered in the domestic civil
Liechtenstein of witnesses present at the hearing. As the Reinstitution Procedure register on instruction of the government. A same-sex marriage is meant to be a speedy, simplified procedure, no other evidence is contracted abroad is recognised as a civil union in Liechtenstein. admissible. In the case of Liechtenstein citizens, the registration must be made If reinstitution is not granted, the creditor is informed by the court if the change is to be regarded as legally effective. that if he wishes to pursue his claim further, he will have to file a claim in Liechtenstein. The dismissal of the creditor’s application for On the basis of Art. 89 PGR, the registry office, which has been reinstitution only has a formally binding effect, but not a materially declared as competent by the government, has regularly verified, binding effect. Therefore, the creditor may initiate regular judicial recognised and registered foreign decisions to the extent that they proceedings without the debtor being able to object for reasons of were relevant for the Liechtenstein register. res judicata. If reinstitution is granted, the according decision of the court serves 2.9 What is your court’s approach to recognition and as a legal title, based on which the creditor can demand enforcement enforcement of a foreign judgment when there is: (a) a of his claim. The debtor may not formally appeal against this conflicting local judgment between the parties relating to the same issue; or (b) local proceedings pending decision. However, the debtor may file the so-called Disallowance between the parties? Claim (“Aberkennungsklage”).
A formal recognition and enforcement of foreign decisions is 2.7 On what grounds can recognition/enforcement of a principally not possible in Liechtenstein. Thus the alternative judgment be challenged? When can such a challenge procedures, such as summary proceedings and the Reinstitution be made? Procedure, are considered in the following. The application for a summary court order is to be dismissed by By means of the Disallowance Claim, the debtor may object to the court if there is a conflicting local judgment between the parties the reinstitution. However, the Disallowance Claim is not a legal relating to the same issue or if there are local proceedings pending remedy in the sense of an appeal, but a regular claim aimed at a between the parties. However, as summary court orders are issued negative declaratory judgment. If it is granted, the court confirms without the opposing party being heard, any conflicting local that the claim underlying the Reinstitution Procedure does not exist judgments or pending proceedings may go unnoticed. Nevertheless, or is not enforceable and that the reinstitution is set aside. The the debtor has the opportunity to object and thus to eliminate the Disallowance Claim is beneficial for foreign creditors as it reverses court order by simple notice to the court. the roles of the parties (the debtor must file the claim) and thus a foreign creditor does not have to provide a security deposit for In the Reinstitution Procedure, the debtor can oppose the claim procedural costs. However, although the debtor files the claim, the raised by the creditor based on formal arguments. Therefore, he burden of proof is still placed upon the creditor. may also invoke the defences of res judicata or lis pendens. If there is a conflicting local judgment between the parties relating to the In the course of the Disallowance Procedure, the debtor has same issue or local proceedings pending between the parties, the the chance to lay out and prove his arguments in a regular, full court will dismiss the demand for reinstitution. and unrestricted court procedure and specifically object to the foundation and existence of the claim raised by the creditor for the first time. The Disallowance Procedure therefore no longer deals 2.10 What is your court’s approach to recognition and with the question of whether it was correct for the court to confirm enforcement of a foreign judgment when there is a enforceability of the creditor’s claim and thus to grant reinstitution, conflicting local law or prior judgment on the same or but it is, rather, a full procedure on the merits of the claim raised by a similar issue, but between different parties? the creditor – notwithstanding the fact that a foreign judgment on such a claim may already exist. As already explained above, the conversion of a foreign judgment into a Liechtenstein judgment regularly leads to an entirely new judging of the merits of the case in Liechtenstein. As a result, 2.8 What, if any, is the relevant legal framework applicable the Liechtenstein courts will review whether the judgment was to recognising and enforcing foreign judgments rendered in accordance with the applicable law. In particular, relating to specific subject matters? the Liechtenstein courts may verify whether the judgment is in accordance with the Liechtenstein ordre public. In the area of personal and family law, the strict requirement of reciprocity stipulated in Art. 52 EO is dispensed with. The A conflicting prior judgment on the same or a similar issue between recognition of personal and family law matters is stipulated in Art. different parties will be considered by the court and arguably hinder 89 PGR. According to this provision, decisions or other deeds on the conversion of the foreign judgment. changes regarding the civil status, citizenship, name or marital
128 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 GASSER PARTNER Attorneys at Law Liechtenstein
The Treaty between Liechtenstein and Switzerland regulates 2.11 What is your court’s approach to recognition and judgments and arbitral awards in civil matters. Art. 1 of the enforcement of a foreign judgment that purports to Treaty between Liechtenstein and Switzerland stipulates the same apply the law of your country? requirements as Art. 1 of the Treaty between Liechtenstein and Austria. However, the Treaty only excludes the recognition and As stated above, the conversion of a foreign judgment into a enforcement of decisions in insolvency proceedings, interlocutory Liechtenstein judgment involves a révision au fond. Therefore, injunctions, administrative penalties, and decisions on civil law a Liechtenstein court will review whether the foreign court has claims rendered in criminal proceedings from its scope. correctly applied the Liechtenstein substantive law. The New York Convention applies to the recognition and enforcement of foreign arbitral awards. In order to be recognised 2.12 Are there any differences in the rules and procedure in Liechtenstein, an arbitral award must have been rendered in a
of recognition and enforcement between the various contracting state as Liechtenstein reserved the application of the Liechtenstein states/regions/provinces in your country? Please Convention only to recognition and enforcement of awards made in explain. the territory of other contracting states. If an arbitral award is not made in the official language of Liechtenstein (German), the party The above-mentioned laws (EO, ZPO, RSO, PGR) apply uniformly applying for recognition and enforcement of the award shall produce throughout Liechtenstein. There are no differences in the rules and a translation of these documents into German. The translation shall procedure of recognition and enforcement between various regions. be certified by an official or sworn translator or by a diplomatic or consular agent (cf. Art. IV of the New York Convention). 2.13 What is the relevant limitation period to recognise and enforce a foreign judgment? 3.2 With reference to each of the specific regimes set out in question 1.1, does the regime specify a difference The statute of limitation is a question of substantive and not of between recognition and enforcement? If so, what is procedural law. As a result, the limitation period varies depending the difference between the legal effect of recognition on the claim in question and the applicable law to such a claim. and enforcement? Consequently, the limitation period has to be assessed under the law governing the claim in question. The treaties with Austria and Switzerland as well as the New York Under Liechtenstein law, a judgment may be enforced within 30 Convention distinguish between recognition and enforcement. years of its entry into legal force, irrespective of which limitation Recognition extends the legal effects of a foreign judgment to the period has been applicable to the underlying claim. The limitation recognising country, whereas enforcement denotes the execution of period is interrupted as soon as a motion for enforcement is filed a judgment. with the competent court, provided that it is granted eventually. 3.3 With reference to each of the specific regimes set out in question 1.1, briefly explain the procedure for 3 Special Enforcement Regimes Applicable recognising and enforcing a foreign judgment. to Judgments from Certain Countries According to Art. 5 of the Treaty with Austria, the party seeking recognition of a judgment shall supply a counterpart of the judgment 3.1 With reference to each of the specific regimes set out in question 1.1, what requirements (in form and affixed with an official signature and the official seal or stamp,a substance) must the judgment satisfy in order to be judicial confirmation of the judgment’s entry into legal force and – recognised and enforceable under the respective if necessary – its enforceability, in case of a judgment by default a regime? counterpart of the summons and a judicial confirmation of the kind and time of its delivery to the absent party, and, if the facts of the Among the multilateral and bilateral treaties and conventions listed case are not recognisable by means of the judgment, a counterpart in question 1.1, the most important ones are the Treaty between of the claim or other appropriate deeds. Art. 5 of the Treaty with Liechtenstein and Switzerland, the Treaty between Liechtenstein Switzerland lays down similar requirements. However, in addition to and Austria and the New York Convention, all of which will be dealt the above-mentioned documents, a translation of said documents may with in the following. have to be provided since Switzerland has several official languages. The Treaty between Liechtenstein and Austria regulates judgments, To obtain the recognition and enforcement of a foreign arbitral award arbitral awards, settlements and public deeds in civil and commercial under the New York Convention, the party applying for recognition matters. Decisions in insolvency proceedings, decisions in inheritance and enforcement shall, at the time of the application, supply the duly and estate proceedings, decisions in guardianship and tutelage authenticated original award or a duly certified copy thereof and the proceedings, interlocutory injunctions, administrative penalties, and original arbitral agreement or a duly certified copy thereof. decisions on civil law claims rendered in criminal proceedings are excluded from the scope of the Treaty. The requirements for the 3.4 With reference to each of the specific regimes set out recognition of judgments are stipulated in Art. 1 of the Treaty: firstly, in question 1.1, on what grounds can recognition/ the ordre public of the state in which recognition is sought must not enforcement of a judgment be challenged under the be violated. In particular, the decision must not violate the principle special regime? When can such a challenge be made? of res judicata. Secondly, the decision must have been rendered by a court which was competent to do so in accordance with Art. 2 of In case of the treaties with Austria and Switzerland, judgments which the Treaty. Thirdly, the decision must be final and binding as well as are sought to be recognised and enforced must not be reviewed as to enforceable. And finally, in case of judgments by default, summary the correct application of substantive law. It may only be assessed court orders and payment orders, the opposing party must have been whether they comply with the requirements stipulated in Art. 1 and summoned in accordance with the law. 5 of the Treaty.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 129 GASSER PARTNER Attorneys at Law Liechtenstein
Recognition and enforcement of foreign arbitral awards under the corresponding costs from the debtor by way of attachment and New York Convention can be challenged on the grounds stipulated transfer. If the act cannot be performed by a third party, the debtor in Art. V. These include: may be compelled to perform it by way of coercive detention or ■ lack of a valid arbitration agreement; fines. The same applies to omissions or permission of an act. ■ violations of the right to be heard; ■ excess of the scope of the arbitration agreement; 5 Other Matters ■ irregularities in the constitution of the arbitral tribunal or the proceedings; ■ lack of a final and binding award; 5.1 Have there been any noteworthy recent (in the last 12 months) legal developments in your jurisdiction ■ lack of objective arbitrability; and relevant to the recognition and enforcement of foreign
Liechtenstein ■ violation of public policy. judgments? Please provide a brief description.
As Liechtenstein has a quite restrictive approach regarding the 4 Enforcement recognition and enforcement of foreign judgments; there are not many noteworthy recent legal developments in this regard. However, the 4.1 Once a foreign judgment is recognised and enforced, New York Convention on the Recognition and Enforcement of Foreign what are the general methods of enforcement Arbitral Awards was joined by Liechtenstein quite recently. It has been available to a judgment creditor? applicable in Liechtenstein since 5 October 2011. Now parties may solve their civil disputes quickly, discreetly and considerably more Liechtenstein enforcement law provides for various methods of cheaply before a “private” ad hoc arbitral panel which they can appoint enforcement. On the one hand, a distinction is made as to whether free of many structural formalities. And, most importantly, the award the judgment to be enforced is based on a monetary claim or on a may be enforced both in Liechtenstein and abroad. Liechtenstein claim for specific performance and, on the other hand, against what follows the recent dynamic international trend of solving important kind of assets enforcement is sought. financial disputes not before courts of law, but via arbitration. If the judgment is based on a monetary claim, the creditor is provided with the following enforcement measures: with regard to 5.2 Are there any particular tips you would give, or immovable property, the debtor may demand forced creation of a critical issues that you would flag, to clients seeking mortgage, forced administration or compulsory auction. As regards to recognise and enforce a foreign judgment in your movable property, enforcement is made by way of seizure, valuation jurisdiction? and compulsory sale. Lastly, attachment and transfer of receivables is possible. Foreign judgments are principally not enforceable in Liechtenstein. Though Liechtenstein law offers a few routes to finally obtain what If the judgment is based on a claim for specific performance, the a Liechtenstein debtor owes, the effort to enforce a foreign judgment creditor has the following options: with regard to the surrender of in Liechtenstein often leads to an entirely new judging of the merits movable property, the creditor may order the bailiff to seize the of the case in Liechtenstein. specified property and deliver it against acknowledgment; as regards the transfer of immovable property, the creditor may order the bailiff Thus, instead of initiating legal proceedings against a Liechtenstein to evict the property and confer possession upon the creditor; or debtor outside Liechtenstein, even if that is done through a finally, the performance or permission of an act or omission by contractual jurisdiction clause, the substantial difficulties, additional the debtor may be achieved by different means: the creditor may costs and efforts required for the enforcement of a foreign judgment have a third party perform the act in question and demand the in Liechtenstein may overall make it easier, more efficient and cheaper to sue a Liechtenstein debtor at the outset in Liechtenstein.
130 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 GASSER PARTNER Attorneys at Law Liechtenstein
Thomas Nigg Domenik Vogt GASSER PARTNER Attorneys at Law GASSER PARTNER Attorneys at Law Wuhrstrasse 6 Wuhrstrasse 6 9490 Vaduz 9490 Vaduz Liechtenstein Liechtenstein
Tel: +423 236 30 80 Tel: +423 236 30 80 Email: [email protected] Email: [email protected] URL: www.gasserpartner.com/en URL: www.gasserpartner.com/en
Thomas Nigg is a Liechtenstein lawyer and citizen, currently Domenik Vogt is a senior associate at GASSER PARTNER Attorneys
practising in Vaduz. He studied law at the University of St. Gallen at Law, currently practising in Vaduz. Before joining GASSER Liechtenstein (Switzerland), where he obtained his Master of Arts in Legal Studies PARTNER in 2015, he studied business law at the Vienna University HSG (M.A. HSG) in 2008. In 2007 he began practising as a lawyer of Economics and Business, where he earned his Bachelor’s degree in Liechtenstein and was admitted to the Liechtenstein Bar in 2010. in law (LL.B.) in 2012 and his Master’s degree (LL.M.) in 2014. During In 2014 he was appointed partner of Batliner Gasser Attorneys at his Master’s degree, he spent a semester abroad at the University Law (now: GASSER PARTNER Attorneys at Law). In 2016 he was of Chicago in 2013. After graduating from the Vienna University of appointed senior partner of GASSER PARTNER Attorneys at Law. Economics and Business, he studied at the University of Cambridge His main areas are representing clients, mostly corporations or high- (Christ’s College), where he obtained his second Master’s degree net-worth individuals, before courts in civil, criminal and administrative (LL.M.) in 2015. In 2015, he began practising in Liechtenstein and matters and assisting clients in commercial, corporate and criminal law passed the Bar exam in 2017. His main areas of practice include as well as concerning banking and regulatory issues in both national civil law and law of succession, corporate and foundation law, M&A, and international affairs. In addition, he is a co-author of “Litigation litigation and arbitration, administrative and tax law. and Arbitration in Liechtenstein”, the Liechtenstein chapter in “The Asset Tracing and Recovery Review” and has authored articles on various legal topics.
As an international independent law firm, GASSER PARTNER exclusively focuses on “classic” attorney-at-law activities. This primarily comprises the legal representation of clients before courts and public authorities, as well as providing advice in all areas of the law. As one of the leading law firms in Liechtenstein, we have built up and steadily extended our knowledge and experience, particularly in the area of business law, over decades. We advise and represent private clients (especially HNWIs) as well as companies from Liechtenstein and abroad. Our institutional clients include, inter alia, banks, asset managers, fiduciary service providers, insurance companies, fund administrators as well as local and foreign authorities. Due to the location of our offices in Vaduz, Zurich and Vienna, and the regular close collaboration with foreign law firms, we have excellent global links. Owing to our size and expertise, we have specialists in every area of the law. In particular, this enables us to efficiently solve complex, international cases.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 131 Chapter 24
Luxembourg Fabio Trevisan
Bonn Steichen & Partners Laure-Hélène Gaicio-Fievez
matters. The NCPC provides for a regime of recognition and 1 Country Finder enforceability by default, subject to the application of international treaties, European legislation and more specific rules of Luxembourgish 1.1 Please set out the various regimes applicable law. to recognising and enforcing judgments in your Subject to the special regimes set out by EU regulations and bilateral jurisdiction and the names of the countries to which or multilateral conventions, the NCPC is applicable to all foreign such special regimes apply. judgments pertaining to civil and commercial matters, regardless of their country of origin. Applicable Law/ Corresponding Relevant Jurisdiction(s) Statutory Regime Section Below 2.2 What constitutes a ‘judgment’ capable of recognition Luxembourg Civil All jurisdictions for and enforcement in your jurisdiction? Code of civil which no EU or bilateral Section 2. procedure. conventions apply. State parties to For the purpose of enforcement proceedings in Luxembourg, multilateral conventions “judgment” refers to a decision taken by a court of law or arbitration including Brussels panel resolving a dispute at least partially. It can include orders, Treaty between Belgium, default judgments, injunctions, and interim measures. the Netherlands and Luxembourg on the Jurisdiction, Bankruptcy, 2.3 What requirements (in form and substance) must a Validity and Enforcement foreign judgment satisfy in order to be recognised of Judgments, Arbitration and enforceable in your jurisdiction? Awards and Authentic Instruments (24 Multilateral November 1961), the Section 2. conventions. In accordance with Article 678 of the NCPC and Articles 2123 and New York Convention 2128 of the Luxembourg Civil Code, a judgment is to be understood on the Recognition and as a decision stemming from a state authority exercising judicial Enforcement of Foreign Arbitral Awards 1958 power, i.e., having the competence to decide over a dispute in (New York Convention) a binding manner. Any such decision is apt to be recognised or and the Hague Convention declared enforceable, whatever the name of the decision and on Recognition and whatever the nature of the authority that has rendered it, be it a body Enforcement of Decisions Relating to Maintenance belonging to the judiciary, administration or other state division. Obligations (2 October A judgment given in another state must be enforceable in its state of 1973). origin in order to be enforced in Luxembourg, regardless of whether the Bilateral conventions State parties to bilateral foreign decision is final or provisional (Tribunal d’arrondissement de on mutual judicial Section 3. conventions. Luxembourg 21 July 1934, Pas.13, p. 561; Tribunal d’arrondissement assistance. de Luxembourg 6 July 1955, Pas.16, p. 415; Tribunal d’arrondissement de Luxembourg 19 October 1955, Pas.16, p. 419; Tribunal d’arrondissement de Luxembourg 5 February 1964, Pas.19, p. 285). 2 General Regime Additional requirements such as compliance with due process, proper appearance in court, etc. are treated as forming part of the 2.1 Absent any applicable special regime, what is the legal Luxembourg public policy. If the foreign judgment is not subject framework under which a foreign judgment would be to a convention or to a European act, enforcement is governed by recognised and enforced in your jurisdiction? the general rules of Luxembourg law. The Luxembourg judge will verify whether the foreign judgment fulfils the following conditions: The general regime of recognition and enforceability of foreign ■ The foreign judgment is not contrary to Luxembourg public judgments is laid down in the Luxembourg Code of civil procedure order. A Luxembourg judgment has decided that this is only (“NCPC”) and pertains to the entire field of civil and commercial taken into account where application of the foreign law would be an offence sufficiently serious to an interest considered
132 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Bonn Steichen & Partners Luxembourg
by Luxembourg law as one that must be protected (Tribunal Enforcement carries greater effect in that it allows a party to take d’arrondissement de Luxembourg 26 November 2008, No. coercive steps against the debtor on Luxembourg territory. The 260/2008). foreign judgment acquires the same legal force and effect as ■ The foreign judgment is enforceable in the country where it Luxembourgish judgments, providing full access to the available has been rendered. enforcement measures under local law. ■ The foreign judgment has been given by a jurisdiction It seems that when it comes to a recognition and an enforcement of recognised by Luxembourg conflict of law rules. foreign judgments solely based on Article 678 of the NCPC, this ■ The foreign judgment accords with the laws of the country of distinction is not as clear, as this Article only refers to enforcements. origin. Finally, in case of a foreign judgment subject to a treaty, the foreign ■ The defendant had proper notice of the proceedings. The judgment will be enforceable once the time-period to challenge the Luxembourg enforcement judge must check that the recognition order will have expired. procedural rules in the jurisdiction of origin have been Luxembourg respected, to detect possible fraud (for example, respect for the rights of the defendant, Tribunal d’arrondissement de 2.6 Briefly explain the procedure for recognising and Luxembourg 18 June 1986, No. 34622). enforcing a foreign judgment in your jurisdiction. ■ No conflicting domestic or foreign judgment exists. The Luxembourg judge will check that there is no fraud with European Judgments. Foreign judgments that are subject to a regard to Luxembourg law. The foreign judgment will treaty or EU law fall under Articles 679–685 of the NCPC, which only be declared enforceable in Luxembourg if it has been refers to the simplified procedure of enforcement that applies, as rendered without fraud to Luxembourg law. provided by the Council Regulation (EU) No. 1215/2012 of the ■ The foreign judgment must contain an order that can be European Parliament and the Council of 12 December 2012 on the executed (Cour d’Appel Luxembourg 14 May 1975, Pas.23, Jurisdiction, Recognition and Enforcement of Judgments in Civil p. 138). and Commercial Matters, which came into force on 10 January 2015 In relation to the application of the law determined by Luxembourg and replaces Regulation No. 44/2001. conflicts of law rules, since a French decision (French Cour These judgments are recognised and immediately enforceable in the de cassation 20 February 2007, 05-14.082, Cornelissen) and a way provided for by the Regulation. decision of the ECHR (ECHR 28 June 2007, W v Luxembourg), the enforcement judge is not obliged to check that the law applied by Foreign Judgments subject to a Treaty. Under Article 680 and the foreign judge is the law designated by the Luxembourg conflicts subsequent of the NCPC, such foreign judgments must be submitted to of law rules (Tribunal d’arrondissement de Luxembourg 10 January simplified exequatur formalities to have legal effects in Luxembourg, 2008, No.111736; Tribunal d’arrondissement de Luxembourg 17 which consists in filing an ex parte petition with the President of the April 2008, No.116/2008). District Court who will grant an order if all the criteria are met. Foreign Judgments not subject to a Treaty or EU law. Under Article 678 of the NCPC, foreign judgments not subject to a treaty or 2.4 What (if any) connection to the jurisdiction is required EU law must be submitted to the exequatur formalities to have legal for your courts to accept jurisdiction for recognition and enforcement of a foreign judgment? effect in Luxembourg (Tribunal d’arrondissement de Luxembourg , 22 October 1913, Pas. 10, p. 219). The decision will be submitted to the court to obtain an exequatur, in the presence of the prosecutor, who There are no legal requirements as to the required connection to will make sure the public’s interests are preserved. Such proceedings Luxembourg courts to accept jurisdiction for recognition and will request the filing of briefs and usually take several months. enforcement of a foreign judgment. However, a connection should exist such as the applicant’s intent to enforce the decision on assets held in Luxembourg, as it would contribute to any interest in starting 2.7 On what grounds can recognition/enforcement of a a legal action. judgment be challenged? When can such a challenge be made?
2.5 Is there a difference between recognition and European Judgments. Council Regulation (EU) No. 1215/2012 enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? of the European Parliament and the Council of 12 December 2012 on the Jurisdiction, Recognition and Enforcement of Judgments in Civil and Commercial Matters provides for specific grounds and Luxembourg, on the basis of treaties such as the Council Regulation specific proceedings, which apply in all European countries. (EU) No. 1215/2012 of the European Parliament and the Council of 12 December 2012 on the Jurisdiction, Recognition and Enforcement Foreign Judgments subject to a Treaty. Once the order granted of Judgments in Civil and Commercial Matters, which came into force by the President of the District Court is served by a Bailiff on the on 10 January 2015 and replaces Regulation No. 44/2001, distinguishes defendant, the latter has one month if he resides in Luxembourg and between recognition and enforcement of judgments. two months if he resides abroad to challenge this recognition order. Recognition is intended to introduce into the Luxembourgish legal There are no specific grounds provided by the NCPC in this situation order the situation established by a foreign judgment. Most foreign governed by the specific treaty. However, if the requirements provided judgments are recognised in Luxembourg without the need for by the applicable treaty to recognise and enforce the decision are not a court to issue a judgment. However, a party may wish to seek met or if the foreign judgment is contrary to Luxembourg’s public recognition to secure a formal acknowledgment of its rights. For policy, these should be considered as solid grounds on which the instance, a party can request recognition to prevent a claim already recognition/enforcement of a judgment can be challenged. judged in a foreign court from being made in Luxembourg; or, to the Foreign Judgments not subject to a Treaty or EU law. A foreign contrary, to support a new claim made in Luxembourg on the basis judgment will be challenged by the opposing party or the prosecutor of the legal situation created by a foreign judgment. (“ministère public”) during the proceedings initiated by the applicant
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 133 Bonn Steichen & Partners Luxembourg
to have the judgment declared enforceable in Luxembourg. These is therefore no particular approach to the recognition and enforcement arguments will be raised in the exchange of briefs. of a foreign judgment that purports to apply Luxembourg law except A foreign judgment may only be challenged on the grounds that: for public policy. ■ the foreign judgment does not meet the conditions set out in question 2.2 above; 2.12 Are there any differences in the rules and procedure ■ the foreign judgment is incompatible with the Luxembourg of recognition and enforcement between the various international public policy regime. Under international states/regions/provinces in your country? Please public policy, Luxembourg courts will exercise more restraint explain. and will show greater deference to the foreign court than under domestic public policy. International public policy Luxembourg does not have various states/regions/provinces having rules require: proper service to the defendant; reasonable different laws in regards to the recognition and enforcement of Luxembourg time afforded to the parties during the foreign proceedings; foreign judgments. equality of arms in the course of the proceedings; and independence and impartiality of the foreign court; ■ the foreign judgment was procured by fraud; or 2.13 What is the relevant limitation period to recognise and enforce a foreign judgment? ■ the foreign judgment conflicts with another national judgment. There is no specific provision regarding the limitation period to 2.8 What, if any, is the relevant legal framework applicable enforce a foreign judgment. Since Luxembourg courts can only to recognising and enforcing foreign judgments enforce foreign judgments that are enforceable in their country relating to specific subject matters? of origin; the limitation period to recognise or enforce a foreign judgment could depend on the law applicable to the foreign If the judgment does not fall under the scope of Council Regulation judgment in its country of origin. (EU) No. 1215/2012 of the European Parliament and the Council of 12 December 2012 on the Jurisdiction, Recognition and Enforcement of Judgments in Civil and Commercial Matters, the NCPC will apply. 3 Special Enforcement Regimes Applicable It should be noted, however, that specific instruments apply, for to Judgments from Certain Countries example, in regards to the child custody and visitation rights.
3.1 With reference to each of the specific regimes set 2.9 What is your court’s approach to recognition and out in question 1.1, what requirements (in form and enforcement of a foreign judgment when there is: (a) a substance) must the judgment satisfy in order to be conflicting local judgment between the parties relating recognised and enforceable under the respective to the same issue; or (b) local proceedings pending regime? between the parties? European Judgments are recognised upon production of a copy Recognition/enforcement may be denied in case of incompatibility of the decision, of a certificate and possibly of a translation as per with a prior conflicting judgment. Two judgments are deemed provided by Council Regulation (EU) No. 1215/2012 of the European incompatible when their legal consequences exclude each other. Parliament and the Council of 12 December 2012 on the Jurisdiction, Therefore, if a recognition and enforcement is sought in Luxembourg Recognition and Enforcement of Judgments in Civil and Commercial and a conflicting local judgment pre-exists, the recognition and Matters. These judgments are immediately enforceable. enforcement would be refused. Foreign Judgments subject to a Treaty can be recognised if the If local proceedings have already been initiated, and subsequently requirements provided by the Treaty at stake are fulfilled. a recognition and enforcement of a foreign judgment is initiated, Foreign Judgments not subject to a Treaty or EU law are subject the second judge to be called should stay the proceedings until a to the requirements provided for in question 2.3 here above. decision in the first proceedings is handed down.
3.2 With reference to each of the specific regimes set out 2.10 What is your court’s approach to recognition and in question 1.1, does the regime specify a difference enforcement of a foreign judgment when there is a between recognition and enforcement? If so, what is conflicting local law or prior judgment on the same or the difference between the legal effect of recognition a similar issue, but between different parties? and enforcement?
The existence of a conflicting local law or prior judgment We refer to our answer to question 2.5 above. between different parties is irrelevant, unless it would result to an incompatibility with Luxembourg public policy rules. The Court would have to determine if public policy is violated on a case-by-case 3.3 With reference to each of the specific regimes set out in question 1.1, briefly explain the procedure for approach. recognising and enforcing a foreign judgment.
2.11 What is your court’s approach to recognition and We refer to our answer to question 2.6 above. enforcement of a foreign judgment that purports to apply the law of your country?
Luxembourg courts cannot review the merits of a foreign judgment, even if the foreign court incorrectly applied Luxembourg law. There
134 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Bonn Steichen & Partners Luxembourg
The Regulation further sets forth an interesting procedure allowing 3.4 With reference to each of the specific regimes set out a creditor to request that the information necessary to identify the in question 1.1, on what grounds can recognition/ debtor’s bank(s) and account(s) be obtained by the court from a enforcement of a judgment be challenged under the designated information authority of the Member State in which the special regime? When can such a challenge be made? creditor believes the debtor has an account.
We refer to our answer to question 2.7 above. Garnishees/third-party debtors are compelled to disclose, upon service of an attachment order, all their financial commitments to the debtor and to provide the supporting documentation. 4 Enforcement In any case, a judgment creditor may proceed with the final attachment at the debtor’s promises or in the hands of a garnishee.
4.1 Once a foreign judgment is recognised and enforced, Attachments carried out in Luxembourg are deemed to include all Luxembourg what are the general methods of enforcement assets located in Luxembourg – which include, in some circumstances, available to a judgment creditor? receivables against foreign branches of Luxembourg entities. A debtor may challenge enforcement measures with one month of In Luxembourg, a judgment creditor may proceed with interim service (or three months if the debtor is domiciled abroad). The enforcement measures on the basis of a foreign judgment even case must be filed before an enforcement judge who generally rules before starting recognition/enforcement court proceedings in within three to six months, during which the parties file briefs and Luxembourg, provided that it can rely on the existence of a “threat to appear in court. The judgment confirming or lifting the attachment the recovery of its claim”. In practice, such a threat will result from may be appealed. evidence that the debtor is likely to disappear or become insolvent: Finally, a forced execution of the recognised foreign judgment may The interim attachment will be performed by a bailiff without prior be undertaken according to the NCPC, for example, through an notice to the debtor, and without the need for a court order. The auction sale of assets belonging to the debtor. targeted asset will automatically be frozen upon service to the asset holder, be it the debtor itself or a third party. The attachment must then be notified to the debtor within eight (8) days and is subject to 5 Other Matters judicial review and validation. Unless a court orders the lifting of the attachment, the assets will remain frozen for the duration of the enforcement procedure. If 5.1 Have there been any noteworthy recent (in the last 12 months) legal developments in your jurisdiction the court orders validation of the provisional arrest based upon relevant to the recognition and enforcement of foreign the enforcement of the foreign judgment, the frozen assets will be judgments? Please provide a brief description. transferred to the creditor. Attachments may be executed on movable or immovable assets, There has been no recent development relating to the sole recognition whether tangible or intangible, including the following specific and enforcement of foreign judgments. It is, however, worth noting categories: real estate; bank accounts; claims; dividends; royalties, etc. that in regards to the EAPO, Luxembourg has recently clarified Interestingly, Regulation of the European Parliament and of the how to converse the EAPO into a national enforcement measure, Council No. 655/2014 of 15 May 2014 establishing a European which is particularly interesting in the context of the recognition and Account Preservation Order (the “EAPO”) procedure to facilitate enforcement of foreign judgments. cross-border debt recovery in civil and commercial matters (the “Regulation”) became fully applicable on 18 January 2017 in 5.2 Are there any particular tips you would give, or the Member States of the European Union, with the exception critical issues that you would flag, to clients seeking of the United Kingdom and Denmark. It is now possible to file to recognise and enforce a foreign judgment in your a single application in standard form with the competent court of jurisdiction? a participating Member State, at any stage of the proceedings, to freeze the debtor’s bank accounts in another participating Member As provided above, the applicant may proceed with an attachment State without further freezing order(s) or without being granted of the debtor’s assets even prior to initiating recognition and authorisation from the courts of the executing State. enforcement proceedings. We therefore recommend, as a first step, In order to allow a creditor to obtain payment on the Preserved to attach the debtor’s assets before commencing any proceeding in Bank Account, the Luxembourg Ministry of Justice submitted on 6 order to surprise the counterparty and maximise chances of recovery. November 2017 to the Luxembourg Parliament draft law no. 7203 Also, it is to be noted that such proceedings in Luxembourg are not (the “Draft Law”), relating to the conversion of the EAPO into a subject to initial court fees. The only fees incurred by the applicant national enforcement measure by means of a new provision, Article are lawyers’ fees as well as the bailiff’s fees (which might include 791–1 of the NCPC. translation costs, but are not significant and unrelated to the amounts The Draft Law entitles the creditor, once in possession of an at stake). enforceable title, to receive payment up to the value of his claim from Luxembourg is therefore an interesting jurisdiction for the the attached third party by means of a simple act of conversion (“acte recognition and enforcement of foreign judgments and courts are de conversion”) served on both the attached third party and the debtor. frequently solicited to that effect.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 135 Bonn Steichen & Partners Luxembourg
Fabio Trevisan Laure-Hélène Gaicio-Fievez Bonn Steichen & Partners Bonn Steichen & Partners 2, rue Peternelchen 2, rue Peternelchen Immeuble C2, L-2370 Howald Immeuble C2, L-2370 Howald Luxembourg Luxembourg
Tel: +352 26 025 322 Tel: +352 26 025 1 Email: [email protected] Email: [email protected] URL: www.bsp.lu URL: www.bsp.lu
Fabio Trevisan is Partner and Head of BSP’S Dispute Resolution Laure-Hélène Gaicio-Fievez holds a Master’s 2 in Law and Business Luxembourg practice. His practice focuses on a wide spectrum of complex Taxation from the University of Aix-en-Provence, France. After an commercial, corporate and financial litigation. Fabio also has experience as in-house counsel for a small business in France, she extensive experience in applications for enforcing and obtaining joined the firm in 2010 where she has been promoted as a counsel. freezing injunctions, in international commercial and state arbitration Laure-Hélène focuses on arbitration, general commercial law and enforcements, including ICSID awards, and more generally in the litigation. She advises on a wide range of domestic and international recovery of assets. He has played a role in a number of high-profile arbitration proceedings and she has already published various articles cases, with over 25 years of experience in managing and conducting mostly in that field. litigation for his clients in almost all sectors.
Bonn Steichen & Partners is an independent and truly full-service law firm based in Luxembourg. As leaders in each of the areas in which we practice, our lawyers can assist in all aspects of Luxembourg business law. Our crucial ability to adapt to new laws and regulations enables us to provide our clients a timely and integrated legal assistance, vital to the success of most transactions. With a partner-led service as a hallmark, our attorneys have developed specific expertise in banking & finance, capital markets, corporate, dispute resolution, labour law, investment funds, real estate and tax.
136 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Chapter 25
Macedonia Tatjana Popovski Buloski
Polenak Law Firm Aleksandar Dimic
foreign court decision or a certified copy of the same, along with a 1 Country Finder verified translation in the Macedonian language, and a confirmation issued from the competent foreign court or other body that such 1.1 Please set out the various regimes applicable foreign decision is final. to recognising and enforcing judgments in your If the request for recognition of the foreign court decision refers to jurisdiction and the names of the countries to which its enforcement as well, the applicant party should also submit a such special regimes apply. confirmation issued under the law of the foreign country that such decision is enforceable. Applicable Law/ Relevant Corresponding Statutory Regime Jurisdiction(s) Section Below 2.3 What requirements (in form and substance) must a The Law on foreign judgment satisfy in order to be recognised International Private All countries. Section 2. Law. and enforceable in your jurisdiction? The Law on All countries. Section 2. Enforcement. Foreign court judgments will be recognised by Macedonian courts if The Law on the following conditions are met: International Trade 1) the party has provided the original or duly verified copy of Arbitration of All countries. Section 2. the award to be provided; the Republic of 2) the award is confirmed as final by the relevant authority; Macedonia. New York 3) the judgment is confirmed as enforceable by the relevant Convention on the authority; All signatory Recognition and countries of the New Section 2. 4) there was no violation of due process in the foreign procedure Enforcement of York Convention. against the opposing party; Foreign Arbitral Awards of 1958. 5) there is no exclusive jurisdiction of a Macedonian court for the subject of the dispute; 6) there is no agreement between the parties that a Macedonian court be competent for solving the dispute; 2 General Regime 7) there is no res judicata in the substantive case; and 8) the judgment is not contrary to Macedonian public order. 2.1 Absent any applicable special regime, what is the legal In addition, to obtain the recognition and enforcement of a framework under which a foreign judgment would be foreign arbitral judgment, the party applying for recognition and recognised and enforced in your jurisdiction? enforcement shall, at the time of the application, supply: a) The duly authenticated original award or a duly certified copy Recognition of a foreign judgment in the Republic of Macedonia is thereof. regulated by the Law on International Private Law, and enforcement b) The original arbitrage agreement or a duly certified copy of judgments, including a foreign judgment recognised by a thereof. Macedonian court, is regulated by the Law on Enforcement. If the said award or agreement is not made in an official language of In accordance with the Law on International Trade Arbitration of the the country in which the award is relied upon, the party applying for Republic of Macedonia, the recognition of foreign arbitral awards recognition and enforcement of the arbitral judgment shall produce is performed in accordance with the New York Convention on the a translation of these documents into such language. The translation Recognition and Enforcement of Foreign Arbitral Awards of 1958. shall be certified by an official or sworn translator or by a diplomatic or consular agent. 2.2 What constitutes a ‘judgment’ capable of recognition and enforcement in your jurisdiction?
The party that submits to the court a request for recognition of a foreign court decision should provide the original copy of the
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 137 Polenak Law Firm Macedonia
a) the parties to the arbitrage agreement under the law applicable 2.4 What (if any) connection to the jurisdiction is required to them, are under some incapacity, or the said agreement is for your courts to accept jurisdiction for recognition not valid under the law to which the parties have subjected it and enforcement of a foreign judgment? or, failing any indication thereof, under the law of the country where the judgment was made; Please see items 5, 6, 7 and 8 under the answer to question 2.3 above. b) the party against whom the judgment is invoked was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings, or was otherwise unable to 2.5 Is there a difference between recognition and present his case; enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? c) the judgment deals with a difference not contemplated by or not falling within the terms of the submission to arbitration,
Macedonia or it contains decisions on matters beyond the scope of the There is a difference between recognition and enforcement of a submission to arbitration, provided that, if the decisions on judgment under Macedonian law. matters submitted to arbitration can be separated from those By way of recognition of a foreign judgment, the foreign judgment not so submitted, that part of the award which contains shall be considered as a judgment reached by Macedonian courts decisions on matters submitted to arbitration may be and it shall have legal effect in Macedonia as well. recognised and enforced; By way of enforcement of the foreign judgment recognised by the d) the composition of the arbitral authority or the arbitral Macedonian courts, the creditor collects its claim against the debtor procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with as determined by the judgment. the law of the country where the arbitration took place; or The same refers to the recognition of both foreign court judgments e) the judgment has not yet become binding on the parties, or and foreign arbitral judgments. has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. 2.6 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. Recognition and enforcement of an arbitral award may also be refused if the competent authority in the country where recognition The procedure for recognition is as follows: and enforcement is sought finds that: 1) a proposal for recognition and determination of enforceability a) the subject matter of the difference is not capable of settlement of the foreign judgment is to be filed with the competent by arbitration under the law of that country; or Macedonian court (on the basis of residence of the opposing b) the recognition or enforcement of the award would be party) against the opposing party; contrary to the public order of that country. 2) the court will examine ex officio whether the above conditions for recognition have been met and may schedule a hearing; 2.8 What, if any, is the relevant legal framework applicable 3) if the above conditions for recognition have been met, to recognising and enforcing foreign judgments the court will make a decision on the recognition and relating to specific subject matters? determination of enforceability of the foreign judgment; 4) the court will send the decision to the opposing party; Macedonian law does not provide a specific regime for enforcing 5) the opposing party has the right to file an opposition against foreign judgments relating to specific subject matters. the decision within 15 calendar days from the day of receipt of the decision; 2.9 What is your court’s approach to recognition and 6) a council of three judges will decide upon the opposition of enforcement of a foreign judgment when there is: (a) a the opposing party. If the court finds that the decision on the conflicting local judgment between the parties relating opposition depends on certain disputable facts, the court will to the same issue; or (b) local proceedings pending decide upon a hearing; between the parties? 7) the court will make a decision on the opposition; and 8) any unsatisfied party has the right to file an appeal within If Macedonian courts have reached a final judgment on the same eight calendar days to the appellate court. matter as the matter decided with the foreign judgment, it will be considered that such matter is res judicata and the foreign judgment 2.7 On what grounds can recognition/enforcement of a cannot be recognised in Macedonia. judgment be challenged? When can such a challenge However, the local proceedings between the parties for the same be made? matter shall not prevent the foreign judgment from being recognised in Macedonia, unless Macedonian law does not regulate the The recognition of a foreign judgment can be challenged in case of a exclusive competence of the Macedonian courts for such a matter. lack of any of the conditions that must exist for a foreign judgment to be recognised in Macedonia, as explained above under question 2.3. 2.10 What is your court’s approach to recognition and The debtor may challenge the recognition by way of objection enforcement of a foreign judgment when there is a against the decision for recognition of a foreign judgment reached conflicting local law or prior judgment on the same or by the first instance court and by way of appeal against the decision a similar issue, but between different parties? reached by the council of three judges within the first instance court. Furthermore, recognition and enforcement of the foreign arbitral A foreign judgment that conflicts with the imperative provisions judgment may be refused, at the request of the party against whom of the Macedonian law may not be recognised by the Macedonian it is invoked, only if that party furnishes to the competent authority courts. In such case, it may be considered that the recognition of where the recognition and enforcement is sought, proof that: such foreign judgment is contrary to the Macedonian public order, which is a legal obstacle for recognition of the foreign judgment.
138 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Polenak Law Firm Macedonia
The existence of a prior judgment on the same or a similar issue, but between different parties, is not formally regulated as an obstacle 3.3 With reference to each of the specific regimes set for recognition of a foreign judgment. However, it cannot be out in question 1.1, briefly explain the procedure for recognising and enforcing a foreign judgment. excluded that a foreign judgment that is contrary to a prior judgment on the same or a similar issue, but between different parties, may be considered as contrary to the Macedonian public order, which Please see the answer to question 2.6 above. prevents recognition of a foreign judgment in Macedonia. 3.4 With reference to each of the specific regimes set out in question 1.1, on what grounds can recognition/ 2.11 What is your court’s approach to recognition and enforcement of a judgment be challenged under the enforcement of a foreign judgment that purports to special regime? When can such a challenge be made?
apply the law of your country? Macedonia
Please see the answer to question 2.6 above. No additional conditions are required for the recognition and enforcement of a foreign judgment that purports to apply the law of our country except for the conditions mentioned in question 4 Enforcement 2.3 above. Thus, the court will determine if the conditions for recognition of a judgment mentioned in question 2.3 above are met, including if the recognition of the judgment is contrary to 4.1 Once a foreign judgment is recognised and enforced, Macedonian public order. what are the general methods of enforcement available to a judgment creditor?
2.12 Are there any differences in the rules and procedure Once a foreign judgment or arbitral award is recognised, the of recognition and enforcement between the various creditor may initiate an enforcement procedure against the debtor states/regions/provinces in your country? Please explain. for collection of the claim determined with the judgment. The enforcement procedure is regulated by the Law on Enforcement. There are no differences in the rules and procedure of recognition The enforcement will be performed through the competent and enforcement of a foreign judgment among various regions in enforcement agents and the subject of enforcement may be the Macedonia. debtor’s assets (funds on bank accounts, movables, immovables, shares, etc.) as well as the debtor’s claims towards third parties. 2.13 What is the relevant limitation period to recognise and In case of bankruptcy of the debtor, the provisions of the Law on enforce a foreign judgment? Enforcement would not apply, and enforcement of the judgment shall be performed on the basis of the Law on Bankruptcy. Macedonian laws do not regulate the limitation period to recognise and enforce a foreign judgment. 5 Other Matters However, according to the Macedonian Law on Obligations, the limitation period for the enforcement of claims that are determined with a final judgment is 10 years. Therefore, if the foreign final 5.1 Have there been any noteworthy recent (in the last judgment has become final and enforceable and has been recognised 12 months) legal developments in your jurisdiction by Macedonian courts more than 10 years prior to initiation of the relevant to the recognition and enforcement of foreign procedure for enforcement, then, at the objection of the defendant judgments? Please provide a brief description. party, it would be considered time-barred. There have not been any changes to the applicable laws relating to recognising and enforcing judgments in Macedonia in the last 12 3 Special Enforcement Regimes Applicable months. to Judgments from Certain Countries 5.2 Are there any particular tips you would give, or critical issues that you would flag, to clients seeking 3.1 With reference to each of the specific regimes set to recognise and enforce a foreign judgment in your out in question 1.1, what requirements (in form and jurisdiction? substance) must the judgment satisfy in order to be recognised and enforceable under the respective regime? There are no particular issues that need to be flagged.
Please see the answer to question 2.3 above.
3.2 With reference to each of the specific regimes set out in question 1.1, does the regime specify a difference between recognition and enforcement? If so, what is the difference between the legal effect of recognition and enforcement?
Please see the answer to question 2.5 above.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 139 Polenak Law Firm Macedonia
Tatjana Popovski Buloski Aleksandar Dimic Polenak Law Firm Polenak Law Firm Str. Orce Nikolov 98 Str. Orce Nikolov 98 Skopje Skopje Republic of Macedonia Republic of Macedonia
Tel: +389 2 3114 737 Tel: +389 2 3114 737 Email: [email protected] Email: [email protected] URL: www.polenak.com URL: www.polenak.com
Macedonia Ms. Tatjana Popovski Buloski is a founding partner at Polenak Law Mr. Aleksandar Dimic is a junior partner at Polenak Law Firm. In Firm. Her expertise covers M&A, project finance, antitrust and 2005, he spent part of his training with the Assembly of the Republic competition law, corporate law, litigation and arbitration, securities, of Macedonia, Inquiry Committee for Protection of Human Rights and energy, telecommunications, concessions and PPP, and employment. Freedoms. Since the end of 2005, he has been working for Polenak She has participated in many projects including major privatisations in Law Firm. He has been a junior partner since 2013. Aleksandar the country, equity investments, project finance and major competition represents Polenak Law Firm’s clients in several litigation procedures proceedings. Tatjana is the author of several publications, amongst related to commercial and civil law. He is also part of the firm’s team which are: Cartel Regulations 2017 and 2016, Getting the Deal in many projects that are related to mergers and acquisitions, where Through published by Law Business Research Ltd.; The Merger he covers work related to civil and commercial law, litigation and Control Review, seventh edition, 2016, Chapter for Macedonia, ownership of assets. published by Law Business Research Ltd.; The Merger Control Review, fifth edition, 2015, Chapter for Macedonia, published by Law Business Research Ltd.; co-author for Dispute Resolution – Chapter for Macedonia, 2012, 2013 and 2014 for Getting the Deal Through published by Law Business Research Ltd.; author for Business Law, number 29, 2013: What problems occur in practice in application of the Law on Civil Procedure published by Association of Business Lawyers Skopje; author of the Chapter for Macedonia in Anti-Bribery Risk Assessment Book, 2011, published by Verlag C. H. Beck oHG, Germany; author for Cartel Regulation, 2010 for Getting the Deal Through published by Law Business Research Ltd.; author of the Overview of Macedonian Labor Law Issues to The International Practitioner’s Desk Book series of the International Bar Association, 2007; and is a contributor to several arbitration jurisdictional surveys and analyses.
Polenak Law Firm is one of the leading law firms in the Republic of Macedonia. It is a full legal service law firm. The firm’s practice encompasses major mergers and acquisitions involving local and international investors, competition and antitrust matters, legal due diligence reports, numerous commercial, civil and criminal litigations, financial transactions, loans and enforcements, employment issues, preparation and review of contracts, real estate transactions, share transfers and intellectual property.
140 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Chapter 26
Malaysia Jack Yow
Rahmat Lim & Partners Daphne Koo
1 Country Finder 2 General Regime
1.1 Please set out the various regimes applicable 2.1 Absent any applicable special regime, what is the legal to recognising and enforcing judgments in your framework under which a foreign judgment would be jurisdiction and the names of the countries to which recognised and enforced in your jurisdiction? such special regimes apply. The common law generally provides for the recognition and Applicable Law/ Relevant Corresponding enforcement of a foreign judgment via the initiation of a fresh suit Statutory Regime Jurisdiction(s) Section Below in court to enforce such judgment. Foreign monetary judgments United Kingdom, which fall within the ambit of REJA may, however, only be enforced Hong Kong Special via registration under REJA. In practice, registration under REJA Administrative appears to be the most common manner in which foreign monetary Region of the judgments are enforced in Malaysia. People’s Republic of China (“Hong Kong”), Singapore, 2.2 What constitutes a ‘judgment’ capable of recognition New Zealand, Reciprocal Republic of Sri and enforcement in your jurisdiction? Enforcement of Lanka (Ceylon), India Sections 2, 3 and 5. Judgments Act 1958 (excluding State of (“REJA”). A judgment capable of recognition and enforcement in Malaysia has Jammu and Kashmir, been outlined in REJA in its interpretation section as: State of Manipur, Tribal areas of State ■ a judgment or order given or made by a court in any civil of Assam, Scheduled proceedings; or areas of the States ■ a judgment or order given or made by a court in any criminal of Madras and proceedings for the payment of a sum of money in respect of Andhra), and Brunei Darussalam. compensation or damages to an injured party; and Australia, Brunei, ■ except in relation to a country or territory outside the Ceylon, England, Commonwealth, it includes an award in proceedings in an Bailiwick of the arbitration if the award has, pursuant to the law in force in Island of Guernsey, the place where it was made, become enforceable in the same Maintenance Orders Hong Kong, India, manner as a judgment given by a court in that place; and a (Facilities for Island of Jersey, Section 3. judgment given in any court on appeal from a judgment given Enforcement) Act Isle of Man, New in the High Court shall be deemed to be a judgment given in 1949 (“MOFEA”). Zealand, Norfolk the High Court and a judgment capable of recognition and Island, Northern enforcement in Malaysia. Ireland, Pakistan, Singapore, South The judgment must also satisfy the other requirements listed within Africa and Wales. REJA to ensure that the judgment is capable of being recognised Probate and Commonwealth and enforced. Administration Act Section 52. countries. 1959 (“PBA”).
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 141 Rahmat Lim & Partners Malaysia
Insofar as recognition and enforcement of a foreign judgment under 2.3 What requirements (in form and substance) must a REJA are concerned, the procedure is as follows: foreign judgment satisfy in order to be recognised ■ The foreign judgment creditor must lodge an originating and enforceable in your jurisdiction? summons supported by an affidavit. In practice, the initial hearing date is sought on an ex parte basis. The affidavit in The requirements that a foreign judgment must satisfy in order to be support must exhibit a duly verified, certified or authenticated enforceable under REJA are as follows: copy of the foreign judgment. If the judgment is not in a) the judgment must be a monetary judgment; English, a translation certified by a notary public must also be filed. The affidavit must comply with certain formalities b) the judgment must be a judgment of a superior court from a listed under Order 67 rule 3 of the Rules of Court such as: reciprocating country under REJA; and
Malaysia stating the name, trade or business and usual or last known c) the judgment must be final and conclusive. ■ address of the judgment creditor and judgment debtor; and The requirements for an action on a foreign judgment at common law ■ stating of the best of the information or belief of the are similar to those under REJA, with the only substantive difference deponent that the judgment creditor is entitled to enforce being that the judgment need not be a judgment of a superior court the judgment, that the judgment has not been satisfied, from a reciprocating country under REJA. that the judgment does not fall within any of the cases in which the judgment may not be ordered to be registered under REJA, that as at the date of the application the 2.4 What (if any) connection to the jurisdiction is required judgment may be enforced by execution in the country of for your courts to accept jurisdiction for recognition the original court, and that if registered, the registration and enforcement of a foreign judgment? would not be liable to set aside under REJA. ■ On the hearing date, the court will, if the application appears The countries must be a country or territory within the Commonwealth; on its face to comply with REJA, grant leave to register the and which are further expressly specified and listed in the Acts, same. The order for leave must state the period within which respectively. an application may be made to set aside the registration, and For example, PBA states that the “Commonwealth” includes any that execution on the judgment will not be issued until the country which the Yang di-Pertuan Agong may (by notification expiration of that period. Typically, the court will grant a published in the Gazette) direct to be included among the countries to period of between 14 to 21 days for such an application to be which the recognition and enforcement of foreign judgment applies. made. The order for leave to register must be served on the judgment debtor together with a notice of registration. ■ The person serving the notice of registration must endorse 2.5 Is there a difference between recognition and the notice within three days after service, the day and date on enforcement of judgments? If so, what are the legal which the notice was served. effects of recognition and enforcement respectively? ■ If an application to set aside the registration of the judgment is filed by the judgment debtor, the court will fix a hearing Yes, there is. Recognition of a foreign judgment refers to the date for the application. In such instance, execution on the acceptance by the Malaysian courts that such judgment gives rise judgment may not be levied until after such an application to vested rights through a foreign judicial process. The recognition has been finally determined. of a foreign judgment is an essential precursor to the enforcement of such judgment, but does not necessarily mean that such judgment 2.7 On what grounds can recognition/enforcement of a will then be enforced in Malaysia. For example, a foreign judgment judgment be challenged? When can such a challenge may be relied upon as establishing a set of facts for the purpose of be made? Malaysian proceedings, even if enforcement of the judgment is not sought. Enforcement of a foreign judgment on the other hand refers An action on a foreign judgment under common law may be opposed to the process by which the judgment may be executed or enforced in on the following grounds: Malaysia as though it were a Malaysian judgment (for example, by a) that the foreign court had no jurisdiction; attaching the assets of a judgment debtor to satisfy a judgment debt). b) that the judgment was obtained by fraud; c) that enforcement of the judgment would be contrary to public 2.6 Briefly explain the procedure for recognising and policy; or enforcing a foreign judgment in your jurisdiction. d) that the proceedings in which the judgment was obtained were opposed to natural justice. Insofar as the common law enforcement of a non-REJA foreign judgment is concerned, the procedure is as follows: Under REJA on the other hand, the grounds upon which registration of a foreign judgment may be set aside are as follows: ■ An action on the judgment may be commenced by way of a writ action. Once the writ and relevant statement of claim a) the judgment is not a judgment to which Part II of REJA have been served on the defendant and the defendant has applies, or was registered in contravention of REJA; entered an appearance, the plaintiff may file an application b) the judgment is not a judgment of a superior court or a for summary judgment, annexing a certified sealed copy reciprocating country or was registered in contravention of of the foreign judgment. The court may grant summary REJA; judgment if no triable issue is raised by the defendant. c) the court of the country or the original court had no ■ Alternatively, an action on the judgment may be commenced jurisdiction in the circumstances of the case; by way of presentation of an originating summons with d) the judgment debtor, being a defendant in the proceedings in a supporting affidavit, to which is annexed a certified the original court, did not receive notice of such proceedings sealed copy of the foreign judgment. At the hearing of the in sufficient time to enable him to defend the proceedings and originating summons, the court will, if it is satisfied that the did not appear; judgment ought to be recognised and enforced, grant an order e) the judgment was obtained by fraud; in terms of the originating summons.
142 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Rahmat Lim & Partners Malaysia
f) the enforcement of the judgment would be contrary to public judgment. The common law enforcement, or registration under policy; or REJA, of a foreign judgment may only be challenged on the grounds g) the rights under the judgment are not vested in the person by set out in question 2.7 above. whom the application for the registration was made.
2.12 Are there any differences in the rules and procedure 2.8 What, if any, is the relevant legal framework applicable of recognition and enforcement between the various to recognising and enforcing foreign judgments states/regions/provinces in your country? Please relating to specific subject matters? explain.
The following are the relevant legal frameworks applicable to No, the rules and procedures outlined above apply throughout specific subject matters: Malaysia. Malaysia ■ REJA – the registration of final and conclusive monetary judgments made by superior courts of reciprocating countries 2.13 What is the relevant limitation period to recognise and under REJA. enforce a foreign judgment? ■ MOFEA – the registration of orders for maintenance payments in a matrimonial relationship. Insofar as common law enforcement is concerned, the Limitation ■ PBA – the re-sealing of a grant of probate or letter of Act 1953 provides that an action upon any judgment may not be administration issued by a court of a Commonwealth country. brought after the expiration of 12 years from the date on which the judgment became enforceable, and no arrears of interest in respect 2.9 What is your court’s approach to recognition and of any judgment debt may be recovered after the expiration of six enforcement of a foreign judgment when there is: (a) a years from the date on which the interest became due. conflicting local judgment between the parties relating Insofar as REJA is concerned, a judgment creditor may apply to the to the same issue; or (b) local proceedings pending relevant High Court to register the judgment within six years from between the parties? the date of the judgment, or where there have been proceedings by way of an appeal against the judgment, after the date of the last Conflicting local judgment between the parties relating to the judgment given in those proceedings. same issue A local judgment between parties relating to the same issue would amount to res judicata between the same parties. This is a form of 3 Special Enforcement Regimes Applicable estoppel against re-litigation of the same subject matter in Malaysia. to Judgments from Certain Countries It is therefore likely that the court would dismiss an action on the judgment (or allow an application to set aside registration of the foreign judgment under REJA), either on the basis that the foreign 3.1 With reference to each of the specific regimes set out in question 1.1, what requirements (in form and court did not have jurisdiction or that registration would be contrary substance) must the judgment satisfy in order to be to public policy. recognised and enforceable under the respective Local proceedings pending between the parties regime? If the local proceedings are pending between the parties, the court may adjourn the hearing of the action on the judgment (or the REJA application to set aside registration of the judgment under REJA, as For a judgment to be registered under REJA, it must be a monetary applicable) until the determination of the local proceedings between judgment made by a superior court of a reciprocating country under the parties. This is especially so if, in the local proceedings, one of REJA. The judgment must also be final and conclusive between the the parties is alleging that the foreign court lacked jurisdiction, that parties. The full details are set out in questions 2.3 and 2.6 above. the judgment debtor had no notice of the original proceedings, or the MOFEA judgment was obtained by fraud. a) The judgment must be a maintenance order (defined as an order other than an order of affiliation, for the periodical payment of 2.10 What is your court’s approach to recognition and sums of money towards the maintenance of the wife or other enforcement of a foreign judgment when there is a dependants of the person against whom the order is made, conflicting local law or prior judgment on the same or which includes, with reference to Northern Ireland, an order a similar issue, but between different parties? or decree for the recovery or repayment of the cost of relief or maintenance made by virtue of the provisions of the Imperial Acts entitled in the Poor Relief (Ireland) Acts 1893 to 1914). A conflicting local law, or prior judgment between different parties, would not by itself be a bar to the enforcement of the foreign judgment b) The maintenance order must have been made by a court in a under common law or under REJA. If, however, enforcement of the reciprocating country under MOFEA. foreign judgment by reason of such conflict is contrary to the public c) A certified copy of the order would have to have been policy of Malaysia, enforcement of the judgment will be refused (or, transmitted to the Minister charged with responsibility for the in the case of REJA, the registration of the foreign judgment will be judiciary in Malaysia, who would have had to send the same to the appropriate Local Court for registration in the prescribed liable to be set aside). manner (the Local Court for this purpose is defined as a Sessions Court or a Magistrate’s Court having jurisdiction to 2.11 What is your court’s approach to recognition and try suits relating to maintenance of wives or children). enforcement of a foreign judgment that purports to PBA apply the law of your country? a) Two certified sealed copies of the grant of probate or letter of administration issued by a court from the relevant The approach is no different from that applied to any other foreign Commonwealth country.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 143 Rahmat Lim & Partners Malaysia
b) A list of the deceased’s liabilities and assets in Malaysia. list of the beneficiaries of the deceased’s estate. The applicant must c) A list of the beneficiaries of the deceased’s estate. also furnish two certified sealed copies of the grant of probate or letter d) A certified true extract of the deceased’s death certificate. of administration and a certified true extract of the deceased’s death certificate. An administrator must also make a bond as a formof e) A bond made by an administrator as a form of security. security. The court must thereafter hold a hearing and once the court has granted the order for the resealing of the grant of probate, it must 3.2 With reference to each of the specific regimes set out issue a Notice of Resealing to the original court by whom the grant was in question 1.1, does the regime specify a difference issued. At the point of resealing, the grant will have the same force and between recognition and enforcement? If so, what is effect in Malaysia as it did in the original jurisdiction. the difference between the legal effect of recognition and enforcement? Malaysia 3.4 With reference to each of the specific regimes set out There is no express provision specifying the distinction between in question 1.1, on what grounds can recognition/ recognition and enforcement under each specific regime. This enforcement of a judgment be challenged under the special regime? When can such a challenge be made? distinction is implicit, however, in that a foreign judgment must first be recognised by the Malaysian courts before it may be enforced as though it were a local judgment. Actual enforcement of the REJA judgment would be subject to the laws and rules relating to the Under section 5 of the REJA, registration of a judgment may be set specific enforcement procedure in question. For example, the rules aside on the following grounds: relating to the enforcement of a judgment via a writ of seizure and a) the judgment was registered in contravention of REJA; sale would differ from the rules relating to garnishee proceedings. b) the originating court which gave the judgment had no jurisdiction to do so; 3.3 With reference to each of the specific regimes set c) the judgment debtor did not receive notice of the proceedings out in question 1.1, briefly explain the procedure for in regard to the judgment in sufficient time to allow him to recognising and enforcing a foreign judgment. defend himself; d) the judgment was obtained by fraud; REJA e) the enforcement of the judgment would be contrary to In registering a foreign judgment under the REJA, the applicant Malaysian public policy; would be required to file an ex parte originating summons with f) the rights under the judgment would be contrary to Malaysian an affidavit in support containing the information required under public policy; or Order 67 rule 3 of the Rules of Court 2012 (“ROC”). An affidavit g) the rights under the judgment are not vested in the person must also be lodged affirming that the judgment may be enforced who applied for the registration of the judgment. in the original country. The documents must then be filed with the The setting aside of a registered judgment may be undertaken by relevant High Court, which will then give the appropriate order. way of an application to court, within the duration specified in the Upon registration of the judgment pursuant to an order of the High notice of registration of the foreign judgment. Court, the judgment is then recognised as a judgment of the High MOFEA Court of Malaya or Sabah & Sarawak (as applicable). There are no specific provisions allowing for a challenge toa In order to issue execution on the registered judgment, the applicant maintenance order duly registered under MOFEA. Insofar as must personally serve a notice of registration of the judgment on provisional orders made by the original court are concerned, the the respondent. Execution of the judgment may only be effected person against whom the order is made has a right to raise any upon lapse of the period of time given to the respondent to set aside defence which he might have raised in the original proceedings had the registration of the judgment, at which point the applicant must he been a party thereto, but no other defence. produce to the Sheriff an affidavit of service proving that service was effected upon the respondent, as well as any order made by the PBA court in relation to the judgment. An order on an application for the re-sealing of probate or letters MOFEA of administration will not be granted if, at the time of his death, the deceased was not domiciled within the jurisdiction of the The relevant foreign order must be transmitted to the Minister in court by which the grant was issued. The resealing is a matter of charge of the Judiciary in Malaysia, who is then required to forward discretion, and the court may defer the hearing of, or even refuse the order to the Local Court in the district of the person against the application in special circumstances (for example, if the will is whom the order is made. The order is then registered, and has the “wholly or mainly operative” under lex domicile). same effect and force as if it was granted within the jurisdiction. Pursuant thereto, proceedings may be taken on the order, and the court in which the order was registered has the power to enforce 4 Enforcement the order. PBA 4.1 Once a foreign judgment is recognised and enforced, Where a Court of Probate from a Commonwealth country has issued what are the general methods of enforcement an order for the sealing of a grant of probate or letter of administration, available to a judgment creditor? the High Court has the power to reseal such document. The application for the resealing of a grant of probate must be made by To enforce a monetary judgment, a judgment creditor may opt for way of an originating summons supported by an affidavit sworn by the one or more of the following enforcement methods: administrator or executor setting out therein, inter alia, the relationship a) a writ of seizure and sale; of administrators to the deceased, particulars of the deceased, and a b) an application for examination of the judgment debtor; list of the deceased’s liabilities and assets in Malaysia as well as the c) an application for a garnishee order;
144 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Rahmat Lim & Partners Malaysia
d) an application for a charging order in respect of shares held by the judgment debtor; or 5.2 Are there any particular tips you would give, or e) the initiation of bankruptcy or the winding-up of proceedings. critical issues that you would flag, to clients seeking to recognise and enforce a foreign judgment in your jurisdiction? 5 Other Matters It would be important to identify whether the judgment is a monetary judgment, and whether it is a judgment of a superior court of a 5.1 Have there been any noteworthy recent (in the last reciprocating country under REJA. This will enable the client to 12 months) legal developments in your jurisdiction determine whether an application for registration under REJA may relevant to the recognition and enforcement of foreign be made, or whether an action on the judgment under common law judgments? Please provide a brief description. Malaysia is required. Next is the issue of when to apply for enforcement. An action on In Malaysian Int Trading Corp Sdn Bhd v RHB Bank [2016] 2 CLJ the judgment or application for registration under REJA may not be 717, the Federal Court (FC) set aside the High Court’s (HC) order successful if there is a pending appeal against the judgment in the to enforce the Singapore High Court’s (SHC) judgment of garnishee original court. It would be preferable to only apply for registration order nisi (GON). The Judgment Creditor (Appellant) sought and/or enforcement after all avenues of appeal have been exhausted for the GON against the garnishee (the Respondent Bank) on the in the original court. monies in six fixed deposit accounts (FD). The FD was actually pledged with the Respondent Bank by way of a set-off letter by the Last but not least, it is important to ensure that the formalities for Judgment Debtor (JD). recognition and enforcement in Malaysia are duly complied with. In this regard, it is often necessary to have legal counsel from In this case, the FC agreed, inter alia, with the Court of Appeal’s the jurisdiction of the original court work closely with Malaysian finding that the HC placed undue importance on the SHC’s judgment counsel (for example, such foreign counsel may be required to in granting the garnishee order absolute against the Respondent swear an affidavit as to the law of the country of the original court, Bank. In so doing, the FC noted that the Respondent Bank was not in relation to the amount of interest due under the judgment). even a party to the SHC suit between the Appellant and the JD and was therefore not bound by the findings made by the SHC that the JD’s monies were held on trust for the Judgment Creditor. This is as the FC found that the Respondent Bank had taken all necessary steps in accordance with the procedural rules to dispute the GON during the show cause stage.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 145 Rahmat Lim & Partners Malaysia
Jack Yow Daphne Koo Rahmat Lim & Partners Rahmat Lim & Partners Suite 33.01 Level 33 Suite 33.01 Level 33 The Gardens North Tower The Gardens North Tower Mid Valley City, Lingkaran Syed Putra Mid Valley City, Lingkaran Syed Putra 59200 Kuala Lumpur 59200 Kuala Lumpur Malaysia Malaysia
Tel: +603 2299 3898 Tel: +603 2299 3869 Email: [email protected] Email: [email protected] URL: www.rahmatlim.com URL: www.rahmatlim.com
Malaysia Jack heads the Litigation practice at Rahmat Lim & Partners. His Daphne is a Partner in the Arbitration, Litigation and Maritime & areas of practice include corporate and banking litigation, industrial Aviation practices. Her areas of practice include corporate and relations and employment law litigation. Jack’s extensive experience commercial litigation, admiralty and maritime law and land reference includes, among other things: acting for a local financial institution, proceedings. leading them to the recovery of a multi-million ringgit facility from a Daphne’s experience includes, amongst other things, acting on publicly listed company; obtaining a favourable KLRCA arbitration behalf of leading commercial and financial institutions and publicly award for a Malaysian subsidiary of a publicly listed German company listed companies on court sanctioned capital reduction exercises and in a multi-million USD contractual dispute; acting in a judicial review mergers, representing international shipping companies in shipping application and obtaining a declaration and an order of mandamus and admiralty matters, and acting for international and domestic compelling a local authority to issue a certificate of fitness and companies on a diverse range of disputes. Daphne also undertakes occupation in a shopping mall; acting on behalf of a multinational advisory work and regularly appears at various levels of the Malaysian company in the successful suit of its former chief executive officer courts for hearings, trials and appeals. for negligence and breach of directors duties; advising receivers and managers of companies in receivership; as well as acting for liquidators in insolvency proceedings.
Rahmat Lim & Partners is an award-winning, full-service law firm in Malaysia which is dedicated to the provision of high-quality legal services. With our extensive experience and premier client base, our Partners and practices have been consistently recognised and ranked as leaders in the market and have won various awards since our Firm was established in 2010. We are, first and foremost, a Malaysian law firm, but take pride in having a distinctive global approach and perspective, and aim to provide effective domestic and cross-border solutions for our local and international clients. Our lawyers have advised on many of the nation’s largest and most high-profile transactions, and offer quality services to clients requiring representation across a wide range of contentious and non-contentious matters. Our Banking and Finance, Capital Markets, Dispute Resolution, Intellectual Property & Technology, Mergers and Acquisition, and Corporate Real Estate practices are all ranked in international publications such as Chambers Global/Asia Pacific and The Legal 500 Asia Pacific. Whilst our lawyers are drawn from diverse backgrounds, Rahmat Lim & Partners stands firmly on the principles of integrity, excellence and professionalism. These core values form the foundation of our culture, and enable us to act as trusted legal advisors to our clients.
146 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Chapter 27
Myanmar
Allen & Gledhill (Myanmar) Co., Ltd. Minn Naing Oo
(d) where the proceedings in which the judgment was obtained 1 Country Finder are opposed to natural justice; (e) where it has been obtained by fraud; or 1.1 Please set out the various regimes applicable (f) where it sustains a claim founded on a breach of any law in to recognising and enforcing judgments in your force in the Union of Burma. jurisdiction and the names of the countries to which Section 14 of the CPC provides that the Court shall presume, upon such special regimes apply. the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a Court of Applicable Law/ Relevant Corresponding competent jurisdiction, unless the contrary appears on the record; but Statutory Regime Jurisdiction(s) Section Below such presumption may be displaced by proving want of jurisdiction. Signatories to Sections 4(b), 31(a), Arbitration Act 2016. the New York The form of plaint for a foreign judgment (Form No. 11 of Appendix 45, 46. Convention. A to the First Schedule of the CPC) requires the plaintiff to set out a specific amount due from the Defendant. This suggests that the Myanmar courts would only enforce monetary judgments, at least from a procedural perspective, and that judgments in rem, such as 2 General Regime relating to injunctions, including foreign asset freezing orders and specific performance, would not be enforced. In particular, section 2.1 Absent any applicable special regime, what is the legal 16 of the CPC provides that all cases involving immovable property framework under which a foreign judgment would be in Myanmar must be instituted domestically in Myanmar. recognised and enforced in your jurisdiction?
2.3 What requirements (in form and substance) must a A person seeking to enforce a foreign judgment in Myanmar must foreign judgment satisfy in order to be recognised file a suit in Myanmar, as plaintiff, against the judgment-debtor, and enforceable in your jurisdiction? as defendant. There is no specific procedure for a suit brought on a foreign judgment and the suit would, as with all other suits, be Please see the answer to question 2.2. initiated by presenting a plaint. Once a decree enforcing the foreign judgment has been obtained 2.4 What (if any) connection to the jurisdiction is required from the Myanmar courts, it may be executed by attachment and for your courts to accept jurisdiction for recognition sale of any property, by arrest and detention in prison, garnishee and enforcement of a foreign judgment? order and application for examination of judgment debtors. In general, every court in Myanmar has jurisdiction in granting 2.2 What constitutes a ‘judgment’ capable of recognition enforcement of a foreign judgment, subject to certain pecuniary and enforcement in your jurisdiction? limits of its jurisdiction. The pecuniary limits of the Myanmar courts are as follows: Township Courts up to MMK 10 million, Section 13 of the Civil Procedure Code (1908) (“CPC”) provides District Courts up to MMK 500 million, and no limits apply to the that a foreign judgment shall be conclusive as to any matter thereby High Courts and Supreme Court. directly adjudicated upon between the same parties, or between In addition to such pecuniary limits, the Myanmar courts must have parties under whom they or any of them claim, litigating under the jurisdiction over the defendant or the cause of action as required by same title, except: section 20 of the CPC. This requires that (a) the judgment-debtor (a) where it has not been pronounced by a Court of competent (against whom the judgment is to been enforced) must, at the time jurisdiction; of commencement of the suit, be resident, or must have carried on (b) where it has not been given on the merits of the case; business or personally worked for gain in Myanmar, (b) the judgment- (c) where it appears on the fact of the proceedings to be founded debtor, who does not reside or carry on business or personally work for on an incorrect view of international law or a refusal to gain in Myanmar, submits to the jurisdiction of the Myanmar courts, or recognise the law of the Union of Burma in cases in which (c) the foreign judgment must be obtained based on a cause of action such law is applicable; that arose wholly or partly in Myanmar.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 147 Allen & Gledhill (Myanmar) Co., Ltd. Myanmar
local judgment; and (b) likely to accord primacy to a prior foreign 2.5 Is there a difference between recognition and judgment between the parties which may be recognised under enforcement of judgments? If so, what are the legal Myanmar law. effects of recognition and enforcement respectively?
There is no distinction drawn in the CPC. 2.10 What is your court’s approach to recognition and enforcement of a foreign judgment when there is a conflicting local law or prior judgment on the same or 2.6 Briefly explain the procedure for recognising and a similar issue, but between different parties? enforcing a foreign judgment in your jurisdiction. There have not been many instances of foreign judgments being
Myanmar The judgment-creditor must commence a civil action by filing a enforced in Myanmar in recent history and no known cases relevant plaint in the appropriate Myanmar court, as plaintiff, against the to this particular issue. judgment-debtor, as defendant. When a plaint has been filed, a Explanation VI to section 11 of the CPC explains that where persons summons is served upon the defendant requesting the defendant to litigate bona fide in respect of a public right or of a private right appear and answer the claim. The defendant has to submit a written claimed in common for themselves and others, all persons interested statement answering the specific claims made in the plaint. in such right shall, for the purposes of this section, be deemed to If the Court is satisfied that no further argument or evidence than the claim under the persons so litigating. parties can at once adduce is required as may be sufficient for the Unless Explanation VI applies to the different parties, section decision of the suit and that no injustice will result from proceeding 11 would not apply to stop the Court from enforcing the foreign with the suit, the Court may make a determination at the “first judgment. hearing”, which takes place after the plaint and written statement have been filed, before the “hearing of the suit” where witnesses are examined. 2.11 What is your court’s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? 2.7 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge There have not been many instances of foreign judgments being be made? enforced in Myanmar in recent history and no known cases relevant to this particular issue. Please refer to question 2.2. If enforcement is resisted on these Unless the foreign judgment falls within one of the exceptions grounds, they should be set out in the written statement filed by the set out in section 11 of the CPC, there is no bar to enforcing the judgment debtor in response to the plaint. judgment in Myanmar.
2.8 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments 2.12 Are there any differences in the rules and procedure relating to specific subject matters? of recognition and enforcement between the various states/regions/provinces in your country? Please explain. There is no distinction drawn between foreign judgments relating to specific subject matters. No, there are no differences in the rules and procedure of recognition in Myanmar. 2.9 What is your court’s approach to recognition and enforcement of a foreign judgment when there is: (a) a conflicting local judgment between the parties relating 2.13 What is the relevant limitation period to recognise and to the same issue; or (b) local proceedings pending enforce a foreign judgment? between the parties? A suit must be filed within six years from the date of the foreign There have not been many instances of foreign judgments being judgment in accordance with Article 117 of the First Schedule of the enforced in Myanmar in recent history and no known cases relevant Limitation Act 1908. to the two scenarios. Section 11 of the CPC provides that a Myanmar court shall not try 3 Special Enforcement Regimes Applicable any suit or issue in which the matter directly or substantially in issue to Judgments from Certain Countries has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent 3.1 With reference to each of the specific regimes set to try such subsequent suit or the suit in which such issue has been out in question 1.1, what requirements (in form and subsequently raised, and has been heard and finally decided by such substance) must the judgment satisfy in order to be Court. Explanation I explains that the expression “former suit” shall recognised and enforceable under the respective denote a suit which has been decided prior to the suit in question regime? whether or not it was instituted prior thereto. The arbitral award has to be made outside Myanmar but inside The application of section 11 of the CPC is in respect of domestic the territory of member countries of the New York Convention judgments. according to the arbitration agreement. Nevertheless, in view of section 11 of the CPC (read with section Section 46(b) of the Arbitration Law provides that the court may 13 of the CPC), the Myanmar court is (a) unlikely to enforce the refuse to recognise and enforce a foreign award, if any of the foreign judgment, if it was decided later in time to the conflicting
148 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Allen & Gledhill (Myanmar) Co., Ltd. Myanmar
following in submission for recognition and enforcement of foreign award can be proved by the respondent: 3.3 With reference to each of the specific regimes set out in question 1.1, briefly explain the procedure for (1) a party to the arbitration agreement was, under the law recognising and enforcing a foreign judgment. applicable to them, under some incapacity; (2) the arbitration agreement is not valid under the law to Similarly to question 2.6 above, the judgment creditor would have which the parties have subjected it, or in the absence of any to commence proceedings by filing a plaint in the appropriate indication in that respect, under the law of the country where the award was made; Myanmar court. The Plaint should comply with the requirements under section 45 of the Arbitration Law, as set out in question 3.1 (3) the party was not given proper notice of the appointment of the arbitrator, or the arbitration proceedings were not carried above.
out properly or the respondent was otherwise unable to Myanmar present its case in the arbitration proceedings; 3.4 With reference to each of the specific regimes set out (4) the award deals with a dispute not contemplated by, or not in question 1.1, on what grounds can recognition/ falling within the terms of, the submission to arbitration or enforcement of a judgment be challenged under the it contains a decision on the matter beyond the scope of the special regime? When can such a challenge be made? submission to arbitration; (5) the composition of the arbitral tribunal or the arbitral procedure Please refer to question 3.1. If enforcement is resisted on these was not in accordance with the agreement of the parties or, grounds, they should be set out in the Written Statement filed by the failing such agreement, was not in accordance with the law of judgment debtor in response to the plaint. the country where the arbitration took place; or (6) the award has not yet become binding on the parties or has been set aside or suspended by a competent authority of the 4 Enforcement country in which, or under the law of which, that award was made. 4.1 Once a foreign judgment is recognised and enforced, Section 46(c) further provides that the court may refuse to enforce what are the general methods of enforcement the award if it finds that: available to a judgment creditor? (1) the subject-matter of the dispute is not capable of settlement by arbitration under the law of the State; or The usual methods of enforcement applicable to a judgment issued (2) the enforcement of the award would be contrary to the public by the Singapore court will apply: policy of the State. (a) attachment and sale of any property; Section 46(d) provides that where the court is satisfied that an (b) examination of the judgment debtor on his property; application for the setting aside or for the suspension of the award (c) application for garnishee orders requiring third parties, such has been made to a competent authority referred to in subsection (b) as banks, who are indebted to the judgment debtor to pay the of section 46, the court may, if it considers proper to do so, postpone judgment creditor the amount of any debt due or accruing due the order to enforce the award and may also order the respondent to to the judgment creditor in satisfaction of the judgment; provide appropriate security on the application of the party claiming (d) by arrest and detention in prison; and enforcement of the award. (e) commencement of insolvency (against individuals) or winding Section 45 of the Arbitration Law provides that the party seeking to up (against companies) proceedings, where applicable. enforce a foreign award must produce to the court: (1) the original award or a copy thereof duly authenticated in the manner required by the law of the country in which it was 5 Other Matters made;
(2) the original arbitration agreement or an authorised copy 5.1 Have there been any noteworthy recent (in the last thereof; and 12 months) legal developments in your jurisdiction (3) such evidence as may be necessary to prove that the award is relevant to the recognition and enforcement of foreign a foreign award. judgments? Please provide a brief description. Further, where the award or arbitration agreement requiring to be produced is in a foreign language, the party seeking to enforce the No, there have not been any recent legal developments to the award shall produce a translation into English certified as correct recognition and enforcement of foreign judgments in Myanmar. by a diplomatic or consular agent of the country to which that party belongs or certified as correct in such other manner as maybe 5.2 Are there any particular tips you would give, or sufficient according to the law in force in the Union of Myanmar. critical issues that you would flag, to clients seeking to recognise and enforce a foreign judgment in your jurisdiction? 3.2 With reference to each of the specific regimes set out in question 1.1, does the regime specify a difference between recognition and enforcement? If so, what is It would appear that foreign arbitral awards (from member countries the difference between the legal effect of recognition of the New York Convention) may be enforced more easily than and enforcement? foreign judgments. Therefore, in dealing with parties who are resident in Myanmar or have assets in Myanmar, parties should No, there is no specified difference between recognition and consider agreeing to arbitration in a member country of the New enforcement. York Convention.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 149 Allen & Gledhill (Myanmar) Co., Ltd. Myanmar
Minn Naing Oo Allen & Gledhill (Myanmar) Co., Ltd. Junction City Tower, #18-01 Bogyoke Aung San Road Pabedan Township, Yangon Myanmar
Tel: +95 1 925 3719 (Myanmar) +65 9012 5659 (Singapore) Email: [email protected] URL: www.allenandgledhill.com
Myanmar Minn is the Managing Director of Allen & Gledhill (Myanmar) and a Partner of Allen & Gledhill. He was previously the Chief Executive Officer and Registrar of the Singapore International Arbitration Centre, and before that, a Director at the Ministry of Trade and Industry Singapore, with oversight of Singapore’s trade agreements and World Trade Organisation (“WTO”) related matters, including policy review, formulation and negotiations. He has extensive experience advising on banking and finance, mergers and acquisitions, infrastructure projects, corporate and commercial, arbitration and competition. Minn is a Fellow of the Chartered Institute of Arbitrators and the Singapore Institute of Arbitrators, and has been appointed to dispute panels for disputes between WTO Member States. Minn graduated from the National University of Singapore with an LL.B. in 1996. He was called to the Singapore Bar in 1997, and obtained an LL.M. in 2001 from Columbia University as a Harlan Fiske Stone Scholar.
Allen & Gledhill (Myanmar) is the local Myanmar office of one of South-east Asia’s leading and largest law firms, Allen & Gledhill. Based in Yangon, we are a fully licensed law firm which provides Myanmar legal and tax advice, and issues Myanmar legal opinions. Our Firm, staffed by local and foreign qualified lawyers, is supported by the network of Allen & Gledhill and combines sound local knowledge with best international practices to provide value added advice and unparalleled service to our clients. Led by Minn Naing Oo, a Singapore and New York qualified lawyer fluent in the Myanmar language, Minn has well-established connections in the Myanmar business community and experience advising both foreign investors and local businesses on their projects in Myanmar. Operational since 2014, Allen & Gledhill (Myanmar) has gained an excellent reputation for advising local conglomerates and organisations as well as international clients across diversified industry sectors and has been recognised as a leading law firm by notable legal directories including IFLR1000, Chambers Asia-Pacific and The Legal 500 Asia Pacific.
150 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Chapter 28
Netherlands Gerben Smit
Stek Max Hetterscheidt
1 Country Finder 2 General Regime
1.1 Please set out the various regimes applicable 2.1 Absent any applicable special regime, what is the legal to recognising and enforcing judgments in your framework under which a foreign judgment would be jurisdiction and the names of the countries to which recognised and enforced in your jurisdiction? such special regimes apply. Art. 431 DCCP provides the applicable legal regime for the Applicable Law/ Relevant Corresponding recognition and enforcement of foreign judgments in the Statutory Regime Jurisdiction(s) Section Below Netherlands, in case no treaty applies. EU Member States, Mexico and Singapore (Hague 2.2 What constitutes a ‘judgment’ capable of recognition Convention on and enforcement in your jurisdiction? Choice of Court Agreements of 2005). Foreign court decisions (in civil proceedings) which are enforceable Bilateral treaties in the country of origin. See for the required form and substance in with Austria (1963), question 2.3 below. Belgium (1925), Germany (1962), Italy (1959), 2.3 What requirements (in form and substance) must a In case a treaty Suriname (1976) and foreign judgment satisfy in order to be recognised applies: specific the United Kingdom treaty regime and/or and enforceable in your jurisdiction? (1967). Section 3. artt. 985–992 of the Dutch Code of Civil Albania, Cyprus, The party seeking recognition and enforcement of a foreign Procedure (DCCP). Kuwait, Portugal (Hague Convention judgment is required to submit an authenticated and complete copy on the Recognition of the foreign judgment, which normally needs to be accompanied by and Enforcement of a legal opinion confirming the enforceability of the judgment in the Foreign Judgments in Civil and Commercial country of its origin. The competent Dutch court may furthermore Matters of 1971). require: (i) a legalisation of these documents; and (ii) a translation Various treaties with thereof into Dutch by a sworn translator (unless a treaty provides relatively narrow otherwise; such as the Hague Convention of 1962 concerning the scope (e.g. transport abolishment of legalisation of Foreign Public Documents). by air, by road, by rail, nuclear power). The procedure of art. 431 DCCP does not formally involve the All jurisdictions in recognition and enforcement of foreign judgments. It does, In case no treaty relation to which no however, result in giving binding effect to foreign judgments in applies: art. 431 Section 2. treaties have been DCCP. the Netherlands. In practice, four (substantive) criteria have to be entered into. met, which are, in particular: (i) the non-domestic court must have assumed jurisdiction on grounds which are internationally accepted (an example is the forum chosen by the parties); (ii) the judgment should be the result of proceedings conducted in accordance with the principles of “fair trial”; (iii) the recognition of the foreign judgment is not contrary to Dutch public policy; and (iv) the foreign judgment is compatible with an earlier (foreign) judgment rendered between the same parties in relation to the same dispute (provided that the earlier judgment can be recognised in the Netherlands).
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 151 Stek Netherlands
The term “public policy” is quite commonly described as the proceedings in which the merits of the case will be reviewed “de fundamental principle of procedural law or the rule of law, meaning novo” by the Dutch court (e.g. if that would be favourable for the that these principles are so essential to the Dutch legal order that judgment creditor; in case it wants to claim more than granted in the within the territory of the Netherlands any deviation cannot be foreign judgment). Most parties will choose to conduct simplified allowed. proceedings, in order to try to achieve the same result as in the foreign proceedings and to prevent a new debate on the merits of the matter. 2.4 What (if any) connection to the jurisdiction is required for your courts to accept jurisdiction for recognition The party seeking recognition and enforcement through the and enforcement of a foreign judgment? “simplified proceedings” should submit, and to the extent necessary, prove that the relevant criteria have been fulfilled (see also question The Dutch courts may assume jurisdiction on different grounds, 2.3). If it can be established that these requirements have been met, Netherlands also depending on the type of procedural route the party seeking it can be assumed that the claim is in line with the foreign judgment recognition and enforcement chooses (see also question 2.6). and the Dutch courts will generally grant the same judgment as the In case the judgment creditor intends to initiate “simplified foreign court. The procedure of art. 431 DCCP does in effect result proceedings” (see also question 2.6), the Dutch courts may assume in giving binding effect to a foreign judgment. jurisdiction, e.g. because a prejudgment attachment was levied on the The decisions on a request for recognition and enforcement by the assets of the judgment debtor which are located in the Netherlands (sub)district court are subject to appeal and cassation. (see also question 5.2), or the domicile of the party against which recognition and enforcement is sought, or the place of enforcement 2.7 On what grounds can recognition/enforcement of a is located in the Netherlands. It could, however, also be argued that judgment be challenged? When can such a challenge the competence of the Dutch courts could directly be derived from be made? the circumstance that proceedings based on art. 431 para. 2 DCCP are initiated before the Dutch courts. The party against which recognition and enforcement of a foreign In case the Dutch courts assume jurisdiction and e.g. an exclusive judgment is sought (the judgment debtor), is required to submit, and jurisdiction clause has been concluded, the party seeking recognition to the extent necessary, prove that the foreign judgment does not meet and enforcement of the foreign judgment through “simplified the relevant recognition requirements set out under question 2.3. proceedings” could refer to this jurisdiction clause and the judgment The Dutch courts can also refuse enforcement of a foreign judgment of a court whose competence is based on this clause and claim that if the judgment (which is susceptible of recognition) is not, not yet or the other party is condemned to the same in the Dutch proceedings. no longer enforceable in the country of its origin and does not meet If these references are correct, the Dutch court will, in principle, the (formal) enforcement requirements in the country of its origin bind the parties to the foreign judgment (provided that the other (which, in principle, has to be adduced by the party against which relevant criteria have been met, see question 2.3). recognition and enforcement of a foreign judgment is sought). This In case parties have not agreed upon a jurisdiction clause, the party could e.g. be the case when the execution of the foreign judgment in seeking recognition and enforcement has to submit (and prove) that the country of origin is suspended because appeal proceedings have the foreign court has based its competency on an internationally been initiated, or the foreign judgment has been quashed in appeal. recognised ground for jurisdiction (and that the other relevant However, in case the claim based upon a foreign judgment can no requirements have been fulfilled, see also question 2.3). longer be executed in the country of origin because the right to claim execution is time-barred or has lapsed, this shall not necessarily prevent the execution of the foreign judgment in the Netherlands. 2.5 Is there a difference between recognition and enforcement of judgments? If so, what are the legal Certain refusal grounds can be applied by the Dutch courts “ex effects of recognition and enforcement respectively? officio”, such as violation of the Dutch public policy. The competent Dutch court is, in principle, required to hear the judgment debtor Even though a distinction must be made between recognition and before a decision is rendered on the request for recognition and enforcement of a foreign judgment, recognition will generally enforcement. lead to enforcement (e.g. if the foreign judgment concerns the In case it can be established that the minimum criteria have not been determination of a particular legal position as could be the case met, then the foreign judgment will, in principle, not be recognised. in family matters). However, if the judgment provides an order This does not, however, mean that that no legal force at all can be to undertake a certain (legal) action (e.g. to give something or to attributed to the foreign judgment. The judgment may be used as act), then both recognition and enforcement of the foreign judgment a deed (authentieke akte) in Dutch proceedings to prove e.g. that should be requested. a decision was rendered by a foreign court and procedural actions have been undertaken by the parties before a foreign court. 2.6 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. 2.8 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments In case no treaty applies, foreign judgments cannot be directly relating to specific subject matters? recognised and enforced in the Netherlands, but they need to be recognised and enforced by commencing new (simplified) Art. 431 DCCP does not provide additional rules in relation to proceedings, which have to be initiated before the competent Dutch specific subject matters. The Netherlands are, however, member courts. to various treaties concerning the recognition and enforcement of In this regard two procedural routes are available; a party seeking (foreign) judgments. Please note that the relevant treaties differ in recognition could conduct (a) “simplified proceedings”; or (b) scope (e.g. broad or limited) and could provide different regimes.
152 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Stek Netherlands
2.9 What is your court’s approach to recognition and 2.13 What is the relevant limitation period to recognise and enforcement of a foreign judgment when there is: (a) a enforce a foreign judgment? conflicting local judgment between the parties relating to the same issue; or (b) local proceedings pending Pursuant to Dutch case law it could, under circumstances, be possible to between the parties? recognise and enforce a foreign judgment, even if the foreign judgment can no longer be executed in the country of its origin because the right Point (a) qualifies as a ground for denying the recognition and to claim execution of a foreign judgment is time barred/has lapsed. enforcement of the foreign judgment (see question 2.3). Point (b) could lead to the stay of the recognition and enforcement Please note that the limitation period for a leave to enforce a Dutch proceedings, pending the result of the local proceedings. court judgment – (e.g. rendered in “simplified proceedings”) – is in any case 20 years (pursuant to art. 3:324 Dutch Civil Code). Netherlands 2.10 What is your court’s approach to recognition and enforcement of a foreign judgment when there is a 3 Special Enforcement Regimes Applicable conflicting local law or prior judgment on the same or to Judgments from Certain Countries a similar issue, but between different parties?
That would, in principle, not directly constitute a ground for refusal, 3.1 With reference to each of the specific regimes set because the Dutch courts, in principle, do not review the merits of the out in question 1.1, what requirements (in form and case in these kind of (simplified) proceedings and it concerns different substance) must the judgment satisfy in order to be recognised and enforceable under the respective parties. There is, for example, no system of binding precedents in the regime? Netherlands.
In case the recognition of such a foreign judgment would, however, Please note that the EU Regulations and Lugano Treaty (EVEX violate the Dutch public policy (which ground could be applied “ex Treaty) could provide different rules than set out in the answers below. officio” by the Dutch courts, see also question 2.7) the recognition and An authenticated and complete copy of the foreign judgment enforcement thereof would be refused. In principle, the Dutch courts is required, including documents (such as a legal opinion) which do not easily conclude that the public policy is violated and the Dutch evidence that the judgment is enforceable in the country of its courts would try to fit a foreign judgment into the Dutch legal system origin. The addressed court may require a legalisation of these as much as possible (also depending on the facts and circumstances documents and translation thereof into Dutch by a sworn translator of the case). (unless a treaty provides otherwise; see also question 2.3). If the submitted documents are deemed to be inadequate by the court, 2.11 What is your court’s approach to recognition and the party seeking recognition and enforcement will be granted the enforcement of a foreign judgment that purports to opportunity to provide additional documents/information. apply the law of your country? Furthermore, in the Netherlands, the party seeking recognition and enforcement of a foreign judgment is also required to submit As specified under question 2.6 the purpose of the (simplified) evidence that the defendant/judgment debtor has been duly proceedings is to achieve the same result as in the foreign proceedings, summoned to appear in court to be heard on the request to recognise but without reviewing the merits of the case, even if the foreign court and enforce the foreign judgment. has applied substantive Dutch law. However, as set out previously, this is in case the recognition of a foreign judgment would violate the Some treaties to which the Netherlands is a party e.g. require Dutch public policy that would constitute a ground for refusal (see (evidence of the fact) that the foreign judgment can no longer be question 2.10). appealed in the country of its origin. Other treaties require, in case a (foreign) judgment was rendered by default, that the judgment debtor has been properly notified of the initiation of the foreign 2.12 Are there any differences in the rules and procedure proceedings and evidence thereof should be submitted. of recognition and enforcement between the various states/regions/provinces in your country? Please explain. 3.2 With reference to each of the specific regimes set out in question 1.1, does the regime specify a difference There are no differences in relation to the recognition and between recognition and enforcement? If so, what is enforcement of judgments rendered in the different parts of the the difference between the legal effect of recognition and enforcement? Kingdom of Netherlands (the Kingdom comprises of the following countries: the Netherlands, Aruba, Curaçao and Sint-Maarten). Pursuant to art. 40 of the Statute such judgments have direct effect In principle, artt. 985–992 DCCP only formally provides the rules for within the Kingdom of the Netherlands. enforcement of a foreign judgment based upon a treaty. It is, however, generally assumed that this regime also applies for a treaty based The Dutch Supreme Court recently decided that the Kingdom of request for the recognition of a foreign judgment in the Netherlands. the Netherlands cannot be regarded as one territory in relation to, inter alia, the recognition and enforcement of foreign judgments based upon a recognition and enforcement treaty (see e.g. section 3.3 With reference to each of the specific regimes set 3). Such a treaty-based leave for recognition and enforcement of a out in question 1.1, briefly explain the procedure for recognising and enforcing a foreign judgment. foreign judgment granted in one of the countries of the Kingdom is, in principle, only valid in that specific country, unless the laws of the other countries provide otherwise. Foreign judgments are not recognised and enforced automatically in the Netherlands (neither if such a request is based on a treaty). The
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 153 Stek Netherlands
party seeking leave for recognition and enforcement of a foreign the losing party, including property which is in the actual possession judgment is required to submit an application to the district court of third parties, or on receivables and other claims on third parties. of the area where the party against whom enforcement is sought This form of attachment will ultimately lead to the transfer of or the place of enforcement is located. In principle, leave will be receivables or the public sale of assets by the bailiff. automatically granted, provided that certain formal requirements If the recognised (foreign) judgment relates to the delivery of are met (see the formal requirements set out under question 2.3, movable goods, the bailiff is entitled to seize the goods and deliver i.e. the foreign judgment needs to be enforceable in the country of them to the judgment creditor. If the goods are legally required its origin). The competent court will, in principle, not review the to be transferred (e.g. by deed of a civil law notary) the court can merits of the case. order that its judgment has the same force as the legal deed required. The addressed court will render its decision (beschikking) within The court could also appoint a third party to act on behalf of the due course, but only after hearing the parties (which have to losing party. If the judgment creditor is required to perform certain Netherlands be represented by a lawyer). Parties could lodge an appeal and actions, the court can order it to do so under penalty of a fine or even cassation within one month after the date on which the decision is (under specific circumstances) commitment to prison. rendered. Unless the court decides otherwise, a leave to enforce is Certain (state-owned) assets could be immune from enforcement not suspended by initiating appeal proceedings. measures or could be subject to a special regime (such as ships and In case it would be established that the enforcement of a foreign aircraft). A court will furthermore only prohibit the enforcement of judgment is not justified, e.g. because the judgment is quashed in a judgment if the party enforcing the judgment seems to abuse its foreign appeal proceedings, the party who sought recognition and rights to do so (e.g. when the judgment creditor wishes to enforce a enforcement could be liable for the occurred damages. monetary judgment when it is clear that the losing party has already paid the amounts due).
3.4 With reference to each of the specific regimes set out in question 1.1, on what grounds can recognition/ 5 Other Matters enforcement of a judgment be challenged under the special regime? When can such a challenge be made? 5.1 Have there been any noteworthy recent (in the last In principle, the grounds for refusal are phrased differently in each 12 months) legal developments in your jurisdiction treaty, but they are, to a certain extent, comparable to the following relevant to the recognition and enforcement of foreign (formal and substantive) criteria: (a) the foreign court has not assumed judgments? Please provide a brief description. competence on internationally accepted jurisdiction grounds; (b) the foreign judgment is not the result of proceedings conducted in After proceedings which lasted more than a decade, on 9 May 2017 accordance with the principles of “fair trial”; (c) the recognition the Amsterdam Court of Appeal rendered a decision on the recognition of the foreign judgment is contrary to Dutch public policy; (d) the of the foreign bankruptcy judgment of Yukos Oil in the Netherlands. foreign judgment is incompatible with an earlier (Dutch) judgment In short, the Court of Appeal amongst other things established that rendered in relation to the same parties and the same dispute; (e) the the Russian authorities contemplated and provoked the bankruptcy foreign judgment is incompatible with a foreign judgment that can of Yuks Oil and decided that the Russian bankruptcy judgment could be recognised in the Netherlands; (f) the foreign judgment is not, no not be recognised in the Netherlands, because that would (formally longer, or not yet enforceable in the country of its origin; or (g) if the and materially) violate the Dutch public policy. As a result thereof judgment has already been fulfilled by the judgment debtor. the bankruptcy trustee was not authorised to perform certain (legal) Some treaties do, however, provide additional grounds for refusal actions/decisions and these were considered to be invalid (e.g. the (such as the Hague Convention on Choice of Court Agreements: e.g. transfer of the shares which Yukos Oil held in the Dutch company fraud in foreign court proceedings). Yukos Finance B.V.). Most treaties require the party seeking recognition and enforcement to submit that the judgment is enforceable in the country of its origin. 5.2 Are there any particular tips you would give, or The grounds for refusal generally have to be invoked and proven by critical issues that you would flag, to clients seeking the party against which recognition and enforcement is sought. Some to recognise and enforce a foreign judgment in your jurisdiction? refusal grounds (such as the circumstance that the recognition of the foreign judgment violates public policy) could be applied “ex officio” In the Netherlands it is relatively easy to levy a prejudgment by the Dutch courts. attachment on the goods or bank accounts – of the judgment debtor/ party against which recognition and enforcement is sought – located 4 Enforcement here prior to initiating the main recognition and enforcement proceedings. In most cases the leave for prejudgment attachment is granted ex parte within a short period (could be one day or less). 4.1 Once a foreign judgment is recognised and enforced, In order to obtain leave to levy prejudgment attachment in the what are the general methods of enforcement available to a judgment creditor? Netherlands, the requesting party has to evidence that it has a prima facie claim on the party against which recognition and enforcement If the recognised (foreign) judgment concerns a monetary judgment is sought and generally the main (recognition and enforcement) it is normally effected by a post judgment/executory attachment proceedings have to be initiated within two weeks after the leave for (executorial beslag) on the assets of the losing party/the party prejudgment attachment is granted. against which enforcement was sought. Such an attachment has to This regime, in principle, also applies if the main proceedings be levied by the bailiff (as most physical actions to be undertaken are initiated abroad, provided that the Netherlands entered into a following a leave to enforce) and could be made on all the assets of treaty with that particular foreign country on the recognition and
154 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Stek Netherlands
enforcement of foreign judgments (in such a situation, only the on the recognition and enforcement of foreign judgments with that seized assets have to be located in the Netherlands, it is not required particular foreign country. that the parties are domiciled in the Netherlands). In case the main action (e.g. the claim for recognition and Under certain circumstances, the seizure of assets could be used enforcement of the foreign judgment) is fully denied the judgment to create competency for the Dutch courts to hear the proceedings creditor could be held liable for the full amount of damages caused on the merits, e.g. in case these proceedings otherwise have to be by the prejudgment attachment. However, this does not occur often. initiated abroad and the Netherlands have not concluded a treaty Netherlands Gerben Smit Max Hetterscheidt Stek Stek Vijzelstraat 72–Floor 7B Vijzelstraat 72–Floor 7B 1017 HL Amsterdam 1017 HL Amsterdam Netherlands Netherlands
Tel: +31 20 530 5202 Tel: +31 20 530 5216 Email: [email protected] Email: [email protected] URL: www.stek.com URL: www.stek.com
Gerben co-heads Stek’s corporate and commercial litigation department. Max is a senior associate in the corporate and commercial litigation His practice covers the full range of corporate and commercial dispute department of Stek. He litigates in various commercial and corporate resolution, with an emphasis on banking and finance litigation, follow- disputes, including matters related to contractual liability, directors’ on (cartel) damage claims, trade disputes and M&A-related disputes. and shareholders’ liability, M&A related disputes, discovery and Gerben has particular strengths in contract law and tort disputes proceedings regarding the recognition, enforcement and annulment of acting for financial institutions and (listed) companies active in the (foreign) arbitral awards. Max has acted as counsel in (international) transportation, leisure and industry sectors. He represents his clients in arbitrations under, inter alia, the ICC, DIAC and NAI arbitration rules. both local courts and before (international) arbitration tribunals. Gerben He also regularly advises various (listed) companies and financial is recommended in Chambers (Global and Europe) and The Legal 500. institutions on large and complex matters.
Stek is an independent Dutch business law firm based in Amsterdam providing legal services in four practice areas: Corporate/M&A; Finance; Dispute Resolution; and Competition & Regulated Markets. At Stek we offer approachable excellence and reasonable fees. The firm was launched in 2005, combining expertise from leading international law firms and high-profile in-house positions. We bring this expertise and professionalism in a leaner, smaller, direct and more approachable package and distinguish ourselves through excellent service via a focused, hands-on personal approach. Our firm prides itself in having assembled a top team of 40 lawyers, and clients appreciate our in-depth legal and sector expertise and commercial awareness with a ‘can-do’ service attitude. At Stek we help clients (multinationals, financial institutions, private equity and other companies) in small teams and we ensure partner involvement in all assignments. Stek has also become a trusted partner for referral work of leading foreign law firms.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 155 Chapter 29
Norway Tage Brigt A. Skoghøy
Simonsen Vogt Wiig Ørjan Salvesen Haukaas
Applicable Law/ Corresponding 1 Country Finder Relevant Jurisdiction(s) Statutory Regime Section Below European Patent 1.1 Please set out the various regimes applicable Convention 2000 to recognising and enforcing judgments in your as adopted by jurisdiction and the names of the countries to which decision of the All signatory countries. - Administrative such special regimes apply. Council of 28 June 2001. Applicable Law/ Corresponding Convention on Relevant Jurisdiction(s) Statutory Regime Section Below jurisdiction, International applicable law, convention on civil recognition, liability for bunker enforcement and All signatory countries. - co-operation in oil pollution All signatory countries. - damage of 23 respect of parental March 2001. responsibility and measures for Convention on the protection of jurisdiction and children of 19 the enforcement of October 1996. judgments in civil All signatory countries. - and commercial European matters of 30 convention on October 2007. recognition and enforcement Convention of decisions All signatory countries. - between Norway, concerning custody Denmark, of children and Finland, Iceland on restoration of and Sweden on Norway, Sweden, Finland, - custody of children recognition and Iceland and Denmark. of 20 May 1980. enforcement of decision in Convention on the civil cases of 11 recognition and October 1977. enforcement of decisions relating All signatory countries. - Convention on to maintenance the recognition obligations of 2 and enforcement All countries. - October 1973. of foreign arbitral awards of 10 June Convention on 1958. the recognition of divorces and legal All signatory countries. - The Convention on separations of 1 the international June 1970. recovery of child support and other All signatory countries. - Convention forms of family concerning the maintenance of 23 recognition and November 2007. enforcement of decisions relating All signatory countries. - Agreement to maintenance between Norway obligations and the USA for towards children of the enforcement Norway and USA. - 15 April 1958. of maintenance obligations of 10 June 2002.
156 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Simonsen Vogt Wiig Norway
Applicable Law/ Corresponding There are no (other) specific requirements as to the form and substance Relevant Jurisdiction(s) Statutory Regime Section Below of foreign judgments/awards, other than the judgment/award being Convention final and enforceable in its country of origin. However, boththe between the Enforcement Act, the Dispute Act and the Arbitration Act set out Government of the certain exceptions as to the substance (see below under question 2.7). United Kingdom of Great Britain and Northern 2.4 What (if any) connection to the jurisdiction is required Ireland and the for your courts to accept jurisdiction for recognition Government of Norway and the United and enforcement of a foreign judgment? the Kingdom of Kingdom.
Norway providing Norway for the Reciprocal The enforcement of foreign judgments/awards in Norway is subject Recognition and to the debtor either being domiciled or having his assets in Norway. Enforcement of Judgments in Civil Matters of 12 June 2.5 Is there a difference between recognition and 1961. enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively?
2 General Regime Yes, a foreign judgment being recognised in Norway means that its effect is extended to Norway and that Norwegian courts shall apply the result without any re-trial of the relevant issues. 2.1 Absent any applicable special regime, what is the The enforcement of foreign judgments means that Norwegian legal framework under which a foreign judgment would be recognised and enforced in your authorities will force the debtor to fulfil the judgment in accordance jurisdiction? with applicable Norwegian rules for enforcement.
Absent of any applicable special regimes (statutes or agreements 2.6 Briefly explain the procedure for recognising and between Norway and the relevant foreign state), recognition and enforcing a foreign judgment in your jurisdiction. enforcement of foreign judgments/awards in civil and commercial matters is subject to the law provisions in the Enforcement Act of 26 In order to enforce a foreign judgment/award, the creditor has to June 1992, cf. the Dispute Act of 17 June 2005 and the Arbitration apply for enforcement before the District Court (instead of the Act of 14 May 2004. enforcement authorities). The legal venue is determined by the We note that the Lugano Convention (2007) is incorporated into the domicile of the debtor, or where his assets are. Foreign judgments/ Dispute Act and is to be deemed as the Norwegian rules of law, cf. awards have to be made available either in an original or in a duly the Dispute Act Section 4–8. However, for this purpose, we have certified copy, and if not rendered in Norwegian, Swedish or Danish, still deemed the Lugano Convention as a “special regime” below. the creditor also has to provide a translation of the award into one of these languages. Arbitral awards rendered in English need, however, not be translated, and the courts will often make the same 2.2 What constitutes a ‘judgment’ capable of recognition exception for judgments rendered in English. The courts may do the and enforcement in your jurisdiction? same for judgments/awards rendered in other languages, however, this is provided that all parties understand the relevant language. In Norway, a “judgment” is deemed to be any decision made by a court of justice regardless of what the decision is named (typically The court gives notice to the debtor after a preliminary assessment deciding (some of) the material claims brought before the court and/ of the legitimacy of the application, with a two-week deadline for or the legal costs). In-court settlements/settlements affirmed in an commenting on matters of importance for the enforcement of the arbitral award are given the same effect as judgments/awards, and claim. After the two weeks, the court may decide whether to allow accordingly they are also capable of being recognised and enforced the application and send it to the enforcement authorities, or to in Norway insofar as they are final and enforceable in the relevant disallow it. If allowed, the enforcement authorities will then decide foreign state. when to search for assets and enforce the judgment/award pursuant to the application.
2.3 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised 2.7 On what grounds can recognition/enforcement of a and enforceable in your jurisdiction? judgment be challenged? When can such a challenge be made? Absent of any applicable special regime (including the Lugano Convention), recognition and enforcement of foreign judgments Foreign judgments/awards will not be recognised in Norway if they in Norway is subject to the judgment being rendered by a court will be contrary to Norwegian mandatory laws or offensive to the having jurisdiction, due to the parties having agreed upon pursuant Norwegian legal system (ordre public). In addition, certain grounds to the Dispute Act Section 4–6 (requiring a written jurisdiction for challenging arbitral awards specifically have been established clause insofar as it narrows the Norwegian courts’ jurisdiction, and by law: agreements with consumers to be entered into after the dispute has a) one of the parties to the arbitration agreement lacks legal occurred in order to be binding). In practice, the same applies to the capacity, or the arbitration agreement is invalid under the recognition and enforcement of foreign awards, recognising that the laws to which the parties have agreed to subject it, or, failing such agreement, under the law of the jurisdiction in which the jurisdiction of arbitration panels is also subject to the parties having arbitral award was made; agreed upon it, ref. the arbitration agreement.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 157 Simonsen Vogt Wiig Norway
b) the party against whom the arbitral award is being invoked was not given sufficient notice of the appointment of an 2.11 What is your court’s approach to recognition and arbitrator or of the arbitration, or was not given an opportunity enforcement of a foreign judgment that purports to to present his views on the case; apply the law of your country? c) the arbitral award falls outside the scope of the jurisdiction of the arbitral tribunal; Such foreign judgments are not treated differently than other foreign d) the composition of the arbitral tribunal was incorrect; judgments. e) the arbitral procedure was contrary to the law of the place of arbitration or the agreement of the parties, and it is obvious 2.12 Are there any differences in the rules and procedure that this may have impacted on the decision; or of recognition and enforcement between the various Norway f) the arbitral award is not yet binding on the parties, or it has states/regions/provinces in your country? Please been set aside, permanently or temporarily, by a court at the explain. place of arbitration, or by a court in the jurisdiction, the law of which has been applied in determining the subject matter No, the rules are the same across Norway. in dispute.
The courts shall, of their own accord, refuse recognition and 2.13 What is the relevant limitation period to recognise and enforcement of an arbitral award if: enforce a foreign judgment? a) the dispute would not have been capable of being determined by arbitration under Norwegian law; or There is no such limitation period under Norwegian law. However, b) recognition or enforcement of the arbitral award would be the judgment must be enforceable under the rules of the country of contrary to public policy (ordre public). origin, which might include limitation periods. If a legal action for the setting aside of an arbitral award has been brought before a court, the court may postpone the ruling on recognition and enforcement if it deems such postponement to be 3 Special Enforcement Regimes Applicable appropriate. The court may in such case, at the request of the party to Judgments from Certain Countries demanding recognition or enforcement, order the opposite party to provide security. 3.1 With reference to each of the specific regimes set out in question 1.1, what requirements (in form and 2.8 What, if any, is the relevant legal framework applicable substance) must the judgment satisfy in order to be to recognising and enforcing foreign judgments recognised and enforceable under the respective relating to specific subject matters? regime?
There are none applicable except the special regimes set out in The Lugano Convention is the most important regime in relation to section 3. enforcement of civil judgments in Norway and it will render most other conventions obsolete. We will not comment upon the specifics on the other regimes as they generally follow the general regime of 2.9 What is your court’s approach to recognition and Norwegian jurisdiction. However, cases that fall outside the scope of enforcement of a foreign judgment when there is: (a) a the Lugano Convention, either due to jurisdiction or subject matter, can conflicting local judgment between the parties relating be enforced in Norway if it falls within one of the other conventions to the same issue; or (b) local proceedings pending between the parties? listed in section 1. In particular, we can mention that the convention between the UK and Norway might become relevant due to Brexit. a) There are no rules regarding conflicting judgments under Convention on jurisdiction and the enforcement of judgments Norwegian internal law. There is no case law on the question in civil and commercial matters of 30 October 2007 (the Lugano outside the scope of the Lugano Convention, ref. question 3.4. Convention 2007) b) Norwegian courts shall dismiss a claim pending before the A judgment is any judgment given by a court or tribunal of a state courts when the same claim has been decided by a foreign bound by the convention, whatever the judgment may be called court/arbitration panel, provided that the judgment/award (decision, decree, order, etc.). from that foreign court/panel shall be recognised in Norway. Such pending Norwegian proceedings should therefore not The judgment must be given in a civil or commercial case. The affect the recognition and/or enforcement of the foreign convention does not cover revenue, customs or administrative judgment/award. matters. Furthermore, it does not cover arbitration, social security, bankruptcy, status/capacity of natural persons and rights in property arising out of matrimonial relationships, wills and successions. 2.10 What is your court’s approach to recognition and enforcement of a foreign judgment when there is a conflicting local law or prior judgment on the same or 3.2 With reference to each of the specific regimes set out a similar issue, but between different parties? in question 1.1, does the regime specify a difference between recognition and enforcement? If so, what is Foreign judgments/awards will not be recognised if it is contrary the difference between the legal effect of recognition to Norwegian mandatory laws or offensive to the Norwegian and enforcement? legal system, ref. question 2.7 above. However, recognition and enforcement of a foreign judgment/award will normally not be Convention on jurisdiction and the enforcement of judgments affected by a conflicting Norwegian law or Norwegian judgment in civil and commercial matters of 30 October 2007 (the Lugano between different parties, due to the foreign judgment/award not Convention 2007) being subject to any re-trial in Norway. The legal effect of recognition is that the legal effect of the foreign
158 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Simonsen Vogt Wiig Norway
judgment is extended to Norway and that Norwegian courts shall ■ the judgment is irreconcilable with a judgment given in a apply the result without any re-trial of the relevant issue. dispute between the same parties in Norway; Enforcement of foreign judgments implies that Norwegian ■ the judgment is irreconcilable with an earlier judgment given authorities will force the debtor to fulfil the judgment in accordance in another state, involving the same cause of action and with applicable Norwegian rules for enforcement. between the same parties, if the judgment can be recognised/ enforced in Norway; or ■ the judgment is given in violation of certain jurisdiction 3.3 With reference to each of the specific regimes set clauses in the convention. out in question 1.1, briefly explain the procedure for recognising and enforcing a foreign judgment. The enforcement proceedings might be postponed, by the request of the defendant, if appeal has been rendered against the foreign judgment in the state of origin. Norway Convention on jurisdiction and the enforcement of judgments in civil and commercial matters of 30 October 2007 (the Lugano Convention 2007) 4 Enforcement Recognition of judgments under the regime shall be automatic without any particular procedure. 4.1 Once a foreign judgment is recognised and enforced, For a judgment under the regime to be enforceable in Norway, a what are the general methods of enforcement Norwegian court first needs to declare it enforceable after a petition available to a judgment creditor? from a relevant party. An authorised copy of the judgment shall be presented to the court. A challenge to the enforcement, ref. question The enforcement of monetary claims are initiated by application 3.4 below, can only be made through appeal, i.e. not during the to the Execution and Enforcement Commissioner in the district of proceedings to get the declaration. The enforcement proceedings the debtor and/or the debtor’s assets. The enforcement is generally are thereafter carried out in accordance with the general regime, ref. carried out through attachment proceedings in the assets of the question 2.6 above. debtor and thereafter through a forced sale of the goods. The party seeking enforcement must give a procedural address within Norway or be represented by the Norwegian counsel. 5 Other Matters
3.4 With reference to each of the specific regimes set out in question 1.1, on what grounds can recognition/ 5.1 Have there been any noteworthy recent (in the last enforcement of a judgment be challenged under the 12 months) legal developments in your jurisdiction special regime? When can such a challenge be made? relevant to the recognition and enforcement of foreign judgments? Please provide a brief description. As previously stated, foreign judgments can only be recognised and enforced in Norway by means of law or international agreement, There have been no recent noteworthy developments. which sets the conditions for recognition and enforcement. Thus, the conditions for recognition and enforcement are individually 5.2 Are there any particular tips you would give, or stated in each convention or law. critical issues that you would flag, to clients seeking Convention on jurisdiction and the enforcement of judgments to recognise and enforce a foreign judgment in your in civil and commercial matters of 30 October 2007 (the Lugano jurisdiction? Convention 2007) Recognition/enforcement can be challenged on the following Norwegian courts are quite effective, and accept judgments/arbitral grounds: awards rendered in Norwegian, Swedish and Danish. The courts also accept arbitral awards rendered in English, and will often ■ recognition/enforcement is manifestly contrary to public make the same exception for foreign judgments (provided that all policy in Norway; parties understand English). For foreign creditors, that rarely have a ■ the judgment was given in default of appearance and the procedural address within Norway, it will often be a requirement to be defendant was not enabled to arrange for a defence; represented by Norwegian counsel.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 159 Simonsen Vogt Wiig Norway
Tage Brigt A. Skoghøy Ørjan Salvesen Haukaas Simonsen Vogt Wiig Simonsen Vogt Wiig Filipstad Brygge 1 Filipstad Brygge 1 0125 Oslo 0125 Oslo Norway Norway
Tel: +47 975 27 279 Tel: +47 988 76 089 Email: [email protected] Email: [email protected] URL: www.svw.no/en URL: www.svw.no/en Norway Tage Brigt A. Skoghøy handles disputes within various industries and Ørjan Salvesen Haukaas works in the department for dispute branches of jurisprudence, including real estate/contracting, shipping, resolution and litigation. He has extensive experience in litigation aviation, IT/telecoms and banking. He has considerable expertise in before the courts and with enforcement of claims, including preliminary handling disputes and pleading cases before the Norwegian ordinary injunctions and attachment proceedings. He works in several areas courts as well as the Norwegian Market Council and arbitration of business and law, and has particular expertise with technology courts, including injunctions and arrest proceedings, cases before the disputes and disputes in international affairs. Haukaas is admitted to enforcement authority/court and mediation in and out of court. the Supreme Court.
Simonsen Vogt Wiig is a leading commercial law firm with offices in the largest cities in Norway as well as an office in Singapore. Our 180 lawyers provide assistance within all major business sectors, and build lasting relationships with our clients by combining a thorough business understanding with top legal expertise. High quality in all segments is the leading principle for our activity. We arrange for relevant and efficient communication and assistance to our clients by focusing on cooperation and full availability. We have the capacity of being specialised and at the same time versatile, and have the expertise to solve the most demanding issues and the largest assignments.
160 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Chapter 30
Portugal Nuno Albuquerque
N-Advogados & CM Advogados Filipa Braga Ferreira
1 Country Finder Applicable Law/ Relevant Corresponding Statutory Regime Jurisdiction(s) Section Below Succession Regulation: 1.1 Please set out the various regimes applicable Regulation (EU) no to recognising and enforcing judgments in your 650/2012, of 4 July jurisdiction and the names of the countries to which 2012, of the European such special regimes apply. Parliament and of the Council on jurisdiction, applicable law, recognition All countries within Section 3. Applicable Law/ Relevant Corresponding and enforcement of the EU. Statutory Regime Jurisdiction(s) Section Below decisions and acceptance and enforcement of Portuguese Code of Civil authentic instruments Procedure: All countries to in matters of succession Portuguese Code of which none of the and on the creation of a Civil Enforcement below specific Section 2. European Certificate of Proceedings and statutes/regulations Succession. Corresponding Case apply. Law. Lugano Convention: Brussels I Bis Convention on jurisdiction and the recognition and Switzerland, Norway Regulation: Section 3. enforcement of judgments and Iceland. EU Regulation no in civil and commercial 1215/2012, of 12 matters, of 21 December All countries within December 2012, Section 3. 2007. on jurisdiction and the EU. the recognition and New York Convention: enforcement of judgments New York Convention All signatory in civil and commercial on the Recognition and Section 3. matters. Enforcement of Foreign countries. Brussels II Bis Arbitral Awards of 10 June Regulation: 1958. Council Regulation Washington Convention: (EC) no 2201/2003, Convention on the All signatory of 27 November 2003, All countries within Settlement of Investment Section 3. Section 3. countries. on jurisdiction and the EU. Disputes Between States the recognition and and Nationals of Other enforcement of judgments States, of 18 March 1965. in matrimonial matters and matters of parental responsibility. Insolvency Regulation: 2 General Regime Regulation (EU) no 848/2015, of 20 November All countries within Section 3. 2.1 Absent any applicable special regime, what is the legal 2015, of the European the EU. Parliament and of the framework under which a foreign judgment would be Council on insolvency recognised and enforced in your jurisdiction? proceedings. Besides the regulations and conventions stated in question 1.1, in the Portuguese jurisdiction, the recognition and enforcement of foreign judgments is stated in the Civil Procedure Code (Código do
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 161 N-Advogados & CM Advogados Portugal
Processo Civil), Book V, Special forms of procedure, Title XIV, The ■ The defendant has been regularly summoned for the action, Foreign Judgment Review, article 978 et seq., and supplemented under the law of the country of the court of origin, and that in by relevant case law on the numerous matters on which the codes the proceedings, the principles of the adversary and equality remain silent. In a civil law jurisdiction such as Portugal, case law of the parties have been observed. is not binding but is highly persuasive on lower courts. ■ The judgment cannot contain a decision whose recognition leads to a result manifestly incompatible with the principles of the international public order of the Portuguese State. 2.2 What constitutes a ‘judgment’ capable of recognition and enforcement in your jurisdiction? 2.4 What (if any) connection to the jurisdiction is required for your courts to accept jurisdiction for recognition As stated in article 980 of the Civil Procedure Code, a judgment Portugal and enforcement of a foreign judgment? capable of recognition and enforcement under the Portuguese jurisdiction has to fulfil the following requirements: A connection to the jurisdiction of the foreign judgment is not ■ the judgment has to be authentic; required. ■ the judgment has to be final in accordance with the law of the country in which it was issued; ■ it has to come from a foreign court whose jurisdiction has not 2.5 Is there a difference between recognition and been provoked in violation of the law and is not subject to the enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? exclusive jurisdiction of the Portuguese courts; ■ the exception of lis pendens or res judicata cannot be invoked The Portuguese jurisdiction distinguishes between recognition and with reason in case it affects the Portuguese court, except if it was the foreign court that prevented the jurisdiction; enforcement of judgments. ■ the defendant has been regularly summoned for the action, The recognition is a process that gives the same effects to the under the law of the country of the court of origin, and that in judgment in Portugal as it does in the State where it was produced the proceeding the adversarial principles and the equality of (the State in which enforcement is petitioned by any of the parties). the parties have been observed; and This happens by introducing into the Portuguese legal order the ■ it does not contain a decision whose recognition leads to a same situation that was established in the legal order of the State result manifestly incompatible with the principles of the of origin. international public order of the Portuguese State. On the other hand, enforcement means that a judgment can be executed before a Portuguese court, allowing the party to act 2.3 What requirements (in form and substance) must a coercively against the debtor in Portugal. foreign judgment satisfy in order to be recognised In practice, creditors seeking to recover a claim in Portugal will seek and enforceable in your jurisdiction? an enforcement order (termed an “exequatur”).
For a foreign judgment to be recognised and enforced in Portugal, it has to pass through a formal recognition process called “exequatur”. 2.6 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. In order to start this process, the party must first file a claim. That claim should be accompanied by the original or a certified copy of The exequatur procedure, as described in question 2.3, will take the following documents: place at the Court of Second Instance (Tribunal da Relação), of the ■ The foreign judgment, duly legalised or apostilled. registered domicile of the defendant, which is the competent court ■ The date when the decision was rendered in default. in Portugal to deal with this kind of process. ■ A document verifying that the defendant was notified with a However, if the judgment in question is an arbitral award, the summoning order. competent court will be the First Instance Court (Tribunal da Primeira ■ A document attesting that the ruling is final and enforceable Instância). Besides, Article III of the New York Convention in the country of origin. prescribes that the procedure for recognition and enforcement of ■ Translations of the documents. foreign arbitral judgments follows the same procedure as judicial ■ Proof of power of attorney. judgments as stated in the Civil Procedure Code. In addition to this, the judgment has to meet the requirements stated in The Portuguese system of recognition of foreign judgments is a article 980 of the Civil Procedure Code, as mentioned in question 2.2: formal system in which the court limits its activity to the verification ■ There should be no doubt regarding the authenticity of the of the compliance of the judgment with the form requisites document containing the judgment or the intelligence of the (regularity requirements). decision. To recognise a foreign judgment, in accordance with articles 978 to ■ The judgment has to be final in accordance with the law of the 985 of the Civil Procedure Code, the main phases are the following: country in which it was issued. ■ The claim (petição inicial). ■ The judgment has to come from a foreign court whose ■ A preliminary analysis of the claim will be made by the Court, jurisdiction has not been provoked as a consequence of fraud to check it obeys the legal requisites for the process to proceed. and is not a matter with the exclusive competence of the ■ If the claim obeys the conditions, the defendant is cited to Portuguese courts. present its statement of defence (contestação). ■ The exception of lis pendens or res judicata cannot be invoked ■ Following the presentation of the statement of defence by to question the jurisdiction of the Portuguese court, except if the defendant, if any matter arises that deserves a response it was the foreign court which prevented the jurisdiction. from the claimant, there will be place for a written response (resposta).
162 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 N-Advogados & CM Advogados Portugal
■ Once the written statements are finished, the parties and the relies upon its sovereign prerogatives (typically tax and criminal Public Ministry have 15 days to plead and there is a trial and judgments), cannot be recognised and enforced in Portugal. decision. Also, as an exception, we can point to the multilateral conventions ■ The decision can be subject to appeal if any of the parties to which Portugal is a party, that contain specific provisions as to do not agree with the decision and comply with the legal recognition and enforcement, such as those stated in question 1.1. requisites to appeal. In order to enforce the judgment, the creditor must summon the other party before the court of the opposing party’s domicile or the court 2.9 What is your court’s approach to recognition and enforcement of a foreign judgment when there is: (a) a of the place where the enforcement is contemplated. The decision conflicting local judgment between the parties relating will be made by a single judge, after a period of exchange of written to the same issue; or (b) local proceedings pending submissions and a hearing. The parties must be represented by a between the parties? Portugal lawyer. The claim is to be accompanied by the following documents: As stated above in question 2.7, Portuguese courts only make a ■ a copy of the decision; formal revision of foreign judgments. ■ proof of power of attorney; and Therefore, courts cannot appreciate the merits of the judgment, so if ■ other documents that are considered relevant to the the judgment complies with the formal requirements stated in article enforcement proceedings. 980 of the Civil Procedure Code, the judgment must be recognised, unless it is against Portuguese international public order principles. The bailiff or the execution agent proceeds with the enforcement, rendering an order stating the affected parties and the subject A foreign judgment is not recognised and declared enforceable if matter of the enforcement, as well as the investigation and research Portuguese court proceedings are pending before the proceedings on measures aimed to localise the assets of the debtor. Finally, once which the judgment is based are finalised. By contrast, proceedings the assets have been identified, they will be allocated to the creditor. pending before foreign courts are irrelevant. Notifications are performed by bailiffs or execution agents. When the recipient is domiciled abroad, unless provided otherwise by special 2.10 What is your court’s approach to recognition and conventions on international notifications, a special procedure applies. enforcement of a foreign judgment when there is a In case of opposition to the enforcement of the foreign judgment, the conflicting local law or prior judgment on the same or ruling deciding on such opposition can be subject to appeal. In case a similar issue, but between different parties? of dismissal of the enforcement without opposition, it is also possible to appeal such decision before the Appeal Court. In Portugal there is no review of the merits of the judgment. This means that Portuguese courts do not review whether the judgment complies with Portuguese or foreign substantive law. The existence 2.7 On what grounds can recognition/enforcement of a of a conflicting local law or prior judgment between different judgment be challenged? When can such a challenge parties is not relevant, unless it would lead to an incompatibility be made? with international public policy rules, since Portugal is a civil law country and does not use the precedent principle. The Portuguese courts do not review the merits of the judgment, because the process is thought to only verify that formal requirements are fulfilled. Therefore, the recognition and enforcement ofa 2.11 What is your court’s approach to recognition and judgment can only be challenged if it does not comply with the formal enforcement of a foreign judgment that purports to requirements. apply the law of your country? The system for reviewing foreign judgments is shaped by the Portuguese courts cannot review the merits of a foreign judgment, principle of formal review, which is based on the restriction that a even if the foreign court incorrectly applied the law. The revision decision should not be granted if it leads to a result that is manifestly process is limited to verifying whether any of the conclusions or the incompatible with the international public policy principles of the procedure led to a breach of public policy rules. Therefore, there Portuguese State; i.e. principles that derive from a complex of rules, is no particular approach to the recognition and enforcement of a inspired by political, moral and economic factors which are accepted foreign judgment that purports to apply Portuguese law. by a number of nations as an expression of an identical civilisation and culture and which are therefore embodied in the legal order of a number of States with which Portugal has legal affinities, in 2.12 Are there any differences in the rules and procedure line with the Portuguese Constitution (Constituição da República of recognition and enforcement between the various Portuguesa – CRP). states/regions/provinces in your country? Please explain. Thus, the judgment can also be challenged if it is incompatible with international public policy or if it was procured by fraud. Portuguese law applies to the whole Portuguese territory. There are no specific local laws regarding this matter. 2.8 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? 2.13 What is the relevant limitation period to recognise and enforce a foreign judgment? The legal framework for the recognition and enforcement of foreign There is no specific provision regarding the limitation period to judgments normally applies to all subject matters. enforce a foreign judgment. However, claims that have been As an exception to the above, foreign judgments rendered on public declared final and absolute are time-barred after 30 years. matters, i.e. through which the government of a foreign country
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 163 N-Advogados & CM Advogados Portugal
NY Convention: 3 Special Enforcement Regimes Applicable to Judgments from Certain Countries The New York Convention of 1958 is applicable to any arbitral awards that fall within the description of its Article I. This Convention has the purpose of providing a form of proceedings 3.1 With reference to each of the specific regimes set whose purpose is to confer validity and enforceability to a foreign out in question 1.1, what requirements (in form and arbitral award within a specific legal order. substance) must the judgment satisfy in order to be recognised and enforceable under the respective It also prescribes the enforcement of foreign arbitral judgments. regime? However, the execution can only begin after the judgment has become valid and effective; in other words, after having been duly
Portugal The conventions mentioned in question 1.1 above require the recognised. foreign judgment to be final and binding in the country of origin In order to obtain recognition and enforcement, the party shall before being recognised and enforced in another country. Also, the supply the duly authenticated original award or a duly certified copy, foreign judgment must have been rendered by a court of competent the original arbitration agreement or a duly certified copy. jurisdiction according to private international law rules. The Also, if the award or agreement is not made in the official language conventions also require that the defendant must have been properly of the country in which the award is enforced, the party applying for summoned. Below, we give a short summary of the conventions to recognition and enforcement of the award shall translate it into such which Portugal is a signatory and its particularities. language. The translation must be an official or sworn translation. Brussels I Bis Regulation: Washington Convention: Under the Brussels I Bis Regulation, the decisions that can be The Washington Convention of 1965 is applicable to arbitral awards recognised and enforced are on civil and commercial matters. issued by the International Centre for Settlement of Investment The decisions concerning these matters, rendered by any Member Disputes (ICSID), for disputes concerning an investment between a State, will be automatically recognised, without the need for signatory State and a national of another signatory State. exequatur. In order to recognise a judgment, a copy of the award certified by the Also, a judgment given in a Member State which is enforceable in Secretary-General is required. According to paragraph 1 of article that Member State shall be enforceable in the other Member States 54 of the Washington Convention, each Contracting State must without any declaration of enforceability being required. recognise an award rendered within the Convention and enforce Brussels II Bis Regulation: the pecuniary obligations imposed by that award. Therefore, no exequatur will be needed. The enforcement of partial/interim The decisions that can be enforced under Brussels II are those of awards is also possible. matrimonial matters and parental responsibility matters, mainly regarding divorce, nullity of marriage, and rulings on the parental responsibility of the parents. 3.2 With reference to each of the specific regimes set out in question 1.1, does the regime specify a difference It also expressly recognises the possibility of partial enforcement. It between recognition and enforcement? If so, what is reproduces the requirements set out in the Brussels I Bis Regulation, the difference between the legal effect of recognition with minor differences. and enforcement? Insolvency Regulation: Regarding the Insolvency Regulation, the decisions that can be All conventions provide for automatic recognition of foreign enforced are those that comply with the definition provided in judgments, which has the same effects and limitations as described its Article 2, which mainly refers to any resolution issued in the under the general regime. context of an insolvency proceeding. It also expressly refers to the provisions of Brussels I for the enforcement of such judgments. 3.3 With reference to each of the specific regimes set Succession Regulation: out in question 1.1, briefly explain the procedure for recognising and enforcing a foreign judgment. Under Regulation 650/2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession The conventions provide simplified proceedings to obtain and on the creation of a European Certificate of Succession, the enforcement of a foreign judgment. The creditor must summon the decisions that can be enforced are those that comply with the other party before the Court. definition provided in Article 3, paragraph g): any decision ina The claimant shall provide the following documents: matter of succession given by a court of a Member State, and that fall ■ a copy of the foreign judgment together with a translation; within its scope. It is very similar to the Brussels I Bis Regulation, ■ a copy of the notification of the decision to the debtor; and except for some small differences such as interim measures that can ■ a certificate from the foreign court certifying that no appeal be ordered together with the enforcement of the judgment. It also was filed. recognises the possibility of partial enforcement. Lugano Convention: 3.4 With reference to each of the specific regimes set out Under the Lugano Convention, the decisions which ought to be in question 1.1, on what grounds can recognition/ enforced are those that fall within its scope. The requirements are enforcement of a judgment be challenged under the very similar to those required under the Brussels I Bis Regulation, special regime? When can such a challenge be made? except for interim measures, which can be ordered along with the enforcement of the judgment. It also recognises the possibility of According to the conventions listed in question 1.1, enforcement partial enforcement. can be challenged if the form requirements are not fulfilled.
164 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 N-Advogados & CM Advogados Portugal
Recognition and enforcement of foreign arbitral awards can Attachments may be executed on movable or immovable assets, be refused on the grounds set out in Article V of the New York whether tangible or intangible, including real estate, bank accounts, Convention. These include: claims, dividends, royalties, vehicles, etc. ■ lack of a valid arbitration agreement; The debtor can challenge enforcement measures. The case must be ■ violation of the right to be heard; filed before court, where the parties file briefs and appear in court. ■ excess of authority; The judgment confirming or lifting the attachments can be appealed. ■ irregularities in the constitution of the arbitral tribunal or the proceedings; 5 Other Matters ■ lack of a final and binding award;
■ lack of objective arbitrability; and Portugal 5.1 Have there been any noteworthy recent (in the last ■ violation of public policy. 12 months) legal developments in your jurisdiction Beyond these grounds, no further review of the award is possible. relevant to the recognition and enforcement of foreign Particularly, there is no review of the merits of the judgment. judgments? Please provide a brief description. Also, recognition and enforcement will be denied if the judgment conflicts with Portuguese international public policy rules. Not that we are aware of.
5.2 Are there any particular tips you would give, or 4 Enforcement critical issues that you would flag, to clients seeking to recognise and enforce a foreign judgment in your jurisdiction? 4.1 Once a foreign judgment is recognised and enforced, what are the general methods of enforcement available to a judgment creditor? Creditors are aware of the fact that enforcement proceedings in Portugal are generally slow. For instance, in some cases, notifications A judgment creditor can proceed with the enforcement of a can be an extremely slow phase of the process, especially when the judgment, with interim enforcement measures on the basis of a debtor is domiciled abroad. foreign judgment even before beginning recognition/enforcement Additionally, all enforcement-related acts are performed by bailiffs or court proceedings in Portugal, requesting the seizure of assets of the execution agents (agentes de execução). Portuguese execution agents debtor when there is a threat to the recovery of the values in debt. are hired by the parties themselves rather than appointed by the court. In practice, such a threat will result from evidence that the debtor Retaining the services of a competent bailiff is a key part of enforcing is likely to disappear or become insolvent. The interim attachment in Portugal and enhances the likelihood of effective collection. will be executed by a bailiff without prior notice to the debtor and Also, it is important to meet at the outset all the legal requirements without the need for a court order. The assets will automatically set out in the relevant regulation (including any minor procedural be frozen upon service to the asset holder, be it the debtor itself or requirements as to the translation of the ruling into the official a third party. The attachment must then be notified to the debtor language of the State where the judgment is enforced) in order to within eight days and is subject to judicial review. Unless the court avoid relevant delays in the processing of the case. Although in orders the attachments to be lifted, the assets will remain frozen principle these proceedings should be relatively straightforward, for the duration of the enforcement procedure. If the court orders depending on the particularities of the case and the specific legal the enforcement of the foreign judgment, the frozen assets will be framework applicable, they can become more complex to solve. transferred to the creditor.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 165 N-Advogados & CM Advogados Portugal
Nuno Albuquerque Filipa Braga Ferreira N-Advogados & CM Advogados N-Advogados & CM Advogados Rua Domingos do Ó, N.º 61 Rua Bernardo Sequeira, 78, 1st Floor 1º Andar, escritório N.º 13 4715-671 Braga Edifício Acácias Place Portugal Benguela Angola Tel: +351 253 609 310 / 330 Email: [email protected] Tel: +244 926 227 178 / 928 391 751 URL: www.nadv.pt Email: [email protected] URL: www.nadv.pt Portugal Born on July 19, 1964, in Angola. Nuno has a law degree from the Born on September 5, 1981, in Braga, Portugal. Filipa has a law University of Coimbra (1988). Nuno has been inscribed in the Portugal degree from the University of Minho (2004). Between 2007 and Bar Association as a lawyer since 1990, in Angola’s Bar Association 2010, Filipa collaborated with a notary, and is therefore familiarised since 2008 and in Paris’ Bar Association since 2014. He is an with notarial functions. Filipa attended a Short Term Advanced insolvency administrator, and has been inscribed in the official list of Course on Local Authorities in 2005 at the University of Minho. insolvency administrators since 1995. Nuno has been the executive Filipa has been legally qualified to give professional training since director of CAAL – the Angolan arbitration centre for litigation since 2011. Filipa has been inscribed in Portugal’s Bar Association, 2012. He is a certified mediator of public and private mediation at as a lawyer, since 2010, and has worked at N-Advogados – Nuno ICFML, Catholic University, Oporto, as of 2014. He has been an Albuquerque, Deolinda Ribas, Sociedade De Advogados, R.L. since arbitrator for CAAD – Administrative Arbitration Centre and also for then. She has solid experience in advising national and international TAD – Sports Arbitral Court (where he is also Vice-President) since companies and groups, especially in the international market, namely 2015. In 2016, he was also appointed as an arbitrator at the Arbitration in relation to foreign investment, financing agreements, international Centre for Property and Real Estate. Nuno is the founding partner negotiation, the formation process of companies abroad, registration of N-Advogados – Nuno Albuquerque, Deolinda Ribas, Sociedade De of foreign companies, as well as acquisition of national companies or Advogados, R.L. (N-Advogados & CM Advogados), with over 20 years international groups of the company, or of its assets, including national of experience. or international mergers.
N-Advogados & CM Advogados is a global law firm qualified to support individuals and companies, State entities and Economic Groups. With 20 years of experience and professional practice, in both public and private law, litigation and commercial law, N-Advogados & CM Advogados has a set of professionals and technical methods based in solid values of rigour, excellency and dedication to its Clients. N-Advogados & CM Advogados has been developing an internationalisation project through the implementation of offices in other countries, as in France and in the Community of Portuguese Language Countries (Angola and Mozambique), as well as to establish a network of partnerships in some of the main international markets, such as Brazil, Spain, England, Turkey and Israel. N-Advogados & CM Advogados seats its actuation in values such as excellence, independence, professionalism, quality of legal services and competence of its lawyers and collaborators, with respect to the ethical and deontological rules. *** CM Advogados is one of Angola’s leading law firms and a key reference in the country’s legal sector, coupled with strong international partnerships. CM Advogados is a global law firm qualified to provide first-class legal services to individuals, companies, Governments and economic groups in critical and complex aspects of its activities. With more than 25 years of experience and professional legal practice, public and private law and litigation, CM Advogados has a team of professionals acting through solid values of independence, rigorousness, excellence, quality and total dedication and focus on its Clients. CM Advogados has a set of specialised lawyers and consultants, able to respond effectively to the problems presented by those who demand us. Using new technologies allows us to address cases of high complexity and large volumes of documents quickly and effectively. Internally, all documentation is subject to digital computer processing, allowing fast access.
166 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Chapter 31
Russia Konstantin Krasnokutskiy
Lex Navicus Concordia Alexey Drobyshev
1 Country Finder
1.1 Please set out the various regimes applicable to recognising and enforcing judgments in your jurisdiction and the names of the countries to which such special regimes apply.
Applicable Law/Statutory Regime Relevant Jurisdiction(s) Corresponding Section Below Treaty of January 17, 2001 between the Russian Federation and the Republic of Belarus on the order of mutual enforcement of Belarus (economic courts). Questions 3.1(a), 3.2, 3.3 and 3.4. court acts of commercial courts of the Russian Federation and the economic courts of the Republic of Belarus.
Armenia.
Azerbaijan.
Belarus (general courts).
Georgia.
Kazakhstan.
Convention of 22 January, 1993 on legal assistance and legal relations in civil, family Kyrgyzstan. Question 3.1(b). and criminal matters.
Moldova.
Tajikistan.
Turkmenistan.
Ukraine.
Uzbekistan.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 167 Lex Navicus Concordia Russia
Applicable Law/Statutory Regime Relevant Jurisdiction(s) Corresponding Section Below
Croatia. Treaty of February 24, 1962 between the USSR and the Federal People’s Republic FYR Macedonia. of Yugoslavia on legal assistance and legal relations in civil family and criminal matters. Serbia.
Treaty of October 30, 1995 between the
Russia Russian Federation and Republic of Albania Albania. on legal assistance and legal relations in civil, family and criminal matters. Treaty of February 19, 1975 between the USSR and the People’s Republic of Bulgaria Bulgaria. on legal assistance in civil, family and criminal matters. Treaty of June 19, 1992 between the Russian Federation and the People’s Republic of China. China on legal assistance in civil and criminal matters. Treaty of December 14, 2000 between the Russian Federation and the Republic of Cuba Cuba. on legal assistance and legal relations in civil and criminal matters. Treaty of January 19, 1984 between the USSR and the Republic of Cyprus on legal assistance Cyprus. in civil and criminal matters.
Treaty of August 12, 1982 between the USSR Czechia. and the Czechoslovak Socialist Republic on legal assistance and legal relations in civil, family and criminal matters. Slovakia.
Treaty of May 21, 1981 between the USSR and the Greek Republic on legal assistance in Greece. civil and criminal matters. Question 3.1(b). Treaty of January 26, 1993 between the Russian Federation and the Republic of Estonia. Estonia on legal assistance and legal relations in civil, family and criminal matters. Treaty of July 15, 1958 between the USSR and the People’s Republic of Hungary on Hungary. procurement of legal assistance in civil, family and criminal matters. Treaty of October 3, 2000 between the Russian Federation and the Republic of India on legal India. assistance and legal relations in civil and trade matters. Treaty of March 5, 1996 between the Russian Federation and the Islamic Republic of Iran on Iran. legal assistance and legal relations in civil and criminal matters. Convention of January 25, 1979 between the USSR and the Italian Republic on legal Italy. assistance in civil matters. Treaty of February 3, 1992 between the Russian Federation and the Republic of Latvia Latvia. on legal assistance and legal relations in civil, family and criminal matters. Treaty of July 21, 1992 between the Russian Federation and the Republic of Lithuania on Lithuania. legal assistance and legal relations in civil, family and criminal matters. Treaty of April 20, 1999 between the Russian Federation and Mongolia on legal assistance Mongolia. and legal relations in civil and criminal matters. Treaty of December 16, 1957 between the USSR and the People’s Democratic Republic North Korea. of Korea on procurement of legal assistance in civil, family and criminal matters.
168 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Lex Navicus Concordia Russia
Applicable Law/Statutory Regime Relevant Jurisdiction(s) Corresponding Section Below Treaty of September 16, 1996 between the Russian Federation and the Republic of Poland Poland. on legal assistance and legal relations in civil and criminal matters. Treaty of April 3, 1958 between the USSR and the People’s Republic of Romania on Romania. procurement of legal assistance in civil, family and criminal matters. Treaty of October 26, 1990 between the USSR Question 3.1(b). and the Kingdom of Spain on legal assistance Spain. Russia in civil matters. Treaty of June 26, 1984 between the USSR and the Tunisian Republic on legal assistance Tunisia. in civil and criminal matters. Treaty of August 25, 1998 between the Russian Federation and the Socialist Republic Vietnam. of Vietnam on legal assistance and legal relations in civil and criminal matters. Treaty of February 23, 1982 between the USSR and the Peoples Democratic Republic Algeria. of Algeria on reciprocal procurement of legal assistance (Algiers). Treaty of November 20, 2000 between the Russian Federation and the Argentine Republic Argentina. on cooperation and legal assistance in civil, trade, labour and administrative matters. Question 3.1(c). Treaty of June 22, 1973 between the USSR and the Republic of Iraq on reciprocal Iraq. procurement of legal assistance. Treaty of December 6, 1985 between the USSR and the People’s Democratic Republic Yemen. of Yemen on legal assistance in civil and criminal matters.
They provide guidelines for the lower courts on interpretation of 2 General Regime statute (and sometimes effectively create new legal rules). These guidelines are technically not mandatory, but most of them are 2.1 Absent any applicable special regime, what is the almost universally adhered to by lower instance courts, especially legal framework under which a foreign judgment commercial courts. would be recognised and enforced in your jurisdiction? 2.2 What constitutes a ‘judgment’ capable of recognition and enforcement in your jurisdiction? On a statutory level, the legal framework consists of: ■ The Code of Civil Procedure Chapter 45 (hereinafter CCivP, Article 409 (2) CCivP sets out that “Judgments of foreign courts used in general courts); and shall mean judgments in civil cases, except cases on economic ■ The Code of Commercial Procedure Chapter 31 (hereinafter disputes and other cases connected to carrying out business and CComP, used in commercial or Arbitrazh courts, which are other economic activities, criminal judgments in part of recovery not to be conflated with arbitration). of damage dealt by a crime”. CComP does not define a “judgment” The rules of the two procedural codes are, for the most part, similar, and merely refers to “Judgments of foreign courts issued by them in albeit with some differences. disputes and other cases arising in carrying out business and other The Decree of the Presidium of the Supreme Council of the USSR commercial activities”. of June 21, 1988, No. 9131-XI “On recognition and enforcement of Only a final judgment on merits is recognised as a “judgment”, i.e. decisions by foreign courts and arbitrations in the USSR” remains in orders for interim measures (such as Mareva injunctions) are not force with respect to the enforcement of foreign judgments. recognised/enforced. Russian procedural rules must always be read in conjunction with There is no direct statutory answer as to whether decisions that the international treaty underlying the enforcement, since the general approve settlement agreements are subject to recognition and enforcement regime is only implemented if there is an international enforcement. Usually, the courts will refuse the enforcement of treaty providing for such enforcement, and enforcement without a a court decision approving a settlement agreement, unless the treaty (based on reciprocity/comity) is the exception. Where treaty international treaty underlying recognition/enforcement (see section and statutory rules differ, the treaty trumps national law. 3 below) provides for recognition and enforcement of such court In addition to the statute, interpretations of law and digests of court decisions approving settlements. practice issued by the highest courts in Russia, the Supreme Court and the now-defunct Supreme Commercial Court, are also relevant.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 169 Lex Navicus Concordia Russia
■ For recognition without enforcement, no connection 2.3 What requirements (in form and substance) must a to the Russian jurisdiction is needed. Objections against foreign judgment satisfy in order to be recognised recognition (see question 2.5 below) are filed either with and enforceable in your jurisdiction? the court that has territorial jurisdiction over the place of residence or the location of the debtor’s property. If neither As a general rule, a foreign judgment must meet the following exists, the application is filed to the Commercial court of the requirements: city of Moscow (for business disputes) or to the Moscow city court (for non-business disputes). ■ it is a judgment on merits; ■ The application for recognition and enforcement (Article ■ it has entered into force; and 410 CCivP, which just calls it “enforcement”, and Article
Russia ■ it was rendered by a court of a country that has an international 242(1) CComP), the application must be filed to the court treaty with Russia providing for recognition and enforcement of which has territorial jurisdiction over the debtor’s place of each other’s judgment. Absent that, a judgment can be enforced residency or, absent that, the debtor’s property. As such, based on the principles of reciprocity and international comity, it is necessary that the debtor has either their residence or and there are examples of Dutch, English, South Korean, UK property in Russia for a Russian court to accept jurisdiction. and US judgments successfully enforced that way. An application filed to a commercial court must be supplemented with: 2.5 Is there a difference between recognition and 1) a duly certified copy of the judgment; enforcement of judgments? If so, what are the legal 2) a document that was duly certified and which confirms entry effects of recognition and enforcement respectively? of the foreign judgment into force, unless it is set out in the text of the judgment itself; Under Russian law, “recognition” means that the state is giving 3) a document that was duly certified and confirms that the debtor legal force to a foreign judgment, thus expanding its authority into was in a timely manner and properly notified of the proceedings the Russian jurisdiction. “Enforcement” means that the court uses in the foreign court whose judgment is being enforced; its adjudicatory powers to have the judgment executed. After a 4) a power of attorney or another document that is duly certified judgment is enforced by a court, it can issue a writ of execution and and confirms the authority of the person who signed the subsequent recovery can begin with the assistance of the Federal application; Bailiff Service under the corresponding federal law. 5) a document that confirms that a copy of the application was Recognition and enforcement of a foreign judgment are fused into sent to the debtor; a single procedure. 6) duly certified translations of the aforementioned documents; Both procedural codes set apart foreign judgments that do not need and enforcement. These are recognised automatically, but an interested 7) a document confirming the payment of the application fee party, usually the debtor, can submit objections against recognition (3,000 rubles as of early 2018, equivalent to around 50 US dollars). of such judgment. These objections are to be filed within one month after the interested party learnt about the decision (Article 245.1 An application filed to a general court must be supplemented with CComP and Article 413 CCivP). The grounds to object are the same the same documents, with three differences: as the grounds for refusal to recognise/enforce a judgment under a 1) the judgment must be certified by the court that issued it; general procedure (see question 2.7 below). 2) a document on the judgment’s prior enforcement in the Article 415 CCivP also provides for a specific subject-matter based country where it was rendered (if there was such enforcement) list of judgments that are recognised automatically and against is additionally required; and whose recognition no one can object (see question 2.8 below). 3) there is no need to attach a document confirming that a copy of the application was sent to the debtor. The “duly certified” requirement means different things depending 2.6 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. on the document: ■ for the judgment and the document confirming its entry into First, the party that wishes to enforce a judgment files an application force – this is to be court-certified if enforcement is sought in a to the court. The application is usually filed to the court where general court, and legalised/apostilled for commercial courts; recognition/enforcement is sought. Additionally, many of the ■ for translations – this should be notarised; and international treaties Russia has provided for gives the possibility to ■ for other documents – notarised or certified by the entity/ file the application through the court that rendered the judgment that authority that issued them. is being recognised and enforced. All documents that were not produced in Russia must be legalised or The application must be supplemented with documents described in apostilled (Article 255(1) CComP and Article 408(1) CCivP), unless question 2.3 above. Russia has an international treaty with the country in question that lifts this requirement. In practice, even then it is usually safer to After the application was filed, the court notifies the party against legalise/apostille the documents, as Russian courts are generally not whom the judgment was rendered. well-versed in matters of private international law. During the proceedings the court assesses whether there are any grounds to refuse recognition and enforcement of the judgment.
2.4 What (if any) connection to the jurisdiction is required The timeframe for the proceedings is one month for commercial for your courts to accept jurisdiction for recognition courts, and no timeframe at all for general courts. In practice, and enforcement of a foreign judgment? recognition/enforcement proceedings take around three to four months in both commercial and general courts. Russian procedural law differentiates between recognition and After hearing the arguments of the applicant and the debtor, the enforcement (see question 2.5 below). court issues a ruling either refusing recognition and enforcement or
170 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Lex Navicus Concordia Russia
granting. The court will then issue a writ of execution, which can (a) the existence of a conflicting local judgment on the same be used to enforce (or execute) the judgment with the assistance of issue between the same parties constitutes grounds for refusal the Federal Bailiff Service under the Federal law “On enforcement to recognise and enforce a foreign judgment; and proceedings” (see section 4 below). (b) local proceedings are grounds to refuse recognition and enforcement if the local proceedings commenced prior to the initiation of the proceedings in a foreign court whose 2.7 On what grounds can recognition/enforcement of a judgment is submitted for recognition and enforcement. judgment be challenged? When can such a challenge be made? In the event of conflicting local proceedings, if the foreign proceedings that resulted in the judgment in question were the first to commence, there are no grounds to refuse recognition and enforcement. Instead, A Russian court cannot review the judgment on merits. The grounds Russia to refuse a recognition/enforcement are limited to procedural the Russian court shuts down the local proceedings based on Article grounds and public policy. The list includes: 220 CCivP or Article 150(1)(2) CComP, respectively. ■ the judgment has not entered into force; ■ the party against whom the judgment was rendered was not 2.10 What is your court’s approach to recognition and properly, and in a timely manner, notified of the time and enforcement of a foreign judgment when there is a place of the hearing, or could not file its position to court for conflicting local law or prior judgment on the same or other reasons; a similar issue, but between different parties? ■ the dispute was subject to the exclusive jurisdiction of a Russian court; A prior judgment on the same or a similar issue between different parties shall be seen as a different decision without prejudicial ■ there is a Russian judgment taken on a dispute between the same parties and on the same grounds that has entered into effect. However, if the result of the recognition and the enforcement force; of the foreign judgment will lead to a conflict with the prior local judgment (e.g. will lead to double recovery of money from the same ■ there is a case under consideration by a Russian court that is between the same parties and on the same subject matter defendant on the same issue or, will grant (acknowledge) property and the same grounds, and the Russian court was the first to rights (intellectual property rights) with respect to the same piece initiate the proceedings, or to accept a statement of claim; of property to a party different to whom the right had been granted ■ the limitation period for the recognition and enforcement has by the prior local judgment), the prior local judgment will be given expired; and priority. In terms of procedure the local court is likely to refer to the public policy, as the recognition and enforcement would lead to a ■ recognising and enforcing the judgment would be contrary to Russian public policy. conflict with a prior local judgment. Additionally, a Russian court will refuse recognition and enforcement Recognition and enforcement may be refused when there is a if it would prejudice Russian state sovereignty or security (this is conflicting local law, also with reference to the public policy. This expressly listed as grounds for refusal in Article 412(1) CCivP, and would be applicable to cases where the result of the enforcement is seen as a part of public policy by the commercial courts). of the foreign judgment will lead to the violation of imperative regulations of local law.
2.8 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments 2.11 What is your court’s approach to recognition and relating to specific subject matters? enforcement of a foreign judgment that purports to apply the law of your country? Article 415 CCivP sets apart types of judgments that do not require any special procedure to be recognised and against which no The law that was applicable on merits is generally irrelevant in the objections can be raised. These include judgments: recognition and enforcement proceedings. The only caveat is that a judgment that is manifestly incompatible with a provision of Russian ■ regarding the status of a citizen of a state whose court law could be seen by a court as incompatible with Russian public policy. rendered the judgment; Such examples include an overwhelmingly high contractual penalty or ■ on the dissolution or annulment of a marriage between a interest rate (exceeding the amount of debt) or punitive damages. The Russian national and a foreign national, if at the time of the consideration of the case at least one of the spouses lived foreign judgment can be then enforced in part (e.g. the adjudged sum outside Russia; excluding punitive damages, or excluding the contractual penalty). ■ on the dissolution or annulment of a marriage between Russian nationals, if, at the time of the consideration of the 2.12 Are there any differences in the rules and procedure case, both spouses lived outside Russia; and of recognition and enforcement between the various ■ other situations as provided for by federal statute (this states/regions/provinces in your country? Please includes, under Article 160(4) Family Code and divorces explain. between foreign nationals). The procedure for recognition and enforcement is the same throughout the entire country, as the procedural codes, which 2.9 What is your court’s approach to recognition and establish the procedure for recognition/enforcement, are federal enforcement of a foreign judgment when there is: (a) a conflicting local judgment between the parties relating laws. Individual federal subjects (regions) cannot deviate from the to the same issue; or (b) local proceedings pending federal rules of procedure established in the procedural codes. between the parties? The only difference is that CCivP allows general courts in republics within Russia (which are a specific type of federal subject) to have These issues are directly regulated by Article 244(1)(5) CComP the proceedings not in Russian, but in the other language(s) of that and Article 412(1)(4) CCivP, respectively, which provide for an identical regime. Under this regime:
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 171 Lex Navicus Concordia Russia
republic (e.g. Chechen in the Chechnya Republic or Tatar in the Republic of Tatarstan). 4 Enforcement
2.13 What is the relevant limitation period to recognise and 4.1 Once a foreign judgment is recognised and enforced, enforce a foreign judgment? what are the general methods of enforcement available to a judgment creditor? The application for recognition and enforcement is to be filed within three years after the foreign judgment in question has entered into After the judgment is recognised and enforced, the party who force. This timeframe can be restored by the enforcing court if it enforced the judgment can obtain a writ of execution from the court
Russia finds the reasons for the applicant missing the deadline legitimate. that enforced the judgment. This writ of execution can be submitted to the Federal Bailiff Service, which can proceed to look for assets of the debtor and enforce the judgment. The procedure is conducted 3 Special Enforcement Regimes Applicable under a separate federal law on enforcement proceedings. to Judgments from Certain Countries The bailiffs can order banks to freeze and later seize money on the debtor’s accounts, they can order for other properties of the debtor to be judicially sold, and it is possible to ban the debtor (if they are 3.1 With reference to each of the specific regimes set a natural person) to leave Russian territory. out in question 1.1, what requirements (in form and substance) must the judgment satisfy in order to be Close interaction with bailiffs during the enforcement (or, more recognised and enforceable under the respective accurately, “execution”) of the judgment through local lawyers is regime? advisable, as the proceedings are likely to take an unduly long time otherwise. a) A Belarusian economic court judgment requires no special recognition and enforcement procedure. The same applies for writs of execution at the following enforcement stage. 5 Other Matters b) With respect to these countries, judgments that can be recognised/enforced include judgments on merits, decisions approving settlement agreements, and criminal judgments in 5.1 Have there been any noteworthy recent (in the last the part that orders to recover damages. 12 months) legal developments in your jurisdiction relevant to the recognition and enforcement of foreign c) The notion of a “judgment” that is capable of recognition/ judgments? Please provide a brief description. enforcement with respect to these countries does not include decisions approving settlement agreements. While there have been no significant legal developments in Russia regarding recognition/enforcement of foreign judgments, the 3.2 With reference to each of the specific regimes set out Supreme Court rendered a decision in February 2017 where it in question 1.1, does the regime specify a difference recognised that a foreign (in this case – Kazakh) judgment ordering between recognition and enforcement? If so, what is a Russian military installation to pay customs payments is not the difference between the legal effect of recognition subject to recognition and enforcement in Russia. and enforcement? The Supreme Court ruled that the judgment violated public policy Belarusian economic court judgments require no recognition and because of the following: are enforced in the same manner as the Russian judgments. ■ it was rendered in a public dispute; ■ it violated the Russian-Kazakh treaties providing for duty- free transfer of items between Russian military installations 3.3 With reference to each of the specific regimes set (one of them was located in Kazakhstan’s territory); and out in question 1.1, briefly explain the procedure for recognising and enforcing a foreign judgment. ■ Russian and Kazakh treaties providing for enforcement of foreign judgments only deal with private law judgments, and an express consent of the state is required for judgments No special procedure is required for a Belarusian economic court against its public fund to be recognised and enforced. judgment. This ruling of the Supreme Court made it into the digest of court practice of the Supreme Court for the second quarter of 2017 3.4 With reference to each of the specific regimes set out (approved by the Presidium of the Supreme Court on April 26, 2017). in question 1.1, on what grounds can recognition/ enforcement of a judgment be challenged under the special regime? When can such a challenge be made? 5.2 Are there any particular tips you would give, or critical issues that you would flag, to clients seeking Since Belarusian economic court judgments are not subject to any to recognise and enforce a foreign judgment in your jurisdiction? control by the Russian courts, their recognition/enforcement cannot be challenged. The only way for the debtor to combat the enforcement would be to prove that the documents issued by the Belarusian court There are four issues to be wary of when enforcing a foreign do not contain all the data necessary under Belarusian procedural law judgment. and the Russian enforcement law (section 4 below). Firstly, it is a proper notification. In international proceedings, if a party against whom the judgment is rendered comes from a country that is party to the 1965 Hague Convention on the Service Abroad of
172 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Lex Navicus Concordia Russia
Judicial and Extrajudicial Documents, a Russian court will generally Thirdly, an occasional ground for refusal to recognise and enforce a require that the defendant was served under the rules of the Hague judgment is public policy. Convention. Special care must be taken if the foreign judgment is Russian courts tend to expand the notion of public policy way beyond rendered against a Russian party. international public policy or fundamental principles of the Russian A lack of proper notification, or a party being otherwise unable to legal system. Much like with arbitral awards, the recognition of a present its case, is by far the most common grounds for refusal to foreign judgment will often be refused by a Russian court if there recognise and enforce a foreign judgment. was any sort of public element to the dispute, or if its enforcement Secondly, Russia views sovereign immunity as a ground to refuse would result in the violation of administrative rules set to protect the recognition and enforcement. state budget (such as currency exchange rules). Russia has not ratified the UN Convention on Jurisdictional Finally, Russian courts will occasionally enforce foreign judgments Russia Immunities of States and their Property. However, in addition to this based on the 1958 Convention on Recognition and Enforcement of Convention being applied as custom, Russia partially incorporated it Foreign Arbitral awards. While such decisions by Russian courts into the national legislation by adopting the Federal Law dd. November are manifestly erroneous, some of them remain upheld by the higher 3, 2015 No. 297-FZ “On Jurisdictional Immunities of a Foreign State courts. and a Foreign State’s Property in the Russian Federation”.
Konstantin Krasnokutskiy Alexey Drobyshev Lex Navicus Concordia Lex Navicus Concordia Orlovskaya str. 1-A, office 31 Orlovskaya str. 1-A, office 31 191124 St. Petersburg 191124 St. Petersburg Russia Russia
Tel: +7 812 640 0798 / +7 495 640 0798 Tel: +7 812 640 0798 / +7 981 954 3102 Email: [email protected] Email: [email protected] URL: www.navicus.ru URL: www.navicus.ru
Konstantin is the founder and managing partner of Lex Navicus Alexey joined Navicus as an associate in 2017 and specialises Concordia law firm, and specialises in maritime law and insurance, in international trade and in domestic and international dispute commercial litigation and arbitration. resolution. He has advised shipping and logistics companies, P&I clubs, and software companies on Russian commercial law and on Konstantin started his legal practice in 2005 in commercial and international arbitration. Alexey authors a number of publications on maritime law and has since then been involved in Russia’s major arbitration, Russian procedural law, and international investment law. maritime disputes, including those concerning oil spills and collisions in ice, with the involvement of nuclear ice-breakers on the Northern Alexey is an associate member at the Chartered Institute of Arbitrators Sea Route, as well as the largest maritime casualty in recent Russian (ACIArb) and a member of the the YIAG and RAA40. He holds history that concerned a collision of a vessel with an onshore oil Bachelor of Laws and Master of Laws degrees from St. Petersburg terminal. Konstantin has advised P&I Clubs about changes in Russian State University, and another Master of Laws from Uppsala University law and has given presentations for Clubs’ staff. He has taken part in in Sweden. numerous shipping and legal conferences. Konstantin is an associate member of the Chartered Institute of Arbitrators (ACIArb), and speaks English, Russian and Greek.
Lex Navicus Concordia, or simply Navicus, is a St. Petersburg-based boutique specialising primarily in maritime and commercial law. The firm’s lawyers have extensive experience in commercial litigation and arbitration, international trade, transport, insurance, foreign investment, commercial disputes, corporate and financial crime. Although based in St. Petersburg, the firm also practises in Moscow and the Russian regions. Navicus has associated lawyers in Moscow, in the Russian Far East, and Rostov-on-Don. The firm has an associated office in Ukraine, Black Sea Law Company. Navicus is a member of the Shiparrested.com network (an affiliation of hundreds of top-practicing lawyers from more than 100 countries) and hosted the 2017 annual members conference. The firm’s clients are predominantly foreign shipping, trade, venture companies, banks and P&I clubs. Navicus aims to provide high-quality service, and the firm’s team has a profound knowledge of doing business in Russia.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 173 Chapter 32
Singapore Tan Xeauwei
Allen & Gledhill LLP Melissa Mak
1 Country Finder 2 General Regime
1.1 Please set out the various regimes applicable 2.1 Absent any applicable special regime, what is the to recognising and enforcing judgments in your legal framework under which a foreign judgment jurisdiction and the names of the countries to which would be recognised and enforced in your such special regimes apply. jurisdiction?
Applicable Law/ Relevant Corresponding Outside any applicable statutory scheme, a foreign judgment may Statutory Regime Jurisdiction(s) Section Below generally be recognised and enforced in Singapore under common United Kingdom, law by commencing an action for the judgment debt, on the basis Australia, New that the foreign judgment creates an obligation on the part of the Zealand, Sri Lanka, judgment debtor to make a payment. The obligation to pay the Malaysia, Pakistan, Reciprocal debt in Singapore is distinct from the original cause of action in the Hong Kong (for Enforcement of judgments obtained foreign court of origin. Commonwealth up till 30 June 1997), Section 3. Judgments Act (Cap As this is an original action commenced in Singapore, the judgment Windward Islands, 264, 1985 Rev. Ed.) creditor must establish the Singapore court’s jurisdiction over the Brunei Darussalam, (“RECJA”). Papua New Guinea, judgment debtor. This requirement will often be satisfied; if the India (except the judgment debtor is not in Singapore, service of the originating process states of Jammu and out of jurisdiction will be permissible with the leave of court for claims Kashmir). brought to enforce any judgment. Please refer to question 2.4 below. Hong Kong Special Once a judgment is obtained from the Singapore court, it may be Reciprocal Administrative Enforcement of Region of the enforced. The modes of execution include writs of seizure and sale, Foreign Judgments People’s Republic of Section 3. garnishee orders and applications for examination of judgment Act (Cap 265, 2001 China (for judgments debtors. Rev. Ed. (“REFJA”). on or after 1 July 1997) (“HKSAR”). Maintenance 2.2 What constitutes a ‘judgment’ capable of recognition New Zealand, United Orders (Reciprocal and enforcement in your jurisdiction? Kingdom, Manitoba, Enforcement) Act Sections 2 and 3. HKSAR and (Cap 169, 1985 Rev. Australia. In respect of recognition and enforcement under the RECJA, Ed.) (“MOREA”). REFJA, MOREA or CCAA, such a judgment would be one that is Austria, Belgium, obtained in a jurisdiction which is (1) a party to the RECJA, REFJA, Bulgaria, Croatia, Cyprus, Czech MOREA or CCAA, and (2) satisfies the criteria under the respective Republic, Estonia, statutes. Please refer to section 3 below. Finland, France, In respect of recognition and enforcement under common law, the Germany, Greece, Choice of Court Hungary, Ireland, judgment would have to satisfy the criteria in question 2.3 below. Agreements Act Italy, Latvia, Sections 2 and 3. (Cap 39A, 2016 Ed.) Lithuania, (“CCAA”). Luxembourg, Malta, 2.3 What requirements (in form and substance) must a The Netherlands, foreign judgment satisfy in order to be recognised Poland, Portugal, and enforceable in your jurisdiction? Romania, Slovakia, Slovenia, Spain, To be enforceable at common law, a foreign judgment must be: (a) Sweden, United from a court of competent jurisdiction (in the conflicts of laws sense) Kingdom, Mexico. in the foreign country, (b) final and conclusive on the merits by the law of that country, and (c) for a fixed or ascertainable sum of money.
174 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Allen & Gledhill LLP Singapore
As for the recognition of a foreign judgment, the requirements are the same as that for enforcement, except that there is no requirement 2.7 On what grounds can recognition/enforcement of a for the judgment to be for a fixed or ascertainable sum of money. judgment be challenged? When can such a challenge be made?
2.4 What (if any) connection to the jurisdiction is required Where recognition or enforcement of a foreign judgment is sought for your courts to accept jurisdiction for recognition under the common law, and assuming the requirements set out in and enforcement of a foreign judgment? question 2.3 have been satisfied, the defendant may challenge the action on the following grounds: In respect of recognition and enforcement under the RECJA, (a) the foreign judgment had been procured by fraud; REFJA, MOREA or CCAA, the Singapore court will accept jurisdiction if the judgment was obtained in a jurisdiction specified (b) enforcement or recognition would be contrary to Singapore’s Singapore public policy; in the RECJA, REFJA, MOREA or CCAA (as the case may be). (c) enforcement or recognition would be tantamount to the direct In respect of recognition and enforcement under common law, or indirect enforcement of foreign penal, revenue or other the Singapore court has to have in personam jurisdiction over the public laws; or judgment debtor in respect of an action for the judgment debt. The (d) the foreign judgment had been obtained in breach of natural Singapore court will have in personam jurisdiction if the judgment justice. debtor is validly served with the originating process in Singapore, or is validly served outside Singapore with the leave of court. The If enforcement is resisted on these grounds, they should be set Singapore court will also have in personam jurisdiction if the out in the Defence filed by the judgment debtor in response to the judgment debtor submits to its jurisdiction. Statement of Claim. For grounds on which recognition and enforcement can be challenged and set aside under the various statutory regimes, please 2.5 Is there a difference between recognition and refer to question 3.4 below. enforcement of judgments? If so, what are the legal effects of recognition and enforcement respectively? 2.8 What, if any, is the relevant legal framework applicable Recognition of a foreign judgment means that the claim which to recognising and enforcing foreign judgments forms the subject matter of that judgment, as adjudicated before the relating to specific subject matters? foreign court, will be regarded as having been fully determined. Enforcement of a foreign judgment means that the judgment can be The common law does not draw any distinction between foreign executed as though it were a local judgment. judgments relating to specific subject matters. Recognition per se of a judgment does not entitle the judgment There are two statutory regimes for the recognition and/or creditor to enforce the judgment. Recognition is, however, a pre- enforcement of foreign judgments that apply only to specific subject requisite to enforcement. matters: (a) The CCAA applies to international civil or commercial Typically, recognition is used to bar further action on the same disputes, and does not extend to personal law matters such facts between the same parties (i.e., to raise an estoppel), while as family law, succession and probate, insolvency or personal enforcement is used in order to execute the judgment in the forum injury. Tortious claims that do not arise from contracts, claims and obtain payment. relating to the validity of or (non-contractual) infringement of intellectual property rights (other than copyright and related rights), and anti-trust matters are also excluded. 2.6 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. (b) The MOREA provides a statutory basis for the reciprocal enforcement of maintenance orders in Singapore. Under the common law, the party seeking both recognition and enforcement would have to commence a fresh action for the 2.9 What is your court’s approach to recognition and judgment debt. This would require service of the originating process enforcement of a foreign judgment when there is: (a) a (a Writ of Summons and Statement of Claim) on the judgment conflicting local judgment between the parties relating creditor. The judgment debtor may then enter an appearance and to the same issue; or (b) local proceedings pending between the parties? file a Defence in the proceedings. If the claim is a straightforward one, as a matter of practice, the For (a), if there are two conflicting judgments between the parties judgment creditor may typically apply for summary judgment (i.e., relating to the same issue, the general rule would be that the first to obviate the need for a full trial). in time prevails and creates an estoppel against the recognition of A judgment that may be enforced through registration under the the later judgment. If there is a prior conflicting local judgment RECJA may be enforced through a common law action, but the between the parties relating to the same issue, the foreign judgment judgment creditor will not be entitled to recover the costs of the action will not be recognised or enforced. unless an application to register the judgment under RECJA has been For (b), if there are local proceedings pending, the Singapore court refused, or the Singapore court orders otherwise. The Singapore court is likely to accord primacy to a prior foreign judgment between the will not entertain any proceedings for the recovery of a sum payable parties which may be recognised under Singapore law. A foreign under a foreign judgment which may be registered under the REFJA. judgment between the same parties relating to the same issues would give rise to the defence of estoppel.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 175 Allen & Gledhill LLP Singapore
2.10 What is your court’s approach to recognition and 3 Special Enforcement Regimes Applicable enforcement of a foreign judgment when there is a to Judgments from Certain Countries conflicting local law or prior judgment on the same or a similar issue, but between different parties? 3.1 With reference to each of the specific regimes set Even if there is a conflicting local law or prior judgment on the out in question 1.1, what requirements (in form and substance) must the judgment satisfy in order to be same or similar issue, there will be no estoppel if the local law or recognised and enforceable under the respective prior judgment concerns different parties and is not binding on the regime? present parties. In such circumstances, as long as the requirements for recognition and/or enforcement are met, the Singapore court will
Singapore RECJA ordinarily not reopen the legal or factual merits of the claim which led to the issuance of the foreign judgment. The judgment must be issued by a superior court and be a judgment or order whereby any sum of money is made payable. This includes an arbitration award if the award has, under the law in force in the 2.11 What is your court’s approach to recognition and place where the award was made, become enforceable in the same enforcement of a foreign judgment that purports to manner as a judgment given by a court in that place. apply the law of your country? The RECJA does not apply to any judgment which may be A foreign judgment that purports to apply the laws of Singapore is recognised or enforced under the CCAA. still a judgment of a foreign court. The ordinary rules applicable to REFJA the recognition and/or enforcement of foreign judgments will apply. The Act applies to any judgment or order given or made by a superior court (as specified by an order by the Minister published in 2.12 Are there any differences in the rules and procedure the Government Gazette), in any civil proceedings, or a judgment or of recognition and enforcement between the various order given or made by a court in any criminal proceedings for the states/regions/provinces in your country? Please payment of a sum of money in respect of compensation or damages explain. to an injured party. The judgment must be final and conclusive as between the parties, No. There is only one uniform system of law that applies across and the sum payable thereunder cannot be in respect of taxes or Singapore. other charges of a like nature or in respect of a fine or other penalty. A judgment shall be deemed to be final and conclusive 2.13 What is the relevant limitation period to recognise and notwithstanding that it is subject to appeal. enforce a foreign judgment? The REFJA does not apply to any judgment which may be recognised or enforced under the CCAA. Since a common law action for the enforcement of a foreign CCAA judgment is an action on an implied debt, it will be subject to the The recognition and enforcement regime under the Act extends limitation period of six years under section 6(1)(a) of the Limitation to foreign judgments given in international cases where there Act (Cap 163, 1996 Rev Ed) (“LA”). is an exclusive choice of court agreement concluded in a civil or The limitation period commences from the date of the judgment. commercial matter. An international case is any case where a claim However, there are a number of exceptions to this, including the is for the recognition, or recognition and enforcement, of a foreign following as may be applicable to a foreign judgment: judgment. A foreign judgment means a judgment given by a foreign (a) Under Section 26(2) of the LA, where any right of action court of a state that is a party to the Hague Convention of 30 June has accrued to recover any debt or other liquidated pecuniary 2005 on Choice of Court Agreements (“Convention”), being the claim, or any claim to the personal estate of a deceased person court designated in an exclusive choice of court agreement or a or to any share or interest therein, and the person liable or court to which a chosen court has, in accordance with the law or accountable therefor acknowledges the claim or makes any practice relating to the allocation of jurisdiction or transfer of cases payment in respect thereof, the right shall be deemed to have accrued on and not before the date of the acknowledgment or among court in that contracting state, transferred the case to which the last payment. the judgment relates. (b) Under Section 29(1) of the LA, where the action is based A judgment includes any final court decision on the merits, a upon or concealed by the fraud of the defendant or his agent consent order, a consent judgment or a judgment given by default, or or of any person through whom he claims or his agent, the a determination by a court of any costs or expenses relating thereto. period of limitation shall not begin to run until the plaintiff A foreign judgment will only be recognised if it has effect in the has discovered the fraud, as the case may be, or could, with state of origin, and enforced only if it is enforceable in the state of reasonable diligence, have discovered it. origin. As regards the statutory regimes, an application for the registration The CCAA does not apply where the exclusive choice of court of a judgment under the RECJA must be made 12 months from the agreement that designates a court of a Contracting State was date of the judgment, although the court has the discretion to extend concluded before the Convention entered into force in that this period. The corresponding period for applications under the Contracting State. REFJA is six years after the date of the judgment or such longer period as may be allowed by the court. Under the CCAA, an MOREA application for the recognition and enforcement of a judgment may The Singapore court may register a foreign maintenance order made be made at any time, as long as the foreign judgment has effect and by a court in a reciprocating country. A maintenance order includes is enforceable in the state of origin. any order which corresponds to the following description: (a) an order
176 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Allen & Gledhill LLP Singapore
providing for the payment of a lump sum or the making of periodic An order granting recognition and/or enforcement of a foreign payments by a man towards the maintenance of his wife or foreign judgment must be served on every party to the proceedings in wife or by a person towards the maintenance of his child; or (b) an which the foreign judgment was obtained within 28 days. The order order adjudging, finding or declaring a person to be the father ofa must also state that any party may apply to set aside the court order child, which also provides for the payment by such person of expenses within 28 days after service (or such longer period allowed by the incidental to the child’s birth or, if the child had died, funeral expenses. Singapore court). The order only takes effect after the expiry of the time limit to set aside the order.
3.2 With reference to each of the specific regimes set out MOREA in question 1.1, does the regime specify a difference A foreign maintenance order may be registered by a prescribed between recognition and enforcement? If so, what is officer of the Singapore court if a certified copy of the maintenance
the difference between the legal effect of recognition Singapore order is received by the Minister from the responsible authority in a and enforcement? reciprocating country and the Minister has forwarded such order to the officer. Once the foreign maintenance order is registered, it may The statutory regimes are premised on a distinction between be enforced in the same way as a maintenance order made under the recognition and enforcement, but do not expressly prescribe the Singapore Women’s Charter (Cap 353, 2009 Rev. Ed.). different legal effects of recognition and enforcement. Under the RECJA, REFJA and MOREA, the effect of registration is to enable the foreign judgment or maintenance order to be enforced 3.4 With reference to each of the specific regimes set out in question 1.1, on what grounds can recognition/ in Singapore as it if had been made by a Singapore court. It is not enforcement of a judgment be challenged under the necessary for a judgment or maintenance order to be registered in special regime? When can such a challenge be made? order for it to be recognised. This legal distinction is recognised in section 11 of the REFJA, RECJA which provides that a foreign judgment to which the registration Registration must be refused on the following grounds: procedure applies shall be recognised in any court in Singapore as (a) the foreign court had acted without jurisdiction; conclusive between the parties in all proceedings founded on the same cause of action, whether or not the judgment can or has been (b) the judgment debtor had not voluntarily appeared or registered. However, such foreign judgment will not be recognised otherwise submitted or agreed to submit to the jurisdiction of the foreign court; if registration of the judgment had been, or would have been, set aside on some ground other than that: (a) a sum of money was not (c) the judgment debtor (as a defendant) had not been served with process and did not appear, notwithstanding that he was payable; (b) the judgment had been wholly or partly satisfied; or (c) ordinarily resident or was carrying on business within the the judgment could not be enforced by execution in the country of jurisdiction of the foreign court or had agreed to submit to its origin at the date of the application. jurisdiction; Under the CCAA, an application may be made to the Singapore (d) the judgment had been obtained by fraud; court for a foreign judgment to be recognised, or to be recognised (e) the judgment debtor satisfies the registering court either that and enforced. an appeal for the judgment is pending, or that the judgment debtor is entitled to and intends to appeal against the 3.3 With reference to each of the specific regimes set judgment; or out in question 1.1, briefly explain the procedure for (f) the judgment was in respect of a cause of action which recognising and enforcing a foreign judgment. the Singapore court would not recognise for public policy reasons. RECJA / REFJA REFJA An application to register a judgment under the RECJA and REFJA Registration must be set aside if: is made by an ex parte originating summons with a supporting (a) the foreign court had no jurisdiction; affidavit exhibiting the judgment or a verified or certified or duly (b) the judgment debtor (as a defendant) had not received notice authenticated copy. If the judgment is not in the English language, of the proceedings in sufficient time to enable him to defend it must be accompanied by a translation certified by a notary public the proceedings and did not appear, notwithstanding that or authenticated by affidavit. process may have been duly served on him in accordance An order granting leave to register the judgment, specifying the with the laws of the foreign country; period within which an application may be made to set aside the (c) the judgment had been obtained by fraud; registration, must be served on the judgment debtor. Execution (d) enforcement of the judgment would be contrary to the public proceedings for the registered judgment cannot be commenced until policy of Singapore; or after the expiration of this period or the final determination of any (e) the rights under the judgment were not vested in the person application to set aside registration. seeking registration under the Act. CCAA Notably, under the REFJA, the foreign court shall not be deemed to An application for the recognition and/or enforcement of a foreign have had jurisdiction if the proceedings in the foreign court had been judgment is made by an ex parte originating summons supported by in breach of an agreement to settle the dispute, unless the defendant affidavit. The affidavit must exhibit a complete and certified copy of had submitted to the jurisdiction of the foreign court. the foreign judgment, and a certified copy of the exclusive choice of In addition, registration may be set aside if the matter in the dispute court agreement applicable to the relevant dispute. Documents that in the proceedings, which forms the subject of the registered are not in the English language must be accompanied by a certified judgment, is the subject of a prior final and conclusive judgment by translation. another court having jurisdiction in the matter.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 177 Allen & Gledhill LLP Singapore
CCAA the law applied by the country in which the foreign order was made. The grounds for refusal of recognition and enforcement under If, however, the payer and the payee are both residing in Singapore the Act mirror the grounds under the Convention, with minor for the time being, the Singapore courts will apply Singapore law, differences. which allows for the revocation of a maintenance order if the order was based on any misrepresentation or mistake of fact, or if there Recognition and/or enforcement must be refused in the following has been any material change in circumstances since the order was cases: made. (a) the defendant in the proceedings in which the foreign judgment was obtained was not notified of the document by which the proceedings were instituted in sufficient time to 4 Enforcement enable him to defend the proceedings, unless the law of the
Singapore state of origin permits the challenge of such notification and the defendant had entered appearance and presented his case 4.1 Once a foreign judgment is recognised and enforced, without challenging the notification before the foreign court; what are the general methods of enforcement (b) the foreign judgment was obtained by fraud in connection available to a judgment creditor? with a matter of procedure; or (c) the recognition or enforcement of the foreign judgment The usual methods of enforcement applicable to a judgment issued would be manifestly incompatible with the public policy of by the Singapore courts will apply: Singapore, including circumstances where the proceedings (a) writs of seizure and sale for the seizure and sale of immovable in the foreign court are incompatible with fundamental and movable (including securities such as shares and principles of procedural fairness in Singapore. debentures) properties; Recognition and/or enforcement may be refused on the following (b) examination of the judgment debtor on his property; general grounds: (c) garnishee orders requiring third parties, such as banks, who (a) the exclusive choice of court agreement is null and void under are indebted to the judgment debtor to pay the judgment the law of the state of the chosen court, unless the chosen creditor the amount of any debt due or accruing due to the court has determined that the agreement is valid; judgment creditor in satisfaction of the judgment; (b) a party to the exclusive choice of court agreement lacked (d) appointment of a receiver by way of equitable execution; capacity under Singapore law to enter into that agreement; (e) application for an order to commit the judgment debtor for (c) the defendant in the proceedings in which the foreign contempt of court; and judgment was obtained was notified of the document by which (f) commencement of bankruptcy (against individuals) or winding the proceedings were instituted in a manner incompatible up (against companies) proceedings, where applicable. with the fundamental principles in Singapore concerning the service of documents; Foreign maintenance orders registered under the MOREA may generally be enforced through the same methods above, as well as (d) the foreign judgment is inconsistent with a judgment given by a Singapore court in a dispute between the same parties; by an order to attach the earnings of the payer. (e) the foreign judgment is inconsistent with an earlier judgment given in another state between the same parties on the 5 Other Matters same cause of action, and the earlier judgment satisfied the conditions under Singapore law for recognition; (f) the foreign judgment is being reviewed or appealed against 5.1 Have there been any noteworthy recent (in the last in the state of origin or the time for applying for a review or 12 months) legal developments in your jurisdiction appeal in the state of origin has not expired; relevant to the recognition and enforcement of foreign (g) the exclusive choice of court agreement designates a judgments? Please provide a brief description. particular court and the chosen court has the discretion to transfer the case to another court in the same state and does The latest legal development has been the CCAA coming into force so, and the transferee court issues a judgment against a party on 1 October 2016. who had objected in a timely matter to the transfer; or (h) if, and to the extent that, the foreign judgment awards 5.2 Are there any particular tips you would give, or damages in excess of compensation for the actual loss or critical issues that you would flag, to clients seeking harm suffered. to recognise and enforce a foreign judgment in your MOREA jurisdiction? The registration of a foreign maintenance order will be cancelled if the registered order is revoked by: (a) an order of the Singapore court; (b) Under the RECJA, REFJA and CCAA, execution cannot be levied a provisional order made by the Singapore court and confirmed by the until the expiry of the time period limited for the judgment debtor to court which made the foreign order, notice of which has been received apply to set aside registration or the order granting enforcement. If by the Singapore court; or (c) an order made by the foreign court, there is a real risk that the judgment debtor’s assets may be moved notice of such revocation having been received by the Singapore court. out of the jurisdiction, the judgment creditor may consider applying for a Mareva injunction. When an application for the variation of or revocation of a registered foreign order is made under the Act, the Singapore court will apply
178 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Allen & Gledhill LLP Singapore
Tan Xeauwei Melissa Mak Allen & Gledhill LLP Allen & Gledhill LLP One Marina Boulevard #28-00 One Marina Boulevard #28-00 Singapore 018989 Singapore 018989
Tel: +65 6890 7843 Tel: +65 6890 7148 Email: [email protected] Email: [email protected] URL: www.allenandgledhill.com URL: www.allenandgledhill.com
Xeauwei’s practice encompasses international arbitration and civil Melissa is a Senior Associate in the Firm’s Litigation practice. Singapore litigation. She has substantial experience in acting in banking disputes, She has acted in a range of disputes before the Singapore courts, shareholders’ disputes, trust and property disputes and commodities including banking claims, shareholder and trust disputes, and disputes. Xeauwei is effectively bilingual, and has rendered expert employment matters. opinions for proceedings in England and the People’s Republic of China. Prior to joining Allen & Gledhill, Melissa was a Justices’ Law Clerk and Assistant Registrar at the Supreme Court of Singapore. Xeauwei has been recognised for her work in The Legal 500 Asia Pacific (2016, 2018), and is cited by clients to be “clear and concise” Melissa graduated from the University of Cambridge with a B.A. in and to take “a well-rounded approach when looking for solutions”. 2009, and holds a BCL from the University of Oxford and an LL.M. from Harvard University. She was called to the Singapore Bar in 2015. Xeauwei graduated from the National University of Singapore with an LL.B. (Hons) Degree and passed the Singapore Bar examinations ranked as one of the top 10 individuals of her year’s cohort.
Allen & Gledhill, one of the leading and largest law firms in Singapore and South-east Asia, is an award-winning full-service commercial law firm which provides legal services to a wide range of premier clients, including local and multinational corporations and financial institutions. Established in 1902, the Firm is consistently ranked as one of the market leaders in Singapore for every major practice area of its practice, having been involved in a number of challenging, complex and significant deals, many of which are first of its kind in Singapore and are renowned for delivering exceptional legal services in Singapore and South-east Asia. The Firm’s reputation for high-quality advice is regularly affirmed by the strong rankings in leading publications, and by the various awards and accolades it has received from independent commentators and clients. The Firm is consistently ranked band one in the highest number of practice areas, and is one of the firms with the highest number of lawyers recognised as leading individuals. Over the years, the Firm has also been named ‘Singapore Firm of the Year’ by many prominent legal awards. With a growing network of associate firms, Allen & Gledhill is well-placed to advise clients on their business interests in Singapore and beyond, in particular, on matters involving South-east Asia and the Asia region. Together with its associate Firm, Rahmat Lim & Partners in Malaysia, and its office in Myanmar, Allen & Gledhill has over 400 lawyers in the region.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 179 Chapter 33
South Africa Jonathan Ripley-Evans
Herbert Smith Freehills South Africa LLP Fiorella Noriega Del Valle
3. In accordance with the Common Law, a South African court 1 Country Finder will enforce a foreign judgment if, under the rules of the conflict of laws as applied in South Africa, the foreign court is regarded as having had jurisdiction. 1.1 Please set out the various regimes applicable to recognising and enforcing judgments in your 4. Furthermore, Harms AJA, in the case of Zweni v Minister jurisdiction and the names of the countries to which of Law and Order 1993 (1) SA 523 (A), confirmed that such special regimes apply. “a ‘judgment or order’ is a decision which, as a general principle, has three attributes: 4.1. first, the decision must be final in effect and not susceptible Applicable Law/ Relevant Corresponding Statutory Regime Jurisdiction(s) Section Below to alteration by the Court of first instance; The Enforcement To date, the EFCJ 4.2. second, it must be definitive of the rights of the parties; of Foreign Civil Act has only been and Section 3. Judgments Act 32 of made applicable to 4.3. third, it must have the effect of disposing of at least a 1998 (“EFCJ Act”). Namibia. substantial portion of the relief claimed in the main Common Law. All Countries. Section 2. proceedings”.
2.3 What requirements (in form and substance) must a 2 General Regime foreign judgment satisfy in order to be recognised and enforceable in your jurisdiction?
2.1 Absent any applicable special regime, what is the legal 1. In terms of the common law, the following requirements must framework under which a foreign judgment would be be met in order for the foreign judgment to be recognised and recognised and enforced in your jurisdiction? enforceable in South Africa: 1.1. The foreign court must have had jurisdiction to entertain 1. As a general principle, the common law governs the recognition the case, as determined in accordance with the principles of and enforcement of all foreign civil judgments, in South Africa. South African Private International Law. This requirement 2. Although the EFCJ Act provides a statutory framework for the will vary, depending on the legal issues involved. recognition and enforcement of foreign civil judgments in South 1.1.1. In regard to claims relating to property, international Africa, this act only applies to certain countries designated by jurisdiction will be present if the property was situated within the Minister of Justice and Constitutional Development. To the foreign court’s area of jurisdiction. date, the Minister has only designated Namibia for this purpose. 1.1.2. The possible grounds for international jurisdiction in other civil matters have been authoritatively stated by the Supreme 2.2 What constitutes a ‘judgment’ capable of recognition Court of Appeal as being: and enforcement in your jurisdiction? ■ domicile; ■ habitual residence; or 1. The EFCJ Act (although it has limited application) defines a ■ submission. judgment as: 1.2. The judgment must be final in its effect and must not have “any final judgment or order for the payment of money, given become superannuated (stale). or made before or after the commencement of [the EFCJ] Act by any court in any civil proceedings which is enforceable 1.2.1. It is important to note that this requirement will still be by execution in the country in which it was given or made, satisfied if the judgment is subject to an appeal, but not if the but does not include any judgment or order given or made order is only interim by nature. by any court on appeal from a judgment or order of a court 1.3. The recognition and enforcement of the foreign judgment other than a court as defined in [the EFCJ] Act, or for the must not be contrary to South African public policy. In other payment of any tax or charge of a like nature or of any fine or words, the “minimum standards of justice” must have been other penalty, or for the periodical payment of sums of money observed by the foreign court. towards the maintenance of any person”. 1.3.1. Whether a judgment is against South African public policy 2. The EFCJ definition of judgment applies only to civil depends largely on the facts of each case and considerations judgments, handed down in Namibia. would include:
180 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Herbert Smith Freehills South Africa LLP South Africa
■ whether reasonable notice of the proceedings was given to matter and that the judgment can be given effect to (at the affected persons (such as the defendant); stage of execution). This included any proceedings brought ■ the defendant’s ability to have presented his/her/its case; and for the recognition and enforcement of foreign judgments. ■ the impartiality of the court or tribunal. 3. Section 21 of the Superior Courts Act states, in relation to the jurisdiction of the High Court, that: 1.3.2. Importantly, our courts have held that the mere reason that a judgment has been made by a foreign court, on a basis not “(1) A Division has jurisdiction over all persons residing or recognised in South Africa, does not mean that the judgment being in, and in relation to all causes arising and all offences is contrary to public policy, and as such, it would be wrong triable within, its area of jurisdiction and all other matters of to refuse to enforce such a foreign order merely because it is which it may according to law take cognisance… unknown in South Africa. It would first need to be determined (3) …any Division may issue an order for attachment of whether the unknown principle is “unconscionable” when property to confirm jurisdiction.”
considered against the background of the laws of South Africa. 4. As a result of the above, before an action to enforce a foreign South Africa 1.4. The judgment must not have been obtained by fraudulent civil judgment is brought by a plaintiff, it is necessary to means. determine whether the court South African has jurisdiction 1.5. The judgment must not involve the enforcement of a penal or to consider the matter. Historically, a court in South Africa revenue law of the foreign State. would only hear a matter if there is some link between the territory and the parties or the facts, i.e. rationes jurisdictionis. 1.6. The enforcement must not be precluded by the provisions of the Our courts have enumerated these to be the following: Protection of Business Act 99 of 1978, as amended (“PBA”). 4.1. the defendant is domiciled or resident in South Africa; 1.6.1. The PBA states that the consent of the Minister of Economic Affairs must be obtained before a civil judgment relating to 4.2. the “cause of action” arose in South Africa; or any act or transaction “connected with the mining, production, 4.3. the subject-matter of the action is situated in South Africa. importation, exportation, refinement, possession, use or sale 5. Therefore, if one or more of these requirements are satisfied, of or ownership to any matter or material, of whatever nature, the South African court will accept jurisdiction for the whether within, outside into or from the Republic”, may be recognition and enforcement of a foreign judgment. enforced. It has been confirmed by our Supreme Court of 6. If, however, none of the above jurisdictional factors are present, Appeal that “matter or material” constitutes “raw materials a party seeking to enforce a foreign judgment can apply for the or substances from which physical things are made and not a attachment of any asset found in the jurisdiction of the court, manufactured thing”. in order to “found” the jurisdiction of the High Court. Such an 1.6.2. Section 1D of the PBA prohibits the enforcement of a civil attachment would further ensure that the South African court’s judgment (irrespective of whether the Minister has given judgment can be given effect to, at the stage of execution. his consent) if that civil judgment arises from any act or transaction referred to in paragraph 1.6.1 above, and if it is connected with any liability which arises from “any bodily 2.5 Is there a difference between recognition and injury of any person resulting directly or indirectly from the enforcement of judgments? If so, what are the legal consumption or use of or exposure to any natural resource effects of recognition and enforcement respectively? of the Republic…unless the same liability would have arisen under the law of the Republic…”. 1. In South Africa, when one speaks of the recognition of a 1.6.3. Furthermore, no foreign judgment (to which the PBA applies) foreign judgment, one usually refers to a process whereby a in respect of multiple or punitive damages can be recognised court recognises and takes cognisance of the existence of a or enforced in South Africa. In this regard, the PBA defines foreign judgment which has been raised as a defence (normally “multiple or punitive damages” as that part of the amount of res judicata). In these circumstances, there is usually no need damages awarded which exceeds the amount determined by for the court to grant any form of enforcement order. a South African court as compensation for the damage or loss 2. Regarding the enforcement of a foreign judgment, a South actually sustained. African court is required first to recognise the foreign 1.6.4. Despite its seemingly broad ambit, South African courts have judgment which is then enforced by means of a South African been slow to give effect to the literal wording of the PBA Court order (should the necessary requirements be met). which has been interpreted restrictively. 3. Simply put, a foreign judgment only “recognised” by a South 2. If the aforementioned requirements are met, a local court may African court is not automatically enforceable (which would give an order recognising the judgment under the Common require a separate enforcement order). An order declaring Law. a judgment enforceable in South Africa would, however, be duly “recognised” within the Republic. 3. Under the EFCJ, in order to be enforced, a judgment obtained in a designated country (Namibia) is to meet the requirements set out in section 5 of the act, which largely conform to the 2.6 Briefly explain the procedure for recognising and common law requirements set out above. enforcing a foreign judgment in your jurisdiction.
2.4 What (if any) connection to the jurisdiction is required 1. A foreign judgment is regarded as a separate cause of action for your courts to accept jurisdiction for recognition in terms of which proceedings can be brought. In terms of the and enforcement of a foreign judgment? common law, there is no prescribed procedure as to how this should be done. 1. The question of the jurisdiction of South African courts to 2. In South Africa, proceedings can be instituted by way of enforce foreign awards is somewhat unclear, particularly Application (where no dispute of fact is envisaged) or when seeking to enforce an award involving a foreign award Action (where a material dispute of fact is envisaged and a where all parties are also foreign to South Africa. trial is required). Action proceedings are brought by way of 2. Historically, before a South African court would hear a Summons and will culminate in a trial, where oral evidence is matter, it had to be satisfied that it has jurisdiction over that led. Application proceedings are brought by way of affidavit and are determined on the papers before the court.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 181 Herbert Smith Freehills South Africa LLP South Africa
3. South African courts also permit the institution of proceedings 2. It is, however, suggested that the South African courts to enforce foreign monetary judgments, by way of would refuse to recognise the foreign judgment based on “provisional sentence summons”, which is a shortened public policy grounds as a contrary ruling may, for example, hybrid action procedure that is utilised in order to obtain the encourage forum shopping and this may undermine the provisional payment of a liquid sum of money. jurisdiction of local courts. This may also have an effect 4. It is important, when bringing an action or application, to on the question of sovereignty (as the South African courts determine which South African court has jurisdiction to hear would be called upon to defer to a foreign jurisdiction in the matter, based on the principles of South African law. In circumstances where local courts have already determined this regard, our courts must be satisfied that there is a valid the matter finally). This will in all likelihood be a question of ratio jurisdictiones before it will hear a matter (as has been public policy. set out above). 3. A reference to clause 5(1)(g) of the EFCJ may be instructive 5. A certified copy of the judgment must be annexed tothe in interpreting a question of where a foreign judgment was South Africa summons, together with a due and proper translation (by a handed down on a date after the date on which the local sworn translator) if the judgment is in a language other than judgment was handed down. In such circumstances, our English. courts permit the setting aside of the registration of a foreign judgment and as such would, in all likelihood, adopt a similar 6. The application or action will need to be served on all attitude for foreign judgments obtained after a local judgment interested parties. If the defendant or respondent is resident has been handed down for matters falling outside the ambit of outside of South Africa, it will need to be served on him/her/it the EFCJ. by way of edictal citation – which will require that an ex parte application first be brought seeking leave to serve notice of (b) Local proceedings pending between the parties: the proceedings in another country. 1. A judgment of a foreign court having jurisdiction over the 7. The manner in which a judgment is ultimately enforced also same matter would entitle a party to the local proceedings to depends on the subject matter of the order. If, for example, plead the defence of res judicata and a local court is unlikely it is a claim sounding in money, once the South African to entertain the hearing of the local proceedings. enforcement order has been granted, a writ of execution will be issued in terms of which the Sheriff may be ordered to 2.10 What is your court’s approach to recognition and proceed with execution against the debtor’s assets. This enforcement of a foreign judgment when there is a would entail the attachment and removal of the debtor’s conflicting local law or prior judgment on the same or assets, and the subsequent sale thereof by way of public a similar issue, but between different parties? auction so as to realise value. 1. It has been held that South African courts will not go into the 2.7 On what grounds can recognition/enforcement of a merits of the case, which have been adjudicated on by the judgment be challenged? When can such a challenge foreign court and will not attempt to set aside its findings of be made? fact or law. 2. As such, as long as the requirements set out above are met 1. The recognition and enforcement of a foreign judgment can (and most importantly, the requirement relating to public be challenged on the basis that it does not comply with the policy), the judgment will be recognised and enforced. requirements set out in paragraph 1 of question 2.3 above. 3. The defence of res judicata is only available to a defendant 2. The challenge could be made by either opposing the in circumstances where both the cause of action (factual and application or action, or alternatively by bringing rescission legal basis) and the parties are the same. proceedings to court if the order enforcing the judgment had already been obtained, for example, without due notice to relevant parties. 2.11 What is your court’s approach to recognition and enforcement of a foreign judgment that purports to 3. The most common ground for a court’s refusal to enforce a apply the law of your country? foreign judgment is based on the fact that such a judgment offends the laws of “natural justice”. It must, however, be stated that it is rather unusual for a South African court to As set out above, South African courts will not go into the merits refuse to enforce a foreign civil judgment. of the case and as long as the common law requirements are met (including the requirement relating to public policy) the judgment will be recognised and enforced. 2.8 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? 2.12 Are there any differences in the rules and procedure of recognition and enforcement between the various This can be found in the PBA (i.e. foreign judgments relating to raw states/regions/provinces in your country? Please explain. materials) and is discussed in paragraph 1.6 to question 2.3 above.
No, the common law is applicable equally to all provinces. 2.9 What is your court’s approach to recognition and enforcement of a foreign judgment when there is: (a) a conflicting local judgment between the parties relating 2.13 What is the relevant limitation period to recognise and to the same issue; or (b) local proceedings pending enforce a foreign judgment? between the parties? 1. In South Africa, time limitation periods are regulated by the (a) Conflicting local judgment between the parties on the Prescription Act. same issue: 2. The Prescription act provides that “any judgment debt” will 1. As far as we are aware, our courts have never had to pronounce prescribe in 30 (thirty) years. However, it has been held that on this issue. a “foreign judgment” is not included in the definition of a
182 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Herbert Smith Freehills South Africa LLP South Africa
“judgment debt”. This is due to the fact that a foreign judgment merely constitutes a cause of action and is not directly 3.3 With reference to each of the specific regimes set enforceable in South Africa. As such, a foreign judgment out in question 1.1, briefly explain the procedure for cannot, on the linguistic approach of the relevant section in the recognising and enforcing a foreign judgment. Prescription Act, be regarded as a “judgment debt”. 3. Whether the debt has prescribed is thus determined in 1. The EFCJ Act provides that in order to recognise the judgment accordance with the principles of private international law it must: and conflict of laws. In South Africa, prescription in terms ■ be certified by the court of the designated country as being of the lex fori (South African law) is a matter of substance a true copy of the judgment; or (and not procedure), thus the law of the country where the ■ be lodged with the clerk of the Magistrates Court in the judgment was handed down is applicable when determining district where: the time periods for prescription.
■ the person against whom a judgment in question was South Africa 4. However, there are instances where a “gap” arises, such given, resides, carries on business or is employed or as where the judgment originates in England. In England, owns any movable or immovable property; prescription is regarded as procedural, thus the lex causae also cannot apply as it regulates only matters of substance (and a ■ any juristic person against which the judgment was South African court will not apply foreign rules of procedure given has its registered office, or its principal place of in a matter to be adjudicated upon by it). It has been held that business; or in such an instance, South African law should be applied. ■ any partnership against which the judgment was given 5. In this regard, the Prescription Act states that other “debts” (a has its business premises or any member thereof word which is widely interpreted and which would include resides. foreign judgments) prescribe after three years. 2. Once the judgment has been registered: ■ the clerk of the court will issue a notice directed to the judgment debtor, informing him or her of the registration; 3 Special Enforcement Regimes Applicable and to Judgments from Certain Countries ■ the judgment creditor must serve the notice on the judgment debtor, in accordance with the manner prescribed in the rules of court. 3.1 With reference to each of the specific regimes set out in question 1.1, what requirements (in form and 3. The judgment debt, in the registered judgment, must be substance) must the judgment satisfy in order to be expressed in the currency of South Africa, calculated at the recognised and enforceable under the respective rate of exchange prevailing at the date of the judgment. regime? 4. Section 4 of the EFCJ Act provides that whenever a foreign judgment is registered, it shall have the same effect as a civil 1. In terms of the EFCJ Act, the foreign judgment will be judgment of the court where it has been registered. capable of recognition and enforcement in South Africa as 5. However, the judgment can only be executed after the long as: expiration of 21 days after service of the abovementioned ■ it has been handed down in a country which has been notice on the judgment debtor, or until any application to designated by the Minister of Justice; have the registration of the judgment set aside, has been disposed of. ■ the judgment sounds in money; and ■ it was handed down by a “court” as defined in the EFCJ Act, which is limited to the Supreme Court, High Court 3.4 With reference to each of the specific regimes set out or any district or regional Magistrate’s Court of the in question 1.1, on what grounds can recognition/ designated country. enforcement of a judgment be challenged under the special regime? When can such a challenge be made? 2. The EFCJ Act is not applicable to foreign judgments: ■ “given or made by any court on appeal from a judgment 1. In terms of the EFCJ Act, the registration of a foreign or order of a court other than a court as defined in [the judgment can be challenged by the judgment debtor and set EFCJ Act]”; or aside if the Magistrates Court, at which the judgment was ■ for the payment of “any tax or charge of a like nature or of registered, is satisfied that one of the following grounds exist: any fine or other penalty, or for the periodical payment of ■ the judgment was registered in contravention of any sums of money towards the maintenance of any person”. provision of the EFCJ Act; 3. The Act does not state that there is a monetary limit to the ■ the court of the designated country had no jurisdiction in judgment which can be registered. the circumstances of the case; ■ the judgment debtor did not receive notice of the foreign 3.2 With reference to each of the specific regimes set out proceedings in which the judgment was given, as in question 1.1, does the regime specify a difference prescribed by the law of the designated country; between recognition and enforcement? If so, what is ■ if no notice of proceedings is prescribed by the designated the difference between the legal effect of recognition country, the judgment debtor did not receive reasonable and enforcement? notice of the foreign proceedings to enable him or her to defend the foreign proceedings, and he or she did not appear; 1. Please see the response to question 2.5 above with regard to ■ the judgment was obtained by fraud; the approach of the courts when applying the common law. ■ the enforcement of the foreign judgment would be 2. The EFCJ does not provide for the recognition of foreign contrary to public policy in South Africa; judgments and only references the enforcement thereof.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 183 Herbert Smith Freehills South Africa LLP South Africa
■ the certified copy of the foreign judgment which was 2. The judgment Danielson v Human 2017 (1) SA 141 (WCC) lodged in terms of the EFCJ Act, was lodged at the request was handed down in the Western Cape High Court and dealt of a person other than the judgment creditor; with: ■ the matter in dispute in the foreign proceedings had, prior ■ whether the provisions of the PBA applied to the recognition to the date of the judgment, been the subject of a final and enforcement of the foreign judgment; and judgment in civil proceedings by a court of competent ■ whether the judgment contained a “punitive element” jurisdiction; which made its recognition contrary to South African ■ the judgment has been set aside by a court of competent public policy. jurisdiction; 3. Briefly, the judgment was one for punitive damages, which ■ the judgment has become prescribed under either the law was granted in the United States against two South African of South Africa or of the designated country; respondents, as a result of their breach of an American statute.
South Africa ■ the judgment has been wholly satisfied; 4. Importantly, the court reemphasised that it was not its ■ the judgment has been partly satisfied, to the extent in “function to ‘go into the merits of the case adjudicated upon which it has been so satisfied; and by the foreign court’ or ‘to attempt to review or set aside its findings of fact or law’”. ■ the judgment is a judgment or order which, in terms of any law, may not be recognised or enforced in South Africa. 5. In regard to the argument that the PBA was applicable, the court disagreed and followed the trend of interpreting 2. We are not aware of any reported case law which has the PBA restrictively. It held that the “act or transaction” interrogated these grounds. giving rise to the applicant’s case in the USA was based on a 3. The challenge to the registration is made by the judgment contract concerning the application of the certain technology. debtor, by way of application, and must be made within 21 Although the technology may have had its foundation in raw days after the service of the notice (referred to above) on it. materials, the dispute centred around provisions pertaining to 4. A judgment debtor may also apply to the court at which licensing rights in respect of the technology. the foreign judgment is registered, for the execution of the 6. In regard to the public policy argument, the court reiterated judgment to be postponed. This may be granted, on such that it would be wrong in principle to refuse to enforce conditions as the court may deem fit, if it is satisfied, that: a foreign order, on a basis not recognised in South Africa, ■ an appeal against the foreign judgment is pending in a merely because it is unknown to South Africa. The court held court of competent jurisdiction; or that it would need to scrutinise the facts of each particular case in order to determine whether the award was unconscionable ■ the judgment debtor is entitled and intends to appeal or contrary to public policy. against the judgment to a court of competent jurisdiction. 7. After interrogating the award, the court concluded that the 5. However, until such time as application is made in terms of damages were not strictly punitive in the sense that their paragraph 4, the registered judgment is deemed to be final. purpose was to “punish” the respondent, but that they in fact were awarded in order to fully compensate the applicant for 4 Enforcement his actual loss suffered. As such, the award was not contrary to public policy and was duly enforced. 8. In the case of Wile and another v MEC, Department of Home 4.1 Once a foreign judgment is recognised and enforced, Affairs, Gauteng and others 2017 (1) SA 125 (WCC), the what are the general methods of enforcement High Court again considered the aspect of public policy. available to a judgment creditor? The applicant, a South African citizen, sought to change her surname pursuant to a German judgment which confirmed her 1. In regard to claims sounding in money, claims for eviction adoption by a German citizen. The applicant was a 47-year- or claims for restitution, the Sheriff of the Court can be old female at the time of adoption. German law permitted the instructed (on the strength of the court order) to seize assets adoption of an adult but South African law only catered for or evict tenants. If the claim sounds in money, the sheriff will the adoption of children. attempt to realise the claim by selling the judgment debtor’s 9. The Judge ruled that the court’s decision to recognise the attached assets on auction. German court order would not offend public policy. 2. In the event that the judgment debtor does not comply with the court order, an application can be made for the judgment 5.2 Are there any particular tips you would give, or debtor to be held in contempt of court, which could lead to critical issues that you would flag, to clients seeking imprisonment. However, this is not applicable if the judgment to recognise and enforce a foreign judgment in your debtor is unable to comply with a court order requiring it to jurisdiction? pay a civil debt. 1. As has been dealt with above, it is important to bear in 5 Other Matters mind, when bringing an action or application to recognise a foreign judgment, that a court in South Africa will only hear a matter if there is some link between the territory within 5.1 Have there been any noteworthy recent (in the last which it operates and the parties or the facts, i.e. rationes 12 months) legal developments in your jurisdiction jurisdictionis, as it must have jurisdiction to enforce the relevant to the recognition and enforcement of foreign judgment. judgments? Please provide a brief description. 2. These “links” have been specifically enumerated by South African courts and must be present before a court can hear a 1. A recent decision was handed down by the Western Cape matter, they are as follows: High Court which re-emphasises the principles pertaining to ■ the defendant is domiciled or resident in South Africa; an objection to the recognition of a foreign judgment on the ■ the “cause of action” arose in South Africa; and basis that it offends against public policy. ■ the subject-matter of the action is situated in South Africa.
184 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Herbert Smith Freehills South Africa LLP South Africa
3. If the defendant is resident in South Africa then there will 5. Although it is also possible to establish jurisdiction by be no difficulty in respect of the South African court’s bringing an application to attach the assets of a foreign jurisdiction. defendant or respondent, which are located in South Africa, 4. However, the following illustrates the problematic nature of there is case law which indicates that this route is not available establishing a ratio jurisdictionis when enforcing a foreign to a foreign plaintiff or applicant. The situation is further judgment against a foreign defendant, whose assets are aggravated by the fact that submission to the jurisdiction of located in South Africa: a South African court will not entitle the court to assume jurisdiction when the plaintiff and the defendant are both The defendant is domiciled or resident in South Africa: ■ foreigners. In regard to a foreign company, case law has held that an external or foreign company, despite being registered in 6. In light of the local rules pertaining to jurisdiction, it seems South Africa and despite having a registered address in the that it may be difficult for a High Court in South Africa to country, will not be deemed to be “resident” in South Africa. entertain proceedings for the authorisation of a foreign court order sounding in money against a foreign defendant in South South Africa The “cause of action” arose in South Africa: Although there ■ Africa, where the proceedings have been brought by a foreign is no case law on this topic, it is arguable by a defendant or plaintiff under the common law. respondent that the cause of action, which is the order of the foreign court, did not arise in South Africa. 7. Although this difficulty has not been faced “head on” before, our Supreme Court of Appeal has held that “exigencies” of The subject-matter of the action is situated in South Africa: ■ international trade and commerce require “that final foreign There may be scope to argue that the “subject-matter” of the judgments be recognised as far as is reasonably possible in action in enforcement proceedings, is actually the defendant’s our courts, and that effect be given thereto”. It may be that, South African assets, which are within the jurisdiction of the when faced with this conundrum, South African courts will court. However, the argument is not without risk in that the adopt a more practical and less stringent approach. subject-matter of any action or application would, strictly speaking, be the foreign civil judgment which the plaintiff 8. It is also important to always bear the PBA in mind when or applicant is seeking to recognise. seeking to enforce foreign judgments in South Africa.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 185 Herbert Smith Freehills South Africa LLP South Africa
Jonathan Ripley-Evans Fiorella Noriega Del Valle Herbert Smith Freehills South Africa LLP Herbert Smith Freehills South Africa LLP 4th Floor, Rosebank Towers 4th Floor, Rosebank Towers Biermann Avenue Biermann Avenue Rosebank, Johannesburg, 2196 Rosebank, Johannesburg, 2196 South Africa South Africa
Tel: +27 10 500 2690 Tel: +27 10 500 2690 Email: [email protected] Email: [email protected] URL: www.herbertsmithfreehills.com URL: www.herbertsmithfreehills.com
Jonathan Ripley-Evans is a director in the Dispute Resolution practice. Fiorella Noriega Del Valle began her career at Cliffe Dekker Hofmeyr South Africa He has experience in both domestic and international arbitration, as a Candidate Attorney in 2013. She was appointed as an Associate mediation and general commercial litigation. Jonathan is an AFSA in 2015 and as a Senior Associate in January 2018. In March 2018, accredited mediator and arbitrator and is a member of the Chartered Fiorella joined Herbert Smith Freehills SA LLP as an Associate. Institute of Arbitrators. Education Career ■■ LL.B., University of Witwatersrand (Wits). Jonathan began his career in 2009 as a candidate attorney at Cliffe ■■ Year of admission as an attorney: 2015. Dekker Hofmeyr. He was appointed as an associate in January 2011. In 2016 he was appointed as a director. In 2018 he joined Herbert ■■ Year of admission as a Notary Public: 2015. Smith Freehills SA LLP as a Director. ■■ Chartered Institute of Arbitrators: Accelerated Route to Membership Education 2017. BCom (Law), Rand Afrikaans University, LL.B., University of Experience Johannesburg, LL.M., (German comparative civil practice) Universitaet Fiorella is part of a team which specialises in various aspects of des Saarlandes (UdS) Saarland, Germany. commercial litigation, international arbitration and cross-border dispute ■■ Year of admission as an attorney: 2011. resolution. Her experience includes: ■■ Admitted as a Notary Public in 2015. ■■ General domestic commercial litigation. ■■ AFSA Advanced ADR Course 2015. ■■ Experience in cross-border dispute resolution (specifically in Africa). Memberships ■■ Experience in arbitrations, mediations, settlement negotiations and Member of the Chartered Institute of Arbitrators, Member of the alternative dispute resolution. Africa Group of the China-Africa Joint Arbitration Centre (CAJAC) Johannesburg, Law Society of the Northern Provinces.
Herbert Smith Freehills is one of the world’s leading law firms, we advise many of the biggest and most ambitious organisations across all major regions of the globe. Our clients trust us with their most important transactions, disputes and projects because of our ability to cut through complexity and mitigate risk. With 27 offices spanning Africa, Asia, Australia, Europe, the Middle East and the US, we offer local insight and seamless cross- border service in all major regions. Positioned to support the major trade flows, we help the world’s top companies thrive in the global economy. Because technical ability alone is not enough, we seek to build exceptional working relationships with our clients. By doing so, we are able to develop a deeper understanding of our clients’ businesses, provide commercially astute, innovative advice and create better business outcomes for our clients.
186 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Chapter 34
Switzerland Saverio Lembo
Bär & Karrer Ltd. Aurélie Conrad Hari
1 Country Finder Applicable Law/ Relevant Corresponding Statutory Regime Jurisdiction(s) Section Below Treaty between 1.1 Please set out the various regimes applicable Switzerland and the Czech Republic to recognising and enforcing judgments in your Switzerland and the on the reciprocal Section 3. jurisdiction and the names of the countries to which Czech Republic. enforcement of such special regimes apply. judgments of 21 December 1926. Applicable Law/ Relevant Corresponding Treaty between Statutory Regime Jurisdiction(s) Section Below Switzerland and Sweden on the Treaty between the recognition and Switzerland and Swiss Confederation Section 3. enforcement of Sweden. and the Principality judgments and of Liechtenstein Switzerland and Section 3. arbitral awards dated on the recognition Liechtenstein. 15 January 1936. and enforcement of judgments and awards Treaty between dated 25 April 1968. Switzerland and Belgium on Treaty between Switzerland and the reciprocal Switzerland and the Belgium. Section 3. enforcement of Republic of Austria Switzerland and judgments and on the recognition Section 3. Austria. arbitral awards of 29 and enforcement of April 1959. judgments dated 16 December 1960. Hague Convention for the protection of Treaty between cultural property in Switzerland and Italy the event of armed 127 States parties. Section 3. on the recognition Switzerland and Italy. Section 3. conflict of 14 May and enforcement of 1954 (amended on 15 judgments dated 3 April 2015). January 1933. Andorra, Austria, Treaty between the Belgium, Bulgaria, Swiss Confederation Cyprus, Czech and the German Reich Republic, Denmark, on the recognition Switzerland and Section 3. Estonia, Finland, and enforcement Germany. France, Germany, of judgments and European convention Greece, Hungary, arbitral awards dated on recognition and Iceland, Ireland, Italy, 2 November 1929. enforcement of Latvia, Liechtenstein, Treaty between decisions concerning Lithuania, See EU Chapter. Switzerland and Spain custody of children Luxembourg, on the reciprocal and on restoration of Macedonia, enforcement of Switzerland and Section 3. custody of children of Malta, Moldova, judgments or Spain. 20 May 1980. Montenegro, The decisions in civil and Netherlands, Norway, commercial matters of Portugal, Romania, 19 November 1896. Serbia, Slovakia, Spain, Switzerland, Turkey, Ukraine, United Kingdom.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 187 Bär & Karrer Ltd. Switzerland
Applicable Law/ Relevant Corresponding Statutory Regime Jurisdiction(s) Section Below 2.2 What constitutes a ‘judgment’ capable of recognition and enforcement in your jurisdiction? Albania Aruba, Australia, China, Cyprus, Czech Under Swiss law, in principle, a foreign decision is considered to be Republic, Denmark, Convention on any decision made by a judicial authority acting de jure imperi. It is Egypt, Estonia, the recognition of irrelevant whether this authority is judiciary, administrative or even Finland, Hong Kong, divorces and legal Section 3. Italy, Luxembourg, religious. Such judgment is to be final and binding (see question separations of 1 June Moldova, Netherlands, 2.3 below). 1970. Norway, Poland, Portugal, Slovakia, Sweden, Switzerland, 2.3 What requirements (in form and substance) must a Switzerland United Kingdom. foreign judgment satisfy in order to be recognised Convention on and enforceable in your jurisdiction? jurisdiction and the recognition and European According to the general provisions under the PILA, a foreign enforcement of Community, decision is recognisable in Switzerland when (Art. 25 PILA): judgments in civil Denmark, Iceland, Section 3. and commercial (a) the foreign judiciary and administrative authorities who Norway and matters dated 30 rendered the decision had jurisdiction (Art. 26 PILA); Switzerland. October 2007 (b) the decision is final or could not be subject to any ordinary (revised Lugano appeal; and Convention). (c) there is no ground for denial of recognition set in Art. 27 PILA. New York Convention on the Recognition All countries Recognition of a foreign decision must be denied: and enforcement signatory to the Section 3. ■ if it is contrary to Swiss public policy (Art. 27 para. 1 PILA); of Foreign Arbitral Convention. Awards dated 10 June and 1958. ■ if a party establishes (Art. 27 para. 2 PILA): All countries to ■ that it did not receive proper notice, under either the law Swiss Private which none of International Law Act Section 2. of its domicile or that of its habitual residence, unless such the above specific (PILA). party proceeded on the merits without reservation; conventions apply. ■ that the decision was rendered in breach of fundamental All countries to Swiss Civil principles of the Swiss conception of procedural law, which none of Procedural Code Section 2. including the fact that the said party did not have an the above specific (CPC). opportunity to present its defence; or conventions apply. ■ that a dispute between the same parties, with the same Swiss Debt All countries to subject matter, is the subject of pending proceedings in Enforcement and which none of Section 2. Bankruptcy Act the above specific Switzerland or has already been judged there, or that it (DEBA). conventions apply. was judged previously in a third state, provided that the latter decision fulfils the conditions for its recognition. Once a decision is recognised following the above-mentioned rules, 2 General Regime it shall be declared enforceable upon request (Art. 28 PILA). Unlike the Lugano Convention (see question 3.1 below), the PILA is silent on the question of the recognition and enforcement of 2.1 Absent any applicable special regime, what is the legal interlocutory orders (“mesures provisoires”) and there is no clear framework under which a foreign judgment would be and uniform practice by the Swiss courts on this matter. recognised and enforced in your jurisdiction?
Under Swiss law, in the absence of an applicable international legal 2.4 What (if any) connection to the jurisdiction is required instrument (e.g. the revised Lugano Convention dated 30 October for your courts to accept jurisdiction for recognition and enforcement of a foreign judgment? 2007), the Swiss Private International Law Act (PILA) applies to govern the conditions of recognition and enforcement of foreign decisions (Art. 1 para. 1 lit. c and para. 2 PILA), in particular the There is no particular requirement as to the connection to the general provisions found in its first chapter, fifth section. jurisdiction, although a recognition is likely to be denied if the applicant has no interest in a recognition in Switzerland. As a With regards to recognition of foreign decisions on foreign consequence, the applicant should be in a position to demonstrate a insolvency (Art. 166–174 PILA), foreign composition with creditors legitimate interest in having the judgment recognised in Switzerland (Art. 175 PILA) and foreign arbitral awards (Art. 194 PILA), specific for a Swiss court to accept its jurisdiction. Further, as highlighted provisions in the chapters dealing with these subject matters apply. previously (see question 2.3 above), the judgment, to be recognised, With regards to the enforcement of foreign decisions, pecuniary must have been issued by a competent court as the lack of jurisdiction debt is subjected to the Swiss Debt Enforcement and Bankruptcy of the court in the state of origin which would be aground to dismiss Act (DEBA) and specific performance is subjected to the Swiss the recognition by a Swiss court (Art. 25 PILA). Civil Procedural Code (CPC). In order to interpret the statutes, one can refer to case law, among other sources.
188 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Bär & Karrer Ltd. Switzerland
Enforcement proceedings are, in principle, summary proceedings, 2.5 Is there a difference between recognition and which are cheaper and quicker than the ordinary proceedings. These enforcement of judgments? If so, what are the legal proceedings are quicker mainly because parties need to prove their effects of recognition and enforcement respectively? case by way of documentary evidences (physical records). Other means of evidence could be accepted by the judge if the party In Switzerland, there is a difference between recognition and can provide it immediately, in order to avoid any delay in the enforcement; recognition of a decision is the natural prerequisite to proceedings. Finally, the proceedings can be oral or written, at the its enforcement. Nevertheless, a decision can be recognised without discretion of the court. being enforced. Also, recognition could be automatic depending on Recognition and enforcement must be brought in front of the first the applicable law, in which case the interested party could directly instance court, which differs in each canton. It is possible to appeal ask for enforcement. Finally, the interested party has the option to the first instance decision, at first to the Cantonal Appeal Court and ask for recognition and enforcement simultaneously. Switzerland then to the Swiss Federal Tribunal. Depending on the path the judgment creditor follows, the decision on recognition may or may not have a res judicata effect. When recognition is assessed by the court as a prejudicial question in the 2.7 On what grounds can recognition/enforcement of a context, for example, of an application for enforcement of the foreign judgment be challenged? When can such a challenge be made? judgment, the decision of the Swiss court would only bind the parties in that specific dispute, meaning that it would not have a res judicata effect in other cases. In order for the decision on recognition to have Recognition and enforcement proceedings are contradictory a full res judicata effect, recognition must be the subject matter of the proceedings (unlike under the revised Lugano Convention where application to the court and not only a prejudicial question. the first instance proceedings are ex parte) governed by regular procedural rules. The opposing party may thus present its defence against enforcement of a foreign decision as early as in front of the 2.6 Briefly explain the procedure for recognising and first instance judge. enforcing a foreign judgment in your jurisdiction. Regarding procedural grounds to challenge recognition, please see question 2.2 above. Recognition of foreign decisions is governed by the PILA and the CPC. These statutes provide for several different procedures A number of substantive grounds allow the debtor to challenge available to the parties: the enforcement of the foreign decision. As the latter would be recognised by Swiss courts, only the facts which are posterior to the ■ Application for recognition of a foreign decision by way of an action for a declaratory judgment if the requestor has a foreign judgment may be invoked by the parties. legitimate interest to lift uncertainty. To challenge the enforcement of a pecuniary claim, the judgment ■ Application for the issuance of a declaration of enforceability debtor may, on the merits, argue that: of the foreign decision, without applying for its enforcement ■ the debt was already totally or partially paid; (Art. 28 PILA). ■ the claim has reached the statute of limitations; or ■ Reliance of a party on a foreign decision with respect to a ■ the creditor has granted a respite. preliminary issue: the authority before which the case is pending may itself rule on the recognition (Art. 29 para. Enforcement of specific performance obligations can be challenged 3 PILA). This is often the case when a party files an on the following grounds: application for enforcement of a foreign decision, without ■ the obligation is subject to a condition precedent (Art. 151 having previously had a decision on its recognition. para. 1 Swiss Code of Obligations (SCO)); The law applicable to the enforcement of a foreign decision, and ■ the performance is subordinated to a counter-performance thus the procedure to follow, depends on the type of claim the (Art. 82 and 83 SCO); judgment creditor has: ■ the obligation is extinguished; ■ Pecuniary claims must be enforced according to the DEBA, ■ set off has occurred; and and subsidiarily, the CPC. ■ the claim reached the statute of limitations. ■ Enforcement of any other claim is directly submitted to the The court does not benefit from much discretion in its analysis. CPC (Art. 335–352 CPC). The conditions for recognition and enforcement are to be found in Along with the application for recognition and enforcement, the the law and there is not much room for interpretation. Regarding party must submit the following documents: abstract grounds such as public policy, the courts tend to have a (a) the original decision or a full certified copy; restrictive approach to favour as much recognition as possible. In (b) a statement certifying that the decision is final or may no order for the latter to be refused, the violation of Swiss public policy longer be appealed in the ordinary way. If enforcement must be gross. is also requested, a certificate of enforceability of the judgment should also be provided in order to document the On a final note, to protect itself before the launch of any enforcement enforceability, even though the production of such certificate proceedings, the judgment debtor may file a pre-emptive brief to the is not a legal requirement; and first instance court of the cantons where he fears that the judgment (c) in case of a default judgment, an official document creditor might file an application for ex parte measures (unlike the establishing that the defaulting party was given proper notice regime under the revised Lugano Convention where no pre-emptive and had the opportunity to present its defence. It is usually brief can be taken into consideration by the first instance judge). enough to prove that the defendant has had enough time to Such briefs are usually valid for six-month periods, which can be present its defence and could have attended the first hearing renewed. in front of the foreign tribunal.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 189 Bär & Karrer Ltd. Switzerland
2.8 What, if any, is the relevant legal framework applicable 2.11 What is your court’s approach to recognition and to recognising and enforcing foreign judgments enforcement of a foreign judgment that purports to relating to specific subject matters? apply the law of your country?
Regardless of the subject matter, the general provisions of the PILA No matter the applicable substantive law to a foreign judgment, it on recognition and enforcement of foreign decisions are applicable belongs to the merits of the case that cannot be reviewed by the Swiss (Art. 25ff PILA) (see question 2.2 above). Yet, these general courts unless it breaches Swiss public policy (see question 2.10). provisions provide for the application of specific provisions, if any.
Thus, one always needs to refer to the specific section of the PILA 2.12 Are there any differences in the rules and procedure dealing with the subject matter of the foreign decision in order to of recognition and enforcement between the various Switzerland apply any lex specialis. Such lex specialis exist, among others, states/regions/provinces in your country? Please regarding filiation, matrimonial regime, divorce and separation, explain. inheritance, protection of adults and children, adoption, intellectual property, trusts, property law, etc. Historically, each canton had its own civil procedural set of rules. However, since 2011, recognition and enforcement proceedings have been harmonised throughout the country and the Swiss Federal 2.9 What is your court’s approach to recognition and Civil Procedural Code is now applicable to the entire territory. enforcement of a foreign judgment when there is: (a) a conflicting local judgment between the parties relating Nevertheless, and even though the applicable law is now unified, to the same issue; or (b) local proceedings pending each canton still has its own judicial and debt enforcement between the parties? authorities. As a consequence, although the rules are the same, their application can deviate from one canton to another. This is (a) Recognition and thus enforcement in Switzerland are denied typically the case in respect of the recognition of foreign interim when a dispute between the same parties and with the same measures that can be granted more or less easily depending on the subject matter has already been judged in Switzerland, or it canton where such requests are filed. Finally, one needs to keep in was judged previously in a third state, provided that the latter mind that proceedings in Switzerland might be in French, German decision fulfils the conditions for its recognition (Art. 27 para. 2 lit. c PILA; see question 2.2 above). or Italian, depending on the canton in which they are conducted. This principle is closely linked to the principle of lis pendens: if the foreign court was seized before the Swiss court, the 2.13 What is the relevant limitation period to recognise and latter must suspend the proceedings until the foreign court has enforce a foreign judgment? rendered its judgment (Art. 9 PILA). Nonetheless, if the legal proceedings were first commenced abroad and subsequently There is no limitation period to recognise a foreign judgment. in Switzerland, but the parties did not challenge the Swiss court’s jurisdiction on this ground, the Swiss judgment wins Similarly, there is no limitation period to enforce a claim. Swiss law over the foreign one once it comes into legal force. Also, considers statutes of limitations as a substantive matter, subject to when there are two or more recognisable foreign decisions the applicable law to the merits of the case. on the same issue between the same parties, what matters is As such, if the claim is time-barred, the debtor can validly challenge when the first decision was rendered, and not when the first its enforcement. legal proceedings were commenced. In a case where Swiss law is applicable to the merits and the (b) Recognition and thus enforcement in Switzerland are denied when a dispute between the same parties and with the judgment establishes the claim, the statute of limitations lasts 10 same subject matter is the subject of pending proceedings years from the date of the judgment (Art. 137 of the SCO). in Switzerland. For instance, this is the case when legal proceedings were commenced first in Switzerland, even though the foreign court was faster in rendering its decision. 3 Special Enforcement Regimes Applicable to Judgments from Certain Countries
2.10 What is your court’s approach to recognition and enforcement of a foreign judgment when there is a 3.1 With reference to each of the specific regimes set conflicting local law or prior judgment on the same or out in question 1.1, what requirements (in form and a similar issue, but between different parties? substance) must the judgment satisfy in order to be recognised and enforceable under the respective Under Swiss law, to grant recognition, a foreign decision cannot regime? be reviewed on the merits (Art. 27 para. 3 PILA). Insofar as the judgment does not substantively breach Swiss public policy, All bilateral treaties set out in question 1.1 have, today, a limited the court cannot review the merits of the case. However, when scope in practice. Indeed, they are most often replaced by more enforcing the foreign decision, the Swiss court must analyse the recent conventions, such as the Convention on jurisdiction and the merits of the case and “translate” the judgment into concepts known recognition and enforcement of judgments in civil and commercial by Swiss law in order to render it compatible and enforceable under matters dated 30 October 2007 (Lugano Convention), and thus lack the Swiss legal system. relevancy. Also, in Switzerland, the most lenient regime should For the above-stated reasons, conflicting Swiss laws or precedents apply to questions of recognition and enforcement, which in most between third parties, if they do not belong to the realm of Swiss cases is the PILA or multilateral conventions. Therefore, these public policy applicable to the recognition and enforcement of bilateral treaties, as well as conventions on specific matters, will not foreign decisions, are not going to be taken into account by the court. be discussed in this chapter.
190 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Bär & Karrer Ltd. Switzerland
In Switzerland, the most relevant treaty in respect of recognition and ■ a certificate of enforceability issued by the foreign court or enforcement is obviously the revised Lugano Convention, on which authority using the standard form V of the Lugano Convention we will focus on in this chapter. or any equivalent document. The foreign judgment needs to be enforceable in the country of origin, regardless of whether Under the revised Lugano Convention, the judgment must be final it is final or not. and binding to be subject to recognition and enforcement and no ground for refusal shall exist. The party against whom recognition Swiss court might ask for the translation of the documents (Art. 55 is sought may apply for the stay of the Swiss proceedings if the para. 2 Lugano Convention). foreign judgment is not final or an appeal has been filed against it There is no analysis of the compatibility of the judgment with Swiss (Art. 46 Lugano Convention). public policy or other grounds for refusal at this stage (Art. 41 Since the first instance proceedings are not contradictory, grounds for Lugano Convention).
refusal can only be raised and shall only be examined by the appeal Unlike the PILA proceedings, the proceedings to declare a foreign Switzerland court. Once served with the Swiss decision declaring enforceability judgment enforceable in Switzerland under the Lugano Convention of the foreign one, the opposing party can launch an appeal (Art. are not adversarial; once the formalities stated above are completed, 43 Lugano Convention). The grounds for refusal from which he the judgment is immediately declared enforceable (Art. 41 Lugano can benefit from are limited and are set out in Articles 34 and 35 of Convention). It is only after the end of the first instance proceedings the Lugano Convention (Art. 45 para. 1 Lugano Convention). In that the Swiss judgment declaring enforceability is served to the essence, recognition shall be refused if the judgment is: opposing party (Art. 42 para. 1 Lugano Convention). ■ manifestly contrary to Swiss public policy; ■ irreconcilable with a judgment given in a dispute between the 3.4 With reference to each of the specific regimes set out same parties in the State in which recognition is sought; in question 1.1, on what grounds can recognition/ ■ irreconcilable with an earlier judgment given in another enforcement of a judgment be challenged under the State involving the same cause of action and between the special regime? When can such a challenge be made? same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in Switzerland; and Under the Lugano Convention, similarly to the PILA, the merits of ■ rendered in violation of an exclusive jurisdiction under the case are not reviewed and thus merit-based defences cannot be the Lugano Convention (Art. 22 Lugano Convention). raised (Art. 45 para. 2 Lugano Convention). As to the grounds for Otherwise, the Swiss court may not review the jurisdiction of refusal, please refer to question 3.1. a Member State. Finally, it is worth mentioning that in order for a foreign judgment 4 Enforcement given in default of appearance to be declared enforceable under the Lugano Convention in Switzerland, the defendant must have been regularly served with the document that instituted the proceedings 4.1 Once a foreign judgment is recognised and enforced, or with an equivalent document in sufficient time and in such what are the general methods of enforcement a way as to enable him to arrange for his defence (Art. 34 para. available to a judgment creditor? 2 Lugano Convention). Switzerland made a reservation to this article in order to strengthen the protection of the defaulting party; The enforcement methods available to the judgment creditor depend Switzerland would refuse enforcement of a judgment given in on the qualification of its claim, whether it is pecuniary or another default of appearance when the defendant was not regularly served, type of claim. The former is governed by the DEBA and the latter even though the defendant could have commenced proceedings to by the CPC. challenge the judgment. As such, Switzerland is more severe than The common methods of the enforcement of a debt are: other Lugano Convention Member States. ■ Ex parte attachment proceedings: this interim court remedy allows distrain of the assets of the debtor in order to guarantee 3.2 With reference to each of the specific regimes set out payment of his debt. As it is an ex parte interim measure, it in question 1.1, does the regime specify a difference must be confirmed by commencing collection proceedings. between recognition and enforcement? If so, what is If the claim is due and unsecured, the creditor may request the difference between the legal effect of recognition attachment if he can establish on a prima facie basis: and enforcement? ■ the existence of his claim; ■ the ground for attachment. It could be any of the following: Under the Lugano Convention, recognition is automatic and thus does not necessarily require any specific proceedings. Similarly ■ the debtor has no fixed domicile; to the PILA (see question 2.3), the creditor may directly file for ■ the debtor deliberately evades his obligations, removes enforcement without having the foreign decision recognised in a his assets, leaves the country or intends to do so; prior and separate proceeding. ■ the debtor’s presence is only transient; ■ the debtor has no residence in Switzerland; in that case, if there is no other ground for attachment, the debt must 3.3 With reference to each of the specific regimes set have a sufficient link with Switzerland or it must be out in question 1.1, briefly explain the procedure for recognising and enforcing a foreign judgment. based on an acknowledgment of indebtedness; ■ the creditor has obtained a definitive or provisional certificate of loss against the debtor (insolvency or If the judgment creditor wants to have his foreign judgment bankruptcy); or declared enforceable in Switzerland under the Lugano Convention, the following documents need to be produced (Art. 41, 53 and 54 ■ the creditor holds an enforceable judgment; and Lugano Convention): ■ the existence of assets belonging to the debtor in Switzerland. ■ a certified copy of the judgment; and
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 191 Bär & Karrer Ltd. Switzerland
■ Collection proceedings: the creditor may commence collection proceedings to seize the debtor’s assets in order to 5 Other Matters enforce its debt or to validate an attachment order. Here are the standard steps of the collection proceedings: 5.1 Have there been any noteworthy recent (in the last ■ the creditor files a request with the Debt Collection Office 12 months) legal developments in your jurisdiction for the issuance of a Summons for Payment; relevant to the recognition and enforcement of foreign ■ Debt Collection issues and serves the Summons for judgments? Please provide a brief description. Payment upon the debtor; ■ the debtor may oppose the Summons for Payment by a A consultation procedure has been open in Switzerland since written or oral declaration without being required to state October 2015 to amend the Swiss Private International Law Act any grounds in support of his opposition; and regarding bankruptcy, and in particular to facilitate the recognition Switzerland ■ in case of opposition, the creditor must apply to the of foreign bankruptcy decisions. This project modernises the Swiss competent court to have the debtor’s opposition lifted. regimes and adopts some of the UNCITRAL propositions. If the pecuniary claim stems from a foreign judgment, the creditor This modification would also abrogate old bilateral conventions can start any of these proceedings in Switzerland and the court of Switzerland regarding recognition and enforcement, which, in will have to assess, as a preliminary issue, whether such foreign practice, are merely relevant nowadays. judgment may be recognised and enforced in Switzerland. In other It is too early to assess whether the amendments will ever enter into words, it is unnecessary to ask for recognition and enforcement as a force, and, if they do, when. prerequisite to the above-stated proceedings. Enforcement of foreign judgments that are not subjected to the 5.2 Are there any particular tips you would give, or DEBA, i.e. judgments requiring specific performance, are governed critical issues that you would flag, to clients seeking by the CPC. The enforcement involves an obligation to do, to to recognise and enforce a foreign judgment in your abstain or to tolerate (Art. 343 para. 1 CO). Therefore, it needs a jurisdiction? case-by-case analysis, and might even have become impossible, in which case the court must transform the specific performance into The parties must be diligent during the entire legal proceedings in a pecuniary damage. front of the foreign court to make sure that, at a later stage, there Common means available to the judgment creditor to enforce a would not be any grounds for denial of recognition and enforcement. specific performance are: The parties must specially bear in mind during the foreign ■ the threat of a criminal sanction (a fine for contempt of court) proceedings that the breach of the right to be heard of a party is one or financial penalty; of the most common grounds for challenge. To make sure the right ■ the use of direct constraint (coercive imprisonment is to be heard is well respected, particularly given the serious stand forbidden in Switzerland); of Switzerland regarding that question, the parties must carefully ■ an order for surrogate measures (a third person must perform assess whether the opposing party was properly served. When the obligation in lieu of the debtor); and service was transnational, they must also make sure that it was made ■ the conversion of the specific performance into a pecuniary in compliance with the Hague Convention on the Service Abroad performance (ultima ratio). of Judicial and Extrajudicial Documents in Civil or Commercial The requesting party can also apply for interim measures that could Matters of 15 November 1965, where applicable. be granted on an ex parte basis. The recognition and enforcement of interim injunctions can give rise to various issues and are not always straightforward. Whilst it is debated whether they can be enforced under the PILA, interim injunctions clearly can be enforced under the Lugano Convention. However, the enforcing of foreign interim injunctions might be more difficult than requesting such injunctions in Switzerland directly, pending the foreign outcome on the merits.
192 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Bär & Karrer Ltd. Switzerland
Saverio Lembo Aurélie Conrad Hari Bär & Karrer Ltd. Bär & Karrer Ltd. 12, quai de la Poste, CH-1211 12, quai de la Poste, CH-1211 Geneva 11 Geneva 11 Switzerland Switzerland
Tel: +41 58 261 57 00 Tel: +41 58 261 57 00 Email: [email protected] Email: [email protected] URL: www.baerkarrer.ch URL: www.baerkarrer.ch
Saverio Lembo heads Bär & Karrer’s White Collar Crime practice group, Aurélie Conrad Hari is a partner in the dispute resolution group of the as well as the Litigation and Arbitration Team of the Geneva office. Geneva office. Her practice focuses on domestic and international Switzerland litigation, as well as arbitration. She regularly advises individuals and He has extensive experience in white-collar crime, commercial and corporate entities in complex cross-border cases through all stages financial litigation, international judicial assistance (civil and criminal), of the dispute including enforcement of arbitral awards or court arbitration and insolvency. During recent years, he has been involved decisions. Her practice encompasses banking, financial, commercial in a number of complex commercial litigation proceedings, has and corporate matters as well as trust and estate disputes. served as a party representative or arbitrator in various domestic and international commercial arbitrations and has assisted clients in Swiss and foreign criminal proceedings. Saverio Lembo’s practice also extends to pharmaceutical litigation, inheritance law, employment matters and enforcement of foreign judgments and awards.
Bär & Karrer is a renowned Swiss law firm with more than 150 lawyers in Zurich, Geneva, Lugano and Zug. Our core business is advising our clients on innovative and complex transactions and representing them in litigation, arbitration and regulatory proceedings. Our clients range from multinational corporations to private individuals in Switzerland and around the world. Most of our work has an international component. We have broad experience handling cross-border proceedings and transactions. Our extensive network consists of correspondent law firms which are all market leaders in their jurisdictions. Bär & Karrer was repeatedly awarded Switzerland Law Firm of the Year by the most important international legal ranking agencies in recent years. ■■ 2016, 2015 and 2014 Mergermarket European M&A Awards. ■■ 2016, 2013 and 2012 Chambers Awards. ■■ 2016, 2015 and 2014 The Legal 500 (“most recommended law firm in Switzerland”). ■■ 2016 Trophées du Droit. ■■ 2015 and 2014 IFLR Awards. ■■ 2015, 2014, 2013, 2011, 2010 The Lawyer European Awards. ■■ 2015 Citywealth Magic Circle Awards (“Law firm of the Year – EMEA”). ■■ 2014 Citywealth International Financial Centre Awards.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 193 Chapter 35
Taiwan Hung Ou Yang
Brain Trust International Law Firm Jia-Jun Fang
judgment must be a final and binding decision, which is rendered by the 1 Country Finder foreign court regarding the private relationships between the petitioner and the respondent, and which cannot be appealed or changed in such 1.1 Please set out the various regimes applicable foreign court under the foreign laws. The petitioner must provide a to recognising and enforcing judgments in your certificate or a document issued by the foreign court or the relevant jurisdiction and the names of the countries to which authority to prove that the foreign judgment is final and binding. such special regimes apply. A foreign ruling regarding guardianship, litigation fees, the parental right and obligation would also be recognisable and enforceable. In Applicable Law/ Relevant Corresponding general, when the court decision is made after holding a hearing for Statutory Regime Jurisdiction(s) Section Below the due process, the Taiwan courts may recognise it under Article Taiwan is a civil 402 of the Taiwan Code of Civil Procedure. law country. The Taiwan Code of However, neither preliminary attachment nor injunction is Civil Procedure and recognisable and enforceable in Taiwan because they are not final Taiwan (Republic of the Taiwan Code Section 2. China). and binding decisions. In addition, Taiwan courts have not made of Enforcement are a decision regarding whether the mediation minute rendered by the the applicable laws foreign court or the settlement made in front of the foreign court regarding enforcing judgments. is recognisable and enforceable. Taiwan courts have not made a decision regarding whether the notarised certificate issued by the foreign court is recognisable and enforceable. 2 General Regime 2.3 What requirements (in form and substance) must a foreign judgment satisfy in order to be recognised 2.1 Absent any applicable special regime, what is the and enforceable in your jurisdiction? legal framework under which a foreign judgment would be recognised and enforced in your Formally, the foreign judgment or ruling must be a final and jurisdiction? binding judgment or ruling rendered by a foreign competent court. Substantially, it will be recognised by a Taiwan Civil Court or any The recognition and enforcement of a foreign judgment or ruling is other government agency as long as it does not fall into one of governed by the Taiwan Code of Civil Procedure. Pursuant to Article the exceptions listed by Article 402 of the Taiwan Code of Civil 402 of the Taiwan Code of Civil Procedure, a final and binding Procedure. There are four exceptions under Article 402. A foreign judgment or ruling rendered by a foreign court will be recognised judgment or ruling will not be recognised: except for certain situations, one of which is violating due process of (1) where the foreign court lacks jurisdiction pursuant to the law or the public policy of Taiwan. After obtaining such a Taiwanese Taiwanese laws; judgment regarding recognition, it can be enforced in the Taiwanese (2) where a default judgment is rendered against the losing jurisdiction by filing a petition for enforcement in a Taiwanese court. defendant, except in the case where the notice or summons of Therefore, in order to enforce a foreign judgment in Taiwan, the first the initiation of action had been legally served in a reasonable step is to file a petition for the purpose of recognition. time in the foreign country or had been served through In addition, all the legal documents for the recognition and judicial assistance according to the Taiwanese laws; enforcement must be written or translated into Chinese. The foreign (3) where the performance ordered by such judgment or its judgment and its exhibits must be translated into Chinese as well. litigation procedure is against Taiwanese public policy or Please check more procedural details in questions 2.5 and 2.6. morals; or (4) where there exists no mutual recognition between the foreign country and Taiwan. 2.2 What constitutes a ‘judgment’ capable of recognition and enforcement in your jurisdiction? According to the Taiwan Code of Enforcement, a foreign judgment or ruling will be enforced if it does not meet any exceptions listed The definition of “judgment” will be subject to Taiwanese laws by Article 402 and if the Taiwanese court permits such foreign regardless of the name used by the foreign court. In general, the judgment to be enforced by a judgment of recognition.
194 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Brain Trust International Law Firm Taiwan
of the time, the defendant will challenge the foreign judgment or 2.4 What (if any) connection to the jurisdiction is required ruling in the Taiwanese court because the foreign court does not use for your courts to accept jurisdiction for recognition judicial assistance via a diplomatic channel for the service of legal and enforcement of a foreign judgment? documents in Taiwan. Most of the time, the foreign judgment will be challenged when According to Article 402 of the Taiwan Code of Civil Procedure, the losing defendant does not appear in front of the foreign court. the foreign court must have recognised the Taiwanese court. That The losing defendant will argue that their procedural right has not is to say, there must be “mutual recognition” as provided by Article been protected because the default judgment is rendered in the 402(4) of the Taiwan Code of Civil Procedure. absence of the participation of the defendant. See Article 402(2) of the Taiwan Code of Civil Procedure. Even though the defendant Taiwan 2.5 Is there a difference between recognition and based in Taiwan is served with all the legal documents, like the enforcement of judgments? If so, what are the legal court notice and summons, in compliance with the foreign laws, effects of recognition and enforcement respectively? the Taiwan court will accept the defendant’s argument against the default foreign judgment that the legal documents are not served Yes. The recognition of a foreign judgment or ruling may be as per Taiwanese laws. In compliance with the Taiwanese laws, all conducted by any government agency. Once recognised, a foreign the legal documents must be served by the Taiwanese courts. For judgment or ruling is considered as effective. For example, the example, the foreign court must first request its embassy in Taiwan Household Registration Office of Taiwan can recognise a foreign to initiate judicial assistance, asking the Taiwan Ministry of Foreign judgment or ruling in relation to divorce so that the Household Affairs to transfer the legal documents to the relevant Taiwan court. Registration Office of Taiwan can register a divorce with such Then the court clerk will effectuate the service. It is not necessary to foreign judgment even though there is no Taiwanese judgment. effectuate the service by way of personal service. This is the reason However, the enforcement of a foreign judgment or ruling for why most of the defendants located in Taiwan would simply decline attachment can only be conducted by a court, and before such to appear in front of the foreign court if the foreign court notice or enforcement, it requires a judgment of recognition by a Taiwanese summons are not served by the Taiwanese courts. court. However, if the foreign judgment does not require a hearing for oral arguments, such foreign judgment will be recognisable and 2.6 Briefly explain the procedure for recognising and enforceable when the defendant submits an affidavit to the foreign enforcing a foreign judgment in your jurisdiction. court in response to the plaintiff/petitioner. Such kind of judgment will not be considered a default judgment which is not recognisable First, an original copy of the foreign judgment or ruling and a and enforceable even though the defendant does not appear in front certificate of its final and binding effects is required, both of which of the foreign court. See 92 Supreme Court TaiShan (台上) No. shall be issued by the competent foreign court. These documents 883. Therefore, the best practice for the defendant in Taiwan is not shall be certified by a local notary public, the local Ministry of to submit any affidavit unless the Taiwanese court effectuates the Foreign Affairs, and the Taiwanese Embassy or Taipei Economic service for the foreign court. and Culture Office (“TECO”), respectively. Further, a complete The best practice for the plaintiff/petitioner who is seeking justice in Chinese translation of these documents to be certified by a a foreign court is to effectuate the service in compliance with both Taiwanese notary public is required. After all these procedures, the Taiwanese laws and the foreign laws. In this regard, our firm can the foreign judgment or ruling with these certified documents could assist our clients to satisfy all the procedural requirements. Our firm be submitted to a proper government agency for recognition. For suggests that filing a lawsuit against the defendant located in Taiwan example, a foreign divorce judgment or ruling could be submitted is much faster and convenient. to the Household Registration office of Taiwan. If the purpose is to Furthermore, when the foreign court does not recognise the Taiwanese enforce a foreign judgment, an enforcement petition must be filed to judgments, the mutual recognition requirement will not be satisfied. a Taiwan competent court after obtaining a Taiwanese judgment of According to the records in the Taiwanese courts, judgments recognition. For example, if you need an attachment of a specific rendered in the USA, UK, Canada, Germany, Japan, Korea, property owned by the debtor, you need to file an enforcement Hong Kong, China (“PRC”), Singapore, Belgium, Switzerland, petition to a Taiwanese court where the property is located after the New Zealand, Australia, and Malaysia, will be recognisable and Taiwanese court renders a judgment of recognition. enforceable because the mutual recognition requirement is satisfied. For foreign judgments rendered in other countries, our firm suggests 2.7 On what grounds can recognition/enforcement of a that it would be better to file a new lawsuit against the defendant in judgment be challenged? When can such a challenge Taiwan and use the foreign judgments as a leverage. be made? In addition, the Taiwanese court in charge of enforcement will not further review the four issues if a judgment of recognition is A Taiwan court may not review the fact-findings and legal opinions rendered, although the Taiwanese Code of Enforcement still states of a foreign judgment or ruling in terms of recognition. However, that the four issues shall be examined during the enforcement the court would review the following four issues if challenged by procedures. the respondent: (1) whether the foreign court lacks jurisdiction pursuant to Taiwanese laws; (2) whether a default judgment is rendered against the losing defendant, but the notice or summons of 2.8 What, if any, is the relevant legal framework applicable the initiation of action had been legally served in a reasonable time to recognising and enforcing foreign judgments in the foreign country or had been served through judicial assistance relating to specific subject matters? provided under the Taiwanese laws; (3) whether the performance ordered by such judgment or its litigation procedure is against There is no other legal framework for specific subject matters. Taiwanese public policy or morals; and (4) whether there exists no Article 402 of the Taiwan Code of Civil Procedure applies to all mutual recognition between the foreign country and Taiwan. Most kinds of foreign judgment or ruling in relation to recognition.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 195 Brain Trust International Law Firm Taiwan
2.9 What is your court’s approach to recognition and 3 Special Enforcement Regimes Applicable enforcement of a foreign judgment when there is: (a) a to Judgments from Certain Countries conflicting local judgment between the parties relating to the same issue; or (b) local proceedings pending between the parties? 3.1 With reference to each of the specific regimes set out in question 1.1, what requirements (in form and (a) It is a rare situation where a foreign judgment is conflicting with substance) must the judgment satisfy in order to be a Taiwanese judgment between the parties relating to the same recognised and enforceable under the respective issue. Such foreign judgment may or may not be recognised regime? by the Taiwanese court based on the conflicting performance Taiwan pursuant to Article 402 of the Taiwan Code of Civil Procedure. The same applies as mentioned in question 2.12. There is no special (b) If the court reasonably believes (1) that the foreign lawsuit is enforcement regime in Taiwan. filed before the Taiwanese action, (2) that the foreign court’s future judgment may be recognised in Taiwan, and (3) that it 3.2 With reference to each of the specific regimes set out is not substantially inconvenient for the defendant to appear in question 1.1, does the regime specify a difference in front of the foreign country, the Taiwanese court, by a between recognition and enforcement? If so, what is ruling, may stay the proceeding until the entry of a final and the difference between the legal effect of recognition binding judgment in that foreign country, except where the and enforcement? parties have otherwise consented to have the subject matter adjudicated by the Taiwanese court. If the foreign court’s judgment is filed after the Taiwanese lawsuit, the Taiwanese The same applies as mentioned in question 2.12. There is no special court may continue the proceedings. enforcement regime in Taiwan.
2.10 What is your court’s approach to recognition and 3.3 With reference to each of the specific regimes set enforcement of a foreign judgment when there is a out in question 1.1, briefly explain the procedure for conflicting local law or prior judgment on the same or recognising and enforcing a foreign judgment. a similar issue, but between different parties? The same applies as mentioned in question 2.12. There is no special The Taiwanese court may consider this situation a violation of local enforcement regime in Taiwan. public policy, pursuant to Article 402 (3) of the Taiwan Code of Civil Procedure. The Taiwan court probably will deny recognition 3.4 With reference to each of the specific regimes set out of the foreign judgment. Thus, it will also be unenforceable. in question 1.1, on what grounds can recognition/ enforcement of a judgment be challenged under the special regime? When can such a challenge be made? 2.11 What is your court’s approach to recognition and enforcement of a foreign judgment that purports to apply the law of your country? The same applies as mentioned in question 2.12. There is no special enforcement regime in Taiwan. Generally, the Taiwanese court will respect and recognise a final and binding foreign judgment or ruling unless the recognition and enforcement will cause a serious impact or conflict with local public 4 Enforcement policy. When a foreign judgment applies the Taiwanese laws, the court will recognise and enforce it except in certain situations as 4.1 Once a foreign judgment is recognised and enforced, provided under Article 402 of the Taiwan Code of Civil Procedure. what are the general methods of enforcement available to a judgment creditor?
2.12 Are there any differences in the rules and procedure of recognition and enforcement between the various Generally speaking, once a foreign judgment is recognised and states/regions/provinces in your country? Please enforced, the creditor may request a seizure order against all explain. the assets of the debtor and the court will hold auctions to sell those assets to satisfy the debtor’s rights in relation to monetary No, there are no differences in the rules and procedure of recognition compensation. and enforcement between the various provinces in Taiwan. In addition, the debtor may be imprisoned for no more than three months for refusing to abide by the Taiwanese order if certain 2.13 What is the relevant limitation period to recognise and conditions are met. enforce a foreign judgment?
Generally speaking, a foreign judgment will be challenged when it is enforced after 15 years starting from the date when the foreign judgment or ruling becomes final and binding. However, a foreign judgment may still be recognised by Taiwanese government.
196 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Brain Trust International Law Firm Taiwan
5 Other Matters 5.2 Are there any particular tips you would give, or critical issues that you would flag, to clients seeking to recognise and enforce a foreign judgment in your 5.1 Have there been any noteworthy recent (in the last jurisdiction? 12 months) legal developments in your jurisdiction relevant to the recognition and enforcement of foreign judgments? Please provide a brief description. If the Taiwanese court also has jurisdiction over the client’s subject matter, we would suggest our client file a petition for provisional seizure or provisional injunction against all the assets of the debtor Taiwanese courts increasingly recognise foreign judgments, rulings in case the debtor hides his assets. Freezing the debtor’s assets can and arbitration awards from different foreign countries. However, in
ensure future enforcement of a foreign judgment or ruling. Taiwan 2016, the Taiwan High Court declined to recognise a judgment from the British Virgin Islands (“BVI”) because BVI has not recognised judgments rendered by Taiwanese courts. See 103 Taiwan High Court Shan (上) No. 493.
Hung Ou Yang Jia-Jun Fang Brain Trust International Law Firm Brain Trust International Law Firm 20F-1, No. 76, Sec. 2, Dunhua S. Rd. 20F-1, No. 76, Sec. 2, Dunhua S. Rd. Taipei Taipei Taiwan Taiwan
Tel: +886 2 2707 9976 Tel: +886 2 2707 9976 Email: [email protected] Email: [email protected] URL: www.btlaw.com.tw URL: www.btlaw.com.tw
Hung Ou Yang is the Managing Attorney of Brain Trust International Jia-Jun Fang specialises primarily in legal translations of trial Law Firm, and specialises in handling transnational legal disputes, documents and contracts. In addition, his abundant experience in business and white collar crime, business litigations, and the domestic litigations qualifies him to provide clients with strategies for negotiation and drafting of international agreements. conflict and dispute resolution. Hung Ou Yang has successfully resolved many high-profile civil, criminal, and transnational disputes, including a complaint concerning pesticide-contaminated land leased by RT-Mart, disputes regarding the sales of target redemption forwards (“TRFs”) by Bank Sinopac, an anti-dumping investigation in connection with CSC’s carbon steel plate, transnational property litigations concerning an internationally- renowned scholar, and transnational money-laundering and embezzlement of assets of insurance companies. Hung Ou Yang also has a wealth of experience in domestic and overseas litigations and negotiations.
Brain Trust International Law Firm (“Brain Trust” or the “Firm”), ranked tier 2 law firm and recommended by The Legal 500, provides the highest quality legal opinions on the most complex issues challenging clients, whether in litigation, transactions, or regulatory compliance. Our clients include individuals and business entities achieving success globally and locally. Many are at the top of their market fields, ranging from small companies to multinational corporations in all major industries, including manufacturing, consumer services, and technology, as well as government entities. This Firm has always been dedicated in every respect to the pursuit of justice and ultimate victory in every case and for every client with which we have had the honour of working with. The equality and justice of the judicial system stand both as the foundations upon which this Firm is built, and also as the ideals that drive this Firm to work tirelessly year after year to put into these ideals into practice in our unending efforts to achieve equality and justice for every one of our clients. Our Firm values not only the learned consideration of experienced professionals; at the same time, we emphasise the ultimate satisfaction of our clients. We invest considerable time and effort into every case we take, and we value the participation of our clients. To ensure that our clients receive the service they deserve, our Firm emphasises that laws around the world governing corporate liability are changing. Top multinational corporations understand that these continuous changes are both important and create hard-to-manage complexities. This Firm has long been devoted to tracking and analysing these changes in order to provide the very best service to our clients.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 197 Chapter 36
Turkey
Esenyel|Partners Lawyers & Consultants Selcuk S. Esenyel
recognition and enforcement of foreign judgments are important for 1 Country Finder the international recognition of Turkish law. The Act on Private International Law and International Procedural 1.1 Please set out the various regimes applicable Law No.5718 (“PIL”) dated 27 November 2007 is the main legislation to recognising and enforcing judgments in your that regulates the enforcement and recognition of foreign judgments. jurisdiction and the names of the countries to which There are other legislations which are specific to different areas and such special regimes apply. mainly concerns family law.
Applicable Law/ Relevant Corresponding Statutory Regime Jurisdiction(s) Section Below 2.2 What constitutes a ‘judgment’ capable of recognition and enforcement in your jurisdiction? Convention on the Contract for the All countries International Carriage A judgment is a decision of the foreign court relating to civil matters signatory to the Section 3. of Goods by Road Convention. and is final in accordance with the laws of that country. No further of 19 May 1956 right to appeal must be available for the case in the foreign courts. (“CMR”). Convention concerning All countries 2.3 What requirements (in form and substance) must a International Carriage signatory to the Section 3. foreign judgment satisfy in order to be recognised by Rail of 9 May Convention. and enforceable in your jurisdiction? 1980. New York In order to enable a party to decide whether the foreign judgment Convention on the All countries can be recognised or enforced the preconditions must be looked Recognition and signatory to the Section 3. Enforcement of into. There must be a judgment given by the foreign courts and this Convention. Foreign Arbitral must relate to civil claims. It can also be used in criminal matters Awards 1958. involving personal rights. The judgment must be final in accordance The Hague with the laws of the concerned foreign country. All countries Convention on Civil signatory to the Section 3. The Turkish courts will look into Article 54 of PIL for foreign Procedure of 1 March Convention. 1954. judgments which satisfy the above requirements for it to be recognised or enforced in Turkey. There must be an existing Convention on the Settlement of agreement between Turkey and the country in concern or a legal Investment Disputes provision or a de facto application by the foreign courts. This is All countries Between States and signatory to the Section 3. only relevant for the enforcement of foreign judgments. Nationals of Other Convention. States of 18 March Furthermore, the enforcement of such decision must not be exclusive 1965 (“Washington to the Turkish court and the foreign judgment must be compliant Convention”). with the Turkish public order. Lastly, the defendant should have been given the right to defend itself before the court. 2 General Regime The Court of First Instance is the authorised court to hear cases relating to the recognition and enforcement of a foreign judgment. 2.1 Absent any applicable special regime, what is the legal framework under which a foreign judgment 2.4 What (if any) connection to the jurisdiction is required would be recognised and enforced in your for your courts to accept jurisdiction for recognition jurisdiction? and enforcement of a foreign judgment?
We are now experiencing a period where a vast amount of agreements A connection to the Turkish courts is not required for the Turkish between parties have an international aspect. Therefore, the courts to accept jurisdiction of a foreign judgment. A foreign
198 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Esenyel|Partners Lawyers & Consultants Turkey
judgment must satisfy the requirements of being recognised and enforced in the Turkish courts in accordance with the Turkish law. 2.7 On what grounds can recognition/enforcement of a judgment be challenged? When can such a challenge be made? 2.5 Is there a difference between recognition and enforcement of judgments? If so, what are the legal The defendant may challenge a foreign judgment on the basis that: effects of recognition and enforcement respectively? ■ the foreign judgment is rendered by the court as unrelated to the matter in dispute; In the recognition of foreign judgments, a mutual agreement ■ the foreign judgment has already been wholly or partially between the two concerned countries is not required. Whereas, executed; or
with the enforcement of a foreign judgment, as stated above, there Turkey must be an agreement or a legal provision or a de facto application ■ there is a ground preventing the enforcement of the foreign judgment. between Turkey and the concerned foreign country. In some instances, the conditions required for the enforcement of a The routes for obtaining judicial recognition and enforcement judgment may not be satisfied, as a party attempts to appeal a foreign are very similar. The recognition of a foreign judgment does not court decision in Turkey. This is not possible and the decision must enable it to be enforced in the Turkish courts. It is merely an be appealed in the country giving the decision. The Turkish courts acknowledgment that it has the same power as a final judgment of will not examine the decision given by the foreign courts. They will the local courts and is a conclusive evidence and decision. only be looking at whether the necessary conditions of recognition and Once a foreign judgment has been enforced in the Turkish Courts enforcement of a foreign judgment have been satisfied. this can be executed. A case will need to be brought to the court’s attention within the time limit permitted by the country given the judgment. The defendant 2.6 Briefly explain the procedure for recognising and can appeal the decision on the basis that the time limit has elapsed. enforcing a foreign judgment in your jurisdiction.
2.8 What, if any, is the relevant legal framework applicable It is possible for a foreign judgment to be recognised and enforced to recognising and enforcing foreign judgments as long as the requirements of PIL are satisfied. relating to specific subject matters? Any person or corporate body that has a right to enforce a legal action can put a request for the enforcement of the foreign judgment In some instances, not all foreign judgments are required to be in the Turkish courts. A petition is filed at the court and should executed in the Turkish Courts. For example, those relating to include the following: divorce proceedings, annulment of marriage or denial of a child by (a) the full names of all the parties, addresses and details of their the parent only require recognition by the Turkish courts to have a legal representatives (if any); legal effect under the Turkish law. (b) the name of the court which gave the decision along with the In some instances, for a judgment or an official document to have date, number and the summary of the judgment; and a legal effect, they must satisfy the requirements of recognition and (c) (even if only) part of a foreign judgment is to be enforced, enforcement in the Turkish courts. This is applicable to any foreign then that particular part must be stated. judgment relating to the adoption of a child. The enforcement petition must include the below which must be If a judgment has been given by an international court such as the apostilled or certified by the Turkish Consulate in the country International Court of Justice under PIL these judgments cannot be concerned: recognised or enforced in the Turkish courts. (a) an approved judgment of the foreign court or the certified copy of the approved judgment along with the authorised translation of the judgment; and 2.9 What is your court’s approach to recognition and enforcement of a foreign judgment when there is: (a) a (b) a letter confirming that it is a final judgment of the foreign conflicting local judgment between the parties relating court along with the authorised translation of it. to the same issue; or (b) local proceedings pending The petition must be served on the defendant along with the date of between the parties? the hearing. The claimant must make an application to the court at the domicile (a) As a condition for bringing proceedings in the Turkish Courts there must not be a previous final judgment between the place of the defendant. If the defendant is a company the case will parties relating to the same issue. This applies to bringing need to be filed at the registered city which the company is registered any civil proceedings in the Turkish courts. to. If the defendant does not reside in Turkey, the proceeding can (b) A foreign judgment cannot be recognised or enforced if there be commenced in any district court in Istanbul, Ankara or Izmir. It is a local proceeding pending between the parties relating to is for the party to decide which of the three cities it wishes to bring the same issue. a claim. Furthermore, a claimant who is a foreign citizen may be obliged 2.10 What is your court’s approach to recognition and to submit a warranty to the court when making an application enforcement of a foreign judgment when there is a to the court to recognise or enforce a judgment. This amount is conflicting local law or prior judgment on the same or determined by the court and may be subject to exemptions due to a a similar issue, but between different parties? mutual agreement between Turkey and the concerned country. If the specific regimes are applicable for the enforcement of foreign PIL does not regulate the enforcement of foreign judgments when judgments these rules must be followed. there is a conflicting local law or prior judgment of the same issue. However, there is a general consensus that the prior judgment supersedes the foreign judgment.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 199 Esenyel|Partners Lawyers & Consultants Turkey
soon as the formalities in that country concerned have been 2.11 What is your court’s approach to recognition and complied with. enforcement of a foreign judgment that purports to 2. When a judgment has become enforceable under the law apply the law of your country? applied by the court of the State, the judgment can be enforced in the Turkish courts once the requirements under There must be a legal reciprocity in respect of the enforcement of PIL have been satisfied as provided under Article 12 of the foreign judgments between Turkey and the country which purports to Convention. enforce judgments given by the Turkish courts. In comparison with 3. This Convention will apply to the recognising and enforcing Turkish law, if there are onerous conditions for the enforcement of a of an arbitral award made in the territory of a State other than foreign judgment in that particular country, it could not be said that Turkey where the recognition and enforcement of such award
Turkey there is a legal consensus between the two countries. Turkish courts is sought. require a similar treatment of their judgment in countries purporting 4. Article 19 of The Hague Convention provides that an order to apply its law. for costs and expenses can be rendered enforceable without a Therefore, it is important that there are similarities and equality hearing in accordance with the Turkish legislation of which enforcement is sought. This is subject to a subsequent appeal between the legal recognition of foreign judgments. The procedures by the losing party. followed by the court in applying the foreign judgment are not of concern. 5. The Washington Convention applies to arbitral awards issued by the International Centre for Settlement of Investment Disputes The principle of de facto reciprocity requires the application of (“ICSID”) for disputes relating to an investment between a Turkish law by the other country to enable it to easily satisfy the signatory State and a national of another signatory State. requirements under Turkish law. If there is no agreement between Turkey and the country where the decision was rendered, such 3.2 With reference to each of the specific regimes set out country must apply the Turkish court judgments similarly. Such in question 1.1, does the regime specify a difference decisions will need to be presented to the Turkish courts. between recognition and enforcement? If so, what is In order to resolve the issue of reciprocity and the similar treatment of the difference between the legal effect of recognition Turkish law by the country concerned, the mutual agreement should and enforcement? be implemented between the countries. If a mutual agreement exists between the countries it would not be necessary to look into the The New York Convention states that once a foreign judgment has concept of legal reciprocity. been recognised it will be denoted to the same effect of a local court Furthermore, Turkish law applies the principle of révision au fond judgment. Whereas, the enforcement of a foreign judgment permits and a judgment will not be reviewed substantially by the Turkish it to be executed in the Turkish courts. court as to whether a correct decision has been made. The Turkish court is concerned with making a decision to allow for a 3.3 With reference to each of the specific regimes set judgment to be recognised and enforced in Turkey. Any concern with out in question 1.1, briefly explain the procedure for the foreign judgment will need to be raised in the country in concern. recognising and enforcing a foreign judgment.
1. When a judgment is enforceable in a country giving the 2.12 Are there any differences in the rules and procedure decision, it can also be enforceable in a State Party to the of recognition and enforcement between the various Convention as long as the formalities described in part two states/regions/provinces in your country? Please have been complied with. It must relate to proceedings out explain. of carriage as provided under the Convention. The CMR does not permit the merits of the case to be re- The law relating to enforcement and recognition of foreign opened in the country which a judgment is being enforced. judgments do not vary between different regions in Turkey. The judgments applicable under this convention are judgments after trial, judgment by default and settlements 2.13 What is the relevant limitation period to recognise and confirmed by an order of the court. enforce a foreign judgment? 2. Pursuant to the provisions of the Convention once the judgment has been enforced in the State giving the decision, There is no specific limitation period for the enforcement of foreign such judgment will be enforceable in the Turkish courts as long as it satisfies the requirements under the domestic law. judgments. However, under Article 8 of PIL the limitation period is subject to the law applicable to the legal transaction. 3. For a foreign judgment to be recognised and enforced the party applying must supply: (a) a duly authenticated original award or a duly certified 3 Special Enforcement Regimes Applicable copy; and to Judgments from Certain Countries (b) an original agreement or a duly certified copy. If the award or agreement is not in Turkish the party applying for recognition or enforcement of the award 3.1 With reference to each of the specific regimes set needs to produce a Turkish translation of these documents out in question 1.1, what requirements (in form and and this must be certified by an official translator ora substance) must the judgment satisfy in order to be diplomatic or consular agent. recognised and enforceable under the respective regime? 4. An order for costs and expenses will be enforceable without a hearing in any other Contracting State. The competent 1. Under Article 31(3) of CMR, a judgment of a contracting authority in Turkey will examine: country will be recognised by the other contracting States as (a) the law of the country in which the judgment is being rendered (the copy of the judgment must be authentic);
200 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Esenyel|Partners Lawyers & Consultants Turkey
(b) if the decision has the force of res judicata; and period of time, the payment order shall become final and binding (c) the translation is provided, which is certified as correct by and any asset of the debtor including the bank accounts, movables a diplomatic officer or a consular agent. and immovables may be attached and sold through auction. If 5. Each of the Contracting States will recognise an award the debtor raises objection to the payment order, the substantive rendered pursuant to the Convention as binding and proceedings shall be commenced for the cancellation of objections enforceable within its territories as if it was a final judgment which is likely to take approximately 12 months of litigation. of a court in that State. The party seeking recognition or Bankruptcy proceedings only apply to merchants in relation to enforcement of the award needs to provide a copy of the their unpaid and due debts. The process is initiated by the creditor award certified by the Secretary-General. making a demand to the Bailiff Office in the debtor’s principal place
of business as registered at the trade registry. Once the demand is Turkey 3.4 With reference to each of the specific regimes set out made, a payment order will be served on the debtor. If the debtor in question 1.1, on what grounds can recognition/ pays the debt within seven days of receiving the payment order the enforcement of a judgment be challenged under the bankruptcy proceedings will finalised. special regime? When can such a challenge be made?
1. Enforcement of a judgment under CMR may be challenged 5 Other Matters on the basis that it relates to interim judgments or award of damages or cost orders made against a plaintiff who has failed in his action. 5.1 Have there been any noteworthy recent (in the last 2. Enforcement of a judgment under this Convention may be 12 months) legal developments in your jurisdiction challenged on the grounds that: relevant to the recognition and enforcement of foreign judgments? Please provide a brief description. (a) it is provisionally enforceable; (b) it relates to award of damages; or There have not been any recent legal developments regarding the (c) it is a cost order made against a plaintiff who fails in his recognition and enforcement of foreign judgments. The relevant action in the State giving the original judgment. legislation, PIL, has been applied for some time now. This is The merits of the case relating to this Convention cannot be important for international relations and the recognition of foreign reviewed by the Turkish courts. judgments in Turkey. 3. Recognition and enforcement of foreign arbitral awards We are at a period where a lot of disputes or matters between parties under the Convention may be challenged on the grounds that: have an international element. Therefore, PIL is important and is a (a) the agreement is not valid; modern legislation which is not in need of urgent reform. (b) a proper notice of arbitral proceedings was not given to The development in this area is usually dependent on the subject the party against whom the award is invoked; matter of the case. If there is a total disregard of Turkish law in the (c) it falls outside of the arbitration agreement; country concerned it will be normal for the Turkish Courts to reject (d) the arbitral procedure is not in accordance with the such foreign judgment. agreement of the parties or was not in accordance with the law of the country where the arbitration took place; 5.2 Are there any particular tips you would give, or (e) the award is not yet binding on the parties, or has been set critical issues that you would flag, to clients seeking aside or suspended; or to recognise and enforce a foreign judgment in your (f) the subject matter of the difference is not capable of jurisdiction? settlement by arbitration under Turkish law. 4. An order will be challenged under this Convention if it does The timescale must be taken into consideration. It is not a quick not relate to orders for costs and expenses. process and different timescales are applicable for the enforcement 5. An award can be challenged if the requirements are not and appeal stages. The enforcement procedure is likely to take fulfilled. around eight to 12 months and the appeal procedure is likely to take a further six to eight months. 4 Enforcement The procedure must be followed carefully as a right to appeal may be available to the party in default in the country giving the decision. For example, if a right to defence is not given to the defendant then 4.1 Once a foreign judgment is recognised and enforced, the recognition and enforcement of such judgment will be void in what are the general methods of enforcement the Turkish courts. available to a judgment creditor? There is no specific treatment to different countries under the Turkish law. For example, it does not matter whether the foreign There are two main enforcement methods in Turkey; execution judgment was given in the English courts or the courts of Panama. proceedings and bankruptcy proceedings. As long as the requirements under Turkish law are fully satisfied, An ordinary execution proceeding may be commenced against the foreign judgment will be recognised and enforced by the Turkish the debtors in Turkey. In order to do so, a payment order shall be courts. prepared and served on the debtor via the Bailiff Office. Once the Due to the variety of regimes available as discussed above, it is payment orders are served, the debtor is entitled to object to the essential that clients who wish to enforce foreign judgments in payment order within seven days as of the service of the same. If Turkey consider if any of the regimes are applicable to determine the debtor fails to object to the payment order within the allowed the procedural route to be taken to enforce a judgment.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 201 Esenyel|Partners Lawyers & Consultants Turkey
Selcuk S. Esenyel Esenyel|Partners Lawyers & Consultants iTower, Merkez Mah. Akar Cad. No.3 K.19 D.135 Bomonti Sisli Istanbul Turkey
Tel: +90 212 397 1991 Email: [email protected] URL: www.esenyelpartners.com Turkey Selcuk S. Esenyel is the founding partner of Esenyel|Partners Lawyers & Consultants and is a qualified lawyer admitted to the Istanbul Bar Association after completing his LL.B. Law degree in Turkey and studying an LL.M. in the United Kingdom. He primarily focuses on maritime, admiralty, dispute resolution, banking and finance and asset finance and securitisation. He has acted for a wide range of clientele, from P&I Clubs to H&M insurers, to international banks to ship charterers and owners. He is currently in charge of the Shipping, Finance and Litigation team at Esenyel|Partners Lawyers & Consultants.
Esenyel|Partners Lawyers & Consultants owes its ongoing growth to its reputation for providing swift, practical and high-quality service to its clients. The highly trained and capable lawyers of Esenyel|Partners Lawyers & Consultants take a hands-on approach to the practice of law and provide both legal and technical assistance by virtue of their dedication to understanding the clients they represent, and their expertise in the specific sectors in which they work. The firm observes the highest ethical and professional standards, combined with its rich depth of understanding of the law, to help it deliver better and more innovative solutions for clients. We consistently develop and expand our depth for the prosperity of our clients. Our solution-driven approach combines excellence of legal assistance with commercial awareness. Esenyel|Partners Lawyers & Consultants counsel the world’s leading companies in every area of the law, including international and domestic corporate and financial matters, corporate governance, international arbitration, technology, intellectual property, business litigation, appellate matters, white-collar criminal defence, federal and state legislative matters, energy and oil and gas matters, real estate, administrative, regulatory matters, shipping and transport, insurance, environmental and international trade. Lawyers at Esenyel|Partners Lawyers & Consultants are qualified and experienced, working in an internationally challenging environment. The firm owes its success to its devotion to handling matters by avoiding unnecessary litigation for its clients by adopting a customer-centric approach. The aim of the firm is to reach the most advantageous result for its clients through tailor-made solutions.
202 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Chapter 37
United Alessandro Tricoli Arab Emirates
Fichte & Co Jasamin Fichte
1 Country Finder 2 General Regime
1.1 Please set out the various regimes applicable 2.1 Absent any applicable special regime, what is the to recognising and enforcing judgments in your legal framework under which a foreign judgment jurisdiction and the names of the countries to which would be recognised and enforced in your such special regimes apply. jurisdiction?
Applicable Law/ Relevant Corresponding Two separate regimes apply in the UAE, the UAE Federal system Statutory Regime Jurisdiction(s) Section Below and the Dubai International Financial Centre (the “DIFC”) Courts. Algeria, Bahrain, It is particularly important to note that while in the DIFC courts Djibouti, Iraq, Jordan, there is a general presumption that a foreign judgment is conclusive Kuwait, Lebanon, 1983 Riyadh Arab and, as such, the court will not reopen the merits of the case, the Libya, Mauritania, Agreement for same is not always true in relation to proceedings before the UAE Morocco, Oman, Judicial Cooperation - Palestine, Qatar, courts, where the court may reopen the merits. (the Riyadh Saudi Arabia, Convention). Under the Federal system, foreign judgments are recognised and Somalia, Sudan, enforced following treaties the country has with foreign countries or Syria, Tunisia, UAE, Yemen. under the principles laid down by Federal Law No. 11 of 1992, as amended by the Federal Law No. 30 of 2005 (the “Civil Procedures 1992 Convention on Judicial Assistance, Law”). Although in theory any type of money judgment can be Recognition and recognised, in practice a foreign judgment may be difficult to enforce as Enforcement of the UAE have executed very few bilateral agreements on enforcement Judgments in Civil France. - of foreign judgments outside the Gulf Co-operation Council (“GCC”) and Commercial and Arab (Riyadh Convention) areas, and reciprocity is one of the Matters signed between France and prerequisites to recognition and execution of a foreign judgment in the the UAE (the Paris UAE courts (see Articles 235(1) and 237(1) UAE Federal Law No. 11 Convention). of 1992 as amended, the “Civil Procedures Law”). 1996 GCC GCC Countries. - Under the DIFC Courts system, instead, a foreign money judgment Convention. can be recognised and enforced in accordance with a general 2000 Legal and principle that where a foreign court of competent jurisdiction has Judicial Cooperation determined that a certain sum is due from one person to another, a Agreement between Egypt. - the UAE and the Arab legal obligation arises on the debtor to pay that sum. Republic of Egypt.
2004 Convention on 2.2 What constitutes a ‘judgment’ capable of recognition Judicial Assistance in and enforcement in your jurisdiction? Civil and Commercial Matters between the China. - United Arab Emirates There is no definition of judgment in UAE law. However, for and the Republic of the purpose of enforcement proceedings, execution is permissible China. “under the same conditions decided in the law of that country for executing the decisions and the orders delivered” (Article 235 Civil Procedures Law). The standard requirement for the DIFC courts is, instead, a copy of the foreign judgment or order.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 203 Fichte & Co United Arab Emirates
suit before the competent court. Such proceedings are thus also 2.3 What requirements (in form and substance) must a subject to the usual appeals procedures, so the losing party will foreign judgment satisfy in order to be recognised have right to appeal before the Court of Appeal and the Court of and enforceable in your jurisdiction? Cassation. In the absence of a treaty, the party seeking recognition will need to For a foreign judgment to be recognised in the UAE courts, it needs demonstrate that reciprocity with the foreign country applies. If the to be attested by the UAE embassy in the foreign country and the requisites of Article 235(2) of the Civil Procedures Law cannot be courts may further require proof that it is not capable of being further satisfied, a civil claim must be filed in the relevant UAE court and appealed. Importantly, the UAE courts will not enforce judgments the foreign judgment can be filed as evidence. where they have had original jurisdiction in the matter, or judgments which are against the UAE morals. Once the UAE court judgment is final, enforcement proceedings can be initiated by opening an execution file. In the DIFC courts, absent a treaty, the requirements are set out in Article 7(6) of Dubai Law No. 12 of 2004 (as amended, Judicial Enforcement of a foreign judgment in the DIFC court is via a claim
United Arab Emirates Authority Law) (the “JAL”) stating that the foreign judgments will on the foreign judgment (sometimes referred to as a “common law be enforced in the DIFC in accordance with the Rules of the DIFC action”). If as a matter of DIFC law the foreign court had jurisdiction Courts (the “RDC”). The main requirement is, however, that the in respect of the defendant to such an action, the defendant’s ability foreign court had jurisdiction to hear the matter. to raise any defence of law or fact to the claim will be limited. If the DIFC courts make an order in a common law action on a 2.4 What (if any) connection to the jurisdiction is required foreign judgment, that order is itself an order of the DIFC courts, for your courts to accept jurisdiction for recognition and – so far as the DIFC courts are concerned – is an order that and enforcement of a foreign judgment? can be executed under the reciprocal regimes that exist between the DIFC and other jurisdictions – including, subject to judgment or The UAE courts will want to see a link with the jurisdiction, to order being “final and executory”, the UAE. determine whether the contract was performed in the UAE or that the defendants or their assets are located within the jurisdiction. 2.7 On what grounds can recognition/enforcement of a As to the DIFC courts, Article 24(1)(a) of the DIFC Law No. 10 of judgment be challenged? When can such a challenge 2004 (“DIFC Court Law”) (the “DCL”) provides that, pursuant to be made? Article 7(4) of the JAL, the DIFC court has jurisdiction to “ratify” any judgment, order or award of any “recognised…foreign court”. In the UAE courts, according to Article 235 of the Civil Procedures In DNB Bank ASA v Gulf Eyadah Corporation ([2015] DIFC CA Law, it will not be possible to proceed with enforcement in relation 007), the DIFC Court of Appeal held that this gives the court broad to foreign judgments in cases where: jurisdiction to recognise and enforce foreign judgments in the DIFC, a) The UAE courts would have had exclusive jurisdiction on and went even further to state that “[f]rom the perspective of the the subject matter, or the foreign courts had jurisdiction DIFC Courts, it is not wrong to use the DIFC Courts as a conduit according to the international rules of conflicts of law. jurisdiction to enforce a foreign judgment and then use reciprocal b) The decision or the order has been delivered from an mechanisms to execute against assets in another jurisdiction”. authorised court according to the law of the country in which it has been issued. In the Gulf Eyadah the Court also found that the presence of assets in the DIFC is not a condition to the enforcement of foreign c) The litigant parties have not been correctly served or have not court judgments. Accordingly, the DIFC courts can be used as a been properly represented. conduit jurisdiction to enforce a foreign judgment and reciprocal d) The decision or the order has not yet acquired the status of res mechanisms can then be applied to execute the DIFC court’s order judicata. against assets in another jurisdiction (which includes mainland e) It conflicts with a decision or an order of the UAE courts, or UAE). it breaches the UAE morals or public policy. If, as a matter of DIFC law, the foreign court had jurisdiction in respect of the defendant to such an action, the defendant’s ability 2.5 Is there a difference between recognition and enforcement of judgments? If so, what are the legal to raise any defence of law or fact to the claim will be limited. The effects of recognition and enforcement respectively? burden passes to the judgment debtor to show why the foreign judgment should not be enforced, but the objections that can be In practice, there are no different procedures for the enforcement raised to the enforcement are limited. Under general principles of a foreign judgment in the UAE or DIFC courts, since, upon a established by the DIFC courts, such objections are usually limited successful claim for recognition of a foreign judgment, the UAE to fraud, public policy and principles of natural justice. or DIFC courts will issue a domestic judgment for enforcement purposes. 2.8 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments relating to specific subject matters? 2.6 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. No, there are no such rules, excluding possibly, rules in relation to certain aspects of sovereign immunity. There are, however, treaties The party looking to enforce a foreign judgment will initiate a claim which deal with certain subject matters such as criminal matters. before the UAE court. In accordance with Articles 20 and 235 of the Civil Procedures Law, recognition of a foreign court order is a As a Court of the UAE, the same position will apply in respect of normal proceeding in which the requesting party needs to file a law the DIFC.
204 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Fichte & Co United Arab Emirates
Whilst both courts apply the treaties of the UAE, the civil courts 2.9 What is your court’s approach to recognition and apply a set of rules from the UAE Civil Procedures Law, and the enforcement of a foreign judgment when there is: (a) a DIFC Courts apply a set of rules from the RDC, which are closely conflicting local judgment between the parties relating modelled on the Civil Procedure Rules of England and Wales. to the same issue; or (b) local proceedings pending between the parties? 2.13 What is the relevant limitation period to recognise and It is a condition precedent to the recognition of a foreign judgment enforce a foreign judgment? that (i) it does not conflict with a UAE judgment, and (ii) that the UAE courts have no jurisdiction on the matter. Accordingly, the With very limited exception on a case-by-case basis, the general rule UAE courts will not enforce or recognise a foreign judgment in such in the UAE courts is that an application to recognise and enforce a cases. For cases that are pending between parties before a UAE foreign judgment which is more than 15 years old will not usually court and the UAE court has accepted jurisdiction, the recognition be entertained. of the foreign judgment may be stopped or reversed if the UAE
Being a relatively new jurisdiction, the point is not clear about the United Arab Emirates courts in a later final binding judgment accept jurisdiction. DIFC courts. It is arguable that the DIFC courts may not enforce The same principles apply to the DIFC courts. a foreign judgment that has gone beyond the six-year limitation period for proceedings in that jurisdiction. 2.10 What is your court’s approach to recognition and enforcement of a foreign judgment when there is a 3 Special Enforcement Regimes Applicable conflicting local law or prior judgment on the same or a similar issue, but between different parties? to Judgments from Certain Countries
As seen above, the UAE courts will not enforce a foreign judgment 3.1 With reference to each of the specific regimes set where there is a previous judgment issued by the UAE courts. Similarly, out in question 1.1, what requirements (in form and if the foreign judgment conflicts with a UAE law (particularly on the substance) must the judgment satisfy in order to be subject of morals or public policy), it will not be enforced. recognised and enforceable under the respective regime? In relation to judgment on same or similar issues but between different parties, the UAE are a civil law jurisdiction not based on the system of binding precedents, and hence if different parties are The UAE courts will recognise each and every judgment falling involved (or even an additional party has an interest and such party under the relevant treaty according to the rules of recognition in the was not included in the previous court decision), then the foreign treaty itself. It is also apparent that the UAE courts will turn away judgment may be admitted. from the Civil Procedures Law for the recognition of judgments and rather focus on any requirements within the treaty for enforcement; in A similar approach will be taken by the DIFC courts, which are, the absence of any particular requirements, the courts will recognise however, based on a common law system and thus strictly enforce the judgments. the system of binding precedents even between different parties. Also the DIFC courts are legally bound to comply with the terms of treaties for the mutual enforcement of judgments, pursuant to 2.11 What is your court’s approach to recognition and Article 24(2) of the DIFC Court Law. enforcement of a foreign judgment that purports to apply the law of your country? 3.2 With reference to each of the specific regimes set out In the UAE courts the application of the law strictly rests with the in question 1.1, does the regime specify a difference between recognition and enforcement? If so, what is judge, and hence as long as the foreign judgment is not in conflict the difference between the legal effect of recognition with UAE law and does not infringe morals or public policy, then and enforcement? it may be enforced provided it satisfies the conditions set out in the Civil Procedures Law. No, the regime does not specify a difference between recognition The position is the same in the DIFC courts. and enforcement.
2.12 Are there any differences in the rules and procedure 3.3 With reference to each of the specific regimes set of recognition and enforcement between the various out in question 1.1, briefly explain the procedure for states/regions/provinces in your country? Please recognising and enforcing a foreign judgment. explain. Riyadh Convention: a request must be made to the competent The UAE legal system is a Federal system, with the Emirates of court by the contracting party. Once the request is approved, the Dubai and Ras Al Khaimah sitting outside of the federal system and enforcement process begins. having their own separate Court of Cassation. The procedural rules GCC Convention: the procedure for executing a judgment is governed will, however, remain the same amongst all the seven Emirates. by the law of the state where the judgment is executed, and the following As seen so far, there are, however, different rules and procedures documents are to be provided at the execution stage: (i) true copy of for recognition and enforcement in the UAE between the UAE civil the judgment with signatures attested by the competent authority; (ii) courts and the DIFC courts (and now also with the ADGM courts set certificate that the judgment is final, unless the same is already stated up in Abu Dhabi which are a common law system similar to the DIFC in the judgment; and (iii) in the case of a judgment issued in absentia, courts). The UAE courts rely on the civil rules, while the DIFC courts a true copy of the notification of the judgment, or any other document (and the newly established ADGM courts) on common law principles. confirming that the defendant was properly notified.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 205 Fichte & Co United Arab Emirates
Paris Convention: the Paris Convention does not set out a specific procedure for the enforcement or recognition of a judgment. 4 Enforcement
3.4 With reference to each of the specific regimes set out 4.1 Once a foreign judgment is recognised and enforced, in question 1.1, on what grounds can recognition/ what are the general methods of enforcement enforcement of a judgment be challenged under the available to a judgment creditor? special regime? When can such a challenge be made? This will largely depend on the subject matter of the judgment It is important to note that according to Article 238 of the Civil that has been recognised for enforcement. However, assuming the Procedures Law, the UAE courts must enforce qualifying GCC foreign judgment is a money judgment the court will proceed with a (and other treaty-governed) judgments without reconsidering their judicial auction of any debtor assets, or of the assets which had been merits even where they had concurrent jurisdiction over the original previously been made subject of a precautionary attachment. claims. This is an important exception to Article 235(2)(a) of the In case the judgment is against a person, the creditor may also try United Arab Emirates Civil Procedures Law, which prevents the enforcement of foreign to seek implementation of criminal procedures which may lead to judgments in the courts of the UAE where the latter have jurisdiction issuance of a travel ban or arrest warrant for the debtor. over the underlying claims. Riyadh Convention: challenges are possible if: (i) the judgment is in violation of the provisions of the Islamic Shari’a, the provisions of the 5 Other Matters Constitution or the morals/public policy in the state where the judgment is required to be executed; (ii) the judgment is issued in absentia and 5.1 Have there been any noteworthy recent (in the last the judgment debtor is not properly notified of the proceedings or of the 12 months) legal developments in your jurisdiction judgment; (iii) the laws applicable to legal representation of ineligible relevant to the recognition and enforcement of foreign persons or persons of diminished eligibility were disregarded; (iv) the judgments? Please provide a brief description. dispute has given rise to another final judgment in the requested state, or in a third state and if the requested party has already recognised such The use of the DIFC courts as a conduit jurisdiction for enforcement a final judgment; and (v) the dispute is the subject of a concurrent case in mainland UAE of foreign judgments has become possible in the courts of the state and the action has been brought before the following the judgment of the DIFC Court of Appeal in DNB Bank courts of the state on a date preceding the filing. ASA v Gulf Eyadah Corporation ([2015] DIFC CA 007). GCC Convention: challenges are possible if: (i) the judgment is in At the same time, however, the authorities are trying to reduce any violation of the provisions of the Islamic Shari’a, the provisions of potential jurisdictional conflict between the UAE courts and the the Constitution or the morals/public policy in the state where the DIFC courts and have therefore set up a Joint Judicial Tribunal under judgment is required to be executed; (ii) the judgment is issued in Dubai Decree No. 19 of 2016. The Judicial Tribunal is expressly absentia and the judgment debtor is not properly notified of the empowered by Decree 19 to propose the rules necessary to prevent proceedings or of the judgment; (iii) the subject matter of the judgment conflicts between the Dubai Courts and DIFC Courts (Article 2(3)) is the same of a judgment issued between the same litigants which has and to set out rules for the Judicial Tribunal’s procedures. acquired the status of res judicata, in the state where the judgment is The decisions of the Judicial Tribunal so far seem to have left intact required to be executed or in any other Member State which is a party the DIFC courts’ status as a conduit for the enforcement of foreign to this agreement; (iv) the dispute is the subject matter of concurrent judgments in the absence of any conflict in jurisdiction with the proceedings currently heard by one of the courts of the state where UAE courts. The Judicial Tribunal has thus indicated in at least the judgment is required to be executed, between the same litigants; five of its nine decisions that it will not prevent the DIFC Courts (v) the judgment is issued against the Government of the state where from being used as a conduit jurisdiction if there are no parallel the judgment is required to be executed or against one of its officials proceedings before the Dubai courts involving the same parties and for acts done by such officials during or only due to the performance on the same subject matter. of the duties of their job; and (vi) the execution of the judgment is in conflict with the international conventions and protocols applicable in the state where such execution is required. 5.2 Are there any particular tips you would give, or critical issues that you would flag, to clients seeking to recognise and enforce a foreign judgment in your jurisdiction?
While a further achievement is still sub judice and it is thus not appropriate to discuss it yet, it seems it will be possible to also obtain a precautionary attachment in the mainland UAE following an order of the DIFC courts which is not final yet (such as an ex parte freezing order). Also a further court based on common law and modelled on the Civil Procedure Rules of England and Wales has been developed in the financial free zone of Abu Dhabi (Abu Dhabi Global Markets), the ADGM court. As things stand, it is believed that this court will function very much similarly to the DIFC courts.
206 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Fichte & Co United Arab Emirates
Alessandro Tricoli Jasamin Fichte Fichte & Co Fichte & Co 19th floor, Prism Tower 19th floor, Prism Tower Sheikh Zayed Road, Business Bay Sheikh Zayed Road, Business Bay Dubai, UAE Dubai, UAE
Tel: +971 4 4357 577 Tel: +971 4 4357 577 Fax: +971 4 4357 578 Fax: +971 4 4357 578 Email: [email protected] Email: [email protected] URL: www.fichtelegal.com URL: www.fichtelegal.com
Alessandro Tricoli joined Fichte & Co in 2006 and is presently a Jasamin Fichte is a dual-qualified English and German Solicitor and partner at the firm. He specialises in ship finance, ship sale& has been specialising in maritime law since the start of her career. She purchase, construction and conversion. He regularly acts for owners, studied law in Hamburg and maritime law in Southampton and gained yards and banks in contentious and non-contentious matters relating valuable experience in international law firms in Hamburg and London United Arab Emirates to ship building, ship finance, and ship sale and purchase contracts. in the respective maritime departments. In 2005 she opened Fichte Although better known for establishing a ship finance practice in the & Co, one of the leading law firms in the Middle East, with the support Middle East, Alessandro’s broad knowledge encompasses many of the shipping community. Fichte & Co has since grown to one of the areas of the firm’s contentious work, with a particular emphasis on largest full-service law firms and represents not just shipowners, P&I disputes resolution in which he advises a number of the firm’s clients. Clubs, Banks, Trading Houses but also every sector every industry. Before joining Fichte & Co Alessandro practised in Italy with a top-tier As part of her ongoing mission to improve awareness and interest insurance law firm, during which time he also assisted the Chair of in the region’s maritime sector, Jasamin Fichte is the founder of the Maritime Law at the University of Bologna. He then moved to the UK UAE Branch of WISTA (Women’s International Shipping and Trading to read postgraduate maritime law at the University of Southampton Association) and chairs the same as its first president. She is also a and gained international work experience in London. Alessandro member of the DIFC Courts Rules Sub Committee, The International is the chairman of the Emirates Maritime Law Association and has Bar Association, German Maritime Arbitration Association and UAE been consistently named in The Legal 500 EMEA (Shipping) since Shipping Association. 2011 (a professional lawyer who “gives sound, relevant advice on the matter at hand”, with clients “particularly pleased with his expertise and knowledge in the maritime field ”). He is also included in the list of Who’s Who Legal (Transport) and was recognised in 2015 as Shipping & Maritime Lawyer of the Year (UAE) by Finance Monthly.
Fichte & Co is a full-service law firm specialising in litigation, arbitration, corporate and maritime. Launched in 2005, the firm has become one of the UAE’s leading law firms, with offices in both Dubai and Abu Dhabi. Driven by passion, professionalism, and a team of over 25 dedicated local and international lawyers, Fichte & Co is a force to be reckoned with and the ‘go-to’ firm for legal advice and business support. Landmark cases include being the first law firm to successfully enforce an international arbitration award in the UAE Courts under the NY Convention.
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 207 Chapter 38
USA John J. Buckley, Jr.
Williams & Connolly LLP Ana C. Reyes
States without a recognition act rely on the common law. In some 1 Country Finder states, the recognition statute expressly provides that common law principles remain available to support recognition. See, e.g., 1.1 Please set out the various regimes applicable Del. Code Ann. tit. 10, § 4807 (“This chapter does not prevent the to recognising and enforcing judgments in your recognition under principles of comity or otherwise of a foreign- jurisdiction and the names of the countries to which country judgment not within the scope of [the statute]”). such special regimes apply. The common law follows the guidelines established by the leading federal case on recognition and enforcement of foreign judgments, Applicable Law/ Relevant Corresponding Hilton v. Guyot, 159 U.S. 113 (1895). In Hilton, the Supreme Court held Statutory Regime Jurisdiction(s) Section Below that the recognition and enforcement of foreign judgments is primarily Common Law. All countries. Sections 2, 4, and 5. based on principles of international comity. Accordingly, “where there Uniform Foreign All countries has been opportunity for a full and fair trial abroad before a court of Money Judgments (adopted by a Sections 2, 4, and 5. competent jurisdiction, conducting the trial upon regular proceedings, Recognition Act majority of U.S. after due citation or voluntary appearance of the defendant, and under (1962). states). a system of jurisprudence likely to secure an impartial administration Uniform Foreign- All countries of justice”, the merits of the case “should not, in an action brought in Country Money (adopted by a Judgments Sections 2, 4, and 5. this country upon the judgment, be tried afresh”. Id. at 202–03. Many minority of U.S. Recognition Act states also look to common law principles reflected in the Restatement states). (2005). (Third) of Foreign Relations Law, which is broader than the Model Acts and not limited to money judgments. While state courts are courts of general jurisdiction, and are 2 General Regime presumed to have subject matter jurisdiction over a case, the constitutional limitations on federal jurisdiction make federal courts “courts of limited jurisdiction”. Owen Equip. & Erection 2.1 Absent any applicable special regime, what is the legal Co. v. Kroger, 437 U.S. 365, 374 (1978). Federal courts hear framework under which a foreign judgment would be recognition and enforcement actions under either diversity of recognised and enforced in your jurisdiction? citizenship jurisdiction, or federal question jurisdiction, with diversity of citizenship jurisdiction being the most commonly The United States does not have a uniform federal law governing invoked jurisdictional ground. The diversity statute, 28 U.S.C. § the recognition and enforcement of foreign judgments, and it is not 1332, provides that district courts have jurisdiction over all civil a party to any treaty that deals with this subject. Accordingly, the actions where the matter in controversy exceeds $75,000 and the recognition and subsequent enforcement of foreign judgments in the parties are diverse. United States is primarily a matter of state statutory and common law. See Restatement (Third) of the Foreign Relations Law of In diversity cases, federal courts apply the recognition and the United States § 481 cmt. a (Am. Law Inst. 1987). (“[I]n the enforcement rules of the state in which the federal court sits. See absence of a federal statute or treaty…recognition and enforcement Yahoo! Inc. v. La Ligue Contre Le Racisme et L’Antisemitisme, 433 of foreign country judgments is a matter of State law.”) F. 3d 1199, 1212 (9th Cir. 2006) (en banc) (per curiam) (observing that, in international diversity cases, “enforceability of judgments of The statutory law of the states derives from two model recognition courts of other countries is generally governed by the law of the state acts promulgated by the National Conference of Commissioners in which enforcement is sought”). This means that removal of an on Uniform State Laws: the 1962 Uniform Money-Judgments enforcement action from state to federal court will ordinarily result Recognition Act; and the 2005 Uniform Foreign-Country Money in the federal court’s application of the same state statute that would Judgments Recognition Act. The majority of states and the District have been applied in state court proceedings. Additionally, Rule 64 of Columbia have adopted some version of these model laws. New of the Federal Rules of Civil Procedure requires a federal court to York, for example, has enacted the New York Uniform Foreign apply state law for remedies involving the seizure of property, which Money-Judgments Recognition Act, codified in Article 53 of New may be essential in an action seeking to collect on a foreign money York’s Civil Practice Law and Rules (“CPLR”). These statutes apply judgment in a U.S. court. only to judgments that grant or deny recovery of a sum of money.
208 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Williams & Connolly LLP USA
When a federal court’s subject matter jurisdiction is based on a judgment must be from an adjudicative body of the foreign country question of federal law, rather than diversity grounds, the courts “and not the result of an alternative dispute mechanism chosen by apply the applicable federal statute (if there is one) or federal the parties”. Foreign arbitral awards, therefore, are not covered common law. For example, the U.S. has acceded to the United by the Act, but are governed by federal law. On the other hand, a Nations Convention on the Recognition and Enforcement of judgment of a foreign court confirming or setting aside an arbitral Foreign Arbitral Awards, 21 U.S.T. 2517 (“New York Convention”) award is covered by the Act. and implemented its provisions in Chapter 2 of the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 201 et seq. Section 203 2.3 What requirements (in form and substance) must a provides that original jurisdiction for “[a]n action or proceeding foreign judgment satisfy in order to be recognised falling under the [New York] Convention” lies in the United States and enforceable in your jurisdiction? USA federal district courts. 9 U.S.C. § 203. No separate proceeding is required to “confirm” a foreign arbitral award under the New York For the substantive requirements of a judgment, see supra, question Convention; a creditor need only file a single action to enforce the 2.2. foreign award under the FAA. See CBF Industria de Gusa /S/A v. To have a judgment recognised, Section 6 of the 2005 Recognition AMCI Holdings, Inc., 850 F. 3d 58, 72 (2d Cir. 2017). Act requires that the judgment holder file a court action against the debtor. This means that the holder may bring a plenary action or 2.2 What constitutes a ‘judgment’ capable of recognition raise the matter as a counterclaim, crossclaim or affirmative defence and enforcement in your jurisdiction? in a pending proceeding. See, e.g., Tex. Code Prac. & Rem. Ann. § 36A.006 (recognition can be sought as an original matter by filing State statutes based on the Model Acts require that a judgment: an action seeking recognition, or may be raised in a pending action grant or deny recovery of a sum of money; be final and conclusive by counterclaim, cross-claim or affirmative defence); Cal. Civ. Proc. between the parties; and be enforceable in the country in which the Code § 1718(b) (same); D.C. Code Ann. § 15-366(b) (same). judgment was entered. See 2005 Recognition Act § 3(a) (2); 1962 In New York, the holder of the judgment has three options: a Recognition Act § 3; Cal. Civ. Proc. Code § 1715(b). See also Iraq plenary action (which is often an attachment action pursuant to Middle Mkt. Dev. Found. v. Harmoosh, 848 F.3d 235, 238 (4th Cir. CPLR § 6201(5)); an expedited summary judgment action pursuant 2017) (“a foreign judgment regarding a sum of money is generally to CPLR § 3213; or filing a counterclaim, cross-claim or asserting conclusive between the parties so long as it is final, conclusive, and an affirmative defence in a current proceeding. The summary enforceable where rendered”) (internal quotation marks omitted). procedure is favoured; Section 3213 provides that “[w]hen an action The finality requirement means that intermediate and interlocutory is based upon an instrument for the payment of money only or upon rulings cannot be recognised. any judgment, the plaintiff may serve with the summons a notice of Although the Model Acts and the Restatement do not require motion for summary judgment and the supporting papers in lieu of a reciprocity, i.e., a showing that courts of the originating state would complaint”. The motion papers must contain sufficient evidentiary recognise and enforce a judgment entered in the court of a U.S. detail for the plaintiff to establish entitlement to summary judgment, state, some state statutes make this a requirement. See, e.g., Tex. although supplementing the moving papers may be allowed, in the Civ. Prac. & Rem. Code Ann. § 36A.004(c)(9). court’s discretion. See 7B David D. Siegel, Practice Commentaries, Judgments for taxes, fines or other penalties are excluded from McKinney’s Cons. Laws of N.Y., CPLR C3213:8. the recognition statutes. See Plata v. Darbun Enters. Inc., No. The New York Appellate Division has held that the holder of a D062517, 2014 WL 341667, at *5 (Cal. Ct. App. Jan. 31, 2014) foreign country judgment seeking summary relief under § 3213 (“A judgment is a penalty even if it awards monetary damages to a must: (1) provide a certified copy of the actual judgment; (2) private individual if the judgment seeks to redress a public wrong when the judgment was rendered in a foreign language provide and vindicate the public justice, as opposed to affording a private a certified English translation of it; (3) unless obvious from the remedy to a person injured by the wrongful act”). Under the face of the judgment, submit the affidavit of an expert in the law 1962 Recognition Act, courts will also not recognise and enforce of the jurisdiction that rendered the judgment establishing that the judgments “[in] support [of] matrimonial or family matters”. 1962 judgment is final, conclusive and enforceable in that jurisdiction; (4) Recognition Act § 1(2). The 2005 Recognition Act expanded this if the expert’s affidavit is in a foreign language, provide a certified exclusion to cover judgments “for divorce, support, or maintenance, English translation of it; and (5) if the expert cites a particular foreign or other judgments rendered in connection with domestic relations”. law authority to provide the court with copies of those authorities 2005 Recognition Act § 3(b)(3). However, non-monetary judgments, and translated copies. See Sea Trade Mar. Corp. v. Coutsodontis, including matrimonial matters, may be recognised under principles 978 N.Y.S.2d 115, 117–18 (App. Div. 2013). of comity, or pursuant to specific statute law. See, e.g., Cal. Civ. Note that when a proceeding seeks to enforce a judgment against Proc. Code § 1715(B) (providing that a judgment in connection a sovereign state, it is controlled by the Foreign Sovereign with domestic relations may be recognised under a savings clause); Immunities Act (“FSIA”), 28 U.S.C. § 1604, and the extensive case Downs v. Yuen, 748 N.Y.S. 2d 131 (App. Div. 2002) (the New York law developed under the statute. Foreign states are immune from recognition statute does not bar recognition of a foreign support liability, as well as discovery and the burdens of trial, unless one of judgment as a matter of comity). Restatement (Third) of Foreign the statutory exceptions to immunity applies. Relations Law § 481(1) has a broader scope than the Model Acts, and would recognise foreign judgments “establishing or confirming the status of a person, or determining interests in property”. 2.4 What (if any) connection to the jurisdiction is required for your courts to accept jurisdiction for recognition Section 2, cmt. 3 of the 2005 Recognition Act provides that a and enforcement of a foreign judgment? foreign country judgment “need not take a particular form”, and that “any competent government tribunal that issues such a ‘judgment’ The court must have subject matter jurisdiction (of particular comes within the term ‘Court’ for purposes this Act”. However, the importance in federal court) and in most states there must also be
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 209 Williams & Connolly LLP USA
personal jurisdiction, i.e., the non-resident judgment debtor must representative of the law of most states. It provides that “[if] recognition have “minimum contacts” with the state that satisfies due process. of a foreign-country judgment is sought as an original matter, the issue See Int’l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945). of recognition shall be raised by filing an action seeking recognition State personal jurisdiction law varies, however, and courts disagree of the foreign-country judgment”. Del. Code Ann. Tit. 10, § 4809(a). about the due process requirements in recognition actions. In New “If recognition of a foreign-country judgment is sought in a pending York, a judgment creditor may seek recognition whether or not action, the issue of recognition may be raised by counterclaim, cross- the defendant had contacts with the state, or currently has assets claim, or affirmative defense.” Id. 4809(b). Once recognised, the within the state against which a judgment could be enforced. See foreign-country judgment is “(1) [c]onclusive between the parties to Lenchyshyn v. Pelko Electric, Inc., 723 N.Y.S. 2d 285, 291 (App. the same extent as the judgment of a sister state entitled to full faith USA Div. 2001) (reasoning that in an Article 53 proceeding, “the and credit in this State would be conclusive; and (2) [e]nforceable in judgment creditor does not seek any new relief against the judgment the same manner and to the same extent as a judgment rendered in this debtor, but instead merely asks the court to perform its ministerial State”. Id. § 4810. function of recognizing the foreign country money judgment”). See In all jurisdictions, if a party establishes that an appeal from a also Beluga Chartering B.V. v. Timber S.A., 294 S.W. 3d 300 (Tex. foreign-country judgment is pending, or will be taken, the court App. 2009) (personal jurisdiction not required under Texas statute). “may stay any proceedings with regard to the foreign country But see Electrolines, Inc. v. Prudential Assurance Co., 677 N.W. 2d judgment until: (1) the appeal is concluded; (2) the time for appeal 874, 885 (Mich. Ct. App. (2003) (in case seeking to enforce Liberian expires; or (3) the appellant has had sufficient time to prosecute the judgment against European defendants, “the trial court must possess appeal and has failed to do so”. See Tex. Civ. Prac. & Rem. Code jurisdiction over the judgment debtor or the judgment debtor’s Ann. § 36A.008); Cal. Civ. Proc. Code § 1720. property”).
Once converted into a state judgment, a foreign judgment is generally 2.7 On what grounds can recognition/enforcement of a given full faith and credit under Article IV, Section 1 of the U.S. judgment be challenged? When can such a challenge Constitution, and is therefore enforceable as a domestic judgment in be made? any U.S. court. See, e.g., CPLR § 5303; Fla. Stat. Ann. § 55.604(5); Cal. Civ. Proc. Code § 1719. Notably, one court declined to give Every state statute based on the Model Acts provides both a New York judgment full faith and credit where there was not a mandatory and discretionary grounds for non-recognition, as does showing of personal jurisdiction over the foreign debtor. See Ahmad the Restatement (Third) of Foreign Relations Law, and principles Hamad Al Gosaibi & Bros. v. Standard Chartered Bank, 98 A.3d of the common law set out in Hilton v. Guyot. These grounds can 998 (D.D.C. 2014). be asserted as affirmative defences in an action on the judgment, or by counterclaim or cross-claim in a pending proceeding between the parties. Section 3(c) of the 2005 Recognition Act provides that 2.5 Is there a difference between recognition and enforcement of judgments? If so, what are the legal “[a] party seeking recognition of a foreign-country judgment has the effects of recognition and enforcement respectively? burden of establishing that this [Act] applies to the foreign-country judgment”. Once the threshold requirements are met, the burden A plaintiff seeking to enforce a foreign judgment within the United shifts to the party opposing recognition to demonstrate a mandatory States must, as a prerequisite to enforcement, first have the judgment or discretionary ground for non-recognition. Id. § 4(d). In New York, recognised by a domestic court. Recognition of a foreign judgment however, “[a] plaintiff seeking enforcement of a foreign country means that “the forum court accepts the determination of legal rights judgment bears the burden of making a prima facie showing that and obligations made by the rendering court in the foreign country”. the mandatory grounds for nonrecognition do not exist”. Gemstar 2005 Recognition Act § 4 cmt. 2; Midbrook Flowerbulbs Holland Canada, Inc. v. George A. Fuller Co., 6 N.Y.S.3d 552, 554 (App. Div. B.V. v. Holland Am. Bulb Farms, Inc., 874 F. 3d 604, 613 & n. 9 (9th 2015) (internal quotation marks omitted). “The defendant opposing Cir. 2017). enforcement bears the burden of proving that a discretionary basis for non-recognition pursuant to CPLR § 5304(b) applies.” Id. Enforcement means “application of the legal procedures of the state to ensure that the judgment debtor obeys the foreign country While state recognition statutes are similar, they may differ on judgment”. Millbrook Flowerbulbs, 874 F. 3d at 613 n.9. A key issues. For example, the Model Recognition Acts and the recognised judgment is generally enforceable in any U.S. court Restatement do not require reciprocity. Nonetheless, Florida, under the Constitution’s full faith and credit clause. See Cal. Civ. Idaho, Maine, North Carolina, Ohio and Texas make reciprocity Proc. Code § 1719 (a) & (b). Once recognised, the judgment has a discretionary ground for recognition while Georgia and res judicata effect. U.S. courts generally apply U.S. rules of issue Massachusetts make it a mandatory ground. There are disputes as preclusion. See Hurst v. Socialist People’s Libyan Arab Jamahiriya, well over the law applicable to questions concerning the foreign 474 F. Supp. 2d 19, 32–33 (D.D.C. 2007); Alfadda v. Fenn, 966 F. court’s personal jurisdiction. Some courts look to the law of both Supp. 1317 (S.D.N.Y. 1997), aff’d, 159 F.3d 41 (2d Cir. 1998). But the foreign jurisdiction and the United States. See Evans Cabinet st see United States v. Kashamu, 656 F. 3d 679 (7th Cir. 2011) (Posner, Corp. v. Kitchen Int’l, Inc., 593 F.3d 135 (1 Cir. 2010). Others look J.) (suggesting in dictum that the law of the rendering court’s foreign to foreign law. See Restatement (Third) of Foreign Relations Law § jurisdiction may presumptively control the preclusive scope of 482 (domestic court must look to foreign law). foreign judgments in U.S. litigation). New York recognition law provides two mandatory grounds for non- recognition: (1) the judgment was “rendered under a system which does not provide impartial tribunals or procedures compatible with 2.6 Briefly explain the procedure for recognising and enforcing a foreign judgment in your jurisdiction. the requirements of due process of law”; or (2) “the foreign court did not have personal jurisdiction over the defendant”. CPLR § 5304. As already noted, the procedures in each state vary. For the New York law also provides eight discretionary grounds pursuant to procedures in New York, see supra para. 2.3. Delaware law is which a New York court “need not” recognise a judgment. CPLR §
210 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Williams & Connolly LLP USA
5304(b). These include: (1) lack of subject matter jurisdiction; (2) sections have been construed to require only fundamental fairness, failure to receive notice of the proceedings in the foreign court in not to require the application of American constitutional standards. sufficient time to allow for defences; (3) the judgment was obtained “If a defendant is afforded notice and an opportunity to be heard in by fraud; (4) the judgment (or the cause of action or claim for relief) the underlying litigation, the basic requisites of due process are met.” is repugnant to the public policy of the state; (5) the judgment Soc’y of Lloyd’s v. Grace, 718 N.Y.S. 2d 327, 328 (App. Div. 2000). conflicts with another final and conclusive judgment; (6)the Finally, the Restatement (Third) of Foreign Relations Law § 482 proceeding in the foreign country was in violation of an agreement lists seven grounds upon which a court may refuse to recognise an between the parties establishing a process other than a proceeding otherwise valid foreign judgment, including jurisdictional defects, in a foreign court; (7) in the case of jurisdiction based on personal public policy concerns, fraud, an agreement to submit the dispute to service, the foreign court was a seriously inconvenient forum for the another forum, and conflict with another final judgment entitled to USA trial of the action; or (8) the cause of action resulted in a defamation recognition; and the Restatement (Second) of Conflict of Laws § 98 judgment obtained in a jurisdiction outside the United States, unless cmt. g, (1971) similarly enumerates a number of defences. the U.S. court determines that the defamation law applied in the foreign court “provided at least as much protection for freedom of speech and press” as would be provided by the U.S. and New York 2.8 What, if any, is the relevant legal framework applicable to recognising and enforcing foreign judgments constitutions. relating to specific subject matters? California’s statute adds an additional mandatory ground. The statute prohibits recognition when the foreign court lacked subject matter As noted, the Uniform Acts apply only to money judgments, jurisdiction. Cal. Civ. Proc. Code § 1716(b). California law also and do not apply to judgments for taxes, fines or other penalties, provides that a state court “shall not recognize” a foreign judgment or to judgments concerning domestic relations. However, even in seven situations, id. § 1716(c)(1), but in a separate section states non-monetary final judgments may be enforced, in appropriate so that, when considering these Section (c)(1) factors, a court may circumstances, under the common law. See CPLR § 5307 (expressly recognise the foreign judgment in “the unusual case” where there stating that Article 53 “does not prevent the recognition of a foreign are countervailing considerations that outweigh the reasons for non- country judgment in situations not covered by this article”). recognition. See § 1715(c)(2) & Law Revision Comments. Finally, Several categories of judgments are enforceable under particular a separate statutory section prohibits recognition of a foreign federal statutes and treaties. For example, the United Nations defamation judgment when that judgment is not recognisable under Convention on the Recognition and Enforcement of Foreign Arbitral 28 U.S.C. § 4102 (the federal SPEECH Act). Id. § 1716(2)(f). Awards (New York Convention) and the Inter-American Convention The mandatory “no impartial court” defence is narrowly construed on the Recognition and Enforcement of Foreign Arbitral Awards and has been applied only in situations where the foreign country’s (Panama Convention), as implemented by the FAA, require that U.S. court system was not capable of providing a fair trial. See, e.g., courts honour the agreement to arbitrate and the resulting award, with Bank Melli Iran v. Pahlavi, 58 F.3d 1406 (9th Cir. 1995) (the Iranian certain exceptions. Parties seeking enforcement of arbitration awards judicial system did not provide impartial tribunals); Chevron Corp. in U.S. courts must demonstrate both personal and subject matter v. Donziger, 974 F. Supp. 2d 362 (S.D.N.Y. 2014), aff’d, 833 F.3d jurisdiction. Article V of the New York Convention and Article 5 of 74 (2d Cir.), cert. denied, 137 S. Ct. 2268 (2014) (Ecuadorian the Panama Convention set forth the grounds on which a domestic judgment unenforceable when judgment creditor bribed and coerced court may refuse the recognition of an arbitral award. judges and ghostwrote decision); Bridgeway Corp. v. Citibank, 45 The U.S. is a party to the Convention on the Settlement of F.Supp.2d 276 (S.D.N.Y. 1999), aff’d, 201 F. 3d 134 (2d Cir. 2000) Investment Disputes Between States and Nationals of Other States (refusing to enforce judgment issued by the Liberian Supreme Court (“ICSID”), which establishes the legal framework for the settlement when judiciary was dysfunctional due to civil war). of investment disputes between foreign investors and sovereign The public policy defence “measures not simply whether the foreign States that have consented to international arbitration pursuant judgment or cause of action is contrary to our public policy, but to the Convention. Article 54 imposes on contracting states the whether either is so offensive to our public policy as to be prejudicial obligation to enforce an award issued in an ICSID arbitration “as to recognized standards of morality and to the general interests of if it were a final judgment of a court in that State”. Courts have the citizens”. Naoko Ohno v. Yuko Yasuma, 723 F. 3d 984, 1002 adopted varying approaches to the recognition and enforcement of (9th Cir. 2013) (emphasis and internal quotation marks omitted). ICSID awards. Some courts permit entry of a judgment on an ICSID See also S.A.R.L. Louis Feraud Int’l v. Viewfinder, 489 F.3d 474, award through ex parte proceedings. Other courts require award- 479–80 (2d Cir. 2007) (“The public policy inquiry rarely results in creditors to pursue a plenary action in compliance with the FSIA’s refusal to enforce a judgment unless it is inherently vicious, wicked personal jurisdiction, service and venue requirements. See Micula or immoral, and shocking to the prevailing moral sense”). But see v. Government of Romania, No. 15–3109-cv, 2017 WL 4772435 (2d Derr v. Swarek, 766 F. 3d 430, 437–38 (5th Cir. 2014) (failure of Cir. Oct. 23, 2017); Mobil Cerro Negro, Ltd. v. Bolivarian Rep. of German court to respect purchasers’ dismissal with prejudice of Venezuela, 863 F.3d 96 (2d Cir. 2017). their breach of contract claims against seller violated Mississippi The Securing the Protection of our Enduring and Established public policy). Constitutional Heritage Act (“SPEECH”), 28 U.S.C. §§ 4101– The 2005 Recognition Act, and state statutes that follow it, deal 4105, controls domestic actions that seek recognition of foreign with due process in two statutory sections. Section 4(b)(1) requires defamation judgments. the forum court to deny recognition if the forum court “finds that Judgments concerning domestic relations, including child custody, the entire judicial system in the foreign country…does not provide can be recognised and enforced pursuant to several statutes and procedures compatible with the requirements of fundamental treaties, including the International Support Enforcement Act, 42 fairness”. Section 4(c)(8) permits a denial of recognition if the U.S.C. § 659a; the 1980 Hague Convention on the Civil Aspects court finds that the specific proceeding in the foreign court “was not of International Child Abduction; the 1993 Hague Convention on compatible with the requirements of fundamental fairness”. Both
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 211 Williams & Connolly LLP USA
Protection of Children and Cooperation in Respect of Inter Country 2017 WL 4857603 at *3, (S.D.N.Y. Oct. 26, 2017) (citing Software Adoption; the Uniform Child Custody Jurisdiction and Enforcement AG, Inc. v. Consist Software Sols., Inc., No. 08 civ. 389 (CM) (FM), Act; and the Uniform Interstate Family Support Act. 2008 WL 563449, at *25 (S.D.N.Y. Feb. 21, 2008), aff’d, 323 F. App’x 11 (2d Cir. 2009).
2.9 What is your court’s approach to recognition and enforcement of a foreign judgment when there is: (a) a 2.12 Are there any differences in the rules and procedure conflicting local judgment between the parties relating of recognition and enforcement between the various to the same issue; or (b) local proceedings pending states/regions/provinces in your country? Please between the parties? explain. USA
The Model Acts provide that “[a] foreign judgment need not be As discussed above, recognition and enforcement is largely a matter recognized if the judgment conflicts with another final and conclusive of state law, and state law differs on a number of issues. In Florida, judgment”. See 1962 Model Act, § 4(b)(4); 2005 Model Act, § 4(c)(4). Maine, Ohio and Texas, lack of reciprocity is a discretionary Many state statutes incorporate this language. See CPLR § 5304(b); ground for non-recognition. See, e.g., Banque Libanaise Pour Le Tex. Civ. Prac. & Rem. Code § 36.005(b)(4); Cal. Civ. Proc. Code Commerce v. Khreich, 915 F.2d 1000, 1002–04 (5th Cir. 1990) § 1715(2)(d). See generally Byblos Bank Europe, S.A. v. Sekerbank (refusing to recognise an Abu Dhabi judgment because the Texas Turk Anonym Syrketi, 885 N.E. 2d 191 (N.Y. 2008) (affirming non- Recognition Act treats non-reciprocity as a discretionary ground for recognition of a Belgium judgment which conflicted with an earlier non-recognition); Fla. Stat. Ann. § 55.605(2)(g). Thus, a foreign judgment of a Turkish court); Brosseau v. Ranzau, 81 S.W.3d 381 litigant must determine if the state in which he wishes to enforce (Tex. App. 2002) (Mexican judgment not entitled to recognition a judgment requires reciprocity, and whether the foreign court in because inconsistent with order of U.S. bankruptcy court). There which the litigant obtained the judgment does in fact reciprocate. is no fixed rule concerning which judgment gets recognised. See There is also a conflict concerning whether a party must meet the Restatement (Third) of Foreign Relations Law, § 482(2)(e) & cmt. g minimum contacts test to establish personal jurisdiction over a (1987) (“Courts are likely to recognize the later of two inconsistent person or property. New York courts hold that the judgment debtor foreign judgments, but under Subsection 2(e) the court may recognize “need not be subject to personal jurisdiction in New York before the earlier judgment or neither of them”). In New York, if two foreign the judgment creditor may obtain recognition and enforcement of judgments are inconsistent, the later of the two will generally be the foreign country money judgment”. Lenchyshyn v. Pelko Elec., recognised. See Koehler v. Bank of Bermuda Ltd., No. M18–302, 2004 Inc., 723 N.Y.S. 2d 285, 286 (App. Div. 2001). See also Abu Dhabi WL 444101, at *17 (S.D.N.Y. Mar. 10, 2004) (endorsing the judgment Comm. Bank PJSC v. Saad Trading, 986 N.Y.S.2d 454 (1st Dep’t that was the latest in time). But see Byblos Bank Europe, 885 N.E. 2d 2014). Other states require jurisdiction over the judgment debtor or at 429 (last-in-time rule “need not be mechanically applied”). his property. See Electrolines, Inc. v. Prudential Assurance Co., 677 The effect of local proceedings between the parties varies with the N.W.2d 874, 875 (Mich. Ct. App. 2003). jurisdiction and the facts of the case. A U.S. court can stay the ongoing proceeding until the judgment creditors’ claim for recognition and 2.13 What is the relevant limitation period to recognise and enforcement of a foreign judgment has been adjudicated. Or the enforce a foreign judgment? foreign country judgment can, in the appropriate ongoing case, be raised by counterclaim, cross-claim or affirmative defence. Neither the Restatement nor the 1962 Recognition Act addresses the statute of limitations question. The 2005 Recognition Act, however, 2.10 What is your court’s approach to recognition and includes a statute of limitations; it provides that “[a]n action to enforcement of a foreign judgment when there is a recognize a foreign-country judgment must be commenced within conflicting local law or prior judgment on the same or the earlier of (i) the time during which the foreign-country judgment a similar issue, but between different parties? is effective in the foreign country, or (ii) 15 years from the date that the foreign-country judgment became effective in the foreign When the foreign court’s judgment conflicts with U.S. law, a court may, country”. Some courts have applied the state’s general statute of in the proper circumstances, refuse to recognise the foreign judgment limitations, while some states have their own application limitations on public policy grounds. For example, in Telnikoff v. Matusevitch, period. See, e.g., Cal. Civ. Proc. Code § 1721 (“An action to 702 A. 2d 230 (Md. 1997), the court refused to enforce an English recognize a foreign-country judgment shall be commenced within libel judgment because English defamation law was “contrary...to the earlier of the time during which the foreign-country judgment the policy of freedom of the press underlying Maryland law”. Id. at is effective in the foreign country or 10 years from the date that the 249. As noted above, a party can challenge recognition of a foreign foreign-country judgment became effective in the foreign country”). judgment if there is a conflicting “final and conclusive judgment”, but it is unclear whether third parties can raise this defence. 3 Special Enforcement Regimes Applicable 2.11 What is your court’s approach to recognition and to Judgments from Certain Countries enforcement of a foreign judgment that purports to apply the law of your country? 3.1 With reference to each of the specific regimes set out in question 1.1, what requirements (in form and The mere fact that U.S. law was applied by the foreign court would substance) must the judgment satisfy in order to be have no effect on the recognition and enforcement of the foreign recognised and enforceable under the respective judgment. However, “[c]ourts have found a general policy interest regime? in having New York law interpreted by a U.S. court where the parties agreed that New York law would govern their agreement”. This is not applicable in the U.S. See supra section 2. David Benrimon Fine Art LLC v. Durazzo, No. 17 Civ. 6382 (JFK),
212 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Williams & Connolly LLP USA
3.2 With reference to each of the specific regimes set out 5 Other Matters in question 1.1, does the regime specify a difference between recognition and enforcement? If so, what is the difference between the legal effect of recognition 5.1 Have there been any noteworthy recent (in the last and enforcement? 12 months) legal developments in your jurisdiction relevant to the recognition and enforcement of foreign judgments? Please provide a brief description. This is not applicable in the U.S. See supra section 2. The courts have been divided as to whether a party may obtain
3.3 With reference to each of the specific regimes set injunctive relief from a U.S. court to prevent the enforcement of USA out in question 1.1, briefly explain the procedure for a foreign judgment in this country. However, in Chevron Corp. recognising and enforcing a foreign judgment. v. Donziger, 886 F. Supp. 2d 235, 279 (S.D.N.Y. 2012), a federal district court determined that a foreign judgment had been secured This is not applicable in the U.S. See supra section 2. through fraud, and, moreover, that the Ecuadorian decisions at issue were not entitled to recognition in the U.S. because that country’s 3.4 With reference to each of the specific regimes set out judicial system failed to provide impartial tribunals or procedures. in question 1.1, on what grounds can recognition/ The district court entered an injunction barring plaintiffs from enforcement of a judgment be challenged under the seeking to have the judgment recognised or enforced in the U.S. and special regime? When can such a challenge be made? established a constructive trust. The court of appeals affirmed. See Chevron v. Donziger, 833 F. 3d 74, 151 (2d Cir. 2016) (“we see no This is not applicable in the U.S. See supra section 2. abuse of discretion in the equitable in personam relief granted by the district court”). 4 Enforcement On June 19, 2017, the Supreme Court declined to review the ruling. See 137 S. Ct. 2268 (2017). The decision, therefore, is now final, and has set a precedent for injunctive relief barring recognition and 4.1 Once a foreign judgment is recognised and enforced, enforcement, in similar cases. what are the general methods of enforcement available to a judgment creditor? 5.2 Are there any particular tips you would give, or critical issues that you would flag, to clients seeking Under the Federal Rule of Civil Procedure 69(a)(1), “[a] money to recognise and enforce a foreign judgment in your judgment is enforced by a writ of execution, unless the court directs jurisdiction? otherwise. The procedure on execution – and in proceedings supplementary to and in aid of judgment or execution – must accord The position of the New York courts, that the plaintiff need not establish with the procedure of the state where the court is located, but a personal jurisdiction in order to enforce a foreign judgment, see Abu federal statute governs to the extent it applies”. Dhabi Commercial Bank, 986 N.Y.S. 2d 454, has given an interesting State law remedies available to enforce foreign judgments generally twist to the enforcement of foreign arbitral awards. In Passport Special include injunctions, notices of pendency, orders of attachment and Opportunities Master Fund, L.P. v. ARY Commc’ns, Ltd., 26 N.Y.S. 3d receivership. In New York, CPLR § 6201(5), governing attachment 725 (Sup. Ct. Nassau Cty. 2015), Passport secured an arbitration award procedures, is often the vehicle of choice for enforcing a foreign in a Singapore court; the award was subsequently confirmed by the judgment. After the action is brought, the court will rule on whether Singapore High Court on appeal. Passport had, in the meantime, filed the foreign judgment can be recognised in New York. an enforcement action in the federal district court in New York, but New York also permits “turnover actions” under CPLR § 5225(b). A withdrew that action after confirmation. It then filed a new action in turnover action is a special proceeding brought by creditors when the New York state court, seeking recognition of the Singapore judgment person with possession or control of the money or property is not the confirming the arbitral award. The trial court held that Passport need judgment debtor but a third person, for example, a financial institution not establish personal jurisdiction to enforce the foreign judgment with branches in New York. Upon a sufficient showing, courts “shall confirming the arbitral award, and Passport could attach the debtor’s require such person to pay the money, or so much of it as is sufficient assets post-confirmation. Enforcing the judgment, rather than the to satisfy the judgment, to the judgment creditor and, if the amount to arbitral award, also permitted Passport to take advantage of New be so paid is insufficient to satisfy the judgment, to deliver any other York’s 20 year statute of limitation for enforcing judgments, CPLR § personal property, or so much of it as is of sufficient value to satisfy 211(b), rather than the FAA’s one-year limitations period 9 U.S.C. § 9, the judgment, to a designated sheriff”. CPLR § 5225(b). New York’s or the New York Convention’s three year statute of limitations. “separate entity rule”, however, “precludes a judgment creditor from Finally, a corporation seeking to have a foreign judgment recognised ordering a garnishee bank operating branches in New York to restrain and enforced in a New York court should consult New York a debtor’s assets held in foreign branches of the bank”. Motorola Business Corporation Law § 1312(a). That statute provides that, Credit Corp. v. Standard Chartered Bank, 21 N.E. 2d 223, 225 (N.Y. without a certificate of authority from the New York Secretary of 2014) (internal quotation marks omitted). The “burden of proof in a State, a foreign corporation “shall not maintain any action or special turnover proceeding rests with the judgment creditor”, but the creditor proceeding in this state”. N.Y. Bus. Corp. Law § 1312(a). There is “is entitled to broad discovery to assist in prosecuting the claims”. a presumption that, in an action brought by a foreign corporation Petrocelli v. Petrocelli Elec. Co., 995 N.Y.S. 2d 5521 (App. Div. 2014). lacking a certificate of authority, the corporation is doing business in its state of incorporation, rather than in New York. The party invoking Section 1312, accordingly, has the burden of establishing that the corporation’s business activities in New York were not just casual or occasional but systemic and regular. See Gemstar Canada, Inc. v. George A. Fuller Co., 6 N.Y.S.3d 552, 554 (App. Div. 2015).
ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 WWW.ICLG.COM 213 Williams & Connolly LLP USA
John J. Buckley, Jr. Ana C. Reyes Williams & Connolly LLP Williams & Connolly LLP 725 “G” Street, N.W. 725 “G” Street, N.W. Washington, D.C. 20005 Washington, D.C. 20005 USA USA
Tel: +1 202 434 5051 Tel: +1 202 434 5276 Email: [email protected] Email: [email protected] URL: www.wc.com URL: www.wc.com USA
John J. Buckley, Jr. is an attorney with Williams & Connolly LLP. He Ana C. Reyes is a partner and Co-Chair of the firm’s International founded and heads the firm’s international arbitration practice group. Litigation Practice Group. Her practice focuses on international A Fellow of the American College of Trial Lawyers, his practice focuses litigation and arbitration. Along with her admissions in Bars of the on complex commercial litigation and international and domestic United States, Ms. Reyes is dual-qualified and is listed on the Roll of arbitration. A Fellow of the Chartered Institute of Arbitrators, he also Solicitors in England and Wales. Ms. Reyes is among those included serves as arbitrator. on The National Law Journal’s Outstanding Women Lawyers list, which recognises “the 75 most accomplished female attorneys working in the Mr. Buckley has consistently been cited as among the top U.S. legal profession today”. commercial arbitration practitioners in Euromoney’s Guide to the World’s Leading Experts in Commercial Arbitration. Ms. Reyes received her J.D., magna cum laude, from Harvard Law School in 2000, where she was an editor of the Harvard Law Review. He is listed on numerous arbitrator rosters, including the International In 2014, Ms. Reyes also received a Masters in International Public Centre for Dispute Resolution (“ICDR”), and the International Institute Policy, with distinction, from the Johns Hopkins University, School of for Conflict Prevention & Resolution (“CPR”). Advanced International Studies. He earned his A.B., magna cum laude, Phi Beta Kappa, from Georgetown University and his J.D., with honours, from The University of Chicago, where he was Editor-in-Chief of The University of Chicago Law Review. Before joining Williams & Connolly, he was a law clerk to U.S. Supreme Court Justice Lewis F. Powell, Jr.
Williams & Connolly LLP, a law firm of approximately 300 lawyers located in Washington, D.C., focuses on high-stakes litigation and arbitration in the U.S. and internationally. Described by Chambers USA as “offering unmatched strength in depth and top-level trial capabilities”, the firm is widely recognised as one of the nation’s premier litigation firms. Clients of the firm include U.S. and foreign corporations, governments, as well as individuals involved in high-profile civil and criminal litigation. The firm’s International Arbitration and International Litigation Practice Groups represent clients in major domestic and international commercial arbitrations and litigations, and in judgment and award enforcement proceedings.
214 WWW.ICLG.COM ICLG TO: ENFORCEMENT OF FOREIGN JUDGMENTS 2018 Current titles in the ICLG series include:
■ Alternative Investment Funds ■ Insurance & Reinsurance ■ Anti-Money Laundering ■ International Arbitration ■ Aviation Law ■ Lending & Secured Finance ■ Business Crime ■ Litigation & Dispute Resolution ■ Cartels & Leniency ■ Merger Control ■ Class & Group Actions ■ Mergers & Acquisitions ■ Competition Litigation ■ Mining Law ■ Construction & Engineering Law ■ Oil & Gas Regulation ■ Copyright ■ Outsourcing ■ Corporate Governance ■ Patents ■ Corporate Immigration ■ Pharmaceutical Advertising ■ Corporate Investigations ■ Private Client ■ Corporate Recovery & Insolvency ■ Private Equity ■ Corporate Tax ■ Product Liability ■ Cybersecurity ■ Project Finance ■ Data Protection ■ Public Investment Funds ■ Employment & Labour Law ■ Public Procurement ■ Enforcement of Foreign Judgments ■ Real Estate ■ Environment & Climate Change Law ■ Securitisation ■ Family Law ■ Shipping Law ■ Fintech ■ Telecoms, Media & Internet ■ Franchise ■ Trade Marks ■ Gambling ■ Vertical Agreements and Dominant Firms
59 Tanner Street, London SE1 3PL, United Kingdom Tel: +44 20 7367 0720 / Fax: +44 20 7407 5255 Email: [email protected]
www.iclg.com